
    366 F. 2d 975
    GUS KRAUS, DOING BUSINESS AS CONDOR MACHINE WORKS v. THE UNITED STATES
    [No. 29-61.
    Decided October 14, 1966]
    
      
      Walter F. Pettit, attorney of record, for plaintiff. Felix Laurie ella; Allan, Miller, Groezinger, Keesling <& Martin, of counsel.
    
      Frances L. Nurm, with whom was Assistant Attorney Genr eral John W. Douglas, for defendant.
    Before CoweN, Ghief Judge, Whitaker, Senior Judge, Duruee, Davis and CouliNS, Judges.
    
   Co WEN, Ghief Judge,

delivered the opinion of the court:

This is a suit on a bid contract between the parties, dated June 30, 1958, designated N 228(217) 24792, pursuant to which plaintiff, conducting a tool and die business at San Francisco, California, manufactured and delivered to defendant’s San Francisco Naval Shipyard 2,300' quick-coupling securing straps made in three different overall lengths itemized as CUES Assemblies Nos. 1 through 3. The total contract price was $11,425, averaging about $5 per unit. The contract documents were drawn by the defendant.

After all deliveries had been made, defendant determined that the coupling straps were too short, and demanded that plaintiff rework them to provide overall lengths in conformity with defendant’s interpretation of contract requirements. Plaintiff complied, but reserved its right to claim additional costs as an equitable adjustment for a change in the contract specification ordered by defendant’s contracting officer.

After delivery of the reworked straps, defendant completed payment of the original contract price, as modified in respects not now relevant. The parties are agreed that if plaintiff is entitled to recover, judgment may be entered for plaintiff in the sum of $9,500 for his additional costs incurred for reworking the straps.

Pursuant to the standard Disputes article of the contract, hereinafter quoted in the findings of fact, the dispute concerning interpretation of the contract was decided adversely to plaintiff by defendant’s contracting officer, and, on plaintiff’s appeal, by the Armed Services Board of Contract Appeals (ASBCA No. 5535). In the trial of this case, the parties, pursuant to formal stipulation, agreed that the record of proceedings before the Board—

* * * may be received in evidence in this action before the Court of Claims, and that the same may be considered by the said Court for the purpose of determining whether the decision of the Armed Services Board of Contract Appeals, rendered September 9, 1960, is final and conclusive upon the respective parties or so arbitrary, capricious, unsupported by substantial evidence, or otherwise erroneous in law as to be deprived of such finality or conclusiveness. It is further stipulated by the respective parties that, aside from the foregoing record, which is jointly offered in evidence, no further proof will be offered or presented by or on behalf of either party hereto, each party agreeing and stipulating to the dosing of its own proof upon the receipt of the foregoing record in evidence herein.

Following this language was the above-mentioned conditional agreement concerning amount of recovery, after which the parties agreed:

The foregoing stipulations have been entered into and subscribed by the respective parties upon their mutual agreement for the submission of the case without the necessity for proof de novo before the Court on the issues of liability and without the necessity for proof by the plaintiff on the issue of damages, which issue was not reached or determined by the Armed Services Board of Contract Appeals in the decision herein referenced.

The parties offered, and the trial commissioner received in evidence joint exhibits consisting of the full record of proceedings before the Board, comprised of the transcript of the hearing and testimony of witnesses before the Board, exhibits received in evidence by the Board, and other pertiment papers and documents forming the framework of the administrative record, including among others, the written decision of the Board after submission of the briefs of the parties on the merits, and also its decision on plaintiff’s motion for reconsideration. Proof was closed without any de novo evidence offered or presented in this case in this court. The facts set forth in this opinion and thereafter in the formal findings of fact are necessarily derived only from the Board’s record of proceedings.

The contract provides that CEES Assembly No. 1 was to consist of “lower strap, sub-assembly 1-A’, and upper strap, sub-assembly 1-B\ Dimensions to be in accordance with table on plan * * CEES Assemblies Nos. 2 and 3 were described in the same language, except their respective sub-assemblies were designated as 2-A and 2-B, and 3-A and 3-B. All of the coupling straps were to be made in accordance with Bidder Data Plan No. CYA 702-1062956, Envision A, hereinafter called the contract drawing.

The quick-coupling securing strap consists in part of two flat stainless steel bands. At the coupling end of each band, there are attached one or more components of a latching mechanism by which the two bands may be locked together to form one coupling strap. When, preformed to specified curvative requirements, this strap in locked position forms a figure roughly semicircular in shape, as shown by the “Stowage Assembly” side view of the strap on the contract drawing. By means of anchor holes perforated near the uncoupled ends, the strap is affixed to a rack on board ship to secure a military missile until the latching mechanism is disengaged for removal of the missile. Prior to the award of the contract in this case, plaintiff was advised of the intended use of the contract items by Navy personnel.

The table on the contract drawing, mentioned in the above-quoted contract description of CEES Assembly No. 1, set forth dimensions in a column headed “LG. IN INCHES,” showing 9.10 for “ASSEM NO 1-A” and 6.30 for “ASSEM NO 1-B.” The like data for CEES Assemblies Nos. 2 and 3 were set forth in the table in the same maimer, except that the figures varied, due to intended differences in the lengths of the three contract items.

In addition to the previously mentioned “Stowage Assembly” view, there was also set forth on the contract drawing an “Expanded View,” showing the strap extending in a flattened position with its bands locked together by the latching mechanism. Neither of the two views is drawn to scale, as they both apply to three straps of varying lengths. Both views contain general terminology designating the “lower strap” sub-assembly as “Assembly A” and the “upper strap” sub-assembly as “Assembly B,” not described as Assemblies Nos. 1-A, 1-B, etc., because of general applicability of both views to the three CEES Assemblies.

Six reference lines are drawn out from various parts of this flattened view of the locked coupling strap, representing in succession the (1) lower end of the lower strap, (2) the center line of the anchor hole of the lower strap, (3) the center line of the locking pin attached to the lower strap, (4) the center line of the toggle pin attached to the upper strap, (5) the center line of the anchor hole of the upper strap, and (6) the upper end of the upper strap.

In succession between the above-described reference lines, there are five successive dimensional lines extending along the length of the “Expanded View.” Each dimensional line starts and ends with an arrowhead, and the point of each arrowhead touches a reference line, so that each dimensional line extends between two successive reference lines.

