B-146245, OCT. 12, 1961

B-146245: Oct 12, 1961

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TO WATSON AUTOMOTIVE EQUIPMENT COMPANY: REFERENCE IS MADE TO YOUR LETTERS DATED JUNE 22. ORD 20- 113-61-554 WAS ISSUED ON NOVEMBER 17. THE BID OPENING DATE WAS EXTENDED TO DECEMBER 22. THE UNIT PRICE WILL GOVERN.'. BIDDERS WERE FURTHER INSTRUCTED TO SUBMIT BIDS ON AN F.O.B. ORIGIN BASIS ONLY WOULD BE ACCEPTABLE AND BIDDERS WERE CAUTIONED THAT BIDS SUBMITTED ON ANY BASIS OTHER THAN OFFERING DELIVERY F.O.B. AT THE VERY END OF THE ITEM SCHEDULES (PAGE 3S OF THE ORIGINAL INVITATION AND PAGE 19 OF AMENDMENT NO. 1) APPEARED THE FOLLOWING LANGUAGE: "ITEMS 1 THRU 106 ARE SUBJECT TO FEDERAL EXCISE TAX AND THE BID PRICE INCLUDES SUCH TAX. "ITEMS 107 THRU 123 ARE FOR EXPORTATION (OR SHIPMENT TO A POSSESSION OF THE UNITED STATES) AND ARE THEREFORE EXEMPT FROM FEDERAL EXCISE TAX.

B-146245, OCT. 12, 1961

TO WATSON AUTOMOTIVE EQUIPMENT COMPANY:

REFERENCE IS MADE TO YOUR LETTERS DATED JUNE 22, JULY 14 AND 31, 1961, PROTESTING AGAINST THE AWARD OF A CONTRACT TO THE MEMPHIS COACH COMPANY, MEMPHIS, TENNESSEE, FOR THE FURNISHING OF 323 METROPOLITAN AMBULANCES TO THE DEPARTMENT OF THE ARMY. YOUR LETTERS ALSO PROTEST AGAINST THE ACCEPTANCE BY THE DEPARTMENT OF THE ARMY OF ADDITIONAL AMBULANCE VEHICLES FROM THE MEMPHIS COACH COMPANY.

THE RECORD BEFORE THIS OFFICE SHOWS THAT INVITATION FOR BIDS NO. ORD 20- 113-61-554 WAS ISSUED ON NOVEMBER 17, 1960, BY HEADQUARTERS ORDNANCE TANK AUTOMOTIVE COMMAND, ORDNANCE CORPS, DEPARTMENT OF THE ARMY. THE ORIGINAL INVITATION FOR BIDS CALLED FOR THE FURNISHING OF 257 AMBULANCES UNDER 123 ITEMS AND SET THE BID OPENING DATE AT 9 A.M., DECEMBER 15, 1960. AMENDMENT NO. 1 TO THE INVITATION ISSUED DECEMBER 6, 1960, INCREASED THE TOTAL AMOUNT OF AMBULANCES REQUIRED TO 323 AND ADDED ITEMS 124 THROUGH 174. AMENDMENT NO. 1 ALSO SET UP THE FOLLOWING DELIVERY SCHEDULE:

TABLE

ITEMS 2 ITEMS 22 ITEMS 124

"ITEM 1 THRU 21 THRU 123 THRU 174

DUGWAY ARMY USAF U.S. NAVY "60 DAYS AFTER RECEIPT OF

CONTRACT 1 EA - 22 EA -

90 DO. DO. - - 50 EA -

120 DO. DO. - 5 EA 32 EA 13 EA

150 DO. DO. - 5 EA 32 EA 13 EA

180 DO. DO. - 5 EA 31 EA 14 EA

210 DO. DO. - 6 EA 30 EA 14 EA

240 DO. DO. - - 36 EA 14 EA"

BY AMENDMENT NO. 2, IN THE FORM OF A TELEGRAM DATED 4:45 A.M., DECEMBER 15, 1960, THE BID OPENING DATE WAS EXTENDED TO DECEMBER 22, 1960.

