Full opinion text
ON PLAINTIFF’S MOTION AND DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT PER CURIAM: This case was referred to Trial Commissioner David Schwartz with directions to prepare and file his opinion on the issues of plaintiff’s motion and defendant’s cross-motion for summary judgment under the order of reference and Rule 99(c) [since September 1,1969, Rule 166(c)]. The commissioner has done so in an opinion and report filed on January 10, 1969, wherein such facts as are necessary to the opinion are set forth. Defendant filed a request for review by the court and plaintiff urged that the court not adopt Section II of the commissioner’s report in which he concludes that the Maritime Subsidy Board acted properly in dismissing its administrative claim grounded on Article 7.(d) of the contract. The case has been submitted to the court on oral argument of counsel and the briefs of the parties. The court agrees that there was no administrative remedy for plaintiff’s claim and that the hearing board had no jurisdiction of this breach-of-contract claim. On that basis there is no question that the court can decide all the issues, legal or factual, for itself. The parties having agreed that the case shall be decided on the administrative record, the court can deal with that record without deference to the administrative decision. See Clack v. United States, 395 F.2d 773, 779, 184 Ct.Cl. 40, 49-50 (1968). In any event, the court also agrees that the Federal Maritime Board committed legal errors in failing to apply the proper criteria in determining whether the defendant had employed all reasonable effort and reasonable diligence to supply plaintiff with working plans on the specified dates, and that under the proper legal standards the only possible conclusion is that reached by the trial commissioner. Since the court agrees with the commissioner's opinion and recommended conclusion, as hereinafter set forth, it hereby adopts the same as the basis for its judgment in this case together with the foregoing paragraph. Therefore, plaintiff’s motion for summary judgment is granted, on liability alone, defendant’s cross-motion is denied and proceedings on damages and on any remaining issues will continue after an interval to afford the parties the opportunity to reach agreement, pursuant to the provisions of Rule 131(c). OPINION OF COMMISSIONER SCHWARTZ, Commissioner: The cross-motions for summary judgment in this suit for breach of contract raise issues of the reasonableness of the efforts and diligence of the Federal Maritime Board in furnishing plaintiff National Steel and Shipbuilding Corporation (“Nassco”) with the working plans for two cargo ships built by plaintiff under a contract. I By contract No. FMB-66, dated February 13,1958, the Federal Maritime Board (“FMB”) let to plaintiff the construction of two single screw cargo vessels for a fixed price of $23,509,000. Another contract of the same date, No. FMB-65, let the building of two identical vessels to another shipyard, New York Shipbuilding Corporation (“New York” or “New York Ship”). Each shipbuilder was a party only to its contract with the FMB. New York Ship is not a party to this case. The four ships were built for owner" ship by American Export Lines, Inc. pursuant to a program for the replacement of cargo ships under Title Y of the Merchant Marine Act of 1936, as amended, 49 Stat. 1995, as amended, 46 U.S.C. § 1151 et seq. American Export, a party to both contracts, received a construction-differential subsidy under Sections 501 and 504 of the Act, 49 Stat. 1995, 1998, as amended, 46 U.S.C. §§ 1151, 1154. It is not a party to this case. The contract had been advertised as one for four vessels, with notice that the FMB might split the work between two or more bidders and elect to furnish one of them with the necessary working plans. Plaintiff in its bid accordingly provided for a reduction of $720,000 in its bid price in the event the FMB furnished it with the plans. New York Ship’s bid provided for - a decrease of $10,000 in the same event. The FMB chose to split the contract between the yards, accept plaintiff’s reduction in price and furnish it with the working plans. The award of two ships to plaintiff, a new and small shipyard, was made with the approval of The President, in the interest of developing shipyard capacity useful in national defense, pursuant to authority contained in Section 502(f) of the Act, 49 Stat. 1996, as amended, 46 U.S.C. § 1152(f). Plaintiff performed its contract and delivered its two vessels on contract delivery dates. The controversy concerns increased costs incurred by it, allegedly from the breach by the FMB of its obligation under the contract to employ all reasonable effort and diligence to supply plaintiff with some 650 working plans, for use in the construction of the ships, on dates specified in the contract. These plans were prepared by New York Ship and furnished to the FMB pursuant to New York Ship’s contract with the FMB, and then pursuant to the FMB-Nassco contract supplied by the FMB to plaintiff. Article I of the Special Provisions of the FMB-Nassco contract (appendix hereto) provides that the contractor shall build, complete and deliver the vessels, and adds in parenthesis: “(with the contractor receiving from the Board re-produeibles of all working plans, purchase specifications and purchase orders * * *).” Addendum 3 to the specifications, a part of the contract, in its first paragraph states in plainer language the obligation to furnish Nassco with working plans (appendix hereto): The Owner and the Board shall furnish approved reproducibles of (1) complete working plans, (2) complete purchase specifications, and (3) complete purchase orders. Working plans are detailed drawings for use in construction, and the “purchase specifications” and “purchase orders” were the procurement documents and data for equipment which was to be identical in the four ships. The term “working plans” is used in the record and herein to include both the working drawings and the procurement papers. “Reproducibles,” as the word implies, are plans processed so as to be capable of reproduction. “Approved reproducibles” were working plans approved, as was required, by the J. J. Henry Co., design agents for the American Export Lines, and by the FMB, and, in the case of various plans, by agencies with an interest in the particular feature of the vessel, such as the Coast Guard, the Public Health Service, the American Bureau of Shipping and insurers. Although the agreement by the FMB (and the Owner, whose liability is not raised) to supply working plans to the plaintiff was unqualified, the agreement did not extend to a guarantee that plans would be supplied by specific dates. Rather, the FMB (and not the Owner) agreed, in the Addendum, to exercise all reasonable effort and diligence to supply them on specific dates (appendix hereto) : The Federal Maritime Board shall employ all reasonable effort and reasonable diligence to supply to the Contractor working plans on the dates set forth in the Plan Schedules entitled “Design C3-S-38a Plan Schedules, Hull-Machinery-Electrical, 2 January 1958” which form a part hereof. The three schedules attached to the contract listed, with dates, each of the some 650 hull, machinery and piping and other working plans to be supplied to Nassco. Identical schedules were attached to the FMB’s contract with New York Ship. As in the FMB-Nassco