B-154935, AUG. 26, 1964

B-154935: Aug 26, 1964

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VETERANS ADMINISTRATION: RECEIPT IS ACKNOWLEDGED OF A LETTER DATED AUGUST 10. WAS ACCEPTED ON APRIL 20. V5208S-31 WAS AWARDED TO THE J AND N METAL AND STEEL COMPANY ON APRIL 20. THE GOVERNMENT CONTRACTING OFFICER ADVISED THE COMPANY THAT ITS BID WAS BEING ACCEPTED AND ALSO THAT IT WAS ANTICIPATED THAT THE EQUIPMENT COVERED BY THE CONTRACT WOULD BE AVAILABLE FOR DELIVERY TO THE COMPANY ON OR BEFORE JUNE 1. THE COMPANY WAS ADVISED THAT A POSITIVE DATE FOR RELEASE OF THE EQUIPMENT COULD NOT BE GIVEN AT THAT TIME. IT IS OBVIOUS THAT AS LATE AS THE DATE OF THE SUBMISSION OF THE DEPUTY ADMINISTRATOR'S REQUEST FOR OUR DECISION IN THE MATTER. OR FOUR MONTHS AFTER THE CONTRACT WAS AWARDED. THE HOSPITAL STILL IS NOT IN A POSITION TO GIVE A DEFINITE DELIVERY DATE.

B-154935, AUG. 26, 1964

TO THE HONORABLE JOHN S. GLEASON, JR., ADMINISTRATOR, VETERANS ADMINISTRATION:

RECEIPT IS ACKNOWLEDGED OF A LETTER DATED AUGUST 10, 1964, WITH ENCLOSURES, FROM THE DEPUTY ADMINISTRATOR, REQUESTING OUR DECISION AS TO WHETHER THE J AND N METAL AND STEEL COMPANY, LYNWOOD, CALIFORNIA, MAY BE RELEASED FROM CONTRACT NO. V5208S-31, DATED APRIL 20, 1964, IN VIEW OF THE CIRCUMSTANCES REPORTED.

IT APPEARS THAT IN RESPONSE TO INVITATION NO. 64-22, ISSUED ON MARCH 6, 1964, BY THE SUPPLY DIVISION, VETERANS ADMINISTRATION HOSPITAL, BUFFALO, NEW YORK, THE J AND N METAL AND STEEL COMPANY SUBMITTED A BID DATED MARCH 24, 1964, OFFERING TO PURCHASE ITEMS NOS. 1 AND 2, EACH OF WHICH COVERED ONE GROUP OF USED LAUNDRY EQUIPMENT, FOR A TOTAL PRICE OF $23,460. THE BID OF THE J AND N METAL AND STEEL COMPANY, BEING THE HIGHEST OF THREE BIDS RECEIVED FOR THE EQUIPMENT, WAS ACCEPTED ON APRIL 20, 1964, BY THE HOSPITAL SUPPLY DIVISION, THEREBY CONSUMMATING CONTRACT NO. V5208S-31. DUE TO DIFFICULTIES ENCOUNTERED IN THE INSTALLATION OF NEW LAUNDRY EQUIPMENT, THE HOSPITAL HAS NOT BEEN ABLE TO RELEASE THE USED EQUIPMENT COVERED BY THE CONTRACT TO THE J AND N METAL AND STEEL COMPANY, NOR HAS IT BEEN ABLE TO GIVE THE CONTRACTOR INFORMATION AS TO A PROBABLE RELEASE DATE FOR THE EQUIPMENT. IN VIEW OF THIS, THE CONTRACTOR HAS REQUESTED CANCELLATION OF THE CONTRACT AND A REFUND OF ITS BID DEPOSIT. THIS HAS PROMPTED THE DEPUTY ADMINISTRATOR'S REQUEST FOR A DECISION FROM OUR OFFICE IN THE MATTER.

THE RECORDS SHOW THAT CONTRACT NO. V5208S-31 WAS AWARDED TO THE J AND N METAL AND STEEL COMPANY ON APRIL 20, 1964. IT FURTHER SHOWS THAT BY LETTER DATED APRIL 20, 1964, THE GOVERNMENT CONTRACTING OFFICER ADVISED THE COMPANY THAT ITS BID WAS BEING ACCEPTED AND ALSO THAT IT WAS ANTICIPATED THAT THE EQUIPMENT COVERED BY THE CONTRACT WOULD BE AVAILABLE FOR DELIVERY TO THE COMPANY ON OR BEFORE JUNE 1, 1964. HOWEVER, IN RESPONSE TO SUBSEQUENT INQUIRIES MADE BY THE J AND N METAL AND STEEL COMPANY ON JUNE 10, AND JULY 6, 1964, THE COMPANY WAS ADVISED THAT A POSITIVE DATE FOR RELEASE OF THE EQUIPMENT COULD NOT BE GIVEN AT THAT TIME. MOREOVER, IT IS OBVIOUS THAT AS LATE AS THE DATE OF THE SUBMISSION OF THE DEPUTY ADMINISTRATOR'S REQUEST FOR OUR DECISION IN THE MATTER, OR FOUR MONTHS AFTER THE CONTRACT WAS AWARDED, THE HOSPITAL STILL IS NOT IN A POSITION TO GIVE A DEFINITE DELIVERY DATE, DUE TO THE DIFFICULTIES ENCOUNTERED IN THE INSTALLATION OF THE NEW LAUNDRY EQUIPMENT. IT IS FUNDAMENTAL THAT WHEN A CONTRACT TO SELL CONTAINS NO AGREEMENT AS TO TIME OF DELIVERY OF GOODS, THE LAW REQUIRES THAT DELIVERY BE MADE WITHIN A REASONABLE TIME. GALASSO V. COWLES, 75 A.2D 46. WE AGREE WITH THE OPINION OF THE DEPUTY ADMINISTRATOR THAT A REASONABLE PERIOD OF TIME HAS ELAPSED DURING WHICH THE COMPANY MIGHT HAVE EXPECTED THE LAUNDRY EQUIPMENT TO BE RELEASED TO IT AND THAT THE FACTS DO NOT WARRANT REQUIRING THE COMPANY TO WAIT A STILL FURTHER PERIOD OF TIME FOR SUCH DELIVERY, PARTICULARLY WHEN A PROBABLE DELIVERY DATE DOES NOT APPEAR TO BE ANY MORE FORESEEABLE NOW THAN BEFORE.

ACCORDINGLY, THE J AND N METAL AND STEEL COMPANY MAY BE RELEASED FROM CONTRACT NO. V5208S-31 AND THE BID DEPOSIT RETURNED TO THE COMPANY.