
    HEYER PRODUCTS COMPANY, INC. v. THE UNITED STATES
    [No. 96-55.
    Decided October 7, 1959]
    
      
      Mr. Oarl L. Shipley for the plaintiff. Messrs. Shipley, Akerman <& Picket were on the brief.
    
      Mr. JoTm F. Wolf, with whom was Mr. Assistant Attorney General George Ooehran Doub, for the defendant. Mr. Olmre E. Walker was on the brief.
   Whitaker, Judge,

delivered the opinion of the court:

Plaintiff’s petition alleges that the defendant, through the Ordnance Tank Automotive Center, Ordnance Corps, Department of the Army, issued an invitation to it and to others to bid on 5,500 low voltage circuit testers; that it put in a bid of $205,975, which it says was the low bid, but that the contract was awarded to the Weidenhoff Company, whose bid was $190,043 higher. Under these facts, it alleges that it had a legal right to an award of the contract, and, hence, it is entitled to recover the expense it incurred in putting in its bid and its loss of profit.

Before going further, let us say that the only question with which we are confronted, of course, is whether or not plaintiff’s rights have been violated, not whether or not the award of this contract was in the public interest. Even should we think the expenditure of the Government’s money was wasteful and that proper care was not taken to protect the public treasury — upon which we express no opinion— that is beside the point in this case. Unless we find that plaintiff has been deprived of some right, it cannot recover, however improvident the Government’s agents may have been.

In our former opinion on defendant’s motion to dismiss, delivered on May 1, 1956,135 C. Cls. 63, we held that plaintiff’s petition contained sufficient allegations to make out a case of discrimination against it and of favoritism toward the successful bidder, and that, if the allegations were true, it would be impossible to conclude that that bid had been accepted which was most advantageous to the Government, as required by the Armed Services Procurement Act of 1947 (62 Stat. 21). Nevertheless, we said that that act afforded plaintiff no basis for recovery of his loss of profits, because it was passed for the benefit of the Government, and not for the benefit of the bidder.

We add that plaintiff cannot recover its loss of profits on a contract implied in law, because Congress has not consented to suits on such quasi-contracts.

However, we said that by the solicitation for bids, the Government impliedly promised that it would give honest and fair consideration to all bids received and would not reject any one of them arbitrarily or capriciously, but would award the contract to that bidder whose bid in its honest judgment was most advantageous to the Government. If in the instant case the OTAC, in rejecting plaintiff’s bid, did not act in good faith, but arbitrarily and capriciously, it breached its implied promise when it solicited bids, for the breach of which plaintiff may recover the expenses it had incurred in submitting its bid.

So the question before us is, was plaintiff’s bid rejected in good faith or arbitrarily or capriciously? If its rejection was not fraudulent nor arbitrary nor capricious nor so unreasonable as to necessarily imply bad faith, plaintiff has established no right of recovery.

Defendant says it was rejected because the sample plaintiff submitted did not comply with the specifications. The invitation for bids provided:

Bid sample must be furnished for test and evaluation. ❖ * *
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(c) Item being furnished as same must conform in every respect to the item the facility intends supplying to meet the Government requirements.
(d) Any sample failing in any portion of tests will be deemed sufficient basis for rejection.

It cannot be denied that plaintiff was a responsible contractor who had been in the business of manufacturing automotive test equipment for 25 years, and had manufactured thousands of low voltage circuit testers both for the Government and for such manufacturers as General Motors, Ford, Chrysler, Standard Oil, and others. This being so, if the sample it was required to submit with its bid complied with the specifications, there would seem to be no justification for rejecting its bid and awarding the contract to Weidenhoff, whose bid was almost twice that of plaintiff’s. Defendant suggests no justification other than the failure of the sample to comply with the specifications. So, if the sample did comply with them, the conclusion must be that there was gross discrimination against plaintiff in favor of Weidenhoff, which would be a breach of the Government’s implied promise that no bid would be arbitrarily rejected, and that that bid would be accepted which in the honest judgment of the awarding authority was most advantageous to the Government.

We proceed to inquire whether plaintiff’s sample complied with the specifications. The defendant’s agents and officials say it did not in several respects. These agents and officials are, first, the employees in the testing laboratory, second, a Mr. Byff, the project engineer, third, a Mr. Newcomb, Chief of the Tools and Equipment Branch of the Procurement Division of the Ordnance Tank Automotive Center, who was Mr. Ryff’s superior, and fourth, a Mr. Vogrin, who was the buyer in the OTAC assigned to procure these testers.

There were ten bids, but only six bidders submitted samples. Just before the invitations for bids were issued Mr. Ryff directed the testing laboratory to make certain specified tests to determine whether the samples to be submitted complied with the specifications.

Plaintiff complains that bidders were not notified, in advance of the bidding, of the tests to which the samples were to be put. Of course not. They were such tests as defendant deemed necessary to ascertain if the samples complied with the specifications. Even if the specifications had said nothing about tests, plaintiff should have known that they would be tested, and should have been glad to have them tested; but the specifications expressly said that they would be. All samples were put to the same test. No other bidder complained, so far as the record shows.

After the tests had been made, the laboratory reported that plaintiff’s sample was defective in the following respects:

1. Two of the terminal screws could be removed by hand (Fig. 2).
2. Electrostatic effect was very bad on both meters. The meters did not recover except by breathing on the meter windows (Fig. 20).
3. The voltmeter readings were more than 2% low (of full scale deflection) from 9 to 10 volts on the 0-10 volt range (Fig. 15).
4. The voltmeter readings were more than 2% low (of full scale deflection) from 90 to 100 volts on the 0-100 volt range prior to tapping of the meter. This calibration data was obtained after the tester was subjected to the vibration test.
5. The No. 8 cable failed the high temperature test (Table XII).

Accompanying this report, and in support of it, were detailed reports of various tests made and a number of graphs and photographs.

Mr. Ryff, the project engineer, had been in daily contact with the laboratory while the tests of the several samples were being made and was kept informed of the results of them. Being fully apprised of the results of the tests, he did not await receipt of the written report from the laboratory before making his own report to his superiors. His report was not quite so succinct as the laboratory’s, but the purport of it was the same as the later written report of the laboratory, so far as plaintiff’s sample is concerned.

