B-159986, FEB. 14, 1967

B-159986, FEB. 14, 1967

TO THE ROCKLIN MANUFACTURING COMPANY:

IN YOUR CORRESPONDENCE OF AUGUST 24, SEPTEMBER 16, NOVEMBER 1 AND 11, 1966, YOU HAVE PRESENTED A CLAIM AGAINST THE GOVERNMENT FOR ADDITIONAL COMPENSATION, FOR INCREASED COSTS INCURRED BY YOU AS SUBCONTRACTOR AS A RESULT OF AN ALLEGED CHANGE IN SPECIFICATIONS ISSUED IN CONNECTION WITH DEPARTMENT OF THE ARMY CONTRACT NO. DA-45-164-ENG 3565, DATED FEBRUARY 8, 1960, FOR TITAN I MISSILE LAUNCH COMPLEXES.

THE SUBJECT CLAIM WAS SUBMITTED TO THE CONTRACTING AGENCY THROUGH AND IN THE NAME OF THE PRIME CONTRACTOR, AND HAS BEEN HEARD AND DENIED, UNDER THE DISPUTES CLAUSE OF THE SUBJECT CONTRACT, BY THE CORPS OF ENGINEERS BOARD OF CONTRACT APPEALS (ENG BCA DECISION NO. 2052, DATED SEPTEMBER 30, 1963), AND BY THE ARMED SERVICES BOARD OF CONTRACT APPEALS (ASBCA DECISION NO. 9562, DATED DECEMBER 29, 1964, AND, ON MOTION FOR RECONSIDERATION, MARCH 23, 1965). THE ASBCA DECISION, WHICH IS THE ONE YOU HAVE SPECIFICALLY REQUESTED US TO REVIEW, WAS BASED ON DE NOVO PROCEEDINGS, DURING WHICH SUBSTANTIALLY ALL OF THE ENG BCA HEARING WAS MADE A PART OF THE RECORD.

YOU ALLEGE THAT THE FACTUAL FINDINGS OF THE BOARDS ARE "CAPRICIOUS,OR ARBITRARY, OR SO GROSSLY ERRONEOUS AS NECESSARILY TO IMPLYBAD FAITH, OR NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.' WE HAVE HELD UNDER THE WUNDERLICH ACT, 68 STAT. 81, 41 U.S.C. 321, PARTIALLY QUOTED IN YOUR ALLEGATIONS ABOVE, THAT THIS OFFICE HAS JURISDICTION TO REVIEW ADMINISTRATIVE DISPUTES CLAUSE DECISIONS ON QUESTIONS OF FACT IN ORDER TO DETERMINE WHETHER SUCH DECISIONS ARE CAPRICIOUS, ARBITRARY, GROSSLY ERRONEOUS OR UNSUPPORTED BY SUBSTANTIAL EVIDENCE. B 153841, DECEMBER 5, 1966. ACCORDINGLY, WE HAVE OBTAINED FROM THE OFFICE OF THE RECORDER OF ASBCA, AND HAVE REVIEWED, THE OFFICIAL RECORD BEFORE THE BOARD, INCLUDING THE TRANSCRIPTS OF TESTIMONY AND THE EXHIBITS.

THE RECORD SHOWS THAT THE GOVERNMENT'S PRIME CONTRACTOR AWARDED YOU A PURCHASE ORDER FOR 1080 SHOCK MOUNTING DEVICES. AS PART OF THE DEVICE, THE SPECIFICATION AND DRAWINGS CALLED FOR VERTICAL SPRING MOUNT ASSEMBLIES, EACH INCLUDING A COIL SPRING BETWEEN 2 METAL PLATES, BALL JOINTS WITH BEARINGS, AND 4 HOOKS MADE FROM NO. 4 ( 1/2 INCH) STEEL REINFORCING BAR (HEREINAFTER "REBAR"), EACH HOOK WELDED AT ONE END TO THE UPPER METAL PLATE THROUGH WHICH IT WAS TO PROTRUDE.

