B-121612, DECEMBER 8, 1954, 34 COMP. GEN. 280

B-121612, DECEMBER 8, 1954, 34 COMP. GEN. 280

PURCHASES - OPEN MARKET AT EXCESS COST - GOVERNMENT LIABILITY PURCHASE OF WATER COOLER IN OPEN MARKET AT A PRICE IN EXCESS OF THAT FOR IDENTICAL UNIT STOCKED BY GENERAL SERVICES ADMINISTRATION IS BEYOND THE SCOPE OF THE PURCHASING OFFICER'S AUTHORITY, AND PAYMENT MAY NOT BE MADE IN AN AMOUNT IN EXCESS OF THE CONTRACT PRICE STIPULATED IN THE GENERAL SERVICES ADMINISTRATION STORES STOCK CATALOG.

ACTING COMPTROLLER GENERAL WEITZEL TO B. L. DOUGLAS, DEPARTMENT OF THE INTERIOR, DECEMBER 8, 1954:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 27, 1954 (REFERENCE F 5027- F), TRANSMITTING BUREAU VOUCHER NO. 33-475 ( BUREAU SCHEDULE NO. 33-110), STATED IN FAVOR OF CONSUMER'S ICE AND FUEL CO., EL PASO, TEXAS, IN THE AMOUNT OF $189.50 FOR ONE ELECTRIC WATER COOLER FURNISHED THE WHITE SANDS NATIONAL MONUMENT, ALAMOGORDO, NEW MEXICO, UNDER AN OPEN MARKET PURCHASE ON JUNE 22, 1954. YOU REQUEST A DECISION WHETHER THE VOUCHER PROPERLY MAY BE CERTIFIED FOR PAYMENT.

IT APPEARS THAT YOUR QUESTION AS TO THE PROPRIETY OF PAYMENT FOR THE WATER COOLER IS BASED ON THE FACT THAT WHILE THE PURCHASE WAS COMPLETED IN THE OPEN MARKET AT A PRICE OF $189.50, THE IDENTICAL UNIT WAS STOCKED IN THE GENERAL SERVICES ADMINISTRATION WAREHOUSES AND AVAILABLE AT A PRICE OF $111.88, F.O.B. WAREHOUSES.

THE OPEN MARKET PURCHASE OF THE WATER COOLER WAS MADE BY THE SUPERINTENDENT OF THE WHITE SANDS NATIONAL MONUMENT WHO STATES THAT AT THE TIME OF THE PURCHASE HE WAS NOT FAMILIAR WITH ALL DETAILED PURCHASING PROCEDURES AND WAS WITHOUT A COPY OF THE PERTINENT MANAGEMENT MANUAL. THE RECORD ESTABLISHES THAT THE STOCK ITEM IS ENTIRELY SUITABLE FOR THE USE INTENDED, AND THAT THE ADMINISTRATIVE APPLICATION FOR WAIVER WAS DENIED FOR THE REASON THE UNIT PURCHASED CONTAINED NO SPECIAL CHARACTERISTICS BEYOND THOSE INCLUDED IN THE STOCK ITEM. ASIDE FROM THE FACT THAT THE PURCHASE WAS NOT ACCOMPLISHED PURSUANT TO THE GSA REGULATIONS, IT APPEARS THAT THE TYPE OF WATER COOLER PURCHASED IS SHOWN UNDER THE PUBLISHED LISTINGS. SEE SECTION 15 F.R. 6573 AND 16 F.R. 2796 (44 C.F.R. 53.5 (J)

IT WAS THE DUTY OF THE PURCHASING OFFICER TO PURCHASE THE WATER COOLER FROM THE GENERAL SERVICES ADMINISTRATION STORES STOCK. ACCORDINGLY, THE PURCHASE MADE HERE AT A PRICE IN EXCESS OF THAT STIPULATED IN THE GENERAL SERVICES ADMINISTRATION STORES STOCK CATALOGUE WAS BEYOND THE SCOPE OF HIS AUTHORITY.

WHERE AN AGENT OF THE GOVERNMENT ACTS IN EXCESS OF THE AUTHORITY VESTED IN HIM, HIS ACT, FROM A LEGAL STANDPOINT, IS NO LONGER AN ACT OF THE GOVERNMENT. SEE COAT CORPORATION OF AMERICA V. UNITED STATES, 105 F.1SUPP. 832; FEDERAL CROP INSURANCE CORP. V. MERRILL ET AL., DOING BUSINESS AS MERRILL BROS., 332 U.S. 380, 384 AND CASES THERE CITED. SINCE THE PURCHASING OFFICER IN THIS CASE WAS AUTHORIZED TO OBLIGATE THE GOVERNMENT ONLY TO THE EXTENT OF THE PRICE STIPULATED IN THE GENERAL SERVICES ADMINISTRATION STORES STOCK CATALOGUE, PAYMENT IN EXCESS OF THAT PRICE MAY NOT BE MADE.

ACCORDINGLY, PAYMENT ON THE VOUCHER, WHICH IS RETURNED HEREWITH, IS AUTHORIZED IN AN AMOUNT NOT TO EXCEED THE PRICE STIPULATED UNDER THE SCHEDULE, PLUS TRANSPORTATION CHARGES FOR DELIVERY FROM DENVER, COLORADO, TO ALAMOGORDO, NEW MEXICO, AND DRAYAGE COST FROM THAT POINT TO DESTINATION.