B-224938, JAN 2, 1987

B-224938, JAN 2, 1987

APPROPRIATIONS/FINANCIAL MANAGEMENT - CLAIMS AGAINST GOVERNMENT - BURDEN OF PROOF DIGEST: REVIEW OF OUR DECISION IN B-200440, APR. 9, 1986, WAS UNDERTAKEN AT THE REQUEST OF CONGRESSMAN HOYER. WE ADVISED THE CONGRESSMAN THAT OUR OFFICE MAY NOT EFFECT PAYMENT OF CLAIMS AGAINST THE UNITED STATES WHERE THE CLAIMANT HAS NOT MET HIS BURDEN OF PROOF TO SHOW THE VALIDITY OF HIS CLAIM.

THE HONORABLE STENY H. HOYER:

THIS RESPONDS TO YOUR LETTER DATED SEPTEMBER 25, 1986, CONCERNING OUR DECISION IN MATTER OF CHAN SAMBO, B-200440, APR. 9, 1986. IN THAT DECISION WE DENIED THE CLAIMS OF CHAN SAMBO (CHAN), A CAMBODIAN NATIONAL WHO CLAIMED THE UNITED STATES OWED HIM MONIES FOR CONTRACT WORK HE ALLEGEDLY PERFORMED FOR THE UNITED STATES EMBASSY IN CAMBODIA JUST PRIOR TO THE KHMER ROUGE TAKEOVER IN APRIL 1975.

ENCLOSED WITH YOUR LETTER WERE COMMENTS SENT TO YOU BY MRS. CATHY MCGOWAN, ONE OF YOUR CONSTITUENTS. MRS. MCGOWAN WAS REACTING TO AN ARTICLE ABOUT OUR DECISION PUBLISHED IN THE WASHINGTON POST. SEE ANDERSON & VAN ATTA, REFUGEE SAYS UNCLE SAM OWES HIM, WASHINGTON POST, AUG. 29, 1986, AT C15.

OUR CLAIMS SETTLEMENT DETERMINATIONS ARE BASED ON THE WRITTEN RECORD AS SUBMITTED BY THE PARTIES. OUR CLAIMS PROCEDURES AS SET FORTH IN 4 C.F.R. PT. 31 (1985) DO NOT PROVIDE FOR INVESTIGATIONS, INTERVIEWS OF WITNESSES, OR ADVERSARY HEARINGS. NOTWITHSTANDING THE ABOVE PRINCIPLES, IN LIGHT OF THE UNUSUAL FACTS PRESENTED IN THIS MATTER, OUR OFFICE UNDERTOOK EFFORTS TO FIND EVIDENCE SUPPORTING CHAN'S CLAIM. THE EVIDENCE WE FOUND DID NOT SUPPORT CHAN'S ASSERTIONS.

CHAN'S MOST RECENT CLAIM /1/ CONTAINED THE NAMES OF SEVERAL STATE DEPARTMENT EMPLOYEES WHO HE STATED WOULD SUPPORT HIS CLAIM. WE WERE ABLE TO LOCATE ONLY ONE-- SIDNEY T. TELFORD, JR. MR. TELFORD WAS THE SECURITY OFFICER AT THE UNITED STATES EMBASSY IN CAMBODIA UP UNTIL THE KHMER ROUGE TAKEOVER.

MR. TELFORD DID NOT RECALL ANYONE NAMED CHAN SAMBO WHO HAD DONE WORK FOR THE EMBASSY. HE STATED THAT THE PRIME CONTRACTOR RESPONSIBLE FOR SANDBAGGING THE COMPOUND WAS A MAN NAMED LI CHI. MR. TELFORD REFERRED US TO ED PAUKERT, THE SENIOR ADMINISTRATIVE OFFICER AT THE EMBASSY IN 1974- 75, SUGGESTING THAT MR. PAUKERT MIGHT HAVE A BETTER RECOLLECTION OF INDIVIDUAL CONTRACTORS.

WE LOCATED MR. PAUKERT AND FOUND THAT HE DID INDEED RECALL CHAN. HOWEVER, HIS RECOLLECTIONS DID NOT LEND SUPPORT TO CHAN'S CLAIM. IN A TELEPHONE INTERVIEW WITH ONE OF OUR ATTORNEYS, HE REMEMBERED AN INSTANCE APPROXIMATELY A YEAR BEFORE THE KHMER ROUGE TAKEOVER WHEN CHAN HAD PERFORMED UNSATISFACTORILY ON A CONTRACT WITH THE EMBASSY. SPECIFICALLY RECALLED THAT CHAN HAD BEEN PAID A REDUCED AMOUNT FOR THE UNSATISFACTORY SERVICES HE HAD RENDERED. MR. PAUKERT STATED THAT HE LEFT THE EMBASSY IN MARCH 1975 AND THEREFORE COULD NOT VERIFY WHETHER CHAN WAS EMPLOYED FOLLOWING THAT TIME.