THE INVITATION CALLED FOR BIDS ON AN INDIVIDUAL ITEM BASIS, PARAGRAPH 1 (C) OF THE TERMS AND CONDITIONS THEREOF, PROVIDING THAT:

"/C) UNIT PRICE FOR EACH UNIT BID ON SHALL BE SHOWN AND SUCH PRICE SHALL INCLUDE PACKING UNLESS OTHERWISE SPECIFIED. A TOTAL SHALL BE ENTERED IN THE AMOUNT COLUMN OF THE SCHEDULE FOR EACH ITEM BID ON. IN CASE OF ERROR IN EXTENSION OF PRICE, THE UNIT PRICE WILL GOVERN.'

BIDDERS WERE FURTHER INSTRUCTED TO SUBMIT BIDS ON AN F.O.B. ORIGIN BASIS WITH PROVISION THAT BIDDERS COULD, IF THEY DESIRED, SUBMIT BIDS ON THE ADDITIONAL BASIS OF F.O.B. DESTINATION ON ITEMS 1 THROUGH 20 AND 124 THROUGH 174. WITH REGARD TO ITEMS 21 THROUGH 123, BIDS ON AN F.O.B. ORIGIN BASIS ONLY WOULD BE ACCEPTABLE AND BIDDERS WERE CAUTIONED THAT BIDS SUBMITTED ON ANY BASIS OTHER THAN OFFERING DELIVERY F.O.B. ORIGIN WOULD BE REJECTED AS NONRESPONSIVE.

AT THE VERY END OF THE ITEM SCHEDULES (PAGE 3S OF THE ORIGINAL INVITATION AND PAGE 19 OF AMENDMENT NO. 1) APPEARED THE FOLLOWING LANGUAGE:

"ITEMS 1 THRU 106 ARE SUBJECT TO FEDERAL EXCISE TAX AND THE BID PRICE INCLUDES SUCH TAX.

"ITEMS 107 THRU 123 ARE FOR EXPORTATION (OR SHIPMENT TO A POSSESSION OF THE UNITED STATES) AND ARE THEREFORE EXEMPT FROM FEDERAL EXCISE TAX. THE BID PRICE DOES NOT INCLUDE ANY AMOUNT FOR SUCH TAX. PROOF OF EXPORTATION WILL BE FURNISHED TO THE SUCCESSFUL BIDDER. (OPI 11-201)

"ITEMS 124 THRU 172 ARE SUBJECT TO FEDERAL EXCISE TAX AND THE BID PRICES INCLUDE SUCH TAX.

"ITEMS 173 AND 174 ARE FOR EXPORTATION (OR SHIPMENT TO A POSSESSION OF THE UNITED STATES) AND ARE THEREFORE EXEMPT FROM FEDERAL EXCISE TAX. THE BID PRICES DO NOT INCLUDE ANY AMOUNT FOR SUCH TAX. PROOF OF EXPORTATION WILL BE FURNISHED TO THE SUCCESSFUL BIDDER. (OPI 11 201)"

