
    CARL G. ROLIN v. THE UNITED STATES
    [No. 18-56.
    Decided April 2, 1958]
    
      
      Mr. Solomon Dimond for the plaintiff. Mr. Burton R. Thorman was on the brief.
    
      Mr. Thomas J. Lydon, with wbom was Mr. Assistant Attorney General George Cochran Doub, for tbe defendant.
   Opinion

fer curiam:

This suit was brought by plaintiff, a machinist and toolmaker, because be suffered an alleged financial loss in constructing an impedance measuring line and center conductor for the National Bureau of Standards under a contract with tbe defendant.

Tbe case was referred under Eules 45 and 46 to Mastin G. White, a trial commissioner of this court, with directions to make findings of fact and recommendations for conclusions of law. The commissioner did so in a report filed October 29, 1957, followed by the filing of exceptions by plaintiff and the filing of briefs by both, parties. Since the court agrees with the recommendations and findings of the commissioner, as hereinafter set forth, it hereby adopts the same as the basis of its judgment in this case. Plaintiff is not entitled to recover and his petition will be dismissed.

It is so ordered.

OPINION OF THE COMMISSIONER

In September 1948, while the plaintiff was visiting the Wright-Patterson Air Force Base in Dayton, Ohio, he learned from an Air Force employee that the National Bureau of Standards (which will usually be referred to in this opinion as “the Bureau”) was interested in obtaining an impedance measuring line. It happened that the plaintiff had previously been employed for some time as plant superintendent by the Inter-Ocean Engineering Company at Chicago, Illinois, and that, while so employed, he had supervised the construction of two horizontal impedance measuring lines which his employer had manufactured for the Air Force under contract. Upon learning that the Bureau wished to procure an impedance measuring line, the plaintiff addressed a letter to the Bureau on September 25,1948, expressing the hope “that I may be favored with your order”.

The plaintiff’s informant had told him that the Bureau desired to attain in its impedance measuring line a higher degree of accuracy than had been achieved in the instruments procured by the Air Force. With respect to the factor of accuracy, the plaintiff stated as follows in his letter of September 25,1948:

As I supervised and actually worked on this project here in Chicago from its very inception, I do know the accuracy required in as far as mechanical dimensions are concerned. * * *
On a job of this nature, it is very difficult to arrive at any closer dimension mechanically, but I do feel that the quality of material entering into the construction of this Line will and must give by far a closer reading near the Ideal than the last Line sent to Dayton.
Structural improvements can be made to give the Line more rigidity than at present; also, other slight changes can be incorporated to give a better Line throughout.

After receiving the letter dated September 25, 1948 from the plaintiff, the Bureau arranged for the plaintiff to travel to Washington, D. C., for the purpose of conferring with and advising personnel of the Bureau concerning the mechanical specifications for the impedance measuring line that the Bureau desired to obtain. At this conference, which took place in November 1948, the Bureau personnel explained to the plaintiff the Bureau’s basic requirements with respect to the line. Among these requirements were the matter of attaining a higher degree of accuracy than had previously been achieved in connection with the Air Force lines, and the substitution of a vertical arrangement for the horizontal arrangement that had been used in the construction of the Air Force lines.

Insofar as the base of the impedance measuring line was concerned, the only requirement expressed by the Bureau personnel during the conference with the plaintiff was that the base should be made of a non-magnetic metal. The conferees discussed the satisfactory results that had been obtained through the use of Ni-Resist metal as the base for each of the impedance measuring lines previously manufactured under the plaintiff’s supervision for the Air Force; and it was jointly concluded by the Bureau personnel and the plaintiff that the specifications for the Bureau’s impedance measuring line should call for the base to be made of Ni-Resist.

