Board of Contract Appeals General Services Administration Washington, D.C. 20405 _________________________________________________ DENIED: December 7, 1999 _________________________________________________ GSBCA 13277-COM, 14538-COM TECHNICAL SYSTEMS ASSOCIATES, INC., Appellant, v. DEPARTMENT OF COMMERCE, Respondent. Joseph A. Camardo, Jr., Christopher M. Wawach, and Kevin M. Cox, Law Firm of Joseph A. Camardo, Jr., Auburn, NY, counsel for Appellant. Jerry A. Walz, Lisa J. Obayashi, and Terry Hart Lee, Office of General Counsel, Department of Commerce, Washington, DC, counsel for Respondent. Before Board Judges BORWICK, WILLIAMS, and DeGRAFF. BORWICK, Board Judge. This case is an object lesson in how imprecise specifications and haphazard contract administration can result in prolonged agony for both the contractor and the Government in administering what may appear to be a relatively straightforward supply contract. Appellant, Technical Systems Associates, Inc. (appellant or TSA), contracted with respondent, the Department of Commerce (respondent, Government or DOC), to supply a fan beam radar antenna for measuring surface ocean currents. The Government granted seven contract modifications and seven extensions of time while TSA struggled to meet the side lobe and other specifications.[foot #] 1 The antenna TSA produced for this contract flunked two acceptance tests. The Government, in utter frustration, terminated the contract for ----------- FOOTNOTE BEGINS --------- [foot #] 1 These specifications are discussed in finding 12 below. ----------- FOOTNOTE ENDS ----------- default, without receiving an antenna that met the side lobe specification as respondent interpreted it. With frustration to match the Government s, in GSBCA 13277-COM, appellant contests the default termination. Appellant acknowledges it did not deliver the antenna, but claims that the default was excusable. Appellant claims that the peculiar wording of the side lobe performance specification made the specification a goal, not a requirement. Appellant argues that because of the specification s loose wording, appellant had the contractual right to deliver an antenna that met any side lobe measurement no matter how far it deviated from the number of decibels (dB) stated in the specification. Appellant invokes the doctrines of substantial compliance, superior knowledge, and commercial impracticability to avoid default. In GSBCA 14538-COM, appellant seeks an equitable adjustment for the alleged cost of the effort in meeting the specifications. The Government presented its case at a hearing on the merits. Appellant chose to submit its case on the record under Board Rule 111. However, appellant, not then represented by counsel, attended the hearing represented by its president and cross-examined the Government s witnesses. We sustain the Government s termination for default. We conclude that the side lobe specification was not a goal but a requirement. In its offer and in contract performance, appellant treated the side lobe specification as a requirement. It repeatedly assured the Government in its offer and during attempts to perform that it could meet the side lobe specification. We conclude that the side lobe specification was patently ambiguous, putting the risk of a pre-offer inquiry on appellant as to its parameters. Appellant did not inquire. The Government reasonably interpreted the side lobe specification to include a tolerance of about 1 dB from the stated number of -20 dB. We conclude that appellant has not borne its burden of proving the essential elements of substantial compliance, superior knowledge, and commercial impracticability so as to excuse the default. The Government argues that the default termination should be sustained because of appellant s false certification in its offer that it had never been terminated for default on another government contract for a three-year period preceding that offer. We deny that ground; respondent waived its right to base the termination on the false certification. We deny appellant s claim for equitable adjustment in GSBCA 14538- COM. Respondent owes appellant nothing for the alleged extra cost of performance because respondent gained no benefit from the defaulted contract. 3 Findings of Fact How radar antennas work 1. An antenna is a device that can direct transmitted radio frequency or electromagnetic energy from a radar into the atmosphere in a desired direction. Respondent's Exhibit 1; Transcript at 28. The antenna system involved in these appeals consists of a feed (which produces the beam of energy), a wave guide structure (which directs the beam towards the antenna's reflecting surface), and the reflecting surface itself (which re-directs the beam towards the desired target). Transcript at 28-29. The antenna's reflecting surface then captures the signal the target reflects back to the antenna. Scientists can determine the physical characteristics of the target from the reflected signal captured by the antenna. Id. at 32. 2. It is a fundamental principal of radar antenna physics that the smaller the physical dimension of an axis on a reflecting surface, the wider the beam's dimension on that axis will be because the smaller dimension captures less energy. Conversely, the larger the physical dimension of an axis on a reflecting surface, the narrower the beam's dimension will be on that axis, because the larger dimension captures more energy. Transcript at 36. Consequently, designers of radar antennas shape reflecting surfaces to produce specific patterns of electromagnetic beams. Respondent's Exhibit 1. In a fan beam antenna, the electromagnetic radiation is shaped like a fan. Transcript at 36. 3. A radiation pattern's main lobe is the location of most of the electromagnetic energy emitted and captured by the antenna. Transcript at 45. Depending on the placement of the feed horn, the main lobe could be at any specific place on a reflector. In a fan beam antenna, with the feed horn not shifted at any angle and directed toward the center of the reflector, the main lobe would be in the center of the reflector. Id. at 46. 4. When an antenna emits or captures electromagnetic waves, it produces side lobes in addition to the main lobe. Side lobes are defined as the local maxima in an antenna beam pattern in directions other than the main lobe, which is generally orders of magnitude stronger. Respondent's Exhibit 1; Transcript at 45. Side lobes are measured in decibels (dB) as a reference to the main lobe, according to 4 the formula 10Logx. Since a side lobe is an order of magnitude less than the referenced main lobe, the dB measurements of side lobes will be minus numbers. Transcript at 48-49. A familiar analogy to understand the concept of a side lobe is to consider the pattern produced by a flashlight beam falling on a distant wall. The bright and relatively clear center of the pattern can be thought of as the main lobe, and the fuzzy and ill-defined edge of the pattern can be thought of as the side lobe. Id. at 301-02. In antennas, side lobes are undesirable because they can indicate false targets. Id. The shape of the reflector will affect the side lobes. Id. at 643. Respondent's contemplated use for the fan beam antenna. 5. Respondent intended to use the fan beam antenna for the Coastal Ocean Probing Experiment (COPE). Transcript at 17- 18. COPE studied the interaction of subsurface ocean waves with surface waves. Transcript at 23 (Apr. 8, 1999).[foot #] 2 COPE took place off the coast of Oregon, near Cannon Beach, and used a floating metal platform (FLIP) with sensors in the water. FLIP contained devices to measure dimensions of small scale ocean waves and devices to measure current, temperature, and salinity of the ocean. Respondent's Exhibit 50; Transcript at 25 (Apr. 8, 1999). Respondent towed FLIP to a position about twenty- five kilometers off-shore and erected FLIP vertically so that ten percent, or thirty meters, of the FLIP would be visible to the eye as well as to the radar antenna. Respondent's Exhibit 49; Transcript at 24 (Apr. 8, 1999). COPE was to measure the ocean backscatter (reflections) captured by the radar antenna, located on-shore about twenty-nine kilometers from FLIP, simultaneously and coincidentally with backscatter from FLIP, and to correlate the two streams of data. Respondent's Exhibit 51; Transcript at 40 (Apr. 8, 1999). ----------- FOOTNOTE BEGINS --------- [foot #] 2 The hearing on the merits of this case was held from October 19 through October 22, 1998. Inexplicably, the court reporter did not record the second day's (October 20) hearing, creating a gap in the record. We filled in the gap by reconvening the hearing on April 8, 1999, to take the missing testimony: appellant's cross-examination of Dr. Jacobson, the contracting officer s technical representative (COTR), and respondent's direct examination of Mr. Kropfli, the COTR s assistant. That transcript has a new set of numbers, and we refer to that transcript by the April 8 date. ----------- FOOTNOTE ENDS ----------- 5 6. Respondent desired to use a fan beam antenna to obtain "good resolution measurements from the backscatter energy" from the ocean surface. Transcript at 18. One additional advantage of a fan beam antenna was that one sweep of the radar antenna would be sufficient to map out the surface of the ocean. Transcript at 26 (Apr. 8, 1999). High side lobe reflections generated by a radar antenna would make it difficult for scientists to differentiate backscatter from the ocean surface and from FLIP. Id. at 40-41. Previous procurement 7. Respondent had conducted an earlier procurement for a fan beam antenna of the pillbox type that resulted in a contract award to ST Research (STR). Transcript at 21, 26- 27. The specification for that contract called for "maximum side lobes" of "-20 dB." Respondent's Exhibit 2. Appellant also submitted a bid for that antenna. Respondent's Exhibit 3. 8. A pillbox design antenna consists of a narrow rectangular box case with a parabolic reflector running from the left front corners, forming the parabola tangential to the center back of the case, and then continuing to the right front corner. Respondent s Exhibit 7. The parabola was curved in two dimensions. Transcript at 98-99. STR s antenna had one feed. Id. at 97. Appellant s technical project manager, see Finding 26 infra, considered the parabolic shape to be irrelevant to appellant s efforts because of the differing designs of the reflectors. Transcript at 650-53. On November 17, 1992, respondent awarded the contract to STR, with delivery due in ninety days. Respondent's Exhibit 5; Transcript at 27. On January 28, 1993, STR advised respondent that STR's design analysis produced side lobe levels of -19 dB, which was slightly less than -20 dB. STR also reported it was a week late in the mechanical design of the antenna. Respondent's Exhibits 10-11. Respondent considered that a side lobe slightly out of specification would be acceptable if the other specifications were met. Respondent's Exhibit 11; Transcript at 48. 9. On March 2, 1993, STR asked permission to change the design of the antenna from a pillbox design to a compound reflector design because STR was having difficulty obtaining clean side lobe measurements with the pillbox design. STR also requested a contract extension to April 30 to enable STR to redesign the reflector surface, the case for the 6 reflector, the waveguide feed and the mounting structure. Respondent's Exhibit 13; Transcript at 50. As of May 17, STR had not delivered the antenna, and waveguide patterns showed that the antenna was generating side lobes of more than -20 dB (-18 dB) for the upper H-Plane. Respondent's Exhibit 14-15. On June 2, 1993, STR discovered that the reflecting surface was bent; it tried to repair the bending with plastic or fiberglass filler, which again resulted in out-of-specification side lobes. Respondent's Exhibit 18. On June 22, 1993, respondent decided to cancel the STR contract, stating: 1) The antenna fails to meet the -20 dB side lobe specification. In elevation the upper H-plane side lobe is [-]17 dB and the lower side lobe is [-]19.2 dB below the main lobe. 2) Specifications called for a solid aluminum reflector; the completed reflector was constructed from aluminum with areas of the surface coated with a layer of semi-hard styrene filler as thick as 1/8 inch. This was not a "protective surface" but was applied in patches to correct for the deficiencies in the original shape of the aluminum surface. Even with this correction, the side lobe specification could not be met. Despite the contractor[']s recommendation, we have no guarantee that this surface would stand up to years of outdoor exposure or that the surface would not change with changing temperature. . . . Respondent's Exhibit 18. 