B-169376, MAY 13, 1970

B-169376: May 13, 1970

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AIR FORCE IS ADVISED THAT CONTRACTOR. ALLEGING DAMAGES TO FOUR WHEEL DRIVE VEHICLES LEASED TO AIR FORCE WERE CAUSED BY NEGLIGENCE OF GOVERNMENT DRIVERS AND GOVERNMENT'S FAILURE TO PERFORM ADEQUATELY MINOR MAINTENANCE REQUIRED BY CONTRACT. IS ENTITLED TO AND MUST EXHAUST ADMINISTRATIVE REMEDIES PROVIDED IN DISPUTES CLAUSE BEFORE CLAIM IS COGNIZABLE EITHER BY COURTS OR GAO. DUBIEL: REFERENCE IS MADE TO YOUR LETTER OF MARCH 2. WERE FOR THE RENTAL OF 18 FOUR WHEEL DRIVE VEHICLES TO BE USED TO TRAVEL THROUGH ROUGH UNDEVELOPED TERRAIN IN CONNECTION WITH A SENSITIVE TEST PROGRAM CONDUCTED BY THE ARMAMENT DEVELOPMENT AND TEST CENTER (ADTC). THESE VEHICLES WERE USED BY SECURITY FORCES ON A 24 HOUR DAY.

B-169376, MAY 13, 1970

VEHICLES--RENTAL--DAMAGE CLAIMS WHERE, AS HERE, CONTRACT SETS OUT PROCEDURES TO SETTLE FACTUAL DISPUTES ADMINISTRATIVELY, AIR FORCE IS ADVISED THAT CONTRACTOR, ALLEGING DAMAGES TO FOUR WHEEL DRIVE VEHICLES LEASED TO AIR FORCE WERE CAUSED BY NEGLIGENCE OF GOVERNMENT DRIVERS AND GOVERNMENT'S FAILURE TO PERFORM ADEQUATELY MINOR MAINTENANCE REQUIRED BY CONTRACT--SUCH DAMAGES BEING OVER AND ABOVE CONTRACTOR'S RESPONSIBILITY UNDER CONTRACT FOR MAINTAINING VEHICLES IN FIRST-CLASS OPERATING CONDITION--IS ENTITLED TO AND MUST EXHAUST ADMINISTRATIVE REMEDIES PROVIDED IN DISPUTES CLAUSE BEFORE CLAIM IS COGNIZABLE EITHER BY COURTS OR GAO. SEE COMP. GEN. DECS. AND CT. CASES CITED.

TO MAJOR JOSEPH J. DUBIEL:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 2, 1970, REQUESTING AN ADVANCE DECISION UNDER THE AUTHORITY CONTAINED IN 31 U.S.C. 74, AND IN ACCORDANCE WITH PARAGRAPH 20713B, AFM 177-101, ON THE CLAIM OF JOHN TATUM MOTORS, INC; IN THE AMOUNT OF $7,642.71 FOR DAMAGES AND MISSING PARTS TO AUTOMOTIVE VEHICLES LEASED TO THE UNITED STATES UNDER CONTRACT NOS. F08651 -69-C-0010 AND F08651-69-C-0193.

THE RECORD INDICATES THAT THE ABOVE MENTIONED CONTRACTS, WERE FOR THE RENTAL OF 18 FOUR WHEEL DRIVE VEHICLES TO BE USED TO TRAVEL THROUGH ROUGH UNDEVELOPED TERRAIN IN CONNECTION WITH A SENSITIVE TEST PROGRAM CONDUCTED BY THE ARMAMENT DEVELOPMENT AND TEST CENTER (ADTC). THESE VEHICLES WERE USED BY SECURITY FORCES ON A 24 HOUR DAY, SEVEN DAY WEEK BASIS. ACCORDING TO PART VII OF THE CONTRACT SCHEDULE THE GOVERNMENT WAS ONLY RESPONSIBLE FOR MINOR MAINTENANCE AND THE CONTRACTOR, UNDER PART IV OF THE CONTRACT SCHEDULE, HAD THE ULTIMATE RESPONSIBILITY FOR MAINTAINING THE VEHICLES IN A FIRST CLASS OPERATING CONDITION, ALTHOUGH ACCORDING TO THE STAFF TRANSPORTATION OFFICER, 3201ST TRANSPORTATION SQUADRON, IT WAS HIS UNDERSTANDING THAT ALL 18 VEHICLES WERE REQUIRED AT ALL TIMES AND COULD NOT BE SCHEDULED FOR PREVENTIVE MAINTENANCE. CONSEQUENTLY, WHILE HIS ORGANIZATION HAD PROVIDED THE VEHICLES, THEY DID NOT SEE THE VEHICLES UNTIL REPAIRS WERE REQUIRED. IN WHICH EVENT, IF THE REPAIRS WERE MINOR THEY DID THE WORK AND, IF NOT, THE VEHICLE WAS SENT BACK TO THE CONTRACTOR.