contract, New York in its contract with the FMB did not agree to furnish the plans to the FMB by the dates in the attached schedules, or by any other firm dates, but only to “employ all reasonable effort and reasonable diligence” to submit the working plans to the Board and the Owner for approval on the scheduled dates. Since the dates in the schedules attached to both contracts were identical, under one contract Nassco was entitled to the FMB’s efforts to supply approved plans on the same dates as, under the second contract, if all went well, New York would submit the plans for approval. In claiming delays in the plans and insufficient effort by the FMB to supply them on time, however, plaintiff has not contended for the literal dates in the schedules attached to its contract. Plaintiff’s claim is based on the scheduled dates, extended by a period of time for approval, which has been agreed by the parties. The FMB’s formal procedure under its contract with New York Ship contemplated a time period for approval of 18 days after submission of the plan. In practice, approvals often took much longer, and the parties to this case have agreed that they would allow 70 days or 10 weeks for approval, and thereafter begin the computation of any delay in the supply of the plan. This has been done in the stipulation in the record of the amount of the delay in the supply of some 150 plans whose lateness is claimed to have occasioned increased costs. The FMB’s contracts with the two shipyards created a three-party arrangement in which (except for a Nassco-New York side agreement mentioned below) only the FMB had ties with the other two parties. Under one contract, New York would prepare and supply working plans to the FMB, employ all reasonable effort and diligence to furnish them at the scheduled dates, without obligation to furnish them at those dates, and build two vessels. Under the other contract, plaintiff Nassco would build two vessels, from working plans to be supplied by the FMB, and the FMB would employ all reasonable effort and diligence to furnish the plans at the scheduled dates, without obligation to furnish them at those dates. By a side agreement, Nassco paid New York $2,000 for a set of blueprint copies of all the working plans as they were prepared, prior to submission for approval. After approval, a blueprint, amended as might be required in the course of approval, would be put into reproducible form, furnished by New York to the FMB under the New York-FMB contract, and then supplied by the FMB to Nassco under the Nassco-FMB contract. The arrangement by which neither New York nor the FMB were obligated to furnish plans on specified dates but only to make efforts to do so, of course created the possibility that the plans would be late and the charge made that all reasonable effort and diligence had not been employed. Just this occurred. The working plans were late, and admittedly plaintiff thereby suffered increased costs, claimed to be something over a million dollars. The determination of the amount of damages has been postponed and only liability is now in issue. The major issue is whether the FMB met its obligation to Nassco to employ all reasonable effort and diligence to supply the plans at the scheduled dates. A second issue is whether, if such a breach of this obligation took place, the contract itself gives authority for reimbursement of Nassco’s increased costs and thus for administrative relief under the disputes clause in the contract, or whether only breach-of-contract damages may be recovered in a judicial forum. The issues for decision concern only the contract between the FMB and Nass-co. New York Ship’s efforts and diligence under the FMB-New York contract are not in issue, except as they bear on whether the FMB met its obligation of effort and diligence to Nasseo under the FMB-Nassco contract. As noted, New York is not a party to the case, no question of its liability is involved, and no third-party claims have been raised. Plaintiff has brought an administrative proceeding for reimbursement of its increased costs, under a customary disputes clause in the contract (Article 35, General Provisions, appendix hereto), before the Maritime Subsidy Board, the successor of the Federal Maritime Board in regard to the contract involved. The hearing was limited to liability alone, with the expectation that if the claimed liability were upheld, litigation of damages could be avoided by agreement of the parties. Plaintiff’s theory was that Article 7(d) of the General Provisions of the contract (appendix hereto) authorizes administrative reimbursement of the amount of the increase in its costs caused by the failure of the FMB to exercise sufficient effort to supply the plans on time. The hearing board, in circumstances to be detailed below, also considered plaintiff’s claim of breach of contract by the FMB. On the rejection of both the dispute and breach of contract aspects of the claim, by a hearing officer whose determination was approved by the hearing board, plaintiff filed suit in this court for review and reversal of the administrative decision in accordance with the standards of the Wunderlich Act, 41 U.S.C. §§ 321, 322, and, alternatively, for damages of $1,050,598 for breach of contract by the failure of the FMB to employ the efforts required by the contract. The parties have filed cross-motions for summary judgment. The record is by agreement to be that made before the hearing board and, since no evidence was taken on damages, plaintiff’s motion is necessarily one for partial summary judgment, on liability alone. The motions raise, first, the question whether Article 7(d) of the contract authorizes administrative relief for such a claim as plaintiff made and, second, the merits of the claim for breach of contract. On the first question, it is my opinion, in concurrence with the administrative decision, that Article 7(d) is not available to plaintiff and thus that no administrative claim lies. On the breach of contract claim, it is my opinion that the claim is open to review in this court and that it has merit. The record of the efforts of the FMB to supply the plans on time shows substantial, even inexplicable, deficiencies in reasonable effort and reasonable diligence. Plaintiff is entitled to partial summary judgment, on liability. After an interval of time to permit the parties to reach agreement, proceedings should go forward on the remaining issues of damages. II The Claim to Reimbursement of Costs Under Article 7(d) of the Contract Plaintiff’s administrative claim was based on Article 7(d) of the contract, which provides for reimbursement to the contractor of the costs to him of late delivery of government-furnished “material.” The second sentence of Article 7(d) (appendix hereto) provides that “the Board shall pay to the Contractor the costs to the Contractor * * * resulting from delay in delivery of * * item[s] of material, furnished by * * the Board beyond the time the Contractor would have secured the delivery of said item to the shipyard if it had been furnished by the Contractor * * Plaintiff contends that this article gave authority for administrative reimbursement of its increased costs, under the disputes clause of the contract, from a breach by the FMB of the duty under Addendum 3 to make all reasonable and diligent efforts to supply the plans on time. The contracting officer, to whom a claim for an adjustment under the disputes clause