B-173425, AUG 8, 1974

B-173425, AUG 8, 1974

1. WHERE ARMY'S BILLINGS FOR PERIOD 1955-1960 FOR OVERTIME FOR CIVIL SERVICE PERSONNEL USED ON STEVEDORING CONTRACT WERE PAID WITHOUT OBJECTION AND SOME NINE YEARS THEREAFTER CLAIM IS PRESENTED TO AGENCY ASSERTING THAT BILLINGS SHOULD BE RECOMPUTED AND OVERPAYMENTS REFUNDED BASED ON APPEALS BOARD DECISION ISSUED IN 1960, SUCH CLAIM IS DENIED SINCE EVIDENCE DOES NOT OVERCOME PRESUMPTION THAT TRANSACTION WAS CLOSED. WHILE APPEAL INVOLVING ANOTHER PARTY MAY HAVE BEEN BROUGHT AS TEST CASE, BOARD'S DECISION DID NOT AFFECT CLAIMANT'S RIGHTS AND LIABILITIES AND SINCE THERE IS NO EVIDENCE TO ESTABLISH THAT ARMY UNDERSTOOD THAT CLAIMANT WISHED TO KEEP BILLING TRANSACTIONS OPEN PENDING RESOLUTION OF THAT APPEAL, IT IS FOUND THAT THIS ARGUMENT DOES NOT ESTABLISH BASIS FOR PAYING CLAIM. 2. RECOVERY OF REFUNDS AUTHORIZED BY PRIOR GAO DECISIONS WHICH HAVE ALREADY BEEN PAID IS NOT REQUIRED.

MATSON NAVIGATION COMPANY:

THIS CONCERNS A CLAIM FROM MATSON NAVIGATION COMPANY FOR EXCESS OVERTIME BILLINGS FOR CIVIL SERVICE PERSONNEL UNDER MASTER BERTH CONTRACT NO. MST- 1020, DATED JANUARY 15, 1952, WITH THE DEPARTMENT OF DEFENSE, WHICH WAS FORWARDED TO OUR CLAIMS DIVISION BY LETTER OF JANUARY 21, 1970, FROM THE ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, REFERENCE FINCY-T, AS A DOUBTFUL CLAIM. FOR THE REASONS STATED BELOW WE FIND THAT THERE IS NO LEGAL BASIS FOR PAYING ANY PORTION OF MATSON'S CLAIM.

WE WILL BRIEFLY SUMMARIZE THE BACKGROUND OF THE CLAIM AND THE ACTIONS TAKEN TO DATE ON THE CLAIM. MATSON'S CLAIM FOR REFUND OF ALLEGED EXCESS OVERTIME BILLINGS FOR THE PERIOD 1955 THROUGH 1960 WAS INITIALLY FILED WITH ARMY ON DECEMBER 12, 1969, BASED UPON THE HOLDING IN APPEAL OF STATES STEAMSHIP COMPANY, ARMED SERVICES BOARD OF CONTRACT APPEALS NO. 5721, DECIDED JUNE 13, 1960.

IN THE STATES STEAMSHIP CASE THE BOARD CONSIDERED A CLAIM FOR REFUND OF EXCESS OVERTIME CHARGES ASSESSED AGAINST THE CONTRACTOR FOR WORK PERFORMED BY CIVIL SERVICE PERSONNEL. THE DISPUTE CONCERNED THE PROPER MEANING TO BE GIVEN THE TERM "OVERTIME DIFFERENTIAL COSTS" UNDER THE STATES STEAMSHIP CONTRACT. THE CONTRACTOR HAD BEEN BILLED FOR THE FULL AMOUNT OF PAY FOR THE CIVIL SERVICE EMPLOYEES DURING OVERTIME PERIODS, WHICH INCLUDED BOTH THE STRAIGHT TIME AND THE OVERTIME RATE. IN CALCULATING THE OVERTIME ASSESSMENTS THE GOVERNMENT HAD ALSO INCLUDED A 10 PERCENT OVERHEAD FACTOR AS WELL AS AN 8 PERCENT FACTOR COVERING FRINGE BENEFITS. THE BOARD STATED THAT THE DISPUTE IN THE STATES STEAMSHIP CASE WAS BEING BROUGHT AS A TEST CASE FOR VARIOUS OTHER CONTRACTOR CLAIMS INVOLVING THE SAME ISSUE.