10. As a result of respondent s experience with STR, the person who would become the contracting officer s technical representative (COTR) for the TSA contract and his assistant wrote specifications that required bidders and the successful contractor on the next procurement to conform as nearly as possible to side lobe and other specifications. Transcript at 74. The COTR testified that "when [the phrase] as nearly as possible was put in here, we had . . . in mind that if they needed to deviate slightly from the side lobe measurement by 1dB, that that would be acceptable as long as the other specifications were met." Id. He also testified that the phrase "as nearly as possible" referred to an objective standard for a competent engineering contractor rather than a subjective standard for any contractor. Transcript at 15 (Apr. 8, 1999). The contracting officer, Mr. Douglas B. Hargrove, testified that the phrase "as nearly as possible" meant that "if something is possible, it must be complied with." Transcript at 757. Upon questioning by the Board, the contracting officer 7 acknowledged that if it was not possible to meet the specification, the specification would not have to be met. Id. 11. Appellant's president testified at the hearing that he interpreted the phrase "as nearly as possible" as a design goal to "whoever was awarded the contract." Transcript at 517. By that phrase he meant a reasonable manufacturer in the antenna industry. Id. Appellant's president did not ask the Government before contract award to clarify the meaning of the phrase. Id. at 596-98. Solicitation and contract 12. The solicitation called for supply of a fan beam antenna as described in Section C. Appeal File, Exhibit 1 at 3 ( B.1).[foot #] 3 Section C provided in pertinent part: C.1 STATEMENT OF WORK/SPECIFICATION The Contractor shall furnish the necessary personnel, material, equipment, services and facilities (except as otherwise specified), to perform the following statement of work/specifications. A. REQUIRED FEATURES: Any antenna which does not incorporate the following features/capabilities will be unacceptable: 1. Center Operating Frequency: 9.340 GHz. 2. Feeds: Dual Polarized. The radiating aperture(s) shall be sealed to prevent contamination from sand, dust, salt spray, etc. 3. Two RF Input Flanges: U.G.39/U (small x-band). 4. Testing will be done at frequencies of 9.290, 9.315, 9.340, 9.365 and 9.390 GHz for the following: ----------- FOOTNOTE BEGINS --------- [foot #] 3 Respondent prepared two appeal files, one for GSBCA 13277-COM (the default termination) and one for GSBCA 14538-COM (the claim for equitable adjustment). Unless otherwise indicated, appeal file citations are to the appeal file for GSBCA 13277-COM. ----------- FOOTNOTE ENDS ----------- 8 a. Antenna power patterns out to 45 from the main beam axis: E-Plane and H-Plane patterns at both polarizations. b. Gain: On axis[foot #] 4 c. VSWR d. Cross Polarization: On axis value. 5. Waveguide Feed Structure: The waveguide(s) connecting to the feed structure shall be an integral part of this antenna. This will assure us that the above antenna measurements are representative of actual operating conditions. . . . . B. TECHNICAL ITEMS: The proposed antenna shall feature the following items which shall conform as nearly as possible to the specifications indicated below. 1. Horizontal Polarization Beam Widths: E-Plane at 3 dB: 0.8 0.2 at 10 dB: 1.5 0.2 H-Plane at 3 dB: 6.0 1.0 at 10 dB: 10.0 1.0 2. Vertical Polarization Beam Widths: H-Plane at 3 dB: Matched to within 0.2 of the horizontal's 3 dB E-Plane beam width. at 10 dB: Matched to within 0.2 of the horizontal's 10 dB E-Plane beam width. ----------- FOOTNOTE BEGINS --------- [foot #] 4 On axis gain is the ratio of energy radiated along the axis of the antenna to the energy radiated in any direction by an omnidirectional antenna radiating the same amount of total power. Gain is expressed in decibels. Respondent's Exhibit 1. ----------- FOOTNOTE ENDS ----------- 9 E-Plane at 3 dB: Matched to within 1.0 of the horizontal's 3 dBH-Plane beam width. at 10 dB: Matched to within 1.0 of the horizontal's 10 dBH- Plane beam width. 3. Maximum Squint[foot #] 5 between different polarizations: Azimuth: 0.2 Elevation: 1.5 4. Maximum Side lobes: < -20 dB. 5. Gain: 32 dBi minimum; orthogonal polarizations matched to within 1.5 dB. 6. Maximum Cross Polarization Level: 125 dB. 7. Peak Power: 60 KW. 8. Average Power: 160 Watts. 9. Maximum VWSR: 1.3:1. 10. Maximum Size: 9' x 4' x 4'. 11. Maximum Weight 300 Pounds. 12. Maximum Wind Survival: 120 miles per hour. 13. Maximum Wind Operational: 50 miles per hour. 14. Reflector Material: Corrosion resistant surface (i.e. resistant to salt spray and water). This reflector (if one is used) shall not deform in a hail storm that includes hail diameters up to 1 inch. No corrective filler shall be used on this surface. 15. Bandwidth: 50 MHz. Appeal File, Exhibit 1 at 6 ( C) (emphasis added). ----------- FOOTNOTE BEGINS --------- [foot #] 5 Squint is the angle between the axes of main lobes of beam patterns obtained at two different polarizations. Respondent's Exhibit 1. ----------- FOOTNOTE ENDS ----------- 10 13. The solicitation required offerors to submit proposals containing information sufficient to show how and with what the applicable specifications would be met, and a detailed description of how the offeror intended to design, fabricate and test the required units. Appeal File, Exhibit 1 at 37 ( L.10 (b)). The solicitation s evaluation criteria listed side lobes as the fifth most important of seventeen technical items. Id. at 40 ( M.1(b)A.). Award was to be made to that offeror who had offered the best overall value. The Government was more interested in that proposal containing superior technical and management features than with making award at the lowest overall cost. Id. at 423 ( M.1 (e)). 14. The solicitation (and resulting contract) contained standard clauses and certification provisions. The solicitation incorporated by reference the clause found at Federal Acquisition Regulation (FAR) 52.246-2, INSPECTION OF SUPPLIES-FIXED PRICE (Apr. 1984). Appeal File, Exhibit 1at 8 ( E.1). That clause provides in pertinent part: (b) The Contractor shall provide and maintain an inspection system acceptable to the Government covering supplies under this contract and shall tender to the Government for acceptance only supplies that have been inspected in accordance with the inspection system and have been found [by?] the Contractor to be in conformity with contract requirements. . . . (c) The Government has the right to inspect and test all supplies called for by the contract, to the extent practicable, at all places and times, including the period of manufacture, and in any event before acceptance. With regard to testing, the solicitation (and resulting contract) also provided in pertinent part: E.3. PERFORMANCE AND ACCEPTANCE TESTS (a) Testing shall be performed at origin by the Contractor and shall consist of a demonstration of the antenna to the COTR. The demonstration shall demonstrate that the antenna complies with the specifications contained herein. Contractor shall contact the COTR at least ten business days in advance of the anticipated test date to arrange for the COTR s presence during testing. 11 [Paragraphs (b) and (c) provide for acceptance tests after receipt and installation of the antenna] (d) Failure to successfully pass these tests will be grounds for rejection of the antenna. Id. ( E). The solicitation, and resulting contract, contained the standard default clause for fixed price supply contracts and services found at FAR 52.249-8 (1984), which provided in pertinent part: (a) (1) The Government may, subject to paragraphs (c) and (d) below, by written notice of default to the Contractor, terminate this contract in whole or in part if the Contractor fails to (i) Deliver the supplies . . . within the time specified in this contract or any extension; (ii) Make progress, so as to endanger performance of this contract (but see subparagraph (a)(2) below); or (iii) Perform any of the other provisions of this contract (but see subparagraph (a)(2). . . . . (c) Except for defaults of subcontractors at any tier, the Contractor shall not be liable for any excess costs if the failure to perform the contract arises from causes beyond the control and without the fault or negligence of the Contractor. Examples of such causes include (1) acts of God or of the public enemy, (2) acts of the Government in either its sovereign or contractual capacity, (3) fires, (4) floods, (5) epidemics, (6) quarantine restrictions, (7) strikes, (8) freight embargoes, and (9) unusually severe weather. In each instance the failure to perform must be without the fault or negligence of the Contractor. . . . Id. at 16 ( I.1). The solicitation, and resulting contract, contained the following provision regarding certification: K.4 52.209-5 CERTIFICATION REGARDING DEBARMENT, SUSPENSION, PROPOSED DEBARMENT, AND OTHER RESPONSIBILITY MATTERS (MAY 1989) 12 (a)(1) The offeror certifies, to the best of its knowledge and belief, that . . . . (ii) The Offeror has ( ) has not ( ), within a three-year period preceding this offer, had one or more contracts terminated for default by any Federal agency. . . . . (e) The certification in paragraph (a) of this provision is a material representation of fact upon which reliance was placed when making award. If it is later determined that the Offeror knowingly rendered an erroneous certification, in addition to other remedies available to the Government, the Contracting Officer may terminate the contract resulting from this solicitation for default. Id. at 22-23 ( K). 15. The solicitation stated a desired delivery date of sixty days after receipt of the notice of award and a required delivery date of one hundred and twenty days after receipt of the notice of award. Appeal File, Exhibit 1 at 10 ( F.2). Appellant's initial proposal 16. In its initial proposal, appellant stated: [TSA] proposes to furnish an antenna array comprised of two radiating aperture antennas, one for horizontal polarization and one for vertical polarization and a common reflector mounting frame. The antennas are designed to meet the requirements of Section C of [the] Solicitation . . . with minimum technical risk and full compliance to the requirements. The antenna operates over a bandwidth of 50 MHz centered at 9.340 GHz. . . . . The final selection is two separate antennas arrayed on a common mounting structure. The antennas are parabolic cylinder reflector antennas, one with a horizontally polarized Hogg horn feed and one with a vertically polarized Hogg horn feed. The details of the final design are discussed in paragraph 2.0. 13 Appeal File, Exhibit 3 at 1 ( 1.0). TSA described the general antenna design: The proposed antenna is comprised of two independent feeds mounted to illuminate a common aperture. The aperture is a parabolic cylinder. It is fabricated of a composite structure of fiberglass reinforced plastic (FRP) with metalized fiberglass as the reflecting surface. This approach has been used on reflectors manufactured by TSA operating to 18 GHz. Id. at 6 ( 2.4). Appellant s reflector was curved in the horizontal direction, not the vertical direction. Transcript at 98-99. Appellant s reflector had two separate feeds for each polarization, not one feed as in STR s design. Id. at 97. 17. As to the side lobe requirement, TSA stated in the narrative portion of its proposal: The 13 dB illumination taper produces a theoretical side lobe level of [-]27 dB. This will be degraded somewhat by the feed blockage and surface tolerances. However, experience at TSA has been that the side lobes will be well below the specified [-]20 dB. Appeal File, Exhibit 3 at 4 ( 2.1.1). 18. In the compliance summary of appellant's proposal, appellant stated in pertinent part: COMPLIANCE SUMMARY REQUIREMENT COMPLIANCE/COMMENT . . . . B. TECHNICAL ITEMS: The proposed antenna shall feature the following items which shall conform as nearly as possible to the specifications indicated below. . . . . 3. Maximum Squint between different polarizations: Azimuth: 0.2 COMPLY Elevation: 1.5 COMPLY 14 4. Maximum Side lobes: <-20 dB. COMPLY 5. Gain: 32 dBi minimum; orthogonal COMPLY 37 DBI Anticipated polarization matched to within 1.5 dB. Appeal File, Exhibit 3 at 10. Id. The proposal showed "figure one," which was a drawing of a typical Hogg horn feed. Pre-award discussions 19. After reviewing appellant's initial proposal, respondent asked appellant to supply field pattern radiation simulations. Appeal File, GSBCA 14538-COM, Exhibit 3. Respondent also asked for a clear sketch of the overall antenna system; more information on appellant's previous antenna contracts; whether appellant had previous experience in designing and building Hogg horns; which components would be off the shelf and which components were designed and built in-house, how much development effort would be required by the addition of corrugations to the side walls of the Hogg horn and whether appellant had any experience in building dual polarized, X-band fan beam antennas. Id. 20. In response, appellant provided nine of what it called "theoretical radiation patterns" which were run at 9.340 GHz for the elevation plane. Appeal File, GSBCA 14538-COM, Exhibit 4, Figures 2-4. Pattern two was based on an assumed perfect reflector surface and showed side lobes between - 29.7 dB and -25.1 dB. Id., Figure 2. Pattern three was based on a less than perfect surface (rms=.016) and showed side lobes of between -21.8 dB and -25.8 dB. Id., Figure 3. Pattern four was the "elevation pattern, final design and showed side lobes between -20.1 dB and -30.2 dB. Id., Figure 4. Appellant submitted pattern four with 0.10" defocusing to simulate a condition where the center of phase for the horn may be slightly displaced from the focal point of the reflector. Appellant explained that such defocusing tended to degrade the pattern more in the side lobe region than in the main lobe. Id. Exhibit 4 at 2. Appellant summarized the significance of these radiation patterns: This is the performance to be expected from the elevation plane of the parabolic cylinder main reflector since there is no appreciable blockage in the elevation plane and the reflector is a straight cylinder and will behave like an optical mirror. Thus the analytical patterns predict full compliance to the specification for the elevation plane. 