B-154809, DEC. 22, 1964, 44 COMP. GEN. 341

B-154809: Dec 22, 1964

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OFFERED - IMPOSSIBILITY OF MEETING REFUSAL BY THE GOVERNMENT TO ACCEPT FURTHER DELIVERIES OF INSTRUMENTS FROM A CONTRACTOR THAT DID NOT COMPLY WITH A SPECIFICATION REQUIREMENT WHICH WAS RELAXED TO SOME EXTENT FOR SUBSEQUENT DELIVERIES IS NOT TANTAMOUNT TO A WORK STOPPAGE TO ENTITLE THE CONTRACTOR TO DAMAGES FOR PRODUCTION DELAYS DUE TO GOVERNMENT ACTIVITIES SINCE THE GOVERNMENT UNDER A CLEAR SPECIFICATION WAS ENTITLED TO DEMAND THAT ALL DELIVERIES MEET THE SPECIFICATIONS AND PRIOR ACCEPTANCE OF NONCONFORMING ITEMS UNDER THE INITIAL PRODUCTION DOES NOT HAVE THE EFFECT OF REQUIRING THE GOVERNMENT TO ACCEPT ADDITIONAL DELIVERIES WHICH DO NOT CONFORM TO THE CONTRACT REQUIREMENTS. AN EXTENSION OF TIME FOR DELIVERIES GRANTED TO A CONTRACTOR WHO WAS EXPERIENCING DIFFICULTIES IN MANUFACTURING AN INSTRUMENT MEETING THE REQUIREMENTS OF THE CONTRACT DOES NOT CONSTITUTE AN ADMISSION THAT THE GOVERNMENT HAS BREACHED THE CONTRACT BUT WAS A PROPER EXERCISE BY THE GOVERNMENT UNDER THE CONTRACT OF ITS RIGHT TO EXCUSE DELAYS IN PERFORMANCE FOR WHICH THE CONTRACTOR WOULD HAVE BEEN CHARGED LIQUIDATED DAMAGES.

