B-140977, OCT. 22, 1959

B-140977: Oct 22, 1959

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TO VICTOR PRODUCTS CORPORATION: REFERENCE IS MADE TO YOUR COUNSEL'S LETTER OF OCTOBER 6. 391.69 WERE RAISED AGAINST YOUR CORPORATION. WHICH BID WAS ACCEPTED AS TO EIGHT OF THE ITEMS. YOUR BID WAS WITHOUT RESERVATION OR QUALIFICATION. THERE WAS NO INDICATION THEREIN THAT SUCH OFFER WAS SUBMITTED SUBJECT TO QUOTATIONS FROM ANY OF YOUR SUBCONTRACTORS. THE BID WAS EXECUTED BY YOUR MR. YOU HAVE NOT HERETOFORE. ROSE WAS WITHOUT AUTHORITY TO BIND YOUR CORPORATION IN CONTRACTUAL MATTERS. ANY QUESTION REGARDING YOUR ABILITY TO PERFORM SHOULD HAVE BEEN RESOLVED BY YOU BEFORE AWARD. THE SPECIFICATIONS WERE CLEAR AND UNAMBIGUOUS. THUS VESTED IN THE UNITED STATES THE RIGHT TO HAVE THE CONTRACT PERFORMED AT THE AGREED PRICE.

B-140977, OCT. 22, 1959

TO VICTOR PRODUCTS CORPORATION:

REFERENCE IS MADE TO YOUR COUNSEL'S LETTER OF OCTOBER 6, 1959, REQUESTING RECONSIDERATION OF THE ACTION TAKEN BY THE GENERAL SERVICES ADMINISTRATION, AND AFFIRMED BY THE CLAIMS DIVISION OF OUR OFFICE, WHEREBY CHARGES OF $2,391.69 WERE RAISED AGAINST YOUR CORPORATION, REPRESENTING THE DAMAGES (EXCESS COSTS) INCURRED BY THE GOVERNMENT IN THE PURCHASE OF A QUANTITY OF REFRIGERATOR UNITS FROM ANOTHER SOURCE BECAUSE OF YOUR DEFAULT UNDER CONTRACT NO. GS-05S-7449.

THE RECORD DISCLOSES THAT IN RESPONSE TO INVITATION FOR BIDS NO. DCH 25223, ISSUED BY THE CHICAGO OFFICE OF THE FEDERAL SUPPLY SERVICE, YOUR FIRM SUBMITTED A BID ON SEVERAL OF THE ITEMS LISTED THEREIN, WHICH BID WAS ACCEPTED AS TO EIGHT OF THE ITEMS. YOUR BID WAS WITHOUT RESERVATION OR QUALIFICATION, AND THERE WAS NO INDICATION THEREIN THAT SUCH OFFER WAS SUBMITTED SUBJECT TO QUOTATIONS FROM ANY OF YOUR SUBCONTRACTORS, OR APPROVAL BY YOUR ENGINEERING AND COST ACCOUNTING DEPARTMENTS. THE BID WAS EXECUTED BY YOUR MR. J. I. ROSE, AS VICE PRESIDENT IN CHARGE OF SALES, AND YOU HAVE NOT HERETOFORE, NOR DO YOU NOW CONTEND, THAT MR. ROSE WAS WITHOUT AUTHORITY TO BIND YOUR CORPORATION IN CONTRACTUAL MATTERS.

IT HAS BEEN YOUR CONTENTION THAT FOR REASONS BEYOND YOUR CONTROL AND ENTIRELY WITHOUT FAULT AND NEGLIGENCE, WITHIN THE MEANING OF THE CONTRACT, YOU COULD NOT PERFORM THE CONTRACT IN ACCORDANCE WITH THE REQUIREMENTS OF THE SAID INSTRUMENT. THE POSITION YOU TAKE APPEARS TO BE UNTENABLE. THE ACCEPTANCE OF YOUR UNQUALIFIED BID CONSUMMATED A BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. UNITED STATES V. PURCELL ENVELOPE CO., 249 U.S. 313; AMERICAN SMELTING AND REFINING CO. V. UNITED STATES, 259 U.S. 75. ANY QUESTION REGARDING YOUR ABILITY TO PERFORM SHOULD HAVE BEEN RESOLVED BY YOU BEFORE AWARD. THE SPECIFICATIONS WERE CLEAR AND UNAMBIGUOUS, AND THUS VESTED IN THE UNITED STATES THE RIGHT TO HAVE THE CONTRACT PERFORMED AT THE AGREED PRICE. BRAWLEY V. UNITED STATES, 96 U.S. 168. THE FACT THAT SUPERVENING OR UNFORESEEN CAUSES RENDERED PERFORMANCE MORE BURDENSOME AFFORDS NO LEGAL BASIS FOR RESCINDING A CONTRACT, AND, WHERE PERFORMANCE IS REFUSED, THE CONTRACTOR MUST RESPOND IN DAMAGES FOR THE BREACH. PENN BRIDGE CO. V. UNITED STATES, 59 C.CLS. 244.

IN VIEW OF THE FACTS OF RECORD AND APPLICABLE LAW, IT MUST BE CONCLUDED THAT THE CHARGES RAISED AGAINST YOUR ACCOUNT WERE PROPER AND THEREFORE SUCH ACTION WILL NOT BE DISTURBED.

WITH RESPECT TO YOUR QUESTION AS TO WHETHER THE ACTION TAKEN HEREIN MAY BE APPEALED, YOU ARE ADVISED THAT DECISIONS OF OUR OFFICE ARE FINAL AND BINDING IN ALL CASES PROPERLY BEFORE US FOR DETERMINATION, AND THERE IS NO FORUM OR AGENCY IN THE EXECUTIVE BRANCH OF THE GOVERNMENT VESTED WITH AUTHORITY TO REVIEW SUCH DECISIONS. OF COURSE, AS YOU INDICATE IN YOUR LETTER, IF THE MATTER IS REFERRED TO THE ATTORNEY GENERAL FOR COLLECTION IT MAY ULTIMATELY BE HEARD AND DECIDED BY AN APPROPRIATE COURT.