B-150115, OCT. 29, 1962

B-150115: Oct 29, 1962

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TO FROID-OUEST: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 13. THE CONTRACT WAS EXTENDED BY SUPPLEMENTAL AGREEMENTS THROUGH JUNE 30. PARAGRAPH 2 OF THE CONTRACT PROVIDED THAT AN ESTIMATED "1200 KG OF FREON GAS SHALL BE REQUIRED TO BE ORDERED DURING THE VALID PERIOD OF THIS CONTRACT" BUT IT PROVIDED FURTHER THAT "IT IS SPECIFICALLY UNDERSTOOD. GOVERNMENT IS NEITHER RESTRICTED TO NOR OBLIGATED TO ORDER THIS ESTIMATED QUANTITY.'. IT PROVIDED THAT "NO MINIMUM QUANTITY IS GUARANTEED UNDER THE TERMS OF THIS CONTRACT.'. WHEN THIS CONTRACT WAS EXECUTED NO FURTHER PURCHASES WERE MADE UNDER YOUR CONTRACT. WHILE NO FORMAL CANCELLATION OF YOUR CONTRACT WAS MADE. YOU WERE NOTIFIED IN WRITING SOMETIME EARLY IN 1962 OF THE INTENTION TO BUY FROM ANOTHER CONTRACTOR.

B-150115, OCT. 29, 1962

TO FROID-OUEST:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 13, 1962, IN REGARD TO YOUR CLAIM FOR DAMAGES FOR BREACH OF CONTRACT NO. DA-91-626-EUC-285 FOR THE DELIVERY OF FREON GAS TO THE U.S. ARMY INSTALLATION CAMP DE JEUMONT, LA ROCHELLE-PELLICA (CM), FRANCE.

THE CONTRACT PROVIDED FOR FURNISHING FREON GAS TO THE ABOVE ARMY INSTALLATION DURING THE PERIOD FROM JULY 1, 1959, TO JUNE 30, 1960. THE CONTRACT WAS EXTENDED BY SUPPLEMENTAL AGREEMENTS THROUGH JUNE 30, 1962. EITHER PARTY HAD THE OPTION TO CANCEL THE CONTRACT BY GIVING 30 DAYS ADVANCE WRITTEN NOTICE. PARAGRAPH 2 OF THE CONTRACT PROVIDED THAT AN ESTIMATED "1200 KG OF FREON GAS SHALL BE REQUIRED TO BE ORDERED DURING THE VALID PERIOD OF THIS CONTRACT" BUT IT PROVIDED FURTHER THAT "IT IS SPECIFICALLY UNDERSTOOD, HOWEVER, THAT THE U.S. GOVERNMENT IS NEITHER RESTRICTED TO NOR OBLIGATED TO ORDER THIS ESTIMATED QUANTITY.' ALSO, IT PROVIDED THAT "NO MINIMUM QUANTITY IS GUARANTEED UNDER THE TERMS OF THIS CONTRACT.'

IN DECEMBER 1961 THE CENTRAL PURCHASING OFFICE AT PARIS NEGOTIATED A CONTRACT WITH ANOTHER PARTY FOR SUPPLY OF FREON GAS TO ALL INSTALLATIONS IN FRANCE. WHEN THIS CONTRACT WAS EXECUTED NO FURTHER PURCHASES WERE MADE UNDER YOUR CONTRACT. WHILE NO FORMAL CANCELLATION OF YOUR CONTRACT WAS MADE, AS THE UNITED STATES HAD A RIGHT TO DO UNDER THE TERMS OF THE CONTRACT, YOU WERE NOTIFIED IN WRITING SOMETIME EARLY IN 1962 OF THE INTENTION TO BUY FROM ANOTHER CONTRACTOR.

ASIDE FROM THE FACT THAT UNDER THE TERMS OF THE CONTRACT THE UNITED STATES WAS NOT OBLIGATED TO PURCHASE A MINIMUM QUANTITY, IT WAS REPORTED IN APRIL 1962 THAT YOUR CLAIM FOR THE SEVEN-MONTH PERIOD FROM DECEMBER 1, 1961, TO JUNE 30, 1962, WAS EXCESSIVE IN AMOUNT IN THAT THE QUANTITY PURCHASED EACH MONTH HAD BEEN 300 KG., WHICH FOR SEVEN MONTHS "WOULD TOTAL 9660 NF" AND NOT 12,500 NF AS CLAIMED BY YOU.

IN VIEW OF THE FOREGOING, THERE IS NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM AND ACCORDINGLY THE SETTLEMENT OF AUGUST 21, 1962, IS SUSTAINED.