_______________________ DENIED: August 17, 1993 _______________________ GSBCA 10506, 10935 AIR INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Kenneth K. Takahashi of Takahashi & Associates, Washington, DC, counsel for Appellant. John E. Cornell and Wendy Nevett Bazil, Office of General Counsel, Personal Property Division, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges LaBELLA, HENDLEY, and VERGILIO (presiding). LaBELLA, Board Judge. On February 5, and October 22, 1990, the Board received notices of appeal from Air Inc. Air Inc. was to provide pneumatic disk sanders under two contracts with respondent, the General Services Administration. The contractor had delivered and was delivering sanders in accordance with pre-production models and first article tests which the agency had accepted. A felt-faced plastic disk was part of each sander. Thereafter, the agency received a single complaint from a user that the disk component had shattered during use. The agency inspected the sanders and concluded that the disk component failed to meet the contractual requirements. The agency "directed" the contractor to replace all felt-faced plastic disks with integrated rubber pads for sanders already delivered, and to provide sanders with integrated rubber pads for all items yet to be delivered. Relying on the Changes clause, the contractor contends that it is entitled to be compensated for its efforts and expenses in refitting and assembling sanders. It maintains that the felt- faced plastic disks complied with federal specifications and had been approved by the agency. Only the question of entitlement is before the Board, the parties having reserved the issue of quantum. Relying upon the warranty clauses, the agency contends that no change occurred. The contractor was required to deliver a felt, fiber or soft rubber pad that is capable of heavy removal of metal and wood on curved surfaces; the agency claims that the felt-faced plastic disk was not compliant. We conclude that the felt-faced plastic disks supplied by the contractor failed to satisfy the performance requirements of the contracts. They are not suitable for heavy removal of metal and wood on curved surfaces as required under the contracts as is apparent from an examination of the component itself, introduced into the record, and from the Government's performance test in which five items failed. Findings of Fact The contracts 1. The agency issued solicitations (one negotiated procurement for a definite quantity, the other a sealed bid procurement for an indefinite quantity) to obtain portable pneumatic disk sanders in accordance with federal specification 00-S-101 (type II; style 2). Appeal File, Exhibits 1, 2.[foot #] 1 2. The specification dictates that the sander "shall be equipped with a felt, fiber, or soft rubber pad." Appeal File, Exhibit 16 at 5 ( 3.17.1). While the sealed bid solicitation provided an express exception to the specification allowing the sanding pad for the type II, style 3 disk sander to be made of plastic and further providing for a metal or nylon backup plate to which the pad is to be attached, no such exception was provided for the type II, style 2 sander in issue here. Id., Exhibit 2, Contract at 18. Indeed, the specification for the item in issue here had no specific requirement for the composition of the backup plate to which the pad is attached; it only speaks to the composition of the pad. Regarding the general construction of the sander, the specification provides that the "sanders shall be of rugged construction so as to withstand, without failure, treatment encountered during actual service conditions. . . . Working parts subject to wear shall be of sufficient hardness to withstand the service required." Id. at 2 ( 3.3). Further, the specification notes that the style and type of sander in issue here is normally used for heavy removal of metal and wood on flat and curved surfaces. Id. at 1 ( 1.1), 8 ( 6.1). In the sealed bid procurement, appellant's bid for the type II, style 2, sander in issue here was more than twice ----------- FOOTNOTE BEGINS --------- [foot #] 1 Two appeal files exist in these consolidated cases. Unless otherwise noted, references to an appeal file relate to the appeal file in GSBCA 10506. Also, a two volume transcript exists in these appeals. Unless otherwise noted, references to a transcript are to volume one. ----------- FOOTNOTE ENDS ----------- the bid price for the type II, style 3, which inter alia permitted a plastic pad component. 