B-131347, JUNE 12, 1961, 40 COMP. GEN. 674

B-131347, JUNE 12, 1961, 40 COMP. GEN. 674

CONTRACTS - FINAL SETTLEMENT - DISPUTES A FINAL SETTLEMENT AGREEMENT UNDER A FIXED PRICE CONTRACT CONTAINING A DISPUTES CLAUSES PROVIDING FOR ADMINISTRATIVE CONSIDERATION AND ADJUSTMENT OF CLAIMS, WHICH SETTLEMENT FAILS TO EXPRESSLY RESERVE EXTRA WORK CLAIM WHICH WAS PENDING BEFORE THE CONTRACTING OFFICER AT TIME OF SIGNING THE FINAL SETTLEMENT AGREEMENT, IS NOT REGARDED AS AN ACCORD AND SATISFACTION UNDER THE ADMINISTRATIVE PRACTICE WHICH CONSIDERS SETTLEMENT TO BE FINAL ONLY WITH RESPECT TO THOSE MATTERS FINALIZED THROUGH ADOPTION OF FINAL SETTLEMENT MEMORANDUM AND THE CONTRACTOR IS NOT FORECLOSED FROM APPEALING CLAIM TO CONTRACT APPEALS BOARD.

TO THE ADMINISTRATOR, VETERANS ADMINISTRATION, JUNE 12, 1961:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 31, 1961, WHICH SUPPLEMENTS A LETTER FROM THE FORMER ADMINISTRATOR DATED DECEMBER 14, 1960, REQUESTED A DECISION CONCERNING THE DISPOSITION OF AN EXTRA WORK CLAIM BY THE J. D. HEDIN CONSTRUCTION CO; INC; ALLEGED TO BE DUE UNDER FIXED-PRICE CONSTRUCTION CONTRACT NO. V1006C-68 FOR THE CONSTRUCTION AND ALTERATION OF BUILDINGS AT THE VETERANS ADMINISTRATION HOSPITAL, HOUSTON, TEXAS. DOUBT HAS ARISEN AS TO THE AUTHORITY OF THE CONTRACTING OFFICER, AND UPON APPEAL AS TO THE AUTHORITY OF THE CONTRACT APPEALS BOARD OF THE VETERANS ADMINISTRATION, TO CONSIDER THE CLAIM IN VIEW OF THE FAILURE OF THE PARTIES TO EXPRESSLY RESERVE IT UNDER THEIR FINAL SETTLEMENT AGREEMENT AS TO THE AMOUNT DUE FOR PERFORMANCE OF THE CONTRACT WORK AND ACCEPTANCE BY THE CONTRACTOR OF FINAL PAYMENT THEREUNDER WITHOUT PROTEST.

THE RECORD SUBMITTED DISCLOSES THAT THE CONTRACT WAS ENTERED INTO MARCH 18, 1955, ON THE STANDARD GOVERNMENT "1CONSTRUCTION CONTRACT" FORM--- STANDARD FORM 23 (REVISED MARCH 1953/--- AND THAT THE "1GENERAL PROVISIONS" SET OUT IN STANDARD FORM 23A (1MARCH 1953) WERE INCORPORATED IN THE CONTRACT BY REFERENCE, TOGETHER WITH CERTAIN DRAWINGS AND SPECIFICATIONS AND PROVISIONS FOR THE ASSESSMENT OF LIQUIDATED DAMAGES IN CASE OF DELAY IN COMPLETION. THE WORK WAS COMMENCED IN APRIL 1955 AND WAS SUBSTANTIALLY COMPLETED JUNE 3, 1957, AFTER A DELAY OF 210 CALENDAR DAYS.

