# Allied Paint Manufacturing Co. v. United States

> United States Court of Claims · December 12, 1972 · 470 F.2d 556

URL: https://www.frixlaw.com/law-library/cases/8594595

## Case

- **Full name:** ALLIED PAINT MANUFACTURING COMPANY INC. v. United States
- **Court:** United States Court of Claims
- **Decided:** December 12, 1972
- **Citations:** 470 F.2d 556; 200 Ct. Cl. 313; 1972 U.S. Ct. Cl. LEXIS 162
- **Precedential status:** Published
- **Opinion:** Concurrence by Nichols
- **Judges:** Bennett, Cowen, Ctjeiam, Davis, Kashiwa, Labamoee, Nichols, Skelton
- **Cited by:** 5 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/8594595

## Opinion text

Nichols, Judge,
concurring:
I concur in the result. As I read the Board, they would extend time for a delay caused by a change of inspection procedures, even under their construction of the various inspection clauses. This being so, the interpretation issue is *336 more or less academic. If I bad to construe tlie contract, I would be tempted to start out witb tbe proposition tbat tbe clauses are inconsistent, but I then would be embarrassed by plaintiff’s assertion tbat they are consistent. As I further read tbe Board, they clearly found tbat tbe change in inspection procedure did severely impede performance. What the Board decision really stands for, I think, is tbat tbe disputes clause procedure is unavailable when an interference witb plaintiff’s production results from arbitrary acts by tbe Government in tbe administration of other contracts, making it impossible for plaintiff to perform tbe contract in issue. To tbe Board, it was sufficient that tbe sudden change in inspection procedure did not apply to the contract before it, because plaintiff never tendered any articles for inspection under that contract.
It seems possible (though I do not so bold) that plaintiff would have fared better under the facts found witb a breach claim. To me, tbe case of J. A. Jones Constr. Co. v. United States, 182 Ct. Cl. 615 , 390 F. 2d 886 (1968), suggests tbat plaintiff’s grievances are not wholly unremediable, though the grievance there was quite different in nature. There, as here, the parties assumed throughout it was a disputes clause case, and footnote 16 appears intended to exonerate the court from sponsorship of that position. A careful reading of Judge Davis’ opinion and the cases he cites will raise doubts whether it really was a disputes clause case and whether the contract really provided J. A. Jones Company with its remedy as finally won, after long travail, in this court. The headnotes seem to indicate our then Reporter thought it was a breach case. We must evaluate the picture before us in the frame the parties have placed around it; while alternative breach counts are common in Wunderlich review cases, there is none here.
In Gresham v. United States, No. 363-70, decided today, we deal with another instance of sudden and arbitrary change in a rule of contract administration, affecting simultaneously numerous contracts. Both changes were the result of a rediscovery by the Government of a right, disused for a time, which supposedly it had all along. I do not urge that *337 either decision is a precedent to govern the other, nor is there any necessary inconsistency between them, though in some respects Allied Paint has the more appealing case. Our commissioner sheds tears for Allied Paint and regards GSA with undisguised reprobation. If he were of an earlier generation of the judiciary, he would no doubt go on to proclaim that hard cases make bad law. And indeed they do.
The subject deserves further study as a branch of contract jurisprudence peculiar to itself, and the resolution of more satisfactory answers.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8594595. Public record. Not legal advice.