B-160976, JAN. 16, 1969

B-160976, JAN. 16, 1969

TO ATLANTIC TERMINAL COMPANY:

WE REFER TO YOUR LETTER DATED DECEMBER 26, 1968, IN WHICH YOU REQUEST THIS OFFICE TO RECONSIDER OUR DECISION OF DECEMBER 17, 1968, IN WHICH WE DECLINED TO ENTERTAIN JURISDICTION OF YOUR CLAIM FOR DAMAGES DUE TO THE ACTION OF THE GOVERNMENT IN TERMINATING FOR DEFAULT YOUR CONTRACT FOR RAILROAD SERVICES AT THE MILITARY OCEAN TERMINAL, SUNNY POINT, SOUTHPORT, NORTH CAROLINA.

SINCE THIS MATTER WAS PENDING BEFORE THE ARMED SERVICES BOARD OF CONTRACT APPEALS (ASBCA) AND NO DECISION HAD BEEN REACHED BY THE BOARD, WE CONCLUDED IN THE ABOVE REFERENCED DECISION THAT ANY ACTION AT THE PRESENT TIME BY THIS OFFICE WOULD BE PREMATURE.

IT APPEARS TO BE YOUR POSITION THAT THIS CONTRACT WAS IMPROPERLY TERMINATED IN THAT YOU EITHER WERE NOT IN DEFAULT, OR THAT YOUR FAILURE TO PERFORM WAS EXCUSABLE UNDER THE TERMS OF THE CONTRACT, AND YOU REQUEST THAT THIS OFFICE ENTERTAIN A CLAIM FOR DAMAGES FOR THE GOVERNMENT'S BREACH, NOTWITHSTANDING THE ACTION PENDING BEFORE THE ASBCA, ON THE BASIS OF THE AUTHORITY OF THE COMPTROLLER GENERAL TO SETTLE AND ADJUST ALL CLAIMS OR DEMANDS BY OR AGAINST THE GOVERNMENT UNDER THE BUDGET AND ACCOUNTING ACT OF 1921, 31 U.S.C. 41.

IT MAY BE POINTED OUT THAT IN DEALING WITH ADMINISTRATIVE DETERMINATIONS WHICH GENERATE CLAIMS OR DEMANDS BY OR AGAINST THE GOVERNMENT, THIS OFFICE IS BOUND TO ACCEPT THE ADMINISTRATIVE DETERMINATION OF PERTINENT FACTS TO THE EXTENT THEY ARE ENTITLED TO FINALITY UNDER THE WUNDERLICH ACT, 41 U.S.C. 321-322. CONSEQUENTLY, UNTIL SUCH TIME AS THE ASBCA CONCLUDES ITS CONSIDERATION OF THE EXISTENCE OF A DEFAULT OR THE EXCUSABILITY OF YOUR FAILURE TO PERFORM, BOTH OF WHICH ARE FACTUAL QUESTIONS ARISING UNDER THE CONTRACT, WE ARE NOT IN A POSITION TO DISPOSE OF A CLAIM FOR DAMAGES FOR BREACH OF CONTRACT INVOLVING SIMILAR FACTUAL CONSIDERATIONS. SEE AUTOMATIC SCREW PRODUCTS COMPANY V UNITED STATES, 145 CT.CL. 94; UNITED STATES V UTAH CONSTRUCTION COMPANY, 384 U.S. 394.