FIVE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION FOR BIDS. THE MEMPHIS COACH COMPANY OFFERED TO SUPPLY THE 323 AMBULANCES FOR A TOTAL PRICE, AFTER DISCOUNT, OF $1,458,151.66. YOUR COMPANY WAS THE NEXT LOW BIDDER AT A PRICE, AFTER DISCOUNT, OF $1,593,130.12. THE BID OF THE MEMPHIS COACH COMPANY DID NOT SHOW A UNIT PRICE BESIDE ANY ITEM IN THE SCHEDULE INCLUDING THE SCHEDULE IN AMENDMENT NO. 1. INSTEAD THAT COMPANY PLACED THE APPLICABLE FIGURES OPPOSITE THE TAX NOTICES, QUOTED ABOVE, AT THE END OF EACH SCHEDULE. THUS ON ITEMS 1 THROUGH 106, WHICH INCLUDED THE FEDERAL EXCISE TAX, THE MEMPHIS COACH COMPANY INSERTED A UNIT PRICE OF $4,621.96 FOR 176 UNITS FOR A TOTAL EXTENDED PRICE OF $813,464.96. ITEMS 107 THROUGH 123, WHICH DID NOT INCLUDE THE TAX, MEMPHIS OFFERED TO SUPPLY 81 UNITS AT A UNIT PRICE OF $4,281.22 FOR A TOTAL EXTENDED PRICE OF $346,778.82. ON ITEMS 124 THROUGH 172, WHICH WERE SUBJECT TO THE TAX, MEMPHIS OFFERED TO SUPPLY 64 UNITS AT A UNIT PRICE OF $4,621.96 FOR A TOTAL EXTENDED PRICE OF $295,805.44. AND ON ITEMS 173 AND 174, WHICH WERE NOT SUBJECT TO THE TAX, MEMPHIS OFFERED TO SUPPLY 2 UNITS AT $4,281.22 FOR A TOTAL EXTENDED PRICE OF $8,562.44. IN ADDITION MEMPHIS COACH PROVIDED ON PAGE 3X OF ITS BID THAT DELIVERY AND INSPECTION WOULD BE AT F.O.B. ORIGIN SINCE IT LISTED FOR THE ADDRESS OF BOTH FUNCTIONS "MEMPHIS COACH COMPANY, INC., 421 MONROE AVENUE, MEMPHIS, TENNESSEE.' THUS IT IS CLEAR THAT THE MEMPHIS COACH BID WAS PREDICATED SOLELY ON AN F.O.B. ORIGIN BASIS AND IT OFFERED TO FURNISH THE TOTAL QUANTITY OF VEHICLES AT STATED UNIT PRICES WHICH VARIED DEPENDING ON WHETHER THE FEDERAL EXCISE TAX WAS APPLICABLE TO A GROUP OF ITEMS.

BY LETTER OF DECEMBER 29, 1960, YOU PROTESTED TO HEADQUARTERS ORDNANCE TANK AUTOMOTIVE COMMAND AGAINST THE CONSIDERATION OF THE MEMPHIS BID ON THE GROUND AS STATED IN YOUR LETTER THAT:

"AN INFORMAL SUBMISSION BY THE MEMPHIS COACH COMPANY DID NOT PLACE A UNIT PRICE BESIDE ANY INDIVIDUAL ITEM IN THE ENTIRE SCHEDULE INCLUDING THE AMENDMENT THERETO, AS REQUIRED ON PAGE 2 OF PROPOSAL, BUT MERELY PLACED SOME FIGURES OPPOSITE A STATEMENT ON PAGE 38, WHICH STATEMENT NOTIFIED BIDDERS REGARDING TAXES FOR CERTAIN ITEMS INDICATED, WHICH TAXES WERE TO BE INCLUDED IN THEIR ITEMIZED BIDS.

"SIMILARLY, ON PAGE 19 IN AMENDMENT NO. 1, A NOTATION OF SOME FIGURES WAS MADE OPPOSITE A STATEMENT INFORMING PROSPECTIVE BIDDERS REGARDING TAXES APPLICABLE TO CERTAIN ITEMS ON WHICH BIDS WERE SOLICITED IN THE AMENDMENT. AT NO PLACE OPPOSITE ANY INDIVIDUAL ITEM IS THERE A PRICE SUBMITTED APPLICABLE TO THAT ITEM. IT IS NOTED THEN, THERE WAS NO RESPONSE EITHER TO THE F.O.B. POINT OF ORIGIN REQUESTS, OR THE F.O.B. DESTINATION REQUESTS, IN FACT, THERE WAS NO LEGAL BINDING OFFER TO THE GOVERNMENT, TO DO ANYTHING WITHIN ANY PARTICULAR TIME OR AT ANY SPECIFIC PRICE OR AT ANY PARTICULAR PLACE OF DELIVERY.'