3. The federal specification "requirement" regarding pre- production samples is applicable only when a solicitation so specifies. The clause requires a contractor to submit one sander: to prove, prior to starting production, that his production methods and choice of design detail will produce sanders that comply with the requirements of this specification. Examination and tests shall be those specified herein. Any changes or deviations from the preproduction model during production shall be subject to the approval of the contracting officer. Approval of the preproduction model by the contracting agency shall not relieve the supplier of his obligation to furnish sanders conforming to this specification. Appeal File, Exhibit 16 at 2 ( 3.1) (emphasis added). The specified "examination" provision dictates: "Each sander shall be examined for conformance to design and construction, dimensions, weight, materials, finish and coating, workmanship and marking requirements." Id. at 7 ( 4.7). Regarding acceptance tests, the specification provides: "Each sample shall be run at no load to determine integrity of working parts, noise, and vibration." Id. at 7 ( 4.7.1). The specification does not provide for subjecting equipment to conditions of anticipated use for purposes of acceptance testing. In fact, testing was to be run at "no load" and thus was not a test of the performance requirements that the product be of rugged construction and be capable of heavy removal of metal and wood from curved surfaces, requirements that we interpret to mean a heavy duty product. 4. The definite quantity contract calls for pre-production samples: The Contractor shall have available at his expense within 30 days after receipt of notice of award two preproduction samples of each item to be delivered under the contract for inspection and determination by the Government as to compliance with the specifications. . . . Preproduction samples required by this contract must conform to all specification requirements. The acceptance of any previous preproduction samples or the granting of any deviations on previous preproduction samples or on supplies required by previous contracts for the same item(s) shall in no way be considered as justification for assuming that the preproduction samples submitted under this contract will be accepted unless they fully meet specifications or that deviations will be granted. When the preproduction samples are approved, the Government shall notify the Contractor of their acceptance in writing. . . . [One preproduction sample] shall be delivered to the Government in accordance with instructions to be furnished by the Contracting Officer and upon acceptance shall be deemed an item delivered under the Contract. Appeal File, Exhibit 1 at 4 ( E-FSS-500-A (April 1984)). 5. The indefinite quantity contract provides for "first article approval--contractor testing." Appeal File, Exhibit 2 at 32 (Federal Acquisition Regulation (FAR) 52.209-3 (Alternate I) (June 1985)). Under this provision, the contractor shall test one unit and submit a first article test report within thirty calendar days of contract award. Thereafter, the Contracting Officer shall notify the Contractor, in writing, of the conditional approval, approval, or disapproval of the first article. The notice of conditional approval or approval shall not relieve the Contractor from complying with all requirements of the specifications and all other terms and conditions of this contract. Id. (FAR 52.209-3(b)). The clause further states: (e) Unless otherwise provided in the contract, and if the approved first article is not consumed or destroyed in testing, the Contractor may deliver the approved first article as part of the contract quantity if it meets all contract requirements for acceptance. . . . . (g) Before first article approval, the acquisition of materials or components for, or the commencement of production of, the balance of the contract quantity is at the sole risk of the Contractor. Before first article approval, the costs thereof shall not be allocable to this contract for (1) progress payments, or (2) termination settlements if the contract is terminated for the convenience of the Government. Id. 6. Both contracts incorporate the "bid sample" provision from the FAR, 48 CFR 52.214-20 (1985). Appeal File, Exhibits 1 at 11, 2 at 40. Both also contain a clause captioned "Quality Approved Manufacturer Agreement," E-FSS-539 (May 1984), which states in part: Notwithstanding any other provision of this contract concerning the conclusiveness of acceptance by the Government, any supplies or production lots shipped under this contract found to be defective in material and workmanship, or otherwise not in conformity with the requirements of the contract within a period of 12 months after acceptance shall at the Government[']s option be replaced, repaired or otherwise corrected by the contractor at no cost to the Government within 30 calendar days (or such longer period as the Government may authorize in writing) after receipt of notice to replace or correct. Id., Exhibits 1 at 5, 2 at 30. The sanding pad and backing plate component 7. Prior to the award of each contract, in response to agency facility plant investigations, Air Inc. identified a price, a particular manufacturer, and the domestic or foreign origin of each component of the sander it would be supplying. Appeal File, Exhibits 2, 19, 21, 22. According to the contracting officer, this was done after receipt of appellant's bid and proposal because the facilities plant report questioned appellant's compliance with the "domestic end-product" requirement. Id., Exhibit 31. The appellant's component sheet refers to the sanding pad as a "back up pad," a component comprised of a single part, and lists the source as Spiralcool, a domestic source, at a component cost of $4.75. Id., Exhibits 2, 22 (item 28). At hearing, the Spiralcool pad was shown to be an integrated rubber pad and backup plate, although there was no such representation in the post-bidding documents. Id., Exhibits 2, 19, 21. With effective dates of March 26, and May 6, 1987, respectively, the agency awarded to Air Inc. a firm, fixed-price contract for a definite quantity and an indefinite quantity contract to supply portable, pneumatic sanders in accordance with its bid. Appeal File, Exhibits 1, 2. 