B-143781, MAR. 8, 1962

B-143781, MAR. 8, 1962

TO KOERNER, YOUNG, MCCOLLOCH AND DEZENDORF, ESQUIRES:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 5, 1962, REQUESTING ON BEHALF OF THE OLSON ELECTRIC COMPANY THAT OUR OFFICE REVIEW THE MATTER OF THE LIQUIDATED DAMAGES ASSESSED BY THE FEDERAL AVIATION AGENCY UNDER CONTRACT NO. C4CA-5396A FOR THE APPROACH LIGHTING SYSTEM AT THE SEATTLE- TACOMA AIRPORT. IT WAS STATED IN YOUR LETTER THAT THE FACTS RELATING TO THE MATTER WERE CONTAINED IN YOUR LETTER BRIEF DATED JANUARY 5, 1962,"WHICH HAS BEEN INCORPORATED IN THE FILE," AND YOU THEN EXPRESSED THE VIEW THAT THE ASSESSMENT OF LIQUIDATED DAMAGES IN THIS CASE WAS IMPROPER AND THAN, THEREFORE, THE AMOUNT OF SUCH DAMAGES SHOULD BE REFUNDED.

AS THE RESULT OF AN INFORMAL INQUIRY WE LEARNED THAT THE INDICATED LETTER OF JANUARY 5, 1962, WAS ON FILE WITH THE FEDERAL AVIATION AGENCY, AND PURSUANT TO OUR REQUEST THE SAME WAS FORWARDED HERE BY THAT AGENCY UNDER DATE OF FEBRUARY 13, 1962, TOGETHER WITH A COPY OF THE DECISION RENDERED BY THE ADMINISTRATOR, FAA, UNDER DATE OF JANUARY 22, 1962, TO THE EFFECT THAT A LETTER DATED NOVEMBER 23, 1959, ADDRESSED TO THE CONTRACTOR AND SIGNED BY MR. F. G. JENNINGS, CHIEF, PROCUREMENT BRANCH, CONSTITUTED A FORMAL DECISION BY THE CONTRACTING OFFICER WHICH, IF DISPUTED, SHOULD HAVE BEEN APPEALED WITHIN A PERIOD OF THIRTY DAYS FROM THE DATE ON WHICH THE CONTRACTOR RECEIVED A COPY OF SUCH DECISION.

IT WAS STATED FURTHER IN THE DECISION OF JANUARY 22, 1962, THAT SINCE THE CONTRACTOR ADMITTEDLY FAILED TO EXERCISE ITS RIGHT OF APPEAL WITHIN THE PRESCRIBED THIRTY DAY PERIOD, THE CONTRACTING OFFICER'S DECISION BECAME FINAL AND CONCLUSIVE UPON EXPIRATION OF THAT PERIOD AND THAT, THEREFORE, THE MATTER WAS NO LONGER SUBJECT TO ADMINISTRATIVE REVIEW AND RECONSIDERATION ON APPEAL.

WE WISH TO POINT OUT THAT UNDER THE TERMS OF THE CONTRACT MATTERS IN DISPUTE ARE IN THE FIRST INSTANCE TO BE PRESENTED TO THE CONTRACTING OFFICER FOR CONSIDERATION. IN VIEW OF OUR HOLDING, AS HEREINAFTER SET FORTH, IT APPEARS NECESSARY TO MAKE REFERENCE TO ONLY CERTAIN OF THE SEVERAL MATTERS SET FORTH IN YOUR LETTER OF JANUARY 5, 1962. AMONG OTHER THINGS, YOU STATED THAT A LETTER DATED MARCH 14, 1961, SIGNED BY MR. JENNINGS AS CONTRACTING OFFICER AND ENCLOSING A "REVIEW OF FACTS," WAS THE FIRST DECISION RECEIVED BY THE CONTRACTOR IN THIS CASE OVER THE TITLE OF ,CONTRACTING OFFICER.' YOU THEN WENT ON TO SAY THAT THE CONTRACTOR WAS ENTITLED TO A "CLEAR AND UNMISTAKABLE DECISION OVER THE TITLE OF "CONTRACTING OFFICER," " BEFORE THE THIRTY-DAY APPEAL PERIOD PRESCRIBED IN THE CONTRACT COMMENCES TO RUN.

IT IS ASSUMED THAT YOUR CLIENT HAS BEEN FURNISHED A COPY OF THE DECISION DATED JANUARY 22, 1962, WHEREIN WAS CONSIDERED THE MATTER OF THE SUFFICIENCY OF THE NOTICE GIVEN BY MR. JENNINGS CONCERNING HIS FINDINGS ETC. FOR THE REASONS SET FORTH IN THE CITED DECISION WE FEEL THAT YOUR CLIENT MUST HAVE BEEN FULLY AWARE THAT WHILE MR. JENNINGS MAY HAVE SIGNED AS CHIEF OF THE PROCUREMENT BRANCH, HE WAS AT THE SAME TIME ACTING IN HIS CAPACITY AS CONTRACTING OFFICER. THIS WAS CLEARLY INDICATED BY A STATEMENT IN MR. JENNINGS' LETTER OF NOVEMBER 23, 1959, THAT---

"* * * SINCE WE ARE DESIROUS OF CLOSING THIS CONTRACT, THE FINAL DECISION OF THE CONTRACTING OFFICER IS RENDERED HEREIN BASED ON AVAILABLE FACTS AND EVIDENCE.'

