B-168316, APR. 24, 1970

B-168316: Apr 24, 1970

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DAHLBERG: REFERENCE IS MADE TO YOUR LETTER OF MAY 13. IN VIEW OF THE LONG-STANDING RULE OF THIS OFFICE NOT TO RENDER AN ADVANCE DECISION ON A CLAIM WHICH IS INVOLVED IN LITIGATION. THE DEPARTMENT OF JUSTICE REQUESTED THE UNITED STATES ATTORNEY IN ANCHORAGE TO SEEK TO HAVE THE COURT SUSPEND ACTION IN THE CASE FOR A REASONABLE TIME. IT IS THE LONG-STANDING RULE OF THIS OFFICE NOT TO RENDER AN ADVANCE DECISION AS TO PAYMENT OF A CLAIM WHICH IS THE SUBJECT OF PENDING LITIGATION. THE VOUCHER AND RELATED MATERIAL FORWARDED WITH THE LETTER OF NOVEMBER 3 ARE RETURNED. THERE IS ALSO ENCLOSED A COPY OF OUR LETTER OF TODAY TO THE DEPARTMENT OF JUSTICE RECOMMENDING THAT THE SUIT BE DEFENDED FOR THE REASONS STATED THEREIN.

B-168316, APR. 24, 1970

TO MRS. LINDA J. DAHLBERG:

REFERENCE IS MADE TO YOUR LETTER OF MAY 13, 1969, NPADC-F, WITH ENCLOSURES, FORWARDED HERE NOVEMBER 3, 1969, BY THE ACTING CHIEF, MILITARY PAY AND TRAVEL DIVISION, OFFICE, CHIEF OF FINANCE AND ACCOUNTING (FILE REF: COMPT-FAPT), REQUESTING A DECISION AS TO THE PROPRIETY OF PAYING VOUCHER NO. 11-69-157.

THE SUBJECT VOUCHER IN THE AMOUNT OF $7,520 HAD BEEN PRESENTED TO YOU FOR PAYMENT TO THE PENN JERSEY DRILLING COMPANY PURSUANT TO A DECISION OF SEPTEMBER 27, 1968, BY THE ARMED SERVICES BOARD OF CONTRACT APPEALS, ASBCA NO. 13058, UNDER CORPS OF ENGINEERS CONTRACT NO. DA-95-507-ENG 2114 (NEG). YOU CONSIDER THE CIRCUMSTANCES INVOLVED TO BE IN MANY WAYS ANALOGOUS TO THOSE DISCUSSED IN OUR DECISION 46 COMP. GEN. 441 (1966), AND YOU SUBMIT VARIOUS QUESTIONS BOTH AS TO THE BOARD'S JURISDICTION AND AS TO THE PROPRIETY OF ITS ACTIONS IN THE MATTER.

IN HIS LETTER OF NOVEMBER 3, THE ACTING CHIEF, MILITARY PAY AND TRAVEL DIVISION, ADVISED THIS OFFICE THAT THE CONTRACTOR HAD FILED SUIT IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA, CIVIL ACTION NO. A 126-69 CIV; FOR THE MONIES INVOLVED. IN VIEW THEREOF, HE REQUESTED THAT OUR DECISION BE EXPEDITED, SINCE A DECISION AUTHORIZING PAYMENT WOULD OBVIATE THE NEED TO DEFEND THE SUIT.

IN VIEW OF THE LONG-STANDING RULE OF THIS OFFICE NOT TO RENDER AN ADVANCE DECISION ON A CLAIM WHICH IS INVOLVED IN LITIGATION, THE DEPARTMENT OF JUSTICE REQUESTED THE UNITED STATES ATTORNEY IN ANCHORAGE TO SEEK TO HAVE THE COURT SUSPEND ACTION IN THE CASE FOR A REASONABLE TIME.

THE DEPARTMENT OF JUSTICE HAS NOW ADVISED US THAT THE COURT HAS REFUSED A STAY IN THE JUDICIAL PROCEEDINGS.

AS STATED ABOVE, IT IS THE LONG-STANDING RULE OF THIS OFFICE NOT TO RENDER AN ADVANCE DECISION AS TO PAYMENT OF A CLAIM WHICH IS THE SUBJECT OF PENDING LITIGATION. SEE 33 COMP. GEN. 479 (1954), AND DECISIONS THEREIN CITED. ACCORDINGLY, WE MUST DECLINE TO RENDER A DECISION IN THE INSTANT CASE.

THE VOUCHER AND RELATED MATERIAL FORWARDED WITH THE LETTER OF NOVEMBER 3 ARE RETURNED; HOWEVER, IN THE PRESENT STATE OF THE CASE, THE DEFENSE OF THE CLAIM HAVING BEEN SUBMITTED TO THE ATTORNEY GENERAL, FURTHER ACTION ON THE CLAIM SHOULD NOT BE TAKEN UNTIL DISPOSITION OF THE PENDING JUDICIAL ACTION.

THERE IS ALSO ENCLOSED A COPY OF OUR LETTER OF TODAY TO THE DEPARTMENT OF JUSTICE RECOMMENDING THAT THE SUIT BE DEFENDED FOR THE REASONS STATED THEREIN.