author: BENNETT, Judge:

text:
    CONSUMERS ICE COMPANY, a California corporation v. The UNITED STATES.
    No. 815-71.
    United States Court of Claims.
    March 16, 1973.

      Douglas B. Martin, Jr., San Francisco, Cal., attorney of record for plaintiff.
    Herman L. Fussell, Washington, D. C., with whom was Asst. Atty. Gen. Kent Frizzell, for defendant.
    Before COWEN, Chief Judge, DUR-FEE, Senior Judge, and DAVIS, SKELTON, NICHOLS, KUNZIG, and BENNETT, Judges.
   ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT

BENNETT, Judge:

The uncontested facts of this case present the court with the problem of interpreting, on cross-motions for summary judgment, the language in a written lease in which the plaintiff, Consumers Ice Company, is the lessor and the defendant, the United States, is the lessee. For reasons to be stated, the court grants the plaintiff’s motion for summary judgment on the issue of liability alone and remands the case, pursuant to Rule 131(c), to the Trial Division for further proceedings on the issue of damages. The defendant’s cross-motion for summary judgment is denied.

Before addressing the merits of this case, it must be noted that the named plaintiff, Consumers Ice Company, a California corporation, was dissolved on April 18, 1972, after commencement of suit in this court. All assets, including this claim, were distributed to the shareholders who, in turn, have conveyed them to Texas International Company, a Delaware corporation. Our Rule 61(a) provides that every action shall be prosecuted in the name of the real party in interest and Rule 61 (b) says that the capacity to sue shall be determined by the law of plaintiff’s domicile. Counsel appear to be agreed that the shareholders should now be substituted as plaintiffs, having received their interest by operation of law and that, according to California law, the shareholders can continue the suit. Plaintiff concedes that Texas International Company cannot be substituted as plaintiff without consent of the United States because of the Assignment of Claims Act, 31 U.S.C. § 203 (1970). On the latter point, defendant has been silent. There are various exceptions to this Act by operation of law. Webster Factors, Inc. v. United States, 436 F.2d 425, 429, 193 Ct.Cl. 892, 900-901 (1971). Among these exceptions is one stating that claims are not barred by successor corporations where their rights are gained by consolidation or merger with the original claimant corporation, all of whose assets and liabilities are transferred to it. Seaboard Air Line Ry. v. United States, 256 U.S. 655, 41 S.Ct. 611, 65 L.Ed. 1149 (1921). From the papers now before the court, this appears to be the situation here. The purposes of the Act, often stated, to prevent fraud, to avoid multiple litigation, and to protect the defenses the United States may have against the assignor by way of setoff and counterclaim, would not appear to be violated by substitution of Texas International Company as plaintiff and the real party in interest. However, it is not necessary to decide this issue now, as between the shareholders and Texas International Company. They may resort to the procedures afforded by Rule 66(c) and move accordingly, the issue to be resolved at the Trial-Division level in the proceedings connected with determination of damages. In the interim, for convenience of reference and historical reasons, plaintiff will continue to be referred to as Consumers Ice Company.

The lease in question was executed on October 29, 1954, between the Consumers Ice Company and the Army Corps of Engineers for a parcel of land located in San Mateo County, California. The land covered by the original lease is 8.55 acres near the center of a larger undeveloped tract of approximately 1100 acres owned by the plaintiff. The Army wished to use the property as part of the anti-aircraft facilities protecting the San Francisco Bay area with the Nike-Hercules missile. A radar installation was constructed on the land covered by the lease, which installation is still in operation.

The lease required the Government to pay a nominal rent of one dollar per year, which is all the defendant paid for the use of this property up to 1969 when the plaintiff stopped accepting the checks. The apparent motivation on the part of the plaintiff for entering into this agreement was the fact that the Government had been prepared to condemn the property in 1954 and the plaintiff felt that a lease at a dollar per year was preferable to the loss of the fee interest in the property at that time.

The focus of the problem in this case is the interpretation to be given clause No. 3 of the lease, which reads as follows:

3. To have and to hold the said premises for the term beginning July 1, 1954, through June 30, 1955, provided that unless and until the Government shall give notice of termination in accordance with provision 6 hereof, this leas,e shall remain in force thereafter from year to year without further notice; provided further that adequate appropriations are available from year to year for the payment of rentals and provided further that this lease shall in no event extend beyond June SO, 196U, or as long as required for Anti-aircraft purposes. [Emphasis added.]

The problem comes in determining how long the parties intended this lease to run. The plaintiff served notice on the Government in a letter dated May 22, 1969, to vacate the property covered by the lease before July 1, 1969. The defendant responded by a letter dated June 9, 1969, in which it asserted its right under the lease to continue to occupy the premises. Each party interprets the emphasized passage, supra, in a different way, which requires this court to sort out the various interpretations and come up with the reading that is most reasonable under the total circumstances involved.

The plaintiff contends the lease expired no later than June 30, 1964. Thereafter, the Government was a mere tenant at will who could stay only as long as the lessor did not voice objection by giving a 30-day notice to vacate. Thus, the Government occupied the premises from July 1, 1964 through June 30, 1969, as a tenant at will and has stayed in possession of the property after that time against the will of the plaintiff for which the plaintiff now seeks a reasonable rental value from June 30, 1969 until the date of judgment. The Government’s interpretation of the lease emphasizes the language “or as long as required for Anti-aircraft purposes.” It feels the lease is still in full force and effect and will continue to be so until it is determined by the appropriate military authorities that the property is no longer needed for the anti-aircraft defenses of the San Francisco Bay area.

Clearly, the interpretations given the identical language by the two parties are entirely at odds. The language of clause No. 3 of the lease is certainly not a model of legal drafting, and as a result, the court finds itself in the position of determining, if possible, which of the two competing alternative phrases [“this lease shall in no event extend beyond June 30, 1964” or “or as long as required for Anti-aircraft purposes”] controls the duration of the lease. In attempting to explain this ambiguity, the two parties have each pointed to the language in several supplemental agreements which were executed following the lease itself.

Each of the, supplemental agreements concerned further additions to the leased property or rights-of-way and licenses appurtenant thereto. None of the subsequent agreements specifically attempts to modify the intended duration of the lease although several paraphrase clause No. 3 in the lease while referring to it. In so doing, they neither add to, nor subtract from, the already sufficiently confusing language in the lease itself, and will not be detailed further. The Government, however, does place heavy emphasis on a letter written February 5, 1964, approximately 5 months before the date plaintiff contends the lease terminated. In pertinent parts, this letter reads:

In accordance with paragraph No. 3 of the subject lease, this is to advise you that the Government has a continuing need for the premises described in said lease for anti-aircraft purposes for an indefinite period.

The plaintiff did not respond to this letter, which the defendant asserts serves to indicate the plaintiff believed the lease was to run until the Government no longer had a need for the property for anti-aircraft purposes. The court does not feel it can draw such a telling conclusion concerning the plaintiff’s belief of the content of this lease from its mere silence. It is just as likely that the plaintiff still viewed the lease as terminable on June 30, 1964, but since it had no objections to the defendant’s continued occupancy for the immediate future, it simply did not respond to the letter of February 5, 1964. In short, none of the supplemental documents executed by these parties provides any assistance in determining what the legal interpretation of this lease should be.

While it might be like placing the cart before the horse to discuss the matter at this point since no analysis has as yet been made of the possible interpretations this lease might be given, it should be noted that the pertinent language contained in clause No. 3 of the lease was typed into a standard form Government lease, and was apparently the product of negotiations between the parties in 1954. As a result, the contra proferentem rule has no application to these facts. Kaiser Aluminum & Chem. Corp. v. United States, 388 F.2d 317, 181 Ct.Cl. 902 (1967); Tulelake Irrigation Dist. v. United States, 342 F.2d 447, 169 Ct.Cl. 782 (1965). It seems likewise clear that since the contract language was the product of negotiation, neither party may be called to task for failing to seek clarification of what seems to be language that is ambiguous on its face. The duty described in Blount Bros. Constr. Co. v. United States, 346 F.2d 962, 171 Ct.Cl. 478 (1965), and Beacon Constr. Co. v. United States, 314 F.2d 501, 161 Ct.Cl. 1 (1963), to seek clarification of obviously ambiguous contract language is nothing more than the other side of the coin from the contra proferentem rule.

The court then is left with the alternative possibilities of either enforcing the contract between the parties by finding, if possible, a reasonable means of assigning a definite interpretation to the language in clause No. 3 without undertaking to write provisions into the contracts when the record fails to show what the parties actually intended, 3 Corbin, Contracts § ’541 (1960), or finding that the ambiguity went to the heart of the contract while both parties held reasonable, but different views of what the contract meant, so that it can be said that no contract existed at all because there was no “meeting' of minds.” Courts will generally not follow the latter course, typified by the “Peerless” case, if there is any reasonable means of giving effect to the contract at issue. The rule of the “Peerless” case has been dealt with more recently by other federal courts in Oswald v. Allen, 417 F.2d 43 (2d Cir. 1969), and Julius Kayser & Co. v. Textron, Inc., 228 F.2d 783 (4th Cir. 1956), but in neither of these situations had the parties acted, for any appreciable period under the terms of the disputed contract. In the case at hand, the lease clearly governed the parties’ actions through 1969, a period of 15 years. Such a document should not be lightly found to be without effect at this late date. This court has said before that where there is a gap in an agreement due to the fact that there was clearly no meeting of. the minds with respect to a certain issue, thát gap will not be “permitted to swallow the whole contract except perhaps where the gulf is far closer to the bounds of the entire consensual perimeter than here.” WPC Enterprises, Inc, v. United States, 323 F.2d 874, 879, 163 Ct.Cl. 1, 11 (1963). For these reasons and because this case does not involve an “equivocal” term in the contract, but instead turns on simply deciding which of two competing phrases in a clause should be given priority, the court feels that adoption of the “Peerless” rule would be improper in this case since the contract language can be given a reasonable interpretation by using other devices for interpreting the agreement.

