Centre Manufacturing Company, Inc. v. The United States

392 F.2d 229, 183 Ct. Cl. 115, 1968 U.S. Ct. Cl. LEXIS 75

Opinions

OPINION

DURFEE, Judge,

delivered the following opinion, in which the CHIEF JUDGE and Judge LARAMORE join, and announced the judgment of the court:

Footnotes

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*

Plaintiff, a clothing manufacturer, was awarded two contracts to make 156,-000 raincoats for Air Force use. The first contract (hereafter referred to as No. 2787) was awarded on July 1, 1963, and the second (hereafter referred to as No. 3384) on October 1,1963.

The raincoats were to be manufactured according to patterns and specifications furnished by the Government. Although similar raincoats had been made by other contractors for the Marine Corps, the patterns and specifications for the instant contract were new as to the sleeve-setting and seaming operations, and it is the new specifications that are involved in the present suit.

Plaintiff reached the sleeve-setting operations and the sealing of the armholes under Contract No. 2787 approximately on September 1, 1963, having cut material for about 3,300 raincoats exactly in accordance with the Government-furnished pattern. As sleeves were set and the seams sealed on this first group of coats, plaintiff performed hydrostatic tests in its own laboratory on the semi-finished coats in the same manner and with the same equipment used by the Government. The contract provisions relevant to the sleeve-setting and sealing operations are set out below.¹

Mr. Dotson, plaintiff’s general manager, testified that from the very beginning plaintiff encountered difficulty with the water resistance of the sleeve-armhole seam. He testified further that when the sleeve-armhole seams were sealed with the four coats of sealant, which was the usual number of coats of sealant used in the art,² plaintiff encountered 50 percent hydrostatic test failures, i. e., the sleeve-armhole seams were not sufficiently waterproof.

In searching for the cause of the sealing difficulties, plaintiff first double-checked all its own operations and materials. It made a few minor adjustments, but the difficulties continued unabated. The contractor finally concluded, after consultation with the Government technical adviser specifically assigned to this contract (Mr. Rossi), that the fault was in the Government-supplied patterns and specifications, viz., the seam width at the top of the armhole, required by the pattern to be % inch, had *4 inch surplus material after the seam was raised-stitched or “corded.” By way of contrast, the specifications required a 3/8 inch seam at the bottom half of the armhole, which left only % inch surplus material after cording. It was discovered that the top half of the armhole seam (% inch surplus) caused sealing difficulties whereas the bottom half with its smaller seam allowance (% inch surplus), did not.³ Both Dotson and Rossi concluded that the seam was too wide around the top half and this was the cause of the sealing difficulties. In addition, the sleeve was designed (by the Government) to have a certain fullness, which, in the process of sleevesetting, created ripples, pleats and tubes in which water collected during the hydrostatic tests. This accumulation of water increased the sealing problems caused by the surplus material or “step.”

As a temporary solution, plaintiff applied additional coats of sealant on the defective seam construction. Many raincoats required four additional coats of sealant and some as many as eight additional coats of sealant. One lot of 1,280 completed coats (hereinafter referred to as Lot 1) was submitted to the Government on September 13, 1963. This lot passed the Government’s hydrostatic tests and was accepted, although it must be remembered that many of these raincoats had eight and twelve coats of sealant on the sleeve-armhole seam. A second lot of 2,000 completed raincoats (hereafter referred to as Lot 2), with the usual number of coats of sealant on the troublesome seam, was then submitted to the Government, but this lot was rejected for failure of the hydrostatic tests again at the sleeve-armhole seam. Plaintiff then subjected this second lot of raincoats to an additional four or eight coats of sealant at the sleeve-armhole seam and re-submitted the coats. This time the lot was accepted.

During the course of these difficulties with the sleeve-armhole seam, the contractor was in telephonic communication with the contracting officer, Mr. Reeder, and his technical adviser, Mr. Rossi. On September 24, after again discussing this problem, Dotson requested that Rossi come to plaintiff’s plant for further consultation regarding the matter of the troublesome seam. It was agreed by both parties that such a trip would be advisable. In that same telephone conversation, the suggestion was made that plaintiff should experiment in the factory by trimming off the surplus material or “step”, either in the cutting room or sewing room to determine whether the elimination of the step would solve the problem of hydrostatic test failures. Plaintiff was advised on that occasion to go ahead and experiment to see what it “could come up with.” Plaintiff subsequently experimented by cutting the surplus off 1,500 coats in the cutting room and trimming approximately 2 to 3,000 coats in the sewing room.

