B-199118.OM, JUL 29, 1980

B-199118.OM: Jul 29, 1980

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ATTACHED IS THE FILE CONCERNING THE CLAIM OF CATERPILLAR OF DELAWARE. THE FILE INDICATES THAT MOST OF THESE PARTS WERE ORDERED AND RECEIVED AFTER THE EXPIRATION OF CORRECTED CONTRACT NO. THE UNAUTHORIZED PURCHASE ORDERS HAVE BEEN IMPLICITLY RATIFIED THROUGH THE CONTRACTING OFFICER'S REFERRAL OF THE MATTER TO OUR OFFICE SEEKING RELIEF FOR THE CONTRACTOR. IT IS OUR UNDERSTANDING. LET ALONE OBTAINED A FINDING FROM ONE OF THOSE FORUMS THAT AN AMOUNT IS DUE THE CONTRACTOR.

B-199118.OM, JUL 29, 1980

PRECIS-UNAVAILABLE

ASSOCIATE DIRECTOR, FGMS DIVISION - CLAIMS GROUP:

RETURNED. ATTACHED IS THE FILE CONCERNING THE CLAIM OF CATERPILLAR OF DELAWARE, INC. (CATERPILLAR), IN THE TOTAL AMOUNT OF $48,663.94 FOR UNPAID REPAIR PARTS PROVIDED TO THE UNITED STATES ARMY, 122ND MAINTENANCE, 3RD ARMORED DIVISION, HANAU, GERMANY (ARMY), UNDER SEVERAL PURCHASE ORDERS. THE FILE INDICATES THAT MOST OF THESE PARTS WERE ORDERED AND RECEIVED AFTER THE EXPIRATION OF CORRECTED CONTRACT NO. DAAE07-74-D-0012. THE ARMY RECOMMENDS PAYMENT OF $47,020.82 OF THE AMOUNT CLAIMED ON A QUANTUM VALEBAT BASIS.

WE NOTE THAT THE CLAIMANT HAS REQUESTED A DECISION ON THE ENTIRE CLAIM PURSUANT TO THE CONTRACT DISPUTES ACT OF 1978. NEVERTHELESS, THE ARMY HAS SUBMITTED THE CLAIM FOR OUR REVIEW AND THE CLAIMANT HAS ACQUIESCED IN THE SUBMISSION. CONSEQUENTLY, WE MAY CONSIDER THE CLAIM. CONTRACT DISPUTES ACT OF 1978, 59 COMP.GEN. (B-195272, JANUARY 29, 1980), 80-1 CPD 79.

UPON A REVIEW OF THE FILE, WE AUTHORIZE PAYMENT OF $47,020.82. THE GOVERNMENT HAS GAINED A BENEFIT FROM THE GOODS, THE AMOUNT HAS BEEN DETERMINED TO BE REASONABLE, AND THE UNAUTHORIZED PURCHASE ORDERS HAVE BEEN IMPLICITLY RATIFIED THROUGH THE CONTRACTING OFFICER'S REFERRAL OF THE MATTER TO OUR OFFICE SEEKING RELIEF FOR THE CONTRACTOR. SEE WILSON EQUIPMENT COMPANY, B-197005, FEBRUARY 25, 1980, 80-1 CPD 157. DAVE JARRETT CONSTRUCTION, B-197568, FEBRUARY 12, 1980, 80-1 CPD 127; RCA CORPORATION, B-183289, DECEMBER 3, 1975, 75-2 CPD 369.

AS TO REMAINING PART OF THE CLAIM, THE RECORD SHOWS THE ARMY TOOK EXCEPTION TO PAYMENT FOR THE PURCHASE BECAUSE IT CONSIDERED THE REMAINING TWO PURCHASE ORDERS HAD BEEN PREVIOUSLY PAID. BASED ON OUR REVIEW OF THE RECORD, WE CANNOT QUESTION THE ARMY'S POSITION. THEREFORE, WE MAY NOT ALLOW THIS PART OF THE CLAIM.

WE NOTE CATERPILLAR HAS REQUESTED INTEREST ON THE CLAIM UNDER SECTION 12 OF THE ACT WHICH PROVIDES THAT "INTEREST ON AMOUNTS FOUND DUE CONTRACTORS ON CLAIMS (PURSUED UNDER THE ACT) SHALL BE PAID TO THE CONTRACTOR ***." (EMPHASIS ADDED.) IT IS OUR UNDERSTANDING, HOWEVER, THAT CATERPILLAR HAS NOT YET PURSUED ITS CLAIM WITH THE ARMED SERVICES BOARD OF CONTRACT APPEALS OR THE COURT OF CLAIMS AS SPECIFIED BY THE ACT, LET ALONE OBTAINED A FINDING FROM ONE OF THOSE FORUMS THAT AN AMOUNT IS DUE THE CONTRACTOR. THEREFORE, CATERPILLAR'S CLAIM FOR INTEREST CANNOT BE ALLOWED.

CONSEQUENTLY, $47,020.82 MAY BE ALLOWED IN FULL AND FINAL SETTLEMENT OF THE CLAIM.