# Transtechnology Corp. v. United States

> United States Court of Claims · October 12, 1990 · 36 Cont. Cas. Fed. 75,953

URL: https://www.frixlaw.com/law-library/cases/6826930

## Case

- **Full name:** TRANSTECHNOLOGY CORPORATION, SPACE ORDNANCE SYSTEMS DIVISION v. United States
- **Court:** United States Court of Claims
- **Decided:** October 12, 1990
- **Citations:** 36 Cont. Cas. Fed. 75,953; 22 Cl. Ct. 349; 1990 U.S. Claims LEXIS 396; 1990 WL 156931
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Bruggink
- **Judges:** Bruggink
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6826930

## How later opinions describe it (automated extraction)

- finding that government inspectors’ examination and acceptance of performance was evidence of reasonableness of contractor’s interpretation

## Opinion text

*352 OPINION
BRUGGINK, Judge.
This is an action brought under the Contract Disputes Act, 41 U.S.C. §§ 601-613 (1982) (“CDA”). Transtechnology Corporation, Space Ordnance Systems Division (“plaintiff” or “SOS”) alleges that the technical data package for M206 infrared countermeasure flares which it used in its contract with the United States Army Armament Material Readiness Command was defective. It also alleges constructive changes to the contract. In its complaint SOS seeks a total of $7,710,519 in damages, plus interest in accordance with the CDA. Its damages include alleged delay and inefficiency costs. After trial, the court concludes that plaintiff is entitled to recover part of its claimed costs.
GENERAL FACTUAL BACKGROUND
The following facts are generally applicable to all of SOS’s claims. Because the facts and discussion as to each of the seven counts are best treated separately, additional facts and discussion appear in the context of the particular claims.
On March 1, 1982, plaintiff SOS, as low bidder, was awarded Contract No. DAAA09-82-C-7040 in the amount of $6,282,500 by the United States Army Armament Material Readiness Command (“AMCCOM”). The contract called for the production of 875,000 M206 infrared countermeasure aircraft flares at a unit price of $7.18. Thereafter, pursuant to Modification P00005, defendant was given an option to purchase an additional 347,250 flares at a unit price of $7.82, increasing the total quantity to 1,222,250 flares and the total contract price to $8,997,995. As of April 6, 1989, SOS has produced and shipped 1,162,-520 acceptable M206 flares.
SOS was not the first M206 contractor to use this technical data package (“TDP”). 1 The first was Morton Thiokol Inc., Longhorn Division (“Thiokol”). Thiokol is the operator of the Government-owned Longhorn Army Ammunition Plant (“Longhorn”) in Marshall, Texas. Its contract, unlike that of SOS, was a cost reimbursement contract. Thiokol’s contract, further, was with the U.S. Army Research and Development Command (“ARRADCOM”) rather than AMCCOM. ARRADCOM, which is part of the Picatinny Arsenal, is the research and development group that originally developed the M206 TDP. According to plaintiff, AMCCOM generally takes over contracting when the TDP has been proven acceptable and is ready for mass production.
The first wholly private M206 contractor was Hycor, Inc. It contracted with ARRADCOM in 1979. SOS was the next private M206 contractor. SOS was the first to contract with AMCCOM, rather than ARRADCOM.
Hycor bid on the contract won by SOS. While SOS bid a price of approximately $7.00 per flare, which was consistent with other bidders, Hycor, the only private contractor with M206 experience, bid over $15.00 per flare. Three other M206 contracts have subsequently been let, two with Tracor, Inc., and one with Bermite Division of Whittaker Corporation.
The M206 consists of three basic parts, the pellet, the canister from which the pellet is ejected, and the M796 impulse cartridge which ejects the pellet from the canister. The canister is rectangular, about seven inches long, one inch wide, and made of aluminum. At one end of the canister is inserted the impulse cartridge or “squib.” On top of the squib is a plastic piston, upon which the flare pellet rests. The flare canister is capped with an end cap that is held in place with two shear pins.
The flare pellet is composed of magnesium, teflon and hycar. ' Magnesium is the fuel which causes the pellet to burn. Teflon is the oxidizer, and hycar is a rubber *353 material which acts as a binder. The percentage of each ingredient is classified.
SOS mixes the ingredients for the flare composition in a Cowles Dissolver. Joe Cabaret, President of SOS during the M206 contract, describes the Cowles Dissolver as “a big pot” three feet in diameter and four or five feet high. Before ingredients are mixed, the hycar must be dissolved using a solvent, generally acetone or methylethylchloride (“MEK”). SOS uses MEK. The hycar, in solution, is put into the dissolver first, followed by very finely ground teflon. Before the magnesium is introduced, additional solvent is added to the mixture. While various ingredients are added, the Cowles dissolver, using what Cabaret described as a motor-driven blending wheel, continually mixes the various ingredients. According to Cabaret, the mixing process is very hazardous because there is always a danger that volatiles will be ignited. The Cowles Dissolver is designed to minimize such risks, and is operated remotely.
Once the flare constituents are mixed together in solution, the mixture must be turned into a dry powder. The solution is solidifed again through removal of the hycar. According to Cabaret, hycar can be removed through a process called “shocking,” which causes the solid compounds to solidify and sink to the bottom. Cabaret stated that shocking can be done with water or hexane. SOS uses water.
After the solids in solution settle, the remaining liquid is drawn off. The solid composition is then put into a centrifuge to force out remaining liquid. What remains is a thick mass of flare composition which resembles dough. The composition is put into pans, placed in ovens, and dried to rid the composition of any excess liquid. After drying, the composition is a fine powder.
Flare composition is then pressed into pellets, using a die exerting between 10 and 11 thousand pounds of pressure per square inch. 2 Using a milling machine, two longitudinal grooves are then cut into the pellet. These grooves are four inches long and one-eighth inch in depth and width. Into these grooves are placed first fire and intermediate mix, highly combustible materials which aid in igniting the flare. The intermediate mix and first fire are put into the grooves using a SEMCO gun, which, in Cabaret’s words, “extrude[s] [the material] just like [ ] cake icing.” After application of the first fire and intermediate mix, the pellet is dried. Cabaret testified that, according to the specification, SOS had the option of drying the pellets in ovens for a relatively short period of time or at ambient temperature for eight hours. He did not state which option SOS chose.
After drying, the pellets are wrapped in aluminum tape. According to Cabaret, the purpose of the aluminum tape is to confine ignition of the first fire and intermediate mix in the pellet groove. Finally, under the original TDP, three felts, called obturator felts, are placed around the pellet one at either end and one in the middle. According to Cabaret, these felts, which are .031 inches thick, are supposed to act as a seal. The completed pellet is then inserted into the canister.
The M206 infrared flare, is deployed from several different attack-fighter aircraft models as a decoy to enemy heat-seeking missiles launched to track and destroy the aircraft. Typically, the M206 flares are deployed from M130 Payload Modules which hold 30 flares each. The number of flares and the payload module, however, may differ depending upon the nature of the mission and the type of aircraft.
As a quality control measure, sample flares from all flare lots produced by SOS were tested to assure conformance with various performance parameters. In addition, before SOS could go into production, the contract required SOS to produce a first article. Generally, the quality control standards for the first article sample flare were more stringent than for flares tested for quality control during production. Relevant testing requirements will be dis *354 cussed in connection with plaintiffs specific allegations.
On June 13, 1985, SOS submitted six claims to the contracting officer (“CO”) seeking equitable adjustments to the contract. The claims were certified on November 14, 1985 in accordance with 41 U.S.C. § 605 (c)(1) and the contract’s disputes clause. The CO denied the claims in their entirety on September 19, 1986. SOS filed its complaint here on November 3, 1986.
In Count I of the complaint, SOS alleges that defendant improperly disapproved the use of paper in lieu of film for the required quality control measure of radiographically x-raying the M206 flares before they are shipped, and that this disapproval constituted a constructive change in contract requirements. In Count II, SOS alleges that the Government changed its interpretation of radiographic examination specifications to include first fire flakes as unacceptable “foreign material” in the flare and that this also constituted a constructive change. Counts III — V allege defective specifications. Count III alleges that the TDP was defective in that flares manufactured in strict compliance with the package did not pass certain environmental testing requirements specified in MIL-F-63107A(AR). SOS contends that the process of oven-drying flares which it employed in an attempt to prevent environmental test failures was therefore beyond contract requirements. Count IV alleges that flares made in conformance with the TDP could not pass static tests. In Count V, SOS claims that defects in the TDP caused additional costs in meeting dynamic testing requirements. Count VI is a claim for delay and inefficiency damages which SOS alleges were the result of the defective TDP. Finally, Count VII seeks claim preparation costs and consulting fees that resulted from alleged constructive changes and defective specifications.
A. Count I — Failure of the Army to Approve SOS’s Non-film Radiographic Technique.
1. Factual background and contract provisions.
Paragraphs E.3 and E.4 of the contract incorporate by reference Defense Acquisition Regulation (“DAR”) §§ 7-103.5(a) and (d), and 7-103.24 (1984). Generally, these regulations assign to SOS the responsibility for inspecting the M206 flares. The contract also incorporates military specification MIL-F-63107A(AR) by reference. Two provisions of MIL-F-63107A(AR) relating to radiographic (x-ray) examination of the M206 flares are pertinent:
3.4 Radiographic examination. Radiographic equipment procedures and evaluation shall be in accordance with MIL-STD-453. Radiographic personnel shall be qualified in accordance with MIL-STD-410. Equipment and procedures will be submitted for approval to the Government (see 6.3). Flare samples shall not exhibit any indications of loose, deformed or missing components, foreign material, or defects within the flare pellet i.e., cracks, voids or discontinuities. Minimum optical density of each radio-graph in the area being inspected shall not be less than 1.25 and shall be within a density range that will permit proper identification of defects.
4.5.2 Radiographic examination. Following each environmental test (first article only), and prior to functional testing, the flare samples shall be examined in accordance with MIL-STD-453 procedure. Two exposures shall be made of each flare, each forming a 90 degree angle with the other and with the longitudinal axis of the flare. Examination of the radiograph shall be made to determine compliance with the applicable requirement (see 3.4). Any flare deemed unacceptable shall be cause for lot rejection.
MIL-STD-453, referenced in the above specifications, provides in relevant part:
4.3.1 Film. Production radiographs shall be made on safety film____ The requirements of this standard are based on radiographic film. Production radio-graphs on photographic paper or nonfilm methods shall be correlated with. film produced in accordance with this standard.
*355 5.3 Nonfilm radiographic techniques. The use of nonfilm radiographic techniques is permitted, provided the method used is sufficiently sensitive to resolve the required quality level. However, pri- or approval must be obtained from the contracting agency on the detailed inspection and evaluation procedure.
Following contract award, by letter dated April 30, 1982, SOS requested permission to use paper in lieu of film for the radio-graphic examination of the M206 flares and requested that use of paper be one of the items for discussion at the post-award conference scheduled for May 10, 1982. Plaintiff wrote:
Specification MIL-F-63107A requires x-ray of acceptance samples in accordance with MIL-STD-453. SOS performs this operation using paper in lieu of film. On other contracts specific approval was required by DCAS/QA 3 to use paper. Permission is hereby requested.
Defendant concedes that the paper radio-graphic procedures proposed by SOS are encompassed by the language of 1T 5.3 of MIL-STD-453, “nonfilm radiographic techniques.”
At the post-award conference, DCAS quality assurance specialists expressed concern that the paper would deteriorate in storage and that images were less clear on paper than on film. The parties agreed that SOS would submit its test methods and procedures for use of paper radiograph techniques to the Quality Assurance Office at Picatinny Arsenal by May 17, 1982, and that it would submit its formal request to use paper instead of film by June 4,1982 to the Quality Assurance Office at Rock Island Arsenal, Illinois. SOS also was to submit a written procedure for the use of film, in the event that the paper method was not approved.
On June 9, 1982, SOS submitted a radio-graphic inspection procedure to the Rock Island Arsenal. Defendant contends that this submission was not a formal request to use paper and was not in accordance with the agreement made at the post-award conference because it did not contain a sample paper radiograph, was not explained by a cover letter, and did not contain a formal request to use paper radio-graphs. Plaintiff argues that neither MIL-STD-453 nor the agreement reached by the parties at the post-award conference required submission of a sample radiograph. In any event, as plaintiff points out, by letter dated September 16, 1982, plaintiff submitted to the Picatinny Arsenal a written procedure for the use of radiographic film and included with that submission x-ray samples of both film and paper.