SECTION 44 OF THE TECHNICAL PROVISIONS OF THE CONTRACT SPECIFICATIONS, TITLED "SHOCK MOUNTING DEVICES," STATED THAT MATERIALS AND WORKMANSHIP SHALL COMPLY WITH ACCEPTED STANDARD PRACTICES OF THE SEVERAL TRADES; THAT ALL WELDING SHALL BE IN ACCORDANCE WITH THE AMERICAN WELDING SOCIETY'S (AWS) "STANDARD CODE FOR ARC AND GAS WELDING IN BUILDING CONSTRUCTION; " THAT ALL MATERIALS SHALL BE OF "COMMERCIAL QUALITY" AND OF NEW STOCK; AND THAT ALL WEARING SURFACES (WHICH WOULD INCLUDE THE BEARINGS) SHALL BE TREATED WITH A SUITABLE LUBRICANT EQUIVALENT TO MOLBYDENUM-DISULFIDE. THE AWS PUBLICATION SPECIFIED THE USE OF CARBON STEEL ELECTRODES (THE INSTRUMENTS FROM WHICH THE FILLER METAL IS DEPOSITED INTO THE JOINT TO ACHIEVE A WELD) OTHER THAN THE LOW HYDROGEN TYPE.

YOUR SHOP DRAWING, DESIGNATING THE REINFORCING BAR AS "COMMERCIAL NO. 4 REBAR," WAS APPROVED BY THE GOVERNMENT. YOU ORDERED FROM YOUR SUPPLIER "130 LENGTHS NO. 4 REINFORCING BAR X 40 FT., " WITHOUT SPECIFYING ANY PARTICULAR CHEMICAL COMPOSITION FOR THE REBARS, AND USED THIS MATERIAL IN FABRICATING 144 OF THE VERTICAL SPRING MOUNT ASSEMBLIES. THE GOVERNMENT CERTIFIED THESE ASSEMBLIES AS HAVING BEEN FABRICATED IN ACCORDANCE WITH THE APPROVED SHOP DRAWINGS, BUT MR. JACK D. JOHNSON, THE CORPS OF ENGINEERS' QUALITY CONTROL SUPERVISOR WHO INSPECTED THE ASSEMBLIES BEFORE SHIPMENT, TESTIFIED DURING THE HEARING BEFORE THE ENG BCA THAT HE HAD GIVEN LITTLE CONSIDERATION TO THE WELDING OF THE REBARS. HE SAID HE HAD CONSIDERED THE WELDING A MINOR PART OF THE OVERALL JOB, AND THAT HE HAD NOT TESTED THE REBARS PRIOR TO SHIPMENT TO THE PRIME CONTRACTOR IN THE FIELD,TO SEE IF THEY WERE SUBJECT TO EASY BREAKAGE.

IN MID-AUGUST OF 1960, SHORTLY AFTER DELIVERY OF THE 144 ASSEMBLIES TO THE PRIME CONTRACTOR, THE GOVERNMENT INSPECTED THE GOODS AND FOUND THAT SOME REBARS IN MOST OF THE ASSEMBLIES WERE BROKEN, OR SUBJECT TO EASY BREAKAGE, AT A POINT ADJACENT TO WHERE THEY HAD BEEN WELDED TO THE UPPER PLATE. ONLY 44 OF THE 144 ASSEMBLIES WERE ACCEPTABLE. THE REBARS IN THE REMAINING ASSEMBLIES WERE REPLACED IN THE FIELD BY THE PRIME CONTRACTOR, WHO ALSO USED NO. 4 REBAR. SUBSEQUENT TESTING OF THE REPLACEMENT REBARS SHOWED NO FAILURES. THE EXTENT TO WHICH THE PRIME CONTRACTOR'S WELDING PROCEDURE CONFORMED TO THE SPECIFICATIONS IS NOT SHOWN BY THE RECORD, SINCE THE GOVERNMENT INSPECTOR WAS NOT SURE HOW THE WELDING WAS DONE, AND NO REPRESENTATIVE OF THE PRIME CONTRACTOR WAS CALLED TO TESTIFY. IT DOES NOT APPEAR, HOWEVER, THAT ANY QUESTION WAS RAISED BY THE GOVERNMENT AS TO THE PROPRIETY OF THE WORK DONE BY THE PRIME IN CORRECTING THE DEFECTIVE ASSEMBLIES, AND WE FIND NO REASON TO DOUBT THAT YOU WOULD HAVE BEEN PERMITTED TO FOLLOW THE SAME PROCEDURE HE DID.