ARTICLES 5(B) AND (C) OF THE STATES STEAMSHIP CONTRACT OBLIGATED THE GOVERNMENT TO PERFORM AND COMPLETE CARGO OPERATIONS "WITH REASONABLE DISPATCH;" AND TO PAY ALL COSTS THEREFOR EXCEPT AS OTHERWISE PROVIDED IN ARTICLE 5(D). UNDER ARTICLE 5(D) THE CONTRACTOR WAS REQUIRED TO PAY 'OVERTIME DIFFERENTIAL COSTS" INCURRED FOR CARGO OPERATIONS UNLESS THE OVERTIME WAS SPECIFICALLY ORDERED BY THE GOVERNMENT.

THE "REASONABLE DISPATCH" PROVISION WAS VIEWED BY THE BOARD AS CONTEMPLATING THE ADOPTION OF THE CUSTOMARY TWO-SHIFT (REGULAR AND SWING SHIFT) SEVEN-DAY WEEK PREVAILING IN COMMERCIAL PRACTICE IN THE SAN FRANCISCO BAY AREA. SINCE STATES STEAMSHIP WAS BEING ASSESSED UNDER ARTICLE 5(D) FOR OVERTIME WORK PERFORMED BY GOVERNMENT STEVEDORE PERSONNEL AND THE PRACTICE WAS FOR THE CONTRACTOR TO PAY THE DIFFERENCE BETWEEN THE STRAIGHT TIME AND THE OVERTIME RATE AS "OVERTIME DIFFERENTIAL COSTS," THE BOARD CONCLUDED THERE WAS NO BASIS TO DISTINGUISH THE CASE MERELY BECAUSE CIVIL SERVICE PERSONNEL RATHER THAN GOVERNMENT STEVEDORE PERSONNEL WERE INVOLVED. THEREFORE, THE TERM "OVERTIME DIFFERENTIAL COSTS" IN ARTICLE 5(D) WAS GIVEN THE SAME MEANING AS HAD BEEN ESTABLISHED IN BILLING FOR GOVERNMENT STEVEDORE PERSONNEL. ALSO, THE BOARD HELD THAT THE 10 PERCENT FACTOR FOR OVERHEAD EXPENSE AND THE 8 PERCENT FACTOR COVERING FRINGE BENEFITS, WHICH THE GOVERNMENT HAD INCLUDED IN CALCULATING THE OVERTIME ASSESSMENT AGAINST THE CONTRACTOR, WERE OUTSIDE OF THE MEANING OF "OVERTIME DIFFERENTIAL COSTS."

MATSON'S MASTER BERTH CONTRACT FOR TRANSPORTATION OF DEPARTMENT OF DEFENSE CARGOES AT NEGOTIATED RATES CONTAINS PROVISIONS SUBSTANTIALLY THE SAME AS IN PARAGRAPHS 5(B), (C) AND (D) OF THE CONTRACT CONSIDERED BY THE BOARD IN THE STATES STEAMSHIP DECISION, AND MATSON'S CONTRACT ALSO CONTAINS A DISPUTES CLAUSE.