Marvin Elmowitz, an electronics engineer at the U.S. Army Armament, Munitions, and Chemical Command, Product Assurance Directorate (“PAD”), in Dover, New Jersey, was responsible for technically evaluating SOS’s design for radiographic test equipment. He obtained the assistance of Emett Barnes, a physicist in PAD, to evaluate SOS’s submission. Barnes is a principal reviewer of radiographic specifications and contractor proposals for radio-graphic equipment and procedures for PAD. Although Elmowitz was responsible for deciding whether SOS would be allowed to use paper in place of film radiographs, it was Barnes who reviewed and evaluated SOS’s submissions for ultimate recommendation to Elmowitz.
Testifying for defendant, Barnes stated that plaintiff’s September 16, 1982 submission included samples of both paper and film radiographs, but only included a written procedure for the use of film radio-graphs. Barnes testified that because he was given a sample film radiograph and a procedure for film, he assumed that SOS was requesting the approval of its film procedure only. He stated that he could have telephoned Elmowitz to inquire about the missing procedure for paper, but never did. For his review of SOS’s submission, therefore, Barnes only had the sample paper radiograph with no accompanying procedure.
*356 In evaluating the submission overall, Barnes admitted that he concentrated primarily on the film radiograph to determine whether it conformed to MIL-STD-453. In evaluating the particular paper radio-graphs, he “didn’t do much of anything, I just didn’t like the idea that they wanted to use paper, in fact, I didn’t know that it was paper, but I wanted to preclude them from using paper if that was the case.” Regarding film, Barnes determined that there was a problem with the penetrameter 4 selection for the film, and that the film did not meet the necessary optical density requirements. After his review, Barnes gave Elmowitz a handwritten recommendation suggesting that SOS improve certain aspects of its film procedure, and that SOS not be permitted to use paper. He stated at trial that he made the recommendation regarding paper because his “experience with paper was not good,” and that he did not base the recommendation on his examination of the paper radiograph.
Barnes’ poor experience with paper did not involve an actual contract or contractor. Rather, Barnes had participated in a study which had compared film and paper. The study involved Kodak paper. According to Barnes, Kodak had asked ARRADCOM to test a new x-ray paper. Barnes stated that “we did a fairly extensive study of it and we tested it alongside standard x-rays, ... and found that it was good for certain types of applications, but it was a general purpose type of product.” Barnes stated that the sensitivity and resolution was not as good as conventional x-ray film and that the paper could not achieve the same sensitivity as film. In its procedure, plaintiff stated that the paper it would use is “Film-type Industrial 600,” which Barnes stated is a type of Kodak paper. Barnes stated that he did most of the work related to this study himself. When asked if there was any paper that he would have approved for flares at that time, Barnes stated, “No, not to my knowledge.”
In 1989 Barnes reviewed SOS’s paper procedure. He stated at trial that based on the 1989 review, if he had reviewed the prócedure in 1982, he still would have rejected SOS’s request to use paper. He stated that he conducted a penetrameter analysis and found that the penetrameter requirement of the specification was met. Barnes did not elaborate on why he found SOS’s paper procedure unacceptable in 1989, 5 although he did note that the procedure failed to address paper storage and handling or image fading. Barnes instead testified generally as to why paper was inferior to film. He stated that film gives a greater optical density range, which provides greater clarity in reading radio-graphs. He also stated that paper radio-graphs have more glare than film and are therefore difficult to read, that paper radio-graphs stick together easily, making storage difficult, and that paper radiographs fade quickly.
Harriet Beard, a radiograph inspector who has been employed by SOS for 22 years, 18 as a radiologist, has used paper to radiograph flares. She stated that she used to use paper “all the time” at SOS. She stated that she never had difficulty reading the paper radiographs. Nor did she ever remember the Defense Contract Administrative Services (“DCAS”) quality control inspectors ever having difficulty reading them. She stated further that she never had difficulty with glare or with the radiographs sticking together. She acknowledged that handling the paper is very *357 critical, but stated that SOS has specific procedures to be followed, and she and her co-workers were trained to follow them. Beard does not recall DCAS inspectors or anyone else ever requesting to review radiographs which had been placed into storage.
The Army disapproved SOS’s radiographic procedure for reasons expressed in DRDAR-QA Form 337 (“Evaluation of Acceptance Inspection Equipment Designs”), dated October 18, 1982: (1) “Radiograph paper or a print made from a radiograph is not an acceptable medium for radiographic inspection of [the M206 flare]”; and (2) “Radiograph film furnished does not meet the 1.25 minimum optical density requirement____ Measured densities are 1.10 and lower.” Elmowitz prepared this form based on Barnes’ recommendations. After SOS’s subsequent submissions, the Army approved its radiographic procedures for film.
2. Discussion.
As noted above, MIL-STD-453 115.3 states that if a contractor elects to use nonfilm radiographic techniques to evaluate flares, the following two conditions must be fulfilled: (1) the method used must be sufficiently sensitive to achieve the required quality level, and (2) prior approval must be obtained from the contracting agency on the detailed inspection and evaluation procedure. The Government had a right to insist on compliance with MIL-STD-453. See Maxwell Dynamometer Co. v. United States, 181 Ct.Cl. 607, 628 , 386 F.2d 855, 868 (1967); H.L.C. & Assocs. Constr. Co. v. United States, 176 Gt.Cl. 285, 306, 367 F.2d 586, 598 (1966). It must exercise its discretion reasonably, however. See W.G. Cornell Co. of Wash., D.C. v. United States, 179 Ct.Cl. 651, 672 , 376 F.2d 299, 313 (1967) (citing Fox Valley Eng’g, Inc. v. United States, 151 Ct.Cl. 228, 236 (1260)). The Government’s defense to Count I rests on its contention that paper is an unacceptable medium for radiographing flares on this contract and that it therefore properly denied plaintiff’s request.
It is plain that Barnes did not give SOS’s request to use paper any real consideration. Barnes, further, did not attempt to conceal his predisposition against paper radiographs in general, stating that there was no paper procedure that he would have approved. For all intents and purposes, the portion of MIL-STD-453 which provided for nonfilm radiograph techniques did not apply to paper on this contract. The Government therefore can hardly be found to have exercised its discretion fairly and reasonably. There was a de facto bar on the use of paper radiographs, and this bar constructively changed the contract.
Before plaintiff can recover, however, it must establish that, had the Government considered SOS’s paper procedure, it would have complied with MIL-STD-453 115.3. In this regard, Harriet Beard’s testimony that SOS has successfully used paper radiographs for flare contracts in the past and that she has never had any difficulty, either reading them or handling them, persuades the court that plaintiff has made an initial showing that SOS’s paper procedure complied with MIL-STD-453.
While Barnes testified that paper is less desirable than film, there was no evidence that paper in general, or plaintiff’s paper in particular, could not be effectively used. It may not have been as good as film, but the court accepts Beard’s testimony that it was good enough. Barnes’ general aversion to paper led him to conclude that there was no procedure he would have accepted. 6 That attitude is inconsistent with defendant’s TDP, which plainly implies that paper can be successfully used for radiography. The court cannot accept Barnes’ generalized dislike as a rebuttal to plaintiff’s prima facie showing that its paper procedure complied with MIL-STD-453. It is disingenuous for the Government to allow paper, and then, in essence, *358 refuse to consider any paper radiographs submitted for approval. Plaintiff has therefore made a sufficient showing that its procedure complied with MIL-STD-453, and that it is entitled to the difference between the cost of using paper and the cost of using film.
3. Damages.
Plaintiff prepared its bid on the M206 contract based upon a paper radiograph procedure. According to plaintiff, shooting, processing and developing film radio-graphs require more labor than processing and developing paper radiographs. It alleges that using film radiography required approximately five more hours of labor per M206 inspection lot than its paper procedure. In addition, plaintiff alleges it suffered increased costs using film because flares, which are manufactured at its Mint Canyon facility, had to be transported to its other facility in Placerita to be radio-graphed. The Mint Canyon facility, according to plaintiff, was only equipped for Industrial 600 paper radiographs. Plaintiff alleges that the total labor cost differential for using film as opposed to paper was $23,221 and that the total cost for transporting the M206 flares to Placerita for radiographing was $104,212.
Beard testified regarding the time it takes to radiograph flares using paper as well as with film. She stated that for a variety of reasons it takes longer to work with film than with paper. As to exposure time, Beard testified that film requires one minute, using a Paxitron, whereas paper requires eight to 10 seconds. As to developing time, she testified that with film it takes approximately 12 minutes from the time the unexposed negative enters the machine until it can be read, whereas paper takes 10 seconds.
Beard stated that to radiograph 90 flares, which was typical on the M206 contract, 7 would require 18 exposures. This is because 10 flares can be radiographed at one time, and that each flare is radio-graphed twice, once in the “zero degree” position, and once in the “90 degree” position. With paper, using two people, these 18 exposures would take 15 to 20 minutes, from beginning to end — shooting, processing, reading, and paperwork. With film, again using two people, Beard testified three hours “is the least you could get by with.” Beard testified that the people working on radiography must be at least Level II technicians.
Emett Barnes testified for defendant regarding the time it takes to expose and develop flares with paper as opposed to film. He agreed that it would require one minute to expose film. As to developing, he stated that with most modern processors it requires approximately 4.5 to 12 minutes to process, or develop, the exposed film. He noted, however, that once the first film is put into the machine, the next film can be put in the machine within the next 30 seconds to 60 seconds, depending on the particular machine used. Assuming a delay of one minute for feeding exposed film into the machine and a development time of 12 minutes per film, he opined that nine exposures could be developed in 20 minutes. Barnes further testified that paper would require additional time because of the special care required to handle it.
Beard also testified regarding the transportation of the flares from Mint Canyon to SOS’s Placerita facility. Based on her own driving experience, she stated that the trip required 35 minutes driving time each way. She stated that the flares were transported by SOS drivers, who came to the Mint Canyon facility “sevén out of ten” days, and that loading of the flares required five minutes. Safety regulations dictate that two people had to be in the trucks transporting the flares. Dean Johnson is an employee of the Defense Contract Management Command (“DCMC”) who had been assigned to SOS while SOS was working on the M206 contract. DCMC is responsible for monitoring compliance with quality standards and with specific contractual obligations. Johnson testified that it only *359 required two to three minutes to load the flares.
Masaru Aratani, a Certified Public Accountant with the firm of Price Water-house, prepared a calculation of SOS’s damages with respect to its various claims. He testified for plaintiff, and his work papers are part of the record. One of his primary tasks was to determine the hourly labor rates that should be applied to the work tasks for which SOS is claiming damages. He determined the following labor rates for tasks related to this count: Labor rate for x-ray technicians, $9.68/hr.; labor rate for truck drivers, $6.45. Defendant does not dispute these rates. In addition, Aratani determined an hourly supervision and support (“S & S”) rate, general and administrative expenses (“G & A”) 8 , and overhead associated with these rates. Defendant does not dispute these as they are applied to Count I damages. Rather, defendant attacks the base number of excess hours alleged by plaintiff in its damages claim under Count I.
In its Post-Trial Brief, defendant sets forth, based on its review of the testimony, the number of excess hours plaintiff has established. Based on the testimony of Beard and "Barnes, it allows 1.3 hours per lot of additional x-ray time incurred by SOS because it used film instead of paper. Damages, as calculated by Aratani and as reflected in plaintiff’s Proposed Findings of Fact, are calculated based on five additional hours per lot. Plaintiff has not established five additional hours, however. Beard testified that the entire radiographic inspection procedure for film for a lot of 90 flares (18 exposures) would require three hours, and with paper would only require 15 to 20 minutes. This translates to a difference of two hours and 40 minutes. The court has difficulties even with this figure, however.
Beard's testimony that three hours is required with film is based on her experience. However, it is not clear that Beard’s estimate of three hours is consistent with her other testimony. Beard also testified that film requires 12 minutes per exposure, and that 18 exposures are required per lot. This translates to 216 minutes, or three hours and 36 minutes, per lot, for development time only. With the additional one minute per film for exposure time, a total of three hours and 54 minutes, exclusive of reading and paper work, would be required with film. Barnes testified, however, that if exposures were fed into the machine at one minute intervals, nine exposures could be developed in 20 minutes, and therefore 18 could be done in 40 minutes, instead of 216 minutes, a saving of 176 minutes. This would reduce the three hour and 54 minute figure by 176 minutes, and the total would therefore be one hour and 58 minutes. It is not clear whether SOS used a machine that could be fed film continuously, nor is it clear whether, if this were possible, Beard based her estimate of three hours in part on this procedure. In sum, plaintiff’s testimony does not coherently establish a stable figure on which to base damages.
