B-144065, OCT. 17, 1960

B-144065: Oct 17, 1960

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TO GWYNS' INCORPORATED: REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 15. REQUESTING ADVICE ON THE PROCEDURES YOU ARE TO FOLLOW IN THE FUTURE WHEN CONDITIONS MAKE DELIVERIES UNDER THIS CONTRACT IMPOSSIBLE OR REQUIRE USE OF ROUND-ABOUT ROUTES. IT IS OUR OPINION THAT SUCH CONDITIONS ARE NOT SUFFICIENT TO EXCUSE PERFORMANCE AT THE CONTRACT PRICE. WHICH WAS INCORPORATED BY REFERENCE UNDER PARAGRAPH 2. INDICATES THAT DELIVERIES ARE REQUIRED IF THE DELIVERY POINTS ARE SAFELY AND REASONABLY ACCESSIBLE BY MOTOR VEHICLE OVER PUBLIC OR GOVERNMENT MAINTAINED ROADS. YOUR ATTENTION IS INVITED TO THE PROVISIONS OF PARAGRAPH 21 (G) AND 22 OF THE GENERAL PROVISIONS FOR FEDERAL SUPPLY SCHEDULE CONTRACTS.

B-144065, OCT. 17, 1960

TO GWYNS' INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 15, 1960, EXPRESSING YOUR DISAGREEMENT WITH OUR DISALLOWANCE OF YOUR CLAIM FOR $18.15, REPRESENTING ADDITIONAL EXPENSES INCURRED IN CONNECTION WITH THE DELIVERY OF DIESEL FUEL OIL TO THE BEAVERHEAD RANGER STATION UNDER CONTRACT NO. GS- 08S-14439, AND REQUESTING ADVICE ON THE PROCEDURES YOU ARE TO FOLLOW IN THE FUTURE WHEN CONDITIONS MAKE DELIVERIES UNDER THIS CONTRACT IMPOSSIBLE OR REQUIRE USE OF ROUND-ABOUT ROUTES.

CONCERNING THE PROCEDURE TO BE FOLLOWED IF CONDITIONS ARISE WHICH REQUIRE USE OF A ROUND-ABOUT ROUTE, IT IS OUR OPINION THAT SUCH CONDITIONS ARE NOT SUFFICIENT TO EXCUSE PERFORMANCE AT THE CONTRACT PRICE. IN THIS CONNECTION, SEE PARAGRAPH 13 OF THE SPECIAL PROVISIONS IN FORM FSS-ATT-2, WHICH WAS INCORPORATED BY REFERENCE UNDER PARAGRAPH 2, GENERAL AND SPECIAL PROVISIONS, OR YOUR CONTRACT NO. GS-08S-14439, AND INDICATES THAT DELIVERIES ARE REQUIRED IF THE DELIVERY POINTS ARE SAFELY AND REASONABLY ACCESSIBLE BY MOTOR VEHICLE OVER PUBLIC OR GOVERNMENT MAINTAINED ROADS. FAILURE TO EFFECT THE REQUIRED DELIVERIES UNDER SUCH CONDITIONS MIGHT THEREFORE RENDER YOUR COMPANY LIABLE FOR ANY EXCESS COSTS INCURRED BY THE GOVERNMENT IN OBTAINING DELIVERY, AND IN POSSIBLE TERMINATION OF YOUR CONTRACT. SEE PARAGRAPH 24 OF FORM FSS-ATT-2.

WITH RESPECT TO THE PROCEDURE TO BE FOLLOWED WHERE CONDITIONS MAKE DELIVERIES IMPOSSIBLE, YOUR ATTENTION IS INVITED TO THE PROVISIONS OF PARAGRAPH 21 (G) AND 22 OF THE GENERAL PROVISIONS FOR FEDERAL SUPPLY SCHEDULE CONTRACTS, GSA FORM 281C, WHICH WAS ALSO INCORPORATED BY REFERENCE UNDER PARAGRAPH 2, GENERAL AND SPECIAL PROVISIONS, OF YOUR CONTRACT NO. GS-08S-14439. THESE PROVISIONS READ AS FOLLOWS:

"/G) ANY ORDERING OFFICE MAY, IN RESPECT TO ANY ONE OR MORE PURCHASE ORDERS PLACED BY IT UNDER THE CONTRACT, EXERCISE THE SAME RIGHT OF TERMINATION, ACCEPTANCE OF INFERIOR ARTICLES OR SERVICES, AND ASSESSMENT OF EXCESS COST AS MIGHT THE CONTRACTING OFFICER, EXCEPT THAT WHEN FAILURE TO DELIVER ARTICLES OR SERVICES IS ALLEGED BY THE CONTRACTOR TO BE EXCUSABLE, THE DETERMINATION OF WHETHER THE FAILURE IS EXCUSABLE SHALL BE MADE ONLY BY THE CONTRACTING OFFICER OF THE GENERAL SERVICES ADMINISTRATION, TO WHOM SUCH ALLEGATION SHALL BE REFERRED BY THE ORDERING OFFICE AND FROM WHOSE DETERMINATION APPEAL MAY BE TAKEN AS PROVIDED BELOW.

"22. DISPUTES.--- EXCEPT AS OTHERWISE PROVIDED IN THIS CONTRACT, ANY DISPUTE CONCERNING A QUESTION OF FACT ARISING UNDER THIS CONTRACT WHICH IS NOT DISPOSED OF BY AGREEMENT BETWEEN THE ORDERING OFFICE AND THE CONTRACTOR SHALL BE DECIDED BY THE CONTRACTING OFFICER OF THE GENERAL SERVICES ADMINISTRATION ISSUING OFFICE WHO SHALL REDUCE HIS DECISION TO WRITING AND MAIL OR OTHERWISE FURNISH A COPY THEREOF TO THE CONTRACTOR. WITHIN 30 DAYS FROM THE DATE OF RECEIPT OF SUCH COPY, THE CONTRACTOR MAY APPEAL BY MAILING OR OTHERWISE FURNISHING TO THE CONTRACTING OFFICER A WRITTEN APPEAL ADDRESSED TO THE ADMINISTRATOR OF GENERAL SERVICES AND THE DECISION OF THE ADMINISTRATOR OF GENERAL SERVICES OR HIS DULY AUTHORIZED REPRESENTATIVE FOR THE HEARING OF SUCH APPEALS SHALL BE FINAL AND CONCLUSIVE.: PROVIDED, THAT IF NO SUCH APPEAL IS TAKEN, THE DECISION OF THE CONTRACTING OFFICER OF THE GENERAL SERVICES ISSUING OFFICE SHALL BE FINAL AND CONCLUSIVE. IN CONNECTION WITH ANY APPEAL PROCEEDING UNDER THIS CLAUSE, THE CONTRACTOR SHALL BE AFFORDED AN OPPORTUNITY TO BE HEARD AND TO OFFER EVIDENCE IN SUPPORT OF ITS APPEAL. PENDING FINAL DECISION OF A DISPUTE HEREUNDER, THE CONTRACTOR SHALL PROCEED DILIGENTLY WITH THE PERFORMANCE OF THE CONTRACT AND IN ACCORDANCE WITH THE CONTRACTING OFFICER'S DECISION.'

UNDER THESE PROVISIONS, IN ANY FUTURE INSTANCE IN WHICH YOU FAIL TO EFFECT DELIVERIES AS ORDERED AND IN WHICH YOU ALLEGE THAT SUCH FAILURE WAS EXCUSABLE BECAUSE OF IMPOSSIBILITY, IT WOULD APPEAR NECESSARY AND PROPER FOR THE ORDERING AGENCY TO REFER THE MATTER TO THE CONTRACTING OFFICER OF THE GENERAL SERVICES ADMINISTRATION FOR DETERMINATION. SEE, ALSO, GSA REG. 1-II-303.03. IN THE EVENT OF AN ADVERSE DECISION BY THAT OFFICIAL, THE APPEAL PROCEDURE SET OUT IN PARAGRAPH 22, DISPUTES, WOULD THEN BE AVAILABLE TO YOU.