8. Under the definite quantity contract, as part of its pre-production sample, the contractor provided a felt-faced plastic disk--that is, a component constructed of a plastic backing plate that is 6 3/4 inches in diameter with a felt ring or gasket approximately 1/8 inch thick and 1 3/8 inches wide attached by an adhesive to the outer circumference of the plastic backing plate. Appellant's Exhibit 1; Transcript at 46. The agency accepted the sander as a pre-production sample. Appeal File, Exhibit 27 (undated report); Transcript at 41-43, 46, 52. This approval occurred, even though agency personnel testified at the hearing that a simple visual inspection indicated that the component was clearly made of plastic with felt of insufficient size to constitute a compliant product. Transcript, Vol. 2 at 36, 37, 44. Under the indefinite quantity contract, the contractor provided a first article test report. Appeal File, Exhibit 25. Based upon the information contained in that contractor-provided report, the agency approved the first article test of the item. Id., Exhibit 27 (letter dated June 24, 1987). Under both contracts, until later problems arose, the contractor provided sanders only with the felt-faced plastic disk utilized in its pre-production sample. Transcript at 42-43, 46; Appeal File, GSBCA 10935, Exhibit 18. The component actually supplied during pre-production testing and these subsequent deliveries, however, was not that identified prior to award in the component lists and apparently was less costly to the contractor than the pad identified in the component price sheets. Finding 7. Although the agency approved the pre-production model, which was not to be deviated from without contracting officer approval, Finding 3, the contractor did not point out the discrepancy between those items identified as a result of the plant facility investigation and those delivered (for pre-production and subsequently). That is, the contractor did not inform the agency that it was providing other than the rubber pad of the manufacturer identified during the plant facilities investigation. Transcript at 63; Appeal File, Exhibit 31. Moreover, the pre-production model and the first article sanders were tested at "no load" in accordance with the contract terms and, therefore, were not determined to be conforming to the "heavy removal" from curved surfaces service requirement of the specifications. Finding 3. Shattering disk 9. After delivery had commenced, the agency received a complaint from a user regarding a contractor-supplied sander. A written "record of complaint investigated" describes the "nature of complaint": "Sanders are a hazard to crew members due to the continual breaking of the plastic Backup Pad on Sander which hold[s] the sandpaper in place." Appeal File, Exhibit 3. The summary of the investigator's action states, in part: Onsite investigation revealed that Back-up Pad on sander is made of a hard plastic with very little flexibility, and does not conform to contours as a rubber back-up pad would. This causes the operator to put extreme pressure on the sander to try and cover the full surface of the sandpaper. The extreme pressure applied by the operator causes the plastic back-up pad to wear at the outer edge, which then, while in use, splits and then shatters into small pieces creating the hazard to personnel. Recommend that plastic back-up pads be replaced with rubber pads, which would result in safer operation for user and personnel. Id. The "record of complaint investigated" has blocks filled in as follows: contract number: none; order number: none; batch or lot number: none; date of manufacture: none; date received: 2/88; amount received: 8 each; amount on hand: 8 each; and amount unsatisfactory: 5 each. Id. The investigator's findings state that the complaint was justified because of a material deficiency. Id. The contractor has raised subsequent concerns, Finding 15, as to whether the referenced "extreme pressure" constituted anticipated or normal use of the sander and whether breakage occurred after any anticipated life of the component. Nevertheless, we think a reasonable reading of this report together with an examination of the component is that "extreme pressure" was necessitated by the requirement in the specifications to perform heavy removal from curved surfaces together with the inflexibility of the item rather than the use of excessive force in the sense of a negligent use or abuse of the item. In the absence of evidence to the contrary, which appellant had the burden of bringing forward, we cannot presume that the Government was negligent in its use of the items. 