B-144043, NOV. 17, 1960

B-144043: Nov 17, 1960

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TO INDUSTRIAL SERVICE AND ENGINEERING COMPANY: WE HAVE YOUR LETTER OF SEPTEMBER 16. WAS ENTERED INTO PURSUANT TO FORMAL ADVERTISING. ONLY THE SMOKESTACK PORTION OF THE CONTRACT IS INVOLVED IN THE CONTROVERSY HERE. BIDS WERE OPENED ON JUNE 25. WAS ACCEPTED BY TELEGRAM ON JUNE 27. NOTICE TO PROCEED WAS GIVEN BY LETTER DATED JULY 14. THE CONTRACT COMPLETION DATE ON THE SMOKESTACK WAS. YOU WERE NOTIFIED THAT SEPTEMBER 30. WAS ESTABLISHED AS THE DATE OF SUBSTANTIAL COMPLETION OF THE STEEL SMOKESTACK SINCE NO WORK OF A MAJOR NATURE HAD BEEN PERFORMED ON THAT PART OF THE PROJECT AFTER THAT DATE. 755.90 HAVE BEEN MADE AND THE SUM OF $465 (REPRESENTING 31 DAYS DELAY IN COMPLETION) WAS WITHHELD TO COVER THE ASSESSMENT FOR LIQUIDATED DAMAGES UNDER CLAUSE 5 OF THE GENERAL PROVISIONS (CONSTRUCTION CONTRACTS).

B-144043, NOV. 17, 1960

TO INDUSTRIAL SERVICE AND ENGINEERING COMPANY:

WE HAVE YOUR LETTER OF SEPTEMBER 16, 1960, CONCERNING THE DENIAL OF YOUR APPEAL BY THE BOARD OF CONTRACT APPEALS, DEPARTMENT OF THE INTERIOR, IBCA- 235, FOR AN EXTENSION OF TIME AND REMISSION OF LIQUIDATED DAMAGES ASSESSED UNDER CONTRACT NO. 14-20-150-239 FOR DELAY IN PERFORMANCE.

THE REFERENCED CONTRACT FOR THE DEMOLITION AND REMOVAL OF AN EXISTING STEEL SMOKESTACK AND THE CONSTRUCTION OF A NEW STEEL SMOKESTACK AND INSTALLATION OF OIL BURNING EQUIPMENT AT THE SEQUOYAH INDIAN SCHOOL, TAHLEQUAH, OKLAHOMA, WAS ENTERED INTO PURSUANT TO FORMAL ADVERTISING. ONLY THE SMOKESTACK PORTION OF THE CONTRACT IS INVOLVED IN THE CONTROVERSY HERE. A PROVISION IN THE CONTRACT PROVIDED THAT THE "WORK SHALL BE STARTED WITHIN TWENTY (20) CALENDAR DAYS AFTER THE DATE OF RECEIPT OF NOTICE TO PROCEED" AND THAT THE "WORK SHALL BE COMPLETED ON THE STACK WITHIN FORTY-FIVE (45) CALENDAR DAYS AFTER THE DATE OF RECEIPT OF NOTICE TO PROCEED * * *.' BIDS WERE OPENED ON JUNE 25, 1958, AND YOUR BID, WHICH ALLOWED 60 CALENDAR DAYS FOR ACCEPTANCE, WAS ACCEPTED BY TELEGRAM ON JUNE 27, 1958. THE TELEGRAM NOTIFYING YOU OF THE AWARD PROVIDED: "DO NOT PROCEED WITH WORK UNTIL SPECIFICALLY AUTHORIZED TO DO SO BY THIS OFFICE.' NOTICE TO PROCEED WAS GIVEN BY LETTER DATED JULY 14, 1958, AND THE CERTIFIED MAIL RETURN RECEIPT CARD INDICATED YOUR RECEIPT OF THIS NOTICE ON JULY 16, 1958. THE CONTRACT COMPLETION DATE ON THE SMOKESTACK WAS, THEREFORE, FIXED AS AUGUST 30, 1958.

