U.S. Government Printing Office
Contract Appeals Board

Vincent T. McCarthy, Chairman
Samuel Soopper, Member
Drew Spalding, Member

Appeal of Gulfstream Press, Inc.
C.A. 77-6
February 16, 1978

Findings of Fact

This appeal involves the assessment of liquidated damages for
delay on two different contracts.

Air Force Jacket Number 222-367 (the Air Force jacket) was a
fixed price printing contract for a large quantity of strips.
The specifications indicated that copy would be furnished to the
contractor by the Government Printing Office (GPO) by November
15, 1976.  The schedule for delivery was:

"Ship 800,000 strips on or before December 14, 1976

Ship complete on or before January 14, 1977"

Specifications, Jacket No. 222-367, Page 1 of 6. (Govt. Ex. 2)

The specifications also noted that "[t]he shipping schedule(s)
must be maintained," and referred, in this context, to the
liquidated damages provisions of GPO Form 2378. 1 No proofs were
required.

Gulfstream Press, Inc. (appellant) bid on this contract on
November 1, 1976.  The bid was accepted by the Government on
November 5, 1976. (Govt. Ex. 8)  Copy was received by appellant
on November 9, 1976; several days ahead of schedule.

The record is somewhat sketchy as to the actual performance of
the contract.  The initial 800,000 strips were apparently shipped
on December 20, 1976, four working days late. 2   On Tuesday,
January 11, 1977, Mr. Richard B. Doyle, appellant's president,
met with Mr. R.E. Goltz, the contracting officer, at the GPO to
discuss this contract and several others. (Govt. Ex. 27)  No
account of this meeting is in the record (with regard to the Air
Force jacket), except what can be gleaned from Mr. Doyle's letter
of March 1, 1977, to Mr. Goltz. (Govt. Ex. 37A)  He there
maintains that in the course of the meeting, Mr. Goltz told
appellant's representatives to give certain Internal Revenue
Service (IRS) jackets priority over this one (the letter is
reproduced below).

Shortly thereafter, the final shipment date arrived.  The control
card for the Air Force jacket has a notation concerning the
delay:  "1/17/77 -

2

Job still waiting on paper. Will contact when shipped." (Govt.
Ex. 12)  Various quantities of the strips were thereafter shipped
on various dates.  The final shipment was made by appellant on
March 16, 1977, two months past the due date.  (Govt. Ex. 38,
Govt. Ex. 40)

Prior to this, in the March 1st letter, appellant requested an
extension of time in which to complete delivery on this jacket.
We quote, in pertinent part:

"This letter is to confirm our telephone conversation of February
28th, in regards to J. 222-367, P.O. 81316.

If you recall, Gulfstream Press was asked to accelerate some
I.R.S. orders, which we did  (Form 1040, J. 218-204) and (1040F,
J. 218-366).

. . . .

In turn, both I.R.S. forms delayed Air Force J. 222-367, which we
are still working on.  To date, we have shipped over one million
six hundred thousand (1,600,000) Forms and will complete
(2,700,000) before March 18th.

When Mr. Stahl and myself visited Washington, we spoke to you and
Mr. Tedder, and affirmed the fact that we would be late with Air
Force J. 222-367, due to the acceleration of the I.R.S. orders.
If I recall correctly, your reply was that it was most important
to produce the I.R.S. orders before any others.

Now Gulfstream Press is in a position of suffering very serious
losses in liquidated damages, if my understanding was wrong.  We
are desperately asking you to consider our plight and issue a
change order for the shipping date on Air Force J. 222-367 based
on the convenience to the Government because of the need for
Forms 1040 and 1040F.

We are continuing to work twenty-four (24) hours a day on Air
Force J. 222-367 and are not asking for any additional
compensation.  In addition, I don't believe the Air Force has
been inconvenienced by our delayed shipments."

Letter from R. B. Doyle to R.E. Goltz. (Govt. Ex. 37A)

The contracting officer responded on March 31, 1977.  His letter
stated, in its entirety:

3

"This is in response to your letter of March 1, 1977, regarding
Jacket 222-367 wherein you claim that the shortened production
schedule of Jacket 218-204 had an adverse effect on the
scheduling of other Government purchase orders in your plant at
that time.

