B-128133, SEP. 9, 1957

B-128133, SEP. 9, 1957

TO WINDER AIRCRAFT CORPORATION:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 22, 1957, AND PREVIOUS CORRESPONDENCE, WITH ENCLOSURES, REQUESTING RECONSIDERATION OF OUR OFFICE DECISION OF JUNE 19, 1956, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF LOSSES, AGGREGATING $5,050.50, NOW INCREASED TO $21,874.12, ALLEGEDLY SUSTAINED BY YOU IN THE PERFORMANCE OF YOUR CONTRACT NO. AF 33/600/30620, DATED JUNE 28, 1955, COVERING THE MANUFACTURE OF 1,850 REFLECTORS, ANTENNA X-BAND RADAR REVOLVING, AS SPECIFIED, FOR THE WRIGHT-PATTERSON AIR FORCE BASE, DAYTON, OHIO.

THE PERTINENT FACTS IN THIS CASE WERE SET OUT IN DETAIL IN OUR LETTER OF JUNE 19, 1956, AND NEED NOT BE RESTATED HERE. YOU STATE THAT YOU WISH "TO REOPEN THIS CLAIM UNDER TITLE II, FIRST WAR POWERS ACT, AS AMENDED, AND E.O. 10210.'

TITLE II OF THE FIRST WAR POWERS ACT OF DECEMBER 18, 1941, 55 STAT. 839, AS AMENDED (50 U.S.C. SECTION 611), PROVIDES IN PERTINENT PART AS FOLLOWS:

"THE PRESIDENT MAY AUTHORIZE ANY DEPARTMENT OR AGENCY OF THE GOVERNMENT EXERCISING FUNCTIONS IN CONNECTION WITH THE NATIONAL DEFENSE, IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE PRESIDENT FOR THE PROTECTION OF THE INTERESTS OF THE GOVERNMENT, TO ENTER INTO CONTRACTS AND INTO AMENDMENTS OR MODIFICATIONS OF CONTRACTS HERETOFORE OR HEREAFTER MADE AND TO MAKE ADVANCE, PROGRESS AND OTHER PAYMENTS THEREON, WITHOUT REGARD TO THE PROVISIONS OF LAW RELATING TO THE MAKING, PERFORMANCE, AMENDMENT, OR MODIFICATION OF CONTRACTS WHENEVER HE DEEMS SUCH ACTION WOULD FACILITATE THE NATIONAL DEFENSE.'

EXECUTIVE ORDER NO. 10210, DATED FEBRUARY 2, 1951, AUTHORIZED THE DEPARTMENT OF DEFENSE TO EXERCISE THE FUNCTIONS AND POWERS SET FORTH IN THE ACT AND PRESCRIBED REGULATIONS FOR THE EXERCISE OF SUCH FUNCTIONS AND POWERS. AS THE SPECIAL AUTHORITY IN THE EXECUTIVE ORDER WAS CONFERRED UPON THE DEPARTMENT OF DEFENSE RATHER THAN UPON OUR OFFICE, ANY REQUEST FOR RELIEF THEREUNDER OR UNDER THE ADMINISTRATIVE REGULATIONS REFERRED TO, IN CONNECTION WITH THE SUBJECT CONTRACT WOULD NECESSARILY BE FOR CONSIDERATION SOLELY BY THE DEPARTMENT OF THE AIR FORCE.

MOREOVER, SINCE IT IS INDICATED BY THE RECORD BEFORE US THAT THE CONTRACT WAS COMPLETED AND THAT PAYMENT OF THE CONTRACT PRICE HAS BEEN MADE, THE QUESTION ARISES AS TO WHETHER YOUR REQUEST FOR RELIEF COMES WITHIN THE SCOPE OF THE FIRST WAR POWERS ACT AND THE EXECUTIVE ORDERS ISSUED UNDER THAT ACT. IT WAS HELD IN TWO DECISIONS OF OUR OFFICE, 24 COMP. GEN. 723 AND 31 COMP. GEN. 685, THAT THE AUTHORITY GRANTED BY THE ACT TO AMEND CONTRACTS WITHOUT CONSIDERATION TO THE GOVERNMENT CANNOT BE EXERCISED IN THE CASE OF CONTRACTS WHICH HAVE CEASED TO EXIST BY REASON OF COMPLETE PERFORMANCE ON BOTH SIDES, THAT IS, AFTER A COMPLETION OF THE WORK BY THE CONTRACTOR AND FINAL PAYMENT THEREON.

THE ACTION TAKEN IN OUR LETTER OF JUNE 19, 1956, WAS PROPER AND THERE IS NO BASIS FOR CONSIDERATION OF YOUR CLAIM UNDER THE FIRST WAR POWERS ACT.