B-166439, MAY 2, 1969

B-166439: May 2, 1969

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TO GENERAL HEDLUND: REFERENCE IS MADE TO A LETTER OF APRIL 15. PRIORITY 02 REQUISITIONS WERE RECEIVED BY THE DEFENSE CONSTRUCTION SUPPLY CENTER FROM UNITED STATES ARMY. A CONFIRMING PURCHASE ORDER WAS ISSUED FOR THE ITEMS STATING THAT IT WAS FOR CONFIRMATION PURPOSES ONLY AND REQUESTING THAT THE ITEMS NOT BE DUPLICATED. THE CLAIMANT WAS SUBSEQUENTLY ADVISED THAT THE ITEMS WERE IN VIETNAM AND COULD NOT BE RETURNED. THE CLAIMANT IS. IT IS WELL RECOGNIZED THAT. (2) THE UNAUTHORIZED GOODS OR SERVICES WERE EXPRESSLY OR IMPLIEDLY RATIFIED BY AUTHORIZED CONTRACTING OFFICIALS OF THE GOVERNMENT. THAT THE GOVERNMENT RECEIVED A BENEFIT MAY BE IMPLIED FROM ITS RETENTION OF THE ITEMS WHICH WERE ERRONEOUSLY SHIPPED.

B-166439, MAY 2, 1969

TO GENERAL HEDLUND:

REFERENCE IS MADE TO A LETTER OF APRIL 15, 1969, FROM MR. R. F. S. HOMANN, ASSISTANT COUNSEL, FORWARDING A REPORT RESPONSIVE TO A CLAIM BY THE CHICAGO PNEUMATIC TOOL COMPANY REQUESTING PAYMENT FOR A DUPLICATE SHIPMENT UNDER PURCHASE ORDER DSA703-68-P-8535.

PRIORITY 02 REQUISITIONS WERE RECEIVED BY THE DEFENSE CONSTRUCTION SUPPLY CENTER FROM UNITED STATES ARMY, SOUTH VIETNAM, ON DECEMBER 28, 1967, CALLING FOR CERTAIN ITEMS MANUFACTURED BY THE CLAIMANT. BY TELEGRAM DATED JANUARY 10, 1968, THE CONTRACTING OFFICER ORDERED THE SUPPLIES AND STATED THAT A CONFIRMING ORDER WOULD FOLLOW. ON JANUARY 23, 1968, A CONFIRMING PURCHASE ORDER WAS ISSUED FOR THE ITEMS STATING THAT IT WAS FOR CONFIRMATION PURPOSES ONLY AND REQUESTING THAT THE ITEMS NOT BE DUPLICATED. HOWEVER, THE CLAIMANT MISUNDERSTOOD THE PURCHASE ORDER AND DID DUPLICATE THE SHIPMENT. THE CLAIMANT WAS SUBSEQUENTLY ADVISED THAT THE ITEMS WERE IN VIETNAM AND COULD NOT BE RETURNED.

THE CLAIMANT IS, IN EFFECT, REQUESTING TO BE COMPENSATED FOR THE DUPLICATE SHIPMENT ON THE BASIS OF AN IMPLIED CONTRACT ARISING OUT OF THE GOVERNMENT'S RETENTION OF THE ITEMS MISTAKENLY DELIVERED.

IT IS WELL RECOGNIZED THAT, IN APPROPRIATE CIRCUMSTANCES, PAYMENT MAY BE MADE FOR SERVICES RENDERED ON A QUANTUM MERUIT BASIS (THE REASONABLE VALUE OF WORK AND LABOR), OR FOR GOODS FURNISHED ON A QUANTUM VALEBAT BASIS (THE REASONABLE VALUE OF GOODS SOLD AND DELIVERED). 46 COMP. GEN. 348. BEFORE A RIGHT TO PAYMENT UNDER SUCH BASIS MAY BE RECOGNIZED IT MUST BE SHOWN THAT: (1) THE GOVERNMENT HAS RECEIVED A BENEFIT; AND (2) THE UNAUTHORIZED GOODS OR SERVICES WERE EXPRESSLY OR IMPLIEDLY RATIFIED BY AUTHORIZED CONTRACTING OFFICIALS OF THE GOVERNMENT. B-164087, JULY 1, 1968.

THAT THE GOVERNMENT RECEIVED A BENEFIT MAY BE IMPLIED FROM ITS RETENTION OF THE ITEMS WHICH WERE ERRONEOUSLY SHIPPED. FURTHERMORE, IT IS PRESUMED THAT THE ITEMS HAVE IN FACT BEEN USED BY THE ARMY IN VIETNAM SINCE THE CONTRACTING OFFICER STATED THAT THE SUPPLIES ARE NOT AVAILABLE FOR RETURN.

RATIFICATION OF THE ORDER WAS ACCOMPLISHED BY THE CONTRACTING OFFICER IN HIS REPORT OF APRIL 8, 1969, IN WHICH HE RECOMMENDED THAT PAYMENT BE AUTHORIZED AND STATED THAT THE CONTRACT PRICE OF $789.60 IS VIEWED AS THE REASONABLE VALUE FOR THE SUPPLIES FURNISHED.

THEREFORE, SINCE THE REQUISITES FOR REIMBURSEMENT ON A QUANTUM VALEBAT BASIS HAVE BEEN MET, THE CLAIM MAY BE ADMINISTRATIVELY ALLOWED IF OTHERWISE PROPER.