A thorough review of the circumstances concerning these various
jackets has been taken.  All justifiable extensions due were
given. Each purchase order must be handled as a separate
contract.

Due to the fact that you encountered scheduling problems with one
job cannot relieve you of your responsibility to maintain the
schedules of the other jobs you accepted.

Based on all the information available, an extension of the
shipping schedule of Jacket 222-367 may not be authorized."

(Govt. Ex. 37A)

Upon receipt of the government check in payment for this
contract, from which $28,701.12 had been withheld as liquidated
damages for late delivery, 3 appellant renewed its protest that
the due date should have been extended. (Govt. Ex. 41)  The
contracting officer issued a final decision denying any relief.
(Govt Ex. 42)  This appeal followed.

Since appellant maintains its delays on the Air Force jacket were
caused at least in part by problems with Jackets 218-086,
218-204, and 218-366, we must make certain findings of fact with
respect to those jackets. 4

Jacket 218-086 was a contract requisitioned by IRS. Appellant bid
on and was awarded the job in late August, 1976.  It initially
produced the job and made timely delivery on December 1, 1976.
However, the product was rejected because materials used failed
to conform to the specifications.  Appellant explains that this
mishap resulted from the fact that its paper supplier had
provided it with "an inferior grade of paper."  Appeal Letter at
1.

By letter of January 7, 1977, appellant was ordered to

"reprint these forms in strict accordance with the specifications
at no additional cost to the Government and ship 25% to each
destination on or before January 14, 1977 and the balance on or
before January 31, 1977 in accordance with attached distribution
list." Letter from R.E. Goltz to R.B. Doyle. (Govt. Ex. 33)

The shipment still was not complete as of March 28, 1977. (Govt.
Ex. 34)

4

Jacket 218-204, also an IRS contract, was awarded to appellant on
August 3, 1976.  Copy was to be received by October 15, 1976,
with delivery completed by December 20, 1976.  Appellant was
notified that its receipt of the copy would be delayed thirty
days. (Govt. Ex. 20)  The letter went on to say:

"Since it is imperative that we maintain the original shipping
schedules on these publications, or as close as possible to the
original, overtime will be authorized as necessary.

To accomplish this, we request that you submit.the following in
writing:

1.  The schedule you will meet without additional costs.

2.  The schedule you will meet with overtime.

3.  Itemized additional costs incurred including overtime to meet
the accelerated delivery."

Letter from R.E. Goltz to John Willer, Gulfstream Press, August
13, 1976.  (Govt. Ex. 20)

Appellant's formal response stated, in pertinent part:

"In reply to your letter of August 3rd, [sic] we have following
facts to report:

(1)  Our production time for 11,000,000, 3 x 11 sheets is about
150 hours for about four (4) weeks press time.  If this copy was
delayed thirty (30) calender days, we would need about thirty
(30) additional days to produce this form at no additional cost.

(2)  If we ran the job two (2) shifts it would be about 150 hours
press time, or two (2) weeks so we could deliver this job with
only two (2) weeks additional time.  This would mean eighty (80)
hours overtime for two (2) pressmen and two (2) collator
operators (operator & helper) or approximately $40.00 per hour or
$3,200.00.

5

(3)  If the job were required by Dec. 20th, with the copy
furnished by Nov. 15th, we would have to run twenty (20) hours
per day and weekends at doubletime.  I would guess that the
overtime would be about 125 hours at $40.00 per hour or
$5,000.00.

Letter from R.B. Doyle to R.E. Goltz, August 30, 1976. (Govt. Ex.
21)

Change orders were subsequently issued extending the shipping
date to December 29, 1976, and making appropriate adjustments in
the contract price. (Govt. Ex. 22, Govt. Ex. 23, Govt. Ex. 24)
However, delivery was not made on time, prompting a Show Cause
Notice (Govt. Ex. 26) and the January 11th meeting.  Appellant
explains the problems behind this delay in its Appeal Letter, at
page 1:

"[I]n negotiating the change order we made a mistake and
neglected to ask for an extension for Air Force Jacket  222-367
whose production time now conflicted and was concurrent with the
two (2) preceding IRS orders and IRS Jacket 218-366.  The paper
for this order was the same [type] as for Jacket 218-068 and we
discovered it was defective when we went to press Dec. 5th.  We
immediately placed orders for replacement paper . . . "
(Emphasis added).

