B-144471, JAN. 25, 1961

B-144471: Jan 25, 1961

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TO HUDSON AND CREYKE: FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 14. - OF WHICH YOU WERE INFORMED IN OUR LETTER OF NOVEMBER 25. IT APPEARS THAT THE QUESTIONS IN ISSUE WILL BE SUBMITTED TO THE CONTRACT APPEALS BOARD FOR ITS CONSIDERATION AND DETERMINATION UNDER THE DISPUTES CLAUSE OF THE CONTRACT. AS YOU NO DOUBT ARE AWARE. THE DECISIONS OF THE APPEALS BOARD ON MATTERS WITHIN ITS JURISDICTION UNDER SUCH CONTRACT PROVISIONS GENERALLY ARE FINAL AND CONCLUSIVE ON THE PARTIES. FAIR AND UNIFORM STANDARDS HAVE BEEN PRESCRIBED UNDER 41 U.S.C. 321. CLAIMS ARISING OUT OF CONTRACTS CONTAINING THE USUAL "DISPUTES" CLAUSE ORDINARILY MAY NOT BE CONSIDERED WHILE AN APPEAL IS PENDING. TO WHICH REFERENCE WAS MADE IN YOUR LETTER.

B-144471, JAN. 25, 1961

TO HUDSON AND CREYKE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 14, 1960, CONCERNING THE ACTION OF THE CONTRACTING OFFICER IN WITHHOLDING LIQUIDATED DAMAGES UNDER CONTRACT NO. DA-23-028-ENG-3874 WITH INDEPENDENT CONTRACTORS AND ENGINEERS FOR CONSTRUCTION OF LAUNCH OPERATION BUILDINGS NEAR FORBES AIR FORCE BASE, TOPEKA, KANSAS.

A RESPONSE TO OUR REQUEST FOR AN ADMINISTRATIVE REPORT--- OF WHICH YOU WERE INFORMED IN OUR LETTER OF NOVEMBER 25, 1960--- HAS BEEN RECEIVED ADVISING US THAT THE CONTRACTOR HAS FILED AN APPEAL DATED DECEMBER 2, 1960, FROM THE DECISION OF THE CONTRACTING OFFICER CONCERNING THE CONTRACT TIME EXTENSIONS INVOLVED. THUS, IT APPEARS THAT THE QUESTIONS IN ISSUE WILL BE SUBMITTED TO THE CONTRACT APPEALS BOARD FOR ITS CONSIDERATION AND DETERMINATION UNDER THE DISPUTES CLAUSE OF THE CONTRACT.

AS YOU NO DOUBT ARE AWARE, THE DECISIONS OF THE APPEALS BOARD ON MATTERS WITHIN ITS JURISDICTION UNDER SUCH CONTRACT PROVISIONS GENERALLY ARE FINAL AND CONCLUSIVE ON THE PARTIES, AND FAIR AND UNIFORM STANDARDS HAVE BEEN PRESCRIBED UNDER 41 U.S.C. 321, 322, FOR REVIEW OF ADMINISTRATIVE DECISIONS MADE PURSUANT TO THE PROVISIONS OF GOVERNMENT CONTRACTS. CF. CONTINENTAL ILLINOIS NATIONAL BANK V. UNITED STATES, JANUARY 8, 1952, 121 CT.CL. 203; PYLE V. UNITED STATES, JULY 16, 1958, 143 CT.CL. 339; AND WILE V. UNITED STATES, DECIDED BY THE SAME COURT JANUARY 14, 1959; ALSO, KAYFIELD V. UNITED STATES, DECIDED MAY 5, 1960, BY THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, 278 F.2D 217.

UNDER THE ESTABLISHED POLICY OF OUR OFFICE, CLAIMS ARISING OUT OF CONTRACTS CONTAINING THE USUAL "DISPUTES" CLAUSE ORDINARILY MAY NOT BE CONSIDERED WHILE AN APPEAL IS PENDING. IT MAY BE NOTED THAT THE CONTRACT CONSIDERED IN OUR DECISION OF FEBRUARY 14, 1951, B-99759, 30 COMP. GEN. 345, TO WHICH REFERENCE WAS MADE IN YOUR LETTER, DID NOT PROVIDE FOR SEPARATE DATES FOR COMPLETION OF DEFINITE PORTIONS OF THE WORK AS IN THE INSTANT CONTRACT. YOUR ATTENTION IS INVITED, IN CONNECTION WITH THIS ASPECT OF THE MATTER, TO THE CASE OF WISE V. UNITED STATES, DECIDED MARCH 31, 1919, 249 U.S. 361, WHEREIN THE SUPREME COURT OF THE UNITED STATES AFFIRMED A DECISION BY THE UNITED STATES COURT OF CLAIMS WHICH HAD REJECTED THE CONTRACTOR'S CONTENTION THAT AN ASSESSMENT OF LIQUIDATED DAMAGES FOR FAILURE TO COMPLETE ONE BUILDING ON TIME SHOULD BE CONSTRUED AS A PENALTY UNDER A GOVERNMENT CONTRACT FOR CONSTRUCTION OF TWO BUILDINGS CONTAINING A CLAUSE PROVIDING LIQUIDATED DAMAGES FOR FAILURE TO COMPLETE THE WORK IN ALL ITS PARTS. CF. AMERICAN EMPLOYER'S INSURANCE COMPANY V. UNITED STATES, MAY 6, 1940, 91 CT.CL. 231, INVOLVING TIME EXTENSIONS AND ASSESSMENT OF LIQUIDATED DAMAGES FOR DELAY IN COMPLETING SEPARABLE PARTS OF A GOVERNMENT CONSTRUCTION CONTRACT.