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We conclude that appellant's claim for dead weight freight is not a claim which arises under a specific contract adjustment provision or any other clause of the contract. See United States v. Utah Construction & Mining Co., 384 U.S. 394, 404 & n. (1966). In the absence of a "specific contract provision providing the remedy and relief sought "appellant's claim may not be administratively determined. Moran Towing & Transportation Co., Inc., ASBCA No. 10681, 66-2 BCA par. 1027 at pp. 27,847, 27,852. Furthermore, we find that appellant has pointed to no single provision or synthesis of provisions which expressly or by necessary implication establish a basis under the contract for the liability asserted. Compare West Coast Steamship Company, ASBCA No. 4379, 59-2 BCA par. 2366, at pp. 10,860-61.

Nor has appellant pointed to any long standing administrative usage, or interpretation of the same or similar contractual provisions by this Board or the Courts from which it is reasonable to conclude that the fair intendment of the parties was to convert this type of breach into a matter properly for determination and payment as a matter of contract price. United States v. Utah Construction & Mining Co., supra, 384 U.S. 404, 407, 418-423; The Len Company & Associates v. United States, Ct. Cls. 257-63, decided October 13, 1967, Slip Op. at p. 19 & n. 18; Moran Towing & Transportation Co., Inc., supra; Amherst Steamship Corporation, ASBCA No. 3474, 57-2 BCA par. 1400 at pp. 4601-03; Paragon Oil Company, Inc., ASBCA No. 3980, 58-2 BCA par. 1845, at pp. 7307-12; S. A. De Transport's Nautilus, ASBCA No. 793 (1951).

Appellant's claim that the Government is responsible for frustrating the contemplated contract of carriage is a matter for determination in another forum under applicable rules of the law of damages.

Accordingly, the Government's suggestion that this Board is without power to make final administration disposition of appellant's claim for dead weight freight is sustained. * * *

C. "Arising Under the Contract"

GORDON ENTERPRISES

ASBCA No. 12793 (1967)

This appeal involves a claim by the appellant that it made an error in its bid for the purchase of Government surplus property. ***

On 18 September 1967 the contracting officer informed the appellant that he had "received the administrative determination and relief has been denied." On 21 September 1967 appellant appealed to this Board under Article 15 "Disputes" of the General Sales Terms and Conditions of contract.

The Disputes article provides that "any dispute concerning a question of fact arising under this contract" may, in the event of an adverse decision by the contracting officer, be appealed to the Secretary or his representative.

This Board as a representative of the Secretary has jurisdiction under that clause and under the Board's Charter over disputes arising under the contract. There is nothing in the Disputes article of this contract nor in the Board's Charter, however, which gives the Board jurisdiction over disputes as to the facts relating to the bidding procedures or relating to the formation of the contract.

"The issue here did not arise out of the contract. The real question presented is whether a contract was formed by the Government's acceptance of appellant's bid. The appellant's claim is based upon the proposition that appellant's bid was in error and that the contracting officer should have been aware of the error because other bids indicated that appellant's bid was too high."

This is not a novel issue. This board has dismissed numerous similar claims for lack of jurisdiction. See for example, Newell Salvage Company, ASBCA No. 5379, 59-1 BCA, 9 2125; Pax Electronics Co., ASBCA Nos. 8286 and 8927, 1964 BCA, 9 4350; Allen Distributors, Inc., ASBCA No. 10481, 65-2 BCA, 5193; and Automotive Tire Service, Inc., ASBCA No. 10186, 65-2 BCA, q 5249.

As explained above, we find that the dispute did not arise out of the contract and therefore does not come within the ambit of the Disputes clause. Accordingly, the appeal is dismissed for lack of jurisdiction.

DELCHER BROTHERS STORAGE COMPANY

ASBCA No. 15193 (1970)

ON APPELLANT'S PETITION REQUESTING
THE BOARD DISCLAIM JURISDICTION

Appellant has submitted a petition wherein it requests the Board to disclaim jurisdiction on the ground that it is not such a claim which the Board has authority to hear, consider, and dispose of. The parties agreed to waive a hearing and have the Board decide the petition on the record.

