B-146476, DEC. 6, 1961

B-146476: Dec 6, 1961

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TO CARRIER CORPORATION: REFERENCE IS MADE TO YOUR LETTER DATED JULY 6. WHEREIN THERE WAS DISALLOWED YOUR CLAIM IN THE AMOUNT OF $5. THE ABOVE-MENTIONED CONTRACT FOR CONSTRUCTION OF THE CADET DINING HALL WAS EXECUTED WITH DONDLINGER AND SONS CONSTRUCTION COMPANY. YOUR COMPANY WAS APPROVED AS A SUBCONTRACTOR TO THE KENDALL PLUMBING COMPANY FOR INSTALLATION OF THE REFRIGERATION EQUIPMENT. ON THE PREMISE THAT THERE WAS NO PRIVITY OF CONTRACT BETWEEN THE GOVERNMENT AND YOUR COMPANY. IS SUPPORTED BY A LONG-STANDING LINE OF JUDICIAL DECISIONS HOLDING FOR THE PROPOSITION THAT CONTRACTS TO PERFORM WORK FOR OR TO FURNISH SUPPLIES OR SERVICES TO PRIME CONTRACTORS ENGAGED IN THE PERFORMANCE OF CONTRACTS WITH THE GOVERNMENT ORDINARILY DO NOT RESULT IN PRIVITY BETWEEN SUCH PARTIES AND THE UNITED STATES.

B-146476, DEC. 6, 1961

TO CARRIER CORPORATION:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 6, 1961, TOGETHER WITH ENCLOSURES, REQUESTING RECONSIDERATION OF OUR CLAIMS DIVISION SETTLEMENT OF JUNE 13, 1961, WHEREIN THERE WAS DISALLOWED YOUR CLAIM IN THE AMOUNT OF $5,819.51, REPRESENTING AN AMOUNT ALLEGED TO BE DUE AS THE COST FOR INSTALLING ONE CARRIER RECIPROCATING COMPRESSOR IN THE CADET DINING HALL AT THE UNITED STATES AIR FORCE ACADEMY, COLORADO SPRINGS, COLORADO, AS A REPLACEMENT OF THE COMPRESSOR REQUIRED UNDER CONTRACT NO. AF 05 (613/-145 WITH DONDLINGER AND SONS CONSTRUCTION COMPANY, INC.

AS YOU KNOW, THE ABOVE-MENTIONED CONTRACT FOR CONSTRUCTION OF THE CADET DINING HALL WAS EXECUTED WITH DONDLINGER AND SONS CONSTRUCTION COMPANY, INC., AS PRIME CONTRACTOR, AND YOUR COMPANY WAS APPROVED AS A SUBCONTRACTOR TO THE KENDALL PLUMBING COMPANY FOR INSTALLATION OF THE REFRIGERATION EQUIPMENT. IN VIEW OF THIS STATUS, OUR CLAIMS DIVISION DISALLOWED YOUR CLAIM ON JUNE 13, 1961, ON THE PREMISE THAT THERE WAS NO PRIVITY OF CONTRACT BETWEEN THE GOVERNMENT AND YOUR COMPANY. THIS POSITION, OF COURSE, IS SUPPORTED BY A LONG-STANDING LINE OF JUDICIAL DECISIONS HOLDING FOR THE PROPOSITION THAT CONTRACTS TO PERFORM WORK FOR OR TO FURNISH SUPPLIES OR SERVICES TO PRIME CONTRACTORS ENGAGED IN THE PERFORMANCE OF CONTRACTS WITH THE GOVERNMENT ORDINARILY DO NOT RESULT IN PRIVITY BETWEEN SUCH PARTIES AND THE UNITED STATES. IN THIS CONNECTION, ATTENTION IS INVITED TO THE CASES OF H. HERFURTH, JR., INC. V. UNITED STATES 89 CT.CL. 122; JOSEPH PETRIN, ET AL. V. UNITED STATES, 90 ID. 670; UNITED STATES V. DRISCOLL, 96 U.S. 421, AND MERRITT V. UNITED STATES, 267 ID. 338.

NOTWITHSTANDING THE FOREGOING, HOWEVER, IT IS YOUR CONTENTION THAT THE REPLACEMENT COMPRESSOR WAS NOT FURNISHED PURSUANT TO CONTRACT NO. AF 05 (613/-145, BUT RATHER PURSUANT TO A VERBAL ORDER ISSUED BY AN OFFICIAL OF THE UNITED STATES AIR FORCE.

