B-140069, JUL. 20, 1959

B-140069, JUL. 20, 1959

TO THE BROSE OFFSET LITHOGRAPHIC COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 8, 1959, REQUESTING RECONSIDERATION OF SETTLEMENT DATED MAY 26, 1959, BY WHICH OUR CLAIMS DIVISION DISALLOWED YOUR CLAIM FOR REFUND OF LIQUIDATED DAMAGES IN THE AMOUNT OF $230.86, ASSESSED BY A GOVERNMENT PRINTING OFFICE ON ACCOUNT OF LATE DELIVERY OF A QUANTITY OF PAMPHLETS REQUIRED TO BE FURNISHED UNDER A PURCHASE ORDER DATED JUNE 26, 1958.

AS A BASIS FOR YOUR REQUEST, YOU SEEM TO TAKE THE POSITION THAT A TELEPHONE CONVERSATION BETWEEN YOUR MR. BROSE AND THE CONTRACTING OFFICER ON JULY 22, 1958, DID NOT AFFECT THE CONTRACT TERMS, SINCE ARTICLE 2 OF CONTRACT TERMS NO. 1 PROVIDED THAT---

"* * * NO ORAL STATEMENT OF ANY PERSON SHALL BE ALLOWED IN ANY MANNER OR DEGREE TO MODIFY OR OTHERWISE AFFECT THE TERMS, CONDITIONS, OR SPECIFICATIONS OF THE CONTRACT OR ANY PURCHASE ORDER THEREUNDER. * * *"

YOU THEN GO ON TO SAY IN YOUR LETTER THAT SINCE THE CONTRACT PRECLUDED VERBAL CHANGES, YOU EXPECTED TO RECEIVE A CHANGE ORDER SETTING FORTH SUCH NEW TERMS AND CONDITIONS AS MAY HAVE BEEN DESIRED. ALSO, YOU REFERRED TO ARTICLE 17 OF CONTRACT TERMS NO. 1, RELATING TO DELAY IN DELIVERY, WHICH PROVIDES THAT PENALTIES AND/OR DAMAGES SHALL NOT BE APPLIED AGAINST THE CONTRACTOR FOR DELAYS IN DELIVERY OCCASIONED BY UNFORSEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT FAULT OR NEGLIGENCE OF THE CONTRACTOR, AND YOU INSIST THAT YOU COULD HAVE PERFORMED THE WORK WITHIN THE SPECIFIED TIME IF THE NEGATIVES TO BE FURNISHED BY THE GOVERNMENT PRINTING OFFICE HAD BEEN DELIVERED TO YOU WITHIN THE CONTRACT SCHEDULE, THAT IS TO SAY, BY JUNE 27, 1958.

THE RECORD SHOWS THAT THE PURCHASE ORDER OF JUNE 26, 1958, WAS ISSUED PURSUANT TO YOUR BID DATED JUNE 17, 1958, WHEREBY YOU AGREED TO FURNISH 5,000 COPIES OF A PAMPHLET CONSISTING OF 40 PAGES AND COVER AT THE PRICE OF $685, AND AN ADDITIONAL 290 COPIES AT THE PRICE OF $17.40, SHIPMENT TO BE MADE ON OR BEFORE JULY 28, 1958, SUBJECT TO LIQUIDATED DAMAGES AT THE RATE OF ONE PERCENT OF THE CONTRACT PRICE FOR EACH DAY OF DELAY. AMONG OTHER THINGS, THE PURCHASE ORDER PROVIDED THAT THE GOVERNMENT PRINTING OFFICE WOULD FURNISH YOUR CONCERN WITH ONE SET (42) OF FILM NEGATIVES BY JUNE 27, 1958. THESE NEGATIVES WERE NOT FURNISHED UNTIL JULY 23, 1958, AND THUS WERE 17 WORKING DAYS LATE; HOWEVER, THE SPECIAL TERMS AND CONDITIONS, ON WHICH YOUR BID WAS BASED, CONTAINED THE FOLLOWING SPECIFIC PROVISION:

"IN THE EVENT COPY AND/OR MATERIALS WHICH ARE TO BE FURNISHED THE GOVERNMENT ARE NOT FURNISHED AS SCHEDULED, THE DELIVERY SCHEDULE WILL BE EXTENDED AUTOMATICALLY BY THE NUMBER OF WORKING DAYS COPY AND/OR MATERIALS ARE WITHHELD FROM THE CONTRACTOR. WHEN DELIVERY IS MADE LATER THAN THE DATE ESTABLISHED BY SUCH EXTENSION, THE CONTRACTOR WILL BE CONSIDERED TO BE DELINQUENT. FURTHER EXTENSION OR ADJUSTMENT OF SCHEDULE MAY BE MADE IF REQUESTED IN WRITING BY THE CONTRACTOR AND APPROVED BY THE GOVERNMENT PRINTING OFFICE AND ORDERING AGENCY.'

IT IS CLEAR THAT UNDER THE QUOTED TERMS AND CONDITIONS OF THE CONTRACT THE FAILURE OF THE GOVERNMENT PRINTING OFFICE TO FURNISH THE NEGATIVES UNTIL JULY 23, 1958, DID NOT CONSTITUTE A BREACH OF THE CONTRACT OR EXCUSE YOU FROM PERFORMING IT, BUT MERELY REQUIRED AN EXTENSION OF THE CONTRACT DELIVERY DATE BY A NUMBER OF WORKING DAYS EQUAL TO THE GOVERNMENT'S DELAY IN SHIPMENT, PLUS THREE DAYS OF GRACEPROVIDED FOR ELSEWHERE IN THE CONTRACT. IT FOLLOWS THAT NO CHANGE ORDER WAS REQUIRED TO PLACE THE EXTENDED DELIVERY DATE INTO EFFECT SINCE THE CONTRACT ITSELF SO PROVIDED, AND THE TELEPHONE CONVERSATION REFERRED TO DOES NOT APPEAR TO BE MATERIAL.

RESPECTING THE PENULTIMATE PARAGRAPH OF YOUR LETTER, TO THE EFFECT THAT YOU ARE WITHOUT FAULT OR NEGLIGENCE IN THIS MATTER SINCE THE DELAY WAS DUE TO THE FAILURE OF THE GOVERNMENT PRINTING OFFICE TO FURNISH THE NEGATIVES WITHIN THE PRESCRIBED TIME, AND THAT UNDER ARTICLE 17 OF CONTRACT TERMS NO. 1 NO LIQUIDATED DAMAGES SHOULD BE CHARGED IN THIS CASE, IT APPEARS THAT THE DELAY IN THIS CASE ATTRIBUTABLE TO THE GOVERNMENT PRINTING OFFICE WAS, UNDER THE CONTRACT TERMS, AUTOMATICALLY COMPENSATED FOR BY THE EQUIVALENT EXTENSION OF TIME FOR DELIVERY. ALSO, UNDER THE TERMS OF THE CITED ARTICLE, IN ORDER TO BE RELIEVED FROM LIQUIDATED DAMAGES FOR DELAY FOR REASONS BEYOND YOUR CONTROL, ETC., YOU WERE REQUIRED TO GIVE THE CONTRACTING OFFICER WRITTEN NOTICE WITHIN TEN CALENDAR DAYS FROM THE BEGINNING OF SUCH DELAY. THERE IS NOTHING IN THE RECORD BEFORE OUR OFFICE INDICATING THAT SUCH NOTICE WAS GIVEN, IT BEING STATED BY YOU MERELY THAT THE DELAY WOULD AFFECT YOUR VACATION SCHEDULE AND PLANT PRODUCTION.

UNDER THE FACTS OF RECORD IN THIS CASE WE ARE OF THE VIEW THAT THE ACTION OF THE GOVERNMENT PRINTING OFFICE IN ASSESSING AND COLLECTING LIQUIDATED DAMAGES WAS LEGALLY PROPER. SEE ROBINSON V. UNITED STATES, 261 U.S. 486. ACCORDINGLY, THE ACTION TAKEN IN THE SETTLEMENT OF MAY 26, 1959, DISALLOWING YOUR CLAIM, APPEARS TO HAVE BEEN CORRECT AND IS SUSTAINED.