B-145412, SEP. 20, 1961

B-145412: Sep 20, 1961

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TO THE VIRGINIA ELECTRIC AND POWER COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 20. IT IS REPORTED THAT IN MARCH 1959 ACTUAL PLANNING WAS STARTED FOR EXPANSION OF THE ELECTRICAL DISTRIBUTION SYSTEM AT THE STATION AND ACTIVE NEGOTIATIONS WERE CARRIED ON THEREAFTER. A CONTRACT WAS SIGNED BY YOU AND THE CONTRACTING OFFICER. IT IS REPORTED THAT ON FEBRUARY 19. THE CONTRACT WAS FORWARDED TO HEADQUARTERS. FOR APPROVAL BUT THAT APPROVAL WAS NOT GIVEN AND FUNDS FOR THE PROJECT WERE WITHDRAWN ON APRIL 5. IT IS STATED THAT ON FEBRUARY 5. IT WAS STATED FURTHER IN YOUR LETTER THAT BECAUSE OF THE APPARENT URGENCY OF THE GOVERNMENT'S NEED FOR THE SERVICE AND RELYING ON THE STATEMENTS OF THE REFERRED-TO LADY.

B-145412, SEP. 20, 1961

TO THE VIRGINIA ELECTRIC AND POWER COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 20, 1961, ACKNOWLEDGED MARCH 27, RELATIVE TO YOUR CLAIM IN THE AMOUNT OF $5,133.82 FOR EXPENSES INCURRED AS A RESULT OF NEGOTIATIONS FOR FURNISHING ADDITIONAL ELECTRICAL SERVICE TO BEDFORD AIR FORCE STATION, VIRGINIA.

IN A LETTER DATED JULY 17, 1958, AN OFFICER OF BEDFORD AIR FORCE STATION INQUIRED OF YOU WHETHER YOU COULD FURNISH TO THE STATION 1,800 KW. BY SEPTEMBER 1961, AND WHETHER THERE WOULD BE ANY CONNECTION CHARGE INVOLVED. IT IS REPORTED THAT IN MARCH 1959 ACTUAL PLANNING WAS STARTED FOR EXPANSION OF THE ELECTRICAL DISTRIBUTION SYSTEM AT THE STATION AND ACTIVE NEGOTIATIONS WERE CARRIED ON THEREAFTER. YOU SUBMITTED TO THE CONTRACTING OFFICER A PROPOSAL TO FURNISH THE ADDITIONAL SERVICE FOR A CONNECTION CHARGE OF $121,908 AND ON JANUARY 20, 1960, A CONTRACT WAS SIGNED BY YOU AND THE CONTRACTING OFFICER, SUBJECT TO APPROVAL BY THE TACTICAL AIR COMMAND. IT IS REPORTED THAT ON FEBRUARY 19, 1960, THE CONTRACT WAS FORWARDED TO HEADQUARTERS, TACTICAL AIR COMMAND, FOR APPROVAL BUT THAT APPROVAL WAS NOT GIVEN AND FUNDS FOR THE PROJECT WERE WITHDRAWN ON APRIL 5, 1960.

IN YOUR LETTER OF JANUARY 4, 1961, TO LANGLEY AIR FORCE BASE, REQUESTING PAYMENT OF YOUR CLAIM, IT IS STATED THAT ON FEBRUARY 5, 1960, A LADY AT THE CONTRACTING OFFICE STATED BY TELEPHONE TO ONE OF YOUR REPRESENTATIVES THAT THE PROPOSED CONTRACT HAD BEEN APPROVED AND THAT YOU COULD EXPECT TO RECEIVE AN APPROVED COPY IN APPROXIMATELY TEN DAYS; ALSO, THAT SHE INQUIRED WHETHER THE ADDITIONAL SERVICE COULD BE PROVIDED BY JUNE 1960. IT WAS STATED FURTHER IN YOUR LETTER THAT BECAUSE OF THE APPARENT URGENCY OF THE GOVERNMENT'S NEED FOR THE SERVICE AND RELYING ON THE STATEMENTS OF THE REFERRED-TO LADY, YOU PURCHASED TRANSFORMERS AND INCURRED OTHER EXPENSES IN A TOTAL AMOUNT OF APPROXIMATELY $35,000 IN CONNECTION WITH THE PROPOSED PROJECT BUT THAT BY APPLYING PORTIONS OF THE EQUIPMENT TO OTHER USES AND ELIMINATING EXPENSES INCURRED PRIOR TO FEBRUARY 5, 1960, YOUR CLAIM WAS REDUCED TO $5,133.82.

