dissenting.
I respectfully dissent. This is not so much a problem of legal interpretation as it is of common sense. The contract at issue involved repainting walls in old barracks and office- units at Fort Gordon, Georgia. Likely enough there was already more paint on the walls than there was wall. The Corps of Engineers divided the project *1574into seven contracts “due to funding requirements,” which in some circles means to avoid a dollar total that would require higher review and authority. In this case, such review might have avoided the whole problem.
The contract — written in usual bureau-cratese — included a complex paint schedule apparently better suited for new construction than previously painted buildings. It generally called for the application of three coats, the first coat specified to be a primer, the second and third were finish coats. The schedule was based on the construction material of the surface to be painted. Nothing in the schedule accounted for the fact that the walls had previously been painted, yet, as anyone who has ever painted a living room wall knows, it is not a good idea to put primer over preexisting finish coats, or latex based paint over acrylic or oil paint. It is not only a waste of money, but may contribute to early peeling and deterioration of subsequently applied coats.
The painting subcontractor, Rembrant, Inc., in keeping with his name, if not his spelling, knew a little about painting and conformed his painting activities to the wall surfaces, not the schedule. Rem-brant’s approach came to naught when a wall previously painted purple — there is no accounting for taste — was painted over but the purple showed through. It was then that the Government’s contracting officer (CO) discovered that Rembrant was not adhering religiously to the paint schedule. Instead of inspecting the work and requiring additional coats where needed, the CO insisted on absolute fidelity to the schedule whether warranted by the condition of the work or not.
The contract’s omissions clause, addressed in part II, B. of the majority opinion, requires the contractor to perform “omitted or misdescribed details of the work ... as if fully and correctly set forth and described....” The Government by this clause claims protection from its own mistakes; it is only fair that on these facts the same clause protects the contractor who bids and performs on the basis of common sense, and is then told that to ignore the misdescribed details is wrong. That the CO knew there was a problem with the paint schedule became obvious during oral argument. Discussion revealed that the CO at first insisted on strict adherence to the schedule and total disregard for the type of paint already on the surface, which would have required putting a layer of latex paint over an acrylic layer. After being convinced that such a combination would result in an inferior finished product, the CO did waive that part of the requirement.1
This is not a case of statutory construction, in which we owe deference to the will of Congress. This is a case of a contract poorly drafted by the Government, administered by a mentality more rigid than the walls being painted, and enforced by a Contract Appeals Board, over a strong dissent, that acted as if there was no context to the contract.
By its approval of the Appeals Board’s mechanical reading of the contract, the majority creates a negative incentive for the Government to invest resources in getting its contracts right in the first instance, and diverts resources into contract performance which even the Government does not want, or which at best produces marginal benefits compared to the costs incurred. I would hold enforcement of the literal terms of this contract under these circumstances unconscionable and reverse the decision for the Government. If the Government wants to do foolish things, it should pay for its foolishness.
. Presumably, if Rembrant adhered to the schedule the paint would not adhere to the wall, and Rembrant would be required to repair any peeling paint at its own expense.