U.S. GOVERNMENT PRINTING OFFICE
BOARD OF CONTRACT APPEALS
WASHINGTON, D.C. 20401
STUART M. FOSS
Administrative Law Judge
The Appeal of THE WESSEL COMPANY, INC.
Docket No. GPO BCA 8-90
Jacket No. 234-553
Purchase Order 81837
February 28, 1992
DECISION AND ORDER
This appeal, timely filed by the Wessel Company, Inc., 1201
Kirk Street, Elk Grove Village, Illinois 60007-9703
(hereinafter Appellant or Wessel), is from the final
decision, dated February 1, 1990, of Contracting Officer
George W. Watson (Contracting Officer), of the U.S.
Government Printing Office, North Capitol and H Streets,
NW., Washington, DC 20401 (hereinafter Respondent or GPO),
denying the Appellant's claim for additional compensation
under the above-captioned contract (Jacket No. 234-553,
Purchase Order 81837), in the amount of $255,506 because it
had failed to substantiate and provide documentary evidence
in support of an entitlement (R4 File, Tab FF). 1/ The
gravamen of the Appellant's claim is that the Respondent's
14-workday delay in furnishing corrected proofs amounted to
a breach of contract which caused it financial harm.
Consequently, the Appellant filed a claim for damages
($255,506) with the Contracting Officer based on 672 hours
of idle time for two presses at an hourly rate of $375.00
per press ($252,000), and the carrying cost of stocking
paper for those extra days ($3,506.00). 2/ The issue in
this proceeding is whether or not the Board has jurisdiction
over "pure" breach of contract claims.
BACKGROUND
The relevant facts are not in dispute and are set forth here
only to the extent necessary for the Board's decision
concerning its jurisdiction over this appeal. On April 20,
1989, the Respondent issued an Invitation for Bids (IFB)
soliciting bids from potential contractors for the
production of 71,625,000 total copies of "Stamps By Mail,"
a product issued by the U.S. Postal Services (hereinafter
USPS) (R4 File, Tab A, p. 1). 3/ The following IFB
provisions are particularly pertinent to this appeal:
GOVERNMENT TO FURNISH: Camera copy with overlays; maximum size
142 x 11" and with tissue overlays showing color treatment. One
full color transparency; 8 x 10". Distribution lists containing
imprint addresses. Preaddressed Express Mail labels to be used
in conjunction with furnished strips of unaddressed gummed 1st
Class mailing labels for return of "Production Samples." Two
preaddressed, 52 x 3-7/16" pressure sensitive, 1st Class mailing
labels. One reproduction proof (image size 7-7/8 x 6-1/8") for
shipping container labels. GPO Form 892 proof label (R4 File,
Tab A, p. 1).
* * * * * * * * * *
CONTRACTOR TO FURNISH: All materials and operations, other than
those listed under "Government to Furnish," necessary to produce
the product(s) in accordance with these specifications (R4 File,
Tab A, p. 2).
* * * * * * * * * *
PROOFS: One set of Cromalin, Transfer Key, Matchprint, or similar
proofs (must be one-piece laminated color proofs) of the face of
each version (Version 1 must have one imprint in position).
These proofs must have illustrations and text matter composited.
One set of color key proofs of the back with all elements in
proper position.
Two sets of composite Dylux or similar proofs of each version
indicating all folds, perforations, and dry gum areas. One
complete set of galley proofs of all imprint addresses.
If any contractor's errors are serious enough in the opinion of
the GPO to require revised proofs, the revised proofs are to be
provided at no expense to the Government. No extra time can be
allowed for this reproofing; such operations must be accomplished
within the original production schedule allotted in the
specifications (R4 File, Tab A, p. 3).
* * * * * * * * * *
The contractor must not print prior to receipt of an "OK to
print" (R4 File, Tab A, p. 3). [Emphasis added.]
* * * * * * * * * *
SCHEDULE: Furnished material will be available for pickup. . .
[at the Respondent's facility] . . . on May 1, 1989 [May 8,
1989].
Submit proofs as soon as the contractor deems necessary in order
to comply with the shipping schedule. Proofs must be submitted
as complete sets. Proofs will be withheld 4 workdays from
receipt in the GPO until they are made available for pickup by
the contractor.
The contractor must notify the GPO of the date and time press
sheets will be available. In order that proper arrangements can
be made notification must be given at least 2 workdays in advance
of the time for inspection of the press sheets. . . .
Ship 21,625,000 copies . . . on or before May 19, 1989 [June 1,
1989].
Ship complete on or before June 2, 1989 [June 15, 1989] (R4 File,
Tab A, p. 7). 4/ [Emphasis added.]
Furthermore, the "Stamps By Mail," contract was to be
governed by applicable articles of GPO Contract Terms, GPO
Publication 310-2, effective December 1, 1987 (Rev. 9-88)
(1988 Contract Terms), and GPO's Quality Assurance Through
Attributes Program, GPO Publication 310.1, Revised September
1986 (QATAP), which were incorporated by reference therein
(R4 File), Tab A, p. 1). 5/ In that regard, one provision
in 1988 Contract Terms which is particularly relevant to
this appeal is the "Notice of Compliance with Schedules"
clause (Clause 12), which states, in part:
(c) Extension of schedules.
(1) In the event a delay is caused by any action of the
Government, including failure to furnish purchase/print order,
copy, GBL [Government Bills of Lading] and/or materials as
scheduled, the shipping/delivery schedule will be extended
automatically by the total number of workdays that work was
delayed PLUS 1 workday for each day of delay; such period of
grace for any schedule will not exceed 3 workdays. . . . (1988
Contract Terms, Contract Clauses, 12.(c)(1). 6/ [Emphasis
added.]
The record discloses that the IFB was sent to 16 potential
contractors, three of whom returned responsive bids (R4
File, Tabs B and C). One of the responding bidders was the
Appellant, who submitted an offer, dated May 2, 1989, to do
the work at an estimated cost of $937,910.00 (R4 File, Tab
B). As the lowest bidder capable of doing the work, the
Appellant was awarded the "Stamps By Mail," contract by the
issuance of Purchase Order 81837 on May 4, 1989 (R4 File,
Tab D).
The record shows that in accordance with the terms of the
contract, the Appellant received the Government-furnished
material on May 8, 1989 and returned the required proofs
four days later, on May 12, 1989 (R4 File, Tab F). Under
the "SCHEDULE" clause, GPO had 4 workdays to approve the
proofs and return them to the Appellant for final
production; i.e., until May 18, 1989 (R4
File, Tab F). The record discloses that on May 16, 1989, and May
17, 1989, respectively, Mark Olsen, the Appellant's Quality
Control Manager, made several inquiries of the Respondent
concerning the status of the proofs, and was informed that the
USPS had not returned them yet (R4 File, Tab G). On May 18,
1989, although the Respondent initially advised the Appellant
that the proofs would be returned that day, it subsequently
turned out that the USPS was not ready to proceed (R4 File, Tab
G). 7/ Around 1:20 p.m. on May 18, 1989, the Respondent
discovered, among other things, that: (1) the USPS was making
certain changes (author's alterations) to the proofs; (2) the
"construction sample" submitted by the Appellant did not meet the
specifications; (3) the art work modified by the Appellant was
not acceptable; (4) that revised proofs would be required before
an "OK to print" could be given; and (5) the date for the return
of the proofs was unknown (R4 File, Tab G). The Respondent
communicated this information to Olsen at 2:25 p.m. that same day
(R4 File, Tab G).
The record discloses that on May 24, 1989, the USPS returned
the defective "construction sample" to the Respondent with
instructions for corrections, and it seems that the returned
proof was immediately sent to the Appellant (R4 File, Tab
H). The following day, May 25, 1989, Dennis S. Renoll,
USPS' Senior Printing Contract Specialist, sent a memorandum
to the Respondent (Alice Jennings), which stated in
pertinent part:
I returned [the "construction sample"] . . . on May 24, 1989. . .
. for the purpose of resolving the construction (placement of the
dry gum) with the contract.
In approximately 1-1/2 weeks I will be forwarding to you the new
four color subject for panel 1. Upon my forwarding of the new
subject I will also return the authorization to proceed with the
job. We will require new proofs due to author's alteration.
However, during the time which are awaiting the new subject we
request that GPO resolve the construction problem with the
contractor to avoid any additional delay upon receipt of the new
subject (R4 File, Tab H). 8/ [Emphasis added.]
The record shows that on May 26, 1989, the Appellant sent a
revised "construction sample" to the Respondent and
requested verification that the new proof was correct (R4
File, Tab I). The Contracting Officer received the new
sample on May 31, 1989, and immediately forwarded the
corrected proof to the USPS for review. (R4 File, Tab I).
That same day, the Contracting Officer also received a
letter from the Appellant, dated May 30, 1989, and signed by
Anthony S. Jacobs, which stated, in pertinent part:
I am writing in the hope that something can be done soon to
develop and forward the art work for the above jacket.
We sent you chromalins for approval by overnite on May 11th. Our
expectation for approved return was Thursday, May 18th.
While we understand that, according to [the] contract terms, the
government has a right to delay as long as it wishes, it is
important to note that this is a major contract for our company
and that the press time scheduled for it cannot be resold on such
short notice.
Out here in Illinois we have heard for a long time that ours is
the kind and size of business that America wants to nourish.
Yet, for all those good intentions, the results of this delay
have been almost catastrophic.
A significant portion of our work force has been laid off. The
family pain caused by this is obvious. And, from a corporate
standpoint, our concern has to be about the number of good men
and women who will need to find other jobs during this period.
Additionally, we have been denied the expected sales revenues
that are vital to a company our size.
Certainly every business experiences difficulties from time to
time, but as this delay stretches on, our burden becomes almost
unbearable.
We understand that a cover photo needs to be redone for this
form. It is hard for us in business to understand why it has
taken so long. The government may move to a different drummer,
but it is hoped that those responsible for this photo will now
both recognize and understand our need for prompt action (R4
File, Tab J). [Emphasis added.]