THE RECORD BEFORE THIS OFFICE INDICATES THAT BY LETTER DATED FEBRUARY 13, 1959, YOU WERE NOTIFIED THAT SEPTEMBER 30, 1958, WAS ESTABLISHED AS THE DATE OF SUBSTANTIAL COMPLETION OF THE STEEL SMOKESTACK SINCE NO WORK OF A MAJOR NATURE HAD BEEN PERFORMED ON THAT PART OF THE PROJECT AFTER THAT DATE. OF THE TOTAL CONTRACT AMOUNT OF $37,220.90, PAYMENTS AGGREGATING $36,755.90 HAVE BEEN MADE AND THE SUM OF $465 (REPRESENTING 31 DAYS DELAY IN COMPLETION) WAS WITHHELD TO COVER THE ASSESSMENT FOR LIQUIDATED DAMAGES UNDER CLAUSE 5 OF THE GENERAL PROVISIONS (CONSTRUCTION CONTRACTS), STANDARD FORM 23A, WHICH FORMED A PART OF THE CONTRACT.

PARAGRAPH 5 (C) OF STANDARD FORM 23 A PROVIDES, IN PART, THAT THE RIGHT OF THE CONTRACTOR TO PROCEED SHALL NOT BE TERMINATED, NOR THE CONTRACTOR CHARGED WITH LIQUIDATED DAMAGES OR ACTUAL DAMAGES BECAUSE OF ANY DELAY IN THE COMPLETION OF THE WORK DUE TO UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR, INCLUDING BUT NOT RESTRICTED TO, ACTS OF GOD, OR OF THE PUBLIC ENEMY, ACTS OF THE GOVERNMENT, IN EITHER ITS SOVEREIGN OR CONTRACTUAL CAPACITY, ACTS OF ANOTHER CONTRACTOR IN THE PERFORMANCE OF A CONTRACT WITH THE GOVERNMENT, FIRES, FLOODS, EPIDEMICS, QUARANTINE RESTRICTIONS, STRIKES, FREIGHT EMBARGOES, AND UNUSUALLY SEVERE WEATHER, OR DELAYS OF SUBCONTRACTORS OR SUPPLIERS DUE TO SUCH CAUSES. PARAGRAPH 2 OF THE GENERAL CONDITIONS OF THE SPECIFICATIONS PROVIDES FOR THE ASSESSMENT OF LIQUIDATED DAMAGES AT THE RATE OF $15 PER DAY FOR EACH CALENDAR DAY OF DELAY BEYOND THE TIME FOR COMPLETION STATED IN THE CONTRACT.

THE RECORD FURTHER DISCLOSES THAT YOUR COMPANY ISSUED A PURCHASE ORDER FOR THE SMOKESTACK ON JULY 22, 1958, WHICH WAS RECEIVED ON JULY 25, 1958, BY THE FABRICATOR, THE SOUTHWEST FACTORY, NC., OKLAHOMA CITY, OKLAHOMA, FROM WHOM YOU HAD PREVIOUSLY RECEIVED A VERBAL QUOTATION (LATER CONFIRMED BY LETTER DATED JULY 9, 1958), IN WHICH A THREE WEEKS DELIVERY TIME WAS SPECIFIED AND UPON WHICH YOUR BID FOR THE SMOKESTACK PORTION OF THE CONTRACT WAS BASED. THEREUPON, ON AUGUST 1, 1958, THE FABRICATOR FORWARDED AN ORDER TO THE TENNESSEE COAL AND IRON DIVISION, UNITED STATES STEEL CORPORATION, FAIRFIELD, ALABAMA, FOR THE STEEL NEEDED IN THE FABRICATION OF THE SMOKESTACK. THE STEEL WAS SHIPPED ON AUGUST 21, 1958, AND WAS RECEIVED AND UNLOADED IN OKLAHOMA CITY, OKLAHOMA, ON AUGUST 30, 1958. THE SMOKESTACK WAS DELIVERED TO THE PROJECT SITE ON, OR ABOUT, SEPTEMBER 24, 1958.

