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B-185005 1 (1976-02-13)

handle is hein.gao/gaobaddgi0001 and id is 1 raw text is: DE~ . I D0 ~ 0F It c urdr D STAT M \ WASHiNGTON, [DC.C 205,10 FILE: B-185005 DATE: February 13, 1976 MATTER OF: C. M. Cooke & Company 9 D I CG- E ST: 1. Request for equitable remission of liquidated damages under 10 U. S. C. 2312 must be denied because agency has recom- mended against remission and Comptroller General may not remit liquidated damages in absence of favorable recomn- mendation from agency. 2. If liquidated damage provision in contract is otherwise valid, fact that Government did not suffer actual damages as result of default does not preclude assessment of liquidated damages against defaulting purchaser. 3. Claim that liquidated damages may not be retained because Government erred in placing claimant on cleared bidders list, thereby invalidating any contracts subsequently awarded to claimant, is without merit, since record does not support claim that clearance was granted in error. Furthern.ore, since clearance requirement is solely for protection of the Government, validity of contracts would not be affected by Government error in granting clearance. This decision involves a claim by C. M. Cooke & Company (Purchaser) for the remission of liquidated damages assessed under four contracts (Nos. 92-112-1116-11, 92-112-1118-12, 92- 112-1122-3, and 92-112-2002-26) with the Army Property Disposal Agency in Vietnam (APDA) for the sale of Government surplus property. On January 11, 1971, Mr. C. M. Cooke was cleared to engage in all surplus property transactions for a period of 12 months by the U. S. Embassy in Saigon (Embassy). Mr. Cooke at that time was doing business in the Far East in conjunction with a number of companies and was cleared under the name C. M. Cooke United Supply Agencies, P. O. Box 11.88, Saigon at the same mailing address as C. M. Cooke & Company, with both the APDA and the Embassy treating the clearance as applicable to C. M. Cooke & Company as well. The sales con- tracts in question were awarded to C. M. Cooke & Co. on June 15, 20, 25, and July 6, 1971, and contained a default clause which pro- vided that if the purchaser failed to make payment or remove

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