B-147850, JAN. 16, 1962

B-147850, JAN. 16, 1962

TO METIMPEX CORPORATION:

UNDER DATE OF MARCH 6, 1961, THE CONTRACTING OFFICER, UNITED STATES COAST GUARD SUPPLY CENTER, 31ST STREET AND THIRD AVENUE, BROOKLYN, NEW YORK, TRANSMITTED HERE YOUR LETTER OF FEBRUARY 17, 1961, IN THE NATURE OF AN APPEAL FROM THE ACTION OF THE CONTRACTING OFFICER IN ASSESSING LIQUIDATED DAMAGES UNDER CONTRACT NO. T35CG-686, DATED JUNE 14, 1960, WITH THE UNITED STATES COAST GUARD, TREASURY DEPARTMENT. THE RECORD SHOWS THAT YOUR CLAIM WAS CONSIDERED BY THE CONTRACTING OFFICER AND HE RECOMMENDED PARTIAL REMISSION OF THE LIQUIDATED DAMAGES ASSESSED IN THIS CASE. BY SETTLEMENT DATED APRIL 19, 1961, OUR CLAIMS DIVISION CERTIFIED FOR PAYMENT TO YOU THE SUM OF $1,552, AS REMISSION OF LIQUIDATED DAMAGES ASSESSED FOR DELAY IN DELIVERY UNDER THE INDICATED CONTRACT, AND THE SUM OF $455.04, REPRESENTING THE BALANCE OF THE LIQUIDATED DAMAGES CLAIMED, WAS DISALLOWED FOR THE REASON THAT THE EVIDENCE OF RECORD FAILED TO SHOW THAT THE PERIOD OF DELAY FOR WHICH THE AMOUNT WAS ASSESSED WAS EXCUSABLE UNDER ARTICLE 11 OF STANDARD FORM NO. 32, INCORPORATED IN AND MADE A PART OF THE INDICATED CONTRACT.

BY LETTER OF MAY 9, 1961, YOU REQUESTED TO BE FURNISHED WITH A STATEMENT SHOWING HOW THE AMOUNTS IN QUESTION WERE DETERMINED, AS WELL AS AN EXPLANATION AS TO THE REASONS BY WHICH IT WAS CONCLUDED THAT THE DISALLOWED PORTION OF YOUR CLAIM WAS NOT CONSIDERED AS EXCUSABLE. UNDER DATE OF MAY 29, 1961, OUR CLAIMS DIVISION TRANSMITTED A COPY OF YOUR LETTER OF FEBRUARY 17, 1961, TO THE COMMANDANT, UNITED STATES COAST GUARD, ADVISING THAT BEFORE FURTHER ACTION COULD BE TAKEN BY OUR OFFICE IN THIS MATTER, A FINDING OF FACT SHOULD BE MADE BY THE CONTRACTING OFFICER AND A COPY THEREOF FORWARDED TO YOUR COMPANY IN ORDER THAT YOU MIGHT EXERCISE YOUR RIGHT OF APPEAL TO THE HEAD OF THE DEPARTMENT UNDER THE DISPUTES CLAUSE, PARAGRAPH 12 OF STANDARD FORM NO. 32, OCTOBER 1957 EDITION.

THERE WAS RECEIVED FROM THE CONTRACTING OFFICER, COAST GUARD SUPPLY CENTER, BROOKLYN, NEW YORK, A LETTER DATED NOVEMBER 3, 1961, ADVISING THAT HE HAD REVIEWED ALL DOCUMENTS AND TRANSACTIONS UNDER THE INDICATED CONTRACT AND HAD MADE CERTAIN FINDINGS OF FACT AS SET FORTH THEREIN. THE RECORD INDICATES THAT YOUR COMPANY WAS FURNISHED WITH A COPY OF THE CONTRACTING OFFICER'S FINDINGS OF FACT WHEREIN WERE SET FORTH THE REASONS FOR HIS DETERMINATION THAT LIQUIDATED DAMAGES AMOUNTING TO $455.04 WERE PROPERLY ASSESSED UNDER THE CONTRACT, AND YOU WERE ADVISED OF YOUR RIGHT TO APPEAL TO THE HEAD OF THE DEPARTMENT. WE HAVE BEEN INFORMALLY ADVISED BY HEADQUARTERS, UNITED STATES COAST GUARD, THAT YOU HAVE MADE NO APPEAL TO THE HEAD OF THE DEPARTMENT FROM THE CONTRACTING OFFICER'S FINDINGS OF FACT PURSUANT TO THE DISPUTES CLAUSE OF THE CONTRACT, IT BEING YOUR STATED INTENTION TO PURSUE YOUR CLAIM BEFORE OUR OFFICE.

IT SEEMS CLEAR FROM THE RECORD IN THIS CASE THAT YOU HAVE NOT EXERCISED YOUR RIGHT TO REQUEST FURTHER ADMINISTRATIVE CONSIDERATION OF YOUR CLAIM, THAT IS TO SAY, BY APPEAL TO THE SECRETARY OF THE TREASURY FROM THE CONTRACTING OFFICER'S FINDINGS OF FACT. IT IS A WELL ESTABLISHED RULE THAT WHERE, AS HERE, THE CONTRACT SETS FORTH A PROCEDURE UNDER WHICH DISPUTES OF THE NATURE HERE INVOLVED ARE TO BE DECIDED ADMINISTRATIVELY, THE ADMINISTRATIVE REMEDY SO PROVIDED MUST BE EXHAUSTED BY THE CONTRACTOR BEFORE A CLAIM DEPENDENT UPON A FACTUAL QUESTION DETERMINABLE PURSUANT TO THE PROCEDURE REQUIRED BY THE CONTRACT IS COGNIZABLE EITHER BY THE COURTS OR OUR OFFICE. SEE UNITED STATES V. JOSEPH A. HOLPUCH COMPANY, 328 U.S. 234; UNITED STATES V. BLAIR, 321 U.S. 730; AND UNITED STATES V. CALLAHAN- WALKER CONSTRUCTION COMPANY, 317 U.S. 56.

FOR THE REASONS SET FORTH ABOVE YOUR CLAIM MAY NOT BE CONSIDERED BY OUR OFFICE.