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B-156192, SEP. 28, 1967

B-156192 Sep 28, 1967
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GAO HAS TRADITIONALLY EXERCISED REVIEW AUTHORITY OVER DECISIONS OF BOARDS OF CONTRACT APPEALS AND WILL CONTINUE TO SO SO. SECRETARY: REFERENCE IS MADE TO THE ASSISTANT COMPTROLLER GENERAL'S LETTER OF DECEMBER 8. ADDRESSED A LETTER TO THE ASSISTANT COMPTROLLER GENERAL WHICH QUESTIONS THE CORRECTNESS OF THE LEGAL BASIS ON WHICH OUR DISAGREEMENT WITH THE BOARD'S DECISION WAS BASED AND OUR AUTHORITY TO ENTERTAIN APPEALS FROM BOARD DECISIONS IN CASES OF THE NATURE HERE INVOLVED. WE FIND NOTHING IN YOUR GENERAL COUNSEL'S ARGUMENTS AS TO THE MERITS OF THE CASE WHICH IS PERSUASIVE. THE JURISDICTION OF THE GENERAL ACCOUNTING OFFICE TO REVIEW BOARD DECISIONS WAS CAREFULLY CONSIDERED IN OUR OPINION OF SEPTEMBER 9.

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B-156192, SEP. 28, 1967

CONTRACTS - DISPUTES - GAO JURISDICTION DECISION TO SECY. OF THE AIR FORCE CONCERNING REMAND OF CLAIM OF SOUTHSIDE PLUMBING CO., INC. TO BOARD OF CONTRACT APPEALS. SINCE CLAIM OF CONTRACTOR REPRESENTS AN ENFORCEABLE OBLIGATION AGAINST GOVT. AS MATTER OF LAW, DETERMINATION OF AMOUNT DUE SHOULD BE MADE AND CLAIM PAID. GAO HAS TRADITIONALLY EXERCISED REVIEW AUTHORITY OVER DECISIONS OF BOARDS OF CONTRACT APPEALS AND WILL CONTINUE TO SO SO. SEE 46 COMP. GEN. 441.

TO MR. SECRETARY:

REFERENCE IS MADE TO THE ASSISTANT COMPTROLLER GENERAL'S LETTER OF DECEMBER 8, 1966, B-156192, WHICH INDICATED OUR DISAGREEMENT IN PART WITH THE CONCLUSION OF THE ARMED SERVICES BOARD OF CONTRACT APPEALS IN CASE NO. 8120, AND IN WHICH WE REQUESTED THAT YOU REFER THE MATTER BACK TO THE BOARD FOR A DETERMINATION OF THE AMOUNT DUE THE CLAIMANT, SOUTHSIDE PLUMBING COMPANY, INC., OR ITS SUCCESSOR, PROGRESSIVE CONSTRUCTION COMPANY, INC.

UNDER DATE OF MAY 15, 1967, THE GENERAL COUNSEL OF THE AIR FORCE, ADDRESSED A LETTER TO THE ASSISTANT COMPTROLLER GENERAL WHICH QUESTIONS THE CORRECTNESS OF THE LEGAL BASIS ON WHICH OUR DISAGREEMENT WITH THE BOARD'S DECISION WAS BASED AND OUR AUTHORITY TO ENTERTAIN APPEALS FROM BOARD DECISIONS IN CASES OF THE NATURE HERE INVOLVED.

WITH RESPECT TO THE LEGAL CORRECTNESS OF OUR DECISION, WE FIND NOTHING IN YOUR GENERAL COUNSEL'S ARGUMENTS AS TO THE MERITS OF THE CASE WHICH IS PERSUASIVE, AND WE REMAIN OF THE OPINION THAT SOUTHSIDE'S CLAIM REPRESENTS AN ENFORCEABLE OBLIGATION AGAINST THE GOVERNMENT AS A MATTER OF LAW.

THE JURISDICTION OF THE GENERAL ACCOUNTING OFFICE TO REVIEW BOARD DECISIONS WAS CAREFULLY CONSIDERED IN OUR OPINION OF SEPTEMBER 9, 1963, REPORTED IN 43 COMP. GEN. 231, TO THE SECRETARY OF DEFENSE, WHEREIN WE STATED THAT OUR OFFICE HAS TRADITIONALLY EXERCISED REVIEW AUTHORITY OVER BOARD DECISIONS, AND EXPRESSED OUR INTENTION TO CONTINUE SUCH REVIEWS. OUR JURISDICTION WAS MORE FULLY DISCUSSED IN OUR DECISION OF DECEMBER 5,1966, B-153841, WHICH YOUR GENERAL COUNSEL'S LETTER IDENTIFIES AS OUR S AND E OPINION. THE CONTRACTOR IN THAT CASE HAS NOW FILED SUIT IN THE COURT OF CLAIMS, AND IT IS OUR UNDERSTANDING THAT THE DEPARTMENT OF JUSTICE WILL SUBSTANTIALLY ADOPT THE CONCLUSIONS AS TO THE LAW AND THE FACTS AS SET OUT IN OUR DECISION, AND WILL DEFEND AGAINST THE SUIT ON THAT BASIS. HOWEVER, THE QUESTION OF THE JURISDICTION OF THE GENERAL ACCOUNTING OFFICE APPARENTLY WILL NOT BE IN ISSUE.

WE FIND NOTHING IN THE LETTER FROM YOUR GENERAL COUNSEL WHICH WOULD REQUIRE A REVERSAL OF THE CONCLUSIONS WE HAVE PREVIOUSLY REACHED AS TO THE JURISDICTION OF THE GENERAL ACCOUNTING OFFICE TO REVIEW BOARD DECISIONS. IN VIEW THEREOF AND OF THE STATUTORY PROVISIONS WHICH REQUIRE US TO SETTLE ALL CLAIMS AND ACCOUNTS IN WHICH THE UNITED STATES IS INVOLVED AS A DEBTOR OR CREDITOR, AND WHICH CONFER FINALITY UPON SUCH SETTLEMENTS INSOFAR AS THE EXECUTIVE DEPARTMENTS AND AGENCIES ARE CONCERNED, I MUST AGAIN REQUEST THAT THE DEPARTMENT OF THE AIR FORCE PROCEED WITH A DETERMINATION OF THE AMOUNT DUE IN THE SOUTHSIDE CASE AND WITH PAYMENT OF THE CLAIM. IF, NOTWITHSTANDING OUR VIEWS IN THE MATTER, YOU DO NOT PROPOSE TO FOLLOW THE CONCLUSIONS WE HAVE REACHED, I MUST ASK YOUR IMMEDIATE ADVICE TO THAT EFFECT, SO THAT WE MAY TAKE APPROPRIATE ACTION TO EFFECT SETTLEMENT.

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