B-160976, DEC. 17, 1968

B-160976, DEC. 17, 1968

TO ATLANTIC TERMINAL COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 20, 1968, AND ENCLOSURES, CONCERNING YOUR APPEAL WHICH IS NOW PENDING BEFORE THE ARMED SERVICES BOARD OF CONTRACT APPEALS, DOCKET NO. 13269, CONCERNING THE TERMINATION FOR DEFAULT OF YOUR CONTRACT FOR RAILROAD SERVICES AT THE MILITARY OCEAN TERMINAL, SUNNY POINT, SOUTHPORT, NORTH CAROLINA.

YOU STATE THAT THE PURPOSE OF YOUR COMMUNICATIONS CONCERNING THIS MATTER, IS TO ALERT THE COMPTROLLER GENERAL TO REVIEW THE MATTER AT ISSUE IN THE PENDING APPEAL FOR MATERIAL ERROR IN EITHER FACT OR LAW, AND YOU ASK THIS OFFICE TO INITIATE HANDLING IMMEDIATELY TO ESTABLISH A TIME TABLE FOR BRINGING THIS MATTER TO A CONCLUSION. YOU ALSO SAY THAT YOUR ULTIMATE GOAL IS TO BRING ABOUT A TIMELY AND JUST SETTLEMENT RELATED TO DOCKET NO. 13269.

IT IS WELL ESTABLISHED THAT WHERE A CONTRACT PROVIDES A PROCEDURE FOR APPEALING DECISIONS OF THE CONTRACTING OFFICER ON DISPUTES CONCERNING QUESTIONS OF FACT ARISING UNDER THE CONTRACT, THE APPEAL PROCEDURES OF THE CONTRACT MUST BE EXHAUSTED BEFORE ANY CONSIDERATION MAY BE GIVEN BY OUR OFFICE TO ANY CLAIM BY THE CONTRACTOR FOR RELIEF OF ANY KIND INVOLVING THE DISPUTED MATTERS. 37 COMP. GEN. 568, 38 ID. 749. IN CONSIDERING ANY ACTION RELATIVE TO THE SUBJECT MATTER OF SUCH ADMINISTRATIVE APPEAL, THIS OFFICE IS BOUND TO ACCEPT AS CONCLUSIVE THE FINAL ADMINISTRATIVE DETERMINATION OF THE PERTINENT FACTS UNLESS SUCH DECISION IS FRAUDULENT OR CAPRICIOUS OR ARBITRARY OR SO GROSSLY ERRONEOUS AS TO NECESSARILY IMPLY BAD FAITH, OR IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. FURTHER, OUR REVIEW OF A DEPARTMENTAL DECISION ON A QUESTION OF FACT ARISING UNDER A DISPUTES CLAUSE OF THE CONTRACT MUST BE CONFINED TO THE RECORD BEFORE THE DEPARTMENT AND NO NEW EVIDENCE MAY BE CONSIDERED ON SUCH QUESTIONS. COMP. GEN. 441.

INASMUCH AS THE MATTER IS STILL PENDING BEFORE THE ARMED SERVICES BOARD OF CONTRACT APPEALS AND NO DECISION, EITHER FAVORABLE OR UNFAVORABLE TO YOU, HAS BEEN REACHED BY THE BOARD IN YOUR CASE, IT IS APPARENT THAT ANY ACTION OR PREPARATION BY THIS OFFICE TOWARDS A REVIEW OF THE BOARD'S EVENTUAL DECISION WOULD BE PREMATURE.

IF, AFTER THE PROCEEDINGS BEFORE THE BOARD HAVE BEEN COMPLETED, YOU BELIEVE THAT THE BOARD'S FACTUAL DETERMINATIONS ARE SUBJECT TO ANY OF THE OBJECTIONS STATED ABOVE, OR THAT THE DECISION IS ERRONEOUS AS A MATTER OF LAW, YOU MAY SUBMIT YOUR CLAIMS HERE, IDENTIFYING THE EXACT LEGAL OR FACTUAL ERRORS COMPLAINED OF, AND WE WILL GIVE APPROPRIATE CONSIDERATION TO SUCH RELIEF AS YOU MAY CLAIM.