10. Thereafter, by letter the agency informed the contractor of the complaint: Onsite investigation revealed that the backing plate on the sander is made of a hard inflexible plastic that does not conform to sanding contours. This causes the operator to put extreme pressure on the sander causing the plastic back-up plate to wear and eventually split and shatter into small pieces, creating a hazard to personnel. Appeal File, Exhibit 5. Further, it states that pursuant to the warranty paragraph of Clause E-FSS- 539, "Quality Approved Manufacturer Agreement," of the above noted contracts, you are to replace these 1539 defective sanders. Please advise this office in writing, within ten (10) calendar days after receipt of this letter, of your specific instructions regarding the replacement and disposition of this defective material. Id. 11. A subsequent "laboratory test record" dated September 9, 1988, notes that a sample size of five items out of a lot of 1539 was utilized for a purchase order under the indefinite quantity contract. Appeal File, GSBCA 10935, Exhibit 9. The lab report supersedes an earlier report which is not in the record. Under a section captioned "test requirements," the report notes that sanders are to be equipped with a felt, fiber or rubber pad. The same section also states: Note: The American Society for Testing and Materials defines an elastomer (rubber) as "a p[o]lymeric material which at room temperature can be stretched to at least twice its original length and upon immediate release of the stress will return quickly to approximately its original length." The pad supplied with the sander does not stretch whatsoever, thus indicating that the material is not rubber. Further, the density of rubber is 1.0-2.0 GMS per cubic centimeter. The pad has a density of less than 1.0 which is indicative of a plastic or plastic-like material. Id. The test record concludes that the component does not comply; the sole basis indicated for non-compliance is "no rubber pad." The results are silent as to whether or not the pad is a felt pad. Id. 12. By letter dated September 13, 1988, regarding both contracts, the agency informed the contractor that an "examination of the backing plate provided by your firm under these contracts reveals that it is neither felt nor fiber." Moreover, the agency had determined that plastic was not rubber. The agency concluded that the contractor's product failed to conform to paragraph 3.17.1 (felt, fiber or soft rubber), Finding 2. The agency sought corrective action from the contractor for breaching the warranty provision of the quality approved manufacturer agreement, Finding 6. Appeal File, Exhibit 7. 13. A "notice of inspection" dated September 15, 1988, states that the agency has "rejected" a lot of sanders delivered under a purchase order under the indefinite quantity contract. The "remarks" portion of the document contains the following: "The density of the backing plate (rubber) is 1.0 - 2.0 GMS per cubic centimeter. The backing material has a density of less than 1.0 which is indicative of a plastic or plastic-like material." Appeal File, Exhibit 27. 14. A "notice of inspection" dated September 19, 1988, for the identical purchase order and lot in the notice in the previous finding, rejects the sanders with the following "remarks": Pad does not conform to requirements as it shatters into pieces when used under normal performance conditions. This presents a serious hazard to the user. Material fails paragraph 3.17.1 that sander shall be equipped with a felt, fiber, or soft rubber pad, and paragraph 3.15 for workmanship, in that the sanders shall be free from all defects or imperfections which will adversely affect the general appearance, function, serviceability, or life expectancy. Appeal File, GSBCA 10935, Exhibit 36. 15. By letter dated September 20, 1988, the contractor informed the agency: If the application is such that "extreme pressure" is required, we are obviously not talking about "normal performance conditions". To cover "the full surface of the sandpaper" is a physical impossibility with this type of tool with any pad. The torque generated by the tool is such that it would be impossible to control and the operator would definitely be subjecting himself to an extremely hazardous condition. "Extreme pressure applied by the operator" caused the pad to wear on the outer edge. Since the proper size abrasive is 7" and the pad diameter is 6 3/4" it is impossible to wear the outer edge of the pad unless using the wrong size abrasive or an abrasive that has worn away exposing the pad. Operating in this manner, which surely is not "normal performance conditions" will definitely wear the outer edge of the pad and is an abusive use of the tool. Appeal File, Exhibit 8. In the letter the contractor also states that it supplies "a plastic backing plate supporting a felt pad which is in contact with the abrasive. Our