It may reasonably be inferred from the conduct of the parties in agreeing to the language of clause No. 3 in the first place, that each party assumed that the other held its view of what the lease actually meant, but in the face of the almost painful ambiguity of the clause they each kept quite still in order not to make waves or find out for sure how the other party viewed the agreement. It could be said that both parties seemed to be keeping their cards close to their chests throughout the period from 1954 to 1969. The court’s problem is to decide which of the interpretations is most reasonable under the total circumstances.

In order to do this, it seems necessary for the court to read one of two additional phrases into the pertinent portion of clause No. 3 by implication if it is to be given a valid meaning. The 'clause must read: “ * * * and provided further that this lease shall in no event extend beyond June 30, 1964, or as long as required for Anti-aircraft purposes,” adding whichever occurs first or whichever comes later. To read the clause as the Government 'would desire [whichever comes later] places the termination of the lease strictly within the discretion of the appropriate military authorities to determine when, in fact, the land is no longer “required for Anti-aircraft purposes.” Such a need has obviously existed for some 19 years now and it seems unlikely that such a need would diminish in the near future. The plaintiff argues that whether or not the defendant requires the property for the specified purpose should be a justiciable issue. The court does not agree that it has a role in determining what the military’s needs might be in this or any other situation in which informed discretion is so important to making a decision concerning tactical military requirements. In the alternative, the plaintiff would then like to classify the lease, assuming the defendant’s view is adopted, as a lease in perpetuity and unenforceable as such. The defendant, of course, does not agree that this lease grants rights to the Government in perpetuity, but it is obvious that if the defendant’s view is adopted, the .lease is certainly for an indefinite term with the ultimate decision as to the precise duration controlled solely by the defendant.

While it is clear that the terms of the lease do not specifically define a period in perpetuity, it is also clear that the lease could continue for such a long period of time as to constitute, for all practical purposes, a perpetual right to occupation, should the Government feel there was a continuing need for the land for the designated purpose. The fact that a contract leaves indefinite the period for performance will not usually invalidate it or make it unenforceable, but the longer the period for performance the heavier the burden on the enforcing party to prove that the extended duration was intended. Thus, contracts for performance in perpetuity may be valid, but under certain conditions aré considered unreasonable and contrary to public policy. 3 Corbin, Contracts § 553 (1960). There is, therefore, an apparent judicial reluctance to interpret any contract to require performance in perpetuity, and some of this reluctance should carry over to situations in which there exists a visible possibility that a contract might extend in practical perpetuity. Such a possibility is a relevant factor in determining which of two competing interpretations is the most reasonable.

The judicial reluctance to uphold contract interpretations calling for extended or perpetual performance finds even stronger expression in the Restatement of Property § 19 (1936):

If the durátion of the estate attempted to be created by the lease is not stated and cannot be precisely computed at the time when the estate becomes possessory, the estate is not an estate for years.

The court is not going to attempt an analysis of the variety of possible characterizations .to which the language of the lease in question could be subjected, since it does not change the result in this case, but it should be noted that where an estate for years fails due to indefiniteness, a lesser estate such as a tenancy at will will result. This points once again to a judicial reluctance to lock parties into a given set of rights and obligations for long or indefinite periods without some clear indication that this was actually intended by the parties. The defendant has not shown, either through the language of the lease or the subsequent actions of the parties, that there was a clear indication that both parties knew or should have known the lease was to continue indefinably. McLean v. United States, 316 F.Supp. 827 (E.D.Va.1970).

The defendant’s interpretation of this lease has at least one other difficulty, and that is if the lease was to run so long as the Government “required for Anti-aircraft purposes,” why was the June 30, 1964 date placed in the lease at all? The only possible explanation is that if the defendant were to find it no longer needed the property for the designated purpose prior to June 30, 1964, it could use it for some other purposes until that date. Such an explanation seems unlikely and outside the general purpose for which the defendant sought the particular piece of property in the first place.

The plaintiff’s interpretation does not seem to suffer from the difficulties inherent in the defendant’s view. Plaintiff’s view clearly leaves no room for a lease in perpetuity at the defendant’s discretion. Under this interpretation the lease would terminate on June 30, 1964, or sooner should the Government cease to have a further need for the property for anti-aircraft purposes. This view is also far more in line with what a reasonable businessman might do in exchanging valuable property rights for a nominal consideration. The Government asserts, however, that while it might be said the plaintiff made a bad bargain back in 1954, which it came to realize in 1969, when it tried to force the Government to vacate the property, the court should not look behind the consideration for the agreement when asked to enforce the terms of the contract. This, as a general proposition, is certainly true where the contract is clear or should be clear to the party against whom the agreement is being enforced; but where the contract terms are as ambiguous as these terms, the court is free to examine the reasonableness of the business transaction in order to determine which of several competing interpretations is most reasonable and likely under the total circumstances including the business realities of the case. See 3 Corbin, Contracts § 553 (1960).

Further support for the court’s conclusion may be found in the opinion in United States v. 77 Acres of Land, 88 F.Supp. 349 (S.D.Ala.1950). In this case, the plaintiff owned land near Mobile, Alabama, on which the Government wanted to build housing for personnel from a nearby shipyard during World War II. . The Government had started condemnation proceedings in order to obtain rights to the property, but before they were concluded, the plaintiff entered into a voluntary lease with the Government in August 1943, for the consideration of one dollar per year, for a set term, but with the Government having the right to extend the lease for additional yearly periods “during the present state of war and during three years thereafter.” The war officially ended December 31, 1946, by Presidential proclamation although actual hostilities ceased in August 1945. The Government attempted to retain possession after 1948 and for 3 years after the continuing post-war “national emergency” would later expire. In interpreting thé contract in order to determine if the Government had a right under the lease to retain possession during a period of “national emergency,” the court said:

* * * It would be most unreasonable to assume thai any citizen for so nominal a consideration intended to grant the use and occupancy of his property for an indefinite period, especially when the indefiniteriess of that period depends upon the mere fiat or order of the other party to the contract, the government or one of its agencies. * * * [88 F.Supp. at 352.]

That court allowed recovery of reasonable rental value for use and occupancy by the Government from and after December 31, 1949, the date of taking without due process. The issues of notice and eviction are not involved in that case. While the language in the lease now before the court is not so clearly diawn, the reasoning employed by the Alabama District Court is equally applicable to the case at hand. What the reasonable person would do in the situation is a relevant consideration when deciding what certain contract language means in light of the total circumstances.

For all of the reasons discussed, the court feels the plaintiff’s interpretation of this lease is the most reasonable under the total circumstances. In reaching this view, the court is not going to deal with the matter of whether the defendant’s occupation of the property from June 1964 through June 1969 was as a tenant at will or as a tenant from year to year. In either case, the applicable California law (§§ 789, 1946 of the California Civil Code) requires only that the tenant be given 30 days’ prior notice to vacate. While the notice requirements of the California Code may not be dispositive of this issue, as the defendant points out, the court will apply this rule since the defendant has not provided a contrary federal standard covering the length of the notice period and our search has revealed none. As a result, the court finds that the notice given by this plaintiff on May 22, 1969, was sufficient to satisfy a 30-day requirement. Defendant’s continued occupation after June 30, 1969, constitutes a temporary taking, without due process, of a leasehold interest of plaintiff’s property from that date. It should also be noted that in reaching the conclusion urged by the plaintiff, these parties will be left in roughly the same position they were in 1954. The defendant, if it still has a need for the property in question, can try to negotiate a new and, hopefully, clearer lease with the plaintiff at a reasonable rental for the future, or it can proceed to condemn the property and pay the plaintiff a reasonable amount for the rights received. In neither event can it be said that the nation’s defense has been threatened or the Government’s interests prejudiced since the Army did make use of the property for some 15 years while paying only $15 for the privilege.

In summary, for all of the reasons given, the plaintiff’s motion for summary judgment is granted, while the defendant’s cross-motion is denied. The matter is referred, pursuant to Rule 131(c), to the Trial Division for further proceedings on the issue of damages which will be for reasonable rental value of the property occupied after June 30, 1969, the date fixed in the notice to vacate, to date of judgment; R. J. Widen Co. v. United States, 174 Ct.Cl. 1020, 357 F.2d 988 (1966). Plaintiff’s claims for damages for trespass upon its adjacent lands appear to sound in tort and therefore would be outside our jurisdiction as pleaded. Consideration of such claims if tenable will await final disposition upon the recommended decision of the Trial Division in connection with the further proceedings discussed above.

      . West Aspen Company, a Colorado corporation, a wholly owned subsidiary of Texas International Company, is now owner of the real estate portion of the assets transferred from Consumers to its shareholders and then to Texas.

      . Lease No. DA 04-203 ENG 3783.

      . See Chris Berg, Inc. v. United States, 197 Ct.Cl. 503, 455 F.2d 1037 (1972); Mountain Home Contractors v. United States, 425 F.2d 1260, 192 Ct.Cl. 16 (1970); WPC Enterprises, Inc. v. United States, 323 F.2d 874, 163 Ct.Cl. 1 (1963); Peter Kiewit & Sons’ Co. v. United States, 109 Ct.Cl. 390 (1947).

      . Raffles v. Wichelhaus, 2 Hurl. & C. 906, 159 Eng.Rep. 375 (Ex. 1864).