THE "1GENERAL PROVISIONS" OF THE CONTRACT INCLUDED EXPRESS PROVISIONS RELATING TO "1CHANGES" AND TO "1CHANGED CONDITIONS" AS WELL AS PROVISIONS FOR THE DETERMINATION OF "1DISPUTES" AS FOLLOWS:

3. CHANGES

THE CONTRACTING OFFICER MAY AT ANY TIME, BY A WRITTEN ORDER, AND WITHOUT NOTICE TO THE SURETIES, MAKE CHANGES IN THE DRAWINGS AND/OR SPECIFICATIONS OF THIS CONTRACT AND WITHIN THE GENERAL SCOPE THEREOF. IF SUCH CHANGES CAUSE AN INCREASE OR DECREASE IN THE AMOUNT DUE UNDER THIS CONTRACT, OR IN THE TIME REQUIRED FOR ITS PERFORMANCE, AN EQUITABLE ADJUSTMENT SHALL BE MADE AND THE CONTRACT SHALL BE MODIFIED IN WRITING ACCORDINGLY. ANY CLAIM OF THE CONTRACTOR FOR ADJUSTMENT UNDER THIS CLAUSE MUST BE ASSERTED IN WRITING WITHIN 30 DAYS FROM THE DATE OF RECEIPT BY THE CONTRACTING OF THE NOTIFICATION OF CHANGE: PROVIDED, HOWEVER, THAT THE CONTRACTING OFFICER, IF HE DETERMINES THAT THE FACTS JUSTIFY SUCH ACTION, MAY RECEIVE AND CONSIDER, AND ADJUST ANY SUCH CLAIM ASSERTED AT ANY TIME PRIOR TO THE DATE OF FINAL SETTLEMENT OF THE CONTRACT. IF THE PARTIES FAIL TO AGREE UPON THE ADJUSTMENT TO BE MADE THE DISPUTE SHALL BE DETERMINED AS PROVIDED IN CLAUSE 6 THEREOF. BUT NOTHING PROVIDED IN THIS CLAUSE SHALL EXCUSE THE CONTRACTOR FROM PROCEEDING WITH THE PROSECUTION OF THE WORK AS CHANGED. EXCEPT AS OTHERWISE HEREIN PROVIDED, NO CHARGE FOR ANY EXTRA WORK OR MATERIAL WILL BE ALLOWED.

4. CHANGED CONDITIONS

THE CONTRACTOR SHALL PROMPTLY, AND BEFORE SUCH CONDITIONS ARE DISTURBED, NOTIFY THE CONTRACTING OFFICER IN WRITING OF: (1) SUBSURFACE OR LATENT PHYSICAL CONDITIONS AT THE SITE DIFFERING MATERIALLY FROM THOSE INDICATED IN THIS CONTRACT, OR (2) UNKNOWN PHYSICAL CONDITIONS AT THE SITE, OF AN UNUSUAL NATURE, DIFFERING MATERIALLY FROM THOSE ORDINARILY ENCOUNTERED AND GENERALLY RECOGNIZED AS INHERING IN WORK OF THE CHARACTER PROVIDED FOR IN THIS CONTRACT. THE CONTRACTING OFFICER SHALL PROMPTLY INVESTIGATE THE CONDITIONS, AND IF HE FINDS THAT SUCH CONDITIONS DO SO MATERIALLY DIFFER AND CAUSE AN INCREASE OR DECREASE IN THE COST OF, OR THE TIME REQUIRED FOR, PERFORMANCE OF THIS CONTRACT, AN EQUITABLE ADJUSTMENT SHALL BE MADE AND THE CONTRACT MODIFIED IN WRITING ACCORDINGLY. ANY CLAIM OF THE CONTRACTOR FOR ADJUSTMENT HEREUNDER SHALL NOT BE ALLOWED UNLESS HE HAS GIVEN NOTICE AS ABOVE REQUIRED; PROVIDED THAT THE CONTRACTING OFFICER MAY, IF HE DETERMINES THE FACTS SO JUSTIFY; CONSIDER AND ADJUST ANY SUCH CLAIMS ASSERTED BEFORE THE DATE OF FINAL SETTLEMENT OF THE CONTRACT. IF THE PARTIES FAIL TO AGREE UPON THE ADJUSTMENT TO BE MADE, THE DISPUTE SHALL BE TERMINATED AS PROVIDED IN CLAUSE 6 HEREOF.

