Impossibility of Performance Assumption of Risk or Act of Submission?

Abstract

* A.B. I934, St. Vincent College (Latrobe, Pa.); LL.B. I937, Harvard University. Member of the New York and District of Columbia bars; partner in the firm of Sellers, Conner & Cuneo; Chairman, Public Contracts Division, American Bar Association. Contributor to legal periodicals. Author, GOVERNMENT CONTRACTS HANDBOOK (1962). t A.B. I948, Princeton University; LL.B. I95I, University of Virginia; member of the Connecticut and District of Columbia bars; partner in the firm of Sellers, Conner & Cuneo. Contributor to legal periodicals. The authors wish to acknowledge the assistance of Thomas H. Truitt, an Associate in the firm of Sellers, Conner & Cuneo, and a member of the Virginia bar. 1The Austin Co. v. United States, 314 F.2d 518, 5I9 (Ct. Cl. I963). 2 Hol-Gar-Mfg Co., ASBCA No. 6865, 62 BCA ?355i at I8.oo8; motion for reconsideration denied, February 5, I964. lPilson, Negotiated Contracts, I8 FED. B.J. I26, 127 (I958), wherein the author states that over 8o0% of the dollars involved in procurement by the Department of Defense was spent under negotiated contracts. See generally, How TO IMPROVE FEDERAL PROCEDURES FOR BUYING NATIONAL DEFENSE MATERIALS, REPORT TO SENATOR GEORGE A. SMATHERS, PREPARED BY His MILITARY PROCUREMENT ADVISORY COMMITTEE cc. I and IV (1961). 'In I962, out of over 7.5 million transactions entered into by the Department of Defense, 95% were negotiated under one of the I7 exceptions set out in 10 U.S.C. ?? 2304(a)(I)-(I7) (1958). Contracts involving less than $2,500 (80%) and purchases outside the United States (9%) accounted for most of this bulk. Turning from number of transactions to dollar figures, out of 28.I billion dollars spent via defense contracts, 87% was spent through the medium of negotiated contracts. ' Pilson, supra note 3.