BY LETTER DATED AUGUST 13, 1958, TO THE CONTRACTING OFFICER, YOU REQUESTED A 10-DAY EXTENSION ON THE COMPLETION DATE DUE "TO THE DELAY OF SHIPMENT OF THE RAW MATERIAL NECESSARY FOR FABRICATION OF THE SUBJECT SMOKE STACK.' AND AGAIN, IN A LETTER OF OCTOBER 13, 1958, YOU REQUESTED A 40-DAY EXTENSION DUE TO THE LATE DELIVERY OF THE STEEL REQUIRED FOR THE SMOKESTACK. A FINDINGS OF FACT AND DECISION BY THE CONTRACTING OFFICER NO. 223 WAS RENDERED ON FEBRUARY 2, 1960, WHICH, IN PART, READS AS FOLLOWS:

"24. IN RESPONSE TO AN INVITATION WHICH SPECIFIED A VERY SHORT COMPLETION TIME (45 CALENDAR DAYS) FOR THE SMOKESTACK PORTION OF THE WORK, THE CONTRACTOR SUBMITTED HIS BID BASED ON AN ORAL QUOTATION, LATER CONFIRMED IN WRITING, INDICATING DELIVERY OF THE SMOKESTACK WITHIN THREE WEEKS. ACTUAL EXPERIENCE ON THIS PROJECT INDICATES THAT AN ADDITIONAL WEEK SHOULD HAVE BEEN ALLOWED FOR ERECTION. THUS, OF THE APPROXIMATELY SIX WEEKS IN THE PERFORMANCE PERIOD, A MINIMUM OF FOUR WEEKS WAS REQUIRED FOR DELIVERY AND ERECTION OF THE SMOKESTACK, AFTER RECEIPT OF THE NECESSARY MATERIAL BY THE FABRICATOR.

"25. ON THE LATTER ELEMENT THE RECORD REFLECTS THAT BOTH THE FABRICATOR AND THE CONTRACTOR, WERE AT THE TIME OF BIDDING, RELYING ON THE PROSPECT OF CIRCUMSTANCES ADMITTING OF INCLUSION OF THE REQUIRED STEEL IN A CARLOAD ORDER "THEN READY FOR SHIPMENT.' BUT FROM THE RECORD THAT SUCH PROSPECT WOULD NOT BE REALIZED WAS AN EQUAL IF NOT A MORE LIKELY POSSIBILITY. THE BIDS HAD TO BE SUBMITTED, RECEIVED, OPENED, CONSIDERED, AND AWARD MADE, AND NOTICE TO PROCEED RECEIVED. THE BID ITSELF ALLOWED 60 DAYS AFTER OPENING FOR THE AWARD OF A CONTRACT.

"26. NOTWITHSTANDING THAT THESE EVENTS ALL OCCURRED ACCORDING TO A TIME SCHEDULE WELL WITHIN ANY REASONABLE EXPECTANCY (BID OPENING JUNE 25, 1958; AWARD MADE BY TELEGRAM JUNE 27, 1958; ALL CONTRACT DOCUMENTS EXECUTED AND NOTICE TO PROCEED RECEIVED JULY 16) THE PROSPECT WITH WHICH THE CONTRACTOR AND FABRICATOR STARTED, I.E., INCLUSION OF THE REQUIRED STEEL IN A CARLOAD ORDER THEN READY FOR SHIPMENT, WAS NOT REALIZED. NOR DOES THE RECORD INDICATE THE EXERCISE OF ANY SPECIAL EFFORT TO REALIZE IT. A PERIOD OF 16 DAYS ELAPSED FROM DATE OF RECEIPT OF NOTICE TO PROCEED UNTIL THE FABRICATOR PLACED ITS ORDER FOR THE REQUIRED STEEL. AND BETWEEN THEM, THE FABRICATOR AND THE CONTRACTOR COULD EXERCISE FULL CONTROL OVER THIS PERIOD.

"27. THERE WAS YET ANOTHER OBSTACLE TO RELIANCE ON THE FABRICATOR'S AND THE CONTRACTOR'S EXPECTANCY, I.E., VAGARIES OF MILL SHIPMENTS OF SPECIAL STEEL. THE FABRICATOR STATES,"* * * AS THE MILLS ONLY ROLL PLATES ONCE A MONTH, YOU CAN SEE THAT EVEN WITH NO BACKLOG OF ORDERS, THE DELIVERY COULD BE AS LONG AS 60 DAYS.'

