concurring in part and dissenting in part.
I concur in the majority opinion except insofar as this court is affirming the district court’s determination that Ashbrook was excused from contractual performance on the ground of commercial impracticability. I respectfully dissent from that portion of the opinion.
In final analysis this is simply a case where a subcontractor apparently anxious to secure a contract, although knowing that he could not meet all of the requirements of that contract, nevertheless was willing to take a chance that it could vary the terms. In this case the effort was not successful and Ashbrook should also be responsible for damages to Waldinger.
The majority opinion accepts the district court’s findings of fact as being not clearly erroneous. I cannot agree. Thus a finding that Ashbrook did not bid the project with the realization it could not meet the specifications simply is not supported by the record. Further, it is not clear to me whether there was any evidence in the trial that Ashbrook relied upon the EPA’s requirements that specifications foster competition or whether this is merely a post hoc argument advanced by Ashbrook after it found itself in a trial. Ashbrook may have relied upon its experience that specific mechanical subsystems are ordinarily waived if a supplier can demonstrate that its equipment can meet performance specifications but here Ashbrook had no basis for calling that experience into play. There was nothing in the specifications authorizing an “equal” substitute. I am at a loss to find support for the district court’s finding that Ashbrook could not have known *793that Dietz would interpret its specification in such a way as to require Ashbrook to manufacture a Carter machine.
On the reverse side of the purchase orders, at the top of the page in capital letters, Ashbrook was admonished that “SELLER MUST INDICATE IN WRITING THE SPECIFIC EXCEPTIONS, IF ANY, TO THE TERMS AND CONDITIONS OF THIS PURCHASE ORDER.” Ashbrook executed the purchase order as written. No exceptions to the purchase order were taken by Ashbrook. I fail to comprehend why Ashbrook did not here assume a “greater obligation.” The plain situation was that there was an unconditional obligation to Waldinger, under the circumstances and the contract documents, to provide the materials necessary to satisfy the specification requirements to the approval of the engineer. Ashbrook knew at the time it signed the Purchase Orders that the Engineer had expressly not approved acceptability of its 1-V machine to satisfy the performance specifications and knew its subsystem parts were sufficiently different that a waiver of the specifications by the engineer on six separate items would be required. Ashbrook admittedly made the business decision to bid the project under those circumstances, without exculpatory language in the contract. Its decision to do so under those known contingencies was not in accord with custom in the industry, which according to the evidence would be to submit a bid identifying your equipment as an “or equal.”
While I regard § 2-615 as not being applicable, even in the event it were, a person seeking its shelter must establish that performance was “impracticable.” In Neal-Cooper Grain Co. v. Texas Gulf Sulphur Co., 508 F.2d 283 (7th Cir.1974), this court stated in denying a defense of commercial impracticability:
The fact that performance has become economically burdensome or unattractive is not sufficient for performance to be excused. Id. at 293.
We will not allow a party to a contract to escape a bad bargain merely because it is burdensome. After one party has entered a contract for supply, he ceases to look for other sources and does not enter other contracts. Id. at 294.
Further, Ashbrook has completely failed to prove that its loss if it had complied with the specification would have been excessive or unreasonable. The district court properly did not find this to be the case. In applying Section 2-615 to the circumstances of a case, the courts have uniformly held that the specific contingency which occurred need not have been contemplated but only that the occurrence be in some degree forseeable. See, e.g., Bende & Sons, Inc. v. Crown Recreation, Inc., 548 F.Supp. 1018 (E.D.N.Y.1982), aff'd without opinion, 722 F.2d 727 (2d Cir.1983).
In the present case, refusal of the engineer to agree to waive all or part of the mechanical specifications in interpreting compliance with the project specifications, could have been foreseen as a distinct possibility that would affect performance.
Ashbrook contends it is excused from performance because it did not obtain the expected performance from the Engineer. Ashbrook, however, was aware of the fact that its desired performance of the contract would be possible only to the extent that it was able to obtain the consent or cooperation of the Engineer.
An agreement which cannot be performed without the consent or cooperation of a third-party is not excused by reason of the inability of the promisor to obtain such consent or cooperation. St. Paul Dredging Company v. State, 259 Minn. 398, 107 N.W.2d 717 (1961); Morin Bldg. Products Co. v. Volk Const., Inc., 500 F.Supp. 82 (D.Mont.1980); and Security Sewage Equipment Co. v. McFerren, 14 Ohio St.2d 251, 237 N.E.2d 898 (Ohio 1968).
Waldinger bargained with Ashbrook to receive sludge dewatering equipment which would meet the specifications and receive the Engineer’s approval, without restriction or limitation as to source of supply. Whether the necessary equipment was manufactured by Ashbrook in whole or in part or by other suppliers was of no conse*794quence to Waldinger. It offered that contract in the form of two purchase orders to Ashbrook. Ashbrook accepted the contract on those terms without reservation or exception.
Ashbrook contends performance was impossible because the equipment required by the engineer in satisfaction of the specifications could not (in Ashbrook’s opinion) have performed and, therefore, Ashbrook would have become subject to those provisions of the contract which required Ashbrook to repair or replace equipment which did not satisfy the performance specifications. The law of Illinois is clearly to the contrary. If Ashbrook had supplied the equipment under its approved drawings, and that equipment did not satisfy the performance specifications by reason of the fact that the approved and specified equipment being supplied could not meet the performance specifications, as contended by Ash-brook, then Ashbrook would be excused from operation of the penalty provisions. Bates & Rogers Const. Corp. v. North Shore Sanitary Dist., 92 Ill.App.3d 90, 94, 47 Ill.Dec. 158, 162, 414 N.E.2d 1274, 1278 (1980). In W.H. Lyman Const. Co. v. Village of Gurnee, 84 Ill.App.3d 28, 35, 38 Ill.Dec. 721, 727, 403 N.E.2d 1325, 1331 (1980), a clause under which the contractor would be held responsible for suitability of the materials supplied in accordance with the specifications was expressly negated by the Court. Id. at 37, 403 N.E.2d at 1332.
Regardless of the ultimate allocation of responsibility between Ashbrook and Dietz, Ashbrook, in my opinion, should be held accountable to Waldinger under the terms of its contract with Waldinger.