Mr. Eyff’s report was approved by Mr. Newcomb and by the Major Awards Board.

The most serious of the defects listed is that the voltmeter readings wei’e more than 2 percent low of full scale deflection at 9 to 10 volts on the 0-10 volt range, and that they were more than 2 percent low of full scale deflection from 90 to 100 volts on the 0-100 volt range. This means that in measuring a 9-volt current and a 10-volt current and also a 90-volt current and a 100-volt current, the meters registered inaccurately by more than 2 percent. The specifications in paragraph 3.1.13 provided:

3.1.13 Meters.- — One voltmeter and one ammeter shall be pi’ovided and securely attached to the instrument panel. The meters shall conform to specification JAN-1-6 and have movements suspended in jewel bearings and an overall accuracy within 2 percent of full scale deflection. The current requirements for full scale deflection of the meter needle shall be as specified in 3.1.13.5.1 and 3.1.13.5.2, and they shall be noted in a legible manner on the meter dial face.

It is apparent, then, that the samples submitted by plaintiff failed to comply in a vital respect with the requirements of the specifications. What the defendant ordered was something to determine the voltage of the current being transmitted. It wanted to know this accurately, but it had to know it within 2 percent of the exact amount. If what the plaintiff was supplying was inaccurate to a greater extent, it was of no use to the defendant because it did not measure the current accurately enough.

This certainly was sufficient ground to reject what the plaintiff offered to supply. The invitation for bids quoted above provides:

Item being furnished as same [as the sample] must conform in every respect to the item the facility intends supplying to meet the Government requirements.
Any sample failing in any portion of tests will be deemed sufficient basis for rejection.

Plaintiff does not deny tbat tbe sample, fully assembled, was inaccurate by more than 2 percent; but it says tbat if tbe meter had been tested before being assembled in tbe tester, with its accompanying shunts and multipliers, it would have stood tbe test, and tbat this was a compliance with the specifications. This is obviously specious. What tbe defendant wanted was a tester that would stand the accuracy test when put to the use defendant desired to make of it. It did not do this, as plaintiff admits.

This was the major defect in plaintiff’s sample. But it was also defective in that one of the cables failed the high temperature test, and also in that the electrostatic effect was bad on both the voltmeter and the ammeter.

The cable in the sample of what plaintiff proposed to furnish was defective. This of course could be remedied by supplying a better cable. But this was a sample of the product plaintiff proposed to supply; if the sample was bad, defendant had reason to suspect that the products to be furnished would be bad. The invitation for bids notified the bidders: “Item being furnished as same [sample] must conform in every respect to the item the facility intends supplying to meet the Government requirements.”

The same may be said of the fact that two of the terminal screws could be removed by hand. The defective cable indicated the use of poor material; the loose screws, poor workmanship.

The other defect noted by the laboratory was that the electrostatic effect was bad on both meters. Until this static electricity was drained off, the meters did not even approach a correct reading. It caused the needle on the dial to stick; so long as it was stuck, the meter either did not register at all, or else it registered abnormally, without any approach to accuracy. To get rid of this electrostatic effect, it was necessary to breathe on the meter windows. The specifications provided:

3.1.13.2 Transparent front. — The meter shall be provided with a glass or other transparent window which shall be shatterproof and free of discoloration, scratches, striae, and electrostatic effect.

It seems obvious to us that OTAC was fully justified in rejecting plaintiff’s bid for the failure of its sample to comply with the specifications. Certainly its rejection was not arbitrary or capricious or in bad faith. Since it was not, plaintiff is not entitled to recover, whether or not defendant was justified in letting the contract to Weidenhoff.

This being true, it is not incumbent on the defendant in this action to justify letting the contract to Weidenhoff. However, a word might be said about that, since plaintiff vigorously asserts that favoritism was shown Weidenhoff, and that the defendant did not act in good faith in awarding the contract to it. Although plaintiff has no standing to complain of the award of the contract to another bidder, we think the vigor with which this case has been prosecuted by plaintiff and defended by the Government entitles the parties to an expression of our views on the ~bona fides of the award to Weidenhoff.

Plaintiff says, if it be admitted that its sample did not comply with the specifications, Weidenhoff’s did not do so either. Defendant says it did.

Weidenhoff’s sample passed the accuracy tests, which, it appears to us, is the prime consideration. But the testing laboratory found that the electrostatic effect on both the voltmeter and the ammeter was bad. As stated above, this causes the needle on the meter dial to stick and the meter to fail to register, at least accurately. This would be a serious defect, except for the further statement of the testing laboratory, that “both meters recovered quickly.” We take this to mean that you had to wait a moment for the electrostatic effect to disappear, after which the meters registered accurately. It would have been better to have had no electrostatic effect at all, but we understand it is very difficult to completely eliminate it. The next best thing would seem to be the prompt disappearance of this extraneous force, after which the meters registered accurately.

Mr. Ryff, the project engineer, and his superiors thought this was substantial compliance with the specifications. We cannot say they were wrong.

The other defect in the Weidenhoff sample noted by the testing laboratory was: “The sensitivity of the movement of the ammeter was 39.07 for full scale deflection; with a 3 ohm series resistor, the sensitivity was 57.45 mv. for full scale deflection (Table VI).”

The specifications, in paragraph 3.1.13.5.1, set forth the details for the ammeter dial. Among other things it said: “Full scale deflection shall be 50 millivolts which shall be noted on the face of the dial as F.S.-50 M.V.”

We interpret this to mean that a meter of 50 millivolts full scale deflection is one which would require the passage through it of a current of 50 millivolts to attain full scale deflection. This is indicated by paragraph 3.1.13 quoted above, which deals with “meters”. It says: “The current requirements for full scale deflection of the meter needle shall be as specified in 3.1.13.5.1 and 3.1.13.5.2 * * *” [Italics ours.] One that required a greater voltage than 50 milli-volts would be less sensitive than the one specified; one that required less voltage would be more sensitive.