Appellant bid on the last IRS contract, Jacket 218-366, on
October 26, 1976, and received the award on November 2nd. (Govt.
Ex. 1, Govt. Ex. 4, Govt. Ex. 6)  The schedule called for
"purchase order and repros to be received by the contractor by
November 8, 1976."  Specifications, Jacket 218-366, page 1 of 5.
(Govt. Ex. 1)  Delivery instructions were:

"Ship 5,712,000 copies on or before November 29, 1976

Ship complete on or before December 6, 1976."

Specifications, Jacket 218-366, page 1 of 5.

Appellant received the copy three days late, on November 11,
1976. 5  Additionally, bills of lading, which were required to be
furnished to appellant by GPO, were not received by it until
December 1, 1976, two days after the scheduled initial shipping
date.  Contracting Officer's Narrative at 4. 6  Appellant
completed shipping under this contract sometime in January,
though the exact date is not clear on the record.  At any rate,
appellant was assessed $3,370.40 in liquidated damages for this
delay in delivery.

6

Relevant Contract Provisions

In addition to portions of the specifications for Jacket No.
222-367 cited in the course of the Findings of Fact, certain
other contractual provisions are relevant.

United States Government Printing Office Contract Terms No. 1
(1970) is incorporated by reference in the specifications.
Specifications, Jacket No. 222-367 at page 1 of 6.  The following
provisions are quoted from Terms 1:

"Article 17.  Delay in deliveries.  --  Penalties and/or damages
shall not be applied against the contractor for delays in
delivery occasioned by unforeseeable causes beyond the control
and without the fault or negligence of the contractor, including,
but not restricted to, acts of God, or the public enemy, acts of
the Government, fires, floods, epidemics, quarantine
restrictions, strikes, freight embargoes, unusually severe
weather, and delays of a subcontractor due to such causes unless
the contracting officer shall determine that the services,
materials, or supplies to be furnished under the subcontract were
obtainable from other sources in sufficient time to permit the
contractor to meet the required delivery schedule:  Provided,
That the contractor shall, within 10 calendar days from the
beginning of such delay, notify the contracting officer in
writing of the cause of the delay:  Provided further, That such
notice to the contracting officer shall contain the justification
for such delay.

In the event the contract provides that Government bills of
lading will be furnished and the contractor elects to make more
shipments than provided for by the specifications or the number
of bills of lading which are furnished, he will not be relieved
of any penalties and/or damages for delays in delivery occasioned
by his failure to request additional bills of lading which he may
require or any increased cost of shipment."

"Article 19.  Liquidated damages.  --  Liquidated damages will be
charged only when indicated.  Unless otherwise specified in the
contract and where damages for delays are.to be charged, the
Government will deduct as liquidated damages, and not by way of
penalty, a percentage of the value of the work at the rate
indicated in the contract for each working day (or fraction
thereof) from any payment due the contractor.  The damages will
be computed from the day shipment was due to the actual date
of.shipment.  The term "working day" as used herein is defined as

7

Monday through Friday of each week, exclusive of the days on
which the following are observed:  New Year's Day, Washington's
Birthday, Memorial Day, Independence Day, Labor Day, Veterans
Day, Thanksgiving, and Christmas."

GPO Form 2378 C, Special Terms and Conditions (Supplemental to
the Basic Specifications) (1973) was also incorporated by
reference into the contract.  Specifications, Jacket No. 222-367,
page 6 of 6.  The following article is quoted from this
supplement:

"Liquidated Damages:  Should the contractor default on shipping
schedules stated in the specifications, the contractor will be
assessed liquidated damages against that part or parts of an
order which have not been shipped to the specified destination on
the specified date.  Damages will not be assessed against that
part or parts of an order which have been shipped on schedule.
The amount of damages will be computed at the rate of one percent
(1%) of the contract price of the quantity not shipped in
accordance with specifications for each working day the
contractor is in default of the shipping schedule(s):  Provided,
That the minimum amount of liquidated damages shall not be less
than $5 for the entire order and not more than $500 per day on
the entire order, except the total damages assessed against the
contractor shall in no case exceed fifty percent (50%) of the
total value of the entire order.  Liquidated damages will not be
assessed if the contractor has shipped at least ninety percent
(90%) of the quantity ordered for shipment to a specified
destination on or before the scheduled date.