6. DISPUTES

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. WITHIN 30 DAYS FROM THE DATE OF RECEIPT OF SUCH COPY, THE CONTRACTOR MAY APPEAL BY MAILING OR OTHERWISE FURNISHING TO THE CONTRACTING OFFICER A WRITTEN APPEAL ADDRESSED TO THE HEAD OF THE DEPARTMENT, AND THE DECISION OF THE HEAD OF THE DEPARTMENT OR HIS DULY AUTHORIZED REPRESENTATIVES FOR THE HEARINGS OF SUCH APPEALS SHALL, UNLESS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO HAVE BEEN FRADULENT, ARBITRARY, CAPRICIOUS, OR SO GROSSLY ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH, BE FINAL AND CONCLUSIVE: PROVIDED, THAT IF NO SUCH APPEAL TO THE HEAD OF THE DEPARTMENT IS TAKEN, THE DECISION OF THE CONTRACTING OFFICER SHALL BE FINAL AND CONCLUSIVE. IN CONNECTION WITH ANY APPEAL PROCEEDING UNDER THIS CLAUSE, THE CONTRACTOR SHALL BE AFFORDED AN OPPORTUNITY TO BE HEAD AND TO OFFER EVIDENCE IN SUPPORT OF ITS APPEAL. PENDING FINAL DECISION OF A DISPUTE HEREUNDER, THE CONTRACTOR SHALL PROCEED DILIGENTLY WITH THE PERFORMANCE OF THE CONTRACT AND IN ACCORDANCE WITH THE CONTRACTING OFFICER'S DECISION.

THE "1GENERAL PROVISIONS" OF THE CONTRACT ALSO INCLUDED CLAUSE 7 ENTITLED "1PAYMENTS TO CONTRACTORS" WHICH PROVIDED IN GENERAL FOR PARTIAL PAYMENTS AS THE WORK PROGRESSED BUT DID NOT INCLUDE ANY REFERENCE TO THE TERM "FINAL PAYMENT" NOR PROVIDE A BASIS FOR DETERMINING THE "FINAL PAYMENT" AS SUCH OTHER THAN THE FOLLOWING PROVISIONS OF PARAGRAPH (D):

(D) UPON COMPLETION AND ACCEPTANCE OF ALL WORK REQUIRED HEREUNDER, THE AMOUNT DUE THE CONTRACTOR UNDER THIS CONTRACT WILL BE PAID UPON THE PRESENTATION OF A PROPERLY EXECUTED AND DULY CERTIFIED VOUCHER THEREFOR, AFTER THE CONTRACTOR SHALL HAVE FURNISHED THE GOVERNMENT WITH A RELEASE, IF REQUIRED, OF ALL CLAIMS AGAINST THE GOVERNMENT ARISING UNDER AND BY VIRTUE OF THIS CONTRACT, OTHER THAN SUCH CLAIMS, IF ANY, AS MAY BE SPECIFICALLY EXCEPTED BY THE CONTRACTOR FROM THE OPERATION OF THE RELEASE IS STATED AMOUNTS TO BE SET FORTH THEREIN. IF THE CONTRACTOR'S CLAIM TO AMOUNTS PAYABLE UNDER THE CONTRACT HAS BEEN ASSIGNED UNDER THE ASSIGNMENT OF CLAIMS ACT OF 1940, AS AMENDED (41 U.S.C. 15), A RELEASE MAY ALSO BE REQUIRED OF THE ASSIGNEE AT THE OPTION OF THE CONTRACTING OFFICER.

BY LETTER DATED AUGUST 3, 1956, THE CONTRACTOR SUBMITTED A PROPOSAL REQUESTING A CONTRACT PRICE INCREASE IN THE AMOUNT OF $668.80 FOR REPLACING CERTAIN DAMAGED SIGNAL CONDUITS. AS REQUIRED BY THE CONTRACT SPECIFICATIONS THE CLAIM WAS ADDRESSED THROUGH THE RESIDENT ENGINEER TO THE DIRECTOR OF CONSTRUCTION, WASHINGTON, D.C; THE DESIGNATED CONTRACTING OFFICER. UNDER DATE OF AUGUST 17, 1956, THE RESIDENT ENGINEER TRANSMITTED THE CLAIM TO THE CONTRACTING OFFICER WITH AN UNFAVORABLE RECOMMENDATION CONCURRED IN BY THE ARCHITECT ENGINEER. PURSUANT TO ADVICE RECEIVED BY LETTER DATED AUGUST 24, 1956, FROM THE CHIEF OF THE PROJECT MANAGEMENT DIVISION OF THE CONSTRUCTION SERVICE, WASHINGTON, D.C; THE CONTRACTOR WAS INFORMED BY THE RESIDENT ENGINEER IN A LETTER DATED AUGUST 27, 1956, THAT THE REQUIRED REPLACEMENT WAS THE RESPONSIBILITY OF THE CONTRACTOR AND HE WAS INSTRUCTED TO PROCEED WITH THE WORK AT NO COST TO THE GOVERNMENT.

