Miller v. United Technologies Corp.

660 A.2d 810, 233 Conn. 732, 53 A.L.R. 5th 825, 1995 Conn. LEXIS 192

• Court: Supreme Court of Connecticut
• Decided: June 27, 1995
• Docket: 15012
• Status: Published

Opinions

Katz, J.

This appeal requires us to decide whether the trial court properly rendered summary judgment in favor of the defendants, United Technologies Corporation (United Technologies), Chandler-Evans, Inc. (Chandler-Evans), and General Dynamics Corporation (General Dynamics), and against the plaintiff, Sigmund Miller, as administrator of the estate of Mohamed Abdul-Samed Dighidi, based on the government contractor defense. The threshold issue before the court is whether the government contractor defense, which affords United States government contractors immunity from state tort liability, can apply in a case involving military equipment that the United States government had purchased for resale to a foreign government. If we determine that the defense can apply in such circumstances, we must then decide whether these defendants are entitled, as a matter of law, to immunity under the government contractor defense from the plaintiffs claims alleging design defect and failure to warn.

The trial record, including testimony taken during depositions, reveals the following undisputed facts. On January 20,1983, two Egyptian pilots embarked on a training mission in a single engine F-16B jet fighter aircraft that had been supplied to the Egyptian government by the United States government as part of the Camp David Accord.¹ This aircraft was owned and operated by the Egyptian government. One of the pilots, Lieutenant Colonel Mohamed Abdul-Samed Dighidi, was the squadron commander and a highly trained and experienced instructor in the operation of F-16 aircraft. The second pilot was Major Gamal Al-Maghraby Hassan. The purpose of the mission was for Dighidi to “check out” Hassan in preparation for his solo flight. A second F-16B flown by two United States Air Force (Air Force) pilots, Major Michael Lotti and Major Harry Morgan, accompanied the Egyptian aircraft as part of the mission.

During the course of the mission, Dighidi communicated to Lotti and Morgan that he was experiencing problems with the engine. He first indicated that the generator had shut down. Thereafter, the oil pressure light came on and the engine failed. Dighidi then maneuvered the aircraft in an attempt to make an emergency landing, but he was unsuccessful and the aircraft crashed approximately one mile short of the runway. Both Dighidi and Hassan were killed in the crash.

A subsequent investigation into the cause of the crash revealed that the Egyptian F-16B had sustained a massive failure of the main fuel pump, a variable displacement vane pump with an inlet vented sideplate (IVSP) configuration,² which then caused the engine to fail. The fuel pump had been in use for a total of only 230 hours, which was much less than its expected operational life.³ It was further determined that damage from cavitation erosion⁴ had caused the fuel pump to fail.

In October, 1985, Miller, as administrator of the estates of Dighidi and Hassan,⁵ brought this action⁶ for damages against United Technologies, Chandler-Evans and General Dynamics, pursuant to the Connecticut Product Liability Act, General Statutes § 52-572m et seq., and under theories of negligence, recklessness, warranty and strict liability. Miller alleged that the defendants had improperly designed, manufactured and assembled the fuel pump that was incorporated into the F-16B aircraft’s engine, and that the defendants had failed to warn of the dangers of fuel pump failure.

The main fuel pump at issue here was manufactured by Chandler-Evans and identified as the MFP-330. The MFP-330 was a component in the F100-PW-200 engine, which was manufactured by Pratt and Whitney Aircraft (Pratt & Whitney), a division of United Technologies.⁷ A United States government contract had been awarded to United Technologies for the development and production of the F100-PW-200 engine, and United Technologies had subcontracted with Chandler-Evans for the production of the MFP-330 fuel pumps. A separate and distinct United States government contract was awarded to General Dynamics for the production of the F-16 air frame and the installation into the air frame of “government furnished aeronautical equipment,” including the F100-PW-200 engines, which had been chosen for and supplied to General Dynamics by the United States government. General Dynamics was not responsible for the design or production of the F100-PW-200 engines, but was specifically required by contract to incorporate them into the F-16 air frame.

The plaintiff elected to bring this action in Connecticut state court because both United Technologies and Chandler-Evans are located in Connecticut.⁸ After several years of detailed and voluminous discovery, in September and October, 1992, the three defendants filed motions for summary judgment, arguing that the plaintiff’s claims against them were precluded on the basis of the government contractor defense and that they were therefore entitled to judgment as a matter of law. The plaintiff opposed the motions claiming that the government contractor defense applies only to equipment purchased by the United States government for its own use and that, because the F-16B at issue had been purchased by the United States government for resale to the Egyptian government, the defense did not apply. In the alternative, the plaintiff contended that, even if the defense extended to the circumstances of its case, the defendants were not entitled to avoid liability.

In deciding the motions, the trial court relied on Boyle v. United Technologies Corp., 487 U.S. 500,108 S. Ct. 2510, 101 L. Ed. 2d 442 (1988), in which the United States Supreme Court addressed the liability of United States government contractors to third persons under state tort law. Boyle was a wrongful death action that was brought against an independent government contractor after a military helicopter it had supplied crashed into the ocean and, due to the defective design of the escape hatch, a pilot drowned. The United States Supreme Court concluded that suppliers of military equipment must be protected from state tort liability for design defects under certain circumstances based on the “discretionary function” exemption of the Federal Tort Claims Act.⁹ The court determined that if tort liability were imposed on military suppliers of equipment, then they might decline to manufacture the design specified by the government. This would greatly inhibit the United States government’s discretionary function of “balancing . . . many technical, military, and even social considerations, including specifically the trade-off between greater safety and greater combat effectiveness.” Id., 511. The court reasoned that “[t]he financial burden of judgments against the contractors would ultimately be passed through, substantially if not totally, to the United States itself, since defense contractors will predictably raise their prices to cover, or to insure against, contingent liability for the Government-ordered designs.” Id., 511-12. Accordingly, the court afforded immunity from state tort liability to government contractors that supply military equipment when a “uniquely federal interest” is in “significant conflict” with state law. Id., 505-507.

In so doing, the court first recognized that “a few areas, involving ‘uniquely federal interests’ . . . are so committed by the Constitution and laws of the United States to federal control that state law is preempted and replaced, where necessary, by federal law of a content prescribed ... by the courts—so-called ‘federal common law.’ ” (Citations omitted.) Id., 504. The court then examined two related areas that previously had been defined as uniquely federal interests: the “obligations to and rights of the United States under its contracts”; id.; and “the civil liability of federal officials for actions taken in the course of their duty.” Id., 505. It concluded that “the reasons for considering these closely related areas to be of ‘uniquely federal’ interest apply as well to the civil liabilities arising out of the performance of federal procurement contracts.” Id., 505-506. The court concluded, therefore, that the performance of a federal procurement contract involves a uniquely federal interest that justifies the displacement of state law by federal common law. Id., 507.

Such displacement may occur, however, only when a “ ‘significant conflict’ exists between an identifiable federal policy or interest and the [operation] of state law’ . . . .”¹⁰ Id. In order to determine if such a conflict exists, the court adopted a three part test. The court stated that “[liability for design defects in military equipment cannot be imposed, pursuant to state law, when (1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States.” Id., 512. The defense applies to negligence and strict product liability actions as well as to related state tort claims. Skyline Air Service, Inc. v. G. L. Capps Co., 916 F.2d 977, 979 (5th Cir. 1990); Smith v. Xerox Corp., 866 F.2d 135, 137 (5th Cir. 1989).

In applying Boyle to the motions for summary judgment, the trial court first concluded that the government contractor defense is not precluded by the subsequent sale of the aircraft by the United States government to a foreign government.¹¹ It based this decision on its determination that the same policy considerations that compelled the United States Supreme Court to recognize the government contractor defense in Boyle applied equally in this case.

The trial court also determined that the defendants had satisfied the three elements of the Boyle test. It stated that the first element of the test is satisfied if the government reviewed and approved a detailed set of specifications. The court concluded that, because the fuel pump was specifically designed for the military project and there was evidence of extensive government involvement in the development, testing and modification of the fuel pump, the government had reasonably approved precise specifications.

The trial court then determined that the equipment conformed.to the specifications that the government had approved. According to the trial court, the purpose of the second element is to disallow the immunity defense in cases involving a defectively manufactured product. The trial court emphasized, however, that the defense applies to cases involving design defects that the government had approved with full knowledge of the dangers of the design. The trial court characterized the cavitation erosion problem as such a design defect. The court was unpersuaded by the plaintiffs argument that the fuel pump was required to operate 600 hours before any maintenance had to be performed and that, because the pump in issue had failed after 230 hours of operation, it had failed to meet that specification. Thus, the court determined that the 600 maximum operating hours (MOH) was a “maintenance guideline” rather than a specification with which the defendants would have had to comply.

Finally, the trial court determined that the third element was satisfied because the government knew about the problems that were inherent in the design of the fuel pump and there was no evidence that additional information regarding such problems had been known to the contractor, yet not conveyed to the government. Instead, the court concluded that the cavitation erosion problem and the resulting danger of pump failure were well known to the government.

Additionally, the court noted that the defense applies equally to actions based on design defects and failure to warn, and recognized that there is no requirement under the government contractor defense that the contractor notify anyone other than the United States government about any dangers inherent in the use of the equipment. The court also noted that the United States government had dictated the content of all pertinent manuals and literature and, therefore, had controlled all the information, including warnings, that was provided to foreign governments regarding the F-16 and its component parts. Having concluded that the defendants had satisfied all the elements of the government contractor defense, the trial court determined that they were immune from liability under state tort law and entitled to judgment as a matter of law. The court, therefore, granted the defendants’ motions for summary judgment.