15 Id. 21. Appellant produced pattern nine, which was a radiation pattern for the azimuth plane with the feed transversely displaced by 0.1" and the effect the feed displacement would produce. Pattern nine showed side lobes between -20.9 dB and -29.8 dB. Appeal File, GSBCA 14538-COM, Exhibit 4, Figure 9. Appellant stated that "the side lobes change again, but remain below [-]20 dB." Id., Exhibit 4 at 3. 22. Appellant provided a sketch of the antenna and also represented that it had considerable experience in providing Hogg horn antennas to the Department of the Navy. Appeal File, GSBCA 14538-COM, Exhibit 4 at 7. In answer to the Government's question as to which components would be off the shelf or manufactured in-house, appellant stated that "all the items for this application are designed and built in house." Responses from other vendor 23. Another vendor also submitted a proposal for respondent's consideration. Respondent's Exhibit 82A. As for meeting the requirement of "maximum side lobes," this vendor stated: The maximum side lobe for the antenna in the azimuth plane or horizontal cut is approximately -22 dB as shown. . . . Also shown . . . is the maximum side lobe level of -23 dB for the elevation for horizontal polarization. The side lobes for the vertical polarized cases are less than these values. The final tested side lobe level is projected at less than -21 dB based on additional diffraction terms which were not modeled. The requirement of -20 dB for the side lobe level will be met by more than 1 dB. Id. Contract award 24. On January 27, 1994, respondent awarded the contract for supply of a fan beam antenna to appellant. Appeal File, 16 Exhibit 8.[foot #] 6 The contract incorporated the solicitation and appellant's offer and the award. Id. at 1 ( 18). The contract document explicitly reproduced the required features and technical items of the solicitation's paragraph C.1, with delivery of the item sixty days after receipt of the notice of award, i.e. March 28, 1994. Id. Contractor's personnel 25. Appellant's president, Mr. Eugene Augustin, wrote the technical portion of appellant's proposal and prepared the representations, certifications and other statements of offerors. Transcript at 245, 247. 26. Mr. Russell Libonati was appellant's technical project manager for the fan beam antenna project. Transcript at 276. His job, in the words of appellant's president, was to make the antenna work. Id. Mr. Libonati graduated in December 1991 from the University of Central Florida with a bachelor of science in electrical engineering. Id. at 606- 07. Between his graduation and employment with appellant in 1993, appellant's technical project manager worked as a driver for Holiday Inn in Orlando, Florida. Id. at 607. During that time he did no work in antenna engineering. Id. Prior to his employment by appellant, the technical project manager had no experience in the design and fabrication of antennas. Id. at 280, 608. Appellant's technical project manager had worked on ten antenna projects of varying size before working on the fan beam antenna project. Id. at 722- 23. Performance Reflector and feed problems 27. One day after contract award, appellant requested a change in the delivery date from the desired sixty days after award to the required one hundred twenty days after award. As consideration for this change, appellant offered "a complete assembly drawing with detailed parts list." Appeal File, Exhibit 9. The Government issued modification one to the contract, which made delivery of the item 120 ----------- FOOTNOTE BEGINS --------- [foot #] 6 Although the record does not contain an acknowledgment of respondent's facsimile transmission of January 27, 1994, appellant does not contest that it received the award notification on that date. ----------- FOOTNOTE ENDS ----------- 17 days after receipt of notification of the award, or May 27, 1994. 28. Appellant engaged a vendor, MFG West (MFG), to supply the reflector for the antenna, Transcript at 311-12, and forwarded a purchase order to MFG for the reflector on or about February 22, 1994. The purchase order had no delivery date by which MFG was supposed to deliver the reflector to appellant. Respondent's Exhibit 62. Appellant's president testified that "he did not give MFG enough tools to build the part in a timely manner." Id. at 313, 315. Appellant's president explained that it was appellant's responsibility to provide fiberglass templates so that MFG could make the molds in order to produce the reflector. Id. at 314-15. Appellant's president testified: "I didn't pay attention to the fact that you got to get those exactly aligned right or you don't get the right surface." Id. He also testified that he supplied MFG with two templates, rather than the three templates necessary to produce the full width of the reflector. Id. at 315. 29. After appellant received the reflector from MFG, appellant tested it, but it did not meet "the performance we anticipated." Transcript at 383. Appellant's president testified that given the warpage of the reflector, the reflector would not meet a -15 dB side lobe specification, much less a -20 dB side lobe specification. Id. at 384-85. Appellant's technical project manager testified that the antenna with the warped reflector would not be suitable for the Government's contemplated use because this antenna was designed to operate at relatively high frequencies. Id. at 645. 30. Meanwhile, appellant discovered that dual Hogg horn feeds created greater side lobes than expected because of unexpected (by appellant) interaction between the feed horns. Transcript at 310. By March 1, therefore, appellant considered changing the Hogg horn feeds to slotted array feeds; appellant assigned a technician to redesign the feeds. Respondent's Exhibit 63; Transcript at 318. 31. On May 10, appellant reported to the Government that appellant had experienced a delay of three weeks in the delivery of the reflector and requested from the Government a contract modification extending the delivery date three weeks. As "valuable consideration," appellant offered to swap out a short resonant array feed in place of the Hogg horn feed, which, according to appellant, would "reduce 18 weight," and reduce the aperture blocking area. Appeal File, Exhibit 11. On May 19, MFG delivered the antenna reflector to appellant. Transcript at 321. 32. On May 23, the Government stated that it would be willing to accept the substitution of the short resonant array feeds for the Hogg horns if appellant could provide evidence that the substitute was better than the Hogg horn feeds and if appellant could provide supporting data and a drawing. Appeal File, Exhibit 12. By letter of May 23, appellant explained in detail the technical benefits of the slotted array feeds, and on May 27, it forwarded radiation patterns produced by the feeds. Id., Exhibits 13-14. The radiation patterns were not produced from a fully assembled antenna; rather, they were patterns of energy being fed into two slotted array feed assemblies by another antenna. Transcript at 331, 333. As of May 23, according to appellant's president, he was "pretty sure" that appellant had assembled the antenna. Id. at 324. Appellant's president admitted, however, that as of May 23, appellant had not tested every parameter of the antenna required to be tested. Id. Additionally, on May 10, appellant had proposed a substitution of one type of feed for another, and was awaiting the Government's approval for the substitution. As of May 23, appellant did not know whether it could use the slotted array feed. There is a dispute of fact as to whether the antenna was assembled and ready for testing on May 23. We find as fact that, as of May 23, the antenna was not assembled in its final configuration and was not ready for testing. 33. By letter of June 1, the Government asked two clarifying technical questions and requested additional radiation patterns in order to approve the substitute feeds. Appeal File, Exhibit 15. Appellant supplied the additional radiation patterns on June 16. Appellant also stated in its letter of June 16 that if the Government viewed the previously submitted radiation patterns as acceptable performance, "we can be ready for your witnessing of acceptance testing in one week [or June 23]."[foot #] 7 Id., Exhibit 16. The COTR thought the radiation patterns "would be acceptable for this type of design. We were also taking their experience in the antenna field that these looked fairly decent . . . for a ----------- FOOTNOTE BEGINS --------- [foot #] 7 The writer obviously meant to refer to the contractor-directed performance test on the contractor site specified by the paragraph E.3(a) of the contract. See Finding ___ 14. ----------- FOOTNOTE ENDS ----------- 19 feed structure . . . that they were working on." Transcript at 113.[foot #] 8 On June 28, the parties entered into bilateral contract modification 0002, effective the previous May 17, approving the substitution of the resonant array feeds for the Hogg horn feeds and extending the delivery date to 141 days after award, or June 17. Id. at 127. Side lobe problems and time extension 34. Appellant acknowledges that the contract requirement of testing at five frequencies in paragraph C.1.A.4 applied to the side lobe specification. Transcript at 364-65. On or about June 8, appellant ran radio frequency tests on the antenna and reported "visible side lobe problems" in the azimuth plane. Appellant ran bench tests on the feed to rule out a feed problem and concluded that the reflector was causing the problem. Respondent's Exhibit 64 at 11. On June 14 appellant ran another series of tests and arrived at a best case of -15 dB at 9.34 GHz. Respondent's Exhibit 65; Transcript at 625-26. On June 16, respondent's COTR had a conversation with appellant's technical project manager, where, for the first time, respondent was informed that appellant was having problems meeting the -20 dB side lobe specification. Appellant's engineer informed the COTR that testing produced side lobe measurements of -15 or -16 dB. Respondent's Exhibit 29; Transcript at 121. On June 16, appellant submitted radiation patterns to respondent and ----------- FOOTNOTE BEGINS --------- [foot #] 8 The COTR, Dr. Mark D. Jacobson, is employed by respondent's National Oceanic and Atmospheric Administration (NOAA), and during the time of the contract by NOAA's Environmental Research Laboratories, and its subdivision, the Environmental Technology Laboratory (ETL). Transcript at 20. The COTR was employed by the Remote Sensing Group; he designed, constructed, operated, and maintained microwave radiometers, and has operated and maintained infra-red radar and a high frequency radar. As of the hearing on the merits, the COTR had been employed by ETL since June 1983. Before entering Federal employment, the COTR was a teaching assistant for microwave and circuit laboratories with the University of Colorado from September 1982 to May 1983. The COTR was elected into membership of the United States National Committee, International Union of Radio Science, Commission F, in July 1997. He is a member of the Institute of Electrical and Electronics Engineers. The COTR holds a B.S. in electrical engineering from Montana State University, and M.S. and Ph.D. degrees in electrical engineering from the University of Colorado with a concentration in electromagnetics. Id. at 17-20. We found him to be a ___ knowledgeable and credible witness. ----------- FOOTNOTE ENDS ----------- 20 advised respondent that if it found the performance as reflected by these patterns acceptable, appellant would be ready for acceptance testing within one week. Appeal File, Exhibit 16. Some radiation patterns were between -16 and - 16.5 dB; others were between -20 and -24 dB. Id.; Transcript at 123-25. 35. On June 22, appellant offered to increase the antenna's gain from 32 dB to 37 dB and requested an extension of the delivery date by forty days. Appeal File, Exhibit 17; Transcript at 132. By modification 003 to the contract, dated July 18, the Government established the antenna's delivery date as July 27, 1994. Appeal File, Exhibit 21. Meanwhile, on June 24, the COTR conversed with appellant's engineer concerning continuing side lobe problems and reported that appellant thought that the shape of the reflector was causing the problem. On June 29, in response to appellant's letter of June 22 and also in response to the COTR's conversation of June 24, the contracting officer wrote the appellant: This is in response to your letter requesting another delay. Your first sentence appears to imply that the Government had changed its requirements. . . . My understanding is that the current issue is TSA's failure to meet the requirement that the side lobe level be "<-20 dB" as stipulated on page 5 of the contract. We need to be very clear that there is no change in the Government's requirements; "<-20 dB" means "less than minus 20" or more "minuscule than." I understand your side lobe is -15, or larger than -20. Should TSA provide a side lobe of -20, -21, etc. dB, it would be in compliance with the contract's requirements. Id., Exhibit 18; Transcript at 133.