On June 1, 1989, the USPS sent the Respondent the material
which Renoll had mentioned in his letter of May 25, 1989,
including one set each of Cromalin and Dylux proofs, a color
transparency, and galley proofs, and these were placed in
the Appellant's hand the same day (R4 File, Tab F). Because
the new material contained author's alterations, the
Appellant had to provide revised proofs before proceeding
with production of the copies of "Stamps by Mail" (R4 File,
Tab F). 9/ The record discloses that the Appellant provided
the required proofs to the Respondent on June 6, 1989 (R4
File, Tab F). On June 8, 1989, after the proofs had been
reviewed and approved by the USPS, the Respondent returned
them to the Appellant with an "OK to print" (R4 File, Tab
F). Since the USPS had held on to the proofs for more than
the "4 workdays" allowed in the "SCHEDULE" clause, the
shipping/delivery schedule was automatically extended by
the total number of workdays that the work was delayed plus
1 workday for each day of delay; i.e., by operation of the
contract the ship/complete date was adjusted to July 11,
1989. 10/ 1988 Contract Terms, Contract Clauses, 12.(c)
(1).
Shortly after receiving the approval to print, the
Appellant, by letter dated June 16, 1989, wrote to the
Respondent and requested a contract modification "due to
author's alterations by the Government resulting in an OK to
print on [June 9, 1989]" with respect to shipping dates for
the Imprints and the Generics (the Appellant anticipated
completed shipping the Imprints by June 23, 1989, and the
Generics by July 17, 1989) (R4 File, Tab K-1). Because it
took time for the parties to resolve certain production
problems and issues, the record discloses that the Appellant
did not complete shipment on the contract until August 2,
1989, and a contract modification (Contract Modification
(No. 1) was issued accordingly (R4 File, Tabs Y and AA). 11/
The issue in this case stems from the Appellant's second
request for a contract modification. In that regard, on
July 21, 1989, the Appellant wrote a letter to the
Contracting Officer, which stated in pertinent part:
This is in reference to Jacket 234-553 and the financial hardship
caused by the [G]overnment by holding proofs longer than the four
workdays required by the specifications. Because of this delay,
two of our presses were idle for 672 hours (14 workdays) at a
cost of $375.00 per hour. We are asking for a contract
modification in the amount of $252,000.
In the absence of a compensable delays clause, we are entitled to
compensation for delays if they are the result of government
fault. Government fault will be found if the Government breaches
its implied duty not to hinder or interfere with the contractor's
performance. The 14-day delay in returning proofs after they
were submitted interfered with our production plan. Due to the
press time required for this job and the indefinite schedule
created by the delay, the Wessel Company could not schedule any
work during the delay (R4 File, Tab O). [Emphasis added.]
Another written request for this contract modification was
made by the Appellant on August 14, 1989, followed by a
telephone inquiry on August 22, 1989 (R4 File, Tabs P-1 and
R). The record shows that on August 23, 1989, the
Contracting Officer sent the Appellant's contract
modification request to the Respondent's Office of the
Inspector General (OIG) for an audit (R4 File, Tab S). The
record also discloses that a week later, on September 1,
1989, the Contracting Officer wrote to the Appellant,
confirming a telephone conversation earlier that day, and
asked for: (1) all available information/documentation which
would support the $252,000 claim; and (2) a certification of
the claim by the Contractor, as a prerequisite for an audit
by the OIG (R4 File, Tab V). 12/ See, GPO Printing
Procurement Regulation, GPO Publication 305.3, effective
September 1, 1988, Chap. X, Sec. 1, 3. The Appellant
responded to the Contracting Officer's request on September
14, 1989, by sending a properly certifying the claim to the
Respondent along with its "press logs" for the dates in
question, which showed that the presses were idle for 672
hours (R4 File, Tab W). The Appellant's letter also revised
its claim by adding the extra days carrying cost for the
paper it had stocked beginning May 19, 1989 -- $3,506 --
thus making the total amount allegedly due and owing
$255,506 (R4 File, Tab W).
The OIG submitted its audit report on the Appellant's claim
to the Contracting Officer on December 13, 1989 (R4 File,
Tab BB).
In its report, the OIG found support for only a portion of the
Appellant's "idle press time" claim, no support whatsoever for
the claim related to the carrying costs of paper, and recommended
that the claim be settled for "no more than $36,710" (R4 File,
Tab BB, pp. 2). On January 30, 1990, nearly six weeks after
receiving the OIG audit report, the Contracting Officer wrote to
the Appellant and denied the Appellant's second request for a
contract modification "because of your failure to furnish
substantiated and documented evidence to support an entitlement"
(R4 File, Tab EE). 13/ Two days later, on February 1, 1990, the
Contracting Officer wrote an identical letter to the Appellant,
specifically designated this time as his "final decision," and
set forth the Appellant's appeal rights to this Board (R4 File,
Tab FF). 14/ The Appellant's response was a letter, dated
February 9, 1990, to the Board noting its appeal from the
Contracting Officer's final decision.
ISSUE PRESENTED
At the prehearing conference held on February 7, 1991, the
Board observed that the "pure" breach of contract issue
raised by the Appellant is a matter of first impression.
See, Prehearing Conference Report (PCR), dated March 28,
1991, p. 11. That issue is a strictly a legal question, and
it goes to the jurisdiction of the Board over this matter;
thus its resolution is absolutely necessary before the case
can proceed. Id. Accordingly, pursuant to a decision it
made at the prehearing conference, the Board severed the
jurisdictional issue from the merits of the case and
directed the parties to brief the following question:
Does the GPO Board of Contract Appeals have jurisdiction over
breach of contract claims?
See, Order Setting Briefing Schedule (Briefing Order), dated
March 28, 1991, p. 2; PCR, p. 12. 15/
POSITIONS OF THE PARTIES 16/
1. The Appellant's Position
From the outset, the Appellant has stated openly that the
disputed claim was ". . . for damages for GPO's failure to
return proofs to Wessel in accordance with GPO's contractual
obligations." 17/ See, App. C., 4, p. 1. According to the
Appellant, GPO's failure to release the proofs until 14
workdays later than the four day contractual withholding
period constitutes a breach of contract. Id., 21 (citing,
Swinerton & Belvoir, ASBCA No. 24022, 81-1 BCA 12,156;
Specialty Assembling & Packing Company v. United States, 355
F.2d 554 (Ct. Cl. 1966). The Appellant believes that the
Board clearly has the authority to decide breach of contract
matters. App. Brf., p. 1; PCR, p. 8.
The Appellant's position is predicated on its reading of the
"Disputes" clause applicable to the contract, which provides
that "any dispute concerning a question of fact arising
under or relating to this contract" shall be decided by the
Contracting Officer, whose decision may be appealed to the
Board. 1988 Contract Terms, Contract Clauses, 5(a),(b).
[Emphasis added.] See also, PCR, p. 9. Furthermore, the
Appellant notes that the preface to the Board's Rules of
Practice and Procedure provides that "[the Board] shall
consider and determine appeals from final decisions of
contracting officers relating to contracts . . .". Board
Rules, Preface to Rules, Sec. I (Jurisdiction for
Considering Appeals), at p. 1. App. Brf., p. 6; PCR, p. 10.
The Appellant contends that disputes clauses using such
"relating to" language, like the Federal Acquisition
Regulation (FAR), 52.233-1(b), have traditionally
encompassed breach of contract claims. App. Brf., p. 2;
PCR, pp. 9-10. Moreover, to the Appellant "it is patently
clear" that the phrase "relating to" was added to the old
standard "Disputes" clause after the enactment of the
Contract Disputes Act of 1978 (CDA), Pub. L. 95-563
(November 1, 1978), 92 Stat. 2383, 41 U.S.C. 601 et seq.,
to reflect the enlarged jurisdiction of agency boards of
contract appeals to encompass over breach of contract
claims. 18/ App. Brf., p. 2.
The Appellant also contends that the legislative history of
the "relating to" language in the CDA, 41 U.S.C. 605(a),
606, gives clear evidence that its purpose was to grant
authority to contracting officers and agency boards to
decide all disputes connected to a contract, including
breach of contract claims. App. Brf., p. 2 (citing, S. REP.
No. 95-1118, 95th Cong., 2d Sess. (1978), reprinted in 1978
U.S. Code Cong. & Ad. News 5235, 5253). Furthermore, by
including claims relating to contracts, the CDA extended the
jurisdiction of boards of contract appeals to breach of
contract claims which are not redressable under a contract
clause. App. Brf., p. 3 (citing, Federal Electric
Corporation, ASBCA No. 24004, 82-2 BCA 15,862 at 17,651;
Gentex Corporation, ASBCA No. 24040, 79-2 BCA 14,007 at
68,779; Paragon Energy Corporation v. United States, 645
F.2d 966, 975 (Ct. Cl. 1981)). Thus, the Appellant reasons
that by revising its "Disputes" clause to conform to the CDA
language by including disputes "relating to" the contract,
the Respondent has consented to the Board's exercise of
jurisdiction over breach of contract claims. App. Brf., p.
3; PCR, pp. 9, 10; App. R. Brf., p. 2. As the Appellant
sees the law, in the absence of the CDA the parties
themselves may establish the scope of the jurisdiction of
the contract appeals boards by the terms of their agreement.
App. R. Brf., p. 2 (citing, General Dynamics Corporation v.
United States, 558 F.2d 985, 990 (Ct. Cl. 1977); Potomac
Company, Inc., ASBCA No. 25371, 81-1 BCA 14,950 (post-CDA
case)).
Additionally, the Appellant argues that its position is
supported by the historical distinction between disputes
clauses involving claims "arising under" a contract ("fact-
disputes" clauses), where the contract itself contains a
remedy-granting provision, and disputes clauses concerning
claims "related to" a contract ("all-disputes" provisions),
which are much broader in scope. App. Brf., pp. 3-4
(citing, King and Queen Drive-In, ASBCA No. 14764, 72-1 BCA
9467 ("all-disputes" clause); Texida, Inc., ASBCA No. 19854,
75-2 BCA 11,505 ("all-disputes" clause); S & W Tire
Services, Inc., GSBCA No. 6376, 82-2 BCA 16,048 ("all-
disputes" clause). 19/ The Appellant observes that prior to
the enactment of the CDA, the standard disputes provision
was a "fact-disputes" clause which limited the jurisdiction
of the boards of contract appeals to disputes "concerning
questions of fact arising under" the contract. App. Brf.,
p. 4; PCR, pp. 8-9. In agreement with the Respondent, the
Appellant states that the "settled construction" of that
clause "excludes breach of contract claims from its
coverage" because of the restrictive meaning given to the
words "arising under the contract." App. Br., pp. 4-5
(citing, United States v. Utah Construction and Mining
Company, 384 U.S. 394, 407, 412 (1966)); PCR, p. 9.