Ni-Resist is a proprietary metal alloy developed by the International Nickel Company. It was first put on the market in September 1928. There are five main types of Ni-Resist, two of them being magnetic and three non-magnetic in character. Ni-Resist is widely used in industry because of its relative stability in relation to other metals. However, as in the case of other metals, annealing or stress-relieving is necessary in order to achieve the required dimensional stability in a piece of Ni-Resist that is to be used, in a situation where precision is important. Annealing is a process whereby the metal to be relieved of stresses is heated in a furnace. The proper time for annealing is after the piece of metal has been machined and ground to the prescribed dimensions.

Under tbe date of March 22, 1949, the Bureau issued to eight persons, including the plaintiff, an invitation requesting bids on the manufacture of an impedance measuring line (item I), together with a center conductor (item II). The specifications for item I that were attached to the invitation provided (among other things) that:

Bridge base shall be a casting of non-magnetic Ni-Resist metal.

The plaintiff submitted a bid covering the two items mentioned in the invitation for bids. He offered to perform the work on both items for a total consideration of $12,086. The plaintiff’s bid was accepted on May 2,1949; and on May 6, 1949, the plaintiff and defendant (acting through a contracting officer of the Bureau) signed a contract, which was numbered CST-10597.

The contract specifications relating to the impedance measuring line (item I) provided (among other things) that:

Bridge base shall be a casting of non-magnetic Ni-Resist metal.

These specifications also provided in part as follows under the heading “General Mechanical Rigidity”:

_ Provision shall be made for removing any bow in the line that may occur when the line is suspended in a vertical position. If necessary, the contractor shall adjust the line at the NBS to a vertical position, within the tolerances given * * *, and shall remove all bowing from the line m order to meet the above specifications.

The plaintiff started working on the impedance measuring line and center conductor for the Bureau in the latter part of June or the early part of July 1949. The work was undertaken in rented shop facilities at Chicago.

In connection with the manufacture of the base for the impedance measuring line, the plaintiff first decided upon the type of Ni-Resist that would be best suited for such purpose, and then he obtained the Ni-Resist in powder form from the Steel Sales Corporation, which acted as the sales agent for the International Nickel Company in the Chicago area. The plaintiff next had a casting made of the Ni-Resist by the Elizabeth Foundry. The result appeared to be an excellent piece of metal. After the casting was obtained, the plaintiff followed the standard practice and “roughed it out”. In order to do this, the plaintiff used a planer and removed the hard scale that had been formed on the piece of metal at the time when the casting was made at the foundry. Having completed this initial operation, the plaintiff had the casting annealed by the Lindberg Steel Treating Company, which was the biggest, and generally regarded as the best, among the companies in the Chicago area that were engaged in such work. After the annealing operation was performed, the plaintiff took the casting back to his shop and machined it down to within a few thousandths of an inch of the finished size, as indicated on the blueprint.

The Ni-Besist casting was then sent back to the Lindberg Steel Treating Company for another annealing operation. Although it was generally considered in 1949-1950 that a single annealing of Ni-Besist was sufficient to achieve the necessary dimensional stability, the plaintiff decided upon a second annealing because of advice that he received from a sales engineer of the Steel Sales Corporation to the effect that a second heat treatment would pi-ovide “insurance” against subsequent movement of the metal.

After the! casting had been annealed the second time, the plaintiff took it to the American Grinding & Machine Company for a final grinding in order to bring it down to the prescribed dimensions. The plaintiff warned the American Grinding & Machine Company that great precision was required. Accordingly, the casting was given special attention and care by the American Grinding & Machine Company. The plaintiff himself was on hand while the grinding was done, so that he might supervise the work and check the results.

When the various steps previously mentioned in connection with the Ni-Besist base had been taken, the plaintiff mounted the impedance measuring line on the base. It was then discovered that the base contained a bow or warpage of from 8- to 12-thousandths of an inch along its entire length.

Upon discovering the bow in the Ni-Besist base, the plaintiff called on the Steel Sales Corporation for advice. A sales engineer from that company went to the plaintiff’s shop and advised the plaintiff to have the Ni-Resist base annealed for the third time. That was done, the Lindberg Steel Treating Company doing the annealing.

