B-159722, OCT. 17, 1966

B-159722, OCT. 17, 1966

TO GUENTHER MANUFACTURING COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 11, 1966, PROTESTING AGAINST THE TERMINATION FOR DEFAULT OF A CONTRACT ENTERED INTO WITH YOU BY THE NAVAL ORDNANCE PLANT, LOUISVILLE, KENTUCKY, FOR THE FURNISHING OF SHRIKE DUMMY CONTROL SECTIONS AND THE AWARD OF A REPLACEMENT CONTRACT THEREFOR TO A "PHILADELPHIA COMPANY.'

IT APPEARS FROM A REPORT FURNISHED US BY THE DEPARTMENT OF THE NAVY IN REGARD TO YOUR PROTEST THAT CONTRACT NO. N00197-66-C-0464, COVERING THE PROCUREMENT OF 135 SHRIKE DUMMY CONTROL SECTIONS, WAS AWARDED TO ROYSON ENGINEERING CO., HATBORO, PENNSYLVANIA, ON JUNE 23, 1966, AND THAT THE PROCUREMENT REPRESENTED A REPURCHASE AGAINST YOUR ACCOUNT AS THE RESULT OF THE DEFAULT TERMINATION OF CONTRACT NO. N00197-66-C-0062, AWARDED TO YOU ON DECEMBER 13, 1965, FOR A LIKE NUMBER OF THE SAME UNITS. IT FURTHER APPEARS FROM THE REPORT THAT CONTRACT N00197-66-C 0062 WAS TERMINATED BY THE CONTRACTING OFFICER FOR YOUR FAILURE TO MAKE DELIVERIES OF THE SUPPLIES THEREUNDER AS REQUIRED; THAT YOU APPEALED (1) THE CONTRACTING OFFICER'S ACTION IN DECLARING YOU IN DEFAULT UNDER THE CONTRACT, AND (2) HIS ASSESSMENT AGAINST YOU OF THE EXCESS COSTS RESULTING FROM THE REPURCHASE UNDER CONTRACT N00197-66-C 0464, TO THE ARMED SERVICES BOARD OF CONTRACT APPEALS, AS PROVIDED FOR IN THE DISPUTES CLAUSE OF THE CONTRACT; AND THAT YOUR APPEALS (ASBCA CASE NOS. 115 AND 11757, RESPECTIVELY) ARE NOW PENDING BEFORE THE BOARD.

UNDER THE PROVISIONS OF CLAUSE 12 OF STANDARD FORM 32 (JUNE 1964 ED.), GENERAL PROVISIONS, WHICH WAS INCORPORATED IN CONTRACT N00197-66 C-0062 BY REFERENCE, ANY DISPUTE CONCERNING A QUESTION OF FACT ARISING UNDER THE CONTRACT WAS TO BE DECIDED BY THE CONTRACTING OFFICER, WHO WAS TO REDUCE HIS DECISION TO WRITING AND FURNISH A COPY THEREOF TO YOU. THE DECISION OF THE CONTRACTING OFFICER WAS TO BE FINAL AND CONCLUSIVE UNLESS, WITHIN 30 DAYS FROM THE DATE OF RECEIPT OF SUCH COPY, YOU FURNISHED TO THE CONTRACTING OFFICER A WRITTEN APPEAL ADDRESSED TO THE SECRETARY OF THE NAVY. THE DECISION OF THE SECRETARY OR HIS DULY AUTHORIZED REPRESENTATIVE FOR THE DETERMINATION OF SUCH APPEALS (THE ARMED SERVICES BOARD OF CONTRACT APPEALS) WAS TO 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.

IT WILL THUS BE SEEN THAT, UNDER THE TERMS OF CONTRACT N00197-66-C 0062, ANY RELIEF TO BE AFFORDED YOU AT THIS TIME IN REGARD TO THE MATTERS COMPLAINED OF MUST COME FROM THE ARMED SERVICES BOARD OF CONTRACT APPEALS. PRIOR TO THE BOARD'S FINAL ACTION ON YOUR APPEALS, BOTH THE COURTS AND THIS OFFICE ARE PRECLUDED FROM CONSIDERING THE MERITS OF YOUR SO-CALLED CLAIMS, WHICH OBVIOUSLY INVOLVE DETERMINATION OF FACTUAL ISSUES. SEE UNITED STATES V. CARLO BIANCHI AND CO., INC. (1963), 373 U.S. 709; HENRY E. WILE COMPANY V. UNITED STATES (CT.CL., 1959), 169 F.SUPP. 249, 252; 25 COMP. GEN. 1, 8-9.

FOR THE FOREGOING REASONS, IT WOULD BE INAPPROPRIATE FOR THIS OFFICE TO DISCUSS ANY OF THE CONTENTIONS SET FORTH IN YOUR LETTER, AND YOUR PROTEST IS, THEREFORE, DENIED.