MATSON'S LETTER OF DECEMBER 12, 1969, TO ARMY STATED THAT THE TERM "OVERTIME DIFFERENTIAL COSTS" IN ITS CONTRACT HAD BEEN DEFINED BY THE BOARD AS MAKING THE VESSEL RESPONSIBLE FOR THE DIFFERENCE RESULTING FROM A COMPARISON OF ACTUAL COSTS WITH COSTS WHICH WOULD HAVE BEEN INCURRED HAD THE WORK BEEN PERFORMED DURING REGULAR WORKING HOURS, WHICH WOULD BE EITHER OVERTIME DIFFERENTIAL COSTS OR SHIFT DIFFERENTIAL COSTS, WHICHEVER ARE APPLICABLE. MATSON'S LETTER ADVISED THAT WHEN OVERTIME BILLINGS WERE RENDERED BY THE ARMY, AND PAID FOR BY MATSON, THEY WERE COMPUTED AT THE FULL TIME AND ONE-HALF OVERTIME RATE REGARDLESS OF WHETHER THE PERSONNEL INVOLVED ACTUALLY RECEIVED A DIFFERENTIAL OF ONE-HALF OF THEIR REGULAR SALARY RATE OR A SHIFT DIFFERENTIAL. MATSON MADE A NUMBER OF ASSUMPTIONS IN COMPUTING THE ALLEGED EXCESS OVERTIME CHARGES INCLUDED IN ARMY'S BILLINGS. ITS LETTER SETS FORTH CERTAIN ASSUMPTIONS AS TO THE PARTICULAR TIME PERIODS WHICH CONSTITUTED STRAIGHT TIME, OVERTIME, AND SHIFT DIFFERENTIAL FOR THE CIVIL SERVICE PERSONNEL. MATSON'S SUPPORTING WORKPAPERS ASSUMED THAT EVERY OVERTIME BILLING INCLUDED 66 2/3 PERCENT STRAIGHT TIME AND 33 1/3 PERCENT OVERTIME AND THAT SHIFT DIFFERENTIAL COSTS WERE 10 PERCENT OF STANDARD TIME COSTS. BY APPLYING THESE ASSUMPTIONS MATSON ARRIVED AT A FIGURE FOR "REVISED CHARGEABLE COSTS" FOR EACH BILL WHICH MATSON DEDUCTED FROM THE AMOUNT ACTUALLY BILLED AND THE DIFFERENCE WAS THE REFUND CLAIMED UNDER EACH BILL. BY AGGREGATING THE INDIVIDUAL BILLS MATSON OBTAINED A TOTAL REFUND FIGURE FOR 1959 AND 1960.

FOR THE YEARS 1955 THROUGH 1958 MATSON WAS CHARGED AT A RATE OF $23 PER HOUR FOR OVERTIME OF CIVIL SERVICE PERSONNEL AND THESE BILLS DO NOT GIVE ANY FURTHER BREAKDOWN. MATSON APPLIED ITS EXPERIENCE RATIOS FOR COMPUTING THE REFUND FOR 1959-1960 TO OVERTIME ASSESSMENTS IN 1955-1958 TO CALCULATE WHAT IT BELIEVED WAS THE OVERTIME DIFFERENTIAL COSTS ON THOSE BILLINGS. THE DIFFERENCE BETWEEN MATSON'S CALCULATIONS OF THE OVERTIME DIFFERENTIAL COSTS AND THE AMOUNT ACTUALLY BILLED AND PAID IS THE AMOUNT OF REFUND CLAIMED FOR 1955 THROUGH 1958.

ON JANUARY 21, 1970, THE DEPARTMENT OF THE ARMY FORWARDED THE MATTER TO OUR CLAIMS DIVISION SINCE ARMY HAD DOUBT AS TO THE VALIDITY OF THE CLAIM FOR THE FOLLOWING REASONS:

(1) WHETHER ASBCA NO. 5721, WHICH CONCERNED STATES STEAMSHIP COMPANY, APPLIED AS AUTHORITY TO REFUND EXCESS CHARGES UNDER OTHER CONTRACTS;

(2) THE EFFECT OF ARMY'S INABILITY TO VERIFY CHARGES SINCE ADEQUATE RECORDS WERE NOT AVAILABLE; AND

(3) THE EFFECT OF THE GAO 10-YEAR STATUTE OF LIMITATIONS ON A PORTION OF THE AMOUNT CLAIMED.

