B-159197, JUN. 8, 1966

B-159197: Jun 8, 1966

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B. FOSSON AND SONS COMPANY UNDER CONTRACT NO. 28 PI-603 WAS FORWARDED FOR OUR ATTENTION TOGETHER WITH A REQUEST FOR ADVICE ON WHETHER OR NOT IT MAY PROPERLY BE PAID. THE INVOICE IS IN THE AMOUNT OF $7. THE RECORD TENDS TO SUPPORT THE CONCLUSION THAT THE DELAY IN COMPLETION OF THE WORK WAS ATTRIBUTABLE TO A LARGE EXTENT. MENTION IS ALSO MADE OF THE GOVERNMENT'S FAILURE TO PROVIDE ELECTRIC POWER TO THE TERMINATION POINT OUTSIDE THE NEW BUILDING UNTIL APPROXIMATELY JULY 30. HAVING STUDIED THE RECORD IN THIS CASE WE FIND NO LEGAL BASIS FOR RELIEVING THE CONTRACTOR OF THE ASSESSMENT SINCE IT APPEARS THAT THE DELAY IN COMPLETING PERFORMANCE WAS PRIMARILY DUE TO A CIRCUMSTANCE NOT BEYOND THE SUBCONTRACTOR'S CONTROL.

B-159197, JUN. 8, 1966

TO THE ATTORNEY GENERAL:

BY LETTER DATED MAY 12, 1966, SIGNED BY THE SUPERINTENDENT OF INDUSTRIES, UNITED STATES DEPARTMENT OF JUSTICE, FEDERAL PRISON INDUSTRIES, INCORPORATED, AN INVOICE SUBMITTED BY W. B. FOSSON AND SONS COMPANY UNDER CONTRACT NO. 28 PI-603 WAS FORWARDED FOR OUR ATTENTION TOGETHER WITH A REQUEST FOR ADVICE ON WHETHER OR NOT IT MAY PROPERLY BE PAID. THE INVOICE IS IN THE AMOUNT OF $7,600 AND REPRESENTS THE FINAL PAYMENT PURSUANT TO THIS CONTRACT FOR THE CONSTRUCTION OF A VOCATIONAL EDUCATIONAL BUILDING AT THE FEDERAL CORRECTIONAL INSTITUTE, ASHLAND, KENTUCKY. WE TAKE IT THAT THIS AMOUNT HAS BEEN WITHHELD SOLELY AS LIQUIDATED DAMAGES FOR DELAY BY THE CONTRACTOR IN COMPLETING THE BUILDING.

THE TECHNICAL SPECIFICATIONS SET FORTH THE NAMES AND ADDRESSES OF THREE MANUFACTURERS REGULARLY ENGAGED IN THE PRODUCTION OF SECURITY WINDOWS OF THE TYPE NEEDED FOR PERFORMANCE BUT DID NOT LIMIT THE CONTRACTOR TO THESE SOURCES OF SUPPLY. NEVERTHELESS, W. B. FOSSON DID SOLICIT THESE COMPANIES AND RECEIVED ONLY ONE BID, VIZ THAT OF SECURITY PRODUCTS COMPANY. THE RECORD TENDS TO SUPPORT THE CONCLUSION THAT THE DELAY IN COMPLETION OF THE WORK WAS ATTRIBUTABLE TO A LARGE EXTENT, IF NOT COMPLETELY, TO THIS SUPPLIER'S FAILURE TO TIMELY DELIVER THE NECESSARY SASH AND WINDOW SCREENS. MENTION IS ALSO MADE OF THE GOVERNMENT'S FAILURE TO PROVIDE ELECTRIC POWER TO THE TERMINATION POINT OUTSIDE THE NEW BUILDING UNTIL APPROXIMATELY JULY 30, 1965, THUS INTERFERING WITH THE CONTRACTOR'S ABILITY TO CHECK OUT THE FACILITIES AND GIVE POSSESSION IN ACCORDANCE WITH THE CONTRACTUAL DELIVERY DATE.

HAVING STUDIED THE RECORD IN THIS CASE WE FIND NO LEGAL BASIS FOR RELIEVING THE CONTRACTOR OF THE ASSESSMENT SINCE IT APPEARS THAT THE DELAY IN COMPLETING PERFORMANCE WAS PRIMARILY DUE TO A CIRCUMSTANCE NOT BEYOND THE SUBCONTRACTOR'S CONTROL, I.E., ITS MISMANAGEMENT AND EVENTUAL BANKRUPTCY.

YOUR ATTENTION IS DIRECTED, HOWEVER, TO THE EQUITABLE POWERS OF THE COMPTROLLER GENERAL OF THE UNITED STATES, WHICH ARE SET FORTH AT 41 U.S.C. 256A, TO REMIT LIQUIDATED DAMAGES UPON THE RECOMMENDATION OF THE HEAD OF A FEDERAL AGENCY. IF YOUR AGENCY WISHES RECONSIDERATION OF THE MATTER UNDER THIS STATUTE, WE WILL NEED SPECIFIC FINDINGS OF FACT AS TO THE NUMBER OF DAYS DELAY ATTRIBUTABLE TO THE SUBCONTRACTOR, SECURITY PRODUCTS COMPANY, AND THE NUMBER DAYS OF DELAY CHARGEABLE TO THE GOVERNMENT'S DILATORINESS IN PROVIDING PERMANENT ELECTRIC FACILITIES TOGETHER WITH A SPECIFIC RECOMMENDATION EITHER FOR OR AGAINST THE EXERCISE OF THE EQUITABLE POWERS MENTIONED ABOVE. ALSO, IT WOULD BE MATERIAL WHETHER THE CONTRACTOR HAS FILED A CLAIM IN THE BANKRUPTCY PROCEEDING BASED ON THE BREACH OF CONTRACT BY SECURITY PRODUCTS COMPANY.