B-154809, DEC. 22, 1964, 44 COMP. GEN. 341

CONTRACTS - DAMAGES - DELAYS - CONTRACT CHANGES. CONTRACTS - DELIVERIES - DELAYS - EXTENSIONS OF TIME. CONTRACTS - SPECIFICATIONS - CONFORMABILITY OF EQUIPMENT, ETC., OFFERED - IMPOSSIBILITY OF MEETING. CONTRACTS - SPECIFICATIONS - CONFORMABILITY OF EQUIPMENT, ETC., OFFERED - IMPOSSIBILITY OF MEETING REFUSAL BY THE GOVERNMENT TO ACCEPT FURTHER DELIVERIES OF INSTRUMENTS FROM A CONTRACTOR THAT DID NOT COMPLY WITH A SPECIFICATION REQUIREMENT WHICH WAS RELAXED TO SOME EXTENT FOR SUBSEQUENT DELIVERIES IS NOT TANTAMOUNT TO A WORK STOPPAGE TO ENTITLE THE CONTRACTOR TO DAMAGES FOR PRODUCTION DELAYS DUE TO GOVERNMENT ACTIVITIES SINCE THE GOVERNMENT UNDER A CLEAR SPECIFICATION WAS ENTITLED TO DEMAND THAT ALL DELIVERIES MEET THE SPECIFICATIONS AND PRIOR ACCEPTANCE OF NONCONFORMING ITEMS UNDER THE INITIAL PRODUCTION DOES NOT HAVE THE EFFECT OF REQUIRING THE GOVERNMENT TO ACCEPT ADDITIONAL DELIVERIES WHICH DO NOT CONFORM TO THE CONTRACT REQUIREMENTS. AN EXTENSION OF TIME FOR DELIVERIES GRANTED TO A CONTRACTOR WHO WAS EXPERIENCING DIFFICULTIES IN MANUFACTURING AN INSTRUMENT MEETING THE REQUIREMENTS OF THE CONTRACT DOES NOT CONSTITUTE AN ADMISSION THAT THE GOVERNMENT HAS BREACHED THE CONTRACT BUT WAS A PROPER EXERCISE BY THE GOVERNMENT UNDER THE CONTRACT OF ITS RIGHT TO EXCUSE DELAYS IN PERFORMANCE FOR WHICH THE CONTRACTOR WOULD HAVE BEEN CHARGED LIQUIDATED DAMAGES. AN ALLEGATION THAT A MILITARY SPECIFICATION FOR PRODUCTION OF DOSIMETERS IS DRAWN SO CLOSE TO THE ULTIMATE IN TECHNICAL PERFECTION THAT IT IS BEYOND THE LIMITS OF THE "STATE OF ART" CAPABLE OF PERFORMANCE BY A CONTRACTOR WHO HAD FULL KNOWLEDGE OF THE DIFFICULTIES INHERENT IN PRODUCTION AND YET, WITH THE KNOWLEDGE OF WHAT THE GOVERNMENT WANTED, AGREED TO A FIXED-PRICE CONTRACT MAY NOT HAVE THE CONTRACT REGARDED AS EXCEEDING THE "STATE OF ART" CAPABLE OF PERFORMANCE. A CONTRACTOR WHO CLAIMS DAMAGES FOR PRODUCTION DELAYS IN ATTEMPTING TO MEET THE REQUIREMENTS OF THE SPECIFICATIONS ON THE BASIS OF IMPOSSIBILITY OF PERFORMANCE, ALTHOUGH A SMALL PERCENTAGE OF THE ITEMS PRODUCED COMPLIED WITH THE SPECIFICATIONS, MAY NOT HAVE IMPOSSIBILITY OF PERFORMANCE IN AN ECONOMIC SENSE CONSIDERED AN EXCUSE FOR NONPERFORMANCE SINCE NONPERFORMANCE REQUIRES IMPOSSIBILITY OF PERFORMANCE BY ANY CONTRACTOR, REGARDLESS OF COST, AND, UNDER THE GENERAL RULE, A CONTRACTOR WHO AGREES TO A FIXED-PRICE CONTRACT WITH KNOWLEDGE OF THE SPECIFICATION REQUIREMENTS HAS ASSUMED THE RISK OF IMPOSSIBILITY OF PERFORMANCE AND DOES BECOME ENTITLED TO ADDITIONAL COMPENSATION BECAUSE OF UNFORESEEN DIFFICULTIES IN PERFORMANCE.

TO LANDSVERK ELECTRONMETER COMPANY, DECEMBER 22, 1964:

REFERENCE IS MADE TO YOUR REQUEST FOR REVIEW OF SETTLEMENT DATED JULY 16, 1964, WHICH DISALLOWED YOUR CLAIMS FOR $72,832.96 AND $72,733.84, COVERING INCREASED COSTS INCURRED AS THE RESULT OF TWO SEPARATE PERIODS OF PRODUCTION DELAYS ALLEGEDLY CAUSED BY THE GOVERNMENT IN THE MANUFACTURE OF DOSIMETERS UNDER ARMY CONTRACTS NOS. DA 36-039-SC-88229 AND DA 36-039-SC- 89973, DATED APRIL 14, 1961, AND DECEMBER 27, 1961, RESPECTIVELY.

