B-160522, MAR. 14, 1967

B-160522: Mar 14, 1967

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INC.: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 7. THE RECORD SHOWS THAT VERBAL ORDERS WERE ISSUED BY MR. THAT THIS WAS CONFIRMED BY PURCHASE ORDER NO. 313-12-66. THAT A CREDIT WAS ALLOWED BY YOU FOR A MILEAGE OVERCHARGE OF $131.30. 145.11 WAS PAID YOU BY THE FOREST SERVICE ON VOUCHER NO. 12-1483. WAS ADMINISTRATIVELY DENIED BY THE FOREST SERVICE AS NOT PROVIDED FOR UNDER THE RENTAL AGREEMENT. YOU CONTEND THAT YOU ARE ENTITLED TO THE CONCURRENT PAYMENT OF THE MILEAGE AND THE USE RATE BASED "ON PRIOR PAYMENTS UNDER THE AGREEMENT DATED JULY 8. THE RATES SHOWN ON THE FACE OF THIS AGREEMENT ARE USE PER MILE RATES AND HOURLY USE RATES FOR EQUIPMENT WITH OPERATOR (EXCLUDING OPERATION). STANDBY HOURLY RATES WITH OPERATOR WERE ALSO PROVIDED.

B-160522, MAR. 14, 1967

TO KING-WIN CAR RENTALS, INC.:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 7, 1967, REQUESTING REVIEW OF OUR CLAIMS DIVISION SETTLEMENT DATED JANUARY 23, 1967, WHICH DISALLOWED YOUR CLAIM FOR $807.70, REPRESENTING AN AMOUNT ALLEGED TO BE DUE FOR THE RENTAL OF TRUCKS DURING THE PERIOD OCTOBER 1 THROUGH 5, 1965, BY THE DEPARTMENT OF AGRICULTURE, FOREST SERVICE, SAN BERNARDINO NATIONAL FOREST, CALIFORNIA.

THE RECORD SHOWS THAT VERBAL ORDERS WERE ISSUED BY MR. LARRY L. SMITH OF THE FOREST SERVICE PROCUREMENT OFFICE TO MR. WALTER C. SANDERS OF YOUR CORPORATION ON OCTOBER 1, 1965, FOR THE VEHICLES INVOLVED,AND THAT THIS WAS CONFIRMED BY PURCHASE ORDER NO. 313-12-66, ISSUED ON OCTOBER 15, 1965, WHICH STATED:

"FURNISHED TO THE U.S. FOREST SERVICE EQUIPMENT FOR USE ON THE JIM FIRE FOR THE PERIOD 10/1/65 THRU 10/5/65 IN ACCORDANCE WITH THE ATTACHED SAN BERNARDINO NATIONAL FOREST TRIP AND USE RECORDS.'

THE RECORD FURTHER SHOWS THAT YOU BILLED THE FOREST SERVICE FOR $5,084.11 UNDER THE PURCHASE ORDER; THAT A CREDIT WAS ALLOWED BY YOU FOR A MILEAGE OVERCHARGE OF $131.30; AND THAT OF THE $4,952.81 REMAINING UNPAID, THE SUM OF $4,145.11 WAS PAID YOU BY THE FOREST SERVICE ON VOUCHER NO. 12-1483, DECEMBER 30, 1965. THE DIFFERENCE OF $807.70, REPRESENTING A MILEAGE CHARGE WHICH CONSTITUTES YOUR "INSTANT" CLAIM, WAS ADMINISTRATIVELY DENIED BY THE FOREST SERVICE AS NOT PROVIDED FOR UNDER THE RENTAL AGREEMENT.

IN THE REQUEST FOR REVIEW, YOU CONTEND THAT YOU ARE ENTITLED TO THE CONCURRENT PAYMENT OF THE MILEAGE AND THE USE RATE BASED "ON PRIOR PAYMENTS UNDER THE AGREEMENT DATED JULY 8, 1965.' YOU APPARENTLY REFER TO THE EQUIPMENT RENTAL AGREEMENT FOR FIRE SUPPRESSION AND STANDBY, DATED JULY 8, 1965, BETWEEN YOUR FIRM AND THE FOREST SERVICE WHICH COVERS SUPPRESSION USE DURING THE FIRE SEASON. THE RATES SHOWN ON THE FACE OF THIS AGREEMENT ARE USE PER MILE RATES AND HOURLY USE RATES FOR EQUIPMENT WITH OPERATOR (EXCLUDING OPERATION). STANDBY HOURLY RATES WITH OPERATOR WERE ALSO PROVIDED. HOWEVER, THE FILE ESTABLISHES THAT THE VEHICLES WERE ORDERED WITH A DRIVER FOR USE IN FIRE SUPPRESSION. THE ONLY APPLICABLE RATE UNDER SUCH CIRCUMSTANCE WAS THE RATE PROVIDED FOR IN THE AGREEMENT FOR USE OF EQUIPMENT WITH OPERATOR, THAT IS, THE HOURLY USE RATE FOR THE PARTICULAR CATEGORY OF VEHICLE USE WITH AN OPERATOR. WE FIND NOTHING IN THE AGREEMENT WHICH WOULD AUTHORIZE PAYMENT OF A MILEAGE RATE ALSO WHERE THE VEHICLE WAS ORDERED WITH AN OPERATOR. MOREOVER, IT APPEARS THAT IT WAS NEVER THE INTENT OF THE GOVERNMENT TO PAY MILEAGE AND USE RATES CONCURRENTLY SINCE BOTH OF THESE RATES WERE THE MAXIMUM ALLOWED BY REGIONAL RATE TABLES. SINCE WE FIND NO LEGAL BASIS TO IMPOSE UPON THE GOVERNMENT IN THIS CASE THE LIABILITY TO PAY BOTH MAXIMUM RENTAL RATES CONCURRENTLY, YOUR CLAIM FOR $807.70 IS AGAIN DENIED.

