B-173393, DEC 29, 1971

B-173393: Dec 29, 1971

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 21. ITEM 12 OF THE INVITATION WAS DESCRIBED AS ONE FELLOWS 120-INCH GEAR SHAPER. BRAD FOOTE NOTIFIED YOUR FIRM THAT YOU WERE THE SUCCESSFUL BIDDER ON ITEM 12 AND THAT YOU SHOULD REMIT THE BALANCE DUE IN EXCESS OF YOUR $15. THE GEAR SHAPER TOGETHER WITH TWO ROTARY FEED GEARS AND TWO RATIO GEARS INSTALLED WERE DELIVERED TO YOU ON FEBRUARY 26. "THERE WERE FORTY GEARS ON THE MACHINE BY ACTUAL COUNT.". WELZIEN TOLD HIM THAT THE GEARS WERE TO BE INCLUDED IN THE SALE OF THE GEAR SHAPER AND REQUESTED THAT THE CONTRACT PRICE BE ADJUSTED TO COVER THE OMISSION OF THE 40 GEARS. YOU STATED THAT YOUR BID ON ITEM 12 WAS PREDICATED ON THE AVAILABILITY OF THE 40 CHANGE GEARS.

B-173393, DEC 29, 1971

TO CADILLAC MACHINERY COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 21, 1971, WITH ENCLOSURES, REQUESTING RELIEF IN CONNECTION WITH A CONTRACT AWARDED TO YOUR FIRM UNDER SALES INVITATION NO. BF 70-1, ISSUED BY BRAD FOOTE GEAR WORKS, INC. (BRAD FOOTE), CICERO, ILLINOIS, AS AGENT FOR THE DEFENSE SUPPLY AGENCY.

ITEM 12 OF THE INVITATION WAS DESCRIBED AS ONE FELLOWS 120-INCH GEAR SHAPER, CONDITION USED, WITH ACCESSORIES. IN RESPONSE, YOUR FIRM SUBMITTED A BID DATED JANUARY 21, 1971, OFFERING TO PURCHASE, AMONG OTHER ITEMS, THE GEAR SHAPER DESCRIBED UNDER ITEM 12 AT A PRICE OF $22,689. LETTER DATED FEBRUARY 5, 1971, BRAD FOOTE NOTIFIED YOUR FIRM THAT YOU WERE THE SUCCESSFUL BIDDER ON ITEM 12 AND THAT YOU SHOULD REMIT THE BALANCE DUE IN EXCESS OF YOUR $15,459 BID DEPOSIT, OR $7,230. YOUR FIRM SUBMITTED THE BALANCE DUE ON ITEM 12 ON FEBRUARY 8, 1971, AND THE GEAR SHAPER TOGETHER WITH TWO ROTARY FEED GEARS AND TWO RATIO GEARS INSTALLED WERE DELIVERED TO YOU ON FEBRUARY 26, 1971.

BY LETTER DATED MARCH 9, 1971, MR. HENRY COHEN OF YOUR FIRM ADVISED THE DEFENSE CONTRACT ADMINISTRATION SERVICE REGION (DCASR), CHICAGO, ILLINOIS, THAT WHEN MR. WELZIEN OF BRAD FOOTE SHOWED HIM THE GEAR SHAPER COVERED BY ITEM 12, "THERE WERE FORTY GEARS ON THE MACHINE BY ACTUAL COUNT." MR. COHEN STATED THAT MR. WELZIEN TOLD HIM THAT THE GEARS WERE TO BE INCLUDED IN THE SALE OF THE GEAR SHAPER AND REQUESTED THAT THE CONTRACT PRICE BE ADJUSTED TO COVER THE OMISSION OF THE 40 GEARS.