is first presented, denied the claim on the ground that reproducibles of working plans are not “material” within Article 7(d) and thus that the ar-tide is no authority for the claimed reimbursement. Plaintiff’s appeal from this decision was denied by the hearing officer who acted for the hearing board, and the denial was thereafter confirmed by the hearing board. The ground of the hearing officer’s decision was that Addendum 3, drawn specially for the subject of working plans, alone governs the supply of working plans, the required efforts to supply and damages from a deficiency in effort. The decision, it may be noted, is one of a question of law, and is therefore not final or binding in this court under the disputes clause and the Wunderlich Act. In my opinion, the decision was correct and I concur in it on the grounds given by both the hearing officer and the contracting officer for their decisions. Working Plans as “Material.” Article 7 (appendix hereto) is a version, some years old, of the familiar government-furnished material clause. The “materials” to which the article applies are limited to those of a tangible nature to be incorporated or installed into the end product, and therefore do not include the “approved reproducibles of (1) complete working plans, (2) complete purchase specifications and (3) complete purchase orders” to be supplied under the instant contract. “Material,” as used in the contract, is defined in Article 2(g) of the contract’s General Provisions (appendix hereto) as follows: The term “material” includes but is not limited to any raw, in process or manufactured machinery, equipment, component, accessory, part, assembly or product of any kind which will be a direct material cost charge to the contract work. Working plans are not understood to be a “component,” “accessory” or other “part” of the product, which would be a “direct material cost charge” to the contract work. All the illustrations given in Article 2(g), though illustrations only, are physical things incorporated into the end product, and exclude information material such as a working plan, a purchase order or a purchase specification. Addendum 3 (appendix hereto) uses the term “materials” in its sense of physical things; it describes as “materials” some fifty components of the vessels, such as the propeller, turbines, lifeboats, generators and galley equipment. For the lesser breadth of “material” as compared to the broader word “property,” more recently used, compare ASPR 13.101-1, 32 CFR 13.101-1 (government property) with ASPR 13.101-4, 32 CFR 13.101-4 (“material”). Exclusiveness of Addendum 3. An alternative ground for rejection of Article 7(d) as authority for an administrative adjustment is that Addendum 3 is exclusive in governing all aspects of the supply of working plans. The Addendum was specially drafted for the problem of supply of working plans and the possible delay in their supply; Because of its specificity and differences from Article 7(d), the Addendum alone controls the consequences of a failure to employ the required effort and diligence to furnish the working plans on the scheduled dates. Article 7(d) is phrased in terms of delay in delivery of a material and comtem-plates the failure to keep an unqualified promise to bring about a future event- — • the delivery of a material by a specific date. Such a promise, a classic contract, is unaffected by the degree of power the promisor possesses over the event, or the degree of effort he may make to bring it to pass. The failure to deliver on time, without more, is a breach. In negotiating the instant contract the FMB deliberately did not wish to promise to bring about the event — the supply of plans — by a specific date. The Addendum, therefore, promised that the FMB would employ described effort and diligence to supply the plans by specified dates. The first difference between Article 7 (d) and the Addendum is thus one in the nature and proof of a breach. In the former, the subject is delivery of a thing on time and its failure to arrive on time; in the latter it is the making, deficiency and failure of effort to supply a thing on time. Proof of the date would be sufficient under Article 7(d). The Addendum requires proof of a deficiency in the reasonableness of efforts made to supply. Non-arrival and the duration of delay might bear on damages, but breach consists of no more than the failure to make the required efforts. Under Article 7(d) the first step in the determination of damages would be the determination of days of delay, a simple difference between the promised day and the day of delivery. Two deductions would then be made: first, the days of delay the contractor would have experienced had he himself furnished the thing (to provide, for instance, for a cause of delay equally affecting all suppliers), and second, there would be deducted any delay by reason of the causes, deemed to be beyond control, specified in Article 7(d) by its incorporation of Article 5 of the General Provisions (appendix hereto). The increased costs to the contractor and any other damages caused by the delay, so computed, would then be determined. Damages for breach of the Addendum, on the other hand, are left entirely to the common law. Without regard to such precise rules as are set out in Article 7(d), the trier of the facts would weigh the causes of the delay, the degree to which the efforts were deficient, the effect of proper efforts, the duration of the delay, the increased costs and any other relevant facts. These differences preclude the application of Article 7(d) to the claim of breach under the Addendum. Only the Addendum controls such a breach. Accordingly, it is my opinion that on both the foregoing grounds the hearing board acted properly in dismissing the administrative claim insofar as it was grounded on Article 7(d). Ill Administrative Jurisdiction of the Claim of Breach of Addendum 3 and Review in this Court of the Decision on Breach Article 7(d) was the only clause in the contract which was or could have been invoked in support of administrative relief under the disputes clause. Without Article 7(d), the claim of breach of duty of Addendum 3 is a pure breach of contract claim over which the administrative authorities had no jurisdiction. The administrative decision on the breach of contract claim was thus beyond the hearing board’s jurisdiction, and by that token not entitled to any final or binding effect in this court under the Wunderlich Act, 41 U.S.C. §§ 321, 322. Eeview of the decision, here, is in any event not foreclosed, for it was a decision of law, not of fact. Under the Act, only decisions of questions of fact are entitled to finality in suits thereafter filed. The Absence of Disputes Clause Jurisdiction. It appears from the record that the hearing officer passed on the claim for breach of contract in the course of an inquiry, specially requested by the agency, into the desirability of voluntary settlement of Nassco’s claim for breach of contract. Consideration of settlement was initiated by the agency. The contracting officer invited plaintiff to present, with its administrative claim for an adjustment under Article 7(d), a claim addressed to the board’s power to make disbursements in payment of settlements and compromises. The claim for breach of contract was submitted in response to this invitation. Apparently in recognition of his lack of disputes-elause jurisdiction of the contract claim, when