B-95268, JUNE 28, 1950, 29 COMP. GEN. 524

B-95268, JUNE 28, 1950, 29 COMP. GEN. 524

CONTRACTS - LIQUIDATED DAMAGES - REMISSION OF BY THE COMPTROLLER GENERAL THE AUTHORITY VESTED IN THE ADMINISTRATOR OF GENERAL SERVICES UNDER THE ACT OF JUNE 6, 1902, TO REMIT LIQUIDATED DAMAGES PROVIDED FOR IN CONTRACTS FOR CONSTRUCTION OR REPAIR OF PUBLIC BUILDINGS OR WORKS, BEING INCONSISTENT WITH THE AUTHORITY NOW VESTED IN THE COMPTROLLER GENERAL BY SECTION 306 OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949 TO REMIT SUCH DAMAGES, AND SECTION 502 (C) OF THE 1949 ACT EXPRESSLY PROVIDING THAT THE AUTHORITY CONFERRED BY THAT ACT SHALL NOT BE SUBJECT TO ANY INCONSISTENT LEGISLATION, THE ADMINISTRATOR OF GENERAL SERVICES MAY NOT REMIT LIQUIDATED DAMAGES PROVIDED FOR UNDER SUCH CONTRACTS ENTERED INTO AFTER THE EFFECTIVE DATE OF THE 1949 ACT.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, JUNE 28, 1950:

REFERENCE IS MADE TO YOUR LETTER OF MAY 9, 1950, WITH ENCLOSURES, REQUESTING A DECISION AS TO WHETHER YOU ARE AUTHORIZED--- UNDER THE AUTHORITY CONTAINED IN THE ACT OF JUNE 6, 1902, 32 STAT. 326 (40 U.S.C. 269), AS TRANSFERRED TO AND VESTED IN YOU BY VIRTUE OF THE PROVISIONS OF REORGANIZATION PLAN NO. 1, SECTION 303 (B), 53 STAT. 1427, EFFECTIVE JULY 1, 1939, 4 F.R. 2729, AND SECTION 103 OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 63 STAT. 377, 380--- TO REMIT LIQUIDATED DAMAGES PROVIDED FOR UNDER CONTRACTS ENTERED INTO SUBSEQUENT TO JULY 1, 1949, COVERING THE CONSTRUCTION OR REPAIR OF PUBLIC BUILDINGS OR PUBLIC WORKS.

SECTION 269 OF TITLE 40, U.S.C., PROVIDES, IN PERTINENT PART, AS FOLLOWS:

IN ALL CONTRACTS ENTERED INTO WITH THE UNITED STATES FOR THE CONSTRUCTION OR REPAIR OF ANY PUBLIC BUILDING OR PUBLIC WORK UNDER THE CONTROL OF THE ( GENERAL SERVICES ADMINISTRATION), A STIPULATION SHALL BE INSERTED FOR LIQUIDATED DAMAGES FOR DELAY; AND THE ( ADMINISTRATOR OF GENERAL SERVICES) IS AUTHORIZED AND EMPOWERED TO REMIT THE WHOLE OR ANY PART OF SUCH DAMAGES AS IN HIS DISCRETION MAY BE JUST AND EQUITABLE * * *.

YOUR DOUBT AS TO WHETHER YOU MAY EXERCISE THE AUTHORITY CONFERRED ON YOU BY THE PROVISIONS OF THE ABOVE-QUOTED LAW WITH RESPECT TO CONTRACTS ENTERED INTO FOR THE CONSTRUCTION OR REPAIR OF ANY PUBLIC BUILDING OR PUBLIC WORK SUBSEQUENT TO JULY 1, 1949, ARISES BECAUSE OF THE PROVISIONS OF SECTION 306, TITLE III, AND SECTION 502 (C), TITLE V, OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 63 STAT. 377, 396, 401, WHICH PROVIDE, IN PERTINENT PART, AS FOLLOWS:

SEC. 306. WHENEVER ANY CONTRACT MADE ON BEHALF OF THE GOVERNMENT BY THE AGENCY HEAD OR BY OFFICERS AUTHORIZED BY HIM SO TO DO INCLUDES A PROVISION FOR LIQUIDATED DAMAGES FOR DELAY, THE COMPTROLLER GENERAL ON THE RECOMMENDATION OF THE AGENCY HEAD IS AUTHORIZED AND EMPOWERED TO REMIT THE WHOLE OR ANY PART OF SUCH DAMAGES AS IN HIS DISCRETION MAY BE JUST AND EQUITABLE.

SEC. 502 (C) THE AUTHORITY CONFERRED BY THIS ACT IS IN ADDITION TO ANY AUTHORITY CONFERRED BY ANY OTHER LAW AND SHALL NOT BE SUBJECT TO THE PROVISIONS OF ANY LAW INCONSISTENT HEREWITH * * *.

