B-135187, MAY 13, 1958
Highlights
IT APPEARS THAT A NUMBER OF DEVIATIONS OR CHANGES IN THE CONTRACT SPECIFICATIONS WERE APPROVED BY THE CONTRACTING OFFICER AS REQUESTED BY YOU. IT APPEARS ALSO THAT A PROPER ADJUSTMENT IN THE CONTRACT PRICE REFLECTING THE DECREASE IN THE COST OF CONTRACT PERFORMANCE BY REASON OF SUCH CHANGES WAS NOT MADE AS REQUIRED BY THE TERMS OF THE CONTRACT. THE PRESENT RECORD REASONABLY ESTABLISHES THAT THE SUM OF $167.12 WAS CLAIMED AND RECEIVED BY YOU FROM THE GOVERNMENT IN EXCESS OF THE AMOUNT PROPERLY PAYABLE UNDER THE CONTRACT. IT IS WELL ESTABLISHED THAT THE GOVERNMENT. HAS THE RIGHT TO RECOVER FUNDS WHICH ITS AGENTS HAVE WRONGFULLY. THIS RIGHT EXISTS WHETHER SUCH PAYMENTS WERE MADE UNDER MISTAKE OF LAW OR FACT.
B-135187, MAY 13, 1958
TO GREENFIELD MANUFACTURING COMPANY:
THE DEPARTMENT OF THE ARMY HAS REFERRED TO OUR OFFICE FOR DIRECT SETTLEMENT A CLAIM IN THE AMOUNT OF $167.12 ALLEGED TO BE DUE THE UNITED STATES REPRESENTING AN ADJUSTMENT IN THE CONTRACT PRICE AS THE RESULT OF CHANGES REQUESTED BY YOU IN THE PERFORMANCE OF CONTRACT NO. DA-30-280-QM- 18052 BY ONE OF YOUR SUBSIDIARIES, THE WESTMAR MANUFACTURING COMPANY.
THE INFORMATION AND EVIDENCE OF RECORD DISCLOSES THAT THIS MATTER HAS BEEN THE SUBJECT OF EXTENDED CORRESPONDENCE BETWEEN YOUR FIRM AND THE ADMINISTRATIVE AGENCY. FROM A REVIEW THEREOF, IT APPEARS THAT A NUMBER OF DEVIATIONS OR CHANGES IN THE CONTRACT SPECIFICATIONS WERE APPROVED BY THE CONTRACTING OFFICER AS REQUESTED BY YOU. IT APPEARS ALSO THAT A PROPER ADJUSTMENT IN THE CONTRACT PRICE REFLECTING THE DECREASE IN THE COST OF CONTRACT PERFORMANCE BY REASON OF SUCH CHANGES WAS NOT MADE AS REQUIRED BY THE TERMS OF THE CONTRACT. AS A RESULT, THE PRESENT RECORD REASONABLY ESTABLISHES THAT THE SUM OF $167.12 WAS CLAIMED AND RECEIVED BY YOU FROM THE GOVERNMENT IN EXCESS OF THE AMOUNT PROPERLY PAYABLE UNDER THE CONTRACT.
IT IS WELL ESTABLISHED THAT THE GOVERNMENT, INDEPENDENTLY OF STATUTE, HAS THE RIGHT TO RECOVER FUNDS WHICH ITS AGENTS HAVE WRONGFULLY, ERRONEOUSLY, OR ILLEGALLY PAID. THIS RIGHT EXISTS WHETHER SUCH PAYMENTS WERE MADE UNDER MISTAKE OF LAW OR FACT; WHETHER BECAUSE IN EXCESS OF AUTHORITY OR BASED UPON AN ERRONEOUS INTERPRETATION OF A CONTRACT LATER FOUND TO BE INCORRECT, OR BECAUSE OF THE RELIANCE UPON FACTS FOUND SUBSEQUENTLY NOT TO EXIST. SEE CHORPENNING V. UNITED STATES, 94 U.S. 397, 399; STEELE V. UNITED STATES, 113 U.S. 128, 134; HUME V. UNITED STATES, 132 U.S. 406; UNITED STATES V. WURTS, 303 U.S. 414; UNITED STATES V. SUTTON, 11 F.2D 24, 26; AND THE OTHER CASES COLLECTED IN 63 A.L.R. 1346. MOREOVER, LACHES ON THE PART OF GOVERNMENT OFFICERS AND AGENTS DOES NOT ESTOP THE GOVERNMENT FROM SECURING RECOVERY OF THE RESULTING OVERPAYMENTS. SEE SUTTON V. UNITED STATES, 256 U.S. 575, AND HEIDT V. UNITED STATES, 56 F.2D 559; ALSO UNITED STATES V. HOLLEY, 199 F.2D 575, 578, AND THE CASES COLLECTED IN 54 AM.JUR. 630, 631.
IN YOUR LETTER OF OCTOBER 4, 1957, TO THE PHILADELPHIA QUARTERMASTER DEPOT, YOU FURNISHED AN ANALYSIS OF THE OPERATIONS INVOLVED IN THE PERFORMANCE OF THE CONTRACT AND REQUESTED THAT THE CLAIM BE WITHDRAWN. HOWEVER, IT HAS BEEN ADMINISTRATIVELY ESTABLISHED ON THE BASIS OF YOUR ANALYSIS THAT YOU DID, IN FACT, REALIZE A DECREASE IN COST OF $167.12 BY REASON OF THE REQUESTED CHANGES. CF. LANGOMA INDUSTRIES V. UNITED STATES, DECIDED BY THE UNITED STATES COURT OF CLAIMS, MARCH 6, 1956, 133 C.CLS. 248, AND FARWELL V. UNITED STATES, DECIDED BY THE SAME COURT MARCH 6, 1957, 148 F.SUPP. 947. HENCE, THERE APPEARS TO BE NO GROUND FOR RELIEVING YOU OF YOUR LIABILITY TO THE UNITED STATES TO REFUND THE EXCESSIVE PAYMENT RECEIVED BY YOU ON ACCOUNT OF THE CONTRACT PERFORMANCE.
ACCORDINGLY, AND IN ORDER THAT FURTHER STEPS TOWARD THE COLLECTION OF THE REPORTED INDEBTEDNESS WILL NOT BE NECESSARY, THE AMOUNT OF $167.12 SHOULD BE FORWARDED TO OUR OFFICE BY CERTIFIED CHECK MADE PAYABLE TO THE TREASURER OF THE UNITED STATES.