The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). The plaintiff raises several issues on appeal. First, the plaintiff argues that the trial court improperly applied the government contractor defense to this case because the defense does not apply to cases involving sales of products that are intended for use by a foreign government rather than by the United States government. Second, the plaintiff contends that, even if the trial court properly determined that the government contractor defense may apply to these circumstances, the trial court incorrectly concluded that the defendants complied with the requisites of the defense as a matter of law. Specifically, the plaintiff claims that there are genuine issues of material fact regarding: (1) whether the government approved reasonably precise specifications for the fuel pump; (2) whether the 600 MOH is a specification with which the pump was required, but failed, to comply; (3) whether the fuel pump failed to conform to other specifications that had been approved by the government; and (4) whether the defendants had failed to give the government adequate warning regarding the dangers inherent in the use of the fuel pump. Finally, the plaintiff contends that the trial court incorrectly held that the government contractor defense precludes the plaintiff’s failure to warn claim. The plaintiff argues that the defendants had a duty to warn the Egyptian government and that the trial court improperly found that the United States government controlled the content of all information that was provided to foreign governments regarding the F-16 air frame and component parts.

We substantially agree with the trial court’s analyses and conclusions. We agree that the government contractor defense may apply to the circumstances of this case involving a supplier that has sold military equipment to the United States government for transfer to a foreign country. We also agree that the record supports the trial court’s conclusion that the plaintiff’s failure to warn claim is barred by the government contractor defense. We disagree, however, with the trial court’s conclusion that there is no genuine issue of material fact regarding whether all three defendants satisfied the requirements of the Boyle test. Thus, although we agree with the trial court that the government approved reasonably detailed specifications and was made aware of all the risks inherent in the design of the fuel pump, we conclude that, with respect to United Technologies and Chandler-Evans, there exist genuine issues of material fact regarding whether the 600 MOH requirement was a specification with which those defendants failed to conform and whether the pump otherwise conformed to all other government approved specifications.

The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. “Practice Book § 384 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Although the party seeking summary judgment has the burden of showing the nonexistence of any [issue of] material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of [an issue of] material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].” (Citations omitted; internal quotation marks omitted.) Water & Way Properties v. Colt’s Mfg. Co., 230 Conn. 660, 664-65, 646 A.2d 143 (1994). “In evaluating the propriety of a summary judgment, we are confined to an examination of the pleadings and affidavits of the parties to determine whether (1) there is no genuine issue as to any material fact, and (2) the moving party is entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Broadley v. Board of Education, 229 Conn. 1, 4 n.7, 639 A.2d 502 (1994).

I

The plaintiff first claims that the government contractor defense does not protect government contractors who sell to the United States government equipment that is ultimately destined for sale to a foreign country. Thus, the plaintiff claims that the government contractor defense does not apply to this case because the sale of the F-16B was actually between the defendants and Egypt. The plaintiff suggests that the defense applies if the equipment is used directly and exclusively by the United States government, but not if the United States government acts as a mere conduit for the sale of the equipment between the contractor and a foreign government, because only sales to the United States government involve “uniquely federal interests.” The defendants contend that the defense may apply regardless of the intended destination of the military equipment. Although the parties disagree on the resolution of this issue, they do agree that it is a question of law that may properly be decided on a motion for summary judgment. Thus, we address this issue as a question of law and conclude that the application of the government contractor defense does not depend on the intended use or disposition of the military equipment.

The United States Supreme Court first recognized the government contractor defense in Yearsley v. W. A. Ross Construction Co., 309 U.S. 18, 60 S. Ct. 413, 84 L. Ed. 554 (1940), in which the court, relying on agency theory, barred suits against government contractors performing public works projects. The defense was eventually construed to cover product liability actions brought by United States government employees against independent government contractors. McKay v. Rockwell International Corp., 704 F.2d 444 (9th Cir. 1983), cert. denied, 464 U.S. 1043, 104 S. Ct. 711, 79 L. Ed. 2d 175 (1984); In re Agent Orange Product Liability Litigation, 534 F. Sup. 1046 (E.D.N.Y. 1982). These cases recognized the defense as an extension of the United States government’s sovereign immunity from tort liability on claims brought by government employees who had been injured in the course of their employment. See Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S. Ct. 2054, 52 L. Ed. 2d 665 (1977); Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950). Most recently, in Boyle v. United Technologies Corp., supra, 487 U.S. 500, the United States Supreme Court recognized that, under certain circumstances, the government contractor defense may preclude product liability actions for design defects brought by third parties against suppliers of military equipment.

The government contractor defense is intended to protect the discretionary decisions of the United States government from judicial scrutiny and to permit the government to acquire from its independent contractors equipment of any specifications that it requires. “In the military context, this immunity serves the . . . important purpose of shielding sensitive military decisions from scrutiny by the judiciary, the branch of government least competent to review them. Application of ordinary tort law to military design and procurement decisions is not appropriate, for the government is required by the exigencies of our defense effort to push technology towards its limits and thereby incur risks beyond those that would be acceptable for ordinary consumer goods.” (Internal quotation marks omitted.) Harduvel v. General Dynamics Corp., 878 F.2d 1311, 1316 (11th Cir. 1989), cert. denied, 494 U.S. 1030, 110 S. Ct. 1479, 108 L. Ed. 2d 615 (1990); Tozer v. LTV Corp., 792 F.2d 403, 406 (4th Cir. 1986), cert. denied, 487 U.S. 1233, 108 S. Ct. 2897, 101 L. Ed. 2d 931 (1988). Furthermore, if such contractors were liable for damages resulting from design requirements imposed on them by the government, they might refuse to manufacture products that would put them at risk. In the alternative, the costs associated with any judgments against such contractors and the resulting increase in insurance costs would ultimately be passed on to the United States government. Boyle v. United Technologies Corp., supra, 487 U.S. 511-12.¹²

We conclude for several reasons that the policy considerations that precipitated the creation of the government contractor defense apply equally to the case before us. First, the United States government’s ultimate use or disposition of military equipment has never been relevant to the application of the government contractor defense. See, e.g., Skyline Air Service, Inc. v. G. L. Capps Co., supra, 916 F.2d 977. The rule articulated in Boyle applies to “federal procurement contracts” for military equipment. Boyle v. United Technologies Corp., supra, 487 U.S. 506. The court did not limit or precondition the defense according to the intended use of the equipment, but determined generally that the procurement of equipment by the United States government is an area of uniquely federal interest. Regardless of whether the United States government intends to include aircraft in its own Air Force fleet, use it as an instrument of negotiation in matters of international diplomacy or make it a gift to our allies, the government contractor defense ensures that the government can dictate precisely what it requires for any purpose and that the contractor will not be held accountable for the government’s specifications. Moreover, judicial inquiry into the United States government’s intended use or disposition of military equipment would be an improper intrusion into the discretion of the executive and legislative branches of the federal government. See Jamil v. Secretary of Defense, 910 F.2d 1203, 1205-1206 (4th Cir. 1990) (judiciary may not intrude upon authority of executive branch in military matters absent specific congressional authorization); Kreis v. Secretary of the Air Force, 866 F.2d 1508, 1511 (D.C. Cir 1989) (constitution vests complex, subtle and professional decisions as to equipping military force exclusively in legislative and executive branches).

Second, if the government contractor defense applied only to contracts for equipment destined for use directly and exclusively by the United States government, contractors would forseeably either attempt to make an equally untenable inquiry into the purpose of each contract or refuse to manufacture products according to the government’s specifications. This likely would undermine the effectiveness of the defense because the United States government may not always know how it intends to use military equipment and, even when it does know, it may not choose to reveal such information. Extending the defense to government contractors regardless of whether the equipment is destined for a foreign government alleviates the need for such an inquiry and permits the contractor to comply with the government’s requirements without hesitation.

Third, it is probable that the costs of any increased liability to the contractor would eventually be paid by the United States government. The plaintiff argues, nonetheless, that all the costs of the equipment in this case were passed on to the Egyptian government and that future increases due to greater exposure to liability would also be passed on to ultimate purchasers. We are unpersuaded. If the government contractor defense were unavailable in cases involving military equipment destined for foreign countries, higher insurance premiums due to contingent liability would undoubtedly impact equipment prices with the result that the government would pay a higher price for the equipment purchased for its own use. Also, there is no evidence that foreign governments always pay the full cost of equipment provided to them by the United States government.

Finally, we note that the defense has been applied to preclude claims against government contractors for incidents that had occurred after the product had been transferred by the United States government to a third party. See, e.g., Glassco v. Miller Equipment Co., 966 F.2d 641 (11th Cir. 1992) (government contractor defense precludes claim by nongovernmental owner of product designed for military); Skyline Air Service, Inc. v. G. L. Capps Co., supra, 916 F.2d 977 (nongovernmental owner of military surplus helicopter precluded from suit against manufacturer); Garner v. Santoro, 865 F.2d 629 (5th Cir. 1989) (government contractor defense precludes claims by civilian user of military product). We conclude, therefore, that the government contractor defense applies to all contractors that satisfy the Boyle test, regardless of the intended destination of the military equipment.

II

We next consider the plaintiffs claim that the trial court improperly concluded that there was no genuine issue of material fact with respect to the applicability of the government contractor defense and, therefore, that the trial court improperly rendered judgment for the defendants as a matter of law. The plaintiff first contends that the United States government did not approve reasonably precise specifications for the MFP-330 fuel pump. Alternatively, the plaintiff argues that, if the government did approve such specifications, then the 600 MOH requirement is a reasonably precise specification with which the pump failed to comply. Further, the plaintiff argues that there remain genuine issues of material fact concerning whether the defendants complied with various other reasonably precise specifications. Finally, the plaintiff claims that there are questions of fact regarding whether the defendants properly warned the United States government of the cavitation erosion problems inherent in the IVSP fuel pump configuration.

