B-147434, MAR. 2, 1962

B-147434, MAR. 2, 1962

TO WESTINGHOUSE ELECTRIC CORPORATION, ELEVATOR DIVISION:

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 6, 1961, WITH FURTHER REGARD TO YOUR CLAIM IN THE AMOUNT OF $4,588, REPRESENTING A SUM WITHHELD BY THE VETERANS HOSPITAL, BROOKLYN, NEW YORK, DUE TO YOUR FAILURE TO FURNISH THE FULL SERVICE REQUIRED UNDER CONTRACT NO. V5215 P-484, DATED JUNE 16, 1960. THIS AMOUNT ALSO WAS DISALLOWED BY OUR CLAIMS DIVISION IN ITS SETTLEMENT DATED MAY 18, 1961, AND YOU NOW REQUEST REVIEW OF THIS ACTION.

AS POINTED OUT IN THE ABOVE-MENTIONED SETTLEMENT, THERECORDS ON FILE IN THIS OFFICE DISCLOSE THAT THE CONTRACT, CONSISTING OF THE SERVICES LISTED UNDER ITEM 1, WAS AWARDED TO YOU AT THE REGULAR SERVICE CHARGE OF $1,647 PER MONTH. THE SERVICES REQUIRED ARE SHOWN IN DETAIL IN THE ,SPECIFICATIONS" IMMEDIATELY FOLLOWING ITEM 1 ON PAGE 4 OF THE CONTRACT, WHICH PROVIDE, IN PERTINENT PART, AS FOLLOWS:

"A. THE CONTRACTOR SHALL REGULARLY AND SYSTEMATICALLY INSPECT EACH OF THE ABOVE LISTED ELEVATORS AND DUMBWAITERS. THE CONTRACTOR SHALL HAVE MECHANIC ON DUTY AT THIS STATION A MINIMUM OF 32 HOURS PER WEEK AND SHALL MAKE COMPLETE INSPECTIONS ON ALL ELEVATORS AND DUMBWAITERS WEEKLY. THE CONTRACTOR SHALL CLEAN, ADJUST AND LUBRICATE THE EQUIPMENT AS LISTED; DETERMINE THE NATURE AND EXTENT OF ANY TROUBLE AND THE MATERIALS OR PARTS REQUIRED TO RESTORE THE ELEVATORS TO SATISFACTORY SERVICE, AND IF CONDITIONS WARRANT, FURNISH AND INSTALL MINOR PARTS, AS LISTED IN PARAGRAPH 3. BELOW.'

PARAGRAPH H OF THE SPECIFICATIONS PROVIDES FURTHER AS FOLLOWS:

"H. THE CONTRACTOR SHALL PROVIDE EMERGENCY CALL BACK SERVICE CONSISTING OF PROMPTLY RESPONDING TO REQUESTS BY TELEPHONE OR OTHERWISE FROM THE CONTRACTING OFFICER OR HIS AUTHORIZED REPRESENTATIVE IN CASE OF A SHUT DOWN OR EMERGENCY TROUBLE SHOULD DEVELOP BETWEEN REGULAR EXAMINATIONS. THIS CALL BACK SERVICE SHALL BE RENDERED AT ANY HOUR OF ANY DAY OF THE WEEK REQUESTED. THE CALL BACK SERVICE AND ANY WORK COVERED BY THE SCOPE OF THIS SPECIFICATION TO BE DONE THEREUNDER SHALL BE PERFORMED AS A PART OF THIS CONTRACT WITHOUT ADDITIONAL CHARGE.'

