Maxwell Dynamometer Company v. United States
| Decision Date | 09 November 1967 |
| Docket Number | No. 120-62.,120-62. |
| Citation | 181 Ct. Cl. 607,386 F.2d 855 |
| Parties | MAXWELL DYNAMOMETER COMPANY and Central Penn National Bank of Philadelphia for the Benefit of Lloyd R. Maxwell and Caroline L. Maxwell v. The UNITED STATES. |
| Court | U.S. Claims Court |
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Harry E. Wood, Washington, D.C., for plaintiffs. Samuel D. Slade, Washington, D.C., atty. of record. Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., of counsel.
Charles B. Lennahan, Arlington, Va., with whom was Acting Asst. Atty. Gen., Carl Eardley, for defendant.
Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON and NICHOLS, Judges.
This case was referred to Trial Commissioner Franklin M. Stone with directions to make findings of fact and recommendation for conclusions of law. The commissioner has done so in an opinion and report filed on December 22, 1966. Exceptions were filed by defendant and the case has been submitted to the court on the briefs of the parties and oral argument of counsel. Since the court is in agreement with the opinion and recommended conclusion of law of the commissioner, with one modification, it hereby adopts the same, as modified, as the basis for its judgment in this case, as hereinafter set forth.
Proceedings in the instant case are hereby suspended for a period not exceeding 6 months from the date hereof to enable plaintiffs time to institute appropriate administrative proceedings, and to afford the Armed Services Board of Contract Appeals an opportunity to make a determination with respect to the amount to which plaintiffs are entitled. Plaintiffs shall, on or before the expiration of said 6-month period, submit a report to the court setting forth the results, or the then current status, of the further administrative proceedings before the Board.
Commissioner Stone's opinion,* as modified by the court, is as follows:
This action arises out of a Government contract under which the Maxwell Dynamometer Company (hereinafter sometimes referred to as "Maxwell Dynamometer" or "Maxwell"), a Delaware corporation with its principal place of business in West Chester, Pennsylvania, one of the plaintiffs herein,1 agreed to build and deliver to defendant 15 multiple wheel drive vehicle chassis dynamometers.
Plaintiffs, by way of an assignment of errors, attack and seek review of a decision by the Armed Services Board of Contract Appeals (ASBCA) denying Maxwell's claim for extra expenses allegedly incurred in connection with the performance of the contract.
The only issue presented to the court for determination at this time is the question of liability. No de novo evidence was received in this proceeding and plaintiffs' claim is considered here solely on the basis of the pleadings, admissions, pretrial submissions of the parties, and the administrative record which includes, among other documentary material, the contract, transcript of the Board hearing, and the opinion-decision of the ASBCA.2
One must know just what a dynamometer is in order to understand this case, and furthermore, the significance of the facts set forth hereinafter will be better appreciated if an explanation of the manner in which a chassis dynamometer is utilized is made at this point. Simply put, a dynamometer is a mechanical device for measuring horsepower. A chassis dynamometer measures, among other things, the horsepower actually delivered to a highway by the revolving wheels of a vehicle. This measurement is effected by cradling the revolving wheels of the vehicle between pairs of steel rollers so that when the wheels are rotating, their motion is transmitted to the rollers of the dynamometer. The rollers in turn are connected by an axle to a power absorption unit to which is attached measuring devices to record speed and horsepower. As the power delivered by the wheels of the vehicle is transmitted to the rollers, a brake is applied thereto; the power absorbed as a result is then measured by the absorption unit. In each pair of rollers is a "power roller" to which the braking power is applied and an "idler roller" which rotates freely on its axle.
Although plaintiffs and defendant object on various grounds3 to the other's narrative statements of the facts incorporated in the briefs respectively submitted by them, there does not appear to be a genuine issue of material fact in dispute between the parties as to the relevant events and actions which took place up to and including the time the parties entered into the contract here involved. In any event, while the following factual summary concerning such events and actions is not stated in the same words used by the ASBCA in its decision or limited to the facts found by the Board, the facts set forth here are either admitted by the pleadings, contained in the Board opinion, based upon undisputed substantial evidence which was before the Board, or supported by disputed evidence of such a nature that as a matter of law the Board could have made only one finding of fact with respect to the matter in question.4
Prior to the time defendant entered into the contract with plaintiff Maxwell, the U.S. Army had been using chassis dynamometers manufactured by the Clayton Dynamometer Company. A new set of specifications for the procurement of vehicle chassis dynamometers was prepared and distributed to the dynamometer industry by the Army; but apparently because members of the industry, including Maxwell, felt that the proposed specifications were too precise and detailed to allow sufficient competition among the manufacturers, the Army revised these specifications with a view toward affording greater latitude in design.
On August 19-20, 1958, an Industrial Conference5 was held at the Rossford Ordnance Depot, Toledo, Ohio, for the purpose of discussing these new specifications. Representatives of six dynamometer concerns, including plaintiff Maxwell, its president, Lloyd R. Maxwell, two other Maxwell employees, and the Clayton Dynamometer Company (Clayton), as well as several Government personnel, attended this conference. For the most part, the conference consisted of a paragraph-by-paragraph consideration and discussion of the proposed specifications. It is apparent from the transcript of the discussions during the meeting that the Government intended to leave as much of the designing as possible to the successful bidder.
Considerable time was spent discussing the relatively small diameters required by the specifications for the dynamometer rollers.6 Maxwell's president, Lloyd R. Maxwell, was especially critical of the specifications with respect to this particular item because he felt that at higher speeds the revolving vehicle wheels would deliver measurable power less efficiently to a small diameter roller.7
Another matter, among other things, considered was the requirement in the specifications that the preproduction sample had to be subjected to certain tests and that the acceptance or rejection of the preproduction model would be predicated entirely upon the information in the test report. The tests included, among others, the running of a heavy commercial vehicle capable of delivering 175 horsepower at 50 miles per hour to the dynamometer for 1 hour. When Maxwell, through its president, asked whether such a vehicle was available, it was assured by representatives of the Clayton Company and the Government that such equipment was in existence and that these tests had been run on a Clayton dynamometer. No question was raised at the conference as to how the 50 miles per hour was to be measured.8
On October 1, 1958, Rossford Ordnance Depot issued Purchase Description RFPD 175D for a chassis dynamometer. RFPD 175D provided in relevant part as follows:
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