Two of the samples tested were just about on the mark: plaintiff’s required 49.25 millivolts, and another, 49.75. One sample required 52.675; it was the least sensitive. Weiden-hoff’s required only 39.07; it was the most sensitive. This means it would register current when the others would not.

What is the significance of this variance in the sensitivity of Weidenhoff’s meter? The record does not provide an answer, except that it seems to have had no effect on the accuracy of the meter’s measurement of amperage. The tests showed that it measured it accurately, notwithstanding this variance. If it did not affect the meter’s accuracy, this excess sensitivity would seem to be an immaterial variance from the requirements of the specifications.

The testing laboratory did not comment on the significance of the excess sensitivity; it merely reported the facts. Mr. Byff, the project engineer, who did evaluate the tests, did not comment specifically on it; but he did say the Weidenhoff sample “successfully passed all tests.”

Had the Weidenhoff meter been less sensitive than the specifications required, this might have been a material variance, but we ourselves do not see how greater sensitivity would make any difference. So far as we can see, the requirement of 50 millivolts for full scale deflection was a minimum requirement and not an exact requirement. If it was an exact requirement, the record discloses no reason why it had to be exact.

We cannot say that Byff’s conclusion that the Weidenhoff sample “successfully passed all tests” was wrong; nor can we say that this statement was not made in good faith.

These were the only two defects in the Weidenhoff sample noted by the testing laboratory.

In conclusion the testing laboratory said:

conclusions :
1. Tests on low voltage circuit testers “B”, “E” and “F” were either discontinued, or were not conducted, at the request of the project engineer.
2. Based upon the tests conducted in accordance with the Test Program and the amendments, the remaining low voltage circuits testers are listed below in the order of over-all performance;
a. “C”
b. “A” and “D”, etc.

(Code C Tester was Weidenhoff’s; “A” was plaintiff’s; “D” was that of another bidder. The laboratory was not given the names of the bidders submitting the several samples.)

The laboratory did not say that the Weidenhoff sample met the specifications, but they did say in overall performance it was better than the other two samples tested.

There is not the slightest indication in the record that the report of the testing laboratory was not purely scientific and objective and unbiased.

Plaintiff complains that the specifications accompanying the invitation for bids had been prepared by OTAC in collaboration with the Weidenhoff Company. There was nothing sinister about this. Weidenhoff had just completed furnishing a lot of testers for the OTAC, which had proven satisfactory. OTAC wanted to procure more of them. The manufacturer who had been making these satisfactorily best knew what it took to produce a satisfactory article. It was sensible and proper for OTAC to enlist its aid in describing to the trade just what OTAC wanted. Before invitations for bids were sent out, OTAC sent the proposed specifications to plaintiff and. other prospective bidders for their comment. Plaintiff studied them and commented on them.

It was not taken by surprise by the contents of the specifications accompanying the invitation for bids, including the requirement for the furnishing of a sample. Plaintiff itself had previously urged that bidders be required to submit samples. Plaintiff had been one of the bidders on a procurement in 1950 of low voltage circuit testers. In 1951, a year before the invitation for bids for the circuit testers here involved was issued, plaintiff learned OTAC would need additional circuit testers; whereupon it began perfecting its drafting material and began preparation of a sample unit. Plaintiff had ample opportunity to prepare the best sample it could. The only advantage Weidenhoff had was that it had actually manufactured these testers in quantity. This of course was a material advantage, but it was unavoidable ; it was not brought about by manipulation of OTAC.

Weidenhoff’s bid was nearly twice the amount of plaintiff’s bid, but that does not necessarily show that it was exorbitant. There were three bids higher than Weiden-hoff’s. The bid of the General Electric Company was considerably more than twice as high, and the other two were respectively 27 percent and 16 percent higher.

We cannot say that OTAC did not act in good faith in deciding that Weidenhoff’s bid was the one most advantageous to the Government. Certainly, we cannot say that the rejection of plaintiff’s bid was arbitrary or capricious or lacking in good faith.

It results that plaintiff’s petition must be dismissed.

It is so ordered.

Fahy, Circuit Judge, sitting by designation; LaRAmoke, Judge; Madden, Judge and Jones, Chief Judge, concur.

FUNDINGS OF FACT

The court, having considered the evidence, the briefs and argument of counsel, and the report of Trial Commissioner C. Murray Bernhardt, makes the following findings of fact:

1. The Heyer Products Company, Inc., of Bellsville, New Jersey, has been a manufacturer of automotive test equipment for 25 years. It has built thousands of low voltage circuit testers for commercial use, and some 52,000 for military use during World War II. It has supplied them to General Motors, Ford, Chrysler, Standard Oil and others. The low voltage circuit tester is a simple device used by civilian and military garages throughout the country. Its principal components are a voltmeter, an ammeter and associated wires, shunts and resistors, assembled in a metal box.

2. The Ordnance Corps of the United States Army maintained a stock control unit for various items of supplies, including low voltage circuit testers, at Eossford Ordnance Depot. When the stock control unit determined the need for any supply item, such as low voltage circuit testers, it forwarded a production order to the Ordnance Tank Automotive Center, Detroit, Michigan (hereinafter referred to asOTAC).

3. In 1950 the Eossford Ordnance Depot, Toledo, Ohio, issued invitations to plaintiff and others to bid on supplying 3,000 low voltage circuit testers, which were to comply with prescribed specifications. The Weidenhoff Company, which submitted the seventh lowest bid, received the award as the lowest responsive bidder. The plaintiff’s bid in that procurement was the second lowest, but upon evaluation its bid was found not to comply with specifications. The plaintiff protested the award to Weidenhoff. The complaint was investigated by appropriate agencies. Investigation disclosed that Benjamin Eossette, Executive Vice President of the Weidenhoff Company, had given a watch to one Cole, the civilian Chief of Evaluation at Eossford. Cole resigned while under investigation. A grand jury to whom charges against Cole were presented returned a no true bill. Eventually the complaint became the subject of hearings before the Senate Small Business Committee in April 1952, as to which see finding 13, m/m.

