B-160778, APR. 25, 1968
Highlights
INC.: REFERENCE IS MADE TO YOUR LETTER OF APRIL 2. DA- 23-028-ENG-7904 WHICH WAS FOR THE CONSTRUCTION OF AN APPROACH LIGHTING SYSTEM AT THE MCCONNELL AIR FORCE BASE. YOU ARE ASKING US TO REVIEW CERTAIN FINDINGS OF FACT IN THE MATTER WHICH WERE MADE BY THE CONTRACTING OFFICER IN HIS DECISION OF NOVEMBER 29. ALTHOUGH YOU HAVE NOTED AN APPEAL THEREFROM TO THE ARMED SERVICES BOARD OF CONTRACT APPEALS IN ACCORDANCE WITH THE PROVISIONS OF THE DISPUTES CLAUSE OF YOUR CONTRACT AND SUCH APPEAL HAS NOT YET BEEN DISPOSED OF. YOU EXPLAIN THE REQUEST AS FOLLOWS: "THIS APPEAL IS BEING FORWARDED DIRECTLY TO YOUR OFFICE RATHER THAN TO THE ASBCA FOR THE FOLLOWING REASONS. SINCE IT IS IMPORTANT THAT THIS MATTER BE DECIDED AS QUICKLY AS POSSIBLE.
B-160778, APR. 25, 1968
TO SOUTHWEST ENGINEERING COMPANY, INC.:
REFERENCE IS MADE TO YOUR LETTER OF APRIL 2, 1968, WITH ENCLOSURES, REQUESTING THAT OUR OFFICE REVIEW AN ASSESSMENT OF LIQUIDATED DAMAGES MADE BY THE DEPARTMENT OF THE ARMY FOR YOUR LATE COMPLETION OF CONTRACT NO. DA- 23-028-ENG-7904 WHICH WAS FOR THE CONSTRUCTION OF AN APPROACH LIGHTING SYSTEM AT THE MCCONNELL AIR FORCE BASE, WICHITA, KANSAS.
SPECIFICALLY, YOU ARE ASKING US TO REVIEW CERTAIN FINDINGS OF FACT IN THE MATTER WHICH WERE MADE BY THE CONTRACTING OFFICER IN HIS DECISION OF NOVEMBER 29, 1967, ALTHOUGH YOU HAVE NOTED AN APPEAL THEREFROM TO THE ARMED SERVICES BOARD OF CONTRACT APPEALS IN ACCORDANCE WITH THE PROVISIONS OF THE DISPUTES CLAUSE OF YOUR CONTRACT AND SUCH APPEAL HAS NOT YET BEEN DISPOSED OF. YOU EXPLAIN THE REQUEST AS FOLLOWS:
"THIS APPEAL IS BEING FORWARDED DIRECTLY TO YOUR OFFICE RATHER THAN TO THE ASBCA FOR THE FOLLOWING REASONS. FIRST, SINCE IT IS IMPORTANT THAT THIS MATTER BE DECIDED AS QUICKLY AS POSSIBLE, WE FEEL THAT SUBMITTING IT TO YOUR OFFICE WILL AVOID THE NECESSITY OF POSSIBLY HAVING TO GO THROUGH A DECISION OF THE ASBCA AND THEN POSSIBLY THROUGH YOUR OFFICE. SECOND, WE FEEL THAT YOUR OFFICE IS THE PROPER PLACE TO AIR SOME OF THE COMPLAINTS CONTAINED IN OUR APPEAL. CERTAINLY, YOUR OFFICE HAS THE PROPER AUTHORITY FOR IMMEDIATELY ADJUDICATING SUCH MATTERS. THIRD, WE FEEL THAT THE DECISION WHICH WILL BE RENDERED BY YOUR OFFICE IN THE RELATED MATTERS WILL PROBABLY BE MORE THE PROPER DECISIONS THAN WOULD LIKELY BE MADE BY THE BOARD OF APPEALS.'
SINCE YOUR CONTRACT CONTAINS SPECIFIC PROVISIONS FOR THE ADMINISTRATIVE DETERMINATION OF FACTUAL DISPUTES, WHICH CONTEMPLATE REVIEW OF THE CONTRACTING OFFICER'S DECISION BY THE APPEALS BOARD, OUR OFFICE IS NOT IN A POSITION TO CONSIDER ANY CLAIM INVOLVING DISPUTED FACTS UNTIL A FINAL ADMINISTRATIVE DECISION HAS BEEN RENDERED THEREON. IF, AFTER FINAL ADMINISTRATIVE DECISION, YOU BELIEVE THAT THE FACTUAL FINDINGS ARE FRAUDULENT OR CAPRICIOUS OR ARBITRARY OR SO GROSSLY ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH, OR ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, OR THAT THE CONCLUSIONS REACHED ARE LEGALLY ERRONEOUS, YOU MAY SUBMIT THE MATTER TO OUR OFFICE BY PRESENTING A CLAIM FOR THE AMOUNT INVOLVED. B-160778, FEBRUARY 27, 1967.
SINCE YOUR REQUEST APPEARS TO BE PREMATURE, WE ARE RETURNING THE ENCLOSURES TO YOUR LETTER.