A-06128, NOVEMBER 9, 1938, 18 COMP. GEN. 424

A-06128: Nov 9, 1938

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CONTRACTS - DELIVERIES - VOLUNTARY PROCUREMENT OF DRAYAGE SERVICES NOT REQUIRED UNDER THE CONTRACT - GOVERNMENT LIABILITY WHERE CONTRACTOR WAS TO FURNISH THE ITEMS INVOLVED "F.O.B. INSOFAR AS TRANSPORTATION WAS CONCERNED. UNDER THE TERMS OF THIS CONTRACT YOU WERE TO FURNISH THE ITEMS INVOLVED "F.O.B. THE SHIPMENTS WERE MADE ON GOVERNMENT BILLS OF LADING FROM VARIOUS POINTS TO BROOKLYN. THEY WERE PICKED UP AND DELIVERED BY TRUCK TO THE PLANT OF ROBINS DRY DOCK AND REPAIR CO. THIS DRAYAGE SERVICE IS SAID TO HAVE BEEN PERFORMED BY THE ROBINS DRY DOCK AND REPAIR CO. YOU HAVE STATED THAT THE AMOUNT CLAIMED BY YOU. IS THE AMOUNT CHARGED TO YOU BY SAID COMPANY FOR THE SERVICE THUS RENDERED. - INSOFAR AS TRANSPORTATION WAS CONCERNED.

A-06128, NOVEMBER 9, 1938, 18 COMP. GEN. 424

CONTRACTS - DELIVERIES - VOLUNTARY PROCUREMENT OF DRAYAGE SERVICES NOT REQUIRED UNDER THE CONTRACT - GOVERNMENT LIABILITY WHERE CONTRACTOR WAS TO FURNISH THE ITEMS INVOLVED "F.O.B. CARS AT CONTRACTOR'S PLANT FOR SHIPMENT ON GOVERNMENT BILL OF LADING," HIS OBLIGATION, INSOFAR AS TRANSPORTATION WAS CONCERNED, ENDED UPON SUCH DELIVERY, AND THE VOLUNTARY PROCURING, BY THE CONTRACTOR, OF DRAYAGE SERVICES FOR THE DELIVERY FROM THE RAILWAY TERMINAL TO THE CONSIGNEE, AND THE CONTRACTOR'S SUBSEQUENT PAYMENT FOR SUCH SERVICES, CANNOT FORM THE BASIS OF A VALID CLAIM AGAINST THE GOVERNMENT, NOTWITHSTANDING THE SUBSEQUENT ISSUANCE OF A SO-CALLED PURCHASE ORDER TO COVER THE DRAYAGE INVOLVED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE COMBUSTION ENGINEERING CO., INC., NOVEMBER 9, 1938:

YOUR LETTER OF MAY 24, 1938, REQUESTED REVIEW OF SETTLEMENT DATED MAY 17, 1938, WHICH DISALLOWED YOUR CLAIM FOR $82.44 AS DRAYAGE CHARGES ON BOILER PARTS, FITTINGS, ETC., WHICH YOU FURNISHED THE WAR DEPARTMENT UNDER CONTRACT W-971-QM-861 DATED JUNE 29, 1936.

UNDER THE TERMS OF THIS CONTRACT YOU WERE TO FURNISH THE ITEMS INVOLVED "F.O.B. CARS AT CONTRACTOR'S PLANT FOR SHIPMENT ON GOVERNMENT BILL OF LADING.' THE SHIPMENTS WERE MADE ON GOVERNMENT BILLS OF LADING FROM VARIOUS POINTS TO BROOKLYN, N.Y., EACH SHIPMENT BEING CONSIGNED TO "ROBINS DRY DOCK AND REPAIR CO., FOOT 23RD ST., BROOKLYN, N.Y.' AFTER THE SHIPMENTS ARRIVED AT BROOKLYN RAILWAY TERMINALS, THEY WERE PICKED UP AND DELIVERED BY TRUCK TO THE PLANT OF ROBINS DRY DOCK AND REPAIR CO.--- THE DESTINATION SHOWN ON THE BILLS OF LADING. THIS DRAYAGE SERVICE IS SAID TO HAVE BEEN PERFORMED BY THE ROBINS DRY DOCK AND REPAIR CO. AT YOUR REQUEST, AND YOU HAVE STATED THAT THE AMOUNT CLAIMED BY YOU, $82.44, IS THE AMOUNT CHARGED TO YOU BY SAID COMPANY FOR THE SERVICE THUS RENDERED.