      . See generally 64 Colum.L.Rev. 619 (1964).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    SPERRY RAND CORPORATION v. The UNITED STATES.
    No. 10-67.
    United States Court of Claims.
    March 16, 1973.

      G. A. Chadwick, Jr., Washington, D. C., attorney of record, for plaintiff. Charles M. Chadwick, Chadwick & Titus, Washington, D. C., of counsel.
    Michael B. Rosenberg, Washington, D. C., with whom was Asst. Atty. Gen., Harlington Wood, Jr., for defendant.
    Before COWEN, Chief Judge, and DAVIS, SKELTON, NICHOLS, KASHIWA, KUNZIG and BENNETT, Judges.
   OPINION

PER CURIAM:

This case was referred to Trial Commissioner Harry E. Wood with directions to make findings of fact and recommendation for conclusions of law under the order of reference and Rule 134(h). The commissioner has done so in an opinion and report filed on November 3, 1972, with reference to Count I of the amended petition (consideration of Counts II and III having been postponed until after the disposition of Count I). The case is now before the court on the parties’ joint motion, filed January 26, 1973, that the court adopt the commissioner’s report as the basis for its judgment in the case and dismiss the amended petition as to Count I. The case is also before the court on plaintiff’s motion, filed January 26, 1973 (and duly endorsed by the defendant as having “no objection”), to dismiss Counts II and III of the amended petition without prejudice. Upon consideration thereof, without oral argument, since the court agrees with the commissioner’s opinion and recommended conclusion of law, as hereinafter set forth as well as the commissioner’s findings of fact which are not reported here, the court hereby grants the motion of the parties and adopted the same as the basis for its judgment in this case as to Count I of the amended petition. Therefore, plaintiff is not entitled to recover as to said Count I and, as to it, the petition is dismissed.

The court further grants plaintiff’s motion to dismiss as to Counts II and III of the amended petition and they are dismissed without prejudice.

OPINION OF COMMISSIONER

WOOD, Commissioner:

This action, in three counts, arises from a 1956 fixed-price incentive type contract between plaintiff and defendant, acting through the Department of the Air Force, for the development, manufacture, production and delivery to defendant, at a total target price of some $15,300,000, of “certain AN/ASN-7 aircraft Navigation Systems.”

Count I, grounded exclusively on the holding of this court in National Presto Indus., Inc. v. United States, 338 F.2d 99, 167 Ct.Cl. 749 (1964), cert. denied, 380 U.S. 962, 85 S.Ct. 1105, 14 L.Ed.2d 153 (1965), alleges a mutual mistake of fact as to the magnitude of research and development efforts required in contract performance, seeks reformation on that ground, and asks “that the additional costs incurred by [plaintiff] be allocated equitably between the parties hereto in the proportion that said additional costs represent actual research and development effort and benefited the follow-on contracts * * In Count I, seeking relief “exclusive of the Wunderlich Act”, plaintiff prays for judgment of “not less than $2,938,116.62.”

Counts II and III involve, respectively, the propriety of allocation (within ceiling price limits) of “engineering, research, design and development expenses incurred under” plaintiff’s 1956 contract to certain follow-on contracts, and an allegation that plaintiff incurred extra costs in the performance of the 1956 contract because of changes. After lengthy trial, the Armed Services Board of Contract Appeals denied on the merits plaintiff’s claim for “recoupment of R&D costs allocated to * * *” subsequent contracts (Count II), and plaintiff’s claim of right to an equitable adjustment for six of nine asserted contract “extras” (Count III). The parties agree that Counts II and III are subject to Wunderlich Act review in this court.

At the outset, the parties engaged in vigorous and prolonged dispute respeeting plaintiff’s entitlement to trial de novo on Count I. A commissioner’s order filed December 5, 1969, held that absent agreement by the parties that determination of the issue presented by Count I be confined to the administrative record, that issue might be tried out, but urged that the court’s observations in Air-A-Plane Corp. v. United States, 408 F.2d 1030, 187 Ct.Cl. 269 (1969), as to further proceedings be heeded.

At the direction of the commissioner, counsel for the parties subsequently devoted considerable time and effort to reaching agreements in accordance with the court’s observations in Air-A-Plane. Those efforts culminated in a commissioner’s memorandum and order, filed February 24, 1971, incorporating two significant stipulations.

Pursuant to the first, the entire administrative record in ASBCA Nos. 8689 and 9951 was received in evidence on Count I, to be considered (subject to the decisions of the Supreme Court in United States v. Carlo Bianchi & Co., 373 U.S. 709, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963) and related cases) as though offered and received at trial in this court. The parties further stipulated and agreed, for purposes of Count I, that certain specified findings of fact made by the ASBCA were entitled to finality under the Wunderlich Act.

In August 1971, trial on Count I, duly limited to the issues of law and fact relating to plaintiff’s right to recover, was held in Washington, D.C. Briefing of the case to the commissioner was completed July 13, 1972.

For reasons subsequently to be set forth, it is concluded that plaintiff is not entitled to recover on Count I.

The facts, most of which have been stipulated, are lengthy.

Prior to 1955, plaintiff had developed a navigational computer known as the ASN-6, by the use of which a pilot could continuously read off his present position in terms of latitude and longitude. Late in 1955, a model of a combined, more sophisticated, system known as the OA-541(XA)/ASN-7 Service Test System was successfully flight tesed. Findings 2-4.

The Department of the Air Force was interested in purchasing (and plaintiff was interested in selling) a production version of ASN-7. Finding 4. The Air Force, then mainly interested in the new system for use in high-speed fighter aircraft, desired the new system to be able to compute speeds up to 2,000 knots (rather than simply the 800-knot capability of the Service Test System), and to have an additional capability, the automatic computation of magnetic variation. Finding 5. The restricted space in a fighter plane, particularly in the cockpit, called not only for miniaturization of components in the new system, but also for remote location of mechanisms which had theretofore been directly geared to cockpit instruments. Ibid.

In March 1956, after free exchanges of communications between engineers for both parties, defendant prepared, and submitted to plaintiff for comments, a draft specification based on data and general layouts supplied to it by plain-tiff. Finding 7. As a result of plaintiff’s extensive written comments of Oetober 16, 1956, on the draft, a revised specification (Mil-C-25528A, November 9, 1956) was issued by defendant. This revision was, in essence, the specification upon which Contract AF 33(600)-34124 (hereinafter Contract 34124), the contract in suit under Count I, was negotiated. Finding 9.

Although the dimensions of the seven “black boxes” ’ making up the ASN-7 were specified, and some of the contents were delineated, the contract specifications were largely performance, not design, specifications. Finding 10.

Contract 34124, executed effective November 16, 1956, was of the fixed-price incentive type. As the parties have heretofore treated' it, it called for the delivery of some 500 ASN-7 sets. The total target price for the 57 categories of items covered by the contract, separately stated on the face of the contract and separately treated in the price revision clause, was some $15,300,000. Finding 13.

The contract was a production contract in name and in form, and as executed it accurately expressed the intent and agreement of the parties at that time. Findings 12, 14. In 1956 both parties visualized the contract as embodying “the relatively simple repackaging of an already developed and proved design into units capable of efficient production, and which could meet the somewhat more critical requirements for installation in operational aircraft.” Finding 12.

Indeed, plaintiff had theretofore explicitly advised defendant that open manufacturing capacity existed, and that acceptance of its first proposal (submitted in response to defendant’s request) would result in a “production supply contract”. Finding 8. Neither party was aware, in 1956, that a research and development (R&D) effort of the magnitude and cost actually undertaken by plaintiff in connection with Contract 34124 would be involved. Findings 12, 26, 39.

Contract 34124 contained, in addition to the standard form of General Provisions for a supply contract, a “Fixed Price Incentive Clause” providing for revision, by negotiation after contract performance, of the target price on, the basis of cost data submitted by plaintiff. A target profit to 10 percent of target cost was allowed, and .this could be adjusted up or down depehding on whether actual costs were less or greater than target cost. Final profit could not, however, exceed 15 percent of target cost, nor could final price exceed 110 percent of target price. Finding 15.

Contract 34124 called for delivery of three sets of first articles and test reports within 9Yz months, with production deliveries to commence 1 month after first article approval and to be completed within approximately 10 months thereafter. Finding 14. Reliability requirements were not clearly spelled out in Contract 34124, nor did it contain a prescribed useful life for the ASN-7 sets. Finding 15. Contract 34124 did not contain a specific disclaimer of governmental liability to plaintiff, nor a specific warranty by plaintiff. Finding 42.

In January 1958, on the basis4 of tests on the initial first article sample, tentative approval of first articles was given, and plaintiff was provisionally authorized to deliver up to 63 production sets. Finding 18. Shipment of production units began February 28, 1958, and by the end of June 1958, approximately 60 sets, most of which defendant sent to Boeing Airplane Company for installation in KC-135 tankers then coming off the assembly line, had been delivered. In the meantime, on the basis of tests on the other two first article samples, unconditional first article approval had been given June 23, 1958. Finding 19.

As early as Jhe middle of 1957 plaintiff had come to realize it had a cost problem on Contract 34124, and between then and the end of June 1958 it became increasingly aware of both financial and technical problems in connection with Contract 34124. Findings 20-22. At the end of May 1958 plaintiff made a complete reestimate of its cost situation with respect to Contract 34124 and the first follow-on contract (let as of November 1, 1957, with unit costs approximately 13 percent higher than those for Contract 34124), realized it faced a substantial loss, prepared a cost reduction program, and prepared to make a presentation to the Air Force “for the purpose of recovering funds to offset the then anticipated loss.” Finding 23. Because of the soon-to-be-described “Interregnum”, however, the cost reduction program was shelved and the presentation to recover funds was deferred for about a year. Ibid.

