A-21633, FEBRUARY 21, 1928, 7 COMP. GEN. 507

A-21633: Feb 21, 1928

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CONTRACTS - DAMAGES - TORTS NO OFFICER OF THE GOVERNMENT IS AUTHORIZED TO ENTER INTO A CONTRACT WHEREBY THE UNITED STATES IS MADE LIABLE FOR DAMAGES IN AN INDEFINITE AMOUNT ON ACCOUNT OF THE ACTS OF ITS OFFICERS. WHERE SUCH AN AGREEMENT IS INCORPORATED IN A CONTRACT IT IS NULL AND VOID AS THE CONTRACTING OFFICER HAS EXCEEDED HIS AUTHORITY IN ENTERING INTO SUCH AN AGREEMENT. 1928: YOUR ATTENTION IS INVITED TO CONTRACT DATED JULY 1. THE OBLIGATION SOUGHT TO BE IMPOSED UPON THE UNITED STATES BY THIS PORTION OF THE CONTRACT IS SO INDEFINITE AND UNCERTAIN AS TO BRING IT WITHIN THE CLASS OF CONTRACTS PROHIBITED BY SECTION 3732. UNLESS THE SAME IS AUTHORIZED BY LAW OR IS UNDER AN APPROPRIATION ADEQUATE TO ITS FULFILLMENT.

A-21633, FEBRUARY 21, 1928, 7 COMP. GEN. 507

CONTRACTS - DAMAGES - TORTS NO OFFICER OF THE GOVERNMENT IS AUTHORIZED TO ENTER INTO A CONTRACT WHEREBY THE UNITED STATES IS MADE LIABLE FOR DAMAGES IN AN INDEFINITE AMOUNT ON ACCOUNT OF THE ACTS OF ITS OFFICERS, AGENTS, OR EMPLOYEES, AND WHERE SUCH AN AGREEMENT IS INCORPORATED IN A CONTRACT IT IS NULL AND VOID AS THE CONTRACTING OFFICER HAS EXCEEDED HIS AUTHORITY IN ENTERING INTO SUCH AN AGREEMENT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, FEBRUARY 21, 1928:

YOUR ATTENTION IS INVITED TO CONTRACT DATED JULY 1, 1927, BETWEEN THE UNITED STATES AND THE ALABAMA POWER CO., PROVIDING FOR THE FURNISHING BY THE LATTER OF ELECTRIC ENERGY ON THE MILITARY RESERVATION AT WACO QUARRY, RUSSELLVILLE, ALA., SECTION 21 OF WHICH READS, IN PART, AS FOLLOWS:

THE UNITED STATES SHALL USE REASONABLE DILIGENCE TO PROTECT THE PROPERTY OF THE CONTRACTOR AND SHALL REIMBURSE THE CONTRACTOR FOR INJURY OR DAMAGE SUFFERED BY IT RESULTING FROM DEFECTS BEYOND THE SAID SWITCHBOARD AT WACO QUARRY, OR FROM THE NEGLIGENCE OF THE UNITED STATES, AND SHALL INDEMNIFY THE CONTRACTOR AGAINST LIABILITY FOR INJURY OR DAMAGE SO SUFFERED BY THIRD PARTIES; AND THE CONTRACTOR SHALL NOT BE LIABLE FOR ANY ACCIDENT, DAMAGE OR INJURY TO ANY PERSON OR PROPERTY WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SERVICE FURNISHED OR TO BE FURNISHED HEREUNDER.

THE OBLIGATION SOUGHT TO BE IMPOSED UPON THE UNITED STATES BY THIS PORTION OF THE CONTRACT IS SO INDEFINITE AND UNCERTAIN AS TO BRING IT WITHIN THE CLASS OF CONTRACTS PROHIBITED BY SECTION 3732, REVISED STATUTES, AS FOLLOWS:

NO CONTRACT OR PURCHASE ON BEHALF OF THE UNITED STATES SHALL BE MADE, UNLESS THE SAME IS AUTHORIZED BY LAW OR IS UNDER AN APPROPRIATION ADEQUATE TO ITS FULFILLMENT, EXCEPT IN THE WAR AND NAVY DEPARTMENTS, FOR CLOTHING, SUBSISTENCE, FORAGE, FUEL, QUARTERS, OR TRANSPORTATION, WHICH, HOWEVER, SHALL NOT EXCEED THE NECESSITIES OF THE CURRENT YEAR.

THERE IS NEITHER PROVISION OF LAW NOR APPROPRIATIONS AUTHORIZING THIS INDEMNITY PORTION OF THE CONTRACT. MOREOVER, IT IS A WELL-SETTLED PRINCIPLE OF LAW THAT THE UNITED STATES IS NOT RESPONSIBLE FOR THE NEGLIGENCE OF ITS OFFICERS, EMPLOYEES, OR AGENTS AND SUCH LIABILITY CAN NOT BE IMPOSED UPON IT BY ONE OF ITS OFFICERS ATTEMPTING TO MAKE IT A PART OF THE CONSIDERATION OF A CONTRACT. THE FACT THAT THE CONGRESS HAS PLACED WITHIN YOUR JURISDICTION CERTAIN CLAIMS SOUNDING IN TORT DOES NOT AUTHORIZE ENTERING INTO AGREEMENTS MAKING THE GOVERNMENT LIABLE IN DAMAGES IN AN INDEFINITE AND UNLIMITED AMOUNT AS THE PARAGRAPH OF THE CONTRACT HEREIN REFERRED TO ATTEMPTS TO DO.

FURTHERMORE, EVEN IF SUCH PROVISION WERE OTHERWISE LEGAL, THERE IS NO PROVISION AS TO HOW THE AMOUNT OF DAMAGES TO BE PAID IS TO BE DETERMINED. NO EXECUTIVE DEPARTMENT IS AUTHORIZED TO DETERMINE SUCH DAMAGES SAVE IN THE LIMITED CASES REFERRED TO ABOVE, NOR HAS THIS OFFICE, NOR THE COURTS, JURISDICTION OVER CLAIMS IN TORT AGAINST THE GOVERNMENT EXCEPT WHERE SPECIAL JURISDICTION IS CONFERRED BY A SPECIAL ACT OF THE CONGRESS.

IT MUST BE CONCLUDED THAT THIS PORTION OF THE CONTRACT IS NULL AND VOID, THE CONTRACTING OFFICER HAVING EXCEEDED HIS AUTHORITY IN ENTERING INTO SUCH AN AGREEMENT. SEE DECISION OF FEBRUARY 16, 1926, A 12983; ALSO, 15 COMP. DEC. 405, AND 16 ID. 38.