B-147790, MAY 25, 1962

B-147790, MAY 25, 1962

TO MILES METAL CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 13, 1961, ACKNOWLEDGED ON JANUARY 11, 1962, APPEALING TO THIS OFFICE FOR REMISSION ON AN EQUITABLE BASIS OF SO-CALLED LIQUIDATED DAMAGES OCCASIONED BY DELAY IN REMOVAL OF CERTAIN SCRAP METALS PURCHASED BY THE CORPORATION FROM THE CONSOLIDATED SURPLUS SALES OFFICE, LEAVENWORTH, KANSAS.

SECTION 256A OF TITLE 41, U.S.C. UNDER WHICH YOU SEEK RELIEF, PROVIDES AS FOLLOWS:

"WHENEVER ANY CONTRACT MADE ON BEHALF OF THE GOVERNMENT BY THE HEAD OF ANY FEDERAL AGENCY, OR BY OFFICERS AUTHORIZED BY HIM SO TO DO, INCLUDES A PROVISION FOR LIQUIDATED DAMAGES FOR DELAY, THE COMPTROLLER GENERAL UPON RECOMMENDATION OF SUCH HEAD IS AUTHORIZED AND EMPOWERED TO REMIT THE WHOLE OR ANY PART OF SUCH DAMAGES AS IN HIS DISCRETION MAY BE JUST AND EQUITABLE.'

THIS STATUTE AUTHORIZES THE GRANTING OF RELIEF ONLY IN THOSE CASES WHERE A FAVORABLE RECOMMENDATION IS MADE BY THE HEAD OF THE AGENCY CONCERNED. SUCH A RECOMMENDATION HAS NOT BEEN MADE IN THIS CASE. CONSEQUENTLY, THERE IS NO AUTHORITY FOR THE ALLOWANCE OF YOUR CLAIM UNDER THE STATUTE.

WE MIGHT ADD, HOWEVER, THAT IN A LETTER DATED APRIL 10, 1962, THE DEFENSE SUPPLY AGENCY REPORTED TO THIS OFFICE AS FOLLOWS:

"THE FIRM REQUESTED THE ARMED SERVICES BOARD OF CONTRACT APPEALS TO DELAY THE PROCESSING OF THE APPEAL BECAUSE OF ITS PENDING APPLICATION FOR REMISSION AND THE BOARD GRANTED AN EXTENSION OF TIME FOR THE FILING OF A COMPLAINT. IT IS CONSIDERED THAT THE DISPUTES PROCEDURE PROVIDED FOR IN THE CONTRACT SHOULD NOW BE COMPLETED AND THE FACTS BEARING ON THE PROPRIETY OF THE ASSESSMENT FINALLY RESOLVED. ACCORDINGLY, UPON RECEIPT OF A COPY OF YOUR REPLY TO THE FIRM,

APPROPRIATE ACTION WILL BE TAKEN TO HAVE THE APPEAL PROCEDURE COMPLETED.'

AS OF THIS DATE WE ARE FORWARDING A COPY OF THIS LETTER TO THE AGENCY IN ORDER THAT THE ADMINISTRATIVE PROCESS MAYBE PURSUED.