B-154659, DEC. 7, 1964

B-154659, DEC. 7, 1964

TO EL MILITAR:

WE HAVE YOUR LETTER DATED NOVEMBER 10, 1964, REQUESTING RECONSIDERATION OF OUR DECISION OF OCTOBER 31, 1964, WHICH DENIED YOUR APPLICATION FOR RELIEF FROM SURPLUS SALES CONTRACT NO. DSA 15-S-4644 COVERING THE PURCHASE BY YOU OF 1,200 PAIRS OF MEN'S COTTON TROUSERS.

ALTHOUGH OUR OFFICE HAS NEITHER CONTESTED NOR CONCEDED YOUR ALLEGATION AS TO THE CONDITION OF THE MERCHANDISE, WE HAVE INFORMED YOU, AND WE NOW REITERATE, THAT THIS FACT IS IRRELEVANT TO THE PRESENT INQUIRY. THE QUESTION FOR DECISION IS WHETHER ACCEPTANCE BY THE GOVERNMENT OF YOUR BID ON ITEM 93 OF INVITATION FOR BIDS NO. 15-S-64 95 GAVE RISE TO A BINDING AND SUBSISTING CONTRACT WHICH IRREVOCABLY FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES TO THE TRANSACTION. AS WE PERCEIVE NO LEGAL DEFECT IN THE PROCEDURES UTILIZED BY THE SALES OFFICE OR IN THE OFFER AND ACCEPTANCE, OUR ANSWER TO THIS QUESTION MUST BE IN THE AFFIRMATIVE AND WE MUST CONCLUDE THAT AS A CONSEQUENCE THERE IS NOW VESTED IN THE UNITED STATES GOVERNMENT THE RIGHT TO RETAIN THE FULL AMOUNT OF THE PURCHASE PRICE PAID BY YOU IN CONNECTION WITH THE RECEIPT OF THE TROUSERS. NO OFFICER OF THE GOVERNMENT IS AUTHORIZED TO WAIVE OR RELEASE RIGHTS VESTED IN THE UNITED STATES UNDER A CONTRACT WITHOUT A COMPENSATING BENEFIT. SIMPSON V. UNITED STATES, 172 U.S. 372; UNITED STATES V. AMERICAN SALES CORPORATION, 27 F.2D 389, AFFIRMED 32 F.2D 141, CERTIORARI DENIED 280 U.S. 574; PACIFIC HARDWARD CO. V. UNITED STATES, 49 CT.CL. 327; BAUSCH AND LOMB OPTICAL CO. V. UNITED STATES, 78 CT.CL. 584.

YOUR LETTER ASKS WHERE AN APPEAL MAY BE TAKEN FROM AN ADVERSE DECISION BY OUR OFFICE. IN ANSWER TO THIS QUESTION MAY WE SUGGEST THE POSSIBILITY OF A SUIT IN AN APPROPRIATE UNITED STATES DISTRICT COURT OR IN THE COURT OF CLAIMS UNDER 28 U.S.C. 1346, 1491, IF, AS IS NOT QUITE CLEAR FROM YOUR LETTER, YOU ARE ALLEGING THAT THE MATERIALS DELIVERED TO YOU WERE NOT THE MATERIALS YOU NOW STATE YOU INSPECTED.