B-171822, MAY 4, 1971

B-171822: May 4, 1971

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INC: REFERENCE IS MADE TO YOUR LETTER R1215 JLW. WHICH WAS TRANSMITTED TO OUR OFFICE BY CONGRESSMAN ALPHONZO BELL FOR CONSIDERATION UNDER OUR BID PROTEST PROCEDURES. WE ARE OF THE OPINION THAT THE MATTERS SEECO ALLEGES MAY NOT BE CONSIDERED UNDER OUR BID PROTEST PROCEDURES SINCE THEY INVOLVE DISPUTES OF FACT RELATING TO SEECO'S PERFORMANCE UNDER CONTRACTS WITH THE NAVAL ORDNANCE STATION. 1970: "IT APPEARS THAT THE DISPUTE INVOLVED CLEARLY ARISES UNDER THE CONTRACT AND AS SUCH IS FOR SETTLEMENT PURSUANT TO THE PROCEDURES SET OUT IN THE 'DISPUTES' CLAUSE WHICH IS CONTAINED IN STANDARD GOVERNMENT CONTRACTS. SUCH DISPUTES ARE TO BE DECIDED BY THE CONTRACTING OFFICER. BOTH THE CONTRACTOR AND THE GOVERNMENT ARE BOUND TO FOLLOW THE PROCEDURE SET OUT IN THE CONTRACT FOR THE ADMINISTRATION OF DISPUTES ARISING OUT OF THE CONTRACT.

B-171822, MAY 4, 1971

CONTRACTS - DISPUTES CLAUSE - ADMINISTRATIVE REMEDIES ADVISING THAT SEECO'S LETTER TRANSMITTED THROUGH CONGRESSMAN ALPHONZO BELL ALLEGES MATTERS THAT MAY NOT BE CONSIDERED UNDER GAO'S BID PROTEST PROCEDURES AT THIS TIME. BECAUSE SEECO'S ALLEGATIONS INVOLVE DISPUTES OF FACT RELATING TO ITS PERFORMANCE UNDER CONTRACTS WITH THE NAVAL ORDNANCE STATION, INDIAN HEAD, MARYLAND, SEECO MUST FIRST SEEK RELIEF UNDER THE "DISPUTES" CLAUSE OF THE CONTRACTS. UPON THE COMPLETION OF THIS ADMINISTRATIVE PROCESS, GAO MAY THEN BE REQUESTED TO REVIEW THE MATTER UNDER THE STANDARDS PRESCRIBED IN 41 U.S.C. 321 AND 322.

TO SEECO, INC:

REFERENCE IS MADE TO YOUR LETTER R1215 JLW, DATED JANUARY 27, 1971, WITH ENCLOSURES, WHICH WAS TRANSMITTED TO OUR OFFICE BY CONGRESSMAN ALPHONZO BELL FOR CONSIDERATION UNDER OUR BID PROTEST PROCEDURES.

AFTER REVIEWING THE ABOVE LETTER AND THE ADMINISTRATIVE REPORT WHICH WE RECEIVED FROM THE DEPARTMENT OF THE NAVY, WE ARE OF THE OPINION THAT THE MATTERS SEECO ALLEGES MAY NOT BE CONSIDERED UNDER OUR BID PROTEST PROCEDURES SINCE THEY INVOLVE DISPUTES OF FACT RELATING TO SEECO'S PERFORMANCE UNDER CONTRACTS WITH THE NAVAL ORDNANCE STATION, INDIAN HEAD, MARYLAND, FOR AFT HANGERS. ANY RELIEF TO WHICH SEECO MAY BE ENTITLED UNDER THE CIRCUMSTANCES MUST BE ASSERTED UNDER THE "DISPUTES" CLAUSE OF THE CONTRACTS. IN THIS CONNECTION, WE STATED IN B-170805, SEPTEMBER 29, 1970:

"IT APPEARS THAT THE DISPUTE INVOLVED CLEARLY ARISES UNDER THE CONTRACT AND AS SUCH IS FOR SETTLEMENT PURSUANT TO THE PROCEDURES SET OUT IN THE 'DISPUTES' CLAUSE WHICH IS CONTAINED IN STANDARD GOVERNMENT CONTRACTS. THAT REGARD, SUCH DISPUTES ARE TO BE DECIDED BY THE CONTRACTING OFFICER, WITH THE CONTRACTOR HAVING A RIGHT TO APPEAL FROM SUCH DECISION TO THE HEAD OF THE AGENCY CONCERNED. BOTH THE CONTRACTOR AND THE GOVERNMENT ARE BOUND TO FOLLOW THE PROCEDURE SET OUT IN THE CONTRACT FOR THE ADMINISTRATION OF DISPUTES ARISING OUT OF THE CONTRACT, AND THE CONTRACTOR MUST EXHAUST ITS ADMINISTRATIVE REMEDIES UNDER THE DISPUTES CLAUSE BEFORE APPEALING EITHER TO OUR OFFICE OR THE COURTS. SEE B. H. DEACON CO. V UNITED STATES, 189 F. SUPP. 146 (1960); HAPPEL V UNITED STATES, 176 F. SUPP. 787 (1959), AFFIRMED 279 F. 2D 88 (1960); AUTOMATIC SCREW PRODUCTS COMPANY V UNITED STATES, 145 CT. CL. 94 (1959); 37 COMP. GEN. 568 (1958) AND AUTHORITIES CITED THEREIN."

SHOULD SEECO BE UNSUCCESSFUL IN ANY CLAIM IT PRESENTS UNDER THE DISPUTES PROCEDURES AND IT BELIEVES, UPON COMPLETION OF THE ADMINISTRATIVE PROCESS SET OUT BY THE "DISPUTES" CLAUSE, THAT THE ADMINISTRATIVE DECISION IS ERRONEOUS IN POINT OF LAW OR FACT, OUR OFFICE MAY THEN BE REQUESTED TO REVIEW THE MATTER UNDER THE STANDARDS PRESCRIBED IN 41 U.S.C. 321 AND 322.