
    No. 447-75.
    April 4, 1978
    Blue Spruce International
   Contracts; disputes; default termination; failure of delivery; abandonment of performance; impossibility of performance; bad faith charge; reprocurement costs; duty to mitigate. — Plaintiff, as low bidder, was awarded a contract to supply insecticides to the General Services Administration; the contract was terminated for default in performance; and reprocurement costs were assessed against plaintiff. Plaintiff seeks Wunderlich Act review of the decision of the contract appeals board sustaining both actions. In a recommended decision reported in full at 24 CCF para. 81,815, Trial Judge Roald A. Hogenson concluded that the board’s decision is entitled to finality; that plaintiffs charges that the contracting officer and quality control officer acted negligently or in bad faith are not sustainable on the record; that plaintiff has not sustained its burden of proving impossibility of contract performance; and that the contracting officer satisfied her duty to mitigate damages in reprocuring from the original bidders without readvertising because under the default clause language the contracting officer has broad discretion in reprocurement of supplies upon contractor default, it is permissible to negotiate with prior bidders on the original solicitation, and the original bidders requoted the same prices as they had before. On April 4, 1978, by order, the court adopted the trial judge’s recommended decision as the basis for its judgment in this case, denied plaintiffs motion for summary judgment, granted defendant’s cross-motion, entered judgment for defendant on its counterclaim against plaintiff for assessed reprocurement costs of $7,204, and dismissed the petition.  