B-130131, MAY 10, 1957

B-130131: May 10, 1957

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INCORPORATED: REFERENCE IS MADE TO YOUR CLAIM IN THE AMOUNT OF $3. IT PROVIDES THAT THE EQUIPMENT "SHALL BE EQUAL TO OR SUPERIOR AS TO QUALITY AND PERFORMANCE AS THAT OF A WEATHER BUREAU MODEL WHICH WILL BE USED FOR COMPARISON TESTS.'. IN PARAGRAPH S-4 OF THE SPECIFICATION IT IS PROVIDED THAT "FILAMENT AND PRIMARY WIRING SHALL BE STRANDED NO. 14 AWG. DELIVERIES UNDER THE CONTRACT WERE COMPLETED DURING THE PERIOD OCTOBER 30 TO DECEMBER 13. IN CONNECTION WITH THE INITIAL DELIVERY OF FIVE UNITS YOU WERE ADVISED THAT THE WIRING DID NOT CONFORM TO THE SPECIFICATION NOR TO THE MODEL FURNISHED BY THE WEATHER BUREAU. THOSE UNITS WERE. IT WAS ALLEGED THAT THE DRAWINGS FURNISHED DID NOT AGREE WITH THE MODEL OF EQUIPMENT AND THAT "HAVING LATER BEEN INFORMED THAT THE PROTOTYPE WAS TO BE THE FINAL AUTHORITY ON ANY MATTERS OF INCOMPATIBILITY.

B-130131, MAY 10, 1957

TO POLYTRONIC RESEARCH, INCORPORATED:

REFERENCE IS MADE TO YOUR CLAIM IN THE AMOUNT OF $3,175.20, REPRESENTING AN ALLEGED BALANCE DUE FOR TWENTY RADAR PULSE AMPLIFIERS AND "A" SCOPES DELIVERED TO THE WEATHER BUREAU UNDER CONTRACT NO. CWB 9082 DATED NOVEMBER 17, 1955.

SPECIFICATION NO. 458.5004, MADE A PART OF THE CONTRACT, PROVIDES THAT "DRAWING NO. 458.510-B1 FORMS A PART OF THIS SPECIFICATION AND SHALL BE FOLLOWED IN THE CONSTRUCTION.' IT PROVIDES THAT THE EQUIPMENT "SHALL BE EQUAL TO OR SUPERIOR AS TO QUALITY AND PERFORMANCE AS THAT OF A WEATHER BUREAU MODEL WHICH WILL BE USED FOR COMPARISON TESTS.' ALSO, IN PARAGRAPH S-4 OF THE SPECIFICATION IT IS PROVIDED THAT "FILAMENT AND PRIMARY WIRING SHALL BE STRANDED NO. 14 AWG, GLASS INSULATED.'

DELIVERIES UNDER THE CONTRACT WERE COMPLETED DURING THE PERIOD OCTOBER 30 TO DECEMBER 13, 1956. IN CONNECTION WITH THE INITIAL DELIVERY OF FIVE UNITS YOU WERE ADVISED THAT THE WIRING DID NOT CONFORM TO THE SPECIFICATION NOR TO THE MODEL FURNISHED BY THE WEATHER BUREAU. THOSE UNITS WERE, HOWEVER, ACCEPTED BY THE BUREAU AND YOU CHANGED THE WIRING ON THE REMAINING FIFTEEN UNITS BEING MADE READY FOR DELIVERY. APPARENTLY, THE FILAMENT AND PRIMARY WIRING ORIGINALLY PLACED IN THE TWENTY UNITS CONFORMED TO THE MODEL OF EQUIPMENT AND ON THE LAST FIFTEEN UNITS YOU SUBSTITUTED NO. 14 WIRE, AS REQUIRED BY THE SPECIFICATION, FOR THE NO. 20 WIRE USED IN FOLLOWING THE WIRING FEATURES OF THE MODEL.

IN A LETTER DATED NOVEMBER 10, 1956, TO THE WEATHER BUREAU, IT WAS ALLEGED THAT THE DRAWINGS FURNISHED DID NOT AGREE WITH THE MODEL OF EQUIPMENT AND THAT "HAVING LATER BEEN INFORMED THAT THE PROTOTYPE WAS TO BE THE FINAL AUTHORITY ON ANY MATTERS OF INCOMPATIBILITY, ABOUT FIFTY HOURS OF TIME WERE REQUIRED TO REWORK THE SHEET METAL AND BRACKET ALONE TO RENDER THEM ACCEPTABLE.' IT WAS IMPLIED THAT THIS WAS DUE TO THE FACT THAT YOU RECEIVED THE DRAWINGS IN ADVANCE OF THE RECEIPT OF THE WEATHER BUREAU MODEL. IN REGARD TO THE USE OF THE NO. 20 WIRE FOR FILAMENTS, YOU STATED THAT YOU FOLLOWED THE MODEL AS INSTRUCTED. IT WAS ALLEGED THAT THREE PANELS WHICH HAD BEEN SHIPPED TO THE WEATHER BUREAU FOR APPLICATION OF DECALS HAD TO BE TORN DOWN AFTER ASSEMBLY AT YOUR SHOP BECAUSE THE DECALS HAD PEELED OFF. YOU ALLEGED, FURTHER, THAT MANY GOVERNMENT FURNISHED PARTS WERE IN POOR CONDITION AND REQUIRED SUBSTANTIAL CLEANING- UP AND SALVAGING; AND THAT SEVERAL TELEPHONE AND VERBAL REQUESTS FOR CHANGES FROM THE PROTOTYPE WERE MADE WITHOUT A LETTER OF FOLLOW-UP OR OTHER VERIFICATION.