YOUR PROTEST LETTER WAS ANSWERED BY HEADQUARTERS ORDNANCE TANK AUTOMOTIVE COMMAND IN A LETTER DATED JANUARY 20, 1961, IN WHICH YOU WERE ADVISED THAT THE COMMAND HAD DETERMINED THE BID OF MEMPHIS COACH TO BE RESPONSIVE TO THE TERMS OF THE INVITATION IN EVERY RESPECT AND CONSTITUTED A VALID OFFER. THE BASIS FOR THIS DETERMINATION WAS STATED IN THEIR LETTER TO YOU AS FOLLOWS:

"THE BID OF MEMPHIS COACH COMPANY IS CLEARLY PREDICATED UPON DELIVERING THE VEHICLES F.O.B. ITS PLANT IN MEMPHIS, TENNESSEE. PARAGRAPH 1 ON PAGE 3X OF THE BID SUBMITTED BY MEMPHIS COACH COMPANY PROVIDES IN UNAMBIGUOUS TERMS THAT DELIVERY WILL BE MADE F.O.B.'MEMPHIS COACH COMPANY, 421 MONROE AVENUE, MEMPHIS, TENNESSEE.' IN ADDITION, THE BIDDER PRESCRIBED ON PAGE 3X OF ITS BID THAT FINAL INSPECTION AND ACCEPTANCE BY THE GOVERNMENT WOULD BE MADE AT THEIR PLANT IN MEMPHIS.

"AS RESPECTS THE BID PRICES SUBMITTED BY MEMPHIS COACH COMPANY, A READING OF THE BID DICTATES THAT THE ONLY CONSTRUCTION THAT CAN BE PLACED UPON ITS TERMS IS THAT THE MEMPHIS COACH COMPANY IS BIDDING ON THE TOTAL QUANTITY OF ALL OF THE VEHICLES, AND THAT ITS BID PRICE IS DEPENDENT UPON WHETHER THE VEHICLES ARE SUBJECT TO FEDERAL EXCISE TAX. IT IS OBVIOUS FROM READING THE BID THAT THE PURPOSE IN PLACING THE BID PRICES OPPOSITE THE STATEMENTS THAT CERTAIN ITEMS ARE SUBJECT TO FEDERAL EXCISE TAX, AND THAT CERTAIN OTHER ITEMS ARE FOR EXPORTATION AND ARE, THEREFORE, EXEMPT FROM FEDERAL EXCISE TAX, WAS TO MAKE A DISTINCTION BETWEEN BID PRICES INCLUDING THIS TAX AND BID PRICES EXCLUDING THIS TAX.'

AFTER PREAWARD SURVEYS HAD BEEN CONDUCTED ON THE MEMPHIS COACH COMPANY BY THE DEPARTMENT OF THE ARMY, AWARD OF THE CONTRACT WAS MADE TO MEMPHIS ON MARCH 17, 1961.

YOUR LETTERS DATED JUNE 22, JULY 14 AND 31, 1961, RAISE TWO BASIC ISSUES FOR OUR CONSIDERATION. FIRST YOU CONTEND THAT YOUR BID WAS THE LOWEST RESPONSIVE BID SINCE THE BID SUBMITTED BY MEMPHIS COACH WAS INFORMAL AND NOT IN STRICT ACCORDANCE WITH THE INVITATION FOR BIDS. SECONDLY, YOU STATE THAT BEFORE THE AWARD WAS MADE THE ORDNANCE DEPARTMENT ADVISED YOU THAT AN INVESTIGATION WOULD BE MADE TO DETERMINE THAT THE FACILITIES OF MEMPHIS COACH COMPANY WERE ADEQUATE TO MAINTAIN THE REQUIRED DELIVERY SCHEDULE AND THAT IF THE AWARD WAS MADE TO MEMPHIS THEIR PILOT MODEL AND PRODUCTION RUN WOULD COMPLY AS TO BOTH SPECIFICATIONS AND DELIVERY SCHEDULE. YOU ALLEGE THAT AS OF JUNE 17, 1961, THE GOVERNMENT HAS ACCEPTED ONLY 20 VEHICLES, THUS BEING BEHIND SCHEDULE 53 UNITS AS OF THAT DATE AND THAT NOT ONE OF THESE UNITS IS IN COMPLIANCE WITH THE SPECIFICATIONS AS ADVERTISED. FURTHERMORE YOU STATE THAT SINCE THE FACILITIES OF MEMPHIS COACH ARE NONEXISTENT AND THE PILOT MODEL DID NOT MEET THE SPECIFICATIONS, YOU PROTEST THE ACCEPTANCE BY THE GOVERNMENT OF ADDITIONAL VEHICLES SUCH AS MEMPHIS COACH IS BUILDING UNDER THE CONTRACT.