[foot #] 9 36. According to appellant's president, appellant tried to meet the side lobe specification by bending and stretching the existing reflector, but was unsuccessful. Transcript at 391. Consequently, on July 16, appellant advised the Government of the following: ----------- FOOTNOTE BEGINS --------- [foot #] 9 By that letter the contracting officer included copies of contract modification 003 for appellant to sign and return to the Government. Appeal File, Exhibit 18. ----------- FOOTNOTE ENDS ----------- 21 [TSA] has experienced a severe problem with the reflector for the referenced contract. The problem is so severe that we have to completely replace the reflector. I realize that this is not a justifiable delay. In order to recover, we are planning on a solid surface aluminum reflector with an aluminum back up structure. The original reflector is a reinforced fiberglass composite structure. We have been trying for several weeks to correct the warpage by shimming the mounting. We have expended many man hours, but have not been successful. We have therefore decided to build a more expensive solid surface aluminum reflector with an open frame aluminum back structure. Appeal File, Exhibit 20. Appellant stated that it would be ready for preliminary testing on July 27 and that the antenna would be complete on August 3. Appellant proposed a date for acceptance testing of August 29, or 214 days after contract award. Appellant requested an extension of the time for delivery from 180 days to 214 days after award. Id. As consideration appellant offered to supply, at no additional charge, a boresight scope as an antenna accessory. Id. 37. Appellant's president admits that the Government did not require appellant to replace the reflector. Appellant's president testified that the Government influenced him to try to modify the first reflector and then to replace the reflector by the Government's refusal to accept radiation patterns submitted about a month earlier. Transcript at 391. Appellant's president testified that appellant had been prepared to deliver the warped reflector that could not even meet a -15 dB specification in May or June 1994. Id. at 384-85, 392. 38. On July 28, the Government indicated its willingness to grant the extension, provided that the antenna specifications as they then existed would not change. In addition, the Government asked technical questions concerning the boresight scope and the shape of the new reflector. The Government advised that the COTR could not be present to witness acceptance testing until September 3. The Government stated: While the Government understands that certain problems have arisen that have been difficult to surmount, we must impress upon TSA that the delays thus far experienced have not been of the nature that can be excused. With that in mind, barring excusable delays 22 in the future, we intend that this will be the last extension the Government will negotiate with TSA. It is imperative that the project be completed without further delay. Appeal File, Exhibit 22. The COTR engaged in a series of conversations in August with appellant's president, who reported to the Government that the side lobes were measured at -18 dB. According to the COTR, appellant's president kept reassuring respondent that it could "solve this less or minus 20 dB problem." Transcript at 144. 39. On August 26, 1994, the Government executed contract modification 0004, which provided the substitution of an aluminum surface for the fiberglass surface on the reflector, established the delivery date of September 26, 1994, added the boresight scope, and added as additional work the use of the boresight to align the antenna with the source antenna during measurement of radiation patterns. Appeal File, Exhibit 25. On August 31, the COTR talked with appellant's radiation engineer, who reported that the side lobes were measuring -18 dB. This engineer suggested that the Government relax the side lobe specification. Respondent's Exhibit 29; Transcript at 145. The Government decided not to do so. Transcript at 145. While the Government's officials were willing to grant a tolerance of 1 dB, the COTR believed that many antennas could meet a -20 dB specification fairly routinely. Id. 40. When asked whether the COTR also believed that there were fan beam antennas that could meet a specification of - 20 dB, the COTR stated that "there have been fan beam antennas for the last number of decades that have met the . . . less than minus 20 dB level." Transcript at 146. Literature from vendors indicates that it is possible to manufacture fan beam antennas with a side lobe measurement of significantly less than -20 dB. Respondent's Exhibit 55. A scholarly technical paper also shows many dual polarized radar antennas with side lobe measurement of significantly less than -20 dB, albeit the antennas are not fan beam antennas. Respondent's Exhibit 54, Table 2.1[foot #] 10; Transcript at 235. ----------- FOOTNOTE BEGINS --------- [foot #] 10 That exhibit is entitled Radar in Meteorology: ______________________ Battan Memorial and 40th Anniversary Radar Meteorology Conference ----------- FOOTNOTE BEGINS --------- (American Meteorological Society 1990). ----------- FOOTNOTE ENDS ----------- 23 41. On September 6, appellant requested a delay in acceptance testing from September 8 until September 12. Appeal File, Exhibit 27. On September 7, appellant's technical project manager advised the COTR that side lobes were greater than -20 dB. Respondent's Exhibit 29. On September 14, appellant's technical project manager requested another extension of the acceptance test until October 3 at the latest, due to inclement weather. Appeal File, Exhibit 27. On September 20, the technical project manager advised the COTR that the reflector's azimuth plane did not meet what the COTR considered to be the side lobe specifications. The measurements came in at -16 dB (the worst) and at -18 to -19 dB (the best). The elevation plane did meet what the COTR considered to be the side lobe specifications, with -21 being the worst and -24 dB being the best. The edge and shunt slots on the waveguide had side lobe levels of -16 dB and -18 dB. Respondent's Exhibit 29. The COTR considered that appellant had reached the limits of its performance. Id. 42. On September 30, appellant's president talked to the COTR and informally requested forty-five additional days to solve the problem with the side lobe measurements, through a "new reflecting surface with rivets." Respondent's Exhibit 29. Appellant did not at that time advise the Government that it had come as near as it possibly could to meeting the -20 dB side lobe specification. Transcript at 410. 43. On October 3, appellant requested a forty-five day extension of time, offering as consideration to cut radiation patterns on 45 intercardinal planes at three frequencies. Appeal File, GSBCA 14538-COM, Exhibit 17. Respondent issued contract modification 0005 extending the delivery date to November 28, 1994. 44. On November 27, appellant requested from the Government yet another extension of the delivery date, to January 27, 1995. Appellant stated that "we have recently made a significant breakthrough in the configuration of the antenna that allows us to be confident that we will meet the specification in a very short period of time." Appeal File, Exhibit 31. Appellant did not describe the significant breakthrough to the Government. Transcript at 412. Appellant also stated that it had been delayed in testing the antenna by about ten days due to inclement weather from Hurricane Gordon. Appeal File, Exhibit 31. 45. On November 30, the Government sent appellant a cure notice, advising appellant that it failed to comply with the 24 delivery schedule of the contract and invoking the Government's rights under the Default clause of the contract. The Government advised appellant that if delivery of the antenna was not made by December 15, the Government might terminate appellant's contract for default. Appeal File, Exhibit 33. 46. Appellant's letter of November 27 and respondent's cure notice of November 30 crossed in the mail. Appeal File, Exhibit 36. On December 12, the Government responded to appellant's proposal of November 27 by stating that it would terminate appellant's contract for default and not agree to another extension of the delivery date unless appellant proposed: (1) an acceptable delivery schedule; (2) adequate, realistic consideration; and (3) a specific day-by-day performance plan for completing the delivery on January 27, 1995, as well as a method for the Government to track appellant's progress in meeting its obligations. Id. 47. Appellant responded by letter of December 13, requesting a revised delivery date of January 27, 1995, for the antenna, supported by a Gantt (progress) chart; offering a $450 reduction in contract value as consideration; and agreeing to supply to the Government weekly progress reports, which, together with the Gantt chart, appellant considered sufficient for tracking appellant's progress. In addition, appellant stated it would postpone, until it had sufficient documentation and proof (it did not say for what), a request for a deviation on the side lobe specification. Appeal File, Exhibit 37. The Gantt chart attached to appellant's letter showed pattern development to begin on December 12 and finish on January 2, 1995. Id. 48. On December 13, respondent notified appellant that its proposal was acceptable and even offered an extended delivery date of February 3, 1995, due to a scheduling conflict. Respondent forwarded proposed modification 0006 to appellant for its signature. Appeal File, Exhibit 38. Modification 0006, signed by appellant's president on December 15, 1994, and by the contracting officer on December 20, extended the delivery date to February 3, 1995. Id. The modification also reduced the price by $450 and incorporated the requirement for appellant to furnish weekly status reports. Id. 49. Between December 13 and January 9, appellant continued to experience difficulty in getting the antenna to produce side lobes of less than -20 dB. For example, appellant 25 reported that on December 13, it was achieving side lobes of -16 to -18 dB and was still experimenting with adjustments to the antenna feed and aperture to improve the side lobe performance. Appeal File, Exhibit 39 at 1- 2.[foot #] 11 The week of December 19, appellant built a new reflector; tests of that reflector showed side lobes varying from -18.7 to -20.6 dB in the azimuth plane for vertical polarization and from -17.4 to -19.0 dB for horizontal polarization. Id. at 3-5. On January 9, appellant reported to respondent that it had achieved low side lobes in the bottom of the reflector but that the top of the reflector generated high side lobes. Appellant stated: "The information would seem to indicate that the reflector is the cause of the high side lobe. The patterns in the bottom of the dish prove that it is possible to obtain -20 dB side lobe performance. We are attempting to rework the upper portion of the dish only in order to match the performance of the bottom." Id. at 14. On January 16, appellant reported much the same state of affairs as reported on January 9. In the later report, appellant stated that it was achieving -18 to -20 dB side lobe levels in the azimuth plane and that it was currently performing additional tests to try and optimize the system to the -20 dB side lobe level. Id. at 18. First acceptance test 50. The Government and appellant arranged for a Government preliminary inspection and acceptance test. The inspection and test were to take place on January 18. The COTR flew to Orlando and inspected the antenna on that date. First, the COTR reviewed some test patterns and was disappointed to find that test patterns produced some side lobe levels as high as -15 dB. Appeal File, Exhibit 41. 51. The COTR then inspected the antenna. Appellant had placed the antenna on a water tower that had been converted into an antenna test range. Transcript at 186. The central support of the water tower was corroded with rust; the platform of the tower had holes so large that the COTR was afraid he might fall through the tower platform. Respondent's Exhibit 44 at 4 (photograph of water tower); Transcript at 186. Nevertheless, with trepidation, the COTR ascended the platform and inspected the antenna. Transcript at 186. He found that, contrary to contract specifications at paragraph C.1.A.2, the feed was not sealed. Id. at 189. ----------- FOOTNOTE BEGINS --------- [foot #] 11 Page numbers refer to the consecutive pagination of this exhibit. ----------- FOOTNOTE ENDS ----------- 26 The antenna, moreover, had one feed, not the dual feeds specified by the contract in that same paragraph. Appeal File, Exhibit 41; Transcript at 186. The antenna had a coaxial cable attached to the feed, rather than the wave guide run, as required by the contract, paragraph C.1.A.5. Respondent's Exhibit 44 at 5, 10; Transcript at 195. Appellant's technical project director had moved and replaced the cable at various times so as to be reasonably certain that the cable was not causing side lobe problems. Transcript at 707. The COTR explained at the hearing how use of a cable could give inaccurate measurements: The wave guide conduit has a different type of blockage area as compared to coaxial cable. We wanted the antenna to be tested in its final configuration . . . as would be used in an experiment. And the wave guide runs are larger in cross sectional area than a coaxial cable. So we wanted the antenna to be in its normal operating condition. Id. at 196. Additionally, the feed structure was not attached permanently to the antenna; instead, it was attached to the antenna structure by tape and "C" clamps. Respondent's Exhibit 44 at 10; Transcript at 197-98. Again, appellant used clamps of various sizes to make sure that the clamps were not causing side lobe problems. Transcript at 707. Metal clamps will affect test patterns since they introduce another element of radiation blockage. Id. at 198. 