pad meets the specification requirements. There is no backing plate requirement." Id. 16. By letter dated October 6, 1988, the agency responded to the contractor: The question at issue here is that the Pad, Air Inc. Part Number 716-49, currently provided in your Disk Sander, NSN: 5130-00- 596-1176, is unsuitable to the Government's requirements. The rigidity, or lack of flexibility of this part creates a hazardous condition during use. . . . . Visual inspection clearly reveals that the part, supplied by your firm, is made of hard black plastic. Accordingly, therefore, the Government reaffirms its position as stated in its letter of September 13, 1988, which requires that you replace the defective sanders in accordance with Clause E-FSS-539, Quality Approved Manufacturer Agreement. Appeal File, Exhibit 9. 17. By letter of October 20, 1988, the contractor informed the agency that it would "replace all rejected felt pads held by various customer agencies with rubber pads." The contractor also expressly reserved the right to file a claim for all additional costs incurred to accomplish the rework. Appeal File, Exhibit 10. The replacement pads were similar to those of the manufacturer named in the component cost sheets, although apparently somewhat less expensive. Id., Exhibit 12; Finding 7; Transcript at 63. By letter of the same date, the contractor repeated its request to the agency for an amendment adjusting the price of the contracts. Appeal File, Exhibit 10. Although the letter alludes to "over 10,000 tools furnished to the government with this type of pad," the record does not support the conclusion that the actual component in question here had been supplied in all of those 10,000 instances. Transcript at 65, 68. Thus, even if felt-faced plastic disks had been provided and had performed satisfactorily, the history of those disks has not been connected to those supplied under the contracts in dispute. Contractor submissions 18. By letters dated November 13 and 14, 1989, the contractor submitted claims to the agency under both contracts for actual costs incurred in substituting rubber pads for felt- faced plastic disks previously supplied. Appeal File, Exhibit 12. The contracting officer issued a decision denying both claims on December 11, 1989. The basis for the denial was the failure of the felt-faced plastic disk to conform to the requirement that the pad be felt, fiber or rubber. Id., Exhibit 13 ("Visual inspection revealed that the sanding pad, actually the backing plate appeared to be made of a hard, rigid, plastic material."). On February 5, 1990, the Board received the contractor's notice of appeal of that decision. Id., Exhibits 14, 15. 19. By letter dated June 18, 1990, the contractor submitted a claim to the agency for alleged additional costs for sanders delivered with rubber pads under a purchase order under the indefinite delivery contract. Appeal File, GSBCA 10935, Exhibit 18. By letter dated August 2, 1990, the contracting officer denied this additional claim. Id., Exhibit 19. On October 22, 1990, the Board received from the contractor a notice of appeal of the decision. Id., Exhibits 20, 21. The component in dispute 20. The component in dispute is part of the record as Appellant's Exhibit 1. Finding 8. The 1/8 inch thick and 1 3/8 inch wide felt gasket does not make the component, with its plastic backing plate, less rigid. The item has little flexibility. At hearing, the Government's mechanical engineer who has responsibility for the specification in issue here testified that "the way the specification is written, we would have to accept" a plastic backup plate to which a thicker felt pad was attached. Transcript, Vol. 2 at 5-8, 44. He stated that if a thicker felt pad was attached, the plastic backing plate's flexibility would not change but the extra thickness would allow for better sanding in curved surface areas. Id. at 45-46. It is clear from looking at the rejected component that it will not be capable of satisfactorily performing the contract-specified sander function of heavy removal of metal and wood from curved surfaces. The item itself confirms the post-delivery test result of the agency that the component fails to satisfy the intended use identified in the specification. Discussion The contractor maintains that the felt-faced plastic disk it supplied satisfies all requirements of the federal specification and contracts, there being no specific requirement for the composition of the backup plate. It maintains that the felt pad and component it furnished performed satisfactorily. Consequently, by requiring the substitution of an integrated rubber component, the agency changed the contracts, thereby entitling the contractor to adjustments in the contract prices. The principal assertion in the contractor's argument fails; that is, the felt-faced plastic disk it supplied does not satisfy the performance requirements of the federal specification and contracts. Namely, the rigidity of the component, taken as a whole, with the scant amount of felt, makes it ill-suited to the heavy removal of metal and wood on