"28. PROCUREMENT OF THE NECESSARY STEEL, HOWEVER, ACTUALLY OCCURRED WELL WITHIN THE FORESEEABLE PERIOD THAT MIGHT BE REQUIRED FOR THIS PURPOSE. FROM THE TIME THE ORDER WAS PLACED ON AUGUST 1, 1958, JUST UNDER THREE WEEKS WERE REQUIRED FOR SHIPMENT, THIS OCCURRING ON AUGUST 21, 1958; AND THE MATERIAL WAS RECEIVED AND UNLOADED BY THE FABRICATOR ON AUGUST 30, 1958, 29 DAYS AFTER PLACEMENT OF ORDER. TWENTY-FIVE DAYS LATER THE FABRICATOR HAD COMPLETED FABRICATION AND DELIVERED THE STACK TO THE SITE. WHETHER THIS PERIOD IS TO BE REGARDED AS FOUR DAYS LONGER THAN THE "THREE WEEKS DELIVERY" ORIGINALLY QUOTED BY SOUTHWEST FACTORY, INC., OR WHETHER THE TWO ARE EVEN COMPARABLE, IS PERHAPS ARGUABLE.

"29. EXCEPT, PERHAPS, FOR THIS LAG, IF IT IS TO BE SO INTERPRETED, THE DELIVERY OF THE SMOKESTACK FROM THE TIME OF THE PLACEMENT BY THE PRIME CONTRACTOR'S ORDER APPARENTLY OCCURRED WELL WITHIN THE FORESEEABLE PERIOD IMPOSED BY THE PREVALENT CIRCUMSTANCES SHOWN IN THESE FINDINGS. THERE IS THUS NO BASIS UPON WHICH IT MAY BE DETERMINED THAT THE CONTRACTOR SUFFERED ANY DELAY CAUSED FROM LATE DELIVERY OF THE SMOKESTACK. THE LAG SPOKEN OF ABOVE, WAS OF COURSE, WITHIN THE FABRICATOR'S CONTROL.

"30. THE CHOICE OF RELIANCE ON THE COMMITMENT OF SOUTHWEST FABRICATORS, INCLUDING THE APPARENT CONTINGENCIES INVOLVED IN ACHIEVING TIMELINESS OF DELIVERY, WAS THE CONTRACTOR-S. THIS IS NOT TO CRITICIZE THE CHOICE, OF COURSE, BECAUSE IT MAY HAVE BEEN THE BEST COMMITMENT OBTAINABLE. THE LATTER, ON THE OTHER HAND DOES NOT RELIEVE THE FACT OF A FORESEEABLE DELAY BEING INVOLVED. THE RECORD DOES NOT REFLECT WHETHER THE CONTRACTOR HAD OTHER CHOICES, OR THAT ANY CONTROL WAS EXERCISED TO DISCOVER OTHER CHOICES, OR TO EFFECT TIMELY DELIVERY FROM OTHER SOURCES.

"31. CLAUSE 5 PROVIDES THAT THE CONTRACTING OFFICER MAY GRANT AN EXTENSION OF TIME WHEN THE FINDINGS OF FACT JUSTIFY SUCH AN EXTENSION, THAT IS,"BECAUSE OF ANY DELAYS IN THE COMPLETION OF THE WORK DUE TO UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR * * * OR DELAYS OF SUBCONTRACTORS OR SUPPLIERS DUE TO SUCH CAUSES * * *.' THE FACTS OF RECORD DO NOT SUSTAIN SUCH A FINDING HERE. THE CLAIM IS ACCORDINGLY DENIED.'

PURSUANT TO YOUR APPEAL RIGHTS YOU THEREAFTER FILED A TIMELY APPEAL FROM THE FINDINGS OF FACT AND DECISION OF THE CONTRACTING OFFICER WITH THE BOARD OF CONTRACT APPEALS, DEPARTMENT OF INTERIOR. THE BOARD OF CONTRACT APPEALS IN DECISION OF JULY 28, 1960, HELD THAT THE EVIDENCE OF RECORD SUPPORTED THE DECISION OF THE CONTRACTING OFFICER DENYING YOUR REQUEST FOR AN EXTENSION OF TIME AND REMISSION OF LIQUIDATED DAMAGES. THE BOARD NOTED THAT THE FAILURE OF THE SUPPLIER SELECTED BY YOUR SUBCONTRACTOR TO PERFORM ITS OBLIGATION, ASSUMING IT DID DEFAULT, WAS A NORMAL BUSINESS HAZARD WHICH A CONTRACTOR ASSUMES. "IT, ACCORDINGLY, FALLS WITHIN THE RULE THAT DELAYS BY A SUBCONTRACTOR FOR THIS REASON WILL NOT EXCUSE THE PRIME CONTRACTOR FROM TIMELY PERFORMANCE UNLESS THE DIFFICULTY RESULTED FROM AN EXCUSABLE CAUSE UNDER THE CONTRACT. SUCH CAUSE HAS NOT BEEN ESTABLISHED.' THE BOARD, IN ITS DECISION, MADE THE FOLLOWING COMMENTS WITH RESPECT TO THE PLACEMENT OF A PURCHASE ORDER FOR THE STEEL NEEDED FOR FABRICATION OF THE SMOKESTACK:

