B-200036 L/M, SEP 16, 1980

B-200036 L/M, SEP 16, 1980

OFFICE OF GENERAL COUNSEL

ARISTA DEVICE CORP, MICHEL FLIEGLER:

THIS IS IN RESPONSE TO YOUR LETTER DATED AUGUST 14, 1980, REQUESTING OUR INTERPRETATION OF DEFENSE ACQUISITION REGULATION (DAR) SEC. E-502.1 WHICH DEALS WITH THE INCLUSION OF PROGRESS PAYMENTS CLAUSES IN REQUESTS FOR PROPOSALS (RFP).

WE ARE ADVISED THAT THIS INQUIRY ARISES IN CONNECTION WITH A CONTRACT INVOLVING THE PURCHASE OF PRECIOUS METALS, WHICH WAS PERFORMED BY YOUR COMPANY FOR THE ROCK ISLAND ARSENAL (ARMY). THAT CONTRACT INITIALLY MADE NO PROVISION FOR PROGRESS PAYMENTS AND SUCH PAYMENTS WERE FINALLY MADE AVAILABLE ONLY UPON YOUR PAYMENT OF A $700 CONSIDERATION.

YOUR POSITION IS THAT DAR SEC. E-502.1 MANDATES THE INCLUSION OF A PROGRESS PAYMENTS CLAUSE IN ALL RFPS AND THAT, EVEN WHEN OMITTED, THIS CLAUSE IS INCORPORATED INTO THE CONTRACT BY REFERENCE. YOU BELIEVE YOU MAY BE ENTITLED TO REIMBURSEMENT OF YOUR $700 CONSIDERATION PAYMENT ON THIS BASIS. THE CONTRACTING OFFICER CONTENDS THAT THE DAR DOES NOT REQUIRE THAT PROGRESS PAYMENTS BE AUTOMATICALLY MADE AVAILABLE IN ALL NEGOTIATED PROCUREMENTS AND, ACCORDINGLY, HAS REFUSED TO REIMBURSE THE $700.

SINCE YOUR QUESTION CONCERNS A DISAGREEMENT AS TO THE PROPRIETY OF AN ACTION TAKEN BY THE CONTRACTING OFFICER IN ADMINISTERING THE CONTRACT, IT WOULD SEEM MORE APPROPRIATELY RESOLVED UNDER THE DISPUTES PROCEDURE SET FORTH IN YOUR CONTRACT. THEREFORE, WE DO NOT BELIEVE OUR OFFICE SHOULD EXPRESS AN OPINION ON THE MATTER.

DIGEST

GAO DECLINES TO ANSWER CONTRACTOR'S INQUIRY AS TO WHETHER DAR E 502.1 REQUIRES PROGRESS PAYMENTS TO BE PERMITTED UNDER ALL RFPS, SINCE QUESTION CONCERNS POTENTIAL DISPUTE AS TO ADMINISTRATION OF CONTRACT.