In response, the defendants argue that the United States government did approve reasonably precise specifications. As evidence of the government’s development of reasonably precise specifications, the defendants emphasize that the government was represented throughout the lengthy development process and had assigned a specific individual employee to the fuel pump project. The government had also insisted on a multilevel approval procedure for every phase of the aircraft’s development. Relying on this involvement, the defendants contend that the government approved reasonably precise specifications for the aircraft and all of its components, including the engine and the fuel pump. Similarly, on the basis of the government’s close and continuing scrutiny of the project, the defendants claim that it was aware of all the problems with the MFP-330 fuel pump. Finally, the defendants argue that the trial court correctly characterized the 600 MOH requirement as a precatory maintenance guideline rather than as a “specification” within the meaning of Boyle.

We agree with the defendants that the United States government approved reasonably precise specifications for the aircraft and its components and that the government knew of the problems with the MFP-330. We disagree, however, with the trial court’s conclusion that the 600 MOH requirement was, as a matter of law, a precatory maintenance guideline. Rather, we conclude that the character of the MOH requirement is unclear and, therefore, that it remains a proper question for the fact finder.

Practice Book § 384 provides that rendition of a summary judgment is appropriate “if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” It is appropriate only if a fair and reasonable person could conclude only one way. Haesche v. Kissner, 229 Conn. 213, 216, 640 A.2d 89 (1994). “The movant must show that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. ... [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.” (Citations omitted; internal quotation marks omitted.) Batick v. Seymour, 186 Conn. 632, 647-48, 443 A.2d 471 (1982). “[A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.” (Emphasis added.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 380, 260 A.2d 596 (1969). The facts as well as the evidence must be viewed in the light most favorable to the non-moving party. Rawling v. New Haven, 206 Conn. 100, 104, 537 A.2d 439 (1988). The burden of proof is on the moving party and the standards of summary judgment are strictly and forcefully applied. D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980).

We note that summary judgment is not well suited to the disposal of complex cases; United Oil Co. v. Urban Redevelopment Commission, supra, 158 Conn. 375; and that this case presents an extraordinarily technical and multifarious factual labyrinth. Thus, in order to decide whether the trial court improperly concluded as a matter of law that the three prongs of Boyle were satisfied, we must go deeper into the labyrinth to find the Minotaur.

The process that led to the development of the MFP-330 fuel pump was described at length during pretrial discovery. Several of the deponents in this case were past or then present government employees who had been involved in purchasing the F-15 or the F-16 aircraft, and those persons explained the purchasing process.¹³ The Air Force initiates purchases of new fighter jet aircraft only after it first ascertains the operational requirements, such as combat performance and flight speed, with which the new aircraft must comply. After the Air Force command has approved the operational requirements and funding has been obtained from Congress, the project is assigned to the appropriate research and development agency for execution. The operational requirements are then translated into technical requirements. These requirements are not stated in technically specific terms, but consist of a list of required goals that the product must meet. The government does not direct how those goals are to be met.

Separate requests for proposals on the air frame and its subsystems, including the engine, are then sent by the systems program office¹⁴ to potential suppliers. Although the requests may include detailed requirements that are peculiar to the particular mission the aircraft is to serve, the Air Force relies on the suppliers to provide in their proposals detailed technical specifications of the proposed aircraft. In crafting their proposals, suppliers of engines look to a general guide for military specifications on engines, which is a known reference within the industry and is not part of the request for proposal. After the suppliers submit the proposals, a selection process commences in order to evaluate thoroughly the proposals.

Competitive engine development contracts for the construction of prototypes are awarded to the contractors that present meritorious proposals. After the Air Force engineering teams evaluate the performance of the prototypes, the Secretary of the Air Force decides which supplier will be awarded the contract for the development of the engine. The final contract for the development of the engine contains a section of specifications, including detailed requirements for the engine’s performance capacities and the manner in which the contractor must demonstrate that these requirements have been met. Before production may begin, the contractor must demonstrate that the engine meets the requirements. Often the requirements, or the tests that are intended to demonstrate that the requirements have been met, are revised during the development process.

The Air Force used this procedure when it contracted, in the 1960s, for the twin engine F-15 fighter aircraft for which the MFP-330 fuel pump was developed. Only two suppliers submitted proposals for the engine, and Pratt & Whitney was awarded the contract. Subsequently, during the early 1970s, the Air Force identified an operational requirement for a lightweight tactical fighter aircraft, which was eventually designated as the single engine F-16 and developed under a technical process similar to that used for the F-15. The government was integrally involved in the development processes, through the systems program offices, of the F-15 aircraft, the F-16 aircraft and the F100 series engine.

Each systems program office contributed to the development of detailed specifications for the components of the aircraft. The F-15 and F-16 systems program offices were responsible for the air frame and the integration of the subsystems, including the engine, into the air frame. The engine systems program office was responsible for the acquisition and development of the engine and its component parts. The engine and aircraft systems program offices worked together closely on the development of the engine, and any changes to the engine or its component parts were considered by both offices. In addition, the engine systems program office included a configuration control board that reviewed all the component parts of the engine, including the fuel pump, and made recommendations to the configuration control boards of the F-15 and F-16 systems program offices.¹⁵

The contractors were required to make presentations to the government, and receive its approval, at various stages during the development process. In addition, the Air Force maintained representative offices at each contractor’s manufacturing plant to supervise the execution of ongoing development contracts. After the government approved each F100 engine and accepted delivery, it delivered the engines to General Dynamics for integration into the air frames. After the production of each integrated air frame, the government would inspect, approve and accept that aircraft. The government manifested its acceptance of each aircraft by signing a department of defense material inspection and receiving report, form DD-250 (DD-250).

The prototype of the F100 series engine incorporated a gear driven fuel pump that did not meet government requirements. Thereafter, in 1970, Pratt & Whitney contracted with Chandler-Evans for the design, development and manufacture of a variable displacement vane type main fuel pump that would conform to the engine requirements. See footnote 2. In short, the project required a new type of fuel pump technology. The pump had to be relatively lightweight, operate at higher RPMs and accept a higher temperature from the engine than pumps that were available at the time.

In 1971, when the MFP-330 fuel pump was still in the early stages of development, the government assigned Kenneth E. Binns, an engineer, to the F-15 project. Binns was particularly knowledgeable about state-of-the-art high speed vane pump technology. Several fuel pump prototypes were developed and tested by Chandler-Evans. When the production model was ready for testing, the engine systems program office and Binns rejected the first qualification test plan for the fuel pump that had been submitted by Pratt & Whitney, and required Pratt & Whitney to revise the plan.

The government subsequently approved a revised test plan, and it was implemented in subsequent bench qualification tests.¹⁶ Because a pump must be redesigned and requalified if it does not meet the requirements of the bench qualification test, the prototype of the MFP-330, which failed the first bench test, had to be altered according to the requirements imposed by the government and Pratt & Whitney. Subsequent to the redesign, the government accepted the final qualifying bench test results.

Also, the fully assembled engine, which included the fuel pump, was subjected to extensive testing. In 1974, the fuel pump was accepted for the production engine, and on June 11, 1974, the government approved the first production FI00 engine that incorporated the MFP-330. The fuel pump configuration could not be altered for any reason without a detailed engineering change proposal approved by the engine systems program office and the aircraft systems program office.

As an integral part of the F100 engine, the MFP-330 actually functioned as more than a pump. George Jahr-storfer, a Chandler-Evans engineer who assisted with the development of the MFP-330, described the pump as “a lot more than a pump. It’s a fuel controller. It’s intimately involved with the operation of the engine because . . . about 50 percent of it is a pump and the function of it is part of fuel metering so it’s a lot more complex than the basic pump.” Therefore, the MFP-330 vane pump was unique, and it was by far the most sophisticated pump that Chandler-Evans had ever manufactured.

Even after the MFP-330 fuel pump had been approved and accepted, it was particularly susceptible to cavitation erosion, and the government wanted a more durable pump with a longer operational life. In 1975, the government funded a “component improvement program” for this purpose. The component improvement program was described by Binns and Jahrstorfer as an effort to extend the 600 MOH for the main fuel pump. The government wanted a fuel pump that was operationally reliable for 1000 to 1500 hours between inspections or overhauls.

Several configurations were developed pursuant to the component improvement program for the MFP-330.¹⁷ At one point during this improvement program, the F100 engines were retrofitted with a discharge vented side plate (DVSP) configuration. After this version of the pump was in the field, however, serious cavitation erosion problems arose and the DVSP pumps were immediately retrofitted back to the IVSP configuration. The next viable design that was developed under the component improvement program was the modulated bypass configuration. On March 6,1978, the government revised the MFP-330 fuel pump component improvement program to continue the development of the modulated bypass MFP-330 fuel pump configuration and to extend the MOH of the MFP-330 to 1000 hours. This design was subjected to a much more rigorous substantiation program than the DVSP to ensure that there would not be a repeat of the DVSP problems. This configuration eventually conformed to the desired MOH of 1000 hours and replaced the IVSP configuration, but not until 1983.¹⁸

The F-16B aircraft that is the subject of this litigation contained an IYSP configured MFP-330 fuel pump with an MOH of 600. This aircraft and all of its component parts were manufactured and accepted according to the same review and approval process as that used for all other F-16 aircraft that were manufactured for the United States government. The Air Force accepted delivery of the subject F-16B on March 12, 1982, and, thereafter, delivered it to the Egyptian government.

In May, 1982, an IVSP vane pump installed in an Israeli owned F-16 failed to start on the runway, after only 341 hours of operation, due to heavy cavitation erosion damage. Subsequently, forty-one pumps were evaluated and, in addition to the failed pump in the Israeli F-16, twenty-one other pumps were determined to have severe cavitation erosion damage. On January 10,1983, ten days before the fatal crash in Egypt, the Air Force issued an order requiring all MFP-330 fuel pumps to be retrofitted with the modulated bypass configuration during each aircraft’s next overhaul.