THE RECORD INDICATES THAT THE TWO CONTRACTS AS MODIFIED CALLED FOR THE PRODUCTION OF 61,290 IM-93 RADIACMETERS, COMMONLY REFERRED TO AS DOSIMETERS. THE DOSIMETERS WERE TO BE MANUFACTURED IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-R-13029 A, WITH CERTAIN EXCEPTIONS THERETO, AND A SIGNAL CORPS DRAWING. THE SPECIFICATION IS OF A PERFORMANCE TYPE AND THE MATTER OF DETERMINING THE INTERNAL CONSTRUCTION OF THE UNIT WAS LEFT TO YOUR DISCRETION. UNDER ONE OF THE LISTED EXCEPTIONS TO THE SPECIFICATION PARAGRAPHS 310.2 AND 310.2 PROVIDED FOR MAXIMUM ALLOWABLE ELECTRICAL LEAKAGE IN THE UNITS AFTER EXPOSURE TO HIGH RADIATION AND DURING CHARGING WITH THE USE OF AN ELECTROSTATIC CHARGER. PARAGRAPH 310.1 PROVIDED THAT "THE LEAKAGE OF EACH INSTRUMENT 8 HOURS AFTER EXPOSURE TO 6,000 ROENTGENS AT THE RATE OF NOT LESS THAT 3,000 ROENTGENS PER HOUR SHALL NOT EXCEED 1/2 OF ONE PERCENT OF FULL SCALE PER 24 HOURS.' THE MILITARY SPECIFICATION OTHERWISE PROVIDED A STANDARD FOR RATE DEPENDENCY FOR WHICH A DEVIATION OF NOT MORE THAN PLUS OR MINUS 10 PERCENT THROUGH RATES OF EXPOSURE FROM 0 TO 2 MILLION ROENTGENS PER HOUR WAS PERMITTED.

UPON EVALUATION OF UNITS INITIALLY PRODUCED UNDER THE FIRST CONTRACT IT BECAME APPARENT THAT YOU WOULD NOT BE ABLE TO MEET THE MINIMUM STANDARD FOR ALLOWABLE ELECTRICAL LEAKAGE AFTER EXPOSURE TO HIGH RADIATION. VIEW THEREOF, YOU WERE ADVISED ON DECEMBER 22, 1961, THAT THE GOVERNMENT WOULD RELAX THE CONTRACT REQUIREMENT TO THE EXTENT THAT A TWO PERCENT INSTEAD OF A 1/2 PERCENT EXCESS OF ELECTRICAL LEAKAGE IN THE INSTRUMENTS WOULD BE PERMITTED. THAT CHANGE WAS FORMALIZED IN TECHNICAL ACTION REQUEST OF FEBRUARY 9, 1962, WHICH STATED IN PART THAT "THE RESULTS OF THIS EVALUATION SHOWS THAT THE LEAKAGE RATE SPECIFIED IS BEYOND THE "STATE OF THE ART" FOR QUANTITATIVE PRODUCTION OF THESE INSTRUMENTS.'

YOUR CLAIM "A" FOR $72,832.96 COVERS DAMAGES FOR PRODUCTION DELAYS CAUSED IN ATTEMPTS PRIOR TO DECEMBER 22, 1961, TO COMPLY WITH THE ORIGINAL CONTRACT REQUIREMENT THAT THE ELECTRICAL LEAKAGE IN THE INSTRUMENTS AFTER EXPOSURE TO HIGH RADIATION SHOULD NOT EXCEED 1/2 OF ONE PERCENT OF FULL SCALE READING PER 24 HOURS.

ON JUNE 2, 1962, YOU WERE ADVISED INFORMALLY BY A GOVERNMENT REPRESENTATIVE THAT PREVIOUSLY ACCEPTED UNITS DID NOT COMPLY WITH THE RATE DEPENDENCY PROVISION OF THE MILITARY SPECIFICATION, THAT THE GOVERNMENT WOULD NOT ACCEPT ADDITIONAL DELIVERIES WHICH WERE EXCESSIVELY RATE DEPENDENT, AND THAT IT WOULD BE NECESSARY TO CALL BACK FROM THE FIELD SOME 13,000 PREVIOUSLY ACCEPTED UNITS FOR REWORK. TESTS PERFORMED AT THE SIGNAL CORPS FACILITY AT LEXINGTON, KENTUCKY, INDICATED THAT THE UNITS DELIVERED WERE EXCESSIVELY RATE DEPENDENT IN THAT THEY EXHIBITED A HIGHER SENSITIVITY THAN PERMITTED BY THE MILITARY SPECIFICATION. WHEREAS THE SPECIFICATION PERMITTED A DEVIATION OF PLUS OR MINUS 10 PERCENT, IT WAS FOUND THAT THE INSTRUMENTS DELIVERED AVERAGED ABOUT 20 PERCENT HIGH AT A RATE OF 90 ROENTGENS PER HOUR AS COMPARED TO THE SENSITIVITY AT 3,700 ROENTGENS PER HOUR.