FOLLOWING THE DISCOVERY OF THIS BREAKAGE PROBLEM, THE GOVERNMENT PERMITTED YOU, AT YOUR REQUEST SUBMITTED THROUGH THE PRIME CONTRACTOR, TO SUBSTITUTE A "1020" MILD STEEL BAR (LOW CARBON CONTENT) FOR THE ORIGINALLY SPECIFIED REBAR. YOU THEN COMPLETED YOUR SUBCONTRACT WITHOUT FURTHER DIFFICULTY FROM BREAKAGE, AND SUBMITTED A CLAIM FOR ADDITIONAL COMPENSATION FOR YOUR INCREASED COSTS. NO NOTICE OF INTENTION TO CLAIM INCREASED COSTS APPEARS TO HAVE BEEN GIVEN AT THE TIME THE SUBSTITUTION OF MATERIAL WAS REQUESTED.

YOUR BASIC CONTENTION IN SUPPORT OF THE CLAIM IS THAT THE ORIGINAL SPECIFICATIONS FOR THE SPRING MOUNT ASSEMBLIES WERE DEFECTIVE IN CALLING FOR MATERIALS AND METHODS WHICH WOULD NOT PRODUCE A SUCCESSFUL RESULT, AND THAT THE SUBSTITUTION OF THE DIFFERENT MATERIAL WAS A CHANGE NECESSITATED BY SUCH DEFECT. THE GOVERNMENT'S POSITION IS, IN ESSENCE, THAT THE ASSEMBLIES COULD BE ECONOMICALLY MADE UNDER THE ORIGINAL SPECIFICATIONS AND THAT THE CHANGE OF MATERIAL WAS MERELY A SUBSTITUTION CONSENTED TO BY THE GOVERNMENT AT YOUR REQUEST AND FOR YOUR CONVENIENCE TO FACILITATE YOUR PRODUCTION OF THE ASSEMBLIES.

THE RECORD CONTAINS SUBSTANTIAL EVIDENCE THAT YOUR PRINCIPAL DIFFICULTY IN THE WELDING OF THE MATERIAL CALLED FOR BY THE CONTRACT WAS THE RESULT OF THE UNKNOWN OR VARIABLE CARBON CONTENT OF THE REBAR METAL. THE RECORD ESTABLISHES THAT TOO HIGH A PERCENTAGE OF CARBON IN THE STEEL TENDS TO RESULT IN EXCESSIVE BRITTLENESS OF THE BARS AT A POINT ADJACENT TO THE WELD. IT IS INDICATED, HOWEVER, THAT THIS EFFECT COULD BE AVOIDED BY (1) USING MATERIAL OF LOWER CARBON CONTENT, BUT STILL WITHIN THE RANGE ENCOUNTERED IN REBAR AS COMMERCIALLY AVAILABLE; (2) PREHEATING THE MATERIAL DURING THE WELDING PROCESS; OR (3) USING A LOW HYDROGEN ELECTRODE.

YOU MAINTAIN THAT NONE OF THESE METHODS WAS FEASIBLE, BECAUSE (1) REBAR CANNOT BE BOUGHT WITH A SPECIFIC CARBON CONTENT; (2) PREHEATING IN THE PRODUCTION OF THE SPRING MOUNT ASSEMBLIES CALLED FOR BY THE CONTRACT WOULD HAVE DAMAGED OR DESTROYED THE BEARING OR LUBRICANT REQUIRED BY THE SPECIFICATIONS; (3) THE SPECIFICATIONS PROVIDED FOR THE USE OF ELECTRODES OTHER THAN LOW HYDROGEN TYPES. YOU ALSO ASSERT THAT THE DEFECTIVENESS OF THE SPECIFIED REBAR IS SHOWN BY THE FACT THAT, USING THE SAME WELDING PROCEDURES, YOU SUCCEEDED IN WELDING THE "1020" LOW CARBON STEEL WHERE YOU HAD FAILED IN ATTEMPTING TO SUCCESSFULLY WELD THE REBAR.