A

We first address whether the trial court properly concluded that there was no genuine issue of material fact with respect to the first prong of Boyle. The first element of the Boyle test requires the defendants to show that the United States government had approved reasonably precise contract specifications. Boyle v. United Technologies Corp., supra, 487 U.S. 512. This requirement, in combination with the second element, is intended to “assure that the suit is within the area where the policy of the ‘discretionary function’ would be frustrated—i.e., they assure that the design feature in question was considered by a Government officer, and not merely by the contractor itself.” Id. The government must have either designed or proposed the allegedly defective feature, or approved the design after active consideration. Lewis v. Babcock Industries, Inc., 985 F.2d 83, 86-87 (2d Cir.), cert. denied, 509 U.S. 924, 113 S. Ct. 3041, 125 L. Ed. 2d 727 (1993). The approval must constitute more than a mere “rubber stamp” by the government. Trevino v. General Dynamics Corp., 865 F.2d 1474, 1486 (5th Cir.), reh. denied en banc, 876 F.2d 1154, cert. denied, 493 U.S. 935, 110 S. Ct. 327, 107 L. Ed. 2d 317 (1989). Rather, it must be the result of a “ ‘continuous back and forth’ ” between the contractors and the government. Harduvel v. General Dynamics Corp., supra, 878 F.2d 1320.

The plaintiff first argues that the United States government provided the contractors with no specifications within the meaning of the first prong of the Boyle test and, accordingly, that the trial court improperly determined that the United States government, as a matter of law, had approved reasonably precise contract specifications. The trial court determined that the main fuel pump in the F-16 engine was specially designed for the military under the auspices of the United States government. The court further concluded that the government gave its informed approval of the MFP-330 IVSP configured fuel pump after actively participating in the development, testing and modification of the pump. Therefore, the trial court determined that the government had approved reasonably precise specifications. We agree with the trial court’s conclusion.

Both the Pratt & Whitney F100 series engine and the Chandler-Evans MFP-330 fuel pump were developed specifically for the F-15 fighter jet aircraft, a piece of equipment that was for sale exclusively to the United States government. The MFP-330 IVSP fuel pump was a state-of-the-art design developed to meet the unique requirements of the F-15 aircraft. The pump was subjected to a multifaceted government approval process, and the government assigned its own engineer, Binns, to review the fuel pump development project because of his expertise and experience with vane type pumps. The development of the F-15 and F-16 aircraft, as well as the F100 engine, was overseen by the respective government systems program offices, configuration control boards and Air Force plant representatives.

Similarly, the IYSP design did not merely receive a summary “rubber stamp” of approval from the United States government. On the contrary, the government exercised its discretion when it rejected the gear driven fuel pump that had been incorporated into the F-15 prototype and when it rejected Pratt & Whitney’s original proposed qualification tests for the fuel pump. The government also required design alterations on the IVSP after the initial bench qualification test. Each of the defendants’ products was given final and separate approval by the government after extensive testing. Both flight and ground inspections were completed for each F-16 by the Air Force plant representative office at General Dynamics, and, upon approval of each aircraft, the government executed a DD-250 certifying that the aircraft conformed to all applicable specifications.

In addition, Binns participated in the decision regarding the acceptable MOH. He described during his deposition testimony how the MOH had been determined. “[I]n order to establish MOH, we had to tear down the units from the field at certain hours. In other words, we had anywhere from three to five pumps to come in at 300 hours to look at them, determine the condition of the pump, and determine if we could extend the MOH. We would put that particular hardware on the bench to run for an additional length, the next 300 hours or 100 hours, look at it again, and that’s how we extended it.” Both the contractors and the government were involved in these inspections, and all of them agreed to the MOH of 600 for the MFP-330 fuel pump.

Although the configuration of the pump was eventually altered and the MOH extended to 1000, this is not dispositive of the issue of the government’s approval of the IVSP configuration with an MOH of 600. The government’s approval of the IVSP configuration had always been in effect during its period of use. Admittedly, the government considered several alternative design configurations and eventually refitted the MFP-330 fuel pumps with the modulated bypass configuration. The fact that an improved design was under consideration or that the modulated bypass configuration was also approved for use does not, however, preclude the government contractor defense. See, e.g., Lewis v. Babcock Industries, Inc., supra, 985 F.2d 88; Ramey v. Martin-Baker Aircraft Co., 874 F.2d 946, 950-51 (4th Cir. 1989). We conclude, therefore, that the trial court correctly determined that there was no genuine issue of material fact over whether the government had approved reasonably precise specifications for each of the defendants’ products.¹⁹

We disagree, however, with the trial court’s determination that, as a matter of law, the MOH requirement was a mere maintenance guideline rather than a specification and that, consequently, United Technologies and Chandler-Evans complied with all the government’s specifications. After a thorough review of the testimony in this case, we conclude that the character of the “maximum operating hours” requirement is unclear.

Boyle did not define what type of specifications the government contractor defense is intended to address. The only requirement under Boyle is that the specification in issue must have been approved by the government with reasonable precision. Boyle v. United Technologies Corp., supra, 487 U.S. 512. This element is intended to afford immunity from state tort liability to a government contractor that manufactures a product with a design defect that nonetheless complies with government specifications. Harduvel v. General Dynamics Corp., supra, 878 F.2d 1321.

Cases that have examined whether a particular requirement was a reasonably precise specification under Boyle do not provide any substantial guidance in this case. The reasonably precise specifications that the government must approve and with which a contractor must comply have been described as “quantitative specifications that detail particular requirements to be met in manufacturing military hardware.” Kleemann v. McDonnell Douglas Corp., 890 F.2d 698 (4th Cir. 1989), cert. denied, 495 U.S. 953, 110 S. Ct. 2219, 109 L. Ed. 2d 545 (1990).²⁰ Qualitative remarks, precatory goals and safety guidelines are not the type of reasonably precise quantitative specifications to which the Boyle test refers. Sundstrom v. McDonnell Douglas Corp., 816 F. Sup. 577, 584-85 (N.D. Cal. 1992);²¹ see In re Aircraft Crash Litigation Frederick, Maryland, 752 F. Sup. 1326 (S.D. Ohio 1990).²²

In this case, many different types of specifications were generated during the process of developing the new military equipment. The operational specifications determined by the government were transformed by the contractor into design specifications, which were then converted into contract specifications after a period of evaluation and negotiation between the contractors and the government. These specifications were thereafter subject to revision through the implementation of engineering change proposals. As the development process progressed and the equipment became more defined, the parties determined performance, durability and maintenance specifications. Therefore, the final product was the result of an ever-changing interactive process of defining various specifications.

The process was particularly fluid for the development of the fuel pump. The MFP-330 IVSP fuel pump was a new technological development that had been created specifically for the F100 series engine and according to Air Force performance requirements. The initial request for proposals that was issued by the government to the contractors did not include detailed specifications on the equipment, but instead only informed the suppliers of what the equipment was required to do. The proposals that were submitted in response to the request included more detailed specifications, but they apparently were far from final. In sum, the MFP-330 IVSP fuel pump required new technology that was developed over a period of years, and it is reasonable to conclude that the specifications for the pump evolved as it developed. Although it is not clear precisely when the MOH was determined, it appears to have been decided late in the development process. It was fixed by the consensus of the government and the contractors, and the government had the final power of approval.

After evaluating the evidence before us and in light of other decisions, we conclude that the MOH can be interpreted as more than a mere maintenance guideline or qualitative safety goal. The F-15 and F-16 aircraft required a faster and lighter weight pump than the sturdier gear pump. Therefore, the government accepted the IVSP vane pump even though its relatively delicate working parts were more susceptible to cavitation erosion. That approval was given, however, with the specific understanding that the pump would have an MOH of 600 hours. Furthermore, the record discloses that, although the government approved the pump at an MOH of 600 hours, it was not satisfied with the pump’s durability. Accordingly, the government funded a component improvement program specifically to develop a fuel pump that would comply with the technical requirements and have an MOH of between 1000 and 1500. This continued research and development shows that the government recognized the minimum capabilities of the MFP-330 and wanted to increase its minimum durability.

The defendants argue that if the government has knowledge that a product will not consistently comply with a quantitative requirement and, nonetheless, approves the production of the product, such a requirement is a “desirable goal” and not a “precise specification.” See Landgraf v. McDonnell Douglas Helicopter Co., 993 F.2d 558 (6th Cir.), cert. denied, 510 U.S. 993, 114 S. Ct. 553, 126 L. Ed. 2d 454 (1993). We recognize the distinction, but disagree with the defendants that they benefit from it. In Landgraf, a main rotor blade on a helicopter dropped sharply during an emergency landing due to power failure, struck the tail boom and severed it. The helicopter crashed and the plaintiff’s decedent was killed. The government’s structural design requirements specified that “ ‘the clearance between main rotor blades and other parts of the helicopter shall not be less than 9 inches, and preferably 12 inches . . . .’” Id., 561. During tests that had been performed by the contractor several years before the subject crash, it had been observed, however, that in such an emergency landing the rotor had a clearance of as little as three inches. Further, the contractor had informed the government that the rotor might strike the tail boom under such circumstances. The government chose not to make any changes to the design of the rotor and continued to accept delivery with the knowledge of this potential problem. The court determined that, although this otherwise would be specification language within the context of tort or contract principles, the nine inch requirement was a general and generic criteria “that refers to all types of helicopters, not this specific model,” and that it was a precatory statement of the Army’s goal in normal flying conditions. Id. Furthermore, the court reasoned that “[although [the contractor] reported to the Army that there was a clearance of as little as three inches . . . not the 9 to 12 inches mentioned in MILS-8698—the Army ordered no further changes in the configuration. This is strong evidence that the Army considered the contents of MIL-S-8698 as stating a desirable goal and a recommended way of achieving it, but not precise specifications.” Id., 564. Therefore, because the court determined that the helicopter had otherwise conformed to the government’s reasonably precise specifications, it concluded that the defendant was entitled to immunity from the plaintiff’s claim under the government contractor defense.

