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RMS had been performing building maintenance and repair at a Navy facility. After four months of performance,

which the vice-commander considered to be substandard, a major problem developed after a severe thunderstorm. A lightning strike at each of two buildings severely damaged each building's electrical generator and left the buildings without electricity. Also, as a result of the lightning strikes, the self-contained back-up electrical power systems at the two buildings no longer functioned. The intrusion systems in each building work on emergency battery power for not more than 6 hours. The contract provides that emergency repairs must be made within 24 hours after system failure.

 

The thunderstorm ended at 1800, June 12th. The contractor personnel at the site were aware of the problem, but were unable to get replacement generating equipment. At 1900 the vice-commander contacted the contracting officer and told her that the two buildings must be operational by 0630 the next day. Gleason, the President of RMS, was immediately informed of this. Gleason responded that was impossible. After being told this was an emergency, he responded that his requirement for emergency response did not pertain to Acts of God. The commander of the Engineer Battalion was then contacted and asked to provide emergency generators for the buildings. He did and the buildings were operational by 0700. At 0800, 13 June, the vice commander, after being briefed on the events of the preceding evening, ordered the contracting officer to terminate the contract with RMS and to do whatever was necessary to get the buildings maintained. The contracting officer issued a verbal order for building maintenance to Butler Industries, the next-in-line offeror. At 1630, 13 June, she faxed Mr. Gleason of RMS a notice of termination for default. RMS has appealed the contracting officer's final termination for default decision.

 

Assignment: Identify and discuss what arguments RMS would likely make in support of its appeal.

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