Because defendant concedes that 1.3 additional hours were required to use film, and because the parties are in agreement as to this amount, the court will award damages based on that figure. At the conceded hourly rate of $9.68, with an estimated 136 lots radiographed, 9 plaintiff is *360 entitled to $1,711.42 in damages for additional labor involved in using film. With respect to transportation costs, defendant allows 35 minutes per trip (70 minutes per roundtrip) and the five minutes loading and unloading time to which Beard testified. For 136 lots, given two drivers at an hourly rate of $6.45, as developed by Aratani, plaintiff is entitled to $2,193 for transportation costs resulting from use of film instead of paper.
S & S for x-ray labor amounts to $14.08 and for transportation $322.26. G & A and overhead expenses amount to $4,093.15 for x-ray dollars and $5,964.44 for transportation. Plaintiffs request for 10 percent profit is reasonable. Plaintiff’s total damages for Count I are $15,727.70.
B. Count II — Alleged Constructive Change Related to Radiographic Inspection Requirements.
1. Factual background and contract provisions.
As a quality control measure, SOS was required under Paragraph 3.4 of MIL-F-63107A(AR) to radiograph, in accordance with MIL-STD-453, sample flares selected by DCAS personnel. SOS followed the test procedure of paragraph 4.5.2 of MIL-F-63107A(AR):
4.5.2 Radiographic Examination____ Two exposures shall be made of each flare, each forming a 90 degree angle with the other and with the longitudinal axis of the flare. Examination of the radiograph shall be made to determine compliance with the applicable requirement (see 3.4). Any flare deemed unacceptable shall be cause for lot rejection.
Paragraph 3.4 of MIL-F-63107A(AR) states that “[f]lare samples shall not exhibit any indications of loose, deformed or missing components, foreign material, or defects within the flare pellet i.e., cracks, voids or discontinuities.” MIL-F-63107A(AR) does not define “foreign material.” Paragraphs 4.4.2.1 through 4.4.2.9 of MIL-F-63107A(AR) contain charts la-belled “Classification of Defects and Tests.” These charts list 50 separate defects under the category, “Major,” and one defect in the category, “Critical.” First fire flakes or specks are not included in either defect category. 10
In Count II, plaintiff contends that the Army changed its radiographic inspection requirements beginning in December 1983 to classify first fire flakes as “foreign material.” According to SOS, first fire flakes are not a defect under the contract because they are not enumerated as such in the list óf 51 defects (major and minor) found in Paragraphs 4.4.2.1 through 4.4.2.9 of MIL-F-63107A(AR). Furthermore, SOS maintains that under traditional principles of contract interpretation, the Army’s acceptance of flares that contained first fire flakes before December 1983 reflects concurrence in SOS’s interpretation that first fire flakes are not defects. Defendant counters that its position has always been that it is not possible to ascertain with any degree of certainty that a particular indication of a defect represents first fire flakes and that, even if it were possible to detect first fire flakes with any accuracy, first fire flakes, if found on the body of the flare pellet, are foreign material.
2. Discussion.
The central issue in Count II is whether first fire flakes are “foreign material.” 11 This is a primarily a matter of contract interpretation. First fire flakes on the pellet body are not listed explicitly as a defect among the more than 50 defects *361 listed in Paragraphs 4.4.2.1 through 4.4.2.9 of MIL-F-63107A(AR). Paragraph 4.4.2.6 does, however, note as a major defect “[f]irst fire comp, above flush with respect to grooves,” but it is plan from the testimony that there are two different phenomenon. First fire flakes are a random slight splatter on the body of the pellet, while the listed defect appears to be concerned with overfilling a groove. In this regard, it is noteworthy that Richard Ames, presently Project Leader of the decoy group at ARRADCOM, testified that the Army has never done a study to determine the effect of first fire flakes on the performance of the M206 flares.
However, if the Army before December 1983 concurred in SOS’s interpretation that first fire flakes did not constitute a defect, the court would grant substantial weight to the parties’ contemporaneous construction. See Jet Forwarding, Inc. v. United States, 194 Ct.Cl. 343, 345-46 , 437 F.2d 987, 989 (1971); Embassy Moving & Storage Co. v. United States, 191 Ct.Cl. 537, 543-44 , 424 F.2d 602, 606 (1970); Maxwell Dynamometer Co., 181 Ct.Cl. at 630 , 386 F.2d at 870 .
The evidence suggests that prior to December 1983 the Army ignored first fire flakes on the pellet body. It is undisputed that between May and December 1983, SOS did not reject any flare lots because of the presence of first fire flakes even though, as Beard testified, she found a total of 79 first fire flakes on flares sampled from those lots. Further, DCAS inspectors were present during her examination and approved her review determination. It is difficult to believe that DCAS inspectors missed every one of the 79 indications which Beard testified were first fire flakes. Further, even if DCAS inspectors were not able to determine conclusively that these indications were first fire flakes, this does not explain why DCAS inspectors, if in fact they then believed that first fire flakes were a defect, did not note the indications as potential defects or make some further attempt to identify them. 12 The court is left to conclude that DCAS inspectors must have seen and ignored potential first fire flakes before December 1983.
Defendant’s suggestion that inspectors in the early stages of the contract were not performing their inspection tasks properly is not plausible. The court concludes that DCAS inspectors prior to December 1983 concurred with SOS that first fire flakes were not “foreign material” and thereafter changed their interpretation.
Given that the contract does not explicitly list first fire flakes as a defect and that DCAS inspectors before December 1983 apparently concurred with SOS’s interpretation of the contract to that effect, the court concludes that the Government constructively changed the contract in December 1983 when it began to treat first fire flakes as “foreign material.”
3. Damages.
In its Proposed Findings of Fact, plaintiff alleges that in order to assure that there were no first fire flakes on its flares, it employed four assembly personnel to brush the flare pellets after first fire had been applied. It also asserts that it employed two inspectors on its assembly line to inspect the flares after brushing to make sure that all first fire flakes were removed. Aratani, in his calculation of damages, assumes four inspectors, rather than two, and accounts for an additional category of labor — Production Technicians. He calculates damages using four full time Production Technicians. Therefore, a total of 12 full time employees were needed, according to Aratani, in the operation of brushing first fire flakes. Aratani’s calculations are based on these procedures being in place for six months.
Per Aratani, plaintiff’s cost for these procedures was $271,186. This includes S & S, G & A and overhead costs at rates which defendant does not dispute. SOS also contends that Project Manager time for investigation into the first fire problem imposed a cost of $29,722, and that Project Engineer time investigating the problem imposed costs totalling $45,026.
*362 In its Post-Trial brief, defendant does not dispute Aratani’s determination that four persons were employed in each of the three categories — Production Technicians, Assembly Personnel, and Inspectors. Defendant argues, however, that there was no testimony regarding the hours spent by any of these employees in remedying problems with first fire flakes, and that plaintiff therefore has not proven any damages.
There was no documentary evidence as to the number of employees involved, nor as to the amount of time spent by them. The testimony is also sparse. With respect to brushing the flares, Cabaret testified that, during a six month period (until the first fire problem was solved by reversing the intermediate and first fire) every flare produced by SOS was inspected and brushed. Cabaret, however, did not testify as to how many employees were involved or what portion of their time was involved. Aratani could not consult payroll or other records for this information because the individual time cards did not identify what function had been performed. As noted, Aratani calculated damages assuming 12 employees working full time for six months. His figures were based in part upon discussions with Mike Murphy, Director of Operations at Mint Canyon. According to Aratani, Murphy told him that there were four Production Technicians, four Inspectors, and four Assembly Workers involved in brushing first fire flakes and that the procedure was employed for six months. The court notes that Aratani did not testify that Murphy stated each was working full time during those six months. Reynolds and Winn testified that there were “usually” three work stations and two shifts a day. Winn testified that when the operation was at full force, there were three workers and one material handler, and inspectors were “around.” When asked if they had other functions, Winn stated that they “stayed pretty close to that.” The beginning and ending periods of the work are also very imprecise. The number of shifts fluctuated between one and three.
As to the research and investigation costs (Project Manager and Project Engineer), the only direct testimony was from Dennis Talle, Manager of Contracts and Programs at SOS during the M206 contract. Talle testified that Barney Downing, a Quality Engineer, William Cornell, the Program Manager, and Earl Miner, a Project Engineer, and a Manufacturing Engineer, whose name he could not recall, spent 100 percent of their time investigating the first fire problem during the period when SOS was investigating it. Talle did not state how long that period was, but referred to it as “months.” There was evidence that for essentially two months four individuals worked full time on the issue. Aratani calculated damages based on one Project Engineer and one Project Manager for approximately five months and three months respectively. As to how he determined the number of hours these employees worked, Aratani explained: “Basically, the hours were calculated by determining the incurred hours for the respective category, deducting the amount of the labor category bid, and allocating the difference over various aspects of the claim.” He did not elaborate.
Aratani's explanation of how he arrived at hours is incomprehensible. While it is possible that Aratani’s work papers, which are part of the record, may substantiate the hours he used, his work papers are handwritten and difficult to read, and they are virtually impossible to follow without a better explanation than he provided. Aratani’s handwritten work papers cannot by themselves form the evidentiary support for this part of plaintiff’s claim.
Damages do not have to be proven with absolute certainty. It is sufficient if plaintiff furnishes a reasonable basis for computation, even if it is approximate. F.H. McGraw & Co. v. United States, 131 Ct.Cl. 501, 510 , 130 F.Supp. 394, 399 (1955). Nevertheless, the evidence has to be sufficient to enable the court to make a reasonable approximation. Specialty Assembly & Packing Co. v. United States, 174 Ct.Cl. 153, 184 , 355 F.2d 554, 572 (1966). Plaintiff retains the “essential burden of establishing the fundamental facts of liability, causation, and resultant injury.” Wunderlich *363 Contracting Co. v. United States, 173 Ct.Cl. 180, 199 , 351 F.2d 956 , 968 (1965). Plaintiff urges throughout its damages presentation that if the court is unpersuaded by the overall calculation of damages, it take a jury verdict approach. The court has used this approach in limited circumstances if there is clear proof of injury, if there is no better way to calculate damages, and if there is some method for making a reasonable approximation. See Delco Elecs. Corp. v. United States, 17 Cl.Ct. 302, 323 (1989). The court declines to adopt such a methodology here. Although there was clearly injury, there was also a better way to both calculate and present damages. In view of what was presented, the best approach in the court’s view is to utilize only those elements of damage which are certain. Although this penalizes plaintiff, the penalty is attributable to a lack of bookkeeping and weak testimony.
The court will allow recovery for one shift of three Technicians, one Material Handler, and no Inspectors, for a six month period. The court also allows one Project Engineer and one Project Manager for two months. The recovery for Technicians is $79,272; for the engineer and manager it is $36,952. With profit the total is $127,847.
C. Count III — Breach of Implied Warranty of Specification Related to Oven Drying.
1. Factual background and contract provisions.
Count III relates to problems SOS experienced during the environmental testing phase of first article tests. The flares were subjected to five types of conditions— humidity, transport vibration, aircraft vibration, temperature-altitude, and shock. These tests are described in Paragraphs 3.3.1-3.3.5 of MIL-F-63107A(AR). Paragraph 3.3 states that following these environmental tests, the “flares shall comply with the visual inspection criteria of paragraph 4.4.2.6 and shall be x-rayed for defects.”
SOS submitted its first article sample flares for environmental testing in July 1982. Testing was performed by Reliant Testing Laboratory, Inc. Humidity testing occurred on July 23, 1982. Although the test results were considered satisfactory, after approximately 24 hours in storage, squibs were ejected from the pellet casing. Plaintiff was notified and testing was stopped. During aircraft vibration testing on July 27, 1982 an end cap dislodged from the flare housing. Again SOS was notified, and all further testing was stopped. Temperature-altitude testing was conducted on August 3, 1982. After fifteen hours it was noted that the squibs had ejected from the flare housing. In addition, one end cap had ejected. Once again, SOS was notified and the testing was stopped.
