B-153718, MAY 1, 1964

B-153718, MAY 1, 1964

TO AVDEL, INC.:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 2, 1964, REQUESTING A REVIEW OF SETTLEMENT DATED FEBRUARY 6, 1964, DISALLOWING YOUR CLAIM FOR $1,389 AS THE VALUE OF AN EXCESS OF 60,000 RIVETS ALLEGED TO HAVE BEEN SHIPPED TO THE TRANSPORTATION OFFICER, SAN BERNARDINO AIR MATERIEL AREA, UNITED STATES AIR FORCE, NORTON AIR FORCE BASE, CALIFORNIA, ON CONTRACT NO. AF 04/607/-4564, DATED DECEMBER 29, 1959.

UNDER THE TERMS OF THE ABOVE CONTRACT YOU AGREED TO DELIVER TO NORTON AIR FORCE BASE AN ESTIMATED 120,000 (MAXIMUM 180,000) RIVETS OF THE SPECIFIED TYPE DURING THE PERIOD JANUARY 1, 1960, THROUGH JUNE 30, 1960, AT A PRICE OF $23.15 A THOUSAND, LESS A CASH DISCOUNT OF ONE PERCENT FOR PAYMENT WITHIN 10 CALENDAR DAYS. DELIVERIES WERE TO BE MADE WITHIN 30 DAYS AFTER RECEIPT OF DELIVERY ORDERS AND IN THE AMOUNTS CALLED FOR THEREUNDER. DELIVERY OF THE MAXIMUM QUANTITY OF 180,000 RIVETS ON THREE DELIVERY ORDERS OF 60,000 RIVETS EACH WAS COMPLETED ON MAY 4, 1960, AND AN ADDITIONAL 60,000 RIVETS WERE DELIVERED ON JUNE 6, 1960, PURSUANT TO PURCHASE ORDER NO. (04-607) 60-2626, DATED JUNE 3, 1960. ON JUNE 27, 1960, YOU ACCEPTED AWARD OF ANOTHER CONTRACT, NO. AF 04/607/-5075, FOR DELIVERING TO NORTON AIR FORCE BASE AN ESTIMATED QUANTITY OF 1,125,000 RIVETS DURING THE PERIOD JULY 1, 1960, THROUGH JUNE 30, 1961, AT A PRICE OF $23.13 A THOUSAND, LESS A DISCOUNT OF 1/2 OF ONE PERCENT FOR PAYMENT WITHIN 30 DAYS. DELIVERIES WERE TO BE MADE IN THE AMOUNTS CALLED FOR BY WRITTEN DELIVERY ORDERS WITHIN 10 CALENDAR DAYS AFTER RECEIPT OF THE ORDERS. TEN DELIVERY ORDERS FOR 60,000 RIVETS EACH AND ONE DELIVERY ORDER FOR 120,000 RIVETS WERE ISSUED UNDER THE CONTRACT AND THE FINAL DELIVERY WAS CHECKED IN AT NORTON AIR FORCE BASE ON AUGUST 2, 1961.

WHILE YOU STATE THAT YOUR RECORDS INDICATE THAT ALL DELIVERY ORDERS UNDER BOTH CONTRACTS WERE SHIPPED AND PAID FOR IN FULL, IT IS YOUR CONTENTION THAT YOU HAVE NOT RECEIVED PAYMENT FOR OR RETURN OF THE MERCHANDISE INVOLVED IN AN OVERSHIPMENT OF 60,000 RIVETS MADE ON DECEMBER 30, 1960, AGAINST DELIVERY ORDER NO. 04/607/60-2547, DATED MARCH 9, 1960, CONTRACT NO. AF 04/607/-4564, YOUR INVOICE NO. 11325, WHICH SHIPMENT WAS NEARLY SEVEN MONTHS AFTER THE FINAL DELIVERY UNDER THAT CONTRACT AND DURING THE PERIOD WHEN SHIPMENTS WERE BEING MADE UNDER CONTRACT NO. AF 04/607/-5075.

