B-157120, JUL. 20, 1965

B-157120: Jul 20, 1965

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TO ACCURATE LENS LABORATORIES: REFERENCE IS MADE TO YOUR LETTER OF JUNE 10. YOUR LETTER WAS PROMPTED BY THE FOLLOWING PORTION OF OUR LETTER: "THE ACCEPTANCE OF YOUR PROPOSAL AND AWARD OF THE CONTRACT TO YOU GAVE RISE TO A VALID AND BINDING CONTRACT. YOU INTERPRET THIS LANGUAGE TO MEAN THAT THE GOVERNMENT WILL ACCEPT RETURN OF THE PROPERTY ON SOME UNSTATED TERMS. ARE QUESTIONS FOR DETERMINATION BY THE DISPOSAL AGENCY RATHER THAN BY THIS OFFICE. SINCE THE PURPOSE OF THE SUBJECT CONTRACT WAS TO DISPOSE OF SUCH PROPERTY.

B-157120, JUL. 20, 1965

TO ACCURATE LENS LABORATORIES:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 10, 1965, WHICH REFERS TO OUR LETTER OF JUNE 8, 1965, DISALLOWING YOUR CLAIM FOR REFUND OF THE AMOUNT PAID FOR CERTAIN SURPLUS PROPERTY UNDER CONTRACT NO. DSA 46-S 5490.

YOUR LETTER WAS PROMPTED BY THE FOLLOWING PORTION OF OUR LETTER:

"THE ACCEPTANCE OF YOUR PROPOSAL AND AWARD OF THE CONTRACT TO YOU GAVE RISE TO A VALID AND BINDING CONTRACT, THE TERMS OF WHICH CANNOT LEGALLY BE MODIFIED TO THE PREJUDICE OF THE UNITED STATES WITHOUT COMPENSATING BENEFIT OR CONSIDERATION AS STATED IN THE CONTRACT.'

YOU INTERPRET THIS LANGUAGE TO MEAN THAT THE GOVERNMENT WILL ACCEPT RETURN OF THE PROPERTY ON SOME UNSTATED TERMS, AND YOU ASK TO BE ADVISED WHAT SUCH TERMS WOULD BE.

SINCE ACCEPTANCE BY THE GOVERNMENT OF YOUR OFFER TO PURCHASE THE PROPERTY INVOLVED AT THE PRICE STATED RESULTED IN A VALID AND BINDING CONTRACT, THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO BECAME FIXED. UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313. THE RIGHT THEREFORE VESTED IN THE GOVERNMENT TO RECEIVE PERFORMANCE STRICTLY IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE CONTRACT, AND NO OFFICER OR AGENT OF THE GOVERNMENT HAS AUTHORITY TO MODIFY THE CONTRACT OR TO WAIVE OR SURRENDER THE RIGHT AND RELIEVE YOU OF THE CONTRACT OBLIGATION WITHOUT CONSIDERATION OR A COMPENSATING BENEFIT THEREFOR MOVING TO THE GOVERNMENT. BAUSCH AND LOMB OPTICAL COMPANY V. UNITED STATES, 78 CT.CL. 584, 607. WHETHER PROPERTY MAY BE RETURNED AFTER ITS SALE, AND IF SO THE TYPE AND AMOUNT OF "CONSIDERATION" OR "COMPENSATORY BENEFIT" WHICH MIGHT BE REQUIRED, ARE QUESTIONS FOR DETERMINATION BY THE DISPOSAL AGENCY RATHER THAN BY THIS OFFICE. HOWEVER, IT WOULD NOT APPEAR THAT RETURN OF THE PROPERTY AND REFUND OF THE PURCHASE PRICE WOULD SATISFY THE REQUIREMENT FOR CONSIDERATION OR A COMPENSATING BENEFIT TO THE GOVERNMENT, SINCE THE PURPOSE OF THE SUBJECT CONTRACT WAS TO DISPOSE OF SUCH PROPERTY.

WE TRUST THAT THE FOREGOING SERVES TO CLARIFY THE LANGUAGE IN OUR DISALLOWANCE OF JUNE 8, 1958, AND WE SUGGEST THAT ANY FURTHER QUESTIONS RELATIVE TO RETURN OF THE PROPERTY BE DIRECTED TO THE DISPOSAL AGENCY.