In conjunction with each dimensional line, there is set forth either a longitudinal dimension, expressed in inches, or certain explanatory language, as hereinafter set forth in parentheses in this paragraph. The first dimensional line (%") extended from the uncoupled end of the lower strap to the center line of the anchor hole of the lower strap. The second dimensional line (L FOE ASSEM “A”) extended from the center line of the anchor hole to the center line of the locking pin on the lower strap. The third dimensional line (1" ADJUST TO ± %" MIN.) extends from the center line of the locking pin on the lower strap to the center line of the toggle pin on the upper strap. The fourth dimensional line (L FOR ASSEM “B”) extends from the center line of the toggle pin to the center line of the anchor hole on the upper strap. The fifth dimensional line (%") extends from the center line of the anchor hole on the upper strap to the uncoupled end of the upper strap.

Plaintiff’s interpretation of the contract drawing was that the figures shown in the table of dimensions were the overall dimensions of the upper and lower straps. Thus, in the manufacture of the straps, plaintiff used, for ORES Assembly No. 1, 9.10 inches as the overall length of the lower strap and 6.30 inches as the overall length of the upper strap. Plaintiff made the same interpretation of the table of dimensions in determining the overall lengths of the lower and upper straps of ORES Assemblies Nos. 2 and 3. Plaintiff’s interpretation allowed no specific lengths for the intermediate dimensions «L FOR ASSEM A’ ” and “L FOR ASSEM ‘B’.” He assumed that such dimensions would “establish” themselves by adoption of the figures in the table as the overall lengths of the upper and lower straps. This overlooked the fact that the overall lengths for the upper and lower straps were nowhere set forth in either view of the drawing. On June 24, 1958, plaintiff submitted a detailed drawing which portrayed the latch mechanism plaintiff proposed to manufacture, and with one or two minor revisions defendant approved this drawing. Although plaintiff’s drawing depicted the entire strap, it did not disclose to defendant that plaintiff had interpreted the dimensional data on the contract drawing in a manner different from defendant’s understanding of it.

Defendant intended, and its interpretation of the contract drawing is, that the “LG. IN INCHES” column in the table of dimensions furnishes for each of the contract items the two intermediate dimensions not otherwise expressly specified in the dimensional data, shown on the “Expanded View” portion of the contract drawing, concerning the overall length of the coupling strap in a locked position. These two intermediate dimensions are those represented by the second dimensional line (L FOE ASSEM “A”) and the fourth dimensional line (L FOE ASSEM “B”), each shown on the “Expanded View” to be a part of the length of the lower or upper band. Thus, for 'CEES Assembly No. 1, defendant applies the 9.10 inches designated in the above table for “ASSEM NO 1-A” to the second dimensional line (L FOE ASSEM “A”) and the 6.30 inches for “ASSEM NO 1-B” to the fourth dimensional line (L FOE ASSEM “B”). Accordingly, the overall length of CEES Assembly No. 1 is the sum of the five partial dimensions, % inch, 9.10 inches, 1 inch adjustable ± % inch, 6.30 inches, and % inch, or a total of 17.4 inches adjustable ± % inches. Defendant applies the same interpretation for CEES Assemblies Nos. 2 and 3.

The ASBCA found that there was confusion in the contract contributing to plaintiff’s error, but concluded that a reasonably competent fabricator should have recognized from the “Expanded View” that the critical dimensions of each of the contract items were those designated for its overall length in a locked position; that with two of such dimensions not being stated in inches but being marked by way of identification, and the figures in inches for such dimensions not being elsewhere given on the drawing, a reasonably competent fabricator would have realized that the table of dimensions supplied this information but, if there was still doubt as to where this information was to be found, proper inquiry of the Government should have been made, which plaintiff never made. The Board further held that plaintiff’s interpretation was not reasonable since, unless the critical dimensions were given in inches somewhere on the drawing, plaintiff would not have had sufficient information on the drawing as to where to position either the locking pin on the lower strap assembly or the toggle pin on the upper strap assembly.

The conclusion of the Board regarding the reasonableness of plaintiff’s interpretation of the contract drawing involves a construction of the terms of the contract and is a decision on a question of law that is not final against plaintiff nor binding on the court. Hol-Gar Mfg. Corp. v. United States, 169 Ct. Cl. 384, 351 F. 2d 972 (1965); Tufano Contracting Corp. v. United States, 174 Ct. Cl. 398, 356 F. 2d 535 (1966). For the reasons hereinafter set out, we reject the decision of the Board.

It is clear that the contract drawing was confusing and that there was an ambiguity as to whether the overall lengths of the straps to be manufactured by plaintiff were shown in the table of dimensions or in the “Expanded View” of the strap that appeared on the same drawing. Although this is a close case on the facts, we have concluded that the contract, specifications, and drawing, when considered together, were fairly susceptible to the construction placed upon them by plaintiff. In so deciding, we have followed the guidelines laid down by the court in its recent decisions in WPC Enterprises, Inc. v. United States, 163 Ct. Cl. 1, 323 F. 2d 874 (1963) and Blount Bros. Constr. Co. v. United States, 171 Ct. Cl. 478, 346 F. 2d 962 (1965). In WPG Enterprises the court stated:

* * * Although the potential contractor may have some duty to inquire about a major patent discrepancy, or obvious omission, or a drastic conflict in provisions * * *, he is not normally required (absent a clear warning in the contract) to seek clarification of any and all ambiguities, doubts, or possible differences in interpretation. The Government, as the author, has to shoulder the major task of seeing that within the zone of reasonableness the words of the agreement communicate the proper notions — as well as the main risk of a failure to carry that responsibility.

Again in Blount Bros. Constr. Co., the court, in outlining the responsibility of contractors in situations like that presented here, said:

* * * They are obligated to bring to the Government’s attention major discrepancies or errors which they detect in the specifications or drawings, or else fail to do so at their peril. But they are not expected to exercise clairvoyance in spotting hidden ambiguities in the bid documents, and they are protected if they innocently construe in their own favor an ambiguity equally susceptible to another construction, for as in Peter Kiewit Sons' Co. v. United States, 109 Ct. Cl. 390, 418 (1947), the basic precept is that ambiguities in contracts drawn by the Government are construed against the drafter.

The full extent of the inadequacies of the contract drawing can be ascertained by reading the transcript of testimony before the Board. It is a record which reveals that the Government’s inspection officials were able, only with difficulty, to discover how plaintiff made his mistake and to explain why he should have avoided it. In the clarifying light of hindsight, we can do the same. However, the reasonableness of plaintiff’s interpretation is to be tested by the provisions of the contract, the specifications, the drawing, and other information available to plaintiff at the time the contract was performed. When the principle announced in the cases cited above is applied to the facts of this case, we feel that the ambiguity should be resolved against the Government which prepared the contract documents.