BY CERTIFICATE OF SETTLEMENT OF JANUARY 19, 1971, ISSUED TO MATSON, OUR CLAIMS DIVISION ALLOWED A REFUND FOR THAT PORTION OF ITS CLAIM APPLICABLE TO THE PERIOD AFTER JANUARY 26, 1960, IN THE AMOUNT OF $2,388.09. THE CLAIMS DIVISION CONCLUDED THAT ANY REFUND FOR THE PERIOD BETWEEN JANUARY 1955 THROUGH JANUARY 25, 1960, WAS BARRED BY THE 10-YEAR STATUTE OF LIMITATIONS, 31 U.S.C. 71A, SINCE THE CLAIM HAD NOT BEEN SUBMITTED TO THE GENERAL ACCOUNTING OFFICE UNTIL JANUARY 25, 1970, THE DATE THE CLAIMS DIVISION RECEIVED ARMY'S LETTER OF JANUARY 21, 1970. WITH RESPECT TO THE STATES STEAMSHIP CASE, ASBCA NO. 5721, THE CLAIMS DIVISION CONCLUDED THAT SINCE MATSON WAS NOT A PARTY TO THAT CASE NO RIGHT TO RECOVER ACCRUED TO MATSON AS A RESULT OF THAT DECISION.

ON JUNE 4, 1971, MATSON REQUESTED RECONSIDERATION OF THE CERTIFICATE OF SETTLEMENT OF THE CLAIMS DIVISION. THE LETTER CITED B-148266, JULY 14, 1964 (44 COMP. GEN. 1), FOR THE PROPOSITION THAT SINCE MATSON WAS OBLIGATED TO FOLLOW A MANDATORY DISPUTES PROCEDURE, MATSON HAD NO RIGHT TO COME TO THE GENERAL ACCOUNTING OFFICE UNTIL ARMY RENDERED A DECISION ON THE CLAIM. ITS LETTER ALSO CITED OUR DECISION B-162293, SEPTEMBER 29, 1967, AS AN EXAMPLE OF A CASE WHERE THIS OFFICE HELD THAT THE STATUTE OF LIMITATIONS DOES NOT RUN WHILE A CONTRACTOR IS PURSUING MANDATORY PROCEDURES UNDER THE DISPUTES CLAUSE. WITH RESPECT TO THE STATES STEAMSHIP CASE, MATSON STATED THAT WHILE ONLY STATES STEAMSHIP COMPANY'S CASE WAS CONSIDERED, THAT DECISION ESTABLISHED A POLICY AND COMPANIES OTHER THAN STATES STEAMSHIP FILED CLAIMS AGAINST THE GOVERNMENT BASED ON THE STATES STEAMSHIP DECISION. MATSON URGED THAT SINCE ASBCA NO. 5721 WAS WIDELY CONSIDERED AS A TEST CASE, THAT DECISION SHOULD HAVE THE SAME WEIGHT AS IF MATSON WERE A PARTY TO THE CASE EVEN THOUGH MATSON WAS NOT SPECIFICALLY NAMED THEREIN.

THE MATTER WAS REVIEWED AND ON JUNE 20, 1972, OUR OFFICE FOUND THAT ASBCA NO. 5721 WAS IN THE NATURE OF A TEST CASE; THAT OUR RECORDS SHOWED THAT GOVERNMENT AGENCIES INTENDED TO APPLY THAT DECISION PROSPECTIVELY FROM JUNE 13, 1960, TO CLAIMS OF OTHER STEAMSHIP COMPANIES WHICH INVOLVED THE SAME ISSUE; AND THAT MATSON HAD PURSUED ITS ADMINISTRATIVE REMEDIES AS FAR AS IT COULD WITH THE DEPARTMENT OF THE ARMY. IN VIEW OF THESE FINDINGS, THE DECISION CONCLUDED THAT MATSON'S CLAIM WAS TIMELY FILED AND SINCE THE VALIDITY OF THE CLAIM FOR 1959 IN THE AMOUNT OF $5,161.93 WAS NOT QUESTIONED, EXCEPT FOR TIMELINESS, THE CLAIM FOR THAT YEAR WAS AUTHORIZED FOR PAYMENT. HOWEVER, WE STATED THAT WE WOULD NOT BE WARRANTED IN AUTHORIZING PAYMENT OF ANY OF THE AMOUNT CLAIMED FOR THE YEARS 1955 THROUGH 1958 SINCE NO RECORDS WERE AVAILABLE TO IDENTIFY THE NAMES OF THE EMPLOYEES INVOLVED IN THE OVERTIME CHARGES AND WITHOUT SUCH INFORMATION THE CLAIM COULD NOT BE VERIFIED.