THE BOARD UPON THE RECORD MADE BEFORE THE CORPS OF ENGINEERS BOARD AND ADDITIONAL VOLUMINOUS EVIDENCE AND ARGUMENT SUBMITTED TO IT,MADE FACTUAL FINDINGS THAT (1) THERE WAS NO DESIGN DEFICIENCY AND THAT NO. 4 REBAR WAS SUITABLE FOR THE INTENDED APPLICATION; (2) THAT YOU FAILED TO TAKE NECESSARY REASONABLE PRECAUTIONS TO PREVENT THE SUDDEN HARDENING OF THE REBARS; (3) THAT THE REBARS WERE NOT INHERENTLY OF SUCH CHARACTER THAT THEY COULD NOT BE SUCCESSFULLY WELDED WITHOUT SUBSEQUENT FRACTURES AND BREAKS; (4) THAT YOU COULD HAVE OBTAINED REBARS WITH KNOWN CARBON AND CHEMICAL CONTENT; AND (5) THAT WITH THE KNOWN CHEMICAL COMPOSITION YOU COULD HAVE TAKEN THE NECESSARY PRECAUTIONS TO AVOID THE HARDENING CONDITIONS. IT WAS ALSO FOUND THAT REASONABLE PRECAUTIONS WOULD HAVE PRECLUDED DAMAGE TO THE BEARING OR THE LUBRICANT.

UPON REVIEW OF THE RECORD IN THE LIGHT OF ALL THE CONTENTIONS AND ARGUMENTS PRESENTED IN THE SEVERAL LETTERS AND MEMORANDA YOU SUBMITTED TO US, WE WOULD NOT BE JUSTIFIED IN CONCLUDING THAT THE FACTUAL FINDINGS OF THE BOARD ARE FRAUDULENT OR CAPRICIOUS OR ARBITRARY OR SO GROSSLY ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH, OR ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. UNLESS WE CAN CONCLUDE THAT THE FINDINGS, OR SOME MATERIAL PART THEREOF, ARE SUBJECT TO ONE OF THE ENUMERATED DEFECTS, WE MUST ACCEPT THEM A FINAL AND BINDING UPON US. SEE 41 U.S.C. 321.

ASIDE FROM CONSIDERATIONS OF THE WEIGHT OF THE EVIDENCE, YOUR CONTENTIONS APPEAR TO INVOLVE CERTAIN FUNDAMENTAL PROPOSITIONS WHICH WE BELIEVE TO BE ERRONEOUS IN POINT OF LAW.

"THE LAW EXCUSES PERFORMANCE (OR, IN THE CASE OF GOVERNMENT CONTRACTS, GRANTS RELIEF THROUGH A CHANGE ORDER) WHERE THE ATTENDANT COSTS OF PERFORMANCE BESPEAK COMMERCIAL SENSELESSNESS; IT DOES NOT GRANT RELIEF MERELY BECAUSE PERFORMANCE CANNOT BE ACHIEVED UNDER THE MOST ECONOMICAL MEANS.' NATUS V. UNITED STATES, CT.CL. NO. 166-61, DECIDED JANUARY 20, 1967.

