B-182820, MAR 28, 1975

B-182820: Mar 28, 1975

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WHERE PARTY HAS FILED SUIT IN COURT OR MADE APPEAL TO BOARD OF CONTRACT APPEALS AND SAME RELIEF IS SOUGHT FROM GAO. REQUEST FOR CONSIDERATION OF MATTER ON MERITS IS DECLINED. CONTRACTOR'S CLAIMS FOR EXTRA WORK AND PROGRESS PAYMENTS WHICH ARE SUBJECT TO RESOLUTION UNDER DISPUTES CLAUSE OF CONTRACTS WILL NOT BE DECIDED ON MERITS. THE CONTRACTS IN QUESTION ARE: DACA63-73-C-0229. A REPORT ON THIS MATTER WAS REQUESTED FROM THE SECRETARY OF THE ARMY. WHEN A MATTER RAISED FOR OUR RESOLUTION IS ALSO PENDING BEFORE A COURT OR BOARD OF CONTRACT APPEALS. OUR OFFICE WILL DECLINE TO CONSIDER THE MATTER. THIS IS BECAUSE WHATEVER ACTION THE COURT OR BOARD MAY DECIDE TO TAKE REGARDING THE MATTER WOULD TAKE PRECEDENCE OVER A DECISION BY OUR OFFICE.

B-182820, MAR 28, 1975

1. WHERE PARTY HAS FILED SUIT IN COURT OR MADE APPEAL TO BOARD OF CONTRACT APPEALS AND SAME RELIEF IS SOUGHT FROM GAO, REQUEST FOR CONSIDERATION OF MATTER ON MERITS IS DECLINED, SINCE COURT OR BOARD ACTION WOULD TAKE PRECEDENCE. 2. CONTRACTOR'S CLAIMS FOR EXTRA WORK AND PROGRESS PAYMENTS WHICH ARE SUBJECT TO RESOLUTION UNDER DISPUTES CLAUSE OF CONTRACTS WILL NOT BE DECIDED ON MERITS, SINCE WHEN CONTRACT PROVIDES PROCEDURE FOR SETTLEMENT OF DISPUTES, REMEDY OFFERED CONTRACTOR MUST BE EXHAUSTED AND GAO DOES NOT ORDINARILY INTERVENE IN SETTLEMENT UNDER CONTRACT PROVISIONS.

DELTA ELECTRIC CONSTRUCTION COMPANY:

BY LETTER DATED DECEMBER 6, 1974, DELTA ELECTRIC CONSTRUCTION COMPANY (DELTA) REQUESTED THE ASSISTANCE OF OUR OFFICE IN COLLECTION OF AMOUNTS ALLEGEDLY DUE ON CERTAIN CONTRACTS ADMINISTERED BY THE DISTRICT ENGINEER, FORT WORTH DISTRICT, CORPS OF ENGINEERS, AND HIS AUTHORIZED REPRESENTATIVE AT FORT HOOD, KILLEEN, TEXAS. THE CONTRACTS IN QUESTION ARE:

DACA63-73-C-0229, ADDITION TO SANITARY SEWER SYSTEM, BERGSTROM AIR FORCE BASE, AUSTIN, TEXAS.

DACA63-74-C-0077, DUCT FROM NEW CONTROL TOWER TO BASE OPERATIONS SQUADRON, OPERATIONS AND WEATHER STATION, BERGSTROM AIR FORCE BASE, AUSTIN, TEXAS.

DACA63-74-C-0239, AIRFIELD LIGHTING AND ADDITION TO NIGHT LIGHTING, INCREMENT I OF APPROACH CONTROL, FORT HOOD, KILLEEN, TEXAS.

DELTA ALSO REQUESTED THAT OUR OFFICE INVESTIGATE THE ADMINISTRATION OF THESE CONSTRUCTION CONTRACTS.

A REPORT ON THIS MATTER WAS REQUESTED FROM THE SECRETARY OF THE ARMY. ITS CONTENT DISCLOSED CERTAIN FACTS WHICH PRECLUDE OUR OFFICE FROM RESOLVING DELTA'S ALLEGATIONS ON THEIR MERITS.

WITH REGARD TO CONTRACT -0229, THE ARMY INDICATED THAT ALL BUT $100 HAD BEEN PAID AS OF THE DATE OF THE REPORT, THE $100 BEING WITHHELD TO KEEP THE CONTRACT OPEN UNTIL COMPLETION OF ADMINISTRATIVE DETAILS. THE ADMINISTRATIVE DETAILS INVOLVE ARMED SERVICES BOARD OF CONTRACT APPEALS NO. 19930 PENDING UNDER THE DISPUTES CLAUSE OF THE CONTRACT AND CONSIDERATION OF A CLAIM FOR EXTRA WORK.