By letter dated August 20, 1982, the CO wrote SOS, stating that the aircraft vibration test resulted in one defect and that the temperature-altitude test resulted in two defects. The letter did not specify the defects, 13 but wrote that the “tests indicated that the drying operation used on the M206 Flare Assemblies may be inadequate to prevent outgassing.” The letter also stated:
When your firm establishes a modified drying process that is considered, through preliminary tests, to be a superi- or production operation in removing excess volatiles, and in order to verify existing data, an additional 30 units are required to undergo Aircraft Vibration and Temperature-Altitude Tests____ Failure to furnish additional units may result in rejection of the First Article Environmental Test Sample.
SOS responded to the Government’s letter by letter dated September 20,1982. By this time SOS had already produced 30 additional flares using an additional drying process and those 30 flares had already passed the temperature-altitude test. They later passed the other environmental tests. The September 20 letter stated that SOS disagreed with “virtually the entire content of [defendant’s original] letter.” Specifically, SOS wrote that it believed the defects occurred during the humidity and temperature altitude portions of the environmental tests (rather than aircraft vibra *364 tion). It also stated that there were no excessive volatiles, that a check of the volatiles on the basic composition indicated less than half the amount considered “generally acceptable,” and that the “[specification does not control the volatile content of the compositions.” With respect to the flares which had failed the environmental tests, SOS wrote that every requirement of the TDP had been met and that government inspectors could so attest. SOS stated that it believed the outgassing problem to be inherent in the TDP; that the oven drying step it had added was an additional step not required by the TDP and was not within the scope of the contract.
The oven drying process which SOS adopted involved drying the flares without endcaps, but fully assembled and in packaging for shipment, at 190 degrees fahrenheit for eight hours. According to the September 20 letter, SOS adopted this drying process because it believed that the out-gassing problem it was experiencing was the same outgassing problem as it had experienced on the previous MJU-7 contract.
Cabaret testified regarding the outgassing problem with the earlier MJU-7 contract. He stated that those flares were packaged in cardboard containers without their endcaps, and then heat sealed in a plastic bag that was put around the outside of the containers. Outgassing occurred during storage and was evidenced by the plastic containers “swelling up like balloons.” According to Cabaret, this took six to 18 months to develop. The Air Force ran tests on the gas causing the swelling, and it was found to be hydrogen. Water and magnesium will react to produce hydrogen, and the Air Force determined that the hydrogen gas was being produced by moisture which was trapped in the cardboard packaging material and reacting with the magnesium in the flares. The problem was solved, according to Cabaret, by drying the flares in their packaging material before they were heat sealed. This drove out the moisture in the cardboard. It is undisputed that after SOS implemented a similar eight hour, 190 degrees fahrenheit oven drying of the fully assembled and packaged M206 flares, no more flares were rejected because of out-gassing.
The Army’s reaction to SOS’s September 20 letter is expressed in an internal document dated October 5, 1982. In it, the Army concurred with SOS that the problems experienced during the environmental tests were caused by outgassing. Otherwise, the Army objected to the contents of SOS’s letter. It did not agree that the problem was inherent in the TDP. It agreed that the flares submitted to the environmental testing were acceptable to the resident government inspectors as meeting all dimensional requirements of the TDP but stated that because the environmental tests are described fully in the contract documents, a contractor “should be able to conduct, in their facility, tests of equal or greater severity regarding high temperature exposure (the temperature phase where outgassing occurs most rapidly)____ [S]OS did not adequately test their preliminary flare samples at extreme temperature to prove the adequacy of their drying process.” The Army also noted that SOS uses a “hydro-shocking” as its method of removing MEK, one of the solvents used in the flare composition mix and stated: “[b]y introducing the large quantity of water in the mix, they risk leaving a significant amount of water in the mix that can cause outgassing.....” In conclusion, the Army recommended that SOS’s request for reimbursement of costs for the additional oven-drying process be denied:
The cost that SOS wants to receive for including the additional drying cycle in the production process should not be allowed. It is a cost that any producer should absorb if their drying cycle proves to be inferior. The outgassing problem SOS contends is inherent to the TDP is a totally inadequate explanation. As advisory note 3 in drawing 9311625 forewarns, “Residual amounts of solvents prior to taping may affect performance requirements of MIL-F-63107(AR).”
(Emphasis in original.) The court notes that drawing 9311625 is entitled “Pellet *365 Assembly” and describes the application into the pellet groove of intermediate mix and first fire, as well as the taping of the flare with aluminum tape. The drawing does not address the flare pellet composition, either as to ingredients or procedure.
It appears that the Army was aware, even before SOS’s experience during the first article phase of the M206 contract, of a problem known generally as outgassing, though there is some confusion as to the various types. The Army was also aware that oven drying of some form might be necessary to prevent outgassing. As discussed above, SOS had experienced out-gassing on its MJU-7 contract, and out-gassing was not unique to SOS. For example, a January 24, 1979 Department of the Army letter addressed to the Commander at ARRADCOM discusses outgassing which occurred during environmental tests of M206 flares produced by Hycor, the first M206 contractor. According to that document, during temperature-altitude tests the flares produced gas “due to inadequate curing of the pellet.” During 10 day humidity tests, “[p]ost-test visual inspection revealed a continuation of pellet out-gassing,” and after a 28 day humidity test “some out-gassing was still evident.” In a letter from Hycor to the Army dated September 22, 1980, Hycor summarizes a technical meeting called by ARRADCOM on the M206 flare production program. It describes a problem caused by MEK being driven out of the pellet at high temperature, and states that, according to ARRADCOM, the solution was to bake the flare pellets for 16 hours at 95 degrees fahrenheit to drive off the MEK.
Tracor, another M206 contractor, also experienced outgassing during environmental tests. A document dated February 16, 1983 entitled “First Article Lot Test Report” describes Tracor’s outgassing problem. During humidity tests, squibs indicated some extrusion from the pellets, and in 12 instances they were completely ejected. During the temperature-altitude portion of the test, 25 flares had completely ejected end caps, two of which also ejected the pellet itself, and three pellets had partially ejected end caps. The document also stated:
It appears that other flare manufacturers had experienced this same problem and had eliminated it with a high temperature heat cure of the flare pellet wrapped in the aluminum foil and/or after sealing in case____ This temperature cure was 180 [degrees F] to 200 [degrees F] for a minimum of six (6) hours.
William Cornell, SOS’s project engineering manager on the M206 contract, testified that the “other contractors” referred to here had to include SOS.
There was no direct evidence that Thiokol, the contractor which operated the Government-owned ammunitions plant at Longhorn and first produced M206 flares, experienced outgassing problems. However, it is noteworthy that Thiokol employed two 16 hour oven-drying processes, one of the mix composition at 160 degrees, and one of the pellet after application of first fire and intermediate mix at 200 degrees. Wayne Sommerford, the Program Manager for infrared flares at Thiokol’s Longhorn division, testified that the purpose of the 160 degree drying was to remove MEK, and the purpose of the 200 degree drying after application of first fire and intermediate mix was to remove acetone. The court notes that Drawing No. 9311625 directs drying the pellet for five minutes at ambient temperature after application of first fire and intermediate mix. 14
Not only does it appear from the record that outgassing was a problem which the Army had confronted before, it also appears that the Army anticipated that out-gassing might pose a problem with SOS’s M206 contract. An Army disposition form dated February 24, 1982, regarding a pre *366 award survey visit to SOS, discusses the Army’s concern that using hydroshocking to dispel MEK leaves a large amount of residual water in the mix which can react with magnesium to produce hydrogen gas. The Army appeared to be concerned with the type of outgassing which SOS had experienced on the MJU-7 contract: “This reaction, outgassing, is a concern ... since instances have been reported where the shipping containers were bulging due to the internal gas pressure.” An internal ARRADCOM memorandum from G.R. Baskerville, Chief, Artillery & Mortar Branch, dated two days earlier and addressed to the Commander at ARRADCOM, also discusses outgassing:
Based upon a Pre Award Survey conducted at Space Ordnance Systems, it is requested that your office investigate the need to require a maximum allowable moisture level in the pellet mix drawing. As discussed at the aforementioned survey, reports from depots concerning “out-gassing” of containers were experienced in the past____
If your office believes a max level is justified from engineering tests, ... DRDAR-QAT-M should be contacted in order to incorporate the findings in Sections 3, 4, and 5 of MIL-F-63107A.
The Army was still concerned with out-gassing at the time of SOS’s Post Award Quality Assurance meeting in May 1982. The minutes from that meeting state under “Action Item: # 1” that SOS agreed to a no-charge moisture analysis on its initial production of flares and state that “SOS may be asked to extend drying time thru Contract Modification.” An internal memorandum from J. Digiovannantonio, Acting Chief, Artillery & Mortar Branch, to the Commander at ARRADCOM, also dated May 1982 discusses outgassing more broadly than the MJU-7 type outgassing:
A total volatile requirement of the pellet composition of 0.10% maximum is necessary to prevent outgassing (formation of Hydrogen gas), which results in the bulging of metal shipping containers, popping end caps off from the flares, a fire and/or explosion hazard, and a possible reduction in the flare’s ability to achieve required intensities to decoy missiles.
SOS’s TDP did not have a maximum moisture content for the flare composition mix.
It is therefore clear that the Army was concerned with outgassing on the M206 contract even before SOS’s first article environmental tests. The court notes, however, that there is some inconsistency and apparent confusion on the part of both the Army and SOS regarding outgassing. It appears that there are two types. The type experienced by SOS on the MJU-7 contract is caused by moisture in packaging material reacting with magnesium in the flares. It is manifested by swelling of the packaging and takes six to 18 months to develop. It is cured by drying the packing material. There is no indication in the record that SOS experienced this type of outgassing on the M206 contract. The type of outgassing SOS experienced on the M206 contract occurs during environmental tests over a matter of hours and is manifested by ejection of end caps and squibs. As to its cause, there is no consensus. Although there were two different types of outgassing with apparently different causes, neither SOS nor the Army appeared to make such a distinction when addressing the outgassing problem SOS experienced during first article. Only a few days after it had been informed of the problems encountered during environmental changes, SOS concluded that the outgassing it was experiencing was the same as that it had experienced on the MJU-7 contract despite seemingly obvious differences in the character of the two types of outgassing. When SOS employed the same drying process it had employed on the MJU-7 contract, the Army did not object even though that drying process was meant to control moisture in the flare packaging, and the Army believed that outgassing in this case was caused by solvents in the flare pellet, in first fire, or in the intermediate mix.
2. Discussion.
Count III is one of three counts (along with Counts IV and V) in which SOS alleges a breach of an implied warranty of specifications. SOS contends that the TDP is a *367 design specification and that to recover for breach of an implied warranty it need only establish that 1) it was bound by the contract to perform in accordance with the TDP, 2) it manufactured its flares in strict conformance with that TDP, and 3) the flares so manufactured did not perform successfully. See United States v. Spearin, 248 U.S. 132 , 39 S.Ct. 59 , 63 L.Ed. 166 (1918). Citing R.E.D.M. Corp. v. United States, 192 Ct.Cl. 891, 898 , 428 F.2d 1304, 1308 (1970), plaintiff urges that it is not necessary to establish the specific defect which caused the flares to fail performance requirements. Defendant concedes that plaintiffs claim can be maintained if the TDP is a design specification, but argues that it is not. The question of whether the TDP is a design or performance specification resurfaces with respect to Counts IV and V. The common aspects of this issue will be discussed here.
It is well-settled that when the Government contracts for materials to be made in accordance with its own specifications, there is an implied warranty that following the specifications will lead to a satisfactory product. Spearin, 248 U.S. at 132 , 39 S.Ct. at 59 ; Hol-Gar Mfg. Corp. v. United States, 175 Ct.Cl. 518, 525 , 360 F.2d 634, 638 (1966). If the specifications are defective the plaintiff is entitled to recover the amount expended trying to comply with them. Bethlehem Corp. v. United States, 199 Ct.Cl. 247, 253 , 462 F.2d 1400, 1403 (1972); Hol-Gar, 175 Ct.Cl. at 525 , 360 F.2d at 638 . A distinction is drawn between specifications, however, in terms of whether they are design in nature or whether they merely require certain performance. J.L. Simmons v. United States, 188 Ct.Cl. 684 , 412 F.2d 1360, 1362 (1969), discusses the distinction between design and performance specifications:
The specifications [at issue] ... are a classic example of “design specifications,” and not “performance specifications” ____ [T]hese specifications ... set forth in precise detail the materials to be employed and the manner in which the work was to be performed, and [the contractor] was not privileged to. deviate therefrom, but was required to follow them like a roadmap. In contrast, typical “performance” type specifications set forth an objective or standard to be achieved, and the successful bidder is expected to exercise his ingenuity in achieving that objective or standard of performance, selecting the means and assuming a corresponding responsibility for that selection.
