B-182046, AUG 30, 1974

B-182046: Aug 30, 1974

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THE FILE INDICATES THAT THE DISAGREEMENT HAS REACHED THE STAGE WHERE THE CONTRACTING OFFICER HAS NOTIFIED COLMAC THAT TERMINATION FOR DEFAULT PROCEDURES ARE BEING CONSIDERED. THE DETERMINATION OF WHETHER GOODS OFFERED UNDER A GOVERNMENT CONTRACT CONFORM TO THE CONTRACT SPECIFICATIONS IS PROPERLY THE RESPONSIBILITY OF THE CONTRACTING AGENCY TO BE MADE IN THE COURSE OF THE ADMINISTRATION OF THE CONTRACT. WE NOTE THAT THE INSTANT CONTRACT INCLUDES THE STANDARD FORM 32 DISPUTES CLAUSE WHICH PROVIDES IN EFFECT THAT DISPUTES BETWEEN THE PARTIES ON SUCH FACTUAL ISSUES ARISING UNDER THE CONTRACT ARE FOR RESOLUTION IN ACCORDANCE WITH THE ADMINISTRATIVE PROCEDURE SET OUT IN THAT CLAUSE. IT IS WELL ESTABLISHED THAT WHEN A CONTRACT SETS OUT A PROCEDURE UNDER WHICH DISPUTES ARE TO BE SETTLED ADMINISTRATIVELY.

B-182046, AUG 30, 1974

WHERE CONTRACTOR HAS DISAGREEMENT WITH CONTRACTING AGENCY CONCERNING A MATTER OF CONTRACT PERFORMANCE, MATTER SHOULD BE PURSUED FOR RESOLUTION PURSUANT TO CONTRACT DISPUTES CLAUSE, AND THEREFORE GAO HAS NO JURISDICTION TO CONSIDER MATTER. S & E CONTRACTORS V. UNITED STATES, 406 U.S. 1.

COLMAC INDUSTRIES, INCORPORATED:

BY LETTER DATED AUGUST 2, 1974, COLMAC INDUSTRIES, INCORPORATED REQUESTED REVIEW AND ASSISTANCE CONCERNING ITS CONTRACT M00681-74-B 0061, WITH THE MARINE CORPS PURCHASING AND CONTRACTING OFFICE, OCEANSIDE, CALIFORNIA. THE SUBJECT CONTRACT CALLED FOR COLMAC TO FURNISH FOUR LAUNDRY PRESSES TO THE MARINE CORPS BASE AT CAMP PENDLETON, CALIFORNIA.

A REVIEW OF THE MATERIAL FORWARDED BY THE CONTRACTOR INDICATES THAT COLMAC'S IMMEDIATE PROBLEMS ENSURED FROM A DISAGREEMENT CONCERNING WHETHER THE FOUR DELIVERED PRESSES MET CERTAIN MILITARY SPECIFICATIONS. ADDITIONALLY, THE FILE INDICATES THAT THE DISAGREEMENT HAS REACHED THE STAGE WHERE THE CONTRACTING OFFICER HAS NOTIFIED COLMAC THAT TERMINATION FOR DEFAULT PROCEDURES ARE BEING CONSIDERED.

THE DETERMINATION OF WHETHER GOODS OFFERED UNDER A GOVERNMENT CONTRACT CONFORM TO THE CONTRACT SPECIFICATIONS IS PROPERLY THE RESPONSIBILITY OF THE CONTRACTING AGENCY TO BE MADE IN THE COURSE OF THE ADMINISTRATION OF THE CONTRACT. WE NOTE THAT THE INSTANT CONTRACT INCLUDES THE STANDARD FORM 32 DISPUTES CLAUSE WHICH PROVIDES IN EFFECT THAT DISPUTES BETWEEN THE PARTIES ON SUCH FACTUAL ISSUES ARISING UNDER THE CONTRACT ARE FOR RESOLUTION IN ACCORDANCE WITH THE ADMINISTRATIVE PROCEDURE SET OUT IN THAT CLAUSE. IT IS WELL ESTABLISHED THAT WHEN A CONTRACT SETS OUT A PROCEDURE UNDER WHICH DISPUTES ARE TO BE SETTLED ADMINISTRATIVELY, THE REMEDY THEREBY PROVIDED MUST BE EXHAUSTED BY THE CONTRACTOR. UNITED STATES V. JOSEPH A. HOLPUCH COMPANY, 328 U.S. 234 (1946). FURTHERMORE, FOLLOWING THE SUPREME COURT DECISION IN S & E CONTRACTORS, INCORPORATED V. UNITED STATES, 406 U.S. 1 (1972), WE NO LONGER REVIEW BOARD OF CONTRACT APPEALS DECISIONS ABSENT A SHOWING OF FRAUD OR BAD FAITH. IN THE CIRCUMSTANCES, THERE IS NO ACTION WE CAN TAKE.