B-174231, JAN 28, 1975
Highlights
CONTRACTOR WHO APPEALS BOARD OF CONTRACT APPEALS DECISION ON BASIS THAT IT WAS HANDED SIGNED CONTRACT WITH FIXED-OVERHEAD-RATE ON LAST DAY OF FISCAL YEAR AND TOLD TO "TAKE IT OR LEAVE IT" HAS NOT PROVIDED ADEQUATE BASIS FOR REVIEW. TO OBTAIN REVIEW CONTRACTOR HAS TO ESTABLISH ACTION OF BOARD IS FRAUDULENT. THE JURISDICTIONAL BASIS UPON WHICH THIS CLAIM RESTS IS FOUND IN THE ACT OF MAY 11. THAT DECISIONS RENDERED PURSUANT TO THE DISPUTES CLAUSE OF A CONTRACT ARE FINAL AND CONCLUSIVE AND NOT SUBJECT TO REVIEW BY THIS OFFICE ABSENT FRAUD. THE CONTRACTOR POINTS TO THE FACT THAT IT WAS HANDED A SIGNED CONTRACT WITH A FIXED-OVERHEAD- RATE CLAUSE ON THE LAST DAY OF THE FISCAL YEAR AND TOLD ESSENTIALLY TO "TAKE IT OR LEAVE IT.".
B-174231, JAN 28, 1975
CONTRACTOR WHO APPEALS BOARD OF CONTRACT APPEALS DECISION ON BASIS THAT IT WAS HANDED SIGNED CONTRACT WITH FIXED-OVERHEAD-RATE ON LAST DAY OF FISCAL YEAR AND TOLD TO "TAKE IT OR LEAVE IT" HAS NOT PROVIDED ADEQUATE BASIS FOR REVIEW, SINCE UNDER S&E CONTRACTORS, INC. V. UNITED STATES, 406 U.S. 1 (1972), TO OBTAIN REVIEW CONTRACTOR HAS TO ESTABLISH ACTION OF BOARD IS FRAUDULENT, WHICH HAS NOT BEEN SHOWN.
GILBERT R. GREEN & COMPANY, INC.:
GILBERT R. GREEN & COMPANY, INC. (GILBERT GREEN), FORMERLY BELL/GREEN ASSOCIATES, INC., HAS FILED A CLAIM FOR RELIEF FROM THE INDIRECT COST LIMITATION IN A COST-PLUS-FIXED-FEE CONTRACT WITH THE OFFICE OF ECONOMIC OPPORTUNITY (OEO) AND HAS ALLEGED FRAUD AS THE BASIS FOR ITS CLAIM. THIS ACTION CONSTITUTES AN APPEAL OF THE DECISION BY THE OEO AD HOC BOARD OF CONTRACT APPEALS RENDERED PURSUANT TO THE DISPUTES CLAUSE OF THE CONTRACT.
THE JURISDICTIONAL BASIS UPON WHICH THIS CLAIM RESTS IS FOUND IN THE ACT OF MAY 11, 1954, 68 STAT. 81, 41 U.S.C. SEC. 321 (1970), COMMONLY KNOWN AS THE WUNDERLICH ACT. THE UNITED STATES SUPREME COURT HAS HELD IN S&E CONTRACTORS, INC. V. UNITED STATES, 406 U.S. 1 (1972), THAT DECISIONS RENDERED PURSUANT TO THE DISPUTES CLAUSE OF A CONTRACT ARE FINAL AND CONCLUSIVE AND NOT SUBJECT TO REVIEW BY THIS OFFICE ABSENT FRAUD. SEE 52 COMP. GEN. 63 (1972) AND 52 COMP. GEN. 196 (1972). THE CONTRACTOR POINTS TO THE FACT THAT IT WAS HANDED A SIGNED CONTRACT WITH A FIXED-OVERHEAD- RATE CLAUSE ON THE LAST DAY OF THE FISCAL YEAR AND TOLD ESSENTIALLY TO "TAKE IT OR LEAVE IT." THAT IS NOT THE KIND OF SITUATION THAT PROVIDES A BASIS FOR REVIEW OF THE BOARD OF CONTRACT APPEALS DECISION. UNDER THE DECISION IN S&E CONTRACTORS, INC., THE CONTRACTOR HAS TO ESTABLISH THAT THE ACTION OF THE BOARD IS FRAUDULENT. SINCE THAT HAS NOT BEEN ESTABLISHED, WE HAVE NO JURISDICTION TO REVIEW THIS MATTER. IT SHOULD BE NOTED, HOWEVER, THAT THE BOARD CONSIDERED THIS ALLEGATION AND THE ACTING ASSOCIATE DIRECTOR FOR ADMINISTRATION FOR OEO, WHO RETAINED JURISDICTION OVER THE CLAIM, CONCLUDED THAT IT WOULD BE "EQUITABLE" TO RECOGNIZE ONLY 50 PERCENT OF THE CONTRACTOR'S EXCESS INDIRECT COSTS AS IMPROPERLY PAID.
GILBERT GREEN HAS BEEN PROVISIONALLY PAID $149,825.17 WHILE IT SHOULD HAVE BEEN REIMBURSED FOR ONLY $141,640, TAKING INTO ACCOUNT THE 50 PERCENT REDUCTION OF EXCESS INDIRECT COSTS. THE BALANCE DUE, $8,185.17, HAS BEEN REFERRED HERE FOR COLLECTION. INSOFAR AS OUR OFFICE IS CONCERNED, THE ADMINISTRATIVE SETTLEMENT OF THE CLAIM FOR RELIEF FROM THE INDIRECT COSTS LIMITATION IS FINAL AND APPROPRIATE COLLECTION OR SETOFF ACTION WILL BE TAKEN BY OUR OFFICE.