B-177416, FEB 8, 1973

B-177416: Feb 8, 1973

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EVEN THOUGH THIS CONTRACT WAS ENTERED INTO BY EMPLOYEES WHO LACKED PROPER AUTHORITY TO CONTRACT ON BEHALF OF THE UNITED STATES. IT IS REPORTED THAT CERTAIN EMPLOYEES OF THE MONTROSE. WHO REPORTEDLY INFORMED THEM THAT NO ADVANCE APPROVAL BY THE WASHINGTON OFFICE OF BLM WAS REQUIRED FOR THE PROPOSED EXPENDITURE FOR HELICOPTER SERVICES OF APPROXIMATELY $7. BELIEVING THAT NEITHER A PURCHASE ORDER NOR A FORMAL CONTRACT WAS REQUIRED. ROCKY MOUNTAIN RENDERED 18 HOURS OF SERVICE AND AN ADDITIONAL 8.4 HOURS OF SERVICE WAS RENDERED BETWEEN AUGUST 2 AND 4. THE BILLING FOR THE FORMER PERIOD WAS $2. WHILE THE BILLING FOR THE LATTER PERIOD WAS $1. STATES THAT THESE ARRANGEMENTS WERE MADE WITHOUT GOING THROUGH DISTRICT ADMINISTRATIVE CHANNELS BECAUSE BOTH HE AND THE DISTRICT FORESTER WERE THEN IN ALASKA AND THE RESPONSIBLE EMPLOYEES WERE NOT COGNIZANT OF THE PROPER PROCEDURES.

B-177416, FEB 8, 1973

UNAUTHORIZED CONTRACT - QUANTUM MERUIT DECISION ALLOWING CERTIFICATION OF A VOUCHER IN FAVOR OF ROCKY MOUNTAIN HELICOPTER FOR SERVICES RENDERED THE BUREAU OF LAND MANAGEMENT. EVEN THOUGH THIS CONTRACT WAS ENTERED INTO BY EMPLOYEES WHO LACKED PROPER AUTHORITY TO CONTRACT ON BEHALF OF THE UNITED STATES, CLAIMANT MAY STILL BE PAID ON A QUANTUM MERUIT OR QUANTUM VALEBAT BASIS. SEE 46 COMP. GEN. 348 (1966).

TO MRS. LILA B. HANNEBRINK:

BY LETTERS DATED NOVEMBER 3 AND 30, 1972, WITH ENCLOSURES, YOU REQUESTED OUR DECISION WITH RESPECT TO WHETHER YOU MAY CERTIFY FOR PAYMENT A VOUCHER IN THE AMOUNT OF $1,064, IN FAVOR OF ROCKY MOUNTAIN HELICOPTERS.

IT IS REPORTED THAT CERTAIN EMPLOYEES OF THE MONTROSE, COLORADO DISTRICT OF THE BUREAU OF LAND MANAGEMENT (BLM) HELD A MEETING IN THE FIRST WEEK OF JUNE 1972, CONCERNING THE POSSIBILITY OF EMPLOYING HELICOPTERS TO TRANSPORT CREWS INTO REMOTE AREAS DURING THE THEN UPCOMING FOREST INVENTORY. APPARENTLY THESE BLM EMPLOYEES DISCUSSED THIS MATTER WITH THE COLORADO STATE OFFICE FORESTRY SPECIALIST, WHO REPORTEDLY INFORMED THEM THAT NO ADVANCE APPROVAL BY THE WASHINGTON OFFICE OF BLM WAS REQUIRED FOR THE PROPOSED EXPENDITURE FOR HELICOPTER SERVICES OF APPROXIMATELY $7,000. AFTER DETERMINING THAT ROCKY MOUNTAIN HELICOPTERS HAD A HELICOPTER AVAILABLE, WITH NO FERRY OR STANDBY TIME REQUIRED, THESE EMPLOYEES, BELIEVING THAT NEITHER A PURCHASE ORDER NOR A FORMAL CONTRACT WAS REQUIRED, AND THINKING THAT THE USE OF ROCKY MOUNTAIN'S HELICOPTER WOULD BE THE CHEAPEST AND MOST PRACTICAL WAY OF TRANSPORTING INVENTORY CREWS INTO THE FORESTS, ENGAGED ROCKY MOUNTAIN TO PERFORM THE SERVICES. BETWEEN JULY 25 AND 29, 1972, ROCKY MOUNTAIN RENDERED 18 HOURS OF SERVICE AND AN ADDITIONAL 8.4 HOURS OF SERVICE WAS RENDERED BETWEEN AUGUST 2 AND 4, 1972. THE BILLING FOR THE FORMER PERIOD WAS $2,430, WHILE THE BILLING FOR THE LATTER PERIOD WAS $1,134, MAKING A TOTAL BILLING OF $3,564.

