B-161067, MAR. 27, 1967

B-161067: Mar 27, 1967

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INC.: REFERENCE IS MADE TO YOUR LETTER OF MARCH 7. YOUR APPEAL WAS RECEIVED BY THE ARMED SERVICES BOARD OF CONTRACT APPEALS AND DOCKETED AS ASBCA NO. 12259. 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. IT DOES NOT APPEAR THAT OTHER RELIEF BY THIS OFFICE OR BY THE COURTS IS AVAILABLE TO YOU. 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. 37 COMP.

B-161067, MAR. 27, 1967

TO FRANK CLINE TRACTOR SERVICE AND MANUFACTURING CO., INC.:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 7, 1967, WITH ENCLOSURES, REQUESTING ANY INFORMATION OR ASSISTANCE WE CAN FURNISH YOU WITH REGARD TO YOUR DEFAULT UNDER CONTRACT NO. DA-20-113-AMC-11120/T).

THE FILE SUBMITTED WITH YOUR LETTER INDICATES THAT BY LETTER DATED JANUARY 11, 1967, THE CONTRACTING OFFICER TERMINATED YOUR CONTRACT FOR DEFAULT AND THAT BY LETTER DATED FEBRUARY 10, 1967, YOU APPEALED THE DEFAULT TERMINATION. YOUR APPEAL WAS RECEIVED BY THE ARMED SERVICES BOARD OF CONTRACT APPEALS AND DOCKETED AS ASBCA NO. 12259.

IT APPEARS THAT THE CONTROVERSY BETWEEN YOUR COMPANY AND THE CONTRACTING OFFICER IN REGARD TO THE DEFAULT TERMINATION INVOLVES PRIMARILY A QUESTION OF FACT AS TO WHETHER THE PRODUCT OFFERED BY YOU MEETS THE REQUIREMENTS OF THE CONTRACT SPECIFICATIONS. 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 SECRETARY, OR HIS AUTHORIZED REPRESENTATIVE, THE ARMED SERVICES BOARD OF CONTRACT APPEALS. 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. BEACON CO. V. UNITED STATES, 189 F.SUPP. 146; HAPPEL V. UNITED STATES, 176 F.SUPP. 787, AFFIRMED 279 F.2D 88; AUTOMATIC SCREW PRODUCTS COMPANY V. UNITED STATES, 145 CT.CL. 94. 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 DECISION OF THE CONTRACTING OFFICER 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. 37 COMP. GEN. 568, 570 AND AUTHORITIES CITED THEREIN.

IN VIEW OF THE FOREGOING, WHERE A CONTRACTOR HAS FILED AN APPEAL FROM AN ADVERSE DECISION OF THE CONTRACTING OFFICER AS PROVIDED IN THE CONTRACT, IT IS OUR PROCEDURE TO TAKE NO ACTION REGARDING THE MATTER WHILE SUCH APPEAL IS PENDING IN THE ADMINISTRATIVE AGENCY. ACCORDINGLY, WE CANNOT RENDER YOU ANY ASSISTANCE AT THIS TIME. SHOULD THE ARMED SERVICES BOARD OF CONTRACT APPEALS DENY YOUR APPEAL, 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.