concurring.
I agree with the result reached by the majority because the instant case is not meaningfully distinguishable from Victory, a precedential decision by which we are bound. In the absence of this precedent, however, I would have reversed the denial of the government’s request for an equitable adjustment under the VEQ clause because I do not agree that the “plain meaning” or “express language” of the clause refers to a change in costs per unit.
The contractor and the government made a bargain respecting a specific estimated quantity, subject to a 15% variation above or below that amount. Anything beyond that is open to equitable adjustment. A change in costs due solely to that variation means the costs of raw material, labor, and other costs incurred solely by the variation, and the equitable nature of the adjustment requires a reasonable profit. Thus, if we were writing on a clean slate, the VEQ clause should be interpreted to require a determination of the net increase or decrease in total cost resulting from the variation, rather than a change in unit cost.
The parties did not bargain for, nor does an equitable adjustment permit, a windfall such as can occur under Victory or the majority’s independent interpretation of the clause. See, e.g., Shannon v. Clement-Mtarri Cos., No. 93-1268, 11 F.2d 1072 (Fed.Cir. Nov. 4, 1993) (nonpreeedential) ($360/unit contract price awarded despite $15.09/unit cost for excess units). I therefore would affirm only on the basis of the precedential authority of Victory.