However, the Appellant believes that the Respondent is
relying on "stale precedent" in denying jurisdiction to the
Board in this case. App. Brf., p. 5; PCR, p. 8. In the
Appellant's view, the cases cited by the Respondent, infra,
including the decisions of the ad hoc panels which
considered GPO contract disputes prior to the establishment
of the Board, all construed the "fact-disputes" clause used
prior to the CDA, and merely confirm that the provision did
not encompass breach of contract claims. 20/ App. Brf., pp.
5-6.
Finally, the Appellant believes that the Respondent is
erroneously relying on the doctrine of "sovereign immunity",
infra, as a bar to the Board's jurisdiction in this matter.
21/ App. R. Brf., p. 1. The Appellant states that agencies
can and do waive sovereign immunity by contract. App. R.
Brf., p. 3 (citing, Color Corner, Ltd., ASBCA No. 26683,
82-2 BCA 15,957 at 79,095 (non-CDA case)).
In summary, the Appellant contends that because its contract
is governed by an "all-disputes" clause, and its breach of
contract claim "relates to" the agreement, the parties have,
in effect, consented to the Board's jurisdiction in this
matter. App. Brf., p. 6; App. R. Brf., p.3. Indeed, as
indicated above, the Appellant believes that the use of the
words "relating to contracts" in the Board's own rules, when
combined with the language in the "Disputes" clause,
provides a sufficient legal basis for the Board to assert
jurisdiction over the Appellant's breach of contract claim.
Board Rules, Preface to Rules, Sec. I (Jurisdiction), at p.
1. App. Brf., p. 6. Accordingly, for these reasons the
Appellant urges the Board to find that it has jurisdiction
to consider the merits of this appeal.
2. The Respondent's Position
The Respondent, on the other hand, has maintained throughout
these proceedings that the Board is without jurisdiction to
hear the Appellant's breach of contract claim. Answer,
First Defense, p. 1; PCR, p. 7. The essence of the
Respondent's argument is its belief that nothing in the
statutory or regulatory underpinnings of the Board amounts
to a waiver of sovereign immunity. 22/ Res. Brf., p. 2. In
that regard, the Respondent notes that prior to 1978, agency
boards of contact appeals uniformly held that they had no
jurisdiction to entertain breach of contract claims. Res.
Brf., p. 3 (citing, Jack Clark, ASBCA No. 3672, 57-2 BCA
1,402; Alco Lumber Company, Inc., ASBCA No. 9641, 1964 BCA
4,349; and E. & E. Pfotzer Engineers, ENGBCA No. 2656, 65-2
BCA 5,144). Furthermore, the United States Supreme Court
had declared that "the settled construction" of the disputes
clause then used by Government agencies ". . . exclude[d]
breach of contract claims from its coverage. . . .". United
States v. Utah Construction and Mining Company, supra, 384
U.S. at 394.
In 1978 Congress enacted the CDA which, among other things,
broadened the jurisdiction of contracting officers and
boards of contract appeals by expressly waiving the
Government's sovereign immunity with respect to breach of
contract claims brought by third parties. S. REP. No.
95-1118, 95th Cong., 2d Sess. (1978), 1, reprinted in 1978
U.S. Code Cong. & Ad. News 5235. Resp. Brf., pp. 3-4. To
the Respondent, the legislative history of the CDA makes
clear that Congress believed without the law, agency
contracting officers lacked the power to settle and pay
breach of contract claims and boards of contract appeals
lacked the power to decide them. Res. R. Brf., p. 2. The
authority of agency boards of contract appeals to consider
breach of contract claims is found in 607(d) of the CDA
which states, in pertinent part, that " . . . [i]n
exercising [its] jurisdiction, the agency board is
authorized to grant any relief that would be available to a
litigant asserting a contract claim in the United States
Claims Court." 41 U.S.C. 607(d). Res. Brf., p. 4 (citing,
Carter Funeral Home-Toano, ASBCA No. 24743, 80-2 BCA
14,473; TMW, A Joint Venture, ASBCA No. 24349, 80-1 BCA
14,389).
As the Respondent also observes, the CDA's waiver of
sovereign immunity is expressly limited to "executive
agencies." 41 U.S.C. 601(2). Relying on the legislative
history of the CDA, the Respondent states that Congress
deliberately excluded judicial and legislative branch
agencies from its coverage because "[a]cquisition activity
by these agencies is relatively small, and subjecting them
to regulations promulgated by the executive branch agencies
could raise constitutional questions under the 'separation
of powers' doctrine." Res. Brf., p. 4 (citing, S. REP. No.
95-1118, 95th Cong., 2d Sess. (1978), 16, reprinted in 1978
U.S. Code Cong. & Ad. News 5250. Thus, the Respondent
argues that since GPO is an office in the legislative branch
of the U.S. Government, Res. Brf., pp. 4-5 (citing, United
States v. Allison, 91 U.S. 372 (1876); Thompson v. Sawyer,
678 F.2d 257 (D.C. Cir. 1982); McKenzie v. Sawyer, 684 F.2d
62 (D.C. Cir. 1982); Government Printing Office Employees,
B-128759, 36 Comp. Gen. 163 (1956); Photo-Data, Inc.,
B-208272, 83-1 CPD 281; Fry Communications, Inc., B-207605,
83-1 CPD 109), contract disputes between GPO and its
contractors are not subject to the CDA. 23/ Res. Brf., p.
5. According to the Respondent, this issue was
"definitively settled" in Tatelbaum v. United States, 749
F.2d 729 (Fed. Cir. 1984), where the Court held that
decisions of the Board could not be appealed directly to the
U.S. Court of Appeals for the Federal Circuit because they
were not rendered pursuant to the CDA, and GPO, as a
legislative branch agency, was not covered by that Act
(citing, International Graphics v. United States, 4 Cl.Ct.
186, 197 (1983)). 24/ Res. Brf., p. 5.
The Respondent argues that absent the CDA's waiver of
sovereign immunity, the Board is in the position of agency
boards prior to the passage of that law, and hence is
without authority to decide breach of contract claims. Res.
Brf., p. 5.; Res. R. Brf., p. 3. Furthermore, the
Respondent states that "[t]he GPOBCA, citing, United States
v. Utah Construction, has held '[t]o the extent appellant
seeks damages for alleged breach of contract by the
Government, this Board is without jurisdiction.' (citing,
Harbor Printing & Copy Service, Inc., GPOBCA No. 77-5
(1977); Cloverleaf Enterprises, Inc., GPOBCA 79-12 (1980);
and Information Systems, Inc., GPOBCA No. 78-11 (1979))."
25/ Res. Brf., pp. 5-6.
The Respondent acknowledges that its "Disputes" clause
parallels the language in FAR 52.233-1(b), which the
Appellant contends traditionally encompasses breach of
contract claims; however, it argues that real question in
this appeal is not whether the Board can hear such a claim,
but rather "whether the GPO is empowered to waive sovereign
immunity, in the absence of congressional authorization."
Res. R. Brf., p. 1. As indicated previously, the Respondent
believes that the legislative history of the CDA shows a
clear congressional intent to furnish contracting officers
and boards of contract appeals with the power to settle, pay
and decide breach of contract claims where such authority
had not existed before. Res. R. Brf., p. 2. According to
the Respondent, a review of the history of the development
of the administrative resolution of breach of contract
claims discloses that agencies only enlarged the
jurisdiction of their boards after some congressional
action. 26/ Res. R. Brf., p. 2 (citing, Bendix Corporation,
ACAB Dkt. No. 1050, September 11, 1962 (unliquidated damages
for delay in breach of contract actions)). The Respondent
contends that, as a consequence, in order to alleviate the
full impact of the sovereign immunity doctrine, agencies
added contract clauses that provided a contract remedy for
breach of contract claims; e.g., the "suspension of work"
clause, which was added after the Supreme Court's decision
in United States v. Rice, 317 U.S. 61 (1942), allows a
contract an extension of time for Government delays. 27/
Res. R. Brf., pp. 3-4. Accordingly, for all of these
reasons, the Respondent believes that the Board lacks
jurisdiction to hear Appellant's breach of contract claim,
and submits that the appeal should be dismissed.
DECISION 28/
This appeal presents an issue of first impression for the
consideration of the Board. No other case previously before
the Board has asked it to weigh its jurisdictional mandate
against a "pure" breach of contract claim. 29/
Furthermore, it appears that this is the first instance in
which the Board has had to interpret the scope of its
jurisdiction in light of the 1988 revisions to the
"Disputes" clause in GPO Contract Terms. However, for the
reasons which follow, the Board believes that
notwithstanding those changes, it still lacks the authority
to entertain "pure" breach of contract claims where redress
is sought in the form of damages. 30/
At the outset, the Board believes that in order to properly
understand the issue and decision in this case, it would be
worthwhile to explain, as it has done in other cases, the
exact nature of its authority. In that regard, the Board's
jurisdiction rests on two legs. The first is the Board's
"enabling statute" -- GPO Instruction 110.10C -- and the
regulation which implements it -- GPO Instruction 110.12.
The second leg is the "Disputes" clause itself.
GPO Instruction 110.10C, which established the Board,
provides, in pertinent part:
3. Statutory Authority. The United States Government Printing
Office (hereinafter GPO) is an Office in the legislative branch
of the United States Government. United States v. Allison, 91
U.S. 372 (1876); Lewis v. Sawyer, C.A. No. 82-2869, Memorandum at
3 (D.D.C. Dec. 20, 1982); Thompson v. Sawyer, 678 F.2d 257 (D.C.
Cir. 1982); McKenzie v. Sawyer, 648 F.2d 257 (D.C. Cir. 1982);
Comp. Gen. Op. B-208272 (1983); Comp. Gen. Op. B-152126 (1963);
36 Comp. Gen. 163 (1956); 34 Comp. Gen. 485 (1955). As such, GPO
contract disputes are not subject to the procedures prescribed by
the Administrative Procedure Act, 5 U.S.C. 551 et seq. (1982),
or the Contract Disputes Act of 1978, Pub. L. No. 95-563, 92
Stat. 2383-91 (codified at 41 U.S.C. 601-613 (1982)). The GPO
is under the direction and supervision of the Public Printer of
the United States, whose statutory and administrative powers
include the authority to enter into contracts on behalf of the
United States and to make final administrative determinations
regarding such contracts. See 44 U.S.C. 301, 309, 501, 502
(1982).