THEREAFTER, MATSON REQUESTED RECONSIDERATION OF OUR JUNE 20 DECISION, CONTENDING THAT IT SHOULD NOT BE PENALIZED FOR ARMY'S NOT HAVING ADEQUATE RECORDS. MATSON AGAIN URGED THAT THE REFUND FOR THE PERIOD 1955 THROUGH 1958 BE DETERMINED IN ACCORDANCE WITH EXPERIENCE RATIOS FOR 1959-1960, AS PREVIOUSLY DESCRIBED.

IN A MEMORANDUM OF LAW RECEIVED BY OUR OFFICE ON AUGUST 1, 1973, THE OFFICE OF THE JUDGE ADVOCATE GENERAL (JAG), DEPARTMENT OF THE ARMY, HAS URGED THAT THE HISTORY OF MATSON'S CLAIM INDICATES THAT THERE WAS AN ACCORD AND SATISFACTION AND THAT MATSON'S CLAIM SHOULD BE DENIED. THE JAG MEMORANDUM STATES THAT ACCEPTANCE OF FINAL PAYMENT OR BENEFITS UNDER A GOVERNMENT CONTRACT AND FAILURE TO PROTEST DEDUCTIONS OR OVERCHARGES, COUPLED WITH A LONG DELAY BEFORE REGISTERING A CLAIM ARE SUFFICIENT ACTS ON THE PART OF A CONTRACTOR TO PROVE AN ACCORD AND SATISFACTION. A NUMBER OF CASES ARE CITED IN THE JAG MEMORANDUM IN SUPPORT OF THIS POSITION.

MATSON, ON THE OTHER HAND, CONTENDS THAT IT HAS BEEN TREATED UNFAIRLY BY ARMY AND THAT THE JAG MEMORANDUM IS A FURTHER EXAMPLE OF THIS UNFAIR TREATMENT. MATSON URGES THAT THE JAG MEMORANDUM DOES NOT ANSWER THE FUNDAMENTAL QUESTION RELATING TO MATSON'S BEING PENALIZED BECAUSE ARMY LOST RECORDS COVERING THE EMPLOYEES WHICH ARE THE SUBJECT OF THE CLAIM.

