Is anyone familiar with the following case and know where I can access it? The contract I am working on may have a potential latent defect and I am trying to do some initial research before getting legal involved. I have found several other cases but this one (as described on DAU?s ask a professor) seems to be the most similar to my situation. Any other information concerning latent defects is also appreciated.

General Electric Co., IBCA 442-6-64, 65-2 BCA p 4974 (1965) where a metal fatigue failure was held to be a latent defect.

Is anyone familiar with the following case and know where I can access it? The contract I am working on may have a potential latent defect and I am trying to do some initial research before getting legal involved. I have found several other cases but this one (as described on DAU’s ask a professor) seems to be the most similar to my situation. Any other information concerning latent defects is also appreciated.

General Electric Co., IBCA 442-6-64, 65-2 BCA p 4974 (1965) where a metal fatigue failure was held to be a latent defect.

The case is discussed in Nash and Cibinic's "Administration of Government Contracts" 4th edition at pages 863 and 880. A Google search also includes hits which discuss the case. I assume that you actually want to read the case and that you don't have access to the on-line law subscriptions or to your organization's law library, if any. One other possibility is to check the local Courthouse law library - if they still keep hard copies. I used to go to the Federal Courthouse law library next door to our office in Mobile, AL on occasion. I think that they had the old BCA's.

Thank you Sir. I'm sure I can track it down from one of the sources you mentioned.

In order to keep, what I believe to be an interesting topic going, I have provided further information.

Background: A cart was shipped with inspection, acceptance and FOB all at source, while being shipped it is discovered the stress from the fasteners being ratchet down has caused the tires to bend and even break off. The shipping company was a commercial/standard trucking company and no special shipping requirements or instructions were provided. The item is a modified Commercially available Off-The-Shelf (COTS), but shipped differently in the commercial market place. The item is also advertized by the contractor as being extremely durable and the SOW states that all necessary materials, containers, transportation, and personnel shall be provided by the contractor when shipping. This is a Firm-Fixed-Price contract and no shipping, certificate of conformance, or any other clauses related to shipping or handling are on the contract. Currently we are denying all DD250 request.

Based on the above information I am trying to figure out what questions I should ask in order to understand who should pay for the fix. Once I have the full story I plan to get legal involved, but for now I am just trying to gather as much information as possible. Here are a few questions I generated to start the conversation. Please feel free to add to the list and/or provide advice.

Questions

1. Why aren?t we shipping the item in the same manner as in the commercial market place?

2. Is the method we use to ship the item reasonable?

3. Since the SOW states that the contract must provide all materials necessary to ship the item, is this considered improper packaging when shipping (assumption = packaging differently would prevent this issue)?

You are asking the wrong questions if you want to know whether you are dealing with a latent defect. Instead of reading 40+ year old decisions and poking around here asking questions, start with some reading like "Kiewit and Other Latent Defect Cases," by Adminisrtative Law Judge Cheryl L. Scott of the Armed Services Board of Contract Appeals. The article was published in the Public Contract Law Journal last year and was reprinted in The Clause, which is a periodical published by the Boards of Contract Appeals Bar Association. The article begins on page 50 of the September 2010 edition of The Clause, which you can find at the Pubklaw website, here: http://www.pubklaw.com/papers/clause/clause092010.pdf. It provides a good overview of more recent latent defects cases.