B-151723, MAR. 9, 1964
Highlights
WOLFF: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 4. WE ASSUME THAT YOUR REQUEST FOR A FORMAL FINDING OF FACT IS BASED UPON YOUR UNDERSTANDING OF THE "DISPUTES" CLAUSE NORMALLY FOUND IN GOVERNMENT CONTRACTS. UNDER WHICH A CONTRACTING OFFICER'S FINDING IS USED AS A BASIS FOR APPEAL TO THE HEAD OF THE DEPARTMENT OR AGENCY INVOLVED. WHICH APPEAL GENERALLY IS DISPOSED OF BY A BOARD OF CONTRACT APPEALS. IS PREMISED UPON A SPECIFIC PROVISION CONTAINED IN THE EXISTING CONTRACT. INSOFAR AS THE MATTER OF BID PROTESTS HAVE BEEN CONCERNED NO SUCH FINDINGS EVER HAVE BEEN REQUIRED BY THIS OFFICE AND. NONE HAVE BEEN MADE. IT WAS OUR OPINION THAT THE REPORTS RECEIVED CONTAINED SUFFICIENT FACTUAL INFORMATION UPON WHICH TO AFFORD A THOROUGH STUDY BY THIS OFFICE IN ARRIVING AT ITS CONCLUSIONS WHICH WERE FURNISHED YOU ON AUGUST 30 AND DECEMBER 4.
B-151723, MAR. 9, 1964
TO IRVING M. WOLFF:
REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 4, 1964, AGAIN CONCERNING THE PROTEST OF STARFIELD OF PANAMA, C.A., INC., AGAINST THE AWARD MADE UNDER NEGOTIATED PROCUREMENT M.S.T.S. INVITATION NO. 2 TO THE POMEROY SHIPPING COMPANY FOR HIRE OF LSM UNDER DATE OF APRIL 2, 1963. YOU NOW INSIST THAT WE PROCURE A SO-CALLED FINDING OF FACT FROM THE DEPARTMENT OF THE NAVY, NOTWITHSTANDING THE EXPLANATION CONTAINED IN OUR LETTER OF JANUARY 29, 1964, CONCERNING THIS ASPECT OF THE MATTER.
WE ASSUME THAT YOUR REQUEST FOR A FORMAL FINDING OF FACT IS BASED UPON YOUR UNDERSTANDING OF THE "DISPUTES" CLAUSE NORMALLY FOUND IN GOVERNMENT CONTRACTS, UNDER WHICH A CONTRACTING OFFICER'S FINDING IS USED AS A BASIS FOR APPEAL TO THE HEAD OF THE DEPARTMENT OR AGENCY INVOLVED, WHICH APPEAL GENERALLY IS DISPOSED OF BY A BOARD OF CONTRACT APPEALS. THIS PROCEDURE, OF COURSE, IS PREMISED UPON A SPECIFIC PROVISION CONTAINED IN THE EXISTING CONTRACT.
IN THE CASE OF YOUR CLIENT'S PROTEST, HOWEVER, NO CONTRACT CAME INTO EXISTENCE AND, HENCE, NO BASIS EXISTS FOR THE ORDINARY FACT-FINDING PROCEDURE. FURTHERMORE, INSOFAR AS THE MATTER OF BID PROTESTS HAVE BEEN CONCERNED NO SUCH FINDINGS EVER HAVE BEEN REQUIRED BY THIS OFFICE AND, SO FAR AS OUR RECORDS INDICATE, NONE HAVE BEEN MADE. INSTEAD, AS POINTED OUT IN OUR LETTER OF JANUARY 29, 1964, UPON RECEIPT OF YOUR PROTEST, WE FOLLOWED OUR NORMAL PROCEDURE OF REQUESTING AN ADMINISTRATIVE REPORT UPON WHICH WE WOULD BASE OUR FINDINGS. AS A RESULT, IT WAS OUR OPINION THAT THE REPORTS RECEIVED CONTAINED SUFFICIENT FACTUAL INFORMATION UPON WHICH TO AFFORD A THOROUGH STUDY BY THIS OFFICE IN ARRIVING AT ITS CONCLUSIONS WHICH WERE FURNISHED YOU ON AUGUST 30 AND DECEMBER 4, 1963.
IN THE LIGHT OF THE FOREGOING, THEREFORE, WE MUST REPEAT THE STATEMENT CONTAINED IN OUR LETTER OF JANUARY 29, 1964, THAT WE PERCEIVE NO BASIS FOR REQUESTING AN ADDITIONAL ADMINISTRATIVE REPORT, AND WE STILL ARE OF THE OPINION THAT A REQUEST FOR MATERIAL OF THE NATURE DESCRIBED IN YOUR LETTER SHOULD BE ADDRESSED TO THE ADMINISTRATIVE OFFICE CONCERNED.
YOUR LETTER OF FEBRUARY 13, 1964, PERTAINING TO PRESENT PERFORMANCE BY THE POMEROY SHIPPING COMPANY IS BEING FORWARDED TO THE DEPARTMENT OF THE NAVY FOR APPROPRIATE ATTENTION, AND ANY FUTURE COMPLAINT WITH RESPECT TO THIS PHASE OF THE MATTER SHOULD BE ADDRESSED TO THE CONTRACTING OFFICIALS OF THAT DEPARTMENT.