IT IS REPORTED THAT YOU WERE EVENTUALLY REQUIRED TO PERFORM ADDITIONAL WORK ON APPROXIMATELY 23,346 UNITS WHICH WERE DEFICIENT FROM THE STANDPOINT OF RATE DEPENDENCY, AND IT APPEARS THAT YOU HAVE BEEN PAID THE APPROXIMATE SUM OF $78,000 FOR REWORKING OF THOSE UNITS. THE RECORD OTHERWISE SHOWS THAT ALTHOUGH THE RATE DEPENDENCY PROVISION OF THE MILITARY SPECIFICATION WAS NEVER FULLY COMPLIED WITH, THE GOVERNMENT INDICATED ON OCTOBER 30, 1962, THAT IT WOULD ACCEPT ADDITIONAL DELIVERIES OF INSTRUMENTS PRODUCED IN ACCORDANCE WITH SAMPLES DEVELOPED AFTER JUNE 2, 1962, BY YOUR COMPANY, WHICH INCORPORATED CHANGES WHICH MADE THEM LESS RATE DEPENDENT THAN THE INSTRUMENTS PREVIOUSLY DELIVERED UNDER THE CONTRACTS.

YOUR CLAIM "B" FOR $72,733.84 COVERS DAMAGES FOR PRODUCTION DELAYS ASSOCIATED WITH THE MAKING OF ADDITIONAL DELIVERIES UNDER THE CONTRACTS AFTER JUNE 2, 1962, WHEN YOU WERE ADVISED THAT THE GOVERNMENT WOULD NOT ACCEPT INSTRUMENTS WHICH DID NOT COMPLY WITH THE RATE DEPENDENCY PROVISION OF THE MILITARY SPECIFICATION.

IN A LETTER DATED JUNE 11, 1963, TO THE CONTRACTING OFFICER, PRESENTING THE TWO CLAIMS, YOU STATED THAT THE PRODUCTION OF DOSIMETERS IS HIGHLY TECHNICAL AND THE GOVERNMENT SPECIFICATIONS HAVE ALWAYS BEEN DRAWN VERY CLOSE TO THE ULTIMATE THAT CAN BE ATTAINED WITH THE BEST MATERIAL AND PROCESSING; THAT THE TECHNICAL WAY TO SAY THIS IS THAT MANY OF THE SPECIFICATIONS LIE JUST BARELY WITHIN THE LIMITS OF THE "STATE OF THE ART" AND THE CAPACITY OF AVAILABLE MATERIALS; AND THAT SOMETIMES THE SPECIFICATIONS HAVE BEEN DRAWN SO THAT THEY ARE BEYOND THOSE LIMITS. YOU ALLEGED THAT OVER THE PAST 15 YEARS ABOUT 17 DIFFERENT CONCERNS HAVE BID ON CONTRACTS FOR AND TRIED TO MAKE QUARTZ FIBER DOSIMETERS; THAT SOME OF THOSE FIRMS HAVE GONE BANKRUPT AND OTHERS HAVE GIVEN UP AFTER EXPENDING UP TO $300,000 IN FUTILE ATTEMPTS TO MANUFACTURE THE DOSIMETERS; AND THAT ONLY TWO OF THE 17 FIRMS, LANDSVERK AND THE CINCINNATI DIVISION OF THE BENDIX CORPORATION, WERE QUALIFIED TO MAKE HIGH-RANGE DOSIMETERS FOR THE GOVERNMENT.

