A-26841, JUNE 13, 1929, 8 COMP. GEN. 647

A-26841: Jun 13, 1929

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CONTRACTS - DAMAGES - CONTRACTING OFFICER'S AUTHORITY NO OFFICER OF THE GOVERNMENT IS AUTHORIZED TO ENTER INTO A CONTRACT WHEREBY THE UNITED STATES IS MADE TO ASSUME ALL LIABILITY IN AN INDEFINITE AMOUNT FOR ALL DAMAGE OR INJURY TO PERSONS OR PROPERTY THAT MAY RESULT DURING THE PROGRESS OF THE WORK. SUCH PROVISION MADE IN A CONTRACT IS NULL AND VOID. 1929: YOUR ATTENTION IS INVITED TO CONTRACTS OF JUNE 14. ARTICLE SEVENTH OF EACH CONTRACT PROVIDING IN PART AS FOLLOWS: SECOND PARTY HEREBY ASSUMES ALL LIABILITY TO THE EXTENT THAT APPROPRIATIONS ARE AVAILABLE OR MADE AVAILABLE FOR ALL DAMAGE OR INJURY TO PERSONS OR PROPERTY THAT MAY RESULT FROM THE PLACING. OR REMOVING OF SAID TELEPHONE LINE AND WILL SAVE FIRST PARTY HARMLESS FROM ALL LIABILITY SO ASSUMED AND FROM ALL COSTS AND EXPENSE CONNECTED THEREWITH.

A-26841, JUNE 13, 1929, 8 COMP. GEN. 647

CONTRACTS - DAMAGES - CONTRACTING OFFICER'S AUTHORITY NO OFFICER OF THE GOVERNMENT IS AUTHORIZED TO ENTER INTO A CONTRACT WHEREBY THE UNITED STATES IS MADE TO ASSUME ALL LIABILITY IN AN INDEFINITE AMOUNT FOR ALL DAMAGE OR INJURY TO PERSONS OR PROPERTY THAT MAY RESULT DURING THE PROGRESS OF THE WORK, AND SUCH PROVISION MADE IN A CONTRACT IS NULL AND VOID, THE CONTRACTING OFFICER HAVING EXCEEDED HIS AUTHORITY IN ENTERING INTO SUCH AGREEMENT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, JUNE 13, 1929:

YOUR ATTENTION IS INVITED TO CONTRACTS OF JUNE 14, 1928, BETWEEN THE UNITED STATES AND THE NEW YORK CENTRAL RAILROAD COMPANY, LESSEE OF THE KANAWHA AND MICHIGAN RAILROAD COMPANY, NOS. W-516-ENG-172 AND W-516 ENG- 173, EACH OF WHICH PERMITS THE UNITED STATES TO CONSTRUCT, MAINTAIN, AND USE A LINE OF TELEPHONE WIRE IN LEAD-ARMORED CABLE ACROSS THE RIGHT OF WAY AND UNDER THE TRACKS OF THE RAILROAD COMPANY, ARTICLE SEVENTH OF EACH CONTRACT PROVIDING IN PART AS FOLLOWS:

SECOND PARTY HEREBY ASSUMES ALL LIABILITY TO THE EXTENT THAT APPROPRIATIONS ARE AVAILABLE OR MADE AVAILABLE FOR ALL DAMAGE OR INJURY TO PERSONS OR PROPERTY THAT MAY RESULT FROM THE PLACING, MAINTAINING, OPERATING, REPAIRING, OR REMOVING OF SAID TELEPHONE LINE AND WILL SAVE FIRST PARTY HARMLESS FROM ALL LIABILITY SO ASSUMED AND FROM ALL COSTS AND EXPENSE CONNECTED THEREWITH, AND WILL INDEMNIFY FIRST PARTY FOR ANY DAMAGE TO ITS PROPERTY OR EMPLOYEES RESULTING AS AFORESAID.