Accord Stuyvesant Dredging Co. v. United States, 834 F.2d 1576, 1582 (Fed.Cir.1987). The relevant question is whether it was expected that the contractor would use its own expertise to determine how the performance level required by the TDP would be achieved. See Stuyvesant Dredging, 834 F.2d at 1582 (performance specifications “leave it to the contractor to determine how to achieve [the results to be obtained]”).
This court and its predecessor have recognized that some specifications can have the characteristics of both performance standards on the one hand, and composition or manufacturing requirements on the other. See, e.g., Bethlehem, 199 Ct.Cl. at 254 , 462 F.2d at 1404 ; Norwood Mfg., Inc. v. United States, 21 Cl.Ct. 300 (1990); Haehn Management Co. v. United States, 15 Cl.Ct. 50, 56 (1988). For the reasons set out below, it is apparent that the TDP has elements of both a performance standard and of a design blueprint.
The TDP is a detailed blueprint for the pellet's physical construction. The composition of the flare is also strictly circumscribed in terms of constituent elements and mix-range tolerance. Making the pellet is only generally described, however, and plaintiff clearly had flexibility in mixing, shaping, drying and choice of solvents. The TDP also has a performance element, however, in that there was “an objective or standard of performance” which the M206 flares were required to meet. The TDP therefore requires certain performance and leaves manufacturing largely up to the contractor, but gives great detail about materials and assembly.
Plaintiff introduced into evidence several of the drawings and parts lists for the *368 M206 flare. An example will be helpful in exhibiting the level of detail specified in the TDP. Drawing No. 9342955 is entitled “Pellet Assembly.” It describes the application of first fire and intermediate charge into the flare grooves, as well as the wrapping of the pellet with aluminum tape. Some of the materials specified in this drawing are: first fire, intermediate charge, butyl acetate, acetone, and aluminum tape. Each of these materials has a part or specification number assigned to it. Butyl acetate, for example, has a specification number, TT-B-838a. Specification TT-B-838 is five pages in length. First fire is part number 9311655. It has a separate sheet describing its own constituent parts. Each of those constituents in turn has an associated specification or part number. The court is satisfied that the specification sets forth in “precise detail” the materials to be used.
A design specification, however, requires that the TDP specify in “precise detail” the procedures to be used. The court acknowledges that the TDP does address some procedures. It does so, however, only on some drawings, and then only in the most general sense. Some examples will illustrate. Drawing No. 9344023, entitled “Cap, End Assembly,” states in the notes accompanying it, “Coat O-ring 9344021 generously with grease ... prior to assembly,” and, “There shall be no grease in shear pin holes.” The note accompanying drawing 9311630, entitled “Pin Shear,” states, “May be cut to length at next assembly.” Drawing No. 9342952, entitled “Piston, Cushion Assembly,” states “Piston Cushion shall be centered so as not to block piston hole with adhesive side against piston.” Occasionally more detail is specified. Drawing No. 9344024, entitled “Flare, Aircraft: Countermeasure, M206 (Alternate)” gives an “Advisory Assembly Procedure” in note 3 accompanying the drawing:
NOTES:—
******
3 — ADVISORY ASSEMBLY PROCEDURE
A — INSTALL CUSHION PISTON ASSEMBLY-9342952
B — INSTALL PELLET ASSEMBLY-9342955 OR 9347036
C — INSTALL FELT SPACER-9311631 (NOTE 4)
D — INSTALL ALUMINUM END TAPE — 9327200 WITH ADHESIVE SIDE AGAINST SPACER.
E — INSTALL END CAP ASSEMBLY-9344023 INTO CASE.
F-INSERT SHEAR PINS-9311630 COATED WITH
SEALANT, SILICONE, RTV, TYPE I, SPEC MIL-A-46106 OR SEALANT, SILICONE, RTV, TYPE I, SPEC MIL-A-46146. (NOTE 6)
Even this drawing, however, provides no direction on how to perform any of the steps listed here. The TDP relies on the contractor’s experience and knowhow to fill in the production details. It cannot be said that there is a “road map” to follow, as the TDP does not address all the procedures that would be necessary to produce the M206 flare. 15
The TDP is therefore a design specification as to materials and most aspects of assembly, and it is a performance specification with respect to procedures. Plaintiff’s reliance on Spearin, 248 U.S. at 132 , 39 S.Ct. at 59 , for the assertion that SOS need not identify the precise defect in the TDP is misplaced because this is not fully a design specification. This court has said that where, as here, a defective specification is alleged and the specification is a mixed design and. performance type, the defect must be found in the design portion of the specification. Johns Manville Corp. v. United States, 13 Cl.Ct. 72 (1987), vacated on other grounds, 855 F.2d 1571 (Fed.Cir.1988).
The court concludes that because the TDP partakes of elements of both design and performance, plaintiff must either isolate the defective element of the TDP, or must affirmatively demonstrate that it did not cause the failures. In other words, to *369 eliminate the potential causation factors introduced by manufacturing steps left to its own ingenuity, plaintiff has to isolate those processes or compositions mandated by the Government as the only possible causes of failure. Each count, therefore, has to be separately viewed to consider whether plaintiff has created a plausible link between the failure and the design portions of the TDP.
With respect to Count III, plaintiff refers to Drawing No. 9342955 to support its defective specification argument. The relevant portion is set forth below:
NOTES:-
* * * * * *
3— ASSEMBLY INSTRUCTIONS:
A — PILL LONGITUDINAL [sic] GROOVES (4) AND END GROOVES WITH INTERMEDIATE CHARGE-9311655 BY COMBINING WITH SUFFICIENT BUTYL ACETATE SPEC TT-B-838 OR ACETONE, SPEC 0-A-51 TO MAKE A LIGHT PASTE. GROOVES TO BE APPROXIMATELY HALF FULL. DRY AT AMBIENT TEMPERATURE FOR 5 MINUTES MINIMUM.
B — APPLY A BEAD OF FIRST FIRE —9311656 APPROXIMATELY .125 WIDE OVER THE SURFACE OF INTERMEDIATE CHARGE — 9311655. DRY ASSEMBLY ONE HOUR MINIMUM AT 250 [+ OR -] 10 [DEGREES F] WHEN BUTYL ACETATE IS USED IN FIRST FIRE AND AT AMBIENT WHEN ACETONE IS USED IN FIRST FIRE.
# * * * * *
4— ADVISORY:
RESIDUAL AMOUNTS OF SOLVENTS PRIOR TO TAPING MAY AFFECT PERFORMANCE REQUIREMENTS OF MIL-F-63107(AR).
Specifically, plaintiff points to this drawing in response to the Government’s argument that the TDP did not address drying requirements. Defendant, noting that the drawing specifies only minimum drying times, argues that the drawing leaves the contractor free to dry for a longer time and at a greater temperature as necessary. According to the Government, it should have been clear that plaintiff was to use its expertise and ingenuity in determining a drying process sufficient to assure removal of all solvents. Defendant also suggests that the advisory note should have been a warning to SOS that a procedure to remove residual solvents was necessary.
Drawing No. 9342955 does not help plaintiff's position. This count relates to an oven drying process employed after flares are fully assembled and in their packaging. Drawing No. 9342955, however, involves application of first fire and intermediate mix into the groove of the naked pellet and before the flare is assembled. It is important to remember, however, that the drying process at issue in this count is one employed to remove solvents (and hence prevent outgassing). The drying procedures specified in Drawing No. 9342955, however, do not appear to relate to solvent removal in the body of the pellet.
The drying times specified in the drawing are of almost negligible intensity and duration compared to the one plaintiff (and indeed others) employed to cure outgassing. The evidence suggests that the Government was not so ignorant of drying necessary for the pellet as to specify ambient drying for only a matter of minutes. The court concludes that the dryings specified in Drawing No. 9342955 were merely intended to assure that first fire and intermediate fire had dried, and not as a means to remove residual solvents in the pellet composition.
Outgassing was not a wholly understood phenomenon. It is also true that there was no minimum moisture content requirement in the contract. Still, it is clear that the flare-making community was aware of out-gassing and was aware that a high temperature cure for several hours was necessary to eliminate it. Cabaret in fact testified that SOS employed an eight hour, 180 degree oven drying of the flare pellet composition for which it is not claiming compensation. This suggests that SOS anticipated some drying steps not specified or alluded to in the TDP. It is also worth noting that *370 SOS instituted the very same process on the MJU-7 contract for which it is now claiming compensation. SOS clearly was not ignorant of the problem, and, given the sparse procedural direction in the TDP, it is not unreasonable to conclude that SOS should have anticipated that an oven drying process was necessary.
In sum, plaintiff has failed to identify any defect in the design portion of the TDP. The TDP was not defective with respect to the drying process. Plaintiff was given discretion in implementing drying procedures by the failure of the TDP to address that known need. Plaintiff is not entitled to recover on this count.
D. Count IV — Breach of Implied Warranty of Specification Related to Static Testing.
1. Factual background and contract provisions.
In this count, SOS alleges that the TDP is defective because flares manufactured in accordance with it continually failed to meet static output requirements. 16 As with Count III, it urges that the TDP is a design specification and that it therefore need not identify the defect or defects in the TDP. There is sufficient latitude in the way SOS could manufacture pellets that, as discussed above, plaintiff must point to the particular part of the TDP to which it attributes its difficulties. 17 Plaintiff devoted substantial time at trial presenting evidence in two broad areas as to why the TDP was defective. First, it alleges that the Government should not have qualified ground magnesium as an alternative fuel to atomized magnesium because it results in unpredictable performance. Second, plaintiff alleges that the TDP was defecfive because it failed to specify certain static testing procedures without which the static test parameters were unattainable.
Originally, the contract did not permit use of ground magnesium. On September 28, 1981, Armament Material Readiness Command Configuration Control Board Directive No. AID 2001 (the “Directive”) was issued with respect to the M206 TDP. It addressed Drawing No. 9311654, the M206 pellet composition drawing. The purpose of the Directive was to add several new alternative M206 flare compositions to the TDP, including a formulation utilizing ground magnesium manufactured in accordance with MIL-M-382C(AR). Prior to the Directive, the Army had considered only atomized magnesium as suitable for M206 flares. The Directive stated that all the new M206 flare compositions, including the ground magnesium composition, had met the M206 TDP requirements during testing by defendant and Thiokol.
It is apparent from the record that the Army was anxious to qualify ground magnesium because of a perceived shortage of atomized magnesium. A December 1979 correspondence from Major General Light to Major General Eicher, referring to the “critical shortage” of atomized magnesium, states that it is “imperative that the test programs ... be accelerated and monitored closely in order to meet urgent U.S. requirements for decoy flares____” Another internal Army correspondence from December 1979 reflects similar concern. It again refers to the “critical shortage” of atomized magnesium and continues: “[o]ne solution to the problem would be the prompt qualification of the fine ground magnesium as an alternate. Work in this *371 direction is ready to begin on a crash basis both at this command and LHAAP [Longhorn]....”
The ground magnesium testing performed at Longhorn, referred to in the Directive, involved two phases, both of which were part of the Alternate Fuel Study (“AFS”) program. The AFS was being conducted under ARRADCOM direction in Dover, New Jersey. The first phase of the AFS was conducted at ARRADCOM, beginning in 1979. The purpose of the first phase was to test ground magnesium samples, which ARRADCOM received from various suppliers, in order to find a blend of ground magnesium suitable for full-size production and capable of production in large quantities.
Patricia Famell, an ARRADCOM chemist, tested ground magnesium samples using 40 millimeter infrared flare test vehicles. (The 40 mm test vehicles are less than one-third the size and weight of M206 flares.) Farnell ultimately recommended BS-2 ground magnesium, manufactured by Reade Manufacturing Company. Static output results of 40 mm test vehicles are only an indication of actual flare performance, but based on the 40 mm tests, ARRADCOM recommended that six formulations of BS-2 be tested in full-size flares.
