B-147259, NOV. 3, 1961

B-147259, NOV. 3, 1961

TO ELECTRIC INDUSTRIAL EQUIPMENT AND SUPPLY CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 21, 1961, IN WHICH YOU REQUEST RELIEF UNDER CONTRACT NO. N150-6615, COVERING THE FURNISHING OF A QUANTITY OF ELECTRICAL POWER CABLE IN ACCORDANCE WITH FEDERAL SPECIFICATION J-C-94. RECEIPT IS ALSO ACKNOWLEDGED OF YOUR LETTER OF OCTOBER 6, 1961, AND ENCLOSURES.

IT APPEARS THAT PRIOR TO AWARD, THE PURCHASING OFFICER OF THE MARINE CORPS SUPPLY ACTIVITY, PHILADELPHIA, PENNSYLVANIA, BY LETTER DATED APRIL 10, 1961, REQUESTED YOU TO SUBMIT CERTAIN INFORMATION TO DETERMINE YOUR RESPONSIBILITY AS A PROSPECTIVE CONTRACTOR. BY LETTER DATED APRIL 17, 1961, YOU SUBMITTED A SAMPLE OF THE CABLE ON WHICH YOU STATED YOUR BID PRICE WAS BASED AND WHICH YOU BELIEVED WOULD CONFORM WITH THE REQUIREMENTS OF THE SPECIFICATIONS. IN YOUR LETTER YOU STATED THAT IF THE SAMPLE MEETS WITH THE ACTIVITY'S APPROVAL, YOU WOULD THEN FURNISH THE INFORMATION REQUESTED IN THE LETTER OF APRIL 10, 1961. BY LETTER DATED APRIL 18, 1961, THE PURCHASING OFFICER ADVISED YOU THAT NO COMMITMENT COULD BE MADE AS TO WHETHER YOUR UNSOLICITED SAMPLE COMPLIED WITH THE REQUIREMENTS OF INVITATION NO. 4551-ELECT AND THAT ACCEPTANCE OF YOUR UNQUALIFIED BID WITHIN THE ACCEPTANCE PERIOD WOULD REQUIRE DELIVERY IN ACCORDANCE WITH THE SPECIFICATIONS. ON MAY 8, 1961, A CONTRACT FOR FURNISHING 169,600 FEET OF ELECTRICAL POWER CABLE WAS AWARDED TO YOU AND SUBSEQUENTLY, THE AMOUNT OF CABLE WAS INCREASED TO 217,600 FEET IN ACCORDANCE WITH THE OPTION CLAUSE CONTAINED IN THE INVITATION.

THE RECORD INDICATES THAT THE INSPECTOR OF NAVAL MATERIAL REJECTED THE CABLE PRESENTED BY YOU FOR INSPECTION FOR THE REASON THAT THE CABLE WAS FOUND TO BE GRADE III, TYPE NM CABLE, FOR USE IN NORMALLY DRY LOCATIONS, WHEREAS YOU BID UPON AND CONSEQUENTLY WERE REQUIRED BY THE CONTRACT TO FURNISH GRADE VI, TYPE NMC CABLE, FOR USE IN NORMALLY DAMP OR MILDLY CORROSIVE LOCATIONS.

AFTER AN EXCHANGE OF CORRESPONDENCE, THE CONTRACTING OFFICER ADVISED YOU BY LETTER DATED OCTOBER 5, 1961, THAT BECAUSE OF YOUR FAILURE TO DELIVER THE TYPE OF CABLE REQUIRED BY THE SPECIFICATIONS, THE CONTRACT WAS BEING TERMINATED FOR DEFAULT; THAT THE CABLE WHICH YOU FAILED TO DELIVER WOULD BE PROCURED IN THE OPEN MARKET; AND THAT YOUR FIRM WOULD BE HELD LIABLE FOR ANY EXCESS COSTS INCURRED BY THE GOVERNMENT. THE CONTRACTING OFFICER POINTED OUT THAT THE LETTER CONSTITUTED A DECISION AND YOU WERE ADVISED OF YOUR RIGHT TO APPEAL AS SPECIFIED IN THE DISPUTES CLAUSE OF THE CONTRACT.

IT IS A QUESTION OF FACT AS TO WHETHER THE CABLE PRESENTED BY YOU TO THE INSPECTOR OF NAVAL MATERIAL FOR INSPECTION MEETS THE REQUIREMENTS OF THE SPECIFICATIONS. THUS, YOUR BASIC CONTENTION IN THE MATTER WAS BELIEVED TO BE PROPERLY FOR CONSIDERATION UNDER THE DISPUTES CLAUSE OF THE CONTRACT WHICH IS TO THE EFFECT THAT ANY DISPUTE CONCERNING A QUESTION OF FACT ARISING UNDER THE CONTRACT AND NOT DISPOSED OF BY AGREEMENT SHALL BE DECIDED BY THE CONTRACTING OFFICER, WHO SHALL REDUCE HIS DECISION TO WRITING AND FURNISH A COPY TO THE CONTRACTOR; AND THAT THE DECISION OF THE CONTRACTING OFFICER SHALL BE FINAL AND CONCLUSIVE UNLESS, WITHIN 30 DAYS FROM THE DATE OF RECEIPT OF SUCH COPY, THE CONTRACTOR MAILS OR OTHERWISE FURNISHES TO THE CONTRACTING OFFICER A WRITTEN APPEAL ADDRESSED TO THE SECRETARY.

THE RECORD INDICATES THAT THE CONTRACTING OFFICER'S DECISION WAS UNFAVORABLE TO THE POSITION TAKEN BY YOUR CORPORATION ON THE FACTUAL ISSUES OF THE CASE.

IT IS WELL SETTLED THAT A CLAIM AGAINST THE UNITED STATES IS BARRED BY THE FAILURE OF THE CLAIMANT TO EXHAUST ITS ADMINISTRATIVE REMEDIES UNDER CONTRACT PROVISIONS SUCH AS WERE PRESCRIBED IN THE DISPUTES CLAUSE OF YOUR CONTRACT. SILAS MASON COMPANY, INC. V. UNITED STATES, 90 CT.CL. 266; ID. 105 CT.CL. 27; UNITED STATES V. CALLAHAN WALKER COMPANY, 317 U.S. 56, 61; UNITED STATES V. BLAIR, 321 U.S. 730, 735, 736; UNITED STATES V. HOLPUCH CO., 328 U.S. 234, 239, 240.

THE RECORD DOES NOT INDICATE THAT YOU HAVE FILED A WRITTEN NOTICE OF APPEAL ADDRESSED TO THE SECRETARY OF THE NAVY IN COMPLIANCE WITH THE DISPUTES CLAUSE OF THE CONTRACT AND IT IS SUGGESTED THAT YOU IMMEDIATELY FILE SUCH AN APPEAL.