IN 18 COMP. GEN. 568, IT WAS STATED:

"WHERE GOODS ARE FURNISHED OR SERVICES ARE RENDERED ON THE REQUEST OR ORDER OF AN OFFICER WHO IS AUTHORIZED TO CONTRACT FOR THE UNITED STATES AND TO PROCURE SUCH GOODS OR SERVICES FOR THE USE OF THE UNITED STATES, THERE IS RECOGNIZED AN IMPLIED CONTRACT TO PAY THE REASONABLE VALUE OF SUCH GOODS AND SERVICES ACTUALLY FURNISHED WHEN THE CONTRACT ITSELF IS VOID BECAUSE NOT EXECUTED IN THE FORM REQUIRED BY LAW. SEE CLARK V. UNITED STATES, 95 U.S. 539; ST. LOUIS HAY AND GRAIN CO. V. UNITED STATES, 191 U.S. 159; DONALD V. UNITED STATES, 5 CT.CLS. 65. BUT IF THE OFFICER OR EMPLOYEE WHO MAKES THE ARRANGEMENT HAS NO AUTHORITY TO CONTRACT FOR OR TO PROCURE SUCH GOODS AND SERVICES FOR THE GOVERNMENT, NO CONTRACT, IMPLIED OR OTHERWISE, CAN BE CREATED BY THE DELIVERY OF GOODS OR RENDITION OF SERVICES AT HIS REQUEST, EVEN THOUGH IT APPEARS THAT THE GOVERNMENT MAY HAVE BEEN BENEFITED THEREBY. IN STOLTS ASS-N V. UNITED STATES, 66 CT.CLS. 1, 8, THE COURT SAID:

" "* * * WHERE CONTRACTS TO PAY HAVE BEEN IMPLIED IN DEALINGS WITH THE GOVERNMENT THE QUESTION OF AUTHORITY TO ACT HAS BEEN ESTABLISHED. * * *"

SEE, ALSO, HAWKINS V. UNITED STATES, 96 U.S. 689; PLUMLEY V. UNITED STATES, 226 U.S. 545; BALTIMORE AND OHIO RAILROAD CO. V. UNITED STATES, 261 U.S. 592; REED'S SONS V. UNITED STATES, 273 U.S. 200; DRISCOLL V. UNITED STATES, 34 CT.CLS. 508, 524; BARLOW V. UNITED STATES, 35 CT.CLS. 514, 547; GOETZ, TRUSTEE V. UNITED STATES, 66 CT.CLS. 17.

"THE GOVERNMENT CAN FUNCTION ONLY THROUGH THE ACTS OF ITS AGENTS ACTING WITHIN THE LIMITS OF THEIR LAWFUL AUTHORITY. FLOYD'S ACCEPTANCES, 7 WALL. 666. WERE THE RULE OTHERWISE THERE WOULD BE NO LIMIT TO THE OBLIGATIONS WHICH MIGHT BE IMPOSED ON THE GOVERNMENT BY-- OR TO THE CHAOS WHICH WOULD RESULT FROM--- THE UNAUTHORIZED ACTS OF OFFICERS AND EMPLOYEES PURPORTING TO ACT ACCORDING TO THEIR CONCEPTS OF WHAT MIGHT BE GENERALLY IN THE PUBLIC INTEREST, OR OTHERWISE.'

THE CONTRACTING OFFICE REPORTS THAT IT HAS BEEN UNABLE TO IDENTIFY THE PERSON TO WHOM YOU STATE YOU TALKED BY TELEPHONE ON FEBRUARY 5, 1960.

IT MAY BE SUGGESTED THAT THERE APPARENTLY WAS A MISUNDERSTANDING IN CONNECTION WITH THE REFERRED-TO TELEPHONE CONVERSATION ON THAT DATE, SINCE THE CONTRACTING OFFICER REPORTS THAT THE CONTRACT WAS NOT SENT TO THE TACTICAL AIR COMMAND FOR APPROVAL UNTIL FEBRUARY 19. HOWEVER, SINCE THE PROPOSED CONTRACT HAD BEEN SIGNED SUBJECT TO APPROVAL BY HIGHER AUTHORITY, IT OBVIOUSLY COULD NOT BE BINDING ON THE UNITED STATES UNLESS AND UNTIL SO APPROVED AND NO STATEMENT OR REQUEST BY AN UNAUTHORIZED OFFICER OF THE GOVERNMENT COULD FORM THE BASIS OF ANY OBLIGATION ON THE GOVERNMENT IN CONNECTION WITH THE CONTRACT.

MOREOVER, IN THE INSTANT MATTER IT APPEARS THAT NO MATERIAL WAS FURNISHED OR SERVICES RENDERED TO THE UNITED STATES AND THAT THEREFORE THE GOVERNMENT DERIVED NO BENEFIT FROM THE ACTIONS TAKEN BY YOU IN PREPARING TO PERFORM THE WORK UNDER THE PROPOSED CONTRACT. CONSEQUENTLY, THERE IS NO BASIS FOR PAYMENT ON A QUANTUM MERUIT BASIS.

FOR THE REASONS ABOVE SET FORTH, THERE APPEARS NO LEGAL BASIS FOR ALLOWANCE OF YOUR CLAIM.