4. In March 1951 the plaintiff learned that additional low voltage circuit testers would be required by the defendant. At that time the plaintiff on its own initiative perfected its drafting material which had been used in connection with its bid on the first procurement in 1950, and began preparation of a sample unit.

5. Sometime prior to March 14, 1952, OTAC received from Eossford Ordnance Depot a production order calling for several items including 5,500 low voltage circuit testers. The testers were to comply with specification MIL-T-10308, which corresponded with the specifications provided in connection with the 1950 procurement of the same item, except that the specifications in the 1952 procurement deleted a portion of the 1950 specifications known as JAN-I-6, which prescribed rigorous military tests. The specifications had been prepared by the Army in collaboration with the Weidenhoff Company as a result of a tester developed by and subsequently procured from that company in 1950. The plaintiff had been asked, along with other manufacturers, to comment on a first draft of these specifications, and did so. The production order was assigned to John P. Vogrin, a buyer in the OTAC Procurement Branch, and a copy of the order was given to George A. Newcomb, Chief of the Tools and Equipment Evaluation Branch, Procurement Division, OTAC, who referred it to Anthony S. Eyff, project engineer under Newcomb, with directions to Eyff to review the same and determine whether or not bidders should be required to submit samples along with their bids for technical evaluation. Eyff recommended in the affirmative, and Newcomb approved.

6. Thereupon Vogrin, the buyer, prepared an Invitation for Bids and the same was mailed to over 40 prospective suppliers, including the plaintiff and the Weidenhoff Company, on March 17, 1952. The invitation provided for bid opening on April 16,1952, and required that a sample tester be submitted with each bid. Allowance of 30 days for preparation of a sample was not an unusual provision in contracts for procurement of comparable equipment. The plaintiff had previously urged the defendant to require a sample in its next procurement of testers. Pertinent portions of the invitation were as follows:

1. awaed.— * * * The contract shall be awarded to that responsible bidder whose bid, conforming to the Invitation for Bids, will be most advantageous to the Government, price and other factors considered. An award mailed (or otherwise furnished) to the successful bidder within the time for acceptance specified in the bid results in a binding contract without further action by either party.
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7. samples. — Samples of items, when required, must be submitted within the time specified and at no expense to the Government; if not destroyed by testing, they will be returned at bidder’s request and expense, unless ' otherwise specified in the Schedule.
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INSTRUCTION SHEET #1
Item 1(1),3(1) and4(2)
Bid sample must be furnished for test and evaluation.
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(c) Item being furnished as same must conform in every respect to the item the facility intends supplying to meet the Government requirements.
(d) Any sample failing in any portion of tests will be deemed sufficient basis for rejection.

7. Relevant portions of the specifications accompanying the invitation were as follows:

I. SCOPE AND CLASSIFICATION
1.1 Scope. — This specification covers low voltage circuit testers used for indicating the electrical functioning of automotive and lite type generators, their control apparatuses, starting motors, and all other devices associated in tbe low-voltage circuit. This tester shall be capable of accomplishing the required tests on direct current systems of internal-combustion engines within its scope of a fraction of 1 volt up to a maximum of 100 volts and from 0 ampere to 1000 amperes.
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3. Requirements
3.1 Design and construction.
3.1.1 General. — All parts of the tester shall be new, of the latest approved design, and of the best commercial quality. The parts shall be of such size, material, and strength as to properly sustain the maximum allowable mechanical and electrical loads imposed upon them, with an adequate factor of safety, maximum working efficiency, and minimmn wear during operation. It shall be designed to eliminate all switches and rheostats. The external shunt shall be incorporated in the test lead specified in 3.1.14.2, so as to obviate the necessity for any open shunt connections or shunt switch blades.
$ $ $ * *
3.1.5 Materials. — Materials shall be sound, of uniform quality and condition, and shall conform in composition and suitability to the standard practices of reputable manufacturers producing equipment of the type specified in this specification.
3.1.6. Electrical connections. — All electrical connections shall be mechanically secured before being soldered or brazed, to preclude the possibility of their becoming loose when subject to extreme vibration in service. Soldering acids, acid fluxes, or soldering salt shall not be used.
3.1.7 Interchangeability. — All replaceable parts shall be constructed to definite standards, tolerances, and clearances in order that any such parts of a particular type or model may be replaced or adjusted without requiring modification. All such parts, where practicable, shall be permanently marked with the manufacturers’ part number.
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3.1.13. Meters. — One voltmeter and one ammeter shall be provided and securely attached to the instrument panel. The meters shall conform to specification JAN-I-6 and have movement suspended in jewel bearings and an overall accuracy within 2 percent of full scale deflection. The current requirements for full scale deflection of the meter needle shall be as specified in 3.1.13.5.1and 3.1.13.5.2, and they shall be noted in a legible maimer on the meter dial face.
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3.1.13.2 Housing. — The meter housing shall be made of plastic, shall be moistureproof, shall have a dull black finish, and shall be mounted in a manner to provide a resilient shock cushion between the meter and the instrument panel.
_ 3.1.13.2 Transparent front. — The meter shall be provided with a glass or other transparent window which shall be shatterproof and free of discoloration, scratches, striae, and electrostatic effect.
3.1.13.4 Zero Adjuster. — An externally accessible means shall be provided for adjusting the needle to zero. It shall have a range of adjustment of not less than 5 percent of the scale length and shall have sufficient friction to prevent it from shaking loose and changing adjustment when subjected to vibration.
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3.1.13.5.1 Ammeter dial. — The ammeter dial shall have one scale with an off-center zero and shall indicate, by using a combination of different colored numerals, the following scale ranges: 3-0-10, 30-0-100, 300-0-1000; 15-0-50, 150-0-500. The scale shall be divided into 65 divisions with heavy extended lines for each 5 divisions and numerals for each 10 divisions. Full scale deflection shall be 50 millivolts which shall be noted on the face of the dial as F.S.=50 M.V.
3.1.13.5.2 Voltmeter dial. — The voltmeter dial shall have one scale and shall indicate, by using a combination of different colored numerals, the following scale ranges: 0-1, 0-10, 0-100, 0-50. The scale shall be divided into 50 divisions with heavy extended lines and numerals for each 5 divisions. Full scale deflection shall be 1 milli-ampere which shall be noted on the face of the dial as F.S.=1 M.A.
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3.1.13.6.1 Ammeter binding posts for internal shunt.— * * * Means shall be provided to prevent the screws from being removed from the binding posts without resorting to peening or staking the threads, so as to insure against loss of the parts.
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3.1.14.2 Ammeter circuit {external shunt). — An external shunt shall be furnished with each tester and the circuit of the tester shall be arranged whereby the ex-temal shunt, when connected to the binding posts specified in 3.1.13.6.2 can be used for the 500- and 1000-ampere ranges. The external shunt shall be constructed of copper-nickel-manganese alloy and it shall be wrapped with a high dielectric electrical insulation tape. High current carrying leads shall extend, in the same direction, from the end blocks of the shunt; and these leads shall be approximately 14 inches long and equipped with lug terminals, with suitable strain relief at the point of connection, on the other ends. Two calibrated leads, approximately 7 feet long, shall also extend from the end blocks of the shunt; and they shall be equipped with spring compression type banana plugs of a suitable size to fit their respective binding posts.
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3.1.15 Test leads. — All test leads, including those specified in 3.1.14.2, shall be suitable for the intended purpose and they shall be adequately insulated with a material that is impervious to oil, water, acids, and extremes of temperature. * * *
*****
3.2 Performance. — The tester shall be capable of accurately testing the electrical functioning of automotive and like type generators, their control apparatuses, starting motors, and all other devices associated in the low voltage circuits.
3.3 Workmanship. — The low voltage circuit tester shall be free of characteristics or defects which affect appearance, serviceability, or render the tester unsuitable or inefficient for the intended purpose.
4. SAMPLING, INSPECTION, AND TEST PROCEDURES
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4.2 Performance tests. — The acceptance sample shall be given such tests as may be necessary to determine compliance with this specification.
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6. NOTES
6.1 Intended use. — The low voltage circuit tester covered by this specification is intended for use in testing and maintaining the electrical systems of automotive vehicles.
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6.3Bid samples. — It is considered that this specification adequately describes the characteristics necessary to secure the desired materials and that normally no samples will be necessary prior to award to determine compliance with this specification. If, for any particular purpose, samples with bid are necessary, they should be specifically asked for in the invitation tor bids, and the particular purpose to be served by the bid sample should be definitely stated, the specification to apply in all other respects.
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“Minor changes in design or dimensions required by this specification may be permitted after being approved by the procuring agency. The contractor shall be held responsible for full compliance of the item as modified.”

