B-182584, DEC 4, 1974

B-182584: Dec 4, 1974

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SINCE PAYMENT MAY BE AUTHORIZED ON A QUANTUM MERUIT BASIS WHERE GOVERNMENT HAS RECEIVED BENEFIT AND UNAUTHORIZED SERVICES ARE IMPLIEDLY RATIFIED BY CONTRACTING OFFICIALS. INC.: THIS DECISION IS IN RESPONSE TO A REQUEST BY THE DIRECTOR OF FISCAL MANAGEMENT. THE RECORD DISCLOSES THAT DURING THE SUMMER OF 1973 THE WAREHOUSE COMPLEX SITE OF THE TOIYABE NATIONAL FOREST WAS INSPECTED BY THE RENO FIRE DEPARTMENT AND CITY INSPECTOR FOR POSSIBLE FIRE SAFETY HAZARDS. ACME WAS THE LOW BIDDER AND WAS ISSUED PURCHASE ORDER NO. 207- 17R-74 FOR $3. THE JOB WAS COMPLETED MAY 21. WAS NOT PERFORMED PURSUANT TO AN EXPRESS CONTRACT BETWEEN THE GOVERNMENT AND ACME. A SUBSEQUENT REVIEW OF PROCUREMENT ACTIVITIES WAS CONDUCTED BY THE REGIONAL DIRECTOR OF FISCAL MANAGEMENT DURING THE PERIOD OF JUNE 4-6.

B-182584, DEC 4, 1974

CERTIFICATION OF PAYMENT OF $3,253 FOR REWIRING OF FEDERAL WAREHOUSE COMPLEX IN IMMEDIATE NEED OF SUCH REPAIRS MAY BE ALLOWED EVEN THOUGH GOVERNMENT OFFICIAL EXCEEDED HIS AUTHORIZED PROCUREMENT AUTHORITY OF $2,000 FOR PUBLIC WORKS, SINCE PAYMENT MAY BE AUTHORIZED ON A QUANTUM MERUIT BASIS WHERE GOVERNMENT HAS RECEIVED BENEFIT AND UNAUTHORIZED SERVICES ARE IMPLIEDLY RATIFIED BY CONTRACTING OFFICIALS.

ACME, INC.:

THIS DECISION IS IN RESPONSE TO A REQUEST BY THE DIRECTOR OF FISCAL MANAGEMENT, REGION 4, FOREST SERVICE, DEPARTMENT OF AGRICULTURE, FOR AN ADVANCE DECISION CONCERNING THE PROPRIETY OF PAYMENT ON A QUANTUM MERUIT OR QUANTUM VALEBAT BASIS FOR WORK PERFORMED BY ACME, INC., ELECTRICAL CONTRACTORS (ACME) AT TOIYABE NATIONAL FOREST IN RENO, NEVADA.

THE RECORD DISCLOSES THAT DURING THE SUMMER OF 1973 THE WAREHOUSE COMPLEX SITE OF THE TOIYABE NATIONAL FOREST WAS INSPECTED BY THE RENO FIRE DEPARTMENT AND CITY INSPECTOR FOR POSSIBLE FIRE SAFETY HAZARDS. THE INSPECTION REVEALED THE ELECTRICAL WIRING SYSTEM TO BE APPROXIMATELY 30 YEARS OLD, IN EXTREMELY POOR CONDITION AND A DEFINITE FIRE HAZARD. ALLEVIATE THE FIRE HAZARD, THE ACTING ADMINISTRATIVE OFFICER OBTAINED INFORMAL QUOTATIONS FROM LOCAL ELECTRICAL COMPANIES TO REWIRE THE BUILDINGS. ACME WAS THE LOW BIDDER AND WAS ISSUED PURCHASE ORDER NO. 207- 17R-74 FOR $3,253 DATED JANUARY 29, 1974. THE JOB WAS COMPLETED MAY 21, 1974, BUT WAS NOT PERFORMED PURSUANT TO AN EXPRESS CONTRACT BETWEEN THE GOVERNMENT AND ACME.

A SUBSEQUENT REVIEW OF PROCUREMENT ACTIVITIES WAS CONDUCTED BY THE REGIONAL DIRECTOR OF FISCAL MANAGEMENT DURING THE PERIOD OF JUNE 4-6, 1974. IT WAS REVEALED BY THIS REVIEW THAT THE ACTING ADMINISTRATIVE OFFICER HAD EXCEEDED HIS DELEGATED PROCUREMENT AUTHORITY UNDER FEDERAL PROCUREMENT REGULATIONS (FPR) SEC. 1-18.302 (1968, 2D ED. AMEND. 48), BY WHICH PUBLIC WORKS IN EXCESS OF $2,000 MUST BE CONTRACTED BY FORMAL ADVERTISING OR NEGOTIATED.