the officer denied both the claim under Article 7(d) and the claim of breach of contract, he explicitly allowed an appeal under, and limited by, the disputes clause alone. Thus only the Article 7(d) claim came to the board by the notice of appeal. The Maritime Subsidy Board thereafter made a formal written direction to its hearing officer that he consider and report on both the Article 7(d) claim and the breach of contract claim, the latter presumably for the same reason it had been considered by the contracting officer, for purposes of voluntary settlement. Article 7(d) was the only clause claimed to authorize the grant of administrative relief, that is, to create a dispute under the contract. The administrative decision that Article 7(d) gave no authority for an administrative adjustment of the claim was thus a holding that the hearing board had no jurisdiction, and the holding exhausted its jurisdiction. The board’s further consideration of the breach of contract claim, for purposes of settlement or otherwise, while entirely proper in the sense of propriety and duty, was consideration of a matter — a pure breach of contract claim —over which the parties in their contract had given the administrative authorities no jurisdiction. This is the doctrine of Grace and Utah, recently restated by this court in Jefferson Constr. Co. v. United States, 392 F.2d 1006, 1010-1011, 183 Ct.Cl. 720, 725, 727 (1968). United States v. Anthony Grace & Sons, Inc., 384 U.S. 424, 86 S.Ct. 1539, 16 L.Ed.2d 662 (1966); United States v. Utah Constr. & Mining Co., 384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966). In Jefferson Constr. Co., the court pointed out “the distinction between claims which, by virtue of an agreement by the parties (as embodied in their contract), are determinable by an administrative agency, and those claims which, because they have not been made subject to resolution under the contract, remain ‘pure’ breach of contract claims to be tried before the court.” The court held that “A true breach of contract claim which, by definition is outside the scope of the contract, is subject neither to equitable adjustment under the contract nor to administrative review or resolution.” 392 F.2d at 1010, 183 Ct.Cl. at 725. Since neither Article 7(d) claim nor breach of contract claim was within the board’s jurisdiction, any findings made on either branch of the case could have no finality. “Of course, if the findings made by the Board are not relevant to a dispute over which it has jurisdiction, such findings would have no finality whatsoever.” United States v. Utah Constr. & Mining Co., supra, 384 U.S. at 419, n. 15, 86 S.Ct. at 1558. Neither the administrative authorities nor the claimant thought otherwise than that the questions involved in the breach of contract claim would be open to review in any judicial proceedings. As the board hearing began, the hearing officer noted that he did not have jurisdiction to consider the breach of contract claim, except by reason of the board’s special direction. And counsel for the claimant had in submitting the claim for breach of contract to the contracting officer, on March 9, 1964, stated that “the claim submitted herewith for administrative consideration is without prejudice to our right to claim and recover our total excess costs or damages as may be proved and to such other relief at law or equity as we may be entitled.” The government suggests that plaintiff has in a statement in the course of pretrial proceedings in this court relinquished elements of its claim for breach of contract and limited itself to administrative relief. The pretrial statement in question, concurred in by the government, set out plaintiff’s position “that proceedings herein should be by way of review of the administrative record pursuant to the standards prescribed by the Wunderlich Act, 41 U.S.C. §§ 321-322.” The statement was filed pursuant to an order of the trial commissioner, entered immediately on the effective date of the court’s new rules for review of Wunderlich Act cases, that the parties file the equivalent of the statement required by Rule 95(a) (since September 1, 1969, Rule 162(a)) to be contained in petitions thenceforth to be filed. The statement was accordingly a consent that the issues involved in liability should be decided on the written administrative record, pursuant to the standards of the Wunderlich Act as they might be applicable, and not by trial de novo. On the concurrence of the government, the statement became an agreement to this effect, performed by the parties on their filing of cross-motions for summary judgment on the administrative record. The foregoing function of the pretrial statement cannot be stretched into a knowing waiver of elements of the sub-tantive claim of breach or of the claim to a judicial hearing, especially in view of the early date of the statement in relation to general understanding by the bar of the applications of Rule 95(a) (since September 1, 1969, Rule 162(a)) and of the chapter of the Rules of which it was part, Chapter XVIII, “Wunder-lich Act Reviews.” Plaintiff in its 1964 statement to the contracting officer had explicitly reserved all its rights to a judicial remedy for breach of contract, and it has emphasized those rights, distinguishing them from its claim to administrative relief, in this court, in the petition, motion and supporting briefs. The Decision a Decision of Law. The administrative decision against the breach of contract claim is not final, and is reviewable here, for the additional reason that it was a decision of a question of law, always open to judicial review. The hearing officer in his opinion noted that the controversy was not a dispute over the facts but rather a matter of the inferences to be drawn from facts contained in the written exhibits in the record. Accordingly, he did not make any of the findings of fact proposed by agency counsel, setting out the visits, letters and other details of the efforts made by the FMB to supply the working plans on time. These would have been findings of “simple facts,” entitled to final effect in a proceeding within the board’s jurisdiction. Perini Corp. v. United States, 381 F.2d 403, 409, 180 Ct.Cl. 768, 777 (1967). The board made only an ultimate decision that plaintiff’s increased costs resulted from its own assumption of the risk of delay and not from any failure of efforts by the FMB to supply it with the plans on time. Several elements of the decision are of such significance as make the result one all-embracing decision of law on the construction and interpretation of the contract clause providing for “all reasonable effort and reasonable diligence.” For instance, the FMB was held to have done all that it could to hasten delivery of the plans, though it admittedly made no efforts to seek another or a supplemental source of plans, as the delays in New York’s deliveries of plans increased. At first glance, the rejection of the fact of this omission as militating against the conclusion that everything possible was done, is a decision of a question of fact. Yet the FMB’s omission to seek another source of plans (discussed in Part VI of this opinion) may constitute a failure to make an effort indispensable for the decision of law that the FMB performed the duty required of it by the contract. Other such “facts” of comparable import to the result were the circumstances on which the hearing board rested its conclusion