B-166690, AUG. 18, 1969

B-166690: Aug 18, 1969

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OUR AUTHORITY TO REMIT LIQUIDATED DAMAGES IS STATED IN 10 U.S.C. 2312. IT IS APPARENT FROM THE STATUTE. WE HAVE RECEIVED A REPORT FROM THE ASSISTANT SECRETARY OF THE ARMY (INSTALLATION AND LOGISTICS). ADVISING THAT THERE IS NO BASIS ON WHICH EQUITABLE RELIEF SHOULD BE GRANTED AND RECOMMENDING AGAINST REMISSION OF THE LIQUIDATED DAMAGES WHICH WERE ASSESSED.

B-166690, AUG. 18, 1969

CONTRACTS - REMISSION OF LIQUIDATED DAMAGES - LACK OF AGENCY RECOMMENDATION DECISION CONCERNING REMISSION OF LIQUIDATED DAMAGES ON BEHALF OF SONETRONICS, INC. UNDER ARMY CONTRACT DA-36-039-AMC-09401/E). SINCE THE ASSISTANT SECRETARY OF THE ARMY HAS DECLINED TO RECOMMEND REMISSION OF THE LIQUIDATED DAMAGES, GAO MUST, PURSUANT TO 41 U.S.C. 256A AND WITHOUT CONSIDERING THE MERITS OF CLAIM DECLINE TO AUTHORIZE REMISSION OF LIQUIDATED DAMAGES.

TO MR. EUGENE DREXLER:

WE REFER TO YOUR LETTER OF APRIL 14, 1969, WITH ENCLOSURE, REQUESTING ON BEHALF OF SONETRONICS, INCORPORATED, THAT RELIEF BE GRANTED UNDER 10 U.S.C. 2312, WITH RESPECT TO AN ASSESSMENT OF LIQUIDATED DAMAGES BY THE DEPARTMENT OF THE ARMY IN THE AMOUNT OF $50,427.94, UNDER CONTRACT NO. DA- 36-039-AMC-09401/E).

OUR AUTHORITY TO REMIT LIQUIDATED DAMAGES IS STATED IN 10 U.S.C. 2312, WHICH PROVIDES THAT UPON THE RECOMMENDATION OF THE HEAD OF AN AGENCY THE COMPTROLLER GENERAL MAY REMIT ALL OR PART, AS HE CONSIDERS JUST AND EQUITABLE, OF ANY LIQUIDATED DAMAGES ASSESSED FOR DELAY IN PERFORMING A CONTRACT MADE BY THAT AGENCY. IT IS APPARENT FROM THE STATUTE, AND IT HAS CONSISTENTLY BEEN OUR VIEW, THAT BEFORE THIS OFFICE CAN GIVE FAVORABLE CONSIDERATION TO A CLAIM FOR REMISSION OF LIQUIDATED DAMAGES ON AN EQUITABLE BASIS THE HEAD OF THE AGENCY CONCERNED MUST (WHICH AS DEFINED IN 10 U.S.C. 2302 TO INCLUDE ANY ASSISTANT SECRETARY OF THE ARMY) FIRST RECOMMEND REMISSION. SEE B-162643, FEBRUARY 1, 1968; B-156946, SEPTEMBER 14, 1966.

WE HAVE RECEIVED A REPORT FROM THE ASSISTANT SECRETARY OF THE ARMY (INSTALLATION AND LOGISTICS), DATED JUNE 27, 1969, ADVISING THAT THERE IS NO BASIS ON WHICH EQUITABLE RELIEF SHOULD BE GRANTED AND RECOMMENDING AGAINST REMISSION OF THE LIQUIDATED DAMAGES WHICH WERE ASSESSED.

SINCE THE ASSISTANT SECRETARY OF THE ARMY HAS DECLINED TO RECOMMEND REMISSION OF THE LIQUIDATED DAMAGES, WE MUST, PURSUANT TO 41 U.S.C. 256A AND WITHOUT CONSIDERING THE MERITS OF YOUR CLAIM, DECLINE TO REMIT THE SAME.

WE ENCLOSE A COPY OF THE REPORT DATED JUNE 27 FROM THE DEPARTMENT OF THE ARMY. SHOULD YOU CHOOSE TO PURSUE THE MATTER FURTHER, ANY CORRESPONDENCE RELATIVE TO THIS SUBJECT SHOULD BE ADDRESSED TO THAT DEPARTMENT.