A-38478, APRIL 8, 1932, 11 COMP. GEN. 386

A-38478: Apr 8, 1932

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

THE GOVERNMENT IS ENTITLED TO THE PER DIEM LIQUIDATED DAMAGES PROVIDED BY THE CONTRACT FOR EACH DAY OF DELAY IN PERFORMANCE NOT CAUSED BY ACTS OF GOD. THE FACT THAT A CONTRACTOR PROLONGED THE DELAY IN THE PERFORMANCE OF HIS CONTRACT TO SUCH AN EXTENT THAT THE TOTAL AMOUNT OF ACCRUED LIQUIDATED DAMAGES IS IN EXCESS OF THE AMOUNT OF THE CONTRACT DOES NOT EXCUSE THE CONTRACTOR FROM THE CONSEQUENCES OF THE LIQUIDATED DAMAGE PROVISION OF THE CONTRACT. BY WHICH WAS DISALLOWED ITS CLAIM FOR $142.93. SUCH AMOUNT HAVING BEEN RETAINED AND APPLIED IN PARTIAL LIQUIDATION OF THE $210 LIQUIDATED DAMAGES FOUND TO HAVE ACCRUED ON ACCOUNT OF 42 CALENDAR DAYS OF UNEXCUSED DELAY IN COMPLETING PERFORMANCE OF THE CONTRACT.

A-38478, APRIL 8, 1932, 11 COMP. GEN. 386

CONTRACTS - DELAYS IN PERFORMANCE - LIQUIDATED DAMAGES WHERE A GOVERNMENT CONTRACT FOR SUPPLIES PROVIDES FOR SPECIFIED PER DIEM LIQUIDATED DAMAGES FOR DELAYS IN PERFORMANCE, AND MAKES NO PROVISION FOR EXCUSING THE CONTRACTOR FOR DELAYS FOR ANY CAUSES, THE GOVERNMENT IS ENTITLED TO THE PER DIEM LIQUIDATED DAMAGES PROVIDED BY THE CONTRACT FOR EACH DAY OF DELAY IN PERFORMANCE NOT CAUSED BY ACTS OF GOD, BY THE LAW, OR BY THE GOVERNMENT. THE FACT THAT A CONTRACTOR PROLONGED THE DELAY IN THE PERFORMANCE OF HIS CONTRACT TO SUCH AN EXTENT THAT THE TOTAL AMOUNT OF ACCRUED LIQUIDATED DAMAGES IS IN EXCESS OF THE AMOUNT OF THE CONTRACT DOES NOT EXCUSE THE CONTRACTOR FROM THE CONSEQUENCES OF THE LIQUIDATED DAMAGE PROVISION OF THE CONTRACT. (SEE 11 COMP. GEN. 384.)

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 8, 1932:

RUDOLPH AND WEST CO. APPLIED NOVEMBER 10, 1931, FOR REVIEW OF SETTLEMENT OF SEPTEMBER 30, 1931, BY WHICH WAS DISALLOWED ITS CLAIM FOR $142.93, THE CONTRACT PRICE FOR CERTAIN HARDWARE SUPPLIES DELIVERED TO THE MISSISSIPPI RIVER COMMISSION EXPERIMENTAL STATION AT VICKSBURG, MISS., ON NOVEMBER 18, 1930, UNDER ITS WAR DEPARTMENT CONTRACT NO. W-1106-ENG-UNNUMBERED, DATED SEPTEMBER 25, 1930, SUCH AMOUNT HAVING BEEN RETAINED AND APPLIED IN PARTIAL LIQUIDATION OF THE $210 LIQUIDATED DAMAGES FOUND TO HAVE ACCRUED ON ACCOUNT OF 42 CALENDAR DAYS OF UNEXCUSED DELAY IN COMPLETING PERFORMANCE OF THE CONTRACT.

