B-128375, FEB. 12, 1962
Highlights
ESQUIRE: WE HAVE YOUR LETTER OF JANUARY 18. IN THE CITED DECISION WE STATED THAT STANDBY COSTS ACTUALLY INCURRED AND ATTRIBUTABLE TO PERFORMANCE PRIOR TO TERMINATION FOR CONVENIENCE MAY BE INCLUDED IN A SETTLEMENT FOR CONVENIENCE WHENEVER THEIR INCLUSION IS PROPER WITHIN THE PURVIEW OF ASPR 8-301. THAT THE ONLY PROPER VEHICLE FOR COMPENSATION FOR SUCH COSTS IS. YOU QUESTION WHETHER THE SUCCESSOR CONTRACTING OFFICER IN ENTERING INTO ANY SUPPLEMENTAL SETTLEMENT AGREEMENT MAY LEGALLY ACCEPT THE FACTUAL RECOMMENDATIONS OF HIS PREDECESSOR OR WHETHER HE IS OBLIGED TO MAKE AN INDEPENDENT REVIEW OF THE ENTIRE MATTER. IN OUR OPINION HE IS NOT OBLIGED TO MAKE SUCH AN INDEPENDENT REVIEW. IS VESTED WITH A CONSIDERABLE DEGREE OF AUTHORITY TO BIND THE GOVERNMENT.
B-128375, FEB. 12, 1962
TO E. K. GUBIN, ESQUIRE:
WE HAVE YOUR LETTER OF JANUARY 18, 1962, WITH ENCLOSURE, REQUESTING ON BEHALF OF THE DOUGLAS CORPORATION CLARIFICATION OF A SENTENCE IN OUR DECISION, B-128375, DECEMBER 5, 1961, TO THE SECRETARY OF THE ARMY, CONCERNING THE PROPRIETY FOR CONSIDERATION BY THE CONTRACTING OFFICER OF CERTAIN ELEMENTS OF A CLAIM ARISING OUT OF THE TERMINATION FOR CONVENIENCE BY THE GOVERNMENT OF CONTRACTS BETWEEN THE DOUGLAS CORPORATION AND THE PHILADELPHIA QUARTERMASTER DEPOT.
IN THE CITED DECISION WE STATED THAT STANDBY COSTS ACTUALLY INCURRED AND ATTRIBUTABLE TO PERFORMANCE PRIOR TO TERMINATION FOR CONVENIENCE MAY BE INCLUDED IN A SETTLEMENT FOR CONVENIENCE WHENEVER THEIR INCLUSION IS PROPER WITHIN THE PURVIEW OF ASPR 8-301, AS DETERMINED BY THE CONTRACTING OFFICER. WE STATED FURTHER, HOWEVER, THAT THE ONLY PROPER VEHICLE FOR COMPENSATION FOR SUCH COSTS IS, UNDER ASPR 8-209.2, AN ADDITIONAL SETTLEMENT AGREEMENT OR DETERMINATION BY THE CONTRACTING OFFICER.
IN VIEW OF THE FACT THAT THE CONTRACTING OFFICER WHO ORIGINALLY PARTICIPATED IN THE NEGOTIATIONS HAS BEEN REPLACED, YOU QUESTION WHETHER THE SUCCESSOR CONTRACTING OFFICER IN ENTERING INTO ANY SUPPLEMENTAL SETTLEMENT AGREEMENT MAY LEGALLY ACCEPT THE FACTUAL RECOMMENDATIONS OF HIS PREDECESSOR OR WHETHER HE IS OBLIGED TO MAKE AN INDEPENDENT REVIEW OF THE ENTIRE MATTER. IN OUR OPINION HE IS NOT OBLIGED TO MAKE SUCH AN INDEPENDENT REVIEW.
THE CONTRACTING OFFICER, IN NEGOTIATING SETTLEMENT AGREEMENTS, IS VESTED WITH A CONSIDERABLE DEGREE OF AUTHORITY TO BIND THE GOVERNMENT. THAT AUTHORITY IS BROAD AND FAR REACHING, BUT IT MUST OF COURSE BE EXERCISED WITH DISCRETION. ALTHOUGH HE MAY RELY TO WHATEVER EXTENT HE DEEMS APPROPRIATE ON THE FACTS AND RECOMMENDATIONS DEVELOPED BY HIS PREDECESSORS, THE DECISION ONCE MADE IS THAT OF THE SIGNING CONTRACTING OFFICER ALONE. SO LONG AS THE SIGNING CONTRACTING OFFICER IS SATISFIED THAT THE SETTLEMENT AGREEMENT OR THE DETERMINATION IS CONSISTENT WITH THE PROPER EXECUTION OF HIS DUTIES AS A REPRESENTATIVE OF THE GOVERNMENT, THE DEGREE TO WHICH SUCH DETERMINATION MAY BE INFLUENCED BY THE RECOMMENDATIONS OF A PREDECESSOR CONTRACTING OFFICER WOULD NOT, SUBJECT TO ANY ADMINISTRATIVE REQUIREMENTS IMPOSED BY DEPARTMENTAL OR AGENCY REGULATIONS OR DIRECTIVES, AFFECT ITS VALIDITY.
A COPY OF THIS LETTER IS BEING FURNISHED TO THE GENERAL COUNSEL, DEFENSE CLOTHING AND TEXTILE SUPPLY CENTER.