8. On March 14, 1952, Eyff, project engineer, prepared a laboratory work order and a test program for use in determining whether the sample testers submitted with bids would meet the performance requirements of the specifications. The laboratory work order and test program was approved by Newcomb and by Colonel H. G. Davisson, Division Chief, and was forwarded to the Chief, Components Laboratories Division, Ordnance Department, Detroit Arsenal. The electrical laboratory at the Detroit Arsenal then formulated a test program and test directive on the basis of Eyff’s work order and test program. Both documents were identical in scope. The full text of the test program and test directive is reported in finding 14, infra. Eyff concurred in the foregoing test program and test directive prepared by the electrical laboratory.

9. Plaintiff submitted its bid and sample with a covering letter of April 15, 1952, portions of which were as follows:

* * * We have made every effort to correctly interpret Specification MIL-T-10308 and to produce a sample which is in strict accordance with this specification. In our opinion there should be no question, in an engineering evaluation of the unit and information furnished in support of this bid, that the unit is acceptable. *****
We feel that the meters used in the sample unit adequately meet the requirements of Specification MIL-T-10308. However, the photograph which is part of that specification shows a low-voltage circuit tester with rectangular meter. It is our opinion that since the photograph in the specification is for the convenience _ of identification, requisitioning, purchasing, and inspection officers and is not intended to preclude the purchase of testers which are otherwise in accordance with the requirements of this specification, the round meters should be acceptable. These meters, as supplied in the sample tester, are in strict accordance with paragraphs 3.1.13, 3.1.13.1, 3.1.13.2, 3.1.13.3, 3.1.13.4, 3.1.13.5, 3.1.13.5.1, and 3.1.13.5.2 of Specification MIL-T-10308. No reference is made in any of these paragraphs to the meter shape and we, therefore, feel there should be no question concerning the acceptance of round meters.
In order to protect our bid, we are submitting in addition to the low-voltage circuit tester sample, a sample of our standard rectangular meter which we will furnish, if it is the interpretation of the evaluating agency that the specification requires rectangular meters. * * *.
In view of our sad experience in the evaluation of Invitation for Bid DA-20-089-OKD-51-1038 FS, [i.e., the 1950 procurement] we wish to request at this time that we be given an opportunity to present additional information pertinent to the evaluation of the subject bid if it is needed by the evaluating agency. We have attempted to furnish complete and detailed information in addition to the sample unit and feel that a favorable evaluation should be the result.
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As you are well aware, we are interested in supplying Ordnance equipment and feel we can produce a high quality product at highly competitive prices. We feel that the information supplied with these bids should enable favorable evaluation, thereby eliminating the possibility of award to a higher bidder.

10. Ten bids were received and were opened on April 16, 1952. The following abstract of bids shows the names of the bidders and their bids arranged in order of amount:

Plaintiff_$37.45
Allen Electric and Equipment Co_ 38. 93
Electro Prod. Co_ 39.03
Sun Electric Corp- 42. 00
King Electric Equipment Co_ 51.82
Lanagan and Hoke, Inc_ 57.06
Weidenhoff, Inc_ 72.00
Laboratory Corp. o£ America- 85. 60
Triumph Mfg. Co_ 91.75
General Electric Company_177.00

The first five bidders and Weidenhoff furnished sample testers with their bids. Byff submitted the samples to the electrical laboratory at the Detroit Arsenal.