IN YOUR LETTER YOU POINT OUT THAT TITLE III OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949 IS ENTITLED " PROCUREMENT PROCEDURE" AND THE PURPOSE OF THE TITLE IS STATED IN SECTION 301, 63 STAT. 393, AS "TO FACILITATE THE PROCUREMENT OF SUPPLIES AND SERVICES" AND THAT, WHILE YOU BELIEVE THAT THE PROVISIONS OF TITLE III ARE BROAD ENOUGH TO AUTHORIZE THE ENTERING INTO OF CONSTRUCTION AND REPAIR CONTRACTS, YOUR ADMINISTRATION DERIVES SPECIFIC AUTHORITY FOR THE EXECUTION OF SUCH CONTRACTS FROM VARIOUS OTHER STATUTES AND APPROPRIATION ACTS. YOU STATE THAT AN EXAMINATION OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, THE CONFERENCE REPORTS OF BOTH HOUSES OF THE CONGRESS RELATIVE THERETO, AND ITS LEGISLATIVE HISTORY FAILS TO DISCLOSE ANY BASIS TO SUPPORT THE INFERENCE THAT IT WAS THE INTENTION OF CONGRESS, IN THE ENACTMENT OF SECTION 306 OF TITLE III, VESTING AUTHORITY IN THE COMPTROLLER GENERAL FOR THE REMISSION OF LIQUIDATED DAMAGES PROVIDED FOR IN CONTRACTS COVERING THE PROCUREMENT OF SUPPLIES AND SERVICES EXECUTED UNDER THE AUTHORITY OF SUCH ACT, TO THEREBY REVOKE THE AUTHORITY VESTED IN YOU BY THE ABOVE-CITED 1902 STATUTE TO REMIT LIQUIDATED DAMAGES PROVIDED FOR IN CONTRACTS COVERING CONSTRUCTION OR REPAIR OF PUBLIC BUILDINGS OR WORKS EXECUTED UNDER OTHER APPROPRIATE AUTHORITY AND THAT, THEREFORE, IT IS YOUR OPINION THAT YOUR AUTHORITY UNDER THE 1902 STATUTE IS IN ADDITION TO, BUT NOT INCONSISTENT WITH, THE AUTHORITY VESTED IN THE COMPTROLLER GENERAL BY SECTION 306, TITLE III, OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949.

SECTION 302 (A) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 63 STAT. 393, PROVIDES THAT THE PROVISIONS OF TITLE III, WHICH INCLUDES SECTION 306, SHALL BE APPLICABLE TO PURCHASES AND CONTRACTS FOR SUPPLIES OR SERVICES MADE BY THE GENERAL SERVICES ADMINISTRATION FOR THE USE OF SUCH AGENCY OR OTHERWISE.

SUBSECTION (E) OF SECTION 302, 63 STAT. 394, PROVIDES:

THIS SECTION SHALL NOT BE CONSTRUED TO (A) AUTHORIZE THE ERECTION, REPAIR, OR FURNISHING OF ANY PUBLIC BUILDING OR IMPROVEMENT, BUT SUCH AUTHORIZATION SHALL BE REQUIRED IN THE SAME MANNER AS HERETOFORE, OR (B) PERMIT ANY CONTRACT FOR THE CONSTRUCTION OR REPAIR OF BUILDINGS, ROADS, SIDEWALKS, SEWERS, MAINS, OR SIMILAR ITEMS TO BE NEGOTIATED WITHOUT ADVERTISING AS REQUIRED BY SECTION 303, UNLESS SUCH CONTRACT IS TO BE PERFORMED OUTSIDE THE CONTINENTAL UNITED STATES OR UNLESS NEGOTIATION OF SUCH CONTRACT IS AUTHORIZED BY THE PROVISIONS OF PARAGRAPH (1), (2), (3), (9), (10), (11), OR (13) OF SUBSECTION (C) OF THIS SECTION.

SECTION 309 (B), TITLE III, OF THE ACT, 63 STAT. 397, PROVIDES THAT, AS USED IN THAT TITLE, THE TERM "SUPPLIES" SHALL MEAN "ALL PROPERTY EXCEPT LAND, AND SHALL INCLUDE, BY WAY OF DESCRIPTION AND WITHOUT LIMITATION, PUBLIC WORKS, BUILDINGS, FACILITIES.'

IN VIEW OF THE DEFINITION OF "SUPPLIES" CONTAINED IN SECTION 309 (B) OF THE ACT AND HAVING REGARD FOR THE ABOVE-QUOTED PROVISIONS OF SECTION 302 (E), IT SEEMS APPARENT THAT, ALTHOUGH TITLE III DOES NOT AUTHORIZE THE ERECTION, REPAIR, OR FURNISHING OF ANY PUBLIC BUILDING, IT DOES REQUIRE THAT CONTRACTS THEREFOR, WHEN OTHERWISE AUTHORIZED BY LAW, SHALL BE ENTERED INTO BY THE GENERAL SERVICES ADMINISTRATION IN ACCORDANCE WITH THE PROCEDURE PRESCRIBED THEREIN. IT WOULD SEEM TO FOLLOW, THEREFORE, THAT CONTRACTS ENTERED INTO BY THE GENERAL SERVICES ADMINISTRATION FOR THE CONSTRUCTION OR REPAIR OF ANY PUBLIC BUILDING OR PUBLIC WORK SUBSEQUENT TO JULY 1, 1949, ARE WITHIN THE SCOPE OF SECTION 306 OF THE ACT. THEREFORE, SINCE THE AUTHORITY TO REMIT LIQUIDATED DAMAGES UNDER SUCH CONTRACTS IS VESTED IN THE COMPTROLLER GENERAL, WITH THE RESULT THAT THE AUTHORITY CONFERRED BY THE 1902 STATUTE IS INCONSISTENT THEREWITH, AND SINCE SECTION 502 (C) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949 EXPRESSLY PROVIDES THAT THE AUTHORITY CONFERRED BY THAT ACT SHALL NOT BE SUBJECT TO ANY INCONSISTENT LEGISLATION, THE CONCLUSION APPEARS REQUIRED THAT YOU MAY NOT LEGALLY REMIT LIQUIDATED DAMAGES PROVIDED FOR UNDER SUCH SUCH CONTRACTS ENTERED INTO SUBSEQUENT TO JULY 1, 1949.

THE ENCLOSURES FORWARDED WITH YOUR LETTER ARE RETURNED HEREWITH AS REQUESTED.