B-207892.OM., NOV 29, 1982

B-207892.OM., NOV 29, 1982

PRECIS-UNAVAILABLE

THE COMPTROLLER GENERAL:

WE ARE FORWARDING THE CLAIM OF XEROX CORPORATION, FOR $35,832.85. CLAIMANT SEEKS REIMBURSEMENT FOR PROVIDING RENTAL/LEASE SERVICE TO FORT DIX, NEW JERSEY FROM OCTOBER 1, 1981, TO DECEMBER 31, 1981.

THE RECORD INDICATES THAT THE SERVICES BENEFITED THE GOVERNMENT AND THAT THE CLAIMANT ACTED IN GOOD FAITH. THE CONTRACTING OFFICER SPECIFICALLY RECOMMENDS PAYMENT OF THE AMOUNT CLAIMED AND STATES THAT PRICES ARE CONSIDERED FAIR AND REASONABLE. ACCORDINGLY, PAYMENT ON A QUANTUM MERUIT, QUANTUM VALEBAT BASIS IS WARRANTED. SINCE THE CLAIM EXCEEDS $25,000, WE FORWARD IT FOR YOUR CONSIDERATION IN VIEW OF ITEM 11, B-112701, JUNE 28, 1954, AS MODIFIED BY B-189738-O.M., SEPTEMBER 30, 1977.

INDORSEMENT

DIRECTOR, AFMD - CLAIMS GROUP

RETURNED. XEROX CORPORATION CLAIMS PAYMENT IN THE AMOUNT OF $35,832.85 IN CONNECTION WITH THE LEASING OF CERTAIN PHOTOCOPYING EQUIPMENT AT FORT DIX, NEW JERSEY SUBSEQUENT TO OCTOBER 1, 1981. WE CONCLUDE THAT THE CLAIM, IF OTHERWISE PROPER, MAY BE PAID ON A QUANTUM MERUIT BASIS.

THE RECORD SHOWS THAT XEROX CORPORATION HAD INSTALLED A NUMBER OF PHOTOCOPY MACHINES AND RELATED ACCESSORIES AT VARIOUS LOCATIONS AT FORT DIX UNDER A FEDERAL SUPPLY SCHEDULE (FSS) CONTRACT WITH THE GENERAL SERVICES ADMINISTRATION (GSA) WHICH EXPIRED ON SEPTEMBER 30, 1981. ALTHOUGH A RENEWAL AGREEMENT HAD NOT BEEN APPROVED BY GSA AS OF OCTOBER 1, 1981, XEROX LEFT ITS EQUIPMENT IN PLACE IN ANTICIPATION THAT A NEW AGREEMENT WOULD SOON BE SIGNED. THE CONTRACTING OFFICER REPORTS THAT IT HAD LONG BEEN THE PRACTICE THAT WHEN RENEWAL CONTRACTS WERE NOT IN PLACE AS OF OCTOBER 1 OF EACH YEAR, XEROX WOULD OPERATE ON AN INTERIM AGREEMENT BETWEEN IT AND GSA. THERE IS NO INDICATION THAT ANY INTERIM AGREEMENT WAS FORMALIZED THIS YEAR. A NEW FSS CONTRACT PROVIDING FOR RENTAL OF THE EQUIPMENT WAS SIGNED ON NOVEMBER 9, 1981, RETROACTIVE TO OCTOBER 1, 1981.

XEROX SUBMITTED INVOICES FOR THE RENTAL OF ITS EQUIPMENT FOR VARIOUS PERIODS, ALL BEGINNING ON OCTOBER 1, 1981 AND ENDING ON DATES RANGING FROM NOVEMBER 30, 1981 TO JANUARY 4, 1982. THE CONTRACTING OFFICER REFUSED PAYMENT ON THESE INVOICES STATING THAT THE CLAIM DID NOT MEET THE CRITERIA OF SECTION XVII OF THE DEFENSE ACQUISITION REGULATION (COVERING EXTRAORDINARY CONTRACTUAL ACTIONS). IN FURTHER CORRESPONDENCE WITH THIS OFFICE, THE CONTRACTING OFFICER INDICATES THAT HE REFUSED TO PAY THE INVOICES BECAUSE NO PURCHASE ORDERS HAD BEEN ISSUED FOR PERIODS COVERED BY THE INVOICES. PURCHASE ORDERS WERE NOT ISSUED BECAUSE OF ADMINISTRATIVE DELAY IN FORWARDING THE REQUIRED PURCHASE REQUESTS TO THE CONTRACTING OFFICER. ALTHOUGH PURCHASE ORDERS WERE ISSUED AS SOON AS THE PURCHASE REQUESTS WERE RECEIVED, THE CONTRACTING OFFICER REFUSED TO BACKDATE THE PURCHASE ORDERS AND XEROX WAS ADVISED TO FILE THIS CLAIM WITH GAO.

ALTHOUGH THE UNITED STATES CANNOT BE BOUND BEYOND THE ACTUAL AUTHORITY CONFERRED UPON ITS AGENTS BY STATUTE OR REGULATION, SEE UNITED STATES V. CRANCE, 341 F.2D 161, 166 (8TH CIR. 1965), THE COURTS AND OUR OFFICE HAVE RECOGNIZED ON EQUITABLE PRINCIPLES THAT IN SOME APPROPRIATE CIRCUMSTANCES PAYMENT MAY BE MADE FOR SERVICES RENDERED ON A QUANTUM MERUIT BASIS. COMP.GEN. 447, 451 (1961). RECOGNITION OF A RIGHT TO PAYMENT ON THIS BASIS, HOWEVER, REQUIRES A SHOWING THAT THE GOVERNMENT RECEIVED A BENEFIT FROM THE SERVICES RENDERED, B-204388, JANUARY 5, 1982.

IN THIS CASE, BECAUSE OF ADMINISTRATIVE DELAY AND BASED ON THE EXPERIENCE OF PRIOR YEARS, SERVICES WERE PROVIDED BY XEROX WITHOUT THE AUTHORITY OF A CURRENT PURCHASE ORDER. IT IS APPARENT THAT XEROX PROVIDED THE SERVICES IN GOOD FAITH AND WITH A REASONABLE EXPECTATION THAT IT WOULD BE PAID. WAS NOT A MERE VOLUNTEER. CF. POPE & TALBOT, INC., B-186431, JULY 22, 1976, 76-2 CPD 69. THE RECORD INDICATES THAT THE GOVERNMENT ACCEPTED THE SERVICES AND RECEIVED A BENEFIT THEREFROM, A FACT THAT IS CONFIRMED BY THE CONTRACTING OFFICER'S RECOMMENDATION THAT PAYMENT IN THE AMOUNT CLAIMED BE AUTHORIZED. (IN THE PAST, WE HAVE REFERRED TO AN AUTHORIZED CONTRACTING OFFICIAL'S AFFIRMATIVE RECOMMENDATION AS AN "IMPLIED RATIFICATION.") THE AMOUNT CHARGED IS BASED UPON THE CURRENT FSS CONTRACT AND IS THEREFORE CONSIDERED REASONABLE. THE CLAIM, IF OTHERWISE PROPER, MAY BE PAID ON A QUANTUM MERUIT BASIS. ACTION - COMPENSATION FOR UNAUTHORIZED SERVICES PROVIDED GOVERNMENT, B-202744, MAY 4, 1981, 81-1 CPD 339.