B-124301, NOV. 17, 1955

B-124301: Nov 17, 1955

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TO ACOMAL ATELIERS DE CONSTRUCTION DE MALINES: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 28. THE RECORD SHOWS THAT YOU EXHAUSTED THE LEGAL REMEDIES PROVIDED IN THE CONTRACT AND THAT YOUR CLAIM IS FOR RELIEF ON AN EQUITABLE BASIS. THE AUTHORITY OF THE COMPTROLLER GENERAL OF THE UNITED STATES TO GRANT EQUITABLE RELIEF UNDER CIRCUMSTANCES SUCH AS ARE INVOLVED IN YOUR CLAIM IS CONTAINED IN SECTION 6 OF THE ARMED SERVICES PROCUREMENT ACT OF 1947. WHICH IS AS FOLLOWS: "SEC. 6. THE COMPTROLLER GENERAL ON THE RECOMMENDATION OF THE AGENCY HEAD IS AUTHORIZED AND EMPOWERED TO REMIT THE WHOLE OR ANY PART OF SUCH DAMAGES AS IN HIS DISCRETION MAY BE JUST AND EQUITABLE.'. YOUR CLAIM WAS FORWARDED TO THE SECRETARY OF THE ARMY FOR CONSIDERATION IN THE LIGHT OF THE SAID STATUTE.

B-124301, NOV. 17, 1955

TO ACOMAL ATELIERS DE CONSTRUCTION DE MALINES:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 28, 1955, REQUESTING OUR OFFICE TO AUTHORIZE REMISSION OF LIQUIDATED DAMAGES IN THE AMOUNT OF $46,877.20 ASSESSED AND WITHHELD ON ACCOUNT OF UNEXCUSED DELAYS IN CONNECTION WITH PERFORMANCE UNDER CONTRACT NO. DA-91-557-EUC 328-54, DATED MAY 6, 1954.

AS STATED IN OUR LETTER OF AUGUST 8, 1955, THE RECORD SHOWS THAT YOU EXHAUSTED THE LEGAL REMEDIES PROVIDED IN THE CONTRACT AND THAT YOUR CLAIM IS FOR RELIEF ON AN EQUITABLE BASIS. THE AUTHORITY OF THE COMPTROLLER GENERAL OF THE UNITED STATES TO GRANT EQUITABLE RELIEF UNDER CIRCUMSTANCES SUCH AS ARE INVOLVED IN YOUR CLAIM IS CONTAINED IN SECTION 6 OF THE ARMED SERVICES PROCUREMENT ACT OF 1947, 62 STAT. 24, WHICH IS AS FOLLOWS:

"SEC. 6. WHENEVER ANY CONTRACT MADE ON BEHALF OF THE GOVERNMENT BY THE AGENCY HEAD OR BY OFFICERS AUTHORIZED BY HIM SO TO DO INCLUDES A PROVISION FOR LIQUIDATED DAMAGES FOR DELAY, THE COMPTROLLER GENERAL ON THE RECOMMENDATION OF THE AGENCY HEAD IS AUTHORIZED AND EMPOWERED TO REMIT THE WHOLE OR ANY PART OF SUCH DAMAGES AS IN HIS DISCRETION MAY BE JUST AND EQUITABLE.'

IN VIEW OF THE EXPRESS LANGUAGE OF THE ABOVE-QUOTED STATUTE WHICH AUTHORIZES THE REMISSION OF LIQUIDATED DAMAGES BY THE COMPTROLLER GENERAL OF THE UNITED STATES ONLY UPON THE RECOMMENDATION OF THE HEAD OF THE AGENCY CONCERNED, YOUR CLAIM WAS FORWARDED TO THE SECRETARY OF THE ARMY FOR CONSIDERATION IN THE LIGHT OF THE SAID STATUTE. IN REPLY DATED NOVEMBER 9, 1955, THE ASSISTANT SECRETARY OF THE ARMY, AFTER REVIEWING THE MATTER, ADVISED US AS FOLLOWS:

"* * * I FIND NO SOUND BASIS FOR RECOMMENDING RELIEF FROM THE ASSESSMENT AND WITHHOLDING OF LIQUIDATED DAMAGES AS MADE UNDER CONTRACT NO. DA-91-557 -EUC-328-54.'

ACCORDINGLY, THERE IS NO AUTHORITY FOR THE ALLOWANCE OF YOUR CLAIM.