B-151796, JUN. 23, 1964

B-151796, JUN. 23, 1964

TO ANCHOR COUPLING COMPANY, INCORPORATED:

WE REFER TO YOUR LETTER DATED JUNE 4, 1964, REQUESTING RECONSIDERATION OF OUR DECISION TO YOU, B-151796, APRIL 29, 1964, IN WHICH WE DENIED YOUR CLAIM FOR $2,067.87. THIS CLAIM REPRESENTED YOUR COST FOR THE PURCHASE OF MIL-H-13531 HOSE WHICH WAS TO BE USED IN CONNECTION WITH CONTRACT NO. DA- 20-113-AMC-1560/T) AWARDED TO YOU BY THE UNITED STATES TANK-AUTOMOTIVE CENTER, DETROIT ARSENAL, CENTER LINE, MICHIGAN, AND YOU ALLEGED THAT THE MIL-H13531 HOSE WAS SURPLUS STOCK. IN OUR LETTER TO YOU OF APRIL 29, 1964, WE ADVISED YOU THAT YOUR CONTRACT WITH THE ARMY WAS INVALID SINCE THE AWARD TO YOU WAS NOT TO THE LOW BIDDER AND WE DENIED YOUR CLAIM FOR THE COSTS INCURRED IN THE PURCHASE OF THE MIL-H-13531 HOSE SINCE IT HAD NOT BEEN SHOWN THAT ANY TANGIBLE BENEFITS WERE CONFERRED ON THE GOVERNMENT. IN THIS CONNECTION WE CITED UNITED STATES V. MISSISSIPPI VALLEY GENERATING COMPANY, 364 U.S. 520, FOR THE PROPOSITION THAT THERE IS NO RECOVERY QUANTUM VALEBAT UNDER AN INVALID CONTRACT WHICH IS CANCELLED UNLESS IT IS SHOWN THAT THE GOVERNMENT RECEIVED AND RETAINED TANGIBLE BENEFITS FROM THE OTHER PARTY.

YOUR LETTER OF JUNE 4, 1964, ALLEGES THAT TANGIBLE BENEFITS WERE CONFERRED ON THE GOVERNMENT. IN SUPPORT OF THIS ASSERTION YOU QUOTE THE FOLLOWING LANGUAGE FROM THE "TERMINATION FOR THE CONVENIENCE OF THE GOVERNMENT" CLAUSE:

" "/VI) TRANSFER TITLE AND DELIVER TO THE GOVERNMENT, IN THE MANNER, AND AT THE TIMES, AND TO THE EXTENT, IF ANY, DIRECTED BY THE CONTRACTING OFFICER, (A) THE FABRICATED OR UNFABRICATED PARTS, WORK IN PROCESS, COMPLETED WORK, SUPPLIES, AND OTHER MATERIAL PRODUCED AS A PART OF, OR ACQUIRED IN CONNECTION WITH THE PERFORMANCE OF THE WORK TERMINATED BY THE NOTICE OF TERMINATION . . .'"

YOU STATE THAT ON NOVEMBER 19, 1964, YOU TENDERED THE MIL-H-13531 HOSE TO THE CONTRACTING OFFICER, THAT PURSUANT TO THE ABOVE CLAUSE THE CONTRACTING OFFICER WAS REQUIRED TO INSTRUCT YOU REGARDING THE DISPOSITION OF THE HOSE, THAT NO INSTRUCTIONS WERE RECEIVED FROM THE CONTRACTING OFFICER, THAT THE HOSE THEREFORE REMAINED AT THE DISPOSAL OF THE GOVERNMENT AND THAT THESE CONSIDERATIONS CONSTITUTE THE CONFERRING OF TANGIBLE BENEFITS ON THE GOVERNMENT.

A REVIEW OF YOUR LETTER TO OUR OFFICE DATED DECEMBER 30, 1963, INDICATES THAT YOUR CONTRACT WAS CANCELLED ON NOVEMBER 9, 1963, AND YOUR LETTER DATED JUNE 4, 1964, STATES THAT YOU TENDERED THE HOSE TO THE CONTRACTING OFFICER ON NOVEMBER 19, 1963. THE RECORD CLEARLY INDICATES THAT YOU DID NOT MAKE YOUR ALLEGED TENDER OF THE MIL-H-13531 HOSE TO THE GOVERNMENT UNTIL AFTER THE CANCELLATION OF YOUR INVALID CONTRACT; CONSEQUENTLY, WE FIND THAT THERE WAS NO CONTRACTUAL RELATIONSHIP BETWEEN YOU AND THE GOVERNMENT AT THE TIME OF YOUR ALLEGED TENDER. IN THESE CIRCUMSTANCES IN THE "TERMINATION FOR THE CONVENIENCE OF THE GOVERNMENT" CLAUSE WOULD NOT BE APPLICABLE TO IMPOSE ANY OBLIGATIONS ON THE CONTRACTING OFFICER AT THE TIME OF YOUR ALLEGED TENDER. FOR THESE REASONS WE CONCLUDE THAT IT HAS NOT BEEN SHOWN IN YOUR LETTER OF JUNE 4, 1964, THAT ANY TANGIBLE BENEFITS WERE CONFERRED ON THE GOVERNMENT; CONSEQUENTLY, THE CONCLUSIONS IN OUR DECISION B-151796, APRIL 29, 1964, ARE AFFIRMED.