Of primary importance is the fact that the contract, in describing the articles to be furnished by plaintiff, stated: “dimensions to be in accordance with the table on plan.” There was no qualifying statement that the table of dimensions was meant to show anything other than the overall length of the straps to be manufactured by plaintiff, or that the specified lengths were to be regarded only as a table of intermediate dimensions by reference to the “Expanded View” of the strap shown on the contract drawing. There is no dispute that plaintiff manufactured the straps in accordance with the table of dimensions and that the straps were inspected and approved by defendant’s representatives and thereafter accepted by the Government.

At the hearing before the Board, defendant’s Inspector of Materials at the San Francisco Naval Shipyard testified that it was the usual practice to set forth overall dimensions in a table of dimensions shown on a drawing. He also testified that where, as here, the “Expanded View” of the strap shown on the drawing contains a dimension line that is intended to refer to a table of dimensions on the same drawing, it is the customary practice to insert an arrow on the dimension line and to indicate the reference by the use of a term such as “see above table.” Plaintiff has excepted to the commissioner’s report for failure to make a finding on this undisputed fact and, since it is a material fact which the Board should have found, we have granted plaintiff’s exception and added the finding. Since there was nothing on the “Expanded View” on the drawing to indicate that the dimension there shown was to be obtained from the table of dimensions and since defendant failed to follow the customary practice in this regard, the ambiguity in the drawing was not a major patent discrepancy or obvious omission that raised the red flag of notice and obligated plaintiff to seek clarification from the contracting officer.

As shown in finding 15, defendant had an experienced and competent field inspector who was qualified to read contract drawings. After plaintiff had received the materials from his supplier, the inspector approved the lengths of the straps as plaintiff proposed to make them. He did this by measuring them with a micrometer and then comparing the measured lengths with the lengths shown in the table of dimensions on the contract drawing. He expressly agreed with plaintiff’s interpretation that the table of dimensions specified the overall lengths of the straps. If we indulge the presumption that he was performing his duty as a qualified Government inspector, we should not assume that he was careless. Certainly, one of his important duties was to make certain that the lengths of the straps conformed to the contract requirements. If plaintiff’s error was so glaringly obvious or patent that he should have discovered it or made inquiry of the contracting officer, we find it difficult to understand why such a well-qualified representative of the defendant made the same mistake. Even if the inspector had no authority to supply a binding interpretation of the contract, his actions constitute highly persuasive evidence of the reasonableness of plaintiff’s interpretation.

The record discloses no evidence that plaintiff realized that there was an ambiguity between the table of dimensions and the “Expanded View” on the contract drawing. It is true that he submitted straps of the length he thought the contract required to the defendant’s inspector for the latter’s approval, but there is no showing that this was done to clear up any confusion in plaintiff’s mind. Moreover, there is no evidence to show that be stood to gain anything of consequence from his interpretation of the contract drawing.

There were others than plaintiff and the field inspector who did not find defendant’s interpretation of the contract drawing to be so clear and obvious. Defendant’s supervisor of inspections at the San Francisco Naval Shipyard was handed the contract drawing during the cross-examination of his testimony before the Board. When asked to state the required overall length of the straps, he referred to the table of dimensions on the drawing and read the lengths there stated. However, with the guidance of Government counsel on redirect examination, he agreed with defendant’s interpretation of the contract drawing as explained in the “Expanded View.” The ASBGA itself recognized that plaintiff’s confusion was shared not only by the Government’s field inspector but “also to some degree by Government supervisory inspection personnel who had some initial difficulty in determining just where Appellant had made his error and in themselves computing what the total overall critical dimension (in a locked position) would be in inches. . . .” To be sure, these additional facts are not determinative of the issue. When considered in conjunction with the other pertinent facts, however, they lend additional support to plaintiff’s position.

In urging that the decision of the ASBCA should be upheld, the defendant relies upon the decisions of this court in Consolidated Eng’r Co. v. United States, 98 Ct. Cl. 256 (1943); Ring Const. Corp. v. United States, 142 Ct. Cl. 731, 162 F. Supp. 190 (1958), and Jefferson Constr. Co. v. United States, 151 Ct. Cl. 75 (1960). In our opinion, however, the facts in the case at bar are so decisively dissimilar that the three decisions do not support defendant’s position.

In Consolidated Eng'r Co. v. United States, the specifications contained a direct inconsistency that was so patent as to evoke an inquiry by any prospective bidder. The contractor was fully aware of the ambiguity and, instead of asking for a clarification, protected itself by an agreement with the subcontractor that the latter would d'o whatever work the defendant intended by the specifications. When the contractor filed a claim for the extra work, the court held that, since he was aware of the ambiguity, he could not accept the contract and then claim that the ambiguity should be resolved in its favor.

In Ring Constr. Corp. v. United States, there was a question as to whether the specifications required plaintiff to carry furring covering certain steel columns to the floor slab above or to stop the furring 4 inches below the suspended ceiling level. It was a well-established custom of the trade and a matter of common knowledge in the construction industry that the steel columns should be covered throughout their entire length to prevent buckling under direct exposure to flames in case of fire. “With some hesitation,” the court concluded that the contractor was obligated to call such an obvious omission to the attention of the contracting officer and to make certain that the omission was deliberate if the contractor intended to take advantage of it.

In Jefferson Constr. Co. v. United States, the court found that the language of the specification was so clear and unambiguous that the interpretation urged by the contractor was not reasonably possible. It also concluded that the unusual profit, which would have resulted from the adoption of the contractor’s view, was inconsistent with his claim that there was no intention to perform the work in question. In addition and as an independent ground for denying recovery, the court found that, before Ms bid was submitted, the contractor was fully cognizant that there was a question as to the meaning of the specifications but made no effort to obtain a clarification. In the face of a contractual requirement that any explanation desired as to the interpretation of the specifications should be submitted in writing in time to permit a reply before bids were submitted, the court held that the contractor’s failure to seek an authoritative determination precluded his recovery.

For the reasons stated above, plaintiff is entitled to recover the sum of $9,500, the stipulated amount of the extra costs he incurred in reworking the straps. Judgment is entered to that effect.

