B-156473, MAY 3, 1965

B-156473: May 3, 1965

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INC.: REFERENCE IS MADE TO YOUR LETTER OF MARCH 31. YOU WERE NOTIFIED THAT SINCE YOU HAD FAILED TO PERFORM THE CONTRACT WITHIN THE TIME REQUIRED. THE GOVERNMENT WAS CONSIDERING TERMINATING IT PURSUANT TO THE "DEFAULT" CLAUSE CONTAINED IN STANDARD FORM 32. YOU WERE FURTHER NOTIFIED THEREIN THAT. YOU WERE ADVISED THAT YOU WERE BEING AFFORDED THE OPPORTUNITY TO PRESENT. YOUR ATTENTION WAS INVITED TO THE RESPECTIVE RIGHTS OF THE CONTRACTOR AND THE GOVERNMENT UNDER THE "DEFAULT" CLAUSE. THAT THE GOVERNMENT WAS THE PARTY AT FAULT. THAT YOU WERE STILL WAITING FOR A REPLY TO YOUR LETTER OF SEPTEMBER 18. THAT ANY ADDITIONAL REQUIREMENTS WERE TO BE AT AN ADDITIONAL EXPENSE TO THE GOVERNMENT. IT APPEARS FROM THIS CORRESPONDENCE THAT THE DIFFERENCES BETWEEN YOU AND THE CONTRACTING OFFICIALS AS TO WHETHER YOU ARE ENTITLED TO AN EQUITABLE ADJUSTMENT IN THE CONTRACT PRICE OR DELIVERY SCHEDULE.

B-156473, MAY 3, 1965

TO QUE ENTERPRISES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 31, 1965, ENCLOSING A COPY OF A SHOW CAUSE NOTICE DATED MARCH 25, 1965, ADDRESSED TO YOU BY JACK W. PRICE, AS AF CONTRACTING OFFICER IN CONNECTION WITH CONTRACT NO. AF30/635/37112, AND A COPY OF YOUR REPLY OF MARCH 31, 1965.

IN THE SHOW CAUSE NOTICE, YOU WERE NOTIFIED THAT SINCE YOU HAD FAILED TO PERFORM THE CONTRACT WITHIN THE TIME REQUIRED, THE GOVERNMENT WAS CONSIDERING TERMINATING IT PURSUANT TO THE "DEFAULT" CLAUSE CONTAINED IN STANDARD FORM 32, GENERAL PROVISIONS (SUPPLY CONTRACT), SEPTEMBER 1961 EDITION, INCORPORATED IN THE CONTRACT. YOU WERE FURTHER NOTIFIED THEREIN THAT, PENDING A FINAL DECISION IN THE MATTER, IT WOULD BE NECESSARY TO DETERMINE WHETHER YOUR FAILURE TO PERFORM AROSE OUT OF CAUSES BEYOND YOUR CONTROL AND WITHOUT FAULT OR NEGLIGENCE ON YOUR PART. ACCORDINGLY, YOU WERE ADVISED THAT YOU WERE BEING AFFORDED THE OPPORTUNITY TO PRESENT, IN WRITING, ANY FACTS BEARING ON THE QUESTION TO THE COMMANDER, OKLAHOMA CITY AIR MATERIEL AREA, TINKER AIR FORCE BASE, OKLAHOMA. YOUR ATTENTION WAS INVITED TO THE RESPECTIVE RIGHTS OF THE CONTRACTOR AND THE GOVERNMENT UNDER THE "DEFAULT" CLAUSE.