MATSON ALSO REFERS TO THE STATEMENT IN THE STATES STEAMSHIP APPEAL, SUPRA, WHICH RECOGNIZED THAT THE APPEAL WAS BROUGHT AS A TEST CASE FOR VARIOUS OTHER CONTRACTS AND CLAIMS INVOLVING THE SAME ISSUE. MATSON ADVISES THAT IT AND STATES STEAMSHIP COMPANY WERE MEMBERS OF THE WEST COAST AMERICAN FLAG BERTH OPERATORS CONFERENCE IN THE 1950'S AT THE TIME OF THE OCCURRENCE OF THE EVENTS GIVING RISE TO THIS DISPUTE. IN ADDITION, MATSON POINTS TO THE REFERENCE IN THE STATES STEAMSHIP APPEAL TO THE LETTER IN WHICH THE COMMANDER, MSTS, SUPPORTED THE VESSEL OPERATOR'S POSITION; TO THE REFERENCE IN THAT DECISION TO THE PROMULGATION IN 1954 OF A SCHEDULE OF ASSESSMENTS BY THE ARMY SHIPPER SERVICE OVER THE PROTESTS OF THE VESSEL OPERATORS WHICH FAVORED THE ARMY AND TO THE STATEMENT IN THE DECISION THAT THERE WERE NUMEROUS EXCHANGES OF CORRESPONDENCE AND NUMEROUS CONFERENCES BETWEEN THE MSTS AND VESSEL OPERATORS OVER THE ENSUING SEVERAL YEARS CONCERNING THE DISPUTE. WHILE MATSON CONCEDES THAT IT IS UNABLE TO PRODUCE EVIDENCE SHOWING THAT IT PROTESTED TO THE ARMY WHEN THE BILLINGS WERE MADE (DURING THE PERIOD 1955 THROUGH 1958), IT IS URGED THAT AN INFERENCE CAN BE DRAWN FROM THE STATEMENTS IN THE STATES STEAMSHIP APPEAL THAT MATSON WAS A PARTY TO AT LEAST SOME OF THE CORRESPONDENCE REFERRED TO IN THAT DECISION. MATSON ARGUES THAT EVEN IF THE MATTER IS CONSTRUED IN A MATTER IS CONSTRUED IN A MANNER THAT IS MOST UNFAVORABLE TO MATSON AND IT COULD BE SAID THAT MATSON WAS NOT A PARTY TO THE CORRESPONDENCE, THIS DOES NOT MEAN THAT ARMY WAS NOT AWARE OF THE TYPE OF CLAIM MATSON EVENTUALLY FILED. MATSON ADVISES THAT IT DID NOT IMMEDIATELY PURSUE ITS CLAIM AGAINST ARMY SINCE IT HAD A LARGER CLAIM OF A SIMILAR NATURE AGAINST NAVY WHICH MATSON CHOOSE TO PURSUE FIRST. FOR THESE REASONS MATSON URGES THAT THE FACTS OF ITS CLAIM ARE DISTINGUISHABLE FROM THE CASES PRINCIPALLY RELIED ON BY JAG IN SUPPORT OF AN ACCORD AND SATISFACTION.

WHILE WE DO NOT BELIEVE THAT THE LEGAL DOCTRINE OF ACCORD AND SATISFACTION EXACTLY FITS THIS SITUATION, THERE IS A GENERAL LEGAL PRESUMPTION THAT WHEN A CONTRACT HAS BEEN PERFORMED AND A STIPULATED CONSIDERATION HAS BEEN PAID, THE TRANSACTION IS A CLOSED ONE. IF THERE ARE CLAIMS ON THE PART OF THE CONTRACTOR WHICH AFFECT THE AMOUNT DUE AND PAYABLE UNDER THE TERMS OF THE CONTRACT, THEY SHOULD BE ASSERTED AT OR BEFORE THE TIME A SETTLEMENT IS MADE. THE GOVERNMENT IS ENTITLED TO KNOW, WHEN IT MAKES WHAT IT BELIEVES IS A FINAL PAYMENT ON ITS CONTRACT, WHAT CLAIMS A CONTRACTOR INTENDS TO ASSERT AGAINST IT ON ACCOUNT OF THE CONTRACT. IT IS ITS RIGHT TO KNOW WHETHER THE SUPPOSED FINAL PAYMENT IS IN FACT FINAL AND CONCLUSIVE. SEE POOLE ENGINEERING & MACHINE COMPANY V. UNITED STATES, 57 CT. CL. 232 (1922); DUBOIS CONSTRUCTION CORPORATION V. UNITED STATES, 98 F. SUPP. 590 (1951); MCQUAGGE V. UNITED STATES, 197 F. SUPP. 460 (1961). EACH OF THE BILLINGS UNDER THE MASTER BERTH CONTRACT WAS A SEPARATE TRANSACTION, AND MATSON DID NOT RAISE ANY SPECIFIC OBJECTION OR PROTEST AT OR BEFORE FINAL PAYMENT. IN FACT, IT WAS NOT UNTIL 1969 OR SOME NINE YEARS AFTER THE LAST OF THE PAYMENTS IN ISSUE AND SOME NONE YEARS AFTER THE BOARD RENDERED ITS DECISION IN THE STATES STEAMSHIP APPEAL, SUPRA, THAT MATSON FIRST FORMALLY PRESENTED ITS CLAIM TO ARMY.