The third annealing of the Ni-Resist base having been accomplished, the plaintiff again machined the base, and then took it to the American Grinding & Machine Company for another grinding operation. When that had been done, the impedance measuring line was once more mounted on the Ni-Resist base. It was discovered that the base again had a bow or warpage.

The plaintiff called upon the Lindberg Steel Treating Company for advice, and was advised to bring the Ni-Resist base back for a fourth annealing. The plaintiff did so. Subsequent to the fourth annealing, the plaintiff had the Ni-Resist base reground again by the American Grinding & Machine Company. Thereafter, the plaintiff again mounted the impedance measuring line on the Ni-Resist base, and it appeared that there was no bowing or warpage in the base.

In the latter part of May 1950, the plaintiff shipped the impedance measuring line and center conductor to the Bureau, which accepted them. The plaintiff then submitted to the Bureau a voucher dated May 26, 1950 for the contract price of $12,086. The voucher was paid on June 12, 1950.

The plaintiff would have been able to complete and deliver the impedance measuring line and center conductor to the Bureau by the middle of January 1950 but for the bowing or warpage in the Ni-Resist base. Hence, the delay until the latter part of May 1950 in completing performance under the contract was caused by the bowing or warpage in the base and the extensive curative operations that were required in order to eliminate such condition.

In a letter dated June 5, 1950 to the Bureau, the plaintiff referred to “the unexpected trouble encountered by us due to warpage of the Ni-Resist base”, and asserted that “the stipulated contract price * * * is not sufficient to defray labor, engineering material and shop rental and has placed me in a precarious financial position”. The plaintiff further stated that “I appeal to your sense of justice in asking for an additional payment that will allow me to break even”, and indicated that “In a few days you will receive a statement showing all my expenses in this matter”.

The statement of expenses mentioned in the preceding paragraph was submitted by the plaintiff to the Bureau under the date of June 20, 1950. This statement showed the “Actual expenditures in the designing and building of One Meter Impedance Measuring Line as per Contract No. CST-10597” to have been $16,370.35. The plaintiff added to this figure the amount of $1,637.03 representing an. expected profit of 10 percent, and thus arrived at a total figure of $18,007.38. From this total, the plaintiff deducted the contract price of $12,086, which he had already received, leaving a remainder of $5,921.38.

Under the date of August 18,1950, the plaintiff submitted to the Bureau a voucher in the amount of $4,284.35, representing a claim for additional compensation under contract CST-10597. In submitting this claim, the plaintiff eliminated from the statement mentioned in the preceding paragraph the item of $1,637.03 relating to expected profit.

The Bureau did not act on the plaintiff’s claim for additional compensation, but referred it to the General Accounting Office. The plaintiff’s claim was disallowed by the General Accounting Office.

The present litigation followed.

The evidence does not show why the bowing or warpage occurred in the Ni-Resist base that is involved in this case. All the operations in connection with the preparation and processing of the base were performed with great care and skill. Although the base should not have been machined or ground after having been annealed, the evidence does not warrant an inference that the failure to follow the proper practice in this respect caused the bowing or warpage of the base.

Instances of inexplicable instability among pieces of metal are sometimes encountered. It appears, in the light of all the evidence, that the bowing or warpage of the Ni-Resist base involved in the present litigation was such an instance.

In its role as a party to a business contract, the United States is subject to the same liability that — and is not subject to any greater liability than — any other person would be under similar circumstances. Deming v. United States, 1 C. Cls. 190, 191 (1865), appeal dismissed 9 Wall. 145. Therefore the fact that a person who has contracted with the Government to furnish materials or services encounters unforeseen difficulties, and thereby incurs unexpected expenses, in the performance of the contract does not impose upon the Government any legal obligation to relieve its contractor of the unexpected financial burden. Columbus Ry. & Power Co. v. Columbus, 249 U. S. 399, 412 (1919); Industrial Engineering Co., Inc. v. United States, 92 C. Cls. 54, 60 (1940). As the Supreme Court stated in United States v. Spearin, 248 U. S. 132, 136 (1918):

* * * Where one agrees to do, for a fixed sum, a thing possible to be performed, he will not * * * become entitled to additional compensation, because unforeseen difficulties are encountered.