AS YOU KNOW, THE MECHANICS WENT ON STRIKE ON AUGUST 1, 1960, AND REMAINED ON STRIKE FOR A PERIOD OF FOUR MONTHS, OR THROUGH THE MONTH OF NOVEMBER. DURING THIS PERIOD THE HOSPITAL DID NOT HAVE THE SERVICES OF A MECHANIC FOR MAINTENANCE, AS CONTEMPLATED BY THE ABOVE-QUOTED PARAGRAPH A OF THE SPECIFICATIONS--- BUT IT WAS FURNISHED CALL SERVICE IN EMERGENCIES INSOFAR AS THEY COULD BE PROVIDED FOR BY YOUR SUPERVISORY PERSONNEL. HOWEVER, IT IS REPORTED THAT DURING THIS FOUR MONTH PERIOD OF THE STRIKE THE EMERGENCY CALL-BACK SERVICE WAS NOT PERFORMED AS QUICKLY OR AS EFFICIENTLY AS WOULD HAVE BEEN PERFORMED BY REGULAR MECHANICS, AND, AS A RESULT OF THIS SITUATION, ONE OF THE ELEVATORS WAS OUT OF ORDER FOR APPROXIMATELY FOUR DAYS WHEN IT REPORTEDLY SHOULD HAVE BEEN RETURNED TO SERVICE WITHIN A MATTER OF HOURS. WHILE IT IS NOT DENIED THAT THE HOSPITAL WAS FURNISHED EMERGENCY REPAIR SERVICE UPON BREAKDOWN DURING THE FOUR MONTH PERIOD INVOLVED, IT NEVERTHELESS IS THE VIEW OF THE ADMINISTRATIVE OFFICE THAT SINCE NONE OF THE PRESCRIBED HOURS OF MAINTENANCE WERE PROVIDED, THIS FACTOR ALONE INCREASED THE NUMBER OF CALL-BACKS AND CAUSED MORE OUT TIME THAN ORDINARILY WOULD HAVE OCCURRED.

IN VIEW OF THE FOREGOING, AND UPON CONSIDERING THE MATTER OF PAYMENT OF $1,647 A MONTH UNDER THE CONTRACT, THE ADMINISTRATIVE OFFICE WAS OF THE OPINION THAT WHILE THE ENTIRE AMOUNT OF THE CONTRACT PRICE DEFINITELY HAD NOT BEEN EARNED, IT WAS NEVERTHELESS FELT THAT A FAIR AND REASONABLE PORTION THEREOF SHOULD BE PAID. ACCORDINGLY, IN ARRIVING AT SUCH FAIR AND REASONABLE AMOUNT, THERE WAS CONSIDERED THE FACT THAT THE SCHEDULED WORKING HOURS OF 32 HOURS PER WEEK FOR THE 18 WEEKS OF THE STRIKE WOULD AMOUNT TO 576 HOURS, OR AN AVERAGE OF 144 HOURS PER MONTH. THESE SERVICES WERE ESTIMATED TO BE THE VALUE OF HALF OF THE MONTHLY PAYMENT, OR $823.50. IT WAS FURTHER FELT THAT THE INCREASED FUTURE COST FOR REPAIRS TO THE ELEVATORS CAUSED BY NO MAINTENANCE DURING THIS FOUR MONTH PERIOD COULD BE CONSERVATIVELY ESTIMATED AT $323.50 PER MONTH, THUS LEAVING A REMAINDER OF $500 PER MONTH AS A FAIR AND REASONABLE AMOUNT FOR THE FOUR MONTHS IN QUESTION.

IN BRIEF, IT APPEARS TO BE THE CONTENTION OF YOUR COMPANY THAT THE ABOVE SETTLEMENT WAS IN ERROR PRIMARILY FOR THE REASON THAT (1) AT THE START OF THE STRIKE YOU IMMEDIATELY ASSIGNED YOUR ENGINEERING AND SUPERVISORY PERSONNEL TO TAKE OVER THE DUTIES WHICH WERE NORMALLY PERFORMED BY YOUR MAINTENANCE MECHANICS, AND (2) AT THE TERMINATION OF THE STRIKE THE DEFICIENCY OF 314 1/2 MAN HOURS WAS ACCOMPLISHED BY THE ASSIGNMENT OF TWO ADDITIONAL MECHANICS TO MAINTENANCE ACTIVITIES OVER AND BEYOND THE REGULAR MECHANIC, WHICH ACTIVITY WAS INITIATED ON DECEMBER 5, 1960, AND COMPLETED ON JANUARY 10, 1961; AND YOU FURTHER CONTEND THAT THIS ADDITIONAL LABOR WAS FURNISHED OVER AND BEYOND YOUR CONTRACTUAL REQUIREMENTS.

