B-155262, NOV. 24, 1964

B-155262: Nov 24, 1964

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TO SEPTI-CARE: WE HAVE YOUR LETTER DATED NOVEMBER 2. WHETHER YOU ARE ENTITLED TO ADDITIONAL COMPENSATION ON THE BASIS THAT YOU DID NOT HAVE A FUNCTIONAL EXHIBIT AT THE FAIR BECAUSE OF NEGLIGENCE BY THE GOVERNMENT. YOU ASSERT THAT YOUR REQUEST TO WITHDRAW FROM THE FAIR WAS REFUSED BY THE GOVERNMENT. WHETHER THERE IS SOME OTHER ACTIVITY WHICH WILL CONSIDER YOUR CLAIM IN THIS MATTER. THE PARTICIPATION AGREEMENT WITH YOU CLEARLY PROVIDES: "THIS FIRM (SEPTI-CARE) WILL PROVIDE EQUIPMENT FOR INSTALLATION OF PAVILION SEWAGE SYSTEM WITH EXCEPTION OF CONCRETE TANKAGE.'. OBOLER WAS TOLD TO GO AHEAD WITH THE PROCESS WITH DATA ON HAND AND. WAS GIVEN A WRITTEN DESCRIPTION OF THE PROCESS WHICH WAS TO BE USED AS A BASIS FOR THE DEMONSTRATION SCRIPT.

B-155262, NOV. 24, 1964

TO SEPTI-CARE:

WE HAVE YOUR LETTER DATED NOVEMBER 2, 1964, IN CONNECTION WITH OUR LETTER TO YOU OF OCTOBER 27, 1964, REGARDING YOUR CLAIM FOR ADDITIONAL COMPENSATION FOR EXPENSES INCURRED PURSUANT TO YOUR PARTICIPATION IN THE UNITED STATES EXHIBIT AT THE THIRD PACIFIC INTERNATIONAL TRADE FAIR, LIMA, PERU.

YOUR LETTER OF NOVEMBER 2, 1964, PRESENTS TWO QUESTIONS FOR OUR CONSIDERATION. FIRST, WHETHER YOU ARE ENTITLED TO ADDITIONAL COMPENSATION ON THE BASIS THAT YOU DID NOT HAVE A FUNCTIONAL EXHIBIT AT THE FAIR BECAUSE OF NEGLIGENCE BY THE GOVERNMENT. IN THIS CONNECTION, YOU ASSERT THAT YOUR REQUEST TO WITHDRAW FROM THE FAIR WAS REFUSED BY THE GOVERNMENT. SECOND, WHETHER THERE IS SOME OTHER ACTIVITY WHICH WILL CONSIDER YOUR CLAIM IN THIS MATTER.

IN CONNECTION WITH YOUR FIRST QUESTION, THE PARTICIPATION AGREEMENT WITH YOU CLEARLY PROVIDES:

"THIS FIRM (SEPTI-CARE) WILL PROVIDE EQUIPMENT FOR INSTALLATION OF PAVILION SEWAGE SYSTEM WITH EXCEPTION OF CONCRETE TANKAGE.'

IN REGARD TO THE PROBLEMS WHICH AROSE IN THE GOVERNMENT'S ATTEMPT TO FURNISH TANKAGE FOR YOUR SYSTEM A MEMORANDUM DATED FEBRUARY 10, 1964, PREPARED BY MR. RAYMOND L. SPENCER, BUREAU OF INTERNATIONAL COMMERCE, STATES:

"THE DESIGN AND CONSTRUCTION OF A SEWAGE TREATMENT PLANT REQUIRES DETAIL STUDIES COVERED BY A NUMBER OF DRAWINGS. THERE SHOULD ALSO BE ADDITIONAL SPECIFICATIONS DEALING WITH GRADES, SLOPES AND ELEVATIONS BOTH IN THE SYSTEM AND WITHIN THE PLANT. IN ADDITION, THE BIO CHEMICAL SYSTEM REQUIRES THAT THE VARIOUS ELEMENTS BE IN A PRECISE PROPORTION TO PERMIT THE PROCESS TO TAKE PLACE.

"THE SINGLE DRAWING WHICH OBOLER RECEIVED INDICATED A LARGE CONCRETE TANK NOT RELATED TO THE COLLECTION SYSTEM NOR THE AFFLUENT DISPOSAL. OBOLER AND CO. MADE THE EXCAVATION FOR THE TANK BUT ASKED ALLEN FOR MORE INFORMATION. OBOLER WAS TOLD TO GO AHEAD WITH THE PROCESS WITH DATA ON HAND AND, AS SUPPLEMENTARY MATERIAL, WAS GIVEN A WRITTEN DESCRIPTION OF THE PROCESS WHICH WAS TO BE USED AS A BASIS FOR THE DEMONSTRATION SCRIPT.

"AFTER THE FORMS AND REINFORCING HAD BEEN FABRICATED, THE DAY BEFORE THE FIRST POUR WAS SCHEDULED, MR. ALLEN PROVIDED A NEW DRAWING WHICH CHANGED THE DIMENSIONS. OBOLER AND CO. REFABRICATED THE FORMS AND REINFORCINGS. THE DAY THE POUR WAS SCHEDULED, ALLEN INFORMED OBOLER THAT THE SLOPE AT THE BOTTOM OF THE EXCAVATION HAD TO BE 60 DEGREES "NO MATTER WHAT THE PLANS SAID.' ONCE AGAIN, OBOLER REFABRICATED THE FORMS AND THE STEEL REINFORCINGS AND POURED THE BASE.