YOU BELIEVE THAT SINCE THE PURCHASE ORDER DATED OCTOBER 15, 1965, WAS ISSUED AFTER AUDIT BY THE FOREST SERVICE AND INCLUDED MILEAGE CHARGES AS WELL AS HOURLY USE RATES, THE GOVERNMENT IS PRECLUDED FROM ADJUSTING OR RECOVERING ANY AMOUNT PAID TO YOU UNDER SUCH PURCHASE ORDER. YOU ARGUE THAT THIS IS ESPECIALLY SO SINCE YOU WERE PAID BOTH RATES UNDER THE AGREEMENT FOR PREVIOUS RENTAL SERVICES. IN THIS CONNECTION, IT IS WELL ESTABLISHED THAT THE GOVERNMENT HAS THE RIGHT TO RECOVER FUNDS WHICH ITS AGENTS HAVE WRONGFULLY, ERRONEOUSLY, OR ILLEGALLY PAID. THIS RIGHT EXISTS WHETHER SUCH PAYMENTS WERE MADE UNDER MISTAKE OF LAW OR FACT, WHETHER BECAUSE IN EXCESS OF AUTHORITY OR BASED UPON AN ERRONEOUS INTERPRETATION OF A CONTRACT LATER FOUND TO BE INCORRECT. SEE CHORPENNING V. UNITED STATES. 94 U.S. 397, 399; STEELE V. UNITED STATES, 113 U.S. 128, 134; UNITED STATES V. WURTS, 303 U.S. 414; UNITED STATES V. SUTTON CHEMICAL CO., 11 F.2D 24, 26. IT IS ALSO ESTABLISHED THAT THE GOVERNMENT IS NEITHER BARRED BY LATCHES NOR ESTOPPEL TO ASSERT A CLAIM WHERE, AS HERE, MONEY HAS BEEN ERRONEOUSLY PAID. SEE FANSTEEL METALLURGICAL CORPORATION V. UNITED STATES. 172 F.SUPP. 268, 270. WHILE YOU RELY ON A FOREST SERVICE LETTER DATED DECEMBER 1, 1965, SIGNED BY C. R. LUNDEEN, IN ASSERTING THAT YOU WERE NOT IN FACT OVERPAID $301.39 SINCE SUCH AMOUNT WAS NOT MENTIONED, THE OVERPAYMENT WAS LATER DETERMINED AFTER A CAREFUL REVIEW AND ANALYSIS OF YOUR TRIP AND USE RECORD WHICH WERE SUBMITTED IN SUPPORT OF YOUR CLAIMS FOR AMOUNTS DUE UNDER THE AGREEMENT.

IN YOUR LETTER YOU MADE REFERENCE TO FOOTNOTE (2) OF EQUIPMENT RENTAL RATES FOR FIRE SUPPRESSION---MISCELLANEOUS, RELATING TO OPERATING EXPENSES, INCLUDING FUEL, OIL, GREASE AND MINOR REPAIRS. YOU NOW CLAIM THE SUM OF $1,479.47, REPRESENTING OPERATING EXPENSES FOR THE RENTED VEHICLES, AS AN ADDITIONAL AMOUNT DUE OVER AND ABOVE THE MAXIMUM USE RATES APPLICABLE TO THOSE RENTED VEHICLES. WE HAVE NO COMMENT TO MAKE WITH REFERENCE TO THIS ADDITIONAL CLAIM OTHER THAN TO OBSERVE THAT FUEL WAS FURNISHED BY THE FOREST SERVICE IN CONNECTION WITH THE OPERATION OF THE RENTED VEHICLES.

ACCORDINGLY, THE SETTLEMENT CERTIFICATE OF JANUARY 25, 1967, IS SUSTAINED.