B-217562, SEP 30, 1985

B-217562, SEP 30, 1985

CLAIMS - EVIDENCE TO SUPPORT - SUFFICIENCY DIGEST: CONSISTENT WITH AIR FORCE RECOMMENDATION, CLAIM OF COMMONWEALTH OF MASSACHUSETTS FOR $71,533.04 FOR RENTAL OF LAND TO THE UNITED STATES AIR FORCE FOR THE PERIOD JULY 1, 1975 TO JUNE 30, 1976 MAY BE PAID. IT IS UNCONTROVERTED THAT THE AIR FORCE RETURNED TO MASSACHUSETTS UNPAID THE VOUCHER COVERING RENT FOR THE PERIOD IN QUESTION, AND THERE IS NO PROOF THAT PAYMENT WAS SUBSEQUENTLY MADE. MOREOVER, THE AIR FORCE BOOKS SHOW THAT RENT WAS PAID FOR THE PERIOD JULY 1, 1974 TO JUNE 30, 1975 BUT HAVE NO ENTRY FOR THE PERIOD IN QUESTION.

CLAIM OF COMMONWEALTH OF MASSACHUSETTS FOR $71,533.04:

THE COMMONWEALTH OF MASSACHUSETTS REQUESTS RECONSIDERATION OF OUR CLAIMS GROUP'S DENIAL OF ITS CLAIM AGAINST THE UNITED STATES IN THE AMOUNT OF $71,533.04 FOR RENTAL OF VARIOUS PARCELS OF LAND AT OTIS AIR FORCE BASE FOR THE PERIOD JULY 1, 1975 THROUGH JUNE 30, 1976. Z 2854237, AUG. 24, 1984, AFF'G ON OTHER GROUNDS Z-2854237, MAY 16, 1984. FOR THE REASONS GIVEN BELOW, WE REVERSE AND CONCLUDE THAT THE CLAIM SHOULD BE PAID.

IN JULY 1974, THE UNITED STATES AIR FORCE LEASED VARIOUS PARCELS OF LAND AT OTIS AIR FORCE BASE FROM THE COMMONWEALTH OF MASSACHUSETTS (#DACA 51-5- 75-293). THE LEASE CALLED FOR ANNUAL RENT PAYMENTS OF $71,533.04 FOR THE YEARS BETWEEN JULY 1, 1974 AND JUNE 30, 1979. THEREAFTER THE LEASE WAS MODIFIED SEVERAL TIMES. MODIFICATION NUMBERS ONE AND TWO DELETED SOME OF THE LANDS COVERED BY THE LEASE BUT MADE NO CHANGE IN THE RENT. MODIFICATION NUMBER THREE FURTHER DELETED LANDS FROM THE LEASE, AND ALSO REDUCED THE RENT TO $1.00 FOR THE ENTIRE REMAINING TERM. MODIFICATION NUMBER THREE WAS EFFECTIVE JULY 1, 1976.

THE ORIGINAL INVOICE FROM MASSACHUSETTS TO THE AIR FORCE FOR THE $71,533 RENT PAYMENT FOR THE PERIOD JULY 1, 1975 THROUGH JUNE 30, 1976 WAS RETURNED UNPAID TO THE STATE IN JANUARY 1977 WITH A REQUEST THAT IT BE CORRECTED TO REFLECT THE LEASE MODIFICATIONS. ALTHOUGH IT IS NOT CLEAR, THE AIR FORCE MAY HAVE MISTAKENLY ASSUMED THAT THE MODIFICATIONS AFFECTED THE RENT FOR THE RENTAL PERIOD IN QUESTION. IN 1982 A STATE AUDIT CONCLUDED THAT THE $71,533 HAD NOT BEEN PAID AND RECOMMENDED IMMEDIATE COLLECTION.

THE CLAIM WAS SUBMITTED TO THE AIR FORCE AND SUBSEQUENTLY INVESTIGATED. THE INVESTIGATION REVEALED NO PROOF OF PAYMENT THROUGH MOST OF THE AIR FORCE'S RECORDS COVERING THE PERIOD FOR WHICH RENT WAS CLAIMED HAD BEEN DESTROYED. IN FEBRUARY 1984 THE AIR FORCE SUBMITTED THE CLAIM TO THIS OFFICE FOR SETTLEMENT WITH A RECOMMENDATION THAT THE CLAIM BE PAID, PRINCIPALLY ON THE GROUND THAT THE ORIGINAL INVOICE SUBMITTED BY MASSACHUSETTS SHOULD HAVE BEEN PAID RATHER THAN RETURNED TO THE STATE FOR ADJUSTMENT. SUBSEQUENTLY, THE AIR FORCE TOLD US INFORMALLY THAT THE BOOKS WHICH REFLECT THE AIR FORCE'S PAYMENTS UNDER THE LEASE INDICATED THAT PAYMENT WAS MADE FOR THE PERIOD JULY 1, 1974 THROUGH JUNE 30, 1975, BUT HAVE NO ENTRY SHOWING PAYMENT FOR THE PERIOD IN QUESTION.

