B-113751, MAR 3, 1953

B-113751: Mar 3, 1953

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PRECIS-UNAVAILABLE THE SECRETARY OF THE AIR FORCE: ENCLOSED HEREWITH IS A LETTER DATED JANUARY 5. THE DELIVERIES WERE CONSIDERABLY IN ARREARS. A COPY OF WHICH WAS FORWARDED TO THE CONTRACTOR ON THE SAME DATE. ADVISING THAT SUCH DECISION WAS FINAL. THERE WAS ALLOWED THE SUM OF $1. WAS DISALLOWED. WERE NOT FINAL. THE MATTER IS BEING RETURNED TO YOUR DEPARTMENT FOR APPROPRIATE ADMINISTRATIVE ACTION.

B-113751, MAR 3, 1953

PRECIS-UNAVAILABLE

THE SECRETARY OF THE AIR FORCE:

ENCLOSED HEREWITH IS A LETTER DATED JANUARY 5, 1953, FROM THE ADMINISTRATIVE CONTRACTING OFFICER, CHICAGO AIR REGIONAL OFFICE, CHICAGO, ILLINOIS, RELATIVE TO THE CLAIM OF THE AMPRO CORPORATION, 2835 N. WESTERN AVENUE, CHICAGO 18, ILLINOIS, FOR REMISSION OF LIQUIDATED DAMAGES WHICH ACCRUED TO THE GOVERNMENT UNDER ITS CONTRACT NO. AF 33(038)6502, DATED MAY 25, 1949.

THE RECORD INDICATES THAT UNDER THE CONTRACT THE AMPRO CORPORATION AGREED TO FURNISH TO THE GOVERNMENT A QUANTITY OF SOUND EQUIPMENT AND PARTS FOR SOUND EQUIPMENT FOR A TOTAL CONTRACT PRICE OF $8,184.76, A PORTION TO BE SHIPPED ON OR BEFORE JUNE 30, 1949, AND THE REMAINDER TO BE SHIPPED ON OR BEFORE SEPTEMBER 30, 1949. ARTICLES 5(A) AND 5(B) OF THE CONTRACT PROVIDED FOR THE ASSESSMENT OF LIQUIDATED DAMAGES AT THE RATE OF ONE-HALF OF ONE PERCENT PER CALENDAR DAY OF THE PRICE OF SUCH UNDELIVERED BALANCE OR BALANCES PER DAY, PROVIDED SUCH AMOUNT SHOULD NOT EXCEED $100 PER CALENDAR DAY; AND ALSO CONTAINED THE USUAL STANDARD STIPULATION THAT THE CONTRACTING OFFICER SHOULD ASCERTAIN THE FACTS AND EXTENT OF DELAY, WHICH FINDING OF FACT WOULD BE FINAL AND CONCLUSIVE SUBJECT ONLY TO APPEAL WITHIN 30 DAYS BY THE CONTRACTOR TO THE HEAD OF THE DEPARTMENT.

THE DELIVERIES WERE CONSIDERABLY IN ARREARS, AND ON JUNE 1, 1950, THE CONTRACTING OFFICER MADE A FINDING OF FACT AS TO EXCUSABLE DELAYS IN CONNECTION WITH THE CONTRACT PERFORMANCE, A COPY OF WHICH WAS FORWARDED TO THE CONTRACTOR ON THE SAME DATE, ADVISING THAT SUCH DECISION WAS FINAL, SUBJECT TO THE CONTRACTOR'S RIGHT TO APPEAL WITHIN 30 DAYS. SUBSEQUENTLY, INSTEAD OF APPEALING TO THE HEAD OF THE DEPARTMENT AS PROVIDED IN THE CONTRACT, THE CONTRACTOR APPEALED DIRECTLY TO THE CONTRACTING OFFICER AND THE LATTER AGREED TO RECONSIDER THE MATTER, BASED UPON EVIDENCE WHICH THE CONTRACTOR CONTENDED WOULD BE NEW AND MATERIAL. ACCORDINGLY, THE CONTRACTING OFFICER BY LETTER DATED JUNE 13, 1950, ADVISED THE COMMANDING GENERAL, AIR MATERIAL COMMAND, DAYTON, OHIO, OF HIS AGREEMENT TO RECONSIDER HIS FINDINGS, WHICH WOULD RESULT IN THE ESTABLISHMENT OF A NEW DATE FROM WHICH APPEAL MIGHT BE TAKEN; AND IN THE SAME LETTER HE RECOMMENDED THAT THE INTERESTS OF THE GOVERNMENT WOULD NOT BE JEOPARDIZED IF PAYMENT OF APPROXIMATELY $1,500 BE MADE TO THE CONTRACTOR, PENDING FINAL SETTLEMENT OF THE MATTER.

BY LETTER DATED DECEMBER 28, 1951, THE CONTRACTOR FILED CLAIM IN THIS OFFICE FOR THE SUM OF $8,173.96, REPRESENTING SPARE PARTS FOR MOTION PICTURE PROJECTORS DELIVERED TO THE AIR FORCE UNDER THE CONTRACT, AND (FILE SEDB-21 167 AMPRO CORPORATION), THERE WAS ALLOWED THE SUM OF $1,164.58, BUT THE BALANCE OF $7,009.38, REPRESENTING LIQUIDATED DAMAGES WHICH REPORTEDLY HAD ACCRUED TO THE GOVERNMENT, WAS DISALLOWED.

THE CONTRACTOR NOW PROTESTS THE ABOVE-MENTIONED SETTLEMENT ON THE PREMISE THAT THE FINDINGS OF JUNE 1, 1950, WERE NOT FINAL, IN VIEW OF THE ASSURANCE BY THE CONTRACTING OFFICER THAT THE CASE WOULD BE REOPENED AND CONSIDERED FURTHER ON THE BASIS OF NEW FACTS TO BE FURNISHED.

IN VIEW OF THE FOREGOING, AND SINCE THERE APPEARS TO BE SUBSTANCE IN THE CONTRACTOR'S CONTENTION THAT IT HAS BEEN DENIED THE RIGHT OF APPEAL TO THE HEAD OF THE DEPARTMENT ON ACCOUNT OF ITS FAILURE TO RECEIVE A FINAL FINDING OF FACT IN CONTEMPLATION OF THE CONTRACT PROVISIONS, THE MATTER IS BEING RETURNED TO YOUR DEPARTMENT FOR APPROPRIATE ADMINISTRATIVE ACTION.