B-152917, DEC. 10, 1963

B-152917, DEC. 10, 1963

TO THE BERING COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 26, 1963, REQUESTING REVIEW OF SETTLEMENT DATED OCTOBER 11, 1963, WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR REFUND OF $4,000 DEDUCTED FROM PAYMENTS UNDER YOUR CONTRACT NO. DA-95-507-ENG-1560. THE AMOUNT OF $4,845.84 WAS DEDUCTED AS REIMBURSEMENT FOR VALUE OF FUEL OIL LOST BY THE CAMPION AIR FORCE STATION, ALASKA, AS A RESULT OF REMOVAL OF A CAP FROM A FUEL LINE BY ONE OF YOUR SUBCONTRACTOR'S EMPLOYEES.

THE CONTRACT PROVIDED, AMONG OTHER THINGS, FOR THE MODIFICATION OF THE HEATING AND VENTILATING SYSTEM AT CAMPION AIR FORCE STATION, ALASKA. THE COURSE OF DISMANTLING CERTAIN EQUIPMENT AND PIPING PREPARATORY TO THE INSTALLATION OF NEW AND DIFFERENT MATERIAL YOUR SUBCONTRACTOR REMOVED A CERTAIN CAP ON A FUEL LINE ACTIVELY USED BY THE AIR FORCE BASE WHICH RESULTED IN THE LOSS OF ABOUT 20,000 GALLONS OF FUEL OIL WHEN THE AIR FORCE PERSONNEL ATTEMPTED TO PUMP FUEL OIL THROUGH THE PIPELINE. THE AMOUNT OF $4,845.84, REPRESENTING THE VALUE OF THE LOST FUEL OIL, WAS DEDUCTED FROM AN AMOUNT OTHERWISE DUE YOU UNDER THE CONTRACT.

THE QUESTION OF WHETHER THE MATTER IS A DISPUTE ARISING UNDER THE TERMS OF THE CONTRACT HAS BEEN THE SUBJECT OF CONTROVERSY. IN YOUR LETTER OF NOVEMBER 24, 1961, TO THE CONTRACTING OFFICER, UNITED STATES ARMY ENGINEER DISTRICT, ALASKA, YOU REQUESTED A DECISION AS TO YOUR LIABILITY SO THAT YOU COULD "APPEAL TO HIGHER AUTHORITY" IF THE DECISION WAS ADVERSE. THE IMMEDIATE REPLY, IF ANY, TO THIS LETTER DOES NOT APPEAR IN OUR RECORD. DOES APPEAR, HOWEVER, YOU DID NOT INSIST ON RECEIVING A DECISION IN THE MATTER FROM THE CONTRACTING OFFICER WHO STATED IN HIS LETTER OF DECEMBER 7, 1962, TO YOU THAT YOU CONSIDERED THAT THE USING AGENCY (AIR FORCE) SHOULD DECIDE WHETHER YOU WERE LIABLE FOR THE LOSS. IN FACT YOUR POSITION IN THIS MATTER WAS CONCURRED IN BY THE CONTRACTING OFFICER AS EARLY AS APRIL 20, 1962, AT WHICH TIME HE INFORMED YOU THAT THE CAP YOUR SUBCONTRACTOR REMOVED BELONGED TO A FUEL LINE WHICH WAS NOT UNDER YOUR CONTROL AT THAT TIME. IT APPEARS, THEREFORE, THAT THE FAILURE OF THE CONTRACTING OFFICER TO FURNISH YOU WITH A COPY OF HIS WRITTEN DECISION IN THE MATTER AS MIGHT BE REQUIRED UNDER THE DISPUTES CLAUSE OF THE CONTRACT WAS DUE TO YOUR INSISTENCE THAT THE MATTER SHOULD BE DECIDED BY OFFICERS OF THE DEPARTMENT OF THE AIR FORCE. THEIR DECISION IN THE MATTER, AFTER CONSIDERATION OF ALL THE EVIDENCE, WAS COMMUNICATED TO YOU IN A LETTER DATED APRIL 2, 1962, IN WHICH IT WAS STATED THAT MR. FRICKIE (YOUR SUBCONTRACTOR'S EMPLOYEE) "HAD NOT RECEIVED PERMISSION TO UTILIZE THIS PROPERTY OF THE UNITED STATES AIR FORCE.' YOUR CLAIM FOR REFUND OF $4,000, BEING A PORTION OF THE AMOUNT DEDUCTED FROM AN AMOUNT OTHERWISE DUE YOU UNDER THE CONTRACT, WAS DISALLOWED IN OUR SETTLEMENT OF OCTOBER 11, 1963.

