B-114652, JUN 16, 1953

B-114652: Jun 16, 1953

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PRECIS-UNAVAILABLE THE SECRETARY OF THE AIR FORCE: REFERENCE IS MADE TO LETTER OF MAY 26. THE CONTRACTING OFFICER IS NOT ENTITLED TO A DECISION. IN VIEW OF THE CIRCUMSTANCES IN THE CASE A DECISION WILL BE RENDERED TO YOU. AWARD WAS MADE TO THE COMPANY AS THE HIGHEST BIDDER ON ITEMS 15. THE CONTRACTING OFFICER HAS REPORTED THAT ON THE SAME DATE THE AWARD WAS MADE THE COMPANY REQUESTED CANCELLATION OF THE CONTRACT FOR THE REASON THAT ITS SOLE PURPOSE IN BIDDING ON ITEMS 15. 38 WAS FOR RESALE OF THE ALUMINUM SALVAGE AND THAT DURING THE DELAY OF ALMOST 60 DAYS IN MAKING THE AWARD THE MARKET PRICE OF ALUMINUM HAD MATERIALLY DECLINED. IT IS WELL SETTLED THAT A VALID CONTRACT IS TO BE ENFORCED AND PERFORMED AS WRITTEN.

B-114652, JUN 16, 1953

PRECIS-UNAVAILABLE

THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO LETTER OF MAY 26, 1953, WITH ENCLOSURES, FROM THE CONTRACTING OFFICER, SAN BERNARDINO AIR MATERIEL AREA, NORTON AIR FORCE BASE, REQUESTING A DECISION RELATIVE TO THE REQUEST OF M.D. GOODRICH & CO. FOR CANCELLATION OF CONTRACT NO. AF 04(607S-397, DATED MAY 1, 1953.

SINCE THE AWARD OF THE CONTRACT HAS BEEN MADE, THE CONTRACTING OFFICER IS NOT ENTITLED TO A DECISION. SEE 26 COMP. GEN. 993; AND 28 ID. 401. HOWEVER, IN VIEW OF THE CIRCUMSTANCES IN THE CASE A DECISION WILL BE RENDERED TO YOU.

BY INVITATION NO. 04-607-S-53-11 THE SAN BERNARDINO AIR MATERIEL AREA, NORTON AIR FORCE BASE, REQUESTED BIDS - TO BE OPENED MARCH 4, 1953 - FOR THE PURCHASE FROM THE GOVERNMENT OF VARIOUS ITEMS OF SALVAGE MATERIALS. IN RESPONSE THERETO, M.D. GOODRICH & CO. SUBMITTED A BID OFFERING TO PURCHASE CERTAIN ITEMS AT THE PRICES SPECIFIED THEREIN, AND AGREEING TO THE PROVISION IN THE INVITATION FOR ACCEPTANCE WITHIN 60 DAYS, OR BY MAY 3, 1953. IT APPEARS THAT ON MAY 1, 1953, AWARD WAS MADE TO THE COMPANY AS THE HIGHEST BIDDER ON ITEMS 15, 28, 35, 38, 40, AND 56. THE CONTRACTING OFFICER HAS REPORTED THAT ON THE SAME DATE THE AWARD WAS MADE THE COMPANY REQUESTED CANCELLATION OF THE CONTRACT FOR THE REASON THAT ITS SOLE PURPOSE IN BIDDING ON ITEMS 15, 28, AND 38 WAS FOR RESALE OF THE ALUMINUM SALVAGE AND THAT DURING THE DELAY OF ALMOST 60 DAYS IN MAKING THE AWARD THE MARKET PRICE OF ALUMINUM HAD MATERIALLY DECLINED.

THE CONTRACTING OFFICER BY LETTER DATED MAY 13, 1953, DENIED THE REQUEST FOR CANCELLATION OF THE CONTRACT. IT APPEARS THAT ON THE BASIS OF A TELEPHONE CONVERSATION BETWEEN THE CONTRACTOR AND A REPRESENTATIVE OF THIS OFFICE, THE CONTRACTOR UNDERSTOOD THAT IF THE CONTRACTING OFFICER DENIED THE REQUEST FOR CANCELLATION OF THE CONTRACT, THE CONTRACTING OFFICER SHOULD TAKE UP THE MATTER WITH THIS OFFICE.

IT IS WELL SETTLED THAT A VALID CONTRACT IS TO BE ENFORCED AND PERFORMED AS WRITTEN. THE FACT THAT SUPERVENING EVENTS RENDER PERFORMANCE MORE BURDENSOME OR LESS PROFITABLE, OR EVEN OCCASION A LOSS, IS NOT SUFFICIENT TO EXCUSE PERFORMANCE IN THE ABSENCE OF SPECIFIC PROVISION THEREFOR IN THE CONTRACT. SEE COLUMBUS RAILWAY POWER & LIGHT CO. V. COLUMBUS, 249 U.S. 399, 412; 19 COMP. GEN. 903; 22 ID. 260; ID. 937. MOREOVER, IT IS WELL SETTLED THAT, IN THE ABSENCE OF A STATUTE 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. 2D 141, CERTIORARI DENIED 280 U.S. 574; PACIFIC HARDWARE & STEEL CO. V. UNITED STATES, 49 C.CLS. 327, 335; 14 COMP. GEN. 897, 900; 22 ID. 260.

THE DELAY IN MAKING THE AWARD APPEARS TO HAVE BEEN DUE TO THE FACT THAT THE COMPANY ALLEGED THAT AN ERROR WAS MADE IN ITS BID. BUT IN ANY EVENT, THE AWARD WAS MADE WITHIN THE PERIOD SPECIFIED IN THE BID THEREFOR. REGARDLESS OF THE REASON FOR DELAYING THE AWARD UNTIL NEAR THE END OF THE PERIOD ALLOWED FOR ACCEPTANCE, A VALID AND BINDING CONTRACT WAS CONSUMMATED WHICH FIXED THE RIGHT AND LIABILITIES OF THE PARTIES.

ACCORDINGLY, I FIND NO LEGAL BASIS FOR CANCELLATION OF CONTRACT NO. AF 04(607S-397 AND, THEREFORE, M.D. GOODRICH & CO. SHOULD BE REQUIRED TO COMPLY WITH THE TERMS THEREOF.

THE PAPERS ARE FORWARDED HEREWITH.