B-144201, NOV. 3, 1960

B-144201: Nov 3, 1960

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ESQUIRE: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 6. THE ONLY AUTHORITY VESTED IN THIS OFFICE TO GRANT EQUITABLE RELIEF IS THAT CONTAINED IN SECTION 2312 OF TITLE 10. SIMILAR AUTHORITY IS CONTAINED IN SECTION 256A OF TITLE 41. THE FOREGOING STATUTES HAVE REFERENCE ONLY TO LIQUIDATED DAMAGES. PURSUANT THERETO THE COMPTROLLER GENERAL IS AUTHORIZED TO REMIT SUCH LIQUIDATED DMAGES. WE CONSISTENTLY HAVE HELD THAT ANY CLAIM FOR RELIEF THEREUNDER MUST FIRST CONTAIN A FAVORABLE RECOMMENDATION BY THE HEAD OF THE DEPARTMENT OR AGENCY CONCERNED. SINCE SUCH EQUITABLE RELIEF IS NOT APPLICABLE IN THE TYPE OF CASE PRESENTED BY YOU.

B-144201, NOV. 3, 1960

TO EMANUEL SCHOENZEIT, ESQUIRE:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 6, 1960, WITH REGARD TO AN APPEAL ON BEHALF OF YOUR CLIENT, THE P. L. ANDREWS CORPORATION, UNDER NAVY CONTRACT NO. N383-56416A. YOU ADVISE THAT IN A DECISION RENDERED BY THE ARMED SERVICES BOARD OF CONTRACT APPEALS, THE BOARD IN A FOOTNOTE TO ITS DECISION ON AN APPEAL OF YOUR CLIENT FOR RELIEF FROM EXCESS COSTS OCCASIONED BY THE TERMINATION OF ITS CONTRACT FOR DEFAULT SUGGESTED THAT THE PROPER FORUM FOR SUCH RELIEF MIGHT INCLUDE THE COMPTROLLER GENERAL. ACCORDINGLY, YOU ADVISE OF YOUR INTENTION TO APPEAL TO THIS OFFICE FOR EQUITABLE RELIEF, AND REQUEST A COPY OF THE APPLICABLE RULES AND FORMS NECESSARY FOR THE FURTHER PROCESSING OF SUCH APPEAL.

THE ONLY AUTHORITY VESTED IN THIS OFFICE TO GRANT EQUITABLE RELIEF IS THAT CONTAINED IN SECTION 2312 OF TITLE 10, U.S.C. WHICH READS AS FOLLOWS:

"UPON THE RECOMMENDATION OF THE HEAD OF AN AGENCY, THE COMPTROLLER GENERAL MAY REMIT ALL OR PART, AS HE CONSIDERS JUST AND EQUITABLE, OR ANY LIQUIDATED DAMAGES ASSESSED FOR DELAY IN PERFORMING A CONTRACT, MADE BY THAT AGENCY, THAT PROVIDES FOR SUCH DAMAGES.'

SIMILAR AUTHORITY IS CONTAINED IN SECTION 256A OF TITLE 41, UNITED STATES CODE.

MANIFESTLY, THE FOREGOING STATUTES HAVE REFERENCE ONLY TO LIQUIDATED DAMAGES, AND PURSUANT THERETO THE COMPTROLLER GENERAL IS AUTHORIZED TO REMIT SUCH LIQUIDATED DMAGES, IN WHOLE OR IN PART, WHICH IN HIS JUDGMENT CONTAINS SUCH ELEMENTS OR EQUITY AS TO BE DESERVING OF RELIEF. AND, IN THIS CONNECTION, WE CONSISTENTLY HAVE HELD THAT ANY CLAIM FOR RELIEF THEREUNDER MUST FIRST CONTAIN A FAVORABLE RECOMMENDATION BY THE HEAD OF THE DEPARTMENT OR AGENCY CONCERNED. BUT THIS TYPE OF RELIEF DOES NOT EXTEND TO OTHER TYPES OF DAMAGES, SUCH AS THOSE ARISING UNDER DEFAULT.

IN VIEW THEREOF, AND SINCE SUCH EQUITABLE RELIEF IS NOT APPLICABLE IN THE TYPE OF CASE PRESENTED BY YOU, AN APPEAL TO THIS OFFICE FOR SUCH RELIEF WOULD APPEAR TO SERVE NO USEFUL PURPOSE.