UNDER THE TERMS OF THE CONTRACT, CONSISTING OF CLAIMANT'S BID DATED SEPTEMBER 20, 1930, AND THE ACCEPTANCE THEREOF DATED SEPTEMBER 25, 1930, TOGETHER WITH THE CONDITIONS AND SPECIFICATIONS THERETO ATTACHED, THE CONTRACTOR AGREED FOR AND IN CONSIDERATION OF THE PAYMENT OF THE CONTRACT PRICES THEREFOR, AS STIPULATED IN ITS BID, AMOUNTING IN THE AGGREGATE TO $142.93, TO DELIVER THE SEVERAL ITEMS OF SPECIFIED HARDWARE SUPPLIES TO THE MISSISSIPPI RIVER COMMISSION, WATERWAYS EXPERIMENTAL STATION BUILDING AT VICKSBURG, MISS., ALL CHARGES PREPAID; THAT SHIPMENT OF SUCH SUPPLIES FROM THE CONTRACTOR'S PLANT WOULD BE MADE WITHIN 10 CALENDAR DAYS AFTER RECEIPT OF THE GOVERNMENT'S ORDER THEREFOR; AND THAT IN CASE OF FAILURE ON THE PART OF THE CONTRACTOR TO MAKE THE SHIPMENT THEREOF WITHIN THE CONTRACT TIME, IT SHOULD PAY TO THE GOVERNMENT AS LIQUIDATED DAMAGES THE SUM OF $5 FOR EACH CALENDAR DAY OF DELAY UNTIL SHIPMENT WAS MADE.

IT APPEARS THAT THE GOVERNMENT'S ORDER FOR SAID HARDWARE SUPPLIES, NO. 106243 AND DATED SEPTEMBER 25, 1930, WAS RECEIVED BY THE CONTRACTOR ON SEPTEMBER 27, 1930. THEREFORE, UNDER THE TERMS OF THE CONTRACT, SHIPMENT OF ALL OF THE SUPPLIES INCLUDED THEREIN SHOULD HAVE BEEN MADE FROM CONTRACTOR'S PLANT ON OR BEFORE OCTOBER 7, 1930. IT APPEARS, HOWEVER, THAT A PART OF SAID HARDWARE SUPPLIES WAS SHIPPED ON NOVEMBER 10, 1930, AND THE REMAINDER THEREOF WAS SHIPPED ON NOVEMBER 18, 1930. THUS, THERE APPEARS TO HAVE BEEN A DELAY OF 42 CALENDAR DAYS BEYOND THE CONTRACT PERIOD IN COMPLETING SHIPMENT OF ALL OF THE SUPPLIES INCLUDED IN THE CONTRACT.

THE CONTRACTOR CONTENDS THAT THE DELAY RESULTED FROM A MISPLACEMENT OR MISLAYING OF THE GOVERNMENT'S NOTICE OF AWARD AND ORDER FOR THE SUPPLIES DATED SEPTEMBER 25, 1930, AFTER SAME HAD BEEN RECEIVED, ON ACCOUNT OF THE CONFUSION FOLLOWING A LARGE FIRE IN JUNE, 1930, AT ITS PLACE OF BUSINESS IN WASHINGTON, D.C., BY WHICH SOME OF ITS MERCHANDISE WAS TOTALLY DESTROYED AND ITS RECORDS, INVOICES, CATALOGUES, AND OTHER PAPERS WERE WATER-SOAKED, AND THAT SOME OF THE PAPERS BECAME MISLAID AND WERE NOT DISCOVERED UNTIL THE SEPARATING AND DRYING PROCESS WAS COMPLETED. THE CONTRACTOR CLAIMS THAT THE DELAY WAS UNAVOIDABLE AND DUE TO CONDITIONS FOR WHICH IT WAS NOT RESPONSIBLE, AND IT HAS REQUESTED REMISSION OF THE LIQUIDATED DAMAGES CHARGED AGAINST IT ON ACCOUNT OF SUCH DELAY.

