B-152201, SEP. 26, 1963

B-152201, SEP. 26, 1963

TO TIME CHEMICAL CORPORATION:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 26, 1963, WITH ENCLOSURES, REQUESTING REMISSION OF LIQUIDATED DAMAGES UNDER THE PROVISIONS OF 41 U.S.C. 256A IN THE AMOUNT OF $9,600 WHICH WERE ASSESSED AGAINST YOUR COMPANY UNDER DEPARTMENT OF AGRICULTURE CONTRACT NO. 15-117, DATED MAY 23, 1963.

IT IS ASSUMED THAT THE CONTRACT CONTAINED THE STANDARD GOVERNMENT CLAUSE WHICH PROVIDES, IN EFFECT, THAT WHEN DELAYS IN THE COMPLETION OF THE WORK OCCUR AND ARE DUE TO CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR, THE GOVERNMENT CONTRACTING OFFICER, UPON RECEIPT OF TIMELY NOTICE FROM THE CONTRACTOR OF SUCH DELAYS AND THE CAUSES THEREOF, SHALL ASCERTAIN THE FACTS AND EXTENT OF THE DELAY AND EXTEND THE TIME FOR COMPLETING THE WORK WHEN IN HIS JUDGMENT THE FINDINGS OF FACTS JUSTIFY SUCH AN EXTENSION. NOTWITHSTANDING THE APPARENT AVAILABILITY OF THIS FORM OF RELIEF UNDER THE CONTRACT TERMS FOR RESULTING DELAYS, YOU HAVE NOT FURNISHED OR REFERRED TO ANY FINDING OF FACT AND DECISION BY THE GOVERNMENT CONTRACTING OFFICER IN THIS REGARD, WHICH INDICATES THAT YOUR COMPANY DID NOT SEEK RELIEF IN THE FORM OF ANY EXTENSION OF TIME UNDER THE CONTRACT. THE RELIEF AUTHORIZED UNDER THE PROVISIONS OF 41 U.S.C. 256A WAS INTENDED TO BE SUPPLEMENTARY TO, RATHER THAN IN LIEU OF, ANY RELIEF CONTRACTORS MIGHT BE ENTITLED TO RECEIVE UNDER THE TERMS OF THEIR CONTRACTS. THE STATUTORY PROVISIONS INVOLVED WERE DESIGNED FOR THE PURPOSE OF AFFORDING EQUITABLE RELIEF TO CONTRACTORS FROM THE ASSESSMENT OF LIQUIDATED DAMAGES ONLY IN THOSE INSTANCES WHERE THEY PROPERLY MAY NOT BE GRANTED AN EXTENSION OF TIME FOR PERFORMANCE UNDER THEIR CONTRACTS. THIS CONCLUSION FINDS SUPPORT IN THE LEGISLATIVE HISTORY OF THE STATUTORY PROVISIONS AND ALSO IN THE WELL-SETTLED RULE THAT EQUITABLE RELIEF IS AN EXTRAORDINARY REMEDY WHICH GENERALLY MAY NOT BE INVOKED WHERE THERE IS AN ADEQUATE REMEDY AT LAW. IT IS THEREFORE THE SETTLED POSITION OF THIS OFFICE THAT EQUITABLE RELIEF FROM THE ASSESSMENT OF LIQUIDATED DAMAGES UNDER THE AUTHORITY VESTED IN THE COMPTROLLER GENERAL BY THE PROVISIONS OF 41 U.S.C. 256A SHOULD NOT BE GRANTED TO CONTRACTORS EVEN WHERE OTHERWISE PROPER UNLESS AND UNTIL ALL AVAILABLE ADMINISTRATIVE LEGAL REMEDIES UNDER THEIR CONTRACTS HAVE BEEN EXHAUSTED.

ACCORDINGLY, IN THE ABSENCE OF A FINAL DECISION UNDER THE DISPUTES CLAUSE OF THE CONTRACT, AS APPARENTLY CONTEMPLATED BY THE TERMS OF THE CLAUSE, THAT YOUR COMPANY'S DELAY WAS NOT DUE TO EXCUSABLE CAUSES WITHIN THE MEANING OF THE APPLICABLE CONTRACT PROVISIONS AND THAT YOUR COMPANY LEGALLY IS NOT ENTITLED TO AN EXTENSION OF TIME FOR PERFORMING THE CONTRACT, WE FEEL THAT WE WOULD NOT BE JUSTIFIED IN CONSIDERING THE QUESTION AS TO THE PROPRIETY OF WAIVING ANY PART OF THE LIQUIDATED DAMAGES INVOLVED UNDER THE STATUTE IN QUESTION, SOLELY ON THE BASIS OF WHETHER IT WOULD BE EQUITABLE AND JUST TO DO SO. ..END :