THE REASONS ADVANCED BY MATSON FOR NOT RAISING THE MATTER OF THE OVERPAYMENT EARLIER ARE THAT THE STATES STEAMSHIP APPEAL WAS IN THE NATURE OF A TEST CASE AND THAT MATSON WAS PURSUING ANOTHER SIMILAR BUT LARGER CLAIM WITH NAVY.

WE ARE NOT PERSUADED THAT EITHER OF THESE REASONS CONSTITUTES A BASIS FOR OVERCOMING THE PRESUMPTION THAT THE SUBJECT TRANSACTIONS ARE CLOSED IN THE ABSENCE OF AN ASSERTION AT OR BEFORE SETTLEMENT. IF MATSON WISHED TO KEEP ITS BILLING TRANSACTIONS WITH ARMY OPEN PENDING THE RESOLUTION OF AN APPEAL INVOLVING ANOTHER PARTY, IT IS OUR OPINION THAT MATSON SHOULD HAVE CLEARLY MADE ITS INTENT KNOWN TO THE ARMY AND REQUESTED SOME CONFIRMATION FROM THE ARMY REGARDING THIS UNDERSTANDING. MATSON HAS NOT BEEN ABLE TO FURNISH ANY EVIDENCE THAT IT HAD SUCH AN UNDERSTANDING WITH THE ARMY, THEREFORE, IT CAN ONLY BE A MATTER OF SPECULATION WHETHER ARMY WAS AWARE OF MATSON'S ALLEGED INTENT. WHILE THE BOARD STATED THAT THE STATES STEAMSHIP APPEAL WAS IN THE NATURE OF A TEST CASE, MATSON WAS NOT A PARTY TO THAT PROCEEDING AND WE FIND NO LEGAL BASIS FOR CONSTRUING THIS OBSERVATION BY THE BOARD AS AFFECTING ANY RIGHTS OR LIABILITIES THAT MATSON MIGHT HAVE. MATSON'S DECISION TO PURSUE THE NAVY CLAIM FIRST IS NOT RELEVANT TO THE ISSUE BEFORE US REGARDING THE FINALITY OF OTHER TRANSACTIONS. (THE NAVY HAD ADVISED THAT THE CLAIMS SUBMITTED BY MATSON CONCERNING THE OVERTIME CHARGES WERE SETTLED PURSUANT TO THE HOLDING IN THE STATES STEAMSHIP CASE BASED ON THE ASSUMPTION THAT MATSON WAS SUBMITTING CLAIMS WHICH HAD BEEN RAISED PRIOR TO THE ASBCA DECISION. NOTE THAT THE INSTANT RECORD IS DEVOID OF ANY EVIDENCE FOR MAKING A COMPARABLE ASSUMPTION WITH RESPECT TO MATSON'S CLAIM WITH THE ARMY.)

UPON RECONSIDERATION, IT IS OUR VIEW THAT THE RECORD SUPPORTS THE PRESUMPTION THAT THE SUBJECT TRANSACTIONS WERE FINALLY SETTLED BY THE ARMY. ACCORDINGLY, WE FIND NO LEGAL BASIS FOR PAYING ANY PORTION OF MATSON'S CLAIM FOR THE PERIOD 1955 THROUGH 1960.

HOWEVER, SINCE IT CAN BE ASSUMED THAT THE REFUNDS AUTHORIZED BY OUR PRIOR DECISIONS HAVE ALREADY BEEN PAID TO MATSON WE WILL NOT REQUIRE THE RECOVERY OF THOSE PAYMENTS. SEE B-107486, JANUARY 4, 1967 AND 19 COMP. GEN. 129, 130 (1939).