Liquidated damages will apply to all shipments except the
following:  Materials furnished the contractor which are to be
returned to the Government; sample copies or materials for file
or storage purposes; and shipments marked either "File Copies" or
"Depository Copies" sent to the Government Printing Office, if
ordered.  However, payment of an order may be withheld until
evidence of shipment of such material or copies is furnished.

In the event the order, copy, materials, or other media which are
to be furnished by the Government are not furnished as scheduled,
the shipping schedule will be extended automatically by the
number of working days copy and/or materials are withheld from
the contractor.  Further extension or adjustments of schedule may
be made if requested in writing by the contractor within 10
calendar days from the beginning of a delay in delivery,
notifying the Contracting Officer of the cases of the delay, and
approved by the Contracting Officer.

8

In the event no adjustment of schedule has been requested, the
contractor will be considered to be delinquent if shipment has
not been made by the date established by the automatic extension,
however, he will be relieved of liquidated damages to the extent
of 1 day of grace for each working day the order, copy materials,
or other media are late, the period of grace for the relief of
liquidated damages in no event to exceed 3 days.

In the event an adjustment of schedule has been requested by the
contractor and is approved by the Government Printing Office and
ordering agency, the contractor will be required to meet the
adjusted shipping date and will be considered to be delinquent if
he fails to do so.  In such instances no relief from liquidated
damages will be allowed."

Decision

A.  Jacket No. 218-366

Appellant's letter of May 3, 1977, appeals the assessment of
liquidated damages under the Air Force jacket.  However, in the
course of the letter of appeal, the appellant also requests,
perhaps as an afterthought, a decision on the propriety of
liquidated damages taken on IRS Jacket 218-366.  Appeal letter at
3.  The contracting officer has seemed to acquiesce in
appellant's desire to have this issue decided now.  However,
there is no indication on the record that the contracting officer
ever rendered a final decision on this matter.  Without such a
decision, this Board cannot take jurisdiction of a dispute.
Article 29, U.S. Government Printing Office Contract Terms No. 1
(1970); Mike Bradford & Company, Inc., 69-1 BCA  7459 (ASBCA
1969).  We must therefore dismiss this part of the appeal as
premature.  We are especially hesitant to decide this controversy
without the benefit of the contracting officer's final decision
in light of his admission that "some question does arise about
the assessment of liquidated damages on [this jacket]."
Contracting Officer's Narrative at 4.

However, in light of the fact that we have had to make certain
findings with respect to this jacket, we will make the following
observations as an aid to the contracting officer, since it is
likely he will have to reach a decision on this matter.

It appears that there were delays on both sides during
performance of this contract.  The Court of Claims has limited
the use of liquidated damages in such a situation:

9

" '[W]here delays are caused by both parties to the contract the
court will not attempt to apportion them, but will simply hold
that the provision of the contract with reference to liquidated
damages will be annulled.' . . . That result is fair. It does not
deprive the Government of an opportunity to prove and recover its
actual damages caused by the contractor's delay; instead, the
defendant merely loses its right to insist on an artificial
measure of damages agreed on by the parties for the situation in
which the contractor alone is responsible for the delay."

Acme Process Equipment Company v. United States, 171 Ct. Cl.
324, 376; 347 F.2d 509, 535 (1965), rev'd on other grounds, 385
U.S. 138 (1966) (citations and footnotes omitted).

What this means is

"that the Government cannot assess liquidated damages when it
shares a degree of fault for delay and  the fault cannot be
apportioned.  See Appeal of the Poole & Kent Corporation -
Washington, VACAB No. 1086, 75 BCA  11,186.  Appeal of David M.
Cox, Inc., IBCA 1092-12-75, 76-2 BCA  12,003."