While ASN-7 sets which passed plaintiff’s own inspection met contract tests and were accepted by the Air Force, from the start of production early in 1958 plaintiff experienced an increasing in-house rejection rate. Finding 24. In March 1958, plaintiff assigned a task force to a study of the reasons for rejection. After Boeing began to complain to plaintiff, in June 1958, that sets furnished to Boeing by defendant were failing after brief use, it became apparent that major problems of design might be involved. Plaintiff made arrangements with Boeing to return to it the sets that had failed, and, on analysis, became convinced that if it were not to furnish defendant a marginal product that met specifications but proved unsuccessful in the field, a major reassessment of its manufacturing program, including the basic design of the sets, was called for. Finding 25.

About July 1, 1958, plaintiff’s president, faced with three possible courses of action, called a meeting of plaintiff’s personnel concerned with the ASN-7 program to decide upon a course of action. Plaintiff’s decision was to “do the research, development and engineering necessary to make it into the product that would perform as we knew it should and find some way to recover the cost of doing this, if we could find it, or take our lumps if we could not.” Finding 27(a).

Accordingly, plaintiff decided to stop production until it had corrected the causes of failures, and arranged for a meeting with Air Force representatives July 7, 1958, to discuss its plan. Finding 27(b). Around this same time defendant’s project engineer learned for the first time of failures in the field, and he concurred in a decision to stop accepting deliveries. Finding 27(d). Thus, on July 7, 1958, the parties agreed to stop production until plaintiff had found the cures for its technical difficulties. Finding 27(d). This commenced what the parties refer to as the “Interregnum”. Finding 27(e).

Plaintiff’s activities during the Interregnum, which continued to the end of December 1958, are set forth in the findings. Findings 28-30, 38-40. It suffices presently to say the parties are agreed (for purposes of Count I) that (a) during the Interregnum plaintiff not only performed R&D work under Contract 34124, but did so to a far greater extent than either party had anticipated in 1956, and (b) approximately 65 percent of some $4,500,000 (represented by plaintiff as a conservative compilation of all its R&D costs) reflected the cost of all R&D work performed in connection with Contract 34124 which was both actual R&D effort and of benefit to follow-on contracts. Findings 39, 40.

After the Interregnum a new delivery schedule was set up, and plaintiff exceeded delivery requirements while producing highly satisfactory sets :with greater ease than before the Interregnum. Delivery of the sets called for by Contract 34124 was substantially completed about the end of 1959, although delivery of some items under that contract continued into 1961. Finding 31.

Thus, while both parties had envisioned Contract 34124, a production contract in name and in form, as involving the relatively simple repackaging of items performing a developed and proven function, serious troubles developed in the ASN-7 systems after installation in aircraft and otherwise. In order to perform its contract to the satisfaction of all concerned, plaintiff felt compelled to (and did) engage in a very substantial amount of R&D type work in order to solve the problems encountered in the use of the ASN-7 systems and to deliver systems more adequately meeting the requirements of its contracts. Findings 26, 39. Sound business reasons underlay plaintiff’s decision to do so. Finding 27(c).

In the spring of 1959, at the Air Material Command, plaintiff made a presentation of its excess costs problem, with a view to obtaining from defendant some portion thereof, but no action followed. Finding 33. Around September 1959 plaintiff had printed a lengthy brochure, entitled the “AN/ASN-7 Story”, detailing its problems to that date and seeking financial consideration by the Air Force, and in November 1959 plaintiff’s president made a presentation to the Commanding General, AMC, using the “AN/ASN-7 Story” as a basis. Again, no relief was forthcoming. Finding 34.

Finally, toward the middle of 1961, plaintiff’s treasurer, defendant’s successor contracting officer, and the latter’s legal advisor explored together means whereby plaintiff might recoup some of its excess costs, but none was found. Finding 35. There followed plaintiff’s unsuccessful administrative efforts to (inter alia) allocate R&D expenses (within ceiling price limits) under Contract 34124 to certain follow-on contracts (findings 37, 40(c)), and this action, Count I of which prays for relief not sought (or available) at the administrative level.

On these facts, plaintiff asserts that this court's holding in National Presto Indus., Inc. v. United States, supra (hereinafter “Presto”), entitles it to reformation. More precisely, plaintiff contends that there was a mutual mistake of fact; that Contract 34124 did not “allocate the risk of a mutual mistake to either the Government or the plaintiff”; that plaintiff’s unanticipated R&D effort resulted in a benefit to defendant; that such extra work “was of the nature the Government wished to obtain from the contract”; and that, had defendant been aware of “the true facts from the beginning, [it] would have been willing to bear a substantial portion of the additional costs.” Defendant says, among other things, that in the circumstances of this case, the risk of mistake was in any event plaintiff’s, and that Presto is wholly inapposite. Defendant is right.

Presto involved a contract for the production of artillery shells by a new process. Plaintiff was to propose the equipment (and facilities) it believed would be needed for production, and defendant was to pay for the items on which agreement was reached. There was mutual agreement to dispense with certain equipment (initially proposed by plaintiff but rejected by defendant) subsequently found — but only after expenditures by plaintiff of considerable time, effort, and money — to be indispensable to satisfactory production. Under its agreement to produce 180,000 shells by the new process, at a contract price of some $980,000, the plaintiff in Presto had apparently lost some $750,000.

In, and after, Presto, this court has consistently recognized that, among other things, reformation is “a remedy the purpose of which is to make a mistaken writing conform to antecedent expressions on which the parties agreed.” Bromion, Inc. v. United States, 411 F.2d 1020, 1022, 188 Ct.Cl. 31, 35 (1969); see also Jamsar, Inc. v. United States, 442 F.2d 930, 935-936, 194 Ct.Cl. 819, 828-829 (1971); Macke Co. v. United States, 1328, 199 Ct.Cl. 552, 561 (1972); Evans Reamer & Machine Co. v. United States, 386 F.2d 873, 880-881, 181 Ct.Cl. 539, 551-552 (1967), cert. denied, 390 U.S. 982, 88 S.Ct. 1102, 19 L.Ed.2d 1279 (1968). The facts in Presto were, however, sufficiently exceptional to impel consideration of that remedy notwithstanding the absence of any mistake in the written formulation of the understanding of the parties. A definite, mutual, innocent mistake as to a very material fact, coupled with substantial loss, led in the circumstances of that case, to reformation.

One crucial factor contributing to that result was the conclusion that “neither the written contract nor the course of dealings requires that plaintiff alone bear the full consequences of the parties’ mutual error as to the need for turning equipment.” Presto, supra, 338 F.2d at 109, 167 Ct.Cl. at 764. That conclusion, in turn, rested especially (albeit not solely) on the novel and experimental character of the project, and the seriousness of the unexpected costs in relation to contract price.

The court stressed that Presto involved a new and joint enterprise in which neither party had any real expertise or background; that defendant was as interested in the perfection of the new process as in the end product Presto was to deliver; that the contract there was not a performance one; and that Presto was not “an expert, promising to perform and taking the whole risk and anxiety of the project off the Government’s shoulders”, but simply “the more active of a pair of gropers attempting to develop a new and largely untried process which was still far from mature.” Presto, supra, 338 F.2d at 109, 167 Ct.Cl. at 764-765. Cf. Natus Corp. v. United States, 371 F.2d 450, 459, 178 Ct.Cl. 1, 15 (1967) (concurring opinion).

This case does not fit within that mold.

Plaintiff was, and is, experienced both as a manufacturer of navigational computer systems and as a goverment contractor. The contract specifications were, in essence, performance specifications. Not only was defendant’s initial draft of those specifications based on data and general layouts supplied to it by plaintiff, but the revised, final, version of the specifications resulted from plaintiff’s extensive comments on the initial draft. That version came some months after plaintiff had represented that open manufacturing capacity existed and that its proposal, if accepted, would result in a production supply contract, and the contract which did result was, in name and in form, just that.

No novel and experimental project, nor joint enterprise, was contemplated; defendant did not really care how plaintiff went about fulfilling its promises to perform. The parties were not “gropers”, knowingly engaged in a combined journey through unexplored areas, but a seller of a developed and proven (if to be repackaged) design, and a purchaser who wanted the end product plaintiff said it could promptly supply.

As Presto suggests (and plaintiff recognizes), a fixed-price contract does not normally impose on defendant any responsibility for whether or not the contract work can be done within the contract bid price. Aerojet-General Corp. v. United States, 467 F.2d 1293, 1301, 199 Ct.Cl. 422, 434 (1972); Cf. United States v. Wegematic Corp., 360 F.2d 674, 676-677 (2d Cir. 1966). Absent unusual circumstances a “fixed-price contractor * * * shoulders the responsibility for unexpected losses, as well as for his failure to appreciate the problems of the undertaking * * Macke Co. v. United States, supra.

While plaintiff’s contract was of the fixed-price incentive, rather than of the pure fixed-price, type, it is clear that this circumstance is, for present purposes, of no real significance, nor is it of any aid to plaintiff in its argument that Contract 34124 “did not allocate the risk of mistake to either party.” If, in a fixed-price incentive type contract, “the final cost exceeds the ceiling, the contractor suffers a loss.” Lockheed Aircraft Corp. v. United States, 426 F.2d 322, 323, n. 1, 192 Ct.Cl. 36, 39, n. 1 (1970). See also Nash, Risk Allocation in Government Contracts, 34 Geo.Wash.L.Rev. 693, 695 (1966).

