B-174568, DEC 10, 1971

B-174568: Dec 10, 1971

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SUCH A DETERMINATION IS WITHIN THE AUTHORITY OF AN ADMINISTRATIVE AGENCY AND HAS LONG BEEN RECOGNIZED BY THE COURTS. SINCE AN APPEAL IS PENDING BEFORE THE ARMED SERVICES BOARD OF CONTRACT APPEALS. WILL NOT CONSIDER A DAMAGE CLAIM FOR $118. THE TERMINATION WAS EFFECTED UNDER THE TERMINATION FOR CONVENIENCE OF THE GOVERNMENT CLAUSE IN THE CONTRACT. WHICH WAS AWARDED PURSUANT TO AN INVITATION FOR BIDS ISSUED BY THE UNITED STATES NAVY SHIPS PARTS CONTROL CENTER. YOU PROTEST THAT THE NAVY'S ACTION WAS AN IMPROPER EXERCISE OF THE TERMINATION FOR CONVENIENCE AUTHORITY. YOU REQUEST THAT OUR OFFICE ASSUME JURISDICTION OVER A CLAIM WHICH YOU HAVE FILED IN BEHALF OF COLONIAL FOR THE AMOUNT OF $118.

B-174568, DEC 10, 1971

BID PROTEST - CANCELLATION FOR CONVENIENCE - ASBCA DECISION THAT THE GAO MAY NOT PROPERLY OBJECT TO THE CONVENIENCE TERMINATION EFFECTED BY THE DEPARTMENT OF THE NAVY. SUCH A DETERMINATION IS WITHIN THE AUTHORITY OF AN ADMINISTRATIVE AGENCY AND HAS LONG BEEN RECOGNIZED BY THE COURTS, UNITED STATES V CORLISS STEAM ENGINE COMPANY, 91 U.S. 321 (1875). FURTHER, SINCE AN APPEAL IS PENDING BEFORE THE ARMED SERVICES BOARD OF CONTRACT APPEALS, THE COMP. GEN. WILL NOT CONSIDER A DAMAGE CLAIM FOR $118,066.95 AT THIS TIME.

TO LIVERANT, SENFT AND COHEN:

WE REFER TO YOUR LETTER OF SEPTEMBER 29, 1971, RELATING TO THE TERMINATION BY THE DEPARTMENT OF THE NAVY OF CONTRACT N00104-70-C-1932 WITH COLONIAL METALS COMPANY (COLONIAL) FOR THE FURNISHING OF COPPER INGOTS. THE TERMINATION WAS EFFECTED UNDER THE TERMINATION FOR CONVENIENCE OF THE GOVERNMENT CLAUSE IN THE CONTRACT, WHICH WAS AWARDED PURSUANT TO AN INVITATION FOR BIDS ISSUED BY THE UNITED STATES NAVY SHIPS PARTS CONTROL CENTER, MECHANICSBURG, PENNSYLVANIA.

YOU PROTEST THAT THE NAVY'S ACTION WAS AN IMPROPER EXERCISE OF THE TERMINATION FOR CONVENIENCE AUTHORITY, AND YOU REQUEST THAT OUR OFFICE ASSUME JURISDICTION OVER A CLAIM WHICH YOU HAVE FILED IN BEHALF OF COLONIAL FOR THE AMOUNT OF $118,066.95 COVERING LOSS OF PROFIT AND OTHER DAMAGES WHICH YOU STATE HAVE BEEN INCURRED BY COLONIAL.

THE RECORD FORWARDED TO OUR OFFICE BY THE DEPARTMENT OF THE NAVY INDICATES THAT THE TERMINATION CONTRACTING OFFICER HAS PREVIOUSLY CONSIDERED THE CLAIM IN QUESTION AND HAS DETERMINED THAT COLONIAL IS ENTITLED TO SETTLEMENT IN THE AMOUNT OF $250. THE RECORD FURTHER INDICATES THAT YOU HAVE FILED AN APPEAL FROM THE CONTRACTING OFFICER'S DECISION TO THE ARMED SERVICES BOARD OF CONTRACT APPEALS, WHICH IS DOCKETED UNDER ASBCA NO. 15860. THE BOARD HAS ADVISED OUR OFFICE THAT THE APPEAL IS STILL PENDING.

THE AUTHORITY OF AN ADMINISTRATIVE AGENCY TO TERMINATE A CONTRACT FOR THE GOVERNMENT'S INTEREST AND TO ENTER INTO AN AGREEMENT WITH A CONTRACTOR FOR THE SETTLEMENT OF HIS CLAIMS ARISING OUT OF SUCH TERMINATION HAS LONG BEEN RECOGNIZED BY THE COURTS AND BY OUR OFFICE. 44 COMP. GEN. 466 (1965); UNITED STATES V CORLISS STEAM-ENGINE COMPANY, 91 U.S. 321 (1875). FURTHER, THE DETERMINATION WHETHER A CONTRACT SHOULD BE TERMINATED FOR THE CONVENIENCE OF THE GOVERNMENT IS A MATTER OF ADMINISTRATIVE DECISION WHICH DOES NOT REST WITH OUR OFFICE. 47 COMP. GEN. 1 (1967) AND DECISIONS CITED THEREIN. ACCORDINGLY, OUR OFFICE MAY NOT PROPERLY OBJECT TO THE CONVENIENCE TERMINATION EFFECTED BY THE DEPARTMENT OF THE NAVY.

AS TO THE AMOUNT OF THE TERMINATION SETTLEMENT WITH COLONIAL, WHERE A CONTRACTOR FILES WITH OUR OFFICE A CLAIM INVOLVING DISPUTED QUESTIONS OF FACT WHICH HAVE BEEN THE SUBJECT OF AN ADVERSE DECISION BY THE CONTRACTING OFFICER FROM WHICH THE CONTRACTOR HAS FILED AN APPEAL AS PROVIDED IN THE CONTRACT, IT HAS BEEN OUR PROCEDURE NOT TO CONSIDER THE CLAIM WHILE THE APPEAL IS PENDING WITH THE ADMINISTRATIVE AGENCY. ACCORDINGLY, THE CLAIM WILL NOT BE CONSIDERED BY OUR OFFICE AT THIS TIME. SHOULD THE ARMED SERVICES BOARD OF CONTRACT APPEALS DENY THE CLAIM, AND YOU BELIEVE SUCH DISALLOWANCE IS BASED UPON ERROR OF FACT OR LAW, YOU MAY THEN RESUBMIT YOUR CLAIM TO THIS OFFICE, TOGETHER WITH YOUR REASONS FOR BELIEVING THE BOARD IS IN ERROR.