Landgraf, however, can be distinguished from the case before us. First, the specifications at issue are not analogous. In Landgraf, the court determined that “the Army’s actions throughout the procurement process support the defendant’s claim that the provisions [for the main rotor blade clearance] did not govern the design of [the] model OH-6A [helicopter].” Id. 562. In the case before us, there is ample evidence that the MOH was carefully determined specifically for the MFP-330 and that the MOH requirement governed the design of the pump. Indeed, the MOH is one of the most precise requirements pertaining to the fuel pump that the government specified. Furthermore, the requirement of “not . . . less than 9 inches, and preferably 12 inches” may be reasonably construed as less precise than “600 MOH.”

Second, after the IVSP failure in Israel, the government reacted immediately by requiring the pumps to be inspected after 300 hours of operation,²³ a point well before the time when the failure had occurred, and by replacing them with the newly developed modulated bypass pumps on an expedited basis. These changes were implemented only in Israel. The results of the investigation of the failure showed that it was caused by excessive cavitation damage due to the Israeli mission profiles and the type of jet fuel that was used there. It is reasonable to assume that action was taken only in Israel because the government believed the cause of the problem to be localized. Thus, in contrast to Landgraf, it cannot be said in this case that the government acquiesced to the defect. Moreover, there is no evidence that the government or the defendants expected MFP-330 pumps to have an MOH of less than 600 hours. On the contrary, the government acquiesced to the 600 MOH although it wanted, and was eventually provided with, a fuel pump with an MOH of 1000. Also, the government approved the 600 MOH requirement specifically for the IVSP configured MFP-330 fuel pump. Thus, when the subject aircraft was built, the government’s desire to have the pump attain an MOH in excess of 1000 could be characterized as a mere “desirable goal,” but its prior approval of the 600 MOH could be characterized as a specification.

The significance of the MOH was explained during the testimony of several engineers. The pump was to be operated for up to 600 hours before being pulled and overhauled. This limitation was determined jointly by the government and the contractors although the government had the final decision-making authority. The MOH was conservatively determined on the single engine F-16, for safety reasons.²⁴ There was no concern regarding flight safety as long as the pump was operating within the approved MOH.²⁵ Therefore, it is reasonable to assume that users of the F-16 relied upon the MOH to determine whether an aircraft was safe to fly. Consequently, in addition to being the maximum operating hours a pump was to run before being pulled for inspection and maintenance, a reasonable fact finder could conclude that the MOH also signified the minimum number of safe operating hours before which the fuel pump would not need to be overhauled in order to ensure against engine failure.

Also, the defendants argue that the MOH cannot be a specification because it was determined late in the development of the MFP-330 fuel pump. We disagree that the timing of its development is dispositive. Faced with an issue similar to the one before us, the court in Maguire v. Hughes Aircraft Corp., 725 F. Sup. 821 (D.N.J. 1989), aff'd, 912 F.2d 67 (3d Cir. 1990), found to be a specification within the meaning of Boyle the service life of a component that had been installed in a helicopter after an initially designed component had already been operated in the field. The plaintiff, a national guardsman, alleged that he had been injured during an emergency landing when the military helicopter that he had been piloting experienced an engine failure. There was evidence that the engine failure had been caused by a defective bearing that had not been part of the original engine design, but had been incorporated later. Id., 822. Although the plaintiff conceded that the government participated actively in the original engine design, he nevertheless argued that, because the bearing was incorporated subsequent to the development of the overall design and without the active participation of the government, the bearing failed to satisfy the first prong of the Boyle test. Alternatively, the plaintiff alleged that the bearing did not comply with the specification included in the “technical data report,” which specified that the bearing would have a “BIO life of 1870 hours.” This meant that 10 percent of the bearings were calculated to fail within 1870 hours of operation. Id., 824. The engine in the plaintiffs helicopter had failed after only 711 hours of operation. The defendants contended, among other things, that the life of the bearing was mere “technical information” rather than a specification and that the equipment otherwise conformed to the specifications the government had approved. Id.

The court rejected the plaintiffs argument that the first prong of Boyle was not satisfied because the approval and incorporation of the part occurred after the original design had been completed and the equipment was operational. The court concluded that the approval requirement applies only to the “overall design” and not to every subsequent detail, and determined that the bearing was part of the overall design that had received government approval. According to Maguire, therefore, the time at which the government incorporates a requirement into the initial design is irrelevant if the requirement relates to the overall design in which the government actively participated. Similarly, in this case, the time at which the MOH was determined may also be considered irrelevant if it was part of the overall design. Thus, even if the MOH was approved after the design phase of the project, it may still be considered a reasonably precise specification that the government approved. See Lewis v. Babcock Industries, Inc., supra, 985 F.2d 89 (Boyle test may be satisfied after design phase has been completed).

Maguire is also significant to this case because that court treated the service life of the bearing as a specification. The court granted the defendants’ motions for summary judgment only because it determined that the plaintiff had failed to prove that the bearing did not comply with the specification. Specifically, the court determined that the plaintiff had failed to prove that the bearing had been changed at the last engine overhaul and, therefore, it found that the bearing potentially had been operating for 2664 hours, well over the 1870 hours specified. The court also held that “[t]he data stating that there will be a failure rate of 10 percent makes it impossible for the single failure of any one bearing to constitute nonconformity.” Maguire v. Hughes Aircraft Corp., supra, 725 F. Sup. 824. Therefore, the operational life of a product may be a specification for the purposes of the Boyle test.²⁶ Other authority reinforces this conclusion. See 3 American Law of Products Liability (T. Travers et al. eds., 3d Ed. 1987) § 45:1 et seq.

Finally, we note that although Boyle does not require the MOH to have been specifically included in equipment manuals in order to be considered a reasonably precise, government approved specification, there were several documents in which the MOH requirement was referenced or specifically stated. First, as we previously have mentioned, the 600 MOH was the focus of the government’s component improvement program task number 557. The 600 MOH was also included in Pratt & Whitney’s engineering change proposal 20638R1 recommending that the modulated bypass pump replace the IVSP, and it was the subject of Pratt & Whitney’s internal memoranda regarding the “F100 MFP reliability and durability bench endurance.” Also, the subject of Chandler-Evans’ report to Pratt & Whitney on the MFP-330 analytical inspection was two “600 hour pumps” and the report concluded with a recommendation, “leave the MOH at 600 hours.” In addition, after the modulated bypass configured MFP-330 was developed, the 1000 MOH was featured in the product’s description.

In sum, ’the record reveals that the MOH was the most specific, quantitative requirement regarding the fuel pump that the government had actively required and approved, and that it was the end result of all the testing and modifications that had been performed previously during the development of the pump. We conclude that this evidence created a genuine issue of material fact regarding whether the 600 MOH requirement is a specification.

B

The second element of the Boyle test is that the equipment conformed to the government’s specifications as approved. Boyle v. United Technologies Corp., supra, 487 U.S. 512. Thus, if a defect has been caused by faulty manufacturing or some inadequacy on the part of the supplier with the result that the equipment does not comply with the government’s specifications, the contractor fails this prong of Boyle. Id. This element is intended to protect only those contractors who have, in fact, complied with the specifications.²⁷

The trial court determined that no reasonable jury could find that any of the defendants had failed to satisfy this element. The court concluded that the fuel pump’s failure after only 230 hours of operation was not relevant to this element because it found that the MOH was not a specification. The trial court further concluded that the fuel pump was in compliance with all of the reasonably precise specifications that had been approved by the government and, therefore, that the three defendants had satisfied the second element of the Boyle test.

We agree that General Dynamics has satisfied the second prong of the Boyle test. The government contracted with General Dynamics and United Technologies separately. General Dynamics was required under its contract to provide the air frame for the F-16 and incorporate all other government furnished aeronautical equipment into the frame. The F100-PW-200 engine, which included the MFP-330 fuel pump, was delivered by Pratt & Whitney to the government, and the government provided the engines to General Dynamics as government furnished aeronautical equipment for installation into the air frame. General Dynamics received no compensation for the engines and was not involved in their development or manufacture except as either pertained to compatibility with the air frame. In addition, General Dynamics was specifically required to install the F100-FW-200 engine in the Egyptian F-16B aircraft. There is no allegation of noncompliance by General Dynamics with any of the contractual specifications for which it was responsible. Therefore, we conclude that the trial court correctly determined that no jury reasonably could find that General Dynamics had failed to comply with the government’s specifications.

According to our decision regarding the first element of the Boyle test, a determination must first be made at trial regarding whether the MOH was a specification. The parties do not dispute that the fuel pump at issue failed after 230 hours of operation. Consequently, if the MOH is determined to be a specification, the fuel pump failed to conform within the meaning of the second prong of Boyle. Because we have concluded that there is a genuine issue of material fact regarding whether the MOH is a Boyle specification, summary judgment in favor of the defendants Pratt & Whitney and Chandler-Evans was not proper.²⁸

3

The plaintiff also argues that, apart from the MOH, the fuel pump failed to conform to other government specifications and that, because the trial court failed to consider any of these alleged nonconformities, issues of fact remain as to whether these requirements were reasonably precise specifications with which the pump failed to conform.

The plaintiff specifically contends that the pump was defective in the following ways: (1) cavitation rates were excessive and therefore caused excessive damage to the IVSP configured MFP-330; and (2) the pump did not perform within the required usage and fuel parameters. In addition, the plaintiff claims that the IVSP failed to comply with the following purchase performance specifications: (1) specifications 3.2.2.11 and 3.2.8, which require that all metallic or parametallic parts have a minimum operational life of 4000 hours and be designed for a life of 6000 hours; (2) specifications 3.2.2.12 and 3.2.2.13, which require that the pump supply “the required amount of fuel at the required pressures for the operation of the engine throughout its complete operating range defined [in detail] by this specification” with or without assistance from the boost pump; (3) specification 3.2.3, which requires the pump to “operate continuously, efficiently and safely in accordance with its specified performance characteristics under the environmental standards specified”; (4) specification 3.2.3.2, which requires the pump to permit the engine to “air-start” within certain parameters after pump failure; (5) specifications 3.2.5.2, 3.2.5.5, 3.2.6.1 and 3.2.6.2, which require the pump to perform normally within a range of temperature, altitude, air flow and flight maneuver conditions; and (6) specification 3.3.1.6, which requires the pump to function “in world wide corrosive and erosive environments without elaborate protective procedures.”

