B-144044, OCT. 4, 1960

B-144044: Oct 4, 1960

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TO BLACK LIGHT EASTERN CORPORATION: REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 19. THE COMPTROLLER GENERAL IS AUTHORIZED AND EMPOWERED TO REMIT THE WHOLE OR ANY PART OF ASSESSED LIQUIDATED DAMAGES AS HE MAY CONSIDER JUST AND EQUITABLE IF THE HEAD OF THE AGENCY WHICH ASSESSED THE DAMAGES FIRST RECOMMENDS SUCH REMISSION. IF YOU ARE OF THE OPINION THAT THE ASSESSMENT OF DAMAGES WAS NOT IN ACCORDANCE WITH. PARTICULAR FORM IS PRESCRIBED FOR FILING CLAIMS WITH THIS OFFICE. IT WOULD APPEAR THAT YOUR CLAIM MUST EITHER ESTABLISH THAT THE FACTUAL DETERMINATIONS BY THE AGENCY HEAD WERE ARBITRARY. WERE SUFFICIENT TO RELEASE YOUR COMPANY FROM ANY LEGAL OBLIGATION TO PAY LIQUIDATED DAMAGES UNDER THE TERMS OF THE CONTRACTS.

B-144044, OCT. 4, 1960

TO BLACK LIGHT EASTERN CORPORATION:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 19, 1960, ADVISING THAT YOUR APPEAL FROM THE ASSESSMENT OF LIQUIDATED DAMAGES UNDER CONTRACT NO. CCA-34576 HAS BEEN DISALLOWED BY THE CONTRACT APPEALS PANEL, FEDERAL AVIATION AGENCY, AND ASKING OUR ADVICE ON THE PROCEDURE TO BE FOLLOWED IN APPEALING TO THIS OFFICE FROM SUCH DISALLOWANCE.

UNDER THE PROVISIONS OF 41 U.S.C. 256A, THE COMPTROLLER GENERAL IS AUTHORIZED AND EMPOWERED TO REMIT THE WHOLE OR ANY PART OF ASSESSED LIQUIDATED DAMAGES AS HE MAY CONSIDER JUST AND EQUITABLE IF THE HEAD OF THE AGENCY WHICH ASSESSED THE DAMAGES FIRST RECOMMENDS SUCH REMISSION. VIEW OF YOUR STATEMENT THAT YOU CONSIDER THE ASSESSMENT UNJUST AND INEQUITABLE IN YOUR CASE, YOU MAY THEREFORE WISH TO CONSIDER REQUESTING THE ADMINISTRATOR OF THE FEDERAL AVIATION AGENCY TO MAKE A RECOMMENDATION TO THIS OFFICE UNDER THE PROVISIONS OF THIS STATUTE.

OTHERWISE, IF YOU ARE OF THE OPINION THAT THE ASSESSMENT OF DAMAGES WAS NOT IN ACCORDANCE WITH, OR REQUIRED BY, THE TERMS OF YOUR CONTRACT YOU MAY FILE A CLAIM WITH THIS OFFICE FOR ALL OR PART OF THE DAMAGES ASSESSED. PARTICULAR FORM IS PRESCRIBED FOR FILING CLAIMS WITH THIS OFFICE. HOWEVER, SINCE GOVERNMENT CONTRACTS NORMALLY CONTAIN A PROVISION MAKING DETERMINATIONS OF THE AGENCY HEAD FINAL ON DISPUTED QUESTIONS OF FACT ARISING UNDER SUCH CONTRACTS, IT WOULD APPEAR THAT YOUR CLAIM MUST EITHER ESTABLISH THAT THE FACTUAL DETERMINATIONS BY THE AGENCY HEAD WERE ARBITRARY, CAPRICIOUS, OR FRAUDULENT OR THAT THE FACTS AND CIRCUMSTANCES, AS DETERMINED BY THE AGENCY HEAD, WERE SUFFICIENT TO RELEASE YOUR COMPANY FROM ANY LEGAL OBLIGATION TO PAY LIQUIDATED DAMAGES UNDER THE TERMS OF THE CONTRACTS. IN THE EVENT YOUR CLAIM IS BASED UPON THE LATTER PREMISE, IT SHOULD INCLUDE REFERENCES TO ANY STATUTES OR LEGAL PRECEDENTS IN THE FORM OF RULINGS BY COURTS OR FEDERAL AGENCIES WHICH YOU CONSIDER PERTINENT OR CONTROLLING ON THE QUESTION OF LEGAL LIABILITY.

PENDING RECEIPT OF EITHER A RECOMMENDATION FROM THE ADMINISTRATOR OF THE FEDERAL AVIATION AGENCY IN ACCORDANCE WITH THE PROVISIONS OF 41 U.S.C. 256A, OR A FORMAL CLAIM, AS OUTLINED ABOVE, FOR ALL OR A SPECIFIED PORTION OF THE DAMAGES ASSESSED, NO FURTHER ACTION WILL BE TAKEN BY THIS OFFICE.