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B-122386, JAN. 27, 1956

B-122386 Jan 27, 1956
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YOUR REQUEST IS BASED ON THE PREMISE THAT THE AMOUNT OF $218. 119.18 IS "ADMITTEDLY DUE" ON THE CLAIM. WE DO NOT AGREE THAT ANY LIQUIDATED AMOUNT IS DUE THE CONTRACTOR. YOU WILL APPRECIATE THE FACT THAT IF. AS CONTENDED BY THE ARMY AUTHORITIES IN THE AREA WHERE THE WORK WAS PERFORMED. THE CONTRACTOR WOULD HAVE SUSTAINED A CONSIDERABLE LOSS HAD HE COMPLETED THE CONTRACT. YOU WILL REALIZE THAT THE FINDINGS IN ANY AUDIT REPORT AS TO EXPENSES INCURRED BY THE CONTRACTOR ARE NOT TANTAMOUNT TO PROOF OF SUCH FINDINGS ACCEPTABLE IN A JUDICIAL FORUM. THERE ARE CONFLICTING CLAIMS ON BOTH SIDES. FOR THESE REASONS WE CANNOT AGREE THAT ANY LIQUIDATED AMOUNT IS DUE THE CONTRACTOR. IT WAS FOR THE PURPOSE OF ATTEMPTING TO ARRIVE AT A LIQUIDATION OF THE AMOUNT.

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B-122386, JAN. 27, 1956

TO MR. H. J. COHEN:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF DECEMBER 29, 1955, REQUESTING THAT PAYMENT BE MADE ON THE CLAIM OF CHESTER R. CLARKE, TRUSTEE FOR CHESTER CLARKE AND COMPANY, LTD., UNCONDITIONALLY.

YOUR REQUEST IS BASED ON THE PREMISE THAT THE AMOUNT OF $218,119.18 IS "ADMITTEDLY DUE" ON THE CLAIM. WE DO NOT AGREE THAT ANY LIQUIDATED AMOUNT IS DUE THE CONTRACTOR. YOU WILL APPRECIATE THE FACT THAT IF, AS CONTENDED BY THE ARMY AUTHORITIES IN THE AREA WHERE THE WORK WAS PERFORMED, THE CONTRACTOR WOULD HAVE SUSTAINED A CONSIDERABLE LOSS HAD HE COMPLETED THE CONTRACT, THIS MIGHT WELL REDUCE ANY AMOUNT RECOVERABLE BY THE CONTRACTOR FOR BREACH OF CONTRACT. ADDITIONALLY, YOU WILL REALIZE THAT THE FINDINGS IN ANY AUDIT REPORT AS TO EXPENSES INCURRED BY THE CONTRACTOR ARE NOT TANTAMOUNT TO PROOF OF SUCH FINDINGS ACCEPTABLE IN A JUDICIAL FORUM. ADMITTEDLY, THERE ARE CONFLICTING CLAIMS ON BOTH SIDES.

FOR THESE REASONS WE CANNOT AGREE THAT ANY LIQUIDATED AMOUNT IS DUE THE CONTRACTOR. IT WAS FOR THE PURPOSE OF ATTEMPTING TO ARRIVE AT A LIQUIDATION OF THE AMOUNT, IF ANY, WHICH MAY BE DUE THE CONTRACTOR THAT WE SUGGESTED THE POSSIBILITY OF A SETTLEMENT ON THE BASIS SET FORTH IN OUR LETTER OF NOVEMBER 30, 1955. UNLESS AGREEMENT CAN BE REACHED ON COMPLETE LIQUIDATION OF THE CONTRACTOR'S CLAIM, THE MATTER MUST BE CONSIDERED BY THIS OFFICE AS A CLAIM FOR UNLIQUIDATED DAMAGES FOR BREACH OF CONTRACT WHICH WE MUST DECLINE TO SETTLE FOR THE REASONS STATED IN OUR LETTER OF NOVEMBER 30, 1955.

IN SUCH EVENT, THE CONTRACTOR STILL HAS THE OPPORTUNITY TO PURSUE HIS REMEDY IN THE COURTS BY PROOF OF ANY DAMAGES SUSTAINED.

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