THESE VIEWS, AS YOU KNOW, HAVE NOT BEEN SHARED BY THE ADMINISTRATIVE OFFICE, AND ITS POSITION WAS CONCURRED IN BY THE CLAIMS DIVISION OF THIS OFFICE ON MAY 18, 1961. IN A SUPPLEMENTAL REPORT RECEIVED SUBSEQUENT TO YOUR LETTER OF OCTOBER 6, 1961, OFFICIALS OF THE VETERANS ADMINISTRATION REAFFIRMED THEIR ORIGINAL POSITION THAT WHILE EMERGENCY SERVICES WERE PERFORMED BY YOUR SUPERVISORY PERSONNEL, IT WAS THEIR VIEW THAT ALTHOUGH THE MECHANIC FOREMAN ASSIGNED MAY HAVE BEEN WELL QUALIFIED, HE WAS NOT AS FAMILIAR WITH THE ELEVATORS AND DUMBWAITERS AS THE REGULARLY ASSIGNED MECHANIC AND, IN VIEW THEREOF, MORE TIME WAS REQUIRED TO BE SPENT ON A LIKE REPAIR OR OPERATION. IT IS ALSO ADMINISTRATIVELY REPORTED THAT THE OTHER EMERGENCY MECHANIC WAS A SALES MANAGER WHO ACTED AS AN ASSISTANT, AND THE CONTRACTING OFFICER REPORTEDLY HAD NO KNOWLEDGE WITH RESPECT TO HIS MECHANICAL EXPERIENCE OR ABILITY. THE ADMINISTRATIVE OFFICE IS ALSO IN DISAGREEMENT WITH YOUR CONTENTION THAT THE LIFE OF THE ELEVATOR CABLES WAS NOT LESSENED DUE TO LACK OF MAINTENANCE AND, IN THIS CONNECTION, THE OFFICIALS BRING OUT THE VERY PERTINENT POINT THAT IF SUCH WERE THE CASE THEY WOULD BE REMISS IN MAINTAINING A MONTHLY CONTRACT WITH YOUR COMPANY CALLING FOR 32 HOURS WEEKLY, AS RECOMMENDED BY YOU.

IN A LETTER DATED NOVEMBER 17, 1961, THE HOSPITAL DIRECTOR, AFTER FURTHER REVIEWING THE MATTER, REPORTED, IN PART AS FOLLOWS:

"* * * THERE IS CERTAINLY WEAR AND TEAR CONTRIBUTABLE TO LACK OF PREVENTIVE MAINTENANCE OR WE WOULD NOT PERFORM IT, NOR WOULD WESTINGHOUSE HAVE ANY BASIS FOR RECOMMENDING IT. AN AUTOMOBILE RUN WITHOUT OIL OR GREASE FOR A PERIOD OF TIME DOES NOT REVERT TO ITS ORIGINAL CONDITION UPON ADDING SUCH AT A LATER DATE. A CERTAIN AMOUNT OF HARM HAS CERTAINLY BEEN DONE.'

IT IS APPARENT, THEREFORE, THAT THERE EXISTS A DIFFERENCE IN THE STATEMENTS OF FACT CONCERNING THE MATTER; AND, AS POINTED OUT IN OUR CLAIMS DIVISION SETTLEMENT, WHEN THERE ARE CONFLICTING STATEMENTS IN THE RECORD, WE MUST NECESSARILY RELY UPON THE FACTS REPORTED BY THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT IN THE ABSENCE OF SUFFICIENT EVIDENCE TO OVERCOME THE CORRECTNESS OF SUCH REPORT. IN ADDITION, WE MUST ADD THAT WE ARE AWARE OF NO LEGAL BASIS WHEREBY A LACK OF MAINTENANCE FOR A FOUR MONTHS PERIOD, AS REQUIRED BY THE CONTRACT IN THE INSTANT CASE, CAN BE COMPENSATED FOR BY A CONCENTRATION OF MAN HOURS AT THE END OF THAT PERIOD. THIS IS PARTICULARLY TRUE IN THE CASE OF A CONTRACT, SUCH AS HERE, WHICH DOES NOT CONTAIN ANY PROVISION EXCUSING PERFORMANCE ON ACCOUNT OF STRIKES OR LABOR SHORTAGES, HOWEVER UNFORTUNATE THE SITUATION MAY HAVE BEEN.

IN THE LIGHT OF THE FOREGOING, THEREFORE, WE HAVE TO CONCLUDE THAT OUR CLAIMS DIVISION SETTLEMENT OF MAY 18, 1961, MUST BE SUSTAINED.