* * * * * * * * * *
5. Jurisdiction of the Board. The Board shall consider and
determine appeals from final decisions of Contract Officers
relating to contracts which contain provisions requiring the
determination of appeals by the Public Printer, or his duly
authorized representative or board. By agreement, the Board may
also consider and determine appeals from decisions of other
legislative branch Contracting Officers made pursuant to their
contracts. In addition, the Board shall have jurisdiction over
such other procurement-related matters as may be assigned to it
by the Public Printer. The Board has authority to determine
appeals falling within the scope of its jurisdiction as fully and
finally as might the Public Printer.
* * * * * * * * * *
7. Decisions of the Board
a. Appeals shall be heard by a single Administrative Judge who
shall decide them in an impartial, fair, and just manner.
Decisions shall be supported by substantial evidence on the
record as a whole. The decision shall be deemed the decision of
the Board.
b. When an appeal is taken pursuant to a Disputes clause of a
contract which limits appeals to disputes concerning questions of
fact, the Board may, in its discretion, hear, consider, and
decide all questions of law necessary for the complete
adjudication of the appeal. In consideration of an appeal,
should it appear that a claim is involved which is not cognizable
by the Board, the Board may make findings of fact with respect to
such claims without expressing an opinion on the question of
liability. [Emphasis added.]
Similarly, the preface to the Board's Rules of Practice and
Procedure, GPO Instruction 110.12, provides, in relevant
part:
I. Jurisdiction for Considering Appeals. [The Board] . . .
shall consider and determine appeals from final decisions of
contract officers relating to contracts which contain provisions
requiring the determination of appeals by the Public Printer, or
his duly authorized representative or board. By agreement, the
Board may also consider and determine appeals from decisions of
other legislative branch Contracting Officers made pursuant to
their contracts. In addition, the Board shall have jurisdiction
over other procurement-related matters assigned to it by the
Public Printer. The Board has authority to determine appeals
falling within the scope of its jurisdiction as fully and finally
as might the Public Printer.
* * * * * * * * * * *
V. Decisions on Questions of Law. When an appeal is taken
pursuant to a "Disputes" clause of a contract which limits
appeals to disputes concerning questions of fact, the Board may,
in its discretion, hear, consider, and decide all questions of
law necessary for the complete adjudication of the appeal. In
consideration of an appeal, should it appear that a claim is
involved which is not cognizable by the Board, the Board may make
findings of fact with respect to such claims without expressing
an opinion on the question of liability. [Emphasis added.]
As indicated above, the second prong of the Board's
jurisdiction is found in the "Disputes" clause of GPO
Contract Terms, which currently provides:
5. Disputes.
(a) Except as otherwise provided, any dispute concerning a
question of fact arising under or related to this contract which
is not disposed of by agreement shall be decided by the
Contracting Officer, who shall make his/her decision in writing
and mail or otherwise furnish a copy thereof to the contractor.
(b) The decision of the Contracting Officer shall be final and
conclusive unless, within 90 days from the date of receipt of
such copy, the contractor mails or otherwise furnishes a written
notice of appeal to the Government Printing Office Board of
Contract Appeals.
(c) The decision of the Board shall be final and conclusive
unless determined by a court of competent jurisdiction to have
been fraudulent, or capricious, or arbitrary, or so grossly
erroneous as necessarily to imply bad faith, or not supported by
substantial evidence.
(d) In connection with any appeal under this article, the
contractor shall be afforded an opportunity to be heard and to
offer evidence in support of his/her appeal. Pending final
decision of a dispute hereunder, the contractor shall proceed
diligently with performance and in accordance with the
Contracting Officer's decision.
(e) This article does not preclude consideration of law questions
in connection with decisions provided for in paragraph (d);
provided, that nothing shall be construed as making final the
decision of any administrative official, representative, or board
on a question of law. 31/ [Emphasis added.]
On those occasions when it has had to consider its
regulatory foundations in deciding appeal, the Board has
consistently maintained that its jurisdiction was narrowly
defined. Thus, in Peake Printers, Inc., GPO BCA 12-85
(November 12, 1986), the Board denied a contractor's request
for a contract modification, stating, among other things:
The Board is not a creature of statute; thus, it has no powers
which arise under law as do courts. Instead, it derives all its
powers by virtue of the so-called disputes clause of the contract
itself. That clause, Article 2-3 of GPO Contract Terms No. 1,
gives a contractor the contractual right to appeal any dispute
with the Contracting Officer which is "related to the contract"
to the Public Printer who is in fact the Officer of the United
States authorized by statute to contract on behalf of the United
States (44 U.S.C. 502). The disputes clause in turn gives the
Public Printer the authority to delegate his appeal authority to
his designee which he has done by instruction 110.12 dated
September 17, 1984, designating this Board has his agent for that
purpose. Thus, the Board's authority is purely derivative and
contractual. As such, it is constrained by the terms of the
contract itself. Since this is the case, the Board cannot
enlarge the very agreement between the parties from which it
derives its authority merely because it deems such action to be
equitable, but will be constrained to deciding disputes within
the parameters of the contract itself. [Emphasis added.]
Sl. op. at 6. See also, Bay Printing, Inc., GPO BCA 16-85
(January 30, 1987), Sl. op. at 9. 32/ Furthermore, Automated
Datatron, Inc., GPO BCA 20-87 (March 31, 1989), the Board pointed
out that:
The Public Printer has not under the provision of paragraph 5 of
GPO Instruction 110.10C delegated authority to this Board to
consider legal questions existing outside the contract itself.
Sl. op. at 4-5.
Since the Board's authority is purely derivative and
contractual, and because it must decide contract appeals
within the "four corners" of the agreement itself, the
historic position in GPO with respect to the resolution of
breach of contract claims has been that the rule in Utah
Mining is controlling. United States v. Utah Construction
and Mining Company, supra, 384 U.S. at 407, 412. As the
Respondent correctly notes, the ad hoc panels of CAB, the
Board's predecessor, uniformly held that they lacked
jurisdiction to award damages for alleged breaches of
contract by the Government. Thus, for example, in Microform
Data System, Inc., GPOCAB No. 3-79 (February 1, 1980), where
the "Disputes" clause gave the Board jurisdiction over ". .
. any dispute concerning a question of fact arising under
this contract . . .", the panel stated:
It is our opinion that what the Court [in Utah Mining] is saying
in this case is that unless there is specific language in the
contract to convert what would otherwise be a claims [sic] for
damages for breach of contract into claims payable under such
contract and hence to be regard as "arising under the contract,"
the [CAB] does not have authority to entertain a breach of
contract case.
There is no language in this contract that would convert a pure
breach of contract claim into one that would bring it under the
provisions of the Disputes clause. Therefore, this case comes
squarely under the rule set down in [Utah Mining], where at p.
412 it states:
Thus the settled construction of [the] disputes clause excluded
breach of contract claims from its coverage . . .
Microform Data System, Inc., Sl. op. at 10, 11-12. See also,
Harbor Printing & Copy Service, Inc., supra, Sl. op. at 1;
Information Systems, Inc., supra, Sl. op. at 5-7; Cloverleaf
Enterprises, Inc., supra, Sl. op. at 10-11. Accord, Jet
Services, Inc., DOT CAB No. 77-14, 78-2 BCA 13,223, at 64,675;
Blake Construction Company, Inc., supra, 67-1 BCA 6,311, at
29,197-98.
The 1980 revisions to GPO Contract Terms changed the key
phrase in the first part of the "Disputes" clause from ". .
. any dispute concerning a question of fact arising under
this contract . . ." to ". . . any dispute concerning a
question of fact related to the contract . . .". It was
this latter language which furnished the basis for the
Board's jurisdiction when it was established in 1984. See,
GPO Instruction 110.10C, 5; GPO Instruction 110.12,
Preface, I. Finally, in 1988 the "Disputes" clause was
amended again so that the pertinent wording is now ". . .
any dispute concerning a question of fact arising under or
related to this contract . . .". 33/ Notwithstanding the
fact that the "Disputes" clause has contained the phrase
"related to" since 1980, which, as the Appellant suggests,
traditionally encompasses breach of contract claims, the
Board agrees with the Respondent that the real question here
is whether GPO's tinkering with the relevant language has
resulted in any substantive change in the powers of this
Board to decide such cases.
In the Board's view, the key "Disputes" clause language
which prevents it from taking jurisdiction over "pure"
breach cases is not found in the first paragraph of that
clause, but rather in the last. Until 1988, paragraph (b)
of the "Disputes" clause had provided:
This Disputes clause does not preclude consideration of law
questions in connection with decisions provided for in paragraph
(a) above: Provided, that nothing in the contract shall be
construed as making final the decision of any administrative
official, representative or board on a question of law.
1980 Contract Terms, 2-3.(b). See, Microform Data System, Inc.,
supra, Sl. op. at 10. The only changes made in 1988 were
cosmetic and minor; i.e., the paragraph was renumbered and the
phrase "in the contract" after the word "nothing" was deleted,
but the
37
language was not otherwise altered. 1988 Contract Terms, 5.(e).
The concept embodied in the "Disputes" clause's last paragraph
was incorporated into the Board's "enabling legislation" and
carried forward into its rules. That is, the Board is instructed
that in dealing with issues of law, it has discretion under the
"Disputes" clause to ". . . hear, consider, and decide all
questions of law necessary for the complete adjudication of the
appeal," and if it appears that jurisdiction is lacking, the
Board may nonetheless ". . . make findings of fact with respect
to such claims without expressing an opinion on the question of
liability." GPO Instruction 110.10C, 7.b.; GPO Instruction
110.12, Preface, V.
