B-147110, SEP. 25, 1961
Highlights
TO THE SECRETARY OF THE AIR FORCE: REFERENCE IS MADE TO A LETTER DATED AUGUST 28. THE TIRES WERE RESOLD ON SPOT BID SALE NO. 61-24 ON FEBRUARY 7. IT IS REPORTED THAT THE READVERTISING COST WAS $14.72 AND STORAGE COSTS WERE $126.72. IT IS STATED IN THE LETTER OF AUGUST 28. THAT THERE WERE CERTAIN DISCREPANCIES IN THE ADMINISTRATIVE REPORT AND THAT SEWART AIR FORCE BASE WOULD BE REQUESTED TO CORRECT THEM. IN ADDITION TO THE DISCREPANCIES LISTED AND THROUGHOUT THE FILE NO CONSIDERATION SEEMS TO HAVE BEEN GIVEN TO THE VARIATION IN QUANTITY OF $58.31 WHICH IS LISTED IN THE JUNE 29. THERE CAN BE NO QUESTION THAT UPON THE AWARD OF THE CONTRACT HEREIN THE UNITED STATES BECAME VESTED WITH THE RIGHT TO HAVE THE CONTRACT COMPLETED IN ACCORDANCE WITH ITS TERMS AND TO RECOVER ANY EXCESS COSTS IN THE EVENT OF A DEFAULT.
B-147110, SEP. 25, 1961
TO THE SECRETARY OF THE AIR FORCE:
REFERENCE IS MADE TO A LETTER DATED AUGUST 28, 1961, WITH ENCLOSURES, FILE MCSJ, FROM THE CHIEF, REDISTRIBUTION AND MARKETING DIVISION, DIRECTORATE OF SUPPLY, REQUESTING A DECISION AS TO WHETHER THE CARGO NET CORPORATION MAY BE RELIEVED OF THE DAMAGES DUE TO DEFAULT UNDER CONTRACT NO. AF 40/602/S-352, DATED JUNE 29, 1960.
BY INVITATION NO. 40-602-S-60-5 THE SEWART AIR FORCE BASE, TENNESSEE, REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF VARIOUS ITEMS OF SURPLUS PROPERTY. IN RESPONSE TO THE INVITATION, THE CONTRACTOR PLACED A BID OF $21.80 EACH ON ITEM NO. 7, CONSISTING OF 150 AIRCRAFT TIRES AND ON ITEM NO. 8 A BID OF $9.33 EACH, ALSO CONSISTING OF 25 AIRCRAFT TIRES. AUGUST 1, 1960, THE CONTRACTOR PICKED UP 10 EACH OF ITEM 7 AND MADE PAYMENT THEREFOR. HOWEVER, THE CONTRACTOR REFUSED TO PICK UP THE OTHER TIRES AND REQUESTED THAT THE CONTRACT BE TERMINATED AND THAT ITS DEPOSIT OF $856 BE REFUNDED.
THE TIRES WERE RESOLD ON SPOT BID SALE NO. 61-24 ON FEBRUARY 7, 1961, FOR A UNIT PRICE OF $6.80 FOR THE QUANTITY OF 150 TIRES AND $6.10 FOR THE QUANTITY OF 25 TIRES. IT IS REPORTED THAT THE READVERTISING COST WAS $14.72 AND STORAGE COSTS WERE $126.72.
IT IS STATED IN THE LETTER OF AUGUST 28, 1961, THAT THERE WERE CERTAIN DISCREPANCIES IN THE ADMINISTRATIVE REPORT AND THAT SEWART AIR FORCE BASE WOULD BE REQUESTED TO CORRECT THEM. IN ADDITION TO THE DISCREPANCIES LISTED AND THROUGHOUT THE FILE NO CONSIDERATION SEEMS TO HAVE BEEN GIVEN TO THE VARIATION IN QUANTITY OF $58.31 WHICH IS LISTED IN THE JUNE 29, 1960, NOTICE OF AWARD. THIS MATTER SHOULD ALSO BE BROUGHT TO THE ATTENTION OF SEWART AIR FORCE BASE.
THE RECORD SHOWS THAT DEMAND HAS BEEN MADE ON THE PURCHASER FOR THE DAMAGES DUE TO ITS DEFAULT. THERE CAN BE NO QUESTION THAT UPON THE AWARD OF THE CONTRACT HEREIN THE UNITED STATES BECAME VESTED WITH THE RIGHT TO HAVE THE CONTRACT COMPLETED IN ACCORDANCE WITH ITS TERMS AND TO RECOVER ANY EXCESS COSTS IN THE EVENT OF A DEFAULT. IN THE ABSENCE OF A STATUTE SPECIFICALLY SO PROVIDING, NO OFFICER OF THE GOVERNMENT HAS AUTHORITY TO GIVE AWAY OR SURRENDER A RIGHT VESTED IN OR ACQUIRED BY THE GOVERNMENT UNDER A CONTRACT. SEE UNITED STATES V. AMERICAN SALES CORPORATION, 27 F.2D 389, AFFIRMED 32 F. 141, AND CERTIORARI DENIED, 280 U.S. 574. SEE ALSO THE CASE OF PACIFIC HARDWARE COMPANY V. UNITED STATES, 49 CT.CL. 327.
ACCORDINGLY, YOU ARE ADVISED THAT WE FIND NO LEGAL BASIS FOR AUTHORIZING REFORMATION OR MODIFICATION OF CONTRACT NO. AF 40/602/S 352, UNLESS IT BE DETERMINED THAT THE DELAY IN THE RESALE OF THE MATERIAL WAS SO UNUSUAL AS TO BE DETRIMENTAL TO THE INTEREST OF THE CONTRACTOR.