11. On April 23, 1952, plaintiff wrote to the Contracting Officer, OTAC, in part, as follows:

Dear Sir: We have submitted proposals on items 1 and 2 of IFB DA-20-[ XXX-XX-XXXX ] and items 1 and 2 on IFB DA-20-[ XXX-XX-XXXX ]. Accompanying our proposals as specified in the invitation is information which we feel should be adequate to enable evaluation on bids. On all items, disregarding alternate bids, we are low bidder. Inasmuch as paragraph 10(e) of terms and conditions of the invitation for bid specifically indicates that alternate bids will not be considered unless authorized in the schedule and since we find no such authorization in the bid papers, alternate bids on either of these 2 invitations are nonresponsive. Since our plant is in a grade III labor area and since we are now operating at 30 percent of plant capacity, we are desirous of obtaining contracts for these items as quickly as possible. In order to clarify our position on this point, following is a discussion of the items under consideration.
$ $ $ $ *
Our plant, which is a small business, is operating at 30 percent capacity and we are in need of additional business to hold our plant personnel together. By virtue of that fact, we are in an excellent position to perform on contracts awarded as a result of the above invitations. We are confident of our ability to produce all these items well in advance of the overall production schedules set up in the invitations. We have offered the Government an extremely favorable price in view of these conditions and it seems to us that it is in the best interest of the Government to place these contracts immediately since there is no question of our qualifications, financial responsibility, or ability to produce.
It has been our experience in bidding on procurements for other military agencies that on advertised bids where an item covered by a military specification is involved, it has not been required that the bidder prove prior to the award of a contract that he will supply the item specified. It is the responsibility of the contractor who states he will supply such an item to perform accordingly. The inspection function of the military has the responsibility of determining whether the contractor lives up to the specification. We therefore question the reasons behind the continual request of the Ordnance Department for information to support bids on items covered by military specifications. It appears that needless time and money is wasted in establishing and implementing procedures which apparently duplicate the inspection function of determining compliance with specifications and placing that responsibility in another group which will therefore duplicate effort needlessly.

12. While the samples were being tested at the Detroit Arsenal laboratories, Ryff, made periodic visits to observe the progress of the tests, as was his custom in connection with his own test directives. He noticed that during calibration tests the ammeter shunts and cables of one of the testers were beginning to smoke at a fairly low value of current, and that the laboratory technicians were having difficulty with the meter readings because of an electrostatic charge on the meter glass which deflected the pointer. For these reasons he decided it was necessary to issue an amended test directive. The revisions in the tests, with supporting reasons, were submitted by the Detroit Arsenal to the Chief of Ordnance in Washington, D.C., by letter dated April 30, 1958, relevant portions of which are reported in finding 14, infra.

13. In the meantime, on April 28, 1952, the plaintiff appeared and testified before the Senate Small Business Committee to protest the November 1950 procurement of testers from the Weidenhoff Company by the Rossford Ordnance Depot, referred to in finding 2. During the nest few months the Senate Committee maintained its interest in the matter of the 1952 procurement which is the subject of the instant suit. Army officials were keenly aware of this continued interest on the part of the Committee, which was undoubtedly responsible for a sharp intra-Army difference of opinion which, after the award of the contract to the Wei-denhoff Company on July 3, 1952, caused a termination of the contract on October 3, 1952, and, on November 5, 1952, a reinstatement of the contract.

14. The test program and test directive devised by the electrical laboratory for determining compliance of the tester samples with the specifications provided as follows:

TEST PROGRAM AHD TEST DIRECTIVE
Title: Tester, Low-Yoltage Circuit; ESN 17-T-5575-50.
Purpose: Evaluation of Low Voltage Circuit Tester; FSN17-T-5575-50.
Procedure: 1. Perform the following physical tests:
a. Measure thickness of sheet metal used for the case, cover, instrument panel and braces.
b. Weigh the tester and accessories.
c. Photograph interior and exterior of tester.
2. Using calibrated laboratory instruments, % of 1% accuracy, as standards, check the accuracy of the tester at 20, 40, 60, 80, and 100% of full-scale deflection for all ranges. Use test leads and accessories provided with the tester for the “hookup” of this test. Plot a calibration curve.
3. Determine the sensitivity of the instruments mounted on the tester in terms of milliamperes for full-scale deflection.
4. Using the tester and incorporated accessories only, conduct the following tests on the 24-volt starter and generator system of a military vehicle truck, %, % or iy2 ton.
a. Starter system, normal start, using batteries only.
(1) Measure starting current.
(2) Measure system voltage before and during start.
(3) If readily accessible, measure the voltage drop across the starter solenoid or switch.
b. Generator system.
(1) Measure cut-in voltage and regulating voltage of regulator.
(2) Determine reverse current relay cut-out setting of regulator.
(3) Measure regulating voltage and current limiting operation of regulator under overload conditions.
c. For the above tests, Paragraphs 4a and 4b the truck used must be specified and a breakdown of man-hours expended to accomplish these tests is required.
d. In the event that testing, as outlined in Paragraphs 4a and 4b proves to be impractical, special equipment such as adapters will be made upon approval of the Project Engineer to perform these tests. A breakdown of man-hours and material expended to make the special adapters and perform the aforementioned tests will be required.
e. Dependent upon the test results of Paragraphs 4a, 4b, 4c, and 4d, a similar test may be requested on a military vehicle truck with a six-volt nonwaterproof system.
5. An electrical overload test will be conducted on the subject tester as follows:
a. In the forward direction, on the highest range of the voltmeter, apply 200% of the full scale voltage for one second.
b. In the reverse direction, on the highest range of the voltmeter, apply 100% of full (forward) scale voltage for one second.
c. In the forward direction on the lowest range of the ammeter, apply 200% of full scale current for one second.
d. In the reverse direction on the lowest range of ammeter, apply 100% of full scale current for one second.
e. Apply 1000 amperes to the tester interconnected with the proper accessories for one minute.
6. Dependent on the type of instrument mounting of the tester, the following vibration test will be conducted.
a. Total excursion: 0:050 inch.
b. Time: one-half hour in the direction of each of the major axes.
c. Frequency: 10-35 cps.
7. Repeat test of Paragraph 2 above but on the high range of the voltmeter and low range of the ammeter.
8. Subject the cover of the tester to the corrosion test, Spec. 60-977-2.
9. Place the tester in an ambient temperature of —20° F., for twenty-four hours. Check the tester for proper operation while still in this ambient temperature.
10. Subject samples of the cables used in the accessories to the following test:
a. Specification 60-977-2, Fungus Resistance.
b. Specification MIL-E-8078, Oil Absorption Test but omit Cold Bend Test.
c. Specification MIL-C-3078, High Temperature Test.
d. Specification MIL-C-3078, Liquid Immersion Test, acid.
e. Specification MIL-C-3078, Cold Bend Test.

