standing alone, is not an offer. Furthermore, respondent's own request for quotations and the regulations governing their use advised appellant that its quotations would not be construed as, or considered, offers.

As against this we have only the buyer's hearsay recital of an alleged verbal understanding arrived at with appellant when appellant called in its price quotation. Under the circumstances, we can accord little probative value to this wholly uncorroborated statement. However, we need not finally determine its probative value, since it shows on its face that the alleged agreement was not made by the contracting officer or anyone else with authority to bind the Government contractually. See Prestex, supra, at 15,321-322; ASPR 16-201.2 supra footnote 2.

The opinion and conclusion of this and the other Government witnesses is also inconsistent with the condition precedent in the notice to proceed. This stated, "No delivery is to be made prior to receipt of the confirming instrument." This, the record shows, was the Purchase Order issued almost 30 days later. Furthermore, applicable regulations provided that issuance of the Purchase Order did not constitute a contract but instead an offer by the Government to appellant. ASPR 16-201.2 supra footnote 2.

We also reject the suggestion that the authorization to proceed be construed as either an elliptical acceptance of an offer from appellant or as a manifestation of part performance by either party. The record shows that the quotations solicited from appellant apparently related to items manufactured by others. There is no evidence that appellant was a manufacturer. On the contrary, what little evidence we have specifically indicates appellant did not intend to produce Item 2 itself. Thus, its letter of November 30, 1966, begins:

"At the time of our Quotation, we had a delivery promise
from the factory of February 18, 1967."

The contracting officer's memorandum of his telephone conversation with appellant on December 29, 1966, states that appellant "stated he would call his source and explain the situation. Appellant's letter of September 19, 1967, to the termination contracting officer contains uncontradicted references to "our supplier's delivery schedule.'

As previously noted, respondent removed from the Rule 4 papers the only contemporaneous record of what it claims occurred when appellant submitted its oral quotation. From this we may, and do, infer that the content of this memorandum would be adverse to the position now advanced by respondent. Interstate Circuit v. United States, 306 U.S. 208, 225-226 (1939); McCormick On Evidence, Section 249, at 535-536 (1954). When all of the surrounding circumstances are considered, we must conclude that the manifestations in the notice to proceed are more consistent with the award of a unilateral than a bilateral contract. Compare Aero Corp., supra, note 8.

Our conclusion in this respect finds affirmation in the terms of the "confirming instrument" or Purchase Order. The Purchase Order clearly informed the contractor that until he accepted the order in writing he might not treat the Purchase Order as a promise on the part of the Government to pay monies due or to become due. Finally, ASPR 3608.5 provides for cancellation of Purchase Orders at any time prior to the supplier's initiation of performance or where accepted in writing on other than prescribed forms without cost or liability to either party.

In passing we note that in Waterman Instrument Corporation, ASBCA No. 11392, 66-2 BCA par. 5783, at 26,902, we accepted as proof of the truth of the facts asserted a statement by appellant's vice president that before the initial delivery date it had ordered, received, inspected and returned to its supplier for reworking the transformers covered by the Purchase Order. Appellant corroborated this statement with evidence from its supplier. From this we concluded there had been sufficient performance to constitute a binding bilateral agreement and denied the Government's motion to dismiss an appeal from a termination under a Default clause in the Purchase Order.

Here appellant's part performance consists only of a statement that appellant had obtained quotations from suppliers who later informed appellant they could not deliver the items. We find this was insufficient performance to give rise to a binding bilateral contract. Restatement of Contracts, Section 45, Comment a. Whatever inferences the Board has felt warranted in drawing from the facts in prior cases concerning the existence of binding or enforceable agreements are not binding on the Board in this case. A meeting of the minds is not to be determined by an inflexible formula or slide rule calculation but upon a consideration of "all surroundin circumstances, including common usage, trade usage, and preliminary negotiations and communications. Shedd, Resolving Ambiguities in Government Contracts, 36 Geo. Wash. L. Rev., 1, 9-10 (1967). In addition, in Government contracts administrative usage and interpretation and applicable administrative regulations are relevant and often controlling. States Marines Lines, Inc., ASBCA No. 11923, 67-2 BCA par. 6714, at 31,106; Walter J. Moeller, ASBCA No. 12352, 68-1 BCA par. 6750, at 31,240; Prestex, supra, at 15,321-22.