On October 8, 1963 a Government quality control representative, Mr. Cozzi, made a routine and unsolicited visit to plaintiff’s plant and observed the cutting and trimming operations with which plaintiff was experimenting. Cozzi stated that such operations were unauthorized and told plaintiff to stop cutting and trimming. Plaintiff’s president, Mr. Hays, told Cozzi of the seam-sealing problems it was having and that the deviation had been discussed with the contracting officer. The next day Dotson called the contracting officer and his technical adviser to report Cozzi’s visit. Dotson was advised to keep experimenting in the sewing room, but to stop cutting in the cutting room.

On October 21, Rossi, as previously arranged, visited plaintiff’s plant and observed the contractor’s manufacturing processes, including the armhole-trimming operation. Rossi asked Dotson whether the armhole leakage problem was solved, and was told that additional lots submitted to the Government, where the step (surplus material) had been trimmed off in the sewing room, had passed the Government’s hydrostatic tests. After checking the hydrostatic test results of coats where the step was trimmed off and after consultation with plaintiff’s president, Mr. Hays, Rossi advised the contractor to continue trimming off the steps in the sewing room. Rossi and Dotson also discussed the necessity for a change order and compensation for the additional trimming operation which was the apparent solution to the problem.

After October 21, 1963, plaintiff at least twice brought up the matter of the promised change order for the trimming operation to the contracting officer, Reeder, who took no action on the requests. The formal request for a change was not made until October of 1964, after both contracts had been completed. It was denied by a different contracting officer, and plaintiff subsequently took an appeal to the ASBCA which also denied the claim.

The second contract (No. 3384) referred to above, was awarded to plaintiff as of October 31, 1963. It provided for delivery of 102,320 raincoats identical to the ones being manufactured under the first contract. There were minor adjustments in unit price, although plaintiff’s bid did not contain an allowance for the cost of the additional trimming operation. The bids on Contract No. 3384 were required to be in by October 9. Plaintiff’s claim for an equitable change to compensate for the additional operation under this second contract was also denied by the Board.

Plaintiff then brought suit in this court, and averred in its petition that the decisions of the Board (ASBCA) are not supported by substantial evidence. We agree with plaintiff.

The Board’s decision regarding Contract No. 2787 held essentially two things:

First, that the sleeve-setting and seam-sealing operations required by the specifications were not, as a practical matter, impossible of performance.

Second, that plaintiff was not ordered by the contracting officer or his representative to perform the extra-contractual trimming operation.

We think that the Board was wrong on both counts. This conclusion is made with due regard to the strictures of the Wunderlich Act for review by the court.

I

With regard to the first issue, we think the Board took too narrow a view of what constitutes defective specifications. This is not a case of strict impossibility, as the Board assumed. Given the circumstances of this case, the correct standard should have been that if the Government-supplied patterns and specifications are complied with, “satisfactory performance will result.” J. D. Hedin Constr. Co. v. United States, 347 F.2d 235, 241, 171 Ct.Cl. 70, 76 (1965), citing, United States v. Spearin, 248 U.S. 132, 39 S.Ct. 59, 63 L.Ed. 166 (1918). This rule applies where, as in the instant case, the Government sees fit to prescribe detailed specifications. Hol-Gar Mfg. Corp. v. United States, 360 F.2d 634, 175 Ct.Cl. 518 (1966); J. D. Hedin Constr. Co., supra; R. M. Hollingshead Corp. v. United States, 111 F.Supp. 285, 124 Ct.Cl. 681 (1953).

The contract in the instant case contained patterns and specifications which dictated the exact measurements to be used in constructing the sleeve-armhole seam in dispute. The specifications required that the “width of the seam shall be % inch at top side of armhole” and that the “raised stitch around top side of armhole shall be % inch from edge.” Given these precise measurements, the constructed seam necessarily had % inch of surplus material, i. e., the raw edges extended % inch from the raised stitching around the top half of the armhole. The pattern also required a certain fullness in the sleeve, which exacerbated the problem caused by the surplus material.

It should be noted that this is not a case where the contractor unilaterally chooses a method of production which is the cheapest or most efficient method and then is disappointed because the specifications do not allow for the utilization of the best method of operation from the contractor’s viewpoint. As we pointed out in Natus Corp. v. United States, 371 F.2d 450, 458, 178 Ct.Cl. 1, 13, (1967), “the Government does not guarantee the contractor’s profit.” Here plaintiff was required to construct a raincoat with a defective armhole seam by virtue of Government-supplied patterns and specifications.

