B-131529, MAY 3, 1957

B-131529: May 3, 1957

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VETERANS ADMINISTRATION: REFERENCE IS MADE TO YOUR LETTER OF APRIL 16. BECAUSE THE MEAT SUPPLY AT THE BATH CENTER WAS AT A CRITICAL POINT. THE REQUIRED ITEMS WERE OBTAINED FROM OTHER SOURCES AT A COST WHICH WAS $358.05 IN EXCESS OF THE CONTRACT PRICES. ARE NOT RESTRICTED TO. * * * AND DEFAULTS OF SUBCONTRACTORS DUE TO ANY OF SUCH CAUSES UNLESS THE CONTRACTING OFFICER SHALL DETERMINE THAT THE SUPPLIES OR SERVICES TO BE FURNISHED BY THE SUBCONTRACTOR WERE OBTAINABLE FROM OTHER SOURCES IN SUFFICIENT TIME TO PERMIT THE CONTRACTOR TO MEET THE REQUIRED DELIVERY SCHEDULE.'. IT IS ONLY WHERE THE CONTRACTOR'S INABILITY TO FULFILL THE CONTRACT RESULTS FROM FAILURE OF ITS SUBCONTRACTORS TO PERFORM THAT THE CONTRACTING OFFICER MUST DETERMINE WHETHER THE SUPPLIES OR SERVICES WERE OBTAINABLE FROM OTHER SOURCES.

B-131529, MAY 3, 1957

TO ADMINISTRATOR, VETERANS ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 16, 1957, REQUESTING ADVICE AS TO WHETHER SWIFT AND COMPANY MAY BE RELIEVED OF THE EXCESS COSTS RESULTING FROM OBTAINING MEAT FROM OTHER SOURCES BECAUSE OF THE COMPANY'S FAILURE TO MAKE DELIVERIES IN ACCORDANCE WITH PURCHASE ORDER NO. 683, CONTRACT NO. V6002P-694.

THE SUBJECT CONTRACT REQUIRED DELIVERY OF PACKING HOUSE AND DAIRY PRODUCTS TO THE VETERANS ADMINISTRATION CENTER, BATH, NEW YORK, ON SEPTEMBER 25, 1956. YOU REPORT THAT ON THAT DATE THE CONTRACTOR ADVISED OF ITS INABILITY TO MAKE TIMELY DELIVERY DUE TO A STRIKE AT ITS PLANTS. BECAUSE THE MEAT SUPPLY AT THE BATH CENTER WAS AT A CRITICAL POINT, THE REQUIRED ITEMS WERE OBTAINED FROM OTHER SOURCES AT A COST WHICH WAS $358.05 IN EXCESS OF THE CONTRACT PRICES.

THE SUBJECT CONTRACT INCORPORATED, BY REFERENCE, THE GENERAL PROVISIONS OF STANDARD FORM 32, NOVEMBER 1949 EDITION. INSOFAR AS PERTINENT HERE, PARAGRAPH 11,"DEFAULT," PROVIDES IN SUBPARAGRAPH (B) THEREOF THAT---

"THE CONTRACTOR SHALL NOT BE LIABLE FOR ANY EXCESS COSTS IF ANY FAILURE TO PERFORM THE CONTRACT ARISES OUT OF CAUSE BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR. SUCH CAUSES INCLUDE, BUT ARE NOT RESTRICTED TO, * * *--- STRIKES, * * * AND DEFAULTS OF SUBCONTRACTORS DUE TO ANY OF SUCH CAUSES UNLESS THE CONTRACTING OFFICER SHALL DETERMINE THAT THE SUPPLIES OR SERVICES TO BE FURNISHED BY THE SUBCONTRACTOR WERE OBTAINABLE FROM OTHER SOURCES IN SUFFICIENT TIME TO PERMIT THE CONTRACTOR TO MEET THE REQUIRED DELIVERY SCHEDULE.'

IT IS ONLY WHERE THE CONTRACTOR'S INABILITY TO FULFILL THE CONTRACT RESULTS FROM FAILURE OF ITS SUBCONTRACTORS TO PERFORM THAT THE CONTRACTING OFFICER MUST DETERMINE WHETHER THE SUPPLIES OR SERVICES WERE OBTAINABLE FROM OTHER SOURCES. IN THIS INSTANCE, IT APPEARS THAT SWIFT AND COMPANY WAS TO SUPPLY THE MEATS FROM ITS OWN PLANTS AND ITS INABILITY TO PERFORM THE CONTRACT RESULTED FROM A STRIKE AGAINST THOSE PLANTS; NOT THE PLANTS OF A SUBCONTRACTOR.

ACCORDINGLY, PARAGRAPH 11/B) RELIEVES THE CONTRACTOR IN THIS INSTANCE OF ANY LIABILITY FOR THE EXCESS COSTS OF OBTAINING THE NECESSARY MEATS FROM OTHER SOURCES.