THE FACTS WITH REFERENCE TO THE CLAIM ARE SET FORTH IN THE REPORT OF MAJ. JOHN C. H. LEE, CORPS OF ENGINEERS, TO THE CHIEF OF ENGINEERS, UNITED STATES ARMY, DATED APRIL 20, 1931, TO BE AS FOLLOWS:

2. THE CONTRACT TERMS REQUIRED THE FURNISHING OF ONE LOT OF BUILDER'S HARDWARE, F.O.B. VICKSBURG, MISSISSIPPI, FOR THE SUM OF $142.93, SHIPMENT TO BE MADE WITHIN 10 CALENDAR DAYS AFTER THE DATE OF RECEIPT OF NOTICE TO PROCEED, AND PROVIDED FOR THE PAYMENT OF LIQUIDATED DAMAGES AT THE RATE OF $5.00 FOR EACH CALENDAR DAY OF DELAY UNTIL SHIPMENT WAS MADE.

3. INVITATIONS FOR BIDS FOR THIS MATERIAL WERE ISSUED ON SEPTEMBER 15, 1930, AND BIDS WERE OPENED ON SEPTEMBER 24, 1930. ORDER NO. 106243, DATED SEPTEMBER 25, 1930, WAS SENT TO THE CONTRACTOR ON THAT DATE AND RECEIVED ON SEPTEMBER 27, 1930, THUS ESTABLISHING THE FINAL DATE FOR SHIPMENT AS OCTOBER 7, 1930.

4. COMPLETE SHIPMENT WAS NOT MADE UNTIL NOVEMBER 18, 1930, 42 CALENDAR DAYS AFTER OCTOBER 7, 1930, THE DATE FIXED FOR COMPLETION, AND LIQUIDATED DAMAGES COVERING 42 DAYS' DELAY AT $5.00 PER CALENDAR DAY, TOTALING $210.00, WERE CHARGED TO THE CONTRACTOR.

5. AS STATED IN PARAGRAPH 2 ABOVE, THE TOTAL AMOUNT COVERED BY THE CONTRACT IN QUESTION WAS $142.93. IN ADDITION TO THIS AMOUNT, THE CONTRACTOR WAS ALSO DUE AN AMOUNT OF $14.07 COVERING SUPPLIES PURCHASED UNDER ORDER 106377 DATED OCTOBER 31, 1930, MAKING A TOTAL AMOUNT OF $157.00 DUE THE CONTRACTOR. THE CONTRACTOR WAS REQUESTED BY LETTER DATED DECEMBER 29, 1930, TO FORWARD TO THIS OFFICE HIS CHECK IN THE AMOUNT OF $53.00 TO COVER THE DIFFERENCE BETWEEN THE AMOUNT OF LIQUIDATED DAMAGES WHICH HAD ACCRUED, AND THE AMOUNT OF THE 2 PURCHASES. AS A RESULT OF THIS REQUEST THE CONTRACTOR WROTE THIS OFFICE ON JANUARY 5, 1931, TO THE EFFECT THAT THE DELAY IN MAKING SHIPMENT WAS DUE PRIMARILY TO HIS BUILDING AT 1332 NEW YORK AVENUE NW., WASHINGTON, D.C., BEING TOTALLY DESTROYED BY FIRE DURING THE LATTER PART OF JUNE, 1930; THAT, AS A RESULT OF THE FIRE, THE CONDUCT OF HIS BUSINESS HAD BEEN INTERFERED WITH SINCE THE DATE THE FIRE OCCURRED. IT WILL BE NOTED THAT THE CONTRACTOR STATED THAT THE FIRE OCCURRED IN JUNE, 1930. HIS BID WAS SUBMITTED ON SEPT. 20, 1930, OR MORE THAN 3 MONTHS AFTER THE DATE THE FIRE OCCURRED.