NEVERTHELESS, WE SOUGHT TO GIVE CHAN THE BENEFIT OF EVERY DOUBT. ALTHOUGH NOT MENTIONED IN CHAN'S LETTER AS A SUPPORTING REFERENCE, WE CALLED THE AMERICAN EMBASSY IN DHAKA, BANGLADESH, AND SPOKE WITH JAMES HORN, WHO WAS THE BUILDING AND MAINTENANCE OFFICER FOR THE EMBASSY IN CAMBODIA IN 1974 THROUGH 1975. MR. HORN WAS THE OFFICIAL WHO WAS INTERVIEWED FOR THE JACK ANDERSON ARTICLE YOU SENT US.

SINCE HIS CONVERSATION WITH JACK ANDERSON'S ASSOCIATE, MR. HORN TOLD US HE REVIEWED SOME DETAILED NOTES HE HAD WRITTEN IN 1975 ABOUT THE SANDBAGGING CONTRACT AT ISSUE. ACCORDING TO MR. HORN, THE SANDBAGGING WORK WAS FAR FROM A LAST MINUTE "SCRAMBLE," AS THE ANDERSON ARTICLE SUGGESTED. MR. HORN PREPARED AND POSTED THE BID SOLICITATION IN NOVEMBER 1974, AND THE CONTRACT WAS AWARDED TO THE LOW BIDDER, LI CHI, A COMPETITOR OF CHAN'S, FOLLOWING ALL THE USUAL PROCUREMENT PROCEDURES. (THIS IS CONSISTENT WITH THE INFORMATION OBTAINED FROM MR. TELFORD, DISCUSSED ABOVE.) HOWEVER, BEFORE THE AWARD WAS MADE, CHAN STARTED TO DO SOME SANDBAGGING, KNOWING QUITE WELL, MR. HORN STATED, THAT THE WORK WAS UNAUTHORIZED BUT HOPING TO BE SELECTED FOR THE CONTRACT INSTEAD OF LI CHI. MR. HORN SAID THAT CHAN WAS ASKED TO "DISMANTLE" (EMPTY) THE SANDBAGS HE HAD PREPARED BECAUSE THE EMBASSY STAFF DID NOT TRUST THE QUALITY OF HIS WORK, BASED ON HIS POOR PERFORMANCE THE PREVIOUS YEAR. (THIS CONFIRMS THE INFORMATION PROVIDED BY MR. PAUKERT, ALSO DISCUSSED EARLIER.) CHAN NEVER DID EMPTY THE SANDBAGS.

AS STATED ABOVE, WE DO NOT NORMALLY CONDUCT INVESTIGATIONS, INTERVIEWS OF WITNESSES, OR ADVERSARY HEARINGS IN CONNECTION WITH OUR CLAIMS SETTLEMENT FUNCTION. WE BELIEVE WE WENT WELL BEYOND OUR NORMAL PROCEDURES IN OUR ATTEMPTS TO ESTABLISH THE VALIDITY OF CHAN'S CLAIM.

WE DO NOT THINK A FORMAL CONTRACT EVER EXISTED, NOTWITHSTANDING THE STATEMENT IN THE NEWSPAPER ARTICLE THAT CHAN HAD TO DESTROY HIS RECORDS WHEN THE KHMER ROUGE GUERRILLAS LAID SIEGE TO THE CITY. MOREOVER, WE ARE UNABLE TO ESTABLISH ANY OF THE ELEMENTS NECESSARY TO ESTABLISH AN IMPLIED CONTRACT, FOR WHICH CHAN COULD BE PAID ON A QUANTUM MERUIT BASIS. WHILE HE MAY WELL HAVE PERFORMED SOME PART OF THE WORK FOR WHICH HE SEEKS PAYMENT, HE WAS NEVER AUTHORIZED TO DO SO. CHAN MUST HAVE KNOWN THAT HE HAD NO AUTHORITY AT THE TIME OF HIS PERFORMANCE SINCE THE CONTRACT AWARD HAD NOT YET BEEN MADE. THUS, WE ARE UNABLE TO FIND GOOD FAITH ON THE PART OF CHAN OR RELIANCE ON EMBASSY INDUCEMENTS. FINALLY, CHAN'S WORK WAS NEVER ACCEPTED BY THE GOVERNMENT. ON THE CONTRARY, HIS WORK WAS EXPRESSLY REJECTED AND HE WAS ASKED TO EMPTY THE SANDBAGS HE HAD FILLED.

IN CONCLUSION, ALTHOUGH WE APPRECIATE MRS. MCGOWAN'S CONCERNS, WE LACK THE AUTHORITY TO GRANT CLAIMS ON THE BASIS OF UNSUPPORTED ALLEGATIONS. ACCORDANCE WITH OUR NORMAL PROCEDURES, THIS LETTER WILL BE RESTRICTED FROM GENERAL DISTRIBUTION FOR 30 DAYS.

/1/ OUR DECISION OF APRIL 9, 1986, AFFIRMED AN EARLIER DECISION (B 200440, OCT. 16, 1980), WHICH IN TURN HAD AFFIRMED A DISALLOWANCE BY OUR CLAIMS DIVISION (SETTLEMENT CERTIFICATE Z-2819882, DATED APR. 30, 1980). COPIES OF ALL THREE DOCUMENTS ARE ENCLOSED.