Whether or not the Respondent has committed a breach of
contract is a question of law. Microform Data System, Inc.,
supra, Sl. op. at 15; Cloverleaf Enterprises, Inc., supra,
Sl. op. at 11. Therefore, as the Board understands its
mandate, even if it agreed with the Appellant's position
with regard to the meaning of the paragraph (a) of the
"Disputes" clause -- that the phrase "related to" gave the
Board jurisidction over its breach of contract claim -- it
would nonetheless have to deal with the dilemma created by
paragraph (e) -- that the Board's decision would not be
final and binding, but advisory only. Stated otherwise, if
these competing paragraphs of the "Disputes" clause were to
be harmonized and given a literal reading, the Board would
be allowed to make factual determinations regarding the
Appellant's breach of contract claim, but it would be
prevented from awarding a meaningful remedy. This situation
was specifically addressed by the Supreme Court in Utah
Mining, where it observed, in pertinent part:
The United States, . . . contends that even if it be accepted
that the Boards of Contract Appeals are without jurisdiction to
grant relief for breach of contract they are nevertheless
authorized by the disputes clause to make binding findings of
fact respecting all disputes.
* * * * * * * * * *
[T]he present charter of the ASBCA provides that:
"[when] in the consideration of an appeal it appears that a claim
is involved which is not cognizable under the terms of the
contract, the Board may, insofar as the evidence permits, making
findings of fact with respect to such a claim without expressing
an opinion on the question of liability." [Citation omitted.]
* * * * * * * * * *
The practice of the ASBCA has evidenced an even narrower
understanding of the charter provision authorizing findings
without expression of opinion on liability. . . . [T]he Board has
explained that:
"[generally,] as a matter of sound policy, the Board's
discretionary right to make findings of fact in instances where a
claim is not cognizable under the contract is not exercised,
simply because the Board has no way to afford the parties the
remedy which logically would flow from the facts found. The
cases wherein the Board has declined to consider an appeal
because it had no method within the confines of the contract
terms to afford a remedy have sometimes been described rather
inaptly as being beyond our jurisdiction or beyond our authority
to consider. Basically, the lack is not of authority to hear but
of authority to finally dispose administratively." [Citation
omitted.] [Emphasis added.]
United States v. Utah Construction and Mining Company, supra, 384
U.S. at 407-11. See also, Blake Construction Company, Inc.,
supra, 67-1 BCA 6,311, at 29,197-98. This is the exact problem
faced by the Board with respect to the Appellant's breach of
contract claim. We also believe that "sound policy" justifies our
decision not to exercise jurisdiction here because we would be
unable to dispose of it with finality.
As for the Appellant's contention that the enactment of the
CDA, and GPO's subsequent revision of the "Disputes" clause
to conform to that law, enlarged the Board's jurisdiction
and gave it authority over breach of contract claims by
consent of the parties, Board believes that the argument is
without substance. The contractor in Microform Data System,
Inc., made a similar point when he argued that the CDA
effectively overruled the Supreme Court's holding in Utah
Mining. Microform Data System, Inc., supra, Sl. op. at 6,
12. However, the CAB panel rejected that contention noting
that notwithstanding Congress' conferring breach of contract
jurisdiction on agency boards in section 8(d) of the CDA, 41
U.S.C. 607(d), S. REP. No. 95-1118, 95th Cong., 2d Sess.
(1978), reprinted in 1978 U.S. Code Cong. & Ad. News 5239,
5259, that legislation also:
. . . provided that a contractor could go directly to the Court
of Claims in lieu of appealing to the Contract Appeals Board. It
retained the [Wunderlich Act] language on questions of law and
provided in 41 U.S.C. 609(b):
"In the event of an appeal by a contractor or the Government from
a decision of any agency board pursuant to section 607 of this
title, notwithstanding any contract provision, regulation or
rules of law to the contrary, the decision of the agency board on
any question of law shall not be final or conclusive, but the
decision on any question of fact shall be final and conclusive
and shall not be set aside unless the decision is fraudulent, or
arbitrary, or capricious or so grossly erroneous as to necessary
imply bad faith, or if such decision is not supported by
substantial evidence."
If [the CDA] was in effect prior to Utah Mining, . . . there may
have been a difference in the [sic] some aspects of the decision,
but it would not have affected a question similar to the one
before this Board. We are not considering a fact question, but
one of law, and both the Wunderlich Act and the [CDA] are
consistent with regard to decisions by Contract Boards of Appeal
on questions of [l]aw and that is they are not final when an
Appeals Board decides them. [Emphasis added.]
Microform Data System, Inc., supra, Sl. op. at 15. Consequently,
in this case, whether the Board assumed jurisdiction over breach
of contract claims by law or by consent, it would still be unable
to make a final disposition of the matter. Therefore, nothing in
the Appellant's contention in this regard defeats the sound
policy reasons favoring the Board's refusal to exercise its
discretion to make factual findings only on such claims, while
remaining silent on the issue of liability, and thus provide the
Appellant with only "half a loaf."
Furthermore, the Board is not persuaded by the Appellant's
argument that the Respondent's reliance on the "sovereign
immunity" doctrine is misplaced in this case. The case
cited to the Board for the proposition that agencies can and
do waive sovereign immunity by contract -- Color Corner,
Ltd. -- involved a NAF activity over which the ASBCA has
exercised plenary jurisdiction for years under regulations
of the Department of Defense. See also, King and Queen
Drive-In, supra, 72-1 BCA 9467; Texida, Inc., supra, 75-2
BCA 11,505. Indeed, NAFs were always considered sui
generis in the Federal Government's organizational scheme
because of their quasi-commercial aspects and their close
connection to the welfare funds of the Military Departments;
hence, the Board is not persuaded that the GPO's situation
it analogous to that of the NAFs. 34/ See, Champaign-Urbana
News Agency, Inc. v. J. L. Cummins News Company, Inc.,
supra, 632 F.2d at 683-87. More importantly, all of the
cases cited by the Appellant arose in the executive branch.
The Board, in deciding whether to exercise its discretion in
this matter and hear the appeal, must be mindful of the fact
that GPO is an entity within the legislative branch and that
Congress has expressed a certain intent with respect to the
processing of contract claims arising in this branch of
Government. See, Tatelbaum v. United States, supra, 749
F.2d at 730.
Congress expressly excluded judicial and legislative branch
agencies from coverage of the CDA because it thought that
"[a]cquisition activity by these agencies is relatively
small, and subjecting them to regulations promulgated by the
executive branch agencies could raise constitutional
questions under the 'separation of powers' doctrine." 35/
S. REP. No. 95-1118, 95th Cong., 2d Sess. (1978), 16,
reprinted in 1978 U.S. Code Cong. & Ad. News 5250. The CDA
is a clear expression of Congress' intent to waive the
Government's sovereign immunity with respect to breach of
contract claims against covered Federal agencies. Id., at
5239. 41 U.S.C. 607(d). Because Congress did not include
GPO within the parameters of the CDA, the Board must
conclude that sovereign immunity still applies to breach of
contract claims brought against this agency unless some
other law governing GPO provides a waiver.
As stated before, the Board only has such powers delegated
to it by the Public Printer, the Officer of the United
States authorized by statute to contract on behalf of the
United States. Peake Printers, Inc., supra, Sl. op. at 6;
Bay Printing, Inc., supra, Sl. op. at 9. The Public
Printer's procurement authority stems from section 502 of
title 44 United States Code, which provides:
Printing, binding, and blank-book work authorized by law, which
the Public Printer is not able or equipped to do at the
Government Printing Office, may be produced elsewhere under
contracts made by him with the approval of the Joint Committee on
Printing.
The legislative history of section 502 discloses that it was
enacted as a simple amendment to the Legislative Branch
Appropriations Act for Fiscal Year 1930. Act of February 28,
1929, 45 Stat. 1400, H.R. 17053, 70th Cong., 2d Sess (1929).
Nothing in 502 discloses a clear intent by Congress to waive its
sovereign immunity. The Congressional Record reveals no lengthy
discussion about this amendment in the Senate where it was
introduced, 70 Cong. Rec. 3850 (1929), and none at all in the
House debates. 70 Cong. Rec. 3329, 3350 ff. (1929). Similarly,
the Senate Report has no comments on printing, binding and blank
book-work whatsoever. S. REP. No. 1825, 70th Cong., 2d Sess.
(1929). Accordingly, there is nothing in the legislative history
of section 502 which would reveal the intent of Congress beyond
the plain meaning of the words used in the law, i.e., the Public
Printer is authorized to contract out printing, binding, and
blank-book work which cannot be accomplished in GPO.
The Board sees nothing in the abbreviated legislative
history of section 502 to indicate that by authorizing the
Public Printer to contract out printing, binding, and blank-
book work, Congress thereby also intended to waive the
Government's sovereign immunity with respect to his
settlement of contract claims against the United States.
Certainly, there is nothing in section 502, or its
legislative history, which would amount to the sort of
unequivocal expression of a waiver of sovereign immunity
which the law requires before imposing a liability on the
public treasury. United States v. Mitchell, supra, 445 U.S.
at 538; United States v. Testan, supra, 424 U.S. at 399
(1976); Overall Roofing & Construction, Inc. v. United
States, supra, 929 F.2d at 688; Fitzgerald v. U.S. Civil
Service Commission, 554 F.2d 1186, 1189, n. 8 (D.C. Cir.
1977) (in an appropriate case, it might be possible to find
an express waiver of sovereign immunity in particularly
clear legislative history). Suffice it to say, Congress is
perfectly capable of regulating GPO's procurement activities
by statute if it has a mind to. See, United States v.
International Business Machines Corporation, supra, 892 F.2d
at 1007-08 (GPO is subject to the "Brooks Act" for the
purpose of its ADP procurements).
Since it takes specific legislation to waive the
Government's sovereign immunity, the burden was on the
Appellant in this case to point to a congressional act that
gives consent. Malone v. Bowdoin, supra, 369 U.S. 643; Cole
v. United States, supra, 657 F.2d at 109; Paradyne
Corporation v. United States Department of Justice, supra,
647 F.Supp. 1228. The Appellant has not done so in this
case. Moreover, the simple answer to the Appellant's
contention that the Board acquired breach of contract
jurisdiction by virtue of GPO Instruction 110.10C, GPO
Instruction 110.12, and the revised "Disputes" clause, is
that sovereign immunity may not be waived by Government
officials, United States v. Shaw, supra, 309 U.S. at 500-01;
Champaign-Urbana News Agency, Inc. v. J. L. Cummins News
Company, Inc., supra, 632 F.2d at 687; Pezzola v. United
States, supra, 618 F.Supp. at 548, or by regulation. Heller
v. United States, supra, 776 F.2d at 97-98; Millard v.
