# Evans Reamer & MacHine Company v. The United States

> United States Court of Claims · March 11, 1968 · 386 F.2d 873

URL: https://www.frixlaw.com/law-library/cases/9453178

## Case

- **Full name:** EVANS REAMER & MACHINE COMPANY v. the UNITED STATES
- **Court:** United States Court of Claims
- **Decided:** March 11, 1968
- **Citations:** 386 F.2d 873; 181 Ct. Cl. 539
- **Precedential status:** Published
- **Opinion:** Dissent by Nichols
- **Judges:** Cowen, Laramore, Durfee, Davis, Lins, Skelton, Nichols
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

NICHOLS, Judge
(dissenting):
There is one reason which leads me to disagree with the trial commissioner’s otherwise convincing opinion.
The findings show that in the protracted negotiations leading to execution of the Evans Reamer contract, a ground rule had become established that the Government would not pay more than the Aircraftsmen price and Evans Reamer would not take less. In effect the price had become non-negotiable and was to be determined by an exterior circumstance. But the contracting officer clearly indicated that he looked askance on direct contact between Evans Reamer and Aircraftsmen, which he called, for somewhat obscure reasons, “collusion.” Evans Reamer was to look to him for whatever it was to know about the Air-craftsmen contract. In these unique and peculiar circumstances — and, of course, I address my remarks to no others — I believe the contracting officer was under a duty to warn the plaintiff, before its contract was executed by both parties, if he entertained any expectation that the Aircraftsmen price might not hold firm. Breach of this duty should give reason for this court’s making available, as circumstances might dictate, the equitable remedies of rescission or reformation. It would not be necessary to level against the officer the harsh accusation of fraud, or at most only of the “constructive” variety. The case would resemble, among decided cases, perhaps most closely that of the contracting officer who knows or should know a bidder has made a mistake in his bid, but awards him the contract without giving any warning. Chernick v. United States, 372 F.2d 492 , 178 Ct.Cl. 498 (1967). In that case we passed not one stricture on the contracting officer’s good faith, nor did we need to in adjudicating the claim.
If the formal documented application of Aircraftsmen for Title II relief had come in to the contracting officer before the final award to Evans Reamer, and he had not warned the plaintiff, I believe the outcome of the case would have been entirely different. Just a few days make all the difference. The commissioner says (in the opinion, not the findings) that before the award to plaintiff the *884 contracting officer had “only surmises, not verified facts, as to the nature of Aircraftsmen’s problems * * To sustain the result reached, it is vital that this characterization be correct. The commissioner had the officer before him as a witness, and no doubt was as well situated to look into the man’s mind as triers of fact ever are. But I question whether any well advised contracting officer would throw out such a broad hint to a contractor to apply for the extraordinary relief, available only to contractors in grave enough difficulty, under Title II, as this one did on February 15, (Finding 30), because of troubles he merely surmised. Their letter to him of February 11, (Finding 29), I would hold of itself afforded more than surmise, disclosing as it did that they had been unable to pay approximately two-thirds of their expenses. I do not think “surmise” is the mot juste, and if the commissioner had selected one more in accord with his detail findings, the result might well have been different. I miss here the equitable approach of National Presto Industries, Inc. v. United States, 338 F.2d 99 , 167 Ct.Cl. 749 (1964). If this case is not to go down in history as an instance of atavism in the evolution of law, it must be explained in the peculiar, and to me inexplicable, view the court and the commissioner take as to the ultimate facts.
In Maxwell Dynamometer Company v. United States, No. 120-62, Ct.Cl., 386 F.2d 855 , the Government representatives watched plaintiff struggle in vain to satisfy specifications, which as construed by him, virtually could not be satisfied. In the litigation, the Government contended that the correct construction was much less onerous, and if plaintiff insisted on attempting more, the loss was his. We are holding that the Government is bound by plaintiff’s interpretation of the specifications in view of its failure to warn him that he was attempting more than was required. Either it practically construed the specifications as plaintiff did, or if it did not, its failure to warn was “unconscionable” action. As the specifications so construed were defective as impossible to perform, plaintiff we hold is entitled to recover the costs incurred in his vain attempts. While the circumstances are different, the. case I believe again, as in Chemick, supra, reflects the equitable obligation of a Government contracting officer not to stand by and watch a contractor plunge into an abyss, which he could prevent by divulging information in his possession and relevant to the contract, but hidden from the contractor. The possibly penetrable character of the ceiling on Aircraftsmen’s. Equitable reformation cumstance, and the court which is deciding Maxwell Dynamometer, in my opinion, ought to be able to see more merit in the instant claim than it has been able to do.
I do not conclude that plaintiff’s price ought to be reformed to the same as Aircraftsmen’s. Equitable reformation might be satisfied with some lesser figure. We are not to give plaintiff Title II relief; we are to give plaintiff the least price it might have negotiated had it known Aircraftsmen was to get Title II relief.
The outcome leaves me, as it does the commissioner, “with a sense of unfairness and discrimination,” only I think we could and should do something about it.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9453178. Public record. Not legal advice.