The question, then, is whether compliance with these detailed specifications would result in satisfactory performance. The Board has found that satisfactory performance was possible, in fact, accomplished in light of the fact that plaintiff’s Lot 1 (1,280 raincoats) passed the Government’s hydrostatic tests and was accepted.

The Board’s finding that satisfactory performance was possible must be rejected as not supported by substantial evidence and resting on a misinterpretation of the contract. To the contrary, the evidence conclusively demonstrates that the patterns and specifications provided by the Government, i. e., requiring a seam with 14 inch of surplus material, would not provide a satisfactory and workmanlike product.

One of the errors made by the Board in reaching its determination is based on a misinterpretation of the contract. The Board concluded that the contract required an indefinite number of coats of sealant to be applied to the seams, i. e., “as many as necessary”, not considering as relevant whether four, fourteen or forty coats were necessary. The Board’s interpretation is based on a literal reading of the contract.⁴ It is obvious, however, that neither party construed the contract to require a limitless number of coats of sealant.⁵ The undisputed testimony before the Board by both parties was to the effect that the standard trade practice was to apply approximately four coats of sealant. In other words, previous experience in the industry had defined “sufficient number” of coats of sealant as four or thereabouts. Although this fact was emphasized and reiterated during the course of the hearings, de fendant did not consistently deny the relevancy of this fact, as it would and should have, if the contract provision was indeed intended to diverge from standard practice, and require as many coats of sealant as necessary to pass the hydrostatic tests. In addition, the Government implicitly conceded this point at oral argument by arguing that four coats of sealant would have been sufficient under these particular specifications; but that the failures were due to contractor’s sloppy workmanship.

Even more relevant to a proper interpretation of this provision is the fact that neither plaintiff nor defendant considered the application of additional coats as the required answer to plaintiff’s difficulties at the actual time the contract was being performed. If the parties’ interpretation of this provision were the same as the Board’s interpretation, the Government would have simply, and rightfully, directed the contractor to apply as many coats of sealant as necessary to pass the hydrostatic tests. Yet this was not done. Instead, both parties thought it necessary to experiment with the seam width in the cutting and sewing rooms.⁶ Since the parties acted as they did, and since “great weight is given to the practical interpretation of a contract by the parties to it before the contract becomes the subject of controversy,” (Maxwell Dynamometer Co. v. United States, Ct.Cl., 386 F.2d 855, decided November 9, 1967) the Board’s interpretation must be rejected as erroneous. Plaintiff had the right to assume that the coats, if made according to the Government-supplied specifications, could be properly sealed according to the standards of practice in the industry, and this means four coats of sealant or thereabouts.

With this proper interpretation in mind, it is next necessary to analyze the prime consideration which led the Board to conclude that performance was possible, viz., that plaintiff’s Lot 1 passed the Government’s hydrostatic tests and was accepted without the surplus material being trimmmed off.

The undisputed testimony before the Board was that the coats in Lot 1, when sealed with the usual number of coats of sealant did not pass the contractor’s own hydrostatic tests. It was only after the contractor subjected the coats to sometimes four or as many as eight additional coats that the raincoats were re-submitted and accepted by the Government. As we have stated above, the contractor was not obliged to apply a limitless number of coats or sealant. The Board’s argument that perhaps only one or two additional coats of sealant would have been sufficient in many instances is difficult to accept because the undisputed fact is that some coats required as many as twelve coats of sealant. Since it is impossible to determine visually which of the raincoats needed only a few additional coats and which needed twelve coats of sealant, it was necessary to treat all the coats within the base for the random sample to as many coats as the one tested required. This is exactly the procedure followed by plaintiff, and criticized by the Board. The only other possibility would have been to pre-test every single coat before it was submitted to the Government. This must certainly be considered an unreasonable burden and one which neither party expected.

Another undisputed fact which tends to demonstrate the lack of substantiality of the. Board’s conclusion is that Lot 2, which was constructed exactly according to the specifications (with the % inch surplus) and treated to the standard four coats of sealant, did not pass the Government’s hydrostatic tests, and consequently was rejected.

The Board has stated that the reason for the failure of Lot 2 is not because of the surplus material, but because of poor workmanship on the part of plaintiff’s employees. The most that can be said for this finding is that there are isolated bits of evidence which when viewed in isolation, do seem to support it. But we find that there is not substantial evidence on the whole record to support it, and this is the standard set by the Wunderlich Act, and which we must adhere to.