APPROXIMATELY ONE YEAR LATER THE CONTRACTOR TRANSMITTED A COPY OF THE PROPOSAL OF AUGUST 3, 1956, WITH HIS LETTER DATED AUGUST 1, 1957, TO THE RESIDENT ENGINEER REQUESTING RECONSIDERATION AND THE ISSUANCE OF A CHANGE ORDER. THIS REQUEST WAS FORWARDED BY THE RESIDENT ENGINEER BY LETTER DATED AUGUST 5, 1957, TO THE CONTRACTING OFFICER WHO RECEIVED IT THE FOLLOWING DAY, AUGUST 6, 1957.

BY LETTER DATED AUGUST 7, 1957, THE CONTRACTING OFFICER TRANSMITTED A VOUCHER TO THE CONTRACTOR IN THE AMOUNT OF $296,971.29, DESIGNATED AS THE "TWENTY-SEVENTH AND FINAL PAYMENT" UNDER THE CONTRACT, TOGETHER WITH A COPY OF A "FINAL SETTLEMENT MEMORANDUM" DATED AUGUST 7, 1957, FROM THE CHIEF, CONTRACT ADMINISTRATION DIVISION, WASHINGTON, D.C; SETTING OUT "THE BASIS OF SETTLEMENT WITH THE CONTRACTOR.' IN THIS LETTER THE CONTRACTOR WAS REQUESTED TO CERTIFY AND RETURN THE VOUCHER IF THE INFORMATION SHOWN THEREON WAS FOUND TO BE CORRECT.

THE FINAL SETTLEMENT MEMORANDUM FORMING A PART OF THE FINAL PAYMENT VOUCHER CONTAINED A DETAILED RESUME OF THE CONTRACT OPERATIONS INCLUDING AN ITEMIZATION OF CHANGES IN PRICE DUE TO CHANGE AND PROCEED ORDERS, AN ITEMIZATION OF THE TIME EXTENSIONS GRANTED FOR COMPLETION OF THE CONTRACT WORK, AND A "1STATEMENT OF ACCOUNT" SHOWING THE NET AMOUNT DUE UNDER THE CONTRACT INCLUDING RETAINED PERCENTAGES, BUT EXPRESSLY EXCLUDING AMOUNTS WITHHELD UNDER ITEMS "Q" AND "T" PENDING FINAL DETERMINATION OF ADJUSTMENTS CLAIMED UNDER PROCEED ORDERS NOS. 8 AND 9, AND AMOUNTS WITHHELD AS LIQUIDATED DAMAGES UNDER ITEM "U" PENDING A FINAL DETERMINATION OF THE JUSTIFICATION FOR THE DELAY INCURRED. NO SPECIFIC REFERENCE WAS MADE, HOWEVER, TO THE CLAIM IN THE AMOUNT OF $668.80 THERETOFORE SUBMITTED BY THE CONTRACTOR WITH HIS LETTER OF AUGUST 1, 1957.

THE CONTRACTOR SIGNED AND CERTIFIED THE FINAL PAYMENT VOUCHER AS CORRECT AND JUST WITHOUT RAISING ANY OBJECTION TO THE "FINAL SETTLEMENT MEMORANDUM" OR STATING ANY EXCEPTION TO THE NET AMOUNT FOUND DUE UNDER THE "1STATEMENT OF ACCOUNT" CONTAINED THEREIN, AND RETURNED IT ON AUGUST 7, 1957, THE SAME DAY IT WAS RECEIVED. PAYMENT THEREOF IN DUE COURSE WAS ACCEPTED BY THE CONTRACTOR WITHOUT PROTEST.

NOTWITHSTANDING THIS FINAL SETTLEMENT AGREEMENT, HOWEVER, BY DECISION DATED AUGUST 15, 1957, THE CONTRACTING OFFICER CONSIDERED THE CONTRACTOR'S CLAIM OF AUGUST 1, 1957, AND DENIED THE REQUESTED INCREASE OF $668.80 IN THE CONTRACT PRICE. AN APPEAL FROM THIS DECISION WAS NOTED BY THE CONTRACTOR ON AUGUST 19, 1957, WHICH IS NOW PENDING BEFORE THE CONTRACT APPEALS BOARD.

