B-157813, DEC. 8, 1965

B-157813, DEC. 8, 1965

TO INDUSTRIAL METAL FABRICATING CO., INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF OCTOBER 7, 1965, PROTESTING AGAINST THE ACTION OF THE DEPARTMENT OF THE ARMY, REDSTONE ARSENAL, HUNTSVILLE, ALABAMA, IN HAVING TERMINATED, FOR DEFAULT, YOUR RIGHT TO PROCEED UNDER CONTRACT NO. DA-01-021-AMC-12512 (Z).

IT APPEARS FROM YOUR TELEGRAM THAT THE INSTANT MATTER WAS THE SUBJECT OF A DECISION OF THE CONTRACTING OFFICER WHICH, YOU STATE, WAS RECEIVED BY YOU ON SEPTEMBER 27, 1965. YOU INDICATE THAT IN SUCH DECISION THE CONTRACTING OFFICER INFORMED YOU THAT IT WAS HIS DECISION THAT YOUR FIRM HAD DEFAULTED IN THE PERFORMANCE OF THE CONTRACT BY FAILING TO MAKE DELIVERY WITHIN THE TIME SPECIFIED AND FAILING TO MAKE PROGRESS SO AS TO ENDANGER THE PERFORMANCE OF THE CONTRACT. WE HAVE BEEN INFORMALLY ADVISED BY THE DEPARTMENT OF THE ARMY THAT BY LETTER DATED NOVEMBER 5, 1965, YOU APPEALED THE CONTRACTING OFFICER'S ADVERSE DECISION TO THE ARMED SERVICES BOARD OF CONTRACT APPEALS.

THE APPEAL OF YOUR FIRM NOW PENDING BEFORE THE ARMED SERVICES BOARD OF CONTRACT APPEALS WAS MADE PURSUANT TO THE "DISPUTES" CLAUSE OF THE CONTRACT WHICH PROVIDES FOR THE ADMINISTRATIVE SETTLEMENT OF DISPUTES CONCERNING QUESTIONS OF FACT ARISING UNDER THE CONTRACT. THE "DISPUTES" CLAUSE STATES IN PART THAT "THE DECISION OF THE SECRETARY OR HIS DULY AUTHORIZED REPRESENTATIVE FOR THE DETERMINATION OF SUCH APPEALS SHALL BE FINAL AND CONCLUSIVE UNLESS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO HAVE BEEN FRAUDULENT, OR CAPRICIOUS, OR ARBITRARY, OR SO GROSSLY ERRONEOUS WAS NECESSARILY TO IMPLY BAD FAITH, OR NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.' THESE ARE THE STANDARDS OF JUDICIAL REVIEW CONCERNING ADMINISTRATIVE DECISIONS ON FACTUAL ISSUES WHICH ARE MADE FINAL AND CONCLUSIVE BY THE TERMS OF A GOVERNMENT CONTRACT. SEE THE WUNDERLICH ACT, APPROVED MAY 11, 1954, 41 U.S.C. 321.

SINCE THE ISSUES OF THE CASE HERE INVOLVED ARE ESSENTIALLY OF A FACTUAL NATURE IT WOULD NOT APPEAR PROPER FOR US TO CONSIDER THE MERITS OF YOUR COMPLAINT UNTIL AFTER THE DECISION BY THE ARMED SERVICES BOARD OF CONTRACT APPEALS. BOTH YOUR COMPANY AND THE GOVERNMENT ARE BOUND TO FOLLOW THE PROCEDURE SET OUT IN THE CONTRACT FOR THE ADMINISTRATIVE SETTLEMENT OF DISPUTES ON QUESTIONS OF FACT ARISING OUT OF THE CONTRACT AND THE CONTRACTOR MUST, OF COURSE, EXHAUST ITS ADMINISTRATIVE REMEDIES UNDER THE "DISPUTES" CLAUSE BEFORE MAKING AN APPEAL EITHER TO OUR OFFICE OR THE COURTS. SEE, GENERALLY, B. H. DEACON CO. V. UNITED STATES, 189 F.SUPP. 146; AND HAPPEL V. UNITED STATES, 176 F.SUPP. 787, AFFIRMED 279 F.2D 88.