curved surfaces. The best evidence supporting the conclusions of the agency, Findings 9-16, 18, is found in the component itself, Finding 20. Additional credible evidence is found in the investigative report that indicates that the product could not be satisfactorily used on contoured surfaces without applying more pressure than the rigid plastic disk could absorb without shattering. Finding 9. The agency's demand that the contractor supply components complying with the terms of the contracts is fully consistent with the warranty of use clauses. Findings 3-6. The fact that the agency gave its approval of appellant's pre-production model does not preclude the agency from rejecting the items delivered for failure to meet certain performance requirements of the specifications which were not examined or tested under the contracts' quality assurance provisions. Moreover, the approval of the pre-production model did not relieve the contractor of the obligation to furnish conforming supplies, that is, sanders that would meet the contract's performance specifications in addition to those requirements that were tested. Accordingly, the agency actions do not constitute a "change" under the terms of the contracts. The concurring opinion concludes that the contractor provided components at variance with what it obligated itself to deliver under the contracts. We do not agree that the representations made after submission of bids and proposals for purposes of determining whether the bid item is foreign or domestic necessarily bind the vendor to supply only components manufactured by the intended subcontractor identified apart from any bidding document. Had the representation been made as a part of the bid as in an "or equal" procurement, we would agree with the concurring opinion. The only commitment in appellant's bid and proposal was to furnish a domestic end product and the case before us presents no question of appellant's compliance with that requirement. Decision The agency has demonstrated that the felt-faced plastic disks supplied by the contractor fail to satisfy the federal specification and the terms of the contracts. No change has occurred under the contract. Accordingly, the Board DENIES the appeals. _____________________________ VINCENT A. LaBELLA Board Judge I concur: _____________________________ JAMES W. HENDLEY Board Judge VERGILIO, Board Judge, dissenting in part, concurring in result. I dissent from the conclusion of the majority that the record establishes that the felt-faced components initially supplied by the contractor and accepted by the agency fail to satisfy the performance requirements of the contracts. I conclude that the agency has not demonstrated either that the felt-faced plastic component fails to be "felt, fiber or soft rubber," or that the component fails to satisfy the performance characteristics of the contracts. In short, the agency has not proven that it properly invoked the warranty of use provisions of the contracts. However, I concur with the result that the appeals must be denied--the contractor has not established that any change occurred from what it obligated itself to deliver under the terms of the contracts. The agency substantiates its actions on a narrow ground; it "argues that Appellant did not originally comply with this requirement [that the pad be of felt, fiber or soft rubber], hence, the request for a repair or replacement properly came under the warranty clause." Agency Post-Hearing Brief at 8. This argument is made without regard to the performance characteristics of the pad; rather, the assertion is that there is insufficient felt to be a felt pad, and the plastic is neither rubber nor fiber. The agency has not met its burden of proof to establish that the component supplied by the contractor was not a felt pad. The agency accepted the felt-faced plastic component as a pre- production sample. The agency acknowledges that a visual inspection of the component supplied by the contractor reveals that it is made of plastic with a felt disc attached to it. The agency accepted this component as part of the pre-production model. Although the component contains no rubber, the solicitation permits felt pads. The agency's belated attempt to disavow its earlier acceptance of the felt-faced plastic component and to now assert that the design of the felt-faced plastic component is insufficient simply because the component is not made of soft rubber (or felt or fiber) lacks credibility, and runs contrary to the pre-production clause which requires the agency to make a determination regarding the "choice of design detail," Finding 3.