WITH REFERENCE TO CLAIM "A" IT WAS CONTENDED THAT THE PROVISION FOR ALLOWABLE ELECTRICAL LEAKAGE ( 1/2 OF ONE PERCENT) IS A NEW SPECIFICATION; THAT NEITHER THE SIGNAL CORPS NOR LANDSVERK HAD ANY MEANS OF KNOWING WHETHER THE NEW SPECIFICATION COULD BE MET IN PRODUCTION; AND THAT "THE WAY TO FIND OUT WAS NOT TO REFUSE TO BID BECAUSE THEN THE PRODUCTION STAGE WOULD NEVER BE ACHED.' YOU INDICATED THAT YOU KNEW FROM NUMEROUS TESTS THAT YOU COULD PRODUCE DOSIMETERS IN SAMPLE LOTS THAT WOULD MEET THE SPECIFICATIONS BUT THAT IT WAS NOT POSSIBLE, SHORT OF REACHING THE PRODUCTION STAGE, TO KNOW WHETHER INSTRUMENTS MEETING THE SPECIFICATIONS COULD BE MANUFACTURED UNDER MASS PRODUCTION CONDITIONS. IT WAS ARGUED THAT, ALTHOUGH THIS SITUATION WAS NOT NEW TO YOU IN THAT YOU HAD PROCEEDED UNDER PRIOR CONTRACTS WITH A BELIEF THAT YOU COULD MEET THE GOVERNMENT'S SPECIFICATIONS--- AND YOU DID NOT MEAN TO CRITICIZE THE SIGNAL CORPS FOR NOT HAVING CONTRACTED ON THE BASIS OF DEVELOPMENT COSTS FOR CHECKING AND IMPROVING DOSIMETERS--- IT MUST BE RECOGNIZED THAT A CONTRACTOR CANNOT BE HELD RESPONSIBLE FOR IMPOSSIBLE SPECIFICATIONS IF AND WHEN IMPOSSIBILITY APPEARS.

YOU REFERRED TO OTHER CIRCUMSTANCES, SUCH AS THE GOVERNMENT'S CHOICE OF MATERIALS, WHICH MIGHT HAVE AFFECTED THE ABILITY OF YOUR COMPANY TO PRODUCE DOSIMETERS WHICH WOULD NOT HAVE EXCEEDED THE PERCENTAGE OF ALLOWABLE ELECTRICAL LEAKAGE, AND EMPHASIZED THE FINAL DETERMINATION OF THE SIGNAL CORPS THAT THE 1/2 OF ONE PERCENT LEAKAGE ALLOWANCE WAS "BEYOND THE STATE OF THE ART.' YOU FURTHER INDICATED THAT IN DECEMBER 1961 THE SIGNAL CORPS WAS ADVISED THAT YOU COULD NOT MEET THE PARTICULAR REQUIREMENT OF THE SPECIFICATIONS AND SUGGESTED THAT THE FIRST CONTRACT "BE TAKEN FROM LANDSVERK AND ASSIGNED TO SOME CONTRACTOR WHO COULD MEET THE SPECIFICATION.'

ADDITIONALLY YOU STATED THAT THE CONTRACTING OFFICER SUSPENDED THE APPLICATION OF LIQUIDATED DAMAGES AND YOU CONTENDED THAT SUCH ACTION ESTABLISHED THE PRINCIPLE THAT THE SIGNAL CORPS WAS RESPONSIBLE FOR YOUR INABILITY TO PRODUCE ACCEPTABLE DOSIMETERS PRIOR TO DECEMBER 22, 1961.