Looking at the dealings of the parties as a whole, their contractual agreement, and the nature of the enterprise embodied therein, it is concluded that plaintiff “assumed all the uncovered risks inherent in its promised performance •x- x- *_» Natus Corp. v. United States, supra, 371 F.2d at 458, 178 Ct.Cl. at 14; see also Olin Mathieson Chemical Corp. v. United States, 179 Ct.Cl. 368, 407-409 (1967). In light of the entire record, plaintiff’s contractual agreement here too “forecloses any possibility of expense allocation along the lines of mutual mistake.” Natus Corp. v. United States, supra; see also Tombigbee Constructors v. United States, 420 F.2d 1037, 1043, 190 Ct.Cl. 615, 626 (1970). Rather, any equitable relief therefor, by way of additional compensation to plaintiff, “should be left to legislation or administrative discretion.” Presto, supra, 338 F.2d at 110-111, 167 Ct.Cl. at 767.

Although plaintiff relies “exclusively” on Presto, there is a suggestion in plaintiff’s Conclusion of an “oral novation” leading to recovery “on the order of quantum meruit.” This suggestion is wholly unsupported by any citation of authority, and is, as defendant contends, unsound.

Each of the parties has advanced a considerable number of other arguments. Each such argument has carefully been considered, but in light of the foregoing, only one issue requires any further elaboration.

In Presto, the court denominated as a prerequisite to reformation a showing that defendant “would have been willing, it it had known the true facts from the beginning, to bear a substantial part of the additional expenses” Presto incurred. Plaintiff urges that the record enables it to surmount that difficult hurdle sufficiently, if not well, while defendant sharply controverts that view.

Perhaps necessarily because of the retrospective and elusive investigation thus required, the record on this issue is vague, imprecise, and unsatisfying. The 1959 statement attributed by plaintiff’s president to the Commanding General, AMC (finding 34) is, even as attributed, equivocal.

Nor does defendant’s payment, in 1960 and 1961, of a higher price for most components purchased (finding 36) justify the inference plaintiff draws thereform: that, had defendant known the “true facts” in 1956, it would nonetheless have proceeded to purchase the ASN-7 at considerably increased cost. By 1960, defendant had an investment of more than $29,000,000 in that system. Time had passed as well. Differences in quantities, factors of inflation, and other relevant factors aside, defendant’s alternatives in 1960 and 1961 manifestly differed from those which would have been available to it in 1956, had it then been aware of the “true facts”.

While defendant’s evidence of what it would have done in 1956 with that knowledge (finding 41) also lacks force, answering the inquiry posed in Presto would, on this record, require sheer speculation.

For the foregoing reasons, it is concluded that plaintiff is not entitled to recover on Count I, and that its amended petition should be dismissed as to that count.

CONCLUSION OF LAW

Upon the findings of fact and the foregoing opinion, which have been adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that plaintiff is not entitled to recover on Count I of the amended petition, and as to that count the amended petition is dismissed.

      . ASBCA Nos. 8689 and 9951, 66-1 BCA ¶ 5403. The administrative record is voluminous. Finding 1(b).

      . 68 Stat. 81, 41 U.S.C. §§ 321-22 (1970).

      . The said order also reflected that a decision for plaintiff on Count I would remove any necessity to consider and decide Counts II and III, and that plaintiff had requested that further consideration of these counts be postponed until after the disposition of Count I. That request, being deemed just and proper, was thereby granted.

      . Each party reserved the right to object to any portion of the administrative record on grounds of competency, relevancy, or materiality, and to offer additional testimony or exhibits.

      . The order set forth in 55 separately numbered paragraphs the findings of fact made by the ASBCA and entitled to finality, reserving to each party “the right (a) in its requested findings of fact and briefs to alter or revise either the order or the language of the said findings as they- appear herein, and (b) to contend that any such finding, though made, is not relevant or material to the disposition of Count I.”

      . Plaintiff is experienced both as a manufacturer of navigational computer systems and as a government contractor. Finding 1(a).

      . See Finding 11. A comparison of the boxes of the Service Test and ASN-7 systems is there set forth.

      . “Design engineering” (in defendant’s terms) or “research and development” (in plaintiff’s) of about $800,000 was within the contemplation of the parties at contract execution. Finding 8, n. 3.

      . In mid-1958 plaintiff was aware it faced a loss of approximately $3,000,000 on Contract 34124 and the initial follow-on contract. Finding 23, n. 9.

      . Finding 27(a) sets forth in his own words the alternatives available and the decision made. Briefly, the alternatives were to reduce costs and to continue to deliver items which “would not adequately meet the need in the aircraft”, to seek a termination, or to “face the music and decide that we had produced a design or a product for the Air Force which really did not have it.”

      . Plaintiff’s decision was influenced by its reputation; by an awareness of competitive equipment under development; and by the possibilites of (a) future business, by way of follow-on contracts, and (b) becoming sole source, if it could produce a truly reliable product. Finding 27(c).

      . There is, however, no indication in the record that defendant then knew of, or agreed to, an extensive R&D program.

      . Plaintiff’s Brief, p. 34.

      . Id., p. 41.

      . Id., p. 41.

      . E. g., defendant; denies any “mutual mistake.”

      . Recovery ultimately amounted to $250,000. National Presto Indus., Inc. v. United States, 175 Ct.Cl. 881 (1966).

      . Cf. R. E. D. M. Corp. v. United States, 428 F.2d 1304, 1309-1310, 192 Ct.Cl. 891, 901-902 (1970); J. L. Simmons Co. v. United States, 412 F.2d 1360, 1362, 188 Ct.Cl. 684, 689 (1969).

      . Cf. Bethlehem Corp. v. United States, 462 F.2d 1400, 199 Ct.Cl. 247 (1972); Austin Co. v. United States, 314 F.2d 518, 161 Ct.Cl. 76 (1963), cert. denied, 375 U.S. 830, 84 S.Ct. 75, 11 L.Ed.2d 62 (1963); Olin Mathieson Chemical Corp. v. United States, 179 Ct.Cl. 368, 407-409 (1967).

      . Plaintiff did not urge during the administrative proceedings, nor does it now assert, the right to an equitable adjustment for increased costs of performance due to defective specifications, nor does it claim damages for breach of the implied warranty that, if government “specifications are followed, a satisfactory product will result.” Hol-Gar Mfg. Corp. v. United States, 360 F.2d 634, 638, 175 Ct.Cl. 518, 525 (1966); see also Bethlehem Corp. v. United States, 462 F.2d 1400, 199 Ct.Cl. 247 (1972).

      . Plaintiff’s Brief, p. 43.

      . This statement, entirely limited to the problems raised in Count I, expresses no view upon issues yet to be considered in Counts II and III.

      . Plaintiff’s Brief, pp. 39, 55.


text:
    DALE INGRAM, INC., (formerly Florida Builders, Inc.) v. The UNITED STATES.
    No. 412-65.
    United States Court of Claims.
    Decided March 16, 1973.

      Peter Latham, Washington, D. C., for plaintiff; I. H. Wachtel, Washington, D. C., of record; Glade F. Flake, Washington, D. C., of counsel.
    Paul A. Zoss, U. S. Dept, of Justice, Court of Claims Section, Civil Division, with whom was Asst. Atty. Gen., Harlington Wood, Jr., for defendant; Michael B. Rosenberg, Washington, D. C., of counsel.
    Before .COWEN, Chief Judge, and DAVIS, SKELTON, NICHOLS, KASHIWA, KUNZIG and BENNETT, Judges.
   ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT

SKELTON, Judge, delivered the opinion of the court:

In this case the plaintiff, Dale Ingram, Inc. (formerly Florida Builders, Inc.), contends that two decisions of the Armed Services Board of Contract Appeals (the Board), one on liability and one on quantum, are erroneous as a matter of law and are not supported by substantial evidence. The plaintiff also seeks reformation of the contract on the ground of mistake.

The contract in question was one for Capehart housing construction upon land in Florida that had been under water and had to be filled in before the housing could be constructed. The land fill was to be accomplished by a different contractor under a different contract (land fill contract) which originally required compacting the land to a maximum density of 95 percent. However, this compaction requirement was reduced to 90 percent before the land fill contract was awarded on April 18, 1960, to Gahagan Dredging Corporation (Gahagan). The compaction requirement was changed again on the date the land fill contract was awarded to eliminate the numerical requirement of 90 percent of maximum density to:

“All embankments and fill shall be dense and uniform.”

In the meantime, plaintiff prepared and submitted a bid on the contract in-issue before us (the construction contract) which required the construction of 500 houses on the area to be filled in. The Invitation For Bids (IFB) stated that the houses were to be constructed on land to be filled in by another contractor and all bidders were admonished to visit the site and become familiar with the type and quantity of earthwork required in the construction contract. They were further informed that the specifications and drawings of the land fill contract were available for inspection at two different offices, the names and addresses of which were stated. The plaintiff visited the site and worked with a contractor who intended to bid on the land fill contract. By reason of these facts, the plaintiff had knowledge of the basic specifications of the land fill contract, including the original requirement that the fill would be compacted to 95 percent density and the addendum changing this requirement to 90 percent density. The plaintiff submitted its bid on the construction contract, but all bids were rejected because they exceeded the money available.

Thereafter, during July and August 1960, a second IFB was issued. The plaintiff’s representatives visited the site again and observed the land fill operations of Gahagan. The plaintiff desired to bid on the construction contract again, which contract provided in its specifications that:

->; -x- -x- [T]he top six inches of material on which footings and floor slabs are placed shall have a density of not less than 90 per cent of laboratory density.

