B-148592, JUN. 19, 1962

B-148592: Jun 19, 1962

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TO THE GENERAL TIRE AND RUBBER COMPANY: REFERENCE IS MADE TO YOUR LETTER DATED MAY 25. WITH YOUR LETTER THERE WAS ENCLOSED A COPY OF THE MODIFICATION REVIEW BOARD ITEM RECORD DATED JANUARY 24. WHEREIN IT WAS RECOMMENDED THAT YOUR COMPANY BE REIMBURSED FOR THE ENGINEERING COSTS INCURRED IN THE DEVELOPMENT OF THE ENGINEERING CHANGE PROPOSAL RECEIVED FROM LIEUTENANT COLONEL PIPER. IT WAS OUR UNDERSTANDING FROM RELIABLE AND RESPONSIBLE ENGINEERING AIR FORCE PERSONNEL THAT WORLD CONDITIONS AND AIRCRAFT OPERATIONS REQUIRED EXPEDIENT ACTION BECAUSE OF LOSS OF LIFE AND HIGH ACCIDENT RATES WITH THE USE OF THE THEN EXISTING AIRCRAFT WHEELS.'. THERE WERE CERTAIN ADDITIONAL STATEMENTS IN YOUR LETTER CONCERNING THE POLICY OF YOUR COMPANY TO COLLABORATE AND EXPEDITE ANY TECHNICAL SERVICE YOU MIGHT BE ABLE TO OFFER IN INSTANCES SUCH AS HERE INVOLVED.

B-148592, JUN. 19, 1962

TO THE GENERAL TIRE AND RUBBER COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 25, 1962 (NUMBER GA 2450), IN EFFECT REQUESTING RECONSIDERATION OF SETTLEMENT DATED MAY 4, 1962, BY WHICH OUR CLAIMS DIVISION DISALLOWED YOUR CLAIM FOR $18,045.18, REPRESENTING ENGINEERING, REVISING AND TESTING COSTS ALLEGEDLY INCURRED TO UP-GRADE 30 BY 8.8 MLG WHEEL FOR F-100 AIRCRAFT, IN RESPONSE TO ENGINEERING CHARGE PROPOSAL DATED SEPTEMBER 23, 1960, RECEIVED FROM LIEUTENANT COLONEL MAX L. PIPER, CHIEF, LANDING GEAR INVENTORY MANAGEMENT DIVISION, DIRECTORATE OF MATERIAL MANAGEMENT, DEPARTMENT OF THE AIR FORCE.

AS A BASIS FOR REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM, YOU STATED IN EFFECT THAT YOUR COMPANY PROCEEDED TO PERFORM THE SERVICES IN QUESTION PURSUANT TO THE ENGINEERING CHANGE PROPOSAL RECEIVED FROM LIEUTENANT COLONEL PIPER AND ON THE ASSUMPTION THAT HE HAD SUFFICIENT AUTHORITY TO REQUEST SUCH ACTION, AND THAT, THEREFORE, YOU BELIEVE THAT UPON HIS REQUEST THE PROCUREMENT DEPARTMENT WOULD BE OFFICIALLY NOTIFIED. WITH YOUR LETTER THERE WAS ENCLOSED A COPY OF THE MODIFICATION REVIEW BOARD ITEM RECORD DATED JANUARY 24, 1961, WHEREIN IT WAS RECOMMENDED THAT YOUR COMPANY BE REIMBURSED FOR THE ENGINEERING COSTS INCURRED IN THE DEVELOPMENT OF THE ENGINEERING CHANGE PROPOSAL RECEIVED FROM LIEUTENANT COLONEL PIPER. YOUR LETTER THEN CONTAINED THE FOLLOWING PARAGRAPH.

"IT WOULD BE VIRTUALLY IMPOSSIBLE TO COMPLETELY REVIEW THE DETAILED CONVERSATIONS AND CORRESPONDENCE THAT LED TO THE IMMEDIATE ACTION AND PRIOR MOVEMENT INTO TESTS WITHOUT CONTRACTUAL COVERAGE, BUT IT WAS OUR UNDERSTANDING FROM RELIABLE AND RESPONSIBLE ENGINEERING AIR FORCE PERSONNEL THAT WORLD CONDITIONS AND AIRCRAFT OPERATIONS REQUIRED EXPEDIENT ACTION BECAUSE OF LOSS OF LIFE AND HIGH ACCIDENT RATES WITH THE USE OF THE THEN EXISTING AIRCRAFT WHEELS.'

THERE WERE CERTAIN ADDITIONAL STATEMENTS IN YOUR LETTER CONCERNING THE POLICY OF YOUR COMPANY TO COLLABORATE AND EXPEDITE ANY TECHNICAL SERVICE YOU MIGHT BE ABLE TO OFFER IN INSTANCES SUCH AS HERE INVOLVED, DEPENDING ENTIRELY UPON THE INTEGRITY OF THE PEOPLE WITH WHOM YOU ARE DEALING TO ULTIMATELY ARRIVE AT AN EQUITABLE ADJUSTMENT FOR BOTH PARTIES. FOR THE REASONS SET FORTH IN YOUR LETTER YOU REQUESTED THAT A FAVORABLE DECISION BE RENDERED ON YOUR CLAIM.

