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B-146138, DEC. 20, 1963

B-146138 Dec 20, 1963
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JR.: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 20. THE CLAIMANT WAS ADVISED THAT INASMUCH AS NOTICE OF THE CLAIM WAS NOT RECEIVED IN OUR OFFICE WITHIN 10 YEARS AFTER THE DATE IT FIRST ACCRUED. THE CLAIM WAS BARRED BY THE ACT OF OCTOBER 9. YOU CONTEND THAT THE TAKING OF THE BRICKS GAVE RISE TO AN IMPLIED CONTRACT ON THE PART OF THE ARMY TO PAY FOR THE BRICKS AND URGE THAT 31 U.S.C. 71A IS NOT APPLICABLE TO THE INSTANT CLAIM BECAUSE THE 10-YEAR TIME LIMITATION ON CLAIMS AND DEMANDS PRESCRIBED THEREIN MUST BE CONSIDERED IN RELATION WITH 31 U.S.C. 71. IT OMITS ANY REFERENCE TO THE SETTLEMENT AND ADJUSTMENT OF PUBLIC ACCOUNTS OF WHICH THE INSTANT MATTER IS AN EXAMPLE. THE TEN-YEAR LIMITATION WAS INTENDED TO APPLY ONLY TO CLAIMS AGAINST THE UNITED STATES WHICH ARE PRESENTED IN THE GENERAL ACCOUNTING OFFICE.

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B-146138, DEC. 20, 1963

TO MR. EDWARD J. MCCORMACK, JR.:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 20, 1963, REQUESTING ON BEHALF OF THE JE-IL BRICK COMPANY, DAI-BANG DONG FACTORY, SEOUL, KOREA, PAYMENT OF $100,000 FOR 1,800,000 BRICKS ALLEGEDLY TAKEN FROM THE COMPANY'S FACTORY AND USED BY THE UNITED STATES EIGHTH ARMY DURING THE SPRING OF 1951. THIS CLAIM HAS TWICE BEEN CONSIDERED BY US AND BY LETTERS OF MAY 2, 1962 AND JULY 3, 1963, THE CLAIMANT WAS ADVISED THAT INASMUCH AS NOTICE OF THE CLAIM WAS NOT RECEIVED IN OUR OFFICE WITHIN 10 YEARS AFTER THE DATE IT FIRST ACCRUED, THE CLAIM WAS BARRED BY THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A.

YOU CONTEND THAT THE TAKING OF THE BRICKS GAVE RISE TO AN IMPLIED CONTRACT ON THE PART OF THE ARMY TO PAY FOR THE BRICKS AND URGE THAT 31 U.S.C. 71A IS NOT APPLICABLE TO THE INSTANT CLAIM BECAUSE THE 10-YEAR TIME LIMITATION ON CLAIMS AND DEMANDS PRESCRIBED THEREIN MUST BE CONSIDERED IN RELATION WITH 31 U.S.C. 71, WHICH PROVIDES THAT ALL CLAIMS AND DEMANDS BY OR AGAINST THE GOVERNMENT, AND ALL PUBLIC ACCOUNTS, SHALL BE SETTLED IN THE GENERAL ACCOUNTING OFFICE. YOU THEN STATE THAT---

"SECTION 71A PLACES A TIME LIMITATION UPON THE FILING OF CLAIMS AND DEMANDS WITH THE GENERAL ACCOUNTING OFFICE. IT OMITS ANY REFERENCE TO THE SETTLEMENT AND ADJUSTMENT OF PUBLIC ACCOUNTS OF WHICH THE INSTANT MATTER IS AN EXAMPLE. THUS, THE TEN-YEAR LIMITATION WAS INTENDED TO APPLY ONLY TO CLAIMS AGAINST THE UNITED STATES WHICH ARE PRESENTED IN THE GENERAL ACCOUNTING OFFICE, AND NOT TO THE SETTLEMENT OF ACCOUNTS. THE COMPANY'S APPLICATION FOR REIMBURSEMENT IS NOT A CLAIM WITHIN THE MEANING AND PURPOSE OF SECTION 71A, BUT A SIMPLE REQUEST FOR PAYMENT OF AN ACCOUNT FOR GOODS TAKEN AND USED BY THE ARMY IN A CONTRACTUAL SITUATION.'

