B-161368, MAY 10, 1968

B-161368, MAY 10, 1968

TO NATIONAL PHOTO MAPS, INC.:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 21, 1967, WITH ENCLOSURES, AND SUBSEQUENT CORRESPONDENCE, REQUESTING REVIEW OF AN ASSESSMENT OF LIQUIDATED DAMAGES BY THE DEPARTMENT OF AGRICULTURE FOR LATE SHIPMENT OF PHOTOGRAPHIC MATERIALS UNDER CONTRACT NO. 12-33-001-4435.

THE CONTRACT IN QUESTION, AMONG OTHER PROVISIONS, CONTAINS A "DISPUTES" CLAUSE WHICH READS AS FOLLOWS: "3. DISPUTES

"/A) ANY DISPUTE CONCERNING A QUESTION OF FACT ARISING UNDER THIS CONTRACT, NOT DISPOSED OF BY AGREEMENT, SHALL BE DECIDED BY THE CONTRACTING OFFICER, WHO SHALL REDUCE HIS DECISION TO WRITING AND FURNISH A SIGNED COPY TO THE CONTRACTOR. SUCH DECISION SHALL BE FINAL AND CONCLUSIVE UNLESS, WITHIN 30 DAYS FROM THE DATE OF RECEIPT THEREOF, THE CONTRACTOR MAILS OR OTHERWISE FURNISHES TO THE CONTRACTING OFFICER A WRITTEN APPEAL, ADDRESSED TO THE SECRETARY OF AGRICULTURE. THE CONTRACTOR SHALL BE AFFORDED AN OPPORTUNITY TO BE HEARD AND TO OFFER EVIDENCE. THE DECISION OF THE SECRETARY OR HIS DULY AUTHORIZED REPRESENTATIVE FOR THE DETERMINATION OF SUCH APPEALS, SHALL BE FINAL AND CONCLUSIVE UNLESS FRAUDULENT, OR CAPRICIOUS, OR ARBITRARY, OR SOGROSSLY ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH, OR NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. 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.'

IT APPEARS THAT THE DIFFERENCES BETWEEN YOU AND THE CONTRACTING OFFICIALS OF THE DEPARTMENT OF AGRICULTURE AS TO WHETHER LIQUIDATED DAMAGES WERE PROPERLY ASSESSABLE ARE ESSENTIALLY FACTUAL IN NATURE, AND HAVE NOT YET BEEN FINALLY RESOLVED BY THE CONTRACTING OFFICER. UNDER THE "DISPUTES" CLAUSE, ABOVE, ALL QUESTIONS OF FACT ARE FOR HIS DETERMINATION SUBJECT TO APPEAL BY YOU TO THE SECRETARY OF AGRICULTURE OR HIS DULY APPOINTED REPRESENTATIVE.

WHILE THIS OFFICE DOES HAVE JURISDICTION TO SETTLE AND ADJUST ALL CLAIMS AGAINST THE UNITED STATES, WE BASE OUR ACTIONS UPON THE ADMINISTRATIVE RECORDS OF THE AGENCY INVOLVED AND SUCH WRITTEN RECORDS AND SUPPLEMENTAL PRESENTATION AS MAY BE PRESENTED BY THE CLAIMANT. WHERE, AS IN THIS CASE, A CLAIM ARISES UNDER A CONTRACT WHICH CONTAINS A STIPULATION REQUIRING DISPUTED FACTS TO BE DETERMINED BY A DESIGNATED OFFICIAL OR AGENCY WE CANNOT ACT THEREON UNTIL THE FACTS HAVE BEEN SO DETERMINED.

IT IS SUGGESTED THAT IF YOU DESIRE TO PROCEED FURTHER WITH YOUR CLAIM YOU SHOULD INITIATE THE CONTRACTUAL DISPUTES PROCEDURE BY PRESENTING THE GROUNDS ON WHICH YOU CONSIDER YOUR DELAYS TO BE EXCUSABLE UNDER THE CONTRACT, AND REQUESTING THE CONTRACTING OFFICER TO CONSIDER AND MAKE FINDINGS THEREON IN ACCORDANCE WITH THE QUOTED PROVISION. IF UPON CONCLUSION OF THE "DISPUTES" CLAUSE PROCEDURE YOU BELIEVE THAT THE FACTUAL FINDINGS ARE FRAUDULENT OR CAPRICIOUS OR ARBITRARY OR SO GROSSLY ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH, OR ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, OR THAT THE CONCLUSIONS REACHED ARE LEGALLY ERRONEOUS, YOU MAY RESUBMIT THE MATTER TO OUR OFFICE.