B-132506, APR. 30, 1958

B-132506: Apr 30, 1958

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COMPLETE DELIVERY OF THE TERMINALS AT DESTINATION WAS REQUIRED BY JULY 3. YOUR CONTRACT WAS TERMINATED BY TELEGRAM OF THAT DATE. THEY WERE PURCHASED LOCALLY AGAINST YOUR ACCOUNT AT AN EXCESS COST TO THE UNITED STATES OF $275.94 IN THE MANNER EXPRESSLY PRESCRIBED IN ARTICLE 11 OF YOUR CONTRACT. THE CONTRACTING OFFICER DIRECTED YOUR ESPECIAL ATTENTION TO ARTICLE 29 OF THE CONTRACT GENERAL PROVISIONS ENTITLING YOU TO APPEAL FROM HIS DECISION TO THE SECRETARY OF THE NAVY IF YOU WERE IN DISAGREEMENT WITH THE DETERMINATION THAT YOUR FAILURE TO FURNISH THE SUPPLIES WAS NOT DUE TO EXCUSABLE CAUSES. IF YOU BELIEVED THAT YOU SHOULD HAVE BEEN RELIEVED OF ANY. WHICH IS PRIMARILY A QUESTION OF FACT. YOU SHOULD HAVE FOLLOWED THE APPEALS PROCEDURE OUTLINED IN THE CONTRACT.

B-132506, APR. 30, 1958

TO MANHATTAN LIGHTING EQUIPMENT CO., INC.:

YOUR SEVERAL LETTERS OF RECENT DATE COMPLAIN OF THE ALLEGEDLY EXCESSIVE PRICE PAID BY THE GENERAL STORES SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA, IN THE REPURCHASE OF CERTAIN ITEMS OF TERMINALS SUBSEQUENT TO YOUR DEFAULT UNDER CONTRACT NO. N155-28679.

BY THE PLAIN TERMS OF THE DEFAULTED CONTRACT, COMPLETE DELIVERY OF THE TERMINALS AT DESTINATION WAS REQUIRED BY JULY 3, 1957. UPON YOUR FAILURE TO SECURE APPROVAL OF THE SAMPLES OF TERMINALS SUBMITTED FOR TEST, AND YOUR CONSEQUENT FAILURE TO MAKE ANY DELIVERIES BY NOVEMBER 1, 1957, YOUR CONTRACT WAS TERMINATED BY TELEGRAM OF THAT DATE. BECAUSE OF YOUR UNEXCUSED DELAY, AND DUE TO THE URGENCY OF THE GOVERNMENT'S NEED FOR THESE SUPPLIES, THEY WERE PURCHASED LOCALLY AGAINST YOUR ACCOUNT AT AN EXCESS COST TO THE UNITED STATES OF $275.94 IN THE MANNER EXPRESSLY PRESCRIBED IN ARTICLE 11 OF YOUR CONTRACT. IN A LETTER DATED NOVEMBER 22, 1957, THE CONTRACTING OFFICER DIRECTED YOUR ESPECIAL ATTENTION TO ARTICLE 29 OF THE CONTRACT GENERAL PROVISIONS ENTITLING YOU TO APPEAL FROM HIS DECISION TO THE SECRETARY OF THE NAVY IF YOU WERE IN DISAGREEMENT WITH THE DETERMINATION THAT YOUR FAILURE TO FURNISH THE SUPPLIES WAS NOT DUE TO EXCUSABLE CAUSES. THEREAFTER, ON JANUARY 13, 1958, THE CONTRACTING OFFICER PRESENTED YOU WITH A STATEMENT OF THE AMOUNT OF THE EXCESS COSTS INCURRED BY THE GOVERNMENT. IF YOU BELIEVED THAT YOU SHOULD HAVE BEEN RELIEVED OF ANY, OR ALL, OF SUCH EXCESS COSTS BECAUSE THE GOVERNMENT FAILED TO USE DUE DILIGENCE IN SECURING THE INVOLVED SUPPLIES, WHICH IS PRIMARILY A QUESTION OF FACT, YOU SHOULD HAVE FOLLOWED THE APPEALS PROCEDURE OUTLINED IN THE CONTRACT. IN THIS REGARD IT IS NOTED FROM THE STATEMENT IN YOUR LETTER OF MARCH 31, 1958, THAT YOU APPEALED A SIMILAR CASE TO THE ARMED SERVICES BOARD OF CONTRACT APPEALS.

UPON YOUR FAILURE TO FOLLOW THE APPEALS PROCEDURE AFFORDED BY YOUR CONTRACT, YOU THEREBY WAIVED WHATEVER RIGHTS OR REMEDIES YOU OTHERWISE MIGHT HAVE PURSUED, AND UNDER ESTABLISHED PRINCIPLES OF LAW, MADE THE DECISION OF THE CONTRACTING OFFICER FINAL AND CONCLUSIVE UPON THE PARTIES, AND ALSO PLACED THE MATTER BEYOND THE JURISDICTION OF THE GENERAL ACCOUNTING OFFICE AND THE COURTS. SEE UNITED STATES V. HOLPUCH COMPANY, 326 U.S. 234; UNITED STATES V. CALLAHAN WALKER COMPANY, 317 ID. 56, 61; UNITED STATES V. BLAIR, 321 ID. 730, 736, AND CASES THERE CITED; PHOENIX BRIDGE COMPANY V. UNITED STATES, 85 C.CLS. 603, 629; 35 COMP. GEN. 512, 517.

IN CONCLUSION WE WISH TO POINT OUT TO YOU THE FACT THAT UNTIL CLAIMS OF THE GOVERNMENT AGAINST ITS DEBTORS ARE REPORTED TO US BY THE ADMINISTRATIVE AGENCY CONCERNED AS UNCOLLECTIBLE, THEY ARE NOT PROPERLY BEFORE US FOR CONSIDERATION. SEE G.A.C. GENERAL REGULATIONS NO. 120, 33 COMP. GEN. 669-671.