THEREFORE, WE MUST REJECT YOUR PROPOSITION THAT SPECIFICATIONS ARE AUTOMATICALLY DEFECTIVE IF THEY CALL FOR THE USE OF MATERIALS WHICH ARE NOT THE BEST AVAILABLE OR MOST ADAPTABLE TO THE INTENDED USE. AS A COROLLARY, WE MUST ALSO REJECT YOUR CONTENTION THAT THE GOVERNMENT'S CONSENT TO THE USE OF MILD STEEL IN LIEU OF REBAR AMOUNTED TO AN ACKNOWLEDGEMENT THAT THE SPECIFICATIONS WERE DEFECTIVE. ACCEPTANCE OF SUBSTITUTE MATERIALS, PROCESSES OR COMPONENTS IN CONNECTION WITH THE PERFORMANCE OF GOVERNMENT CONTRACTS IS A COMMON AND FREQUENT OCCURRENCE, AND WE BELIEVE IT IS FULLY ESTABLISHED BY PRACTICE AND UNIVERSAL UNDERSTANDING THAT SUCH SUBSTITUTION IS NOT, IN ITSELF, ANY INDICATION THAT THE SPECIFICATIONS WERE DEFECTIVE BECAUSE THEY FAILED TO REQUIRE THE SUBSTITUTED ITEM IN THE FIRST PLACE. THE SUBSTITUTED MATERIAL MAY BE BETTER, OR MERELY EQUAL; THE PRIMARY CONSIDERATION FROM THE GOVERNMENT'S STANDPOINT IS ONLY THAT IT MUST NOT BE INFERIOR OR LESS DESIRABLE FOR THE GOVERNMENT'S PURPOSE. SUBSTITUTION IS GENERALLY PROPOSED BY THE CONTRACTOR TO SERVE SOME PURPOSE OF HIS OWN, AND ACCEPTANCE IS NORMALLY CONDITIONED UPON NO ADDITIONAL COST TO THE GOVERNMENT, OR A PRICE REDUCTION IF THE SUBSTITUTION INVOLVES ANY SAVING TO THE CONTRACTOR.

WE BELIEVE YOU ARE IN ERROR ALSO IN YOUR POSITION (WHICH WE INFER FROM YOUR OBJECTIONS TO PORTIONS OF THE SECOND PARAGRAPH, PAGE 7, OF THE FIRST ASBCA DECISION) THAT BECAUSE THE SPECIFICATIONS DID NOT REFER TO ANY PREHEATING OR OTHER APPROPRIATE PROCEDURES OR PRECAUTIONS, YOU WERE JUSTIFIED IN ASSUMING THAT NONE WERE REQUIRED. IN THE ABSENCE OF SPECIFICATION PROVISIONS SPELLING OUT IN COMPLETE AND PRECISE DETAIL THE METHOD TO BE USED BY THE CONTRACTOR IN OBTAINING A REQUIRED END PRODUCT OR RESULT, THE METHOD IS WITHIN THE DISCRETION OF THE CONTRACTOR. THE BOARD OBSERVED IN ITS DECISION THAT YOU ADMITTED BEING FAMILIAR WITH PREHEATING AND OTHER METHODS NECESSARY TO AVOID THE NORMAL (AND THEREFORE FORESEEABLE) BRITTLENESS CAUSED BY THE HEAT GENERATED IN WELDING THE REBAR. CLEARLY, THERE IS NO RECOURSE AGAINST THE GOVERNMENT WHERE, AS HERE, YOU ELECTED TO PROCEED BY USING A METHOD OF PRODUCTION WHICH PROVED INADEQUATE. CLARK GRAVE VAULT COMPANY V. UNITED STATES, CT.CL. NO. 308- 61, JANUARY 20, 1967.

YOU MAINTAIN THAT MUCH OF THE TESTIMONY SUPPORTING THE DEPARTMENT OF THE ARMY'S CASE SHOULD BE REJECTED BECAUSE IT IS BASED ON THE OPINION OF A WITNESS WHO WAS NOT QUALIFIED TO GIVE EXPERT TESTIMONY. THE QUALIFICATIONS OF THE WITNESS TO WHOM YOU REFER WERE STATED IN SIX PAGES OF TESTIMONY, AND INCLUDED AN ABUNDANCE OF EXPERIENCE IN WELDING AND IN GIVING ADVICE TO BUSINESSMEN ON WELDING QUESTIONS. "WHERE THE ORDINARY BUSINESS MAN GOES FOR HELP UPON THESE QUESTIONS, THERE MAY ALSO THE JURY GO, AND HE WHO IS QUALIFIED TO GIVE AN OPINION IN THE ONE CASE MAY ALSO GIVE AN OPINION IN THE OTHER.' MCKELVEY ON EVIDENCE, 4TH ED., PAGE 246. ACCORDINGLY, WE ARE UNABLE TO SEE ANY BASIS FOR OBJECTING TO THE BOARD" CONSIDERING THE TESTIMONY GIVEN BY THIS WITNESS, AND ASSIGNING TO SUCH TESTIMONY WHATEVER WEIGHT THE BOARD BELIEVED IT DESERVED.

