B-155376, NOV. 13, 1964

B-155376: Nov 13, 1964

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INCORPORATED: REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 30. WE HAVE CONSIDERED YOUR LETTER AS IN THE NATURE OF A REQUEST FOR REVIEW OF THE SETTLEMENT ISSUED BY OUR CLAIMS DIVISION. THAT PRODUCT WAS INDICATED ON A DRAWING MADE A PART OF THE GOVERNMENT'S INVITATION FOR BIDS AS AN APPROVED TYPE OF MOLDING COMPOUND FOR USE IN THE MANUFACTURE OF THE WINDSHIELDS. IT WAS PROVIDED IN EFFECT THAT ANY PROPOSED USE OF A SUBSTITUTE MOLDING COMPOUND WOULD REQUIRE THE APPROVAL OF THE ORDNANCE CORPS. SUCH AUTHORIZATION WAS MADE SUBJECT TO THE CONDITIONS THAT REPORTED DEVIATIONS IN SAMPLES PRODUCED WITH DIALL 52-20- 30 WOULD BE CORRECTED AND THAT A REQUEST FOR DEVIATION APPROVAL ON 00 FORM 1695 WOULD BE SUBMITTED BEFORE COMPLETION OF DELIVERIES UNDER THE CONTRACT.

B-155376, NOV. 13, 1964

TO PACIFIC PLASTICS COMPANY, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 30, 1964, TAKING EXCEPTION TO CERTAIN STATEMENTS MADE IN A SETTLEMENT DATED AUGUST 18, 1964, WHICH DISALLOWED YOUR CLAIM FOR $36,562.38 UNDER ARMY CONTRACT NO. DA-11-173-ORD-727, DATED JUNE 20, 1962, AS AMENDED. IN ACCORDANCE WITH OUR ESTABLISHED POLICY IN SUCH CASES, THEREQUEST THAT A REPRESENTATIVE OF YOUR COMPANY BE PERMITTED TO EXAMINE THE CLAIM FILE MUST BE DENIED. HOWEVER, WE HAVE CONSIDERED YOUR LETTER AS IN THE NATURE OF A REQUEST FOR REVIEW OF THE SETTLEMENT ISSUED BY OUR CLAIMS DIVISION.

THE RECORD SHOWS THAT YOU EXPERIENCED DIFFICULTIES IN MANUFACTURING ACCEPTABLE WINDSHIELDS UNDER THE CONTRACT OF JUNE 20, 1962, WITH THE USE OF A MOLDING COMPOUND KNOWN AS FIBERCORE 1000M, MANUFACTURED BY THE PLUMB CHEMICAL CORPORATION, PHILADELPHIA, PENNSYLVANIA. THAT PRODUCT WAS INDICATED ON A DRAWING MADE A PART OF THE GOVERNMENT'S INVITATION FOR BIDS AS AN APPROVED TYPE OF MOLDING COMPOUND FOR USE IN THE MANUFACTURE OF THE WINDSHIELDS, AND IT WAS PROVIDED IN EFFECT THAT ANY PROPOSED USE OF A SUBSTITUTE MOLDING COMPOUND WOULD REQUIRE THE APPROVAL OF THE ORDNANCE CORPS. IN APRIL 1963 THE ORDNANCE CORPS AUTHORIZED YOU TO USE A MOLDING COMPOUND MANUFACTURED BY THE MISA PLASTICS COMPANY AND MARKETED UNDER THE BRAND NAME OF DIALL 52-20-30. SUCH AUTHORIZATION WAS MADE SUBJECT TO THE CONDITIONS THAT REPORTED DEVIATIONS IN SAMPLES PRODUCED WITH DIALL 52-20- 30 WOULD BE CORRECTED AND THAT A REQUEST FOR DEVIATION APPROVAL ON 00 FORM 1695 WOULD BE SUBMITTED BEFORE COMPLETION OF DELIVERIES UNDER THE CONTRACT. YOU COMPLETED DELIVERY ON OR ABOUT SEPTEMBER 5, 1963, AND IT APPEARS THAT MOST OF THE WINDSHIELDS DELIVERED AFTER THE MONTH OF APRIL 1963 WERE MANUFACTURED WITH THE USE OF DIALL 52-20-30, ALTHOUGH IT IS REPORTED THAT THE LAST DELIVERED QUANTITY OF 108 UNITS HAD BEEN MANUFACTURED WITH THE USE OF FIBERCORE 1000M.

