B-171255, SEP 3, 1971

B-171255, SEP 3, 1971

CONTRACTS - SUBCONTRACTOR - GOVERNMENT LIABILITY REAFFIRMING PRIOR DECISION DENYING CLAIM OF DONRAY PRODUCTS CO. FOR AN AMOUNT STILL DUE AS AN UNPAID SUBCONTRACTOR UNDER AN AIR FORCE PRIME CONTRACT. WHILE THE GOVERNMENT MAY HAVE BEEN INSTRUMENTAL IN INDUCING DONRAY TO PERFORM, IT ASSUMED NO OBLIGATION TO PAY FOR THE MATERIAL.

TO DONRAY PRODUCTS CO.:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 26, 1971, REQUESTING RECONSIDERATION OF OUR DECISION OF MARCH 26, 1971, DENYING YOUR CLAIM IN THE AMOUNT OF $15,700.71, AS AN UNPAID SUBCONTRACTOR UNDER AIR FORCE PRIME CONTRACT NO. F33657-67-C-0039 WITH RA-DOR INDUSTRIES, INC. THE CLAIM WAS DISALLOWED ON THE GROUND THAT THERE WAS NO LEGAL OBLIGATION FOR PAYMENT TO YOU BY THE GOVERNMENT.

YOU CONTEND THAT SINCE YOU PERFORMED AS A RESULT OF THE GOVERNMENT'S STRONG URGINGS AND UPON REPRESENTATIONS THAT THE GOVERNMENT WOULD SEE TO IT THAT YOU WOULD BE PAID IF YOU DELIVERED, THE GOVERNMENT BECAME A PARTY TO THE CONTRACT.

HOWEVER, WHILE THE GOVERNMENT MAY HAVE BEEN INSTRUMENTAL IN INDUCING YOU TO PERFORM, THERE IS NO EVIDENCE THAT IT ASSUMED ANY OBLIGATION TO PAY YOU FOR THE MATERIAL. THAT OBLIGATION REMAINED SOLELY WITH THE PRIME CONTRACTOR. IN THAT REGARD, THE GOVERNMENT REPRESENTATIVE WITH WHOM YOU CONVERSED CONCERNING THE DELIVERIES TO THE PRIME CONTRACTOR HAS DENIED THAT HE OR ANYONE ELSE PROMISED THAT THE GOVERNMENT WOULD PAY YOU FOR SHIPMENTS MADE TO THE PRIME CONTRACTOR. EVEN YOUR LETTER OF MAY 14, 1968, WHICH WAS WRITTEN TO THE GOVERNMENT REPRESENTATIVE AFTER YOU MADE DELIVERIES TO THE PRIME CONTRACTOR, CONTAINS NO STATEMENT THAT THE GOVERNMENT HAD GUARANTEED PAYMENT TO YOU FOR THE SHIPMENTS; ONLY THAT, WHEN YOU WERE REQUESTED BY THE GOVERNMENT TO MAKE FURTHER SHIPMENTS TO THE PRIME CONTRACTOR, "THE MILITARY THEN SAID THEY WOULD LOOK INTO THE FINANCIAL ASPECTS OF THIS PROBLEM."

IN VIEW OF THE FOREGOING, THE PRIOR DECISION AND PREVIOUS CLAIMS DIVISION SETTLEMENT DISALLOWING YOUR CLAIM ARE SUSTAINED.