B-93044, MAY 17, 1950, 29 COMP. GEN. 468

B-93044: May 17, 1950

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1950: REFERENCE IS MADE TO LETTER DATED FEBRUARY 15. REQUESTING A DECISION ON A NUMBER OF QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH THE FURNISHING OF AMBULANCE TRANSPORTATION TO BENEFICIARIES OF THE VETERANS ADMINISTRATION FROM THEIR HOMES TO A VETERANS ADMINISTRATION FACILITY FOR HOSPITAL CARE. IN THE LETTER IT IS REPORTED THAT H. AMBULANCE TRANSPORTATION FROM THE VETERANS' HOME TO THE VETERANS ADMINISTRATION HOSPITAL BECAUSE THE VETERAN WAS HAVING A HEART ATTACK. THAT AFTER DETERMINING THE VETERAN COULD BE ADMITTED TO THE HOSPITAL AND WAS ENTITLED TO TRANSPORTATION AT GOVERNMENT EXPENSE. AN AUTHORIZATION WAS ISSUED TO PAT H. WHEN THE AMBULANCE ARRIVED AND IT WAS FOUND THE VETERAN HAD DEPARTED TO THE HOSPITAL.

B-93044, MAY 17, 1950, 29 COMP. GEN. 468

CONTRACTS - PAYMENTS - INCOMPLETE PERFORMANCE WHERE A CONTRACTOR, UNDER A CONTRACT WITH THE VETERANS ADMINISTRATION TO FURNISH AMBULANCE SERVICE TO VETERANS, WENT TO THE HOME OF A VETERAN AT THE DIRECTION OF THE ADMINISTRATION FOR THE PURPOSE OF TRANSPORTING HIM TO A VETERANS HOSPITAL AND, UPON FINDING THAT THE VETERAN ALREADY HAD BEEN TAKEN TO THE HOSPITAL, MADE THE RETURN TRIP WITHOUT HAVING RENDERED ANY ACTUAL AMBULANCE SERVICE, THE CERTIFYING OFFICER, IN APPROVING THE CONTRACTOR'S CLAIM, MAY CONSIDER THE CONTRACT PRICE AS THE REASONABLE VALUE OF THE SERVICES RENDERED, IN THE ABSENCE OF A SHOWING OF ANY PECUNIARY SAVINGS TO THE CONTRACTOR BY BEING UNABLE TO MAKE COMPLETE PERFORMANCE. A CONTRACTOR WHO, UNDER A CONTRACT WITH THE VETERANS ADMINISTRATION TO FURNISH AMBULANCE SERVICE TO VETERANS, MAKES AN EXTRA TRIP TO A VETERAN'S HOME DUE TO HIS PHYSICAL CONDITION NOT PERMITTING HIS REMOVAL TO A VETERANS HOSPITAL WHEN THE AMBULANCE ARRIVED ON THE FIRST TRIP MAY BE PAID FOR THE EXTRA TRIP WHERE THE EMERGENT CONDITION DID NOT PERMIT PRIOR APPROVAL BY THE VETERANS ADMINISTRATION.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS AFFAIRS, MAY 17, 1950:

REFERENCE IS MADE TO LETTER DATED FEBRUARY 15, 1950, FROM THE DEPUTY ADMINISTRATOR, TRANSMITTING A VOUCHER STATED IN FAVOR OF PAT H. FOLEY AND COMPANY IN THE AMOUNT OF $5, COVERING A CLAIM FOR AMBULANCE SERVICE FURNISHED UNDER CONTRACT NO. V3062P-23, DATED MAY 23, 1949, AND REQUESTING A DECISION ON A NUMBER OF QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH THE FURNISHING OF AMBULANCE TRANSPORTATION TO BENEFICIARIES OF THE VETERANS ADMINISTRATION FROM THEIR HOMES TO A VETERANS ADMINISTRATION FACILITY FOR HOSPITAL CARE.

IN THE LETTER IT IS REPORTED THAT H. H. BAKER OF 1010 AUTRY STREET, HOUSTON, TEXAS, REPRESENTING C. C. MCMILLAN, A VETERAN, CONTACTED THE VETERANS ADMINISTRATION HOSPITAL AT HOUSTON, TEXAS, AND REQUESTED, FOR THE VETERAN, AMBULANCE TRANSPORTATION FROM THE VETERANS' HOME TO THE VETERANS ADMINISTRATION HOSPITAL BECAUSE THE VETERAN WAS HAVING A HEART ATTACK; THAT AFTER DETERMINING THE VETERAN COULD BE ADMITTED TO THE HOSPITAL AND WAS ENTITLED TO TRANSPORTATION AT GOVERNMENT EXPENSE, AN AUTHORIZATION WAS ISSUED TO PAT H. FOLEY AND COMPANY, AMBULANCE SERVICE, TO TRANSPORT THE VETERAN BY AMBULANCE FROM HIS HOME TO THE VETERANS ADMINISTRATION HOSPITAL; THAT BEFORE THE ARRIVAL OF THE AMBULANCE THE VETERAN PROCEEDED TO THE HOSPITAL BY OTHER MEANS OF TRANSPORTATION; AND THAT, THEREFORE, WHEN THE AMBULANCE ARRIVED AND IT WAS FOUND THE VETERAN HAD DEPARTED TO THE HOSPITAL, IT RETURNED TO THE GARAGE, THEREBY NOT RENDERING ANY ACTUAL AMBULANCE SERVICE.