Therefore, the Government’s financial obligation to anyone who has furnished materials or services to the Government under a contract is to be found “within the four walls of the contract” (Steel Products Engineering Co. v. United States, 78 C. Cls. 410, 419 (1933)), unless the Government has caused its contractor to incur unforeseen expenses in performing the contract (MacDougald Construction Company v. United States, 122 C. Cls. 210, 261-262 (1952)).

In the present case, no act or omission upon the part of the Government caused the unforeseen difficulty which the plaintiff encountered, and the unexpected expenses which the plaintiff incurred, when the Ni-Besist base that he had obtained for the impedance measuring line developed a bow or warpage on two separate occasions.

The Government did not prescribe the manner in which the Ni-Besist base should be prepared or treated in order to meet the requirements set out in the contract specifications. Consequently, the responsibility rested on the plaintiff to meet the requirements of the specifications by the use of such methods as he might deem to be appropriate for that purpose. John Thomson Co. v. United States, 57 C. Cls. 200, 209 (1922).

In the final analysis, the plaintiff only did what he had agreed to do under the contract — i. e., he produced an impedance measuring line and center conductor that complied with the specifications. Conversely, the defendant only received what it was entitled to receive under the contract— i. e., an impedance measuring line and center conductor that complied with the specifications. The defendant paid and the plaintiff received the full amount that they had agreed upon as the plaintiff’s compensation for producing and delivering the line and conductor to the defendant. Therefore, both parties have done everything that they promised to do, and only what they promised to do, when they entered into the contract.

The case arises because the plaintiff lost money on the contract due to the fact that he encountered extraordinary difficulty in achieving the necessary dimensional stability in the particular piece of Ni-Resist metal that he used as the base of the impedance measuring line. However, since the defendant was not responsible in any way for the difficulty that the plaintiff encountered in performing the contract, the defendant is not liable for the amount of the plaintiff’s financial loss.

Of course, it can be assumed that if the plaintiff, at the time when he submitted his bid, had foreseen the trouble that he would have with the particular piece of Ni-Resist, he would not have offered to do the work outlined in the invitation for $12,086. However, this court cannot act on the basis of what it believes the plaintiff would have done, or would not have done, if he had been gifted with prophetic foresight. This court can only act upon the basis of what the plaintiff and the defendant actually did in the light of the information available to them at the time when the plaintiff’s bid was submitted and accepted. Russell v. Shell Petroleum Corporation, 66 F. 2d 864, 867 (C. A. 10, 1933).

The plaintiff relies upon the decision of this court in the case of R. M. Hollingshead Corporation v. United States, 124 C. Cls. 681 (1953). In that case, Hollingshead and the Government entered into a contract which called upon the former to supply the Government with 108,000 gallons of 25-percent DDT concentrate in five-gallon metal drums. The contract required that the concentrate should be “a clear, stable liquid which will not become cloudy or otherwise deteriorate upon standing for a period of one year * * After 22,815 gallons of the concentrate had been delivered, it was found that the liquid lost its clear color upon being stored for a period of time. When the contract was made, DDT concentrate was a relatively new product, and neither Hollingshead nor the Government knew that it was impossible to store the concentrate in metal containers without a resulting loss of its clear color. Hollingshead sued for the contract price of the concentrate that had been furnished to the Government under the contract.

This court held in favor of Hollingshead. The court stated (at pp. 683-684) that the parties, because of a mutual mistake concerning a material fact, had entered into a contract which was impossible of performance, and that there was no justification for throwing upon Hollingshead a loss which was a direct result of faulty specifications promulgated by the Government.

