B-171728, DEC 4, 1972

B-171728, DEC 4, 1972

CONTRACT MODIFICATION - REVIEW OF FINAL ADMINISTRATIVE DECISIONS DECISION AFFIRMING DENIAL OF THE REQUEST FOR REVIEW OF AN ADVERSE DECISION BY THE SECRETARY OF AGRICULTURE CONCERNING THE CLAIM OF DONALD W. LYLE, INC. WHICH IS IN THE FORM OF A REQUEST FOR MODIFICATION OF A FOREST SERVICE TIMBER SALES CONTRACT. THE DECISION OF THE SECRETARY OF AGRICULTURE IS "FINAL AND CONCLUSIVE" AND THEREFORE IT WOULD BE INAPPROPRIATE FOR GAO TO REVIEW THIS DECISION IN LIGHT OF S & E CONTRACTORS, INC. V. UNITED STATES, 406 U.S. 1 (1972).

TO DONALD W. LYLE, INC.:

WE REFER TO YOUR LETTER OF OCTOBER 17, 1972, REQUESTING THAT WE RECONSIDER OUR DECISION OF OCTOBER 12, 1972 (B-171728) TO THE SECRETARY OF AGRICULTURE, AND THAT SUCH DECISION BE MODIFIED TO INCLUDE YOUR COMMENTS ON CERTAIN PROCEDURES FOLLOWED BY THE DEPARTMENT DURING ITS CONSIDERATION OF YOUR CLAIM FOR A MODIFICATION OF FOREST SERVICE TIMBER SALE CONTRACT NO. 3-215.

IN THE CITED DECISION, WE HELD THAT THE SECRETARY'S JULY 12, 1972, DECISION DENYING YOUR CLAIM MUST BE REGARDED AS "FINAL AND CONCLUSIVE," AND THAT IT WOULD BE INAPPROPRIATE FOR THIS OFFICE TO REVIEW SUCH DECISION IN LIGHT OF THE SUPREME COURT'S RECENT DECISION IN S & E CONTRACTORS, INC. V. UNITED STATES, 406 U.S. 1 (1972). YOU SUBMIT, HOWEVER, THAT OUR DECISION OVERLOOKED THAT THE GOVERNMENT ITSELF PRESENTED THE ISSUE (OF WHETHER RELIEF COULD BE GRANTED UNDER THE CONTRACT) TO THE APPEALS BOARD; THAT THE BOARD RULED ADVERSELY TO THE GOVERNMENT; AND THAT THE GOVERNMENT THEREAFTER PROCURED A HEARING ON THE MERITS BEFORE THE BOARD. YOU ASK THAT OUR DECISION BE MODIFIED TO REFLECT THE FOREGOING.

WHILE IT IS OUR PRACTICE TO RECONSIDER A DECISION WHEN IT IS ALLEGED TO BE ERRONEOUS, AS A MATTER OF LAW OR BECAUSE IT IS BASED UPON ERROR OF FACT, IT IS NOT APPARENT FROM YOUR COMMENTS WHY YOU BELIEVE THE MATTERS TO WHICH YOU ALLUDE REQUIRE A CONCLUSION DIFFERENT FROM THAT REACHED IN OUR DECISION. IN VIEW THEREOF, AND SINCE WE CONSIDERED SUCH MATTERS BEFORE RENDERING OUR DECISION, WE SEE NO BASIS IN YOUR PRESENT CORRESPONDENCE FOR MODIFYING OUR DECISION.

ALTERNATIVELY, YOU REQUEST "A REVIEW IN THE MATTER," WHICH WE INTERPRET AS AN APPEAL FROM YOU, AS THE CONTRACTOR, FROM THE ADVERSE DECISION OF THE SECRETARY OF AGRICULTURE. IN THIS REGARD, IT IS OUR OPINION THAT THE RATIONALE SET FORTH ON PAGE TWO OF THE DECISION, BY WHICH WE DENIED THE SECRETARY'S REQUEST FOR REVIEW, APPLIES EQUALLY TO YOUR CONCERN. WE MUST THEREFORE DENY, ON THE SAME BASIS, YOUR REQUEST FOR SUCH REVIEW.