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B-164932, DEC. 6, 1968

B-164932 Dec 06, 1968
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POSTMASTER GENERAL: ENCLOSED IS A COPY OF OUR DECISION OF THIS DATE TO NEWGARD INDUSTRIES. THIS PROTEST WAS THE SUBJECT OF A LETTER DATED AUGUST 29. WE WISH TO BRING FORCEFULLY TO YOUR ATTENTION THAT A SUBSTANTIAL BASIS EXISTED TO JUSTIFY TERMINATION OF THE CONTRACT AWARDED TO AUTOSCOPE UPON ASCERTAINMENT THAT THE CONTRACT WAS NOT BEING PERFORMED IN ACCORDANCE WITH ITS TERMS. WHILE A CONTRACT IS MERELY VOIDABLE AT THE OPTION OF THE GOVERNMENT UPON DISCOVERY AFTER AWARD THAT A CERTIFICATION MADE IN GOOD FAITH WAS IN ERROR. IT IS AN UNQUALIFIED PROMISE THAT A SMALL BUSINESS WILL IN FACT PERFORM THE CONTRACT. THE RIGHT OF THE GOVERNMENT TO RECEIVE PERFORMANCE IN STRICT ACCORDANCE WITH THE CONTRACT TERMS IS WELL ESTABLISHED AND MAY NOT BE WAIVED IN THE ABSENCE OF CONSIDERATION.

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B-164932, DEC. 6, 1968

TO MR. POSTMASTER GENERAL:

ENCLOSED IS A COPY OF OUR DECISION OF THIS DATE TO NEWGARD INDUSTRIES, INCORPORATED, RESPECTING THEIR PROTEST AGAINST AWARD TO AUTOSCOPE, INCORPORATED, UNDER INVITATION FOR BIDS NO. 122 FOR CANVAS SATCHELS. THIS PROTEST WAS THE SUBJECT OF A LETTER DATED AUGUST 29, 1968, JTD:CAM 12-B-1, FROM YOUR ASSISTANT GENERAL COUNSEL.

WE WISH TO BRING FORCEFULLY TO YOUR ATTENTION THAT A SUBSTANTIAL BASIS EXISTED TO JUSTIFY TERMINATION OF THE CONTRACT AWARDED TO AUTOSCOPE UPON ASCERTAINMENT THAT THE CONTRACT WAS NOT BEING PERFORMED IN ACCORDANCE WITH ITS TERMS. WHILE A CONTRACT IS MERELY VOIDABLE AT THE OPTION OF THE GOVERNMENT UPON DISCOVERY AFTER AWARD THAT A CERTIFICATION MADE IN GOOD FAITH WAS IN ERROR, IN THIS INSTANCE NEWGARD PROMISED THAT THE ITEM CALLED FOR BY THE CONTRACT WOULD BE MANUFACTURED BY A SMALL BUSINESS CONCERN. THAT STATEMENT UNLIKE THE SMALL BUSINESS CERTIFICATION DOES NOT INVOLVE A "GOOD FAITH" REPRESENTATION OR STATEMENT AS TO A BELIEF CONCERNING SIZE STATUS. RATHER, IT IS AN UNQUALIFIED PROMISE THAT A SMALL BUSINESS WILL IN FACT PERFORM THE CONTRACT. THE RIGHT OF THE GOVERNMENT TO RECEIVE PERFORMANCE IN STRICT ACCORDANCE WITH THE CONTRACT TERMS IS WELL ESTABLISHED AND MAY NOT BE WAIVED IN THE ABSENCE OF CONSIDERATION. COMP. GEN. 260; DAY V UNITED STATES, 245 U.S. 159.

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