IN YOUR LETTER OF OCTOBER 26, 1963, YOU INSIST THAT THE CAP IN QUESTION WAS LOCATED "ON THE PIPE THAT OUR CONTRACT AUTHORIZED AND OBLIGATED US TO REMOVE.' IT MAY BE THAT YOU EVENTUALLY DID REMOVE THIS PIPE BUT THE CONTRACTING OFFICER, AS WELL AS THE INVESTIGATING OFFICER OF THE AIR FORCE, INFORMED YOU THAT THE PIPELINE INVOLVED WAS STILL IN OPERATION AND WAS NOT UNDER YOUR CONTROL AT THE TIME THE CAP WAS REMOVED. IN CASE OF A DISPUTED QUESTION OF FACT BETWEEN A CLAIMANT AND THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT THE ACCOUNTING OFFICERS OF THE GOVERNMENT WILL ACCEPT THE ADMINISTRATIVE VERSION OF THE FACTS IN THE ABSENCE OF BAD FAITH OR A CLEAR SHOWING OF MISTAKE.

WITH REGARD TO YOUR STATEMENT THAT THE GOVERNMENT SHOULD TAKE INTO ACCOUNT THE BENEFICIAL OCCUPANCY BY IT OF A FACILITY THAT WAS UNDER CONSTRUCTION, AN INVESTIGATION OF THE SITE, AS REQUIRED BY THE INVITATION FOR BIDS, AS WELL AS CERTAIN REFERENCES IN THE SPECIFICATIONS SUCH AS PARAGRAPH SC-34, CLEARLY INDICATES THAT THE CONTRACTOR WAS TO WORK ON BUILDINGS AND FACILITIES THEN OCCUPIED AND TO BE VACATED, AND THAT THE BUILDINGS AND FACILITIES WERE TO BE REOCCUPIED AS SOON AS IT COULD BE CONVENIENTLY DONE.

AS TO YOUR STATEMENT IN PARAGRAPH 8 OF YOUR LETTER OF OCTOBER 26 THAT THE GOVERNMENT HAD FAILED TO SUBSTANTIATE THAT 20,000 GALLONS OF FUEL OIL WERE LOST, YOU WERE ADVISED IN A LETTER OF MAY 9, 1962, THAT THE OIL IN THE TANK INVOLVED WAS MEASURED BEFORE THE PUMPING OPERATIONS WERE BEGUN AND AFTER THEY WERE ENDED. ALSO, YOU WERE ADVISED THAT STATEMENTS FROM INDIVIDUALS SHOWED THAT LARGE QUANTITIES OF FUEL OIL WERE IN THE AREA WHERE THE CAP HAD BEEN REMOVED AND THAT AT THAT TIME THE TEMPERATURE WAS CONSIDERABLY ABOVE FREEZING SO THAT THE FUEL OIL WAS SOAKED UP IN A MINIMUM AMOUNT OF TIME.

THIS RECONSIDERATION OF YOUR CLAIM CONSTITUTES THE FINAL ACTION THAT OUR OFFICE CAN TAKE IN THE MATTER UNLESS YOU CAN FURNISH SOME EVIDENCE, NOT HERETOFORE CONSIDERED, THAT THE FACTS ADMINISTRATIVELY REPORTED ARE CLEARLY ERRONEOUS. THE PERMISSION OF OUR OFFICE IS NOT REQUIRED FOR CLAIMANT TO PRESENT ITS CLAIM TO THE ARMED SERVICES BOARD OF CONTRACT APPEALS; HOWEVER, IT IS NOT CLEAR FROM THE RECORD THAT THE BOARD WILL, OR HAS THE AUTHORITY TO, CONSIDER YOUR CLAIM.