The case of R. M. Hollingshead Corporation v. United States, supra, is readily distinguishable from the present case. In the first place, the specifications promulgated by the Government in the present case were not faulty and they did not impose upon the plaintiff a task that was impossible to perform. This is shown by the fact that the plaintiff actually did perform his task under the contract in a manner that was acceptable to the defendant, although, because of the extraordinary instability of the particular piece of Ni-Resist metal involved in the case, the performance required a longer period of time and a greater expenditure of effort and money than he had anticipated at the time when the plaintiff entered into the contract. In the second place, whereas the earlier case was a suit for the price that the Government had agreed to pay its contractor, the Government in the present case has already paid the plaintiff the full amount of the contract price and the present suit is for an additional sum of money over and above that which the parties agreed upon in the contract as the amount of the plaintiff’s compensation.

Although one’s sympathies are naturally aroused by the plaintiff’s unfortunate experience in performing contract No. CST-10597, there does not appear to be any legal relief that can properly be granted to him by this court.

For the reasons outlined above, it is my opinion that the plaintiff is not entitled to recover, and that the petition should be dismissed.

FINDINGS OF FACT

1. (a) The plaintiff is a citizen of the United States and a resident of the State of Illinois.

(b) The plaintiff’s trade is that of a machinist and toolmaker. He is a very fine craftsman, but he has not had any formal education in engineering or metallurgy.

2. (a) As of September 1948, the plaintiff had been employed for some time as plant superintendent by the Inter-Ocean Engineering Company at Chicago, Illinois. While so employed, the plaintiff supervised the construction of two horizontal impedance measuring lines which his employer manufactured for the United States Air Force under contract. Upon being completed, these lines were delivered to and accepted by the Air Force at the Wright-Patterson Air Force Base, Dayton, Ohio.

(b) The base of each of the impedance measuring lines mentioned in paragraph (a) of this finding was made of Ni-Besist metal. The plaintiff had not had any prior experience with Ni-Besist. However, no particular problems were encountered in the use of Ni-Besist as the bases for the Air Force impedance measuring lines. In particular, no trouble developed on account of bowing or warpage in the Ni-Besist bases.

3. (a) Ni-Besist is a proprietary metal alloy developed by the International Nickel Company. It was first put on the market in September 1928.

(b) There are five main types of Ni-Besist. Two of the types are magnetic and three are non-magnetic.

(c) Ni-Besist is widely used in industry because of its relative stability in comparison with other metals. However, as in the case of other metals, annealing or stress-relieving is necessary in order to achieve the required dimensional stability in a piece of Ni-Besist that is to be used in a situation where precision is important. Annealing is a process whereby the metal to be relieved of stresses is heated in a furnace. The proper time for annealing is after the piece of metal has been machined and ground to the prescribed dimensions.

4. The National Bureau of Standards (which will usually be referred to in these findings as “the Bureau”) was interested in acquiring an impedance, measuring line. After learning that two such lines had been procured by the Air Force, the Bureau sent a representative to the Wright-Patterson Air Force Base for the purpose of inspecting these lines. Subsequently, the Bureau arranged for one of the Air Force lines to be sent to Washington, D. C., where it was tested by the Bureau. The Bureau then decided that it would procure a similar line, although it desired a vertical line rather than a horizontal line and it desired a higher degree of accuracy than had been attained in the Air Force lines.

5. In September 1948, the plaintiff, during a visit to the Wright-Patterson Air Force Base, learned from T. V. De-Haven, an Air Force engineer, that the Bureau was interested in obtaining an impedance measuring line, but desired a greater degree of accuracy than had been attained in the instruments procured by the Air Force.