United States, 16 Cl.Ct. at 490.
Finally, from a practical standpoint, the Board believes
that the Appellant is not prejudiced by the dismissal of its
appeal on jurisdictional grounds. First, except for
contract disputes processed in accordance with the CDA, the
statute of limitations for filing a claim against the United
States with the Claims Court is six years after the right of
action first accrues. 28 U.S.C. 2401. Under the facts in
this case, since the Contracting Officer's final decision
was rendered on February 1, 1990, the time allowed the
Appellant to file its breach of contract claim in the
appropriate judicial forum will not expire for four more
years. Second, and perhaps more importantly, it is certain
that the Appellant and the Respondent would expend a great
deal of time and money presenting the appeal at the
administrative level, after which either this Board and/or
the courts would ultimately, and possibly after the passage
of a substantial period of time, decide that the Board had
no jurisdiction, with the result that the parties would have
to repeat their efforts before a tribunal of competent
jurisdiction. Therefore, it seems that the interests of
fairness and economy of litigation are best served by having
the forum of doubtful jurisdiction -- the Board -- decline
to consider the matter and to leave the parties to the forum
whose jurisdiction is certain -- the Claims Court.
Accordingly, for these reasons the Board concludes that it
lacks jurisdiction to entertain "pure" breach of contract
claims, such as this appeal, on the merits. Therefore, this
appeal should be and is DISMISSED.
It is so Ordered.
_______________
1. The Contracting Officer's appeal file, assembled pursuant to
Rule 4 of the Board's Rules of Practice and Procedure, was
delivered to the Board on March 22, 1990. It will be referred to
hereafter as the R4 File, with an appropriate Tab letter(s) also
indicated. GPO Instruction 110.12, Subject: Board of Contract
Appeals Rules of Practice and Procedure, dated September 17, 1984
(GPO Instruction 110.12), Rule 4.
2. This breach of contract figure was amended by the Appellant
in its formal complaint of May 23, 1990. The amount of damages
now sought is $353,817.60 (based on 750.5 idle press hours at a
machine rate of $409.95 per hour plus a 15% profit). Appellant's
Complaint (hereinafter App. C.), dated May 23, 1990, �, p. 4.
3. According to the contract specifications, "Stamps By Mail"
was a folded form which looked like an open side envelope with
welded side seams and a gummed flap with an extension flap (R4
File, Tab A, p. 1). The 71,625,000 copies required were divided
into two versions. Id. Version 1 comprised 50,200,000 copies of
a Generic version (no imprints) and 20,925,000 copies with 256
different imprint addresses with quantities ranging from 100,000
to 1,000,000 copies per imprint. Id. Version 2 consisted of
500,000 additional copies with Special Dallas imprint and
printing. Id.
4. The underscored dates are those given in the original IFB
which was sent to potential bidders on April 20, 1989. By
telegram, dated April 27, 1989, the Respondent informed potential
contractors of certain changes in the IFB, including new dates in
the "SCHEDULE" clause for the pickup of Government-furnished
material, the first shipment of 21,625,000 copies, and the
completed shipment (R4 File, Tab A, Cover Sheet). The amended
dates are shown in brackets.
5. The record discloses that the QATAP standards under the
contract for both Product Quality Levels (Printing Attributes and
Finishing Attributes) was Level III (R4 File, Tab A, p. 4). The
Inspection Level standard for Non-Destructive tests was General
Inspection Level I, while the measurement for Destructive tests
was Special Inspection Level S-2 (R4 File, Tab A, p. 4). There
were also three specified standards - Type Quality and
Uniformity, Solid and Screen Tint Color Match, and Process Color
Match - all of which were "O.K. Press Sheets" (R4 File, Tab A, p.
4).
6. The clause also allows the Contracting Officer, on written
request of the contractor, to extend the schedule for such time
as he/she deems fair and reasonable when there are, in the
opinion of the Contracting Officer, an excessive number of
author's alterations. 1988 Contract Terms, Contract Clauses,
�.(c)(5)(iii). There is another provision which comes into
play in cases of lengthy delays with respect to the return of
proofs, namely the "Temporary Suspension" clause which appears in
the Supplemental Specifications section of 1988 Contract Terms
(Specification 21). The "Temporary Suspension" specification
provides that if the Government fails to return a set of proofs
to the contractor within two months, or other longer holding
period stated in the specifications or print order, the
contractor may request that the portion of the job for which the
proofs have not been returned be declared temporarily suspended.
1988 Contract Terms, Supplemental Specifications, � 21.(a). The
clause also establishes procedures to allow the contractor to
bill for completed work during the period of suspension. Id.,
抖21.(b),(c). In this particular case, however, the delay in
returning the proofs to the Appellant was less than two months.
7. The record indicates that the Appellant understood the
Respondent's first message as an "OK to print" and initiated
steps to finalize production. However, in a subsequent
conversation that day, the Respondent informed Olsen that no "OK
to print" had, in fact, been given, and Olsen agreed that he had
misunderstood (R4 File, Tab G).
8. On May 26, 1989, the Contracting Officer was given this
memorandum for the purpose of preparing a reply (R4 File, Tab H).
9. The record also indicates that on June 2, 1989, an additional
16 pages of manuscript copy was sent from the USPS through the
Respondent to the Appellant (R4 File, Tab F).
10. Tab F of the R4 File is the "Compliance Record" for the
"Stamps By Mail" contract. In addition to containing all the
relevant dates concerning the exchange of material between the
Respondent, the USPS and the Appellant, the first page of the
document is annotated with the number "14" and a line joining
that number to two circled dates-May 18, 1989 (in the column "Due
at Contractor") and June 8, 1989 (in the column "Date Returned"
[to Contractor]). Since the "SCHEDULE" clause speaks in terms of
the proofs submitted by the contractor being withheld "4
workdays" before their return, it is clear that the number "14"
stands for the number of workdays between May 18, 1989 and June
8, 1989. See, R4 File, Tab O.
11. The R4 File contains numerous documents, notes and memoranda
related to matters pertaining to the production process after the
"OK to print" had been given to the Appellant. See, R4 File, Tab
K (print without bar code, placement of cancellation marks, match
of the printing to the approved press sheet, receipt of 100
samples sent to the USPS), Tab L (Appellant's request for a
contract modification allowing additional charges totaling
$10,650.00 for (a) making first proofs with new color separation,
(b) changing to Dallas type, (c) changing type for imprint
address changes, and (d) restripping cancellation marks and
remaking black plates for 38 imprints), Tab M (Appellant told to
retain black plates, adding cancellation marks), Tab N
(Appellant's reply to the Respondent's request for clarification
regarding the additional charges for the 38 imprints mentioned in
Tab L), Tab O-1 (Appellant's letter enclosing Job Change Order
and attendant costs related to the changes made because of the
author's alterations and presented to the Respondent in Tabs L
and N), Tab U (Appellant's documentation supporting its request
for a contract modification regarding additional plate costs),
Tab X (Contracting Officer's response to the Appellant's request
for a contract modification due to the author's alterations,
allowing certain charges and disallowing others, and offering to
pay $5,000.00 in total settlement of the claim), Tab Z
(Appellant's reply rejecting the Contracting Officer's $5,000.00
offer, and countering with a proposal to accept $7,599.36 as
payment instead, and annotated with a note from the Contracting
Officer that $5,919.71 was agreed by the parties as settlement of
the claim), and Tab AA (Contract Modification No. 1 increasing
the contract price by $5,919.71). These matters are unrelated to
the breach of contract issue in this case, and therefore it is
not essential to discuss them in detail in this decision.
12. From the evidence in the record, it seems that this letter
was sent to the Appellant both by facsimile transmission and
certified mail (R4 File, Tab V).
13. In the interim, on December 21, 1989, shortly after the
audit report was delivered to the Contracting Officer, the
Appellant had made another written inquiry concerning the status
of its claim (R4 File, Tab CC). Confirming a prior telephone
call, the Appellant sought an expedited resolution of the matter
because the claim was already three months old, the auditor's had
completed their work, and ". . . it doesn't seem reasonable to
keep stringing the whole affair out . . ." (R4 File, Tab CC).
The Contracting Officer replied on December 29, 1989, informing
the Appellant that he was giving the claim his "undivided
attention" (R4 File, Tab DD).
14. There is nothing in the record to indicate that the
Contracting Officer accepted the OIG's recommendation to settle
the dispute by making an offer to the Appellant prior to issuing
his final decision.
15. At the prehearing conference, Counsel for GPO also believed
that this appeal raised a second question; i.e., assuming that
the Board has breach of contract jurisdiction, does the contract
itself provide the exclusive remedy for a claim based on the
Government's failure to meet its obligations in a timely fashion?
PCR, p. 7. In that regard, the parties disagreed over whether
the automatic day-for-day extension provided for in the
"Extension of schedules" clause in 1988 Contract Terms, �.(c)
(1), was the exclusive remedy for the Government's delay. PCR,
pp. 7, 11. However, Counsel for the Appellant took the position
that the jurisdiction issue needed to be disposed of first, and
that the remedy question could be dealt with at a later stage of
the appeal. Id. Since the Board agreed with Counsel for the
Appellant, it told the parties that their briefs did not have to
address the issue of the appropriate remedy in this case. See,
Briefing Order, p. 2, n. 1.
16. Pursuant to the Board's Briefing Order, both parties
submitted briefs setting forth their respective positions on the
jurisdiction question. The Appellant's Brief Regarding
Jurisdiction (App. Brf.), was filed with the Board on April 26,
1991. The Respondent's Brief on Jurisdiction (Res. Brf.), was
submitted to the Board on April 29, 1991. Both parties also
submitted reply briefs on May 14, 1991 (hereinafter App. R. Brf.
and Res. R. Brf., respectively). The Board's understanding of
the positions of the parties is based on the Appellant's
Complaint, the Respondent's Answer, the formal briefs filed by
the parties, and the discussions at the prehearing conference on
February 7, 1991.