"ALTHOUGH APPELLANT ON JUNE 27, 1958, WAS NOTIFIED BY TELEGRAM OF THE AWARD OF THE CONTRACT, AND ALTHOUGH PRIOR TO SUBMITTING ITS BID IT HAD OBTAINED AN ORAL QUOTATION FOR THE SMOKESTACK WHICH WAS CONFIRMED IN WRITING ON JULY 9, 1958, IT DID NOT ISSUE A PURCHASE ORDER TO THE SUBCONTRACTOR UNTIL JULY 22, 1958. THE RECORD INDICATES THAT HAD APPELLANT PLACED THE PURCHASE ORDER PROMPTLY UPON AWARD OF THE CONTRACT, STEEL COULD PROBABLY HAVE BEEN OBTAINED IN TIME FOR THE FABRICATOR TO DELIVER THE SMOKESTACK WITHIN THREE WEEKS AFTER RECEIPT OF THE PURCHASE ORDER. THERE IS NO SHOWING OF ANY JUSTIFICATION FOR APPELLANT'S DELAY IN PLACING THAT ORDER.'

IN YOUR LETTER OF SEPTEMBER 16, 1960, YOU CONTEND THAT THE ABOVE QUOTED STATEMENT, IN VIEW OF THE EXPLICIT INSTRUCTIONS CONTAINED IN THE JUNE 27, 1958, TELEGRAM OF AWARD NOT TO PROCEED WITH THE WORK UNTIL SPECIFICALLY AUTHORIZED TO DO SO, IS CONTRARY TO NORMAL PROCEDURE ON GOVERNMENT CONTRACTS. WE AGREE WITH YOUR CONTENTION ON THIS ISSUE IN THE CASE. THE COURTS AND THIS OFFICE HAVE HELD THAT A CONTRACTOR WHO ELECTS TO BEGIN CONSTRUCTION WORK ON A GOVERNMENT CONTRACT PRIOR TO RECEIPT OF NOTICE TO PROCEED DOES SO AT HIS OWN RISK AND MUST BEAR ANY LOSS RESULTING FROM SUCH ACTION SHOULD THE GOVERNMENT DELAY OR FAIL TO GIVE NOTICE TO PROCEED. PARISH V. UNITED STATES, 98 F.SUPP. 347, CERTIORARI DENIED, 342 U.S. 953; 13 COMP. GEN. 409; B-56678, AUGUST 22, 1946. SEE, ALSO, WARREN BROS. ROADS CO. V. UNITED STATES, 105 F.SUPP. 826, AND STAFFORD V. UNITED STATES, 74 F.SUPP. 155, WHICH INVOLVED DELAYS IN GIVING NOTICE TO PROCEED RESULTING, THROUGH NO FAULT OF THE GOVERNMENT, IN EXCESS COSTS TO THE CONTRACTOR. IMPLICIT IN THE HOLDINGS OF THESE AUTHORITIES IS THE PRINCIPLE THAT WHERE A CONTRACT RESERVES TO THE GOVERNMENT THE RIGHT TO DETERMINE THE STARTING DATE OF PERFORMANCE BY THE ISSUANCE OF A NOTICE TO PROCEED, THE CONTRACTOR IS UNDER NO LEGAL OBLIGATION TO BEGIN THE WORK UNTIL SUCH TIME THAT HE RECEIVES NOTICE TO PROCEED. WE BELIEVE THIS PRINCIPLE APPLICABLE TO THE PRESENT CIRCUMSTANCES. TO HOLD OTHERWISE WOULD, IN EFFECT, CREATE AN INEQUITABLE DOUBLE STANDARD UNDER WHICH A CONTRACTOR, ON THE ONE HAND, IS HELD TO ASSUME THE RISK FOR LOSSES INCURRED AS A RESULT OF PREMATURE PERFORMANCE, AND ON THE OTHER HAND, WOULD BE PENALIZED FOR NOT BEGINNING PERFORMANCE PRIOR TO RECEIPT OF NOTICE TO PROCEED. NOR DO THE PLAIN TERMS OF THE CONTRACT AND THE NOTICE OF AWARD IN THE PRESENT CASE ADMIT OF ANY OTHER RESULT. THEY BOTH CLEARLY PROVIDE THAT THE CONTRACTOR SHALL BEGIN PERFORMANCE ONLY UPON RECEIPT OF PROPER NOTICE FROM THE GOVERNMENT.