IN THE CASE OF YOUR CLAIM "B" FOR $72,733.84, IT WAS ARGUED THAT THE RATE DEPENDENCY PROVISION OF THE CONTRACTS WAS NEVER INTENDED FOR APPLICATION AT LOW RATES AND THAT THE ACTION OF THE SIGNAL CORPS IN REFUSING TO ACCEPT FURTHER DELIVERIES NOT CONFORMING TO THE SPECIFICATIONS WAS A TRUE STOPPAGE OF WORK AS DISTINGUISHED FROM THE EVENTS THAT CULMINATE ON DECEMBER 22, 1961. YOU SUGGESTED THAT THE CONTRACTS WERE BREACHED BY THE GOVERNMENT BECAUSE THE CONTRACTS CONTAINED NO PROVISION FOR ORDERING A STOPPAGE OF WORK. WE DO NOT AGREE THAT THE REFUSAL TO ACCEPT NONCONFORMING SUPPLIES CAN BE CONSIDERED TANTAMOUNT TO A STOP ORDER. HOWEVER, YOU INDICATED THAT YOUR CLAIM "B" IS NOT BASED ON TECHNICALITIES BUT, RATHER, UPON FAIRNESS AND JUSTICE IN THAT YOU CONTRACTED IN GOOD FAITH ON A STRICTLY LOW COST, LOW PROFIT BASIS AND YOU WERE LEFT WITH LOSSES BECAUSE OF SIGNAL CORPS ACTIONS.

IN MAKING REQUEST FOR REVIEW OF THE SETTLEMENT ACTION TAKEN BY OUR CLAIMS DIVISION, ATTENTION WAS INVITED TO THE FACT THAT THE CONTRACTING OFFICER AND HIS IMMEDIATE SUCCESSOR HAD RECOMMENDED THAT FAVORABLE ACTION BE TAKEN ON YOUR CLAIMS. WE NOTED THAT THEIR RECOMMENDATIONS FOR ALLOWANCE WERE BASED UPON EQUITABLE AS DISTINGUISHED FROM STRICTLY LEGAL GROUNDS. ALSO NOTED THAT THE SUCCESSOR TO THE CONTRACTING OFFICER DID NOT AGREE WITH YOUR CONTENTION IN THE CASE OF YOUR CLAIM "B" THAT THE RATE DEPENDENCY PROVISION OF THE MILITARY SPECIFICATION WAS NEVER INTENDED FOR APPLICATION AT RATES LOWER THAN NORMAL CALIBRATION RATES. HE STATED THAT "THE GOVERNMENT'S ANSWER TO THIS IS THAT THE SPECIFICATION IS CLEAR AND APPLIES TO THE ENTIRE RATE RANGE.' WE CONCUR WITH SUCH CONCLUSION AND WE DO NOT AGREE WITH YOUR POSITION THAT THE ACTION TAKEN BY THE SIGNAL CORPS ON JUNE 2, 1962, CONSTITUTED A TRUE STOPPAGE OF WORK REQUIRED BY GOVERNMENT ACTION. THE GOVERNMENT WAS AT ALL TIMES ENTITLED TO DEMAND THAT DELIVERIES MEET SPECIFICATIONS AND A PRIOR ACCEPTANCE OF NONCONFORMING ITEMS DOES NOT HAVE THE EFFECT OF REQUIRING THE GOVERNMENT TO ACCEPT ADDITIONAL DELIVERIES WHICH DO NOT CONFORM WITH CONTRACT REQUIREMENTS. WE, THEREFORE, SUSTAIN THE DISALLOWANCE OF YOUR CLAIM "B.'

