B-129943, JAN. 28, 1957

B-129943, JAN. 28, 1957

TO MR. P. M. SULLIVAN, SPECIAL DISBURSING AGENT, UNITED STATES ARMY:

THERE HAS BEEN RECEIVED FROM THE OFFICE OF THE CHIEF OF FINANCE YOUR LETTER OF SEPTEMBER 21, 1956, TRANSMITTING A RECLAIM VOUCHER IN THE AMOUNT OF $444.62 STATED IN FAVOR OF BARBER-GREENE COMPANY, 400 NORTH HIGHLAND AVENUE, AURORA, ILLINOIS, COVERING AMOUNTS DEDUCTED FROM PAYMENTS MADE TO THE SAID COMPANY FOR SPARE PARTS FOR CONSTRUCTION EQUIPMENT FURNISHED TO THE SUPPLY DIVISION, SAN FRANCISCO DISTRICT, CORPS OF ENGINEERS. YOU REQUEST A DECISION AS TO WHETHER PAYMENT ON THE VOUCHER IS AUTHORIZED.

NEGOTIATED CONTRACT NO. DA-11-184-ENG-12831, DATED NOVEMBER 20, 1953, WAS ENTERED INTO BETWEEN THE CHICAGO PROCUREMENT OFFICE, CORPS OF ENGINEERS, UNITED STATES ARMY, AND BARBER-GREENE COMPANY. UNDER THE PROVISIONS OF THE CONTRACT, THE COMPANY WAS OBLIGATED TO FURNISH DURING THE PERIOD DECEMBER 1, 1953, TO NOVEMBER 30, 1954, AN INDEFINITE QUANTITY OF SPARE PARTS FOR CONSTRUCTION EQUIPMENT MANUFACTURED BY IT. THE PARTS WERE TO BE FURNISHED F.O.B. THE CONTRACTOR'S FACTORY, AURORA, ILLINOIS, PACKED FOR DOMESTIC SHIPMENT, INSPECTION AND ACCEPTANCE TO BE AT THE FACTORY, IN SUCH AMOUNTS AS SPECIFIED IN DELIVERY ORDERS TO BE PLACED BY CERTAIN GOVERNMENT OFFICIALS DESIGNATED IN THE CONTRACT, INCLUDING THE DISTRICT ENGINEER, SAN FRANCISCO DISTRICT, SAN FRANCISCO, CALIFORNIA. THE PRICES FIXED WERE THOSE SET FORTH IN THE CONTRACTOR'S PARTS PRICE LIST BULLETIN DATED JULY 1, 1953, LESS 15 PERCENT TRADE DISCOUNT.

AN AUTHENTICATED COPY OF THE CONTRACT WAS NOT RECEIVED IN THE SAN FRANCISCO DISTRICT UNTIL APRIL 21, 1954. PRIOR TO RECEIPT OF SUCH COPY BUT AFTER THE EFFECTIVE DATE OF THE CONTRACT, THE CONTRACTING OFFICER OF THE SAN FRANCISCO DISTRICT REQUESTED WRITTEN QUOTATIONS FROM BARBER GREENE COMPANY AND ISSUED PURCHASE ORDERS UNDER WHICH SPARE PARTS WERE FURNISHED BY THE COMPANY AND PAID FOR WITHOUT DEDUCTING TRADE DISCOUNT. MOST OF THE PURCHASE ORDERS PROVIDED FOR INSPECTION AND ACCEPTANCE AT DESTINATION INSTEAD OF AT THE FACTORY AS PROVIDED IN THE CONTRACT.

DELIVERY ORDER NO. 37-96679-07 DATED MAY 27, 1954, ISSUED UNDER THE CONTRACT, CONFORMED TO THE PROVISIONS OF THE CONTRACT EXCEPT WITH RESPECT TO DISCOUNT, AND PAYMENT WAS MADE UNDER THE DELIVERY ORDER WITHOUT DEDUCTING TRADE DISCOUNT.

