B-123830, JUN. 20, 1955

B-123830, JUN. 20, 1955

TO LONERGAN MANUFACTURING COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 15, 1955, WITH ENCLOSURES, REQUESTING REVIEW OF SETTLEMENT DATED JANUARY 17, 1955, WHICH DISALLOWED YOUR CLAIM FOR REMISSION OF LIQUIDATED DAMAGES IN THE AMOUNT OF $4,490.39 ASSESSED IN CONNECTION WITH CONTRACT NO. DA-36-109 ENG-4621 DATED APRIL 29, 1953, UNDER WHICH DELIVERY OF 12,752 STEEL SMOKE JACKS, EXPORT PACKED, WAS SCHEDULED BY AUGUST 18, 1953.

THE FACTS AND CIRCUMSTANCES REGARDING THE DELINQUENT DELIVERIES ARE SET FORTH IN THE SETTLEMENT WHEREIN CONSIDERATION OF YOUR RIGHTS UNDER PARAGRAPH 11 (B) OF THE CONTRACT REFLECTS YOUR CONTENTIONS THAT THE DELAY IN QUESTION WAS OCCASIONED, FIRST, BY FAILURE OF YOUR SUPPLIER TO DELIVER THE REQUIRED EXPORT BOXES AS PROMISED AND, OTHERWISE, BECAUSE OF THE TIME REQUIRED TO SECURE COMPLETE SPECIFICATIONS FOR MARKING THE BOXES. IN YOUR LETTER OF APRIL 15, 1955, YOU STATE THAT YOU SUBMITTED SAMPLE BOXES WHICH WERE APPROVED ON JUNE 24, 1953, BUT WHICH WERE SUBSEQUENTLY REJECTED BECAUSE OF CERTAIN DEFICIENCIES IN SPECIFICATION REQUIREMENTS AS TO WHICH YOU, YOUR SUPPLIER, AND THE GOVERNMENT INSPECTOR WERE NOT IN AGREEMENT. YOU INDICATE THAT A REEXAMINATION OF THE ENTIRE RECORD WILL SUPPORT YOUR CONTENTIONS THAT THE RESULTING DELAY WAS CAUSED ENTIRELY BY REASON OF FAILURE OF THE INSPECTOR TO MAKE A PROMPT DECISION REGARDING THE SPECIFIC REQUIREMENTS FOR EXPORT BOXES AND BY REASON OF AN ADDITIONAL DELAY RESULTING FROM CHANGES MADE IN CERTAIN PRINTING REQUIREMENTS.

IT APPEARS THAT YOUR SUPPLIER, IN ITS LETTER OF AUGUST 19, 1953, ADVISED YOU AS TO RECEIVING AN APPROVAL OF THE BOXES FROM THE CONTRACTING OFFICER'S REPRESENTATIVE ON JULY 21, 1953. THE ADMINISTRATIVE REPORT CLEARLY STATES THAT OFFICIAL DID NOT ON THAT DATE OR ANY OTHER DATE NOTIFY YOUR SUPPLIER WITH RESPECT TO SAID APPROVAL. OBVIOUSLY, SUCH NOTICE OF APPROVAL, IF AND WHEN GIVEN, WOULD REMAIN YOUR RESPONSIBILITY SINCE THE GOVERNMENT WAS WITHOUT PRIVITY OF CONTRACT WITH YOUR SUPPLIER. FURTHERMORE, IT APPEARS THAT ON JULY 2, 1953, WHEN THE GOVERNMENT INSPECTOR WAS AGAIN CALLED TO YOUR PLANT TO INSPECT A BOX WITH LINDERMAN SPLINTS IT DEVELOPED THAT THE LUMBER USED FAILED TO MEET SPECIFICATIONS INSOFAR AS THICKNESS IS CONCERNED AND THAT THE LINDERMAN JOINTS COMPRISED BOARDS CONTAINING KNOTS EXCEEDING THE SPECIFICATION ALLOWANCES OF FOUR INCHES WHICH WERE GLUED TO BOARDS OTHERWISE MEETING SPECIFICATIONS. THE BOX WAS REJECTED FOR THESE REASONS.

THE RECORD FURTHER SHOWS THAT DURING THE INSPECTION THE ATTENTION OF YOUR REPRESENTATIVE WAS INVITED TO THE PERTINENT DRAWING REQUIREMENT THAT "BOXES MAY BE CONSTRUCTED OF GROUP II WOODS Y.' HOWEVER, IT IS REPORTED THAT THE INSPECTOR SUBSEQUENTLY AGREED TO A CHANGE IN THE SAID DRAWING TO READ "BOXES MAY BE CONSTRUCTED OF GROUP I, II, III OR IV WOOD" AND THAT THERE BE ADDED THE SIZE OF THE STRAPPING. FIVE REVISED DRAWINGS WERE RECEIVED BY THE INSPECTION OFFICE THE FOLLOWING DAY AND APPROVED--- ONE COPY OF THE APPROVED DRAWING BEING MAILED BY THE INSPECTION OFFICE THE SAME DAY TO YOU. IT WELL MAY BE THAT THIS REPRESENTS THE APPROVAL REFERRED TO BY YOUR SUPPLIER. IT IS NOTED THAT IN YOUR LETTER OF JULY 27, 1953, YOU ATTRIBUTED A PORTION OF THE DELAY TO AN AUTHORIZED CHANGE IN THE PRINTING AND MARKING REQUIREMENTS AND REQUESTED AN EXTENSION OF TIME AS WELL AS REIMBURSEMENT FOR ADDITIONAL COSTS ALLEGEDLY RESULTING THEREFROM. YOUR REQUEST WAS DENIED BY THE PROCUREMENT OFFICER FOR THE REASONS STATED IN THE LETTER OF JULY 31, 1953, TO YOU. THE AUTHORITY TO MAKE SUCH A CHANGE, INCLUDING ANY NECESSARY ADJUSTMENT IN THE CONTRACT TIME AND PRICE, IS CONTAINED IN ARTICLE 2 OF THE CONTRACT. THIS ARTICLE LIKEWISE PROVIDES THE METHOD OF PROCEDURE IN THE EVENT OF ANY DISPUTES ARISING IN CONNECTION WITH ANY AUTHORIZED CHANGE. THERE IS NO EVIDENCE OF RECORD ESTABLISHING YOUR ADHERENCE TO THESE REQUIREMENTS REGARDING THIS PORTION OF THE DELAY.

IT MUST BE CONCLUDED ON THE BASIS OF THE REPORTED FACTS THAT THERE WAS NO DELAY OCCASIONED BY ANY DIFFERENCES IN THE INTERPRETATION OF THE CONTRACT OR SPECIFICATIONS. THE CONTRACTING OFFICER IN HIS FINDINGS OF FACT DATED MAY 11, 1954, STATES, IN SUBSTANCE, THAT THE DELAY WAS DUE TO THE FAILURE OF YOUR SUPPLIER TO PROCESS THE BOXES ORIGINALLY IN STRICT ACCORDANCE WITH ALL THE REQUIREMENTS OF THE SPECIFICATION AND THAT SUCH FAILURE WAS NOT BEYOND YOUR CONTROL OR WITHOUT YOUR FAULT OR NEGLIGENCE. IT IS SPECIFICALLY DETERMINED IN THE FINDINGS THAT THE DELAY WAS NOT DUE TO ANY OF THE ENUMERATED EXCUSABLE CAUSES UNDER ARTICLE 11 (B) OF THE CONTRACT.