AND ALSO TO CONTRACT W-226-ORD-/---) (CB-FILE 160/799), DATED AUGUST 25, 1919, BETWEEN THE UNITED STATES AND THE DIRECTOR GENERAL OF RAILROADS, BY S. ENNES, GENERAL MANAGER (BALTIMORE AND OHIO RAILROAD), AND THE BALTIMORE AND OHIO RAILROAD COMPANY, WHICH PERMITS THE UNITED STATES TO OPERATE ITS ENGINES AND CARS UPON THE TRACKS OF THE BALTIMORE AND OHIO RAILROAD COMPANY (MARLEY NECK BRANCH) FROM A POINT AT THE TERMINUS OF THE STREET- CAR LINE AT PENNINGTON AVENUE IN BALTIMORE CITY TO THE CURTIS BAY GENERAL SUPPLY ORDNANCE DEPOT, ARTICLE 4 OF SAID CONTRACT PROVIDING AS FOLLOWS:

4. THE SECOND PARTY FURTHER AGREES THAT THE RAILROAD SHALL IN ALL RESPECTS BE SAVED HARMLESS FROM LOSS OR DAMAGE, THE RESULT OF NEGLIGENCE ON THE PART OF PERSONS EMPLOYED BY THE SECOND PARTY IN THE OPERATION OF ITS ENGINES AND CARS UPON THE TRACKS OF THE RAILROAD AS HEREINBEFORE PROVIDED.

SECTION 3732, REVISED STATUTES, PROVIDES 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.

THE QUOTED PORTIONS OF THE CONTRACTS CITED SEEK TO IMPOSE ON THE UNITED STATES OBLIGATIONS SO INDEFINITE AND UNCERTAIN AS TO BRING THEM WITHIN THE CLASS OF CONTRACTS PROHIBITED BY SECTION 3732, REVISED STATUTES, SUPRA.

THE INDEMNITY PORTION OF THE CONTRACTS IS NOT AUTHORIZED BY LAW OR APPROPRIATION. FURTHERMORE, 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 AN ATTEMPT ON THE PART OF A CONTRACTING OFFICER TO MAKE IT A PART OF THE CONSIDERATION OF A CONTRACT. CONTRACTS W-516-ENG-172 AND W-516-ENG-173 ARE BOTH DATED SUFFICIENTLY LONG AFTER THE TRANSMITTAL OF THE DECISION OF FEBRUARY 21, 1928, A-21633 (7 COMP. GEN. 507), TO YOU FOR THE CONTRACTING OFFICER TO HAVE HAD NOTICE THAT THE INDEMNITY PORTION WAS UNAUTHORIZED.

THE EXPLANATION MADE FOR THE CHIEF OF ENGINEERS BY LETTER OF MARCH 16, 1929, IS AS FOLLOWS:

2.ARTICLE 7 OF EACH AGREEMENT WAS NOT THOUGHT TO BE WITHIN THE CLASS OF CONTRACTS PROHIBITED BY SECTION 3732, REVISED STATUTES, SINCE ARTICLE 7 PROVIDES THAT THE SECOND PARTY ASSUMES LIABILITY "TO THE EXTENT THAT APPROPRIATIONS ARE AVAILABLE OR MADE AVAILABLE," AND THIS OFFICE HAD IN MIND THE AUTHORITY GRANTED BY SECTION 9 OF THE RIVER AND HARBOR ACT OF JUNE 5, 1920 (41 STAT. 1015), AND THE ACT OF DECEMBER 28, 1922 (42 STATS. 1066), TO SETTLE CERTAIN CLAIMS AGAINST THE UNITED STATES.

A SIMILAR CONTENTION WAS DISPOSED OF IN 7 COMP. GEN. 507, SUPRA, IN THE FOLLOWING LANGUAGE:

* * * 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 * * *.

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 SPECIFICALLY PROVIDED FOR BY STATUTE, NOR HAS THIS OFFICE, NOR THE COURTS, JURISDICTION OVER CLAIMS IN TORT AGAINST THE GOVERNMENT EXCEPT WHERE SPECIAL JURISDICTION IS CONFERRED BY A SPECIFIC LEGISLATION.

ACCORDINGLY, IT MUST BE CONCLUDED THAT THE QUOTED PORTIONS OF THE CONTRACTS ARE NULL AND VOID, THE CONTRACTING OFFICER HAVING EXCEEDED HIS AUTHORITY IN ENTERING INTO SUCH AGREEMENTS. A-25163 OF JANUARY 30, 1929; 7 COMP. GEN. 507.