“[TJhere is an implied warranty that if the specifications are followed a satisfactory product will result.”
How later courts described this case
- “[TJhere is an implied warranty that if the specifications are followed a satisfactory product will result.”
- contractor that attempted to meet performance specification by following the Government's originally defective design specifications was entitled to recover
Written by the judges who cited it.
The opinion
DAVIS, Judge
(concurring).
On the plaintiff’s claim, I rest my concurrence in the judgment on subsection (h), quoted and discussed in the court’s opinion, ante. As I evaluate this record, neither party warranted the specifications, so that neither could claim a breach of contract because of misrepresentations or defective specifications, defendant could not terminate for default if plaintiff failed to produce because of a failure of design, etc. But subsection (h) did provide, specially, for an equitable price adjustment if the specifications turned out to be defective or impossible, resulting in a change in specifications. This provision seems to me applicable here to permit recovery of the costs of attempting to meet the original specifications. Subsection (f) placed the risk of deficiencies in the first articles, due to manufacturing defects, on the contractor, but subsection (h) shows that the risk of defects in the specifications themselves was not to be borne by the contractor if a change was ordered. To construe subsection (h) more narrowly, as defendant does, would leave it very little scope and merge it into the Changes clause, although the parties went out of their way to make it a separate provision. If there is ambiguity to its reach, the defendant, which drafted it, should pay the toll. That the specifications were in fact impossible, under a proper understanding of that term, is clear. See Johnson Electronics, Inc., 65-1 BCA ¶ 4628 . On the counterclaims, I join the court’s opinion.