Taggart Printing Corporation GPO BCA 11-85 January 20, 1987 Michael F. DiMario, Administrative Law Judge Opinion This appeal, timely filed by Taggart Printing Corporation, 323 South Matlack Street, West Chester, PA 19380 (hereinafter "Appellant"), is from the final decision of Lowell W. Borton, Contracting Officer, U.S. Government Printing Office, Philadelphia Regional Printing & Procurement Office (hereinafter "Respondent/GPO" and "RPPO," respectively), dated May 15, 1985, denying Appellant's request for payment for $491.40 in handling charges incurred in the performance of the GPO contract Jacket No. 506-620. The decision of the Contracting Officer is affirmed and the appeal denied for the reasons set forth hereinbelow. Background Appellant was awarded GPO contract Jacket 506-620 in accordance with its bid and Respondent's specifications for the production and distribution of 2 pamphlets for the U.S. Marine Corps, one pamphlet to be entitled "Marine Corps Recruit Training for Men" and the other entitled "Marine Corps Recruit Training for Women" of which 160,000 copies of the men's pamphlet and 30,000 copies of the women's pamphlet were to be produced. Distribution of the pamphlets was to be nationwide with the men's pamphlet being sent to some 57 destinations in quantities varying from 50 to 108,500 copies and the women's pamphlet to be sent to 54 destinations in quantities varying from 15 to 22,700 copies. Shipping was to be by Government bill of lading F.O.B. contractor's city with transportation charges, although reimbursable to the contractor, to be a factor in determining award. All other charges were to be included in a single comprehensive bid price. The specifications further stated that: Separate distribution lists will be furnished . . . . It is intended that shipping instructions and addresses will be furnished with the order or shortly thereafter. However, in the event the contractor does not receive such information in due time he will not be relieved of any responsibility in meeting the shipping schedule because of his failure to request such information. Rule 4 File (hereinafter "R4 File"), Tab I. After award of the contract, appropriate distribution lists were furnished to the Appellant and distribution was subsequently carried out. Thereafter, Appellant by letter of April 2, 1985, requested that it be paid an additional $491.40 asserting that its "original bid did not contain handling charges. . . . because no actual shipping list was available to us at the time the bid was due." (R4 File, Tab B.) The Contracting Officer by letter of April 9, 1985, replied to this claim stating in pertinent part that "the specifications had sufficient information with which to estimate approximate handling charges and include them in your total bid. Further, the invitation for bid did not request a separate cost for handling charges, therefore your cost incurred cannot be compared to your estimated cost. Your request for additional money is denied." (R4 File, Tab C.) Appellant in turn responded by letter of April 22, 1985, stating: The information given was that from 15 to 108,500 copies would be shipped to a total of 111 destinations. As you can see, this gives us a large margin for error. Our estimating department is very thorough and does not guess at such things. If the quantities were slightly similar we perhaps could make an educated estimate of handling. In a competitive bidding situation, we can not [sic] throw in random dollar amounts for any one item especially after all of the other categories are so carefully evaluated, thus risking loss of the job. R4 File, Tab D. The Contracting Officer in his final decision letter of May 15, 1985, advised Appellant that the "request for a $491.40 handling charge is denied . . ." because Appellant had "not presented clear and convincing evidence of costs incurred for handling charges . . . ." The Contracting Officer then pointed out that: The specifications called for distribution as follows: 1. Men - 57 destinations of from 50 to 108,500 copies Formula: ordered 160,000 copies, minus 108,500 copies for one bulk shipment = 51,500 copies to be distributed to the remaining 56 destinations with smallest shipment to be not less than 50 copies; 2. Women - 54 destinations of from 15 to 22,700 copies - Formula: ordered 30,000 copies, minus 22,700 copies for one bulk shipment = 7,300 copies to be distributed to the remaining 53 destinations with the smallest shipment to be not less than 15 copies. The distribution list was not available in time to be included as part of the specifications, however, as evidenced above, sufficient distribution information was supplied to enable prospective bidders to estimate charges for handling the distribution requirements of the IFB. R4 File, Tab E. The appeal followed. In the notice of appeal dated July 11, 1985, Appellant restated its claim putting forth the following examples to illustrate why it could not estimate the handling charges without the itemized distribution list: Example I - We were able to calculate that 700 copies fit into one package. Estimating that 10 destinations were to receive 50 copies (500 copies total 10 packages), 15 destinations were to receive 100 copies (1500 copies - total 15 packages), 30 destinations were to receive 1596 copies (47,880 copies - total 90 packages), and 1 destination to receive 1620 copies (1620 copies - total 3 packages), therefore making a total of 118 packages to be handled, labeled & shipped. Example II - Estimating that 5 destinations were to receive 50 copies (250 copies - total 5 packages), 45 destinations get 700 copies (31,500 copies - totat [sic] 45 packages), 5 destinations get 3292 copies (16,460 copies total 25 packages), and 1 destination gets 3290 copies (3290 copies - total 5 packages), making a total of 80 packages to handle, label and ship. Based on these two aforementioned theories, we arrived at different quantities of packages to be distributed, making it impossible to arrive at an intelligent figure. Official File, Tab 4. Thereafter, the Government in its Answer to Appellant's notice of appeal urged denial of the appeal because: [T]he specifications were sufficiently precise to permit appropriate handling charge estimates by any contractor who wished to bid on the work. The specifications indicated the total number of copies to be distributed, the total number of shipping destinations, and the range in quantity of pamphlets to be shipped to any one destination. AF, Tab I, pp. 1, 2. Based on this information, any bidder had the ability to make a "worst case" analysis of the shipping requirements to ensure that its bid covered all possible handling costs. 