PRIOR TO THE TENTATIVELY APPROVED USE OF DIALL 52-20-30 YOU SUBMITTED A CLAIM FOR $36,562.38, BASED UPON ALLEGED ADDITIONAL COSTS AND OTHER LOSSES OCCASIONED IN CONTRACT PERFORMANCE FOR WHICH YOU CONSIDERED THE GOVERNMENT TO BE RESPONSIBLE BECAUSE YOU FOUND FIBERCORE 1000M, THE APPROVED TYPE OF MOLDING COMPOUND SUPPLIED BY THE PLUMB CHEMICAL CORPORATION, TO BE UNRELIABLE. YOU SUBSEQUENTLY MADE CERTAIN CORRECTIONS IN THE ITEMS OF CLAIM TO MAKE THEM AGREE WITH THE TOTAL AMOUNT CLAIMED.

YOU ALLEGE THAT THE PHYSICAL CHARACTERISTICS AND SPECIFICATIONS OF FIBERCORE 1000M WERE REPEATEDLY ASKED FOR AND REQUESTED BOTH FROM THE ORDNANCE CORPS AND THE PLUMB CHEMICAL CORPORATION, AND THAT AT NO TIME WAS ANY ASSISTANCE GIVEN BY EITHER THE ORDNANCE CORPS OR THE PLUMB CHEMICAL CORPORATION IN REGARD TO THE PHYSICAL CHARACTERISTICS AND SPECIFICATIONS OF THE MOLDING COMPOUND. YOU STATE THAT YOU WERE REQUIRED TO SEARCH FOR MATERIAL WHICH WOULD BE SATISFACTORY TO TAKE THE PLACE OF FIBERCORE 1000M WHEN IT BECAME IMPOSSIBLE TO WORK WITH SUCH MATERIAL, AND YOU CONTEND THAT IT IS UNREASONABLE TO TAKE THE POSITION THAT THE CHARACTERISTICS OF FIBERCORE 100M WERE ADEQUATELY DESCRIBED BY THE GOVERNMENT SINCE THE DESCRIPTION ON THE APPLICABLE DRAWING MERELY REFERS TO FIBERCORE 1000M AS A MOLDING COMPOUND, GLASS FIBER REINFORCED, AND IN REGARD TO THE POSSIBLE USE OF ANY OTHER MOLDING COMPOUND IT WAS STATED ONLY THAT "ALL SOURCES MUST SUPPLY AN ITEM EQUIVALENT TO THE MANUFACTURER'S ITEM INDICATED. ORDNANCE CORPS APPROVAL REQUIRED.'

IT IS ARGUED THAT IN SUCH CIRCUMSTANCES THE CONTRACT WITH YOUR COMPANY BECAME AN EXPERIMENTAL TYPE OF CONTRACT WHEN IT WAS DISCOVERED THAT THE MATERIAL WOULD NOT WORK AND WHEN REPEATED ATTEMPTS TO OBTAIN THE MATERIAL CHARACTERISTICS AND SPECIFICATIONS FOR FIBERCORE 1000M WERE UNSUCCESSFUL. IT IS ALSO ARGUED THAT WHEN THE GOVERNMENT MAKES IT IMPOSSIBLE FOR A CONTRACTOR TO PERFORM AS SPECIFIED, THE RISK OF SUCH IMPOSSIBILITY CANNOT BE REGARDED AS HAVING BEEN ASSUMED BY THE CONTRACTOR AND THE GOVERNMENT SHOULD BE REQUIRED TO PAY THE REASONABLE COSTS FORCED ON THE CONTRACTOR BY THE GOVERNMENT'S ACTION. FURTHERMORE, IT IS STATED AS YOUR BELIEF THAT ACCEPTABLE WINDSHIELDS HAD NOT BEEN PREVIOUSLY MANUFACTURED WITH THE USE OF FIBERCORE 1000M; AND YOU STATE THAT "IF, IN FACT, THE RECORD DISCLOSES THAT ANOTHER COMPANY HAS SINCE BEEN SUCCESSFUL IN FABRICATING ACCEPTABLE WINDSHIELDS FROM THE SAME BRAND OF BASIC MATERIAL, WE SUSPECT AND ASSERT THAT THAT COMPANY IS USING FIBERCORE 1000M (OR SOME NEW FORMULATION CALLED 1000M) KNOWING THE SPECIFICATION BASIS OF THE ITEM AND REQUIRING IT TO REACH AND KEEP THE SPECIFICATION AND CHARACTERISTICS AS SET FORTH.'