William Passalacqua Builders, Inc., 77-1 BCA  12406 at page
60,093, motion to reconsider denied, 77-2 BCA  12602 (GSBCA
1977) (Emphasis added).

Thus, on remand, if the contracting officer finds appellant's
delay unexcused, he can only assess liquidated damages to the
extent that the delay caused by the Government and that caused by
the contractor are clearly distinguishable and can be
apportioned.  If he finds liquidated damages inappropriate due to
the application of this rule, it would still be proper to assess
the government's actual damages, if any, against appellant. 7

This board would of course be ready to hear a timely appeal from
any final decision issued by the contracting officer on this
jacket.

B.  The Air Force Jacket (Jacket No. 222-367)

1.  Liquidated Damages Clause

Appellant advances two arguments against the assessment of
liquidated damages for the delay in delivery on this jacket.  It
initially contends that it has been assessed a penalty on the
grounds that the liquidated damages clause in the contract did
not meet the applicable legal standard.

10

Appellant makes several arguments to buttress this conclusion.
The first is that the routine inclusion of a liquidated damages
clause in the GPO printing procurement contract violated the
policy found at 41 CFR  1-1.315, Use of Liquidated Damages
Provisions in Procurement Contracts (1976).

There are several answers to this contention.  First, the Federal
Procurement Regulations found in 41 CFR  "apply to all Federal
agencies to the extent specified in the Federal Property and
Administrative Services Act of 1949  (40 U.S.C. 471 et seq.), or
another law."  41 CFR  1-1.004 (1976).  The Government Printing
Office is exempted from the provisions of that Act by 44 U.S.C.
311 (1970).  Nor are we aware of any other law which binds the
GPO to these regulations.

Even assuming the applicability of the regulations, however
appellant's argument must fail.  The Court of Claims has
considered the argument that lack of "case-by-case" consideration
in placing such a clause in a procurement contract violates 
1-1.315.  This contention was rejected:

"The answer is, we think, that the regulation does not require a
liquidated-damage schedule to be tailor-made for each individual
contract.  It is enough if the amount stipulated. is reasonable
for the particular agreement at the time it is made." Young
Associates, Inc. v. United States, 200 Ct. Cl. 438, 471 F.2d 618,
622 (1973).

Nor is the routine inclusion of such a clause into Government
contracts enough to void action taken under the clause as a
matter of general Federal procurement law.  Tamar Electronic.
Inc., 65-2 BCA  5267 (FAACAP 1965) at 24,795.

We should also point out that the cited regulations are in
harmony with the Board and the Court decisions in the area which
we next discuss.

Liquidated damages clauses are not looked upon with disfavor in
in Government contracts.  Priebe & Sons, Inc. v. United States,
332 U.S. 407 (1947); Southwest Engineering Company v. United
States, 341 F.2d 998 (8th Cir.). cert. denied 382 U.S. 819
(1965).  The general rules applicable to liquidated damages were
clearly set out in Southwest Engineering Company, supra, a
leading

11

case:in the area:

"Two requirements must be considered to determine whether the
provision included in the contract fixing the amount of damages
payable on breach will be interpreted as an enforceable
liquidated damage clause rather than an unforceable [sic] penalty
clause:

First, the amount so fixed must be a reasonable forecast of just
compensation for the harm that is caused by the breach, and
second, the harm that is caused by the breach must be one that is
incapable or very difficult of accurate estimation.

. . .

'Whether these requirements have been complied with must be
viewed as of the time the contract was executed rather than when
the contract was breached or at some other subsequent time . . ."
341 F.2d 998 at 1001 (citations omitted); See, e.g., Zinsco
Electrical Products, 66-1 BCA  5526 (IBCA 1966); Schouten
Construction Co., 65-1 BCA  4803 (FAACAP 1965).

