B-157433, AUG. 27, 1965

B-157433: Aug 27, 1965

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AS THE HIGHEST RESPONSIBLE BIDDER ON THE ABOVE REFERRED TO ITEMS YOUR COMPANY WAS AWARDED CONTRACT NO. ITEM 62 WAS LOCATED AT THE NORFOLK NAVAL SUPPLY CENTER AND ITEM 42 AT THE CHEATHAM ANNEX DEPOT. PAYMENT WAS COMPLETED ON FEBRUARY 12. THESE INSTRUCTIONS WERE NOT GIVEN TO THE PERSONNEL AT CHEATHAM ANNEX. NOR WAS THAT INTENTION EVIDENT FROM THE INSTRUCTIONS OF FEBRUARY 19. C AND O 21199 WAS LOADED AT THE NORFOLK NAVAL SUPPLY CENTER AND RELEASED TO THE RAILROAD ON FEBRUARY 25. THIS WAS ACCOMPLISHED ON MARCH 2. THE BILL OF LADING WAS SIGNED BY R. YOUR CLAIM IS FOR THE EXCESS RAIL CHARGES RESULTING FROM THE TWO SHIPMENTS RATHER THAN ONE SHIPMENT. THE GOVERNMENT WILL NOT ACT AS LIAISON IN ANY FASHION BETWEEN THE PURCHASER AND CARRIER * * YOUR CONTENTION IS THAT WHEN R.

B-157433, AUG. 27, 1965

TO CHEMETICS, INC.:

YOUR LETTER OF JULY 31, 1965, REFERENCING CLAIM NO. Z-2293690 IN EFFECT REQUESTS A REVIEW OF OUR SETTLEMENT OF JULY 29, 1965, DISALLOWING YOUR CLAIM FOR $168.20 EXPENDED FOR SHIPPING CHARGES IN CONNECTION WITH ITEMS 42 AND 62, LUBRICATING OILS, OF SALES INVITATION 25-S-65-57 ISSUED BY THE DEFENSE SURPLUS SALES OFFICE, NORFOLK, VIRGINIA.

AS THE HIGHEST RESPONSIBLE BIDDER ON THE ABOVE REFERRED TO ITEMS YOUR COMPANY WAS AWARDED CONTRACT NO. DSA-25-S-8320 ON FEBRUARY 11, 1965. ITEM 62 WAS LOCATED AT THE NORFOLK NAVAL SUPPLY CENTER AND ITEM 42 AT THE CHEATHAM ANNEX DEPOT, WILLIAMSBURG, VIRGINIA. PAYMENT WAS COMPLETED ON FEBRUARY 12, 1965. ON FEBRUARY 19, 1965, THE PROPERTY DISPOSAL OFFICERS AT THE NORFOLK NAVAL SUPPLY CENTER AND AT THE CHEATHAM ANNEX EACH RECEIVED INSTRUCTIONS FROM YOUR COMPANY TO RELEASE THE PARTICULAR ITEMS TO THE CHESAPEAKE AND OHIO RAILROAD, WHICH THEY DID.

YOU STATE THAT AT APPROXIMATELY THE SAME TIME YOU GAVE INSTRUCTIONS TO THE CHESAPEAKE AND OHIO RAILROAD COMPANY TO PICK UP BOTH ITEMS IN ONE RAIL CAR AND ALSO FURNISHED THE RAILROAD WITH A BILL OF LADING. THESE INSTRUCTIONS WERE NOT GIVEN TO THE PERSONNEL AT CHEATHAM ANNEX, NOR APPARENTLY TO THE LOCAL CHESAPEAKE AND OHIO RAILROAD AGENT SERVICING THAT AREA, NOR WAS THAT INTENTION EVIDENT FROM THE INSTRUCTIONS OF FEBRUARY 19. CAR NO. C AND O 21199 WAS LOADED AT THE NORFOLK NAVAL SUPPLY CENTER AND RELEASED TO THE RAILROAD ON FEBRUARY 25, 1965, BUT APPARENTLY DID NOT ARRIVE AT THE CHEATHAM ANNEX, 35 OR 40 MILES AWAY, UNTIL MARCH 4, 1965. IN THE INTERVENING PERIOD, THE GOVERNMENT TRANSPORTATION PERSONNEL AT CHEATHAM ANNEX, IN AN EFFORT TO ASSIST YOUR COMPANY IN THE REMOVAL OF THE OIL FROM THE GOVERNMENT'S DEPOT AND FOLLOWING THE INSTRUCTIONS OF FEBRUARY 19, NOTIFIED THE LOCAL C AND O AGENT TO PICK UP ITEM 42. THIS WAS ACCOMPLISHED ON MARCH 2, 1965, AND THE BILL OF LADING WAS SIGNED BY R. L. GARRETT, A GOVERNMENT EMPLOYEE AT CHEATHAM ANNEX. YOUR CLAIM IS FOR THE EXCESS RAIL CHARGES RESULTING FROM THE TWO SHIPMENTS RATHER THAN ONE SHIPMENT.