52. The COTR met with appellant's technical project manager, who showed the COTR radiation patterns. The patterns showed side lobe levels as high as -15 dB. Appeal File, Exhibit 41. Based upon the requirement for measuring different parameters at five frequencies, the COTR had expected appellant to produce sixty-six radiation patterns. Transcript at 191. Instead, appellant produced six test patterns at three frequencies, that is, two test patterns for each frequency. Id. at 190.[foot #] 12 Of the measurements that were taken, some showed side lobes as high as -15 dB. Appeal File, Exhibit 41. Additionally, the boresight scope was not attached to the antenna through a permanent mount. Id., Exhibit 44. ----------- FOOTNOTE BEGINS --------- [foot #] 12 Appellant did repeat the same six measurements ten times, with the feed in different positions to improve the side lobe measurements. Appeal File, Exhibit 44; Transcript at 193. In the view of the COTR, those additional measurements were not the sixty-six measurements at different frequencies contemplated by the contract. Transcript at 193-94. ----------- FOOTNOTE ENDS ----------- 27 53. On the morning of January 20, the COTR met with appellant's president and expressed his dismay over the state of the antenna. The COTR had been expecting a finished antenna and found an antenna that it was in the prototype stage. Appeal File, Exhibit 41. The COTR stated that he did not believe appellant could pass the acceptance test and make delivery by February 3. Appellant's president stated that the parties were at an impasse, that appellant could not meet the Government's specifications, and that it was apparent that the Government would not relax the side lobe specifications. Id. Appellant's president blamed the Government for leading appellant astray. Appellant's president stated that Government officials had told him over the phone that the side lobe specifications would be relaxed, and that they assumed that the side lobe specifications would be relaxed by 3 dB because they were able to increase the gain by 5 dB. The COTR replied that a relaxation of the side lobe specification was never put in the contract. Id. Appellant's technical project director testified that the COTR had never agreed to relax the side lobe specification. Transcript at 659-60. 54. Appellant's president stated that at the beginning of the contract appellant had thought the antenna would be easy to design and build, but as time passed, it realized the antenna specifications would be difficult to meet. Appeal File, Exhibit 41. Appellant's president stated that appellant had spent much money on the project. The COTR refused to change the specifications. Id. Appellant's president then told appellant's technical project director to stop the tests. The meeting ended with appellant's president threatening to "bring in the lawyers" and with the COTR stating that "this is the end of the project." Id. 55. By letter of March 1, the contracting officer advised appellant of the COTR's findings and rejected appellant's fan beam antenna because it "did not conform to significant contract requirements. If delivered the antenna will not be accepted." The contracting officer stated that the Government had given appellant ample time to cure acknowledged defects, including the requirement that the side lobe level be <-20 dB as stated in the contract, and that this particular failure had extended back to at least the discussions on modification 0003 of the contract. The contracting officer advised appellant that the Government would terminate the contract for default. Appeal File, Exhibit 45. 28 56. On March 13, the parties had a telephone conference at which time appellant's president stated that he had found a reference to a 1951 article about parabolic cylinder aerials in a 1951 edition of a British engineering journal. Transcript at 500. The COTR stated that he was familiar with the article and sent it to appellant that day. Id. at 213. The COTR was familiar with the article because he had used it as a reference to familiarize himself with parabolic cylinder antennas. Id. at 89. 57. The article referenced is D.G. Kiely, Parabolic Cylinder Aerials, Design for Very Small Side Lobes, Wireless Engineer (Mar., 1951). Appeal File, Exhibit 56. The purpose of the article is to provide a design of a parabolic cylinder antenna that would achieve -30 dB side lobes, since the existing navigational radar was producing in general not more than -22 dB below the main beam level.[foot #] 13 The article described a design technique to produce low side lobe levels: To prevent obstruction of the radiating aperture by the feed system, which causes an increase in the side lobe level due to the shadow effect from the feed horn, the parabolic cylinder is tilted by an angle to the vertical and feed horn is placed with the center of its aperture on the focal line below the mirror and is inclined upwards by an angle 2 so that the emergent beam is horizontal. Id. at 1. 58. During the phone conversation of March 13, appellant's president also stated that, in tests, appellant had achieved side lobe levels of -19 dB and -20 dB for all patterns. Appeal File, Exhibit 45; Transcript at 202-03, 500. On March 14, appellant's president sent a facsimile transmission to the COTR restating that accomplishment. Appeal File, Exhibit 45. Respondent requested appellant to send to respondent patterns showing side lobe levels of -19 dB everywhere as respondent understood appellant's fax to claim. Id., Exhibit 46. ----------- FOOTNOTE BEGINS --------- [foot #] 13 This article concerned the design of nautical navigational radar to detect nearby objects such as buoys, booms or small craft. Small side lobes were necessary on such radars or the radars would receive echoes from objects on several different bearings at the same time, causing unwanted or incorrect information. Appeal File, Exhibit 56 at 1. ----------- FOOTNOTE ENDS ----------- 29 59. On March 16, appellant's technical project director sent respondent a set of radiation patterns produced allegedly using an offset design that appeared in the parabolic cylinder article. Appeal File, Exhibit 47. The tests, however, were conducted at only three of the five frequencies specified in the contract. Transcript at 660. Nevertheless, the COTR was encouraged that, with use of the offset design, appellant was finally making progress in meeting the side lobe specification. Id. at 209-10. The Government and appellant started discussions about another modification. Appellant advised the Government that with the offset feed design and the side lobe levels, it could no longer meet the 37 dB gain requirement. Appellant requested a downward adjustment of gain to 34 dB. Appeal File, Exhibit 48 at 2. Respondent issued contract modification 0007, extending the delivery date to May 2, 1995, scheduling the acceptance test commencing April 19 and, among other items, adjusting the gain to 34 dB. The modification lowered the on-axis gain to 25 dB. Appeal File, Exhibit 50. 60. When the COTR went for the second acceptance test on April 19, he found the antenna to be in much the same configuration as it was during the first test. The wave guide feed was not secured to the reflector, and appellant was using coaxial cable to feed the wave guide feed. Transcript at 212. The only difference between the configuration of the antenna during the first test and during the second test was that, during the second test, the antenna feed was offset by a few more degrees. Id. The COTR observed that appellant did not follow the instructions of the Parabolic Cylinder Aerials article in that in configuring the antenna, appellant did not tip both the parabolic cylinder and the antenna feed at different angles; it only tipped the feed and it kept the parabolic cylinder in the vertical position. The article had advised antenna designers to keep the feed structure out of the reflector area. Appellant did not do that. Id. at 215-17. 61. On April 19, the COTR observed the antenna with the coaxial cable running to the feed, the boresight not attached, the waveguide runs not in place, and the antenna not painted. Appeal File, Exhibit 51. The COTR asked appellant's president to secure the wave guide feed to the antenna. On April 21, appellant secured the feeds with epoxy and foam and the waveguide runs with clamps, and put one set screw into each feed structure for alignment purposes. Id. With elevation squint at 1.7 (the contract specification was 1.5 ), the side lobe level was -19 dB for 30 the horizontal polarization at the E-plane cut. Appellant's president stated that appellant needed to work on the antenna, and he tested it on April 22. The COTR visited the test area on April 24, a windy day, and saw that the waveguide end of the feed structure was moving about 1/4 of an inch, with the whole feed structure moving about 1/8 of an inch. Id. The COTR asked appellant to put another clamp on the feed structure and to insert two more screws in the structure. Id. 62. On April 25, appellant reported to the COTR that, when the boresight scope was attached to the antenna, the side lobe levels were 2 dB worse than achieved on April 21. Appeal File, Exhibit 51. Appellant then moved the feed structure in an attempt to improve the side lobe specifications. The COTR observed side lobe levels as bad as -11 dB. Further adjustment of the antenna produced side lobe levels of -16 dB. Id. On April 26, the COTR reported that the shunt feed slot came within 1 dB of the desired -20 dB specification, but that the other frequencies would have to be tested. On April 27, further testing of the edge feed (vertical polarization) showed side lobes of -14 dB. Two more days of testing produced edge feeds of -17 dB and -9 dB for the vertical polarization. Appeal File, Exhibit 51. During the test, the antenna was in its final configuration for half a day until appellant disassembled the feed to seek to improve the side lobe specifications. Transcript at 928- 29. 63. The COTR's summary of side lobe measurements during the second acceptance test shows the following: Date Frequency Feed Sweep Side Lobe Angle -dB 4-21-95 9.34 H Az 19 4-25-95 9.34 H Az 11-20 4-26-95 9.34 H Az 19.5 4-27-95 9.34 H Az 14-19 4-28-95 9.34 V Az 17 4-29-95 9.34 V Az 9 Respondent's Exhibit 47 at 10. Because of the logarithmic side lobe formula 10Logx, every 3 dB deviation produces a signal degradation by a factor of two, or a factor of four for a transmitting and receiving antenna such as the one specified in the contract. Transcript at 229-30; Transcript at 62-63 (April 8, 1999). Every deviation of 1 dB produces a signal degradation of twenty-five percent. Transcript at 232. 31 64. Appellant's president testified that had appellant increased the physical size of the antenna, he would have been able to meet the -20 dB side lobe specification. Transcript at 511-12. 65. On April 29, appellant's president told the COTR he was not going to spend any more time adjusting the feeds to try to meet the Government's specifications. The COTR left the test site, stating in a subsequent memorandum that "we were never able to do the acceptance tests." Appeal File, Exhibit 51. 66. On May 1, in his preliminary termination for default findings, the COTR reported that initial measurements produced side lobe levels of -19 dB and elevation squint levels of 1.7 . The remaining measurements were not taken because of the unacceptable side lobe levels and unacceptable elevation squint levels obtained by appellant in its antenna patterns. Appeal File, Exhibit 52. 67. On May 9, the contracting officer notified appellant that the Government had terminated its antenna contract for default: for failure to provide Item 0001, a fan beam antenna capable of passing both performance and acceptance tests as required in Section E of the contract and failure to make delivery of Item 0001 within the time specified in the contract in accordance with Subdivision (a)(1)(i) of the [Default clause] which was incorporated into the contract by reference. Appeal File, Exhibit 55. 68. Appellant filed a timely appeal at this Board from the default termination. That appeal was docketed as GSBCA 13277-COM. Default termination of prior contract and resulting false certification 69. On July 15, 1991, respondent awarded contract 51 RANB10C097 to appellant for supply of an earth station satellite antenna. Respondent's Exhibit 73 at 5. Delivery was due 180 days after receipt of the notice of award, or on January 15, 1992. Appeal File, Exhibit 63. On January 17, 32 1992, the contracting officer, Ms. Marilyn Scherer, terminated appellant's earth station satellite antenna contract for default, because appellant failed to timely deliver the antenna. Id. 70. Appellant's president testified that, on January 21, he spoke to Ms. Scherer and requested a no fault termination. Ms. Scherer did not respond in that conversation. Transcript at 552. On January 21, appellant's president followed his oral request for a no fault termination with a written request for the same relief. Appeal File, Exhibit 64. On February 5, Ms. Scherer responded that "your proposal has been reviewed, and it is our opinion that the default termination is appropriate, and accordingly, will remain." Appeal File, Exhibit 65. Appellant did not challenge that termination for default further. Transcript at 551. 71. On July 29, Ms. Scherer wrote appellant and reminded appellant that the earth station satellite antenna contract had been terminated for default. Ms. Scherer stated that the default clause provided the Government with the right to procure the antenna from other sources and to charge the defaulted contractor with the excess costs of the reprocurement. Ms. Scherer demanded $1570 in excess reprocurement costs from appellant. Appeal File, Exhibit 66. 