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R.E.D.M. CORP. v. LO SECCO

September 27, 1968

R.E.D.M. CORPORATION, Plaintiff,
v.
Joseph LO SECCO, Contracting Officer, Department of the Army, United States Government, Defendant



The opinion of the court was delivered by: BONSAL

BONSAL, District Judge.

 Plaintiff R.E.D.M. Corporation (plaintiff) has instituted this action, pursuant to 28 U.S.C. ยง 1361, to obtain a writ of mandamus to compel the defendant Joseph Lo Secco, a Contracting Officer, Department of the Army, (defendant) to make detailed findings of fact to supplement a written decision which he made on January 19, 1968. Plaintiff moves, pursuant to Rule 56, F.R.Civ.P., for summary judgment on the ground that there is no genuine issue as to any material fact. Defendant moves, pursuant to Rule 56, F.R.Civ.P., for summary judgment dismissing the complaint on the ground that mandamus will not lie; and moves, pursuant to Rule 12(b)(1), F.R.Civ.P., to dismiss the complaint on the ground that the court lacks subject matter jurisdiction over the action because of plaintiff's failure to exhaust administrative remedies.

 From the affidavits submitted by both parties in support of their motions, the following facts appear to be without dispute:

 On October 25, 1961, plaintiff, responding to a public invitation for bids from the Ordnance Ammunition Command of the United States Army (Ordnance Command), submitted a bid for the production and delivery of 1,270,000 complete head assemblies, or timing mechanisms, for M525 and M527 B1 Point Detonator Fuzes. On November 29, 1961, plaintiff was awarded Government Contract No. DA-11-173-ORD-651 (the Contract) for the production and delivery of the head assemblies, at a unit price of $1.543 each, for a total Contract price of $1,959,610.00.

 Plaintiff began construction of the head assemblies but soon encountered problems because of arming failures in the units. In April 1962, plaintiff referred his problems to the Industrial Engineering Division of Picatinny Arsenal (the Arsenal), which had custody of the technical data for the production of the head assemblies. On July 26, 1962, plaintiff discussed his problems with representatives of the Arsenal, the Ordnance Command, and the New York Ordnance District (the District).

 In early October 1962, plaintiff submitted to the District an engineering report of the problem of arming failures, together with three Technical Data Changes Requests (TDCRs). On October 10, 1962, after discussions with representatives of the District, now known as the New York Procurement District (Procurement District), the three TDCRs were rejected; on February 20, 1963, one TDCR, resubmitted by plaintiff in January 1963, was again rejected.

 On May 20 and June 4, 1963, plaintiff's attorney requested, pursuant to Section 2 *fn1" of the Contract, that the Contracting Officer of the Procurement District approve an upward equitable adjustment of the Contract price, because of increased costs attributable to the arming failures.

 In a letter dated October 4, 1963, plaintiff's attorney "formally requested that the Contracting Officer make findings of fact and render a final decision in writing concerning the dispute described in the [letter of June 4, 1963] * * * on or before November 4, 1963." This request was made pursuant to Section 12 of the Contract, the "Disputes" clause, discussed more fully below.

 In a letter dated October 23, 1963, the Contracting Officer stated that "it is impossible * * * to reach a decision in this matter on or before 4 November 1963 * * * [because] each claim must be given careful consideration * * * and involves a substantial undertaking."

 Further meetings between plaintiff and representatives of the Procurement District were held from 1963 through 1966. According to the affidavit of Kahn, plaintiff's Vice-President, plaintiff was told in March 1966 that its claim was being held in abeyance pending the decision by the Armed Services Board of Contract Appeals (ASBCA) in an appeal on a similar claim by the Wilkinson Manufacturing Corporation (Wilkinson), which decision was rendered in February 1967. Later in 1967, the Department of the Army requested and made an audit of plaintiff's books and records.

 On January 3 and 5, 1968, plaintiff's representatives attended negotiating conferences with representatives of the Procurement District. Sometime between 1963 and January 1968, defendant became the Contracting Officer charged with determining plaintiff's claim.

 On January 19, 1968, the defendant mailed his decision on the plaintiff's claim to plaintiff. In his letter, he stated in part that:

 
"After consideration of the facts and circumstances substantiating your claim I hereby find that:
 
1. The drawings and specifications set forth as part of Contract No. DA-11-173-ORD-651 were not inadequate or ...

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