B-134848, MAR. 4, 1958

B-134848: Mar 4, 1958

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TO THE BRAD HARRISON CO.: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 26. WAS AMENDED BY DELETING THEREFROM PARAGRAPH (F) AND ADDING THE FOLLOWING: "* * * THE CONTRACTOR SHALL NOT BE CHARGED WITH LIQUIDATED DAMAGES WHEN THE DELAY ARISES OUT OF CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR. THE RECORD SHOWS THAT YOU WERE DELINQUENT IN DELIVERY OF THE INVOLVED SUPPLIES AND YOU WERE ASSESSED LIQUIDATED DAMAGES. YOU REQUESTED AN EXTENSION OF TIME ALLEGING THAT THE DELAY IN DELIVERY WAS DUE IN PART TO THE LATE APPROVAL OF THE COMPOUND BY THE GOVERNMENT AND IN PART TO YOUR DIFFICULTY IN OBTAINING THE SOCKETS. STATES THAT ADDITIONAL REQUESTS FOR EXTENSION OF TIME WERE RECEIVED FROM YOU BUT THAT THE RECORD DOES NOT DISCLOSE ANY RESPONSE BY THE GOVERNMENT TO THESE REQUESTS NOR DOES IT DISCLOSE THAT YOU MADE ANY INQUIRY THEREAFTER ABOUT YOUR REQUESTS.

B-134848, MAR. 4, 1958

TO THE BRAD HARRISON CO.:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 26, 1957, REQUESTING REVIEW OF THE SETTLEMENT DATED NOVEMBER 29, 1957, WHICH DISALLOWED YOUR CLAIM FOR REMISSION OF LIQUIDATED DAMAGES ASSESSED ON ACCOUNT OF DELAYS IN THE DELIVERY OF EXTENSION CORDS AND ADAPTERS UNDER CONTRACTS NOS. DA-36-109- ENG-4593, DA-36-109-ENG-4682 AND DA-36-109-ENG-4736, DATED APRIL 29, MAY 27, AND JUNE 5, 1953, RESPECTIVELY.

UNDER THE TERMS OF THE CONTRACTS YOU AGREED TO FURNISH AND DELIVER CERTAIN QUANTITIES OF CORDS AND ADAPTERS FOR THE PRICES SPECIFIED IN THE CONTRACTS, DELIVERY TO BE MADE ON OR BEFORE THE DATES SPECIFIED IN THE SEVERAL CONTRACTS. EACH CONTRACT PROVIDED AS FOLLOWS:

"LIQUIDATED DAMAGES: IN CASE OF FAILURE ON THE PART OF THE CONTRACTOR TO MAKE DELIVERY OF THE ITEMS COVERED BY THIS CONTRACT WITHIN THE TIME FIXED IN THE CONTRACT OR ANY EXTENSIONS THEREOF, THE CONTRACTOR SHALL PAY THE GOVERNMENT LIQUIDATED DAMAGES AT THE RATE OF 1/10 OF 1 PERCENT PER CALENDAR DAY OF THE DOLLAR VALUE OF ITEMS NOT DELIVERED IN ACCORDANCE WITH CONTRACT SCHEDULE. FOR THE PURPOSE OF THIS PARAGRAPH ONLY, THE TERM "DELIVERY" SHALL MEAN DELIVERY TO CARRIER AT POINT OF ORIGIN.'

THE CLAUSE ENTITLED "11. DEFAULT" OF GENERAL PROVISIONS, STANDARD FORM NO. 32, NOVEMBER 1949, EDITION, MADE A PART OF EACH CONTRACT, WAS AMENDED BY DELETING THEREFROM PARAGRAPH (F) AND ADDING THE FOLLOWING:

"* * * THE CONTRACTOR SHALL NOT BE CHARGED WITH LIQUIDATED DAMAGES WHEN THE DELAY ARISES OUT OF CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR, AS DEFINED IN PARAGRAPH (B) ABOVE, AND IN SUCH EVENT, SUBJECT TO THE CLAUSE OF THIS CONTRACT ENTITLED SPUTES," THE CONTRACTING OFFICER SHALL ASCERTAIN THE FACTS AND EXTENT OF THE DELAY AND SHALL EXTEND THE TIME FOR PERFORMANCE WHEN IN HIS JUDGMENT AND FINDINGS OF FACT JUSTIFY AN EXTENSION.'