6. ON NOVEMBER 4, 1930, THE CONTRACTOR WAS ADVISED BY TELEGRAM THAT SHIPMENT OF THE MATERIAL COVERED BY THE CONTRACT IN QUESTION HAD NOT BEEN RECEIVED AND HE WAS REQUESTED TO ADVISE SHIPPING DATE. THE CONTRACTOR REPLIED BY LETTER DATED NOVEMBER 5, 1930, IN WHICH HE STATED HE HAD TAKEN THE MATTER UP WITH YALE AND TOWNE MANUFACTURING COMPANY REGARDING SHIPPING DATE OF SOME OF THE MATERIAL. ANOTHER TELEGRAM WAS SENT TO THE CONTRACTOR UNDER DATE OF NOVEMBER 8, 1930, REQUESTING IMMEDIATE SHIPMENT OF PARTS ALREADY ASSEMBLED. THE CONTRACTOR WAS ADVISED IN THE TELEGRAM THAT THE MATERIAL WAS URGENTLY NEEDED. ON NOVEMBER 8, 1930, THE CONTRACTOR REPLIED TO THE EFFECT THAT HE WAS MAKING SHIPMENT OF A PART OF THE MATERIAL. NOVEMBER 14, 1930, ANOTHER TELEGRAM WAS SENT TO THE CONTRACTOR ADVISING HIM THAT THE SHIPMENT PROMISED ON NOVEMBER 8 HAD NOT BEEN RECEIVED. THE SAME DATE THE CONTRACTOR ADVISED THAT THE SHIPMENT HAD BEEN MADE VIA SOUTHERN RAILWAY. COPIES OF THE TELEGRAMS AND LETTERS REFERRED TO ABOVE ARE INCLOSED. IT WILL BE NOTED THAT NO REFERENCE WAS MADE BY THE CONTRACTOR TO THE FIRE, WHICH HE STATES INTERFERED WITH THE CONDUCT OF HIS BUSINESS, IN ANY OF THE TELEGRAMS OR CORRESPONDENCE REFERRED TO ABOVE, NOR DID HE GIVE ANY REASON FOR THE DELAY IN MAKING SHIPMENT OTHER THAN HIS INABILITY TO OBTAIN SHIPMENT FROM THE MANUFACTURER OF THE MATERIALS, UNTIL AFTER THE LIQUIDATED DAMAGES HAD BEEN ASSESSED.

7. IN VIEW OF THE CIRCUMSTANCES IN THIS CASE, IT IS NOT CONSIDERED THAT THE CLAIM FOR REMISSION BASED UPON THE FIRE REFERRED TO BY THE CONTRACTOR IS WELL FOUNDED, AND IT IS THEREFORE RECOMMENDED THAT HIS CLAIM BE DISALLOWED. * * *

GENERALLY, WHERE A PERSON BY HIS CONTRACT CHARGES HIMSELF WITH AN OBLIGATION POSSIBLE TO BE PERFORMED, HE MUST PERFORM IT UNLESS ITS PERFORMANCE IS RENDERED IMPOSSIBLE BY THE ACT OF GOD, BY THE LAW, OR BY THE OTHER PARTY. UNFORESEEN DIFFICULTIES OR UNAVOIDABLE EVENTS, HOWEVER GREAT, WILL NOT EXCUSE PERFORMANCE, UNLESS PROVIDED FOR IN THE CONTRACT. WHERE THE PARTIES HAVE MADE NO PROVISION FOR A DISPENSATION, THE TERMS OF THE CONTRACT MUST PREVAIL. IN THIS CONNECTION SEE UNITED STATES V. GLEASON, 175 U.S. 588, 603; CARNEGIE STEEL CO. V. UNITED STATES, 240 U.S. 156, 164; COLUMBUS RAILWAY POWER AND LIGHT COMPANY V. CITY OF COLUMBUS, 249 U.S. 399, 412; AND 13 CORPUS JURIS, 635.