Full size M206 pellets were tested in February 1981 at Longhorn. Tests were performed on variations of the six different formulations of BS-2 ground magnesium identified by ARRADCOM as possible alternatives. Each variation was designated an AF (Alternate Fuel) number.
These tests involved three stages. Initially, small scale mixes were produced of each of the six formulations, and 10 pellets from each of the six formulations were pressed. Half were finished with a four inch groove configuration and half with a “full groove” configuration. These pellets were tested for bum times, action times, and output, and the results were compared to the MIL-F-63107 requirements.
Based on these preliminary tests, the formulations of the various compositions were adjusted to maximize static output performance. Tests were also performed to verify that no problems existed with breakup during ballistic testing. The most favorable formulations were selected for full-size production, final qualification testing.
Finally, tests were performed on production-sized M206 flares made with certain formulation mixes and blended on ThiokoPs production equipment. These tests are the “Final Qualification Tests.” During this testing phase, all test pellets were made using Thiokol’s then-current production equipment. Thiokol used a mixer known as a Simpson Mull-Mixer. Regulations defining pyrotechnic mixing procedures prohibit manual scrapedown. Consequently, the wheel of the Simpson Mull-Mixer was removed to prevent material buildup. This left the mixing ability of the Simpson Mull-Mixer dependent upon the ability of the mixer’s plows to deflect and fold the material.
The first ground magnesium mix tested during the Final Qualification Tests was designated as AF-18. It is important to note that Thiokol had mixing problems with AF-18 although defendant contends that these problems can be explained by removal of the mixer’s wheel. AF-18 failed several of the static performance parameters. Specifically, AF-18 pellets failed the requirement of 1.25 seconds minimum time above 8800 watts per steradian. They also failed the requirement of 2.3 seconds minimum time above 900 watts per steradian. Finally, the AF-18 pellets exhibited an average total bum time of 2.47 seconds. AF-18 eventually was disqualified.
Thiokol prepared a second ground magnesium mix, AF-21. This mix was made with an increased amount of solvent to prevent mixing problems. This batch, however, still did not mix properly, and large amounts of teflon were left undissolved. Pellets made with AF-21 exhibited a very fast burning rate and fell well below acceptance static testing limits. Specifically, flares made with AF-21 failed to stay above 900 watts per steradian for a minimum of 2.3 seconds. AF-21 pellets also failed to remain above 1800 watts per steradian for a minimum of 2.3 seconds. AF-21 pellets exhibited a total bum time of *372 only 2.255 seconds. While there is no requirement for total burn time, the total burn time for AF-21 pellets was less than the “time-above” requirements for 900 and 1800 watts per steradian. The AF-21 pellets therefore could not meet those TDP requirements.
Following the AF-21 test, Thiokol concluded that the failure of that mix to meet M206 burn duration requirements was possibly due to one of two factors. The first explanation was small particle size of the magnesium powder due to variation within the drum. A pellet composed of smaller particles of magnesium will burn more quickly because of greater total pellet surface area. The AF-21 magnesium had been taken from the bottom of the magnesium drum, where the average magnesium particle was approximately 17 microns. The average particle size of magnesium taken from the top of the magnesium drum was 28 microns. A second possible reason for the failure was that, because of poor mixing action, the magnesium was not uniformly coated with the binder, resulting in fast and erratic burning.
In order to determine the effect of particle size upon static output, a third mix, AF-22, was processed using magnesium from the bottom of the drum. This mix was compared to a preliminary lab mix, AF-8, which was composed of magnesium taken from the top of the same drum. Results indicated that there was a slight decrease in burn time in the AF-22 mix, but not enough to explain the inadequate bum time in the AF-21 mix. Thiokol interpreted these results as indicating that particle size did not have an appreciable effect upon bum time.
Thiokol prepared a fourth ground magnesium blend AF-23. For that blend, Thiokol concentrated not on particle size but on mixing. A special request was made to put the wheel back on the Simpson Mull-Mixer for this mix. After discussions regarding the waiver of safety restriction, permission was granted to put the wheel back on the mull-mixer. The mix was manufactured using a new shipment of 190 pounds of BS-2 magnesium from Reade.
Thiokol divided the ground magnesium barrel used for AF-23 into nine equal parts and placed each part into separate blend buckets. AF-23 was manufactured with equal amounts of magnesium from each blend bucket. During mixing, the wheel of the Simpson Mull-Mixer functioned satisfactorily for approximately five minutes. After five minutes, the mix tended to form a lump that would not dissipate, and the mix began to slide in the bowl, making further mixing ineffective. Also, as with the other Thiokol blends, mix AF-23 would not pour from the blender using remote control equipment because it was too thick. It had to be manually removed from the blender using wooden paddles.
The AF-23 composition was pressed into flares and passed all static test requirements. It is plaintiff’s position that AF-23 was an anomalous mix. Dr. Alan Snelson, a scientific advisor who has been employed with ITT Research Institute in Chicago for 29 years, testified for plaintiff as an expert in the physical properties of the M206 flare, including magnesium, ground and atomized. Snelson has a PhD in physical chemistry. According to Snelson, AF-23 met the specifications “very handily.” He also stated that, with respect to the “integral,” which measures the total energy contained in the flare, he had not seen those kind of BS-2 results in any of the documents he had seen. When asked if this mix was an aberration, he replied: “It is difficult to predict what flares are going to do in the way of output____ The number has turned out to be almost amazingly good. That is about as much as I can say.” Snelson also commented on the magnesium that went into AF-23. He stated that there is no indication that Thiokol did any mixing of the particles, and that the particles were of a very consistent size throughout the nine parts into which the drum was separated. In the previous barrels, there had been segregation of particle size.
The results of the AFS are collected in a document entitled the M206 Flare Alternate Fuel Study, dated October 1981. One of the conclusions reached was that:
*373 [t]he formulation utilizing the Reade BS-2 Magnesium did not process satisfactorily in the wheelless mix mullers utilized at Longhorn. However, once a satisfactory mix was finally obtained, the flare composition resulted in acceptable end item performance. Although the Reade BS-2 Magnesium is not immediately usable at Longhorn with existing mixers and mixing procedures, it may be suitable for use by other manufacturers with different mixing equipment and procedures not currently available at Longhorn. (For example, manual scrapedown of mixers is not permitted at Longhorn but may be used by the Private Sector.)
The AFS Final Report also concluded that ground magnesium would be satisfactory for M206 flare production and that it would be listed as an alternate on applicable drawings. The parties do not dispute that defendant based its decision to qualify ground magnesium for the M206 TDP based on the results of the AFS.
Plaintiff contends that using ground magnesium in flares will inevitably lead to erratic and unpredictable static outputs of M206 flares. It alleges that the Army qualified ground magnesium without adequate study and did so because it was anxious to develop an alternative to atomized magnesium.
In addition to problems allegedly inherent in the use of ground magnesium, plaintiff contends that it should have been given information on three aspects of testing procedures which affect static performance measurement: test blocks, test hooks, and reflection within the test tunnel. A test block holds secure the electric match which ignites the flare during static output testing. It is undisputed that the Government was aware that test blocks had been used at Longhorn during development of the M206 static output requirements. Thiokol had run tests on the effect of test blocks on static performance measurements and had determined that test blocks can improve “rise time” performance by approximately 65 percent. The Government asserts that there is no evidence that “rise time” performance is increased consistently by 65 percent when test blocks are used, though it concedes that it was aware that rise time” is improved when test blocks are used.
The Government nevertheless contends that use of test blocks was left up to the ingenuity and expertise of the contractor. However, on June 1, 1982, Frank Klosowski, an ARRADCOM employee of the defendant, recommended that the M206 TDP be amended to add the test block procedure. Test block procedures were also specified in the original M206 contracts awarded to Bermite and Tracor, both awarded after the contract with plaintiff, and the test block procedure was added through contract modification to the Thiokol contract. The test block procedure drafted by Klosowski is now included as a permanent part of the M206 TDP. Revisions B and C of MIL-F-63107, dated May 11, 1983, and January 6, 1986, respectively, now include that test block procedure at If 45.4.2.
Plaintiff also contends that the method specified in the M206 TDP for hooking flares to the test stand led to cracking of the flares, causing them to prematurely fall from the test stands. When flares fell from the stand, they were obscured from the radiometer’s measurement, which ultimately led to readings indicating static output failures. MILr-F-63107A(AR) ¶ 4.5.42 describes the method for attaching the flares to the test stands:
The non-ignition end of the pellet will be prepared for mounting by drilling a Vs" diameter hole, %" deep. Hardware with No. 10 coarse wooden thread, %" thread length on one end and opposite end suitable for mounting to the test stand shall be carefully threaded into the Vs" drilled hole. Prior to assembly, screw threads shall be coated with RTV-106 [glue] or an approved substitute to reduce friction and possible ignition.
Cabaret testified that when SOS would attach hooks to the flares using this procedure, the flares would crack and fall prematurely from the stand. According to Cabaret, SOS eventually solved the problem by requesting permission to use a *374 smaller hook, a larger hole, and a different glue.
A Value Engineering Change Proposal (“VECP”) submitted by Thiokol in June 1983 describes a similar problem. It states, under II15, entitled “Need for Change,” that “[t]he minor diameter of a standard No. 10 screw metal thread is about 0.134 inches. Using the current Vs (0.125 inches) drill diameter, the pellet must expand to some degree to accommodate the screw. This may result in longitudinal cracking with subsequent early drop off on the test stand.” After describing tests it had conducted to find a solution to this problem, Thiokol proposed that.paragraph 4.5.4.2 be changed to require a %4" diameter hole instead of a Vs" hole and suggested RTV-106, Devcon five minute epoxy instead of the epoxy suggested in 4.5.4.2. The VECP was granted in July 1983. According to Cabaret, the change described by this VECP “is exactly what we did.” Although the VECP related to extruded, not pressed flares, there was no suggestion that the shaping had any effect on the need for a larger diameter hole.
Defendant concedes that during tests of plaintiff’s flares at Longhorn, Thiokol attempted to apply test screws to SOS flares and that six of these flares subsequently revealed cracks. To avoid cracking plaintiff’s flares, Thiokol drilled a larger hole before inserting the screw.
The third aspect of static testing which plaintiff alleges should have been addressed by the TDP is the effect of reflection characteristics in a test tunnel on static output measurements. Specifically, plaintiff contends that the M206 static output requirements were developed at Longhorn’s tunnel, where unique reflection characteristics inflated static output. The result was that the static output requirements were unnecessarily difficult to meet elsewhere. SOS’s tunnel did not have Longhorn’s output-enhancing reflectivity. The issue was resolved during the “round robin” tests conducted in March 1983, which are discussed below.
Cabaret testified that SOS had static output problems from the very beginning, and that after SOS had failed two first article tests for static output failure, it was decided to have “round robin” tests to determine whether SOS’s static output failures were due to testing anomalies resulting from differences between SOS’s testing facility and the Longhorn test tunnel. According to Cabaret, the decision to have these round robin tests was a mutual one between the Army and SOS. Gene Venable testified regarding the round robin tests. Although Venable had “done everything [he] could” and had “great confidence in [SOS’s] infrared measurements,” flares were still failing at SOS. Whether SOS was making a good flare could not be determined until the Army was satisfied that unfavorable results were not due to disparities in testing facilities.
SOS was allowed to select flares from its best lot for the round robin tests. According to Cabaret, SOS flares from the same lot tested at Longhorn were then tested at SOS, and comparisons were made between the two measurements. Longhorn flares were also tested at SOS.
SOS’s third first article test was conducted at Longhorn on March 8-10 using Longhorn test procedures. SOS failed this first article. Based on results obtained, the Army determined that SOS flares exhibited an energy level 15 percent below those of Longhorn. Another first article test was conducted on March 22, 1983, this time at SOS, again as part of the round robin tests. Longhorn flares were also tested at SOS. Based on both the March 8-10 and the March 22 tests, the Army concluded that the peak static output values for both the Longhorn and SOS flares were 20.9 percent greater when tested at Longhorn.
Plaintiff was given an upward adjustment of 20.9 percent on the March 22 first article test. With that correction, plaintiff passed first article. Plaintiff was subsequently allowed a 20 percent correction factor for its flares during production at its own facility.
