et seq., in part. Exs. A-23, -50, -52, -65) shows no failure of appellant to respond positively in correcting the deficiencies or unsafe practices uncovered. Only rarely was there controversy about corrective action and in nearly all instances appellant and the Air Force reached accord. Help was offered by the Air Force and accepted by appellant in the preparation of manuals (Tr. 270) and other safety matters. While appellant raised some questions as to the applicability of the Accident Prevention Manual (AFM 127-101) (cf. Tr. 304), respondent has not pointed to any provision of ARM 127-101, relevant to dispute or not, which appellant rejected as inapplicable. The record shows that respondent has not always looked with such a jaundiced eye upon appellant's safety record as it has in the present controversy. It is not in the past found incidents resulting in losses to the Government due to aircraft damage to be due to other than ordinary negligence covered by the Government's assumption of risk under the Ground and Flight Risk Clause (see R4 doc. Att. 2: R4 docs. 12, 15). It found numerous defects, relating to safety matters, in the PAS conducted in the Spring of 1968 for the instant contract but was so satisfied with appellant's actions that a ground safety officer of WRALC testified, without contradiction, at the hearing (Tr. 150, 172) that he and an OCALC ground safety officer were in August of 1968 of the "opinion that the ground safety problem had been safisfactorily resolved" (Tr. 150). Two months later, on 8 October 1968, the Commander of Detachment 26 wrote appellant after the annual safety survey as follows: "3. NOTEWORTHY ITEMS The contractor is commended for the exceptional progress made, the sincere co- We Respondent has raised one further issue bearing on appellant's safety practices: Whether they meet the requirement of paragraph (d) (i) of the Ground and Flight Risk Clause that they should be "in accordance with sound industrial practice." The record includes several handbooks on safety prepared by national organizations interested in fire protection (see R4 doc. 56; National Safety Council handbooks subm. by resp. after hrg.). Respondent has, however, failed to point to any specific provision of these documents which imposed higher standards than those adopted by appellant in its manual and referenced Air Force Documents or which appellant has rejected (see Resp. Br. pp 21 et seq.). Nor has it adduced evidence to show industrial safety practices adopted by other enterprises engaged in aircraft overhaul. Appellant, although asserting that its practices met the "sound industrial practice" standard, has also not adduced any evidence which would allow us to ascertain the correctness of its position. On the basis of the record we can only find that any allegation of failure to meet such standard remains unproven. Whatever indications of sound industrial practice the record contains certainly do not support it. DECISION I Appellant argues in its reply brief (pp. 17-20) that the exception of paragraph (d) (i) from the Government's assumption of risk under the Ground and Flight Risk Clause does not apply to the damage to aircraft No. 62-1831 because it was being worked upon in the open at the time of the fire and the damage resulted directly from the work being performed. The argument is without merit under paragraph (d) as written and unreasonable from the viewpoint of the policy consideration which paragraph (d) (i) expresses. flight Of the six exceptions to the Government's assumption of the risk of aircraft damage three apply in limited situations: ((d) (i)), transportation ((d) (iii)), work on the aircraft ((d)(vi)). The other exceptions do not state situational limitations. They apply, as more closely defined in the particular paragraphs, to damage covered by insurance ((d) (iv)), damage from wear and tear and deterioration ((d)(v)), and damage resulting from lack of an effective safety program due to willful misconduct or lack of good faith of paragraph (d) to indicate that they do not apply when, for instance, paragraph (d) (ii) or paragraph (d) (vi) applies. drafters of the Ground and Flight Risk Clause sought to limit the application of one of the exceptions, if others were also applicable, they so stated expressly, as in paragraph (d) (v). Since they did not state such limitation in paragraph (d)(i), it can only be inferred that no such limitation was intended. When the Moreover, the limitation placed by appellant on the scope of paragraph (d)(i), far from implementing the Government's assumption of risk policy, is destructive thereof. It is clear from the clause as a whole, and indeed not argued otherwise, that the Government assumed the risk of aircraft damage resulting not only from accidents of unknown or undetermined origin but also from accidents resulting from appellant's negligence. It was, however, clearly anxious not to encourage disregard of safety practices at the top managerial level or to assume the risk of damage flowing from the willful misconduct or lack of good faith in safety matters by managerial personnel, as defined in paragraph (d)(i). There is no policy reason why the fact that aircraft was being worked upon should free the contractor from liability for its management's willful misconduct or lack of good II There is little question that the record before us would sustain, if it would not compel, a finding that the burning of aircraft No. 62-1831 was due to the negligence of appellant's employees at work on the aircraft on the day when the accident occurred. There is also sufficient evidence in the record to sustain a finding, if it were necessary or needful, that appellant's administration of its safety program at