SUBSEQUENTLY, ON THE BASIS OF EXCEPTIONS BY THE GENERAL ACCOUNTING OFFICE AUDIT BRANCH, INDIANAPOLIS, INDIANA, COLLECTION OF 15 PERCENT OF THE AGGREGATE AMOUNT OF ALL ORDERS ($444.62) WAS MADE BY VOUCHER DEDUCTIONS AND IT IS THAT AMOUNT WHICH THE CONTRACTOR SEEKS TO RECOVER ON THE RECLAIM VOUCHER.

IN 8 COMP. GEN. 495, IT WAS HELD (QUOTING SYLLABUS):

"WHERE THE NAVY DEPARTMENT IN CONTRACTING FOR GASOLINE INCLUDED THE NEEDS OF THE COAST GUARD ALL PURCHASES BY THE LATTER SERVICE SHOULD BE MADE IN ACCORDANCE THEREWITH, AND PAYMENT FOR GASOLINE PURCHASED IN THE OPEN MARKET AT A PRICE IN EXCESS OF THE EXISTING CONTRACT PRICE IS NOT AUTHORIZED, ANY PAYMENT THEREFORE BEING LIMITED TO THE CONTRACT PRICE.'

IN THAT DECISION IT WAS STATED:

"IT BEING THE DUTY OF THE PURCHASING OFFICER, ACTING FOR AND IN BEHALF OF THE UNITED STATES, TO PURCHASE THE GASOLINE UNDER THE CONTRACT IN QUESTION THE PURCHASE THEREOF BY SAID OFFICER IN THE OPEN MARKET AT A PRICE IN EXCESS OF THAT STIPULATED IN THE CONTRACT 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. THE UNDERWRITER, 6 FED.REP./2D) 937. THE GOVERNMENT'S AGENTS OR OFFICERS HAVE ONLY LIMITED POWER AND CERTAIN PRESCRIBED DISCRETION, AND PERSONS DEALING WITH SUCH AGENTS OR OFFICERS MUST, UNDER ALL CIRCUMSTANCES, SEE FOR THEMSELVES THAT SUCH AUTHORITY IS NOT EXCEEDED. THE UNAUTHORIZED ACTS OF SUCH AGENTS CAN NOT OBLIGATE THE GOVERNMENT. FILOR V. UNITED STATES, 9 WALL. 45; WHITESIDE V. UNITED STATES, 93 U.S. 247, 256; 5 COMP. GEN. 124; 6 ID. 158; A-23427, JULY 13, 1928. SINCE THE PURCHASING OFFICER IN THIS CASE WAS AUTHORIZED TO OBLIGATE THE GOVERNMENT ONLY AT THE PRICE STIPULATED IN THE THEN EXISTING CONTRACT, PAYMENT IN EXCESS OF THAT AMOUNT MAY NOT BE MADE UNDER THE APPROPRIATION INVOLVED.'

SEE ALSO 5 COMP. GEN. 124; ID. 967; 6 ID. 158.

IT MAY BE ADDED THAT IN THE INSTANT MATTER THE CONTRACTOR WAS ON ACTUAL NOTICE, BY THE SPECIFIC PROVISIONS OF THE CONTRACT, THAT THE SAN FRANCISCO DISTRICT, CORPS OF ENGINEERS, WAS ENTITLED TO THE TRADE DISCOUNT SPECIFIED IN THE CONTRACT.

IN VIEW OF THE FOREGOING, IT IS HELD THAT NO PAYMENT ON THE RECLAIM VOUCHER IS AUTHORIZED, IRRESPECTIVE OF WHETHER THE CONTRACTING OFFICER HAD RECEIVED A COPY OF THE CONTRACT OR OTHER PERTINENT NOTICE OR WHETHER THE PROVISIONS OF THE REQUESTS FOR QUOTATIONS, THE QUOTATIONS, THE PURCHASE ORDERS OR THE DELIVERY ORDERS DIFFER FROM THE CONTRACT PROVISIONS.