BEFORE A DECISION ON PAYMENT WAS MADE, A TRANSACTION REVIEW WAS PERFORMED BY THE AUTHORIZED CERTIFYING OFFICER DURING THE PERIOD OF JULY 9-12, 1974. DURING THIS REVIEW THE CONTRACTING OFFICER DETERMINED THAT THE WORK DONE WAS NECESSARY, THAT THERE WAS A BENEFIT TO THE GOVERNMENT AND THAT THE CLAIMANT PERFORMED IN GOOD FAITH AND AT A REASONABLE PRICE. THE DIRECTOR OF FISCAL MANAGEMENT RECOMMENDED PAYMENT OF THE CLAIM, ALTHOUGH THE CONTRACTING OFFICER DECLINED TO AUTHENTICATE THE PROCUREMENT ON THE BASIS THAT FPR SEC. 1-18.302 HAD BEEN VIOLATED. TO DATE, PAYMENT HAS NOT BEEN MADE TO ACME FOR THE WORK PERFORMED.

THE IMPORTANT FACTOR IN THIS CASE IS THAT THE ACTING ADMINISTRATIVE OFFICER DID NOT HAVE AUTHORITY TO SOLICIT THE INFORMAL QUOTATIONS FOR THE WORK PERFORMED. AGENTS OF THE GOVERNMENT MUST HAVE ACTUAL AUTHORITY IN ORDER TO BIND THE UNITED STATES, AND INDIVIDUALS ENTERING INTO CONTRACTUAL ARRANGEMENTS WITH THE UNITED STATES ARE, AS A MATTER OF PUBLIC POLICY, CHARGED WITH THE RESPONSIBILITY OF ACCURATELY ASCERTAINING THE EXTENT OF THE AUTHORITY OF THE AGENT TO ACT FOR THE GOVERNMENT. FEDERAL CROP INSURANCE CORPORATION V. MERRILL, 332 U.S. 380, 384 (1947); NEWMAN V. UNITED STATES, 135 F. SUPP. 953, 957 (CT. CL. 1955).

HOWEVER, OUR OFFICE HAS RECOGNIZED THAT IN APPROPRIATE CIRCUMSTANCES, PAYMENT MAY BE AUTHORIZED FOR GOODS FURNISHED ON A QUANTUM VALEBAT BASIS FOR THE REASONABLE VALUE OF GOODS SOLD AND DELIVERED OR FOR SERVICES RENDERED ON A QUANTUM MERUIT BASIS FOR THE REASONABLE VALUE OF WORK OR LABOR. B-179019, SEPTEMBER 24, 1973; MATTER OF DICTAMATIC CORPORATION, B- 181038, MAY 16, 1974. BEFORE A RIGHT TO PAYMENT UNDER SUCH BASIS MAY BE RECOGNIZED IT MUST BE SHOWN THAT THE GOVERNMENT HAS RECEIVED A BENEFIT, AND THAT THE UNAUTHORIZED GOODS OR SERVICES WERE EXPRESSLY OR IMPLIEDLY RATIFIED BY AUTHORIZED CONTRACTING OFFICIALS.

IN THIS CASE, THERE IS NO DOUBT THAT THE GOVERNMENT RECEIVED A BENEFIT; THE COMPLETED REWIRING OF THE WAREHOUSE BUILDINGS ALLEVIATED THE FIRE HAZARD WHICH PREVIOUSLY EXISTED. THE QUESTION TO BE ANSWERED IS WHETHER AUTHORIZED CONTRACTING OFFICIALS IMPLICITLY RATIFIED THE UNAUTHORIZED ACTION OF THE ACTING ADMINISTRATIVE OFFICER.

ALTHOUGH THE AUTHORIZED CONTRACTING OFFICER DECLINED TO AUTHENTICATE THE PROCUREMENT, AN IMPLIED RATIFICATION MAY BE INFERRED FROM BOTH HIS OWN DETERMINATION THAT THE WORK DONE WAS IN THE BEST INTEREST OF THE GOVERNMENT AND THE RECOMMENDATION BY THE AGENCY'S DIRECTOR OF FISCAL MANAGEMENT THAT THE CLAIM BE PAID. IT HAS BEEN RECOGNIZED THAT THE ACCEPTANCE OF BENEFITS BY AUTHORIZED REPRESENTATIVES OF THE GOVERNMENT WITH KNOWLEDGE OF THE CIRCUMSTANCES MAY, IN A PROPER CASE, RESULT IN A RATIFICATION OF THE UNAUTHORIZED ACT BY IMPLICATION. SEE WILLIAMS V. UNITED STATES, 127 F. SUPP. 617 (CT. CL. 1955), AND B-176039, JULY 13, 1972.

THEREFORE, SINCE THE REQUISITES FOR REIMBURSEMENT ON A QUANTUM MERUIT BASIS HAVE BEEN MET, THE CLAIM MAY BE ADMINISTRATIVELY ALLOWED IF OTHERWISE CORRECT.