B-168124, NOV. 17, 1969

B-168124: Nov 17, 1969

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WAS AGREED. CERTIFICATES OF MAILING ARE DATED MAY 6. GOVERNMENT PRINTING OFFICE IS DENIED SINCE PUBLIC PRINTER DOES NOT RECOMMEND REMISSION AND NO EQUITABLE ELEMENTS EXIST TO SUPPORT FAVORABLE CONSIDERATION. TO GARDEN CITY ENVELOPE COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 13. THE CERTIFICATES OF MAILING FURNISHED BY YOU AS PROOF OF DELIVERY ARE DATED MAY 6. YOU MAINTAIN THAT THE INVOLVED ENVELOPES WERE DELIVERED TO THE POST OFFICE LATE ON FRIDAY. AT WHICH TIME THEY WERE RECEIPTED. THE MAILING WAS EFFECTED AT THIS TIME. LIQUIDATED DAMAGES WERE ASSESSED AGAINST YOU IN THE AMOUNT OF $26.26. IS USED TO DESCRIBE THE STANDING OF A PARTY TO CLAIM RELIEF. THE MERIT OF HIS CLAIM BEING DEPENDENT UPON A SHOWING AS TO HIS ABILITY TO HAVE PREVENTED THE SITUATION IN WHICH HE FINDS HIMSELF.

B-168124, NOV. 17, 1969

DAMAGES--LIQUIDATED--REMISSION--APPROVAL WITHHELD UNDER CONTRACT WHERE SHIPMENT OF ORDER ON OR BEFORE MAY 2, 1969, WAS AGREED, CERTIFICATES OF MAILING ARE DATED MAY 6, 1969, LATE DELIVERY BEING ADMITTEDLY DUE TO CONTRACTOR'S OVERSIGHT FOR WHICH NO COUNTERVAILING EVIDENCE HAS BEEN FURNISHED, REQUEST FOR REMISSION OF $26.26 LIQUIDATED DAMAGES ASSESSED BY U.S. GOVERNMENT PRINTING OFFICE IS DENIED SINCE PUBLIC PRINTER DOES NOT RECOMMEND REMISSION AND NO EQUITABLE ELEMENTS EXIST TO SUPPORT FAVORABLE CONSIDERATION.

TO GARDEN CITY ENVELOPE COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 13, 1969, REQUESTING REMISSION OF LIQUIDATED DAMAGES ASSESSED BY THE U.S. GOVERNMENT PRINTING OFFICE (GPO) UNDER PURCHASE ORDER NO. 55574 DATED MARCH 26, 1969.

UNDER THE TERMS OF THE CONTRACT, YOU AGREED TO SHIP THE COMPLETE ORDER ON OR BEFORE MAY 2, 1969. THE CERTIFICATES OF MAILING FURNISHED BY YOU AS PROOF OF DELIVERY ARE DATED MAY 6, 1969. YOU MAINTAIN THAT THE INVOLVED ENVELOPES WERE DELIVERED TO THE POST OFFICE LATE ON FRIDAY, MAY 2, 1969, BUT THAT BECAUSE YOUR SHIPPING CLERK HAD NOT PUT THE 6-CENT METER TAPES ON THESE CERTIFICATES, THE POST OFFICE WOULD NOT RECEIPT THEM. YOU CONCEDE THAT THROUGH AN OVERSIGHT YOUR SHIPPING CLERK DID NOT DELIVER THOSE STAMPED CERTIFICATES OF MAILING TO THE POST OFFICE UNTIL TUESDAY, MAY 6, 1969, AT WHICH TIME THEY WERE RECEIPTED, AND, APPARENTLY, THE MAILING WAS EFFECTED AT THIS TIME. FOR THIS REASON, LIQUIDATED DAMAGES WERE ASSESSED AGAINST YOU IN THE AMOUNT OF $26.26, OR $13.13 FOR EACH DAY OF LATE DELIVERY.

THE AUTHORITY OF THE COMPTROLLER GENERAL TO REMIT OR WAIVE LIQUIDATED DAMAGES ON AN EQUITABLE BASIS UNDER 41 U.S.C. 256 (A) REQUIRES THE PRIOR FAVORABLE RECOMMENDATION OF THE HEAD OF THE AGENCY CONCERNED AND ALSO THE SUBMISSION OF EVIDENCE DEFINITELY ESTABLISHING EQUITIES IN FAVOR OF THE CONTRACTOR. SEE 34 COMP. GEN. 251 (1954).

EQUITY, AMONG OTHER THINGS, IS USED TO DESCRIBE THE STANDING OF A PARTY TO CLAIM RELIEF, THE MERIT OF HIS CLAIM BEING DEPENDENT UPON A SHOWING AS TO HIS ABILITY TO HAVE PREVENTED THE SITUATION IN WHICH HE FINDS HIMSELF.

THE CERTIFICATES OF MAILING UPON WHICH GPO HAD TO RELY FOR PROOF OF MAILING AND CONTRACT COMPLIANCE WERE NOT DATED UNTIL MAY 6 AND THIS ADMITTEDLY WAS DUE TO AN OVERSIGHT BY YOU FOR WHICH NO COUNTERVAILING DOCUMENTARY EVIDENCE HAS BEEN FURNISHED. THE PUBLIC PRINTER DOES NOT RECOMMEND THE REMISSION OF THE LIQUIDATED DAMAGES IN THIS INSTANCE AND WE CANNOT FIND SUCH ELEMENTS OF EQUITY IN THE CIRCUMSTANCES AS WOULD SUPPORT FAVORABLE CONSIDERATION OF YOUR REQUEST FOR REMISSION OF LIQUIDATED DAMAGES IN THE AMOUNT OF $26.26 WHICH ACCRUED TO THE GOVERNMENT UNDER THE TERMS OF YOUR CONTRACT. 32 COMP. GEN. 67 (1952).

ACCORDINGLY, YOUR REQUEST FOR REMISSION OF LIQUIDATED DAMAGES IS DENIED. SEE, ALSO, 46 COMP. GEN. 252 (1966).