B-132678, OCT. 7, 1957

B-132678, OCT. 7, 1957

TO THE INDUSTRIAL PUMP CORPORATION:

REFERENCE IS MADE TO A LETTER DATED SEPTEMBER 5, 1957, FROM YOUR ATTORNEY, RELATIVE TO YOUR CLAIM FOR $1,213.59, REPRESENTING THE COST OF REPAIRING PEERLESS TURBINE PUMP SERIAL NO. 114314, FURNISHED AND INSTALLED BY YOU AT THE AGRICULTURAL RESEARCH STATION LOCATED AT BROOKSVILLE, FLORIDA, UNDER CONTRACT NO. 12-14-100-574/53), PURCHASE ORDER S-3963-ARS- 56, DATED DECEMBER 19, 1955.

THE CONTRACT CARRIED A GUARANTEE CLAUSE WHICH READ:

"GUARANTEE: THE SUCCESSFUL BIDDER (CONTRACTOR) OBLIGATES HIMSELF TO GUARANTEE THE SATISFACTORY OPERATION OF THE UNIT AND ALL ITS PARTS UNDER NORMAL USE FOR A PERIOD OF ONE YEAR FROM THE DATE OF DELIVERY AND TO REPLACE WITHOUT COST TO THE GOVERNMENT ALL PARTS THAT ARE FOUND FAULTY DURING THAT TIME, WHETHER DUE TO DEFECTIVE MATERIALS, FAULTY DESIGN OR WORKMANSHIP.'

ACCORDING TO OUR RECORDS, THE PUMP WAS DELIVERED AND INSTALLED AT THE BROOKSVILLE AGRICULTURAL FIELD STATION ON APRIL 10, 1956. HOWEVER, SOME EIGHT AND A HALF MONTHS LATER, ON DECEMBER 28, 1956, THE EQUIPMENT BROKE DOWN, NECESSITATING THE REPLACEMENT BY THE CONTRACTOR OF CERTAIN PARTS. THE COST OF THE NECESSARY REPAIRS WAS $1,213.59, FOR WHICH THE GOVERNMENT WAS INVOICED IN DUE COURSE. IN THE LIGHT OF THE GUARANTEE CLAUSE ABOVE QUOTED, AND SINCE THE BREAKDOWN OCCURRED LESS THAN A YEAR AFTER INSTALLATION OF THE EQUIPMENT, YOUR RIGHT TO PAYMENT ON YOUR INVOICE WAS ADMINISTRATIVELY QUESTIONED. IN OUR DECISION OF AUGUST 12, 1957, WE INSTRUCTED THE GOVERNMENT CERTIFYING OFFICER NOT TO MAKE PAYMENT THEREON.

APPARENTLY, IT IS YOUR POSITION THAT THE GUARANTY CLAUSE IS NOT APPLICABLE TO THESE REPAIRS SINCE THEY WERE NOT SHOWN TO HAVE BEEN ATTRIBUTABLE EITHER TO "DEFECTIVE MATERIALS, FAULTY DESIGN OR WORKMANSHIP," WITHIN THE MEANING OF SUCH CLAUSES.

THE PORTION OF THE GUARANTEE CLAUSE WHICH OBLIGATES THE CONTRACTOR TO REPLACE WITHOUT COST TO THE GOVERNMENT ALL FAULTY PARTS DISCOVERED WITHIN ONE YEAR FROM DATE OF DELIVERY, WHETHER DUE TO CERTAIN SPECIFIED CAUSES, DOES NOT AFFECT, NOR RENDER INOPERATIVE, THE PRELIMINARY AND MORE COMPREHENSIVE PART OF THE CLAUSE WHICH UNEQUIVOCALLY OBLIGATES THE CONTRACTOR TO GUARANTEE THE ,SATISFACTORY OPERATION OF THE UNIT AND ALL OF ITS PARTS" UNDER NORMAL USE DURING SUCH ONE-YEAR PERIOD. THIS LETTER STIPULATION WOULD APPEAR BINDING UPON THE CONTRACTOR, IRRESPECTIVE OF ANY POSSIBLE DOUBT WHICH MIGHT ARISE AS TO THE PROPER INTERPRETATION TO BE PLACED ON THE LANGUAGE DEFINING THE CONTRACTOR'S LIABILITY IN THE MATTER OF REPLACEMENT OF "FAULTY" PARTS.

WITHOUT TANGIBLE PROOF OR EVIDENCE TO SUPPORT YOUR POSITION, YOU MERELY HAVE ASSUMED THE REASON THE PUMP FROZE WAS DUE TO THE LACK OF PRELUBRICATION BEFORE ITS USE. CONVERSELY, HOWEVER, THE GOVERNMENT OFFICIAL IN CHARGE OF THE BROOKSVILLE FIELD STATION AFFIRMATIVELY HAS REPORTED THAT THE PUMP WAS "OPERATED AND MAINTAINED IN ACCORDANCE WITH THE CONTRACTOR'S SPECIFICATIONS AND INSTRUCTIONS, AND THE PUMP WAS NEVER STARTED WITHOUT ADEQUATE PRELUBRICATION.'

WHILE YOU HAVE ASSUMED THAT THE ACTUAL CAUSE OF THE BREAKDOWN WAS THE NEGLIGENT OR IMPROPER OPERATION BY GOVERNMENT PERSONNEL, YOU HAVE NOT PRESENTED ANY CONVINCING EVIDENCE OF REBUTTAL OF THE REPORT BY THE ADMINISTRATIVE OFFICE. THUS WE ARE LEFT WITH NO ALTERNATIVE IN THE CIRCUMSTANCES BUT TO RELY UPON THE CORRECTNESS OF THE FACTS AS REPORTED TO US BY THE ADMINISTRATIVE OFFICIALS OF THE GOVERNMENT. SEE 20 COMP. GEN. 573, 578; 16 ID. 1105, 1106; 15 ID. 241.

ACCORDINGLY, AND GIVING EFFECT TO THE GUARANTEE CLAUSE AS A WHOLE, AND NOT TO JUST ONE SEGMENT THEREOF, WE MUST AFFIRM OUR DECISION OF AUGUST 12, 1957, ON THIS MATTER.