IN THE INSTANT CASE, THE CONTRACT MADE NO PROVISION FOR EXCUSING THE CONTRACTOR FOR DELAYS IN PERFORMANCE FOR ANY CAUSES. THEREFORE, THE QUESTION PRESENTED HERE IS WHETHER PERFORMANCE WAS RENDERED IMPOSSIBLE FOR THE PERIOD OF DELAY, OR ANY PART THEREOF, BY THE ACTS OF GOD, BY THE LAW, OR BY THE GOVERNMENT. NONE OF THE DELAY IS SHOWN OR EVEN ALLEGED TO HAVE BEEN CAUSED BY EITHER THE GOVERNMENT OR BY THE LAW. THE ENTIRE DELAY APPEARS TO HAVE BEEN CAUSED BY THE MISPLACEMENT OR MISLAYING OF THE GOVERNMENT'S NOTICE OF AWARD AND ORDER FOR THE SUPPLIES, AFTER SAME HAD BEEN RECEIVED, EITHER THROUGH THE CARELESSNESS OF THE EMPLOYEES OF THE CONTRACTOR OR AS A RESULT OF THE CONFUSION FOLLOWING THE FIRE AT THE CONTRACTOR'S PLACE OF BUSINESS IN WASHINGTON, D.C., IN JUNE, 1930, SOME THREE MONTHS PRIOR TO THE DATE OF THE CLAIMANT'S BID FOR SUCH SUPPLIES. OBVIOUSLY, SUCH CAUSE OF DELAY DID NOT RESULT FROM AN ACT OF GOD.

THE EVIDENCE IN THIS CASE DOES NOT SHOW THAT ANY OF THE DELAYS IN COMPLETING PERFORMANCE WERE DUE TO CAUSES EXCUSABLE UNDER THE TERMS OF THE CONTRACT.

WITH REFERENCE TO THE CLAIMANT'S CONTENTION THAT THE DAMAGE PROVISION OF THE INVOLVED CONTRACT SHOULD BE CONSTRUED AS A PENALTY AND NOT AS LIQUIDATED DAMAGES, THERE WOULD APPEAR TO BE NO MERIT IN SUCH CONTENTION IN VIEW OF THE EXPRESS PROVISION OF THE CONTRACT. SAID DAMAGE CLAUSE OF THE SPECIFICATIONS PROVIDED:

4. SHIPMENT.---SHIPMENT OF THE HARDWARE SHALL BE MADE FROM THE CONTRACTOR'S PLANT WITHIN 10 CALENDAR DAYS AFTER DATE OF RECEIPT OF ORDER, CONSIGNMENT TO BE MADE TO FOREMAN IN CHARGE, U.S.M.R.C., WATERWAYS EXPERIMENTAL STATION BUILDING, VICKSBURG, MISS.

IN CASE OF FAILURE ON THE PART OF THE CONTRACTOR TO MAKE SHIPMENT WITHIN THE TIME THUS DETERMINED AND AGREED UPON, THE CONTRACTOR SHALL PAY THE GOVERNMENT, AS LIQUIDATED DAMAGES, THE SUM OF $5.00 FOR EACH CALENDAR DAY OF DELAY UNTIL SHIPMENT IS MADE.

IN THIS CONNECTION IT MAY BE STATED THAT THE COURTS HAVE HELD THAT IT IS COMPETENT FOR THE PARTIES IN CONTRACTING FOR GOVERNMENT WORK OR SUPPLIES TO LIQUIDATE THE DAMAGE IN ADVANCE, AND THAT A CONTRACTOR MAY NOT ESCAPE PAYMENT THEREOF ON ANY ALLEGED GROUND THAT THE SAME CONSTITUTED A PENALTY; AND THAT THE NAMING OF A STIPULATED SUM TO BE PAID FOR NONPERFORMANCE OF A COVENANT IS CONCLUSIVE UPON THE PARTIES IN THE ABSENCE OF FRAUD OR MUTUAL MISTAKE, NEITHER OF WHICH IS SHOWN OR EVEN ALLEGED IN THE INSTANT CASE. SEE SUN PRINTING AND PUBLISHING ASSOCIATION V. MOORE, 183 U.S. 642. SAID DECISION (PAGE 673) IS QUOTED AN OPINION DELIVERED BY JUDGE WRIGHT, IN CLEMENT V. CASH, 21 N.Y. 253, 257, AS FOLLOWS:

