B-145245, DEC. 11, 1961

B-145245, DEC. 11, 1961

TO WESTERN BRANCH DIESEL, INC:

REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 21 AND SEPTEMBER 26, 1961, WITH ENCLOSURES, REQUESTING RECONSIDERATION OF OUR DECISION DATED JUNE 8, 1961, B-145245, TO MAJOR MARY B. PARKER, FINANCE AND ACCOUNTING OFFICER, DEPARTMENT OF THE ARMY, DISALLOWING YOUR CLAIM FOR $1,112.45, COVERING REPAIRS TO THREE GENERAL MOTORS DIESEL ENGINES IN SEPTEMBER 1959.

YOU HAVE FORWARDED TEST REPORTS SHOWING THAT THE ENGINES WERE OPERATING PROPERLY BEFORE THEY LEFT THE FACTORY AND YOU STATE THAT THE MANUFACTURER'S WARRANTY ONLY COVERS REPLACEMENT OF DEFECTIVE PARTS WHICH ARE RETURNED WITHIN SIX MONTHS. YOU ALLEGE FURTHER THAT YOU HAVE BEEN ADVISED BY MR. ROBERT BROWER (BRAUER), CHIEF, COMMUNICATIONS SYSTEMS ENGINEERING DIVISION, U.S. ARMY SIGNAL ENGINEERING AGENCY, ARLINGTON HALL STATION, THAT HE INSTRUCTED THE LIEUTENANT IN CHARGE TO HAVE THE UNITS REPAIRED AT YOUR RICHMOND BRANCH AND COULD NOT UNDERSTAND WHY THE INVOICE WAS NEVER PAID, AND THAT HE WAS INTERVIEWED BY SOMEONE FROM THIS OFFICE AND GAVE THEM A SIMILAR STATEMENT. YOU ALSO STATE THAT YOU WERE NEVER CONTACTED BY ADLER ELECTRONICS AND YOU REPEAT YOUR CONTENTION THAT THE ENGINE FAILURES WERE CAUSED BY CONTAMINATED LUBRICATING OIL.

THE FACT THAT THE ENGINES WERE OPERATING PROPERLY DURING A TEST RUN BEFORE THEY LEFT THE FACTORY IS PERTINENT, BUT IS BY NO MEANS CONCLUSIVE EVIDENCE THAT THEY WOULD NOT DEVELOP TROUBLE AFTER BEING IN OPERATION FOR A MORE EXTENDED PERIOD. IT IS NOTED, ALSO, THAT THE ACTUAL BREAKDOWNS OCCURRED AFTER APPROXIMATELY THREE MONTHS, WHICH WAS WELL WITHIN THE SIX MONTH WARRANTY PERIOD.

WE HAVE CONTACTED MR. BRAUER AND HE DOES NOT RECALL ADVISING YOU THAT HE GAVE INSTRUCTIONS TO HAVE THE UNITS REPAIRED AT YOUR RICHMOND BRANCH OR THAT HE WAS INTERVIEWED BY ANYONE FROM THIS OFFICE, NOR DO OUR RECORDS SHOW THAT WE HAVE PREVIOUSLY BEEN IN TOUCH WITH MR. BRAUER ON THIS MATTER. WE HAVE ALSO CONTACTED MR. HARRY BLOCK, ELECTRONIC DEVICES TECHNICIAN, U.S. ARMY SIGNAL ENGINEERING AGENCY, WHO WENT TO FORT LEE AT THE REQUEST OF LIEUTENANT COUTTS AT THE TIME OF THE BREAKDOWN, AND HE ADVISES THAT AT NO TIME WAS ANY COMMITMENT FOR CHARGING THE GOVERNMENT GIVEN OR INTENDED TO BE GIVEN, AND THAT IT WAS HIS UNDERSTANDING THAT THERE WOULD BE NO CHARGE DUE TO THE SHORT TIME THE ENGINES HAD BEEN IN OPERATION.

WITH REFERENCE TO YOUR STATEMENT THAT YOU WERE NOT CONTACTED BY ADLER ELECTRONICS, WE HAVE NOT ALLEGED THAT YOU WERE, BUT YOUR INVESTIGATION AND SUBSEQUENT REPAIR OF THE ENGINES APPARENTLY STEMMED FROM LIEUTENANT COUTTS' CONTRACT WITH MR. WALTER BIEBER OF ADLER. YOUR LETTER OF AUGUST 25, 1961, REFERS TO THE FACT THAT YOUR ATLANTA OFFICE CALLED MR. R. W. PARKER, SERVICE MANAGER AT WEST NORFOLK, REQUESTING THAT HE GET A MAN DOWN TO FORT LEE TO INVESTIGATE THE COMPLAINT. THE LETTER ALSO MENTIONS THE FACT THAT GRIFFIN EQUIPMENT CORPORATION, WHICH SOLD THE GENERATORS TO ADLER, WAS ON NOTICE OF THE BREAKDOWN. IT SEEMS LIKELY THEREFORE THAT YOUR ATLANTA OFFICE WAS CONTACTED BY EITHER ADLER OR GRIFFIN.

IN ANY EVENT IT HAS NOT BEEN ESTABLISHED THAT THE FAILURE OF THE ENGINES WAS DUE TO USE OF SUBSTANDARD LUBRICATING OIL. AS STATED IN OUR LETTER OF JUNE 8, 1961, THE TESTS DID NOT SHOW HARMFUL MOISTURE CONTENT AND YOU HAVE NOT PRESENTED ADDITIONAL EVIDENCE ESTABLISHING SAME. LETTER DATED SEPTEMBER 22, 1961, FROM G. M. FORSYTH OF DETROIT DIESEL STATES THAT A SMALL AMOUNT OF WATER SUCH AS 3 PERCENT WOULD ORDINARILY BOIL OUT, BUT THAT THE PRESENCE OF 3 PERCENT WATER ,COULD" INDICATE SOME SOURCE OF CONTAMINATION FROM A HIGHER WATER CONTENT AT SOME TIME BEFORE THE SAMPLE WAS TAKEN, AND THAT IF THIS WERE TRUE, THE HIGHER QUANTITY OF WATER "COULD" BE RESPONSIBLE FOR A BEARING FAILURE. THIS IS FAR FROM A DEFINITE FINDING OF WATER CONTAMINATION AND IT SEEMS PERTINENT TO RESTATE AT THIS POINT THAT THE PURE OIL COMPANY ANALYSIS SHOWED WATER CONTENT OF ONLY 0.5 PERCENT. FURTHERMORE, IN VIEW OF THE SHORT PERIOD OF OPERATION THE OIL TESTED MAY EVEN HAVE BEEN THE ORIGINAL OIL IN THE CRANKCASE AT THE TIME THE ENGINES WERE DELIVERED TO THE GOVERNMENT.

FOR THE REASONS STATED WE MUST ADHERE TO OUR ORIGINAL CONCLUSION THAT THERE HAS NOT BEEN ESTABLISHED ANY OBLIGATION ON THE PART OF THE GOVERNMENT TO PAY FOR THESE REPAIRS.