IN SUPPORT OF YOUR CLAIM YOU HAVE FURNISHED A COPY OF YOUR INVOICE NO. 11325, DATED DECEMBER 30, 1960, CITING DELIVERY ORDER NO. 04/607/602547 AND CONTRACT NO. AF 04/607/-4564 AND SHOWING UNITED PARCEL SERVICE AS THE CARRIER. YOU HAVE ALSO FURNISHED A COPY OF A UNITED PARCEL SERVICE ,PROOF OF DELIVERY" SLIP, INDICATING THAT A SHIPMENT FROM YOUR FIRM WAS DELIVERED TO NORTON AIR FORCE BASE ON JANUARY 3, 1961, TOGETHER WITH A RECAP OF EACH DELIVERY ORDER SHOWING YOUR INVOICE OR INVOICES CHARGED TO EACH ORDER. TOTAL OF 21 OF YOUR SHIPPING INVOICE NUMBERS IS SHOWN WHICH YOU HAVE SUPPORTED WITH COPIES OF CARRIER RECORDS FOR 16 DELIVERIES FROM FEBRUARY 2, 1960, THROUGH JULY 28, 1961 (CHECKED IN AT NORTON ON AUGUST 2), AND YOU STATE THAT DURING THAT PERIOD TWO ADDITIONAL SHIPMENTS WERE MADE BY PARCEL POST AND THREE MORE WERE PICKED UP BY THE GOVERNMENT FOR WHICH YOU ARE UNABLE TO FURNISH RECEIPTS. IN THIS CONNECTION IT IS NOTED THAT THE DELIVERY MADE ON FEBRUARY 2, 1960 (YOUR STATED INVOICE NO. 54541 FOR 50,000 RIVETS), AS EVIDENCED BY A COPY OF A UNITED PARCEL SERVICE "PROOF OF DELIVERY" SLIP, IS PRIOR TO THE DATE OF THE FIRST DELIVERY ORDER, FEBRUARY 17, 1960, ISSUED UNDER CONTRACT NO. AF 04/607/-4564 AND IT IS REPORTED THAT THE SHIPMENT WAS RETURNED TO YOU COLLECT VIA UNITED PARCEL SERVICE. THUS, ELIMINATING SUCH SHIPMENT, IT APPEARS THAT YOUR RECORDS REFLECT ONLY 20 OTHER DELIVERIES HAVING BEEN MADE UNDER THE TWO CONTRACTS.

