Natus Corporation v. United States, 166-61.

• Decision Date: 20 January 1967
• Docket Number: No. 166-61.,166-61.
• Citation: 371 F.2d 450
• Parties: NATUS CORPORATION v. The UNITED STATES.
• Court: U.S. Claims Court

371 F.2d 450 (1967)

NATUS CORPORATION v. The UNITED STATES.

No. 166-61.

United States Court of Claims.

January 20, 1967.

COPYRIGHT MATERIAL OMITTED

Robert Martin, Washington, D. C., for plaintiff; Marx Leva, Washington, D. C., attorney of record; Richard Shlakman and Fowler, Leva, Hawes & Symington, Washington, D. C., of counsel.

Alfred H. O. Boudreau, Jr., Washington, D. C., with whom was Acting Asst. Atty. Gen., J. William Doolittle, for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS and COLLINS, Judges.

ON PLAINTIFF'S MOTION FOR JUDGMENT OF LIABILITY AND ON DEFENDANT'S MOTION TO DISMISS

COLLINS, Judge.

On June 6, 1952, plaintiff (then the United States Radiator Corporation) contracted with the United States Army Corps of Engineers for the production and delivery, in monthly quantities, of approximately 18,000,000 square feet of portable steel airplane landing mat. The total price was approximately $8.5 million, based upon a price of $0.474 per square foot. The complaint, brought here from an adverse decision of the Armed Services Board of Contract Appeals (hereinafter the "Board"), seeks to recover certain additional expenses sustained during manufacture by way of an equitable adjustment in the contract price. The theory advanced in support of the claim is that the contract drawing embodied a misrepresentation in that adherence to it could not be achieved through any commercially practicable means.

The elements of the claim embrace two distinct issues — the first relating to an interpretation of contract specifications; the second to the issue of impossibility of performance. Both present questions of law which we may freely reexamine — the Board's decision on these matters being neither final upon plaintiff nor binding upon this court. Jack Stone Co. v. United States, 344 F.2d 370, 170 Ct.Cl. 281 (1965); Hol-Gar Mfg. Corp. v. United States, 351 F.2d 972, 169 Ct.Cl. 384 (1965). We sustain the Board's decision.

The landing mat that plaintiff was required to produce (designated the "M-8 mat") was a new product which the Corps of Engineers developed over a period of 3½ years. Designed to support heavy aircraft in takeoff and landing operations, this mat, unlike those of earlier design (in use during World War II and the Korean conflict), contained a fastening device which permitted the interlocking of each 12-foot panel so as to form a steel surface, continuous and unbroken in length. The removal of tire hazards, as well as increased mat life, was achieved by eliminating — through the locking mechanism — the problem of end curling found in previous panel assemblies.

Each mat (or panel) was to be fabricated from a flat sheet of steel about 1/8; inch thick, approximately 12 feet long, and 1½ feet wide. When finished, the sheet was to contain four deep, U-shaped, lengthwise corrugations or channels, with each channel wall being pierced at its ends. Assembly of a continuous steel surface was to be achieved by placing the male end of a mat over the female end of the adjoining mat and aligning them so as to permit the insertion of a cross member (designated as an end connector or locking "7") through the pierced slots. The U-shaped channels and means of end connection, which together constitute the design advance noted, are likewise the focal point of this controversy.

Government experimentation with the subject mat began in June 1949, when it let a development contract to United Steel Fabricators for the production of 10,000 square feet at a unit price of over $1 per square foot. The tools for this production, which United Steel made for itself, were adaptable to only one sequence of operation, that being a piercing of the end-connector slots before formation of the longitudinal channels (termed the "pierce-before-forming" method). The subsequent channel formation was accomplished through the use of press brakes. Identical production methods were used by the Government's second experimental contractor — Highway Steel Products — in its three contracts for 225,000 square feet, which that company bid at prices ranging from $0.71 to $0.90 per square foot.

Neither United Steel nor Highway Steel Products employed a mass-production method in its development of the prototype mats. Highway's rate of production was 384 square feet per hour (approximately 20 mats per hour) and, despite this slow output rate, considerable difficulty was experienced with the end-connector slots. The Government accepted Highway's production without regard to specification tolerances so long as hand assembly showed the mats to fit together. Upon completion of this experimental program, the Corps of Engineers classified the mat as a standard item of manufacture, the drawing here in question having been reviewed and approved as ready for utilization in a competitive procurement program.