WHEN THE PARTIES TO A CONTRACT, IN WHICH THE DAMAGES TO BE ASCERTAINED, GROWING OUT OF A BREACH, ARE UNCERTAIN IN AMOUNT, MUTUALLY AGREE THAT A CERTAIN SUM SHALL BE THE DAMAGES, IN CASE OF A FAILURE TO PERFORM, AND IN LANGUAGE PLAINLY EXPRESSIVE OF SUCH AGREEMENT, I KNOW OF NO SOUND PRINCIPLE OR RULE APPLICABLE TO THE CONSTRUCTION OF CONTRACTS, THAT WILL ENABLE A COURT OF LAW TO SAY THAT THEY INTENDED SOMETHING ELSE. WHERE THE SUM FIXED IS GREATLY DISPROPORTIONATE TO THE PRESUMED ACTUAL DAMAGES, PROBABLY A COURT OF EQUITY MAY RELIEVE; BUT A COURT OF LAW HAS NO RIGHT TO ERRONEOUSLY CONSTRUE THE INTENTION OF THE PARTIES, WHEN CLEARLY EXPRESSED, IN THE ENDEAVOR TO MAKE BETTER CONTRACTS FOR THEM THAN THEY HAVE MADE FOR THEMSELVES. IN THESE, AS IN ALL OTHER CASES, THE COURTS ARE BOUND TO ASCERTAIN AND CARRY INTO EFFECT THE TRUE INTENT OF THE PARTIES. I AM NOT DISPOSED TO DENY THAT A CASE MAY ARISE IN WHICH IT IS DOUBTFUL, FROM THE LANGUAGE EMPLOYED IN THE INSTRUMENT, WHETHER THE PARTIES MEANT TO AGREE UPON THE MEASURE OF COMPENSATION TO THE INJURED PARTY IN CASE OF A BREACH. IN SUCH CASES, THERE WOULD BE ROOM FOR CONSTRUCTION; BUT CERTAINLY NONE WHERE THE MEANING OF THE PARTIES WAS EVIDENT AND UNMISTAKABLE. WHEN THEY DECLARE, IN DISTINCT AND UNEQUIVOCAL TERMS, THAT THEY HAVE SETTLED AND ASCERTAINED THE DAMAGES TO BE $500.00, OR ANY OTHER SUM, TO BE PAID BY EITHER PARTY FAILING TO PERFORM, IT SEEMS ABSURD FOR A COURT TO TELL THEM THAT IT HAS LOOKED INTO THE CONTRACT AND REACHED THE CONCLUSION THAT NO SUCH THING WAS INTENDED; BUT THAT THE INTENTION WAS TO NAME THE SUM AS A PENALTY TO COVER ANY DAMAGES THAT MIGHT BE PROVED TO HAVE BEEN SUSTAINED BY A BREACH OF THE AGREEMENT.