Appellant argues that the liquidated damages clause in the
instant contract runs afoul of these principles since "the
Department (Air Force) did not believe that they [sic] would
suffer any ill effect" from a delay in delivery.  Appellant's
Supplementary Appeal Letter, November 10, 1977, at page 1. 8
This is based on a memorandum from the Department of the Air
Force to the Government Printing Office which states in pertinent
part:  "The Air Force agrees to extend the delivery date for the
balance of the above subject order [Jacket 222-367] up to but not
beyond, 60 days."  (Govt. Ex. 47)  The memo is undated, but a
date stamp indicates that it was received by GPO officials on
March 11, 1977.  As Southwest Engineering indicates, the
operative time as to whether the legal requirements for
liquidated damages have been met is at the time of the execution
of the contract, rather than some later point. This contract was
formally entered into on November 5, 1976.  The Air Force
memorandum was not issued until two months after the scheduled
completion date for the contract.  It is not an indication that
the Air Force did not contemplate damages for shipment delay at
the time in the contract was executed.  Appellant offers nothing
else in support of this argument.

12

The burden is on the appellant to supply proof, rather than mere
allegations, in support of its contention that the liquidated
damages clause is invalid.  Zinsco Electrical Products, supra  at
25,879.  Nothing has been advanced to show that the prescribed
rate of damages was not a reasonable forecast of possible harm
for a delay in delivery on this contract, or that this harm was
not difficult to accurately estimate.  And while there is no
indication on the record to affirm that this was indeed the case,
we are mindful of what the Court of Claims said in a similar
instance:

"Plaintiff gives us nothing to show that these principles require
the clause to be set aside in this instance.  The Government's
damages stemming from delayed receipt of the supplies or
construction it ordered are normally hard to measure, and it is
usually reasonable to establish some fixed monetary substitute
for calculation by trial." Young Associates, Inc. v.  United
States, 200 Ct. Cl. 438, 471 F.2d 618, 621 (1973).

We are also unable to say that the liquidated damages clause here
is invalid on its face.  For example, it does not assess damages
for delay in completion of an intermediate and dependent part of
an integrated contract. Schouten Construction Co., supra.  Nor
does it assess a flat rate without consideration of any partial
delivery.  Graybar Electric Co., Inc., 70-1 BCA  8121 (IBCA
1970).

We therefore conclude that on this record the liquidated damages
clause in Air Force Jacket 222-367 was valid and enforceable.

2.  Excusable Delay

Appellant additionally argues that the delay in deliveries was
excusable under the terms of Article 17, U.S. Government Printing
Office Contract Terms No. 1.  At the outset, we observe that the
appellant has the burden to prove that a delay is excusable under
the contract term, e.g., Aargus Poly Bag, 76-2 BCA  11927 (GSBCA
1976).  We also point out that Article 17 only excuses those
delays "occasioned by unforeseeable causes beyond the control and
without the fault or negligence of the contractor."  A prime
contractor is additionally responsible for the delays of
subcontractor due to such causes by the terms of this clause.
See Fidelity Construction Company, Inc., 77-2 BCA  12,831 (DOT
CAB 1977). 9

13

Appellant initially argues that it was unforeseeably and
unavoidably delayed due to defective supplies of paper as well as
its own failure to ask for an Air Force jacket when negotiating
the change order on IRS jacket 218-204.  The record does not
support the contention that either of these causes provides a
legal excuse for appellant's delay in performance.  The failure
to take the Air Force jacket into account when negotiating the
change order on the previous jacket is by appellant's own
admission its negligent error.  It is therefore not within the
scope of the clause.  Additionally, appellant admits that the
paper for the Air Force contract was defective.  This was
discovered when appellant went to press with the job on December
5, 1976.  The control card for the jacket, as we have noted,
gives the shortage of paper as the reason for the delay as late
as January 17, 1977.  See  Govt. Ex. 12.  Appellant has advanced
nothing to show that its supplier's failure to ship the proper
grade of paper was not negligent.  We therefore cannot hold this
misfortune as coming within Article 17.

Appellant also contends that the performance on the Air Force
contracts was held up by GPO's delays in furnishing copy on IRS
contracts 218-204 and 218-366.  A change order was issued on
218-204 to account for this delay.  To the extent it might have
caused problems on the Air Force schedule, this was subsumed by
appellant's mistake in negotiating the change order.  As for IRS
jacket 218-366, the copy was received three days late, on
November 11, 1976.  Since appellant was having problems with
paper on the Air Force contract nearly a month later, we cannot
view the copy delay on 218-366 as proximately causing any delay
on the Air Force contract.