On January 16, 1952, 5 months prior to the award of the subject contract, plaintiff was awarded a contract for the furnishing of 1,100,000 square feet of a landing mat essentially identical to the one in issue, except for the fact that it called for a slightly lighter steel, i. e., 11-gauge as opposed to the subject contract which utilized 10-gauge steel. The intervention of a steel strike and the low priority allotted to the landing-mat program during the Korean emergency resulted in the deferment of production under the 11-gauge contract until the latter part of 1952. As a consequence of this, plaintiff had little opportunity to gain fabrication experience in M-8 mat production at the time of its bidding on the contract here in issue.

When production of the 11-gauge contract (this being the forerunner to the present contract) was finally undertaken in October 1952, plaintiff experienced much the same difficulties that had plagued Highway Steel Products. In addition to being aware that a pierce-before-forming method had been utilized in the prototype manufacture, plaintiff also interpreted the specifications as calling for this production sequence. From the very beginning of production under the 11-gauge contract, the slots were a major problem. The press-brake-channel-forming operation dislocated and distorted the pierced slots and cracked the steel. The prescribed tolerances could not be achieved and performance under the contract could be accomplished only under relaxed standards. Plaintiff found that strict adherence to prescribed tolerances led to a rejection rate in excess of 50 percent of the mats actually produced. The Government accommodated this problem in much the same manner that it had with its experimental contractors — by accepting those mats which hand fitting showed to be compatible.

Performance of the present contract was undertaken in June 1953, after completion of the previously discussed 11-gauge contract. And like its predecesor, this contract was also fraught with numerous engineering difficulties.

At the time plaintiff submitted its bid in May 1952, it planned to rely upon a pierce-before-forming sequence. But instead of using press brakes in the rib formation, it contemplated using the only other alternative, namely, a rolling machine. This approach was decided upon not because plaintiff realized the defects attendant to the press-brake method (of which, at the time, it had no knowledge), but because a rolling-machine operation was, in theory at least, more adaptable to mass production from the standpoints of efficiency, costs, and quality of end product. Unfortunately, what appeared sound in theory proved unattainable in practice.

The specially built rolling machine, which was put into operation in April 1953 and which was then used to complete the earlier 11-gauge contract, was as inadequate for mass production as the prior press-brake method had proven to be. It was found that, in high-speed production, the pierced slots were destructive of the roller surfaces, tolerances could not be maintained, proper slot alignment could not be achieved, and cracking of the metal could not be eliminated. Thus, performance of the present contract began under the most disadvantageous of circumstances. Neither the press-brake method nor the rolling machine could be counted on to operate satisfactorily in a high-speed production process, at least when manufacture was confined strictly to the drawing configurations.

Fully apprised of the difficulties facing it, plaintiff turned first to the steel manufacturers, inquiring of them whether the problems could be overcome through changing the grade of steel. The response to this was in the negative. Plaintiff then sought and obtained from the Government a temporary relaxation of tolerances similar to that which had been granted the company under the 11-gauge contract. Advice was also sought from tool and die firms concerning the feasibility of producing the slots with horizontal parallel surfaces in a punch-after-forming sequence rather than with a tapered upper surface in a pierce-before-forming sequence. These firms declined to undertake to make the tools or dies, giving as their reason the fact that this method was unworkable because of the location of the slots and the cramped space between and within the channels. Finally, plaintiff turned to metal fabrication experts for assistance. These experts, in addition to recommending reorganization of plaintiff's production line so as to include automatic conveying and handling equipment, advised plaintiff to adopt a pierce-after-forming sequence with the slots to have parallel upper and lower slopes at an approximate 30° angle to the horizontal plane.

In order to avoid termination for default and convinced from its experience that performance was impossible under the methods initially contemplated, plaintiff sought authorization to pierce the slots with a different configuration from that originally specified. Permission to so proceed was granted in February 1954 and thereafter plaintiff was able to fulfill its...