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).