B-129672, DEC. 10, 1956

B-129672, DEC. 10, 1956

TO DEDOES INDUSTRIES:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 17, 1956, REQUESTING REVIEW OF OUR SETTLEMENT OF OCTOBER 8, 1956, WHICH DISALLOWED YOUR CLAIM FOR $12,570.01 UNDER CONTRACT NO. DA-20-113-ORD-18251, DATED JUNE 17, 1954. ALSO, YOU REQUEST A CONFERENCE IN THE MATTER WITH REPRESENTATIVES OF OUR OFFICE FOR THE PURPOSE OF PRESENTING CERTAIN SAMPLE CASTINGS AND CLARIFYING THE ISSUES IN CONNECTION THEREWITH.

IT IS OUR ESTABLISHED PRACTICE THAT CLAIMS PRESENTED HERE NECESSARILY MUST BE SETTLED ON THE BASIS OF THE WRITTEN RECORD. YOU ARE FREE, HOWEVER, TO PRESENT ANY ADDITIONAL EVIDENCE OR DOCUMENTS BELIEVED PERTINENT TO YOUR CLAIM OR, IF YOU SO DESIRE, YOU MAY CALL AT OUR OFFICE LOCATED AT 441 G STREET, N.W., ANY TIME DURING REGULAR WORKING HOURS, MONDAY THROUGH FRIDAY, WITH THE UNDERSTANDING THAT THE SUBSTANCE OF ANY MATTERS PRESENTED ORALLY MUST BE REDUCED TO WRITING TO RECEIVE CONSIDERATION.

YOUR CONTENTIONS ORIGINALLY WERE SET FORTH IN YOUR LETTER OF DECEMBER 2, 1954, JANUARY 7, MARCH 30 AND DECEMBER 28, 1955, TO THE ADMINISTRATIVE OFFICE AND OUR OFFICE. THESE CONTENTIONS, WHILE FULLY CONSIDERED BY THE ADMINISTRATIVE OFFICE AND OUR OFFICE IN THE SETTLEMENT OF YOUR CLAIM, ARE, WITH SOME AMPLIFICATION, AGAIN PRESENTED IN YOUR LETTER OF OCTOBER 17, 1956. AS REQUESTED, YOUR CLAIM HAS BEEN REVIEWED, AND FOR THE REASONS HEREINAFTER SET FORTH, THERE APPEARS TO BE NO PROPER BASIS FOR THE ALLOWANCE OF ANY PORTION OF THE AMOUNT CLAIMED

UNDER THE TERMS OF THE FIXED-PRICE CONTRACT YOU AGREED TO MANUFACTURE AND DELIVER 698 UNITS OF SPACER, FRONT ROADWHEEL INNER BEARING, AT $9.75 EACH, OR FOR A TOTAL CONTRACT PRICE OF $6,805.50. YOU CONTEND THAT DUE TO THE EXCESSIVE WORKAGE IN THE UNITS DEVELOPED WITH THE APPLICATION OF HEAT TREATMENT IT BECAME NECESSARY TO PROCESS A SERIES OF COSTLY EXPERIMENTS, BOTH IN FLAME HARDENING AND INDUCTION HEATING, TO PRODUCE SPACERS MEETING THE SPECIFIED DIMENSIONS. YOU FURTHER CONTEND THAT BY REASON OF THE ADDITIONAL FABRICATION PERFORMED BECAUSE OF THE UNFORESEEN DIFFICULTIES ENCOUNTERED YOU INCURRED ADDITIONAL EXPENSES IN THE AMOUNT CLAIMED.

THE RECORD DISCLOSES THAT YOU PREPARED AND SUBMITTED YOUR BID ACCORDANCE WITH THE SPECIFICATIONS AND DRAWINGS CITED, INCLUDING "ORD DRG. NO. C. 7996210, REV. O. DTD. 3-15-54" WHICH PRESCRIBED THE REQUIRED HEAT TREATMENT FOR THE ITEMS IN QUESTION. YOU WERE AWARDED THE CONTRACT AS LOW BIDDER AND, WHILE YOU ENCOUNTERED HEAT TREATMENT PROBLEMS WHICH WERE ULTIMATELY SOLVED THROUGH APPROVAL OF YOUR REQUESTED ALLEVIATION OF DIMENSION TOLERANCES, SUCH APPROVAL ACTION IN NOWISE SUGGESTED THAT THE ORIGINAL DRAWINGS AND DESIGN OF THE BEARING SPACER WERE IMPROPER AND CONTRIBUTED TO YOUR MANUFACTURING DIFFICULTIES. IT MAY BE ADDED THAT THE FOUR REQUESTS FOR DEVIATION APPROVAL SUBMITTED BY YOU WERE APPROVED BY THE CONTRACTING OFFICER WITHOUT ANY CHANGE IN THE CONTRACT PRICE. IF YOU REGARDED SUCH CHANGES AS AMOUNTING TO EXTRA WORK, RATHER THAN CHANGES FOR YOUR CONVENIENCE AS ADMINISTRATIVELY REPORTED, YOU SHOULD HAVE FOLLOWED THE PROCEDURE OUTLINED IN PARAGRAPH TWO OF THE NOVEMBER 1949 EDITION OF STANDARD FORM NO. 32, GENERAL PROVISIONS PRESCRIBED BY THE GENERAL SERVICES ADMINISTRATION, MADE A PART OF THE CONTRACT ON PAGE ONE OF THE CONTRACT FORM.

IT MAY BE THAT YOUR PREPARATION OF THE QUOTATION WAS MADE WITHOUT GIVING FULL CONSIDERATION TO THE TECHNICAL REQUIREMENTS FOR APPLICATION PRIOR, DURING AND SUBSEQUENT TO THE HEAT TREATMENTS AND NECESSARY TO PERMIT FABRICATION MEETING THE DIMENSION TOLERANCES. NEVERTHELESS, YOUR ELECTION TO PRESENT YOUR PRICE WAS YOUR OWN AND THE FACT THAT YOU HAVE RELIED UPON YOUR OWN JUDGMENT OR THAT OF SOME OTHER PERSON IN EMPLOYING A PARTICULAR METHOD OF FABRICATION IN THE COMPLETED WORK DOES NOT AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS UNDER THE CONTRACT. SEE IN THIS CONNECTION THE CASE OF FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163.

INSOFAR AS CONCERNS THE ALLEGED INCREASED COSTS FOR THE REPORTEDLY ADDITIONAL FABRICATION OF THE ITEMS TO PERMIT APPLICATION OF THE HEATING TREATMENT, THE CONTRACT CONTAINED NO PROVISION FOR ADJUSTMENT OF THE FIXED PRICE AS AWARDED EXCEPT AS AGREED UPON, OR DETERMINED, IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH TWO OF STANDARD FORM NO. 32, REFERRED TO HEREINABOVE.

ACCORDINGLY, ON THE PRESENT RECORD THE ACTION TAKEN IN THE SETTLEMENT OF OCTOBER 8, 1956, IS SUSTAINED.