AS CONCERNS CONTRACT -0077, THE ARMY ALSO INDICATES THAT ALL BUT $100 HAD BEEN PAID AS OF THE DATE OF THE REPORT PENDING COMPLETION OF THE ADMINISTRATIVE DETAILS. THE ADMINISTRATIVE DETAILS IN THIS MATTER PERTAIN TO LITIGATION FILED BY DELTA IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS. DELTA HAS BROUGHT SUIT AGAINST THE GOVERNMENT FOR DAMAGES BECAUSE OF THE GOVERNMENT'S ALLEGED FAILURE TO PROCESS A VALUE ENGINEERING INCENTIVE CLAUSE PROPOSAL IN GOOD FAITH AND BECAUSE OF COSTS ALLEGEDLY INCURRED BY DELTA DUE TO DELAYS BY THE GOVERNMENT IN CONSIDERING THE PROPOSAL.

WHEN A MATTER RAISED FOR OUR RESOLUTION IS ALSO PENDING BEFORE A COURT OR BOARD OF CONTRACT APPEALS, OUR OFFICE WILL DECLINE TO CONSIDER THE MATTER. SEE MATTER OF DECATUR-WAYNE, INC., B-181366, OCTOBER 9, 1974; MATTER OF NARTRON CORPORATION, B-178224, B-179173, JULY 17, 1974. THIS IS BECAUSE WHATEVER ACTION THE COURT OR BOARD MAY DECIDE TO TAKE REGARDING THE MATTER WOULD TAKE PRECEDENCE OVER A DECISION BY OUR OFFICE. THEREFORE, WE DECLINE TO RULE ON THE CLAIMS BEFORE THE COURT AND THE BOARD UNDER CONTRACTS -0229 AND -0077.

THE QUESTION OF PAYMENT UNDER CONTRACT -0239 REVOLVES AROUND WHETHER THE CONTRACT REQUIRES INVOICES ESTABLISHING THE VALUE OF MATERIALS STORED ON THE JOB TO BE FURNISHED TO THE CONTRACTING OFFICER IN ORDER TO OBTAIN A PERCENTAGE PAYMENT FOR THE MATERIALS DELIVERED. DELTA HAS STATED THAT IT HAS REQUESTED A DECISION FROM THE CONTRACTING OFFICER AND THAT IT INTENDS TO FILE A CLAIM WHEN THE DECISION IS RECEIVED.

WHETHER THE CONTRACTOR IS ENTITLED TO PAYMENT FOR THE EXTRA WORK CLAIMED ON CONTRACT -0229 OR INVOICES ARE NECESSARY TO OBTAIN PROGRESS PAYMENTS UNDER CONTRACT -0239 ARE MATTERS OF CONTRACT ADMINISTRATION AND ARE SUBJECT TO RESOLUTION UNDER THE "DISPUTES" CLAUSE OF THE CONTRACTS. WHEN A CONTRACT SETS OUT A PROCEDURE FOR THE SETTLEMENT OF DISPUTES, THE REMEDY AFFORDED THE CONTRACTOR MUST BE EXHAUSTED AND OUR OFFICE DOES NOT ORDINARILY INTERVENE IN THE SETTLEMENT UNDER THE CONTRACT PROVISIONS. MATTER OF COLMAC INDUSTRIES, INCORPORATED, B 182046, AUGUST 30, 1974.

DELTA FURTHER CONTENDS THAT CONTRACTS UNDER THE JURISDICTION OF THE CENTRAL TEXAS RESIDENT ENGINEER OFFICE OF THE FORT WORTH DISTRICT, CORPS OF ENGINEERS, HAVE BEEN MISHANDLED AND IMPROPERLY ADMINISTERED. OUR REVIEW OF THE RECORD DISCLOSES THAT ALTHOUGH DISPUTES BETWEEN DELTA AND THE ARMY HAVE ARISEN, THEY ARE BEING RESOLVED THROUGH THE PROCEDURES IN THE PARTICULAR CONTRACTS. MOREOVER, SINCE THE DISTRICT ENGINEER HAS REPORTED A WILLINGNESS TO MEET WITH A REPRESENTATIVE OF DELTA TO DISCUSS THE COMPLAINTS OF MISTREATMENT BY THE RESIDENT ENGINEER OFFICE WITH A VIEW TOWARD RECONCILIATION, THERE WOULD BE NO PURPOSE IN OUR OFFICE PURSUING THAT ASPECT FURTHER.