B-181787, AUG 21, 1974

B-181787: Aug 21, 1974

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THEREFORE GAO WILL NOT REVIEW PROPRIETY OF ASSESSMENT IN QUESTION. WHILE COMPTROLLER GENERAL IS AUTHORIZED TO CONSIDER REQUEST FOR EQUITABLE REMISSION OF LIQUIDATED DAMAGES UPON FAVORABLE RECOMMENDATION BY AGENCY HEAD. SUCH RELIEF IS SEPARATE AND DISTINCT FROM RELIEF WHICH MAY BE PROVIDED PURSUANT TO CONTRACT PROVISIONS. IT APPEARS THAT PINE BELT WAS REQUIRED TO PROVIDE THE FOREST SERVICE WITH HELICOPTER AVAILABILITY BY JUNE 15. THAT BECAUSE OF MATTERS ALLEGEDLY BEYOND ITS CONTROL THE HELICOPTER WAS NOT MADE AVAILABLE UNTIL JUNE 18. PINE BELT STATES THAT IT IS APPEALING THE ASSESSMENT UNDER PARAGRAPH 5(D). THAT CERTAIN CONTRACTOR DELAYS IN CONTRACT PERFORMANCE WILL BE CONSIDERED EXCUSABLE AND THE CONTRACTOR WILL NOT BE CHARGED WITH RESULTING DAMAGE FOR SUCH DELAYS.

B-181787, AUG 21, 1974

WHERE CLAIMANT QUESTIONS PROPRIETY OF ASSESSMENT OF LIQUIDATED DAMAGES BY GOVERNMENT AGENCY IN CONTEXT OF CONTRACT PROVISIONS, MATTER SHOULD BE PURSUED FOR RESOLUTION PURSUANT TO CONTRACT DISPUTES CLAUSE, AND THEREFORE GAO WILL NOT REVIEW PROPRIETY OF ASSESSMENT IN QUESTION. S&E CONTRACTORS V. UNITED STATES, 406 U.S. 1. WHILE COMPTROLLER GENERAL IS AUTHORIZED TO CONSIDER REQUEST FOR EQUITABLE REMISSION OF LIQUIDATED DAMAGES UPON FAVORABLE RECOMMENDATION BY AGENCY HEAD, 41 U.S.C. 256A, SUCH RELIEF IS SEPARATE AND DISTINCT FROM RELIEF WHICH MAY BE PROVIDED PURSUANT TO CONTRACT PROVISIONS.

PINE BELT HELICOPTERS, INCORPORATED:

BY LETTER OF JULY 6, 1974, PINE BELT HELICOPTERS, INCORPORATED HAS REQUESTED THAT THIS OFFICE REVIEW THE ASSESSMENT OF LIQUIDATED DAMAGES BY THE FOREST SERVICE, UNITED STATES DEPARTMENT OF AGRICULTURE, SAN FRANCISCO, CALIFORNIA, FOR FAILURE TO TIMELY DELIVER A HELICOPTER UNDER CONTRACT NO. 39-4652. IT APPEARS THAT PINE BELT WAS REQUIRED TO PROVIDE THE FOREST SERVICE WITH HELICOPTER AVAILABILITY BY JUNE 15, 1973, BUT THAT BECAUSE OF MATTERS ALLEGEDLY BEYOND ITS CONTROL THE HELICOPTER WAS NOT MADE AVAILABLE UNTIL JUNE 18, 1973.

AS THE BASIS FOR THE REQUESTED REVIEW, PINE BELT STATES THAT IT IS APPEALING THE ASSESSMENT UNDER PARAGRAPH 5(D), PART A, OF THE FOREST SERVICE GENERAL AND LABOR STANDARDS PROVISIONS FOR NON-PERSONAL SERVICES (6300-38(8/72)), A PART OF THE CONTRACT. THE PARAGRAPH IN QUESTION PROVIDES, INTER ALIA, THAT CERTAIN CONTRACTOR DELAYS IN CONTRACT PERFORMANCE WILL BE CONSIDERED EXCUSABLE AND THE CONTRACTOR WILL NOT BE CHARGED WITH RESULTING DAMAGE FOR SUCH DELAYS. ANY FINDINGS OF FACT BY THE CONTRACTING OFFICER UNDER THIS PARAGRAPH ARE CONSIDERED FINAL AND CONCLUSIVE ON THE PARTIES, SUBJECT ONLY TO APPEAL AS PROVIDED BY THE CONTRACT DISPUTES CLAUSE. UNDER THE DISPUTES CLAUSE, THE CONTRACTING OFFICER IS REQUIRED TO REDUCE HIS DECISION TO WRITING AND SUCH DECISION ON A QUESTION OF FACT SHALL BE FINAL UNLESS WITHIN 30 DAYS FROM THE DATE OF RECEIPT OF THE DECISION THE CONTRACTOR FURNISHES THE CONTRACTING OFFICER A WRITTEN APPEAL ADDRESSED TO THE SECRETARY OF AGRICULTURE. THE DISPUTES CLAUSE FURTHER PROVIDES THAT THE DECISION OF THE SECRETARY OR HIS DULY AUTHORIZED REPRESENTATIVE SHALL BE FINAL AND CONCLUSIVE UNLESS SET ASIDE BY A COURT OF COMPETENT JURISDICTION.

IN THIS REGARD, WE HAVE BEEN ADVISED BY THE FOREST SERVICE THAT A FINAL DECISION IN THIS DISPUTE HAS NOT AS YET BEEN RENDERED BY THE CONTRACTING OFFICER. SINCE IT APPEARS THAT ANY DIFFERENCES WHICH MAY EXIST BETWEEN PINE BELT AND THE CONTRACTING OFFICIALS OF THE FOREST SERVICE AS TO WHETHER LIQUIDATED DAMAGES WERE PROPERLY ASSESSABLE ARE QUESTIONED IN THE CONTEXT OF THE APPLICABLE CONTRACT PROVISION, WE BELIEVE A DECISION SHOULD BE REQUESTED OF THE CONTRACTING OFFICER AND THE MATTER PURSUED FOR RESOLUTION PURSUANT TO THE DISPUTES CLAUSE OF THE CONTRACT. ACCORDINGLY, THIS OFFICE MUST DECLINE TO CONSIDER THE MATTER SINCE IT IS APPROPRIATE FOR RESOLUTION UNDER THE DISPUTES PROCEDURE OF THE CONTRACT. S&E CONTRACTORS, INC. V. UNITED STATES, 406 U.S. 1 (1972).

IN THIS CONNECTION, WHILE THE COMPTROLLER GENERAL IS AUTHORIZED, UPON RECOMMENDATION OF THE APPROPRIATE AGENCY HEAD, TO REMIT THE WHOLE OR ANY PART OF LIQUIDATED DAMAGES ASSESSED BY THE GOVERNMENT AS IN HIS DISCRETION MAY BE JUST AND EQUITABLE, 41 U.S.C. SEC. 256A (1970), SUCH RELIEF IS SEPARATE AND DISTINCT FROM ANY RELIEF WHICH MAY BE PROVIDED PURSUANT TO THE CONTRACT PROVISIONS MENTIONED ABOVE.