WITH REGARD TO THE FIRST ISSUE STATED, IT IS CLEAR THAT MEMPHIS COACH SUBMITTED A FIRM BID BASED ON DELIVERY F.O.B. ORIGIN FOR THE ENTIRE 323 UNITS AND THAT ITS PURPOSE IN PLACING THE BID PRICES OPPOSITE THE STATEMENTS THAT CERTAIN ITEMS ARE SUBJECT TO FEDERAL EXCISE TAX, AND THAT CERTAIN OTHER ITEMS ARE EXEMPT FROM THE TAX, WAS TO MAKE IT CLEAR THAT ITS BID REFLECTED THE IMPACT OF THIS TAX. THE FACT THAT MEMPHIS COACH DID NOT ENTER A SEPARATE BID FOR EACH INDIVIDUAL ITEM LISTED IN THE SCHEDULE CANNOT BE VIEWED AS RENDERING ITS BID NONRESPONSIVE. THE BID IS CLEAR AND UNAMBIGUOUS AND IS NOT SUBJECT TO MORE THAN ONE INTERPRETATION. SINCE MEMPHIS COACH BID SOLELY ON THE BASIS OF DELIVERY F.O.B. ORIGIN (ITS PLANT) NO USEFUL PURPOSE WOULD HAVE BEEN SERVED BY ENTERING THE IDENTICAL UNIT PRICE OPPOSITE EACH INDIVIDUAL ITEM. THE INVITATION FOR BIDS CALLED FOR BIDS ON THE BASIS OF DELIVERY F.O.B. ORIGIN AND MERELY PERMITTED BIDS ON SOME ITEMS ON AN F.O.B. DESTINATION BASIS IF THE BIDDER DESIRED TO DO SO. IT MUST BE CONCLUDED, THEREFORE, THAT THE DEPARTMENT OF THE ARMY WAS CORRECT IN ITS DETERMINATION THAT THE BID OF THE MEMPHIS COACH COMPANY WAS RESPONSIVE TO THE TERMS OF THE INVITATION AND CONSTITUTED A VALID OFFER.

WITH REGARD TO THE QUESTION OF THE PROPRIETY OF ACCEPTING ADDITIONAL UNITS UNDER THE CONTRACT FROM THE MEMPHIS COACH COMPANY, AN ADMINISTRATIVE REPORT DATED AUGUST 4, 1961, FROM THE DEPARTMENT OF THE ARMY STATES THAT CONTRACT DELIVERY REQUIREMENTS CALLED FOR 88 VEHICLES TO BE COMPLETED BY THE END OF JUNE 1961; THAT ONLY 32 VEHICLES WERE PRODUCED BY THAT DATE; AND THAT SLIPPAGES HAVE BEEN DETERMINED BY THE CONTRACTING OFFICER TO BE JUSTIFIABLE. IT IS EXPLAINED THAT DELAYED DELIVERIES WERE DUE, IN PART, TO THE NECESSITY OF THE CONTRACTOR TO CHANGE LOCATION OF PLANT AND FACILITIES AFTER AWARD OF THE CONTRACT. A CONTRACT MODIFICATION DATED JULY 5, 1961, WAS ISSUED BY THE CONTRACTING OFFICER WHICH, IT IS STATED, CALLED FOR DELIVERIES TO BE COMPLETED IN ACCORDANCE WITH THE ORIGINAL TERMS OF THE INVITATION, BUT CHANGED THE MONTHLY PRODUCTION RATE TO COMPENSATE FOR THE SLIPPAGE. THE ADMINISTRATIVE REPORT STATES THAT THE CONTRACTOR IS CURRENTLY PRODUCING IN ACCORDANCE WITH THE MODIFIED CONTRACT.

