A-57619, NOVEMBER 2, 1934, 14 COMP. GEN. 353

A-57619, NOVEMBER 2, 1934, 14 COMP. GEN. 353

CONTRACTS - AIRPLANE SPECIFICATIONS - LESS THAN MAXIMUM PERFORMANCE IF IT IS IMPOSSIBLE TO STATE DEFINITELY THE PERFORMANCE THAT CAN OR CANNOT BE OBTAINED FROM AN AIRPLANE PRIOR TO THE ACTUAL CONSTRUCTION AND TEST THEREOF, THE REQUIREMENTS OF THE GOVERNMENT MAY BE STATED AS THE MAXIMUM PERFORMANCE WHICH MAY BE OBTAINED WITHIN THE LIMITS OF THE SPECIFICATIONS, WITH A PROVISION FOR THE AMOUNT OF REDUCTION IN PRICE IN THE EVENT THAT THE AIRPLANE SUBMITTED DID NOT FULLY MEET THE MAXIMUM PERFORMANCE REQUIREMENTS STATED IN SPECIFICATIONS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF COMMERCE, NOVEMBER 2, 1934:

WITH FURTHER REFERENCE TO THE MATTERS CONSIDERED IN MY DECISIONS OF SEPTEMBER 15 AND OCTOBER 18, 1934, CONCERNING THE PURCHASE BY THE DEPARTMENT OF COMMERCE OF 25 AIRPLANES TO COMPLY WITH PERFORMANCE SPECIFICATIONS AB-205 AS TO WHICH BIDS WERE OPENED AUGUST 27, 1934, THERE HAS BEEN RECEIVED YOUR LETTER OF OCTOBER 24, TO THE EFFECT THAT IN THE PRESENT STATE OF THE AVIATION ART IT IS IMPOSSIBLE TO STATE DEFINITELY JUST WHAT PERFORMANCE CAN OR CANNOT BE OBTAINED FROM AN AIRPLANE PRIOR TO THE ACTUAL CONSTRUCTION AND TEST THEREOF; THAT THE REQUIREMENT OF THE GOVERNMENT IN THIS INSTANCE IS FOR THE MAXIMUM PERFORMANCE WHICH MAY BE OBTAINED WITHIN THE LIMITS OF THE SPECIFICATIONS; THAT IT IS APPRECIATED THE PRODUCT OF THE SUCCESSFUL BIDDER MIGHT FAIL TO FULLY MEET THE MAXIMUM ESTIMATED PERFORMANCE BUT SUFFICIENTLY SO TO JUSTIFY ACCEPTANCE AT A REDUCED PRICE; AND THAT IT IS BELIEVED ADVISABLE TO SET OUT IN THE SPECIFICATIONS AND IN THE CONTRACT THE AMOUNT OF REDUCTION IN PRICE WHICH WOULD BE REQUIRED IN THE EVENT THAT THE AIRPLANE SUBMITTED DID NOT FULLY MEET THE SPECIFICATION PERFORMANCE REQUIREMENTS. YOU HAVE STATED THAT IN VIEW OF THE FACT THERE DID NOT APPEAR ANY PRECEDENTS CONCERNING DAMAGES FOR FAILURE TO MEET CERTAIN SPECIFIC REQUIREMENTS OF THE SPECIFICATIONS IN THE CONTRACT, YOU DESIRE DECISION AS TO THE LEGALITY OF INCLUDING SUCH DAMAGE PROVISIONS IN THE CONTRACT.

PRESUMABLY THERE WILL BE USED IN ACCORDANCE WITH REQUIREMENTS STANDARD FORM NO. 32, STANDARD GOVERNMENT FORM OF CONTRACT FOR SUPPLIES, AND IT IS PROVIDED IN ARTICLE 4 THEREOF THAT IN EVENT PUBLIC NECESSITY REQUIRES THE USE OF MATERIALS OR SUPPLIES NOT CONFORMING TO THE ECIFICATIONS,"PAYMENT THEREFOR SHALL BE MADE AT A PROPER REDUCTION IN PRICE.' THE ADVERTISED SPECIFICATIONS PROVIDED IN THIS CASE THAT:

REDUCTION IN CONTRACT PRICE: IN THE EVENT THAT ANY OF THE AIRPLANES DELIVERED UNDER THIS PROPOSAL FAIL TO COMPLETELY MEET THE REQUIREMENTS OF PARAGRAPHS 2A TO 2C, INCLUSIVE, OF THE SPECIFICATIONS, THE FOLLOWING REDUCTIONS FROM THE CONTRACT PRICE PER SHIP WILL BE MADE.

1. FOR FAILURE TO MEET THE PROVISIONS OF PARAGRAPH 2A, 1 PERCENT FOR EACH MILE PER HOUR BY WHICH THE ACTUAL PERFORMANCE FAILS TO MEET THE REQUIRED HIGH-SPEED PERFORMANCE.

2. FOR FAILURE TO MEET THE REQUIREMENTS OF PARAGRAPH 2B, A REDUCTION OF 2 PERCENT OF THE CONTRACT PRICE WILL BE MADE FOR EACH MILE PER HOUR BY WHICH THE ACTUAL PERFORMANCE FAILS TO MEET THE REQUIRED LOW-SPEED PERFORMANCE.

3. FOR FAILURE TO MEET THE PROVISIONS OF PARAGRAPH 2C, A REDUCTION OF ONE -FOURTH OF 1 PERCENT WILL BE MADE FOR EACH ADDITIONAL FOOT OF RUN REQUIRED ABOVE THE MINIMUM SPECIFIED TO CLEAR THE 35-FOOT OBSTACLE.

4. FOR FAILURE TO MEET THE REQUIREMENTS OF PARAGRAPH 2D, A REDUCTION OF ONE-HALF OF 1 PERCENT WILL BE MADE FOR EACH ADDITIONAL FOOT OF RUN REQUIRED BEYOND THE MINIMUM SPECIFIED TO BRING THE SHIP TO AN ABSOLUTE STOP AFTER LANDING OVER THE OBSTRUCTION AS SPECIFIED BY THIS PARAGRAPH.

5. FOR FAILURE TO MEET THE REQUIREMENTS OF PARAGRAPH 2E, A REDUCTION OF ONE-HALF OF 1 PERCENT WILL BE MADE FOR EACH ADDITIONAL FOOT REQUIRED ABOVE THE MINIMUM SPECIFIED TO BRING THE SHIP TO A STOP AFTER IT HAS OBTAINED A GROUND SPEED OF 45 MILES PER HOUR.

UNDER THE TERMS OF ARTICLE 4 OF THE STANDARD FORM OF CONTRACT FOR SUPPLIES, THE UNITED STATES MAY ACCEPT DELIVERIES NOT CONFORMING TO THE SPECIFICATIONS AT A PROPER REDUCTION IN PRICE, AND THE ABOVE-QUOTED TERMS OF THE ADVERTISED SPECIFICATIONS--- TO BE MADE A PART OF THE CONTRACT--- PROVIDE THE DEDUCTION WHICH SHALL BE MADE FROM THE CONTRACT PRICE BY REASON OF ANY FAILURE OF AIRPLANES TO MEET THE REQUIREMENTS OF THE SPECIFICATIONS. THERE APPEARS NO LEGAL OBJECTION TO SUCH STIPULATIONS AND YOU ARE ADVISED ACCORDINGLY.