Consolidated Diesel Elec. Co. v. United States, 365-74.
| Decision Date | 14 April 1976 |
| Docket Number | No. 365-74.,365-74. |
| Citation | 533 F.2d 556 |
| Parties | CONSOLIDATED DIESEL ELECTRIC COMPANY v. The UNITED STATES. |
| Court | U.S. Claims Court |
Philip M. Risik, Washington, D.C., for plaintiff; Daniel M. Ross, attorney of record. Wachtel, Wiener, Ross & Matzkin, Washington, D.C., of counsel.
Howard G. Slavit, Washington, D.C., with whom was Asst. Atty. Gen. Rex E. Lee, Washington, D.C., for defendant.
Before COWEN, Chief Judge, and DAVIS and KASHIWA, Judges.
ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT
Plaintiff's claim is based on contract No. F04606-70-D-0192, dated May 14, 1970, effective June 1, 1970, between plaintiff and defendant, under which plaintiff supplied required quantities of 100- and 200-kilowatt Diesel-Engine Generator sets for the Air Force.
Plaintiff's original petition was filed in this court on October 8, 1974. It later filed its amended petition on March 3, 1975. The amended petition seeks:
The court is requested to either remand the case to the ASBCA for negotiation or determination of the amount of the equitable adjustment pursuant to Rule 149 or to determine the damages for breach of contract pursuant to Rule 131(c).
The case is before the court on cross motions for summary judgment. For reasons hereafter stated, we allow plaintiff's motion for summary judgment with relation to its cause of action alleged in Count I of plaintiff's amended petition. Our discussion hereafter, unless otherwise indicated, relates to plaintiff's Count I request for review.
The ASBCA decision involved mixed questions of law and fact. Since the disposition of this case is based on the reasons hereafter stated, we do not deem it necessary to attempt to delineate the questions of law and fact.
The following are portions of material facts as found by the ASBCA which we deem material herein. Otherwise, they are undisputed. Bids for the subject contract were submitted by plaintiff under a procurement procedure known as "Two-Step Formal Advertising." The first step of this two-step, formally advertised procurement was initiated by Letter Request for Technical Proposal (LRFTP), issued February 14, 1969. The LRFTP specified that those engines incorporated in the technical proposals had to be qualified and listed on a Qualified Products List. Defendant claims that under the contract as finally entered into, a separate proposal was stated for each engine configuration incorporated in the technical proposal. But defendant admits that the successful bidder's proposal became a part of the contract under the LRFTP.
The proposer was required to include a detailed bill of materials. The generators with the configuration of engines involved came under a configuration management and controls program ordered by a directive of the Department of Defense, issued July 17, 1968.1 It was a new application. Defendant admits this. The transcript of testimony before the ASBCA consists of three volumes; most of the transcript is with relation to problems arising from the new application of configuration management and controls. We shall later refer to specific, uncontradicted testimony given in the lengthy transcript and specific provisions regarding bill of materials and other relevant provisions.
The "Statement of Work," which was later incorporated in the contract, in Article 1, required the contractor to furnish all engineering, labor, tools, equipment, materials, supplies, and services necessary to design, fabricate, assemble, test, and deliver items in accordance with the requirements of Attachment A, "Purchase Description." Within thirty days after award of the contract, the contractor had to submit to the contracting officer for approval scale drawings and data to describe completely the design and assembly of the generator and excitations systems. Thirty days thereafter, the same data was to be submitted for the complete generator sets. Approval of such data would indicate that no design defects were evident but defendant argues that this in no way relieved the contractor of responsibility for supplying equipment which met the requirements of Attachment A.
The "Statement of Work" contained Attachments A through U. Attachment A, which was a detailed purchase description of the generator sets, provided:
Attachment L consisted of "drawings and/or part numbers for components required for use on DOD Tactical Generator Sets 15 KW through 300 KW." The engine was not listed as an Attachment L part. Any deviation from the parts listed in Attachment L required contracting officer approval.