15. Changes subsequently made in the test program, and the reasons therefor, are shown in the April 30, 1953, letter from the Detroit Arsenal to the Chief of Ordnance in Washington, relevant portions of which are as follows:

a. Paragraph la; Measurements specified in original Test Program were made by project engineer during original inspection of subject Testers. Therefore, repeating of measurements was not considered necessary.
b. Paragraph 2; Static Electricity Test was added to comply with Specification MIL-T-10308, since it was omitted in the original Test Program.
c. Paragraph la(3) ; test was deleted because the starter solenoid switch or solenoids are not readily accessible on vehicles having 24 volt d.c. waterproof electrical systems.
d. Paragraph 4b(3); Overload Condition Tests were not conducted due to lack of proper type load bank.
e. Paragraph 5e; Calibration Tests conducted prior to Overload Test revealed that shunts were overheating on light loads. Consequently, the revision was included to determine if shunts were capable of carrying 500 amperes for five minutes as well as 1,000 amperes for one minute. (Note: At 500 amperes the wattage to be dissipated in the form of heat is one-fourth of that wattage, or heat generated at 1,000 amperes.)
f. Paragraph 10a; this test was deleted to expedite laboratory work since specification did not specifically require external leads to be fungus proofed. (MIL-T-10308, Paragraph 3.1.15, Test Leads).
g. Paragraph lOd; deletion of the cold bend portion of this test was approved so that effect of acid would be checked prior to low temperature test 10-e.
h. Paragraph lOe; the original test (Cold Bend) was planned to check resistance to “extremes of temperature” in MIL-T-10308, Paragraph 3.1.15. The original Test Program called for Cold Bend Test at —65° F. This was revised to call for —40° F. in order to be more realistic according to Field Force usage and in order that readily available neoprene insulated cables could be used.

16. The tests, which were conducted by the electrical laboratory, were within the performance requirements described in the invitation and specifications, but the tests themselves were not spelled out in these documents. On June 6, 1952, Byff wrote an engineering evaluation report on the tester samples based on test data he had obtained from the electrical laboratory tests. This report was written prior to the receipt of the laboratory report cited in finding 17, infra, but it was based on information received from the laboratory as the tests progressed. It was approved and signed by Newcomb and was directed to Lieutenant Lawrence E. Brown, Chief of Tools and Equipment Branch, Procurement Division, OTAC. Pertinent portions of the Ryff report are as follows:

1. In reference to subject IFB, the results of evaluation by this office are contained herein.
2. Item I, ESN 17-T-5575-50, Tester, low voltage circuit (Specification MIL-T-10308).
a. Heyer Products Company, low bidder, offers their tester, Model 24005, which is not acceptable as follows:
(1) Paragraph 3.1.13 Meters; original calibration, accuracy was low and not within plus or minus 2% on 0-10 volt range between 9 to 10 volts. The ammeter movement was sticky at 100 amperes on the 150-0-500 ampere range. By tapping, it was possible to obtain accurate reading.
(2) Paragraph 3.1.13.2 Transparent Front; The meters were not free of the electrostatic effect. When an electrical charge was induced on the transparent meter front, the charge did not “leak off” with the result that pointers were deflected and instruments did not indicate true values.
(3) 3.1.13.6.1 Ammeter Binding Posts for Internal Shunt; Two terminal binding screws were removed by hand which is not in accordance with specification requirements, “means shall be provided to prevent the screws from being removed from the binding post”.
(4) Paragraph 3.3, Workmanship: Both meters are difficult to read due to the location of scales on the meter dials.
(5) Paragraph 4.2 Performance Tests, a. The voltmeter was not within calibration limits of plus or minus 2% from 90 to 100 volts on the 0-100 volt range upon completion of a vibration test. For other ranges of both meters, accuracy was within tolerances only when these meters were continually tapped. The ammeter test lead failed the high temperature test of Specification MIB-C-3078 by cracking of the cable center sheath and failed under the following high potential tests. (Note: Specification MIL-C-3078, has less rigorous requirements than Specification AXS-1819 which covers this type cable).
* * * * #
g. Joseph Weidenhoff Company, seventh low bidder, offers their tester, Model 1120, which is acceptable. This unit successfully passed all required tests. However, if substitution of components such as meters are made in production of these units, it is requested that a pilot model be submitted to this office for approval and acceptance tests.

17. The electrical laboratory submitted its evaluation report of the various samples under date of June 17, 1952, to Lieutenant Brown, attention of Byff. This report provided in parts as follows:

results:
1. The results of all tests except the vibration, corrosion-resistance and low temperature tests appear in Tables I through XII and Figs. 1 through 28.
2. Testers “A”, “C” and “D” were visibly undamaged after being subjected to the vibration test.
* * * # #
DISCUSSION:
$ H: ‡ $
2. Listed below are the defects of each of “A”, “C” and “D” testers;
a. Tester, “A”
1. Two of the terminal screws could be removed by hand (Fig. 2).
2. Electrostatic effect was very bad on both meters. The meters did not recover except by breathing on the meter windows (Fig. 20).
8. The voltmeter readings were more than 2% low (of full scale deflection) from 9 to 10 volts on the 0-10 volt range (Fig. 15).
4. The voltmeter readings were more than 2% low (of full scale deflection) from 90 to 100 volts on the 0-100 volt range prior to tapping of the meter. This calibration data was obtained after the tester was subjected to the vibration test.
5. The No. 8 cable failed the high temperature test (Table XII).
b. CodeC Tester
1. Electrostatic effect was bad on both meters, however, both meters recovered quickly.
2. The sensitivity of the movement of the ammeter was 39.07 mv. for full scale deflection; with a 3 ohm external series resistor, the sensitivity was 57.45 mv. for full scale deflection (Table VI).
CONCLUSIONS:
1. Tests on low voltage circuit testers “B”, “E” and “F” were either discontinued, or were not conducted, at the request of the pro j ect engineer.
2. Based upon the tests conducted in accordancewith the Test Program and the amendments, the remaining low voltage circuit testers are listed below in the order of over-all performance;
a “C”
b'. “A” and “D”, etc.