There are some statements in the record to the effect that plaintiff’s employees were applying the sealant improperly, not distributing the fullness of the sleeve properly, and not mixing the sealant properly. Admittedly this may have had some effect on plaintiff’s difficulties. However, the evidence indicates conclusively that the surplus material, which resulted from following the Government-supplied patterns and specifications, was the real culprit causing plaintiff’s sealing difficulties.⁷

The fact that supports our conclusion most forcefully is a simple comparison. The first 3,300 coats were constructed with the surplus material on the sleeve-armhole seam, and plaintiff encountered the difficulties described aboye. By contrast, the remaining 156,000 coats supplied to the Government were constructed with the surplus material trimmed off and every lot save one passed the Government’s hydrostatic tests. This is more than coincidence. The most skeptical empiricist would deduce that there is a causal relationship between the existence of the surplus material and the hydrostatic test failures. Yet there is more evidence, both factual and testimonial, supporting this relationship.

There was uncontradicted testimony by Mr. Dotson that the leakage occurred at the top half of the armhole, and not the bottom half. It will be remembered that the % inch surplus material or step was only around the top half of the-, armhole, and not the bottom half. Again, the relationship between the surplus material and the leakage is impossible to ignore.

In addition, Mr. Rossi, in his report written after visiting plaintiff’s plant and studying plaintiff’s hydrostatic test results, concluded that “the trimming operation is necessary.” [Emphasis supplied.] Mr. Levearl Hayes, the quality control representative permanently based at plaintiff’s plant, also made a written report as a consequence of Mr. Rossi’s visit, and he stated that “the net results of removing the step [surplus material] has been that the contractor has had no more failures for the hydrostatic test in the Laboratory Division.”

An additional fact which supports this conclusion, although we do not rely on it, is that the Government later changed the specifications on all subsequent contracts regarding this type of raincoat to require the trimming operation.

II

The second error by the Board involves its conclusion that the additional operation was not performed by virtue of any Government “order”; consequently plaintiff was acting as a mere volunteer. This conclusion is not based on substantial evidence nor upon a proper interpretation of the law.

In the first instance, it is well settled that the absence of a written change order does not bar recovery when both the contracting officer and ASBCA considered the merits of the claim. See, Kings Electronics Co. v. United States, 341 F.2d 632, 639, 169 Ct.Cl. 433, 443 (fn. 15) (1965); Fox Valley Engineering, Inc. v. United States, 151 Ct.Cl. 228, 237 (1960). In the instant case, plaintiff’s claim was considered on the merits by the Board, even though the change order was not written, but oral, and so it must be considered here on the merits.

The next question is whether the change order must be given by the contracting officer himself or whether that authority can' be delegated. Although it is conceded here that Reeder himself did not order the additional operation, his technical adviser, Charles Rossi, directed the performance of the additional operation by authority of, and with knowledge of the contracting officer.

The Board has not stated that the contracting officer can never delegate his authority, since it is well known that he can so delegate. See, e. g., Fox Valley Engineering, Inc., supra, at 238-240. Instead, the Board has found that Rossi was a mere “technical” representative acting in a “noncontractual capacity.” This characterization of Rossi’s function is not supported by substantial evidence on the whole record.

The plain undisputed fact is that Rossi was sent to plaintiff’s plant in Alabama by the contracting officer for the sole purpose of settling the problem involving the surplus material and hydrostatic test failures. An integral part of this function is that of giving guidance and any necessary instructions to the contractor. If Rossi were not sent to Alabama for this purpose, then his visit loses all significance. In fact, Rossi was successful, and did find the solution to the problem, and instructed the contractor to adopt the solution. Liability for the actions of a Government agent, who carried out exactly what he was ordered to do, cannot be avoided by pointing to labels. The appellation, “technical adviser”, does not detract from Rossi’s actual function. It is to the actuality that we must look.

It is also incongruous to say that Rossi did not have the authority to direct a change while he was at plaintiff’s plant, yet did have authority when he returned to Philadelphia. Cf., Fox Valley Engineering, Inc., supra, at 240. Yet this is, in effect, the Board’s position. From the testimony before the Board, it is clear that Reeder himself would not make such a decision, but would rely on Rossi, because of the technical nature of the decision. (Transcript at pp. 155-156):

Q. And you didn’t have any details as to what the nature of the operation [trimming operation] was or the additional costs involved in these conversations ?

