B-158412, FEB. 15, 1966

B-158412: Feb 15, 1966

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TO MILLER'S AMBULANCE SERVICE: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 20. YOUR CONTRACT WAS TERMINATED FOR DEFAULT. THIS LETTER FURTHER ADVISED THAT "YOU HAVE THE RIGHT TO APPEAL THIS DECISION UNDER THE DISPUTES CLAUSE.'. WE HAVE BEEN ADVISED INFORMALLY THAT YOUR APPEAL WAS RECEIVED BY THE VETERANS ADMINISTRATION CONTRACT APPEALS BOARD ON JANUARY 11. UNDER THE DISPUTES CLAUSE OF YOUR CONTRACT (SET FORTH IN STANDARD FORM 32 WHICH WAS INCORPORATED BY REFERENCE). ALL DISPUTES ON QUESTIONS OF FACT ARE TO BE DECIDED BY THE CONTRACTING OFFICER. UNTIL YOU HAVE EXHAUSTED YOUR APPEAL RIGHTS UNDER THE DISPUTES CLAUSE. OR SHOWN BY SOME CLEAR EVIDENCE THAT THIS PROCEDURE IS INADEQUATE OR UNAVAILABLE.

B-158412, FEB. 15, 1966

TO MILLER'S AMBULANCE SERVICE:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 20, 1966, CONCERNING CONTRACT NO. V6009P-2401 BETWEEN THE VETERANS ADMINISTRATION AND YOUR FIRM FOR FURNISHING AMBULANCE SERVICE.

THE FILE SUBMITTED WITH YOUR LETTER INDICATES THAT BY LETTER DATED DECEMBER 7, 1965, THE CONTRACTING OFFICER ADVISED YOU THAT EFFECTIVE DECEMBER 11, 1965, YOUR CONTRACT WAS TERMINATED FOR DEFAULT. THIS LETTER FURTHER ADVISED THAT "YOU HAVE THE RIGHT TO APPEAL THIS DECISION UNDER THE DISPUTES CLAUSE.' BY LETTER TO THE CONTRACTING OFFICER DATED JANUARY 5, 1966, YOU EXERCISED YOUR RIGHT TO APPEAL THE DEFAULT TERMINATION. WE HAVE BEEN ADVISED INFORMALLY THAT YOUR APPEAL WAS RECEIVED BY THE VETERANS ADMINISTRATION CONTRACT APPEALS BOARD ON JANUARY 11, 1966, AND DOCKETED AS VACAB-548.

IN YOUR LETTER OF JANUARY 20 YOU STATE THAT AFTER CONSULTATION YOU NOW WANT TO APPEAL DIRECTLY TO OUR OFFICE AND YOU REQUEST THAT WE EXAMINE ALL THE EVIDENCE ENCLOSED WITH YOUR LETTER AND REINSTATE YOUR CONTRACT FOR THE REMAINDER OF ITS TERM. YOU ALSO REQUEST RESTORATION IN THE FORM OF DAMAGES FOR THE FINANCIAL LOSS TO YOUR COMPANY AS A RESULT OF THE DEFAULT TERMINATION OF THE CONTRACT.

IT APPEARS FROM THE CORRESPONDENCE AND DOCUMENTS SUBMITTED WITH YOUR LETTER THAT THE CONTROVERSY BETWEEN YOUR COMPANY AND THE CONTRACTING OFFICER IN REGARD TO THE DEFAULT TERMINATION INVOLVES PRIMARILY QUESTIONS OF FACT. UNDER THE DISPUTES CLAUSE OF YOUR CONTRACT (SET FORTH IN STANDARD FORM 32 WHICH WAS INCORPORATED BY REFERENCE), ALL DISPUTES ON QUESTIONS OF FACT ARE TO BE DECIDED BY THE CONTRACTING OFFICER, SUBJECT TO APPEAL BY YOU TO THE VETERANS ADMINISTRATION CONTRACT APPEALS BOARD. UNTIL 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 BY THIS OFFICE OR BY THE COURTS IS AVAILABLE TO YOU. SEE B. H. DEACON COMPANY V. UNITED STATES, 189 F.SUPP. 146; HAPPEL V. UNITED STATES, 176 F.SUPP. 787, AFFIRMED 279 F.2D 8; AUTOMATIC SCREW PRODUCTS COMPANY V. UNITED STATES, 145 CT.CL. 94; 37 COMP. GEN. 568 AND AUTHORITIES CITED THEREIN. IN THIS CONNECTION, IT SHOULD BE NOTED THAT A FAILURE TO APPEAL AN ADVERSE DECISION BY THE CONTRACTING OFFICER ON A QUESTION OF FACT CONSTITUTES A FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES WHICH WOULD RESULT IN MAKING THE CONTRACTING OFFICER'S DECISION FINAL AND CONCLUSIVE. SEE HAPPEL V. UNITED STATES, SUPRA. MOREOVER, WE HAVE HELD THAT THE GOVERNMENT CANNOT BE DEPRIVED OF THE BENEFITS OF THE ADMINISTRATIVE MACHINERY IT HAS PROVIDED IN ITS CONTRACTS TO ADJUDICATE DISPUTES AND TO AVOID LARGE DAMAGE CLAIMS. COMP. GEN. 568, 570, AND AUTHORITIES CITED THEREIN.

IN VIEW OF THE FOREGOING, WHERE A CONTRACTOR FILES WITH OUR OFFICE A CLAIM INVOLVING DISPUTED QUESTIONS OF FACT WHICH HAVE BEEN THE SUBJECT OF AN ADVERSE DECISION BY THE CONTRACTING OFFICER FROM WHICH THE CONTRACTOR HAS FILED AN APPEAL AS PROVIDED IN THE CONTRACT, IT HAS BEEN OUR PROCEDURE NOT TO CONSIDER THE CLAIM WHILE SUCH APPEAL IS PENDING WITH THE ADMINISTRATIVE AGENCY. ACCORDINGLY, YOUR CLAIM WILL NOT BE CONSIDERED BY OUR OFFICE AT THIS TIME. SHOULD THE VETERANS ADMINISTRATION CONTRACT APPEALS BOARD DENY YOUR CLAIM, YOU MAY THEN, IF YOU BELIEVE SUCH DENIAL TO BE ERRONEOUS IN POINT OF FACT OR LAW, REQUEST OUR REVIEW OF THE BOARD'S DECISION FOR CONFORMANCE TO THE FINALITY STANDARDS SET FORTH IN THE WUNDERLICH ACT, 41 U.S.C. 321, 322.