OUR REPRESENTATIVES DISCUSSED WITH DR. LANDSVERK THE CONCLUSIONS REACHED BY OTHER DEPARTMENTAL OFFICIALS WHO CONSIDERED YOUR CLAIMS IN THE FIRST INSTANCE AND WE REQUESTED AND RECEIVED A SUPPLEMENTAL ADMINISTRATIVE REPORT FROM THE DEPARTMENT OF THE ARMY CONCERNING DR. LANDSVERK'S WRITTEN COMMENTS ON THE STATEMENTS MADE BY THE PARTICULAR OFFICIALS. THERE HAVE BEEN DEVELOPED NO ADDITIONAL MATERIAL FACTS IN THE CASE. HOWEVER, DR. LANDSVERK HAS ARGUED THAT HIS COMPANY WAS TREATED LESS FAVORABLY THAN OTHERS WHOSE CONTRACTS WERE TERMINATED FOR THE CONVENIENCE OF THE GOVERNMENT, AND THAT THE SIGNAL CORPS ATTEMPTED TO GET FREE RESEARCH AND DEVELOPMENT BY PRESENTING A RESEARCH AND DEVELOPMENT CONTRACT AS A PRODUCTION CONTRACT. THE QUESTION AS TO WHETHER ANY OTHER CONTRACTOR OBTAINED A BENEFIT FROM TERMINATION OF ITS CONTRACT FOR THE GOVERNMENT'S CONVENIENCE IS NOT CONSIDERED MATERIAL IN DETERMINING THE MERITS OF YOUR CLAIMS; AND IT APPEARS THAT WE WOULD NOT BE WARRANTED IN QUESTIONING THE MOTIVES OF THE SIGNAL CORPS IN ITS ATTEMPTS TO ACQUIRE THE BEST AVAILABLE TYPES OF DOSIMETERS UNDER FIXED-PRICE CONTRACTS WITH FIRMS KNOWN TO HAVE HAD A CONSIDERABLE AMOUNT OF EXPERIENCE IN THE PARTICULAR FIELD AND PRESUMABLY TO POSSESS MORE KNOWLEDGE OF THE MANUFACTURING PROBLEMS INVOLVED IN PRODUCING DOSIMETERS THAN POSSESSED BY ANY OF THE COGNIZANT GOVERNMENT OFFICIALS OR ENGINEERS.

AS STATED IN THE FINAL REPORT OF THE DEPARTMENT OF THE ARMY, YOU ARE A LEADER IN PRODUCING THE ITEM CONCERNED AND THE FILE IS REPLETE WITH EVIDENCE THAT YOU WERE FULLY COGNIZANT OF THE DIFFICULTIES INHERENT IN PRODUCING THE ITEM. YOU KNEW WHAT THE GOVERNMENT WANTED, HAD FULL KNOWLEDGE OF THE STATE OF THE ART AND THE POSSIBILITY THAT THE PROPOSED "BUY" EXCEEDED THE STATE OF THE ART, BUT WITH THIS BACKGROUND YOU BID AND AGREED TO A FIXED-PRICE CONTRACT.

THE GRANTING OF AN EXTENSION OF TIME FOR MAKING DELIVERIES UNDER THE CONTRACTS OBVIOUSLY DID NOT CONSTITUTE AN ADMISSION THAT THE GOVERNMENT HAD BREACHED THE CONTRACTS. IN THE GRANTING OF AN EXTENSION OF TIME FOR CONTRACT PERFORMANCE THE SIGNAL CORPS WAS MERELY APPLYING A CONTRACT PROVISION FOR EXCUSING DELAYS IN PERFORMANCE FOR WHICH YOU MIGHT OTHERWISE HAVE BEEN CHARGED LIQUIDATED DAMAGES. IT APPEARS THAT YOU WERE DETERMINED TO BE ENTITLED TO ADDITIONAL PERFORMANCE TIME, NOT BECAUSE OF ANY DELAYS ATTRIBUTABLE TO THE GOVERNMENT, BUT ON ACCOUNT OF THE DIFFICULTIES WHICH WERE EXPERIENCED IN ATTEMPTING TO MEET THE REQUIREMENTS OF THE CONTRACTS. WE EXPRESS NO OPINION WHETHER SUCH EXTENSIONS WERE OR WERE NOT JUSTIFIED.

