B-161575, JUN. 6, 1967

B-161575: Jun 6, 1967

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IT APPEARS THAT THE CONTRACT CONTAINED THE STANDARD GOVERNMENT CLAUSE WHICH PROVIDES THAT WHEN DELAYS IN THE COMPLETION OF THE WORK OCCUR AND ARE DUE TO UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR. THAT ANY DISPUTES CONCERNING A QUESTION OF FACT ARISING UNDER THE CONTRACT WHICH ARE NOT DISPOSED OF BY AGREEMENT SHALL BE DECIDED BY THE CONTRACTING OFFICER. IT APPEARS FROM THE FILE THAT THE CONTRACTING OFFICER CONCLUDED THAT AN EXTENSION OF TIME FOR COMPLETION OF THE CONTRACT WAS NOT APPROPRIATE UNDER THE CONTRACT TERMS AND THAT LIQUIDATED DAMAGES WERE PROPER FOR ASSESSMENT. THE CONTRACTOR IS NOT IN AGREEMENT WITH SUCH CONCLUSION AND WAS NOT ADVISED BY THE CONTRACTING OFFICER THAT HIS DETERMINATION WAS SUBJECT TO APPEAL UNDER THE "DISPUTES" CLAUSE OF THE CONTRACT AS REQUIRED BY ASPR 1-314/D).

B-161575, JUN. 6, 1967

TO ATTORNEY AT LAW:

YOUR LETTER OF MAY 18, 1967, REQUESTS, ON BEHALF OF EMJAY ENGINEERING AND CONSTRUCTION CO., C., PAYMENT OF $3,440 REPRESENTING THE AMOUNT WITHHELD AS LIQUIDATED DAMAGES AS A RESULT OF DELAY IN PERFORMANCE OF CONTRACT NO. DA 18064-AMC-524 (A) AT FORT DETRICK, FREDERICK, MARYLAND.

IT APPEARS THAT THE CONTRACT CONTAINED THE STANDARD GOVERNMENT CLAUSE WHICH PROVIDES THAT WHEN DELAYS IN THE COMPLETION OF THE WORK OCCUR AND ARE DUE TO UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR, THE GOVERNMENT CONTRACTING OFFICER, UPON RECEIPT OF TIMELY NOTICE FROM THE CONTRACTOR OF SUCH DELAYS AND THE CAUSES THEREOF, SHALL ASCERTAIN THE FACTS AND EXTENT OF THE DELAY AND EXTEND THE TIME FOR COMPLETING THE WORK WHEN IN HIS JUDGMENT THE FINDINGS OF FACT JUSTIFY SUCH AN EXTENSION AND HIS FINDINGS OF FACT THEREON SHALL BE FINAL AND CONCLUSIVE SUBJECT ONLY TO APPEAL AS PROVIDED UNDER THE "DISPUTES" CLAUSE OF THE CONTRACT.

THE "DISPUTES" CLAUSE OF THE CONTRACT PROVIDES, IN EFFECT, THAT ANY DISPUTES CONCERNING A QUESTION OF FACT ARISING UNDER THE CONTRACT WHICH ARE NOT DISPOSED OF BY AGREEMENT SHALL BE DECIDED BY THE CONTRACTING OFFICER, WHO SHALL REDUCE HIS DECISION TO WRITING AND MAIL OR OTHERWISE FURNISH A COPY THEREOF TO THE CONTRACTOR; ALSO, THAT THE DECISION OF THE CONTRACTING OFFICER SHALL BE FINAL AND CONCLUSIVE UNLESS, WITHIN 30 DAYS FROM THE DATE OF RECEIPT OF SUCH COPY, THE CONTRACTOR APPEALS THE DECISION TO THE HEAD OF THE DEPARTMENT.

IT APPEARS FROM THE FILE THAT THE CONTRACTING OFFICER CONCLUDED THAT AN EXTENSION OF TIME FOR COMPLETION OF THE CONTRACT WAS NOT APPROPRIATE UNDER THE CONTRACT TERMS AND THAT LIQUIDATED DAMAGES WERE PROPER FOR ASSESSMENT. SINCE, HOWEVER, THE CONTRACTOR IS NOT IN AGREEMENT WITH SUCH CONCLUSION AND WAS NOT ADVISED BY THE CONTRACTING OFFICER THAT HIS DETERMINATION WAS SUBJECT TO APPEAL UNDER THE "DISPUTES" CLAUSE OF THE CONTRACT AS REQUIRED BY ASPR 1-314/D), IT APPEARS THAT YOU SHOULD REQUEST THE CONTRACTING OFFICER TO REDUCE HIS DECISION TO WRITING IN ORDER THAT YOU MAY EXERCISE YOUR RIGHT OF APPEAL UNDER THE "DISPUTES" CLAUSE OF THE CONTRACT.

IT IS A WELL-ESTABLISHED RULE THAT WHERE, AS HERE, THE CONTRACT SETS FORTH A PROCEDURE UNDER WHICH DISPUTES OF THE NATURE HERE INVOLVED ARE TO BE DECIDED ADMINISTRATIVELY, THE ADMINISTRATIVE REMEDY SO PROVIDED MUST BE EXHAUSTED BY THE CONTRACTOR BEFORE A CLAIM DEPENDENT UPON A FACTUAL SITUATION DETERMINABLE PURSUANT TO THE PROCEDURE REQUIRED BY THE CONTRACT IS COGNIZABLE EITHER BY THE COURTS OR OUR OFFICE. SEE UNITED STATES V JOSEPH A. HOLPUCH CO., 38 U.S. 234; UNITED STATES V CALLAHAN WALKER CONSTRUCTION CO., 317 U.S. 56.

FOR THE REASONS STATED THE CLAIM IS NOT PRESENTLY FOR CONSIDERATION BY OUR OFFICE.