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B-212103, SEP 22, 1983, OFFICE OF GENERAL COUNSEL

B-212103 Sep 22, 1983
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WE DO NOT BELIEVE THAT AN ADVANCE DECISION IS APPROPRIATE IN THIS SITUATION. THAT APPARENTLY WAS DONE HERE. SINCE THE CONTRACTING OFFICER'S DECISION WILL BE FINAL UNLESS THE CONTRACTOR PROPERLY APPEALS. THUS THERE IS SUPPORT FOR THE POSITION THAT THE INCLUSION OF THE IDENTICAL TERMS IN J&M'S CONTRACT CREATED A PAYMENT PERIOD OF 20 DAYS FOR PURPOSES OF THE PROMPT PAYMENT ACT.

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B-212103, SEP 22, 1983, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

MR. R. G. BORDLEY, CHIEF, ACCOUNTING & FINANCE DIVISION, OFFICE OF THE COMPTROLLER, DEFENSE LOGISTICS AGENCY:

THIS RESPONDS TO YOUR REQUEST, AS A DISBURSING OFFICER, FOR AN ADVANCE DECISION CONCERNING J&M LUMBER INC.'S CLAIM FOR AN INTEREST PENALTY PURSUANT TO THE PROMPT PAYMENT ACT, 31 U.S.C.A. SECS. 3901-3906 (WEST SUPP. 1983), BECAUSE THE GOVERNMENT ALLEGEDLY MADE LATE PAYMENTS TO THE FIRM UNDER CONTRACT NO. DLA720-83-C-0051.

WE DO NOT BELIEVE THAT AN ADVANCE DECISION IS APPROPRIATE IN THIS SITUATION. SECTION 4(A)(1) OF THE PROMPT PAYMENT ACT STATES THAT WHERE A GOVERNMENT AGENCY DOES NOT PAY A CLAIM FOR INTEREST PENALTIES FOR LATE PAYMENTS, THE CONTRACTOR MAY FILE A CLAIM UNDER SECTION 6 OF THE CONTRACT DISPUTES ACT OF 1976, 41 U.S.C. SEC. 605 (SUPP. IV 1980); THAT APPARENTLY WAS DONE HERE. IN TURN, SECTION 6 OF THE CONTRACT DISPUTES ACT AUTHORIZES THE CONTRACTING OFFICER TO ISSUE THE CONCLUSIVE DECISION ON A CLAIM, SUBJECT ONLY TO THE CONTRACTOR'S RIGHT TO APPEAL TO THE COGNIZANT BOARD OF CONTRACT APPEALS OR TO COMMENCE A SUIT IN THE CLAIMS COURT. WE UNDERSTAND THE CONTRACTING OFFICER HAS NOT YET ISSUED HER DECISION REGARDING J&M'S CLAIM AND, SINCE THE CONTRACTING OFFICER'S DECISION WILL BE FINAL UNLESS THE CONTRACTOR PROPERLY APPEALS, WE BELIEVE THE DECISION GENERALLY MUST BE ACCORDED THE WEIGHT OF LAW FOR THE PURPOSE OF ANY DISBURSEMENT.

WE POINT OUT FOR YOUR INFORMATION, HOWEVER, THAT WE RECENTLY HELD THAT A BIDDER'S INSERTION OF THE WORD "NET" NEXT TO THE 20-DAY SELECTION IN THE PROMPT PAYMENT DISCOUNT SECTION REASONABLY COULD BE INTERPRETED AS AN ATTEMPT TO REQUIRE PAYMENT BY THE GOVERNMENT WITHIN 20 DAYS, AND THAT AN AGENCY THEREFORE PROPERLY REJECTED SUCH A BID AS NONRESPONSIVE WHERE THE SOLICITATION SPECIFIED A PAYMENT PERIOD OF 30 DAYS. BUCKEYE PACIFIC CORPORATION, B-212183, AUGUST 30, 1983, 83-2 CPD . THUS THERE IS SUPPORT FOR THE POSITION THAT THE INCLUSION OF THE IDENTICAL TERMS IN J&M'S CONTRACT CREATED A PAYMENT PERIOD OF 20 DAYS FOR PURPOSES OF THE PROMPT PAYMENT ACT.

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