B-154153, JUL. 13, 1964

B-154153, JUL. 13, 1964

TO QUE ENTERPRISES, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 5, 1964, IN EFFECT REQUESTING REVIEW OF YOUR CLAIM FOR REFUND OF LIQUIDATED DAMAGES WHICH WAS DISALLOWED BY GENERAL ACCOUNTING OFFICE SETTLEMENT DATED APRIL 30, 1964, AND REMISSION ON AN EQUITABLE BASIS OF THE DAMAGES ASSESSED FOR LATE DELIVERY OF ONE TELEMETERING ANTENNA SYSTEM TO THE NATIONAL BUREAU OF STANDARDS, BOULDER, COLORADO, PURSUANT TO INVITATION FOR BIDS NO. 117-63, PURCHASE ORDER NO. 29515-3, ISSUED JUNE 18, 1963.

THE RECORD SHOWS THAT QUE ENTERPRISES WAS THE LOWEST RESPONSIVE BIDDER AND WAS AWARDED THE CONTRACT AFTER A FACILITIES SURVEY HAD BEEN MADE. AWARD WAS MADE ON JUNE 14, 1963, AND DELIVERY WAS TO BE MADE BY OR ON SEPTEMBER 3, 1963. DELIVERY OF THE ANTENNA WAS MADE ON SEPTEMBER 9, 1963, SIX DAYS LATE. THE LIQUIDATED DAMAGES PROVISION OF THE CONTRACT WAS AS FOLLOWS:

"LIQUIDATED DAMAGES

IF THE BIDDER REFUSES OR FAILS TO MAKE DELIVERY OF THE ITEMS WITHIN THE TIME SPECIFIED HEREIN, OR IN ANY SUPPLEMENTARY EXTENSION THEREOF, THE ACTUAL DAMAGE TO THE GOVERNMENT FROM THE DELAY WILL BE IMPOSSIBLE TO DETERMINE AND IN LIEU THEREOF THE BIDDER SHALL PAY TO THE GOVERNMENT AS FIXED, AGREED, AND LIQUIDATED DAMAGES FOR EACH CALENDAR DAY OF DELAY IN MAKING DELIVERY, THE AMOUNT SET FORTH IN PARAGRAPH 2 HEREOF AND THE BIDDER SHALL BE LIABLE FOR THE AMOUNT THEREOF.

"LIQUIDATED DAMAGES AT THE RATE OF $150.00 PER DAY WILL BE ASSESSED FOR EACH CALENDAR DAY OF DELAY IN EXCESS OF THE TOTAL TIME SPECIFIED FOR DELIVERY.

"FOR THE PURPOSE OF DEFINITION, A CALENDAR DAY SHALL BE CONSIDERED A PERIOD OF 24 HOURS RUNNING FROM 4 P.M. TO 4 P.M. OF EACH GIVEN DAY, INCLUDING SATURDAYS, SUNDAYS AND HOLIDAYS.'

PURSUANT TO THE ABOVE CONTRACT PROVISIONS, LIQUIDATED DAMAGES WERE ASSESSED AT $900, 6 DAYS AT $150 PER DAY. IT IS REPORTED THAT THE AMOUNT OF $900 WAS DEDUCTED FROM THE PAYMENT MADE ON THE VOUCHER WHICH COVERED THE PURCHASE OF THE TELEMETERING ANTENNA SYSTEM.

BY SETTLEMENT DATED APRIL 30, 1964, THE GENERAL ACCOUNTING OFFICE, CLAIMS DIVISION DISALLOWED YOUR CLAIM FOR THE AMOUNT WITHHELD FOR THE REASON THAT THE RECORD FAILED TO DISCLOSE ANY PROPER EXPLANATION FOR THE DELAY IN DELIVERY. NOR DOES THE RECORD SHOW THAT ANY EXTENSION OF TIME WAS GRANTED. NOR IS IT ALLEGED OR SHOWN THAT THE DELAY WAS OCCASIONED THROUGH NO FAULT OF QUE ENTERPRISES, INCORPORATED, OR ATTRIBUTABLE TO CAUSES BEYOND ITS CONTROL. UNDER SUCH CIRCUMSTANCES THERE IS NO PROPER LEGAL BASIS FOR ALLOWANCE OF YOUR CLAIM.

HOWEVER, YOUR PRESENT LETTER APPEALS FOR CONSIDERATION OF THE CLAIM ON AN EQUITABLE BASIS, AND IN EFFECT REQUESTS REMISSION OF THE CHARGES ASSESSED AS LIQUIDATED DAMAGES FOR DELAY.

WE REFERRED THE MATTER TO THE SECRETARY OF COMMERCE FOR CONSIDERATION OF REMISSION OF THE CHARGES ON AN EQUITABLE BASIS, AND RECOMMENDATION THEREON PURSUANT TO 41 U.S.C. 256A. THE SECRETARY OF COMMERCE, AFTER CONSIDERATION OF THE MERITS OF THE CASE, RECOMMENDED REMISSION OF THE CHARGES.

WE HAVE REVIEWED THE REPORTS IN THIS MATTER AS TO THE EQUITIES CONCERNED, AND OBSERVE THAT DURING THE 80-DAY PERFORMANCE TIME OF THE CONTRACT, OTHER PROJECTS WITH WHICH THE ANTENNA SYSTEM WAS TO BE USED WERE DELAYED 30 DAYS AND ALTHOUGH NO FORMAL NOTICE WAS ISSUED, ALL INTERESTED PARTIES WERE AWARE OF THE OVERALL DELAY, AND THE 6-DAY DELAY IN DELIVERY OF THE ANTENNA SYSTEM WAS UNIMPORTANT. IT FURTHER APPEARS THAT YOUR ANTENNA SYSTEM HAD BUILT INTO IT EXTRA FEATURES NOT CALLED FOR BY THE CONTRACT BUT EXTREMELY USEFUL TO THE GOVERNMENT AND OF A VALUE IN EXCESS OF THE ASSESSED DAMAGES.

ACCORDINGLY, PURSUANT TO AUTHORITY VESTED IN ME BY THE PROVISIONS OF 10 (A) OF THE ACT OF SEPTEMBER 5, 1960, 64 STAT. 578, 591 (41 U.S.C. 256A), AND IN ACCORDANCE WITH THE ADMINISTRATIVE RECOMMENDATION, REMISSION OF $900 LIQUIDATED DAMAGES IS APPROVED. OUR CLAIMS DIVISION IS BEING ADVISED TODAY TO MAKE SETTLEMENT IN YOUR FAVOR FOR THE AMOUNT OF $900.