IT IS THE POSITION OF THE ORDNANCE CORPS THAT THE GOVERNMENT WAS BUYING COMPLETELY FABRICATED WINDSHIELDS TO MEET CERTAIN PERFORMANCE REQUIREMENTS AND THAT THERE WAS NO REASON TO SUPPOSE THAT ANY QUALIFIED CONCERN COULD NOT MANUFACTURE THE WINDSHIELDS WITH THE USE OF THE SPECIFIED TYPE OF MOLDING COMPOUND. ALSO, THE RECORD INDICATES THAT THE GOVERNMENT HAD NO KNOWLEDGE SUPERIOR TO THAT OF PURCHASERS OF THE MOLDING COMPOUND FROM THE PLUMB CHEMICAL CORPORATION REGARDING THE CHARACTERISTICS OF SUCH COMPOUND, AND THAT IT IS A COMMON PRACTICE IN THE PLASTICS INDUSTRY FOR MANUFACTURERS TO REFUSE TO DISCLOSE THE PRECISE COMPOSITION OF MATERIALS WHICH ARE OFFERED FOR SALE. THE SUPPLIER WILL GENERALLY PROVIDE PERFORMANCE DATA BUT HE WILL NOT NORMALLY REVEAL PROPRIETARY INFORMATION OR THE EXACT CONSTITUENTS OF HIS PRODUCT. ALSO, IT HAS BEEN INDICATED THAT IN THIS CASE YOU WERE FURNISHED A COPY OF THE PLUMB CHEMICAL CORPORATION'S TECHNICAL DATA REPORT 56-1 AND THAT THE SUPPLIER CERTIFIED THAT THE MATERIAL SUPPLIED CONTAINED POLYESTER RESIN AND GLASS FIBERS AND DISCLOSED THE PERCENTAGE CONTENT OF THOSE CONSTITUENTS IN THE MATERIAL SUPPLIED. THE RECORD OF THE CASE OTHERWISE SHOWS THAT THERE WERE IN FACT TWO PREVIOUS PRODUCERS OF WINDSHIELDS OF THE TYPE REQUIRED FOR DELIVERY UNDER YOUR CONTRACT, AND THAT THE WINDSHIELDS WERE PRODUCED WITH THE USE OF THE FIBERCORE 1000M MOLDING COMPOUND WITH REASONABLY SATISFACTORY RESULTS.

WHERE, AS IN THIS CASE, THE CLAIMANT AND THE PURCHASING AGENCY FAIL TO AGREE ON THE MATERIAL FACTS RELEVANT TO THE CLAIM, IT IS OUR LONG ESTABLISHED AND CONSISTENTLY SUSTAINEDP OLICY TO ACCEPT THE ADMINISTRATIVE POSITION. 16 COMP. GEN. 325; 14 ID. 927. EVEN ACCEPTING YOUR VERSION OF THE FACTS, YOUR CLAIM IS ESSENTIALLY AN UNLIQUIDATED ONE FOR DAMAGES ARISING OUT OF BREACH OF CONTRACT. THIS KIND OF CLAIM THE ACCOUNTING OFFICERS OF THE GOVERNMENT HAVE HISTORICALLY DECLINED TO SETTLE BECAUSE OF THE IMPRACTICABILITY OF REACHING AN ACCURATE DETERMINATION OF THE MERITS AND AMOUNT OF DAMAGES WITHOUT PROVISION FOR TAKING SWORN TESTIMONY, CROSS- EXAMINATION, AND RELATED EVIDENCE, FOR WHICH OUR OFFICE LACKS THE FACILITIES. 4 COMP. GEN. 404; 19 COMP. DEC. 409. IN SUCH CASES WE HAVE DISALLOWED THE CLAIM AND LEFT THE CLAIMANT TO SUCH REMEDY AS HE MAY OBTAIN IN THE COURTS.

ACCORDINGLY, THE SETTLEMENT WHICH DISALLOWED YOUR CLAIM IN THE MATTER MUST BE, AND IS, HEREBY SUSTAINED.