Consequently, we cannot view appellant's letter of November 30, 1966, as anything more than a proposal for a mutual no-cost cancellation. Indeed, this was the contemporaneous interpretation placed on it by the contracting officer. The memorandum of his telephone conversation with appellant on December 29, 1966, shows he first informed appellant of the Government's continuing need for Item 2. This is consistent only with the view that the contracting officer understood appellant was asking for cancellation of the order.

Nor does the remainder of the conversation recited aid the Government's position. Appellant never offered to perform if granted an extension of time nor did it request such an extension. Appellant

merely said it would call its supplier "and explain the situation," but that the supplier "might not be able to meet the delivery schedule."

We cannot, therefore, find that appellant ever offered to perform in return for the Government's promise to accept late delivery. There is nothing in the hearsay report of the conversation of December 29, 1966, probative of an "intent" on the part of the parties to promise delivery in return for a promise to extend the time for delivery. At best, like the unilateral correction found in the Modification of November 29, 1966, it served merely to amend the Government's outstanding offer. Compare, Aero Corp., supra, note 8, at 18,375. Without more reliable evidence as to the content of this conversation we cannot conclude that either standing alone, or in the context of events, it gave rise to a binding bilateral contract. Westinghouse Electric Supply Co., ASBCA No. 6068, 60-2 BCA par. 2676, at 13,450.

Nor does the fact that appellant sought cancellation of only one of the two items in its letter of November 30 help respondent. There was no necessary connection between the items, nor was the delivery and payment for one in any way made dependent upon delivery of the other. Compare Flight Test Engineering Co., supra, note 5 at 18,172.

As appellant points out, under applicable law and regulations a Purchase Order is considered a unilateral contract, not binding on either party until the offeree initiates performance or accepts the Government's offer in writing. ASPR 3-608.4(a), 3-608.5, April 1, 1966 and April 3, 1967: ASPR 16-201.2; 16-102.1(b), 1 October 1965 and 1 December 1966; World Electrical Specialties, supra, note 2, at 22,344-45. Not only did this purchase order contain no place for the appellant to indicate acceptance but the appropriate additional General Provisions, including the Default and Termination for Convenience articles, were never included. See ASPR 3-608.4(a), (b); 3-608.5, 1 April 1966, 1 December 1966, 3 April 1967.

Accordingly, we find the Purchase Order in question imposed no enforceable obligation on appellant to perform. We also find that, absent an enforceable contractual obligation and provision for default termination, the contracting officer had no right to unilaterally assess excess costs or to collect damages.

Accordingly, the matter is remanded to the contracting officer for reconsideration of the collection action in the light of findings and opinions expresses herein.

The appeal is dismissed.

This is an appeal by the subject contractor from final decision of the contracting officer, dated 22 November 1965, denying relief requested by the contractor from a demand made upon it under date of 28 July 1965 for the repayment of $15,098.28, allegedly overpaid under the contract. The demand results from a determination by Headquarters Strategic Air Command and Headquarters Fifteenth Air Force, upon review of the contract file, that supplemental agreements numbered 1, 2 and 3 to the subject contract lacked any consideration flowing to the Government, and accordingly, payments made under such supplemental agreements or pursuant thereto were improper, and the Government was therefore entitled to recover the amounts thereof.

This Board has accepted as the appellant's complaint a letter dated 19 January 1966. Under date of 27 May 1966 the Government through its trial attorney filed Motion to Dismiss for alleged lack of timeliness in taking the appeal, and combined therewith an answer to appellant's complaint. The Board set the appeal for hearing on its merits on 31 August 1966, at Great Falls, Montana, and in the course of the proceedings the Government withdrew its Motion to Dismiss. The Board finds that the appellant by letter dated 17 December 1965, within the thirty (30) days for appeal provided for in the Disputes clause of the contract, made clear to the contracting officer its intention to appeal the final decision of the contracting officer in accordance with the provisions of the Disputes clause, and therefore the appeal was taken timely.

