those materials or equipment are not (1) commercially available or (2) suitable for the project.

The
contractor claims it is not responsible for time and cost delays because the owner required it to
obtain [insert name of material, product or equipment] from a single source, and the [material,
product or equipment] was not commercially available from the specified source. To establish this
claim, the contractor must prove all of the following:

(1) The contract specifications required the contractor to obtain [insert type of material, product, or
equipment] from a single specified source. (2) The [material, product, or equipment] required by the
contract was not commercially available from the single specified source. (3) The lack of availability
impacted the contractor’s work.

Comment Aerodex Inc. v. United States, 417 F.2d 1361 (Ct. Cl. 1969), is the seminal case on the
issue. The doctrine holds that when the government puts out for bid a contract specifying the use of
brand-name components, it is responsible when that brand later becomes unavailable on the
commercial market. The warranty means that the sole-source supplier is capable of providing the
specified product. Interstate Coatings Inc. v. United States, 7 Cl. Ct. 259, 261 (1985); Franklin E.
Penny Co. v. United States, 524 F.2d 668, 674–75 (Ct. Cl. 1975); Cascade Elec. Co., ASBCA No. 28674,
84-1 B.C.A. (CCH) ¶ 17,210 (1984).

It is the obligation of the Government to ascertain and assure to bidders the commercial availability
of the component [specified in the contract] from its manufacturer before it employs it as a
purchase description or, failing that, to provide bidders with a sufficient description of the physical
specifications and performance characteristics so that it may be duplicated by the bidders either by
in-house fabrication or by purchase from suppliers. Here the Government did neither. It was
improper for the Government to cast this burden of advance ascertainment upon bidders without
explicit warning to them of the