holding that a CO’s instructions can bind a contractor
How later courts described this case
- holding that a CO’s instructions can bind a contractor
Written by the judges who cited it.
The opinion
SKELTON, Judge,
concurring:
I agree with the results reached in the opinion written by Judge Durfee, but I would arrive at the decision in a somewhat different manner as to some aspects of the case.
It appears to me to be unnecessary to hold that the decisions of the Armed Services Board of Contract Appeals (ASBCA or Board) are not supported by substantial evidence. The evidence was disputed, and this puts the court in the position of having to distinguish between what is substantial evidence and what is not. Sometimes this can be a difficult question to determine. I believe we do not have to decide it here.
The evidence in this case is of such a nature that as a matter of law the Board could have made only one finding of fact on the controlling issue in the case, namely if the detailed patterns and specifications furnished by the government had been complied with by the contractor, as it reasonably interpreted them and as requiring four coats of sealants on the armhole seams, satisfactory performance would not have been possible. See Maxwell Dynamometer Co. v. United States, Ct.Cl., 386 F.2d 855 decided November 9, 1967. Since this question of fact is to be determined as a matter of law, the court can make this finding without sending the case back to the Board.
The specifications and patterns furnished by the government were defective and if followed by the contractor and with four coats of sealants on the armholes (which was recognized as being the correct number in the trade), the raincoats would not have passed the test. This was true with respect to the coats in Lot 1. It was only after four to eight additional coats of sealant were applied that they passed. The coats in Lot 2 were constructed strictly in accordance with the specifications (with the (4 inch surplus material on the armhole seams) *239 and with four coats of sealant failed to pass.
Other circumstances show that the specifications were defective. When the surplus material was trimmed from the armhole seams and four coats of sealant were applied, the coats passed. Also, the Board inferentially recognized that they were defective in rendering its decision on the second contract when it stated that the contractor in making its bid knew that it had underestimated the cost of the armhole seam sealing process “or had to add the cost of the added trimming operation.” (Emphasis supplied.) This shows that the Board thought the specifications in both contracts were defective. Also, while not controlling, it is shown that the government later changed the specifications regarding this type of coat so as to require the surplus material to be trimmed from the armhole seams.
The parties themselves showed by their acts and conduct before any controversy arose that the specifications and patterns were defective. The facts conclusively show that if they were followed, the coats would not pass the test.
Accordingly, I would hold as a matter of law that the contractor’s interpretation of the contracts and of the trade practice as to sealants was reasonable and binding on defendant, and that the specifications were factually impossible to comply with if the coats were to pass the tests. See Hol-Gar Mfg. Corp. v. United States, 360 F.2d 634 , 175 Ct.Cl. 518 (1966); Maxwell Dynamometer Co. v. United States, supra.
The plaintiff is entitled to- recover the costs incident to its attempts to comply with these defective specifications in the stipulated amounts of $3,644.68 and $5,690.40.