B-148493, FEB. 6, 1963

B-148493, FEB. 6, 1963

TO 29 PALMS VAN AND STORAGE:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 14, 1962, IN WHICH YOU ASSERTED A CLAIM IN THE AMOUNT OF $15,016.90, ALLEGEDLY THE AMOUNT OF DAMAGES SUSTAINED AS A RESULT OF THE BREACH, BY THE UNITED STATES MARINE CORPS, OF CONTRACT NO. N-62204-4807 (JB:SP) FOR THE FURNISHING OF COMMERCIAL HAULING, PACKING, CRATING, UNPACKING, ETC., OF HOUSEHOLD EFFECTS OF MILITARY PERSONNEL AT THE MARINE CORPS BASE, TWENTY-NINE PALMS, CALIFORNIA.

YOUR CLAIM WAS ORIGINALLY SUBMITTED TO OUR OFFICE BY LETTER OF MARCH 13, 1962, IN WHICH DEMAND WAS MADE FOR REIMBURSEMENT OF LOSSES RESULTING FROM THE ALLEGED BREACH, BUT THE AMOUNT OF THE LOSSES SAID TO BE SUSTAINED WAS NOT STATED THEREIN. IN OUR LETTER OF MAY 18, 1962, B-148493, WE ADVISED YOU THAT THE CLAIM WAS ONE FOR UNLIQUIDATED DAMAGES FOR AN ALLEGED BREACH OF CONTRACT, AND AS SUCH WAS WITHIN THE CLASS OF CLAIMS WHICH THE ACCOUNTING OFFICERS OF THE GOVERNMENT CONSISTENTLY HAVE DECLINED TO CONSIDER ON THE MERITS. HOWEVER, THERE SEEMS TO HAVE BEEN SOME MISUNDERSTANDING OF OUR LETTER AND THE REASONS STATED THEREIN FOR THE DECLINATION OF YOUR CLAIM. APPARENTLY IT WAS CONCLUDED FROM OUR CHARACTERIZATION OF THE CLAIM AS BEING ONE FOR UNLIQUIDATED DAMAGES THAT SUCH ACTION WAS PREDICATED MERELY UPON THE BASIS THAT THE CLAIM WAS NOT STATED IN A SUM CERTAIN.

IT WAS OUR PURPOSE TO EXPLAIN THAT YOUR ENTITLEMENT TO DAMAGES CANNOT BE VERIFIED AND THE AMOUNT THEREOF ASCERTAINED EITHER FROM THE EXPRESS TERMS OF THE CONTRACT ITSELF, OR BY THE APPLICATION OF CORRECT AND RELEVANT LEGAL PRINCIPLES; NOR ARE THE ALLEGED DAMAGES SUSCEPTIBLE OF DETERMINATION SOLELY BY LOGICAL DEDUCTION OR BY MATHEMATICAL COMPUTATIONS FROM FACTORS AND INFORMATION IN THE POSSESSION OR KNOWLEDGE OF THE PARTY CHARGED. YOUR CLAIM WAS THEREFORE NOT CONSIDERED TO BE ONE FOR "LIQUIDATED DAMAGES" OF THE TYPE CAPABLE OF BEING RESOLVED BY OUR OFFICE ON THE MERITS.

AS WE POINTED OUT IN OUR PREVIOUS LETTER, THE RESOLUTION OF THE VARIOUS ISSUES ARISING IN CLAIMS FOR UNLIQUIDATED DAMAGES FOR BREACH OF CONTRACT ALMOST INVARIABLY ENTAILS THE PRESENTATION OF ADDITIONAL EVIDENCE, BY BOTH THE CLAIMANT AND THE GOVERNMENT, NOT INFREQUENTLY IN CONFLICT AND USUALLY, IF NOT NECESSARILY, REQUIRES THE TESTING OF THE EVIDENCE BY SUCH DEVICES AS CROSS-EXAMINATION OF WITNESSES, DISCOVERY PROCEDURES, APPLICATION OF RULES OF EVIDENCE, JURIDICAL WEIGHING OF EVIDENCE, AND OTHER CHARACTERISTICS OF ADVERSARY PROCEEDINGS. AS WE ALSO PREVIOUSLY EXPLAINED, THE ORGANIZATION OF OUR OFFICE IS SUCH THAT WE HAVE NO METHODS OR FACILITIES FOR CONDUCTING SUCH ADVERSARY PROCEEDINGS, AS DO THE COURTS.

IN THE LIGHT OF THESE CONSIDERATIONS WE ARE STILL OF THE VIEW THAT THE CLAIM ASSERTED BY YOU IN THE INSTANT MATTER IS FOR UNLIQUIDATED DAMAGES FOR BREACH OF CONTRACT, EVEN THOUGH NOW STATED IN A SUM CERTAIN. AS WE POINTED OUT, OUR FACILITIES AND PROCEDURES, UNLIKE THOSE OF THE COURTS IN THIS KIND OF A MATTER, DO NOT LEND THEMSELVES TO VERIFYING THE AMOUNT OF THE DAMAGES ALLEGEDLY SUSTAINED BY YOU, AND WE ARE NOT SATISFIED THAT ANY DAMAGES ARE CAPABLE OF BEING ACCURATELY ASCERTAINED. THE CONCLUSION STATED IN OUR PREVIOUS LETTER THAT WE MUST DENY YOUR CLAIM IS THEREFORE AFFIRMED.