YOUR CLAIM "A" APPEARS TO BE BASED MAINLY ON ALLEGED IMPOSSIBILITY OF PERFORMANCE. IMPOSSIBILITY OF PERFORMANCE, TO CONSTITUTE AN EXCUSE FOR NONPERFORMANCE, MUST BE OF THE OBJECTIVE RATHER THAN THE SUBJECTIVE TYPE. IN OTHER WORDS, IT MUST BE IMPOSSIBLE FOR ANYONE TO PERFORM, REGARDLESS OF COST, RATHER TO BE IMPOSSIBLE IN AN ECONOMIC SENSE. THERE IS SERIOUS DOUBT THAT PERFORMANCE WAS IMPOSSIBLE IN THE OBJECTIVE SENSE, SINCE A SMALL PERCENTAGE OF DOSIMETERS PRODUCED DID MEET THE SPECIFICATIONS ON LEAKAGE RATE. IT IS A WELL SETTLED RULE THAT WHERE ONE AGREES TO DO, FOR A FIXED SUM, A THING POSSIBLE TO BE PERFORMED, HE WILL NOT BE EXCUSED OR BECOME ENTITLED TO ADDITIONAL COMPENSATION, BECAUSE UNFORESEEN DIFFICULTIES ARE ENCOUNTERED. COLUMBUS RAILWAY AND POWER COMPANY V. COLUMBUS, 249 U.S. 399, 412; DAY V. UNITED STATES, 245 U.S. 159, 161. HOWEVER, EVEN IF IT SHOULD BE ASSUMED, WHICH WE DO NOT, THAT THE ORIGINAL LEAKAGE SPECIFICATIONS WERE OBJECTIVELY IMPOSSIBLE OF PERFORMANCE, SUCH FACT DOES NOT NECESSARILY ENTITLE YOU TO ADDITIONAL COMPENSATION. PERSON MAY CONTRACT TO DO WHAT IS IMPOSSIBLE AND BE LIABLE FOR FAILURE TO PERFORM. WILLISTON ON CONTRACTS, REV.ED., SEC. 1931. IMPOSSIBILITY OF PERFORMANCE DOES NOT PREVENT THE EXECUTION OF A BINDING CONTRACT TO PERFORM IF THE PRIMISOR ASSUMES THE RISK OF IMPOSSIBILITY OF PERFORMANCE. WILLISTON, SUPRA, SECS. 1933, 1934. SEE ALSO AUSTIN COMPANY V. UNITED STATES, 314 F.2D 518, CERT. DENIED, 375 U.S. 830. CERTAINLY, IN THE PRESENT CASE, YOU HAD AS MUCH KNOWLEDGE AS THE GOVERNMENT WHETHER THE SPECIFICATIONS WERE POSSIBLE OF PERFORMANCE. CERTAINLY, ALSO, YOU KNEW THAT THE LEAKAGE RATE REQUIRED MIGHT BE IMPOSSIBLE TO ACHIEVE IN QUANTITY PRODUCTION. DESPITE YOUR KNOWLEDGE, YOU AGREED TO THE FIXED-PRICE CONTRACTS INVOLVED. THE CONCLUSION IS THEREFORE REQUIRED THAT YOU ASSUMED THE RISK OF IMPOSSIBILITY OF PERFORMANCE.

IN THE CIRCUMSTANCES, YOUR CLAIMS ARE CONSIDERED TO BE OF SUCH DOUBTFUL VALIDITY AS TO REQUIRE THEIR REJECTION BY OUR OFFICE, LEAVING YOU TO PURSUE THEM IN THE COURTS IF YOU WISH. SEE LONGWILL V. UNITED STATES, 17 CT.CL. 288, AND 291; AND CHARLES V. UNITED STATES, 19 CT.CL. 316, 319. ACCORDINGLY, THE SETTLEMENT DATED JULY 16, 1964, DISALLOWING THOSE CLAIMS, MUST BE AND IS HEREBY SUSTAINED.