B-117294, OCT 23, 1953

B-117294, OCT 23, 1953

PRECIS-UNAVAILABLE

MAJOR CHARLES LUNGER, U. S. ARMY:

THERE HAS BEEN RECEIVED YOUR LETTER OF SEPTEMBER 18, 1953, (FINEY 167/76147), WITH ENCLOSURES, WHEREIN YOU REQUEST AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON BUREAU VOUCHER NO. 10931, FOR $10,080, IN FAVOR OF THE HAWK TOOL & ENGINEERING COMPANY, CLARKSTON, MICHIGAN, COVERING CERTAIN ITEMS OF AUTOMOTIVE PARTS FURNISHED THE DETROIT ORDNANCE DISTRICT, DEPARTMENT OF THE ARMY, UNDER ITEM NO. 10 OF CONTRACT NO. DA-20- 089-ORD-10931, DATED JANUARY 17, 1951.

OF THE FOUR ITEMS OF PARTS AWARDED THE CLAIMANT BY THE CONTRACT CITED, THREE WERE DELIVERED BY THE SCHEDULED COMPLETION DATE, SEPTEMBER 30, 1951. HOWEVER, BECAUSE OF DELAYS IN THE FURNISHING OF ITEM NO. 10 OF THE BID SCHEDULE, THERE WAS ISSUED TO THE CONTRACTOR ON OCTOBER 25, 1951, A "TEN-DAY WARNING LETTER" INFORMING IT OF THE CONTRACTING OFFICER'S INTENTION TO TERMINATE THE CONTRACT ON OR BEFORE NOVEMBER 5, 1951, IN THE EVENT CERTAIN SPECIFIED CONDITIONS WERE NOT MET BY THAT DATE. AFTER ASCERTAINING THAT THE CONTRACTOR COULD NOT PROMISE A DEFINITE DELIVERY DATE FOR ITEM NO. 10 DUE TO THE FACT THAT ONE OF ITS SUPPLIERS, THE COLUMBUS FORGE AND IRON COMPANY, WAS UNABLE TO OBTAIN THE NECESSARY STEEL, THE CONTRACTING OFFICER, BY LETTER DATED JANUARY 17, 1952, TERMINATED THE CONTRACT.

BY LETTER DATED FEBRUARY 15, 1952, OR LESS THAN 30 DAYS AFTER RECEIPT OF THE TERMINATION NOTICE, THE CONTRACTOR APPEALED THE DECISION OF THE CONTRACTING OFFICER TO THE SECRETARY OF THE ARMY, BUT BEFORE FINAL ACTION COULD BE TAKEN ON SUCH APPEALS, THE CONTRACTOR RECEIVED FROM ITS SUPPLIER A DEFINITE PROMISE OF DELIVERY OF THE NECESSARY FORGINGS BY MARCH, 1952, WHICH INFORMATION WAS COMMUNICATED TO THE CONTRACTING OFFICER BY TELEGRAM DATED FEBRUARY 18, 1952. IN ENSUING NEGOTIATIONS, AN EXTENSION IN THE TIME FOR DELIVERY OF ITEM NO. 10 TO MAY 31, 1952, WAS AGREED TO IN CONSIDERATION FOR THE FURNISHING BY THE CONTRACTOR OF A PERFORMANCE BOND FOR $10,080, REPRESENTING THE CONTRACT VALUE OF THE ITEMS. THEREUPON, THE NOTICE OF TERMINATION WAS RECALLED, THE REQUIRED PERFORMANCE BOND WAS FURNISHED AND THE ITEMS WERE DELIVERED AND ACCEPTED IN JUNE, 1952.

ALTHOUGH THERE WAS CONSIDERED ADMINISTRATIVELY THE PROPRIETY OF ISSUING AN AMENDMENT TO THE CONTRACT TO PROVIDE FOR THE DELIVERY AND ACCEPTANCE OF THE DELINQUENT ITEMS AFTER THE DATE OF TERMINATION, SUCH PROCEDURE DOES NOT APPEAR NECESSARY IN THE CIRCUMSTANCES HERE PREVAILING, ESPECIALLY CONSIDERING THE DELIVERY OF THE SUPPLIES AND THE ACCEPTANCE THEREOF BY THE GOVERNMENT PURSUANT TO THE INFORMAL NEGOTIATIONS CONDUCTED BETWEEN THE PARTIES.

ACCORDINGLY, PAYMENT ON THE VOUCHER IS AUTHORIZED TO BE MADE UPON A QUANTUM MERUIT BASIS, AND FOR SUCH PURPOSE THE PRICE STIPULATED IN THE ORIGINAL CONTRACT MAY BE ACCEPTED AS THE FAIR AND REASONABLE VALUE OF THE ITEM INVOLVED. SEE CLARK V. UNITED STATES, 95 U. S. 539, 542; ST. LOUIS HAY AND GRAIN CO. V. UNITED STATES, 191 ID. 159, 163.

THE VOUCHER AND RELATED PAPERS ARE RETURNED HEREWITH.