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U.S. Supreme Court

S & E Contractors, Inc. v. United States, 406 U.S. 1 (1972)

S & E Contractors, Inc. v. United States

No. 70-88

Argued October 21, 1971

Reargued March 20, 1972

Decided April 24, 1972

406 U.S. 1


In a contract disputes procedure, the Atomic Energy Commission (AEC) approved claims of its contractor for additional compensation. In response to an AEC certifying officer's request for advice as to one item, however, the General Accounting Office (GAO) ruled that the claims could not be certified for payment. When the AEC then refused to pay the compensation, the contractor brought suit in the Court of Claims alleging that the GAO had no authority to overturn the AEC approval. The Government, through the Department of Justice, defended on the ground that the AEC determination was not final, but was subject to judicial review under the standards specified in § 321 of the Wunderlich Act,

"[t]hat . . . the same is fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence."

The Court of Claims held that

"the Government has the right to the same extent as the contractor to seek judicial review of an unfavorable administrative decision on a contract claim."


1. The AEC, which, for the purpose of this contract, was the United States, had exclusive administrative authority under the disputes clause procedure to resolve the dispute here at issue, and neither the contract between the parties nor the Wunderlich Act permitted still further administrative review by the GAO. Pp. 406 U. S. 8-12.

Page 406 U. S. 2

2. The Wunderlich Act does not confer upon the Department of Justice the right to appeal from a decision of an administrative agency, nor is this a case involving a contractor's fraud, concerning which the Department has broad powers to act under several statutory provisions. Pp. 406 U. S. 12-19.

193 Ct.Cl. 335, 433 F.2d 1373, reversed.

DOUGLAS, J., delivered the opinion of the Court, in which BURGER, C.J.,and STEWART, BLACKMUN, and POWELL, JJ., joined. BLACKMUN, J., filed a concurring opinion, in which BURGER, C.J.,and STEWART and POWELL, JJ., joined, post, p. 406 U. S. 19. BRENNAN, J., filed a dissenting opinion, in which WHITE and MARSHALL, JJ., joined, post, p. 406 U. S. 23. REHNQUIST, J., took no part in the consideration or decision of the case.

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