B-143956, NOV. 10, 1960

B-143956, NOV. 10, 1960

TO STANDARD X-RAY COMPANY:

YOU REQUEST REVIEW, BY LETTER OF AUGUST 30, 1960, OF THE SETTLEMENT DATED AUGUST 24, 1960, WHICH DISALLOWED YOUR CLAIM FOR $753.05, REPRESENTING THE BALANCE STATED TO BE DUE FOR ONE MACHLETT DX-40 X-RAY TUBE, NO. G-57042, FURNISHED THE VETERANS ADMINISTRATION CENTER, RENO, NEVADA, UNDER CONTRACT NO. V1005P-6951, PURCHASE ORDER NO. 57-VA-1245.

THE RECORD SHOWS THAT THE VETERANS ADMINISTRATION, WASHINGTON, D.C., ISSUED INVITATION NO. A-457-57 ON MARCH 12, 1957, CALLING FOR VARIOUS ITEMS OF X-RAY EQUIPMENT FOR SHIPMENT TO VETERANS ADMINISTRATION SUPPLY DEPOTS AT HINES, ILLINOIS, AND WILMINGTON, CALIFORNIA. ON APRIL 17, 1957, CONTRACT NO. V1005P-6951 WAS AWARDED TO STANDARD X-RAY COMPANY, CHICAGO, ILLINOIS, WHICH INCLUDED TWO RADIOGRAPHIC GENERATOR UNITS (ITEM NOS. 2 AND 2A) FOR DELIVERY TO WILMINGTON, CALIFORNIA, DURING THE WEEK OF JULY 1, 1957, AT PRICES OF $4,000 AND $5,000.

THE INVITATION AND RESULTING CONTRACT PROVIDED THAT THE CONTRACTOR WOULD INSTALL THE GENERATOR UNITS AT THE EVENTUAL PLACE OF INSTALLATION, AND SERVICE THEM FOR A PERIOD OF 10 YEARS. THE CONTRACT ALSO CONTAINS AN EQUIPMENT GUARANTEE WHICH READS, IN PERTINENT PART, AS FOLLOWS:

"GUARANTY: ALL PARTS OF THE EQUIPMENT, INCLUDING REPLACEMENT PARTS, BOTH MECHANICAL AND ELECTRICAL (EXCEPT SHOCKPROOF CABLES, EVACUATED DEVICES AND X-RAY TUBES) SHALL BE GUARANTEED FOR 1 YEAR, DURING WHICH TIME BREAKDOWNS RESULTING FROM DEFECTIVE MATERIAL AND WORKMANSHIP SHALL BE REPAIRED BY THE CONTRACTOR WITHOUT EXPENSE TO THE GOVERNMENT. SUCH REPAIRS SHALL BE MADE IN ACCORDANCE WITH "SERVICE REQUIREMENTS.'

"EVACUATED DEVICES AND X-RAY TUBES SHALL BE GUARANTEED TO BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP, WHICH UNDER NORMAL USE, IMPAIR THEIR OPERATING LIFE, AND SHALL BE GUARANTEED FOR A PERIOD OF TWELVE MONTHS FROM PREMATURE FAILURE AFTER DATE OF FIRST USE OF SAID TUBE, PROVIDED THAT AN EXAMINATION AT THE FACTORY OF THE QUESTIONABLE ITEMS DISCLOSES NO EVIDENCE OF MISUSE OR ABUSE. REPLACEMENTS THAT MAY BE REQUIRED WITHIN THE SPECIFIED PERIOD WILL BE FURNISHED AT A PRICE WHICH WILL EQUITABLY REFLECT THE ACTUAL SERVICE RECEIVED.'

THE GENERATOR UNITS WERE DELIVERED TO THE WILMINGTON, CALIFORNIA, DEPOT. THEREAFTER, ON JUNE 12, 1958, ONE GENERATOR UNIT, WITH COMPONENTS, PURCHASED FROM THE STANDARD X-RAY COMPANY ON VETERANS ADMINISTRATION PURCHASE ORDER NO. 57-VA-1245, DATED APRIL 24, 1957, WAS SHIPPED FROM THE WILMINGTON DEPOT FOR INSTALLATION AND USE AT THE VETERANS ADMINISTRATION HOSPITAL, RENO, NEVADA.

