GIV was to deliver flu vaccines to the Defense Logistics Agency between September and November 2004.  However, GIV’s United Kingdom based supplier Chiron Vaccines notified the Federal Food and Drug Administration in August that certain lots were contaminated and could not be shipped to the US.  Because GIV did not find an alternative supplier, it could not deliver any of the vaccine and its contract was terminated for cause.  GIV argued it had no contractual obligation to deliver the flu vaccine unless and until Chiron and the FDA released the vaccine for sale in the US – the FDA approval was a “condition precedent” to its obligation to deliver.  The Board rejected GIV contention citing the general principle of law that “a party may not use the non-performance of a condition precedent when that party…is responsible for the non-performance of the condition.”  Hence Chiron, and thus GIV were responsible for the lack of FDA approval.  The Board also rejected GIV’s argument the government had to prove that GIV’s failure to deliver acceptable vaccine was due to Chirons’s negligence, ruling GIV had to show its failure to perform was beyond its control which it did not do.  Because procured or subcontracted items are “of the very essence” of a government contract, a contractor is generally to be held responsible for the actions of its subcontractors and suppliers (General Injectables & Vaccines, Inc. ASBCA No. 54930).  

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