that plaintiff had assumed the risk: the foreseeability by plaintiff that the demands of New York’s other work would delay production of the plans; friction “inherent” in the relationship of the two yards, under which New York began construction later than plaintiff, and yet was required immediately to begin production for plaintiff’s use of plans not needed for its own construction; and, finally, the “total contractual arrangement” between the FMB, plaintiff and New York Ship, of which plaintiff was held to have notice. The total arrangement, the administrative opinion reasons, put plaintiff in a position with respect to plans “subordinate” to and at the “mercy” of New York, busy with other work and “obviously nettled at having been compelled to divide the four-ship contract for which it had been de-dared the low bidder, with a West Coast rival,” the plaintiff. The gathering of these facts in support of the conclusion that plaintiff had assumed the risk of delay was necessarily a tacit rejection of them as circumstances affecting and heightening the duty of the FMB to employ effort and diligence. Details are postponed to the discussion of the merits of the claim of breach. Here it is sufficient to point out that the rejection of some and the selection of other facts to put in the balance was in essence a judgment of law on the nature of the duty to employ all reasonable effort and reasonable diligence to achieve a precise objective. Historically the term “question of law” grew up as a short way of describing questions, of interpretation of contracts and others, which should be decided by a judge or' court and not by a jury or an administrative agency. See Martin Wunderlich Co. v. United States, 117 Ct. Cl. 92, 212-213 (1950), reversed 342 U.S. 98, 72 S.Ct. 154, 96 L.Ed. 113 (1951). The significance in this case of the choice and rejection of facts, in the administrative decision, provides proof once again that questions of fact have meaning only in their legal context, and that questions of fact and questions of law are not mutually exclusive but are at opposite ends of a scale whose points ascend imperceptibly from fact to law and back again. See River Constr. Corp. v. United States, 159 Ct.Cl. 254, 262-263 (1962); Dickinson, Administrative Justice and the Supremacy of Law in the United States 55 (1927). Difficult as it may be to define the difference between questions of law and of fact, this court has often been called upon to allot cases to one side or the other of the line to be drawn in determining the quality of administrative decisions under the Wunderlich Act. By those judgments, the instant case falls on the side of the decisions open to judicial review as interpretations of contract language or as establishing criteria for the application of contract standards. Questions comparable to that in the instant case which have been held reviewable as questions of law are these: finding of a “changed condition” by reason of a substantial variation in the quantity of a unit-price item estimated in the contract (Perini Corp. v. United States, 381 F.2d 403, 409, 180 Ct.Cl. 768, 777-778 788 (1967)); the manner of computation of an 18-month period specified in a contract and whether mailing or receipt is “issuance” under the contract terms (Dynamics Corp. of America v. United States, 389 F.2d 424, 429, 182 Ct.Cl. 62, 71-72 (1968)); the correct method of accounting to determine “total contract costs” and other types of costs referred to in a contract (Lockheed Aircraft Corp. v. United States, 375 F.2d 786, 790, 179 Ct.Cl. 545, 552-553 (1967)); and whether an endurance test required by the contract should measure the speed of one roller or another of a dynamometer (Maxwell Dynamometer Co. v. United States, 386 F.2d 855, 867, 181 Ct.Cl. 607, 626 (1967)). IV The Contract Standard for the Efforts To Be Made to Supply the Plans I turn to the question, wholly open to fresh consideration in this court, whether the Federal Maritime Board performed its obligation under Addendum 3 to the Specifications of the contract to “employ all reasonable effort and reasonable diligence to supply to the Contractor working plans on the dates set forth in the Plan Schedules” attached to the contract. The Definition of the Contract Duty. “All,” “reasonable,” “effort” and “diligence,” the words of the contract duty claimed to have been violated, are words with a long history of legal use and meaning. “Effort” is defined in a lawyer’s encyclopedia as meaning “exertion, * * laborious attempts, or strenuous endeavors ; struggle directed to the accomplishment of an object.” Those who were graded on their effort in early schooling know that to be acceptable effort must be constant, not intermittent or irregular. If there were any doubt, the additional duty of “diligence” confirms that the effort contemplated by the contract must be constant. The legal dictionary defines “diligence” as “prudence; vigilant activity; attentiveness; or care,” and “diligent” as “[attentive and persistent in doing a thing; steadily applied; active; sedulous; laborious; unremitting ; untiring.” Another such authority adds that “diligent” also means “exhibiting careful and persevering effort to accomplish what is undertaken; exhibiting the same degree of care and prudence that men prompted by self-interest generally exercise in their own affairs.” The obligation of the FMB to employ “effort” and “diligence” thus required strenuous exertions and endeavors, vigilantly, steadily and perseveringly undertaken and directed to the objective of the supply of the plans at the scheduled times. The effort and diligence were, further, to be “all” effort and diligence. “All” is often used in writing intended to have legal effect as a preface to flexible or imprecise words, as in “all other property,” “all the rest and residue,” “all and every,” “all speed,” “all respect.” Its purpose is to underscore that intended breadth is not to be narrowed. “All” means the whole of that which it defines —not less than the entirety “All” means all and not substantially all. The prefatory word “all” in the contract clause meant, then, that no available effort might be omitted. Lastly, the contract provided that the “all” “effort” and “diligence” were to be “reasonable.” The great function in the law of the word “reasonable” is to enable a standard of decision to be accommodated to all circumstances. “Reasonable,” used for this purpose, has served in legal instruments at least since Magna Carta, in which King John undertook not to levy “more than a reasonable aid” or tax to raise a ransom for his person. The standard of reasonableness has since become the mainstay or our law. We could not do without the “reasonable man” and the “reasonable care” he exercises, or the “reasonable doubt” of the juror. “Reasonable” in the instant contract means just what it meant in Magna Carta — that which is proper, fair, equitable and honest in the judgment of a “reasonable” man, and is suitable and appropriate to the end in view in the light of the facts and circumstances. This meaning is given in the variety of cases in which this court has passed on the reasonableness of the government’s effort and diligence in performing a duty, usually implied from other provisions of the contract to supply materials to a contractor or to refrain from hindering him in his performance. Reasonable effort and diligence is held to require good faith, consideration of the interests