B-128442, AUGUST 1, 1956, 36 COMP. GEN. 72

B-128442: Aug 1, 1956

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1956: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 28. WE HAVE RECEIVED A REPORT FROM THE ARMED SERVICES MEDICAL PROCUREMENT AGENCY INDICATING THAT BIDS WERE REQUESTED FOR 210 PORTABLE RESUSCITATOR- INHALATOR-ASPIRATOR UNITS. THAT CONTRACT WAS TERMINATED FOR DEFAULT ON MARCH 29. AN APPEAL UNDER THE DISPUTES CLAUSE OF THE CONTRACT WAS MADE TO THE SECRETARY OF THE ARMY BY LETTER DATED APRIL 6. IT WAS DETERMINED THAT THE VALVES SUBMITTED IN ACCORDANCE WITH THIS AGREEMENT DID NOT MEET THE APPLICABLE SPECIFICATION. A TELEGRAM WAS SENT TO THE SECRETARY OF THE ARMY ADVISING THAT THE APPEAL FROM THE DEFAULT TERMINATION ACTION WAS BEING REINSTATED. QUESTIONS WERE RAISED PARTICULARLY WITH RESPECT TO THE LABORATORY FINDINGS MADE IN CONNECTION WITH THE CYCLING VALVES WHICH WERE SUBMITTED AFTER APRIL 13.

B-128442, AUGUST 1, 1956, 36 COMP. GEN. 72

CONTRACTS - TERMINATION - DISPUTES - PROCUREMENT FROM ANOTHER SOURCE THE AWARD OF A CONTRACT FOR PROCUREMENT OF SUPPLIES FROM ANOTHER SOURCE FOLLOWING THE TERMINATION OF THE ORIGINAL CONTRACT FOR DEFAULT NEED NOT BE DEFERRED PENDING A DECISION ON THE CONTRACTOR'S APPEAL FROM THE DEFAULT TERMINATION ACTION.

TO GLOBE INDUSTRIES, INC., AUGUST 1, 1956:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 28, 1956, REQUESTING THAT ACTION BE TAKEN TO DEFER THE MAKING OF AN AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. MPA-30-287-MD-56-826, ISSUED ON JUNE 6, 1956, BY THE ARMED SERVICES MEDICAL PROCUREMENT AGENCY.

WE HAVE RECEIVED A REPORT FROM THE ARMED SERVICES MEDICAL PROCUREMENT AGENCY INDICATING THAT BIDS WERE REQUESTED FOR 210 PORTABLE RESUSCITATOR- INHALATOR-ASPIRATOR UNITS. YOUR COMPANY HAD FAILED TO FURNISH THE REQUIRED UNITS UNDER NEGOTIATED CONTRACT NO. OIN-53645, DATED JUNE 28, 1955, WHICH PROVIDED FOR DELIVERY ON OR BEFORE SEPTEMBER 1, 1955. THAT CONTRACT WAS TERMINATED FOR DEFAULT ON MARCH 29, 1956, AND AN APPEAL UNDER THE DISPUTES CLAUSE OF THE CONTRACT WAS MADE TO THE SECRETARY OF THE ARMY BY LETTER DATED APRIL 6, 1956. ALTHOUGH TWO PREPRODUCTION MODELS HAD BEEN REJECTED AS NOT MEETING SPECIFICATIONS, THE AGENCY AGREED ON OR ABOUT APRIL 13, 1956, TO RECONSIDER THE DEFAULT TERMINATION ACTION IF YOUR COMPANY WOULD SUBMIT ADDITIONAL CYCLING VALVES FOR INSPECTION. HOWEVER, ON JUNE 5, 1956, IT WAS DETERMINED THAT THE VALVES SUBMITTED IN ACCORDANCE WITH THIS AGREEMENT DID NOT MEET THE APPLICABLE SPECIFICATION.

YOUR COMPANY SUBMITTED A QUALIFIED BID UNDER INVITATION NO. MPA-30 287-MD -56-826, AND ON JUNE 26, 1956, WHEN IT BECAME APPARENT THAT THE AWARD OF THE CONTRACT WOULD BE MADE TO THE STEPHENSON CORPORATION, RED BANK, NEW JERSEY, A TELEGRAM WAS SENT TO THE SECRETARY OF THE ARMY ADVISING THAT THE APPEAL FROM THE DEFAULT TERMINATION ACTION WAS BEING REINSTATED. IN A LETTER DATED JUNE 27, 1956, SUPPLEMENTING THE ORIGINAL APPEAL, QUESTIONS WERE RAISED PARTICULARLY WITH RESPECT TO THE LABORATORY FINDINGS MADE IN CONNECTION WITH THE CYCLING VALVES WHICH WERE SUBMITTED AFTER APRIL 13, 1956.

IT HAS BEEN REPORTED THAT THE AWARD UNDER INVITATION NO. MPA-30-287 MD-56 -826 WAS MADE ON JUNE 29, 1956, TO THE STEPHENSON CORPORATION AND THAT YOUR COMPANY'S APPEAL FROM THE DEFAULT TERMINATION ACTION TAKEN UNDER NEGOTIATED CONTRACT NO. OIN-53645 IS NOW PENDING BEFORE THE ARMED SERVICES BOARD OF CONTRACT APPEALS. APPARENTLY, YOUR COMPANY WILL BE AFFORDED EVERY OPPORTUNITY OF A HEARING BEFORE THE BOARD.

WHEN A CONTRACTOR HAS BEEN DECLARED IN DEFAULT AND THE CONTRACTOR HAS APPEALED FROM THE FINDINGS OF THE CONTRACTING OFFICER IN THE MATTER, IT IS NOT ORDINARILY PRACTICAL OR NECESSARY FOR THE CONTRACTING AGENCY TO SUSPEND ACTION ON A PROPOSED PROCUREMENT OF THE NECESSARY SUPPLIES OR SERVICES FROM ANOTHER SOURCE UNTIL SUCH TIME AS A DECISION ON THE APPEAL HAS BEEN RENDERED. ACCORDINGLY, YOU ARE ADVISED THAT ON THE PRESENT RECORD WE WOULD NOT BE WARRANTED IN TAKING EXCEPTION TO THE CONTRACT WHICH WAS AWARDED TO THE STEPHENSON CORPORATION.