THE RECORD SHOWS THAT YOU WERE DELINQUENT IN DELIVERY OF THE INVOLVED SUPPLIES AND YOU WERE ASSESSED LIQUIDATED DAMAGES. THE RECORD FURTHER SHOWS THAT BEFORE THE TIME STIPULATED FOR DELIVERY OF THE FINAL INSTALLMENT UNDER EACH CONTRACT, OR BY LETTER OF SEPTEMBER 12, 1953, YOU REQUESTED AN EXTENSION OF TIME ALLEGING THAT THE DELAY IN DELIVERY WAS DUE IN PART TO THE LATE APPROVAL OF THE COMPOUND BY THE GOVERNMENT AND IN PART TO YOUR DIFFICULTY IN OBTAINING THE SOCKETS. THE CONTRACTING OFFICER, IN HIS REPORT OF JUNE 27, 1956, STATES THAT ADDITIONAL REQUESTS FOR EXTENSION OF TIME WERE RECEIVED FROM YOU BUT THAT THE RECORD DOES NOT DISCLOSE ANY RESPONSE BY THE GOVERNMENT TO THESE REQUESTS NOR DOES IT DISCLOSE THAT YOU MADE ANY INQUIRY THEREAFTER ABOUT YOUR REQUESTS.

AS TO THE MERITS OF YOUR CLAIM GENERALLY, THE CONTRACTING OFFICER IN HIS REPORT STATES THAT YOU HAD DIFFICULTY IN SECURING THE SOCKETS AND THAT YOU PRESSED YOUR SUPPLIER TO EXPEDITE DELIVERY AFTER A FIRM ORDER WAS PLACED. HE POINTED OUT THAT WHILE YOU STATED IN YOUR LETTER OF SEPTEMBER 12, 1953, THAT YOU ANTICIPATED TROUBLE IN THE PROCUREMENT OF THE SOCKETS, WHICH WAS AN IMPORTANT COMPONENT AT THE TIME OF THE SUBMISSION OF YOUR BID, YOU FAILED TO PLACE YOUR FIRM ORDER FOR SUCH COMPONENTS UNTIL FOUR MONTHS AFTER THE SUBMISSION OF YOUR BID.

WITH REGARD TO YOUR STATEMENT THAT BRYANT ELECTRIC COMPANY WAS THE ONLY MANUFACTURER OF SOCKETS MEETING SPECIFICATION REQUIREMENTS, THE SUCCESSOR CONTRACTING OFFICER HAS STATED IN HIS REPORT OF DECEMBER 3, 1956, THAT HE IS UNABLE TO AFFIRM OR DENY THIS ALLEGATION, BUT HE STATES THAT THE SOCKET SPECIFICATIONS WERE NOT RESTRICTIVE AND THE SOCKETS COULD HAVE BEEN PRODUCED BY ANY COMPETENT MANUFACTURER OF ELECTRICAL FITTINGS.

WITH REGARD TO YOUR CONTENTION THAT A PART OF THE DELAY WAS DUE TO THE LATE APPROVAL OF COMPOUND, THE CONTRACTING OFFICER HAS STATED THAT THE DELAY IN APPROVAL OF COMPOUND DID NOT AFFECT PRODUCTION BECAUSE YOU STARTED PRODUCTION IMMEDIATELY UPON THE RECEIPT OF THE SOCKETS AND THE THREE WEEK LEAD TIME REQUIRED WENT BEYOND THE DATE OF OCTOBER 13, 1953, WHEN YOU RECEIVED APPROVAL OF COMPOUND, AND THAT SHIPMENT OF THE UNITS WAS NOT DELAYED FOR LACK OF APPROVAL. IT APPEARS THAT YOU MERELY EXPERIENCED SUCH DIFFICULTIES IN OBTAINING SOCKETS AS REASONABLY MIGHT HAVE BEEN EXPECTED DUE TO THE NATURE OF THE UNITS TO BE MANUFACTURED. THE FACT THAT THIS MADE THE PERFORMANCE OF THE CONTRACT AND DELIVERY OF THE ITEM MORE BURDENSOME OR LESS PROFITABLE THAN EXPECTED IS NOT SUFFICIENT TO ENTITLE YOU TO A REMISSION OF THE LIQUIDATED DAMAGES SINCE VALID CONTRACTS ARE TO BE ENFORCED AND PERFORMED AS WRITTEN. SEE COLUMBUS RY. POWER AND LIGHT COMPANY, 249 U.S. 399; BLAUNER CONSTRUCTION COMPANY V. UNITED STATES, 94 C.CLS. 503, 511; SATTERLEE, DMX., ET AL. V. UNITED STATES, 30 C.CLS. 31. IN THE CASE OF DAY V. UNITED STATES, 245 U.S. 159, THE COURT SAID:

"ONE WHO MAKES A CONTRACT NEVER CAN BE ABSOLUTELY CERTAIN THAT HE WILL BE ABLE TO PERFORM IT WHEN THE TIME COMES, AND THE VERY ESSENCE OF IT IS THAT HE TAKES THE RISK WITHIN THE LIMITS OF HIS ..END :