of the contractor and freedom from fault or negligence in making the efforts appropriate in the circumstances. Even without the presence of such a word as “all,” reasonable effort and diligence is found only where the government has made all the efforts it could have been expected to make. The standard is held met when it appears that the government showed “great diligence” and “did all that it could to prevent costly delays to plaintiffs,” used “novel methods to assure expedition” and acted with great, if not unusual diligence” or “exerted every effort” and was “more than ordinarily diligent.” The failure to make efforts capable of being made prevents a finding that all reasonable effort has been made. The Delays in the Supply of the Plans. The circumstances of first importance for judging the reasonableness of the efforts and diligence to be employed in this case were the delays which took place in the production of the plans by New York Ship. The delays were admittedly substantial. Some 650 plans were to be supplied at scheduled dates during an 18-month period, from March 1958 to September 1959. The first plans were supplied in July 1958, four months late. The last plans, alterations to plans already furnished, came in October of 1960. Numbers of plans were over a year late. The average delay of all plans (computed after the agreed allowance of 10 weeks for necessary approvals) was 147 days or almost five months. Illustrations of Delay — the Kingposts. The working plans for the kingpost (the columns supporting the tackle and booms used for cargo handling) and cargo handling detail were scheduled to be supplied in December, 1958 and January, 1959; later, in August, 1959 and still later in October, 1959. The plans came in January and February of 1960, too late for fabrication and installation in the two hulls prior to launching, though launching already had been delayed to January and June of 1960. Had they been installed prior to launching, they would have helped avoid any failure of the girders of the hull from the stress of launching; their absence at launching required the substitution of temporary supports. Out-of-sequence and delayed plans— the machinery foundations. Plans for the machinery foundations, the lowest level of a ship, were required early, some as soon as May, 1958. Of the 33 machinery foundation plans in the stipulation, one was 59 days late; four, between 100 and 150 days late; 14, between 150 and 200 days late; 6, between 200 and 300 days late; and eight, between 300 and 363 days late. They were also not supplied in their needed sequence; the earliest needed seemed to come latest. The two plans due earliest, in May, 1958, came in March of 1959, each over 290 days late. All those over 300 days late were among those needed in the first half of the need periods. In consequence, the foundations, which should have been installed before the forced draft blowers were put in place, were fabricated and put into place only after the blowers had been placed nearly where they would eventually be. Once the blowers were in, the foundations had to be put into place by physical means rather than lifted into place by crane. The blowers, in turn, had to be moved to their precise place by similar crude methods. Effect on the Construction Schedule. Delay in the supply of plans was a primary cause of repeated postponements in Nassco’s schedule of “principal events” —keel-laying and launching — in the construction of its vessels. Completion of the first vessel was scheduled for May, 1960. It was completed seven months later, on December 30, 1960, less than two weeks before the contract delivery date on January 10, 1961. The second vessel, scheduled to be completed in September, 1960, was completed six months later, on April 3, 1961, days before the contract delivery date of April 5, 1961. New York Ship, though it began construction almost a year later than Nasseo and for that period had no need for its plans, nevertheless was so delayed in its construction by its own delays in completing plans that it missed the contract delivery date of its first vessel by several weeks. Causes. FMB personnel believed that the root cause of the delays in plans was the differing construction schedules of the two yards. The hearing officer essentially agreed, ascribing the delays to the “total contractual arrangement” and to the position in which it placed Nassco with respect to plans. The government as defendant in this case has not taken a clear position on the causes of the delay in production of the plans. Causes — New York’s Other Work. The cause of the delays offered by New York at the time (no representatives of New York testified at the hearing) was the demands on its draftsmen of other ship construction work of higher priority. One of New York’s drafting sections, the piping section, was particularly affected throughout the plan-producing period. Causes — Errors, Alterations and Interferences. More subtle yet constant delays resulted from errors in the plans drawn by New York. The contract provided that FMB did not guarantee the accuracy of the plans. There is a question, however, whether the errors warranted efforts by the FMB, as the equivalent of delays, on the ground that in the long period in which Nassco was in construction and New York was not, and perhaps thereafter, New York was pressed by its other work into submitting for approval plans not fully checked and containing excessive errors. Errors and delay. The simplest type of delay from an erroneous plan was the postponement of approval and the consequent inability of the FMB to supply a reproducible working plan (by definition an approved plan). At one point, in January, 1959, more than half the plans submitted were being disapproved. Dis-approvals were so frequent that the phrase “first submittal” came to be used. Delayed approvals often forced Nassco to begin work on the basis of a blueprint of the plan as submitted for approval. When an error in the drawing as submitted led to its disapproval and amendment, the approved reproducible might, on its arrival, require redoing of some or all of the work already redone. Causes of delay could interact. An error in a plan might lead to its disapproval and return to the drawing board, where it might wait indefinitely if the engineers were busy with higher priority work. Alterations and delay. Approval did not catch all errors. An error or in-completness not detected in the approval process would thereafter be corrected by an “alteration.” Many of the plans were altered. Of the 146 plans whose lateness was the subject of stipulation, 94 were altered at least once. Notice of an impending alteration often came in a blueprint, when work was in process on the basis of the reproducible earlier supplied. Work already done on the basis of a reproducible repeatedly had to be redone. The alteration might not be approved as submitted; the reproducible of the plan as altered might arrive in a still different form. On receipt of a blueprint of an alteration at variance with work already done, Nassco’s choice lay between different types of delay. Work either had to be halted until the arrival of the approved reproducible, or the work to date redone and then continued in accordance with the blueprint, in the expectation that the blueprint would be approved. Delay could be increased by successive alterations. More than one alteration was common; in many cases there were three and