Although the trial court determined that the government had approved reasonably precise specifications for the MFP-330, it summarily concluded that the equipment had conformed to these specifications because the government had accepted the equipment as conforming to its requirements as evidenced by the signed form DD-250 and because the plaintiff had offered no evidence of a manufacturing defect. We conclude that the trial court improperly failed to analyze the alleged specifications according to the elements of Boyle.

The first element oí Boyle required the trial court to determine whether the alleged requirements were among the reasonably precise specifications that the government had approved. The next element required the trial court to determine whether the defendants complied with the specifications. See Boyle v. United Technologies Corp., supra, 487 U.S. 512. “[T]he requirements of ‘reasonably precise specifications’ and conformity with them refer to the particular feature of the product claimed to be defective.” (Emphasis in original.) Bailey v. McDonnell Douglas Corp., 989 F.2d 794, 799 (5th Cir. 1993); see Boyle v. United Technologies Corp., supra, 512; Trevino v. General Dynamics Corp., supra, 865 F.2d 1486. Because the government contractor defense is an affirmative defense and the defendant must carry the burden of proving each element by a preponderance of the evidence, the court must evaluate each feature of the product claimed to be defective under each element of Boyle in order to determine whether the defendant has met its burden. See, e.g., Tillett v. J.I. Case Co., 756 F.2d 591 (7th Cir. 1985). In addition, we note that, in order to be entitled to summary judgment, the defendants bear the heavy burden of proving that there is no genuine issue of material fact, and the trial court must view the evidence in the light most favorable to the nonmoving party. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105, 639 A.2d 507 (1994). In this case, the trial court improperly failed to engage in the proper analysis.

First, we do not consider the United States government’s signing of a DD-250 form to be, in and of itself, conclusive proof that the fuel pump at issue in this case complied with the government’s specifications. Although we acknowledge that initial acceptance by the United States government, in the form of a signed DD-250, is some evidence that the aircraft complied with specifications, such preliminary acceptance cannot foreclose the possibility that the aircraft, in fact, was nonconforming. Especially in a highly complex product such as a military aircraft, slight deviations from required specifications may pass an initial inspection unnoticed, only to become apparent later after further examination or, as alleged by the plaintiff in this case, after such deviations have resulted in the malfunction of the product.

The government inspection and approval process that culminated in the signing of the DD-250 in this case appears to be the standard procedure for all military aircraft that the government purchases. See, e.g., Lewis v. Babcock Industries, Inc., supra, 985 F.2d 83 (describing development of F-lll-F jet fighter); Klee-mann v. McDonnell Douglas Corp., supra, 890 F.2d 698 (describing development of F/A-18 aircraft); In re Aircraft Crash Litigation, Frederick, Maryland, supra, 752 F. Sup. 1326 (describing development of EC-135N jet aircraft). If we were to conclude that the signing of a DD-250 constitutes government approval of any inherent defect as a matter of law, the signing of a DD-250 would foreclose any cause of action against a government contractor for latent defects regardless of whether the government was actually aware of the defects. This interpretation is contrary to the criteria set forth in Boyle requiring that, in order for the defense to apply, the government must have specific knowledge of the defect and must nonetheless have given either its explicit and implicit approval of the product. See Boyle v. United Technologies Corp., supra, 487 U.S. 512-13. In this case, the government’s awareness that the MFP-330 was subject to cavitation damage does not lead to the conclusion that because it signed a DD-250, it implicitly accepted that the MFP-330 would have an operational life of less than 600 hours. Therefore, the trial court’s finding that the signed DD-250 constituted proof that the equipment complied with all specifications was insufficient to establish conclusively that the defendants had complied with the government’s specifications.

Finally, a summary determination that the plaintiff had failed to prove a manufacturing defect was an inappropriate basis for summary judgment on this issue. First, the defendants must satisfy the three elements of Boyle before the burden shifts to the plaintiff to present evidence of a manufacturing defect. Bailey v. McDonnell Douglas Corp., supra, 989 F.2d 802. “To say that a product failed to conform to specifications is just another way of saying that it was defectively manufactured.” Harduvel v. General Dynamics Corp., supra, 878 F.2d 1321. Thus, the trial court must first analyze, according to the elements of Boyle, the plaintiff’s various claims that the fuel pump did not conform to specifications. Only if the trial court determines that the defendant has satisfied the three elements of Boyle for each of the alleged specifications must the court consider the plaintiff’s proof of a manufacturing defect. Id. In Bailey, the court determined that “[bjecause [the defendant] did not present evidence that the three Boyle conditions were satisfied with respect to the [specification at issue], upon which Bailey’s manufacturing defect claim was based, it did not meet its burden of proof with respect to that claim; and, therefore, the burden did not shift to Bailey to present evidence to support her claim.” Bailey v. McDonnell Douglas Corp., supra, 802. As we have previously stated, in this case, the trial court failed to engage properly in the initial Boyle analysis. For these reasons, we conclude that the trial court improperly rendered summary judgment for Pratt & Whitney and Chandler-Evans.

C

We next consider whether the trial court properly determined that there was no genuine issue of whether the defendants had proven the third prong of Boyle. To satisfy the third element of the Boyle test, the contractor must have warned the government “about the dangers in the use of the equipment that were known to the supplier but not to the [government].” Boyle v. United Technologies Corp., supra, 487 U.S. 512. “The third condition is necessary because, in its absence, the displacement of state tort law would create some incentive for the manufacturer to withhold knowledge of risks, since conveying that knowledge might disrupt the contract but withholding it would produce no liability.” Id. The trial court determined that the government had full knowledge of the cavitation problem that was inherent in the fuel pumps and that there was no evidence that the contractors withheld any information regarding potential dangers known to them. The trial court concluded, accordingly, that no jury reasonably could find that the defendants had failed to satisfy the third prong of Boyle. We agree.

The duty to warn requires disclosure only when the supplier’s knowledge of the danger or defect is superior to that of the government. Lewis v. Babcock Industries, Inc., supra, 985 F.2d 89-90; Stout v. Borg-Warner Corp., 933 F.2d 331, 336 (5th Cir.), reh. denied enbanc, 940 F.2d 657, cert. denied, 502 U.S. 981, 112 S. Ct. 584,116 L. Ed. 2d 609 (1991). The third element is met when there is evidence in the record that the government knew about the problem and there is no evidence that the contractor withheld any additional information about the problem. Harduvel v. General Dynamics Corp., supra, 878 F.2d 1321.

Our discussion of the first two Boyle elements illustrates the extent of the government’s involvement in the process of developing the MFP-330 fuel pump and the F100 series engine. This shows that the government had full knowledge of all problems known to Chandler-Evans and Pratt & Whitney. Further, our review of the record indicates General Dynamics’ total lack of involvement in that process, which establishes that it had no knowledge of problems with the MFP-330 sufficient to give rise to a duty to warn. Indeed, no reasonable fact finder could dispute these conclusions.

The development of the MFP-330 was obviously a joint effort of the United States government, Chandler-Evans and Pratt & Whitney. Government approval was required at every phase of the development process, and once the specifications were determined, any deviation required government approval. In addition, the government maintained a presence at the manufacturing facilities and assigned an engineer to work on the fuel pump. The government approved the procedure to test the pump, and each additional test was reviewed and approved by the government prior to the continued production of the pump. According to the testimony of government personnel who were involved in the project, the government was fully aware of the cavitation erosion problems inherent in the pump. This awareness is also evident from the initiation of the component improvement program as a remedial measure; see Lewis v. Babcock Industries, Inc., supra, 985 F.2d 89-90; Stout v. Borg-Warner Corp., supra, 933 F.2d 336; Harduvel v. General Dynamics Corp., supra, 878 F.2d 1321-22; and the conservative determination of the MOH. Furthermore, the government was fully aware of the Israeli incident involving an IVSP fuel pump that failed to start on the runway. A subsequent investigation that was ordered by the government revealed that the failure was due to excessive cavitation erosion, which tends to show the government had knowledge of the problem. See Harduvel v. General Dynamics Corp., supra, 1321-22. Thus, we concur with the trial court’s determination that the plaintiff presented no evidence that Pratt & Whitney or Chandler-Evans had withheld any relevant information.

Moreover, we note that there was no evidence to show that General Dynamics had any knowledge about cavitation erosion problems with the fuel pump. Because General Dynamics had no such knowledge, they had no duty to the government regarding any alleged defect in the fuel pump. See Nicholson v. United Technologies Corp., 697 F. Sup. 598, 605 (D. Conn. 1988). We therefore agree that the defendants complied with the third prong of the Boyle test.

Ill

We next address the plaintiff’s claim that the government contractor defense does not shield the defendants from liability because they failed to warn the Egyptian government about the dangers inherent in the MFP-330 fuel pump. The trial court treated this claim as part of the third element of the Boyle test and determined that the defendants had no duty to notify anyone other that the United States government of known dangers or defects. Although we disagree with the trial court’s analysis, we agree that the defendants are entitled to immunity from the plaintiff’s failure to warn claims under the government contractor defense.

