B-164169, JUL 2, 1971

B-164169, JUL 2, 1971

CLAIM FOR DELAY DAMAGES - CONFERENCE SOUGHT DECISION DENYING REQUEST THAT GAO ARRANGE A CONFERENCE BETWEEN HENRY PRODUCTS COMPANY AND PERSONNEL FROM THE DEPARTMENT OF THE ARMY. GAO HAS PREVIOUSLY REVIEWED THE SUBJECT CLAIM FOR DELAY DAMAGES, AND IT WAS DISALLOWED ONLY AFTER FULL CONSIDERATION OF ALL ISSUES INVOLVED. BECAUSE NO NEW EVIDENCE IS PRESENTED, A CONFERENCE WOULD SERVE NO USEFUL PURPOSE; GAO PERSONNEL WILL HOWEVER BE AVAILABLE TO DISCUSS ANY NEW EVIDENCE OR ARGUMENT WHICH CLAIMANT MAY WISH TO PRESENT.

TO JAMES M. MARSH, ESQ.:

REFERENCE IS MADE TO YOUR LETTER OF MAY 28, 1971, AS SUPPLEMENTED BY YOUR LETTER OF JUNE 11, 1971, REQUESTING THAT THIS OFFICE ARRANGE A CONFERENCE TO BE ATTENDED BY YOUR CLIENT, HENRY PRODUCTS COMPANY, AND THE GOVERNMENT PERSONNEL NOW INVOLVED IN THE HANDLING OF THE CLAIM OF HENRY PRODUCTS COMPANY FOR DELAY DAMAGES ALLEGED TO HAVE BEEN INCURRED IN CONNECTION WITH ARMY CONTRACT NO. DA-36-039-SC-64235. THIS CLAIM WAS DISALLOWED BY OUR DECISION OF MARCH 31, 1971, B-164169.

AS YOU KNOW, HENRY PRODUCTS' CLAIM WAS BEFORE THIS OFFICE FOR A LENGTHY PERIOD OF TIME DURING WHICH THE ISSUES INVOLVED WERE ADDRESSED BY YOU IN NUMEROUS COMMUNICATIONS, AND IN CONFERENCES WITH REPRESENTATIVES OF THIS OFFICE AND THE DEPARTMENT OF THE ARMY. OUR DECISION OF MARCH 31, DISALLOWING THE CLAIM, WAS RENDERED ONLY AFTER ALL OF THE ISSUES INVOLVED AND ALL AVAILABLE EVIDENCE WERE FULLY CONSIDERED, AND AFTER WE HAD FULLY EXPLORED WITH THE DEPARTMENT OF THE ARMY THE POSSIBILITY OF FURTHER ADMINISTRATIVE CONSIDERATION OF THE MATTER. AS WE POINTED OUT IN OUR DECISION, THE DEPARTMENT OF THE ARMY DETERMINED THAT FURTHER ADMINISTRATIVE ACTION WAS NOT WARRANTED, AND WE CONCURRED WITH THE ARMY'S POSITION THAT THE EVIDENCE OF RECORD DID NOT ESTABLISH A CLEAR LIABILITY ON THE PART OF THE GOVERNMENT FOR ANY AMOUNT WHICH COULD BE ASCERTAINED UNDER STRICT ACCOUNTING PROCEDURES AND SERVE AS A BASIS FOR ALLOWANCE OF ANY PORTION OF THE CLAIM. YOU DO NOT INDICATE THAT YOU HAVE ANY NEW EVIDENCE TO PRESENT WHICH WOULD REQUIRE A MATERIAL REVISION IN OUR DECISION, OR IN THE BASIS FOR THE ARMY'S POSITION AS OUTLINED THEREIN.

IN VIEW OF THE FOREGOING, AND SINCE THE DECISIONS OF THIS OFFICE ARE BASED SOLELY ON THE RECORD AS ESTABLISHED IN WRITTEN FORM, WE ARE NOT PERSUADED THAT IT WOULD BE PRODUCTIVE FOR THIS OFFICE TO ARRANGE THE CONFERENCE YOU PROPOSE, OR THAT SUCH A CONFERENCE WOULD SERVE A PRACTICAL PURPOSE. WHILE REPRESENTATIVES OF THIS OFFICE WILL BE AVAILABLE AT ALL TIMES TO DISCUSS ANY NEW EVIDENCE OR ARGUMENT YOU MAY CARE TO PRESENT, WE DO NOT BELIEVE WE SHOULD ARRANGE A CONFERENCE TO INCLUDE PERSONNEL FROM THE DEPARTMENT OF THE ARMY.

BY LETTER OF JUNE 11 YOU REFER TO OUR DECISIONS OF B-170537, DECEMBER 21, 1970, AND B-171609, MAY 21, 1971, AND INDICATE THAT THOSE DECISIONS SUGGEST THE POSSIBILITY THAT THIS OFFICE MIGHT CONDUCT ITS OWN EXAMINATION OF THE CLAIM FILE AND RELATED RECORDS AND ESTABLISH A FORMULA FOR EQUITABLE SETTLEMENT OF THE CLAIM. A SIMILAR SUGGESTION, MADE BY YOU UNDER DATE OF FEBRUARY 19, 1971, WAS CONSIDERED IN OUR DECISION OF MARCH 31, AND IT WAS CONCLUDED THAT A SETTLEMENT ON THAT BASIS WOULD NOT BE APPROPRIATE UNDER THE CIRCUMSTANCES IN THIS CASE.