Dukfee, Judge,

dissenting:

We respectfully dissent from the majority opinion in favor of plaintiff in this case. As stated in the majority opinion, the ASBCA found that there was confusion in the contract contributing to plaintiff’s error, but concluded that a reasonably competent fabricator should have recognized from the “Expanded View” that the critical dimensions of each of the contract items were those designated for its overall length in a locked position; that with two of such dimensions not being stated in inches but being marked by way of identification, and the figures in inches for such dimensions not being elsewhere given on the drawing, a reasonably competent fabricator would have realized that the table of dimensions supplied this information but, if there was still doubt as to where this information was to be found, proper inquiry of the Government should have been made, which plaintiff never made. The Board further held that plaintiff’s interpretation was not reasonable since, unless the critical dimensions were given in inches somewhere on the drawing, plaintiff would not have had sufficient information on the drawing as to where to position either the locking pin on the lower strap assembly or the toggle pin on the upper strap assembly.

We agree with the majority that this conclusion by the Board regarding the reasonableness of plaintiff’s interpretation of the contract is a decision on a question of law, and is not final against plaintiff nor binding on the court. We disagree that the reasons set out by the majority opinion constitute sufficient basis for rejecting the Board’s decision.

The trial commissioner concluded, and we think correctly, that the plain existence in this case of overall dimensional lines alongside the “Expanded View” on the contract drawing, raises a patent or obvious question as to whether the figures for the intermediate distances “L FOB. ASSEM ‘A’ ” and “L FOB ASSEM ‘B’ ” were those supplied in the “LG. IN INCHES” column of the table of dimensions, or since no figures were otherwise supplied for such intermediate dimensions, whether there had been an omission of such figures from the contract drawing and specifications.

The majority opinion conceded that the contract drawing was confusing, and that there was an ambiguity as to whether the overall lengths of the straps to be manufactured by plaintiff were shown in the table of dimensions or in the “Expanded View” of the strap that appeared on the same drawing and that “this is a close case on the facts.” We do not agree, however, with the conclusion reached by the majority that the contract specifications and drawing, when considered together, were fairly susceptible of the construction placed upon them by plaintiff.

Obviously, plaintiff made a mistake hi the original manufacture of the straps, due largely to his complete failure to even consider the dimensional line “L FOR ASSEMBLY A” supplied by the “Expanded View” in the drawings. If he had done this, the discrepancy in overall dimensions between the “Expanded View” and the table of dimensions would have been apparent. This failure by plaintiff to even notice the ambiguity is perhaps best explained by Ms lack of knowledge or expertise in examining the drawing and specifications. Upon notice of rejection of the straps by the Government, he for the first time went to see the Contracting Officer when, as he testified, “Of course, I got a bawling out right then, I didn’t follow the plan right. I don’t know how to read ,a blueprint.” (Transcript p. 48).

The majority opinion stresses the fact that the field inspector agreed with plaintiff’s interpretation that the table of dimensions specified the overall length of the straps. Apparently, there was some question in plaintiff’s mind, since he testified that he discussed the overall length with the inspector before .and after he ordered the straps. His order for the straps was made solely by reference to the table of separate dimensions and “Mr. Condon established that is the length of the strap.” (Transcript p. 184). The plain existence on the contract drawing of the overall dimension lines alongside the “Expanded View” raised a patent or obvious question as to whether the figures for the intermediate distances “L FOR ASSEM ‘A’ ” and “L FOR ASSEM ‘B’ ” were those supplied in the “LG. IN INCHES” column of the table of dimensions, or whether there had been an omission of the figures for intermediate dimensions from tiie contract drawing and specification. See Consolidated Engineering Co. v. United States, 98 Ct. Cl. 256, 280 (1943); Ring Construction Corp. v. United States, 142 Ct. Cl. 731, 734, 162 F. Supp. 190, 192 (1958); Jefferson Construction Co. v. United. States, 151 Ct. Cl. 75, 89-91 (1960).

All that plaintiff had to say about the “Expanded View” with its dimensional line “L for Assembly A”, eltc., was that he did not definitely know what it meant, and no one ever told him what it meant. (Transcript p. 70). There is no evidence that Inspector Condon ever turned his attention to this aspect of the “Expanded View” in the contract drawing. This perhaps explains why plaintiff never understood the drawing. The discrepancy between the overall dimensions required by the “Expanded View” drawing and the table of dimensions was there; it w,as patent; and it was completely overlooked until the job was done, and the error discovered.

Since plaintiff did not understand the drawing, perhaps because he didn’t know how to read a blueprint, he had a duty to inquire what it meant. This duty was in no way met by a discussion with the inspector in which an essential part of the contract drawing was completely overlooked.

Plaintiff, therefore, was required to contact the Contracting Officer, the administrator of the contract, and seek a clarification. But such a procedure was not followed. The only representative of defendant to whom plaintiff conveyed his understanding (or lack of understanding) of the dimensional requirements during the process of manufacture was the field inspector. No evidence was presented that the field inspector in this instance had any authority to clarify patent ambiguities, or that he even attempted such clarification. On the contrary, this authority rested solely with the Contracting Officer under the express terms of the contract. Plaintiff’s failure to contact the Contracting Officer for a clarification should relieve defendant of any liability for the correction of plaintiff’s error, and plaintiff should be precluded from recovery in this case.

Davis, Judge, joins in the foregoing dissenting opinion.

FINDINGS OF FACT

The court, having considered the evidence, the report of Trial Commissioner Roald A. Hogenson, and the briefs and argument of counsel, makes findings of fact as follows :

1. Plaintiff, Gus Kraus, was at all times pertinent to this case, an individual conducting a tool and die business under the name of Condor Machine Works, an individual proprietorship with place of business at San Francisco, California.

2. On June 30, 1958, defendant, acting through the General Supply Depot, Naval Supply Center, Department of the Navy, Oakland, California, entered into a contract with plaintiff pursuant to a bid submitted by plaintiff on or about June 17, 1958. This contract, designated No. N 228 (217) 24792, required plaintiff to manufacture and deliver to the San Francisco Naval Shipyard 2,300 quick-coupling securing straps, which were to be made in three different overall lengths itemized as CRES Assemblies Nos. 1 through

3.There was furnished with and made part of the contract a one-sheet drawing entitled “Bidder Data Plan No. CVA 702-1062956, Revision A,” in conformity with which each of the three lengths of securing straps was required to be manufactured.