the working level was less consistent, careful and effective than was necessary to insure an operation free of major accidents or of the risk that such accidents might occur. To the extent that the lack of enforcement or observation of safety rules contributed to the effective cause of the burning of aircraft No. 62-1831, appellant's managerial personnel must bear a share of the responsibility for the accident. Its negligence in strictly enforcing safety rules and procedures cannot on the record made here be denied. But even if such findings were made respondent would not be helped. For it must show that the criticized failure of appellant's managerial personnel in regard to maintenance and administration of a program for the protection and preservation of aircraft in the open, as aircraft No. 62-1831 was here, or during operation, in accordance with sound industrial practice, amounted to "willful misconduct or lack of good faith: (ASPR 10-404 (a), Cl., par. (d)(i)). The authorities are unanimous in holding that proof of negligence does not establish willful misconduct or lack of good faith. See Acker v. Schultz, 74 F. Supp. 683 (S.D. N.Y., 1947); Berry Bros. Buick, Inc. v. General Motors Corp., 257 F. Supp. 542 (E.D. Pa., 1966). Mere indifference to duty also is not enough. Ibid. What amounts to willful misconduct or lack of good faith is to be "recreant" to one's duty (Tyler v. Grange Assurance Association, 3 Wash. App. 167, 473 P 2d 193), to refuse deliberately to perform a plain, wellunderstood contractual or statutory obligation without just cause or excuse (Brandoline v. Lindsay, 269 Cal. App. 2d 319; NLRB v. Knoxville Publishing Co., 124 F 2d 825 (6th Cir., 1942)). Willful misconduct has also been described as the conscious failure to use the necessary means to avoid peril and indifference to its consequences. Holman v. Brady, 241 Ala. 487, 3 So. 2d 30; Ridge v. Boulder Creek etc. School District, 60 Cal. App. 2d 453, 140 P 2d 990; see also Meadows v. Vaughn, 81 Ga. App. 45, 57 SE 2d 689; Goepp v. American Overseas Airlines, 281 App. Div. 105, 117 NYS 2d 276. When faced with this problem, the NASA Board has reached the same result. McDonnell-Douglas Corporation, No. 865-28, 68-1 BCA par. 7021. Under contracts involving a similar managerial responsibility clause our predecessor, the War Department Board of Contract Appeals, has adopted a comparable approach. Cf. Sweet Briar, Inc. BCA Nos. 986, 987 (1945). We thus reach the final question: did the conduct of appellant's managerial personnel evince a refusal to perform its duty, a conscious failure to use appropriate means to avoid industrial accidents and indifference to their consequences so that its performance of its job can be characterized as permeated with misconduct in safety matters and with that suggestion of duplicity or dishonesty which the law calls bad faith. See Fenner v. American Insurance Co. of N. Y., 97 SW 2d 741 (Tex. Civ. App.). We believe that on the record made here this question must clearly be answered in the negative. Appellant's general manager and his deputy might be criticized for inadequate enforcement of their own or contractually-required safety programs at the working level. But at the higher management level they had instituted a program and a safety management which was clearly adequate compliance with appellant's obligations and they had, even if often at Air Force suggestion or prodding, greatly improved the safety of appellant's facility. Nothing in the record proves that they took their responsibility for aircraft safety lightly, that they were unmindful of it, or failed to give it substantial personal attention. Conflicting considerations of scheduling and performance may have at times counterbalanced their consideration of aircraft safety. But there is no evidence that they subordinated their responsibility for safety to other goals to such an extent that one could find willful misconduct or lack of good faith in regard to safety concerns. Certainly up to the date of the fire involving aircraft No. 62-1831 wash rack operation had been safe and free of accidents involving the use or misuse of P-D-680 or MEK. Hence we are compelled to adopt the same position that the War Department Board took in the Sweet Briar plant fire: willful misconduct or lack of good faith of top management are not proven. It follows that the contracting officer's contrary finding cannot be upheld. III Under paragraph (e) of the Ground and Flight Risk Clause the Government's assumption of risk of aircraft damage does not extend to the first $1,000 of damage, except where damage occurs to aircraft in "flight." This latter exception is, of course, inapplicable here. With regard to these first $1,000 appellant under paragraph (e) "assumes the risk" and accepts responsibility there for. But for the exceptions set forth in paragraph (e) and which are inapplicable here, appellant's liability is absolute. Since the Government after the damage to aircraft No. 62-1831 "in the open" did not elect to repair or replace it, appellant became obligated to credit the contract price with, or to pay to the Government, the sum of $1,000, as provided in paragraph (e). IV Accordingly, the appeal must be and hereby is allowed in all respects except for the sum of $1,000 due the Government. As to that sum the appeal is denied. In view of the disposition of the appeal appellant's motion to dismiss is moot and dismissed. The matter is remanded to the contracting officer for appropriate action in accordance with the Board's decision. SECTION 2. Price Reduction for Defective Pricing Data CUTLER-HAMMER, INC. v. THE UNITED STATES 189 Ct. Cl. 76 (1969) 416 F. 2d 1306 DURFEE, Judge, delivered the opinion of the court: |