THE ACTING DISTRICT MANAGER OF THE MONTROSE DISTRICT AND CHIEF, DIVISION OF ADMINISTRATION, MONTROSE DISTRICT, STATES THAT THESE ARRANGEMENTS WERE MADE WITHOUT GOING THROUGH DISTRICT ADMINISTRATIVE CHANNELS BECAUSE BOTH HE AND THE DISTRICT FORESTER WERE THEN IN ALASKA AND THE RESPONSIBLE EMPLOYEES WERE NOT COGNIZANT OF THE PROPER PROCEDURES. HE ALSO REPORTS THAT THE THEN ACTING CHIEF HAD NO KNOWLEDGE THAT THE HELICOPTER SERVICES WERE BEING UTILIZED WITHOUT AN AUTHORIZING CONTRACT OR PURCHASE ORDER.

ON AUGUST 7, 1972, THE IRREGULARITIES WERE DISCOVERED AND THE MONTROSE DISTRICT REPORTED THE SUBJECT PROCUREMENT TO THE COLORADO STATE OFFICE. THE STATE OFFICE WAS ADVISED BY THE CHIEF, BRANCH OF ACCOUNTING AND DISBURSEMENT, DENVER SERVICE CENTER, TO ISSUE A PURCHASE ORDER TO ROCKY MOUNTAIN HELICOPTERS. ACCORDINGLY, ON SEPTEMBER 21, 1972, ROCKY MOUNTAIN WAS PAID $2,500, LEAVING A BALANCE OF $1,064.

THE GOVERNING PROCUREMENT STATUTE, 41 U.S.C. 252(C) PROVIDES THAT, WITH CERTAIN ENUMERATED EXCEPTIONS, ALL PURCHASES AND CONTRACTS FOR PROPERTY AND SERVICES MUST BE MADE BY ADVERTISING. IT IS NOT CLAIMED THAT PROCUREMENT OF THE HELICOPTER SERVICES BY NEGOTIATION WAS AUTHORIZED UNDER ANY OF THE ENUMERATED EXCEPTIONS TO THE REQUIREMENT FOR ADVERTISING. FURTHERMORE, IT IS ADMINISTRATIVELY RECOGNIZED THAT THE EMPLOYEES WHO ENGAGED THE HELICOPTER SERVICES LACKED ACTUAL AUTHORITY TO CONTRACT FOR THESE SERVICES ON BEHALF OF THE UNITED STATES. IN VIEW OF THESE IMPROPRIETIES, BY MEMORANDUM DATED AUGUST 14, 1972, ALL EMPLOYEES OF THE DISTRICT WERE ADVISED OF THE PROPER PROCUREMENT PROCEDURES TO BE FOLLOWED IN THE FUTURE.

HOWEVER, THIS OFFICE HAS IN THE PAST PERMITTED PAYMENT, EVEN THOUGH A PROCUREMENT IS INVALID DUE TO A FAILURE TO COMPLY WITH A FEDERAL STATUTE, ON A QUANTUM MERUIT OR QUANTUM VALEBAT BASIS. SEE 46 COMP. GEN. 348 (1966) AND 40 ID. 447 (1961). WE HAVE ALSO PERMITTED PAYMENT ON THE SAME BASIS IN CASES WHERE A GOVERNMENT AGENT CONTRACTS IN THE NAME OF THE GOVERNMENT ALTHOUGH LACKING AUTHORITY TO DO SO. SEE 38 COMP. GEN. 38 (1958) AND B-173765, NOVEMBER 18, 1971. WHERE THE RIGHT TO PAYMENT ON THIS BASIS IS RECOGNIZED IT IS PREDICATED ON THE THEORY THAT IT WOULD BE UNFAIR FOR ONE PARTY TO HAVE THE BENEFIT OF THE OTHER'S SERVICES WITHOUT RECOMPENSE AND RECOVERY IS LIMITED TO THE FAIR VALUE OF THE BENEFIT CONFERRED. SEE B-173765, SUPRA.

SINCE FROM THE RECORD BEFORE US IT APPEARS THAT $3,564 WAS A REASONABLE PRICE FOR THE SERVICES RENDERED, THE SERVICES WERE PERFORMED IN GOOD FAITH AND THE BENEFITS THEREOF RECEIVED BY THE GOVERNMENT, THE VOUCHER, RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE PROPER. SEE B- 169745, MAY 27, 1970.