THE LEGISLATION CONTAINED IN 31 U.S.C. 71A WAS ENACTED AT THE REQUEST OF THE GENERAL ACCOUNTING OFFICE AND SUBSTANTIALLY IN THE FORM SUGGESTED BY US. THE 10-YEAR LIMITATION PRESCRIBED IN 31 U.S.C. 71A IS APPLICABLE TO EVERY CLAIM AND DEMAND WHATEVER MADE AGAINST THE UNITED STATES EXCEPT THOSE SPECIFICALLY EXEMPTED THEREIN. SINCE THIS LANGUAGE IS ALL INCLUSIVE, THERE APPEARED NO NEED TO SET FORTH THE VARIOUS BASES ON WHICH SUCH CLAIMS MIGHT BE PREDICATED. THAT THE GENERAL ACCOUNTING OFFICE AND THE CONGRESS INTENDED THE TERM "CLAIMS OR DEMANDS" TO APPLY TO"ACCOUNTS" IS EVIDENT FROM AN EXAMINATION OF THE LEGISLATIVE HISTORY OF SUCH LEGISLATION. FOR EXAMPLE, IN RECOMMENDING THE ENACTMENT OF THIS LEGISLATION, WE STATED THAT---

"THE AUTHORITY OF THE GENERAL ACCOUNTING OFFICE TO ALLOW CLAIMS AGAINST THE UNITED STATES IS LIMITED TO THOSE CLAIMS WHICH ARE CLEARLY AND COMPLETELY SUPPORTED BY RECORD EVIDENCE FROM AUTHORITATIVE SOURCES. CANNOT ALLOW A CLAIM ON THE MERE STATEMENT OF THE CLAIMANT NOT VERIFIED OR CORROBORATED BY GOVERNMENT RECORDS OR DOCUMENTARY EVIDENCE. CONSEQUENTLY IT IS NECESSARY FOR THE GENERAL ACCOUNTING OFFICE TO PRESERVE FOR ALL TIME ALL ACCOUNTS RECEIVED BY IT, A PROCEDURE WHICH IF CONTINUED, OWING TO THE ENORMOUS VOLUME OF ACCOUNTS NOW BEING RECEIVED UNDER THE EMERGENCY PROGRAM, WILL COST THE GOVERNMENT LARGE SUMS ANNUALLY FOR THE RENTAL OF STORAGE SPACE.

"CLAIMS ARE SUBMITTED TO THE GENERAL ACCOUNTING OFFICE YEARS AFTER SUCH CLAIMS FIRST ACCRUED, AND NOT INFREQUENTLY FROM 10 TO 25 YEARS AFTER THE RIGHTS OF THE CLAIMANTS AROSE. EXCEPT IN SEVERAL INSTANCES WHERE THE CONGRESS HAS RECOGNIZED THE NECESSITY FOR A STATUTORY LIMITATION ON THE ASSERTION OF CLAIMS AGAINST THE UNITED STATES, THERE IS NO CLEAR STATUTORY INHIBITION AGAINST THE CONSIDERATION OF CLAIMS IRRESPECTIVE OF THE TIME IN WHICH SUBMISSIONS ARE MADE. NEEDLESS TO SAY, THE EFFORT TO DEVELOP OLD CLAIMS REQUIRES A VAST AMOUNT OF TIME BOTH IN THE GENERAL ACCOUNTING OFFICE AND THE ADMINISTRATIVE OFFICES INVOLVED AND THE RESULTANT COST FROM WHICH THE UNITED STATES OBTAINS NO BENEFIT, IS SO GREAT AS TO MAKE IT PREJUDICIAL IN THE INTERESTS OF THE UNITED STATES.

"IN THIS CONNECTION IT WOULD APPEAR THAT THE OBLIGATIONS AND LIABILITIES OF THE UNITED STATES FOR THE PAYMENT OF ANY CLAIM, DEMAND, OR ACCOUNT NOT PRESENTED IN DUE COURSE SHOULD NOT BE GREATER THAN THE OBLIGATIONS AND LIABILITIES OF THE SEVERAL STATES AND CITIZENS UNDER LOCAL STATUTES OF LIMITATIONS.' SEE PAGE 2 OF HOUSE REPORT NO. 1541, 76TH CONGRESS, 3D SESSION. ALSO ON THIS SAME PAGE OF THAT HOUSE REPORT, THE COMMITTEE ON EXPENDITURES IN THE EXECUTIVE DEPARTMENTS STATED THAT---

"IF THIS LEGISLATION IS ENACTED INTO LAW AND THE CLAIM IS FILED AFTER THE STATUTE OF LIMITATIONS HAS EXPIRED, ALL THAT WILL BE NECESSARY IS FOR THE GENERAL ACCOUNTING OFFICE TO SEND A COPY OF THE STATUTE TO THE CLAIMANT.

"THE ENACTMENT OF THIS LEGISLATION WILL SAVE THE GOVERNMENT NOT ONLY THE AMOUNTS NOW PAID OUT BUT WILL GREATLY REDUCE THE COST OF SETTLING CLAIMS IN THE GENERAL ACCOUNTING OFFICE AND WILL EXPEDITE THE SETTLEMENT OF THE GOVERNMENT ACCOUNTS WITH PRIVATE INDIVIDUALS AND FIRMS.'

