B-209960-OM, JUN 6, 1983

B-209960-OM, JUN 6, 1983

PRECIS-UNAVAILABLE

WE ARE FORWARDING THE CLAIM OF SHULER BUSINESS SYSTEMS, FOR PAYMENT OF $145.36, ON A QUANTUM MERUIT/QUANTUM VALEBAT BASIS.

INDORSEMENT THE CLAIM (FILE Z-2843586, ATTACHED) OF SHULER BUSINESS SYSTEMS IN THE AMOUNT OF $145.36 FOR REPAIRS MADE TO A

THE COMPTROLLER GENERAL:

THE CLAIM AROSE WHEN A SERVICEMAN FROM SHULER PERFORMED A REGULARLY SCHEDULED PREVENTIVE MAINTENANCE INSPECTION. AT THAT TIME HE MADE CERTAIN REPAIRS TO THE COPIER WITHOUT SPECIFIC AUTHORIZATION FROM ANY EMPLOYEE OF THE GOVERNMENT.

THE RECORD INDICATES THAT THE GOVERNMENT RECEIVED BENEFIT OF THE SERVICES, THE PRICE WAS FAIR AND REASONABLE, AND PAYMENT HAS BEEN RECOMMENDED BY THE CHIEF OF THE CONTRACTING DIVISION AT FORT CAMPBELL, KENTUCKY. HOWEVER, IN VIEW OF THE CIRCUMSTANCES, THE QUESTION ARISES OF WHETHER THE CONTRACTOR SHOULD BE DENIED PAYMENT BECAUSE HE ACTED AS A VOLUNTARY CREDITOR WITH RESPECT TO THE ACTUAL REPAIRS.

ACCORDINGLY, THE MATTER IS SUBMITTED FOR YOUR CONSIDERATION AND INSTRUCTIONS.

DIRECTOR, AFMD - CLAIMS GROUP

RETURNED. THIS RESPONDS TO YOUR QUESTION CONCERNING PHOTOCOPIER AT FORT CAMPBELL, KENTUCKY. THE REPAIRS WERE PERFORMED ON DECEMBER 29, 1981 WITHOUT AUTHORIZATION FROM ANY GOVERNMENT EMPLOYEE. YOU ASK WHETHER PAYMENT WOULD BE PROPER SINCE IT APPEARS SHULER ACTED AS A VOLUNTARY CREDITOR. WE BELIEVE THAT PAYMENT WOULD NOT BE PROPER.

SHULER AND THE ARMY HAD A CONTRACT TO PERFORM PREVENTIVE MAINTENANCE ON THE PHOTOCOPIER AND OTHER EQUIPMENT FROM OCTOBER 1, 1980 THROUGH SEPTEMBER 30, 1981. IT APPEARS FROM THE COPY OF THE CONTRACT IN THE CLAIM FILE THAT SHULER WAS TO BE PAID $286.87 FOR THE PERIOD, WHICH INCLUDED "INTERVENING CALLS, PARTS AND LABOR." SHULER'S SERVICEMAN PERFORMED THE REPAIRS AND REPLACED PARTS DURING WHAT WOULD HAVE BEEN A REGULARLY SCHEDULED PREVENTIVE MAINTENANCE INSPECTION. THE ARMY RECOMMENDS PAYMENT OF THE CLAIM ON GROUNDS THAT THE GOVERNMENT RECEIVED THE BENEFIT OF THE SERVICES AND PARTS AND THAT THE PRICE IS FAIR AND REASONABLE.

THE RECORD SHOWS THAT NO GOVERNMENT EMPLOYEE REQUESTED THE SERVICES AND THERE IS NO SUGGESTION OF EITHER EXPRESS OR TACIT APPROVAL OF PERFORMANCE OF THE SERVICES BY ANY GOVERNMENT EMPLOYEE WITH EVEN COLOR OF APPROVAL AUTHORITY OR, INDEED, THAT ANY EMPLOYEE EVEN KNEW ABOUT THE PERFORMANCE. RATHER, SHULER'S SERVICEMAN, WITHOUT ANY ENCOURAGEMENT FROM THE GOVERNMENT, SIMPLY ARRIVED AT THE SITE 3 MONTHS AFTER THE FIRM'S CONTRACT EXPIRED, AND FIXED THE MACHINE.

MOREOVER, WE DO NOT AGREE WITH THE ARMY THAT THE GOVERNMENT RECEIVED ANY BENEFIT FROM THE REPAIR WORK. WHILE SHULER'S INVOICE STATED THAT THE MACHINE HAD TO BE REPAIRED IN ORDER TO STOP IT FROM MAKING NOISE AND TO ADJUST LIGHTS THAT WERE NOT OPERATING PROPERLY, THE RECORD DOES NOT OTHERWISE INDICATE THAT THE REPAIRS WERE NEEDED OR THAT THE MACHINE WAS NOT OPERATING PROPERLY. THE ARMY MERELY STATES THAT SINCE THE WORK WAS DONE A BENEFIT WAS RECEIVED. ONE MONTH LATER, A CONTRACT WAS AWARDED TO SHULER TO SERVICE THIS MACHINE FOR A FLAT FEE IN EXCESS OF $500. SO FAR AS THE RECORD SHOWS, THE WORK IN QUESTION COULD HAVE BEEN PERFORMED UNDER THIS CONTRACT. IN ANY EVENT, WE SEE NO EVIDENCE THAT A BENEFIT WAS RECEIVED BY THE GOVERNMENT AS A RESULT OF THE REPAIR WORK.

UNDER THE CIRCUMSTANCES, WE SEE NO BASIS TO ALLOW THE CLAIM.