B-124579, NOV. 18, 1955

B-124579, NOV. 18, 1955

TO K. LITVIN AND SON:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 3, 1955, WITH ENCLOSURES, REQUESTING FURTHER CONSIDERATION OF OUR DECISION OF SEPTEMBER 7, 1955, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR $21,593.85 AS INCREASED COSTS ALLEGED TO HAVE BEEN INCURRED AS THE RESULT OF DELAYS BY THE GOVERNMENT IN CONNECTION WITH YOUR PERFORMANCE UNDER CONTRACT NO. DA-36- 231-/AA-II/-111, DATED JUNE 26, 1952.

THE CONTENTIONS URGED BY YOU RECEIVED CAREFUL CONSIDERATION AND, FOR THE REASONS STATED IN OUR DECISION OF SEPTEMBER 7, 1955, IT WAS HELD THAT THERE WAS NO LEGAL AUTHORITY FOR ALLOWING YOUR CLAIM. YOUR LETTER OF OCTOBER 3, 1955, CONTIANS A MERE RESTATEMENT OF SUCH CONTENTIONS, EXPRESSED IN LETTERS TO THE ADMINISTRATIVE OFFICE CONCERNED WHICH WERE BEFORE OUR OFFICE AT THE TIME THE DECISION WAS RENDERED. THE ENCLOSURES WITH YOUR LETTER OF OCTOBER 3, 1955, CONSISTING OF ADDITIONAL COMMUNICATION BETWEEN YOU OR YOUR ATTORNEY AND FRANKFORD ARSENAL, CONTAIN NO STATEMENTS OR EVIDENCE AT VARIANCE WITH THE RECORD CONSIDERED IN REACHING THE DECISION OF SEPTEMBER 7, 1955.

THE RECORD INDICATES THAT YOU HAD THE BENEFIT OF LEGAL COUNSEL PRIOR TO AND AT THE TIME YOU EXECUTED MODIFICATION NO. 3 TO THE CONTRACT. THEREFORE, IT APPEARS REASONABLE TO ASSUME THAT YOU WERE FULLY AWARE OF THE LEGAL EFFECT OF THAT MODIFICATION, THAT IS, THAT YOU WAIVED ANY RIGHT TO DAMAGES BY REASON OF DELAYS BY THE GOVERNMENT AS CONSIDERATION FOR THE EXTENSION OF TIME SPECIFIED IN THE MODIFICATION WHICH LIKEWISE RELIEVED YOU OF LIABILITY FOR LIQUIDATED DAMAGES ACCRUING ON ACCOUNT OF ANY DELAY ON YOUR PART NOT EXCUSABLE UNDER THE CONTRACT. UNDER SUCH CIRCUMSTANCES, IT APPEARS THAT THE PURPORTED RESERVATION IN YOUR LETTER OF DECEMBER 10, 1953, CONSTITUTED NOTICE OF YOUR INTENTION TO APPLY FOR EQUITABLE RELIEF UNDER TITLE II OF THE FIRST WAR POWERS ACT OF 1941, AS AMENDED, 64 STAT. 1257, PARTICULARLY, SINCE SUCH APPLICATION WAS THEREAFTER MADE IN YOUR LETTER OF JANUARY 6, 1955. THAT ACT VESTED IN THE HEAD OF THE EXECUTIVE DEPARTMENT CONCERNED AUTHORITY TO GRANT EQUITABLE RELIEF TO A CONTRACTOR UNDER CERTAIN CIRCUMSTANCES. HOWEVER, OUR OFFICE HAS NO AUTHORITY TO GRANT RELIEF UNDER THE SAID ACT OR TO MODIFY THE ACTION OF AN ADMINISTRATIVE OFFICE PURSUANT THERETO. MOREOVER, REGARDLESS OF WHETHER THE ABOVE-MENTIONED ASSUMPTIONS ARE CORRECT, FOR THE REASONS STATED IN OUR DECISION OF SEPTEMBER 7, 1955, YOUR LETTER OF DECEMBER 10, 1953, MAY NOT BE REGARDED AS A PART OF MODIFICATION NO. 3 TO THE CONTRACT, OR AS HAVING ANY LEGAL EFFECT ON THE WAIVER CONTAINED THEREIN.

ACCORDINGLY, UPON CAREFUL REVIEW OF THE RECORD NO BASIS APPEARS FOR MODIFICATION OF THE ACTION PREVIOUSLY TAKEN ON YOUR CLAIM.