B-138273, MAY 3, 1962

B-138273, MAY 3, 1962

TO BURTON, HEFFELFINGER, MCCARTHY AND KENDRICK:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 15, 1962, ADVISING THAT YOU DESIRED TO "APPEAL" TO OUR OFFICE ON BEHALF OF TOM HEINZE AND ASSOCIATES, INC., FROM THE DECISION RENDERED FEBRUARY 28, 1962, BY THE BOARD OF CONTRACT APPEALS, GENERAL SERVICES ADMINISTRATION, IN THE APPEAL OF TOM HEINZE AND ASSOCIATES, INC., DOCKET NO. 453, AND TO YOUR LETTER OF APRIL 11, 1962, FURNISHING US WITH A BRIEF SETTING FORTH THE BASIS UPON WHICH YOU CONSIDER THE BOARD'S DECISION TO HAVE BEEN ERRONEOUS.

THIS MATTER INVOLVES, PRIMARILY, THE PROPRIETY OF THE REJECTION BY THE CONTRACTING OFFICER, NATIONAL BUYING DIVISION, FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION, OF MICROSLIDES AND MICROSLIDE BOXES SUPPLIED BY THE CONCERN UNDER CONTRACT GS-008-19739-ICA. THE MATTER WAS PRESENTED HERE INITIALLY BY THE CONCERN'S LETTER OF DECEMBER 23, 1958, WHICH PROTESTED THE REJECTION OF THE SUPPLIES. THE LETTER WAS REFERRED TO THE ADMINISTRATOR OF GENERAL SERVICES FOR A REPORT UNDER DATE OF JANUARY 9, 1959. HOWEVER, WE WERE SUBSEQUENTLY INFORMED BY THE CONCERN THAT IT HAD APPEALED TO THE ADMINISTRATOR OF GENERAL SERVICES FROM THE CONTRACTING OFFICER'S ACTION AND DECISION IN THE MATTER UNDER THE DISPUTES CLAUSE OF THE CONTRACT. IN VIEW OF THE ACTION THUS TAKEN BY TOM HEINZE AND ASSOCIATES, INC., WE ADVISED THE ADMINISTRATOR OF GENERAL SERVICES BY LETTER OF FEBRUARY 18, 1959, THAT WE WOULD NOT EXPECT TO RECEIVE THE REQUESTED REPORT UNTIL ADMINISTRATIVE ACTION ON THE CONCERN'S APPEAL HAD BEEN COMPLETED. WE UNDERSTAND FROM MR. SCHWEITZER THAT YOU HAVE REPRESENTED TOM HEINZE AND ASSOCIATES, INC., IN THIS MATTER BEGINNING WITH THE HEARING THEREOF WHICH WAS HELD BEFORE GSA'S BOARD OF CONTRACT APPEALS, AS THE DULY CONSTITUTED REPRESENTATIVE OF THE ADMINISTRATOR OF GENERAL SERVICES TO HEAR THE APPEAL.

BY LETTER OF MARCH 7, 1962, FROM THE CHAIRMAN OF THE BOARD OF CONTRACT APPEALS, GSA, WE WERE FURNISHED A COPY OF THE BOARD'S REFERRED-TO DECISION OF FEBRUARY 28, 1962, WHEREIN THE ACTION AND DECISION OF THE CONTRACTING OFFICER WITH RESPECT TO THE REJECTION OF THE SUPPLIES WAS SUSTAINED. THE TERMS OF THE CONTRACT HAVING A BEARING ON THE GOVERNMENT'S RIGHT TO REJECT THE SUPPLIES, AND THE FACTS AND CIRCUMSTANCES LEADING TO THE REJECTION THEREOF, ARE FULLY SET FORTH IN THE BOARD'S DECISION.

IN THE BRIEF SUBMITTED WITH YOUR LETTER OF APRIL 11, 1962, YOU CONTEND (1) THAT ON THE BASIS OF ALL THE FACTS AND CIRCUMSTANCES THE GOVERNMENT MUST BE HELD TO HAVE ACCEPTED THE SUPPLIES, AND (2) THAT THE EVIDENCE RELIED UPON BY THE GOVERNMENT AND ACCEPTED BY THE BOARD AS ESTABLISHING THAT THE SUPPLIES FAILED TO MEET CONTRACT SPECIFICATIONS WAS TOTALLY INSUFFICIENT TO SUPPORT SUCH A FINDING.

THE ARGUMENTS ADVANCED IN YOUR BRIEF IN SUPPORT OF THE ABOVE CONTENTIONS WERE DEALT WITH AT LENGTH IN THE BOARD'S DECISION, AND, FOR THE REASONS STATED THEREIN, WE ARE OF THE OPINION THAT THEY ARE UNTENABLE.

ACCORDINGLY, YOU ARE ADVISED THAT WE FIND NO BASIS FOR ALLOWANCE OF ANY AMOUNT TO TOM HEINZE AND ASSOCIATES, INC., FOR THE SUPPLIES TENDERED UNDER THE CONTRACT, OR FOR DISTURBING THE ACTION WHICH HAS BEEN TAKEN BY THE ADMINISTRATIVE OFFICE IN CONNECTION WITH THE MATTER. AS POINTED OUT TO MR. SCHWEITZER DURING A CONFERENCE HELD HERE PRIOR TO THE SUBMISSION OF YOUR BRIEF, UNDER THE TERMS OF THE DISPUTES CLAUSE OF THE CONTRACT (CLAUSE 12 OF THE GENERAL PROVISIONS (SUPPLY CONTRACT), STANDARD FORM 32, OCT. 1957 EDITION, WHICH WAS INCORPORATED IN THE CONTRACT), THE DECISION OF THE CONTRACTING OFFICER AND THE BOARD WITH RESPECT TO FACTUAL ISSUES HERE INVOLVED MUST BE REGARDED AS FINAL AND CONCLUSIVE UNLESS DETERMINED TO HAVE BEEN FRAUDULENT, CAPRICIOUS, ARBITRARY, OR SO GROSSLY ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH, OR NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. THE RECORD FURNISHES NO BASIS FOR ATTACKING THE DECISION OF THE CONTRACTING OFFICER, OR THE BOARD, ON ANY OF THESE GROUNDS, AND, AS PREVIOUSLY INDICATED, WE FEEL THAT, INSOFAR AS ANY QUESTIONS OF LAW ARE CONCERNED, THE ADMINISTRATIVE DECISIONS WERE WELL FOUNDED.