B-205744.OM, MAY 25, 1982

B-205744.OM, MAY 25, 1982

SUBJECT: CLAIM OF GOTZ REISEN GMBH DIGEST: CLAIMANT IS ENTITLED TO RECEIVE PAYMENT ON A QUANTUM MERUIT BASIS WHERE CLAIMANT PROVIDED BENEFITS TO THE GOVERNMENT AND ACTION IMPLIEDLY WAS RATIFIED BY CONTRACTING OFFICIALS.

ACTING GENERAL COUNSEL:

WE ARE FORWARDING THE CLAIM OF GOTZ REISEN GMBH IN THE AMOUNT OF DM 32,851. THE CLAIM AROSE FROM BUS SERVICE PROVIDED BY THE CLAIMANT TO THE UNITED STATES FOR THE PERIOD FEBRUARY 1, 1980, TO MARCH 10, 1980. THE CLAIM RAISES SEVERAL ISSUES OF DOUBT WHICH WE HAVE BEEN UNABLE TO RESOLVE.

INFORMATION IN THE FILE INDICATES THAT THE UNITED STATES HAD ENTERED INTO A CONTRACT WITH TKH STREIBIG GMBH AND CO., TO PROVIDE BUS SERVICE TO THE UNITED STATES, AND THAT STREIBIG SOLD ITS INTEREST IN THE BUSES INVOLVED TO GOTZ REISEN. APPARENTLY, GOTZ REISEN BEGAN PERFORMING THE CONTRACT ON FEBRUARY 1, 1980, AND BY LETTER DATED MARCH 20, 1980, THE CONTRACTING OFFICER ISSUED A FINAL DECISION THAT STREIBIG WAS IN DEFAULT OF THE CONTRACT AS A RESULT OF ABANDONMENT OF THE CONTRACT. GIVEN THE INFORMATION PROVIDED, SEVERAL ARGUMENTS COULD BE MADE: (1) GOTZ REISEN WAS ACTING MERELY AS A VOLUNTEER, AND, ACCORDINGLY, WOULD NOT BE ENTITLED TO PAYMENT. (2) GOTZ REISEN HAD BEEN ASSIGNED THE CONTRACT, AND SINCE THE GOVERNMENT HAD RECEIVED THE FULL BENEFIT OF THE ASSIGNMENT, THE ASSIGNMENT SHOULD BE RECOGNIZED AND GOTZ REISEN SHOULD BE PAID UNDER THE CONTRACT. (3) GOTZ REISEN PERFORMED THE CONTRACT AS A SUB-CONTRACTOR, IN WHICH CASE GOTZ REISEN WOULD NOT HAVE PRIVITY OF CONTRACT WITH THE UNITED STATES, AND WOULD NOT BE ENTITLED TO PAYMENT. (4) GOTZ REISEN PERFORMED THE SERVICES WITHOUT BENEFIT OF A CONTRACT, AND SHOULD THEREFORE BE ENTITLED TO PAYMENT ON A QM/QV BASIS.

DUE TO THE UNCERTAINTY RAISED BY THIS CLAIM, THE MATTER IS SUBMITTED FOR YOUR CONSIDERATION AND INSTRUCTIONS.

INDORSEMENT

ASSOCIATE DIRECTOR, AFMD-CLAIMS GROUP

RETURNED. PAYMENT ON A QUANTUM MERUIT BASIS - THE REASONABLE VALUE OF THE SERVICES RENDERED - IS PERMITTED IF THE GOVERNMENT RECEIVED A BENEFIT AND IF THE ACQUISITION OF THE SERVICES WAS RATIFIED BY COGNIZANT CONTRACTING OFFICIALS. DAVE JARRETT CONSTRUCTION, B-197568, FEBRUARY 12, 1980, 80-1 CPD 127. PAYMENT IS PREDICATED ON THE THEORY THAT IT WOULD BE INEQUITABLE FOR THE GOVERNMENT TO RETAIN THE BENEFIT OF ANOTHER'S LABOR WITHOUT COMPENSATION. 46 COMP.GEN. 348 (1966).

IT IS CLEAR FROM THE RECORD THAT GOETZ REISEN CONFERRED A BENEFIT ON THE UNITED STATES: BUS SERVICES FROM FEBRUARY 1, 1980 TO MARCH 10, 1980. THE ARMY'S RECOMMENDATION THAT THE CLAIM BE PAID CONSTITUTES RATIFICATION. SEE DELOSS CONSTRUCTION COMPANY, B-196004, NOVEMBER 2, 1979, 80-1 CPD 201; DAVE JARRETT CONSTRUCTION, SUPRA. THE AMOUNT CLAIMED, WHICH HAS BEEN APPROVED BY THE ARMY, OBVIOUSLY IS REASONABLE BECAUSE IT IS BASED ON THE AMOUNT THE ARMY AGREED TO PAY UNDER THE CONTRACT WITH STRIEBIG FOR THE SAME SERVICES.

ALTHOUGH THE RECORD SUPPORTS GOETZ REISEN'S CLAIM, IT ALSO INDICATES THAT THERE IS A POSSIBLE CLAIM TO THE FUNDS BY A JUDGMENT CREDITOR OF STRIEBIG. NONETHELESS, THE RECORD ALSO INCLUDES A STATEMENT BY THE ARMY'S OFFICE OF THE JUDGE ADVOCATE THAT IF OUR OFFICE APPROVES THE CLAIM ALL NECESSARY PRECAUTIONS WILL BE TAKEN TO PROTECT THE GOVERNMENT FROM INCURRING DOUBLE LIABILITY. WITH THAT PROVISO, THE CLAIM MAY BE PAID.