B-169017, JUL 20, 1971

B-169017: Jul 20, 1971

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THE CONTRACT AS WRITTEN INCLUDED THE INSPECTION AND ACCEPTANCE CLAUSE PRESCRIBED BY ASPR 7-602.11(B) WHICH PROVIDES THAT AN ADJUSTMENT IN CONTRACT PRICE WILL BE MADE IF THE GOVERNMENT DEEMS IT IN THE PUBLIC INTEREST TO ACCEPT THE MATERIAL WITHOUT ITS MEETING ALL SPECIFICATIONS. THE RECORD FURNISHED BY THE AIR FORCE SHOWS THAT SUCH A DETERMINATION OF PUBLIC INTEREST WAS MADE SINCE THE QUESTIONED SPECIFICATIONS WERE MINOR. THE CONTRACTOR IS COLTON CONSTRUCTION COMPANY (COLTON). THE SWITCHES WERE PROCURED UNDER A SUBCONTRACT WITH ZENITH CONTROLS. YOU MAINTAIN THAT THE CONTRACTOR HAS FAILED TO FURNISH EVIDENCE TO THE GOVERNMENT THAT THE SWITCHES HAVE BEEN TESTED IN ACCORDANCE WITH THE TEST REQUIREMENTS OF THE GOVERNMENT SPECIFICATION AND ARE IN COMPLIANCE WITH THE SPECIFICATION STANDARDS.

B-169017, JUL 20, 1971

CONTRACT SPECIFICATIONS - COMPLIANCE WITH DECISION ANSWERING REQUEST BY RALPH B. BLACK COMPANY, INC. THAT THE CONTRACT SPECIFICATIONS BE COMPLIED WITH IN A CONTRACT FOR INSTALLATION OF AUTOMATIC TRANSFER SWITCHES USED IN ILS SUPPORT FACILITIES CONSTRUCTED UNDER A DEPARTMENT OF THE AIR FORCE CONTRACT AT CANNON AFB, NEW MEXICO BY COLTON CONSTRUCTION COMPANY. THE CONTRACT AS WRITTEN INCLUDED THE INSPECTION AND ACCEPTANCE CLAUSE PRESCRIBED BY ASPR 7-602.11(B) WHICH PROVIDES THAT AN ADJUSTMENT IN CONTRACT PRICE WILL BE MADE IF THE GOVERNMENT DEEMS IT IN THE PUBLIC INTEREST TO ACCEPT THE MATERIAL WITHOUT ITS MEETING ALL SPECIFICATIONS. THE RECORD FURNISHED BY THE AIR FORCE SHOWS THAT SUCH A DETERMINATION OF PUBLIC INTEREST WAS MADE SINCE THE QUESTIONED SPECIFICATIONS WERE MINOR, AND SINCE A REDUCTION IN THE CONTRACT PRICE HAD BEEN NEGOTIATED.

TO RALPH B. BLACK COMPANY, INC.:

WE REFER TO YOUR LETTER OF SEPTEMBER 2, 1970, AND ENCLOSURES, REQUESTING THAT GOVERNMENT SPECIFICATIONS BE COMPLIED WITH IN THE INSTALLATION OF AUTOMATIC TRANSFER SWITCHES USED IN ILS SUPPORT FACILITIES, PROJECT NO. CA 50-9, CONSTRUCTED UNDER DEPARTMENT OF THE AIR FORCE CONTRACT F29605-69-C- 0094, AT CANNON AIR FORCE BASE, NEW MEXICO. THE CONTRACTOR IS COLTON CONSTRUCTION COMPANY (COLTON), AND THE SWITCHES WERE PROCURED UNDER A SUBCONTRACT WITH ZENITH CONTROLS, INC.

YOU MAINTAIN THAT THE CONTRACTOR HAS FAILED TO FURNISH EVIDENCE TO THE GOVERNMENT THAT THE SWITCHES HAVE BEEN TESTED IN ACCORDANCE WITH THE TEST REQUIREMENTS OF THE GOVERNMENT SPECIFICATION AND ARE IN COMPLIANCE WITH THE SPECIFICATION STANDARDS.

