B-171195, NOV. 18, 1970

B-171195: Nov 18, 1970

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UNDER THE TERMS OF A CONTRACT DISPUTES OF FACT ARE TO BE DECIDED BY THE CONTRACTING OFFICER. INCORPORATED: REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 29. CONTRACT PRICE IS REDUCED FROM: $4350.92 TO: $3941.42. WHICH IS BASED UPON LIQUIDATED DAMAGES OF $29.25 PER DAY. YOU HAVE REFUSED TO SIGN THE MODIFICATION ON THE BASIS THAT THE DELAY OCCURRED THROUGH NO FAULT OF YOUR FIRM. A COPY OF THE INVOLVED CONTRACT IS NOT PRESENTLY AVAILABLE TO THIS OFFICE. WE ARE INFORMALLY ADVISED BY THE AIR FORCE THAT "CLAUSE 25. IT APPEARS FROM THE ENCLOSURES TO YOUR LETTER THAT YOUR CLAIM INVOLVES A DISPUTE OF FACT WHICH IS REQUIRED UNDER THE TERMS OF THE ABOVE CLAUSES TO BE DECIDED BY THE CONTRACTING OFFICER AND.

B-171195, NOV. 18, 1970

CONTRACTS - LIQUIDATED DAMAGES DENIAL OF PROTEST AGAINST THE ASSESSMENT OF LIQUIDATED DAMAGES FOR LATE COMPLETION BY SCHURR & FINLAY, INCORPORATED OF CONTRACT WITH VANDENBERG AIR FORCE BASE AND RECOMMENDATION THAT PROTESTANT SUBMIT DISPUTE OF FACT TO THE CONTRACTING OFFICER FOR DETERMINATION. WHERE, UNDER THE TERMS OF A CONTRACT DISPUTES OF FACT ARE TO BE DECIDED BY THE CONTRACTING OFFICER, THE GAO MUST WAIT FOR SUCH DETERMINATION TO BE MADE AND THEN MAY BE ASKED TO INTERVENE SUBJECT TO 10 U.S.C. 2312 GOVERNING REMISSION OF LIQUIDATED DAMAGES.

TO SCHURR & FINLAY, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 29, 1970, WITH ENCLOSURES, PROTESTING AGAINST THE ASSESSMENT OF LIQUIDATED DAMAGES UNDER CONTRACT NO. F04684-70-C-0279 WITH VANDENBERG AIR FORCE BASE, CALIFORNIA.

IT APPEARS THAT THE CONTRACTING OFFICER HAS SUBMITTED FOR YOUR SIGNATURE MODIFICATION NO. F04684-70-C-0279-M01 TO THE ABOVE-REFERENCED CONTRACT, WHICH PURSUANT TO "CLAUSE 25, ADDITIONAL GENERAL PROVISIONS," MODIFIES THE CONTRACT AS FOLLOWS:

"DUE TO LATE COMPLETION, CONTRACT PRICE IS REDUCED FROM: $4350.92 TO: $3941.42, A REDUCTION OF $409.50, WHICH IS BASED UPON LIQUIDATED DAMAGES OF $29.25 PER DAY, FOR 14 DAYS." YOU HAVE REFUSED TO SIGN THE MODIFICATION ON THE BASIS THAT THE DELAY OCCURRED THROUGH NO FAULT OF YOUR FIRM.

A COPY OF THE INVOLVED CONTRACT IS NOT PRESENTLY AVAILABLE TO THIS OFFICE. HOWEVER, WE ARE INFORMALLY ADVISED BY THE AIR FORCE THAT "CLAUSE 25, ADDITIONAL GENERAL PROVISIONS" CONSISTS OF THE CLAUSE "LIQUIDATED DAMAGES (1965 JAN)" (ARMED SERVICES PROCUREMENT REGULATION (ASPR) 7- 603.39) AND THAT THE "DISPUTES" AND "TERMINATION FOR DEFAULT - DAMAGES FOR DELAY - TIME EXTENSIONS" CLAUSES APPEARING IN STANDARD FORM 19 (DECEMBER 1965 EDITION) ALSO FORM A PART OF THE CONTRACT.

IT APPEARS FROM THE ENCLOSURES TO YOUR LETTER THAT YOUR CLAIM INVOLVES A DISPUTE OF FACT WHICH IS REQUIRED UNDER THE TERMS OF THE ABOVE CLAUSES TO BE DECIDED BY THE CONTRACTING OFFICER AND, IN CASE OF AN ADVERSE DECISION BY THE CONTRACTING OFFICER, THE MATTER MAY BE APPEALED TO THE HEAD OF THE DEPARTMENT CONCERNED OR HIS AUTHORIZED REPRESENTATIVE.

WE ARE INFORMED BY THE AIR FORCE THAT YOU HAVE NOT YET REQUESTED A DECISION FROM THE CONTRACTING OFFICER ON THIS MATTER UNDER THE "DISPUTES" PROCEDURE. IN VIEW THEREOF, AND SINCE THE JURISDICTION OF THIS OFFICE WOULD BE LIMITED TO CONSIDERATION OF WHETHER LIQUIDATED DAMAGES, ONCE ASSESSED, SHOULD BE REMITTED UNDER THE PROVISIONS OF 10 U.S.C. 2312, WE SUGGEST YOU CONSIDER FOLLOWING THE "DISPUTES" PROCEDURES SPECIFIED IN THE CONTRACT.