The subject contract, awarded the appellant 10 March 1964 pursuant to invitation, bid and award (IFB 24-604-64-46), was an estimated-requirements type contract calling for the operation for one year from date of award of a motor parts store at Malmstrom Air Force Base, Montana (hereafter Malmstrom), with an estimated annual dollar value of some $200,000. contract was extended to 21 March 1965 by Supplemental Agreement [Modification No. 4] executed by the parties.)

(The

The contractor was to supply parts to the Air Force vehicles, cars and trucks in the Government's maintenance shop at Malmstrom at list price less 31%, plus communications and transportation charges. The 31% discount was applicable to all price-listed items, including both common and captive parts. Non-price-listed items were to be invoiced at contractor's cost, plus transportation charges.

The basic bid provided that the store was to be located in space to be provided by the Government at Malmstrom and operated in a fashion similar to the parts department of a commercial garage; that the contractor would issue parts to Government personnel on receipts to be provided by the contractor; that contract payment would be made on the basis of monthly invoices accompanied by signed copies of all such receipts, and that the terms and conditions for the operation of the facility were

as specified in the (contract) schedule. The contract further provided that the contractor would furnish the necessary personnel, transportation and equipment to operate the vehicle parts store during the normal 8-hour base duty day, five days per week, Mondays through Fridays, except that the contractor was required to maintain an adequate staff on standby to open and operate the store during periods of alert, unusual weather conditions or other emergency situations as might be determined by the contracting officer. Although the contract contained somewhat detailed instructions or provisions as to the manner of carrying on the work under the contract, it was silent on the number of men or number of manhours, required of the comtractor in the performance of the contract work,

Prior to 1964 the Government had been operating the parts store as part of the automotive repair shop at Malmstrom with Government personnel. During a prebid conference, the Government advised prospective bidders that upon the best information available, the Government requirements in terms of dollar value, during the course of the contract would approximate 30% captive parts and 70% common parts. After some four and a half months of contract performance, almost the exact reverse of this ratio was experienced.

The contractor addressed a letter dated 2 September 1964 to the contracting officer stating that it was losing money, and requested that either the contract be cancelled or that the appellant be given some relief. According to the evidence the contractor's loss was occasioned by two things: (1) the reversal in the ratio of captive parts to common parts from what was indicated by the Government at the prebid conference, and (2) by the contractor's increasing its manpower on the job from two to five men to run the parts store, and a truck and driver to provide more prompt and frequent delivery service.

In the 2 September letter the appellant had alleged a loss in the sum of $6,765.35 on the operations for the period commencing 24 March 1964 through 31 July 1964. Based upon information supplied by the appellant, the contracting officer, on 12 September 1964, agreed to modify the original contract so as to provide an increase in the compensation to the contractor by changing the discount on captive parts from 31% of list price to 10%. As a result, the parties executed under date of 12 September 1964, Supplemental Agreement (Modification No. 2), which provided (1) that the basis of payment for captive items would be list price less 10%, plus communications and transportation charges, (2) added to the bid schedule a new paragraph 5C, titled "AUTOMOTIVE PARTS, NON-PRICE LISTED ITEMS", which provided that these items would be invoiced separately and payment would be made based on total dollar amount of parts furnished during the month in accordance with service charge according to a sliding scale set forth in the supplemental agreement, and provided for payment of overtime for time in excess of the normal 8-hour day to the extent authorized by the vehicle maintenance officer or authorized representative.

Supplemental Agreement (Modification No. 1), bearing effective date 16 June 1964, had been executed by the parties under date of 15 June 1964, and provided for an amendment to line 2 of Clause 4N (2) of the contract, page 36, "Terms and Conditions", by adding the words "and communication expenses" to that part which read, "direct cost plus transportation charges". The parties also entered into Modification No. 3, a supplemental