Consolidated Diesel Electric Co. v. United States

Davis, Judge,

concurring. Cowen, Chief Judge, joins in the concurring opinion of Judge Davis and the opinion of Judge Kashiwa.

I do not disagree with the demonstration in the court’s opinion that plaintiff retained the option to supply Allis-Chalmers engines, and therefore I join in that opinion. I would like, however, to expose an additional ground for reaching the same result.

Even if plaintiff was required by its contract to furnish Caterpillar engines, the record shows (and the Board of Contract Appeals found) that the contracting officer was entirely satisfied with the Allis-Chalmers engine except for the price reduction offered by plaintiff for the substitution of the latter engine. The plaintiff countered that it was willing to abide by the equitable adjustment to be determined under the Disputes clause. The Board ruled that “regardless of the prudence of such action” it was contractually permissible for the contracting officer to refuse to leave for later determination the amount of the reduction in the contract price. I do not *559think, however, that, where, as here, a procuring agency is fully satisfied with the qualities, workmanship, durability, etc. of a substituted product, it can reject the substitution simply because the price reduction offered by the contractor is in its view too small. The mechanism of the Changes and Disputes clauses provides a means for resolving such a controversy solely over money. That mechanism should have been used when, as this record makes clear, price was the only matter displeasing to the Government.

In the circumstances of this case, I believe that this alternative position would lead to the same monetary result as that set forth in the court’s opinion.