WHEN YOU HAD EFFECTED DELIVERY TO THE GOVERNMENT "F.O.B. CARS AT CONTRACTOR'S PLANT," IN ACCORDANCE WITH AUTHORIZED INSTRUCTIONS, YOUR OBLIGATION UNDER THE CONTRACT--- INSOFAR AS TRANSPORTATION WAS CONCERNED-- - WAS ENDED. IT APPEARS, THEREFORE, THAT YOU VOLUNTARILY ASSUMED THIS ADDITIONAL OBLIGATION AND NOW SEEK TO PASS IT ON THE UNITED STATES.

EVEN IF IT BE ASSUMED THAT THE OBLIGATION OF THE RAILROADS WAS COMPLETED WHEN THEY EFFECTED DELIVERY AT THE BROOKLYN TERMINALS, IT IS NOT ESTABLISHED THAT THE UNITED STATES COULD NOT HAVE PROCURED TRANSPORTATION TO THE ROBINS DRY DOCK AND REPAIR CO. PLANT FOR LESS THAN $82.44. BUT, REGARDLESS OF WHAT THE TRANSPORTATION WOULD HAVE COST THE GOVERNMENT OR THE MEANS BY WHICH IT COULD HAVE BEEN EFFECTED IF YOU HAD NOT INTERVENED, YOUR VOLUNTARY ACTION IN ASSUMING THE RESPONSIBILITY OF ARRANGING FOR THE DELIVERIES FROM THE RAILWAY TERMINALS TO THE PLANT OF THE CONSIGNEE CANNOT FORM THE BASIS OF A VALID CLAIM AGAINST THE GOVERNMENT.

ANY PAYMENT YOU MAY HAVE MADE FOR THE DRAYAGE INVOLVED WAS ENTIRELY VOLUNTARY. IT IS WELL SETTLED THAT PAYMENT OF AN OBLIGATION BY A MERE VOLUNTEER, WHO IS UNDER NO LEGAL OBLIGATION TO MAKE THE PAYMENT AND WHO IS NOT REQUIRED TO DO SO FOR THE PRESERVATION OF ANY RIGHTS OR PROPERTY OF HIS OWN, DOES NOT PLACE SAID VOLUNTEER IN A POSITION TO DEMAND REIMBURSEMENT FROM ANYONE. UNITED STATES V. D. L. TAYLOR CO., 268 FED. 635, 648-650. SEE, ALSO, DETROIT EDISON CO. V. WYATT COAL CO., 293 FED. 489, 494. THE UNITED STATES WAS ENTITLED TO AN OPPORTUNITY TO DETERMINE FOR ITSELF WHETHER ANY OBLIGATION RESTED UPON IT TO PROVIDE THE DRAYAGE SERVICE IN QUESTION, AND, IF SO, TO HAVE ITS DULY AUTHORIZED OFFICIALS ARRANGE FOR SUCH SERVICE IN ACCORDANCE WITH LAW. YOU WERE TOTALLY WITHOUT AUTHORITY OR RIGHT EITHER TO DETERMINE THE GOVERNMENT'S LIABILITY IN THIS REGARD OR, IF THE EXISTENCE OF LIABILITY BE CONCEDED, TO ARRANGE FOR ITS LIQUIDATION.

MANIFESTLY, THE SO-CALLED PURCHASE ORDER NO. 793 OF JUNE 30, 1937, ISSUED BY MAJOR WHITTHORNE LONG AFTER THE SERVICE WAS RENDERED BUT PURPORTING TO COVER SUCH SERVICE, COULD NOT IMPOSE ANY LEGAL OBLIGATION ON THE UNITED STATES TO PAY THIS CLAIM. IT IS WELL SETTLED THAT OFFICERS OF THE GOVERNMENT CAN ONLY OBLIGATE THE UNITED STATES WHEN ACTING PURSUANT TO ADEQUATE AUTHORITY PROPERLY CONFERRED. THE OFFICER WHO ISSUED THE "PURCHASE ORDER" IN THIS INSTANCE FOR THE APPARENT PURPOSE NOT OF PROCURING A NEEDED SERVICE BUT OF ATTEMPTING TO AUTHORIZE PAYMENT FOR A SERVICE THAT HAD BEEN VOLUNTARILY RENDERED MANY MONTHS PRIOR THERETO, ACTED BEYOND THE SCOPE OF HIS AUTHORITY, AND IT IS TO BE NOTED IN THIS CONNECTION THAT THE QUARTERMASTER GENERAL RECOMMENDED THAT THE CLAIM BE DISALLOWED.