A SEPARATE AND DISTINCT GROUND ASSERTED BY YOU FOR REVISING OR DISREGARDING THE BOARD'S DECISION IS YOUR OBJECTION TO THE GOVERNMENT'S NOT PRODUCING MR. R. P. HOBSON AS AN EXPERT WITNESS.

IN A LETTER OF JULY 31, 1964, TO THE RECORDER OF THE BOARD, YOU ALLUDED TO HAVING PREVIOUSLY EXPRESSED: "* * * OUR DESIRE TO HAVE AVAILABLE AT THE HEARING AS GOVERNMENT WITNESSES AMONG OTHERS: MR. SIDNEY PRINCE (SIC) * * *.MR. PRICE'S INSPECTOR TESTIFIED INCOMPLETELY AT THE ENGINEERS HEARING. MR. PRICE'S PERSONAL APPEARANCE BEFORE A HEARING BOARD MEMBER AT THE HEARING IS NECESSARY TO PROPERLY PROSECUTE OUR CASE.

"WE ALSO WISH TO HAVE AVAILABLE AS GOVERNMENT WITNESSES GOVERNMENT MEMBERS OF THE AMERICAN WELDING SOCIETY COMMITTEE ON WELDING CONCRETE REINFORCING STEEL, * * *

"A. AMIRIKAN * * *

"L. W. ANGELL * * *"R. P. HOBSON * * *

"THOUGH POSSIBLY HOSTILE, THE IMPORTANCE OF THE GOVERNMENT'S OWN EXPERT PERSONNEL TO APPEAR AT THE HEARING CANNOT BE DIMINISHED. * * * THESE MEN SHOULD BE AVAILABLE FOR (MY) * * * CROSS EXAMINATION * * *.'

IN A LETTER OF AUGUST 7, 1964, TO THE GOVERNMENT, YOU REPEATED YOUR INSISTENCE UPON THE PERSONAL APPEARANCE OF MR. PRICE. YOU ALSO MENTIONED THAT YOU HAD "PREVIOUSLY RELATED MR. HOBSON'S NAME, AS A REQUESTED GOVERNMENT WITNESS," AS WELL AS THE NAMES OF MESSRS. AMIRIKAN AND ANGELL. IN A LETTER OF AUGUST 11, 1964, THE RECORDER OF THE BOARD ADVISED YOU THAT U.S. ARMY COUNSEL HAS ARRANGED TO HAVE MESSRS. PRICE AND HOBSON APPEAR AT THE HEARING. COUNSEL IS UNABLE THUS FAR TO LOCATE MESSRS. ANGELL AND AMIRIKAN. HE IS CONTINUING HIS EFFORTS.'

AT THE HEARING, WHICH COMMENCED ON AUGUST 17, 1964, MR. PRICE BUT NOT MR. HOBSON WAS PRODUCED AS A WITNESS ON YOUR BEHALF. YOUR PREVIOUS ATTEMPTS TO SECURE YOUR OWN EXPERT WELDING AND METALLURGICAL WITNESSES IN THE VICINITY OF WASHINGTON, D.C., WHERE THE HEARING WAS HELD, WERE TO NO AVAIL, ALTHOUGH THE BOARD REGARDED THESE EFFORTS AS SINCERE. THE BOARD OFFERED TO CONTINUE THE CASE UNTIL YOU COULD OBTAIN AN EXPERT WITNESS, WHICH YOU APPARENTLY FELT YOU COULD DO IF YOU SOUGHT SUCH A WITNESS FROM THE AREA OF YOUR HOME STATE IN THE MID WEST. THIS OFFER YOU DECLINED BECAUSE YOU THOUGHT IT WOULD INVOLVE TOO GREAT AN ADDITIONAL EXPENSE. THE BOARD PROCEEDED WITH THE HEARING, AND A FEW MONTHS AFTER ITS CONCLUSION, RENDERED A DECISION DENYING YOUR CLAIM.

