486 F.2d 1375 | Ct. Cl. | 1973
This case implicates three contracts plaintiff Project Map, Inc. has had with the Department of Labor. The contractor sues to recover $26,166.42 admittedly due it under Contract 0424. The defendant has withheld that sum from the amount concededly owing under that agreement because, on the other two contracts (Contracts 0401 and 0430), the contracting officer determined that plaintiff had been overpaid by at least that figure. In each instance this determination of overpayment was appealed to the Department’s Board of Contract Appeals, and both disputes are still pending before that tribunal. The contractor says that there is no dispute as to Contract 0424, on which it is suing, and therefore it should now be paid the full sum due under that agreement. The Government admits that there is no controversy as to 0424 but asserts a right to set off, on that agreement, amounts it claims owing to it under the other two contracts. Both sides have moved for summary judgment.
Part III of Dale Ingram, Inc. v. United States, 201 Ct. Cl. 56, 76, 475 F. 2d 1177, 1188 (March 1973), dealt with
Dale Ingram, Inc. is dispositive here. We do not agree with plaintiff that that holding was counter to 31 U.S.C. § 227,
If 31 U.S.C. § 227 has any bearing at all, its underlying policy serves to support the ruling in Dale Ingram, Inc. The section declares that, in the circumstances to which it applies, the Comptroller General, once the alleged debtor disputes his obligation, shall cause legal proceedings to be begun to try out the issue — 'but only “if such debt is not already in suit.” The premise is simply that there should be an impartial determination of the disputed debt. But that is exactly what is happening in Dale Ingram, Ine., as well as in the present case. In both instances, the controversial debt is “already in suit” in the sense that the Board of Contract Appeals (and perhaps ultimately a court) will decide whether the money is properly owing by the contractor. There is thus bound to be an impartial determination, and the process of securing it had already been started before this action was begun. Cf. Eastport S.S. v. United States, 131 Ct. Cl. 210, 214, 130 F. Supp. 333, 335 (1955).
Plaintiff also contends that Dale Ingram, Inc. is contrary to the rationale of Eastport S.S. v. United States, supra, 131 Ct. Cl. at 213-14, 130 F. Supp. at 335, and id., 135 Ct. Cl. 175, 140 F. Supp. 773 (1956). We perceive no inconsistency. East-port Steamship I involved a disputed debt set off by the Comptroller General against a prior judgment obtained by the steamship company against the United States; instead of waiting for the Comptroller General to cause a suit to be instituted, the plaintiff brought suit here for the portion of the prior judgment which had not been paid. The court held that 31 U.S.C. § 227, supra, did not prevent the claimant from taking the initiative by itself instituting the first action. Eastport Steamship II carried out that reasoning to allow
We shall therefore follow Bale Ingram, Inc. in granting judgment for the amount withheld under Contract 0424, subject to the Government’s right of set-off. At the oral argument we were informed, and both parties agreed, that in August 1973 the contracting officer revised his determinations to find that the plaintiff is due $31,275.67 under Contract 0424 and that the defendant’s claims under Contracts 0401 and 0430 are reduced to $15,973.60. This leaves a balance of $15,302.07 admittedly due plaintiff, without dispute. We see no reason why this sum should not be paid promptly to plaintiff once its tax problems are finally disposed of.
Accordingly, we grant and deny both motions for summary judgment to the extent that judgment is awarded plaintiff for $26,166.42, subject to the right of the Government to set-off its claims, if any, against the plaintiff in the appeals now pending before the Board of Contract Appeals (or by a court if the case goes to court), and also with respect to any tax, interest or penalty still due under or with respect to the notice of levy filed by the Internal Revenue Service with the Department of Labor.
Ҥ 227. Offsets against judgments against United States
“When any final judgment recovered against the united States duly allowed by legal authority shall be presented to the Comptroller General of the United States for payment, and the plaintiff therein shall be Indebted to the United States In any manner, whether as principal or surety, It shall be the duty of the Comptroller General of the United States to withhold payment of an amount of such judgment equal to the debt thus due to the United States ;***’•
Tie Labor Department received a notice of levy from tie Internal Revenue Service against plaintiff in tie sum of $186,662.90, but plaintiff’s brief says tlat tie full amount of tie taxes las been paid and a request for abatement of tie penalties las been filed (whicl plaintiff expects to be favorably considered).