IN A LETTER DATED JUNE 21, 1971, TO OUR OFFICE, YOU STATED THAT YOUR BID ON ITEM 12 WAS PREDICATED ON THE AVAILABILITY OF THE 40 CHANGE GEARS. YOU REQUESTED THAT YOU BE FURNISHED THE ORIGINAL 40 GEARS, REPLACEMENT OF THE GEARS, OR A REFUND FOR THE VALUE OF THE GEARS IN THE APPROXIMATE AMOUNT OF $2,000. IN CORROBATION OF YOUR CLAIM, YOU SUBMITTED COPIES OF LETTERS DATED APRIL 12 AND 13, 1971, WHICH YOU HAD RECEIVED FROM THE TRIUMPH INDUSTRIAL CORPORATION AND THE MOREY MACHINERY CO., INC. IN ITS LETTER OF APRIL 12, 1971, TRIUMPH WHICH SUBMITTED THE LETTER ON BEHALF OF ITS AFFILIATE, TRIDEN TOOL COMPANY, ONE OF THE BIDDERS ON ITEM 12, STATES THAT AT THE TIME OF THE INSPECTION OF THE GEAR SHAPER COVERED BY ITEM 12, A REPRESENTATIVE OF BRAD FOOTE ADVISED ITS REPRESENTATIVE THAT APPROXIMATELY 30 TO 40 GEARS WERE TO GO WITH THE MACHINE. AS TO MOREY MACHINERY, IT STATED IN ITS LETTER OF APRIL 13, 1971, THAT THE INSPECTION OF THE GEAR SHAPER COVERED BY ITEM 12 WAS MADE IN ITS BEHALF BY A REPRESENTATIVE OF LAURENS BROS., CINCINNATI, OHIO, AND THAT IN ITS REPORT TO MOREY MACHINERY, LAURENS STATED SPECIFICALLY THAT THERE WERE 40 EXTRA CHANGE GEARS WITH THE MACHINE AT THE TIME OF INSPECTION.

IN AN AFFIDAVIT DATED JULY 13, 1971, MR. TED WELZIEN, EMPLOYED BY BRAD FOOTE AS PROPERTY CUSTODIAN, WHO ESCORTED ALL BIDDERS ON INSPECTION TOURS OF THE ITEMS COVERED BY THE SALES INVITATION, STATES THAT HE PERSONALLY ESCORTED MR. HENRY COHEN OF YOUR FIRM THROUGH THE PLANT OF BRAD FOOTE AND SHOWED HIM THE FELLOWS GEAR SHAPER, AND THAT DURING HIS INSPECTION OF THE MACHINE, MR. COHEN ASKED HIM IF ANY GEARS CAME WITH THE MACHINE AND THAT HE REPLIED THAT THE FEED GEARS CAME WITH THE MACHINE. MR. WELZIEN ADVISED THAT THERE WAS NEVER A SPECIFIC DISCUSSION RELEVANT TO THE INDEX GEARS WHICH WERE STACKED IN AN INDEX GEAR RACK ON THE FLOOR APPROXIMATELY TWO FEET FROM THE MACHINE AND ADJACENT TO A GEAR SHAPER OWNED BY BRAD FOOTE AND THEN IN USE. MR. WELZIEN STATES THAT TO THE BEST OF HIS MEMORY, HE CANNOT RECALL TELLING ANY OF THE PROSPECTIVE BUYERS THAT THE INDEX GEARS WERE A PART OF THE MACHINE COVERED BY ITEM 12.

IN VIEW OF THE FACTUAL DISPUTE BETWEEN YOU AND MR. WELZIEN, WE CONTACTED THE S&S MACHINERY CO., THE MACDELL CORPORATION, AND THE ADAMS MACHINERY CO., THREE OF THE OTHER BIDDERS ON ITEM 12. REPRESENTATIVES OF THE S&S MACHINERY CO. AND THE MACDELL CORPORATION INFORMED OUR OFFICE THAT AT THE TIME OF THE INSPECTION, NO INDEX GEARS WERE SHOWN TO THEIR REPRESENTATIVES BY BRAD FOOTE'S REPRESENTATIVE. THE ADAMS MACHINERY CO. REPRESENTATIVE INFORMED OUR OFFICE THAT HE WAS NOT SURE WHETHER INDEX GEARS WERE SHOWN TO THE COMPANY'S REPRESENTATIVE AT THE TIME OF THE INSPECTION OF ITEM 12.