THE CLAIMANT ALLEGES THAT THE DAMAGES TO HIS VEHICLES WERE CAUSED BY NEGLIGENCE OF GOVERNMENT DRIVERS AND THE NEGLIGENCE AND FAILURE OF THE GOVERNMENT TO ADEQUATELY PERFORM MINOR MAINTENANCE PURSUANT TO PART VII OF THE CONTRACT SCHEDULE, AND THAT THESE DAMAGES, FOR WHICH HIS CLAIM IS SUBMITTED, ARE OVER AND ABOVE HIS RESPONSIBILITY UNDER PART IV OF THE CONTRACT SCHEDULE.

ON THE BASIS OF THE PRESENT RECORD THERE DOES NOT APPEAR TO BE A SUFFICIENT FACTUAL DETERMINATION TO WARRANT PAYMENT OF THE CLAIM. HOWEVER, IT APPEARS THAT THERE MAY WELL BE A DISPUTE BETWEEN THE GOVERNMENT AND THE CONTRACTOR AS TO THE MAINTENANCE AND USE OF THE VEHICLES AND THE FAULT OR NEGLIGENCE OF THE GOVERNMENT IN CONNECTION THEREWITH. THEREFORE, THE MATTER WOULD APPEAR TO BE FOR CONSIDERATION UNDER THE ADMINISTRATIVE PROCEDURES PRESCRIBED BY THE CONTRACT DISPUTES CLAUSE CONTAINED IN THE STANDARD FORM 32 MADE PART OF THE CONTRACT. THE RECORD FURNISHED OUR OFFICE CONTAINS NO INDICATION THAT THE CONTRACTING OFFICER HAS EVEN MADE A WRITTEN DETERMINATION OF THE FACTS CONCERNING THE ACTUAL CAUSES OF THE DAMAGE TO THE VEHICLES AND THE LOSS OF ITEMS FROM THE VEHICLES, OR THAT ANY FINDINGS HAVE BEEN FURNISHED TO THE CONTRACTOR. WHERE, AS IN THIS INSTANCE, A CONTRACT PROVIDES FOR A DECISION WITH RESPECT TO SPECIFIED MATTERS BY A DESIGNATED OFFICIAL, THE CONTRACTOR IS ENTITLED TO HAVE SUCH DECISION BY THE DESIGNATED OFFICIAL. SEE UNITED STATES V. NORTH AMERICAN COMMERCIAL CO; 74 F. 145 (1896); PHOENIX BRIDGE CO. V. UNITED STATES, 85 CT. CL. 603, 629 (1937); SAMUEL PLATO V. UNITED STATES, 86 CT. CL. 665, 667 (1938). FURTHER, WHERE AS HERE THE CONTRACT SETS OUT A PROCEDURE UNDER WHICH DISPUTES AS TO FACT ARE TO BE SETTLED ADMINISTRATIVELY, THE ADMINISTRATIVE REMEDY THEREBY PROVIDED MUST BE EXHAUSTED BY THE CONTRACTOR BEFORE A CLAIM MATERIALLY RELEVANT TO THE PROCEDURE IS COGNIZABLE EITHER BY THE COURTS OR BY OUR OFFICE. UNITED STATES V. JOSEPH A. HOLPUCH CO; 328 U.S. 234 (1946); UNITED STATES V. BLAIR, 321 U.S. 730 (1944); UNITED STATES V. CALLAHAN WALKER CONST. CO; 317 U.S. 56 (1942); B-122849, MARCH 21, 1955. ALSO SEE B-151047, APRIL 10, 1963.

ACCORDINGLY, THE FILES ARE RETURNED HEREWITH FOR FURTHER ADMINISTRATIVE DETERMINATIONS. IF YOU SHOULD HAVE DOUBTS OR QUESTIONS AS TO THE LEGAL PROPRIETY OF ANY PAYMENT WHICH MAY BE PROPOSED AS A RESULT THEREOF YOU MAY RESUBMIT THE MATTER.