CONSEQUENTLY, WE THINK THERE CAN BE NO DOUBT AS TO THE INTENT OF THE CONGRESS IN THIS MATTER NOR DO WE HAVE ANY DOUBT THAT THE LANGUAGE USED IS SUFFICIENT TO COVER CLAIMS OR DEMANDS BASED ON ACCOUNTS OR, AS IN THIS CASE, THOSE BASED UPON AN ALLEGED IMPLIED CONTRACT.

YOU THEN CONTEND THAT EVEN IF 31 U.S.C. 71A IS OTHERWISE APPLICABLE, A SITUATION OF ESTOPPEL HAS ARISEN. IN THIS CONNECTION YOU STATE THAT --

"* * * THE EIGHTH ARMY, WHICH WAS THE PROPER AGENCY TO PAY THE COMPANY, REPRESENTED THAT THE MATTER WAS BEING HANDLED THROUGH PROPER CHANNELS AND SPECIFICALLY THAT THE MATTER HAD BEEN FORWARDED TO THE OFFICE OF THE COMPTROLLER GENERAL. TOTALLY IN RELIANCE UPON THESE REPRESENTATIONS THE COMPANY DID NOT PRESENT ITS REQUEST FOR PAYMENT TO ANY OTHER AGENCY OF THE GOVERNMENT. THEREFORE, THE GOVERNMENT SHOULD BE ESTOPPED FROM ASSERTING THE FAILURE OF THE COMPANY TO FILE ITS APPLICATION WITH THE GENERAL ACCOUNTING OFFICE WITHIN THE TEN-YEAR PERIOD. SEE SMALE AND ROBINSON, INC. V. U.S. (D.C.S.D. CAL. 1954), 123 F.SUPP. 457, WHERE THE UNITED STATES WAS ESTOPPED FROM ARGUING A TIME LIMITATION IN A TAX SITUATION. THAT CASE THE CLAIMANT'S FAILURE TO FILE HIS CLAIM TIMELY WAS PREDICATED UPON THE REPRESENTATIONS MADE TO HIM BY AN INTERNAL REVENUE AGENT.

"THE SAME CONSIDERATIONS OF ESTOPPEL APPLY TO THE FAILURE OF THE COMPANY TO SUE IN THE COURT OF CLAIMS WITHIN THE STATUTORY PERIOD.'

TO THIS CONTENTION, IT SEEMS SUFFICIENT TO POINT OUT THAT 31 U.S.C. 71A SPECIFICALLY PROVIDES THAT A CLAIM COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE SHALL BE FOREVER BARRED UNLESS RECEIVED IN SUCH OFFICE WITHIN TEN FULL YEARS AFTER IT FIRST ACCRUED. SUCH STATUTORY PROVISIONS ARE CLEAR AND FREE FROM DOUBT AND PERMIT US NO DISCRETION IN THE MATTER. WE HAVE EXAMINED SMALE AND ROBINSON, INC., V. THE UNITED STATES, 123 F.SUPP. 457, THE COURT CASE TO WHICH YOU REFER, AND HAVE FOUND NOTHING THEREIN INDICATING THAT THE PRINCIPLE OF ESTOPPEL PROPERLY MIGHT BE APPLIED TO THE CIRCUMSTANCES INVOLVED IN THE INSTANT CLAIM. THAT CASE INVOLVED THE WAIVER OF FORMAL REQUIREMENTS OF REGULATIONS CONCERNING PROCEDURE AND FORM RATHER THAN THE SUBSTANTIVE REQUIREMENTS OF THE STATUTE. AS A MATTER OF FACT, THE DECISION IN THAT CASE CONTAINS A STATEMENT READING--- "PUBLIC POLICY DEMANDS THAT THE MANDATE OF THE LAW SHOULD OVERRIDE ANY DOCTRINE OF ESTOPPEL.'

CONSEQUENTLY, THE FACT THAT THIS CLAIM MAY HAVE BEEN OR WAS PRESENTED TO THE DEPARTMENT OF THE ARMY WITHIN THE STATUTORY PERIOD IS NOT MATERIAL. AS A CONDITION PRECEDENT TO CONSIDERATION OF A CLAIM BY THIS OFFICE, IT MUST BE PRESENTED HERE WITHIN TEN YEARS. THE FILING OF A CLAIM WITH ANY OTHER AGENCY DOES NOT TOLL THE STATUTE ANY MORE THAN THE FILING OF A CLAIM HERE WOULD TOLL THE SIX-YEAR LIMITATION PRESCRIBED IN 28 U.S.C. 2501 APPLICABLE TO CLAIMS FILED IN THE COURT OF CLAIMS. SEE 32 COMP. GEN. 267; COHEN, GOLDMAN AND CO., INC., V. THE UNITED STATES, 77 CT.CL. 13; MARR V. UNITED STATES, 106 F.SUPP. 204. ..END :

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