IN CONNECTION WITH YOUR CONTENTION THAT THE VEHICLES BEING DELIVERED AND ACCEPTED DO NOT MEET THE ADVERTISED SPECIFICATIONS, THE ADMINISTRATIVE REPORT ADVISES THAT:

"AT BEGINNING OF PRODUCTION, DIFFICULTIES IN DETERMINING THE DESIRED QUALITY OF WORKMANSHIP WAS EXPERIENCED. ALSO, VIBRATION OF THE DRIVE SHAFT WAS DISCOVERED AT CERTAIN SPEEDS AFTER DELIVERY OF APPROXIMATELY TWENTY (20) UNITS. THESE PROBLEMS HAVE BEEN CORRECTED AND THE VEHICLES NOW BEING ACCEPTED ARE IN COMPLIANCE WITH ORIGINAL CONTRACT AS MODIFIED BY AUTHORIZED DEVIATIONS. THREE ENGINEERING DEVIATIONS HAVE BEEN ISSUED ON THIS CONTRACT SINCE AWARD:

"1. ELIMINATION OF REAR STEP.

"2. RELOCATION OF THE PERSONNEL HEATER SWITCH FROM THE PATIENT'S COMPARTMENT TO THE DRIVER'S COMPARTMENT IN THE INTEREST OF SAFETY.

"3. CHANGE IN WINDOW HEIGHT FROM 15 INCHES TO 14 INCHES.

"WITH RESPECT TO 3 ABOVE, THE SPECIFICATIONS ORIGINALLY CALLED FOR MINIMUM WINDOW SIZE OF 30 IN. BY 15 IN. IN THE PATIENT'S COMPARTMENT. THE DEVIATION REVISED THE WINDOW SIZE TO 40 1/2 IN. BY 15 IN. IN THE PATIENT'S COMPARTMENT SIDE DOOR AND 54 IN. BY 14 IN. IN THE PATIENT'S COMPARTMENT WALL. THE ORIGINAL SPECIFICATION REQUIRED AS A MINIMUM 910 SQ.FT. OF WINDOW AREA ON EACH SIDE. THE CONTRACTOR IS PROVIDING UNDER THE DEVIATION APPROXIMATELY 1,350 SQ.FT. PER SIDE (SEE PARA 3.5.4.2 OF DAPD 1134B EXHIBIT 8 AND DRAWING EXHIBIT 9). CONSIDERATION WAS OBTAINED IN THOSE CASES WHERE THE CONTRACTING OFFICER DETERMINED THAT SAVINGS SHOULD ACCRUE TO THE GOVERNMENT AS A RESULT OF THE DEVIATION. ALL THE DEVIATIONS PERMITTED WOULD NOT MATERIALLY AFFECT THE ORIGINAL SPREAD IN PRICE OF APPROXIMATELY $400.00 PER VEHICLE. "AT THE PILOT MODEL INSPECTION, THE VEHICLES PRESENTED COMPLIED WITH THE SPECIFICATIONS WITH THE EXCEPTION OF DEVIATION 1 AND 3 OUTLINED ABOVE. THE HEATER SWITCH LOCATION WAS IN COMPLIANCE WITH SPECIFICATIONS, BUT WAS MOVED AS A SAFETY HAZARD (OXYGEN BOTTLES ARE STORED IN THE MEDICINE CABINET, THE ORIGINAL LOCATION OF THE SWITCH).

