B-151084, APR. 9, 1964

B-151084: Apr 9, 1964

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TO THE SECRETARY OF THE AIR FORCE: FORWARDED HEREWITH IS LETTER OF FEBRUARY 19. IT PROVIDED THAT ANY DISPUTE CONCERNING A QUESTION OF FACT WHICH IS NOT DISPOSED OF BY AGREEMENT SHALL BE DECIDED BY THE CONTRACTING OFFICER. THAT DECISION IS TO BE FINAL AND CONCLUSIVE UNLESS THE CONTRACTOR. THE COURTS HAVE HELD THAT SUCH A PROVISION FOR DECIDING FACTUAL ISSUES IS A VALID PROVISION AND HAVE REFUSED TO CONSIDER CLAIMS INVOLVING SUCH ISSUES WHERE THE CLAIMANTS HAVE FAILED TO EXHAUST THEIR RIGHT OF APPEAL IN CASE OF AN ADVERSE FINDING OF FACT BY THE CONTRACTING OFFICER. THIS RECOMMENDATION IS BASED ON THE FINDING THAT THE CONTRACTOR WOULD HAVE BEEN IN DEFAULT IF HE HAD FAILED TO CONTINUE WORK DURING THE PERIOD OF THE ALLEGED STRIKE AND THAT ANY EXPENSE INCIDENT TO CONTINUANCE OF THE CONTRACT WORK DURING THAT PERIOD IS NOT REIMBURSABLE AS AN ADDITIONAL EXPENSE.

B-151084, APR. 9, 1964

TO THE SECRETARY OF THE AIR FORCE:

FORWARDED HEREWITH IS LETTER OF FEBRUARY 19, 1963, WITH ENCLOSURES, FROM THE HEADQUARTERS, AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, IN REGARD TO THE CLAIM OF RAINBOW ELECTRIC COMPANY FOR $21,799.40 REPRESENTING EXPENSES ALLEGEDLY INCURRED IN THE PERFORMANCE OF CONTRACT NO. AF 24/604/-1626 DUE TO CONTINUED PERFORMANCE REQUIRED BY THE CONTRACTING OFFICER DURING THE PERIOD OF AN ALLEGED STRIKE.

THE CONTRACT CONTAINED IN CLAUSE A.6 OF THE ADDITIONAL GENERAL PROVISIONS THE USUAL PROVISIONS WITH RESPECT TO DISPUTES OF FACT ARISING THEREUNDER. IT PROVIDED THAT ANY DISPUTE CONCERNING A QUESTION OF FACT WHICH IS NOT DISPOSED OF BY AGREEMENT SHALL BE DECIDED BY THE CONTRACTING OFFICER, WHO SHALL REDUCE HIS DECISION TO WRITING AND MAIL OR OTHERWISE FURNISH A COPY THEREOF TO THE CONTRACTOR. THAT DECISION IS TO BE FINAL AND CONCLUSIVE UNLESS THE CONTRACTOR, WITHIN 30 DAYS FROM THE DATE OF RECEIPT OF SUCH COPY, TAKES A WRITTEN APPEAL TO THE HEAD OF THE DEPARTMENT, IN WHICH EVENT THE DECISION OF THE HEAD OF THE DEPARTMENT OR HIS DULY AUTHORIZED REPRESENTATIVE SHALL BE FINAL AND CONCLUSIVE, WITH CERTAIN EXCEPTIONS. THE COURTS HAVE HELD THAT SUCH A PROVISION FOR DECIDING FACTUAL ISSUES IS A VALID PROVISION AND HAVE REFUSED TO CONSIDER CLAIMS INVOLVING SUCH ISSUES WHERE THE CLAIMANTS HAVE FAILED TO EXHAUST THEIR RIGHT OF APPEAL IN CASE OF AN ADVERSE FINDING OF FACT BY THE CONTRACTING OFFICER. HAPPEL V. UNITED STATES, 176 F.SUPP. 787, AFFIRMED 279 F.2D 88; B.H. DEACON CO., INC. V. UNITED STATES, 189 F.SUPP. 146. IN LINE WITH THIS HOLDING, OUR OFFICE DOES NOT CONSIDER A CLAIM INVOLVING QUESTIONS OF FACT WHERE A CONTRACT MAKES PROVISION FOR SETTLING SUCH DISPUTES IN THE MANNER AS HERE AGREED UPON, UNTIL THE CLAIMANT HAS EXHAUSTED HIS ADMINISTRATIVE REMEDY.

THE CLAIMS FILE, UNDER ATTACHMENT NO. 18, CONTAINS THE CONTRACTING OFFICER'S RECOMMENDATION OF DISALLOWANCE OF THE CONTRACTOR'S CLAIM. THIS RECOMMENDATION IS BASED ON THE FINDING THAT THE CONTRACTOR WOULD HAVE BEEN IN DEFAULT IF HE HAD FAILED TO CONTINUE WORK DURING THE PERIOD OF THE ALLEGED STRIKE AND THAT ANY EXPENSE INCIDENT TO CONTINUANCE OF THE CONTRACT WORK DURING THAT PERIOD IS NOT REIMBURSABLE AS AN ADDITIONAL EXPENSE. THE ENTIRE MATTER CONCERNS THE QUESTION AS TO WHETHER THE CONTRACTOR'S DELAY IN PERFORMANCE WAS DUE TO AN EXCUSABLE CAUSE UNDER THE TERMS OF THE CONTRACT SO THAT WHEN THE CONTRACTOR PROCEEDED WITH THE WORK AT AN ADDITIONAL EXPENSE UPON THE ORDER OF THE CONTRACTING OFFICER, THE GOVERNMENT SHOULD BE LIABLE THEREFOR BECAUSE THE WORK WAS EXPEDITED. THE CONTRACTOR SHOULD BE FURNISHED WITH A FINDING OF FACT BY THE CONTRACTING OFFICER AS REQUIRED BY THE CITED CLAUSE A.6 AND IT SHOULD BE AFFORDED AN OPPORTUNITY TO APPEAL FROM SUCH PART OF THE FINDING OF FACT AS MAY BE ADVERSE TO IT. THE CONTRACTOR IS BEING ADVISED OF THIS ACTION.