It is undisputed that in early 1984, Thiokol, under the Government’s direction, conducted tests to develop standard static test procedures and facilities, and, as a result, *375 the test facilities at Longhorn were changed to arrive at a standard setup and procedure. These changes reduced the reflective energy in Longhorn’s tunnels by 21.4 percent. Because the static output requirements for the M206 TDP were derived at Longhorn, the TDP was overstated by 21.4 percent. On May 21, 1984, by Notice of Revision A4Q 2041, the M206 TDP was amended to reduce static performance requirements by 21.4 percent and to remove certain static output requirements associated with the “narrow band” of infrared energy (900 watts/steradian). These changes were never incorporated into plaintiff’s contract because, according to defendant, they were not necessary in light of SOS’s 20 percent correction factor.
Plaintiff continued to have static output difficulties even after it passed first article and went into production with the 20 percent correction factor. It is stipulated that the following production lots failed static output testing: Lot 10 of Interfix 001 in July 1983; Lot 027 of Interfix 001 in September 1983; Lot 032 of Interfix 001 in September 1983; Lot 039 of Interfix 001 in October 1983; Lot 045 of Interfix 001 in October 1983; Lot 003 of Interfix 002 in November 1983; Lot 021 of Interfix 002 in January 1984; Lot 014 of Interfix 002 in February 1984. Plaintiff and defendant disagree on the proper characterization of the problems which caused static output failures. Generally, plaintiff characterizes the failures as resulting from short bum time. Defendant characterizes the failures as infrared intensity problems. Almost all of the lots discussed above failed because flares within the lots could not bum long enough to meet certain “time above” requirements. 18
Following the failure of Lot 014 of Inter-fix 002 in February 1984, plaintiff changed in several respects the way it manufactured flares. As of May 1984, SOS began to apply first fire into the grooves before applying intermediate mix and also began to fill the flare grooves completely with intermediate mix, rather than only filling them half way. 19 Plaintiff also began to prepare its flares using percentages of magnesium at the low end of the tolerance allowed by the TDP. Defendant agrees that by decreasing the percentage of magnesium in proportion to the flare pellet’s other constituents, bum time would be increased, but that decreasing by too great a percentage results in problems reaching other static output requirements such as rise time and peak output. Despite these changes, it is undisputed that time above continued to be a problem, as did rise time to 7500 w/s, and that plaintiff experienced 19 other lot failures, each of 10,000 flares, after Lot 014 of interfix 002.
These changes were not the only attempts plaintiff made to eliminate static output problems. It pretested blends of pellet composition, pressing approximately six to 10 M206 flares from each blend and static testing them to determine blend burn parameters. Only if the blend burned adequately was it processed into finished flares. Blends which were inadequate for fast or slow burn times were set aside and stored later for “cross-blending” — that is, combining blends of opposite characteristics to produce an acceptable blend.
Plaintiff also instituted a process known as screening. When a lot failed static output testing, SOS would test the individual blends that were used in making the flares for that lot, removing blends which exhibited poor static output performance. The lot would then be retested for static output requirements. Twice as many flares were then sampled for retests.
Plaintiff also undertook engineering investigations to determine the cause of the static output problems. These investigations included altering the formulas for basic composition, first fire, and intermediate mix, as well as varying the length of the flare grooves and the amount of first fire and intermediate mix in the grooves.
*376 Defendant does not dispute that SOS undertook the measures described above to improve static output performance. It urges, however, that such measures were required by the contract. With respect to pretesting, defendant argues that such procedures are standard practice among manufacturers of infrared flares. It also points to MIL-I-45208A (made applicable to SOS’s contract by Paragraph E.9), which provides:
Contractor Responsibilities. The contractor shall provide and maintain an inspection system which will assure that all supplies and services submitted to the Government for acceptance conform to contract requirements____ The contractor shall perform or have performed the inspections and tests required to substantiate product conformance to drawing, specifications and contract requirements____
Defendant also points to this MIL specification to support its contention that cross-blending was required by the contract. Defendant states that cross-blending is also a standard practice among manufacturers of infrared flares.
With respect to screening procedures, defendant argues these were required by MIL-I-45208A, If 3.7, which provides: “The contractor shall establish and maintain an effective and positive system for controlling nonconforming material, including procedures for the identification, segregation, presentation and disposition of reworked or repaired supplies.” According to defendant, this section also required SOS to perform its engineering studies. Defendant’s response begs the question, however, of whether these steps were occasioned, as plaintiff alleges, because of the use of ground magnesium and the confused testing procedures and facilities.
It is not clear whether the remedial measures, individually or together, ever solved the static output problems completely. Plaintiff continued to use ground magnesium, and it does not contend that there is some point after which static output no longer was a problem.
Defendant argues that SOS’s problems were the result of several factors unrelated to the TDP. Generally, defendant argues that SOS had poor quality control, which was aggravated by personnel turnover. Defendant also avers that the use of hydroshocking to remove MEK contributed to SOS’s problems because the introduction of water with magnesium causes magnesium to oxidize, which reduces energy output. Additionally, defendant points out that as of April 6, 1989 SOS had produced and shipped 1,162,520 flares using the TDP it alleges is defective.
SOS makes one allegation in Count IV unrelated to the TDP. It argues that it was delayed in completion of first article by 120 days because Marvin Elmowitz, an engineer employed by ARRADCOM, withheld approval of SOS’s inspection equipment and procedures until plaintiff made numerous changes, none of which were required by the contract. SOS contends that it would have been ready for first article testing by June 14, 1982. SOS was allowed to and did undergo the environmental portions of the first article test in July and August of 1982.
Gene Venable, a Research Chemist for ARRADCOM, advised Elmowitz on SOS’s test equipment and procedures, and testified for defendant. He stated that SOS did initially have difficulty regarding certain aspects of testing, including operating the testing equipment. For example, he stated that in taking static output measurements SOS was using an inappropriate calibration distance between the “black body” 20 and the radiometer and that using an improper distance would result in inaccurate readings. In addition, Venable stated that SOS was not keeping proper logs of data obtained during their daily calibrations and that this made it impossible for SOS to keep track of its calibration equipment. He stated that malfunctioning of the calibration equipment could therefore go unnoticed. According to Venable, SOS was also *377 using formulas which were not appropriate to the type of output measurements it was taking. He stated that when SOS testing personnel attempted to explain the calculations they were making, he noticed that they were using formulas for extended sources when point source calculations were called for. Venable stated that Jay Reynolds admitted, when he (Reynolds) was performing the calculations, he “got up about halfway through and said that he really didn’t know what he was doing.” According to Venable, the calculations SOS was using would lead to erroneous data.
Venable testified that all corrections were made “within a couple of months.” There was no testimony from plaintiff that its calibration methods were in fact correct and proper before these adjustments. Venable was a straightforward and credible witness. There was no indication that his criticisms of SOS were contrived or unduly harsh. The court rejects plaintiff’s allegation that defendant unreasonably delayed completion of its first article by unreasonably insisting on correct testing procedures.
Plaintiff claims that it is entitled to a total of $3,272,079 in damages as a result of added costs incurred in coping with the defective TDP and as a result of the delay suffered because allegedly defendant unreasonably withheld approval of test procedures.
2. Discussion.
The court held in connection with Count III that the TDP for the M206 flare is both a performance and a design specification. To recover on its claim, plaintiff must demonstrate that the alleged defect relates to the design portion of the specification. Plaintiff has introduced evidence that the TDP was defective because it improperly qualified ground magnesium as an acceptable fuel and because the testing procedures described in the TDP would lead to artificially low static output readings.
The AFS was the culmination of three years of research and testing. In that time, the Army was able to produce only one acceptable blend. No attempts were made to determine what precisely accounted for AF-23’s success or to assure that the performance of that blend could be repeated consistently with different barrels of ground magnesium. 21
In this regard, plaintiff's expert on the M206 flare components, stressed repeatedly that the type of reaction involved in the M206 flare is, in most respects unknown, that predicting how a particular mix of flare composition will perform is very difficult, and that it is very difficult to repeat test results. He further stated:
I think the situation with respect to the M206 flare is that one is trying to obtain the maximum amount of energy out of the flare in a very carefully defined way. It appears that trying to meet those specifications is not easy. It appears that if you tailored the flare to very easily meet a particular criteria, in let us say the amount of energy above 8800 [w/s], then you may penalize yourself in the ease with which you can attain some other parameters maybe the time at 1800 or 900. It appears that you are walking a tightrope in trying to get the performance out of this particular material.
I believe looking at all of the data that I have seen that maybe it is asking too much, that is the performance specification, for this particular material____
Snelson was a believable witness. He was obviously not attuned to the legal issues and simply answered candidly. The court accepts his testimony which supports the conclusion that the Government’s qualification of ground magnesium was improper.
The court agrees with plaintiff that the Government should not have qualified ground magnesium. Not only was the AFS of dubious reliability and thorough *378 ness, but the results were inconclusive at best. At worst, it showed that virtually no blend was capable of producing the required results. The Army never really understood what it did to produce one anomalous, small, non-production set of flares that met those requirements. The court is persuaded that even Longhorn could not have duplicated those results with any consistency, and that it was only the perceived urgency of the need for an alternative fuel that caused these apparently serendipitous results to be blithely adopted. The Government did not fully address the mixing problem. The AFS merely stated that AF-23 “may be suitable for use by other manufacturers with different mixing equipment and procedures.” This suggests that the study of ground magnesium was cursory, incomplete, and targeted for a result.
SOS’s only discretion within the TDP was to vary the percentages 22 of the flare’s composition, but then only within certain tolerances. Cabaret testified, and the court accepts, that SOS tried to make flares to the limit of every tolerance but still could not get the flares to burn acceptably in a consistent manner.
Defendant argues that SOS’s static output problems were caused in part by manufacturing procedures which the TDP leaves up to the contractor. Specifically, defendant points to SOS’s use of hydroshocking to dispel MEK during mixing. 23 The court disagrees. First, SOS’s static output problems continued long after SOS had instituted its additional drying steps to alleviate outgassing. Second, Dr. Snelson performed a study at SOS’s facility in which he compared flares made using the hydroshocking process with flares made using a hexane shocking procedure. Based on that study, he stated that “there does not seem to be any evidence that the water-shock procedure is in any way degrading the magnesium in the flare to any significant degree.” Finally, if defendant were concerned with hydroshocking, it should have denied plaintiff’s request to use this process.
The qualification of ground magnesium as an alternative pellet fuel was a defect in the design portion of the TDP. Plaintiff reasonably relied on the TDP in preparing its bid. Using ground magnesium resulted in unnecessary expense to the plaintiff, and SOS is entitled to recover for damages which flow from this defect.
The TDP was also defective with regard to testing procedures and to the requirements for static output, drawn from Longhorn’s eclectic test setup. Plaintiff used the procedure specified in the TDP. The procedure was eventually approved by the Government. Venable testified that, after SOS’s early difficulties were eliminated, he had complete confidence in SOS’s test procedures. However, these procedures resulted in artificially low readings for three reasons — the flares fell off the test hooks; the absence of a test block led to premature triggering of the sensors; and SOS’s tunnel did not have the same reflective characteristics as the tunnel in which the output requirements were derived. It is undisputed that the TDP was revised to require test blocks, to correct for the problem of flares falling off the test hooks, and to correct output requirements to account for Longhorn’s tunnel reflectivity. Defendant contends that these are procedures with which plaintiff should have been experienced. No one could have anticipated the anomalies created by the Longhorn tunnel, however, and if the test procedures were either correct from the outset or self-evident, the Government would not have agreed to incorporate the changes to the TDP.
With respect to both the decision to qualify ground magnesium and the failure to inform bidders that the static output re *379 quirements were based on possibly unique procedures and facilities, these circumstances suggest similarities to Helene Curtis, Indus. v. United States, 160 Ct.Cl. 437 , 312 F.2d 774 (1963). The allegation there was that a specification for manufacturing a chemical disinfectant was misleading without additional information available to the Government but not shared with contractors. An excerpt from the decision shows the points of similarity:
The disinfectant was novel and had never been mass-produced; the Government had sponsored the research and knew much more about the product than the bidders did or could; it knew, in particular, that the main ingredient, chlormelamine, was a recent invention, uncertain in reaction, and requiring extreme care in handling; it also knew that the more costly process of grinding would be necessary to meet the requirements of the specification, but that in their understandable ignorance the bidders would consider simple mixing adequate; and the urgency for the disinfectant was such that potential contractors could not expend much time learning about it before bidding. In this situation the Government, possessing vital information which it was aware the bidders needed but would not have, could not properly let them flounder on their own. Although it is not a fiduciary toward its contractors, the Government — where the balance of knowledge is so clearly on its side — can no more betray a contractor into a ruinous course of action by silence than by the written or spoken word.
