B-150695, FEB. 11, 1963

B-150695: Feb 11, 1963

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G.: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 16. THE PURCHASE ORDER WAS ISSUED TO YOU BY THE PURCHASING AND CONTRACTING OFFICE. THE UNIT GROSS PRICE SHOWN ON THE ORDER FOR THE OVERHAUL OF ONE ENGINE WAS DM 1. JOB ORDER NO. 8681.62 WAS ISSUED TO YOU ON MARCH 14. WHICH ALLEGEDLY WERE FOUND TO HAVE BEEN IN A VERY BAD CONDITION. IT IS BY REASON OF THIS THAT YOU CLAIM THE ADDITIONAL AMOUNT OF DM 837.05 UNDER PURCHASE ORDER NO. YOU STATE THAT YOU DO NOT FEEL THE UNITED STATES GOVERNMENT HAS THE RIGHT TO ACCEPT FROM A COMPARATIVELY SMALL CONTRACTOR THE SUM OF DM 837.05 AS A GRATUITY SIMPLY BECAUSE YOU FAILED TO SECURE PRIOR AUTHORITY TO FURNISH THE SAID ADDITIONAL PARTS AND LABOR WHICH WERE ABSOLUTELY ESSENTIAL ON A JOB THAT WAS URGENT.

B-150695, FEB. 11, 1963

TO MISOL K. G.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 16, 1963, REQUESTING REVIEW OF OUR SETTLEMENT DATED DECEMBER 3, 1962, DISALLOWING YOUR CLAIM FOR DM 837.05 UNDER UNITED STATES ARMY PURCHASE ORDER NO. SP- 1571-62, DATED MARCH 6, 1962.

THE PURCHASE ORDER WAS ISSUED TO YOU BY THE PURCHASING AND CONTRACTING OFFICE, STUTTGART POST, APO 154, U.S. FORCES, FOR OVERHAULING OF THE ENGINES OF FOUR 3 1/2-TON DUMP TRUCKS, FORD, V8, FOR THE STUTTGART POST TRANSPORTATION MOTOR POOL, KORNWESTHEIM, WILKIN BARRACKS, AS SPECIFIED ON THE PURCHASE ORDER, IN THE TOTAL NET AMOUNT OF DM 4,505.40. THE UNIT GROSS PRICE SHOWN ON THE ORDER FOR THE OVERHAUL OF ONE ENGINE WAS DM 1,466.60--- DM 841.20 FOR LABOR AND DM 625.40 FOR MATERIAL. JOB ORDER NO. 8681.62 WAS ISSUED TO YOU ON MARCH 14, 1962, BY THE TRANSPORTATION MOTOR POOL UNDER THE PURCHASE ORDER AND CALLED FOR THE ENGINE TO BE REBUILT IN ACCORDANCE WITH PURCHASE ORDER NO. SP-1571-62 AND ATTACHED SPECIFICATIONS. IT APPEARS THAT UPON DISASSEMBLING THE FIRST ENGINE AND CHECKING ALL ACCESSORIES, WHICH ALLEGEDLY WERE FOUND TO HAVE BEEN IN A VERY BAD CONDITION, YOU FURNISHED CERTAIN PARTS AND PERFORMED ADDITIONAL LABOR, NOT SPECIFIED UNDER THE ORIGINAL ORDER, TO PUT THE TRUCK IN A GOOD AND SERVICEABLE CONDITION. IT IS BY REASON OF THIS THAT YOU CLAIM THE ADDITIONAL AMOUNT OF DM 837.05 UNDER PURCHASE ORDER NO. SP-1571-62.

IN YOUR LETTER DATED JANUARY 16, 1963, YOU STATE THAT YOU DO NOT FEEL THE UNITED STATES GOVERNMENT HAS THE RIGHT TO ACCEPT FROM A COMPARATIVELY SMALL CONTRACTOR THE SUM OF DM 837.05 AS A GRATUITY SIMPLY BECAUSE YOU FAILED TO SECURE PRIOR AUTHORITY TO FURNISH THE SAID ADDITIONAL PARTS AND LABOR WHICH WERE ABSOLUTELY ESSENTIAL ON A JOB THAT WAS URGENT.

IN THE FIRST INSTANCE THE STUTTGART POST TRANSPORTATION MOTOR POOL STATES THAT ALL OF THE EXTRA WORK WAS NOT ESSENTIAL IN THAT TESTING THE ENGINE AND GAS FOR CLEANING PARTS WERE JUST SOME OF THE ITEMS NOT RELEVANT TO REBUILDING THE ENGINE. THE MOTOR POOL STATES FURTHER THAT IT COULD HAVE USED MANY RECLAIMED PARTS FROM OTHER VEHICLES IN PLACE OF THE NEW PARTS INSTALLED BY YOU AND THAT THE WORK ITSELF COULD HAVE BEEN PERFORMED BY THE MOTOR POOL. HENCE, YOUR CONTENTION THAT THE SAID EXTRA PARTS AND WORK WERE ABSOLUTELY ESSENTIAL IS EXPRESSLY CONTRADICTED, AT LEAST IN PART, BY THE STUTTGART POST TRANSPORTATION MOTOR POOL.