On March 12, 1969, a pre-proposal conference was held, with representatives of plaintiff, Caterpillar, and Allis-Chalmers in attendance. An opening statement was made by an Air Force representative and it was followed by questions and answers. There were the usual questions and answers on technical matters relating to the generators. The statement covered general information and details. Printed copies of the statement and questions and answers were distributed. However, in the opening statement the Government's representative stated that the subject generator procurement was unique in that a "formal Configuration Management Program" on the part of both the Government and the contractor would be a "major management discipline" to be used throughout the contract. He admitted that this was a departure from the ordinary procurement of generators heretofore procured, but it was in accordance with recent Department of Defense directives.
On or about April 22, 1969, plaintiff sent a form letter to prospective engine suppliers asking them to furnish a technical proposal and price data in accordance with the referenced LRFTP. In addition, the form letter sought concurrence with the delivery requirements specified in the LRFTP. On April 27, 1969, plaintiff received a proposal from Caterpillar and later, a supplement. A proposal was also received from Allis-Chalmers. On or about June 2, 1969, plaintiff received price proposals from Caterpillar and Allis-Chalmers which required further negotiation before they could be accepted. Between the time it submitted its technical proposal and the time it submitted its bill, plaintiff continued to receive delivery schedule data from the vendors.
On June 29, 1969, plaintiff submitted its technical proposal to the Government.2 It included the four 100 KW and 200 KW combinations that could be made using Caterpillar and Allis-Chalmers engines. On September 24, 1969, the contracting officer wrote to plaintiff seeking clarification of its proposal. On October 9, 1969, plaintiff submitted an amendment to the technical proposal which in part expanded on its configuration management plan.
On November 4, 1969, plaintiff received notice from the contracting officer that its technical proposal was acceptable. This was followed in January, 1970, by receipt of four bid sets, each of which made reference to one of the four engine combinations by manufacturer's name and model number as set forth in plaintiff's technical proposal.
Bids were opened on April 3, 1970. Plaintiff selected Configuration No. 1, the Caterpillar engines, for the 100 and 200 KW generator sets, subject to the provisions of plaintiff's configuration plans as disclosed in its technical proposal.
On April 9 and 10, 1970, plaintiff received notice from Caterpillar that it could meet plaintiff's requested delivery of preproduction units 220 days after contract award and delivery of completed units 500 days after release of monthly production quantities. Plaintiff did not attempt to obtain more favorable delivery dates from Caterpillar although it did not consider the delivery schedule to be satisfactory. Plaintiff felt it could obtain a better schedule when it had an offer ready for award. On April 15, 1970, Caterpillar promised a better delivery schedule, 180 to 220 days after award for preproduction units and 90 to 120 days after release of monthly production quantities for completed units. Again, plaintiff felt this schedule was not totally satisfactory but it was hopeful for better terms after it received award of the prime contract. On April 14 and 15, 1970, a pre-award survey team met with plaintiff. Caterpillar's latest delivery schedule was acceptable to the Government's production people and the pre-award survey team.
Plaintiff was awarded the contract on May 14, 1970, effective June 1, 1970. The maximum dollar amount of the award was established for "administrative purposes only" as $31 million for three program years. The contract contained the standard General Provisions for fixed-price supply contracts including the following:
* * * Clause 2, Changes, ASPR 7-103.2 (1958 JAN), and Clause 15, Disputes, ASPR 7-103.12(a) (1958 JAN). It also contained within the General Provisions Clause 40, Quality Program, ASPR 7-104.28 (1967 AUG); Clause 60, Correction of Deficiencies, ASPR 7-105.7(d); and Clause 65, Value Engineering Incentive, ASPR 7-104.44 and 7-104.44(c)(i) (1967 JUN).
General Provision, Clause 40, the Quality Program clause, required the quality program to be in accordance with specification MIL-Q-9858A. That specification required plaintiff to perform...
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