[foot #] 1 Moreover, the test reports of the agency ----------- FOOTNOTE BEGINS --------- [foot #] 1 The Board is not here faced with the situation where the contractor is objecting to the agency's disapproval of (continued...) ----------- FOOTNOTE ENDS ----------- are lacking in credibility. For example, a lab report provides a definition of rubber (material stretchable to twice its original length), notes that the contractor's component "does not stretch whatsoever," and concludes that this indicates that the material is not rubber. Finding 11. The rubber pads which the agency claims are acceptable, Agency Exhibits 1, 2, do not satisfy the stretchability requirement of the definition. Given the patent appearance of the felt-faced plastic component, Findings 8, 16, and the unrebutted assertions by the contractor that similar components have been accepted as satisfying the identical federal specification, Finding 17, I am unable to conclude that the component submitted by the contractor was other than a "felt pad" under the federal specification. Although the agency has not demonstrated that the contractor submitted other than a felt pad, the component must still satisfy the performance and warranty of use provisions of the specification and solicitation. Findings 2- 6.[foot #] 2 There is no indication that the sander was operated under actual use conditions during the pre- production testing; the record actually suggests to the contrary. Findings 3, 8-10.[foot #] 3 The acceptance of the pre- production model does not limit the scope of the performance and warranty of use provisions so as to absolve the contractor of its obligation to supply a product which conforms to the performance or use requirements expressed in the federal specification. Keco Industries, Inc., ASBCA 13271, 71-1 BCA 8727. Thus, I would conclude that the agency prevails in this dispute, had it demonstrated that the component failed to satisfy the performance or warranty of use provisions. In order to prevail under a warranty claim, the agency bears the burden of proof. Camrex Reliance Paint Co., GSBCA 6166, 83-1 ----------- FOOTNOTE BEGINS --------- [foot #] 1 (...continued) the pre-production sample as an acceptable pre-production model because the component is neither felt, fiber or soft rubber. Here, at the pre-production stage, the agency deemed the felt- faced plastic component to be an acceptable pre-production model. [foot #] 2 Although I reference Finding 3, I find nothing in the record to support the conclusion of the majority that a "heavy duty product" was solicited. [foot #] 3 Although I reference Finding 9, I do not agree with the final two sentences thereof. The alleged "reasonable reading" is conjecture. The agency has not revealed any method of testing or established a prima facie case to shift a burden to the contractor. ----------- FOOTNOTE ENDS ----------- BCA 16,485 (Board concluded that material was not tested in accordance with contract requirements, where chemist who performed tests recited in great detail steps taken in testing; Board inferred from his not mentioning specific procedures that he failed to utilize those procedures in testing); R.E. Lee Electric Co., GSBCA 1040, 1964 BCA 4401. The standard of performance and use to be satisfied is expressed in the federal specification: "[S]anders shall be of rugged construction so as to withstand, without failure, treatment encountered during actual service conditions. . . . Working parts subject to wear shall be of sufficient hardness to withstand the service required." Further, the specification notes that the sanders are normally used for heavy removal of metal and wood. Finding 2.[foot #] 4 It may well be that when compared to felt-faced plastic pads, soft rubber pads offer enhanced performance capabilities for sanding contoured surfaces. See Finding 9 (the felt-faced plastic pad does not conform to contours as would a rubber pad). However, such attributes are not relevant to the matters before the Board. The specifications permit three types of pads. Nothing in the specification requires that any two varieties of pads perform equivalently in any or all circumstances. Although the agency has demonstrated that one component failed during actual use, under what is stated to be "excessive pressure," Findings 9, 10, and that some failed during subsequent testing, the agency has failed to develop the record in important areas. The record does not reveal what the subsequent testing entailed. At best, the record contains inconclusive evidence regarding the actual test conditions (what was tested--new or already used equipment--and how), the reasonableness of whatever tests occurred (the duration and extent of pressure necessary to result in shattering as compared to normal or anticipated use), and what may have been the expected durability of an acceptable component.