72. Appellant's president testified that Ms. Scherer's letter demanding excess reprocurement costs arrived at his place of business when he was on vacation in August 1992. Transcript at 552. According to the testimony, appellant's president called to his office, whereupon his secretary informed him that the Government had sent appellant a demand for excess reprocurement costs. Id. at 533. Appellant's president testified that he authorized the secretary to pay the excess reprocurement costs because he thought the Government had accepted his offer of a no fault termination. Id. Appellant paid the excess reprocurement costs. Appeal File, Exhibit 67. 73. In filling out the certification at paragraph K.4 of the solicitation, Finding 14, as part of appellant's offer for the fan beam antenna contract, appellant's president checked the box indicating that the offeror "has not," within a three-year period preceding that offer, had one or more contracts terminated for default by any federal agency. Appeal File, Exhibit 5 at 21. The offer was signed by 33 appellant's president and dated January 20, 1994, well within the three-year period after the default termination of January 17, 1992, of appellant's earth station satellite antenna. The certification was therefore false. 74. Appellant's president testified that he certified for appellant that it had not been terminated for default within a three-year period because he thought the contracting officer had accepted his compromise proposal, thereby wiping out the prior default termination. Transcript at 553-54. There is a dispute of fact whether, on appellant's behalf, appellant's president knowingly falsified the certification. We conclude that he did. Appellant's president twice--once orally and once in writing--proposed a "no fault" convenience termination. Finding 70. This proposal was rejected explicitly by Ms. Scherer's letter of February 5, 1992, in which she stated that the termination for default would remain. Id. The intention of the Government to maintain the default termination was restated in Ms. Scherer's letter of July 29, 1992, whereupon she demanded $1570 in excess reprocurement costs. Finding 71. The assessment of excess costs by the Government is, in any event, inconsistent with the Government's acceptance of a compromise "no fault" termination proposal. The position of the Government that the prior default termination would remain was unmistakable; the testimony of appellant's president that he thought the Government had accepted his compromise proposal and canceled the default termination is incredible. 75. Mr. Douglas B. Hargrove was not the procuring contracting officer for the fan beam antenna contract, but he was the contract specialist who performed the pre-award responsibility determination for that contract. Transcript at 739, 743-44. In his responsibility determination, Mr. Hargrove concluded that appellant "has a satisfactory performance record" and that "[Appellant] has an overall satisfactory record of past performance. The [Department of Commerce] Boulder Laboratories contracted with [appellant] during 1991 (contract 51 RANB10C097) with positive results." Appellant's Exhibit 7. He came to this conclusion after reviewing a microfiche record of modification one to contract 51 RANB10C097, which mentioned deobligation of funds. He missed the reference in block eight of the modification explaining why funds were deobligated; the contract had been terminated for default. Transcript at 866. Mr. Hargrove learned that the Government had terminated contract 51 RANB10C097 for default in mid-March 1995, when Mr. Hargrove talked to Ms. Scherer. Appeal File, 34 Exhibit 61 at 4-5 (Deposition of Douglas B. Hargrove (Nov. 30, 1995)). Claim for equitable adjustment 76. On November 11, 1997, appellant filed a claim for equitable adjustment in the amount of $163,756.91. Appeal File, GSBCA 14538-COM, Exhibit 1. Appellant seeks $11,045.36 in material costs, $42,818.52 in labor, 32.35% general and administrative costs and 15% profit. Id. Appellant claimed that: TSA began performance in a manner consistent with the time and cost constraints of the contract requirements. However, TSA encountered serious technical difficulties, which had a devastating effect on TSA's costs and time for performance. What should have been a relatively simple production effort was transformed into a massive [research and development] project requiring a dramatic amount of extra-contractual time, effort and cost. The main source of the problem resulted from the Government's insistence that TSA perform to standards in excess of what was required under contract specifications. Id. at 2. By letter of February 28, 1998, the contracting officer denied the claim in its entirety. Id., Exhibit 9, Tab C. 77. From the contracting officer's decision denying the claim, appellant filed a timely appeal, which was docketed as GSBCA 14538-COM. Discussion Termination for default Side lobe specification as a goal or a requirement Respondent has the initial burden of establishing that a termination for default was justified. Respondent having established that appellant failed to complete the acceptance test and to supply the antenna, Findings 65, 67, the burden shifts to appellant to show that it was without fault or negligence in its failure to perform and that its failure to perform was beyond its control. MM-Wave Technology, Inc., ASBCA 41606, 93-1 BCA 25,272, at 125,868-89. Appellant's central argument focuses on the side lobe specification. Appellant argues that the side lobe specifications were "ambiguously drafted" by the Government "such that any side lobe measurement attained by the contractor" would satisfy the requirement. (Emphasis supplied). Appellant's 35 Record Submission Memorandum at 14. Appellant argues that when it bid the contract it read the requirement "literally," as a goal to be met by the contractor as closely as possible. Id. Appellant argues that notwithstanding appellant's alleged compliance with the side lobe specification, the Government rejected appellant's antenna for its failure to meet a -20 dB side lobe requirement, and in doing so, constructively changed the contract's side lobe specification. Id. We find appellant's arguments erroneous, and furthermore, keyed to an erroneous assumption, that appellant read the side lobe requirement to be a mere goal. First, we must examine the nature of the solicitation and resulting contract's specifications generally and the side lobe specification specifically, keeping in mind the principle that how the parties act before the onset of the controversy is best evidence of the true intent of the parties. Alvin Ltd. v. United States, 816 F.2d 1562, 1565 (Fed. Cir. 1987); Julius Goldman's Egg City v. United States, 697 F.2d 1051, 1058 (Fed. Cir.), cert. denied, 464 U.S. 814 (1983); Blinderman Construction Co. v. United States, 695 F.2d 552, 558 (Fed. Cir. 1982); Franklin Co. v. United States, 180 Ct. Cl. 666, 671-72 (1967). The solicitation and resulting contract did not direct the contractor how to design the antenna. It specified the objective to be achieved: i.e., a fan beam antenna, with certain required features such as dual polarized feeds, a center operating frequency of 9.340 GHz, and an integrated waveguide feed structure. Finding 12. The contract also contained required technical features, to which the contractor was to have conformed "as nearly as possible." These features included "maximum side lobes" of "<-20 dB" as well as specifications for maximum size, maximum weight and gain. The contract did not direct appellant how to design an antenna that conformed to those specifications; rather, it left the solution of this design problem to the appellant. Finding 13. Such specifications are performance specifications, because they rely on the contractor's ingenuity and skill to solve the problem. Blake Construction v. United States, 987 F.2d 745 (Fed. Cir.); cert. denied, 510 U.S. 963 (1993); Norwood Manufacturing Inc. v. United States, 21 Cl. Ct. 300, 307-08 (1990); Martin J. Simko Construction, Inc. v. United States, 11 Cl. Ct. 257, 268 (1986); see also J. L. Simmons v. United States, 412 F.2d 1360 (Ct. Cl. 1969). The only design limitations were that the antenna have dual polarized feeds and the stated size and weight constraints. Finding 12. Beyond that, whether there was a reflector, the design of the reflector, the type of feeds and the placement of the feeds to minimize side lobes was at the discretion of the contractor. Id. In its proposal in response to the solicitation, appellant reassured respondent that it could produce an antenna "in full compliance to the requirements." Finding 15. Furthermore, it proposed a specific design to meet the specification--two 36 independent feeds illuminating a parabolic cylinder made of fiberglass reinforced plastic. Finding 16. In its proposal, appellant was quite confident that the design would meet the <-20 dB side lobe specification. It stated that a "theoretical" side lobe level of -27 dB was achievable and promised that "side lobes will be below the specified -20 dB" even after anticipating performance degradation due to feed blockage and reflector surface tolerances. Finding 17. In the compliance summary beside the <-20 dB specification, appellant stated, without qualification and in bold capital letters: COMPLY. Finding 18. During contract negotiations, in response to respondent's request for radiation patterns to establish whether appellant's antenna design could meet a <-20 dB side lobe specification, Finding 19, appellant produced radiation patterns from its feeds showing <-20 dB in both the azimuth and elevation planes. Findings 20, 21. Thus, in both its proposal and during contract negotiations, appellant treated the side lobe specification as a requirement, not a goal. The other vendor for this procurement also treated the side lobe specification as a requirement. That vendor, in response to the solicitation, treated the <-20 dB side lobe specification as a requirement and noted that it could beat the requirement by "more than 1 dB." Finding 23. During the attempted contract performance, appellant treated the side lobe specification as a requirement. Without prompting by the Government, slightly over one month after contract award, appellant instituted a change in the feed design to improve on the side lobe performance of the antenna. Finding 30. Appellant ran extensive tests on the reflector to improve the reflector's side lobe performance before June 16, 1994, the date when appellant brought the unsatisfactory side lobe performance of the antenna to the attention of the Government. Finding 34. Appellant, during its attempts to perform the contract after June 16, agreed with respondent's interpretation of the side lobe specification as requiring -20 dB side lobe measurements or measurements close to that number. On June 16, appellant presented radiation patterns showing that the antenna had achieved side lobe measurements from -16.5 dB to -24 dB. Finding 34. In response to those radiation patterns and further discussions with appellant's technical project manager about side lobe problems in the reflector, the Government in mid-July advised appellant that it expected the antenna to consistently produce -20 dB side lobes. Finding 35. Appellant did not then demand an acceptance test on the ground that it had conformed as nearly as possible to the side lobe specification. Instead, appellant, again without demand by the Government, requested (and received) a fourth contract extension to enable it to replace the reflector's fiberglass surface with an aluminum surface, Findings 37 29, 36, and assured the COTR that it could solve the -20 dB side lobe problem. Finding 38. Between November 1994 and January 9, 1995, appellant conducted extensive testing to lower the side lobe measurement. Findings 42, 49. After the failure of the first acceptance test in January 1995, appellant reconfigured the geometric relationship of the antenna feed and antenna reflectors to improve the antenna s side lobe measurements. Finding 58. In short, the efforts appellant made before award to assure respondent that appellant would meet the -20 dB side lobe specification and the efforts appellant made after award to ensure that it could meet the side lobe specification belie appellant's argument that it regarded the contract's side lobe specification as a mere goal, enabling appellant as a matter of contractual right to deliver whatever antenna it was able to cobble together. Appellant tried, and failed, to deliver an antenna that met the -20 dB side lobe specification. The interpretation of the side lobe specification Next, we examine the scope of the requirement. Appellant argues that the side lobe specification was ambiguous and that, under the rule of contra proferentem, it must be construed against the Government. Appellant s Record Submission Memorandum at 14-15. In its post-hearing brief, respondent argues that the side lobe specification is not ambiguous, that it established a ceiling of -20 dB side lobe, and that anything below that number would conform as nearly as possible to less than -20 dB. Respondent s Reply Brief at 2. Alternatively, respondent argues that if the side lobe specification is ambiguous, it is patently so, placing the risk of interpretation on the appellant in the absence of pre-offer inquiry by appellant. In determining whether the phrase conform as nearly as possible to is ambiguous, we must read the contract as a whole, giving meaning to all of its terms and giving its language the plain and ordinary meaning it would be given by a reasonable reader. American Commercial Contractors Inc. v. General Services Administration, GSBCA 11713, 94-3 BCA 26,973, at 134,351. If the language of the contract is ambiguous, we must determine whether the ambiguity is patent. A patent ambiguity is one which is not subtle, hidden or minor. Major omissions, obvious discrepancies and manifest conflicts in contract provisions constitute patent discrepancies. Id.; Community Heating and Plumbing v. Kelso, 987 F.2d 1575, 1578 (Fed. Cir. 1993). In T. Brown Constructors, Inc. v. Pena, 132 F.2d 724, 730-31 (Fed. Cir. 1997), the general requirement that work be done in reasonably close conformity with lines, grades, cross-sections, dimensions and the specific requirement of an eighteen inch rock substrate rendered a road construction contract s subgrading requirement patently ambiguous. 