In Boyle, the United States Supreme Court applied the government contractor defense only to design defects. Subsequent cases in the lower federal courts, however, have extended the application of the defense to failure to warn claims. See, e.g., In re Joint Eastern & Southern District New York Asbestos Litigation, 897 F.2d 626 (2d Cir. 1990); Niemann v. McDonnell Douglas Corp., 721 F. Sup. 1019 (S.D. Ill. 1989); Nicholson v. United Technologies Corp., supra, 697 F. Sup. 598. Although the government contractor defense may function as an affirmative defense to a failure to warn claim; Nicholson v. United Technologies Corp., supra, 604; a failure to warn claim is not automatically precluded by the government contractor defense. See In re Joint Eastern & Southern District New York Asbestos Litigation, supra, 632. Thus, the government contractor defense may not shield a contractor from liability on a failure to warn claim even if the defense does shield that contractor from the plaintiffs defective design claims. In re Brooklyn Navy Yard Asbestos Litigation, 971 F.2d 831, 839-40 (2d Cir. 1992). “ ‘[I]t is not unreasonable to imagine that . . . government contracts often may focus upon product content and design while leaving other safety-related decisions, such as the method of product manufacture or the nature of product warnings, to the contractor’s sole discretion. In these instances, state law design requirements are displaced, although state law warning requirements are not.’ ” Id., 840, quoting In re Joint Eastern & Southern District New York Asbestos Litigation, supra, 631.

Therefore, the resolution of a failure to warn claim requires a separate Boyle-type analysis. First, the government contractor defense applies only if the government dictated with reasonable precision the content of the initial warnings included in the operational or maintenance manuals and limited or precluded the contractor from advising the user of additional information or revisions. See In re Agent Orange Product Liability Litigation, 996 F.2d 1425, 1436 (2d Cir. 1993), cert. denied sub nom. Ivy v. Diamond Shamrock Chemicals Co., U.S. , 114 S. Ct. 1125, 127 L. Ed. 2d 434 (1994); In re Hawaii Federal Asbestos Cases, 960 F.2d 806, 812 (9th Cir. 1992); In re Joint Eastern & Southern District New York Asbestos Litigation, supra, 897 F.2d 630; Nicholson v. United Technologies Corp., supra, 697 F. Sup. 604. Second, the contractor must have acted in conformity with those reasonably precise specifications established or approved by the government concerning the contents of the maintenance manual. Nicholson v. United Technologies Corp., supra, 604. Third, “the supplier [must] have warned the United States about the dangers in the use of the equipment that were known to the supplier but not the United States.” Id., 605.

In this case, both the operational flight manuals and the maintenance manuals were provided for the F-16. The government specified the contents of the manuals and, therefore, controlled the content of any warnings. General Dynamics prepared the manuals according to those specifications, and the government reviewed them to ascertain compliance. Only then were they given government approval and published. Thereafter, the government had to approve any subsequent revisions to the manuals. The United States government, therefore, directly controlled the content of the operational flight and maintenance manuals.

Furthermore, the Air Force had established a “technical assistance field team,” which served as a conduit for all official communications to the Egyptian government regarding engine problems. Although United Technologies and General Dynamics maintained support staff in Egypt, the United States government restricted direct communication between the contractors and the Egyptian government regarding technical data. For example, all information regarding the Israeli incident was directed through the United States government’s F-16 technical assistance field team that was stationed in Israel. The Pratt & Whitney employees in Egypt were not informed of the incident until after the Egyptian F-16B had crashed. In addition, the terms and conditions of the contract between Egypt and the United States government restricted direct communication between Egypt and the contractors.²⁹

Finally, the Arms Export Control Act strictly limits the circumstances in which a contractor can furnish any technical data to foreign countries. 22 U.S.C. § 2751 et seq. Therefore, we conclude, as a matter of law, that the government dictated reasonably precise specifications for the contents of the operational flight and maintenance manuals and any subsequent amendments to them. We also conclude, as a matter of law, that the United States government controlled or limited the information that could be communicated directly by the contractors to the Egyptian government.

As to the second element, there is no evidence that any of the defendants failed to comply with the government’s specifications for the content of these manuals. Indeed, every indication shows that the defendants fully complied with the government’s specifications. Finally, because the third element of this application of the government contractor defense is identical to that of the defense in the design defect context, we need not repeat that discussion. Instead, we need only emphasize that we have already determined that the United States government was aware of all the dangers associated with the use of the IVSP vane pump. Therefore, the government contractor defense precludes the plaintiff’s failure to warn claims, and the trial court properly rendered summary judgment in favor of the defendants on that issue.

IV

In conclusion, we affirm the trial court’s decision to grant General Dynamics’ motion for summary judgment on all counts against it. We also agree with the trial court’s determination that the government contractor defense is not precluded merely because of the intended transfer of the aircraft to a foreign government. We further agree with the trial court’s determination that the plaintiff’s failure to warn claims are precluded by the government contractor defense as a matter of law. We conclude, however, that the trial court improperly granted United Technologies’ and Chandler-E vans’ motions for summary judgment on the plaintiff’s design defect and manufacturing defect claims because there remain genuine issues of material fact regarding whether those two defendants complied with the reasonably precise specifications approved by the government.

The judgment is reversed in part and the case is remanded for further proceedings in accordance with this opinion and otherwise according to law.

In this opinion Berdon and Norcott, Js., concurred.

1 The United States government provided the Egyptian government with dual seat F-16B aircraft that were apparently used for training purposes. It also provided the Egyptian government with single seat F-16A aircraft.

2 A fixed displacement pump, such as a gear pump, supplies a constant flow of fuel regardless of the engine’s requirements. When the flow is greater than the engine requires, only a portion of the fuel is burned, which causes waste and an undesirable increase in temperature. A variable displacement pump, on the other hand, supplies only that amount of fuel that the engine requires. It is therefore more efficient than the fixed displacement pump and creates no increase in temperature. A vane pump has a rotor of flat, thin rectangular vanes that causes displacement. The IVSP feature refers to the particular inner configuration of this variable displacement vane pump.

3 It is undisputed that the fuel pump was supposed to perform for 600 “maximum operating hours” before it had to be overhauled. The parties are not in agreement, however, regarding whether the “maximum operating hours” designation is a specification or merely a maintenance guideline.

4 Cavitation was described during the testimony of various engineers as a phenomenon that occurs when fluid is subjected to variable pressure under closed conditions. For instance, when the pressure on fuel in a fuel pump decreases, it begins to vaporize and tiny air bubbles form. Thereafter, when the pressure on the fuel increases, the bubbles collapse and create pressurized “microjets” of fuel that bombard the metal surfaces of the pump, eroding the surface and causing pitting, erosion and metal fatigue.

Cavitation erosion is a condition that affects and limits the service life of all fuel pumps, and it had been a source of concern with the IVSP vane pump. Although the United States government in 1975 had funded an ongoing “component improvement program” to address problems that limited the service life, reliability, durability and maintainability of the IVSP fuel pump, the cavitation erosion problem was never satisfactorily resolved and the IVSP configuration was eventually replaced with a different configuration.

5 The Hassan estate accepted an offer of judgment of $200,000 before the government contractor defense was raised and, therefore, the trial court’s ruling on the defendants’ motions for summary judgment applies only to the Dighidi estate.

6 Miller actually commenced two separate actions: one in his capacity as temporary administrator of both estates and a second identical action in his capacity as permanent administrator of the estates. These actions were later consolidated and the trial court treated them as one action. We do the same. Subsequently, when the appeal from the trial court was transferred to this court, Harold L. Rosnick, as administrator of the estate of Mohamed Abdul-Samed Dighidi, was substituted as plaintiff.

7 Pratt & Whitney first developed the F100 series engine for the twin engine F-15 fighter jet aircraft. The F-15 engine was identified as the F100-PW-100 by Pratt & Whitney and the MFP-330 fuel pump was originally designed for and incorporated into that engine. Thereafter, the government chose to use the same engine for the single engine F-16 fighter jet aircraft. Pratt & Whitney identified the F-16 engine as the F100-PW-200. The F100-PW-100 and F100-PW-200 included identical MFP-330 fuel pumps.

8 The plaintiff successfully opposed the defendants’ motion to dismiss on the ground of forum non conveniens. Miller v. United Technologies Corp., 40 Conn. Sup. 451, 467, 515 A.2d 390 (1986).

9 Section 1346 (b) of title 28 of the United States Code provides that damages may be recovered from the United States for harm caused by the negligent or wrongful conduct of government employees, to the extent that a private person would be liable under the law of the place where the conduct occurred. There is, however, an exception under 28 U.S.C. § 2680 (a) that precludes a party from recovering against the United States on “[a]ny claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.”

10 The court explained the concept of significant conflict by example. “If . . . the United States contracts for the purchase and installation of an air-conditioning unit, specifying the cooling capacity but not the precise manner of construction, a state law imposing upon the manufacturer of such units a duty of care to include a certain safety feature would not be a duty identical to anything promised the Government, but neither would it be contrary. The contractor could comply with both its contractual obligations and the state-prescribed duty of care. No one suggests that state law would generally be pre-empted in this context. . . . [If, however,] the state-imposed duty of care that is the asserted basis of the contractor’s liability ... is precisely contrary to the duty imposed by the Government contract ... [a conflict may exist, although even] in this sort of situation, it would be unreasonable to say that there is always a ‘significant conflict’ between the state law and a federal policy or interest.” (Emphasis added.) Boyle v. United Technologies Corp., supra, 487 U.S. 509. If, for example, the government orders equipment from stock, by model number, with a defectively designed feature, “it is impossible to say that the Government has a significant interest in that particular feature.” Id.

11 The trial court determined that Connecticut law, not Egyptian law, applies to this case, except to the extent that state law is superseded by the government contractor defense. This determination has not been challenged on appeal.

12 We note that the government contractor defense applies to subcontractors as well as contractors and, therefore, may extend to Chandler-Evans. See, e.g., Ramey v. Martin-Baker Aircraft Co., 874 F.2d 946 (4th Cir. 1989). In addition, “[t]he fact that ... a subcontractor [deals with the contractor], rather than directly with the government, is not sufficient to defeat [the defense].” Maguire v. Hughes Aircraft Corp., 725 F. Sup. 821, 825 (D.N.J. 1989), aff’d, 912 F.2d 67 (3d Cir. 1990).