HOWEVER, THE MORE IMPORTANT LEGAL PRINCIPLE INVOLVED IN YOUR CLAIM MUST BE DETERMINED UPON THE BASIS OF THE TERMS OF THE ORDERS ISSUED TO YOU. THIS REGARD, AS STATED IN OUR SETTLEMENT OF DECEMBER 3, 1962, JOB ORDER NO. 8681-62, DATED MARCH 14, 1962, CONTAINED THE PROVISION,"ONLY THE WORK SPECIFIED ON THIS JOB ORDER IS AUTHORIZED WITHOUT FURTHER APPROVAL OF THE MAINTENANCE ICER.' YOU AGREED TO THE TERMS OF THE ORDER, WHICH WERE COMPLETELY CLEAR, BY THE ACCEPTANCE THEREOF. MOREOVER, YOU ADMIT THAT THE ADDITIONAL PARTS FURNISHED AND LABOR PERFORMED, FOR WHICH YOU CLAIM THE ADDITIONAL AMOUNT OF DM 837.05, WAS DONE WITHOUT THE PRIOR APPROVAL OF THE MAINTENANCE OFFICER, AS EXPRESSLY PROVIDED. THIS BEING THE CASE, WE MUST CONCLUDE THAT THE EXTRA WORK WAS PERFORMED IN STRICT VIOLATION OF THE EXPRESS TERMS OF THE CONTRACTUAL AGREEMENT AND, UNDER THESE CIRCUMSTANCES, WE MAY NOT AUTHORIZE THE PAYMENT OF ANY PART OF THE ADDITIONAL AMOUNT CLAIMED BY YOU UNDER PURCHASE ORDER NO. SP-1571-62.

MOREOVER, IT IS MANIFEST THAT, BY THE SPECIFIC TERMS OF PURCHASE ORDER NO. SP-1571-62, JOB ORDER NO. 8681-62, AND THE APPLICABLE SPECIFICATIONS, YOUR OBLIGATION WAS TO PERFORM THE SPECIFIC WORK SET FORTH THEREIN AND NO MORE. YOU WERE NOT REQUIRED TO FURNISH ADDITIONAL PARTS OR PERFORM ANY ADDITIONAL LABOR UNDER THESE REQUIREMENTS NOR AUTHORIZED TO INCUR EXPENSES TO THOSE ENDS. WHEN THE VEHICLE WAS OVER HAULED IN ACCORDANCE WITH THE REQUIREMENTS OF THE PURCHASE AND JOB ORDERS AND THE APPLICABLE SPECIFICATIONS YOUR CONTRACTUAL RESPONSIBILITY WAS ENDED. THE MERE FACT THAT IT WAS YOUR OPINION THAT CERTAIN ADDITIONAL PARTS AND LABOR WERE ESSENTIAL TO A GOOD OVERHAUL JOB DID NOT ENLARGE YOUR OBLIGATION OR RESPONSIBILITY UNDER PURCHASE ORDER NO. SP-1571-62 SO AS TO CONFER AUTHORITY UPON YOU TO INCUR ANY EXPENSE ON BEHALF OF THE GOVERNMENT NOT INCLUDED IN THE CONTRACTUAL PROVISIONS. THEREFORE, THE FURNISHING OF THE ADDITIONAL PARTS AND LABOR BY YOU WAS A VOLUNTARY ACT WHICH WAS UNAUTHORIZED AND UNWANTED.

UPON THE FACTS PRESENTED BY THE RECORD IT MUST BE HELD THAT YOUR ACTION IN FURNISHING THE ADDITIONAL PARTS AND LABOR WAS VOLUNTARY AND THAT THERE IS NO EXPRESS OR IMPLIED OBLIGATION UPON THE GOVERNMENT TO REIMBURSE YOUR COMPANY FOR ANY EXPENSE INCURRED THEREBY. THE UTICA, ITHACA AND ELMIRA RAILWAY COMPANY V. UNITED STATES, 22 CT.CL. 265; A 72597, AUGUST 21, 1937. IT IS AXIOMATIC THAT NO PERSON, BY HIS VOLUNTARY ACT, MAY CONSTITUTE THE GOVERNMENT HIS DEBTOR.