38 A reasonably prudent contractor who is preparing to submit an offer in response to a solicitation should recognize a patent ambiguity as creating a serious problem for contract performance and must ask the Government for clarification before submitting an offer in order to permit the Government to issue any amendments to the solicitation so that the ambiguity is not included in the contract. If an offeror does not seek such clarification before submitting its offer, it will bear the risk of the Government s reasonable interpretation of any patently ambiguous provision. American Commercial Contractors Inc., 94-3 BCA at 134,351. In the context of this specification, we consider the phrase conform as nearly as possible to to be ambiguous. The phrase does not tell the contractor what side lobe level it must achieve. Nor does the phrase state for what level of contractor competence the requirement is written. Is it written for the specific contractor receiving the award, any fabricator who seeks to manufacturer an antenna, or a manufacturer who is highly experienced in antenna manufacture? A firm just starting in the antenna fabricating business, for example, might not be able to come as close to meeting the specification as an experienced manufacturer. Finally, the ordinary meaning of the phrase conform as nearly as possible to implies a leeway or a tolerance. This ordinary meaning comports with the COTR s hearing testimony of a -1 dB tolerance (to -19 dB) in the side lobe measurements if all other specifications were met. Finding 10. The notion of a tolerance above -20 dB comports with respondent s actions during contract performance in scheduling a final acceptance test when appellant advised the Government that further side lobe measurements had achieved side lobe measurements of -20 and -19 dB. Findings 58, 59. We reject respondent s argument in its reply brief that the phrase conform as nearly as possible to in conjunction with the side lobe specification <[less than] -20 dB means -20 dB or less. Respondent s Reply Brief at 2. This construction is not logical. If side lobe measurements were less than -20 dB by any amount, then the measurements would meet the requirement of being less than. There is no numerical state lower than -20 dB that is not less than the number -20 dB.[foot #] 14 ----------- FOOTNOTE BEGINS --------- [foot #] 14 Appellant proffered inconsistent interpretations. As has been discussed, appellant in its record submission memorandum argues that the side lobe specification was a goal, not a requirement. Appellant's Record Submission Memorandum at 14. Appellant s president testified that he regarded the side lobe specification as requiring appellant to come as close to -20 dB side lobe measurements as a reasonable antenna manufacturer could come. Finding 11. Finally, he testified that he assumed the side lobe specification would be amended to provide for a 3 dB tolerance. Finding 53. ----------- FOOTNOTE ENDS ----------- 39 We further conclude that the ambiguity is patent. This was a contract for a precision scientific instrument a high frequency x-band transmitting and receiving antenna. Finding 12. The performance requirements were specific and precise as to maximum squint between differing polarizations, side lobes, gain, and horizontal and vertical polarization beam widths, cross polarization level, power, maximum size, maximum shape, and maximum weight. Id. Further, for the technical specifications (including the side lobe specification), the appellant had to satisfy those specifications with testing at five frequencies. In the antenna industry, to place on top of that precision the open ended escape clause conform as nearly as possible to cries out for pre-offer or pre-award clarification. It cries out for clarification because the antenna fabricator will be governed in its design of the feed and reflector by the performance requirements. Findings 2, 4, 29. Without knowledge of the precise performance to be achieved, an antenna fabricator enters into a fool s errand in attempting any antenna design. In light of this patent ambiguity, appellant was under the duty of inquiry before it submitted its offer, but did not seek clarification. Finding 11. Appellant must therefore accept the Government s reasonable interpretation of the phrase conform as nearly as possible to. That reasonable interpretation is the one proffered by the COTR the specification required the antenna attain side lobe measurements of -20 dB, with allowance for a variation of about 1 dB. As the Board s previous discussion indicates, this was also how the appellant viewed the specification during the offering phases and performance phases of the contract. Findings 15, 17, 20, 21, 30, 35, 38. A party cannot after a controversy has arisen arbitrarily abandon the contract interpretations it acted on to the other s knowledge when their relationships were harmonious. J. A. Maurer, Inc. v. United States, 485 F.2d 588, 594 (Ct. Cl. 1973) (two-step procurement contract). This is particularly true, where, as here, appellant s representations that it could design an antenna meeting the -20 dB side lobe specification were the major factor in the Government s granting appellant numerous extensions of the delivery date. See, e.g., Findings 33, 36, 38, 44, 49. Additionally, the side lobe requirement was a performance specification. The Government contracted with appellant because it thought that appellant possessed the expertise to design and fabricate an antenna that met the Government s performance requirements, including the side lobe specification. Findings 13, 16, 17-22. Appellant stated in its initial proposal and in response to discussions that it could meet or beat the -20 dB side lobe specification. Id. Appellant s proposal was made part of the contract. Finding 24. Consequently, the appellant warranted that it could comply with at least a -20 dB side lobe specification: 40 The rule applicable here, we believe is, if the contractor, from a stance of superior expertise, asks for and obtains leave to perform according to methods defined and stated by him, he impliedly warrants that he is able to overcome the technical difficulties inherent in the project, whatever they are. Noslo Engineering Corporation, ASBCA 27120, 86-3 BCA 19,168, at 96,899 (citing Maurer, 485 F.2d at 595. Propriety of default termination The next issue is whether the Government correctly rejected the antenna after the acceptance test of April 19 for failure to meet the side lobe specification as properly construed. [foot #] 15 The evidence is ample that the Government had adequate grounds for rejection of the antenna and the subsequent default termination. On the first day of the test, the feed guide was not secured to the antenna structure as required. Finding 60. Even after all components, save for the boresight scope, were hastily assembled at the COTR s request, the side lobe measurements at the elevation plane cut were -19 dB, but the squint results did not conform to specification. Finding 61. After addition of the boresight scope, required by modification 0004, Finding 39, the side lobe measurements were made worse by 2 dB, a significant degradation of anticipated performance. Findings 62, 63. Later tests showed worse side lobe measurements, some as high as -14, -17, and -9 dB. Finding 63. Appellant then abandoned the acceptance test. Finding 65. The contracting officer, in the absence of excusable cause, acted ----------- FOOTNOTE BEGINS --------- [foot #] 15 In its record submission memorandum, appellant argues that the antenna was tested on May 23, 1994, and ready for delivery on May 27, with the exception of "pinning it together." Appellant's Record Submission Memorandum at 8. We disagree. Before the Government would accept and take delivery of the antenna, the contract required a successful acceptance test witnessed by the COTR. Finding 14. The testing that was done between May 19 and May 23 was a test of the antenna's feeds alone, not of a fully assembled antenna. As admitted by appellant's president, not every component of the antenna had been tested at that time. Finding 32. The testing that occurred on those dates was for the purpose of substituting the feeds and was an incomplete test, and the COTR was not present to witness it. Id. In any event, when examining the propriety of the ___ default termination, since appellant and respondent extended the delivery date to May 2, 1995, through modification 0007, the relevant issue is whether the antenna assembled for the second acceptance test in April 1995 was properly rejected for failure to satisfy the side lobe specification or any other specification of the contract. ----------- FOOTNOTE ENDS ----------- 41 properly in terminating the antenna contract for default because the antenna failed to meet the side lobe and squint specifications of the contract during the on-site acceptance test. Excusable cause The standard form default clause, read literally, provides that only excess costs are excused for causes beyond the control and without the fault or negligence of the Contractor. Finding 14. However, the FAR in effect during the time of this contract also provides that such cause defeats the default termination itself, with the default being treated as a termination for convenience. 48 CFR 49.401(b) (1994); see General Cutlery v. General Services Administration, GSBCA 13154, 96-1 BCA 27,957, at 139,652; Wild Wood Associates, AGBCA 96-150-3, 97-2 BCA 29,263, at 145,588. Substantial compliance Appellant, relying on Radiation Technology Inc. v. United States, 366 F.2d 1003 (Ct. Cl. 1966), argues that appellant substantially complied with the contract requirements. In that case, the Court recognized that substantial compliance would defeat a default termination if the contractor [could] demonstrate that he had reasonable grounds to believe that his delivery would conform to contract requirements. The Court also stated that where extensive repair or readjustment is necessary in order to produce a fully operable product, substantial performance cannot be found and summary termination would be warranted. Radiation Technology Inc., 366 F.2d at 1006. The substantial compliance doctrine of Radiation Technology applies when the defects are minor and are susceptible to correction within a reasonable time. The substantial compliance doctrine does not apply to defects which affect both the efficiency and inherent functioning of the item. Technics EMS, Inc., GSBCA 6679-COM, 84-1 BCA 17,060, at 84,962-63; United Detection Systems, Inc., ASBCA 46603, 98-1 BCA 29,368; reconsideration denied, 98-1 BCA 29,369. Here the primary defect found by respondent was the appellant s failure to come close to meeting the side lobe specifications. The antenna also failed to meet the squint specifications. Findings 63, 66. Both defects would adversely affect the efficiency and functioning of the antenna. The defects were not easily correctable by appellant; appellant spent from March 1994 until April 1995 trying to obtain conforming side lobe measurements. See supra pp. 32-33, and findings referenced. 42 Superior knowledge Appellant claims that the Government withheld (1) information in the article by D.G. Kiely, see Finding 57, and (2) its superior knowledge of the difficulties encountered by STR in meeting a <-20 dB fan beam specification. As to the article, appellant argues: Based upon the information it obtained from said article, specifically employing an offset feed design in its antenna, Appellant was able to achieve immediate improvement on its side lobe measurements. Had the Government provided appellant with a copy of this article in a timely manner, appellant wold have been able to achieve consistent side lobes as near as possible to -20 dB earlier in its performance, thereby avoiding a significant amount of extra costs. Appellant s Record Submission Memorandum at 20 (references to proposed findings of fact omitted). As to the difficulties respondent had with its previous contractor, STR, appellant argues: During performance of its contract with the Government, STR encountered extreme difficulties in achieving -20 dB side lobes. Ultimately the Government terminated STR s contract for default for its failure to achieve - 20 dB side lobes. As a direct result thereof, the Government modified the specifications for appellant s contract to require only a goal of -20 dB side lobes. Notwithstanding this fact, the Government failed to inform appellant of this information at the time it bid the contract or any time thereafter. Had appellant been provided this information it would have proceeded in a different manner in designing and manufacturing its fan beam antenna. Appellant s Record Submission Memorandum at 18-90 (references to proposed findings of fact omitted). To establish superior knowledge, the appellant must show that: (1) a contractor undertakes to perform without vital knowledge of a fact that affects performance costs or duration; (2) the Government was aware the contractor had no knowledge of and had no reason to obtain such information; (3) any contract specification supplied misled the contractor, or did not put it on notice to inquire; and (4) the Government failed to provide the relevant information. Petrochem Services Inc. v. United States, 837 F.2d 1076, 1079 (Fed. Cir. 1988); SMC Information Systems, Inc. v. General Services Administration, GSBCA 9371, 93- 1 BCA 25,485. 