Item 1 covered 800 units identified as CRES Assembly No. 1 ($5 per unit, or a total of $4,000 ); Item 2 covered 1,000 units identified as CRES Assembly No. 2 ($4.85 per unit or a total of $4,850); and Item 3 covered 500 units identified as CRES Assembly No. 3 ($5.15 per unit or a total of $2,575), making a total contract price of $11,425. The contract documents were drawn by the defendant.

3. Deliveries of the straps to defendant were made in partial lots, commencing August 21, 1958, and were completed on October 6, 1958. Each lot was inspected and certified as conforming to the contract by a representative of the Inspector of Naval Materials, San Francisco, through issuance of DD Forms 250 (Material Inspection and Receiving Reports). On the basis of these inspection reports, the straps were accepted and paid for by defendant. Defendant’s check for the. last shipment was returned to defendant by plaintiff at defendant’s request.

4. On or about October 13, 1958, a few days after defendant’s receipt of the last shipment of straps, defendant notified plaintiff of certain alleged deficiencies in the straps and ordered plaintiff to correct the defects and resubmit the straps to defendant. The only defect which is in issue in this case is the alleged failure of the straps to comply with the contract requirements in regard to their overall length, namely, the straps were too short for their intended use. Plaintiff changed the straps to conform to defendant’s interpretation of the drawing and specification, and in so doing, plaintiff’s attorney informed the contracting officer that such rework by plaintiff was not to be construed as an admission of liability on the part of plaintiff, and requested a meeting to discuss the interpretation of the drawing and specification.

According to defendant’s interpretation of the contract drawing and specification, each of the securing straps was approximately 4% inches too short in its overall length in a locked position, approximately 3 inches of which were attributable to the so-called lower strap and I14 inches to the upper strap. Defendant so advised plaintiff.

5. Pursuant to plaintiff’s request, the parties met on January 6, 1959, by which time all the reworked straps had been accepted by defendant and payment made in accordance with the original contract price, as modified by Amendments 1 through 3. During this meeting a dispute arose concerning the interpretation of Bidder Data Plan No. CYA 702-1062596, Revision A. Plaintiff contended that he had complied with the contract specification and drawing, that the additional work ordered by the defendant’s contracting officer constituted a change within the Changes clause of the contract, 'and that he was entitled to an equitable adjustment. The contracting officer denied that plaintiff’s interpretation of the specification and drawing and his manufacture of the straps in accordance therewith was correct.

On January 29,1959, the contracting officer issued his findings of fact and decision that defendant was not liable for the additional costs incurred by plaintiff for the corrections made to conform the article to specification requirements. Plaintiff, pursuant to the standard Disputes clause of the contract, appealed from the contracting officer’s decision, and the hearing before the Navy Contract Appeals Panel of the Armed Services Board of Contract Appeals was held on November 16 and 17, 1959. The Board on March 25, 1960, ASBCA No. 5535, denied plaintiff’s claim and appeal, and on September 9,1960, reaffirmed this decision in denying plaintiff’s motion for reconsideration.

6. At the opening of the trial session before the trial commissioner of this court on July 19,1962, plaintiff’s attorney of record and defendant’s duly assigned trial attorney entered into the following stipulation, recorded in the transcript of proceedings of this case:

It is hereby stipulated by and between the parties hereto, through their respective counsel, that the record of the administrative proceedings, pursuant to the disputes clause of Contract N 228(217)24792, before the Armed Services Board of Contract Appeals in the matter of Gus Kraus d/b/a Condor Machine Works, Docket No 5585, may be received in evidence in this action before the Court of Claims, and that the same may be considered by the said Court for the purpose of determining whether the decision of the Armed Services Board of Contract Appeals, rendered September 9,1960, is final and conclusive upon the respective parties or so arbitrary, capricious, unsupported by substantial evidence, or otherwise erroneous in law as to be deprived of such finality or conclusiveness. It is further stipulated by the respective parties that, aside from the foregoing record, which is jointly offered in evidence, no further proof will be offered or presented by or on behalf of either party hereto, each party agreeing and stipulating to the closing of its own proof upon the receipt of the foregoing record in evidence herein.
It is further stipulated by and between the parties, through their respective counsel, that the reasonable value of the labor expended, and the excess costs (both direct and overhead) incurred, together with any loss of profits attributable thereto or associated therewith, aggregate the sum of $9,500. The parties mutually stipulate, therefore, that in the event the Court shall determine upon the foregoing record that the plaintiff is entitled to recover judgment, the Court may forthwith enter judgment against the defendant in the amount of $9,500 without referring the case to a trial commissioner for further findings pursuant to the provisions of Eule 38 (c).
The foregoing stipulations have been entered into and subscribed by the respective parties upon their mutual agreement for the submission of the case without the necessity for proof de novo before the Court on the issues of liability and without the necessity for proof by the plaintiff on the issue of damages, which issue was not reached or determined by the Armed Services Board of Contract Appeals in the decision herein referenced. In the event any portion of this stipulation shall be rejected by the Court, it is agreed by the respective parties that the entire stipulation shall then be void and of no effect whatsoever.

The above-stated stipulation was accepted by the trial commissioner in open court.

The parties offered, and the trial commissioner received in evidence, joint exhibits consisting of the full record of proceedings before the Board, comprised of the transcript of the hearing and testimony of witnesses before the Board, exhibits received in evidence by the Board, and other pertinent papers and documents forming the framework of the administrative record, including among others, the written decision of the Board after submission of the briefs of the parties on the merits, and also its decision on plaintiff’s motion for reconsideration.

Both parties expressly waived the presentation of any other evidence, and proof was thereafter closed without any de novo evidence offered or presented in this case.

7. The quick-coupling securing strap consists of two fiat stainless steel bands. There is affixed to one end of each band one or more components of the latching mechanism which permits the two bands to be readily joined and locked together to form one strap. When the two bands are preformed to the curvature requirements of the contract and joined together by the latching mechanisms, they form a figure roughly semicircular in shape, as shown by the “Stowage Assembly” part of the contract drawing. Near the end of each band of the strap, the end opposite to the coupling end, there is provided an anchor hole of a diameter of 13/32 of an inch. By these holes at the opposite ends of the coupling-strap, the strap is affixed to a rack on board ship for the purpose of securing- a military missile until such time as the latching mechanism is disengaged for removal of the missile. Prior to the award of the contract in this case, plaintiff was apprised of the intended use of the contract items by the Navy.

