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CHAPTER ONE

ESSENTIAL ELEMENTS OF A CONTRACT

Section 1. Offer and Acceptance

BART MANUFACTURING CORPORATION

ASBCA No. 13029 (1968)

The Government has moved to dismiss the above-captioned appeal, upon alternative grounds that (1) there is no contract between the parties and (2) because of the absence of Termination clauses, concluding that "there are no contract provisions which expressly or impliedly provide for the price adjustment sought."

This procurement, with a dollar value of $2,400, was instituted by a unilateral purchase order on DD Form 1155. The face of the order states that it is a "Confirmation of Phone Order with Mr. Lewis 11/4/65." There is nothing in the record to show the substance of the said telephone conversation. The purchase order does not contain Changes, Termination for Default, or Termination for Convenience clauses.

The record does suggest that the order followed an unsolicited proposal from the appellant. There are no facts alleged or proved which would show the substance of the proposal. However, the contract item is described in the order as a "Reflector, 30-inch diameter, 9 3/4 inch focal length, Rhodium coated, .1 inch diameter Circle of Confusion, Bart Manufacturing Corporation Stock No. 30-100."

On December 21, 1965, appellant delivered a reflector to the engineer in the office which had made the purchase request. Although an unsworn statement by this engineer alleges that the reflector was not completed, and that it was received for testing of the circle of confusion only, appellant submitted an invoice for the full contract price on December 23, 1965. The latter action leads to the conclusion that appellant believed it had filled the order.

The Government's initial position is "that the DD Form 1155 order was an offer which never ripened into a unilateral contract because of the Appellant's failure to perform the required delivery within the time sequence. The fact is, whether the initial delivery of December 21, 1965 did or did not constitute performance of the purchase order, as amplified

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