four. One exhibit mentions an alteration K, an eleventh alteration. The interval between the supply of what came to be called the first reproducible and the last alteration (not the total time between scheduled date of supply and last alteration) ranged up to 17 months. The average for the 94 altered plans listed in the stipulation was eight months. Three of the last alterations furnished last of all, in .October of 1960, were plans of which the first reproducible had been supplied over a year before, two of them only 10 days late and one 15 days ahead of the scheduled date. Delay from Interferences. Delays were caused also by interferences, that is, a non-correspondence between plans as, for example, a plan showing a beam at head-height in a passageway called for by another plan. Nassco complained that New York’s plans had never been sufficiently checked for interferences and that the errors and interferences and the rework and confusion caused thereby were such that it had been compelled to add seven engineers to those it had originally hired for the job of screening New York’s drawings. Nassco felt that having reduced its bid by $720,000 on condition that it receive and not furnish the working plans, it was entitled to plans reasonably free from errors, despite the contract provision that the correctness of plans was not guaranteed. In the case of midship-house piping, ventilation and electrical plans, interference was coupled with out-of-sequence supply to produce acute delay well along in construction. The installation of midship-house piping, ventilation and electrical systems required six types of working plans— plumbing, ventilation, wireways, fire-mains, sanitation and heating. The six were to be separately installed, in the order named, on seven levels and decks from the machinery level going upward through each deck from Second to Bridge, and they were scheduled in this sequence, in the contract plan schedules. Neither systems nor levels were supplied in the right sequence. The six systems for the machinery level came in the order of 1, 5, 4, 2, 6, 3; for the second deck, in in the order of 1, 6, 4, 2, 5, 3; for the main deck, in the order of 3, 4, 1, 2, 6, 5, and so on. For the second deck, the first, third, fourth and sixth systems came in August, 1959, the fifth in November, 1959, and the ventilation drawings, needed second, came last in March of 1960. For the main deck, the first, third and fourth systems came in 1959; the second, fifth and sixth in 1960. All the wireways plans for the seven decks and levels came in August and September of 1959. Fourteen sets of plans for plumbing and ventilation were needed earlier; only two came earlier. The twelve that came later arrived on dates between October, 1959 and March, 1960. Plumbing, needed first, came fifth for the boat deck and last for the cabin and bridge decks, preventing much of the out-of-sequence installation attempted as an accommodation to the facts of the receipt of plans. Installation in the correct sequence was of course impossible. To get work done, in the absence of plumbing and ventilation plans, the wireways were installed when plans were received in 1959. When ventilation drawings came, severe interference was discovered with wire-ways and firemains, and all work on ventilation, piping and wiring was stopped for six weeks while Nassco made the composite drawings for each deck level necessary to correct the contradictions. The wireways system, substantially completed, had to be torn out and redone because of the interferences. Nassco claimed that the designer had neither oriented the drawings to the ship nor checked them for interferences. In turning to the efforts made to supply the plans on time, it is appropriate to point out that the contract imposed no liability for delay, no matter how great. The FMB’s single obligation was to employ “all reasonable effort and reasonable diligence” to supply the plans on the scheduled dates. V Chronological Review of the Efforts Made by the FMB to Supply the Plans by the Scheduled Dates 1. From the Delay in the First Due Plans to' the Appointment of a Project Expediter in September 1958. The First Complaints, June, 1958. The first working plans due, purchase orders and purchase requisitions for equipment to be identical in the four ships, were scheduled for receipt soon after the execution of the contract in February, 1958; they were delayed and in the Spring Nassco liired an engineer, W. A. Schlosser, and stationed him at New York’s yard in Camden, N. J., to expedite the plans on its behalf. About 50 plans were due by June 4, and none had been received. On that day, Walter H. Beattie, the FMB Construction Representative stationed at Nassco’s yard in San Diego, in the first of his over twenty numbered narrative reports in the record, advised that no requisitions or purchase orders had been received, and that the delay in furnishing the requisition schedule was affecting the placement of steel orders. He had learned this on inquiring as to “potential delays which are apparent at this time.” J. E. Watson, an FMB Washington scheduling expediter, noted, after a visit to San Diego on June 19, that “potential problems” existed in respect of “receipt of bills of material, purchase specifications and working drawings.” On June 30, Beattie reported that none of the plans he had asked for on June 4 had been received; further, that the contractor had commenced preparations for laying out the first vessels mid-body lines in the mold loft but had not received re-producibles for the work. On July 7, Nassco wrote to the FMB’s contracting officer, L. C. Hoffman, Chief of the Bureau of Ship Construction of the Maritime Administration. Not one plan had been received. The letter complained of the failure to receive the steel ordering list and bill of material and reproducibles of purchase orders for turbines, boilers and other major equipment. Referring to the FMB’s obligation of effort and diligence to supply the working plans on the dates in the contract schedules, Nassco said that “these dates are not being met” and that if the FMB did not take prompt action, the dates for the early principal events in the construction schedule (keel-laying and launching) would not be met and it would be compelled to compress its construction schedule. Early receipt of mold loft offsets and mid-body lines plans was said to be “imperative” if Nassco were to meet its schedule. At that time, according to plaintiff’s administrative claim, about 60 plans were scheduled for receipt; according to plaintiff’s letter of July 7, 50 blueprints had been received, indicating that that number had been submitted for approval. The FMB’s Expedition Efforts in July 1958. On receipt of Nassco’s complaint of July 7, the FMB made inquiries at New York Ship. Some purchase orders had been placed; others were behind schedule and the mold loft drawings were not ready. Hoffman wrote Nassco, in a letter dictated by Watson, that the remaining purchase orders “should be placed soon” and that the mold loft drawings “and others” are “being expedited.” Some reproducibles were apparently ready. On July 14, New York wrote to the FMB that it had received no reply to its inquiry to the FMB in May as to what .type of reproducibles were desired and that it was now sending the ready reproducibles under separate cover. They were not, however, actually dispatched until July 22. The FMB forwarded them to Nassco on