B-161450, MAY 22, 1967

B-161450: May 22, 1967

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DUN'S MARKET IDENTIFIERS SERVICE") WILL BE USED EXCLUSIVELY BY THE DOMESTIC AND INTERNATIONAL BUSINESS AREA OF THE U.S. THE SIGNATORIES TO THE CONTRACT APPEAR TO HAVE A REASONABLE BASIS FOR BELIEVING THAT THE ACTION YOU PROPOSE WOULD CONSTITUTE A BREACH OF THE CONTRACT. WE ARE UNABLE TO CONCLUDE THAT THE ARGUMENTS TO THE CONTRARY WHICH ARE PRESENTED IN YOUR LETTER WOULD CONSTITUTE AN ADEQUATE DEFENSE TO A BREACH OF CONTRACT CLAIM BY THE CONTRACTOR.

B-161450, MAY 22, 1967

TO ADMINISTRATOR, SMALL BUSINESS ADMINISTRATION:

IN YOUR LETTER OF MAY 4, 1967, YOU REQUESTED OUR OPINION REGARDING THE LEGALITY OF ARTICLE 5A OF CONTRACT NO. C-310-66, EXECUTED BY THE DEPARTMENT OF COMMERCE AND DUN AND BRADSTREET, INC. ARTICLE 5A PROVIDES THAT THE PRODUCT SUPPLIED BY THE CONTRACTOR (A MAGNETIC TAPE FILE KNOWN AS ,DUN'S MARKET IDENTIFIERS SERVICE") WILL BE USED EXCLUSIVELY BY THE DOMESTIC AND INTERNATIONAL BUSINESS AREA OF THE U.S. DEPARTMENT OF COMMERCE IN FULFILLMENT OF ITS STATUTORY AND RECOGNIZED MISSION.

YOUR LETTER INDICATES THAT YOU BELIEVE ARTICLE 5A DOES NOT PROHIBIT THE DEPARTMENT OF COMMERCE FROM GIVING YOUR AGENCY THE RIGHT TO USE THE SERVICES FURNISHED BY DUN AND BRADSTREET UNDER THE CONTRACT. HOWEVER, THE SIGNATORIES TO THE CONTRACT APPEAR TO HAVE A REASONABLE BASIS FOR BELIEVING THAT THE ACTION YOU PROPOSE WOULD CONSTITUTE A BREACH OF THE CONTRACT, AND WE ARE UNABLE TO CONCLUDE THAT THE ARGUMENTS TO THE CONTRARY WHICH ARE PRESENTED IN YOUR LETTER WOULD CONSTITUTE AN ADEQUATE DEFENSE TO A BREACH OF CONTRACT CLAIM BY THE CONTRACTOR.

IN VIEW OF THE ABOVE, WE BELIEVE IT WOULD BE INAPPROPRIATE FOR THIS OFFICE TO CONSIDER RECOMMENDING THAT THE DEPARTMENT OF COMMERCE ACQUIESCE IN YOUR VIEWS.