B-160388, DEC. 1, 1966

B-160388, DEC. 1, 1966

TO THE ACCOUNTING AND FINANCE OFFICER, BOLLING AIR FORCE BASE:

THIS IS IN REPLY TO YOUR REQUEST OF OCTOBER 28, 1966, REFERENCE CAF, FOR AN ADVANCE DECISION UNDER 31 U.S.C. 74 RESPECTING THE AUTHORITY OF THE DEPARTMENT OF THE AIR FORCE TO PAY THE ATTACHED CLAIM OF A CIVILIAN PSYCHIATRIST FOR $15 FOR HIS TIME SPENT IN AN INTERVIEW WITH A SPECIAL AGENT OF THE DEPARTMENT. THE LATTER IN THE COURSE OF A SECURITY INVESTIGATION WAS SEEKING INFORMATION CONCERNING PSYCHIATRIC TREATMENT THE DOCTOR HAD GIVEN AN EMPLOYEE OF AN AIR FORCE CONTRACTOR.

WE UNDERSTAND THAT PRIOR TO THE INTERVIEW THE DOCTOR DID NOT INDICATE THAT HE WOULD CHARGE FOR HIS SERVICES. THE RECORD FURTHER INDICATES THAT PHYSICIANS DO NOT NORMALLY CHARGE FOR INFORMATION FURNISHED ON BEHALF OF THEIR PATIENTS. OUR OFFICE HAS BEEN INFORMALLY ADVISED THAT THE AGENT IN THIS CASE DID NOT POSSESS CONTRACTING AUTHORITY.

THE FACTS IN THE FOREGOING DO NOT GIVE RISE TO AN EXPRESS CONTRACT EITHER ORAL OR WRITTEN. THERE WAS NO AGREEMENT TO CONSIDER THE INTERVIEW AS SERVICES RENDERED WITH AN OBLIGATION TO PAY FOR THE SAME. NOR WAS THERE ANY ACT ON THE PART OF THE GOVERNMENT AGENT FROM WHICH A CONTRACT COULD BE INFERRED. MOREOVER, SINCE THE INVESTIGATOR DID NOT HAVE AUTHORITY TO CONTRACT ON BEHALF OF THE GOVERNMENT AN IMPLIED CONTRACT TO PAY FOR THE REASONABLE VALUE OF THE SERVICES COULD NOT ARISE. AS WE SAID IN 18 COMP. GEN. 568 AT 572:

"WHERE GOODS ARE FURNISHED OR SERVICES ARE RENDERED ON THE REQUEST OR ORDER OF AN OFFICER WHO IS AUTHORIZED TO CONTRACT FOR THE UNITED STATES AND TO PROCURE SUCH GOODS OR SERVICES FOR THE USE OF THE UNITED STATES, THERE IS RECOGNIZED AN IMPLIED CONTRACT TO PAY THE REASONABLE VALUE OF SUCH GOODS AND SERVICES ACTUALLY FURNISHED WHEN THE CONTRACT ITSELF IS VOID BECAUSE NOT EXECUTED IN THE FORM REQUIRED BY LAW. SEE CLARK V. UNITED STATES, 95 U.S. 539; ST. LOUIS HAY AND GRAIN CO. V. UNITED STATES, 191 U.S. 159; DANOLD V. UNITED STATES, 5 CT.CLS. 65. BUT IF THE OFFICER OR EMPLOYEE WHO MAKES THE ARRANGEMENT HAS NO AUTHORITY TO CONTRACT FOR OR TO PROCURE SUCH GOODS AND SERVICES FOR THE GOVERNMENT, NO CONTRACT, IMPLIED OR OTHERWISE, CAN BE CREATED BY THE DELIVERY OF GOODS OR RENDITION OF SERVICES AT HIS REQUEST, EVEN THOUGH IT APPEARS THAT THE GOVERNMENT MAY HAVE BEEN BENEFITED THEREBY. IN STOLTS ASS-N V. UNITED STATES, 66 CT.CLS. 1, 8, THE COURT SAID:

"* * * WHERE CONTRACTS TO PAY HAVE BEEN IMPLIED IN DEALINGS WITH THE GOVERNMENT THE QUESTION OF AUTHORITY TO ACT HAS BEEN ESTABLISHED. * * *"

SEE, ALSO, HAWKINS V. UNITED STATES, 96 U.S. 689; PLUMLEY V. UNITED STATES, 226 U.S. 545; BALTIMORE AND OHIO RAILROAD CO. V. UNITED STATES, 261 U.S. 592; REED'S SONS V. UNITED STATES, 273 U.S. 200; DRISCOLL V. UNITED STATES, 34 CT.CLS. 508, 524; BARLOW V. UNITED STATES, 35 CT.CLS. 514, 547; GOETZ, TRUSTEE V. UNITED STATES, 66 CT.CLS. 17.

"THE GOVERNMENT CAN FUNCTION ONLY THROUGH THE ACTS OF ITS AGENTS ACTING WITHIN THE LIMITS OF THEIR LAWFUL AUTHORITY. FLOYD'S ACCEPTANCES, 7 WALL. 666. WERE THE RULE OTHERWISE THERE WOULD BE NO LIMIT TO THE OBLIGATIONS WHICH MIGHT BE IMPOSED ON THE GOVERNMENT BY-- OR TO THE CHAOS WHICH WOULD RESULT FROM--- THE THE UNAUTHORIZED ACTS OF OFFICERS AND EMPLOYEES PURPORTING TO ACT ACCORDING TO THEIR CONCEPTS OF WHAT MIGHT BE GENERALLY IN THE PUBLIC INTEREST, OR OTHERWISE.'

WHAT WAS SAID IN THE FOREGOING DECISION IS EQUALLY FOR APPLICATION HERE AS PRECLUDING ALLOWANCE TO DR. PILE OF THE AMOUNT CLAIMED ON THE THEORY THAT THERE WAS AN IMPLIED CONTRACT FOR HIS SERVICES.

ON THE BASIS OF THE FOREGOING PAYMENT OF THE SUBMITTED VOUCHER IS NOT AUTHORIZED AND THE VOUCHER WILL BE RETAINED HERE.