B-180850, APR 15, 1974

B-180850: Apr 15, 1974

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PROTEST BY SUPPLIER AGAINST CANCELLATION OF ITS PURCHASE ORDER BY PRIME CONTRACTOR UNDER FEDERALLY FUNDED LOCAL PROJECT BECAUSE OF ITS ALLEGED FAILURE TO FURNISH EQUIPMENT CONFORMING TO SPECIFICATIONS IS NOT FOR CONSIDERATION BY GAO SINCE THERE IS NO PRIVITY OF CONTRACT BETWEEN THE UNITED STATES AND THE SUPPLIER. AFTER A PERIOD OF SIX WEEKS DURING WHICH SUCH APPROVAL WAS NOT OBTAINED. IT WAS CANCELLING ITS ORDER WITH NEEDHAM AND PROCURING THE SUPPLIES ELSEWHERE. IT DOES NOT APPEAR THAT THE UNITED STATES IS A PARTY TO THAT CONTRACT. NORMALLY WHERE THE GOVERNMENT ENTERS INTO A PRIME CONTRACT THERE IS NO PRIVITY OF CONTRACT BETWEEN THE GOVERNMENT AND A SUBCONTRACTOR OF A GOVERNMENT PRIME CONTRACTOR.

B-180850, APR 15, 1974

PROTEST BY SUPPLIER AGAINST CANCELLATION OF ITS PURCHASE ORDER BY PRIME CONTRACTOR UNDER FEDERALLY FUNDED LOCAL PROJECT BECAUSE OF ITS ALLEGED FAILURE TO FURNISH EQUIPMENT CONFORMING TO SPECIFICATIONS IS NOT FOR CONSIDERATION BY GAO SINCE THERE IS NO PRIVITY OF CONTRACT BETWEEN THE UNITED STATES AND THE SUPPLIER.

TO NEEDHAM HYDRAULICS, INC.:

THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (EPA) HAS FURNISHED A GRANT TO THE TOWN OF SUNDERLAND, MASSACHUSETTS, TO AID IN ITS WATER POLLUTION CONTROL PROJECT (NO. C250250-01). UNDER CONTRACT NO. 2, THE TOWN SELECTED WARNER BROTHERS, INCORPORATED, AS THE PRIME CONTRACTOR AND THE FIRM OF TIGHE AND BOND AS CONSULTING ENGINEERS. WARNER BROTHERS CONTRACTED WITH NEEDHAM HYDRAULICS, INCORPORATED TO OBTAIN PUMPS FOR THE PROJECT SEWAGE PUMPING STATIONS. SUBSEQUENTLY, THE CONSULTING ENGINEERS REFUSED TO APPROVE THE PUMPS WHICH NEEDHAM INTENDED TO FURNISH ON THE BASIS THAT THEY DID NOT MEET THE SPECIFICATIONS. NEEDHAM HYDRAULICS CONTENDED THAT THE PUMPS DID IN FACT COMPLY WITH PROJECT REQUIREMENTS, AND ATTEMPTED TO SECURE APPROVAL FOR ITS PUMPS FROM THE APPROPRIATE AGENCIES. AFTER A PERIOD OF SIX WEEKS DURING WHICH SUCH APPROVAL WAS NOT OBTAINED, WARNER BROTHERS NOTIFIED NEEDHAM HYDRAULICS ON MARCH 11, 1974 THAT, AS THE PUMPS TO BE SUPPLIED BY NEEDHAM DID NOT MEET THE SPECIFICATION REQUIREMENTS, IT WAS CANCELLING ITS ORDER WITH NEEDHAM AND PROCURING THE SUPPLIES ELSEWHERE.

NEEDHAM HYDRAULICS, INCORPORATED HAS FILED A PROTEST WITH THIS OFFICE AGAINST CANCELLATION OF ITS CONTRACT.

ESSENTIALLY THE REQUEST FOR ACTION BY THIS OFFICE RELATES TO THE QUESTION OF NEEDHAM'S COMPLIANCE WITH THE PROVISIONS OF ITS CONTRACT WITH WARNER BROTHERS. HOWEVER, IT DOES NOT APPEAR THAT THE UNITED STATES IS A PARTY TO THAT CONTRACT. NORMALLY WHERE THE GOVERNMENT ENTERS INTO A PRIME CONTRACT THERE IS NO PRIVITY OF CONTRACT BETWEEN THE GOVERNMENT AND A SUBCONTRACTOR OF A GOVERNMENT PRIME CONTRACTOR. SEE MERRITT V. UNITED STATES, 267 U.S. 338 (1925) AND BRISTER & KROESTER LUMBER CORP. V. UNITED STATES, 90 F. SUPP. 695 (CT. CL. 1950). AS A RESULT THIS OFFICE HAS NO JURISDICTION TO RESOLVE DISPUTES BETWEEN A PRIME CONTRACTOR AND ITS SUBCONTRACTOR. B-170681, OCTOBER 22, 1970. HERE THE INVOLVEMENT OF THE FEDERAL GOVERNMENT IS EVEN FURTHER REMOVED IN THAT THE PRIME CONTRACT WAS AWARDED BY THE GRANTEE OF FEDERAL FUNDS.

ACCORDINGLY, WE FIND NO BASIS UPON WHICH WE MAY PASS ON THE MERITS OF THE CANCELLATION OF NEEDHAM'S CONTRACT.