6. Under the date of September 25,1948, the plaintiff wrote the following letter to an official of the Bureau on the subject of “Impedance Measuring Line TS-(XA-50)/AP”:

On a recent trip to The Wright Field in Dayton, Ohio, relative to the above matter, Mr. T. Y. DeHaven informed me that the Bureau of Standards is interested in procuring one or more of these Lines.
As I supervised and actually worked on this project here in Chicago from its very inception, I do know the accuracy required in as far as mechanical dimensions are concerned. I understand that the last Line delivered to The Wright Field in June is within two percent of what they call Ideal, and I was told that the' Bureau of Standards is desirous of obtaining a Line within one-half of one percent as far as electronic reading goes.
On a job of this nature, it is very difficult to arrive at any closer dimension mechanically, but I do feel that the quality of material entering into the construction of this Line will and must give by far a closer reading near the Ideal than the last Line sent to Dayton.
Structural improvements can be made to give the Line more rigidity than at present; also, other slight changes can be incorporated to give a better Line throughout.
I am writing this letter with the view in mind that I may be favored with your order and am now in a position where I can start construction, at once, of any Impedance Measuring Line you might require.

7. After receiving the letter dated September 25,1948 from the plaintiff, the Bureau arranged for the plaintiff to travel to Washington, D. C., for the purpose of conferring with and advising personnel of the Bureau concerning the mechanical specifications for the impedance measuring line that the Bureau desired to obtain. At this conference, which took place in November 1948, the Bureau personnel explained to the plaintiff the Bureau’s basic requirements with respect to the line, which included a higher degree of accuracy than had been previously achieved in connection with the Air Force lines, and a vertical rather than a horizontal arrangement of the line. Insofar as the base of the line was concerned, the Bureau’s only requirement was that the base should be made of a non-magnetic metal. The conferees discussed the satisfactory results obtained through the prior use of Ni-Resist as the base for each of the impedance measuring lines which had been manufactured under the plaintiff’s supervision for the Air Force, and it was jointly concluded by the Bureau personnel and the plaintiff that the specifications for the Bureau’s impedance measuring line should call for the base to be made of Ni-Resist.

8. (a) Under the date of March 22,1949, the Bureau issued to eight persons, including the plaintiff, an invitation requesting bids on the manufacture of “A vertical precision slotted line and probe carriages [sic] for impedance measurements in accordance with attached specifications” (item I), together with a center conductor (item II).

(b) The specifications for item I that were attached to the invitation for bids provided (among other things) that:

Bridge base shall be a casting of non-magnetic Ni-Resist metal.

(c) The invitation for bids stated (among other things) that:

Award will be made on the basis of the lowest aggregate bid.

9. The plaintiff submitted a bid covering the two items mentioned in the invitation for bids. He offered to perform the work on both items for a total consideration of $12,086. The plaintiff’s bid was accepted on May 2, 1949; and on May 6, 1949, the plaintiff and defendant (acting through a contracting officer of the Bureau) signed a contract, which was given the number CST-10597.

10. (a) Contract No. CST-10597 provided for the construction by the plaintiff and delivery to the Bureau of a vertical precision slotted line and probe carriage for impedance measurements (item I), together with a center conductor (item II). The defendant agreed to pay the plaintiff $12,086 on completion of the work, but this price was subject to a 10-day discount of 2 percent or a 20-day discount of 1 percent.

(b) The specifications relating to the first item stated (among other things) as follows under the heading “Materials” :

Bridge base shall be a casting of non-magnetic Ni-Resist metal.

(c) The specifications relating to item I stated as follows with respect to “General Workmanship”:

This equipment, including all parts and accessories, shall be manufactured and finished in a thoroughly workmanlike manner. Particular attention shall be paid to neatness and thoroughness of marking of parts and assemblies, soldering, plating, painting, rivetting, machine screw assemblage, welding and brazing.

(d) The specifications relating to item I provided in part as follows under the heading “General Mechanical Rigidity” :

Provision shall be made for removing any bow in the line that may occur when the line is suspended in a vertical position. If necessary, the contractor shall adjust the line at the NBS to a vertical position, within the tolerances given * * *, and shall remove all bowing from the line m order to meet the above specifications.

