B-121660, OCT. 25, 1955

B-121660, OCT. 25, 1955

TO JOHN J. MOYLAN AND CO.:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 9, 1955, WHEREIN YOU RENEW YOUR PROTEST AGAINST THE BASIS UPON WHICH SETTLEMENT WAS MADE OF YOUR CLAIM FOR FREIGHT FORWARDING SERVICES RENDERED THE GENERAL SERVICES ADMINISTRATION FOR THE TWO-YEAR PERIOD FOLLOWING EXPIRATION OF YOUR CONTRACT NO. EC-TS-791, DATED JUNE 20, 1950, COVERING SIMILAR SERVICES.

IN SUPPORT OF YOUR CONTENTION THAT YOU PROPERLY ARE ENTITLED TO "FULL BROKERAGE PAYMENTS" FOR THE SERVICES RENDERED THE GOVERNMENT THROUGHOUT THIS PERIOD, RATHER THAN THE QUANTUM MERUIT SETTLEMENT OF $1,881.10 WHICH WAS BASED UPON THE SCHEDULE OF RATES SET FORTH IN YOUR PRECEDING CONTRACT FOR SIMILAR SERVICES, YOU REFER TO CONVERSATIONS HAD WITH CERTAIN OFFICIALS IN THE GENERAL SERVICES ADMINISTRATION HERE IN WASHINGTON WHEREIN YOU WERE GIVEN ASSURANCES BY THEM THAT YOU EVENTUALLY WOULD BE COMPENSATED TO THE EXTENT OF FAIR VALUE OF THEIR FREIGHT FORWARDING SERVICES RENDERED BY YOU AT THE REQUEST OF THAT AGENCY. YOU ALSO ALLEGE THAT FREIGHT FORWARDERS IN THE EAST COAST AND GULF PORT AREAS WERE PAID FULL BROKERAGE FOR IDENTICAL SERVICES PERFORMED DURING THIS SAME PERIOD, DUE ALLEGEDLY TO THE FACT THAT THE STEAMSHIP CONFERENCES FOR THOSE PORT AREAS DID NOT REQUIRE A BROKERAGE POWER OF ATTORNEY AS A CONDITION PRECEDENT TO PAYMENT. AS A CONSEQUENCE, YOU FEEL THAT THE GOVERNMENT'S ACTION WITH RESPECT TO YOUR PRESENT CLAIM WAS DISCRIMINATORY.

HOWEVER THAT MAY BE, YOUR ATTENTION AGAIN IS DIRECTED TO RULE 30/C), PACIFIC WESTBOUND CONFERENCE LOCAL TARIFF I-V, EFFECTIVE MARCH 12, 1951, WHICH SPECIFICALLY REQUIRES THAT A POWER OF ATTORNEY BE FURNISHED AUTHORIZING THE FREIGHT FORWARDER TO BOOK SHIPMENTS FOR THE SHIPPER, IN ORDER TO ENTITLE THE FORMER TO RECEIVE PAYMENTS DIRECTLY FROM THE SHIPPER. CONCEDEDLY NO SUCH POWER OF ATTORNEY HAD BEEN FURNISHED YOU BY THE SHIPPER--- THE GOVERNMENT--- IN THIS INSTANCE AND, HENCE, YOU MUST HAVE BEEN COGNIZANT OF YOUR INABILITY, UNDER THE AFORESAID RULE, TO COLLECT FULL BROKERAGE DIRECTLY FROM THE CARRIERS HERE INVOLVED.

