B-160778, MAY 27, 1968
Highlights
INC.: REFERENCE IS MADE TO YOUR LETTER OF APRIL 29. DA-23-028 ENG-7904 WHICH WAS FOR THE CONSTRUCTION OF AN APPROACH LIGHTING SYSTEM AT THE MCCONNELL AIR FORCE BASE. OUR OFFICE IS NOT IN A POSITION TO CONSIDER ANY CLAIM INVOLVING DISPUTED FACTS UNTIL A FINAL ADMINISTRATIVE DECISION HAS BEEN RENDERED THEREON. WHERE THE CONTRACT SETS OUT A PROCEDURE UNDER WHICH DISPUTES AS TO FACT ARE TO BE DECIDED ADMINISTRATIVELY. THE ADMINISTRATIVE REMEDY THEREBY PROVIDED MUST BE EXHAUSTED BY THE CONTRACTOR BEFORE A CLAIM MATERIALLY RELEVANT TO A FACTUAL QUESTION FOR DETERMINATION PURSUANT TO THE PROCEDURE IS COGNIZABLE BY THE COURTS OR OUR OFFICE. CONTRACTORS WHO FEEL THAT THEY ARE ENTITLED TO ADDITIONAL AMOUNTS UNDER CONTRACTUAL AGREEMENTS WITH THE GOVERNMENT MAY PRESENT CLAIMS TO THE GENERAL ACCOUNTING OFFICE FOR SETTLEMENT.
B-160778, MAY 27, 1968
TO SOUTHWEST ENGINEERING COMPANY, INC.:
REFERENCE IS MADE TO YOUR LETTER OF APRIL 29, 1968, WITH ENCLOSURES, IN FURTHERANCE OF YOUR ATTEMPT TO APPEAL A CONTRACTING OFFICER'S FACTUAL DECISION DIRECTLY TO THE GENERAL ACCOUNTING OFFICE WITHOUT HAVING THE MATTER FIRST CONSIDERED BY THE ARMED SERVICES BOARD OF CONTRACT APPEALS. THE DISPUTE AROSE UNDER 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, AND INVOLVED THE ASSESSMENT OF LIQUIDATED DAMAGES FOR LATE COMPLETION.
IN OUR LETTER OF APRIL 25, 1968, TO WHICH YOU REFER, WE ADVISED YOU THAT 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. IN OTHER WORDS, WHERE THE CONTRACT SETS OUT A PROCEDURE UNDER WHICH DISPUTES AS TO FACT ARE TO BE DECIDED ADMINISTRATIVELY, THE ADMINISTRATIVE REMEDY THEREBY PROVIDED MUST BE EXHAUSTED BY THE CONTRACTOR BEFORE A CLAIM MATERIALLY RELEVANT TO A FACTUAL QUESTION FOR DETERMINATION PURSUANT TO THE PROCEDURE IS COGNIZABLE BY THE COURTS OR OUR OFFICE. UNITED STATES V JOSEPH A. HOLPUCH CO., 328 U.S. 234; UNITED STATES V BLAIR, 321 U.S. 730; UNITED STATES V CALLAHAN WALKER CONSTRUCTION CO., 317 U.S. 56.
FOR YOUR INFORMATION, THE STATEMENT QUOTED BY YOU FROM A HEADNOTE TO 46 COMP. GEN. 441, THAT: ,CONTRACTORS WHO FEEL THAT THEY ARE ENTITLED TO ADDITIONAL AMOUNTS UNDER CONTRACTUAL AGREEMENTS WITH THE GOVERNMENT MAY PRESENT CLAIMS TO THE GENERAL ACCOUNTING OFFICE FOR SETTLEMENT, REGARDLESS OF THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER" DOES NOT AND WAS NOT INTENDED TO QUALIFY THE RULE STATED ABOVE. "REGARDLESS OF THE ADMINISTRATIVE ACTION TAKEN" DOES NOT MEAN WITHOUT ANY ADMINISTRATIVE ACTION HAVING BEEN TAKEN. AS YOU WERE ADVISED IN OUR LETTER OF APRIL 25, 1968, 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.
FOR THE REASONS STATED, WE ARE AGAIN RETURNING THE ENCLOSURES TO YOUR LETTER.