8. The contract drawing consists of one sheet and presents two views of the coupling strap, both in a locked position. The side view (Stowage Assembly) reveals its semicircular appearance above-described, indicating the manner in which the required curvature was to be achieved in conformity with a specified radius, and showing by reference to the sketch of the side view of the latching mechanism, the exact location of the two rubber pads which were to be affixed to the inside curve or underside of the strap. The second view, referred to as the “Expanded View,” depicts the strap with the bands locked together, extending in a flattened position showing its upper side, or what would be the outer side of the strap if mounted in a semicircular position. Neither of the two views of the straps purported to be drawn to scale, and could not have been, as they were applicable to three straps of varying lengths, CEES Assemblies Nos. 1 through 3.

,9. The contract contained the following description of the articles to be furnished by plaintiff:

Quick Coupling Securing Straps in accordance with Bidder Data Plan No. OVA 702-1062956 Eevision A.
[Item No.] 1. Securing Straps, quick coupling, CEES Assembly No. 1.
Assembly No. 1 to consist of lower strap, sub-assembly “1-A” and upper strap, sub-assembly “1-B.” Dimensions to be in accordance with table plan. * * * on

Descriptions of CEES Assemblies Nos. 2 and 3 followed, with the same terminology used as quoted above, except for substitution of “2” or “3” respectively in the places where “1” occurs above.

Subsequent findings treat in the main only with CEES Assembly No. 1, these factual determinations being equally applicable to CEES Assemblies Nos. 2 and 3.

10. (a) The two views of the strap in the drawing, which was drafted before the above-quoted contract terminology, divided the overall strap into a “lower strap” and an “upper strap,” also referred to respectively as “Assembly A” and “Assembly B.”

(b) The lower (and longer) strap was to consist in part, according to the drawing, of a band of stainless steel one inch in width, which, on the coupling end, was to be rolled backward and spotwelded in such a manner as to form a loop to hold the locking pin portion of the latch assembly, the pin being a metal cylinder somewhat longer than the width of the loop through which it is inserted. This cross pin was notched near each of its projecting ends in order that such notches could engage two claw-like hooks on the complementary portion of the latching mechanism on the upper strap. A band of stainless steel was to be spotwelded to the underside of the lower strap to form a “tongue,” or extension of such lower strap. Its purpose was to protect the missile from the coupling and uncoupling action of the latching mechanism above the tongue. Spotwelded to the tongue was a “fork,” a piece of metal attached crosswise to the underside of the tongue, bent upright on each side of the tongue. The fork was so notched as to engage a sliding, spring-actuated “safety pin” incorporated in the complementary portion of the latching mechanism on the upper strap. When the safety pin and the fork were thus engaged, the straps were prevented from accidentally becoming uncoupled.

(c) The upper strap was to be looped and spotwelded (in a similar fashion as the lower strap) at the coupling end, the loop holding a cylindrical toggle pin to which the remaining components of the latching mechanism were attached. The contract drawing did not call for a tongue component on the upper strap, the tongue of the lower strap in part sliding under the upper strap.

11. (a) The invitation for bids required that “Bidders shall submit plans in duplicate of proposed quick coupling securing straps indicating the design to be used in the manufacture thereof * * *.” General Note 2 on the contract drawing required that the positive locking device be similar or equal to the one shown on the drawing, namely, Marman Part No. 50071-800. This latch mechanism is designed so that through the tightening or loosening of a toggle adjusting screw secured to the center of the toggle pin on the upper strap, the straps in a locked position could be varied in overall length within the limits specified on the drawing (±% of an inch) and thus accommodate minor variations in the size of missiles which might be placed in the rack. One June 24, 1958, plaintiff submitted a detailed drawing which portrayed the latch mechanism plaintiff proposed to manufacture, and with one or two minor revisions defendant approved this drawing. Although plaintiff’s drawing depicted the entire strap, it did not disclose to defendant that plaintiff had interpreted the dimensional data on the contract drawing in a manner different from defendant’s understanding of it.

(b) Plaintiff, in submitting his latch design prior to the award of the contract, suggested to defendant that the fabrication of the coupling straps would be facilitated if he were permitted to form the lower strap and its tongue from one continuous piece of metal and, instead of rolling that band of metal, spotweld a separate loop of metal (to the upper side of the lower strap) to hold the locking pin. A similar fabrication change was requested for the upper strap, which was to have no tongue. Defendant gave its approval to these suggested changes in the method of fabrication.

12. (a) Defendant’s interpretation of the contract requirement as to the overall length of each of the contract items is based upon the contract table of dimensions and the dimensional lines set forth on the “Expanded View” of the contract drawing. Six reference lines are drawn out from various parts of this flattened view of the locked coupling strap, representing in succession the (1) lower end of the lower strap, (2) the center line of the anchor hole of the lower strap, (3) the center line of the locking pin attached to the lower strap, (4) the center line of the toggle pin attached to the upper strap, (5) the center line of the anchor hole of the upper strap, and (&) the upper end of the upper strap.

In succession between the above-described reference lines, there are five successive dimensional lines extending along the length of the “Expanded View.” Each dimensional line starts and ends with an arrowhead, and the point of each arrowhead touches a reference line, so that each dimensional line extends between two successive reference lines.

(b) In conjunction with each dimensional line, there is set forth either a longitudinal dimension, expressed in inches, or certain explanatory language, as hereinafter set forth in parentheses in this paragraph. The first dimensional line (V2") extended from the uncoupled end of the lower strap to the center line of the anchor hole of the lower strap. The second dimensional line (L FOB. ASSEM “A”) extended from the center line of the anchor hole to the center line of the locking pin on the lower strap. The third dimensional line (1" ADJUST TO ±%" MIN.) extends from the center line of the locking pin on the lower strap to the center line of the toggle pin on the upper strap. The fourth dimensional line (L FOB ASSEM “B”) extends from the center line of the toggle pin to the center line of the anchor hole on the upper strap. The fifth dimensional line extends from the center line of the anchor hole on the upper strap to the uncoupled end of the upper strap.

(c) The table of dimensions on the contract drawing is as follows:

ASSEM NO LG. IN INCHES RAD. IN INCHES LR=LG OF PAD IN IN. NO. REQD

1-A 9.10 4.125 0.75 800

1-B 6.30 4.125 1.5 800

2-A 16.00 6.125 11.25 1000

2-B 6.125 3.0 1000

3-B 12.25 6.125 BOO

(d)Plaintiff interpreted -the “LG. IN INCHES” column in the above table as presenting the overall length of the lower (ASSEM NO 1-A) and upper (ASSEM NO 1-B) straps. Thus, in the manufacture of the straps, plaintiff used for CBES Assembly No. 1, 9.10 inches as the overall length of the lower strap, and 6.30 inches as the overall length of the upper strap. Plaintiff made the same interpretation of the table of dimensions in determining the overall lengths of the lower and upper straps of ORES Assemblies Nos. 2 and 3.