CONCERNING THE REPORTED CONTEXT OF WHAT TRANSPIRED DURING THE COURSE OF SEVERAL CONFERENCES HELD SOMETIME AGO BETWEEN ONE OF YOUR REPRESENTATIVES AND CERTAIN OFFICERS OR EMPLOYEES OF THE GENERAL SERVICES ADMINISTRATION, IT MUST BE REMEMBERED THAT THE ESSENTIAL FUNCTIONS OF THE UNITED STATES GOVERNMENT NECESSARILY ARE PERFORMED BY ITS DULY APPOINTED OR AUTHORIZED OFFICERS WHILE ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT AND, IN THIS CONNECTION, THE COURTS, AS WELL AS THIS OFFICE, REPEATEDLY HAVE HELD THAT INDIVIDUALS DEALING WITH THE GOVERNMENT MUST TAKE NOTICE OR COGNIZANCE OF THE EXTENT OF THE AUTHORITY CONFERRED BY LAW UPON A PERSON ACTING IN AN OFFICIAL CAPACITY. SEE HAWKINS V. UNITED STATES, 96 U.S. 689, 691-692; WHITESIDE V. UNITED STATES, 93 U.S. 267; 18 COMP. GEN. 568, 571-572; 22 ID. 915, 917. HERE, IT APPEARS THAT THE GOVERNMENT AGENTS WHO WERE CONTACTED BY YOUR REPRESENTATIVE WHILE IN WASHINGTON, DID NOT POSSESS THE AUTHORITY TO AFFIRMATIVELY COMMIT OR OBLIGATE THE GOVERNMENT, BY CONTRACT OR OTHERWISE, TO MAKE FULL BROKERAGE PAYMENTS TO YOU FOR THE FREIGHT FORWARDING SERVICES RENDERED. HENCE, ANY ASSURANCES OR PROMISES MADE BY THEM TO YOUR REPRESENTATIVE AT THE TIME NECESSARILY MUST BE REGARDED AS ACTS PERFORMED OUTSIDE THE SCOPE OF THEIR LAWFUL AUTHORITY AND, THEREFORE, WERE NOT EFFECTUAL IN CREATING A LAWFUL OBLIGATION UPON THE UNITED STATES. SEE LEE V. MONROE, 7 CRANCH 366.

IN REPORTING TO US RELATIVE TO THE FREIGHT FORWARDING SERVICES PERFORMED BY YOU WITHOUT BENEFIT OF CONTRACT, THE GENERAL SERVICES ADMINISTRATION HAS ACKNOWLEDGED THAT CERTAIN SERVICES WERE PERFORMED WITH THEIR KNOWLEDGE AND CONSENT, AND, THEREFORE, HAS RECOMMENDED THAT YOU BE COMPENSATED THEREFORE UPON THE SAME BASIS AS THAT ESTABLISHED FOR SIMILAR SERVICES THERETOFORE PERFORMED UNDER YOUR EXPIRED CONTRACT NO. EC-TS-791, THAT IS, $7.50 MINIMUM CHARGE PER SHIPMENT, OR $0.06 1/2 PER REVENUE TON, WHICHEVER WAS GREATER. THIS RECOMMENDATION WAS ADOPTED BY US AS A FAIR AND REASONABLE BASIS FOR THE SETTLEMENT OF YOUR CLAIM, AND ACCORDINGLY, UNDER DATE OF JULY 27, 1955, WE ISSUED CERTIFICATE OF SETTLEMENT NO. 2263595, AUTHORIZING PAYMENT TO YOU IN THE AMOUNT OF $1,881.10. THE BASIC REASONS UNDERLYING OUR ACTION IN THE PREMISES ARE FULLY EXPLAINED IN OUR DECISION OF JULY 20, 1955, TO YOU.

IN THE CIRCUMSTANCES, AND IN THE ABSENCE OF ANY NEW OR ADDITIONAL EVIDENCE WHICH MIGHT SERVE TO JUSTIFY A REVERSAL OR MODIFICATION OF OUR PREVIOUS ACTION IN THE MATTER, WE ARE LEFT WITH NO ALTERNATIVE BUT TO AFFIRM THE ACTION TAKEN IN OUR SETTLEMENT OF JULY 27, 1955.

THE CHECK WHICH ACCOMPANIED YOUR LETTER OF SEPTEMBER 9 IS RETURNED HEREWITH.