B-151583, DEC. 10, 1963

B-151583, DEC. 10, 1963

TO AUTO EQUIPMENT COMPANY, INC.:

IN YOUR LETTER DATED SEPTEMBER 6, 1963, YOU REQUESTED RECONSIDERATION OF OUR DECISION OF JULY 26, 1963, B-151583, WHEREIN WE DENIED YOUR CLAIM FOR DAMAGES IN THE AMOUNT OF $1,540 FOR COSTS INCURRED AND LOSS OF PROFITS SUFFERED DUE TO THE TERMINATION BY THE POST OFFICE DEPARTMENT OF CONTRACT NO. 24, DATED JULY 9, 1962, UNDER WHICH YOU AGREED TO FURNISH ON AN EXCHANGE BASIS REBUILT GENERATORS, VOLTAGE REGULATORS, STARTERS AND ALTERNATORS FOR CERTAIN MOTOR VEHICLES.

AFTER FULL CONSIDERATION OF YOUR CLAIM, WE HELD IN THE DECISION OF JULY 26, 1963, THAT SINCE THE CONTRACT PROVIDED AN ADEQUATE METHOD OF SETTLING DISPUTES OF FACT ARISING THEREUNDER, NEITHER THIS OFFICE NOR THE COURTS WOULD CONSIDER CLAIMS BASED UPON FACTUAL ISSUES WITHIN THE COGNIZANCE OF THE ADMINISTRATIVE OFFICIAL DESIGNATED BY THE PERTINENT CONTRACT PROVISIONS UNLESS THE CLAIMANT HAD EXHAUSTED THE ADMINISTRATIVE REMEDIES AVAILABLE TO HIM, INCLUDING THE RIGHT OF APPEAL TO THE HEAD OF THE CONTRACTING AGENCY. WITHOUT ALLEGING ANY NEW FACTS, YOU SAY THAT YOU WERE MISLED BY THE POST OFFICE DEPARTMENT, THAT YOUR PERFORMANCE UNDER THE CONTRACT WAS HIGHLY SATISFACTORY BY ANY REASONABLE STANDARDS, AND IN TERMINATING YOUR CONTRACT THE POST OFFICE DEPARTMENT FAILED TO COMPLY WITH MANDATORY AND BINDING FEDERAL PROCUREMENT REGULATIONS. YOUR VERSION OF THE CASE IS THAT INSTEAD OF BEING JUSTIFIED IN TERMINATING YOUR CONTRACT FOR DEFAULT FOR FAILURE TO MAKE DELIVERY OF SUPPLIES AS CONTEMPLATED UNDER THE CONTRACT, THE POST OFFICE DEPARTMENT BREACHED THE CONTRACT BY FAILING TO OBSERVE THE REQUIREMENTS OF CONDITIONS (1) THROUGH (4) OF PARAGRAPH (A), SECTION 1.8.602-3 OF THE FEDERAL PROCUREMENT REGULATIONS. THUS YOU CONTEND THAT THE TERMINATION ACTION WAS INVALID AND YOUR FAILURE TO APPEAL TO THE HEAD OF THE DEPARTMENT WITHIN THE TIME LIMIT PROVIDED WAS DUE TO YOUR INABILITY TO RECOGNIZE THE TERMINATION NOTICE AS SUCH. FOR THESE REASONS, YOU URGE US TO GIVE YOUR CLAIM FAVORABLE CONSIDERATION.

ASSUMING YOUR STATEMENT OF THE SITUATION IS CORRECT--- A FACT WHICH WE DO NOT ON THE PRESENT RECORD CONCEDE--- YOUR CLAIM FOR UNLIQUIDATED DAMAGES FOR COSTS INCURRED AND LOSS OF PROFIT SUFFERED IS OF A CLASS WHICH THE ACCOUNTING OFFICERS OF THE GOVERNMENT CONSISTENTLY AND HISTORICALLY HAVE DECLINED TO CONSIDER ON THE MERITS, NOT BECAUSE OF LACK OF JURISDICTION, BUT BECAUSE THE NATURE OF YOUR CLAIM IS SUCH THAT IT IS GENERALLY IMPRACTICABLE TO REACH AN ACCURATE DETERMINATION OF THE MERITS AND THE MEASURE OF DAMAGES WITHOUT THE TAKING OF TESTIMONY, CROSS EXAMINATION OF WITNESSES, AND THE WEIGHING OF CONFLICTING EVIDENCE, FOR WHICH OUR OFFICE LACKS THE FACILITIES. SEE 19 COMP. DEC. 409, 21 COMP. DEC. 134 AND 4 COMP. GEN. 404. IT IS EQUALLY TRUE THAT WHERE THE LEGAL BASIS OF A CLAIM IS SO DUBIOUS AS TO LEAVE SERIOUS DOUBT THAT IT WOULD BE RECOGNIZED BY THE COURTS, THE PROPER COURSE FOR THE ACCOUNTING OFFICERS IS TO REJECT IT. LONGWILL V. UNITED STATES, 17 CT.CL. 288 AND CHARLES V. UNITED STATES, 19 CT.CL. 316.

FOR THIS REASON WE MUST AGAIN DENY YOUR CLAIM LEAVING YOU TO SUCH REMEDY AS MAY BE AVAILABLE IN THE COURTS SHOULD YOU DESIRE TO PURSUE THAT COURSE OF ACTION.