IN OUR OPINION THE EVIDENCE PRESENTED BY YOU IS NOT SUFFICIENTLY CONVINCING TO OVERCOME THE STATEMENTS OF THE BIDDERS CONTACTED BY OUR OFFICE AND THE AFFIDAVIT OF MR. WELZIEN. ALTHOUGH YOU SUBMITTED LETTERS FROM TWO OTHER BIDDERS ON ITEM 12 TO SUPPORT YOUR CONTENTIONS, SUCH LETTERS CONSTITUTE NO STRONGER EVIDENCE IN SUPPORT OF YOUR POSITION THAN THAT SUBMITTED TO ESTABLISH THAT MR. WELZIEN DID NOT INFORM A REPRESENTATIVE OF YOUR FIRM AND REPRESENTATIVES OF TWO OTHER BIDDERS THAT 40 INDEX GEARS WERE TO GO WITH THE GEAR SHAPER COVERED BY ITEM 12. FURTHERMORE, THE REPORT SUBMITTED TO OUR OFFICE BY THE DEFENSE SUPPLY AGENCY STATES THAT THE GEAR SHAPER MACHINE IN QUESTION CANNOT PHYSICALLY ACCOMMODATE THE 40 CHANGE GEARS IN QUESTION AND THAT A TOTAL OF EIGHT GEARS, SUFFICIENT FOR A SPECIFIC GEAR CUTTING OPERATION, ARE ALL THAT ARE NORMALLY SUPPLIED WITH A NEW GEAR SHAPER. IN THIS REGARD, WE ARE INFORMED THAT THE MACHINE PURCHASED AND DELIVERED TO YOU CONTAINED ONLY FOUR GEARS AND THAT FOUR MORE GEARS WERE DELIVERED TO YOU LATER BY BRAD FOOTE.

THE EVIDENCE OF RECORD, THEREFORE, DOES NOT ESTABLISH WITH CERTAINTY THAT ANY AUTHORIZED AGENT OR REPRESENTATIVE OF THE GOVERNMENT WARRANTED OR REPRESENTED TO YOU THAT 40 INDEX CHANGE GEARS WENT WITH THE GEAR SHAPER COVERED BY ITEM 12.

IN THE PRESENT CASE NEITHER THE INVITATION FOR BIDS UNDER WHICH THE CONTRACT WAS MADE NOR THE RESULTING CONTRACT CONTAINED ANY REFERENCE WHATEVER AS TO THE TYPE OR NUMBER OF GEARS THAT WERE TO GO WITH THE GEAR SHAPER COVERED BY ITEM 12. THE DESCRIPTION OF ITEM 12 IN THE INVITATION ONLY SPECIFIED THAT THE GEAR SHAPER CAME "WITH ACCESSORIES." THE CONTRACT EXPRESSLY PROVIDED IN PARAGRAPH 2 OF THE GENERAL SALES TERMS AND CONDITIONS THAT NO WARRANTY EXPRESS OR IMPLIED WAS MADE BY THE GOVERNMENT "AS TO QUANTITY, KIND, CHARACTER, QUALITY, WEIGHT, SIZE, OR DESCRIPTION OF ANY OF THE PROPERTY OR ITS FITNESS FOR ANY USE OR PURPOSE." SINCE IT IS WELL SETTLED THAT AN EXPRESS DISCLAIMER OF WARRANTY, SUCH AS CONTAINED IN THE INSTANT CONTRACT, VITIATES ANY AND ALL WARRANTIES WHICH OTHERWISE MIGHT ARISE OUT OF A SALES TRANSACTION, THERE OBVIOUSLY EXISTS NO BASIS FOR HOLDING THAT THERE WAS AN IMPLIED WARRANTY THAT THE ACCESSORIES CONSISTED OF "40 INDEX CHANGE GEARS." IT NECESSARILY FOLLOWS THAT THE ACCEPTANCE OF YOUR BID IN THE CIRCUMSTANCES RESULTED IN A BINDING OBLIGATION ON YOUR PART TO ACCEPT THE GEAR SHAPER AND ACCESSORIES DELIVERED AND VESTED IN THE GOVERNMENT THE RIGHT TO RECEIVE PAYMENT THEREFORE AT THE FULL CONTRACT PRICE.

FOR THE REASONS STATED, YOUR REQUEST FOR CONTRACT PRICE ADJUSTMENT IS DENIED.