AS WE INFORMALLY ADVISED YOU ON OCTOBER 7, 1970, COLTON ARRANGED WITH THE MANUFACTURER OF THE AUTOMATIC TRANSFER SWITCHES TO HAVE THE SPECIFIC MODEL OF SWITCHES USED ON THE PROJECT CERTIFIED BY A TESTING LABORATORY AS MEETING THE CONTRACT REQUIREMENTS SET OUT IN SPECIFICATION PARAGRAPH 13- 25B. THE PROCURING ACTIVITY STATES THAT THE LABORATORY REPORT ON TESTS OF THE SWITCHES IS DEFICIENT IN THAT IT DOES NOT INCLUDE THREE OF THE SPECIFICATION REQUIREMENTS. HOWEVER, THE PROCURING ACTIVITY STATES THAT THE THREE REQUIREMENTS ARE MINOR ITEMS AND IT IS BELIEVED THAT HAD THE TESTING PROCEDURE BEEN EXTENDED TO COVER SUCH REQUIREMENTS, WHICH ARE IDENTIFIED AS CONTACT MILLI-VOLT DROP, CONTACT TEMPERATURE AND OSCILLOGRAPH TRACE READINGS, THE SWITCHES WOULD HAVE MET THE REQUIREMENTS. IN ADDITION, THE PROCURING ACTIVITY STATES THAT THE SWITCHES HAVE BEEN INSTALLED AND HAVE BEEN FOUND TO BE ADEQUATE FOR THE CONTRACT FACILITIES. THE CONTRACTING OFFICER THEREFORE DETERMINED THAT IT WOULD BE IN THE PUBLIC INTEREST TO ACCEPT THE SWITCHES WITH AN APPROPRIATE ADJUSTMENT IN THE CONTRACT PRICE FOR THE FAILURE OF THE CONTRACTOR TO COMPLY WITH THE TEST REQUIREMENTS ON THE THREE MINOR ITEMS.

THE RECORD MADE AVAILABLE TO OUR OFFICE BY THE DEPARTMENT OF THE AIR FORCE SHOWS THAT THE CONTRACT INCLUDES THE INSPECTION AND ACCEPTANCE CLAUSE PRESCRIBED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 7 602.11, PARAGRAPH (B) OF WHICH PROVIDES, IN PART, THAT THE CONTRACTOR "SHALL, WITHOUT CHARGE, REPLACE ANY MATERIAL OR CORRECT ANY WORKMANSHIP FOUND BY THE GOVERNMENT NOT TO CONFORM TO THE CONTRACT REQUIREMENTS UNLESS IN THE PUBLIC INTEREST THE GOVERNMENT CONSENTS TO ACCEPT SUCH MATERIAL OR WORKMANSHIP WITH AN APPROPRIATE ADJUSTMENT IN CONTRACT PRICE."

IN LIGHT OF THE FOREGOING, THE CONTRACTING OFFICER COMMENCED NEGOTIATIONS WITH THE CONTRACTOR, UNDER THE PROVISIONS QUOTED ABOVE FROM THE INSPECTION AND ACCEPTANCE CLAUSE IN THE CONTRACT. PURSUANT TO THOSE NEGOTIATIONS THE CONTRACT WAS AMENDED BY MODIFICATION NO. 6, WHEREBY THE GOVERNMENT AGREED TO ACCEPT THE SWITCHES WITHOUT REQUIRING TEST READINGS ON THE THREE MINOR SPECIFICATION REQUIREMENTS AND THE CONTRACTOR, IN TURN, AGREED TO A REDUCTION OF $600 IN THE CONTRACT PRICE. THE ADJUSTMENT INVOLVED IS REGARDED BY THE CONTRACTING OFFICER AND THE COGNIZANT ENGINEER AS REASONABLE.

SINCE THE FOREGOING INDICATES THAT ACCEPTANCE OF THE SWITCHES AND ADJUSTMENT OF THE CONTRACT PRICE HAS BEEN EFFECTED IN ACCORDANCE WITH THE TERMS OF THE CONTRACT, AS AMENDED, FURTHER ACTION BY OUR OFFICE DOES NOT APPEAR TO BE INDICATED.