Being mindful of the foregoing requirement of 90 percent density for the top six inches of the soil for the footings and floor slabs, the plaintiff sought and obtained a quotation of $277,000 from Redland Construction Company, Inc. (Redland), a subcontractor, to do the grading and footing compaction work at the site under the construction contract. Redland inspected the condition of the soil at the site and then raised its quotation to $410,000. The plaintiff then got a higher quotation from another subcontractor, after which it negotiated a contract with Redland to do the work for $403,000. The plaintiff and Redland then bid on the contract without knowing that the specifications of the land fill contract had been changed so that the requirement for compaction to 90 percent maximum density had been removed and the words “dense and uniform” had been substituted therefor. At the time they bid, the plaintiff and Redland thought that the 90 percent density requirement was still in the' land fill contract.

It should be noted that the plaintiff did not ask for up-to-date land fill specifications during the July-August bidding period and did not make any investigation with reference to same. There is no evidence that the government knowingly or willfully withheld any of such information from the plaintiff. The plaintiff had plenty of time to investigate the compaction requirements of the land fill contract as it was awarded on April 18, 1960, and the construction contract was awarded to the plaintiff eight months later on December 19, 1960, as stated below.

After the bids were opened on the construction contract, but before the contract was awarded, plaintiff learned that the 90 percent compaction requirement of the land fill contract had been changed to “dense and uniform.” The plaintiff protested to the government but did not ask to be allowed to withdraw its bid. The government refused to agree that the fill was other than what should have been anticipated. The plaintiff, being the low bidder, was awarded the contract and signed the agreement, reserving the right to present a claim for changed conditions. The contract was effective December 19, 1960, and was for $8,171,300.

The contract contained the standard changes and changed conditions and disputes clauses.

The plaintiff began work in January 1961, but did not start the compaction of the footings involved in this case until about March 15, 1961. Redland, the subcontractor, attempted to achieve the 90 percent density for the footings and floor slabs, as required by the contract, but encountered difficulty due to the type and condition of the soil. Various tamping machines were tried, but 90 percent density was found not'to be possible. Finally, on April 24, 1961, the size of the footings was changed and the required compaction was reduced from 90 percent density to 80 percent laboratory density. After these changes were made in the contract, Redland was able to achieve 80 percent compaction. However, 30 days were wasted in trying to achieve the 90 percent density.

However, the plaintiff encountered difficulty in achieving even the 80 percent density compaction. This was due to a variety of factors, including the nature of the material, the difficulty in crushing the pieces of oolite encountered by the machines which had to be small enough to go into the trenches, and the caving-in of the walls of the trenches. Excessive concrete was required to fill in the caved-in walls of the trenches, as well as for the building of continuous pads similar to a runway instead of a separate pad for each house. The continuous pads were built so as to allow the use of heavier equipment for compaction and to obtain better compaction at the bottom of the footing elevations.

The plaintiff filed a claim under the changes and changed conditions clauses for an equitable adjustment, contending that physical conditions at the site of the construction contract differed materially from those anticipated. From an adverse ruling, it appealed the claim to the Armed Services Board of Contract Appeals (the Board). The case was docketed Florida Builders, Inc., ASBCA No. 8944.

After an extensive hearing, the Board handed down its decision on December 17, 1969. In its opinion the Board stated:

The primary question presented in this appeal is whether the fill at Sigsbee Park was in the condition stated in the contract. This includes the plans and specifications for the Gahagan [land fill] contract, as they were modified by Amendment No. 1 [the “dense and uniform” change] thereto.

The plaintiff contended before the Board that the fill was neither “dense” nor “uniform.” Considerable expert testimony was introduced by both parties as to the meaning of the term “dense” as required by the specifications, and as used in the trade and industry. The plaintiff’s expert contended it meant 90 percent maximum density. The Board found, however, that defendant’s expert testimony was more persuasive to the effect that the terms “dense” and “uniform” are not terms of art in either soil mechanics or the construction industry to the extent that they may be assigned specific numerical factors for gradation and density. This testimony further showed that in order to determine what the plaintiff should have encountered at the site, many factors would have to be considered, such as the nature of the oolitic limestone and its manner of placement by hydraulic pipeline dredge, the reworking of the material after its ejection from the pipeline, and the crushing of the material with bulldozers. Based on this evidence, some of which was admittedly conflicting, the Board held that the fill was as uniform as could be expected, and that the plaintiff could reasonably have expected the fill to be above 80 percent, but less than 90 percent, of laboratory density. The Board stated further that the plaintiff should have expected some compaction effort on his part to bring the material to 90 percent density under its contract even if the land fill contract had required 90 percent -density compaction as plaintiff believed when it submitted its bid. The Board found that the material was generally below 80 percent, while plaintiff should have anticipated between 80 and 90 percent density. Consequently, when the requirement in plaintiff’s contract was reduced from 90 to 80 percent density on April 24, 1961, plaintiff was required to increase the density only a small percent to reach the 80 percent density, and this was no more than it should have anticipated in preparing its bid. The plaintiff’s contract required it to do some compaction, otherwise the compaction provision would have been meaningless.

After April 24, 1961, when the compaction requirement was reduced to 80 percent density, the plaintiff was able to achieve it without much difficulty. However, the Board found that the plaintiff had been delayed 30 days trying to obtain 90 percent density and concluded that it should be paid for the costs directly attributable to this delay, including interest on its loan for such period of 30 days and its direct costs in attempting to perform the impossible requirements. The Board, by agreement of the parties, considered entitlement only. It sustained the appeal and remanded the ease to the parties for negotiation of an equitable adjustment of the contract price.

The parties could not agree on an equitable adjustment and the plaintiff appealed to the Board again on the issue of quantum. This appeal was docketed as Florida Builders, Inc., ASBCA No. 8944. A comprehensive hearing was had before the Board on every item of cost claimed by the plaintiff under the Board’s previous decision on entitlement, including extra compaction effort, the 30 day delay and the increase in expenses in placing footings for the houses, and additional costs in placing the pads for the slab-on-grade houses. At this hearing, the parties stipulated that the plaintiff was to receive $14,792 for the 30 days delay. They also stipulated that the plaintiff was to receive $3,170 for the extra compaction effort. They further stipulated to prices of $15.50 per cubic yard of concrete and $3.00 per cubic yard for labor. The Board found that the plaintiff was due the following costs for extra concrete:

The Board also allowed plaintiff extra compensation for extra fill placed at the pad locations, and an additional amount for removing the excess pad material from between the buildings, as well as extra pay for work in attempting to gain additional subgrade compaction at the footing level. The amounts allowed for these extra expenses were as follows :

The total overall extra costs allowed plaintiff by the Board as a result of changed conditions, in the total sum of $84,009.46, which includes the above costs, were as follows:

DECISION — CHANGED CONDITIONS

We have found the following amounts:

In the meantime there was another appeal to the Board by plaintiff growing out of this contract that involved a dispute growing out of the rejection by the contracting officer of certain Hotpoint ranges furnished by the plaintiff for the houses. That appeal was docketed under ASBCA No. 9013, and was settled by a stipulation of the parties to the effect that the plaintiff was to receive an additional $8,588. That appeal is mentioned here because the Board described it in its opinion in Docket No. 8944, and added the $8,588 to the $84,009.46 equitable adjustment described above, making the total equitable adjustment due the plaintiff on this contract the sum of $92,597.-46.

The above amount of $92,597.46 awarded to the plaintiff by the Board has not been paid by the government because it claims an off-set as follows. In another proceeding, not related to the case before us, involving a different contract (contract No. DA08-123-ENG2830) between the plaintiff and the government, the contracting officer issued an order on December 1, 1966, that the plaintiff was indebted to the government in the sum of $429,291.84. The plaintiff appealed that decision to the ASBCA and it has been docketed as ASBCA No. 12152. A stipulation was entered into in that case that the sum at issue is $495,429.04, plus interest. A hearing was held from September 25 through 27, 1972. No decision has been reached by the Board. The government contends in the case before us that the contracting officer’s decision in No. 12152 is final until and unless it is overturned by the Board and that it is entitled to wait the outcome of that case before paying the plaintiff the $92,597.46 awarded in the present case, because it claims the right of off-set. The plaintiff, on the other hand, argues and claims that the failure of the government to pay the $92,597.46 is a breach of contract for which it is entitled to judgment plus interest. This is one of the plaintiff’s claims in the present case, as will be shown below.

The plaintiff was not satisfied with the Board’s decision on quantum in the present case in which plaintiff was awarded the $92,597.46 mentioned above. It filed this suit seeking to increase the award and asking for other remedies as well, as will be described, infra.

The case is before us on plaintiff’s motion for partial summary judgment and defendant’s cross motion for summary judgment.

It is difficult to come to grips with plaintiff’s claims in the case before us, because its contentions embrace almost the whole field of public contract law, including equitable adjustment, changes and changed conditions, substantial evidence, defective specifications, ambiguous contract provisions, mistaken bid, reformation, errors of law, and breach of contract, to name a few. This more or less “shotgun approach” has presented us with the arduous task of trying to separate the main issues from the forest of claims so that they may be analyzed and considered.

The plaintiff first claims that the award of the $84,009.46 by the Board is not supported by substantial evidence and that the case should be returned to the Board to determine the equitable adjustment due plaintiff for “additional sums” paid to Redland, its overhead, plus costs of compaction after April 24, 1961, together with a reasonable profit on both sums, the total amount of which amounts to $247,870.72, which does not include the $84,009.46 already awarded by the Board.