17. As indicated previously, in its formal complaint, the
Appellant amended its claim for damages to take into account its
actual fiscal year costs, information not readily available at
the time the initial claim was submitted. See, App. C., note 2
supra, � 22, p. 4. As amended, the Appellant now claims an
entitlement to damages of $353,817.60 based on 750.5 idle press
hours at a machine rate of $409.95 per hour plus 15 percent
profit. Id.
18. The Appellant observes that "fact disputes" clauses (limited
to claims arising under the contract) in use prior to the passage
of the CDA were replaced by new standard "all-disputes" type
clauses to implement the provisions of the statute. App. Brf.,
p. 2, n. 1 (citing, e.g., Defense Acquisition Circular No. 76-24,
dated 28 August 1980). At the prehearing conference, however,
the Appellant recognized that its Complaint was in error insofar
as it relied, in part, on Section 7 of the CDA, 41 U.S.C. � 606,
to support the Board's jurisdiction in this case. App. C., � 1,
p. 1. Since the CDA does not apply to GPO contracts because it
is a legislative branch agency, the Appellant orally amended its
Complaint to delete the reference to the statute. See, Tatelbaum
v. United States, 749 F.2d 729, 730 (Fed. Cir. 1984). See, PCR,
p. 9, n. 4.
19. The Respondent believes that King and Queen Drive-In and
Texida, Inc. are inapposite because the breach of contract claims
involved nonappropriated fund activities (NAFs). Res. R. Brf.,
p. 3. Hence, according to the Respondent, these cases are
distinguishable because the contracts were not with a "Federal
agency" and any recovery would not be from the U.S. Treasury or
the appropriations of a Federal agency. Id. As the Board reads
those cases, another reason the ASBCA was given plenary authority
to decide all types of claims growing out of NAF contracts,
including breach of contract claims, was because no court had
been given jurisdiction to entertain breach of contract actions
involving NAFs. See, e.g., Rainbow Valley Corporation, ASBCA No.
11691, 68-1 BCA � 6,840; Lauris L. Beigh & Raymond H. Peck, ASBCA
No. 7711, 63-1 BCA � 3,740. The law has since been amended to
allow such claims to be considered by the Claims Court. 28
U.S.C. � 1491.
20. The Board was created by the Public Printer in 1984 to
succeed the prior Contract Appeals Board (CAB), in order to
provide GPO with permanent, independent organization solely
responsible for the resolution of contract disputes. GPO
Instruction 110.10C, Subject: Establishment of the Board of
Contract Appeals (GPO Instruction 110.10C), dated September 17,
1984. The establishment of the Board involved the transfer of
responsibility for the settlement of disputed contracts and
claims from the General Counsel (GC) to a newly named, full-time
Chairperson/ Administrative Judge (C/AJ), who was placed in
charge of the Board. See, GPO Instruction 105.1B, Subject:
Organization and Functions of the Government Printing Office,
dated March 17, 1978, Chapter 1, 抖6.b.(7),(8), p. 1 (the GC "[s]
ettles disputed contracts and claims," and "[c]hairs the Contract
Appeals Board."); GPO Instruction 110.10C, 抖 6.c.,7. Under the
former system, appeals from decisions of GPO Contracting Officers
were considered by ad hoc panels composed of various GPO
employees specifically appointed by the Public Printer from
nominees selected by GPO Department and Service heads to serve on
the CAB. GPO Instruction 110.10 , Subject: Board of Contract
Appeals Rules of Practice and Procedure, dated June 6, 1979 (GPO
Instruction 110.10), � 3.b.; GPO Instruction 110.10A, Subject:
Board of Contract Appeals Rules of Practice and Procedure, dated
September 17, 1980 (GPO Instruction 110.10A), � 4.b.; GPO
Instruction 110.10B, Subject: Board of Contract Appeals Rules of
Practice and Procedure, dated June 18, 1981 (GPO Instruction
110.10B), � 4.b. These ad hoc panels consisted of three (3)
members who were assigned to hear appeals on a case-by-case
basis. GPO Instruction 110.10, � 3.c.; GPO Instruction 110.10A,
� 4.c.; GPO Instruction 110.10B, � 4.c. The 1981 directive
amended the panel makeup to the extent that at least one member
had to be an attorney. Id. It is worth noting, however, that in
accordance with GPO policy, the standards for nomination to these
panels required managers to name employees who could ". . .
satisfy diversified contract appeal requirements while preventing
excessive absences from the employee's organization." See,
Memorandum from the Public Printer to All
Department/Service/Staff Heads, Subject: GPO Instruction 110.10-
GPO Board of Contract Appeals, dated June 14, 1979, p. 2;
Memorandum from the Public Printer to Distribution, Subject: GPO
Instruction 110.10A-GPO Board of Contract Appeals, dated May 20,
1981, p. 2
21. The doctrine of "sovereign immunity" simply means that the
Government cannot be sued or held liable without its consent.
United States v. Mitchell, 445 U.S. 535 (1980), rehearing den.
446 U.S. 992 (1980), on remand 664 F.2d 265 (Ct. Cl. 1981), cert.
granted 457 U.S. 1104 (1982), affirmed, case remanded 103 S.Ct.
2961 (1983); United States v. Sherwood, 312 U.S. 584, 586 (1941);
McQueen v. Bullock, 907 F.2d 1544 (5th Cir. 1990), cert. denied
111 S.Ct. 1308 (1991); Valn v. United States, 708 F.2d 116 (3rd
Cir. 1983); Garrett v. United States, 640 F.2d 24 (6th Cir.
1981); Vote v. United States, 753 F.Supp. 866 (D.Nev. 1990),
affirmed 930 F.2d 31 (9th Cir. 1991). The purpose of the
doctrine is to protect the fiscal integrity of the Government.
Gnotta v. United States, 415 F.2d 1271, 1277 (8th Cir. 1969);
Neely v. Blumenthal, 458 F.Supp. 945, 954 (D.D.C. 1978);
Drumright v. Padzieski, 436 F.Supp. 310, 318 (E.D. Mich., S.D.
1977).
22. As the Respondent correctly points out, waivers of sovereign
immunity must be unequivocally expressed and may not be implied.
United States v. Mitchell, supra, 445 U.S. at 538; United States
v. Testan, 424 U.S. 392, 399 (1976); United States v. King, 395
U.S. 1, 4 (1969); Overall Roofing & Construction, Inc. v. United
States, 929 F.2d 687, 688 (Fed. Cir. 1991); Ascot Dinner Theatre,
Ltd. v. Small Business Administration, 887 F.2d 1024 (10th Cir.
1989); Fidelity Construction Company v. United States, 700 F.2d
1379, 1387 (Fed. Cir. 1983). Furthermore, waivers of sovereign
immunity are strictly construed in favor of the sovereign.
Library of Congress v. Shaw, 478 U.S. 310, 318 (1986); Ruckelhaus
v. Sierra Club, 463 U.S. 680 (1983); Lehman v. Nakshian, 453 U.S.
156 (1981); McMahon v. United States, 342 U.S. 25, 17 (1951);
Haase v. Sessions, 893 F.2d 370 (D.C. Cir. 1990); First National
Bank in Brookings v. United States, 829 F.2d 697 (8th Cir. 1987);
Sutton v. United States, 819 F.2d 1289 (5th Cir. 1987); Wagner
Seed Company, Inc. v. Bush, 709 F.Supp. 249 (D.D.C. 1989); United
States v. Rose, 549 F.Supp. 830 (S.D.N.Y. 1982); Boehm v. United
States, 22 Ct. Cl. 511 (1991). Res. Brf., pp. 2-3. For that
reason, it takes an Act of Congress to waive the Government's
sovereign immunity. Malone v. Bowdoin, 369 U.S. 643 (1962);
Dalehite v. United States, 346 U.S. 15 (1953); Cole v. United
States, 657 F.2d 107, 109 (7th Cir. 1981), cert. denied 454 U.S.
1083 (1981); Metropolitan Sanitary District of Greater Chicago v.
United States Department of Navy, 722 F.Supp. 1565, on
reconsideration 737 F.Supp. 51 (N.D.Ill. 1989); Paradyne
Corporation v. United States Department of Justice, 647 F.Supp.
1228 (D.D.C. 1986); Van Schaick v. United States, 586 F.Supp.
1023, 1029 (D.S.C. 1983). Sovereign immunity may not be waived
by Government officials, United States v. Shaw, 309 U.S. 495,
500-01 (1940); Champaign-Urbana News Agency, Inc. v. J. L.
Cummins News Company, Inc., 632 F.2d 680, 687 (7th Cir. 1980);
Pezzola v. United States, 618 F.Supp. 544, 548 (D.E.D. N.Y.
1985), or by regulation. Heller v. United States, 776 F.2d 92,
97-98 (3rd Cir. 1985); Millard v. United States, 16 Cl.Ct. 485,
490 (1989). The Back Pay Act, 5 U.S.C. � 5596, the Tucker Act,
28 U.S.C. Ё 1346(a)(2), 1491, and of course the CDA, 41 U.S.C.
Ё 601-613, are three examples of laws waiving the sovereign
immunity of the Government with respect to third party suits
within the scope of their coverage. Res. Brf., p. 3.
23. As the Respondent correctly notes, the Board is not a
creature of the CDA, but rather was established pursuant to the
authority of the Public Printer. Res. Brf., p. 5 (citing, GPO
Instruction 110.10C). See note 20 supra.
24. However, decisions of the Board can still be reviewed by the
United States Claims Court pursuant to 28 U.S.C. � 1491, under
standards set forth in the Wunderlich Act, 41 U.S.C. Ё 321, 322.
See, e.g., Fry Communications, Inc./InfoConversion Joint Venture
v. United States, 22 Cl.Ct. 497, 501, n. 5, 6 (1991).
25. As indicated in note 20 supra, prior to the Board's
creation, appeals from decisions of GPO Contracting Officers were
considered by ad hoc panels of the CAB. The Board has
consistently taken the position that although it is the successor
to the CAB, it is a different entity. Consequently, while it is
the Board's policy to follow the holdings of the CAB's ad hoc
panels where applicable and appropriate, it does not regard those
decisions as legally binding precedent; indeed, the Board
differentiates between its decisions and the opinions of the ad
hoc panels by citing the latter as GPOCAB. See, e.g., Chavis and
Chavis Printing, GPO BCA 20-90 (February 6, 1991), Sl. Op. at 9,
n. 9; Stephenson, Inc., GPO BCA 02-88 (December 20, 1991), Sl.
op. at 18, n. 20.
