B-147547, MAY 10, 1962

B-147547, MAY 10, 1962

TO OFFICER IN CHARGE, U.S. NAVY REGIONAL ACCOUNTS OFFICE:

REFERENCE IS MADE TO A LETTER DATED NOVEMBER 2, 1961, WITH ENCLOSURES, FROM CAPTAIN J. B. KACKLEY, SC, U.S. NAVY, ASSISTANT COMPTROLLER, DEPARTMENT OF THE NAVY, REQUESTING OUR DECISION AS TO THE PROPRIETY OF MAKING PAYMENT TO THE DOUGLAS AIRCRAFT COMPANY, INC., OF THE SUM OF $1,868.88, CLAIMED TO BE DUE UNDER CONTRACT NO. NOA/S/-4014, DATED JUNE 17, 1944. IN REFERRING THE CLAIM TO OUR OFFICE FOR CONSIDERATION, THE OPINION WAS EXPRESSED IN THE LETTER OF NOVEMBER 2, 1961, THAT THE CONTRACTOR'S CLAIM IS A VALID ONE AND IT WAS STATED THAT THE REPLIES TO THE EXCEPTIONS TAKEN BY OUR OFFICE ARE CONSIDERED ADEQUATE AND HAVE THE CONCURRENCE OF THE OFFICE OF THE COMPTROLLER.

IT IS OUR OPINION THAT CONSIDERATION OF THE INSTANT CLAIM BY OUR OFFICE IS BARRED BY THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A, BECAUSE IT WAS NOT RECEIVED HERE WITHIN TEN YEARS AFTER ITS ACCRUAL.

THE RECORD SHOWS THAT OUR WAR CONTRACT PROJECT AUDIT SECTION UNDER DATES OF DECEMBER 16, 1946, SEPTEMBER 24, AND SEPTEMBER 24, 1947, RESPECTIVELY, STATED EXCEPTIONS TO PAYMENTS MADE TO THE DOUGLAS AIRCRAFT COMPANY, INC., UNDER THE CITED CONTRACT IN THE AMOUNTS OF$401.83, $1,168.54, AND $331.81. THE AMOUNT OF THE DISALLOWED ITEMS WAS WITHHELD FROM PAYMENT UNDER DATE OF NOVEMBER 10, 1947. BY LETTER DATED OCTOBER 9, 1953, THE CONTRACTOR SUBMITTED TO THE DEPARTMENT OF THE NAVY A CLAIM FOR PAYMENT OF THE INDICATED AMOUNT OF $1,868.88, REFERENCE BEING MADE TO A PROPOSED SUPPLEMENTAL AGREEMENT NO. 5 TENDERED BY THE CONTRACTOR AS A FINAL TERMINATION SETTLEMENT AGREEMENT. IT DOES NOT APPEAR THAT THE PROPOSED AGREEMENT WAS EVER EXECUTED BY THE GOVERNMENT.

IT APPEARS THAT ANY CLAIM THE CONTRACTOR MAY HAVE HAD FOR REFUND OF THE AMOUNT OF $1,868.88 AROSE AT THE TIME THE AMOUNT WAS WITHHELD FROM PAYMENT, TO WIT, NOVEMBER 10, 1947. NO CLAIM, RECLAIM, REPLY OR OBJECTION TO THE AUDIT EXCEPTIONS, OR OTHER COMMUNICATION CONCERNING THE MATTER WAS EVER RECEIVED IN THIS OFFICE UNTIL NOVEMBER 6, 1961, FOURTEEN YEARS AFTER THE CLAIM ACCRUED. THE ACT OF OCTOBER 9, 1940, PROVIDES AS FOLLOWS:

"THAT EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY ANY STATE, TERRITORY, POSSESSION OR THE DISTRICT OF COLUMBIA) AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921 (42 STAT. 24), AND THE ACT OF APRIL 10, 1928 (45 STAT. 413), SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: PROVIDED, THAT WHEN A CLAIM OF ANY PERSON SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN FIVE YEARS AFTER ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.'

OUR OFFICE HAS HELD THAT THE CITED ACT IS NOT A MERE STATUTE OF LIMITATION BUT A JURISDICTIONAL STATUTE PRESCRIBING A CONDITION PRECEDENT TO THE RIGHT TO HAVE THE CLAIMS CONSIDERED BY THE GENERAL ACCOUNTING OFFICE. SEE BARTLESVILLE ZINC COMPANY V. MELLON, 56 F.2D 154, AND CARPENTER V. UNITED STATES, 56 F.2D 828. IT WILL BE NOTED THAT THE ACT EXPRESSLY PROHIBITS CONSIDERATION BY THE GENERAL ACCOUNTING OFFICE OF A CLAIM FILED HERE LATER THAN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED AND OUR OFFICE MAY MAKE NO EXCEPTION TO THE PROVISIONS OF THE STATUTE REGARDLESS OF THE MERITS OF THE CLAIM. 25 COMP. GEN. 670.

UNDER THE FACTS AND CIRCUMSTANCES IN THIS CASE WE ARE REQUIRED TO HOLD THAT THE CLAIM HEREIN IS NOT ONE FOR CONSIDERATION BY THE GENERAL ACCOUNTING OFFICE. THE ENCLOSURES TO THE LETTER OF NOVEMBER 2, 1961, WITH THE EXCEPTION OF ONE COPY THEREOF, ARE RETURNED HEREWITH.