B-144629, MAY 24, 1961

B-144629, MAY 24, 1961

TO STEWART-WARNER CORPORATION:

REFERENCE IS MADE TO YOUR LETTER AND A LETTER FROM YOUR ATTORNEYS, BOTH DATED APRIL 10, 1961, REQUESTING RECONSIDERATION OF OUR DECISION OF MARCH 10, 1961, IN WHICH WE HELD THAT WE COULD NOT FIND ANY PROPER BASIS FOR CANCELING A CONTRACT AWARDED TO AEROIL PRODUCTS COMPANY, INC., ON OCTOBER 31, 1960, UNDER INVITATION FOR BIDS NO. IFB-383-102-61 ISSUED BY THE AVIATION SUPPLY OFFICE (NAVY) ON AUGUST 8, 1960.

THE FACTS IN THE CASE ARE SET OUT IN DETAIL IN OUR DECISION OF MARCH 10, 1961, AND WILL NOT BE REPEATED HERE.

IT IS AGAIN CONTENDED IN EFFECT THAT THE SPECIFICATIONS AND DRAWINGS ARE AMBIGUOUS AND THAT YOUR INTERPRETATION AS TO THE EQUIPMENT REQUIRED TO BE FURNISHED IS DIFFERENT FROM THAT WHICH THE CONTRACTOR PROPOSES TO FURNISH. YOU POINT OUT ON PAGES 4 AND 5 OF YOUR MEMORANDUM IN SUPPORT OF YOUR REQUEST FOR CONSIDERATION THAT THE INCLUSION OF THE REFERENCE TO THE LOCKHEED LIFE TEST IN LAC 2-537 AND THE REFERENCE TO SPECIFICATION SR-132 (SUPERSEDED BY MIL-H-5484) "WAS INTENDED TO MAKE STEWART-WARNER RESPONSIBLE ON THE RECORD FOR ITS ASSURANCES THAT THE 921-C-2 HEATER IN ALL RESPECTS MET OR EXCEEDED THE MINIMUM REQUIREMENTS OF THE MILITARY SPECIFICATION AND THE LIFE TEST PROVISIONS OF LAC-2-537.' ALSO, YOU STATE THAT THE INCLUSION OF THESE REFERENCES BY LOCKHEED IN DRAWING NO. 644343 WAS NOT INTENDED TO MODIFY OR DOWNGRADE THE REQUIREMENT ESTABLISHED IN THE DRAWING THAT ANY OTHER HEATER BE IN ALL RESPECTS EQUAL TO STEWART-WARNER MODEL 921-C-2. THIS CONTENTION WAS ORIGINALLY PRESENTED IN EXHIBIT C TO YOUR LETTER OF SEPTEMBER 26, 1960, TO THE CONTRACTING OFFICE IN WHICH, AFTER CITING THE PROVISIONS OF THE INSTANT INVITATION, YOU STATED---

"THIS CLEARLY ESTABLISHES THE FACT THE INTENT OF DRAWING 644343 IS TO DEFINE A HEATER WHICH IS EQUAL TO THE 921-C-2 IN MATERIALS, CONSTRUCTION, OPERATION, STRUCTURAL INTEGRITY AND SERVICEABILITY.

"THIS THEN IS INTERPRETED TO MEAN THAT ANYONE ENDEAVORING TO COMPLY WOULD HAVE TO BUILD AN IDENTICAL COPY OF THE STEWART-WARNER 921-C2 IN ORDER TO CONFORM TO THE INTENT OF LOCKHEED DRAWING 644343. THIS IS AN UNOBTAINABLE OBJECTIVE SINCE THE 921-C2 IS A PROPRIETARY ITEM AND DRAWINGS ARE OWNED AND CONTROLLED BY STEWART-WARNER.'

AS POINTED OUT IN OUR DECISION THIS VIEW OF THE REQUIREMENTS WOULD COMPLETELY IGNORE THE SPECIFIC PROVISIONS OF THE INVITATION WITH REGARD TO THE EXCEPTIONS TO DRAWING NO. 644343 IN THAT THE "TESTS TO BE PERFORMED AT LOCKHEED" WERE TO BE ELIMINATED THEREFROM--- SINCE THIS WAS NOT A PURCHASE BY LOCKHEED--- AND THE LIFE TEST SPECIFIED IN LOCKHEED AIRCRAFT SPECIFICATION 2-537 WAS TO BE USED. ALL OTHER TESTS WERE TO BE IN ACCORDANCE WITH THE REQUIREMENTS OF MILITARY SPECIFICATION MIL-H-5484. PARAGRAPH 5.0291 OF LAC 2-537 SPECIFICALLY PROVIDES THAT THE COMBUSTION CHAMBER SHALL BE TESTED WITH PRESSURE OF 5 POUNDS PER SQUARE INCH AND THAT THE PRESSURE SHALL NOT BE BELOW 4.8 POUNDS PER SQUARE INCH AT THE END OF 10 MINUTES. THE FACT THAT YOU MAY HAVE FURNISHED HEATERS WITH A COMBUSTION CHAMBER THAT IS LEAKPROOF UNDER A PRESSURE OF 10 POUNDS PER SQUARE INCH MERELY SHOWS THAT YOU EXCEEDED THE TEST REQUIREMENT BUT IT CAN NOT BE INTERPRETED TO MEAN THAT YOU WERE REQUIRED, AS A MATTER OF CONTRACT LAW, TO FURNISH HEATERS COMPLYING WITH THE HIGHER TEST REQUIREMENTS WHEN THE SPECIFICATIONS ONLY REQUIRED THE "FIVE-POUND TEST.' HAVING IN MIND THAT COMPETITIVE BIDS WERE INVITED IN THIS CASE AND THAT A SPECIFIC EXCEPTION IN THE INVITATION IN REGARD TO TESTS WAS SET OUT THEREIN, THOSE TESTS EXPRESSLY SPELLED OUT MUST BE HELD TO APPLY SINCE IT IS A GENERAL RULE OF LAW THAT A WRITING MUST BE INTERPRETED AS A WHOLE AND THAT SPECIFIC CLAUSES OR PROVISIONS ALWAYS PREVAIL OVER GENERAL PROVISIONS, IF THEY APPEAR TO BE IN CONFLICT.

THE QUESTION OF WHETHER THE HEATERS FURNISHED UNDER THE INSTANT CONTRACT WILL PERFORM SATISFACTORILY IN P2V AIRCRAFT IS A MATTER PRIMARILY FOR DETERMINATION BY THE ADMINISTRATIVE OFFICE WHEN THE PREPRODUCTION SAMPLE HAS BEEN TESTED.

WE HAVE AGAIN GIVEN CAREFUL CONSIDERATION TO YOUR CONTENTIONS BUT MUST CONCLUDE THAT NOTHING HAS BEEN FURNISHED WHICH WOULD WARRANT ANY CHANGE IN THE RESULT HERETOFORE REACHED IN THE MATTER AND, ACCORDINGLY, THE DECISION OF MARCH 10, 1961, IS AFFIRMED.