In the alternative, plaintiff contends that the contract should be reformed on the ground of mistake. When reformed, the plaintiff says, the contract should contain (1) an express promise by defendant that the construction site when made available to the plaintiff would contain fill compacted to 90 percent of maximum density, and (2). an increase in the contract price of $134,895.60, the same being the minimum amount by which the plaintiff was mistaken. It asks this court to enter judgment for $97,000.60 plus the $37,895 already awarded by the Board for Redland’s compaction effort (a total of $134,895.-60). When this is done, the plaintiff asks the court to suspend proceedings so that it can return to the Board to prove it is entitled to an equitable adjustment in the amount of $196,984.58, which sum represents the costs of achieving compaction after the requirement was reduced to 80 percent density on April 24, 1961.

Finally, the plaintiff seeks recovery of the $92,597.46 previously awarded by the Board which it says the defendant has wrongfully withheld in breach of its contract, plus interest at six percent from July 23, 1971. The plaintiff also asks the court to stay proceedings before the Board in No. 12152 “so that the merits of defendant’s claim may receive de novo trial in this court.”

I

The Change and Changed Condition Claim

The main thrust of the plaintiff’s claim that its equitable adjustment for a changed condition should be increased above the $84,009.46 awarded by the Board is based on (1) its contention that it would have paid Redland $126,000 less for the grading and compacting work if plaintiff and Redland had known that compaction had been changed from 90 percent density to “dense and uniform” in the land fill contract, and to this amount must be added 10 percent for overhead and six percent for profit, making the total amount $134,895.60; and (2) alleged extra effort to achieve 80 percent density after April 24,1961.

The Board found that there was no proof that plaintiff could have obtained Redland’s contract for $126,000 less if they had known of the change in the land fill contract. In fact, the Board found the evidence to be against the plaintiff on this claim. The facts found by the Board showed that Redland quoted a price of $277,000 to the plaintiff and after inspecting the material at the site, it raised its quotation to $410,000. The plaintiff then got a quotation from another subcontractor, but it was higher than Redland’s. Then plaintiff and Red-land negotiated a price of $403,000 and they then bid on that basis. The plaintiff has arrived at the $126,000 figure by subtracting the original Redland quotation of $277,000 from its final negotiated quotation of $403,000. The proof nowhere shows that Redland would have done the work for its original quotation of $277,000 if it had known of the change in the land fill contract. The Board found that the reason for the change in the quotation by Redland was that its original quotation was too low. This is buttressed by the fact that the Board found that the government’s Design Director, Southern Division, Naval Facilities Engineering Command, prepared an estimate of the value of Red-land’s work, using 1960 and 1961 prices current with performance, which far exceeded Redland’s original quotation and approached the actual subcontract price of $403,000.

In any event, the Board considered every item of extra cost incurred by Redland in trying to achieve compaction of 90 percent density prior to April 24, 1961, and made its award accordingly. Furthermore, the Board stated that the parties had stipulated that plaintiff was to receive $14,792 for the 30 days delay in trying to achieve the 90 percent density, and they also stipulated that:

* * * [T]he appellant [plaintiff] is to receive $3,170 for the extra compaction effort. * * * [Emphasis supplied.] [71-2 BCA ¶ 8992.]

The parties also stipulated before the Board to prices of $15.50 per cubic yard for concrete and $3.00 per cubic yard for labor in arriving at the amount due the plaintiff for extra concrete. The plaintiff is bound by these stipulations. The amounts specified in the stipulations were included in the costs awarded by the Board as itemized, supra. It appears that the evidence shows that plaintiff has been compensated for the extra compaction effort and other extra work in accordance with the stipulations and facts proved before the Board. We hold that the decision of the Board relative to these extra costs was neither arbitrary nor capricious and was supported by substantial evidence. Accordingly, the decision of the Board must be accorded finality inasmuch as this case is before us for review under the standards of the Wunderlich Act, 41 U.S.C. §§ 321, 322 (1970), Morrison-Knudsen Co. v. United States, 345 F.2d 833, 836-837, 170 Ct.Cl. 757, 761-763 (1965); Koppers Co. v. United States, 405 F.2d 554, 557, 186 Ct.Cl. 142, 147-151 (1968).

With respect to plaintiff’s claim that it is entitled to more compensation for its “alleged extra effort” in trying to achieve 80 percent compaction density after April 24, 1961, the Board found that the plaintiff should have expected to receive the construction site compacted to as low as 80 percent density under the terms “dense and uniform” in the land fill contract. In this regard, it appears that the Board was more than generous in treating the situation as if the plaintiff had knowledge of the dense and uniform provisions of the land fill contract at the time it made its bid. The plain truth of the matter is that the plaintiff did not know about it and was clearly negligent in failing to have this knowledge. The evidence shows that the change in the land fill contract was made before the invitation for bids was issued for the construction contract and at least eight months before plaintiff was awarded the construction contract. Its failure to check the contents of the land fill contract during this long lapse of time before it submitted its bid was plain negligence. It may be, as defendant suggests, that this negligence bars the plaintiff from basing a claim on this change in the land fill contract. See Martin Lane Co. v. United States, 432 F.2d 1013, 193 Ct.Cl. 203 (1970), Schoeffel v. United States, 193 Ct.Cl. 923, 935 (1971), and Albano Cleaners, Inc. v. United States, 455 F.2d 556, 197 Ct.Cl. 450 (1972). These cases hold that a contractor who submits his bid without reading all of specifications does so at his peril. It is our view that in such a case the contractor assumes the risk of complying with the specifications and cannot complain later on if he is required to perform the contract in accordance with such specifications, provided there is no misrepresentation or overreaching by the government. However, the Board held in effect that even if the plaintiff had known of the change when it submitted its bid, it could not recover for any effort made to achieve the 80 percent density after April 24, 1961. This decision was arrived at on the evidence submitted by both parties at the Board hearing as to the meaning of the terms “dense and uniform” in the trade and industry. There was very little problem as to whether the land fill was uniform as it had been distributed from a hydraulic pipeline dredge which resulted in its being put in place uniformly. The plaintiff’s main contention was with reference to the meaning of the term “dense.” The plaintiff’s expert witness testified that the term required the material to be between 86 and 90 percent density. The defendant’s expert witnesses testified that it could mean that the material could be as low as 80 percent density, but that it was difficult to assign a numerical classification to it because many factors had to be considered, such as the condition and type of material involved. The Board weighed this evidence and concluded that under the terms “dense and uniform” the plaintiff should have expected to receive the construction site compacted as low as 80 and as high as 90 percent density. While the interpretation of the meaning of the provisions of a contract is a question of law for the court, nevertheless the decision of the Board on a question of law is entitled to great weight if it is based on the Board’s expertise and is not unreasonable. H. N. Bailey & Associates v. United States, 449 F.2d 376, 196 Ct.Cl. 166 (1971); Red Circle Corp. v. United States, 398 F.2d 836, 185 Ct.Cl. 1 (1968). Furthermore, it is well established that factual determinations that form the basis of the Board’s contract interpretation are entitled to finality if supported by substantial evidence. D & L Construction Co. v. United States, 402 F.2d 990, 993, 185 Ct.Cl. 736, 743 (1968); Jamsar, Inc. v. United States, 442 F.2d 930, 932, 194 Ct.Cl. 819, 823 (1971). In this instance, we think the Board’s decision was within the zone of reasonableness and was supported by substantial evidence and is entitled to finality.

Plaintiff’s contract required it to do some compacting work, otherwise the provisions therein that required it would have been meaningless. Under the factual findings of the Board, the plaintiff should have expected to receive the land fill to be compacted to 80 percent density after April 24, 1961, and if such compaction was slightly below 80 percent, its contract required it to bring the compaction up to 80 percent. It has been held that expenses which a contractor would have been required to expend anyway had no changed condition occurred are not recoverable as a part of an equitable adjustment. Roscoe - Ajax Constr. Co. v. United States, 458 F.2d 55, 198 Ct.Cl. 133 (1972); Paul Hardeman, Inc. v. United States, 406 F.2d 1357, 1362-1363, 186 Ct.Cl. 743, 751 (1969), and Kaiser Industries Corp. v. United States, 340 F.2d 322, 337, 169 Ct.Cl. 310, 335-336 (1965). In this case the plaintiff was not required to expend any more effort in reaching 80 percent density than it should have expected when it submitted its bid. The finding of the Board and its decision to this effect is supported by substantial evidence and is entitled to finality.

The facts before the Board showed, and the Board found, that after the compaction density requirement was lowered to 80 percent on April 24, 1961, the plaintiff was able to achieve such 80 percent density without much difficulty. The Board was correct in holding that the plaintiff was not entitled to any extra compensation in achieving 80 percent density after April 24, 1961, because that was an obligation the contract required it to perform.

The plaintiff also argues that the term “dense” in the land fill contract was ambiguous and that the ambiguity should be resolved against the government who drafted the contract if the contractor’s interpretation is reasonable. It urges that its interpretation of “dense” as meaning 90 percent density was reasonable. The fault that is self-evident in this argument is' the fact that the plaintiff did not even know that the term “dense” was in the land fill contract when it submitted its bid and for that reason it could not and did not interpret the meaning of the term at that time. The plaintiff cannot now contend that it relied on any interpretation of this specification when it had no knowledge of its existence. It is well-established that where a contractor is relying on an interpretation of an alleged ambiguous contract, he must show that he relied on such interpretation. Brezina Constr. Co. v. United States, 449 F.2d 372, 196 Ct.Cl. 29 (1971); WPC Enterprises, Inc. v. United States, 323 F.2d 874, 876, 163 Ct.Cl. 1, 6 (1963); Martin Lane Co. v. United States, supra; LTV Aerospace Corp. v. United States, 425 F.2d 1237, 1240-1241, 192 Ct.Cl. 191, 197-198 (1970), and Randolph Eng’r Co. v. United States, 367 F.2d 425, 429-431, 176 Ct.Cl. 872, 880-882 (1966). There was no such reliance by plaintiff here, and the rule that ambiguities are resolved against the drafter does not apply.