(e) The specifications relating to item I provided in part as follows with respect to “Design”:

The detailed mechanical design of this equipment shall be accomplished by the contractor subject to the requirements of this specification, these requirements being detailed only to the extent considered necessary to obtain the desired mechanical and electrical characteristics, performance and permanence of the same. * * *

11. The plaintiff started working on the impedance measuring line and center conductor under contract No. CST-10597 in the latter part of June or the early part of July 1949. The work was undertaken in rented shop facilities at Chicago.

12. In connection with the manufacture of the base for the impedance measuring line under contract CST-10597, the plaintiff first decided upon the type of Ni-Resist that would be best suited for such purpose, and then he obtained the Ni-Resist in powder form from the Steel Sales Corporation. which acted as the sales agent for the International Nickel Company in the Chicago area. The plaintiff next had a casting made of the Ni-Resist by the Elizabeth Foundry. The result appeared to be an excellent piece of metal. After the casting was obtained, the plaintiff followed the standard practice and “roughed it out”. In order to do this, the plaintiff used a planer and removed the hard scale that had been formed on the piece of metal at the time when the casting was made at the foundry. Having completed this initial operation, the plaintiff had the casting annealed by the Lindberg Steel Treating Company. This company was the biggest — and it was generally regarded as the best— among the companies in the Chicago area that were engaged in such work. After the annealing operation was performed, the plaintiff took the casting back to' his shop and machined it down to within a few thousandths of an inch of the finished size, as indicated on the blueprint. The casting was then sent back to the Lindberg Steel Treating Company for another annealing operation. Although it was generally considered in 1949-1950 that a single annealing of Ni-Resist was sufficient to achieve the necessary dimensional stability, the plaintiff decided upon a second annealing because of advice that he received from a sales engineer of the Steel Sales Corporation to the effect that a second heat treatment would provide “insurance” against subsequent movement of the metal. After the casting had been annealed for the second time, the plaintiff took it to the American Grinding & Machine Company for a final grinding in order to bring it down to the prescribed dimensions. The plaintiff warned the American Grinding & Machine Company that great precision was required. Accordingly, the casting was given special attention and care by the American Grinding & Machine Company. The plaintiff himself was on hand while the grinding was done, so that he might supervise the work and check the results.

13. After the various steps referred to in finding 12 had been taken, the plaintiff mounted the impedance measuring line on the Ni-Resist base. It was then discovered that the base contained a bow or warpage of from 8- to 12-thou-sandths of an inch along its entire length.

14. When the plaintiff discovered the bow referred to in finding 13, he called on the Steel Sales Corporation for advice. A sales engineer from that company went to the plaintiff’s shop and advised the plaintiff to have the Ni-Resist base annealed for the third time. That was done, the Lindberg Steel Treating Company doing the annealing.

15. The third annealing of the Ni-Resist base having been accomplished, the plaintiff again machined the base, and then took it to the American Grinding & Machine Company for another grinding operation.

IS. Following the actions referred to in findings 14 and 15, the impedance measuring line was once more mounted on the Ni-Resist base. Thereupon, it was discovered that the base again had a bow or warpage.

17. In a letter dated April 15, 1950, the plaintiff advised the Bureau that he was incurring a loss on the contract.

18. The plaintiff called on the Lindberg Steel Treating Company for advice, and was advised to bring the Ni-Resist base back for a fourth annealing. The plaintiff did so. Subsequent to the fourth annealing, the plaintiff had the Ni-Resist base reground again by the American Grinding & Machine Company.

19. After the actions mentioned in finding 18 had been taken, the plaintiff again mounted the impedance measuring line on the Ni-Resist base. It appeared that there was no bowing or warpage in the base.

20. Inspectors from the Bureau made an inspection of the impedance measuring line on May 15-20, 1950. They reported the following conclusions and recommendations to the Bureau:

1. The inspectors recommend that the line and its accessories be accepted as satisfactory.
2. The appearance of the line is good.
8. Although the line does not comply completely with the specifications of straightness and bore diameter at the ends, the inspectors feel reasonably sure that these specifications can be very closely approached by additional work done on the line in the Bureau shops.
4. The contractor cannot correct the deviations from the specifications himself, because he does not possess the necessary equipment to measure the order of magnitude of the desired improvements in straightness.
5. In all respects the contractor has done as good a job as might be expected and has added many details which improve the application and appearance of the instrument. Because of the instability which occurred in the base during the construction of the line and which caused the line to deviate from the above mentioned specifications, a large amount of rema-chining was required to bring the line to its present state.
6. During the inspection period the contractor was very cooperative.

