B-148931, JUN. 18, 1962

B-148931, JUN. 18, 1962

TO THE CENTRAL ENGINEERING CO.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 7, 1962, REQUESTING REVIEW OF YOUR CLAIM FOR $159.89 COVERING SERVICES RENDERED TO GRAY AIR FORCE BASE IN CONNECTION WITH AIR CONDITIONING EQUIPMENT INSTALLED BY YOU UNDER CONTRACT NO. DA-41-093-AIV-1807, WHICH CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION FOR THE REASONS STATED IN SETTLEMENT CERTIFICATE DATED MAY 4, 1962.

THE CLAIM COVERS EXPENSES IN THE RESPECTIVE AMOUNTS OF $111 AND $48.89 INCURRED BY YOU FOR SERVICES RENDERED ON JULY 1 AND 2, 1961, AND ON AUGUST 11, 1961, IN RESPONSE TO ORAL REQUESTS FOR WARRANTY SERVICES AT THE RADAR TOWER, GRAY AIR FORCE BASE, UNDER THE CITED CONTRACT. IT IS YOUR CONTENTION THAT THE SERVICES WERE REQUIRED BECAUSE OF THE GOVERNMENT'S LACK OF PROPER MAINTENANCE OF THE EQUIPMENT AND, THEREFORE, WERE NOT COVERED BY THE CONTRACT WARRANTY SINCE THE WARRANTY COVERED ONLY DEFECTS APPEARING DURING THE WARRANTY PERIOD IN WORKMANSHIP OR MATERIALS OF THE AIR CONDITIONING EQUIPMENT. YOU STATE FURTHER THAT SINCE THE TERMS OF THE WARRANTY DO NOT INCLUDE BREAKDOWNS RESULTING FROM OBVIOUS LACK OF MAINTENANCE OUR DECISION UPON "RECORDS" WHICH ARE CONTRARY TO THE OBSERVED FACTS SIMPLY CANNOT BE ACCEPTED AND SINCE THE GOVERNMENT BENEFITED FROM THE SERVICES RENDERED IT SHOULD MAKE PAYMENT THEREFOR.

IN CONSIDERING YOUR CLAIM THE SOLE QUESTION FOR CONSIDERATION IS WHETHER THE SERVICES FOR WHICH YOU CLAIM COMPENSATION WERE OR WERE NOT COVERED BY THE WARRANTY CLAUSE OF THE CONTRACT.

IN A REPORT ON A SURVEY CONDUCTED BY THE BASE CIVIL ENGINEERS TO FIND THE FACTS AND CIRCUMSTANCES INVOLVED IN YOUR CLAIM IT IS STATED THAT UNDER THE TERMS OF THE CONTRACT THE AIR CONDITIONING UNIT AND ALL COMPONENTS THEREOF WERE UNDER WARRANTY DURING THE PERIOD SEPTEMBER 22, 1960, TO SEPTEMBER 21, 1961. IT IS ACKNOWLEDGED IN THAT REPORT THAT THE SERVICES COVERED BY YOUR CLAIM WERE PERFORMED, AS ALLEGED, BUT IT IS ADMINISTRATIVELY CONTENDED THAT THEY WERE REQUIRED BECAUSE OF BREAKDOWNS IN THE EQUIPMENT WHICH WERE COVERED BY THE CONTRACT WARRANTY AND NOT BECAUSE OF LACK OF PROPER MAINTENANCE OF THE EQUIPMENT BY THE BASE PERSONNEL SINCE THE OFFICIAL RECORDS SHOW THE EQUIPMENT RECEIVED PROPER MAINTENANCE AFTER ITS INSTALLATION. THUS, THE MATTER REVOLVES ITSELF INTO A DISPUTED QUESTION OF FACT.

WHEN THERE IS A DISAGREEMENT, AS HERE, BETWEEN THE FACTS AS ADMINISTRATIVELY REPORTED AND THOSE STATED BY A CLAIMANT IT IS THE ESTABLISHED RULE OF OUR OFFICE TO ACCEPT THE FACTS ADMINISTRATIVELY REPORTED IN THE ABSENCE OF EVIDENCE SUBMITTED BY THE CLAIMANT LEGALLY SUFFICIENT TO OVERCOME THE PRESUMPTION OF THEIR CORRECTNESS. NO SUCH EVIDENCE HAS BEEN FURNISHED BY YOU. MOREOVER, EVEN IF IT SHOULD BE CONCEDED--- WHICH IT IS NOT--- THAT THE SERVICES RENDERED WERE NOT COVERED BY THE CONTRACT WARRANTY, SINCE THE GOVERNMENT SPECIFICALLY REQUESTED THE SERVICES BE PERFORMED UNDER THE CONTRACT WARRANTY CLAUSE. YOU SHOULD NOT HAVE GONE AHEAD WITH THE WORK AFTER YOU DETERMINE THAT THE REPAIRS REQUIRED WERE NOT COVERED BY THE CONTRACT WARRANTY WITHOUT FIRST OBTAINING THE AUTHORITY OF AN AUTHORIZED CONTRACTING OFFICER IN AN APPROPRIATE PURCHASE ORDER. NO SUCH ORDER WAS ISSUED.

ON THE BASIS OF THE RECORD, IT MUST BE CONCLUDED THAT THE SERVICES RENDERED WERE REQUIRED UNDER THE CONTRACT WARRANTY CLAUSE, AND NO LEGAL BASIS IS FOUND FOR THE ALLOWANCE OF YOUR CLAIM.