WE DO NOT MEAN TO IMPLY, HOWEVER, THAT A CONTRACTOR IS, AS A MATTER OF LAW, PRECLUDED PRIOR TO RECEIPT OF NOTICE TO PROCEED FROM TAKING PRELIMINARY STEPS TO INSURE TIMELY COMPLIANCE WITH COMPLETION DATE REQUIREMENTS UNDER A CONTRACT. PRUDENCE MAY DICTATE, ESPECIALLY IN THOSE SITUATIONS WHERE CONSTRUCTION TIME UNDER A CONTRACT IS EXTREMELY SHORT, THAT THE CONTRACTOR TAKE PRELIMINARY STEPS NECESSARY TO PUT HIM IN A POSITION TO PERFORM HIS CONTRACT EXPEDITIOUSLY. BUT IF HE CHOOSES TO TAKE THESE STEPS PRIOR TO RECEIPT OF PROPER NOTICE, HE MUST BE HELD TO DO SO AT HIS OWN RISK AND MAY NOT LOOK TO THE GOVERNMENT FOR REIMBURSEMENT BECAUSE OF LOSSES INCURRED AS A RESULT OF SUCH ACTION. CONVERSELY, IF THE CONTRACTOR CHOOSES NOT TO BEGIN PERFORMANCE UNTIL HE RECEIVES AUTHORITY TO PROCEED, HE CANNOT BE HELD ACCOUNTABLE FOR HIS REFUSAL TO BEGIN PERFORMANCE PRIOR TO RECEIPT OF THE PROPER NOTICE. ALTHOUGH, AS INDICATED, THIS OFFICE AGREES WITH YOUR CONTENTION THAT YOU WERE NOT LEGALLY OBLIGATED TO PLACE A PURCHASE ORDER FOR THE SMOKESTACK PRIOR TO RECEIPT OF NOTICE TO PROCEED, WE DO NOT FEEL THAT THIS ISSUE IS VITAL TO THE CONTRACTING OFFICER'S AND THE BOARD OF CONTRACT APPEAL'S DECISION IN DENYING YOUR REQUEST FOR AN EXTENSION OF TIME AND REMISSION OF LIQUIDATED DAMAGES. THE BOARD'S DECISION RESPECTING THE ASSESSMENT OF LIQUIDATED DAMAGES FOR DELAY IN PERFORMANCE WAS IN CONSONANCE WITH A HOLDING OF OUR OFFICE REPORTED AT 39 COMP. GEN. 343, AND WHITLOCK V. UNITED STATES, 114 CT.CL. 758. THE RECORD BEFORE US ADEQUATELY SUPPORTS THE CONTRACTING OFFICER'S FINDINGS, QUOTED ABOVE, AND THE BOARD'S DECISION, BASED ON THOSE FINDINGS, THAT THE DELAY IN THE COMPLETION OF THE WORK ON THE SMOKESTACK WAS NOT DUE TO UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT FAULT OR NEGLIGENCE ON YOUR PART OR DELAYS OF YOUR SUBCONTRACTOR DUE TO SUCH CAUSES. THIS BEING A FACTUAL QUESTION, OUR OFFICE MUST, AS A MATTER OF LAW, RECOGNIZE THE FINALITY OF SUCH DECISION IN THE ABSENCE OF FRAUD, CAPRICIOUS OR ARBITRARY ACTION, OR LACK OF SUBSTANTIAL EVIDENCE. SEE 41 U.S.C. 321.

ACCORDINGLY, YOU ARE ADVISED, ON THE BASIS OF THE RECORD BEFORE US, THAT THERE IS NO ACTION OUR OFFICE MAY TAKE IN THE MATTER.