13 Although this case involves the failure of an F100-PW-200 engine in an F-16B aircraft, the specifications for the fuel pump were defined during the course of the development of the F-15. See footnote 7. Accordingly, the testing and approval procedures for the F-15 project are relevant to our analysis of whether the government approved reasonably precise specifications for the pump. Therefore, we must discuss the development process of both aircraft and, in the interest of clarity and simplicity, we incorporate the approval processes of both the F-15 and F-16 aircraft into a single description. There is no evidence that the government departed from its standard procedure for either aircraft.

14 A systems program office was described by James Bair, Air Force staff engineer of the F-16 systems program office, as “part of the fundamental organizational structure of the aeronautical systems division. Program offices acquire and develop the aeronautical systems which we then turn over to the operational forces to use.” There were separate systems program offices for the F-15 aircraft, F-16 aircraft and the F100 series engine.

15 The Egyptian government had a representative on the configuration control board of the F-16 systems program office and was therefore involved in the ultimate decisions regarding the engine. As a member of the F-16 systems program office, the Egyptian representative would have been required to authorize the engineering change proposal for the incorporation of the modulated bypass fuel pump. Egypt was also a participant in the component improvement program to develop a more durable fuel pump.

16 During a bench qualification test, the contractor simulates operational conditions and operates the equipment to be tested under these conditions for a predetermined and often lengthy period of time. The performance of the equipment is evaluated both during and after its operation. The government had to approve the qualification test plan and the results of the bench qualification test implementing the plan as part of the overall approval process for the fuel pump.

17 Because the F-16 is a single engine aircraft, it is critical that the fuel pump function adequately. One of the solutions proposed by Pratt & Whitney was a dual pump system, but the government rejected that idea.

18 We note that, during deposition testimony, Paul Baxter, the systems program office engineer in charge of the durability aspects of the F100 engine, and James Crouch, a project engineer for the F100 engine, described the desired MOH of 1000 to 1500 as a “goal.” If it were clear that the MOH was merely a desired goal, we would be compelled to agree with the trial court and conclude that, as a matter of law, the MOH is not a Boyle specification. This testimony, however, was in the context of the period before the modulated bypass pump had been developed or approved and, therefore, before the MOH had become 1000. The MOH was always 600 during the period that the government funded the development of a more durable pump that would achieve 1000 MOH. Because 1000 MOH was only a “goal” during the period .in which it was not yet attained, we do not believe this characterization is inconsistent with our conclusion that the 600 MOH may be a specification within the meaning of Boyle. Furthermore, the 600 MOH was never referred to by any of the multitudinous deponents as a desired “goal.”

19 Additionally, we note that in Harduvel v. General Dynamics Corp., supra, 878 F.2d 1320, the court specifically determined that, in respect to General Dynamics’ limited role in the project, the F-16 design process satisfies the first element of Boyle as a matter of law.

20 In Kleemann v. McDonnell Douglas Corp., supra, 890 F.2d 698, the specification at issue was a general requirement that the landing gear of the aircraft “be strong enough to withstand normal landing loads without bending, that it remain locked after extension until unlocked from the cockpit, and that any failure of the landing gear not result in uncontrollable movement of the airplane.” The court determined that this was a general qualitative requirement and not a precise quantitative specification. Id., 702.

21 In Sundstrom v. McDonnell Douglas Corp., supra, 816 F. Sup. 584, the plaintiff alleged, among other things, that the defendant had not complied with the following specification: “The [ejection] seat system shall be free of any projections or sharp edges which could snag, jam, or damage clothing and equipment, injure the seat occupant or maintenance personnel, foul personal equipment, jeopardize operation of seat components, or interfere with recovery parachute operation.” The court compared this specification to the landing gear specification in Kleemann and determined that the ejection seat requirements were similarly qualitative and general. Id., 584.

22 In In re Aircraft Crash Litigation Frederick, Maryland, supra, 752 F. Sup. 1326, the plaintiff argued that the defendants had failed to comply with a series of specifications that pertained to a flight control system. The court gave as an example of the disputed specifications the “Amended Statement of Work, Project Definition Phase, Section 1.7 which, as is true of the other documents relied upon by Plaintiffs, became part of [the] contract with the Air Force:

Characteristics

The A/RIA System shall be designed to meet all of the varied characteristics and performance requirements specified. The requirements of the A/RIA/ALOTS system may require aerodynamic refinements heretofore not incorporated in this type(s) of aircraft. Primary emphasis shall be placed in obtaining the best control and stability with minimum overall degradation of existing C-135 performance characteristics.” Id., 1360 n.40. The court determined that these requirements were not Boyle specifications. Id., 1360.

23 Samuel Arline, a senior engineer in charge of pump hardware for Pratt & Whitney, testified that the temporary alteration of the inspection requirements did not equate to a change in the 600 MOH.

24 Marvin Bryant, United States Air Force program manager for the F100 engine, testified to the following during his deposition of April 29, 1992:

“Q. And what was the nature, what were the natures of your duties and responsibilities with respect to the MOH for the MFP-330?

“A. My job was to consider the recommendations from the contractors and from the in-house Air Force engineers and logistics regarding the num-her of hours they thought that it would be safe to operate before it would need to be reviewed for overhaul.

“Q. So to what extent, if at all, was any margin of safety built into the MOH, set at a given time for the main fuel pump?

“A. The F-16, being a single engine airplane, we were very cautious about anything that would affect its safety, so the numbers of hours that we would allow the components to operate on the F-16 were actually less than on the F-15. . . .

“Q. What information did you utilize with respect to determining the MOH for the . . . MFP-330 main fuel pump?

“A. The information that was normally available included experience from ground tests, experience from flight tests and experience from field service tests and experience from operation in the F-15. ... I think at this time we were also receiving from the contractors a safety analysis that predicted the level of safety that you could expect from the change.”

25 Binns, the government engineer who supervised the development of the MFP-330, responded to questions regarding the MOH during his deposition of April 28, 1992, as follows:

“Q. The MOH value number of hours was set, was it not, such that when the fuel pump would reach that number of hours it would not have failed?

“A. Correct.

“Q. And the MOH was at the time at a particular number of hours purposefully to require an inspection or overhaul or some type of maintenance item before a pump was believed to be in danger of failing, is that correct?

“A. Right.

“Q. Consequently, there was no concern of flight safety if a main fuel pump were operating within its approved MOH, is that correct?

“A. Correct.”

26 In its brief, United Technologies attempts to distinguish Maguire by describing the life of the bearing as a “design criteria.” We see no substantive difference between the 1870 hour operating life of the bearing at issue in Maguire and the 600 hour operating life of the fuel pump in the case before us. United Technologies also attempts to argue that the Maguire court did not determine that the life of the bearing is a specification. The court stated that it was “not convinced that the life of the . . . bearing does not constitute a specification”; Maguire v. Hughes Aircraft Corp., supra 725 F. Sup. 824; and then went on to find that the plaintiff failed to show that the bearing was nonconforming. Accordingly, the court determined that the second element of Boyle was satisfied. If the court had determined that the life of the bearing was not a specification, further analysis would have been unnecessary. Instead, in effect, the court determined that the bearing was in conformance with the specification. Therefore, we disagree with United Technologies’ interpretation of Maguire.

27 A contractor’s performance is nonconforming only “if the discrepancy between specifications and product [is] a material one . . . .” In re Agent Orange Product Liability Litigation, supra, 534 F. Sup. 1057. If the 600 MOH requirement is a specification, the subject pump, which failed after 230 hours of operation, was clearly nonconforming and further evaluation of substantial compliance is not required.

28 Federal common law provides support for the proposition that this case should not be disposed of by summary judgment. It is well established that whether a contractor is shielded from liability by the government contractor defense may be either a question of law or a question of fact. 3 L. Frumer & M. Friedman, Product Liability (1994) § 3.04[1]. This was clearly set forth in Boyle, which, applying federal law, stated that whether the facts establish the conditions for the government contract defense is a jury question. Boyle v. United Technologies Corp., supra, 487 U.S. 500. Only if “no reasonable jury could find ... on the basis of the evidence presented, that the Government contractor defense was inapplicable” is a defendant entitled to judgment as a matter of law. Id., 514. The question of whether the government approved reasonably precise specifications with which the contractor complied has been adjudicated as a question of fact, and cases in which the government contractor defense has been raised have treated its applicability as a jury question. See, e.g., Bailey v. McDonnell Douglas Corp., 989 F.2d 794 (5th Cir. 1993) (denying summary judgment based on government contractor defense where manufacturing defect was alleged); McGonigal v. Gearhart Industries, Inc., 851 F.2d 774 (5th Cir. 1988) (jury found contractor was not performing in compliance with government specifications regarding inspection procedures); Jackson v. Deft, Inc., 223 Cal. App. 3d 1305, 273 Cal. Rptr. 214 (1990) (applying federal law, finding triable issue of fact concerning existence of substantial conflict between federal interest and state law under Boyle)-, Dillaplain v. Lite Industries, Inc., 788 S.W.2d 530 (Mo. App. 1990) (under Boyle applicability of government contractor defense is question of fact for jury); R.B. Hazard, Inc. v. Panco, 240 Va. 438, 397 S.E.2d 866 (1990) (applying federal law, contradictory testimony on matters relating to Boyle criteria created question of fact for jury).

29 The contract, dated June, 1980, between the Air Force and Egypt provides: “Export of Data: The Contractor or subcontractor shall not be required to deliver to the [Government of Egypt] nor to any person or entity not a citizen of the [United States], any technical data produced or utilized under the Program until furnished with evidence acceptable to it that such delivery of the data is (1) approved by the Office of Munitions Control of the [United States] State Department pursuant to the International Traffic in Arms Regulations of that Agency, or (2) approval is not required.”