II

Reformation of the Contract

The plaintiff contends that the contract should be reformed because its bid was the result of a mistake in that it thought that the site would be compacted to 90 percent density by the land fill contractor, whereas, such contractor was only required to compact it so that it would be “dense and uniform.” It says that because of this mistaken belief it submitted a bid on the construction contract which required it to compact the footings for the houses and slabs to 90 percent density.

In the first place, these contentions have already been placed before the Board by the plaintiff under the disputes clause of the contract as changed conditions which entitled it to an equitable adjustment. The Board considered the claim, held hearings, and settled the issues by awarding the plaintiff an equitable adjustment, as set forth above. The plaintiff cannot now relitigate the same claim and the same issues in this court under a reformation theory. United States v. Utah Constr. & Mining Co., 384 U.S. 394, 419-420, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966); Northbridge Electronics, Inc. v. United States, 444 F.2d 1124, 1127, 195 Ct.Cl. 453, 458 (1971), and Marley v. United States, 423 F.2d 324, 328-329, 191 Ct.Cl. 205, 213-214 (1970).

Actually, there was no mistake in the plaintiff’s bid that would support a reformation of the contract, because plaintiff submitted exactly the bid that it intended to submit. The government did not know of any error in the bid, and in fact, there was none. There was no overreaching or deception on the part of the government. There was no misreading of the specifications by the plaintiff. In fact, the specifications it now complains of were not read at all, notwithstanding the provisions in the invitation for bids that admonished the plaintiff to familiarize itself with such specifications.

The plaintiff cites Chris Berg, Inc. v. United States, 426 F.2d 314, 192 Ct.Cl. 176 (1970); Chernick v. United States, 372 F.2d 492, 178 Ct.Cl. 498 (1967), and Ruggiero v. United States, 420 F.2d 709, 190 Ct.Cl. 327 (1970) in support of its reformation claim. The court granted reformation in each of those cases, but they are clearly distinguishable on the facts from the instant case. In Chris Berg and Chernick, mistakes were made in the bids because of misplaced decimal points in the figures in the bid. In Ruggiero, the contractor failed to indicate that its bid was on a group of parcels instead of individual parcels. In each of those cases there was a pure clerical error by the contractor that the government either knew about or should have known about. In each of those cases the bids were not the bids that the contractor intended to make. None of those facts exist here. In our case, the plaintiff bid exactly what it intended to bid, and the government had no knowledge, and had no reason to suspect, that plaintiff did not know the requirements of the specifications. The case of Jamsar, Inc. v. United States, 442 F.2d 930, 194 Ct.Cl. 819 (1971), is in point. There the court said:

* * * [T]he type of mistake upon which reformation may be granted must be a clear cut clerical or arithmetical error or a misreading of the specifications of such a serious and obvious nature that the defendant’s contracting agents would (or should) know of the mistake. Ruggiero v. United States, 420 F.2d 709, 190 Ct.Cl. 327 (1970).
* * * “[A]n agreement cannot be revised to reflect a plaintiff’s subjective understanding the defendant does not and should not know of.” Benjamin v. United States, 348 F.2d 502, 172 Ct.Cl. 118 (1965). [ld. 442 F.2d at 935-936, 194 Ct.Cl. at 828-829.]

The plaintiff also cites the case of Rhode Island Tool Co. v. United States, 128 F.Supp. 417, 130 Ct.Cl. 698 (1955) in support of its reformation claim. We do not think that case helps the plaintiff. There the bidder made a clerical mistake in figuring the cost of items required by the contract. He figured the cost of stud bolts instead of the machine bolts required by the specifications. The error there was much like the errors in Chernick, Chris Berg, and Ruggiero. See also, Bromion, Inc. v. United States, 411 F.2d 1020, 188 Ct.Cl. 31 (1969), and in addition, the contractor had sought to withdraw its bid before a binding award was made.

If there was any mistake in the bidding in the instant case, it was a unilateral mistake on the part of the plaintiff. This court has held that reformation will not be awarded on the unilateral mistake of one of the parties to a contract. Natus Corp. v. United States, 371 F.2d 450, 458, 178 Ct.Cl. 1, 14 (1967); Olin Mathieson Chemical Corp. v. United States, 179 Ct.Cl. 368, 408 (1967); Allied Contractors, Inc. v. United States, 310 F.2d 945, 159 Ct.Cl. 548 (1962); California-Pacific Utilities Co. v. United States, 194 Ct.Cl. 703, 717-719 (1971), and Albano Cleaners, Inc. v. United States, supra.

Finally, plaintiff argues that the contract should be reformed because of the provisions of ASPR 2.406-3 which authorizes the contracting officer to correct mistakes in bids where such mistakes are discovered after the bid is opened but before the award of the contract. The plaintiff says that such is the situation in this case and the regulation requires that the contract be reformed. The trouble with this argument is that ASPR 2.406-3 did not become effective until December 31, 1960, when it was first published in 25 FR 14118. The effective date of the contract in the instant case was December 19, 1960. Consequently, ASPR 2.406-3 does not apply to this case.

It appears that prior to the publication of ASPR 2.406-3, the rule governing the problem before us was set forth in Massman Constr. Co. v. United States, 60 F.Supp. 635, 643, 102 Ct.Cl. 699, 717, cert. denied, 325 U.S. 866, 65 S.Ct. 1403, 89 L.Ed. 1985 (1945) as follows:

At the time the contract was awarded to the plaintiff, pursuant to its bid, and at the time it signed the contract, the plaintiff was not mistaken. It had become aware of the mistake in its bid, and faced the problem of whether it was willing to sign a contract for the figure which it had, by mistake since discovered, bid. The Government was also aware of the plaintiff’s claim that it had made a mistake in its bid. There was not, then, at the time of signing the contract, any lack of knowledge, either mutual or unilateral, which ,caused either of them to make the contract which they did make, when in fact they intended to make a different contract. That being so, if we should reform the contract as the plaintiff requests, we would be making for the parties the very contract which one of them, the Government, expressly refused to make at that time, though requested to do so by the plaintiff.

See also Board of Trustees, etc. v. O. D. Wilson Co., 77 U.S.App.D.C. 127, 133 F.2d 399 (1943); Early & Daniel Co. v. United States, 271 U.S. 140, 46 S.Ct. 457, 70 L.Ed. 874 (1926); aff’g, 59 Ct.Cl. 932 (1924); Willard, Sutherland & Co. v. United States, 262 U.S. 489, 43 S.Ct. 592, 67 L.Ed. 1086 (1923), aff’g 56 Ct.Cl. 413 (1921).

The plaintiff is clearly not entitled to reformation of the contract under the rule announced in the Massman Construction Co. case, as well as for other reasons set forth above for denying such reformation.

Mention should be made of the fact that after plaintiff submitted its bid but before the award of the contract, the plaintiff learned of the change in the specifications of the land fill contract and complained to the contracting officer. However, the plaintiff neither requested nor demanded the right to withdraw its bid. On the other hand, it proceeded to sign the contract with full knowledge of the facts, although it did reserve the right to file a claim for an equitable adjustment under the changed condition and disputes clauses. It could be argued that this conduct constituted a waiver of the claim that is being made here. See Adler Constr. Co. v. United States, 423 F.2d 1362, 1366, 191 Ct.Cl. 607, 611 (1970). However, we do not need to decide that question. Suffice it to say the plaintiff would have been in a much stronger position if it had asked permission to withdraw its bid and such request had been refused by the contracting officer, but we do not mean to indicate that even if this had occurred the plaintiff would be entitled to reformation of the contract.

Ill

The Breach of Contract Claim

The plaintiff contends that by withholding the $92,597.46 that has been awarded to it in this case by the Board, the government has breached its contract and plaintiff demands the payment to it of this amount plus interest from July 23, 1971, at six percent. This claim would appear to be inconsistent with the claims previously discussed wherein the plaintiff contends that the $92,597.46 is not enough and it seeks more under the changed conditions clause, as well as under its reformation claim. In any event, the breach of contract claim must be rejected because the government has a right of off-set with respect to the decision of the contracting officer in Appeal No. 12152 now pending before the Board in which he held that the plaintiff is indebted to the government in the sum of $429,291.84. The decision of the contracting officer in this regard is final and binding until and unless it is reversed or changed by the Board or by this court should the case be appealed here from the Board. Consequently, the government has the right to withhold the $92,597.46 awarded to the plaintiff in this case until Appeal No. 12152 has been finally decided.

The plaintiff has asked this court to stay the proceedings in Appeal No. 12152 now pending before the Board. That case is not before us and we have no authority to grant such a stay.

IV

Conclusion

We hold that the decision of the Board on all the issues was neither arbitrary nor capricious, and is supported by substantial evidence and is correct as a matter of law, and the same is accorded finality and is affirmed; that the claims of the plaintiff for an additional recovery under the changed conditions clause of the contract and for reformation of the contract, as well as its claims for breach of contract, and for stay of proceedings of Appeal No. 12152 now pending before the Board, and for remand to the Board, are denied.

Accordingly, the plaintiff’s motion for partial summary judgment is denied, except that judgment is awarded to the plaintiff for the sum of $92,597.46, subject to the right of the government to set-off its claim, if any, against the plaintiff in Appeal No. 12152 now pending before the Board, at the time the appeal in that case is finally disposed of by the Board or by this court if the case reaches us on appeal. The defendant’s motion for summary judgment is granted as to all other claims and issues involved in this case, and the plaintiff’s petition is dismissed with respect to them.

      . The contract was No. NBy(CH)-29105.