B-154867, AUG. 26, 1964

B-154867, AUG. 26, 1964

TO SHAMPAINE INDUSTRIES, INCORPORATED:

WE REFER TO YOUR LETTER DATED JULY 24, 1964, REQUESTING REVIEW OF OUR SETTLEMENT DATED JULY 2, 1964, DISALLOWING YOUR CLAIM FOR $377.16.

THE RECORD INDICATES THAT AN OPERATING TABLE, NO. S-1501-X,WAS DELIVERED TO THE UNITED STATES MEDICAL DEPOT, LOUISVILLE,KENTUCKY, UNDER YOUR INVOICE NO. P-22621, DATED FEBRUARY 26, 1958. THE 328TH UNITED STATES AIR FORCE HOSPITAL, RICHARDS-GEBAUR AIR FORCE BASE, MISSOURI, ENCOUNTERED DIFFICULTIES IN THE USE OF THE OPERATING TABLE AND ON DECEMBER 26, 1962, MR. ANDERSON, A REPRESENTATIVE OF YOUR CONCERN VISITED THE HOSPITAL TO EXAMINE THE OPERATING TABLE. AFTER EXAMINATION, YOUR REPRESENTATIVE SUGGESTED THAT THE TABLE BE SENT BACK TO YOU FOR ANY NECESSARY REPAIRS AND THE RECORD INDICATES THAT YOUR REPRESENTATIVE ADVISED THE HOSPITAL THAT THE REPAIRS WOULD BE WITHOUT CHARGE. ON DECEMBER 27, 1962, THE HOSPITAL DIRECTED A LETTER TO YOU ADVISING YOU OF DIFFICULTIES ENCOUNTERED WITH THE OPERATING TABLE AND THE VISIT TO THE HOSPITAL BY YOUR REPRESENTATIVE. THIS LETTER ALSO STATED AS FOLLOWS:

"WE WERE ADVISED BY MR. ANDERSON THAT ALL REPAIRS WOULD BE WITHOUT CHARGE. IN ORDER TO PREVENT ANY MISUNDERSTANDING AFTER WORK IS UNDERWAY OR FINISHED, WILL YOU PLEASE CONFIRM THIS.'

BY LETTER DATED JANUARY 11, 1963, YOU ACKNOWLEDGED THE HOSPITAL'S LETTER TO YOU OF DECEMBER 27, 1962, AND ADVISED THE HOSPITAL THAT THE PROBLEM WITH THE OPERATING TABLE WOULD BE STUDIES BY YOUR ENGINEERS AND THAT THEREAFTER A LOCAL SERVICEMAN WOULD TAKE WHATEVER CORRECTIVE MEASURES WOULD BE NECESSARY. WE ARE ADVISED BY THE 328TH AIR FORCE HOSPITAL THAT IN VIEW OF THE ORAL STATEMENTS BY YOUR REPRESENTATIVE, THAT THERE WOULD BE NO CHARGE FOR ANY SERVICES TO THE OPERATING TABLE, AND YOUR LETTER OF JANUARY 11, 1963, WHICH WAS IN REPLY TO THE HOSPITAL'S SPECIFIC REQUEST THAT YOU AFFIRM THAT THERE BE NO CHARGE FOR ANY SERVICES TO THE OPERATING TABLE, IT WAS DETERMINED BY THE HOSPITAL EXECUTIVE OFFICER, THE MEDICAL SUPPLY OFFICER AND THE DEPUTY BASE PROCUREMENT OFFICER THAT YOUR REPLY WAS YOUR CONCURRENCE THAT ANY SERVICES WOULD BE WITHOUT CHARGE. THERE IS NO INDICATION IN THE RECORD THAT THE HOSPITAL WAS ADVISED OF ANY CHARGES FOR THE REPAIRS PRIOR TO THE TIME THAT THE REPAIRS WERE MADE. THE RECORD INDICATES THAT AFTER BEING ADVISED OF THE REPRESENTATIONS OF YOUR REPRESENTATIVE, THAT THE SERVICE WOULD BE FURNISHED WITHOUT CHARGE, YOU DID NOT INFORM THE HOSPITAL OF ANY POSSIBLE LIMITATIONS OF YOUR AGENT'S AUTHORITY TO AUTHORIZE THE SERVICES WITHOUT CHARGE. THE RECORD ESTABLISHES THAT NO PURCHASE ORDER WAS REQUESTED BY YOU OR ISSUED BY THE HOSPITAL.

YOU NOW ALLEGE THAT THE HOSPITAL SHOULD HAVE BEEN AWARE THAT CHARGES WOULD ACCRUE FOR THE LABOR AND REPAIRS EXPENDED BY YOU IN REMEDYING THE DIFFICULTIES ENCOUNTERED BY THE HOSPITAL IN THE USE OF YOUR OPERATING TABLE. THE HOSPITAL, HOWEVER, AT THE TIME THE EVENTS WHICH GAVE RISE TO YOUR CLAIM TRANSPIRED CONSIDERED YOU TO BE A VOLUNTEER OF YOUR SERVICES. IN VIEW OF THE RECORD PRESENTED TO OUR OFFICE, WE FEEL THAT THE ACTIONS OF THE HOSPITAL IN CONSIDERING YOU TO BE A VOLUNTEER WERE REASONABLE. THERE IS NO EXPRESS OR IMPLIED OBLIGATION THAT THE GOVERNMENT WOULD REIMBURSE YOU FOR ANY EXPENSES YOU MAY HAVE INCURRED. IN THIS SITUATION IT IS AXIOMATIC THAT NO PERSON, BY HIS VOLUNTARY ACT, MAY CONSTITUTE THE GOVERNMENT HIS DEBTOR. SEE THE UTICA, ITHACA AND ELMIRA RAILROAD COMPANY V. UNITED STATES, 22 CT. CL. 265 AND B-150695, FEBRUARY 11, 1963.

FOR THESE REASONS OUR SETTLEMENT DATED JULY 2, 1964, IS SUSTAINED.