(e) Defendant intended, and its interpretation of the contract drawing is, that the “LG. IN INCHES” column in the above table furnishes for each of the contract items the two intermediate dimensions not otherwise expressly specified in the dimensional data, shown on the “Expanded View” portion of the contract drawing, concerning the overall length of the coupling strap in a locked position. These two intermediate dimensions are those represented by the second dimensional line (L FOR ASSEM “A”) and the fourth dimensional line (L FOR ASSEM “B”), each shown on the “Expanded View” to be a part of the length of the lower or upper band. Thus, for ORES Assembly No. 1, defendant applies the 9.10 inches designated in the above table for “ASSEM NO 1-A” to the second dimensional line (L FOR ASSEM “A”) and the 6.30 inches for “ASSEM NO 1-B” to the fourth dimensional line (L FOR ASSEM “B”). Accordingly, the overall length of ORES Assembly No. 1 is the sum of the five partial dimensions, 14 inch, 9.10 biches, 1 inch adjustable ±% inch, 6.30 inches, and % inch, or a total of 17.4 inches adjustable ±% inches. Defendant applies the same interpretation for CRES Assemblies Nos. 2 and 3.

(f) Plaintiff’s interpretation allowed no specific lengths for the intermediate dimensions “L FOR ASSEM ‘A’ ” and “L FOR ASSEM B’ He assumed that such dimensions would “establish” themselves by adoption of the figures in the table as the overall lengths of the upper and lower straps. This overlooked the fact that the overall lengths for the upper and lower straps were nowhere set forth in either view of the drawing. Because the design of the latching mechanism was expressly left open for contractor design, the overall lengths of the upper and lower strap assemblies would necessarily vary according to the contractor’s design of the coupling assembly and required overlap of the bands.

13. Pertinent provisions of the contract are as follows:

2. CHANGES
The Contracting Officer may at any time, by a written order, and without notice to the sureties, make changes, within the general scope of this contract, in any one or more of the following: (i) Drawings, designs, or specifications, where the supplies to be furnished are to be specially manufactured for the Government in accordance therewith: (ii) method of shipment or packing; and (iii) place of delivery. If any such change causes an increase or decrease in the cost of, or the time required for, the performance of any part of the work under this contract, whether changed or not changed by any such order, an equitable adjustment shall be made in the contract price or delivery schedule, or both, and the contract shall be modified in writing accordingly. Any claim by the Contractor for adjustment under this clause must be asserted within 30 days from the date of receipt by the Contractor of the notification of change: Provided, however, That the Contracting Officer, if he decides that the facts justify such action, may receive and act upon any such claim asserted at any time prior to final payment under this contract. Where the cost of property made obsolete or excess as a result of a change is included in the Contractor’s claim for adjustment, the Contracting Officer shall have the right to prescribe the manner of disposition of such property. Failure to agree to any adjustment shall be a dispute concerning a question of fact within the meaning of the clause of this contract entitled “Disputes.” However, nothing in this clause shall excuse the Contractor from proceeding with the contract as changed. # :Ji # $ ‡
5. INSPECTION
(a) All supplies (which term throughout this clause includes without limitation raw materials, components, intermediate assemblies, and end products) shall be subject to inspection and test by the Government, to the extent practicable at all times and places including the period of manufacture, and in any event prior to acceptance.
(5) In case any supplies or lots of supplies are defective in material or workmanship or otherwise not in conformity with the requirements of this contract, the Government shall have the right either to reject them (with or without instructions as to their disposition) or to require their correction. * * * Unless the Contractor corrects or replaces such supplies within the delivery schedule, the Contracting Officer may. require the delivery of such supplies at a reduction in price which is equitable under the circumstances. Failure to agree to such reduction of price shall be a dispute concerning a question of fact within the meaning of the clause of tills contract entitled “Disputes.”
$ $ !j( $ ‡ (d) The inspection and test by the Govemment of any supplies or lote thereof does not relieve the Contractor from any responsibility regarding defects or other failures to meet the contract requirements which may be discovered prior to acceptance. Except as otherwise provided in this contract, acceptance shall be conclusive except as regards latent defects, fraud, or such gross mistakes as amount to fraud. $ $ $ $ $
12. DISPUTES
(a) Except as otherwise provided in this contract, any dispute concerning a question of fact arising under this contract which is not disposed of by agreement shall be decided by the Contracting Officer, who shall reduce his decision to writing and mail or otherwise furnish a copy thereof to the Contractor. The decision of the Contracting Officer shall be final and conclusive unless, within 30 days from the date of receipt of such copy, the Contractor mails or otherwise furnishes to the Contracting Officer a written appeal addressed to the Secretary. The decision of the Secretary or his duly authorized representative for the determination of such appeals shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent, or capricious, or arbitrary, or so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence. In connection with any appeal proceeding under this clause, the Contractor shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute hereunder, the Contractor shall proceed diligently with the performance of the contract and in accordance with the Contracting Officer’s decision.
(5) This “Disputes” clause does not preclude consideration of law questions in connection with decisions provided for in paragraph (a) above: Provided, That nothing in this contract shall be construed as making final the decision of any administrative official, representative, or board on a question of law.
23. DEFECT OR NONCONFORMANCE IN DELIVERED ARTICLES
(a) Nowithstanding inspection and acceptance by the Government of articles furnished under this contract or any provision of this contract concerning the conclusiveness thereof, the Contractor warrants that at the time of delivery (i) all articles delivered under this contract will be free from defects in material or workmanship and will conform with the specifications and all other requirements of this contract; and (ii) the preservation, packaging, packing, and marking, and the preparation for and method of shipment of such articles will conform with the requirements of this contract.
(&) Within one year after the delivery of any article under this contract, written notice may be given by the Government to the Contractor of any breach of the warranties in paragraph _(<z) of this clause as to such article. Within a reasonable time 'after such notice, the Contracting Officer may either (i) require the prompt correction or replacement of any article or part thereof (including preservation, packaging, packing, and marking) that did not at the time of its delivery conform with the requirements of this contract within the meaning of paragraph (a) of this clause, or thereafter does not so conform in consequence of any such breach; or (ii) retain such article, whereupon the contract price thereof shall be reduced by an amount equitable under the circumstances and the Contractor shall promptly make appropriate repayment. Transportation charges and responsibility for the articles while in transit incident to such replacement or correction shall be borne by the Contractor, except that the Contractor’s liability for such transportation charges shall not exceed an amount equal to the cost of transportation of such article or part by the usual commercial method of shipment between the designated delivery point under this contract and the Contractor’s plant, and return.
* * * * $ (e) The remedies afforded the Government by paragraph (i) of this clause shall be exclusive as to any breach of the warranties in paragraph (a) of this clause, except any such breach involving latent defects, fraud, or such gross mistakes as amount to fraud.

