
    No. 440-77.
    June 29, 1979
    Angler’s Company, Ltd.
   Plaintiff contractor seeks exemption from excess costs of reprocurement and recapture of such costs which have been paid. Plaintiff entered into a contract with defendant to supply plastic portfolios fabricated from polyvinyl chloride (PVC). Due to a petroleum shortage plaintiff was unable to obtain from any source the required grade of PVC. In seeking such supply the plaintiff did not formally invoke the defense priority rating contained in the contract. The contract was terminated for default in delivery and the defendant charged plaintiff with the excess costs of reprocurement. The General Services Administration Board of Contract Appeals held that plaintiffs failure to exercise its defense priority rating established per se a failure to prove that in fact the necessary PVC was unavailable. 76-2 BCA j| 12,065 and, on reconsideration, 77-1 BCA |f 12,319. On March 19, 1979, Trial Judge C. Murray Bernhardt filed a recommended opinion (reported in full at 26 CCF ¶ 83,161) reversing the Board’s decision. The trial judge found that the plaintiffs failure to assert the priority rating was a factor in determining whether the plaintiff had exercised sufficient diligence in attempting to obtain the supplies but should not be solely determinative of that issue. The Contractor could establish collaterally and independently that the material was actually or commercially unavailable upon a showing of exhaustive efforts having been made to acquire the necessary materials. The trial judge concluded that the required PVC was indeed unavailable, invoking the rating would not have made it available and the contractor made a diligent effort to obtain it. Therefore the plaintiffs failure to deliver was excused and the contractor found not liable for excess reprocurement costs. On June 29, 1979 the court, by order, adopted the recommended decision and the parties’ stipulation as to damages as the bases for its judgment in this case and entered judgment for plaintiff in the amount of $42,866.37, comprised of $37,889.77 recaptured by defendant for excess reprocurement costs by withholding under another contract, and interest through June 1,1979 in the amount of $4,976.60. Plaintiff is further entitled to interest from and after June 1, 1979 to and including the date of final judgment in the additional amount of $8.21 per day.  