B-152413, SEP. 30, 1963

B-152413, SEP. 30, 1963

TO BALTIMORE LUMBER CO., INC:

RECEIPT IS ACKNOWLEDGED OF YOUR LETTER DATED AUGUST 28, 1963, WITH ENCLOSURES, CONCERNING THE ACTION OF THE BUREAU OF ENGRAVING AND PRINTING IN DECLARING YOUR FIRM IN DEFAULT UNDER CONTRACT NO. TEP 5257.

YOU ARE OBJECTING TO THE GOVERNMENT'S ACTION IN REJECTING ONE LOT OF 98,000 CURRENCY PACKING BLOCKS AND IT APPEARS THAT THE QUESTION FOR DETERMINATION IS WHETHER THESE BLOCKS IN FACT MEET THE REQUIREMENTS OF THE CONTRACT.

PARAGRAPH 12 OF THE GENERAL PROVISIONS (SUPPLY CONTRACT), STANDARD FORM 32, SEPTEMBER 1961 EDITION, WHICH WAS APPARENTLY INCORPORATED AS A PART OF THE ABOVE CONTRACT, READS AS FOLLOWS:

"12. DISPUTES

(A) 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 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. THE DECISION OF THE CONTRACTING OFFICER SHALL BE FINAL AND CONCLUSIVE UNLESS, WITHIN 30 DAYS FROM THE DATE OF RECEIPT OF SUCH COPY, THE CONTRACTOR MAILS OR OTHERWISE FURNISHES TO THE CONTRACTING OFFICER A WRITTEN APPEAL ADDRESSED TO THE SECRETARY. THE DECISION OF THE SECRETARY OR HIS DULY AUTHORIZED REPRESENTATIVE FOR THE DETERMINATION OF SUCH APPEALS SHALL BE FINAL AND CONCLUSIVE UNLESS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO HAVE BEEN FRAUDULENT, OR CAPRICIOUS, OR ARBITRARY, OR SO GROSSLY ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH, OR NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. 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.

(B) THIS "DISPUTES" CLAUSE DOES NOT PRECLUDE CONSIDERATION OF LAW QUESTIONS IN CONNECTION WITH DECISIONS PROVIDED FOR IN PARAGRAPH (A) ABOVE: PROVIDED, THAT NOTHING IN THIS CONTRACT SHALL BE CONSTRUED AS MAKING FINAL THE DECISION OF ANY ADMINISTRATIVE OFFICIAL, REPRESENTATIVE, OR BOARD ON A QUESTION OF LAW.'

SINCE THERE IS INVOLVED HERE A DISPUTE CONCERNING A QUESTION OF FACT ARISING UNDER THE CONTRACT, THIS OFFICE MAY NOT CONSIDER THE MATTER UNTIL YOU HAVE EXHAUSTED YOUR ADMINISTRATIVE REMEDIES UNDER THE CONTRACT TERMS. IF YOU WISH TO PURSUE THE MATTER FURTHER, YOU SHOULD REQUEST A DECISION FROM THE CONTRACTING OFFICER, WHICH DECISION, IF NOT SATISFACTORY TO YOU, MAY BE APPEALED TO THE SECRETARY OF THE TREASURY.