DURING THE SUBSEQUENT HEARING ON YOUR MOTION FOR RECONSIDERATION OF THE BOARD'S ADVERSE DECISION, THE BOARD OFFERED YOU AN OPPORTUNITY TO MAKE AN OFFER OF PROOF BY STATING WHAT MR. HOBSON WOULD TESTIFY TO IF HE WERE PRESENT. ALTHOUGH YOU STATED THAT YOU KNEW EXACTLY WHAT MR. HOBSON WOULD HAVE TESTIFIED TO, AND THAT YOU HAD HAD THE ORIGINAL PRESENTATION OF YOUR CASE BUILT AROUND HIM, YOU DID NOT IN FACT OFFER ANY SPECIFIC STATEMENT OF WHAT HE WOULD SAY, AND IT APPEARS THAT YOU HAD NEVER TALKED WITH, WRITTEN TO, OR IN ANY OTHER WAY COMMUNICATED WITH MR. HOBSON, WHO, WE ARE ADVISED, IS NOW DECEASED.

WE REGRET THAT YOU EXPERIENCED THE DIFFICULTY YOU DID IN YOUR UNSUCCESSFUL ATTEMPTS TO SECURE YOUR OWN EXPERT WITNESS. ALSO, IF U.S. ARMY COUNSEL HAD ARRANGED TO HAVE MR. HOBSON APPEAR AT THE HEARING, WHICH IS THE ADVICE YOU RECEIVED FROM THE RECORDER OF ABSCA, WE REGRET THAT COUNSEL DID NOT SEE FIT TO PRODUCE THAT WITNESS, ESPECIALLY SINCE HE APPARENTLY RESIDED IN THE WASHINGTON AREA. ON THE OTHER HAND, WE ARE NOT AWARE OF ANY OBLIGATION ON THE PART OF THE GOVERNMENT TO PRODUCE A GOVERNMENT OFFICER OR EMPLOYEE TO TESTIFY AS AN EXPERT WITNESS FOR A CONTRACTOR, WHERE THE PROPOSED WITNESS HAD NOT PARTICIPATED IN ANY WAY IN THE MATTERS IN CONTROVERSY AND HAD NO PERSONAL KNOWLEDGE OF THE CIRCUMSTANCES INVOLVED. BY THE SAME TOKEN, THERE IS NOTHING IN THE ASBCA RULES, PUBLISHED IN CHAPTER 1 OF THE APPENDIX TO 32 CODE OF FEDERAL REGULATIONS, AND WE FIND NO BASIS IN FAIRNESS OR SOUND JUDGMENT, WHICH SUGGESTS THAT THE BOARD SHOULD DRAW ANY CONCLUSIONS FROM THE FACT THAT GOVERNMENT COUNSEL DID NOT ATTEMPT TO PRODUCE SUCH AN "EXPERT" FOR YOUR BENEFIT, OR, UNDER THE CIRCUMSTANCES, THAT IT SHOULD HAVE DONE ANY MORE IN HELPING YOU OBTAIN SUCH A WITNESS OTHER THAN OFFERING TO CONTINUE THE CASE.

THE RECORD AS A WHOLE CONTAINS SUCH RELEVANT EVIDENCE AS A REASONABLE MIND MIGHT ACCEPT AS ADEQUATE TO SUPPORT THE CONCLUSION OF THE BOARD, SEE EDISON COMPANY V. NATIONAL LABOR RELATIONS BOARD, 305 U.S. 197, 229, WHICH OFFERS THE ABOVE LANGUAGE AS A DEFINITION OF "SUBSTANTIAL DENCE," AND B- 153841, SUPRA, INDICATING OUR VIEW THAT THIS DEFINITION IS THE ONE CONGRESS INTENDED TO ADOPT IN ENACTING THE WUNDERLICH ACT. SINCE WE BELIEVE THE ASBCA DECISION IS SUPPORTED BY SUBSTANTIAL EVIDENCE, AND FIND NO INDICATION THAT IT IS ARBITRARY, CAPRICIOUS, OR GROSSLY ERRONEOUS, WE MUST ACCEPT THE BOARD'S FACTUAL DETERMINATIONS AS BINDING UPON US. UPON THOSE FACTS WE FIND NO LEGAL BASIS FOR ALLOWANCE OF ANY PART OF YOUR CLAIM, WHICH IS ACCORDINGLY DENIED.