Id. at 444, 312 F.2d at 778 . The court went on to hold that “Specifications so susceptible of a misleading reading (or implication) subject the defendant to answer to a contractor who has actually been misled to his injury.” Id. at 445, 312 F.2d at 778 . No recovery was allowed for a follow-on contract, however, because the plaintiff should have been knowledgeable about the problems.
The lesson to be drawn from Helene Curtis is that the Government cannot launch a technical data package into the procurement process if it has reason to know that the results called for are problematic, unless it discloses the knowledge available to it concerning problems and possible solutions, or unless that information is already generally known by contractors in the field. A similar analysis was used by the Court of Claims in Ordnance Research, Inc. v. United States, 221 Ct.Cl. 641 , 609 F.2d 462 (1979). That case is factually similar to the one at bar. There, the contractor had been awarded a contract to mass produce fire bomb igniters, which used atomized magnesium. Plaintiff alleged, and the court held, that the specifications were design in nature and implicitly warranted that the igniters could be mass produced in a safe manner. Id. at 670 , 609 F.2d at 479 . The plaintiff showed that by changing the specifications, safety could be increased. And although not necessary to the result, it was able to demonstrate the source of the explosion risk. Plaintiff was allowed to recover for costs associated with explosions that occurred at a time when it was unaware of a solution to the problem. The court held that
[Specifications furnished plaintiff by the government were design specifications for a mass production of igniters. They described in detail the materials and the manufacturing processes to be used, and required compliance with [safety manuals].
When the government issues design specifications of a detailed nature, as in this case, it warrants the sufficiency and efficacy of those specifications to produce the desired product in a satisfactory manner.
Id. at 670 , 609 F.2d at 479 .
Also instructive is R.E.D.M. Corp., 192 Ct.Cl. at 891 , 428 F.2d at 1304 . The manufacturer in that case was unable to arm artillery fuses consistently. The failure rate was high. Although it was unable precisely to explain why it helped, R.E. D.M. was able to improve performance by reducing the thickness of one of the fuse components. The court allowed recovery for the additional costs.
*380 The present circumstances partake elements of all three of these cases. Here, the Government, in its eagerness, represented a procurement as ready for large-scale production when the technology had not been adequately developed. The Government wanted a fixed-price production contract when what it was really offering was, in part, a research and development project. It was misleading to hold out ground magnesium as fully suitable when the Government had reason to know success would be highly elusive. It was, at a minimum, unimaginative, and in fact unintentionally deceptive, not to inform bidders that the performance requirements were difficult to meet and were based on the peculiarities of the Longhorn test tunnel and procedures. While the present circumstances are not entirely like those of Ordnance in that manufacturing processes here were virtually uncontrolled, a critical flaw in the design portions of the TDP was the implied warranty that, whatever reasonable manufacturing processes were used, ground magnesium would be suitable.
The court therefore finds that the TDP was defective in not including procedures upon which performance requirements were based and in qualifying ground magnesium. Plaintiff is entitled to recover for any damages which it can show resulted from this defect.
3. Damages.
Plaintiffs damages claim for Count IV is segregated into discrete areas. They will be addressed individually.
a. First article testing
Plaintiff alleges that, had it not been unreasonably refused approval for its testing equipment and had it not experienced difficulties with testing, it would have finished first article testing on time and within the bid estimate. It asserts that unreasonable delay in the approval of test equipment and delay caused by the testing problems resulted in expenditures of $318,658 more than included in the bid.
In arriving at this figure, Aratani consulted an accounting record, referred to as a “Sale Order/Work Order,” to determine the number of labor hours incurred by SOS from the beginning of the contract through May 1983. Aratani testified that, according to SOS personnel, all labor effort at SOS for the M206 contract was devoted to the first article requirement. There was also testimony to that effect by Cabaret and Reynolds. With minor adjustments, Aratani determined that the labor cost through May 1983 was $108,637. He added overhead and material cost and then subtracted the amount bid for first article labor and materials of $43,750. He then added G & A to arrive at the $318,658 figure claimed.
Some important questions remain unanswered regarding Aratani’s calculations. Initially, the damages calculation does not segregate the impact of the various elements which constitute damages. Specifically, the cost of the allegedly unreasonable delay in approving test equipment is not isolated. Plaintiff is not entitled to recover for delay caused by the initial failure to approve test procedures. However, the court is left without any basis for redacting this portion of the claim. Additionally, plaintiff has not recovered on Count III, related to outgassing. These are other possible causes of delays independent of Government fault. While this is not the same type of delay claim as Count VI, plaintiff nevertheless has the burden of establishing a reasonable basis for calculating damages, and is bound by the rule that in a delay claim the claimant must segregate delay costs attributable to the Government from those independently caused. See Wunderlich Contracting Co., 173 Ct.Cl. at 199-200 , 351 F.2d at 969 ; Commerce International Co. v. United States, 167 Ct.Cl. 529, 543 , 338 F.2d 81 (1964). Plaintiff has not met this burden. In addition, plaintiff’s contention that SOS would have been within bid costs is an essential one which has not been supported. This defect is one reason total cost claims are disfavored. See WRB Corp. v. United States, 183 Ct.Cl. 409, 426 (1968); J.D. Hedin Constr. Co. v. United States, 171 Ct.Cl. 70, 86-87 , 347 F.2d 235, 246-47 (1965). The court concludes that plaintiff *381 has not provided a reasonable basis to calculate damages as to test procedures and that it is not entitled to recover.
b. Pretest procedures
Plaintiff alleges that its pretest procedures resulted in increased costs, totalling $500,491. 24 Defendant contends that plaintiff has only established $258,-158.33. Defendant does not dispute the labor rates, G & A rates, overhead rates, or S & S rates used by plaintiff in calculating damages for this claim. The difference between plaintiff’s and defendant’s computations rests in the number of labor hours involved in the pretest procedures. The dispute over labor hours required depends almost entirely on the number of flares assumed to have been subject to the pretest procedures.
Plaintiff alleges that 20,550 pellets were pretested. Plaintiff’s figure is based on 3,425 blends having been produced. This figure is taken by Aratani from SOS personnel who utilized actual blend records. This translates to a total of 1,712,500 pressed flares.
Defendant uses 16,314 as the number of pellets tested. Cabaret stated that 500 flares were produced per blend, and defendant alleges that 2,719 blends were subject to pretesting. Reynolds testified that an average of six pellets per blend were pretested. Therefore a total of 16,314 pellets were subject to the pretests, according to defendant. Defendant does not explain the *382 connection between Cabaret’s testimony that 500 flares were produced per blend and its assertion that 2,719 blends were produced.
Defendant arrives at its figure for the number of blends apparently from its assumption regarding the total number of acceptable flares produced. However, more flares were produced than were accepted. Aratani received his information, though indirectly, from actual records. The court accepts plaintiff’s figure for the number of blends produced. Using plaintiff’s figure, damages related to pretesting are as follows.
Using plaintiff’s figure for the number of blends, material costs total $81,584. Plaintiff also seeks to recover labor costs for time incurred setting up the pretest procedures. Defendant allows $9,173.91, based on 16,314 pellets tested. Using plaintiffs number of blends yields $11,-555.95. With S & S hours, the total recoverable cost is $13,814.64.
Plaintiff also claims for test technician and material handler labor time. Defendant does not dispute that one of each was required to perform a blend check. Here, however, the difference between defendant’s and plaintiff’s calculations lies not only in the number of pellets assumed tested, but also in the number of hours required to do a blend check. Plaintiff claims that it required two hours to do a blend check, relying on support by Scott Wiitila, a Test Technician for SOS. Defendant allows two hours for set up and test of the first blend of the day, but only one-half hour for “the remaining four blends.” In calculating damages, it assumes one hour per blend. Defendant points to Wiitila’s testimony. Wiitila testified that it took 1.5 hours setup time to do a blend check and that in total the blend check took two hours. There is the clear suggestion, therefore, that once a blend check has been set up, subsequent blends can be tested in only one-half hour, and the court accepts defendant’s use of one hour per blend as the more accurate estimate.
Using plaintiff’s figure for the number of blends, and assuming one hour average testing time per blend, plaintiff recovers $26,509.50 for Test Technician labor, plus $173.20 for S & S, and $16,508.50 for Material Handlers, plus $2,577.16 for S & S.
The next labor category for which plaintiff seeks recovery is driver hours transporting blends from Mint Canyon to Placerita for testing. Plaintiff bases damages on 2,228 hours. Defendant allows 935.25 hours. Aratani arrives at this figure as follows. He assumes 45 minutes each way, plus 30 minutes loading and unloading time, for a total of 120 minutes per trip. With two drivers, as required by safety regulations, the total is 240 minutes per trip. Aratani assumes the trip was made 796 times, for a total of 3,184 hours. He discounts this figure by 30 percent for scrapped blends, arriving at 2,228 hours. Defendant allows 75 minutes and two people per trip. It assumes 374 trips, rather than 796.
Defendant allows 75 minutes per trip based on Beard’s testimony that the trip from Mint Canyon to Placerita took 35 minutes. Dean Johnson testified that if all paper work were ready, picking up and loading flares would take two to three minutes. Defendant allows five. Plaintiff, in support of its figure for transportation hours, relies primarily on the testimony of Pamela Winn, an employee of SOS who has held various jobs at SOS, including senior production technician and foreman. She worked at both the Mint Canyon and Placerita facilities. Winn testified that packaging, loading, and transporting the flares from Mint Canyon to Placerita required 1.5 to 2 hours. Relying on Beard’s testimony that a one way trip from Mint Canyon to Placerita required 35 minutes, plaintiff concludes that the total time was “at least 2lh hours.” As to the total number of trips, plaintiff notes Reynolds’ testimony that at least three trips were made per week, and that for safety reasons flare pellets could not travel in the same vehicle as completed flares. Plaintiff does not explain how this justifies the assumption that a total of 796 trips were made. The court notes that, according to Beard, trips were made between Mint Canyon and Placerita seven out *383 of 10 days. The number of weeks of the contract is 159, or 1113 days; this number multiplied by 70 percent would yield 779.1 trips.
The court favors defendant’s figure for the number of trips. Reynolds testified that three trips were made per week. Over 159 weeks, this would be a total of 477 trips. However, according to Reynolds, not every one of those trips could transport flares. Defendant’s figure of 374 trips suggests roughly 2.4 trips per week. While the court is unclear how defendant arrives at its figure, it better conforms to the testimony. The court accepts defendant’s figure for the number of trips made.
Regarding the number of hours required per trip, Winn did not elaborate on why it required 1.5 to 2 hours to package and load the flares and travel one way from Mint Canyon to Placerita. The driving time is only 35 minutes, leaving between one and 1.5 hours for packaging and loading. The court cannot accept, without any explanation, that one to 1.5 hours were required for the seemingly uncomplicated task of packaging and loading the flares. The court therefore rejects Aratani’s assumption that each trip involved two hours of labor. Damages will be calculated based on defendant’s assumption that the round trip, including loading and unloading, required 75 minutes. With two drivers, and a total of 374 trips over the life of the contract, plaintiff is entitled to compensation for 935.25 hours. At $6.45 per hour labor rate, this amounts to $6,032.36; adding $886.46 for S & S, the total is $6,918.82.
Plaintiff is entitled to a total award of $66,501.82 for labor costs incurred in connection with pretesting. Adding overhead and G & A yields $221,448.93. With material costs of $81,584 and profit, plaintiff’s total recovery is $333,336.22.
c. Cross-blending
Plaintiff originally claimed $28,578 for cross-blending. Defendant concedes $28,-222.33. Both these calculations are based on the time required for actual blending, on the assumption that a cross-blend requires approximately 25 percent as much time as does a regular blend. According to plaintiff, Aratani misunderstood SOS personnel; in actuality, cross-blending requires 25 percent less time than a regular blend. According to Aratani’s work papers, he received the 25 percent estimate from Bill Campbell, an SOS employee who held a variety of positions during the M206 contract, including manufacturing manager and production manager. At trial, however, Campbell testified that the ratio of time between a cross-blend production and a regular blend production is 75 to 80 percent. Winn testified that approximately the same number of people and hours are r

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6826930. Public record. Not legal advice.