B-124460, AUG. 15, 1955

B-124460, AUG. 15, 1955

TO MCCARTER LUMBER AND PILING COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF MAY 12, 1955, RELATIVE TO YOUR INDEBTEDNESS TO THE UNITED STATES BY REASON OF YOUR DEFAULT OF CONTRACT NO. DA-35-026-ENG-863, DATED OCTOBER 25, 1949.

UNDER THE TERMS OF THE CONTRACT YOU AGREED TO FURNISH 25,000 FBM OF AIR- DRIED AND/OR KILN-DRIED REDWOOD LUMBER, F.O.B. CARS, MILL, CLOVERDALE, CALIFORNIA, AT $148.50 PER MFBM, OR FOR A TOTAL CONSIDERATION OF $3,712.50. SHIPMENT WAS SCHEDULED FOR COMPLETION ON OR BEFORE NOVEMBER 21, 1949. THE CONTRACT PROVIDES UNDER PARAGRAPH (A), CLAUSE 11 OF THE GENERAL CONDITIONS, THE METHOD FOR TERMINATING THE CONTRACT IN WHOLE OR IN PART WHERE THE CONTRACTOR FAILS TO MAKE DELIVERY WITHIN THE TIME SPECIFIED OR ANY EXTENSION THEREOF, OR FAILS TO MAKE PROGRESS AS TO ENDANGER PERFORMANCE OF THE CONTRACT IN ACCORDANCE WITH ITS TERMS. UNDER PARAGRAPH (B) OF THE SAME CLAUSE PROVISION IS MADE FOR RELIEVING THE CONTRACTOR OF ANY LIABILITY WHERE FAILURE TO PERFORM ARISES OUT OF CONDITIONS BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR, SUCH CONDITIONS AS ENUMERATED THEREIN, INCLUDING ACTS OF GOD. HOWEVER, PARAGRAPH (C) PROVIDES THAT, IN THE EVENT OF TERMINATION BY THE GOVERNMENT OF THE CONTRACT, AS PROVIDED THEREIN, THE SUPPLIES MAY BE PROCURED IN THE OPEN MARKET AND THE CONTRACTOR SHALL BE LIABLE FOR ANY EXCESS COSTS ARISING THEREFROM. CLAUSE 12 OF THE CONTRACT PROVIDES THAT ANY DISPUTE OF FACT ARISING UNDER THE CONTRACT SHALL BE DECIDED BY THE CONTRACTING OFFICER, WHOSE DECISION IS FINAL AND CONCLUSIVE, SUBJECT TO THE CONTRACTOR'S RIGHT OF APPEAL AS FURTHER PROVIDED THEREIN.

THE RECORD DISCLOSES THAT BECAUSE OF YOUR FAILURE TO FURNISH ANY LUMBER WITHIN THE REQUIRED TIME YOUR RIGHT TO PROCEED UNDER THE CONTRACT WAS TERMINATED BY WRITTEN NOTICE DATED NOVEMBER 30, 1949, AND THE LUMBER SECURED FROM ANOTHER SOURCE ON DECEMBER 13, 1949, AT AN ADDITIONAL COST TO THE GOVERNMENT OF $545.54, WHICH AMOUNT HAS BEEN COLLECTED FROM FUNDS OTHERWISE DUE YOU. YOUR CLAIM FOR REFUND OF SAID AMOUNT WAS DISALLOWED IN OUR CLAIMS DIVISION SETTLEMENT DATED JULY 31, 1951.

IN REQUESTING REVIEW OF THE SETTLEMENT AFTER A LAPSE OF APPROXIMATELY FOUR YEARS AND WHILE ADDING NO INFORMATION IN ADDITION TO THAT PREVIOUSLY CONSIDERED BY OUR OFFICE OR THE ADMINISTRATIVE OFFICE CONCERNED, YOU NOW CONTEND YOUR FAILURE OF PERFORMANCE WAS DUE TO AN UNUSUAL RAINFALL DURING THE PERIOD IN QUESTION. YOU INDICATE SUCH CONDITION CONSTITUTED AN ACT OF GOD WITHIN THE MEANING OF THAT TERM AS USED IN PARAGRAPH (B), CLAUSE II OF THE CONTRACT AND OTHERWISE ESTABLISHED YOUR FAILURE TO PERFORM WAS DUE TO A CAUSE BEYOND YOUR CONTROL AND WITHOUT YOUR FAULT AND NEGLIGENCE.

AN EXAMINATION OF THE ENTIRE CORRESPONDENCE EXCHANGED BETWEEN THE CONTRACTING OFFICER OR HIS AUTHORIZED REPRESENTATIVE AND YOU AT THE TIME YOUR RIGHT TO PROCEED UNDER THE CONTRACT WAS TERMINATED AND SUBSEQUENT THERETO, DISCLOSES THAT THE DETERMINATION OF THAT OFFICER OR HIS REPRESENTATIVE WITH RESPECT TO YOUR REQUEST FOR AN EXTENSION OF TIME AND FOR RELIEF FROM THE ASSESSMENT OF EXCESS COSTS WAS MADE IN COMPLIANCE WITH THE APPLICABLE CONTRACT PROVISIONS. THERE IS NO EVIDENCE OF RECORD THAT THE FINAL DECISION OF THE CONTRACTING OFFICER THAT YOU WERE LIABLE FOR EXCESS COSTS OCCASIONED BY YOUR DEFAULT WAS MADE THE SUBJECT OF AN APPEAL AS PROVIDED UNDER CLAUSE 12 OF THE CONTRACT. SINCE YOU FAILED TO EXHAUST THE ADMINISTRATIVE REMEDY AFFORDED YOU UNDER THE TERMS OF THE CONTRACT, BY APPEALING TO THE SECRETARY OF THE ARMY, YOU ARE NOW PRECLUDED FROM QUESTIONING THE CORRECTNESS OF THAT DECISION. UNITED STATES V. CALLAHAN WALKER COMPANY, 317 U.S. 56; UNITED STATES V. HOLPUCH CO., 328 U.S. 230; FRUHAUF SOUTHWEST GARMENT COMPANY V. UNITED STATES, 111 F.SUPP. 945.

ACCORDINGLY, THE ACTION TAKEN IN THE SETTLEMENT OF JULY 31, 1951, MUST BE SUSTAINED.