[foot #] 5 ----------- FOOTNOTE BEGINS --------- [foot #] 4 Contractor contends that the federal specification "does not specify the intended use of the sander, nor the standard of performance the sander is suppose[d] to achieve. In short, [the specification] is a design, and not a performance type specification." Contractor's Post-hearing Brief at 7. Contractor overlooks the actual language of the specification. [foot #] 5 A report states that, after the pad wore at its outer edge, it split and shattered. Finding 9. Nothing in the record suggests that normal or anticipated use includes continued use of a pad worn at its outer edge. ----------- FOOTNOTE ENDS ----------- The state of the record exists despite concerns raised by the contractor, prior to these appeals, regarding the sufficiency of the tests to establish lack of compliance with the specification. Finding 15. In developing the record for these appeals, the agency has not been responsive to the contractor's inquiries and concerns, particularly when the contractor asserted in correspondence that its component meets the specification requirements. Id. The record reveals no agency method of testing--none is suggested in the testimony or documents, described in the test reports, or otherwise prescribed in the contracts. Thus, although there exists "a presumption that the method of testing followed by a Government laboratory is proper," Continental Chemical Corp., GSBCA 4483, 76-2 BCA 11,948, at 57,269, without any indication of the method of testing used, there exists no basis to invoke the presumption. Unlike the majority, my examination of the actual component, Appellant's Exhibit 1, does little to support the agency's position. The thickness of felt is just as apparent to me as it should have been during the pre-production samples. Further, I do not find the performance characteristics of the component to be patent--whether the component is more likely than not to shatter during normal or anticipated use is not evident from an examination of the component. As a judge, I would not on my own, after the record closed, attach the component, Appellant's Exhibit 1, to a sander and test its ability to perform. Whether or not the single component survived my testing would be inconclusive regarding its general performance characteristics. The majority goes much further than performing such a test--it simply examines the component and draws conclusions for which I believe there exists no evidentiary foundation in the record. The fully developed record does not support the contention that the actual felt-faced plastic components supplied failed to be sufficiently rugged to comply with the specifications. The failure of one product during use (the record contains but a single report of a shattered component) and some products while being subjected to unspecified testing do not enable me to conclude that the components violated warranty of use provisions- -the agency has failed to meet its burden of proof. The record, developed for a de novo determination by the Board, reveals that the contractor provided components at variance with what it obligated itself to deliver under the contracts. Findings 7, 8. The contractor neither notified the agency of the substitution, nor gave the agency an express opportunity to accept (with or without price modification) or reject the change. Ultimately, the agency rejected the change, when it required the contractor to provide a pad similar to that designated in the contracts. Finding 17. Unlike the majority, I conclude that the contractor obligated itself in its contracts to deliver rubber pads with its responses to the plant investigations. Prior to obtaining each of the contracts, after being informed both of the agency's concerns regarding its potential compliance with the Buy American Act and that its "response will be incorporated into your proposal," Air Inc. provided the agency with its "component cost sheet on the sanders offered on this solicitation. . . . The manufacturers and points of production are indicated in the source column and listed under 'Supply Codes'." Appeal File, Exhibits 18 (emphasis added), 19, 22, 31. The agency relied upon the responses and certifications in making the awards. Id., Exhibit 31. Air Inc. obligated itself to provide a Spiralcool Company "pad" under each contract. Id., Exhibits 19, 22.[foot #] 6 After receiving the contracts, the contractor failed to inform the agency with the submission of its pre-production samples and its first-article approval that it had deviated from its contracts. Accordingly, by ultimately requiring the contractor to supply a pad component conforming to its contractual obligations, the agency actions did not constitute a change. In essence, upon becoming aware of the contractor's previously undisclosed variation from the terms of the contract, the agency rejected the proposed change--the substitution of felt-faced plastic components for rubber pads. In short, no change occurred--the agency required the contractor to supply components conforming to the terms of the contracts. The contractor has failed to demonstrate its entitlement to any relief given its undisclosed deviations from the terms of its contracts. ____________________________ JOSEPH A. VERGILIO Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 6 In response to requests for admissions, contractor, through its president, denies that either the record or the contracts contain a component cost sheet; it also denies that its prices were based on the provision of pads supplied by Spiralcool. Appeal File, Exhibit 29 at 3 ( 9-12). The sweeping denials, with no further support in the record, are not credible--they contravene the documentation in the record, including a declaration of a procuring contracting officer. Id., ___ Exhibits 18, 19, 31.