THE ISSUE CENTERS AROUND ARTICLE J OF THE SPECIAL CONDITIONS OF SALE ON PAGE 36 OF IFB 25-S-65-57 WHICH PROVIDES IN PART:

"LOADING AND REMOVAL. PURCHASERS MUST MAKE ALL ARRANGEMENTS NECESSARY FOR PACKING, REMOVAL AND TRANSPORTATION OF PROPERTY. THE GOVERNMENT WILL NOT ACT AS LIAISON IN ANY FASHION BETWEEN THE PURCHASER AND CARRIER * *

YOUR CONTENTION IS THAT WHEN R. L. GARRETT SIGNED THE BILL OF LADING, HE EXCEEDED HIS AUTHORITY AS A GOVERNMENT AGENT UNDER THE LIMITATION IMPOSED BY THE ABOVE-QUOTED ARTICLE J AND THAT THE GOVERNMENT SHOULD REIMBURSE YOUR COMPANY BECAUSE OF HIS ACTION.

THE LAW IS WELL SETTLED THAT THE GOVERNMENT WILL NOT BE LIABLE FOR THE ACTS OF THEIR AGENTS WHICH ARE OUTSIDE THE SCOPE OF THEIR AUTHORITY. FEDERAL CROP INSURANCE CORP. V. MERRILL, 332 U.S. 380; WILBER NATIONAL BANK V. UNITED STATES, 294 U.S. 120; UTAH POWER AND LIGHT V. UNITED STATES, 243 U.S. 39; GERMAN BANK OF MEMPHIS V. UNITED STATES, 148 U.S. 573; ROBERTSON V. SICHEL, 127 U.S. 507; HAWKINS V. UNITED STATES, 96 U.S. 69; WHITESIDE V. UNITED STATES, 39 U.S. 247.

WHILE IT IS TRUE YOU HAD NO KNOWLEDGE OF MR. GARRETT'S ACTION, THIS DOES NOT FURNISH A SUBSTANTIALLY DISTINGUISHABLE FACTOR. SEE IN THIS CONNECTION WILBER NATIONAL BANK V. UNITED STATES, SUPRA, AND ROBERTSON V. SICHEL, SUPRA.

FINALLY, ARTICLE J ALSO PROVIDES:

"* * * ITEMS PURCHASED UNDER THE INVITATION FOR BIDS WILL BE RELEASED ONLY TO THE PURCHASER OR HIS AUTHORIZED REPRESENTATIVE. AUTHORIZED REPRESENTATIVE MUST FURNISH WRITTEN AUTHORIZATION FROM THE PURCHASER TO THE PROPERTY DISPOSAL OFFICER AT THE PROPER LOCATION BEFORE ANY DELIVERY OR RELEASE WILL BE MADE. * * *"

ALL THAT WAS REQUIRED WAS FOR THE CHESAPEAKE AND OHIO RAILROAD TO PRESENT A WRITTEN AUTHORIZATION FOR PICK-UP OF THE OIL OR FOR YOUR COMPANY TO SPECIFICALLY AUTHORIZE SUCH PICK-UP IN THE CORRESPONDENCE OF FEBRUARY 19. HOWEVER, YOUR INSTRUCTIONS OF FEBRUARY 19 ARE SUSCEPTIBLE OF CONSTRUCTION AS A REQUEST FOR THE GOVERNMENT TO ACT. UNDER ARTICLE J, THE GOVERNMENT EMPLOYEE HAS NO AUTHORITY TO ACT AND IT IS OUR VIEW THAT IN TAKING ANY ACTION, HE DID SO AS YOUR AGENT RATHER THAN THE GOVERNMENT-S. THEREFORE, ANY RESULTING ERROR CANNOT BE ATTRIBUTED TO THE GOVERNMENT.