1/ Appellant also had two other remedies available to it prior to bid. The first was to make inquiry of the contracting officer to resolve any potential ambiguity. 2/ There is no indication that Appellant sought any information of this nature from the contracting officer, although by its own admission it was uncertain how to estimate the handling charges. See Notice of Appeal, dated July 11, 1985. Secondly, if the contractor for its own reasons chose not to make inquiry of the contracting officer, it had still another option to avoid the additional "handling" charges. Assuming it concluded that the specifications were insufficiently precise in order to permit a reasonable bid estimate, it could have chosen not to bid on the work. This, of course, by its own admission, it was unwilling to do. It was unwilling to risk "loss of the job", and instead bid low, got the award, and is now seeking a post hoc adjustment to its original bid proposal. Having found the contract less to its liking now that the work is done, it wants an unsupportable price adjustment. . . . . Official File, Tab 6. This appeal is before the Board in this format for decision. Discussion The single issue presented by this appeal is whether or not Appellant should be paid a sum of money in excess of its bid price for work within the original scope of that required by the specifications on the basis of Appellant's own representation that it did not include such costs in its bid because the information provided it by Respondent's Invitation for Bids (hereinafter "IFB") was inadequate for such purposes. The issue can be quickly disposed of by reference to the IFB itself. There in the "Note" set forth in the clause captioned "Material Furnished," it expressly states that: "All expenses incidental to preparing and shipping this material must be borne by the contractor and included in the quotation." Given such language the burden, necessarily falls upon the Appellant to show by clear and convincing evidence supporting some recognized theory of law, that notwithstanding such provisions in the specification, the facts and circumstances of the case warrant reformation of the contract in order to create an entitlement in Appellant to be paid according to its claim. Recently in Valley Forms, Inc., Docket No. GPO BCA 1-84, January 15, 1986; and again in Peake Printers, Inc., Docket No. GPO BCA 12-85, November 12, 1986, we cited Manistique Tool and Manufacturing Company, ASBCA No. 29164, Aug. 13, 1984, 84-3 BCA ¶ 17,599, as clearly summarizing the controlling law wherein at page 87,677 it said: As a general rule, neither a Board of Contract Appeals or the Claims Court is authorized to relieve a bidder from its obligations under a contract unless it is subject to invalidation on recognized legal grounds, such as mutual mistake, or a mistake of which the contracting officer was on notice or should have been on notice. Aydin Corporation v. United States [29 CCF ¶ 82,129], 229 Ct.Cl. 309, 669 F.2d 681 (1982); Wender Presses, Inc. v. United States [10 CCF ¶ 72,978], 170 Ct.Cl. 483, 343 F.2d 961 (1965); Holway. Oil Company, ASBCA No. 27862, 83-2 BCA ¶ 16,684. Moreover, before relief by reformation or rescission is available to relieve a contractor of the effect of its mistake, the mistake must be a "clear cut clerical or arithmetical error, or misreading of the specifications" and such relief does not extend to mistakes of judgment. Aydin Corporation v. United States, supra; National Line Co. v. United States [26 CCF ¶ 83,394], 221 Ct.Cl. 673, 607 F.2d 978 (1979); Ruggiero v. United States [14 CCF ¶ 83,352], 190 Ct.Cl. 327, 420 F.2d 709 (1970); Michael Chernick v. United States [12 CCF ¶ 80,938], 178 Ct.Cl. 498, 372 F.2d 492 (1967). . . . . [A]ppellant is entitled to relief in contract reformation or rescission for a unilateral mistake in bid claimed after contract award only where the contracting officer knew or should have known of the mistake at the time the bid was accepted. Figgie International, Inc. ASBCA No. 27541, 83-1 BCA ¶ 16,421; Paragon Energy Corp. v. United States [28 CCF ¶ 81,290], 227 Ct.Cl. 176, 645 F.2d 966 (1981). Examining the written record upon which this Board must base its decision, this Board concludes that Appellant has not met its burden since it has not espoused any legally adequate theory for the relief it seeks. Rather, it has put forth as its only argument, without substantial or compelling proof of the same, that because it had not been provided what it deemed to be adequate information upon which to make an educated estimate of handling costs, it had chosen to include no estimated handling cost in its bid price. This unilateral decision by Appellant, especially without notice of the same to Respondent before the time of bid, flies in the face of the specifications, supra, and amounts to a clear cut case of mistake in judgment. Accordingly, this Board affirms the decision of the Contracting Officer and denies the appeal. _______________ 1/ Under U.S. Government Printing Office Contract Terms No. 1, Revised October 1, 1980, which was incorporated into the terms of the contract under the subject specifications (Tab AF, Tab I, p. 1, "Notice"), the bidder had an obligation to include in its bid "anticipated items of cost for production . . ." ¶ 1-1.(c). 2/ The government does not suggest that the contract specifications were ambiguous. Indeed, it is our contention that the specifications were clear and provided a suitable basis for bid formulation.