"OBOLER AND CO. THEN ASKED FOR DETAILS ON THE OTHER ELEMENTS OF THE SYSTEM, SUCH AS A BAR SCREEN, GRIB CHAMBER, GREASE TRAP, EFFLUENT DETENTION CHAMBER AND THE WIERS, BUT WERE NOT GIVEN THE DETAILS NOR THE DIMENSIONS ON WHICH TO START WORK. "WE WERE ASKED ONLY TO CONSTRUCT A 1500 GALLON AEREATION TANK IN WHICH THE EFFLUENT COULD BE TREATED.'

"FIVE DAYS AFTER THE OPENING OF THE FAIR (IN THE MEANTIME, OBOLER AND CO. HAD CONSTRUCTED A BY-PASS TO PERMIT THE AGRICULTURE BUILDING TO OPERATE), ALLEN GAVE OBOLER A ROUGH SKETCH INDICATING THE DETAILS OF THE BAFFLE BOARD WHICH WAS REQUIRED IN THE EXHIBIT.

"THE ENGINEERING CONSIDERATIONS FOR THE SEPTI-CARE EXHIBIT WAS COMPLEX. THE INSTALLATION WAS A PATENT ITEM, AND INDEED A NEW SEWAGE SYSTEM CONCEPT. OBOLER WAS THEREFORE FORCED TO AWAIT INSTRUCTIONS FROM ALLEN TO COMPLETE THE EXHIBIT.'

A LETTER DATED DECEMBER 3, 1963, FROM LEONARD OBOLER ENGINEERS, LIMA, PERU, THE ENGINEERS WHO WERE TO CONSTRUCT THE TANKAGE FOR YOUR EXHIBIT, INDICATES THAT THE ENGINEERS AT THE PROJECT WERE NOT FAMILIAR WITH YOUR PROCESS FOR THE INSTALLATION OF YOUR APPARATUS, A PATENTED ITEM, AND THEREFORE, HAD TO AWAIT INSTALLATION INSTRUCTIONS FROM YOUR REPRESENTATIVES. OBOLER'S LETTER ALSO INDICATES THAT THE INITIAL DRAWINGS FURNISHED BY YOUR REPRESENTATIVES FOR THE INSTALLATION OF THE TANKAGE SYSTEM WERE NOT COMPLETE, AND THAT AFTER WORK ON THE INSTALLATION OF THE TANKAGE SYSTEM HAD BEEN BEGUN IT BECAME NECESSARY TO REFABRICATE AND CHANGE THE STEEL REINFORCING OF THE BASE FOR THE TANKAGE BECAUSE THERE WERE CHANGES MADE BY YOUR REPRESENTATIVES OF THE DIMENSIONS FURNISHED IN THE ORIGINAL DRAWINGS.

IT HAS NOT BEEN SHOWN THAT THE GOVERNMENT WAS UNDER A FIRM OBLIGATION TO FURNISH THE CONCRETE TANKAGE FOR YOUR SYSTEM. HOWEVER, ASSUMING SUCH OBLIGATION DID EXIST THE PREPONDERANCE OF THE EVIDENCE SHOWS THAT YOUR SYSTEM WAS NOT FURNISHED WITH THE CONCRETE TANKAGE CONTEMPLATED BY YOU BECAUSE OF INADEQUATE AND INCOMPLETE DRAWINGS FURNISHED BY YOUR REPRESENTATIVES. CONSEQUENTLY, THERE HAS BEEN NO SHOWING THAT THE FAILURE TO PROVIDE YOU WITH THE CONCRETE TANKAGE CONTEMPLATED BY YOU BECAUSE OF INADEQUATE AND INCOMPLETE DRAWINGS FURNISHED BY YOUR REPRESENTATIVES. CONSEQUENTLY, THERE HAS BEEN NO SHOWING THAT THE FAILURE TO PROVIDE YOU WITH THE CONCRETE TANKAGE SYSTEM WAS DUE TO THE GOVERNMENT'S NEGLIGENCE.

WITH RESPECT TO YOUR ALLEGATION THAT THE GOVERNMENT REFUSED TO PERMIT YOU TO TERMINATE YOUR PARTICIPATION AT THE FAIR, THE RECORD SHOWS THERE WAS NO FORMAL REPLY TO YOUR LETTER REQUESTING TERMINATION. THE RECORD DOES INDICATE THAT YOU WERE INFORMALLY REQUESTED NOT TO WITHDRAW YOUR PARTICIPATION AT THE FAIR; HOWEVER, THERE HAS BEEN NO SHOWING THAT THE GOVERNMENT THROUGH ITS AUTHORIZED AGENT AGREED TO UNDERTAKE ANY OBLIGATIONS IN ADDITION TO THOSE PROVIDED FOR IN THE PARTICIPATION AGREEMENT. CONSEQUENTLY, YOUR CONTINUED PARTICIPATION AT THE FAIR, AFTER YOUR REQUEST TO WITHDRAW, WOULD BE GOVERNED BY THE TERMS OF YOUR PARTICIPATION AGREEMENT AND FOR THE REASONS STATED ABOVE WE FIND THERE HAS BEEN NO BREACH BY THE GOVERNMENT OF ITS OBLIGATIONS UNDER SUCH AGREEMENT.

IF YOU WISH, YOU MAY, OF COURSE, HAVE YOUR CLAIM CONSIDERED BY A COURT. WITH RESPECT TO THIS MATTER, BOTH THE UNITED STATES COURT OF CLAIMS AND THE UNITED STATES DISTRICT COURTS WOULD APPEAR TO HAVE JURISDICTION.

WE TRUST THAT THIS ANSWERS THE QUESTIONS POSED BY YOUR INQUIRY AND WILL ENABLE YOU TO REPLY TO OUR LETTER OF OCTOBER 27, 1964.