B-155223, DEC. 17, 1964

B-155223: Dec 17, 1964

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YOUR LETTER STATES THAT THE AMOUNT IN QUESTION IS RELATED TO SPECIAL TOOLING REQUIRED IN CONNECTION WITH THE PERFORMANCE OF THE ABOVE CONTRACT NOT PREVIOUSLY BILLED. ALTHOUGH YOU IMPLY THAT THE MONEY WAS DUE SOMETIME BEFORE 1958. (ASBCA NO. 3915) THE SUBJECT CONTRACT WAS AMENDED (MODIFICATION NO. 18. THE AMOUNT PAYABLE THEREUNDER WAS DULY BILLED AND PAID. YOU ALLEGE HOWEVER THAT THE TOOLING CHARGES PREVIOUSLY REFERRED TO WERE OVERLOOKED AND NOT INCLUDED WITHIN THE LAST PAYMENT AND THAT THIS FACT ONLY CAME TO LIGHT DURING FINAL AUDIT OF YOUR ACCOUNTS. IN ANSWER TO OUR INQUIRIES WE HAVE BEEN ADVISED THAT NEITHER THE UNITED STATES ARMY ENGINEER DISTRICT OFFICE NOR THE U.S. ARMY FINANCE CENTER HAVE ANY RECORDS WHICH WOULD TEND TO SUBSTANTIATE YOUR CLAIM.

B-155223, DEC. 17, 1964

TO ITT FEDERAL LABORATORIES:

WE REFER TO YOUR LETTER OF SEPTEMBER 10, 1963, ADDRESSED TO THE UNITED STATES ARMY CORPS OF ENGINEERS, REQUESTING PAYMENT OF AN INVOICE IN THE AMOUNT OF $20,638.54 ALLEGEDLY DUE UNDER CONTRACT NO. DA-30-075 ENG-2960.

YOUR LETTER STATES THAT THE AMOUNT IN QUESTION IS RELATED TO SPECIAL TOOLING REQUIRED IN CONNECTION WITH THE PERFORMANCE OF THE ABOVE CONTRACT NOT PREVIOUSLY BILLED, BUT CHARGEABLE TO THE GOVERNMENT. ALTHOUGH YOU IMPLY THAT THE MONEY WAS DUE SOMETIME BEFORE 1958, YOUR COMPANY DID NOT BILL THE GOVERNMENT FOR THIS AMOUNT EARLIER IN ORDER TO KEEP THE CONTRACT OPEN UNTIL DISPOSITION OF YOUR CLAIM FOR ADDITIONAL COSTS THEN PENDING BEFORE THE ARMED SERVICES BOARD OF CONTRACT APPEALS. AFTER RENDITION OF THEIR DECISION ON MARCH 12, 1958, (ASBCA NO. 3915) THE SUBJECT CONTRACT WAS AMENDED (MODIFICATION NO. 18, FEBRUARY 9, 1959) IN ACCORDANCE WITH THE TERMS OF THE AFOREMENTIONED DECISION. THE AMOUNT PAYABLE THEREUNDER WAS DULY BILLED AND PAID. YOU ALLEGE HOWEVER THAT THE TOOLING CHARGES PREVIOUSLY REFERRED TO WERE OVERLOOKED AND NOT INCLUDED WITHIN THE LAST PAYMENT AND THAT THIS FACT ONLY CAME TO LIGHT DURING FINAL AUDIT OF YOUR ACCOUNTS.

IN ANSWER TO OUR INQUIRIES WE HAVE BEEN ADVISED THAT NEITHER THE UNITED STATES ARMY ENGINEER DISTRICT OFFICE NOR THE U.S. ARMY FINANCE CENTER HAVE ANY RECORDS WHICH WOULD TEND TO SUBSTANTIATE YOUR CLAIM. WITHOUT ATTEMPTING TO PASS UPON THE ACTUAL MERITS OF YOUR CLAIM, IT IS REASONABLE TO ASSUME THAT GOVERNMENT RECORDS WOULD HAVE BEEN AVAILABLE HAD YOU BEEN MORE DILIGENT IN PROCESSING YOUR CLAIM.

IN THOSE INSTANCES WHERE THERE IS NO CLEAR CONTROLLING JUDICIAL PRECEDENT AND SUBSTANTIAL DOUBT EXISTS AS TO THE ACTION WHICH A COURT OF COMPETENT JURISDICTION MIGHT TAKE, IT IS REGARDED AS THE DUTY OF THE ACCOUNTING OFFICERS TO DENY THE CLAIM AND LEAVE THE CLAIMANT TO HIS REMEDY IN THE COURTS. SEE LONGWILL V. UNITED STATES, 17 CT. CLS. 288, 291; CHARLES V. UNITED STATES, 19 ID. 316, 319.

CONSEQUENTLY, ON THE BASIS OF THE RECORD BEFORE US WE HAVE NO ALTERNATIVE BUT TO DENY YOUR CLAIM.

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