B-54550, MAR. 19, 1958

B-54550: Mar 19, 1958

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FOR WHICH YOU WERE TO RECEIVE REIMBURSEMENT FOR EXPENDITURES. THE CLAIM IS BASED ON YOUR ALLEGATION THAT THE PART OF THE FIXED FEE. SHOULD HAVE BEEN BASED ON 4 PERCENT AND NOT ON THE 2 PERCENT PAID TO YOU SINCE THE QUANTITIES OF FIBRE CONTAINERS ORDERED BY THE GOVERNMENT UNDER THESE SUPPLEMENTS NEVER REACHED THE PROPORTIONS AGREED UPON. WHICH YOU STATE IS THE ORIGINAL CLAIM FILED BY YOU WITH THE CONTRACTING OFFICER AT THAT TIME. NO ACTION WAS EVEN TAKEN BY THE GOVERNMENT ON THAT LETTER. SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED. IT WILL BE OBSERVED THAT THE REFERRED-TO ACT REQUIRES CLAIMS TO BE FILED IN THE GENERAL ACCOUNTING OFFICE AND BARS CONSIDERATION OF ANY CLAIM NOT SO FILED WITHIN THE TEN YEAR PERIOD.

B-54550, MAR. 19, 1958

TO FELTEX CORPORATION:

BY LETTER DATED FEBRUARY 12, 1958, THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS) FORWARDED TO OUR OFFICE FOR CONSIDERATION YOUR LETTER DATED AUGUST 9, 1957, WITH ENCLOSURES, IN REGARD TO YOUR CLAIM FOR $87,268.03 UNDER COST PLUS A FIXED FEE CONTRACT NO. W-ORD-534, DATED SEPTEMBER 17, 1941.

UNDER THE CONTRACT YOU AGREED TO FURNISH, THROUGH THE MANAGEMENT, OPERATION, ETC., OF AN ORDNANCE PLANT LOCATED NEAR ROCK ISLAND, ILLINOIS, TO THE DEPARTMENT OF THE ARMY, SUBSTANTIAL QUANTITIES OF A CERTAIN TYPE OR TYPES OF FIBRE CONTAINERS FOR AMMUNITION, FOR WHICH YOU WERE TO RECEIVE REIMBURSEMENT FOR EXPENDITURES, AS PROVIDED IN THE CONTRACT, PLUS A FIXED FEE. THE CLAIM IS BASED ON YOUR ALLEGATION THAT THE PART OF THE FIXED FEE, INVOLVING SUPPLEMENTS NOS. 4, 6 AND 7 TO CONTRACT NO. W-ORD-534, SHOULD HAVE BEEN BASED ON 4 PERCENT AND NOT ON THE 2 PERCENT PAID TO YOU SINCE THE QUANTITIES OF FIBRE CONTAINERS ORDERED BY THE GOVERNMENT UNDER THESE SUPPLEMENTS NEVER REACHED THE PROPORTIONS AGREED UPON. YOU FURNISH A COPY OF A LETTER DATED FEBRUARY 15, 1945, WHICH YOU STATE IS THE ORIGINAL CLAIM FILED BY YOU WITH THE CONTRACTING OFFICER AT THAT TIME. ALSO, YOU STATE THAT, TO THE BEST OF YOUR KNOWLEDGE, NO ACTION WAS EVEN TAKEN BY THE GOVERNMENT ON THAT LETTER.

TO SET FORTH FURTHER DETAILS AS TO SUCH ADDITIONAL FACTS AS MIGHT BE PERTINENT TO THE MERITS OF YOUR CLAIM WOULD NOT SEEM TO SERVE ANY USEFUL PURPOSE SINCE IT APPEARS THAT THE SOLE ISSUE FOR DETERMINATION HERE INVOLVES A QUESTION AS TO THE TIMELINESS OF THE FILING OF THE CLAIM. WITH RESPECT THERETO, THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"THAT EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY ANY STATE, TERRITORY, POSSESSION OR THE DISTRICT OF COLUMBIA) AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921 (42 STAT. 24), AND THE ACT OF APRIL 10, 1928 (45 STAT. 413), SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: PROVIDED, THAT WHEN A CLAIM OR ANY PERSON SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN FIVE YEARS AFTER ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.

"SEC. 2. WHENEVER ANY CLAIM BARRED BY SECTION 1 SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE, IT SHALL BE RETURNED TO THE CLAIMANT, WITH A COPY OF THIS ACT, AND SUCH ACTION SHALL BE A COMPLETE RESPONSE WITHOUT FURTHER COMMUNICATION.'

IT WILL BE OBSERVED THAT THE REFERRED-TO ACT REQUIRES CLAIMS TO BE FILED IN THE GENERAL ACCOUNTING OFFICE AND BARS CONSIDERATION OF ANY CLAIM NOT SO FILED WITHIN THE TEN YEAR PERIOD. EVEN IF THE RECEIPT OF YOUR LETTER DATED FEBRUARY 15, 1945, BY THE DEPARTMENT OF THE ARMY COULD BE DEFINITELY ESTABLISHED, THE FILING OF A CLAIM IN THE ADMINISTRATIVE OFFICE DOES NOT MEET THE REQUIREMENTS OF THE STATUTE. WHILE IT IS OBVIOUS THAT ANY CLAIM WHICH YOLU MIGHT HAVE HAD IN THIS MATTER FIRST ACCRUED AS EARLY AS 1943, YOUR CLAIM WAS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE UNTIL FEBRUARY 14, 1958.

ACCORDINGLY, THE PROVISIONS OF THE FOREGOING ACT MAKE IT COMPULSORY UPON OUR OFFICE TO DENY YOUR CLAIM AS NOT HAVING BEEN TIMELY FILED.

THE PAPERS FURNISHED BY YOU, WITH THE EXCEPTION OF YOUR LETTER DATED AUGUST 9, 1957, TO THE ASSISTANT SECRETARY OF THE ARMY, ARE RETURNED HEREWITH.