A CAREFUL REVIEW OF THE RECORDS ON FILE IN THIS OFFICE INDICATES THAT BECAUSE OF THE NUMEROUS DEFICIENCIES IN THE REFRIGERATION SYSTEM NOTED AT THE FINAL INSPECTION ON SEPTEMBER 3, 1958, THE SYSTEM WAS NOT ACCEPTED BY THE ACADEMY EXCEPT TO ASSUME SURVEILLANCE OPERATION. BETWEEN SEPTEMBER 3, 1958, AND MARCH 27, 1959, THE DATE OF THE COMPRESSOR FAILURE, IT IS REPORTED THAT YOUR COMPANY MADE NO EXTENSIVE EFFORT TO PLACE THE PLANT IN PROPER WORKING ORDER. A COMPLETE INVESTIGATION WAS MADE BY THE UNITED STATES AIR FORCE ACADEMY CONSTRUCTION AGENCY AND ALL ELECTRICIANS AND REFRIGERATION OPERATORS WERE QUERIED RELATIVE TO WORK PERFORMED ON THE UNITS SINCE OPERATION WAS ASSUMED BY THE ACADEMY. NO WORK OR MODIFICATION OF ANY KIND WAS DISCOVERED. THE OPERATING LOG BOOKS AND ACADEMY WORK ORDER RECORDS WERE RESEARCHED TO DETERMINE IF ANY WORK HAD BEEN PERFORMED ON THE TWO COMPRESSOR UNITS, BUT THE RESULTS WERE NEGATIVE. THE OPERATOR'S LOG BOOKS DID NOT SHOW, HOWEVER, THAT THE OIL SAFETY SWITCH HAD SHUT THE MACHINE DOWN FOUR TIMES ON MARCH 26, 1959, WHICH INDICATES THAT THE SAFETY SWITCH WAS WORKING BEFORE THE COMPRESSOR FAILED ON MARCH 27TH.

YOUR ALLEGATION THAT THE REPLACEMENT COMPRESSOR WAS FURNISHED PURSUANT TO A VERBAL ORDER ISSUED BY AN OFFICER OF THE UNITED STATES AIR FORCE APPEARS NOT TO BE SUPPORTED BY THE RECORDS HERE. INSTEAD, IT IS ADMINISTRATIVELY REPORTED THAT ON THE DAY FOLLOWING THE BREAKDOWN A MR. PIKE OF YOUR COMPANY VISITED THE JOB SITE AND DETERMINED THAT THE COMPRESSOR HAD FAILED BEYOND ECONOMICAL REPAIR, AT WHICH TIME HE STATED THAT HE WOULD SEE THAT A REPLACEMENT WAS ORDERED IMMEDIATELY. ADMITTEDLY, THIS CREATES A DISPUTED QUESTION OF FACT. HOWEVER, WHEN THERE IS A CONFLICT BETWEEN THE STATEMENT OF A CLAIMANT AND THE REPORT OF THE ADMINISTRATIVE OFFICE, IT IS A LONG ESTABLISHED RULE OF THIS OFFICE TO ACCEPT THE LATTER, IN THE ABSENCE OF EVIDENCE SUFFICIENTLY CONVINCING TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS THEREOF. IN ANY EVENT, ASSUMING THAT SUCH A VERBAL OFFER WAS GIVEN, IT SEEMS THAT IT WOULD REASONABLY BE CONSIDERED AS A DIRECTION TO CORRECT DEFECTS IN THE SYSTEM UNDER YOUR RESPONSIBILITY FOR ITS INSTALLATION, RATHER THAN AS AN UNDERTAKING TO PAY FOR REPLACEMENT OF A PART OF A SYSTEM WHICH HAD NOT UP TO THAT TIME BEEN ACCEPTED UNDER THE PRIME CONTRACT.

IN CONCLUSION, THEREFORE, TI WOULD APPEAR FROM THE VOLUMINOUS RECORD BEFORE US THAT THE INSTALLATION NEVER WAS COMPLETED IN ACCORDANCE WITH CONTRACT REQUIREMENTS, AND YOUR COMPANY WAS WELL AWARE OF THE DEFICIENCIES. THESE DEFICIENCIES WERE POINTED OUT TO YOUR REPRESENTATIVES ON NUMEROUS OCCASIONS, BUT VERY LITTLE CORRECTIVE WORK WAS ACTUALLY ACCOMPLISHED PRIOR TO THE COMPRESSOR FAILURE. HENCE, IT IS BELIEVED THAT HAD THIS CORRECTIVE WORK BEEN ACCOMPLISHED AS IT SHOULD HAVE BEEN DONE IN THE BEGINNING OF THE PROJECT, IT IS VERY POSSIBLE THAT THE MAJORITY OF THE REFRIGERATION DIFFICULTY AND SUBSEQUENT COMPRESSOR DAMAGE COULD HAVE BEEN AVOIDED.

IN THE LIGHT OF THE FOREGOING, THEREFORE, WE CONCLUDE THAT THE SETTLEMENT OF JUNE 13, 1961, SHOULD BE AND IS SUSTAINED.