A. (Mr. Reeder): I normally don’t dig into that area. I depend on technical advice for this kind of thing * *.

Since Rossi would, in effect, be making the decision as to whether to perform the additional operation, it does not matter whether he made it in Alabama or Philadelphia.

It is also undisputed that Rossi himself understood the effective division of authority between himself and the contracting officer vis-a-vis technical matters. [Transcript at p. 127] :

Q. Now, Mr. Rossi, you have been in this business, a long time, have you not, and do you have to be a lawyer to know, if you instructed a contractor to perform additional operation, he would be entitled to additional costs ?

A. (Rossi): This is true, but I didn’t instruct him to perform an additional operation. [Emphasis supplied]

Although Rossi admitted he could instruct a contractor to perform additional operations, he later attempted to negate this testimony by stating that he did not really have authority to instruct contractors or “to give his [contracting officer’s] money away”. [Tr. at p. 127] It is obvious, however, that the qualification Rossi was attempting to articulate was that ultimate authority probably rested in the contracting officer. He was, in effect, saying that Reeder could always overrule his (Rossi’s) judgment. Assuming arguendo this is true, the facts and conclusions in this case remain unchanged since the threshold decision to direct the additional operation was made by Rossi and acquiesced in by Reeder. It is undisputed that the reports of Rossi and Levearl Hayes, both of which refer to the promised change order, were sent to Reeder. He chose not to exercise his ultimate authority, and so ratified Rossi’s decision.

The only real question then is whether Rossi instructed plaintiff to perform the additional operation. The Board’s finding in the negative to this question is not supported by substantial evidence.

The only supportable conclusion that can be drawn from the evidence is that Rossi, on the occasion of his visit to plaintiff’s plant, instructed plaintiff to stop experimenting in other areas, but to continue trimming the “step” in the sewing room on all future lots of raincoats. The matter of a suitable change order and additional compensation was also discussed at that time.

Although Rossi’s visit to plaintiff’s plant is the critical event in our minds, it should- not be viewed in isolation, but as part of the totality of events and communications between plaintiff and defendant leading up to and including October 21.

Although there is some conflicting testimony by Rossi as to what transpired during his visit to plaintiff’s plant, the above-recited version is verified by a three-page written report prepared by Rossi himself immediately after his visit, and before the beginning of any litigation. The report, dated November 1, 1963, noted that the step trimming operation was “substantially in line with the procedure suggested by the writer [Rossi] to the contractor in several telephone conversations previous to the visit to the plant concerning the problem”. The report went on to conclude:

There was not much that could be added to the instruction that had already been given by the writer to the contractor in previous telephonic conversations. These instructions seem to have born [sic] fruit * * *.

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The trimming operation is necessary and contractor will be intitled [sic] to a monetary adjustment if he makes a claim. [Report at pp. 1, 3] [Emphasis supplied]

Mr. Levearl Hayes, the Government quality control representative based at plaintiff’s plant in 1963, accompanied Rossi and Dotson during the former’s visit to plaintiff’s plant. Hayes also wrote a report, dated October 28, which is in substantial compliance with Dotson’s testimony before the Board and Rossi’s contemporaneous written report. Hayes’ report stated inter alia:

1. The Contracting Officer [and] Quality Specialist [Rossi] assigned to this contract requested the contractor to experiment and determine a method to join the armhole that would give the best hydrostatic results. * * * The net results of removing the step has been the contractor has had no more failures for the hydrostatic test in the Lab. Div. In addition the appearance of the sleeve in my opinion has improved.

2. * * * The request to remove the step by the Contracting Officer and Quality Specialist made the applicable Commodity Division aware of the removal of the step. I had no reason to question their doing this for there was reason to remove the step to make the hydrostatic testing better.

3. * * * The Contractor has now agreed with Q C Specialist Charles Rossi on his visit to the plant to remove the step by adding an operation in the sewing room.

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6. On 21-22 Oct. 63 this plant was visited by Mr. Charles Rossi, Q C Spec. The removal of the step was settled and a change order will be issued to correct the deviation mentioned in Mr. Cozzi’s report. [Emphasis supplied]

On the basis of the oral testimony and these reports it is conclusively demonstrated that Rossi instructed plaintiff to trim the step on all future lots of raincoats.