AS A GENERAL RULE WHERE A BONA FIDE DOUBT OR CONTROVERSY EXISTS AS TO WHETHER A CLAIM IS DUE, AN ACCORD AND SATISFACTION MAY BE ESTABLISHED BY PAYMENT OF A SUM LESS THAN THAT CLAIMED AND THE ACCEPTANCE OF PART OF AN UNLIQUIDATED CLAIM IN PAYMENT OF THE WHOLE WILL BE AN ACCORD AND SATISFACTION WHICH DISCHARGES THE GOVERNMENT THE SAME AS ANY ORDINARY DEBTOR. IN APPLYING THIS RULE, HOWEVER, IT HAS BEEN RECOGNIZED THAT IF THE CLAIMANT ACCEPTS A PAYMENT WITHOUT KNOWLEDGE THAT A PORTION OF THE CLAIM HAS BEEN DISALLOWED OR UNDER CIRCUMSTANCES THAT A SETTLEMENT OF THE MATTERS IN DISPUTE CANNOT BE INFERRED, FURTHER CONSIDERATION THEREOF IS NOT FORECLOSED. SEE 1 AM. JUR; ACCORD AND SATISFACTION, SECTIONS 34, 35 AND 60 AND THE AUTHORITIES CITED; CF. 18 COMP. GEN. 184; 25 ID. 332; 38 ID. 749.

IT IS STATED IN YOUR LETTER OF MARCH 31, 1961, THAT IN ACCORDANCE WITH THE THEN PREVAILING ADMINISTRATIVE PRACTICE A RELEASE AS PROVIDED UNDER CLAUSE 7 OF THE "1GENERAL PROVISIONS" WAS NOT REQUIRED IN THE INSTANT CASE AND THAT VETERANS ADMINISTRATION REGULATIONS DEALING WITH FINAL SETTLEMENTS UNDER CONSTRUCTION CONTRACTS HAD NOT BEEN PUBLISHED BUT THE REQUIREMENT OF RELEASES IS NOW CONTEMPLATED FOR FUTURE CASES AND THE PROMULGATION OF APPROPRIATE REGULATIONS IS IN PROGRESS.

WE UNDERSTAND THAT IN ADMINISTERING THE INSTANT AND SIMILAR CONTRACTS THE DATE OF FINAL SETTLEMENT OF THE CONTRACT, AS THAT TERM IS USED IN THE CLAUSES OF THE "1GENERAL PROVISIONS" QUOTED ABOVE, HAS BEEN CONSTRUED ONLY AS A CUTOFF DATE FOR THE FILING OF CLAIMS BY THE CONTRACTOR; HOWEVER, YOU STATE IN YOUR LETTER OF MARCH 31, 1961,"THAT SUCH SETTLEMENT GOES BEYOND THE UNILATERAL CERTIFICATION CONTEMPLATED BY THE MILLER ACT AND, AS BETWEEN THE PARTIES TO THE CONTRACT, BECOMES MUTUAL AND IN THE NATURE OF AN ACCOUNT STATED AS TO THE SPECIFIC MATTERS COVERED THEREBY, UPON SUBMISSION FOR PAYMENT OF THE VOUCHER BASED UPON SUCH FINAL SETTLEMENT.'

THE TECHNICAL CONNOTATION OF THE TERM "FINAL SETTLEMENT" AS EMPLOYED IN THE MILLER ACT, 40 U.S.C. 270A, WAS CONSIDERED IN OUR DECISION OF AUGUST 21, 1957, 37 COMP. GEN. 115. AS DEMONSTRATED BY THE CASES REFERRED TO IN THAT DECISION, THE TERM "FINAL SETTLEMENT" USED IN THE MILLER ACT IS NOT IDENTICAL WITH AN ACCORD AND SATISFACTION OR WITH FINAL PAYMENT BUT IS IN THE NATURE OF A UNILATERAL DETERMINATION BY THE GOVERNMENT OF THE CONSOLIDATED ACCOUNT WHICH MAY OCCUR WITH OR WITHOUT KNOWLEDGE OR AGREEMENT ON THE PART OF THE CONTRACTOR.