FACTS

On 1 April 1967 a storage contract was entered into between the Government and appellant which, prior to the date of this appeal, had been extended until 31 March 1970. Pursuant to the terms of the contract

as amended, appellant agreed to furnish facilities and services for the safe and proper storage, and redelivery of household goods of military personnel pursuant to service orders issued by the Government. On 1 February 1970, 188 lots of household goods belonging to military personnel, weighing a total of 381,807 pounds were stored at the appellant's warehouse located at 455 East Tenth Court, Hialeah, Florida. On that date, a fire occurred at the warehouse resulting in destruction of the property. According to the Government, the fair and reasonable value of the property destroyed at the time it was destroyed is $477,258.75. The Government, relying on Clause 8 entitled "Liability for Care of Goods," Clause 17 entitled "Disputes," and Clause 19 of the Specific Requirements entitled "Storage Area," issued a formal final decision on 24 March 1970 holding appellant liable in the amount of $477,258.75 and demanding payment in that amount. By letter dated 21 April 1970 appellant filed a timely appeal. Subsequently, by letter dated 28 May 1970 appellant designated its notice of appeal as its complaint and at the same time filed a "Petition to Disclaim Jurisdiction." The Government has filed a 'Motion in Opposition to Appellant's Petition to Disclaim Jurisdiction" but has not filed an answer to the complaint.

APPELLANT'S POSITION

Appellant, citing United States v. Utah Construction and Mining Co., 384 U.S. 394, 86 S. Ct. 1545, 16 L. Ed. 2d 602 (1966), argues that the claim is based solely on allegations of breach of contract, is not subject to the disputes clause, and is therefore not such a claim which the Board has authority to hear, to consider, to make findings of fact binding on the appellant, to finally dispose of, or to entertain for any purpose. In its argument appellant recognizes that this Board has previously considered and rejected the same argument in Meeks Transfer Company, Inc., ASBCA No. 11819 and Columbia Van Lines Moving and Storage Co., Inc., ASBCA No. 11820, 67-2 BCA par. 6567. (For prior decision on motion to dismiss see Columbia Van Lines Moving & Storage Co., Inc., ASBCA No.11820. 16 November 1966, 66-2 BCA par. 5971.) Appellant calls attention to the fact that since the Board's decision in the Meeks-Columbia Van cases, the United States Court of Claims has reviewed, interpreted and applied the Utah decision in the Len Co. and Associates v. United States, 181 Ct. C1. 29, 385 F. 2d 438 (decided 13 October 1967) and Bird & Sons, Inc. v. United States, 420 F. 2d 1051 (decided 23 January 1970). In addition appellant calls attention to E. H. Marhoefer, Jr. Co., DOTCAB Nos. 70-17, 69-3, 69-3A, 27 February 1970, 70-1 BCA par. 8177, wherein the Utah decision was considered in connection with the Board's jurisdiction to hear and make findings upon appellant's allegation that a settlement was accomplished with the agency, and appellant's request that the Board order the contracting officer to carry out the terms of the alleged settlement.

Relying on the Court of Claims decisions in the Len and Bird cases, appellant submits that this Board did not properly interpret and/or apply the Supreme Court decision in the Utah case when the Board retained jurisdiction in the Meeks-Columbia Van Lines cases.

DECISION

The Utah case did not in any way change this Board's jurisdiction. Rather the Supreme Court held that this Board's own consistent past interpretation of its jurisdiction under the standard Disputes clause constituted the contractually-intended scope of its jurisdiction under such clause.