WITH REFERENCE TO THE CLAIMANT'S CONTENTION THAT THE DAMAGES ASSESSED ARE EXORBITANT AND UNCONSCIONABLE AND OUT OF ALL PROPORTION TO ANY ACTUAL DAMAGES THAT MIGHT BE REASONABLY CONTEMPLATED IN THE MAKING OF SUCH CONTRACT, THERE WOULD SEEM TO BE NO BASIS FOR SUCH CONTENTION. THE CONTRACT PRICE FOR THE HARDWARE FURNISHED AMOUNTED TO $142.93, AND THE LIQUIDATED DAMAGES FIXED BY THE CONTRACT WERE $5 PER DAY FOR EACH CALENDAR DAY OF DELAY IN COMPLETING PERFORMANCE OF THE CONTRACT BEYOND THE 10-DAY PERIOD SPECIFIED. THE FACT THAT THE CONTRACTOR PROLONGED THE DELAY IN PERFORMANCE TO SUCH AN EXTENT THAT THE TOTAL AMOUNT OF ACCRUED LIQUIDATED DAMAGES IS IN EXCESS OF THE AMOUNT OF THE CONTRACT DOES NOT EXCUSE THE CONTRACTOR FROM THE CONSEQUENCE OF THE LIQUIDATED DAMAGE PROVISION OF THE CONTRACT. IF THE DELAY IN THE CASE HAD BEEN FOR A PERIOD OF ONLY A FEW DAYS, I ASSUME THE RIGHT TO DEDUCT LIQUIDATED DAMAGES THEREFOR WOULD NOT SERIOUSLY BE QUESTIONED. THE CONTRACT WAS FOR LOCKS, LATCHES, AND OTHER SASH AND DOOR HARDWARE FOR USE IN A BUILDING UNDER CONSTRUCTION, AND THE REQUEST FOR BIDS SPECIFICALLY STATED THAT AWARD WOULD BE MADE AS A WHOLE AND THAT SHIPMENT MUST BE MADE WITHIN 10 CALENDAR DAYS AFTER DATE OF RECEIPT OF NOTICE TO PROCEED. IT MAY BE STATED, IN THIS CONNECTION, THAT A LOWER BID WAS REJECTED BECAUSE THE BIDDER REQUIRED A LONGER TIME THAN 10 DAYS FOR THE SHIPMENT OF SOME OF THE ITEMS. CLEARLY, THE DAMAGES THAT MIGHT BE PRESUMED TO RESULT FROM DELAY UNDER SUCH A CONTRACT ARE UNCERTAIN IN AMOUNT AND REASONABLY COULD BE ESTIMATED AT $5 A DAY, OR EVEN MORE, WITHOUT REFERENCE TO THE CONTRACT PRICE OF SUCH HARDWARE. THERE WAS NOTHING UNREASONABLE OR UNCONSCIONABLE ABOUT THE LIQUIDATED DAMAGE PROVISION OF THIS CONTRACT AT THE TIME IT WAS AGREE UPON, NOR DID THE FACT THAT THE CONTRACTOR PROLONGED THE DELAY LESSEN IN ANY WAY THE RATE OF THE DAMAGES BEING SUSTAINED BY THE GOVERNMENT.

THE TERMS OF THE CONTRACT IN INSTANT MATTER ARE PLAIN AND UNAMBIGUOUS AND CLEARLY SHOW THE INTENT OF THE PARTIES TO BE THAT IN CASE THE CONTRACTOR FAILED TO COMPLETE SHIPMENT OF THE HARDWARE SUPPLIES INCLUDED THEREIN WITHIN THE CONTRACT PERIOD OF 10 DAYS IT WAS TO PAY THE GOVERNMENT, AS LIQUIDATED DAMAGES, THE SUM OF $5 FOR EACH CALENDAR DAY OF SUCH DELAY.

THE EVIDENCE SHOWS THAT THERE WERE 42 CALENDAR DAYS OF UNEXCUSED DELAY IN PERFORMANCE OF THE CONTRACT. THEREFORE, UNDER THE TERMS OF THE CONTRACT, LIQUIDATED DAMAGES ACCRUED TO THE GOVERNMENT AT $5 PER DAY FOR EACH OF THE 42 CALENDAR DAYS OF DELAY, AMOUNTING TO $210.

IN VIEW OF THE FACTS AND THE TERMS OF THE CONTRACT AS HEREINABOVE SHOWN, THERE IS NO AUTHORITY TO REMIT ANY PART OF THE LIQUIDATED DAMAGES ACCRUED TO THE GOVERNMENT ON ACCOUNT OF CONTRACTOR'S DELAY IN PERFORMANCE OF ITS SAID CONTRACT.

ACCORDINGLY, UPON REVIEW, THE SETTLEMENT OF SEPTEMBER 30, 1931, MUST BE AND IS SUSTAINED.