43 However, a mere governmental failure to disclose each and every bit of information is not, in and of itself, enough to serve as a basis for contractor recovery. Piasecki Aircraft Corp. v. United States, 667 F.2d 50, 59 (Ct. Cl. 1981). The Government has no duty to disclose information that is readily available from other sources or that is not vital to the contractor s performance. Benju Corp., ASBCA 43648, et al., 97-2 BCA 29,274, aff d, 178 F.3d 1312 (Fed. Cir. 1999) (table). The superior knowledge doctrine is not applicable here because the information in the article was not Government information; it was information in the public engineering domain equally available to appellant s personnel as to the Government contracting personnel. The article was, in fact, used by both sides as a reference document. Finding 56. There is no evidence that respondent s personnel were aware that appellant did not or could not obtain the information in the article. When appellant mentioned the article and asked for a copy, respondent's COTR immediately sent it to appellant. Id. There is no evidence that the specification misled the contractor or that the specification did not put the contractor on notice to inquire about the information in the article. In fact, the article and the specification are consistent since the article presumes that parabolic cylinder antennas can be designed with side lobes of - 22 dB, Finding 57, and the specification requires performance of <-20 dB or a performance reasonably close to that figure. Finally, there is no evidence that appellant s difficulties in meeting the <-20 dB side lobe specification related in any way to the information in the missing article. Appellant s difficulties stemmed from its poor quality control of the fiberglass reflector manufacturing process, Findings 28-29, its design error in choosing the Hogg horn feed, resulting in unanticipatedly high side lobe measurements, Finding 30, and its inability to correct the deficiencies in the fiberglass reflector, necessitating a change to aluminum. Finding 36. Later in contract performance, when appellant received the article, it misapplied its lessons, tilting only the antenna s feed, not the antenna s reflector and the feed, as the article had suggested. Findings 57, 60. Appellant has not made a showing that the Government should have advised appellant of STR s difficulties in meeting its contract. Had appellant, through serendipitous engineering design, produced the same antenna design as STR, then appellant might have ground for complaint as to the Government s alleged superior knowledge. The designs of the two antennas, however, differed significantly in number of feeds, feed design and reflector design. Findings 5, 16. Appellant has not shown that respondent s knowledge of STR s difficulty would have made a difference in appellant s performance. Reflectone, ASBCA 42363, 98-1 BCA 147,832. The statement in appellant s record 44 submission memorandum that had appellant been provided this information it would have proceeded in a different manner in designing and manufacturing its fan beam antenna is not supported by the record. The most that appellant would have gained is knowledge of the history behind the contract s phrase conform as nearly as possible to. Commercial impracticability Appellant has the burden of establishing commercial impracticability. Wilson Construction Inc., AGBCA 89-178-1, 92-2 BCA 24,798, at 123,717. The law excuses performance where the attendant costs of performance bespeak commercial senselessness. Ace Services Inc. v. General Services Administration, GSBCA 11711, et al., 93-2 BCA 25,848, at 128,619. Commercial impracticability does not mean impracticality. Id. Mere increased expense is not proof of commercial impracticability; there must be a showing that the work was beyond the contemplation of the parties when they entered into the bargain. Wilson Construction, 92-2 BCA at 123,717. The appellant must also show that its difficulties were not due to its own subjective fault. Professional Printing of Kansas, GPO BCA 2-93 (May 19, 1995); GLR Constructors, ENG BCA 6021, 94-3 BCA 27,216, at 135,653. Appellant has not shown commercial impracticability. When appellant offered the antenna it did not view the specifications as impracticable. The Government relied on appellant s expertise in developing a satisfactory antenna design. Findings 13, 19. Appellant offered repeated assurances of its ability to comply with the <-20 dB specification. Findings 15-18, 20. The side lobe specification was a performance specification, and appellant bears the risk of non-compliance, particularly given its repeated pre-award assurance it would be able to comply. Bethlehem Corp. v. United States, 462 F.2d 1400, 1403-04 (Ct. Cl. 1972);[foot #] 16 Noslo Engineering Corp., 86-3 BCA at 96,899 (in two-step procurement contract, contractor hired to solve a technological problem using expertise that Government lacks and who proposes a solution to that problem assumes risk that solution might not be possible). During contract performance appellant did not view the specification as impracticable. Well into appellant s attempted performance of the contract, just before the parties agreed to ----------- FOOTNOTE BEGINS --------- [foot #] 16 Bethlehem involved a claim of impossibility in a _________ contract for supply of an environmental test chamber. The contractor had given the Government pre-bid assurances that the performance requirements were attainable. The Court rejected the claim of impossibility, concluding that the contractor had assumed the risk by agreeing to the performance specifications. ----------- FOOTNOTE ENDS ----------- 45 contract modification 0004, appellant assured respondent that it could solve the dB problem. Finding 38. In November 1994, appellant reported a significant breakthrough that would enable it to quickly meet the specification. Finding 44. Beyond all of that, appellant has not shown that its difficulties were due to impracticable specifications. As indicated in our findings and our previous discussion concerning superior knowledge, we conclude that appellant s difficulties were of its own making. False certification Respondent suggests that the contract is subject to termination for default for appellant s false certification that it had not, within a three-year period preceding its offer for the fan beam antenna, had one or more contracts terminated for default by any Federal agency. Respondent s Brief at 55.[foot #] 17 Although the respondent s termination for default letter did not rely on the false certification, respondent argues that it is immaterial that the additional ground for termination was not known to the Government at the time it terminated the contract. Id. Appellant states that its president did not knowingly falsely certify. It argues that the Government waived the right to default terminate the contract on the false certification ground because the contracting officer knew of the false certification either before the award of the contract, or at the latest, two months before the default termination. Appellant s Record Submission Memorandum at 29-30; Appellant s Reply Memorandum at 10. The Government (indeed the very agency that had awarded appellant the fan beam antenna contract) had terminated for default a previous contract with appellant within a three- year period preceding appellant s offer for the fan beam antenna contract. Finding 69. For the reasons stated in findings 70-74, we conclude that appellant s president knowingly falsely certified to the contrary. We will belabor the point no further, but examine the Government s response to the false certification. We do not agree with appellant that the contracting officer knew of the false certification before award of the fan beam antenna contract. We conclude that he knew of the false certification only in mid-March 1995, after a conversation with Ms. Scherer. Finding 75. In mid-March appellant was expending efforts to meet ----------- FOOTNOTE BEGINS --------- [foot #] 17 Earlier, we denied respondent s motion for summary relief on this ground of default because of the existence of disputed facts making summary relief inappropriate. Technical _________ Systems Associates Inc., GSBCA 13277-COM, 97-2 BCA 29,015. _______________________ ----------- FOOTNOTE ENDS ----------- 46 the side lobe specification and the definitive acceptance test was one month away. We disagree with the Government s statement that the false certification was not known to the Government at the time it terminated the fan beam antenna contract. The contracting officer knew of the false certification about one month before the acceptance test and about two months before the default termination. A contractor which knowing falsely certifies that it had no prior default terminations within the specified time frame has committed a serious material and ethical breach subjecting its existing contract to termination for default. Spread Information Sciences Inc., ASBCA 48438, 96-1 BCA 27,996, at 139,834; National Medical Staffing, Inc., DOT CAB 2568, 95-1 BCA 27,341, at 136,257; cf. RMTC Systems Inc v. Department of the Air Force, GSBCA 12346-P, 93-3 BCA 26,046 (in Brooks Act protest, false certification disqualifies offeror for award). Here, however, the Government did not act to immediately terminate the contract for default. Instead, it let appellant spend time, effort, and money in attempting to perform. Under these circumstances, the Government has waived its right to rely on the false certification as a ground for the default termination. See American Contractors v. General Services Administration, GSBCA 10363, 92-2 BCA 24,899, at 124,176; DeVito v. United States, 413 F.2d 1147 (1969).[foot #] 18 Claim for equitable adjustment Appellant s claim for equitable adjustment is premised on the idea that there was a constructive change to the contract which made appellant s performance more expensive. Regardless of that issue, appellant faces an insurmountable hurdle. Appellant may not recover an equitable adjustment in a properly defaulted supply contract when respondent received no benefit from the contractor s effort. We addressed the issue in Big Star Testing Co., GSBCA 5793, 81-2 BCA 15,335. That case involved a contract for the supply of oxygen gas to be used by aviators, quaintly called Aviators Breathing Oxygen (ABO). Early in contract performance, a Government inspector had ordered the contractor to incur the expense of certifying a test facility at its plant, although certification was not possible. The Government terminated the contract for, among other reasons, defective ABO cylinders, improper cylinder handling practices, ----------- FOOTNOTE BEGINS --------- [foot #] 18 The certification in this contract, as does the certification required by the current FAR at 48 CFR 52.209-5(e), provides that the contracting officer may terminate a contract _____________ for default for false certification. Finding 14. The certification gives the contracting officer the right, (but not the obligation) to terminate a contract for false certification. See K Services, ASBCA 41791, 92-1 BCA 24,568 at 122,575. ___ __________ ----------- FOOTNOTE ENDS ----------- 47 and lack of certification. The Board concluded that the Government correctly terminated the contractor, but erroneously forced the contractor to go to the expense of certifying test equipment at its plant, when it had certified facilities elsewhere which it could have used to perform the testing requirements of the contract. The Board, relying on Laka Tool and Stamping Co. v. United States, 650 F.2d 270 (Ct. Cl. 1981), held that an upward adjustment in the contract price would be appropriate to defray the excess reprocurement costs as equitable compensation for the contractor costs expended on the unnecessary plant certification. The Board also ruled: In a case such as this one, such a retrospective adjustment to the contract price does not alter appellant s responsibility for the default, nor does it entitle appellant to any relief from any of the costs appellant incurred in attempting to perform the contract. Appellant inexcusably failed to perform any part of the contract; it delivered nothing and it is to be paid nothing, regardless of what the contract price is. Big Star Testing Co., 81-2 BCA at 75,941. Appellant s claim for equitable adjustment must be denied, since in this matter all the alleged costs were related to appellant s unsuccessful attempt to produce the antenna. Finding 30. Decision For the reasons stated above, the appeals in GSBCA 13277-COM and GSBCA 14538-COM are DENIED. _________________________ ANTHONY S. BORWICK Board Judge We concur: _______________________________ ________________________________ MARTHA H. DeGRAFF MARY ELLEN COSTER WILLIAMS Board Judge Board Judge