IN REPLYING TO THE ABOVE NOTICE BY LETTER OF MARCH 31, 1965, YOU ADVISED THE COMMANDER, OKLAHOMA CITY AIR MATERIAL AREA, THAT THE GOVERNMENT WAS THE PARTY AT FAULT; THAT YOU WERE STILL WAITING FOR A REPLY TO YOUR LETTER OF SEPTEMBER 18, 1964, AND A FOLLOW-UP LETTER OF JANUARY 19, 1965, CONCERNING "EXTRA CHARGES" THAT THE GOVERNMENT DEMANDED YOU PARTICIPATE IN; THAT YOU HAD MADE A FIRM COMMITMENT OF WHAT YOU WOULD SUPPLY AND WHAT YOU WOULD CHANGE; THAT ANY ADDITIONAL REQUIREMENTS WERE TO BE AT AN ADDITIONAL EXPENSE TO THE GOVERNMENT; AND THAT YOU HAD FURNISHED THE DEPARTMENT OF THE AIR FORCE WITH A COST BREAKDOWN OF THE AMOUNT OF $25,600 PROPOSED TO BE CHARGED FOR CERTAIN CHANGES IN A LETTER DATED JANUARY 21, 1965, BUT HAD RECEIVED NO REPLY TO YOUR LETTER.

IT APPEARS FROM THIS CORRESPONDENCE THAT THE DIFFERENCES BETWEEN YOU AND THE CONTRACTING OFFICIALS AS TO WHETHER YOU ARE ENTITLED TO AN EQUITABLE ADJUSTMENT IN THE CONTRACT PRICE OR DELIVERY SCHEDULE, OR BOTH, FOR THE CHANGES IN THE CONTRACT TO WHICH YOU REFER, AND WHETHER YOU HAVE FULFILLED YOUR OBLIGATIONS UNDER THE CONTRACT, HAVE NOT YET BEEN RESOLVED BY THE CONTRACTING OFFICER. UNDER THE "CHANGES" AND/OR THE "DISPUTES" CLAUSES OF THE CONTRACT (SET FORTH IN THE REFERRED-TO STANDARD FORM 32) ALL QUESTIONS OF FACT INVOLVED ARE FOR HIS DETERMINATION, SUBJECT TO APPEAL BY YOU TO THE SECRETARY OF THE AIR FORCE, OR HIS DULY AUTHORIZED REPRESENTATIVE (AS THOSE TERMS ARE DEFINED IN THE FORM). UNTIL THE CONTRACTING OFFICER HAS ACTED AND YOU HAVE EXHAUSTED YOUR APPEAL RIGHTS UNDER THE DISPUTES CLAUSE, OR SHOWN BY SOME CLEAR EVIDENCE THAT THIS PROCEDURE IS INADEQUATE OR UNAVAILABLE,IT DOES NOT APPEAR THAT OTHER RELIEF IS AVAILABLE TO YOU. SEE B. H. DEACON COMPANY V. UNITED STATES (U.S. DIST. CT. E.D. PA., 1960), 189 F.SUPP. 146; HAPPEL V. UNITED STATES (U.S. DIST. CT. E.D. MO., 1959), 176 F.SUPP. 787, AFFIRMED 279 F.2D 88; AUTOMATIC SCREW PRODUCTS COMPANY V. UNITED STATES (1959), 145 CT.CL. 94, 169 F.SUPP. 951; 37 COMP. GEN. 568, 38 ID. 749. THIS OFFICE HAS NO AUTHORITY TO INTERFERE IN THE ADMINISTRATION OF THE CONTRACT OR TO DIRECT THE DEPARTMENT OF THE AIR FORCE TO EXPEDITE THE SETTLEMENT OF THIS MATTER. WE HAVE ALWAYS ATTEMPTED TO OBSERVE THE SEPARATE SPHERES OF RESPONSIBILITY ATTACHING TO THE VARIOUS CONTRACTING AGENCIES OF THE GOVERNMENT AND TO THE GENERAL ACCOUNTING OFFICE, AND HAVE RECOGNIZED AT ALL TIMES THE PREROGATIVE AND DUTY OF THE CONTRACTING AGENCY TO ADMINISTER THE ACTIVITIES FOR WHICH IT IS CHARGED.

FOR THE REASONS STATED, WE MUST CONCLUDE THAT YOUR LETTER DOES NOT PRESENT ANY BASIS FOR ACTION BY THIS OFFICE AT THE PRESENT TIME.