26. The Respondent contends that a distinction was made during
these early stages between the powers of boards of contract
appeals, which held that they were without jurisdiction to grant
relief for alleged breaches of contract, and the Adjustment
Boards of agencies, which could entertain such claims. Res. R.
Brf., pp. 2-3 (citing, Fiske-Carter Construction Company, 3
C.C.F. 415 (WDBCA 1945); Ardmore Construction Company, 3 C.C.F.
468 (WDBCA 1945)).
27. Technically, "suspension of work" clauses apply to
construction contracts; the "Extension of schedules" clause in
the Appellant's contract, 1988 Contract Terms, Contract Clauses,
�.(c)(1), is the equivalent of the "Government delay of work"
clause used in supply contracts. See, John Cibinic, Jr. & Ralph
C. Nash, Jr., Administration of Government Contracts 2d ed., (The
George Washington University, 1986), pp. 948-52 (hereinafter
Cibinic and Nash). While it was unnecessary to brief the issue
of the appropriate remedy in this case, see note 15 supra, the
Respondent has pressed its contention that because the Appellant
was granted an automatic extension under the "Extension of
schedules" clause, it had received all the relief it was entitled
to under the contract. Res. Brf., p. 2, n. 2.; Res. R. Brf., p.
4. See also, PCR, p. 7.
28. The record on which the Board's decision is based consists
of: (1) the Pleadings (Appellant's Complaint; Respondent's
Answer); (2) the R4 File (Tabs A-FF); (3) the Prehearing
Conference Report; and (4) the briefs submitted by the parties
pursuant to the Board's Briefing Order (the Appellant's Brief
Regarding Jurisdiction, the Respondent's Brief on Jurisdiction,
the Appellant's Reply Brief Regarding Jurisdiction, and the
Respondent's Reply Brief On Jurisdiction).
29. A "pure" breach of contract claim is a claim not redressable
under a specific contract provision. United States v. Utah
Construction and Mining Company, supra, 384 U.S. at 404, n. 6;
Blake Construction Company, Inc., GSBCA No. 2205, 67-1 BCA �
6,311, at 29,198. It is clear that the Appellant's claim is
predicated on a well-settled principle of public contract law
which states that in every Government contract there is an
implied affirmative obligation on the part of the Government that
it will do whatever is necessary to enable the contractor to
perform. See, Cibinic and Nash, note 27 supra, at pp. 221-22,
223-25. Under this doctrine, the Government will be held liable
for breaching its implied duty to cooperate if it wrongfully
fails or refuses to take some action, within its control, which
is essential for the contractor to perform. Id., at p. 221. One
way the Government can breach its implied duty is by unreasonably
delaying giving approvals called for in the contract. See, e.g.,
Hoel-Steffen Construction Co. v. United States, 231 Ct. Cl. 128,
684 F.2d 843 (1982); The Kehm Corporation v. United States, 93
F.Supp. 620 (Ct.Cl. 1950). In cases involving Government delays
the relevant inquiry is whether the delays constitute a breach of
contract. United States V. Howard P. Foley Company, Inc., 329
U.S. 64, 65 (1946); The Kehm Corporation v. United States, supra,
93 F.Supp. at 624. Furthermore, as the Court of Claims made clear
in The Kehm Corporation, in such circumstances, the fact that the
contract includes a provision for extension of time to perform
does not exclude the possibility that recovery may also be had in
the form of damages for breach of contract. Id., at 624-25.
30. In a recent decision, Stephenson, Inc., note 25 supra, a
case stemming from a contracting officer's partial termination of
the appellant's contract for default based on the timely delivery
of nonconforming books, the Board was asked to consider, among
the other defenses offered by the breaching contractor, whether
GPO's conduct during the period between receipt of the books and
the date of termination amounted to a breach of the Government's
implied duty to cooperate with the appellant to complete
performance under the contract. Stephenson, Inc., supra, Sl. Op.
at 38. The Board found, on the facts, that no breach had
occurred in that case and rejected the appellant's defense.
Stephenson, Inc., supra, Sl. Op. at 46-47. That decision is
clearly distinguishable from this appeal because it was not a
"pure" breach claim; rather, the appellant, as the breaching
party, was alleging "breaching" conduct on the part of the
Government as a defense against the consequences of its own
default; i.e., no money damages were being sought by the
contractor. Accord, Spectrum Leasing Corporation, GSBCA Nos.
7347, 7379, 7425-27, 90-3 BCA � 22,984; Ballenger Corporation,
DOTCAB No. 74-32, 84-1 BCA � 16,973, mod. on other grounds, 84-2
BCA � 17,277. Therefore, the focus of the Board's analysis in
this case must necessarily be on whether or not it has the
authority to award damages or are its remedial powers limited by
the contract itself?
31. 1988 Contract Terms, Contract Clauses, � 5.(e), paraphrases
the requirements of the Wunderlich Act, 41 U.S.C. Ё321, 322,
which provides, in part: "No Government contract shall contain a
provision making final on a question of law the decision of any
administrative official, representative, or board." 41 U.S.C. �
322. See also, GPO Contract Terms No. 1, GPO Publication 310.2
(Rev. October 1980), � 2-3.(b) (1980 Contract Terms).
32. The Board's opinions in these cases were rendered under the
"Disputes" clause in 1980 Contract Terms. 1980 Contract Terms,
Contract Clauses, � 2-3. Prior to 1984, that clause provided:
"(a) Except as otherwise provided in the contract, any dispute
concerning a question of fact related to the contract which is
not disposed of by agreement shall be decided by the Contracting
Officer, who shall make his/her decision in writing and mail or
otherwise furnish a copy thereof to the contractor. The decision
of the Contracting Officer shall be final and conclusive unless,
within 90 days from the date of receipt of such copy, the
contractor mails or otherwise furnishes to the Contracting
Officer a written appeal addressed to the Public Printer. The
decision of the Public Printer, or a duly authorized
representative for the determination of such appeals, shall be
final and conclusive unless determined by a court of competent
jurisdiction to have been fraudulent, or capricious, or
arbitrary, or so grossly erroneous as necessarily to imply bad
faith, or not supported by substantial evidence. In connection
with any appeal under this article, the contractor shall be
afforded an opportunity to be heard and to offer evidence in
support of his/her appeal. Pending final decision of a dispute
hereunder, the contractor shall proceed diligently with the
performance of the contract and in accordance with the
Contracting Officer's decision. (b) This "Disputes" article does
not preclude consideration of law questions in connection with
decisions provided for in the paragraph above: Provided, That
nothing in the contract shall be construed as making final the
decision of any administrative official, representative, or board
on a question of law." However, when the Board was created 1980
Contract Terms, � 2-3 was amended to substitute the Board for the
Public Printer as the appellate authority for contract disputes.
See, Memorandum from the Acting Public Printer to Assistant
Public Printer (Procurement), ATTN: A & R Staff, dated September
10, 1984. The phrase "arising under or" was added to the
"Disputes" clause in the 1988 revisions to GPO Contract Terms.
33. On its face, the 1988 revision to the "Disputes" clause
harmonizes GPO Contract Terms with FAR � 52.233-1(b). Such a
change-namely, reinserting the more restrictive "arising under"
language back into the clause-had been suggested by the Office of
General Counsel (OGC) in 1984 in conjunction with the transfer of
responsibility for the settlement of disputed contracts and
claims to the Board. See, Memorandum from Attorney-Advisor to
Walter [Walter C. DeVaughn, the first C/AJ], Subject: Disputes
Clause, dated August 13, 1984, � 2. However, the proposed
revision was not adopted at the time; the only alteration made to
the "Disputes" clause was to delete references to the Public
Printer and replace them with the Board, where appropriate. Id.,
� 1. See, note 32 supra, Memorandum from the Acting Public
Printer to Assistant Public Printer (Procurement), ATTN: A & R
Staff, dated September 10, 1984. The words "arising under"
finally reappeared in the clause with the changes made in 1988
when a complete revision of GPO Contract Terms was undertaken by
the aforementioned Procurement A & R (Analysis and Review) Staff.
The Board assumes that the OGC put its imprimatur on the new
language because it would have been a clearing office under the
system followed at the time by GPO when agency regulations were
being updated and revised. GPO Instruction 001.1, Subject: GPO
Directives System, dated June 10, 1987, � 8.b.
34. See note 19 supra. In Champaign-Urbana News Agency, Inc.,
after reviewing the unique relationship between the NAFs and the
Military Departments, the court refused to find a waiver of
sovereign immunity by the Government with respect to making the
NAFs subject to the anti-trust provisions of the Robinson-Patman
Act, 15 U.S.C. Ё 13(a),(c). Champaign-Urbana News Agency, Inc.
v. J. L. Cummins News Company, Inc., supra, 632 F.2d at 692.
35. Congress' concern for the "separation of powers" doctrine
can be somewhat flexible. See, Wehran Engineering Corporation,
GSBCA No. 6055-NAFC, 84-3 BCA � 17,614 (where a legislative
branch entity, the National Alcohol Fuels Commission (NAFC),
entered into an agreement with the GSBCA to resolve NAFC contract
disputes). Indeed, for certain types of procurements-those
relating to the purchase, lease and maintenance of Automated Data
Processing (ADP) equipment- Congress has included GPO within the
definition of "Federal agency" for coverage under the so-called
"Brooks Act." Federal Property and Administrative Services Act of
1949, �1(a)(1), 40 U.S.C. � 759(a)(1), as amended by the Act of
October 30, 1986, � 101 et seq., 100 Stat. 3341, 334-342
(amending sec. 822). See, United States v. International
Business Machines Corporation, 892 F.2d 1006, 1007-08 (Fed. Cir.
1989). Furthermore, GPO was included under the coverage of the
Civil Service Reform Act of 1978, Pub. L. 95-454 (October 13,
1978), 92 Stat. 1191, and appears, for example, before the
Federal Labor Relations Authority for the resolution of its
labor-management disputes. 5 U.S.C. Ё7103(a)(3). See, Joint
Council of Unions, GPO and U.S. Government Printing Office, Case
No. 0-NG-397, 10 FLRA 448 (1982).