18. A dispute existed between the parties as to the scope of paragraph 3.1.13 of the specifications (finding 7, supra), which required that the ammeter and voltmeter on the tester have an “overall accuracy within 2 percent of full scale deflection.” The plaintiff considered this to mean that the meters themselves, when used without the shunts and multipliers, which they were designed to use for various purposes, would be accurate within two percent. The plaintiff designed its tester to have an accuracy within two percent under its concept of the full scale deflection requirement, but to have an accuracy of 2% percent on full scale deflection when certain shunts and multipliers were added. On being tested in the electrical laboratory plaintiff’s tester was accurate within two percent on the full scale deflection tests of the meters themselves, but when the shunts and multipliers were added, the voltmeter failed to meet this standard of accuracy at certain points on the 0-10 range prior to vibration, and also failed at certain points on the 0-100 range after vibration. In effect, defendant construed the specification to require that the meters be accurate within two percent under all conditions of anticipated use, while the plaintiff construed the specification more narrowly to require only that the meters maintain two percent of accuracy when used without shunts and multipliers. The defendant’s construction of the specifications was reasonable. The Weidenhoff sample passed the tests satisfactorily. The full scale deflection defect in plaintiff’s voltmeter was one which could have been corrected in production only by the substitution of a more expensive meter.

19. Both the laboratory and Byff, in their reports, found that the voltmeter and ammeter on plaintiff’s sample tester were not free of static electricity, which, distorted the reading. Specification 3.1.13.2 (finding 7, supra) required that the meters should be free of electrostatic effect. This defect in plaintiff’s sample was the result of manufacturing oversight but could have been easily corrected in production. New-comb considered this to be a major defect. Weidenhoff’s sample meters also had a temporary electrostatic effect which dissipated immediately and so was not found to be defective by Eyff, although the laboratory had found that “Electrostatic effect was bad on both meters [i.e., plaintiff’s and Wei-denhoff’s]”, but that Weidenhoff’s recovered quickly, while plaintiff’s did not recover except by breathing on the meter windows.

20. The loose terminal binding screws on plaintiff’s ammeter binding posts were minor defects only, according to Eyff and Newcomb.

21. Eyff noted that plaintiff’s meter scales were difficult to read due to their location on the meter dials, but this would not of itself be a cause for rejection. The laboratory report did not note this condition.

22. Paragraphs 3.1.6 and 3.1.13 of the specifications (finding 7, supra) impose vibration requirements. The testers were designed to be used on trucks, tanks and other military vehicles under conditions where they would be subject to considerable vibration. After vibration, the plaintiff’s voltmeter was not within calibration limits of plus or minus two percent of full scale deflection from 90 to 100 volts on the 0-100 volt range. At less than full scale deflection the plaintiff’s ammeter and voltmeter, after vibration, were within tolerances only when tapped. Tests also show that Weiden-hoff’s ammeter, while accurate within two percent on full scale deflection after vibration, was not within-the allowed tolerance on certain ranges at less than full scale deflection, but neither the laboratory report nor Eyff’s report comment on this. In other words, after vibration the Weidenhoff ammeter suffered from certain inaccuracies, but of much less degree than plaintiff’s ammeter and voltmeter. The plaintiff’s chief witness conceded that the Weidenhoff ammeter was not outside the range of accuracy after vibration, although it was affected by vibration.

23. Specification. 3.1.15 (finding 7, supra) required that test leads shall be suitable for the intended purpose and shall be adequately insulated against extremes of temperature. Upon being subjected to the high temperature test the cable center sheath of one of plaintiff’s ammeter test leads cracked, thus failing the test. Plaintiff did not use the best com-merical grade cable as required by the specifications.

24. The Ryff evaluation report found that the Weidenhoff tester successfully passed all required tests. The electrical laboratory report found that the sensitivity of the ammeter movement in the Weidenhoff tester was 39.07 mv. for full scale deflection. Ryff disagreed with the electrical laboratory in the interpretation of specification provision 3.1.13.5.1 relative to full scale reflection. Ryff’s view prevailed and the Weidenhoff ammeter was found to be in compliance with the sensitivity requirement. It is not possible to determine from the record whether this alleged variance in the sensitivity of the ammeter in the Weidenhoff sample was a material variance from the specifications.

25. Paragraph 6.4 of the specifications provided that minor changes in design or dimensions from the requirements of the specifications could be permitted upon approval by the procuring agency, but Mr. Ryff, the project engineer, did not know what could be classified as minor changes. Lieutenant Brown of the Procurement Division followed the advice of Messrs. Ryff and Newcomb of the Industrial Engineering Branch in engineering matters.

26. In their bids both the plaintiff and Weidenhoff offered substitute meters, subject to acceptance by defendant. In its evaluation report on the Weidenhoff unit the defendant stated that, if the substitute meter was to be used in production, Weidenhoff would have to submit a pilot model to the engineering evaluation office for approval and acceptance tests prior to production. The evaluation report on the plaintiff’s unit omitted mention of substitution, but this did not constitute favoritism since the Heyer unit was considered unacceptable on other grounds.

27. On July 3, 1952, the contract was awarded to the Weidenhoff Company in the amount of $396,018. Before the award was made the Major Awards Board had fully considered the price differential and other circumstances concerning the testing procedures.

CONCLUSION OF LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is not entitled to recover and its petition is dismissed. 
      
       Neither Cole nor Rossford Ordnance Depot was involved in the technical evaluation of the samples involved in the procurement in suit.
     