THE REPORTS FURNISHED US INDICATE THAT THE ADMINISTRATIVE OFFICE IS UNABLE TO RECONCILE YOUR VARIOUS INVOICE NUMBERS WITH THE SHIPMENTS RECEIVED INASMUCH AS THE PAID VOUCHERS DO NOT CROSS REFERENCE YOUR INVOICES, AND ALTHOUGH A SHIPMENT OF 60,000 RIVETS WAS RECEIVED ON JANUARY 3, 1961, SUCH SHIPMENT CAN NOT BE IDENTIFIED FROM GOVERNMENT RECORDS WITH YOUR INVOICE NO. 11325. THE FACTS AND CIRCUMSTANCES OF YOUR CLAIM HAVE BEEN THOROUGHLY INVESTIGATED BY PERSONNEL AT SAN BERNARDINO AIR MATERIEL AREA, AND THE MATERIEL INSPECTION AND RECEIVING REPORTS ON FILE WITH THE BASE PROCUREMENT DIVISION AT NORTON AIR FORCE BASE REFLECT THAT 20 DELIVERIES WERE RECEIVED FROM YOUR COMPANY UNDER THE TWO CONTRACTS. THESE RECEIVING REPORTS, WHICH LIKEWISE DO NOT SHOW YOUR INVOICE NUMBERS, HAVE BEEN COMPLETELY RECONCILED WITH THE DELIVERY ORDERS ISSUED AND THE VOUCHERS ON WHICH PAYMENTS WERE MADE. WHILE YOUR INVOICE NO. 11325 SEEMS TO INDICATE, AS YOU CONTEND, THAT YOU SHIPPED 60,000 RIVETS TO NORTON AIR FORCE BASE BY UNITED PARCEL SERVICE ON DECEMBER 30, 1960, CITING AN ORDER AND CONTRACT WHICH HAD BEEN FULFILLED PREVIOUSLY THERETO, THE BASE MATERIEL INSPECTION AND RECEIVING REPORT SHOWS THAT THE SHIPMENT OF 60,000 RIVETS DELIVERED BY UNITED PARCEL SERVICE ON JANUARY 3, 1961, WAS CREDITED TO DELIVERY ORDER NO. (04-607/61-6714 ISSUED DECEMBER 23, 1960, FOR THAT NUMBER OF RIVETS UNDER CONTRACT NO. AF 04/607/-5075. NONE OF THE RECORDS FURNISHED THIS OFFICE CONTAIN DEFINITE PROOF OF DELIVERY OF ANY LIKE QUANTITY OF RIVETS DURING THE PERIODS COVERED BY THE CONTRACTS FOR WHICH PAYMENT HAS NOT BEEN MADE.

THE COURT OF CLAIMS HAS HELD, IN THE CASES OF LONGWILL V. UNITED STATES, 17 CT.CL. 288, AND CHARLES V. UNITED STATES, 19 CT.CL. 316, THAT THE ACCOUNTING OFFICERS OF THE GOVERNMENT HAVE THE RIGHT AND DUTY TO SCRUTINIZE CLAIMS AND ACCOUNTS WITH GREAT CARE AND TO REJECT ALL CLAIMS CONCERNING WHICH ANY DOUBT EXISTS. OUR DECISIONS HAVE CONSISTENTLY HELD THAT THE BURDEN DOES NOT REST UPON THIS OFFICE TO REFUTE CLAIMS PRESENTED FOR SETTLEMENT OR TO REFUTE THE ALLEGATIONS UPON WHICH SUCH CLAIMS ARE BASED, BUT THAT THE BURDEN IS ON CLAIMANTS TO FURNISH EVIDENCE, EITHER TO OUR OFFICE OR TO THE COURT IF THEY CHOOSE TO FILE SUIT, CLEARLY AND SATISFACTORILY PROVING THEIR CLAIMS AND ALL MATTERS INCIDENTAL THERETO WHICH MAY BE NECESSARY TO CLEARLY ESTABLISH THE LEGAL LIABILITY OF THE UNITED STATES AND THE CLAIMANT'S RIGHT TO RECEIVE PAYMENT. SEE 18 COMP. GEN. 99; ID. 980; AND 31 ID. 340. MOREOVER, UPON DISPUTED QUESTIONS OF FACT BETWEEN THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT AND A CLAIMANT OR OTHER PERSON DEALING WITH THE GOVERNMENT, IT IS THE LONG-ESTABLISHED RULE OF THE ACCOUNTING OFFICERS TO ACCEPT THE FACTS AS SHOWN BY THE ADMINISTRATIVE RECORDS, IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS THEREOF. 3 COMP. GEN. 51; 16 ID. 325.

ACCORDINGLY, SINCE THE EVIDENCE PRESENTLY OF RECORD DOES NOT CLEARLY ESTABLISH DELIVERY OF AN EXCESS SHIPMENT OF 60,000 RIVETS TO NORTON AIR FORCE BASE UNDER THE CONTRACTS, THERE DOES NOT APPEAR TO BE ANY PROPER BASIS FOR THE ALLOWANCE OF YOUR CLAIM AND THE SETTLEMENT OF FEBRUARY 6, 1964, IS SUSTAINED.