B-207036.OM, MAY 17, 1982

B-207036.OM: May 17, 1982

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DIGEST: CONTRACTOR'S CLAIM FOR PREDELIVERY ORDER COSTS OF PERFORMANCE MAY BE PAID ON QUANTUM MERUIT BASIS WHERE RECORD SHOWS THAT PERFORMANCE SUBSEQUENT TO THE EFFECTIVE DATE OF THE CONTRACT BUT PRIOR TO THE ISSUANCE OF A DELIVERY ORDER WAS TO THE SATISFACTION OF THE GOVERNMENT AND THE CONTRACTING OFFICER HAS RATIFIED THE ACTION. THE EFFECTIVE DATE OF THE CONTRACT WAS MARCH 16. ALTHOUGH PERFORMANCE UNDER THE CONTRACT WAS TO OCCUR ONLY AS AUTHORIZED BY DELIVERY ORDERS ISSUED IN ACCORDANCE WITH THE ORDERING CLAUSE OF THE CONTRACT. THIS URGENCY RESULTED FROM AN ACCELERATED TESTING SCHEDULE AND WAS EXACERBATED BY A DELAY OF NEARLY 4 MONTHS IN AWARDING THE CONTRACT TO ORI. ORI'S ACCOUNT OF THE FACTS IS CORRECT.

B-207036.OM, MAY 17, 1982

DIGEST: CONTRACTOR'S CLAIM FOR PREDELIVERY ORDER COSTS OF PERFORMANCE MAY BE PAID ON QUANTUM MERUIT BASIS WHERE RECORD SHOWS THAT PERFORMANCE SUBSEQUENT TO THE EFFECTIVE DATE OF THE CONTRACT BUT PRIOR TO THE ISSUANCE OF A DELIVERY ORDER WAS TO THE SATISFACTION OF THE GOVERNMENT AND THE CONTRACTING OFFICER HAS RATIFIED THE ACTION.

ASSOCIATE DIRECTOR, AFMD-CLAIMS GROUP:

INDORSEMENT

RETURNED. WITH RESPECT TO A CLAIM FOR PAYMENT PRESENTED BY ORI, INC. (ORI), FOR PREDELIVERY ORDER COSTS IT INCURRED IN CONNECTION WITH TESTING OF THE TRIDENT SUBMARINE, WE CONCLUDE THAT THE CLAIM MAY BE PAID.

THE RECORD FORWARDED WITH YOUR REQUEST INDICATES THAT CONTRACT NO. N00600 -81-D-E834, AWARDED TO ORI BY THE NAVAL REGIONAL CONTRACTING OFFICE, WASHINGTON, D. C., REQUIRED ORI TO PROVIDE ENGINEERING AND TECHNICAL SUPPORT SERVICES IN THE PLANNING AND CONDUCT OF TRIDENT-CLASS SUBMARINE ACOUSTICAL TRIALS. THE EFFECTIVE DATE OF THE CONTRACT WAS MARCH 16, 1981. ALTHOUGH PERFORMANCE UNDER THE CONTRACT WAS TO OCCUR ONLY AS AUTHORIZED BY DELIVERY ORDERS ISSUED IN ACCORDANCE WITH THE ORDERING CLAUSE OF THE CONTRACT, ORI COMMENCED PERFORMANCE PRIOR TO THE ISSUANCE OF THE FIRST THREE DELIVERY ORDERS ON MAY 12, 1981. ORI NOW REQUESTS PAYMENT OF $56,000.09 FOR PREDELIVERY ORDER COSTS OF PERFORMANCE INCURRED FROM MARCH 16 TO MAY 11, 1981.

ORI STATES THAT IT BEGAN TO PERFORM PRIOR TO THE ISSUANCE OF THE DELIVERY ORDERS PRIMARILY BECAUSE OF THE SENSE OF URGENCY CONVEYED TO IT DURING PRECONTRACT DISCUSSIONS WITH VARIOUS TECHNICAL PERSONNEL INVOLVED WITH THE TRIDENT TESTING PROGRAM. THIS URGENCY RESULTED FROM AN ACCELERATED TESTING SCHEDULE AND WAS EXACERBATED BY A DELAY OF NEARLY 4 MONTHS IN AWARDING THE CONTRACT TO ORI. ORI CLAIMS THAT AN UNDERSTANDING DEVELOPED BETWEEN IT AND TECHNICAL PERSONNEL THAT ORI SHOULD BEGIN PERFORMANCE DURING LATE MARCH AND EARLY APRIL 1981. THE TECHNICAL PERSONNEL INDICATE THAT, TO THE BEST OF THEIR RECOLLECTION, ORI'S ACCOUNT OF THE FACTS IS CORRECT. THE CONTRACTING OFFICER RECOMMENDS THAT THE CLAIM BE PAID.

THE RECORD INDICATES THAT ORI'S PREDELIVERY ORDER PERFORMANCE OCCURRED AFTER THE EFFECTIVE DATE OF THE CONTRACT BUT PRIOR TO THE ISSUANCE OF A DELIVERY ORDER. THE RECORD INDICATES FURTHER THAT ORI ACTED IN GOOD FAITH AND THAT ITS WORK WAS ACCOMPLISHED TO THE SATISFACTION OF THE GOVERNMENT. SILVER STATE PAVING, INC., B-197129, DECEMBER 31, 1979, 80-1 CPD 5. THEREFORE, SINCE THE GOVERNMENT RECEIVED A BENEFIT AND THE ACT HAS BEEN RATIFIED BY AN APPROPRIATE CONTRACTING OFFICIAL, WE CONCLUDE THAT THE CLAIM MAY BE PAID ON A QUANTUM MERUIT BASIS IF OTHERWISE PROPER AND CORRECT.