B-141803, MAY 29, 1961
Highlights
TO LOBKOWITZ MACHINERY COMPANY: WE HAVE YOUR LETTER OF JUNE 10. WE HELD THAT THE SPECIFICATIONS WERE SO INDEFINITE AS TO PREVENT THE FULL AND FREE COMPETITION REQUIRED BY THE STATUTES GOVERNING ADVERTISED PROCUREMENTS AND. THAT THE PURPORTED AWARD WAS VOID. THE STATUTORY PROVISION REFERRED TO IS THE REQUIREMENT AT 10 U.S.C. 2305 (A) THAT THE SPECIFICATIONS SHALL PERMIT FULL AND FREE COMPETITION CONSISTENT WITH THE PROCUREMENT OF THE PROPERTY. THE CONTRACTING OFFICER'S PURPORTED AWARD OF A CONTRACT TO YOUR FIRM WAS CONTRARY TO STATUTE AND THEREFORE WITHOUT LEGAL EFFECT. THE PRINCIPLE IS WELL ESTABLISHED THAT ACTIONS OF CONTRACTING OFFICERS IN EXCESS OF AUTHORITY CONFERRED UPON THEM BY STATUTE OR REGULATION ARE VOID AND DO NOT BIND OR ESTOP THE GOVERNMENT.
B-141803, MAY 29, 1961
TO LOBKOWITZ MACHINERY COMPANY:
WE HAVE YOUR LETTER OF JUNE 10, 1960, FILING A CLAIM IN THE AMOUNT OF $11,879.04, REPRESENTING COSTS INCURRED UNDER CONTRACT NO. DA-19-059 ORD- 663 PRIOR TO THE ISSUANCE OF AN ORDER ON DECEMBER 11, 1959, BY THE CONTRACTING AGENCY, TO STOP ALL WORK UNDER THE CONTRACT. THE CONTRACT, FOR THREE HOT TRIM PRESSES, HAD BEEN AWARDED TO YOUR FIRM BY THE SPRINGFIELD ARMORY ON NOVEMBER 16, 1959.
IN OUR DECISION, B-141803, FEBRUARY 10, 1960 (39 COMP. GEN. 570), TO THE SECRETARY OF THE ARMY, WE HELD THAT THE SPECIFICATIONS WERE SO INDEFINITE AS TO PREVENT THE FULL AND FREE COMPETITION REQUIRED BY THE STATUTES GOVERNING ADVERTISED PROCUREMENTS AND, THEREFORE, THAT THE PURPORTED AWARD WAS VOID. THE STATUTORY PROVISION REFERRED TO IS THE REQUIREMENT AT 10 U.S.C. 2305 (A) THAT THE SPECIFICATIONS SHALL PERMIT FULL AND FREE COMPETITION CONSISTENT WITH THE PROCUREMENT OF THE PROPERTY. UNDER THESE CIRCUMSTANCES, THE CONTRACTING OFFICER'S PURPORTED AWARD OF A CONTRACT TO YOUR FIRM WAS CONTRARY TO STATUTE AND THEREFORE WITHOUT LEGAL EFFECT. THE PRINCIPLE IS WELL ESTABLISHED THAT ACTIONS OF CONTRACTING OFFICERS IN EXCESS OF AUTHORITY CONFERRED UPON THEM BY STATUTE OR REGULATION ARE VOID AND DO NOT BIND OR ESTOP THE GOVERNMENT. SEE 37 COMP. GEN. 550, AND THE NUMEROUS AUTHORITIES CITED AT PAGES 553 AND 554.
THERE IS NO INDICATION IN YOUR LETTER PRESENTING THE CLAIM THAT THE UNITED STATES HAS RECEIVED ANY DIRECT BENEFIT FROM THE EXPENDITURE FOR WHICH YOU ARE SEEKING REIMBURSEMENT. IT SHOULD BE NOTED IN THIS REGARD THAT WE HAVE CONSISTENTLY DENIED CLAIMS IN SUCH SITUATIONS, SINCE PERSONS DEALING WITH AGENTS OF THE UNITED STATES ARE PRESUMED TO KNOW THE EXTENT OF THE AGENTS' AUTHORITY, AND A BIDDER WHO HAS RECEIVED AN ILLEGAL AWARD INCURS EXPENSES AT HIS OWN RISK. SEE 37 COMP. GEN. 51; 20 ID. 890, 894; AND 17 ID. 312. AS WE STATED IN B 142716, FEBRUARY 6, 1961 (40 COMP. GEN. 447), COPY ENCLOSED, A CASE CONCERNING A SIMILAR CLAIM---
"* * * IN ANY EVENT, HOWEVER, THE UNITED STATES HAS POWER TO ACT ONLY THROUGH ITS AGENTS WHOSE AUTHORITY AND THE MANNER OF EXERCISE THEREOF IS PRESCRIBED AND LIMITED BY STATUTE, REGULATION AND ADMINISTRATIVE AND JUDICIAL DETERMINATION. TO MAKE THE GOVERNMENT LIABLE FOR OTHER THAN BENEFITS RECEIVED WOULD, IN EFFECT, PERMIT AGENTS OF THE GOVERNMENT TO OBLIGATE THE UNITED STATES IN DIRECT CONTRAVENTION OF THOSE LIMITATIONS AND PRESCRIPTIONS. IN EFFECT, THE BASIC PURPOSES OF THE STATUTES, REGULATIONS AND DETERMINATIONS WOULD BE NULLIFIED. SUCH RESULT IS OPPOSED TO THE PUBLIC INTEREST.'