It is also untenable to argue that plaintiff was performing this additional operation for its own benefit, because the contractor was sure, at least in its own mind, that the fault was with the specifications in providing too wide an armhole seam. This view was concurred in by Rossi, in that he, too, thought the seam was too wide, and that the trimming operation was “necessary.”

It is not necessary to discuss the Board’s contention that any change order promised by Rossi may well be a “no-cost” change order, since Rossi’s report concluded that the contractor would be entitled to a “monetary” adjustment.

For these reasons we find as a matter of law that Rossi did instruct plaintiff to perform the additional trimming operation with the acquiescence and ratification of Reeder, the contracting officer. Cf., W. H. Armstrong & Co. v. United States, 98 Ct.Cl. 519 (1943).

The only remaining question involves plaintiff’s claim for compensation for the additional trimming operation under the second contract (No. 3384). The Board held with reference to this contract that plaintiff’s claim must be rejected “because at the time of appellant’s amended bid, it knew that in the first contract it had under-estimated the cost of the armhole seam sealing process or had to add the cost of the added trimming operation. It was charged with notice of these matters in preparing its bid for Contract No. 3384 * * *, and cannot by this route correct its deficient bid.” (ASBCA Opinion at p. 10).

This argument, too, must be rejected. Although plaintiff here is attempting to correct a deficient bid, it is not the situation where plaintiff had all the appropriate considerations at its disposal at the time of bidding, as the Board presumed. Closing time for bidding on the second contract was October 9. At this point in time, plaintiff only knew that there were sealing difficulties with the armhole seam; it had no way of knowing what the solution would be. Certainly we cannot charge plaintiff with constructive notice of a fact not yet established. Since plaintiff was not in a position to make a rational adjustment of its bid, it cannot be barred from recovery.

For all of the above reasons, the court conclúdes as a matter of law that plaintiff is entitled to recover for the additional trimming operation the stipulated amounts of $3,644.68 under Contract No. 2787, and $5,690.40 under Contract No. 3384. Judgment is entered to that effect.

Facts necessary to support the court’s judgment in this case are set forth in the decision. The court acknowledges the helpfulness of the opinion of Trial Commissioner James F. Davis, but treats the issues somewhat differently.

1

. 24. Set Sleeves — The sleeves shall be set with fulness properly distributed with armhole and sleeve steps matching.

a. Seam sleeves to armhole of. coat with a single row of stitching. The width of the seam shall be % inch at top of armhole, step to step, and %(¡ inch at bottom of armhole, step to step. * * *

b. Turn sleeve and raise stitch armhole with a single row of stitching % inch from edge a distance of 5% inches, on each of shoulder seams. Cross over and continue the raise stitching around the armhole y16 inch from edge.

3.3.4 Sealing oe seams and stitching — All side seams, sleeve-armliole joining seams, sleeve-joining seams * * * shall be sealed on the inside with brush coats of seam sealant specified in 3.1.6 * * *. The sealant shall be brushed on and worked in such a manner as to completely wet and cover the stitching and needle holes and worked under any turned edges of the seams.

3.3.4.1 * * * The seams shall be sealed with a sufficient number of coats of seam sealant and dusted in such a manner that the finished raincoat meets the hydrostatic and blocking requirements * * * when tested as specified.

2

. This testimony as to standard practice in the art was not contradicted.

3

. Since the seam around the top half of the armhole extended beyond the seam around tlie bottom half, it was referred to by the witnesses before the Board as a “step” or “lug.”

4

. “The seams shall be sealed with a sufficient number of coats of seam sealant and dusted in such a manner that the finished raincoat meets the hydrostatic and blocking requirements * * * when tested as specified.” [Par. 3.3.4.1]

5

. While it is admitted that under the contract more than four coats of sealant might be appropriate on occasional individual raincoats, this provision did not require, nor was it intended to require, a limitless number of coats of. sealant when the sealing difficulties are caused by defects in other specifications. It was not intended to be a general cure-all for any other problem that might arise. This is especially true here, where more than 50 percent of the raincoats were unacceptable because of the excess material around the top half of the armhole seam.

6

. See for example, technical adviser Rossi’s conclusion in his written report that “the trimming operation was necessary.”

7

. As mentioned earlier, many of the minor defects (relied on by the Board) pointed out to plaintiff by technical adviser Rossi were corrected, and still the sealing difficulties continued unabated. What little relationship there was between the minor defects and the sealing difficulties, if any, cannot be supported by anything more than speculation, especially in view of the evidence showing the causal effect of the surplus material.