IN ACCORDANCE WITH THE TERMS OF THE CONTRACT, INSTALLATION OF THE GENERATING UNIT AT THE HOSPITAL WAS UNDERTAKEN BY AN AUTHORIZED REPRESENTATIVE OF THE CONTRACTOR. AT THE TIME OF INSTALLATION, IT WAS FOUND THAT THE X-RAY TUBE FURNISHED WITH THE UNIT (DYNAMOX 40 NO. G 50042 TUBE) CONTAINED A DEFECTIVE FILAMENT. THE DEFECTIVE TUBE WAS RETURNED TO THE CONTRACTOR ON JULY 11, 1958, AND A REPLACEMENT TUBE WAS REQUESTED. AUGUST 4, 1958, THE CONTRACTOR SENT A REPLACEMENT TUBE TO THE VETERANS ADMINISTRATION CENTER, RENO, NEVADA, AND BILLED THE INSTALLATION FOR $1,109.04. A CREDIT OF $355.99 WAS SUBSEQUENTLY ALLOWED BY THE CONTRACTOR ON THE RETURNED DEFECTIVE TUBE. THE REPLACEMENT TUBE WAS REPORTED AS APPROVED FOR USE BY AN INSPECTOR ON AUGUST 26, 1958.

INCLUDED WITH A LETTER OF APRIL 21, 1960, TO THE VETERANS ADMINISTRATION FISCAL DIVISION, WILMINGTON, CALIFORNIA, WHEREIN THE CONTRACTOR PRESENTED ITS CLAIM FOR $753.05, THE CONTRACTOR FURNISHED A COPY OF THE X-RAY TUBE MANUFACTURER'S REPORT ON THE DEFECTIVE TUBE, WHICH STATES, IN PART AS FOLLOWS:

"AS MUCH AS WE REGRET, THE OPEN SMALL FILAMENT IN DYNAMAX 40 NO. G 50042 APPEARS TO HAVE BEEN A STRAIGHTFORWARD CASE OF EVAPORATION OF ITS SUBSTANCE IN LINE WITH USE. THIS WAS CHARACTERIZED BY MELTING OF THE FILAMENT BODY AT THE OPPOSING ENDS OF THE BREAK AND A HEAVY DEPOSIT OF VAPORIZED TUNGSTEN ON THE INNER SURFACE OF THE GLASS DELINEATING THE SLOT CONTAINING THE SAME FILAMENT. NOTHING ELSE REMARKABLE WAS NOTED IN EITHER THE TUBE OR ITS SHOCKPROOF ENCLOSURE.

"UNFORTUNATELY IT IS IMPOSSIBLE TO DETERMINE FROM HERE WHETHER FACTORS INTENDED FOR THE LARGE FILAMENT HAD BEEN USED WITH THE SMALL SPOT, OR IF THE SMALL FILAMENT HAD BEEN ALLOWED TO REMAIN ENERGIZED FOR LONGER PERIODS THAN NECESSARY. THE SERVICE INFORMATION DOES NOT INDICATE THE APPROXIMATE AMOUNT OF USE RECEIVED, BUT GIVES AN INSTALLATION DATE OF NOVEMBER 15, 1957. WE SINCERELY HOPE, THOUGH, OUR DESCRIPTION OF THE OPEN FILAMENT WILL HELP THE USER ACCOUNT FOR THIS CONDITION.'

THE ADMINISTRATIVE OFFICE REPORTS THAT THE DEFECTIVE TUBE WAS NEVER PUT INTO USE, SO THE DEFECT MUST HAVE BEEN INHERENT IN THE MANUFACTURE OF THE TUBE.

YOU SAY THAT THE COMPLETE X-RAY UNIT WAS INSPECTED AT YOUR FACTORY AND LEFT THERE IN GOOD OPERATING CONDITION. ON THAT BASIS YOU CONTEND THAT THE DEFECT MUST HAVE OCCURRED DURING THE PERIOD WHEN THE TUBE WAS UNDER THE CONTROL OF THE GOVERNMENT, AND YOU SHOULD NOT BE EXPECTED TO ASSUME ANY RESPONSIBILITY FOR THE TUBE FAILURE.

