Firestone Tire & Rubber Co. v. United States

558 F.2d 577, 23 Cont. Cas. Fed. 81,378, 214 Ct. Cl. 457, 1977 U.S. Ct. Cl. LEXIS 62
CourtUnited States Court of Claims
DecidedJune 15, 1977
DocketNo. 208-74
StatusPublished
Cited by5 cases

This text of 558 F.2d 577 (Firestone Tire & Rubber Co. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Firestone Tire & Rubber Co. v. United States, 558 F.2d 577, 23 Cont. Cas. Fed. 81,378, 214 Ct. Cl. 457, 1977 U.S. Ct. Cl. LEXIS 62 (cc 1977).

Opinion

Per Curiam:

This case comes before the court on plaintiffs’ request for review by the court of the recommended decision of Trial Judge George Willi, filed September 24, 1976, pursuant to Rule 166(c) on plaintiffs’ motion and defendant’s cross-motion for summary judgment, having been submitted on the briefs and oral argument of counsel. Upon consideration thereof, since the court agrees with the trial judge’s recommended decision, as hereinafter [460]*460set forth, it hereby affirms and adopts the same as the basis for its judgment in this case. It is, therefore, concluded that plaintiffs are not entitled to recover and, accordingly, plaintiffs’ motion for summary judgment is denied, defendant’s cross-motion for summary judgment is granted and plaintiffs’ petition is dismissed.

OPINION OF TRIAL JUDGE

Willi, Trial Judge:

This is a suit for Wunderlich Act1 review of a decision2 of the Armed Services Board of Contract Appeals (the Board) denying plaintiffs recovery of excess costs allegedly incurred by them in performing similar supply contracts for a track component (a so-called "shoe”) that is a part of the running gear of M-113 Armored Personnel Carriers. The common predicate of plaintiffs’ assorted contentions here is the claim that the Board failed to correctly and completely apprehend and apply the evidence that was before it.3 In that vein it is said that the Board improperly failed to find (1) that the contract specifications were defective in a particular that [461]*461rendered performance commercially impossible, (2) that at pre-bid conferences Government representatives made certain material misrepresentations on which plaintiffs relied to their ultimate detriment, and (3) that the Government improperly withheld from bidders specific know-how for producing the articles contracted for.

Although defendant has candidly acknowledged on brief that in certain isolated instances the Board decision was factually inaccurate, it insists that the record amply supports all of the ultimate determinations controlling liability. As will be shown, a thorough examination of the entire record on this review confirms that view.

Preliminarily it is important to note that in announcing the now-settled principle that the validity of an administrative body’s decision must be judged by the grounds on which the body based its action, the Court expressly emphasized that its holding not be taken as a renunciation of or any encroachment on the antecedent doctrine that a reviewing court should affirm the decision below if supported by facts implicit in the record on which that decision was rendered. Securities & Exchange Comm’n v. Chenery Corp., 318 U.S. 80, 87-88, 93 (1943). The body of uncontradicted evidence in the present record — evidence consisting largely of the testimony of plaintiffs’ own witnesses — convincingly demonstrates that the latter principle governs this case.

The article involved in this litigation is the rubber-padded, steel shoe that when interlocked in series by steel pins forms the two belt-like tracks on which the M-113 moves along the ground under power supplied by drive sprockets that engage slots provided in each shoe. The general configuration of the shoe is as shown in the following illustration which views the underside (the side that contacts the ground) of a shoe to which rubber has not yet been applied.

The shoe is approximately 8 inches long and 15 inches wide, the leading edge having the three hinge-like protrusions and the trailing edge two. As can be visualized from the illustration, the protrusions (called "bosses”) are positioned so that the leading edge of one shoe will mesh with the trailing edge of another. A 1% inch hole is drilled [463]*463through the center of each of the bosses on a line perpendicular to the intended line of travel so that when two shoes are mated they may be held together by a single pin passing through the channel that is formed by alignment of the five boss area holes. It is the difficulties encountered by plaintiffs in drilling those holes that occasioned the excess production costs for which they sue.

[462]*462[[Image here]]

[Rubber-padded, steel shoe illustration referred to on preceding page]

[463]*463By 1968, when the contracts in issue were let, the M-113 vehicle, developed for the Army by the FMC Corporation, had been in field service since 1960. From the beginning, the material specifications for the track shoes authorized the use of any one of six different types of steel, each identified by the standard classification number assigned by the American Iron and Steel Institute (A.I.S.I.). These alternatives included A.I.S.I. numbers 1345H, 4140H, 4145H, 5145, 6150H and 8645H. Initially 5145H was used and gave an acceptable track life. Suppliers soon discovered, however, that a shoe could be produced at a lower cost by using 1345H steel and by 1963 that became their invariable choice.

Government procurement of track shoes, a volume item, was accomplished by an invitation for bid and subsequent award to the lowest responsible bidder. Competition for this business was keen. As a GoCorp executive testified, the prime contractor was typically a major rubber company such as Firestone or Goodyear because they had both the technology and facilities to perform the essential rubberizing operation, and the kind of financial strength that appealed to the three categories of subcontractors who were ordinarily involved in making the metal component of the shoe. The first step in the production cycle that evolved under industry practice was the forging of the overall configuration of the shoe. This was done by a forging subcontractor who typically operated with steel that the prime had purchased from a mill. The shoe forging was then sent to another subcontractor for heat treating. First the entire shoe was brought to a Rockwell hardness in the range of 25-35. Then various portions of it were further hardened. The areas where selective heat treatment was critically important were the sprocket openings and the grousers, the peripheral ridges that served both to stabilize [464]*464the rubber pad to be later applied to the underside of the shoe and as a weight-bearing surface after that rubber had worn down from usage. Next the shoe went to a machining subcontractor such as GoCorp, whose primary business was the manufacture of production equipment for the cement block-making industry. The principal machining operation performed was the drilling of the 1% inch holes through the bosses. The ends of those holes were also beveled (cham-fered) and, as indicated in the illustration, supra, a relatively small hole was drilled through the center of the body of the shoe so that a rubber pad could be bolted to the underside of it. The final phase of production involved the application of rubber to the shoe.

As volume increased in the midsixties in response to expanded military needs, a significant decrease in track life, resulting from extensive cracking in the steel, especially around the grousers and the sprocket openings, was reported from the field. In 1965 the Army initiated investigations and research aimed at finding a solution to these problems. Those efforts continued through 1967.

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Bluebook (online)
558 F.2d 577, 23 Cont. Cas. Fed. 81,378, 214 Ct. Cl. 457, 1977 U.S. Ct. Cl. LEXIS 62, Counsel Stack Legal Research, https://law.counselstack.com/opinion/firestone-tire-rubber-co-v-united-states-cc-1977.