Another aspect of this "domino theory", however, requires more
attention.  Appellant maintains that it was ordered by the
contracting officer at the January 11, 1977, meeting to
accelerate the IRS orders at the expense of this contract.  The
contracting officer does not specifically deny this, but insists
that each jacket must be considered separately and that he
therefore "had no choice but to impose damages on jacket
222-367."  Contracting Officer's Narrative at 4.

We feel that this does not respond fully to appellant's
contention.  We are certainly not able to say that under no
circumstances would a schedule change by the Government on one
contract result in the excusable delay on another.  Cf. Spasors
Electronics Corp., 70-1 BCA  8119, motion to reconsider denied,
70-1 BCA  8346 (ASBCA 1970).

Unfortunately, due to the inadequate record with reference to the
January 11th meeting, we cannot reach a decision on this point.
Instead, we will remand to the contracting officer for a
reconsideration of this particular issue.  If no such order was
given by the contracting officer at the January 11th meeting his
decision may stand as is, since we have determined the other

14

causes of delay advanced by appellant are inexcusable.  We also
do not request a reconsideration of any events prior to January
11, 1977.  Since the appellant has not shown delay incurred prior
to that date as excused, liquidated damages were properly
assessed on this jacket up to that point.  However, if the
contracting officer did indeed order a schedule change at the
January 11, 1977 meeting, he should consider whether a change
order should have been issued to take this into account.  If a
dispute arises once again on this specific issue, the Board would
hear a timely appeal from a renewed final decision by the
contracting officer.

C.  Remission of liquidated damages

The appellant additionally requests the Board to recommend to the
Comptroller General that the liquidated damages it has found
properly taken be waived pursuant to 64 Stat. 519 (1950), 41
U.S.C.  256a (1970).  This statute allows such remission by the
Comptroller General only upon recommendation of the head of the
Federal agency involved.  The mandate of this Board is solely to
decide disputes arising under contracts entered into by the GPO.
We are therefore without jurisdiction to make the requested
recommendation.  See, e.g., Pacific Plastics Company, Inc., 66-1
BCA  5395, motion to reconsider denied, 66-1 BCA  5508 (DCAB
1966).

D.  Conclusion

We reiterate our decisions with respect to this appeal:

1.  The appeal of the assessment of liquidated damages under
Jacket 218-366 is dismissed as premature.

2.  The appeal of the assessment of damages under Jacket 222-367
is denied on all issues except whether the delay after the
January 11, 1977, meeting was excused due to the contracting
officer's orders to give priority to other

15

contracts. The appeal of the assessment of damages of on Jacket
222-367 is therefore remanded to the contracting officer for
findings and a final decision only on this issue.

_______________

1  GPO Form 2378C (1973) was specifically incorporated by
reference in the specifications for this jacket.  Specifications,
Jacket No. 222-367 at page 6 of 6.

2  The control card for this jacket indicates a four day delay
(Govt. Ex. 12) while notes kept by GPO officials (Govt. Ex. 40)
say five days.  We view the control card as the more reliable
evidence.

3  The amount of the damages taken on this jacket are not at
issue in this appeal, anc we therefore, make no decision on this
point.

4  Appellant also appeals the liquidated damages assessed on
Jacket 218-366.  We deal with this issue at page 13, infra.

5  Appellant contends the copy was furnished five days later, but
we view the control card (Govt. Ex. 11) as determinative.

6  The reason for this delay is not apparent from the record.

7  The IRS alleges that actual damages were incurred by the delay
on Jacket 218-366.  See Govt. Ex. 51.

8  We do not understand appellant to contend that any lack of
actual damages on the part of the customer agency is significant.
It is, of course, well established that lack of actual damages
has no bearing on the propriety of an assessment of liquidated
damages.  e.g., Southwest Engineering v. United States, supra;
Zinsco Electrical Products, supra.

9  Subcontractor, in the contest of this clause, means any first
tier subcontractor or supplier.  Schweigert v. United States, 181
Ct. Cl. 1194, 388 F.2d 697 (1967).