UNDER THE TERMS OF THE CONTRACT, THE TUBE IN QUESTION WAS GUARANTEED TO BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP WHICH, UNDER NORMAL USE, WOULD IMPAIR ITS OPERATING LIFE. IN THIS REGARD, IT HAS BEEN HELD THAT, GENERALLY, A "DEFECT IN MATERIAL" IS A DEFECT IN QUALITY, AND A ,DEFECT IN WORKMANSHIP" IS A DEFECT IN THE WAY SOME PART OF THE ITEM IS CONSTRUCTED. SEE LOMBARD CORPORATION V. QUALITY ALUMINUM PRODUCTS CO., 261 F.2D 336, 338. THE TUBE WAS ALSO GUARANTEED FROM PREMATURE FAILURE FOR A PERIOD OF 12 MONTHS FROM THE DATE OF FIRST USE, PROVIDED THAT EXAMINATION OF THE TUBE AT THE FACTORY DISCLOSED NO EVIDENCE OF MISUSE OR ABUSE.

THE ADMINISTRATIVE REPORT STATES THAT THE DEFECT IN THE FILAMENT OF THE TUBE WAS FOUND AT THE TIME OF INSTALLATION, AND THAT THE TUBE WAS NEVER PUT INTO USE. PRESUMABLY, THE TUBE IN QUESTION WAS NOT USED AT THE WILMINGTON DEPOT PRIOR TO THE INSTALLATION OF THE COMPLETE X-RAY UNIT AT THE HOSPITAL. IT WAS ADMINISTRATIVELY CONCLUDED THAT THE DEFECT IN THE TUBE IS ATTRIBUTABLE TO YOU.

IF THE GOVERNMENT RECEIVED FROM YOU A TUBE WITH A DEFECTIVE FILAMENT, THEN, UNDER THE GUARANTEE HERE CONSIDERED, WE MUST AGREE WITH THE ADMINISTRATIVE CONCLUSION, AND YOU ARE CONTRACTUALLY OBLIGATED TO PROVIDE THE REPLACEMENT TUBE AT A PRICE WHICH EQUITABLY REFLECTS THE ACTUAL SERVICE RECEIVED ON THE DEFECTIVE TUBE.

HOWEVER, THE TUBE MANUFACTURER'S REPORT STATES THAT THE DEFECT AROSE "IN LINE WITH USE.' YOU SAY THAT THE DEFECTIVE TUBE LEFT YOUR CONTROL IN GOOD OPERATING CONDITION. THE INFERENCE FROM THE EVIDENCE YOU OFFER IS THAT THE DEFECT AROSE FROM USE GIVEN THE TUBE DURING THE PERIOD WHEN IT WAS UNDER THE GOVERNMENT'S CONTROL.

IT SEEMS TO US THAT BEFORE YOU CAN ESTABLISH YOUR CLAIM, IT MUST BE SHOWN THAT THE GOVERNMENT USED THE DEFECTIVE TUBE AFTER IT LEFT YOUR CONTROL. ON THIS POINT THE EVIDENCE IS CONFLICTING. YOU OFFER EVIDENCE TO THE EFFECT THAT THE DEFECT AROSE DUE TO USE AFTER IT LEFT YOUR CONTROL. THE ADMINISTRATIVE REPORT OF FACTS TENDS TO ESTABLISH THAT THE DEFECTIVE TUBE WAS NEVER PUT INTO USE BY THE GOVERNMENT. IN SITUATIONS OF THIS SORT, WHERE, IN EFFECT, A CLAIM BEFORE US HAS RESOLVED ITSELF INTO A CONFLICT OF FACTS, AND WE ARE UNABLE TO DETERMINE WITH ANY SUBSTANTIAL DEGREE OF ACCURACY THE VALIDITY OF THE CLAIM PRESENTED, THE CLAIM IS DISALLOWED, LEAVING IT TO THE PARTIES TO ASSERT THEIR RIGHTS IN A COURT OF LAW. COMP. GEN. 404; 19 COMP. DEC. 409; SEE LONGWILL V. UNITED STATES, 17 CT.CL. 288, 291; CHARLES V. UNITED STATES, 19 ID. 316, 319.

IN VIEW OF THE ABOVE, THE ACTION OF OUR CLAIMS DIVISION IN DISALLOWING YOUR CLAIM IS SUSTAINED.