YOUR CLAIM IS COMPUTED ON THE BASIS OF ALLEGED UNIT LABOR AND MATERIAL COSTS, PLUS OVERHEAD AND PROFIT THEREON, AGGREGATING THE SUM OF $306.12, AS COMPARED WITH THE CONTRACT UNIT PRICE OF $147.36. YOU WERE ADVISED BY A REPRESENTATIVE OF OUR OFFICE THAT THE VALIDITY OF A CLAIM OF THE TYPE PRESENTED BY YOUR COMPANY NORMALLY WOULD BE FOR DETERMINATION ON THE BASIS OF ESTABLISHED INCREASED COSTS DUE TO CHANGES IN THE REQUIREMENTS OF THE CONTRACT AND NOT ON THE BASIS OF ANY LOSS SUSTAINED IN THE PERFORMANCE OF THE CONTRACT WORK OR THE PROFIT THAT THE CONTRACTOR EXPECTED TO REALIZE. THIS IS IN ACCORDANCE WITH FUNDAMENTAL RULE THAT VALID CONTRACTS ARE TO BE ENFORCED AND PERFORMED AS WRITTEN, AND THE FACT THAT UNFORESEEN DIFFICULTIES ARE ENCOUNTERED WHICH RENDER PERFORMANCE MORE BURDENSOME OR LESS PROFITABLE THAN EXPECTED WILL NEITHER EXCUSE PERFORMANCE NOR ENTITLE A CONTRACTOR TO ADDITIONAL COMPENSATION UNLESS OTHERWISE SPECIFICALLY PROVIDED IN THE CONTRACT.

MOREOVER, THERE EXISTS A REASONABLE DOUBT AS TO WHETHER FAVORABLE CONSIDERATION COULD BE GIVEN TO ANY PART OF YOUR CLAIM IN THE ABSENCE OF A SHOWING THAT YOU REQUESTED WRITTEN ORDERS FOR THE PERFORMANCE OF THE ALLEGED EXTRA WORK AS CONTEMPLATED BY THE PROVISIONS OF ARTICLES 2 AND 3 OF STANDARD FORM 32, GENERAL PROVISIONS (SUPPLY CONTRACT) INCORPORATED IN YOUR CONTRACT BY REFERENCE. AS TO THE NECESSITY FOR STRICT COMPLIANCE WITH SUCH STIPULATIONS, SEE UNITED STATES V. BLAIR, 321 U.S. 730; PLUMLEY V. UNITED STATES, 226 U.S. 545, AND YUHASZ V. UNITED STATES, 109 F.2D 467; AND LOUISE HARDWICK, ADMINISTRATRIX V. UNITED STATES, 95 C.CLS. 336.

A REPORT HAS BEEN OBTAINED FROM THE WEATHER BUREAU CONCERNING EACH OF THE CONTENTIONS MADE BY YOUR COMPANY. YOUR REPRESENTATIVE WAS PERMITTED TO EXAMINE THE REPORT RECEIVED, WHICH RECOMMENDED PAYMENT OF $93.60 ON THE CLAIM, BUT IT APPEARS THAT YOU DO NOT CONSIDER THAT AMOUNT TO BE ACCEPTABLE AS A PROPER SETTLEMENT.

THE WEATHER BUREAU HAS REPORTED THAT THERE WERE A FEW ERRORS ON THE DRAWINGS BUT HAS EXPRESSED THE OPINION THAT THEY WERE NOT SIGNIFICANT. THIS CONNECTION, IT WAS INDICATED THAT IDENTICAL DRAWINGS WERE FURNISHED TO ANOTHER CONTRACTOR WHICH SUCCESSFULLY COMPLETED TEN OF THESE UNITS AND NO PROBLEMS WERE EXPERIENCED. CONTRARY TO YOUR IMPLICATION THAT THE MODEL OF EQUIPMENT WAS RECEIVED A CONSIDERABLE TIME LATER THAN THE DRAWINGS, THE REPORT OF THE BUREAU STATES THAT THE MODEL "A" SCOPE, LESS THE PULSE AMPLIFIER SECTION, WAS DELIVERED ON MAY 3, 1956, THE SAME DATE ON WHICH THE DRAWINGS WERE DELIVERED, AND THAT THE PULSE AMPLIFIER SECTION WAS DELIVERED FIVE DAYS LATER. IT WOULD SEEM, THEREFORE, THAT ANY DISCREPANCY BETWEEN DRAWINGS AND THE MODEL OF EQUIPMENT SHOULD HAVE BEEN DISCOVERED BY YOUR ENGINEERS PRIOR TO THE FABRICATION OF THE SHEET METAL PARTS REQUIRED IN THE CONSTRUCTION OF THE UNITS TO BE DELIVERED UNDER THE CONTRACT.