"SINCE THE STEP AND WINDOW HAVE NO ADVERSE EFFECT ON FUNCTION, INTERCHANGEABILITY, OR SAFETY, DEVIATIONS WERE CONSIDERED MINOR AND PERMITTED. SUCH MINOR DEVIATIONS ARE GRANTED AFTER CAREFUL CONSIDERATION OF THE IMPACT OCCASIONED BY THE PROPOSED CHANGE. THE STATEMENT BY WATSON AUTOMOTIVE THAT FACILITIES AT MEMPHIS COACH ARE NONEXISTENT IS WITHOUT BASIS. CONTRACTOR IS CURRENTLY PRODUCING ACCEPTABLE VEHICLES AT 345 ADAMS STREET AND 645 MARSHALL STREET, MEMPHIS, TENNESSEE.

"NO BASIS EXISTS AT THE PRESENT TIME FOR DETERMINATION FOR DEFAULT, AS CONTRACTOR IS PRODUCING IN ACCORDANCE WITH CONTRACT REQUIREMENTS.'

THE PROVISIONS OF PARAGRAPH 8-602.3 OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDE THAT THE CONTRACTING OFFICER IN MAKING A DETERMINATION WHETHER TO TERMINATE A CONTRACT FOR DEFAULT SHALL CONSIDER, AMONG OTHER FACTORS, THE AVAILABILITY OF THE SUPPLIES OR SERVICES FROM OTHER SOURCES; THE SPECIFIC FAILURE OF THE CONTRACTOR AND, UNLESS TIME DOES NOT PERMIT, THE EXCUSES, IF ANY, FOR SUCH FAILURE; THE URGENCY OF THE NEED FOR THE SUPPLIES OR SERVICES AND THE PERIOD OF TIME WHICH WOULD BE REQUIRED TO OBTAIN THE SUPPLIES OR SERVICES FROM OTHER SOURCES AS COMPARED WITH THE TIME IN WHICH DELIVERY COULD BE OBTAINED FROM THE DELINQUENT CONTRACTOR; AND ANY OTHER PERTINENT FACTS AND CIRCUMSTANCES. SEE ALSO PARAGRAPH 8- 602.4 ASPR WHICH PROVIDES THAT THE CONTRACTING OFFICER MAY PERMIT THE CONTRACTOR TO CONTINUE PERFORMANCE OF THE CONTRACT UNDER A REVISED DELIVERY SCHEDULE IN LIEU OF TERMINATION FOR DEFAULT WHEN IT IS IN THE BEST INTEREST OF THE GOVERNMENT TO DO SO.

IT IS READILY APPARENT UNDER THESE PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATION THAT THE CONTRACTING OFFICER IS GIVEN A DEGREE OF DISCRETION IN DETERMINING WHEN TO TERMINATE A CONTRACT. AND EVEN WHERE SUFFICIENT GROUNDS EXIST FOR TERMINATION, PARAGRAPH 8-602.4 ASPR PERMITS THE CONTRACTING OFFICER TO ALLOW CONTINUED PERFORMANCE OF A CONTRACT, IN LIEU OF TERMINATION WHEN THE BEST INTEREST OF THE GOVERNMENT DICTATES SUCH A COURSE. IN ANY EVENT, THE DEPARTMENT OF THE ARMY REPORTS THAT NO BASIS EXISTS AT THE PRESENT TIME FOR TERMINATION FOR DEFAULT AND THIS OFFICE WOULD NOT BE JUSTIFIED, ON THE BASIS OF THE RECORD BEFORE US, IN QUESTIONING THE CONTRACTING OFFICER'S ACTION IN REVISING THE DELIVERY SCHEDULE AND PERMITTING CONTINUED PERFORMANCE UNDER THE CONTRACT.

IN VIEW OF THE FOREGOING, WE FIND NO BASIS FOR OBJECTING TO THE AWARD OF THE CONTRACT TO THE MEMPHIS COACH COMPANY OR FOR QUESTIONING THE PROPRIETY OF THE DEPARTMENT OF THE ARMY IN ACCEPTING ADDITIONAL AMBULANCE VEHICLES FROM THE CONTRACTOR.