B-147850, FEB. 12, 1962

B-147850, FEB. 12, 1962

TO METIMPEX CORPORATION:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 18, 1962, WITH ENCLOSURES, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR THE SUM OF $455.04, AS REMISSION OF LIQUIDATED DAMAGES ASSESSED FOR DELAY IN DELIVERY UNDER CONTRACT NO. T35CG-686, DATED JUNE 14, 1960, WITH THE UNITED STATES COAST GUARD, TREASURY DEPARTMENT. AMONG THE ENCLOSURES TO YOUR LETTER WERE COPIES OF YOUR LETTERS DATED NOVEMBER 8 AND DECEMBER 28, 1961, TO OUR CLAIMS DIVISION, AND OF A LETTER DATED NOVEMBER 29, 1961, FROM THE CONTRACTING OFFICER TO OUR CLAIMS DIVISION, ADVISING THAT THE LIQUIDATED DAMAGES WERE PROPERLY ASSESSED UNDER THE TERMS OF THE CONTRACT. YOU EXPRESSED THE VIEW THAT YOUR COMPANY ACTED IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN THE CONTRACT AND ON THAT BASIS YOU REQUESTED THAT YOUR CLAIM BE GIVEN FURTHER CONSIDERATION.

IN OUR LETTER OF JANUARY 16, 1962, WE POINTED OUT THAT YOUR COMPANY WAS FURNISHED WITH A COPY OF THE CONTRACTING OFFICER'S FINDINGS OF FACT AND ADVISED OF YOUR RIGHT OF APPEAL THEREFROM TO THE HEAD OF THE DEPARTMENT. ALSO, WE STATED THAT HEADQUARTERS, UNITED STATES COAST GUARD, HAD INFORMALLY ADVISED THAT YOUR COMPANY HAD MADE NO APPEAL FROM THE CONTRACTING OFFICER'S FINDINGS OF FACT PURSUANT TO THE DISPUTES CLAUSE OF THE CONTRACT.

OUR RECORD SHOWS THAT UNDER DATE OF NOVEMBER 3, 1961, THE CONTRACTING OFFICER MADE FINDINGS OF FACT CONCERNING THE DELAY IN DELIVERY IN THIS CASE, AND THAT A COPY THEREOF WAS TRANSMITTED TO YOUR COMPANY. AMONG OTHER THINGS, THE CONTRACTING OFFICER'S FINDINGS CONTAINED THE FOLLOWING PARAGRAPH:

"/G) THAT LIQUIDATED DAMAGES IN THE AMOUNT OF $455.04, AS LISTED ON EXHIBIT NO. 5, ARE HEREBY DETERMINED TO BE THE FAULT OF THE CONTRACTOR. THAT THE CONTRACTOR, IF HE DOES NOT AGREE WITH THE CONTRACTING OFFICER, MAY EXERCISE HIS RIGHT TO APPEAL TO THE HEAD OF THE DEPARTMENT (COMMANDANT, U.S. COAST GUARD) IN ACCORDANCE WITH THE DISPUTES CLAUSE, PARAGRAPH 12 OF STANDARD FORM 32, OCT. 1957 EDITION.'

IN ORDER THAT YOUR COMPANY MAY BE FULLY ADVISED AS TO THE PROCEDURE REQUIRED TO BE FOLLOWED IN THIS MATTER IT SEEMS NECESSARY TO BRING TO YOUR ATTENTION THE PERTINENT CONTRACT PROVISIONS. THERE WAS INCORPORATED INTO THE CONTRACT IN THIS CASE, BY REFERENCE, STANDARD FORM 32, OCTOBER 1957 EDITION, AND PARAGRAPH 12 THEREOF--- "DISPUTES"- - PROVIDED, IN PART, AS FOLLOWS:

"/A) EXCEPT AS OTHERWISE PROVIDED IN THIS CONTRACT, ANY DISPUTE CONCERNING A QUESTION OF FACT ARISING UNDER THIS CONTRACT WHICH IS NOT DISPOSED OF BY AGREEMENT SHALL BE DECIDED BY THE CONTRACTING OFFICER, WHO SHALL REDUCE HIS DECISION TO WRITING AND MAIL OR OTHERWISE FURNISH A COPY THEREOF TO THE CONTRACTOR. THE DECISION OF THE CONTRACTING OFFICER SHALL BE FINAL AND CONCLUSIVE UNLESS, WITHIN 30 DAYS FROM THE DATE OF RECEIPT OF SUCH COPY, THE CONTRACTOR MAILS OR OTHERWISE FURNISHES THE CONTRACTING OFFICER A WRITTEN APPEAL ADDRESSED TO THE SECRETARY. THE DECISION OF THE SECRETARY OR HIS DULY AUTHORIZED REPRESENTATIVE FOR THE DETERMINATION OF SUCH APPEALS SHALL BE FINAL AND CONCLUSIVE UNLESS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO HAVE BEEN FRAUDULENT, OR CAPRICIOUS, OR ARBITRARY, OR SO GROSSLY ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH, OR NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. * * *.'

WE WISH PARTICULARLY TO INVITE ATTENTION TO THE LANGUAGE IN THE QUOTED PARAGRAPH TO THE EFFECT THAT THE DECISION OF THE CONTRACTING OFFICER SHALL BE FINAL AND CONCLUSIVE, UNLESS, WITHIN 30 DAYS FROM THE DATE OF RECEIPT OF A COPY OF SUCH FINDINGS, THE CONTRACTOR FURNISHES TO THE CONTRACTING OFFICER A WRITTEN APPEAL ADDRESSED TO THE SECRETARY OF THE TREASURY.

WE STATED IN OUR LETTER OF JANUARY 16, 1962, THAT IT SEEMS CLEAR FROM THE RECORD IN THIS CASE THAT YOUR COMPANY HAS NOT EXERCISED YOUR RIGHT TO FURTHER CONSIDERATION OF YOUR CLAIM THROUGH AN APPEAL TO THE SECRETARY OF THE TREASURY. OBVIOUSLY, YOUR LETTERS OF NOVEMBER 8 AND DECEMBER 28, 1961, TO OUR CLAIMS DIVISION, DO NOT CONSTITUTE SUCH AN APPEAL. WE WOULD POINT OUT ALSO THAT THE STATED CONTRACT PERIOD OF 30 DAYS IN WHICH SUCH AN APPEAL COULD HAVE BEEN FILED APPARENTLY HAS EXPIRED.

FOR THE REASONS HEREINBEFORE SET FORTH, WE ARE OF THE VIEW THAT YOUR COMPANY IS BOUND BY THE CONTRACTING OFFICER'S FINDINGS OF FACT, THE SAME BEING FINAL AND CONCLUSIVE IN THE ABSENCE OF AN APPEAL.