IT IS BROUGHT OUT IN YOUR LETTER OF MARCH 31, 1961, THAT UNDER YOUR ADMINISTRATIVE PROCEDURES A FINAL PAYMENT MADE IN ACCORDANCE WITH THE FINAL SETTLEMENT AGREEMENT HAS BEEN CONSIDERED AS BEING FULL AND FINAL PAYMENT ONLY OF THOSE MATTERS FINALIZED THROUGH ADOPTION OF THE FINAL SETTLEMENT MEMORANDUM; IN OTHER WORDS, AS HAVING NO EFFECT UPON CLAIMS NOT MENTIONED IN THE FINAL SETTLEMENT AGREEMENT BUT THERETOFORE ASSERTED BY THE CONTRACTOR WHICH MAY BE PENDING BEFORE THE CONTRACTING OFFICER AT THE TIME OF MAKING THE FINAL SETTLEMENT AGREEMENT, OR WHICH MAY BE DENIED BY THE CONTRACTING OFFICER PRIOR TO OR AFTER SUCH FINAL SETTLEMENT AND ARE THEREUPON PURSUED BY THE CONTRACTOR BY APPEAL TO THE CONTRACT APPEALS BOARD, ON THE THEORY SUCH CLAIMS ARE RESERVED BY VIRTUE OF THE CONTRACT PROCEDURE FOR THE SETTLEMENT OF DISPUTES. CONFORMANCE WITH THE PROCEDURAL REQUIREMENTS CONTAINED IN GOVERNMENT CONTRACTS FOR THE SETTLEMENT OF DISPUTES IS MANDATORY UPON BOTH THE CONTRACTOR AND THE GOVERNMENT. CF. UNITED STATES V. BLAIR, 321 U.S. 730; UNITED STATES V. HOLPUCH, 328 U.S. 234; CONTINENTAL ILLINOIS NATIONAL BANK V. UNITED STATES, 121 CT.1CL. 203; WILE, HENRY E. V. UNITED STATES, CT.1CL. NO. 541-57, DECIDED JANUARY 14, 1959, AND OLIVER-FINNIE COMPANY V. UNITED STATES, CT.1CL. NO. 473-53, DECIDED BY THE UNITED STATES COURT OF CLAIMS JANUARY 14, 1959, AND JUNE 8, 1960, RESPECTIVELY. THE EXISTENCE OF SUCH PROCEDURAL REQUIREMENTS SEEMS OBVIOUSLY CONTINGENT UPON THE CONTINUED EXISTENCE OF THE CONTRACT. THUS, THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT IN UNITED STATES V. DUGGAN (1954), 210 F.2D 926, CONSIDERED THE EFFECT OF THE STANDARD GOVERNMENT "1DISPUTES" CLAUSE AND EXPRESSED THE VIEW THAT THE PRESCRIBED PROCEDURE PROVIDED FOR NOTHING MORE THAN AN ADMINISTRATIVE DETERMINATION OF QUESTIONS OF FACT WHICH ARISE DURING THE COURSE OF PERFORMANCE OF THE CONTRACT AND PRIOR TO ITS TERMINATION, I.E; WHILE THE CONTRACT IS ALIVE.

WITH RESPECT TO THIS PARTICULAR CASE, IN VIEW OF THE STATED ADMINISTRATIVE PRACTICE AND BASED UPON A CAREFUL CONSIDERATION OF ALL THE FACTS AND CIRCUMSTANCES PRESENTED, WE ARE OF THE VIEW THAT THE FINAL SETTLEMENT AGREEMENT BETWEEN THE PARTIES DID NOT INCLUDE THE CLAIM IN QUESTION AND THEREFORE SUCH SETTLEMENT AND THE FINAL PAYMENT MADE THEREUNDER MAY NOT PROPERLY BE REGARDED AS AN ACCORD AND SATISFACTION. HENCE, THE CONTRACTOR'S RIGHT TO PURSUE THE CLAIM ASSERTED PRIOR THERETO IN ACCORDANCE WITH THE CONTRACT DISPUTES PROCEDURE WAS NOT FORECLOSED, AND THE CLAIM PROPERLY MAY BE CONSIDERED BY THE CONTRACT APPEALS BOARD.