B-125270, DEC. 16, 1955

B-125270: Dec 16, 1955

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SINCE YOU HAVE NOT COMMUNICATED WITH OUR OFFICE IN THE MEANTIME THE CLAIM HAS BEEN REVIEWED ON THE BASIS OF THE EVIDENCE OF RECORD. IT APPEARS THAT THERE IS NO PROPER BASIS FOR THE ALLOWANCE OF ANY FURTHER SUM FOR THE REASONS HEREINAFTER STATED. WAS SCHEDULED FOR APPROXIMATELY AUGUST 31. THE DATE OF PROMISED DELIVERY WAS SUBJECT TO THE CONDITION "IF MATERIAL IS RECEIVED AT LONG ISLAND CITY 14 CALENDAR DAYS PRIOR TO REQUIRED SHIPPING DATE.'. THE PROMISED DELIVERY DATE WAS EXTENDED FROM 14 TO 21 CALENDAR DAYS. THE ADMINISTRATIVE REPORTS DISCLOSE THAT THE GOVERNMENT MATERIAL WAS RECEIVED BY YOU ON SEPTEMBER 24. THAT THE DELIVERY OF THE COATED MATERIAL WAS RECEIVED BY THE GOVERNMENT ON OCTOBER 19.

B-125270, DEC. 16, 1955

TO MADISON MUFFLER COMPANY:

OUR LETTER OF SEPTEMBER 22, 1955, INFORMED YOU THAT A PERSONAL INTERVIEW WOULD BE ACCORDED YOU IN CONNECTION WITH YOUR REQUEST FOR REVIEW OF THAT PORTION OF CERTIFICATE NO. 2263118, DATED JULY 12, 1955, WHICH DISALLOWED $120 OF YOUR CLAIM FOR $240 IN CONNECTION WITH UNITED STATES COAST GUARD PURCHASE ORDER NO. 05002/BM51/0186A, DATED JULY 21, 1954. SINCE YOU HAVE NOT COMMUNICATED WITH OUR OFFICE IN THE MEANTIME THE CLAIM HAS BEEN REVIEWED ON THE BASIS OF THE EVIDENCE OF RECORD, AND IT APPEARS THAT THERE IS NO PROPER BASIS FOR THE ALLOWANCE OF ANY FURTHER SUM FOR THE REASONS HEREINAFTER STATED.

UNDER THE SUBJECT CONTRACT YOU AGREED TO COMPLETE CERTAIN CERAMIC COATING OF SIX SETS OF STEEL EXHAUST PIPES, FURNISHED BY THE GOVERNMENT, FOR A CONSIDERATION OF $366. DELIVERY OF THE COATED ITEMS, BEING AN IMPORTANT FACTOR IN THE AWARD OF THE CONTRACT, WAS SCHEDULED FOR APPROXIMATELY AUGUST 31, 1954, WITH NOTICE THAT IN THE EVENT OF DELAY IN DELIVERY BEYOND THE DATE PROMISED LIQUIDATED DAMAGES WOULD BE ASSESSED FOR EACH CALENDAR DAY OF DELAY AT THE RATE OF $10 PER DAY, PER SET. THE DATE OF PROMISED DELIVERY WAS SUBJECT TO THE CONDITION "IF MATERIAL IS RECEIVED AT LONG ISLAND CITY 14 CALENDAR DAYS PRIOR TO REQUIRED SHIPPING DATE.' BY CHANGE ORDER DATED AUGUST 26, 1954, THE PROMISED DELIVERY DATE WAS EXTENDED FROM 14 TO 21 CALENDAR DAYS, WITH SIMILAR CHANGE EFFECTED IN THE LIQUIDATED DAMAGE PROVISIONS OF THE AGREEMENT.

THE ADMINISTRATIVE REPORTS DISCLOSE THAT THE GOVERNMENT MATERIAL WAS RECEIVED BY YOU ON SEPTEMBER 24, 1954, AND THAT THE DELIVERY OF THE COATED MATERIAL WAS RECEIVED BY THE GOVERNMENT ON OCTOBER 19, 1954, OR AFTER 25 DAYS, THUS REFLECTING A DELAY OF FOUR DAYS BEYOND THE SPECIFIED 21-DAY PERIOD. IN ACCOMPLISHING PAYMENT FOR THE CONTRACT DELIVERY, THE ADMINISTRATIVE OFFICE WITHHELD LIQUIDATED DAMAGES IN THE SUM OF $240 FOR THE FOUR DAYS OF DELAY. YOU CLAIM FOR REMISSION OF THIS SUM WAS ALLOWED IN THE AMOUNT OF $120.

YOU ALLEGE THAT THE DELAY IN DELIVERY WAS OCCASIONED BY A TRUCK STRIKE IN THE PLANTS OF THE CARRIERS USUALLY ENGAGED BY YOU AND THAT, WHILE THE COMPLETED WORK WAS READY FOR LOADING ON OCTOBER 15, THE STRIKE HAD SPREAD TO THE NEW YORK AREA ON THE SAME DATE. YOU STATE THAT FOLLOWING AN EXHAUSTIVE ATTEMPT TO SECURE TRANSPORTATION, YOU ULTIMATELY ELECTED TO COMPLETE THE CONTRACT DELIVERY IN ONE OF YOUR OWN TRUCKS. YOU CONTEND THAT THE DELAY CAUSED BY THE STRIKE IS THEREFORE ONE FOR WHICH YOU MAY BE EXCUSED UNDER THE TERMS OF THE GENERAL PROVISIONS OF STANDARD FORM 32, INCORPORATED BY REFERENCE IN THE SUBJECT CONTRACT.

ASIDE FROM ANY QUESTION OF APPLICATION OF THE ABOVE-CITED CONTRACT PROVISIONS FOR RELIEVING YOU OF RESPONSIBILITY FOR FAILURE TO COMPLETE THE DELIVERY ON THE PROMISED DATE, THE CONTRACTING OFFICER IN HIS LETTER TO YOU DATED NOVEMBER 29, 1954, MADE THE DETERMINATION THAT THE TRUCK STRIKE WAS NOT GENERAL IN SCOPE, THAT THE RETURN SHIPMENT COULD HAVE BEEN MADE BY THE CARRIER WHICH DELIVERED THE MATERIAL TO YOUR PLANT AND THAT NO EXTENSION OF TIME COULD BE ALLOWED FOR THE DELAY CAUSED BY AN ALLEGED STRIKE. FURTHER EVIDENCE THAT TIMELY DELIVERY OTHERWISE COULD HAVE BEEN ACCOMPLISHED IS ESTABLISHED BY THE FACT OF THE READINESS OF YOUR OWN TRUCK SERVICE, BY WHICH THE DELIVERY ACTUALLY WAS COMPLETED.

HOWEVER, IN THE REVIEW OF THE RECORDS, IT WAS CONCLUDED THAT IN ADDITION TO THE 21 CALENDAR DAYS GRANTED UNDER THE CHANGE ORDER YOU WERE ENTITLED TO TWO ADDITIONAL DAYS FOR RETURNING THE SHIPMENT TO THE GOVERNMENT. THE REFUND OF THE LIQUIDATED DAMAGES FOR THE TWO-DAY PERIOD IN THE AMOUNT OF $120 IS REFLECTED IN THE SETTLEMENT OF JULY 12, 1955, AND THE BALANCE OF YOUR CLAIM WAS PROPERLY DISALLOWED.