B-125282, JAN. 12, 1956

B-125282, JAN. 12, 1956

TO JAMES C. CHANGARIS, ESQUIRE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 3, 1955, WRITTEN ON BEHALF OF MR. W. D. ZAVALAS, APPEALING TO OUR OFFICE FOR REMISSION ON AN EQUITABLE BASIS OF LIQUIDATED DAMAGES OCCASIONED BY DELAYS IN CONNECTION WITH THE PERFORMANCE OF CONTRACT NO. IBP-7414, ENTERED INTO WITH THE BONNEVILLE POWER ADMINISTRATION. THE APPEAL HAS BEEN MADE PURSUANT TO PUBLIC LAW 754, APPROVED SEPTEMBER 5, 1950, 64 STAT. 578, 591, SECTION 10 (A) OF WHICH PROVIDES, AS FOLLOWS:

"SEC. 10 (A). WHENEVER ANY CONTRACT MADE ON BEHALF OF THE GOVERNMENT BY THE HEAD OF ANY FEDERAL AGENCY, OR BY OFFICERS AUTHORIZED BY HIM SO TO DO, INCLUDES A PROVISION FOR LIQUIDATED DAMAGES FOR DELAY, THE COMPTROLLER GENERAL UPON RECOMMENDATION OF SUCH HEAD IS AUTHORIZED AND EMPOWERED TO REMIT THE WHOLE OR ANY PART OF SUCH DAMAGES AS IN HIS DISCRETION MAY BE JUST AND EQUITABLE.'

IN THE LIGHT OF THE EXPRESS LANGUAGE OF THIS STATUTE, AUTHORIZING THE REMISSION BY THE COMPTROLLER GENERAL OF LIQUIDATED DAMAGES ONLY UPON RECOMMENDATION OF THE AGENCY HEAD, ANY CLAIM FOR RELIEF THEREUNDER MUST FIRST BE SUPPORTED BY A FAVORABLE RECOMMENDATION BY THE HEAD OF THE DEPARTMENT OR AGENCY CONCERNED--- IN THE INSTANT CASE THE SECRETARY OF THE INTERIOR. IN A REPORT TO OUR OFFICE DATED OCTOBER 19, 1955, THE SECRETARY DECLINED TO MAKE SUCH A RECOMMENDATION. THEREAFTER, IN VIEW OF MR. ZAVALAS' ALLEGATION THAT ORAL COMMITMENTS REGARDING EXTENSIONS OF TIME FOR PERFORMANCE OF THE CONTRACT WERE MADE TO HIM BY REPRESENTATIVES OF THE CONTRACTING AGENCY PRIOR TO AWARD OF THE CONTRACT, AND IN ORDER TO ASSIST US IN REACHING A DECISION ON THE QUESTION OF WHETHER, AS A MATTER OF LAW, ANY OF THE DAMAGES SHOULD BE REMITTED, THE SECRETARY OF THE INTERIOR WAS REQUESTED TO GIVE FURTHER CONSIDERATION TO THE CLAIM WITH A VIEW TO DETERMINING WHETHER OR NOT SUCH ORAL COMMITMENTS WERE MADE. THERE NOW HAS BEEN RECEIVED A LETTER DATED JANUARY 3, 1956, FROM THE ADMINISTRATIVE ASSISTANT TO THE SECRETARY, THE PERTINENT PART OF WHICH IS AS FOLLOWS:

"THE BONNEVILLE POWER ADMINISTRATOR HAS ADVISED ME THAT THE ORAL COMMITMENTS ALLEGED BY MR. ZAVALAS TO HAVE BEEN MADE TO HIM WERE DISCUSSED WITH MR. L. C. STEWART, HEAD, PROCUREMENT SECTION, MR. V. E. TAYLOR, CHIEF OF CONSTRUCTION, AND MR. JAMES D. BELL, CHIEF OF LINE CONSTRUCTION. THESE OFFICIALS STATE AFFIRMATIVELY THAT NO SUCH COMMITMENTS OR REPRESENTATIONS WERE MADE.

"THE BONNEVILLE POWER ADMINISTRATOR ALSO HAS ADVISED US THAT MR. TAYLOR STATED THAT THE SUBJECT OF TIME EXTENSIONS MAY HAVE BEEN DISCUSSED ORALLY WITH MR. ZAVALAS SOMETIME DURING THE COURSE OF THE CONTRACT BUT THAT THE ONLY STATEMENT MADE BY MR. TAYLOR WAS THAT TIME EXTENSIONS WOULD BE GRANTED FOR JUSTIFIABLE DELAYS IF REQUESTED BY MR. ZAVALAS, WHICH IS INFORMATION GIVEN TO ALL BONNEVILLE POWER ADMINISTRATION CONTRACTORS. MR. TAYLOR ADDED THAT MR. ZAVALAS MAY NOT HAVE UNDERSTOOD FULLY THE DISCUSSIONS ON CONTRACT MATTERS AND MAY HAVE RECEIVED AN ERRONEOUS IMPRESSION CONCERNING THE BASIS FOR GRANTING TIME EXTENSIONS.

"IT IS NOTED THAT ON SEPTEMBER 10, 1954, THE SOLICITOR OF THIS DEPARTMENT WROTE TO MR. MILLINGTON, AN ATTORNEY THEN REPRESENTING MR. ZAVALAS:

"THIS SITUATION IS COMPLICATED BY THE FACT THAT THE OFFICIAL WHO ALLEGEDLY PROMISED THAT MR. ZAVALAS WOULD BE GRANTED EXTENSIONS OF TIME IS NOT IDENTIFIED.'

THE NAMES OF THESE OFFICIALS WERE FIRST MENTIONED IN THE LETTER OF AUGUST 3, 1955, TO YOU FROM JAMES G. CHANARIS, ESQ., AND BROUGHT TO OUR ATTENTION IN YOUR LETTER OF NOVEMBER 22, 1955. THUS MORE THAN FIVE YEARS HAVE ELAPSED SINCE THE EVENTS ARE ALLEGED TO HAVE TAKEN PLACE. IN VIEW OF THIS LAPSE OF TIME, IT IS NOT BELIEVED THAT ANY FURTHER INVESTIGATION, AT THIS TIME, WOULD THROW ANY ADDITIONAL LIGHT ON THE MATTER.'

IN THE LIGHT OF THE FOREGOING, WE HAVE NO ALTERNATIVE BUT TO ADVISE YOU THAT, ON THE PRESENT RECORD, NO LEGAL OR EQUITABLE BASIS EXISTS FOR ALLOWANCE OF THE CLAIM.