July 23. They were the first to be supplied to Nassco and were said to include the “early required working plans, except Mold Loft Offsets.” The first of the mold loft offsets were mailed July 31. New York Ship would not agree to Hoffman’s request that it send repro-ducibles directly to Nassco in San Diego. New York maintained, according .to a memo by Watson, that “it is not (its) intention to be difficult” but it held to its position from the time of the execution of the contract that it “did not want any direct contacts with Nassco in regards to reproducibles.” It would insist on furnishing the plans to FMB, as its contract provided. Agreement was reached that New York would send plans to FMB’s San Diego office where Beat-tie would hand them to Nassco. Continued Delays. The delays continued in August. In Beattie’s next narrative report, he wrote that only 10 repro-ducibles had been received of 27 plans for the hull scheduled for approval by then; the remainder were requested “at the earliest possible date.” Further, Nassco had received blueprints of two purchase orders and needed reproduci-bles of these and of any others placed. Beattie also advised that Nassco was unable to begin work because mid-body lines offsets received from New York had been found to be incorrect. He said, “It is considered by Nassco to be the responsibility of your Office to furnish same so that mold loft work may commence.” On August 4, Watson visited New York’s yard at Camden, New Jersey, and found that of 41 approved reproducibles, purchase orders and requisitions, only 11 had been mailed. He noted that in his presence a representative of New York called the responsible department and asked for expedition of processing and mailing. Watson noted also that he had a “private discussion” with Joseph C. Czudak, the FMB’s Construction Representative at the yard, and that Czudak would expedite items “upon request” of FMB Washington. As of August 7, Nassco was lacking reproducibles of purchase orders for turbines, gears, boilers and other equipment. Corrections in the mid-body lines offsets were made by Nassco so that it could begin mold loft work. An interference was discovered between a mold loft offset and a keel drawing. On September 8, Beattie repeated the request for hull drawings; Nassco had received only 10 reproducibles of 24 approved. He also sent a list of 20 machinery and piping plans, needed earlier than the contract schedule dates, so that Nassco could proceed to lay the keel of the first vessel, scheduled for November 14. At a scheduling conference before the signing of the contract, he wrote, New York had agreed that they could get these drawings out earlier than the dates for which they were scheduled, in order not to delay Nassco, which was starting its construction earlier than New York. The Appointment of a Project Expediter in September 1958. On September 13, Hoffman designated Watson, a member of the Shipbuilding, Scheduling and Progress Branch of the Division of Production, to be special Project Coordinator for the contract “in order to provide a smooth flow” of working plans to Nassco. In his memo Hoffman said that “Due to the difference in construction schedules of the two contracting shipyards, it is already evident that considerable coordination will be required in order to provide National Steel and Shipbuilding Corporation with the information as needed.” 2. From the Appointment of the Project Expediter to March of 1959■ — ■ Piping Plans, New York’s Higher Priority Work, Errors and Alterations and Complaints of Delay in February and March. Piping Plans and Higher Priority Work. The 20 machinery and piping drawings called for by Beattie on September 8 were asked for again in his narrative reports on September 20, October 31 and February 27. Each request was transmitted by FMB Washington to New York Ship in Camden. Watson visited New York’s yard to expedite the plans and on October 3, 1958 reported the cause of the delay. Mr. Sandberg, vice president of New York in charge of the furnishing of plans for Nassco’s use, had told him that “the piping section of Engineering was overloaded with work on the NS Savannah and the aircraft carrier” Kitty Hawk. His memo does not speak of how long the overload might continue; the implication is that the plans would not be supplied at the needed dates: “Although it was promised that an effort would be made to expedite all of the twenty plans, it was considered doubtful if the submittal dates could be advanced to meet Nassco’s required date.” Watson felt that the source of the problem was that Nassco had scheduled its construction earlier than New York’s, rather than following New York, the producer of the plans: It is the writer’s opinion that Nass-co will have many problems brought on by the fact that they have scheduled keel laying of their first vessel five months ahead of the first vessel at New York Ship. The “following” yard, of most split contracts of this type, key construction to follow the “lead” yard. He thought that the solution was for Nassco to increase its facilities and postpone steps in its construction schedule: It may become necessary for Nassco to provide two suitable building ways and reschedule the keel and launch dates of the two vessels under contract. Keel-laying was soon postponed, and postponement of launching followed later. Watson noted in a memo of October 30 that the pressure for the plans had “eased somewhat” because of the postponement of the keel-laying of Nassco’s first vessel from November, 1958 to March, 1959. In this memo, written after a visit to New York’s yard on October 24, Watson reported that Sandberg had told him that Mr. Teale, president of New York Ship, had “taken a personal interest” in the machinery and piping section of engineering, and “it was expected that a marked improvement will be forthcoming from this Department. * * * Now that Mr. Teale is putting pressure on Department 9, plan development should be on schedule by the end of November.” As this optimistic report was being made, Beattie was on October 31 responding to Watson’s earlier memo of October 3 reporting that the piping plans would not be supplied as needed. Noting that none of the machinery and piping drawings had been received and that Watson’s memo was not too optimistic about getting them, Beattie said that “in the opinion of this office, it is very important” .that Nassco receive these drawings “at the earliest possible date.” Watson’s memo of October 3, he said, and particularly its conclusion, dealing with the construction schedule, had been discussed with Nasseo’s officers, who had stated that “as their contract was a separate contract with the Maritime Board it appeared to them it was the responsibility of the Maritime Administration to expedite the drawings from New York Shipbuilding Corporation, in order that fabrication, to commence in November, should proceed in orderly manner.” Washington responded to Beattie, with emphasis, that both New York and the FMB were making all reasonable effort. The memo, dated November 19, was signed by H. E. St. Clair, Chief of the Division of Ship Production, and dictated by Watson: “It is considered that all reasonable effort and reasonable diligence is being employed to prepare and to supply reproducibles of working plans, in accordance with the provisions of” New York Ship’s contract with the FMB and .the FMB’s contract with Nassco, copies of which were enclosed. St. Clai