THE BUREAU DOES NOT DENY THAT YOU WERE INSTRUCTED TO FOLLOW THE CONSTRUCTION FEATURES OF THE MODEL IN CASES OF DISCREPANCIES BETWEEN THE DRAWINGS AND THE MODEL. HOWEVER, ITS REPORT STATES THAT AT THE TIME OF DELIVERY OF THE MODEL YOUR AGENT WAS ADVISED THAT THE SPECIFICATION CALLED FOR NO. 14 WIRE ON THE FILAMENTS AND THAT THE MODEL WAS INCORRECT IN THIS RESPECT.

IT HAS BEEN ALLEGED THAT SUCH INFORMATION WAS GIVEN, IF AT ALL, TO YOUR TRUCK DRIVER, AND THAT HE COULD NOT BE CONSIDERED TO BE THE PROPER PERSON IN YOUR ORGANIZATION TO BE ADVISED OF ANY DIFFERENCE BETWEEN THE MODEL AND SPECIFICATION NO. 458.5004. HOWEVER, THE SPECIFICATIONS OF A CONTRACT ARE CONTROLLING AND IT WOULD APPEAR THAT YOU SHOULD HAVE DEFINITELY ASCERTAINED WHETHER THE REQUIREMENTS FOR THE USE OF NO. 14 WIRE WAS TO BE WAIVED, REGARDLESS OF ANY GENERAL VERBAL ADVICE GIVEN TO THE EFFECT THAT THE CONSTRUCTION FEATURES OF THE MODEL WERE TO BE FOLLOWED IN CASES OF DISCREPANCIES BETWEEN THE DRAWINGS AND THE MODEL. THE DRAWINGS DO NOT APPEAR TO SHOW IN ANY EVENT THE TYPE OF WIRE TO BE USED FOR FILAMENT AND PRIMARY WIRING.

IN REGARD TO THE PEELING OFF OF THE DECALS APPLIED BY THE WEATHER BUREAU, THE BUREAU HAS EXPRESSED THE OPINION THAT THIS WAS DUE TO IMPROPER PREPARATION OF THE BASE METAL PRIOR TO APPLICATION OF THE FINISH COATS AND THAT THIS DEFECT WAS ENTIRELY THE FAULT OF YOUR COMPANY. WITH RESPECT TO THE PARTS FURNISHED BY THE GOVERNMENT, THE BUREAU HAS REPORTED THAT THE PARTS WERE SALVAGED FROM SURPLUS RADAR AND HAS ESTIMATED THAT 40 HOURS OF LABOR WERE REQUIRED TO CLEAN AND TEST THESE PARTS. IN CONNECTION WITH THE ALLEGED VERBAL REQUESTS FOR CHANGES, THE BUREAU HAS REPORTED THAT THE ONLY SIGNIFICANT CHANGE WAS THE ADDITION OF ONE NEW METER FACE ON EACH UNIT, THAT THE METER FACES WERE PROVIDED BY THE WEATHER BUREAU AND THAT ITS ESTIMATE OF THE TOTAL WORK REQUIRED TO EFFECT SUCH CHANGE IS 8 HOURS.

THE BUREAU'S RECOMMENDED ALLOWANCE OF $93.60 IS COMPUTED AT THE WAGE RATE OF $1.95 FOR FORTY-EIGHT HOURS OF ADDITIONAL WORK CONSISTING OF 8 HOURS FOR THE CHANGE IN THE METER FACES AND FORTY HOURS FOR THE ADDITIONAL WORK CAUSED BY THE GOVERNMENT'S FAILURE TO SUPPLY PARTS WHICH COULD NOT BE USED WITHOUT SUBSTANTIAL CLEANING AND TESTING.

ON THE BASIS OF THE RECORD PRESENTLY BEFORE US, WE ARE OF THE OPINION THAT SUCH AMOUNT IS THE MAXIMUM WHICH WE WOULD BE AUTHORIZED TO PAY ON YOUR CLAIM. HOWEVER, SINCE YOU HAVE INDICATED THAT A SETTLEMENT FOR THE AMOUNT OF $93.60 WOULD NOT BE ACCEPTABLE, IT IS PROPOSED TO TAKE NO FURTHER ACTION IN THE MATTER.

IN ACCORDANCE WITH YOUR REQUEST, THE DRAWINGS AND CERTAIN OTHER PAPERS SUBMITTED BY YOUR REPRESENTATIVE FOR USE IN OUR CONSIDERATION OF THE CASE ARE RETURNED HEREWITH.