21. In the latter part of May 1950, the plaintiff shipped the impedance measuring line and center conductor to the Bureau, which accepted them.

22. Upon delivery of the impedance measuring line, the plaintiff submitted to the Bureau a voucher dated May 26, 1950 for the full contract price of $12,086. The voucher was paid, less a 2-percent discount, on June 12,1950.

23. The plaintiff would have been able to complete and deliver the impedance measuring line and center conductor to the Bureau by the middle of January 1950 but for the bowing or warpage in the Ni-Resist base. The delay until the latter part of May 1950 in completing performance under contract No. CST-10597 was caused by the bowing or warpage in the base and the extensive curative operations that were required in order to eliminate such condition.

24. The plaintiff never requested any order, nor was any order ever issued by the Bureau, authorizing any extra work or extra compensation under the contract.

25. In a lettter dated June 5,1950 from the plaintiff to an official of the Bureau, the plaintiff referred to “the unexpected trouble encountered by us due to warpage of the Ni-Resist base”, and asserted that “the stipulated contract price * * * is not sufficient to defray labor, engineering material and shop rental and has placed me in a precarious financial position”. The plaintiff further stated that “I appeal to your sense of justice in asking for an additional payment that will allow me to break even”, and indicated that “In a few days you will receive a statement showing all my expenses in this matter”.

26. The statement of expenses mentioned in finding 25 was submitted by the plaintiff to the Bureau under the date of June 20,1950. This statement showed the “Actual expenditures in the designing and building of One Meter Impedance Measuring Line as per Contract No. CST-10597” to have been $16,370.35. The plaintiff added to this figure the amount of $1,637.03 representing an expected profit of 10 percent, and thus arrived at a total figure of $18,007.38. From this total, the plaintiff deducted the contract price of $12,086, leaving a remainder of $5,921.38.

27. Under the date of August 18, 1950, the plaintiff submitted to the Bureau a voucher in the amount of $4,284.35, representing a claim for additional compensation under contract CST-10597. In submitting this claim, the plaintiff eliminated from the statement mentioned in finding 26 the item of $1,637.03 relating to expected profit.

28. The Bureau did not act on the plaintiff’s claim for additional compensation under contract No. CST-10597, but referred it to the General Accounting Office for direct settlement. The Bureau recommended to the General Accounting Office that the claim be allowed.

29. On May 17, 1951, the plaintiff’s claim was disallowed by the General Accounting Office. At the request of the plaintiff, the claim was further considered by the General Accounting Office; but the initial decision was sustained by subsequent decisions dated February 27, 1958 and August 5,1954.

30. (a) The evidence does not show why the bowing or warpage occurred in the Ni-Besist base that is involved in this case. All the operations in connection with the preparation and processing of the Ni-Besist base were performed with great care and skill. Although the base should not have been machined or ground after having been annealed, the evidence does not warrant a finding that the failure to follow the proper practice in this respect caused the bowing or warpage of the base.

(b) Instances of inexplicable instability among pieces of metal are sometimes encountered. It appears, in the light of all the evidence, that the bowing or warpage of the Ni-Besist base involved in the present litigation was such an instance.

(c) In any event, the evidence does not show that the plaintiff’s difficulty arising from the bowing or warpage of the Ni-Besist base was caused by anything that the defendant did or failed to do in connection with contract No. CST-10597.

31. The plaintiff has exhausted his administrative remedies, and he is the proper person to bring this action.

CONCLUSION OF LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is not entitled to recover, and his petition is therefore dismissed.  