B-160612, JAN. 16, 1967

B-160612, JAN. 16, 1967

TO PECK IRON AND METAL COMPANY, INC.:

WE REFER TO YOUR LETTER OF DECEMBER 27, 1966, WITH ENCLOSURES, CONCERNING YOUR CONTRACT WITH THE UNITED STATES NO. 25-7015-005 AWARDED AUGUST 12, 1966, FOR THE PURCHASE AND REMOVAL OF A SURPLUS DOCK PORTAL CRANE LOCATED AT DOCK NO. 4, NORFOLK NAVAL SHIPYARD, PORTSMOUTH, VIRGINIA.

IT APPEARS FROM THE INFORMATION FURNISHED BY YOU THAT YOU WERE PREVENTED FROM COMMENCING REMOVAL OPERATIONS OF THE CRANE ON AUGUST 17, AS PLANNED, BECAUSE OF THE GOVERNMENT'S NEED FOR DRYDOCK NO. 4 DURING THE PERIOD AUGUST 23 THROUGH 26 TO MAKE EMERGENCY REPAIRS ON THE USS SHANGRI LA. ALTHOUGH THE CONTRACT APPEARS TO HAVE CONTEMPLATED UNDER ARTICLE G OF THE SPECIAL CONDITIONS ONLY THE GRANTING OF ADDITIONAL REMOVAL TIME TO THE PURCHASER FOR SUCH CAUSES, THE CONTRACTING OFFICER AGREED BY MODIFICATION NO. 1, AUGUST 22, 1966, THAT THE GOVERNMENT WOULD LOAD THE CRANE ON YOUR FLOATING EQUIPMENT. IT FURTHER APPEARS THAT YOU WERE SUBSEQUENTLY ADVISED BY LETTER OF OCTOBER 28, 1966, FROM THE CONTRACTING OFFICER THAT THE NORFOLK NAVAL SHIPYARD WAS UNABLE TO LOAD THE CRANE, AND THAT IN LIEU OF SUCH ACTION THE GOVERNMENT WOULD EITHER ENTER INTO A MUTUAL NO-COST CANCELLATION OF THE CONTRACT OR PROVIDE YOU WITH SPECIFIED ASSISTANCE IN LOADING THE CRANE WITH AN EQUITABLE ADJUSTMENT IN THE CONTRACT PRICE. SINCE YOU DID NOT INDICATE THAT EITHER OF THE PROPOSED ACTIONS SET FORTH IN THE LETTER OF OCTOBER 28 WAS AGREEABLE TO YOU, THE CONTRACTING OFFICER ADVISED YOU BY LETTER OF DECEMBER 23 THAT UNLESS AN AGREEMENT WAS REACHED IN THE MATTER BY JANUARY 20, 1967, HE WOULD REFUND YOUR PURCHASE PRICE AND OTHERWISE DISPOSE OF THE CRANE.

IN YOUR LETTER OF DECEMBER 27 YOU REQUEST OUR OPINION AS TO:

"1. WHETHER THE DSA HAS THE AUTHORITY TO ENTER INTO A CONTRACT WITH LOCAL CONTRACTORS TO PERFORM ITS OBLIGATIONS UNDER THE SUPPLEMENTAL AGREEMENT.

"2. WHETHER A UNILATERAL BREACH OF THE CONTRACT BY DSA WOULD FALL WITHIN THE LIMITATION OF LIABILITY CLAUSE, IN LIGHT OF THE FREEDMAN DECISION.'

IT APPEARS THAT YOUR REQUEST IS MADE FOR THE PRINCIPAL PURPOSE OF HAVING OUR VIEWS TO EITHER INFLUENCE THE CONTRACTING OFFICER'S ACTION IN THIS MATTER OR FOR CONSIDERATION IN REACHING A JUDGMENT AS TO WHETHER IT WOULD BE IN YOUR BEST INTEREST TO AGREE TO ONE OF THE SOLUTIONS TO THE MATTER AS PROPOSED BY THE CONTRACTING OFFICER OR, BY NOT EFFECTING A MUTUAL AGREEMENT, COMPEL THE CONTRACTING OFFICER TO PROCEED WITH THE INDICATED UNILATERAL ACTION. IT SHOULD BE NOTED IN SUCH CONNECTION THAT EVEN IF IT MIGHT BE VIEWED THAT DEFENSE SUPPLY AGENCY POSSESSES THE AUTHORITY TO ENTER INTO A SEPARATE CONTRACT FOR LOADING THE CRANE, ANY EXERCISE OF SUCH AUTHORITY WOULD SEEM TO BE A MATTER RESTING WITHIN THE ADMINISTRATIVE DISCRETION OF THAT AGENCY.

IN ANY EVENT DETERMINATIONS AS TO CONTEMPLATED INDIVIDUAL COURSES OF ACTION AND THE POSSIBLE CONSEQUENCES THEREOF IN CONNECTION WITH THE PERFORMANCE (OR NONPERFORMANCE) AND ADMINISTRATION OF GOVERNMENT CONTRACTS ARE PRIMARILY THE RESPONSIBILITY OF THE CONTRACTING PARTIES. FURTHER, IT IS NOT A FUNCTION OF THIS OFFICE TO ASSIST GOVERNMENT CONTRACTORS IN SUCH CONSIDERATIONS BY FURNISHING LEGAL ADVICE AS TO WHETHER CERTAIN COURT DECISIONS HAVE APPLICATION TO THE PARTICULAR CIRCUMSTANCES ARISING IN CONNECTION WITH THEIR GOVERNMENT CONTRACTS, OR BY DEFINING THE RIGHTS AND RESPONSIBILITIES OF THE PARTIES IN SITUATIONS WHICH MAY OR MAY NOT OCCUR.

IN VIEW THEREOF, AND CONSIDERING THAT YOUR QUESTIONS ARE NOT OF THE TYPE USUALLY ANSWERED IN CONNECTION WITH BIDDERS' PROTESTS TO THE COMPTROLLER GENERAL CONCERNING PROPOSED OR ACTUAL AWARDS OF GOVERNMENT CONTRACTS, AS WELL AS THE HYPOTHETICAL NATURE OF THE SECOND PART OF YOUR REQUEST, WE DO NOT CONSIDER IT APPROPRIATE UNDER THE AUTHORITY SET FORTH IN 31 U.S.C. 74 AND 82D TO RENDER A DECISION ON THE QUESTIONS PRESENTED.