IT WAS ALSO POINTED OUT IN THE DECISION OF JANUARY 22, 1962, THAT THE CONTRACT WAS AMENDED BY A TOTAL OF TEN EQUALIZATION ORDERS AND THAT THE ACCEPTANCE CLAUSE OF EACH OF SUCH ORDERS WAS DULY SIGNED BY MR. JENNINGS AS CHIEF OF THE PROCUREMENT BRANCH. ON THIS SHOWING WE FIND NO GROUND FOR DISAGREEMENT WITH THE DECISION OF THE ADMINISTRATOR THAT YOUR CLIENT COULD NOT HAVE BEEN MISLED BY THE REPORTED FAILURE OF MR. JENNINGS TO DESIGNATE HIMSELF AS CONTRACTING OFFICER IN HIS SIGNATURE TO THE LETTER OF NOVEMBER 23, 1959, AND THAT SUCH LETTER CONSTITUTED AN APPEALABLE FINAL DECISION.

ON PAGE FOUR OF YOUR LETTER OF JANUARY 5 YOU STATED THAT THE FACTS CONCERNING THE PRECIPITATION DURING THE CONTRACT PERFORMANCE PERIOD ARE UNDISPUTED; THAT NO QUESTION OF FACT IS INVOLVED, AND THAT THE SOLE ISSUE IS THE LEGAL QUESTION AS TO WHETHER THE REPORTED PRECIPITATION CONSTITUTED ,UNUSUALLY SEVERE WEATHER.' IT IS ASSUMED THAT YOU HAVE A COPY OF OUR LETTER DATED DECEMBER 20, 1960, TO HONORABLE WARREN G. MAGNUSON, UNITED STATES SENATE, WHEREIN WE CONSIDERED YOUR CLIENT'S CLAIM FOR REFUND OF THE LIQUIDATED DAMAGES ASSESSED IN THIS CASE. WE MADE REFERENCE TO THE CONTRACTING OFFICER'S FINDINGS TO THE EFFECT THAT THE WEATHER ACTUALLY ENCOUNTERED BY THE CONTRACTOR WAS NOT UNUSUAL FOR THAT LOCALITY DURING THE INDICATED PERIOD AND THAT SUCH WEATHER COULD HAVE BEEN EXPECTED. MAKING HIS FINDINGS IT MUST BE ASSUMED THAT THE CONTRACTING OFFICER WAS ADVISED AS TO THE AMOUNT OF PRECIPITATION NORMALLY TO BE EXPECTED AND THAT HE MADE HIS FINDINGS IN THE LIGHT OF SUCH INFORMATION. RESPECTING SUCH FINDINGS WE STATED THAT---

"* * * THIS APPEARS TO BE A DISPUTE CONCERNING A QUESTION OF FACT AND THUS WITHIN THE COMPETENCY OF THE CONTRACTING OFFICER TO DECIDE. * * *"

AS STATED IN OUR LETTER OF DECEMBER 20, 1960, UNDER THE "DISPUTES" CLAUSE ALL DISPUTES CONCERNING QUESTIONS OF FACT ARE TO BE DECIDED BY THE CONTRACTING OFFICER SUBJECT TO THE CONTRACTOR'S RIGHT TO APPEAL, WITHIN A SPECIFIED TIME, TO THE HEAD OF THE DEPARTMENT OR AGENCY CONCERNED, WHOSE DECISION, OR THAT OF HIS DESIGNATED REPRESENTATIVE, ETC., SHALL BE FINAL AND CONCLUSIVE UPON THE PARTIES.

UNDER THE RECORD IN THIS CASE, IT IS OUR VIEW THAT THE FINDINGS OF THE CONTRACTING OFFICER AS SET FORTH IN HIS DECISION OF NOVEMBER 23, 1959, ARE, UNDER THE DISPUTES CLAUSE OF THE CONTRACT, FINAL AND CONCLUSIVE UPON THE PARTIES IN THE ABSENCE OF AN APPEAL.

THE ONLY FURTHER AUTHORITY OF OUR OFFICE IN CONNECTION WITH THE LIQUIDATED DAMAGES ASSESSED IS THAT CONTAINED IN THE ACT OF SEPTEMBER 5, 1950, 64 STAT. 591, 41 U.S.C. 256 A, WHICH PROVIDES THAT WHENEVER ANY CONTRACT MADE ON BEHALF OF THE GOVERNMENT BY THE HEAD OF A FEDERAL AGENCY, OR BY OFFICERS AUTHORIZED BY HIM SO TO DO, INCLUDES A PROVISION FOR LIQUIDATED DAMAGES FOR DELAY, THE COMPTROLLER GENERAL OF THE UNITED STATES UPON THE 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. WE HAVE RECEIVED NO SUCH RECOMMENDATION IN THIS CASE FROM THE HEAD OF THE FEDERAL AVIATION AGENCY.