IN VIEW OF THE FACTS THUS PRESENTED, DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS:

1. MAY A CERTIFYING OFFICER OF THE VETERANS ADMINISTRATION APPROVE THE CLAIM UNDER SUCH CIRCUMSTANCES AS STATED ABOVE?

2. IF YOUR ANSWER TO QUESTION 1. IS IN THE NEGATIVE, WOULD IT BE THE SAME IF THE AMBULANCE TRAVELED A CONSIDERABLE DISTANCE AND, UPON ARRIVAL

A. FOUND THE VETERAN DECEASED?

B. THE VETERAN REFUSED TO BE TRANSPORTED TO THE HOSPITAL?

3. IF, UPON ARRIVAL, IN A LOCAL CALL, THE BENEFICIARY IS FOUND TO BE IN A CONDITION WHICH WILL NOT PERMIT REMOVAL AT THAT SPECIFIC TIME BUT MAY BE REMOVED LATER THE SAME DAY AND THE AMBULANCE MAKES TWO TRIPS BETWEEN THE GARAGE AND THE PICK-UP POINT BEFORE COMPLETING THE SERVICE, MAY PAYMENT BE MADE FOR THE EXTRA TRIP.

A. IF AUTHORIZED BY THE VETERANS ADMINISTRATION?

B. IF PERFORMED ON OWN INITIATIVE, OR OTHERWISE, WITHOUT CONTACT WITH THE VETERANS ADMINISTRATION?

IT IS A WELL-SETTLED PRINCIPLE OF LAW THAT WHERE THE PERFORMANCE OF WORK OR LABOR IS A CONDITION PRECEDENT TO ENTITLE THE PARTY TO RECOVERY, THE FULFILLMENT MUST BE SHOWN; BUT IT IS LIKEWISE WELL RECOGNIZED THAT IF SERVICES TO A THIRD PERSON ARE CONTRACTED FOR, AND THEY CANNOT BE RENDERED IN FULL BECAUSE OF THE THIRD PERSON'S DEATH, OR REFUSAL TO RECEIVE THEM, RECOVERY MAY BE HAD FOR THE PART PERFORMANCE THOUGH IT IS OF NO PECUNIARY BENEFIT TO THE PROMISOR. 6 WILLISTON, CONTRACTS ( REV. USED. 1938), SECTION 1977, P. 5554.

IN THE INSTANT CASE THE CONTRACTOR DID ALL IT COULD DO IN ATTEMPTING TO CARRY OUT THE TERMS OF THE CONTRACT AND IT IS ASSUMED THAT ITS RESULTING EXPENSES WERE NEARLY EQUAL TO THOSE WHICH WOULD HAVE FLOWED FROM FULL PERFORMANCE. THE READINESS AND LIABILITY OF THE CONTRACTOR TO PERFORM, TOGETHER WITH ITS ATTEMPT TO DO SO UNDER THE CIRCUMSTANCES, WERE EQUIVALENT TO ACTUAL PERFORMANCE; AND, IN THE ABSENCE OF A SHOWING OF ANY PECUNIARY OUTLAY WHICH THE CONTRACTOR WAS SAVED BECAUSE IT WAS UNABLE TO MAKE COMPLETE PERFORMANCE, ALL FACTORS CONSIDERED, IT WOULD APPEAR THAT THE CONTRACT PRICE PROPERLY SHOULD BE CONSIDERED AS THE REASONABLE VALUE OF THE SERVICES RENDERED. CF. HARDY V. UNITED STATES, 9 C.1CLS. 244. SEE, ALSO, DOLTON V. CAIN, 14 WALL. 472, WHEREIN IT WAS STATED THAT A PARTY WHO HAD DONE ALL THAT COULD REASONABLY BE EXPECTED OF HIM TO PERFORM HIS PART OF AN AGREEMENT WILL BE CONSIDERED AS HAVING PERFORMED IT.

ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE, RENDERING UNNECESSARY ANY ANSWER TO QUESTION 2.

WITH RESPECT TO QUESTION 3 (A) THERE WOULD APPEAR TO BE NO LEGAL OBJECTION TO PAYMENT FOR THE EXTRA TRIP WHEN AUTHORIZED BY THE VETERANS ADMINISTRATION. WITH REFERENCE TO QUESTION 3 (B) THERE WOULD APPEAR TO BE NO LEGAL OBJECTION TO PAYMENT FOR THE EXTRA TRIP IF MADE UNDER EMERGENCY CONDITIONS WHICH WOULD NOT PERMIT PRIOR APPROVAL, AND THE VETERANS ADMINISTRATION DETERMINES AND CERTIFIES THAT SUCH TRIP WOULD HAVE BEEN AUTHORIZED IF PRIOR APPROVAL HAD BEEN REQUESTED.