14. After award of the contract, plaintiff placed his orders for materials, including stainless steel bands precut to dimensions specified by plaintiff. Because of plaintiff’s confusing testimony before the Board on the matter, it cannot be found tliat defendant’s field inspector, H. C. Condon, had knowledge of plaintiff’s decision with respect to the lengths of the steel bands prior to plaintiff’s placement of his order for materials. Condon did not testify before the Board because the parties agreed that if he were to testify, he would agree with plaintiff’s version as to what Condon said or did in connection with the contract performance. It is found that Condon was the only representative of the defendant to whom plaintiff conveyed his understanding of the dimensional requirements of the contract items prior to their delivery and rejection.

15. On or about July 23, 1958, which was approximately 2 days after plaintiff received the materials from his supplier, defendant’s field inspector for the contract, H. C. Condon, approved the length of the upper and lower straps, first by measuring them with a micrometer and then checking them with the table of dimensions on the contract drawing. He expressly agreed with plaintiff in his interpretation of the contract table, and accepted the dimensions in the “LG. IN INCHES” column in such table as being the specified overall lengths of the lower and upper straps. He was an experienced and competent inspector, qualified to read contract drawings.

16. Between August 19 and October 3, 1958, successive lots of the contract items were inspected prior to delivery to defendant. All lots except one were inspected and approved by Condon, with the overall lengths of the upper and lower straps checked by him against the table of dimensions. The remaining lot was inspected and approved by A. V. Gillespie, the branch supervisor inspector of the San Francisco Naval Shipyard and immediate supervisor of Condon. Gillespie did not independently check the lengths of the straps, but checked them against jigs constructed by plaintiff and used by Condon in his inspections. These jigs were not made to determine or verify the length of straps, but to check the position of the latching mechanism and opening and closing action of the lock.

17. At the hearing before the Board, Captain C. H. Becker, USN, Inspector of Materials, San Francisco Naval Shipyard, stated that it was usual practice to set forth overall dimensions when there is a table of dimensions on a drawing, but that by looking at the “Expanded View” and the “L FOB. ASSEM ‘A’ ” dimension, he had no question that the 9.10 inches in the table was not an overall dimension, but applied to the intermediate dimension on the drawing. Where, as here, the “Expanded View” of the strap shown on the drawing contains a dimension line that is intended to refer to a table of dimensions on the same drawing, it is the customary practice to insert an arrow on the dimension line and to indicate the reference by the use of a term such as “see above table.”

18. John Hammett, a naval architect with the San Francisco Naval Shipyard, who prepared the contract drawing, stated in the Board hearing that if one did not have the drawing, the table of dimensions would be interpreted as it was by plaintiff, but with the drawing the table had to be interpreted as giving only the intermediate dimensions.

19. George A. Cunningham, supervisor of inspection for the San Francisco Naval Shipyard, when handed the contract drawing on cross-examination, and asked what the overall length of strap 1-A was, stated 9.10 inches, and he pointed to the table on the drawing. On redirect examination, when his attention was called to the “Expanded View” and to the dimensional line designated “L FOB ASSEM A’ ”, he promptly stated that the dimension “L FOB AS-SEM ‘A’ ” was 9.10 inches. It is obvious from the transcript of his testimony that Cunningham had not examined the contract drawing for some time prior to his testimony, and that in his direct testimony he was aware only that the contract drawing was in the courtroom.

20. A. V. Gillespie, previously mentioned in finding 16, on or about October 15, 1958, having learned of the rejection by the defendant of the contract items as being too short, but not how much too short, obtained from plaintiff a copy of the contract drawing and a sample of a rejected contract item, and took them back to his office to review. At first he con-eluded that plaintiff’s error was in not allowing for the half-inch dimension at the end of the strap, but within an overall study and review period of 15 to 20 minutes, during which reference was had only to the contract drawing and the sample item, he discovered that plaintiff had not allowed the required number of inches for the “L FOE. ASSEM ‘A’ ” and “L FOE ASSEM B’ ” dimensions.

21. The conclusions of the Board were that there was confusion in the contract drawing contributing to plaintiff’s error, but that a reasonably competent fabricator should have recognized from the “Expanded View” on the drawing that the critical dimensions of the contract items were those designated for its overall length in a locked position; that with two of such dimensions not being stated in inches but being marked by way of identification, and the figures in inches for such dimensions not being elsewhere given on the drawing, a reasonably competent fabricator would have realized that the table of dimensions supplied this information, but if there was still doubt as to where this information was to be found, proper inquiry of the Government should have been made, which plaintiff never made. The Board further held that plaintiff’s interpretation was not reasonable since, unless the critical dimensions were given in inches somewhere on the drawing, plaintiff would not have had sufficient information on the drawing as to where to position either the locking pin on the lower strap assembly or the toggle pin on the upper strap assembly.

22. The contract, specifications, and drawing were fairly susceptible to the construction placed upon them by plaintiff. He did not know that there was an ambiguity in the contract drawing or that defendant intended the drawing to convey a meaning differing from that which he attributed to it.

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 plaintiff is entitled to recover of and from the United States, and judgment is therefore entered for plaintiff in the amount of nine thousand five hundred dollars ($9,500). 
      
       Although we have disagreed with the result he reached, the court acknowledges the assistance it has derived from the opinion and findings of fact of Commissioner Roald A. Hogenson. We have borrowed portions of his opinion and adopted most of his findings of fact.
     
      
       Section 5 of the contract is entitled “Inspection.” Subsection (d) thereof provides:
      “(d) The inspection and test by the Government of any supplies or lots thereof does not relieve the Contractor from any responsibility regarding defects or other failures to meet the contract requirements -which may be discovered prior to acceptance. Except as otherwise provided in this contract, acceptance shall be conclusive except as regards latent defects, fraud, or such gross mistakes as amount to fraud.”
     