IN Z-2854237, MAY 16, 1984, OUR CLAIMS GROUP FOUND MASSACHUSETTS' CLAIM BARRED BY THE 6-YEAR PERIOD OF LIMITATIONS SET FORTH IN THE STATUTE AUTHORIZING THIS OFFICE TO SETTLE CLAIMS AGAINST THE UNITED STATES. U.S.C. SEC. 3702(B)(1). MASSACHUSETTS REQUESTED RECONSIDERATION ARGUING THAT THE STATUTE OF LIMITATIONS DID NOT APPLY TO STATES. SEE 31 U.S.C.(B)(1)(B). IN ITS DECISION OF AUGUST 24, 1984, THE CLAIMS GROUP AGREED WITH THE STATE, BUT AGAIN DENIED THE CLAIM SINCE THE AIR FORCE RECORDS NECESSARY TO JUSTIFY OR REFUTE THE CLAIM HAD BEEN DESTROYED. SUBSEQUENTLY, THE STATE AGAIN REQUESTED RECONSIDERATION CONTENDING THE AIR FORCE HAD DETERMINED THAT THE RENTAL FOR THE PERIOD IN QUESTION HAD NOT BEEN PAID AND HAD RECOMMENDED PAYMENT.

THE BURDEN OF PROOF IN ESTABLISHING THE LIABILITY OF THE UNITED STATES IS ON THE CLAIMANT. 4 C.F.R. SEC. 31.7; 53 COMP.GEN. 181, 184 (1973); 31 COMP.GEN. 340 (1952). GENERALLY WHERE GOVERNMENT RECORDS HAVE BEEN DESTROYED PURSUANT TO LAW OR ARE UNAVAILABLE DUE TO LAPSE OF TIME, AND THERE IS NO OTHER DOCUMENTATION AVAILABLE FROM ANY SOURCE TO ESTABLISH THE UNITED STATES' LIABILITY, THE CLAIM MUST BE DENIED. E.G., B-187523, NOVEMBER 9, 1976.

THE ABSENCE OF GOVERNMENT RECORDS, HOWEVER, IS NOT AN ABSOLUTE BAR TO ALLOWANCE; A CLAIM MAY BE ALLOWED IF THERE IS OTHER SATISFACTORY EVIDENCE THAT THE CLAIM IS VALID AND HAS NOT BEEN PAID. SEE B-187877, APRIL 14, 1977.

IN THIS INSTANCE, IT IS UNCONTROVERTED THAT THE AIR FORCE RETURNED UNPAID THE VOUCHER SUBMITTED BY MASSACHUSETTS FOR THE RENTAL PERIOD IN QUESTION, AND THERE IS NO PROOF THAT THE RENTAL PAYMENT WAS SUBSEQUENTLY MADE. MOREOVER, THE RECORD INDICATES THE AIR FORCE DID PAY MASSACHUSETTS FOR THE PERIOD JULY 1, 1974 THROUGH JUNE 30, 1975 BUT THE AIR FORCE BOOKS RECORDING PAYMENTS HAVE NO ENTRY SHOWING PAYMENT FOR THE LATER PERIOD IN QUESTION. CONSISTENT WITH A PRESUMPTION OF REGULARITY, SEE UNITED STATES V. ONE 1971 FORD TRUCK, 346 F. SUPP. 613, 620 (C.D. CAL 1972), AS THERE IS NO EVIDENCE TO THE CONTRARY, WE CAN PRESUME THAT THE PAYMENT FOR 1975-76 WOULD HAVE BEEN RECORDED HAD IT BEEN MADE. ALTHOUGH WE STILL THINK OVERLY LENGTHY THE PERIOD DURING WHICH THE CLAIM APPEARS NOT TO HAVE BEEN PURSUED, THE DESCRIBED CIRCUMSTANTIAL EVIDENCE, TOGETHER WITH THE AIR FORCE'S RECOMMENDATION, IS SUFFICIENT TO WARRANT PAYMENT OF THE $71,533.04 CLAIM. ACCORDINGLY, WE REVERSE Z-2854237, AUG. 24, 1984.