This Board has considered questions pertaining to its jurisdiction on several occasions since the Court of Claims decision in the Len case. For example, see Desert Moving & Storage Company, Inc., ASBCA No. 12665, 10 September 1968, 68-2 BCA par. 7243, which concerns the applicability and effect of the utah case to Government claims against warehousemen under the same Clause 8, "Liability for Care of Goods," and Clause 17, "Disputes." While not specifically mentioned in the decision, the Board gave careful consideration to the Len decision before reaching its conclusion in the Desert case that the claim was within the Board's jurisdiction. Another Board decision subsequent to the Len case in which the Board considered questions pertaining to its jurisdiction is J. J. Fritch, General Contractor, Inc., ASBCA Nos. 13445, 13672, 10 February 1970, 70-1 BCA par. 8123. Although the Fritch case concerned subject matter different from that being considered in the instant appeal, the discussion there of the Len case in connection with the Board's jurisdiction over the Government's claim against the contractor is applicable to the current challenge to the Board's jurisdiction. The Bird decision cited by appellant does not expand the Len decision. It reaffirms the jurisdictional rules enunciated therein. We find nothing in the Len or Bird decisions which requires this Board to change its prior decisions concerning its jurisdiction with respect to appeals from Government claims against warehouseman pursuant to the contractual provisions relied upon in the instant case as well as the Meeks-Columbia Van case and the Desert case. Moreover, it should be clear from the discussion in the Fritch appeal that this Board does not share the artifically narrow view of its jurisdiction that was articulated in the Len decision.

Appellant's petition requesting the Board to disclaim jurisdiction is denied. The Government is directed to file its answer within thirty days after receipt of a copy of this decision. Thereafter the appeal will be set for hearing on the merits, or submission of the record if the parties waive a hearing.

D. Delays

DEFENSE ELECTRONICS, INC.

ASBCA No. 11898 (1967)

ON MOTION TO DISMISS

The Government has moved for dismissal of this appeal on the allegation that there is no provision of the contract which authorizes the requested relief, thus it may not properly be considered under the Disputes clause.

The contract, awarded 28 May 1963, was for the fabrication of 19 telemetry systems, and related manuals, for use in reinstrumentation of the Eastern Test Range for the Apollo Program. Government approval of the first articles was required prior to production of the remaining quantities. The First Article Approval clause of the contract specified, inter alia, as follows:

"The Government shall complete its First Article Engineering Tests within sixty (60) days after receipt of the First Article at Patrick AFB, Florida, unless the parties otherwise agree.'

There is no specific remedy offered the contractor in the event of the Government's breach of this obligation.

On 30 March 1965, the appellant filed a claim for additional compensation with the contracting officer. The claim letter stated two grounds therefor, delay by the Government in approval of first articles, and delays in the approval of certain manual manuscripts. After a series of correspondence and discussions, the contracting officer advised appellant, by letter of 26 August 1966, that, the contract contained no provision permitting compensation for delays; thus, he was without authority to render a final decision. The appeal was taken from this refusal to make a decision.

Subsequent to filing of the claim with the contracting officer, the appellant secured the advice of counsel. The claim was presented in the Complaint filed with the Board, and in an offer of proof made in defense against the motion to dismiss, is predicated upon the Changes article. Appellant now alleges that the Government approved certain first articles as submitted, but refused to approve others unless certain changes and additions were first made. Appellant immediately entered upon a design program to incorporate the demanded changes, although the items thus demanded were not required by the specifications. After several months had passed, the contracting officer acknowledged that the first articles, as originally delivered, had met the requirements of the contract. In addition to the engineering effort, the piecemeal approval of first articles prevented the fabrication of the telemetry systems in logical sequence and on an "assembly line" basis, greatly increasing manufacturing costs. The manuals would logically have been produced concurrently, as a common effort, with the equipments to which they related. The out of sequence production of the equipment resulted in similar problems and costs in the preparation of the manuals.

The Government cites Prototypes Development, Inc., ASBCA No. 10510, 65-2 BCA par. 4993; Craig Instrument Corporation, ASBCA No. 6385, 61-1 BCA par. 2875; and Philips Electronics, Inc., ASBCA No. 4443, 58-1 BCA par. 1819, for the proposition that damages for Government delay in approvals may not be recovered through the disputes procedure, in the absence of a specific provision in the contract authorizing such payment. The Changes article is not broad enough for this purpose. Without question, the Government is correct in its statement of this principle, as related to first articles and preproduction samples, as one long held by the Board. The contracting officer was, therefore, quite correct in stating that he could not offer relief under the contract on the claim as presented to him.

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