IT APPEARS FROM THE RECORD IN THIS CASE THAT UNDER DATE OF SEPTEMBER 23, 1960, LIEUTENANT COLONEL PIPER ADDRESSED A LETTER TO YOU REQUESTING, IN EFFECT, THAT YOUR COMPANY MAKE AN EVALUATION AND SUBMIT AN ENGINEERING CHANGE PROPOSAL FOR MODIFYING AND UP-GRADING THE LOAD CARRYING FACILITIES OF THE 30 X 8.8 MAIN LANDING GEAR WHEEL USED ON F 100 AIRCRAFT, THAT IS TO SAY, FROM 18,700 POUNDS STATIC RATING 21,000 STATIC RATING. THE RECORD INDICATES THAT YOUR COMPANY PERFORMED THE SERVICES REQUESTED AND UNDER DATE OF NOVEMBER 29, 1960, SUBMITTED TO LIEUTENANT COLONEL J. B. TERRY FORMAL ENGINEERING CHANGE PROPOSAL NO. GTR-W-10, LATER FOLLOWED BY A CLAIM FOR THE SERVICES IN QUESTION.

THE RECORD INDICATES FURTHER, HOWEVER, THAT IN THE INTERIM BETWEEN THE REQUEST FOR THE CHANGE PROPOSAL AND THE SUBMISSION OF THE SAME BY YOUR COMPANY UNDER DATE OF NOVEMBER 29, 1960, THERE WERE RECEIVED FROM THE BENDIX CORPORATION AND FROM YOUR COMPANY TWO UNSOLICITED PROPOSALS FOR FURNISHING A NEW 21,000 POUND STATIC RATED FORGED ALUMINUM WHEEL. UPON FURTHER CONSIDERATION OF THE MATTER, IT WAS ADMINISTRATIVELY CONCLUDED THAT THE UNITED STATES WOULD OBTAIN GREATER BENEFIT FROM THE NEW WHEEL WITH ONLY A COMPARATIVELY SMALL DIFFERENCE IN COST. AS A RESULT THE ENGINEERING CHANGE PROPOSAL SUBMITTED BY YOUR COMPANY WAS DISAPPROVED ON DECEMBER 22, 1960. IT THUS APPEARS THAT THE GOVERNMENT RECEIVED NO BENEFIT WHATEVER THEREFROM. IN A STATEMENT DATED JULY 12, 1961, THE CONTRACTING OFFICER ADVISED THAT HE WAS FIRST MADE AWARE OF THE CLAIM IN QUESTION BY THE RECEIPT OF YOUR COMPANY'S LETTER OF JANUARY 17, 1961.

IT IS QUITE CLEAR THAT THE LETTER OF SEPTEMBER 23, 1960, WAS ISSUED WITHOUT THE KNOWLEDGE OR AUTHORITY OF THE CONTRACTING OFFICER AND THEREFORE IMPOSED NO OBLIGATION ON THE UNITED STATES. IN A DECISION DATED DECEMBER 28, 1938, REPORTED AT 18 COMP. GEN. 568, THERE WAS CONSIDERED A CLAIM PREDICATED UPON A REQUEST BY AN EMPLOYEE OF THE WORKS PROGRESS ADMINISTRATION FOR FURNISHING CERTAIN SERVICES, IT BEING SHOWN THAT THE EMPLOYEE HAD NO AUTHORITY TO MAKE A CONTRACT ON BEHALF OF THE UNITED STATES OR TO OBLIGATE THE UNITED STATES IN ANY RESPECT. IN SUSTAINING THE SETTLEMENT ACTION TAKEN BY OUR CLAIMS DIVISION IN THAT CASE IT WAS HELD IN THE CITED DECISION THAT---

" * * * IF THE OFFICER OR EMPLOYEE WHO MAKES THE ARRANGEMENTS 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 ADDITION TO WHAT HAS BEEN SAID HEREINBEFORE, IT MAY BE SAID THAT AN ENGINEERING CHANGE PROPOSAL IS MERELY A BASIS FOR NEGOTIATION OF FURTHER PROCUREMENTS OR OF MODIFICATIONS OF CURRENT PROCUREMENTS. IT WOULD APPEAR, THEREFORE, THAT THE REQUEST FOR SUCH A PROPOSAL IMPOSES NO MORE OBLIGATION ON THE GOVERNMENT THAN ANY OTHER REQUEST FOR PROPOSALS.

FINALLY, WE INVITE YOUR ATTENTION TO THE HOLDING BY THE COURT OF CLAIMS IN THE CASE OF WILLIAM E. NASH V. UNITED STATES, 141 CT.CL. 135, WHEREIN IT WAS STATED (PAGE 141) THAT---

"* * * OF COURSE, WE ARE ALWAYS COGNIZANT OF THE LEGAL DOCTRINE THAT ANYONE DEALING WITH THE GOVERNMENT MUST ASCERTAIN THE LIMITS OF THE AUTHORITY OF THOSE PURPORTING TO ACT FOR THE GOVERNMENT AND THAT IF HE FAILS TO DO SO AND SUFFERS A LOSS THEREBY HE HAS NO RECOURSE AGAINST THE GOVERNMENT. FEDERAL CROP INSURANCE CORP. V. MERRILL, 332, U.S. 380, 384 (1947); GAY STREET CORPORATION OF BALTIMORE V. UNITED STATES, 130 C.CLS. 341 (1955).'

FOR THE REASONS HEREINBEFORE SET FORTH, WE ARE OF THE VIEW THAT THE ACTION TAKEN IN THE SETTLEMENT OF MAY 4, 1962, DENYING YOUR CLAIM, WAS CORRECT AND THE SAME IS HEREBY SUSTAINED.