Reprographex, Inc.
GPO BCA 14-86
July 7, 1987
Michael F. DiMario, Administrative Law Judge
This appeal, timely filed by Reprographex, Inc., Palo Alto,
CA 94306 (hereinafter "Appellant"), is from the September
15, 1986 final decision of John J. O'Connor, Contracting
Officer, San Francisco Regional Printing and Procurement
Office (hereinafter "SFRPPO"), United States Government
Printing Office (hereinafter "GPO" or "Respondent"),
rejecting Appellant's claim of entitlement to payment
pursuant to its invoices for certain work performed by it
under GPO Program 3952M. The decision of the Contracting
Officer is reversed for the reasons set forth hereinbelow.
Background
Respondent has for a number of years contracted for certain
highly technical "Word Processing/Photocomposition
Interface" services on behalf of the U.S. Geological Survey,
Department of the Interior, Menlo Park, CA (hereinafter the
"Department"). This continuing operation is designated GPO
program 3952M. Under the program the SFRPPO, upon
requisition of the Department, annually issues Invitation
for Bids specifying the services the Department anticipates
it will require during a specified l-year term.
The resultant term contract is awarded on a multiple basis,
i.e., concurrently to all qualified bidders by issuance of
so-called Purchase Orders, although no actual work is
procured at that time. Thereafter, any work requirements
which arise are placed with the bidders sequentially; lowest
bidder first, but if such bidder is not able to accept the
work, then to the next lowest bidder, etc.. The placement is
made by issuance of a Print Order which incorporates by
reference all the terms and conditions of the basic
agreement as reflected in the solicitations, bid, and
purchase order. Thus, each print order, together with these
incorporated documents, is itself a completely enforceable
contract.
Under this scheme, Appellant has been among the program
participants for several terms, including June 1, 1984
through May 31, 1985 (Purchase Order P-5350 dated May 31,
1984); and June 1, 1985 through May 31, 1986 (Purchase Order
P-5699 dated May 31, 1985), respectively.
During performance under P-5350 certain differences arose
between Appellant's Mr. Arnold Abrams and Respondent's
Washington, DC Voucher Examination Section concerning
Appellant's entitlement to payment for certain work. (Letter
of Abrams dated June 3, 1985 to Mr. Paul Spatz, Chief of
Invoice Voucher & Examination Section, Rule 4 File,
(hereinafter "R4 File"), Tab 9.) At that time Abrams asked
the SFRPPO Contracting Officer, John O'Connor, to resolve
the differences. Having received no response from O'Connor,
Abrams renewed his inquiry by letter of October 10, 1985,
captioned "[U]nique Terms and Conditions concerning P.O. No.
5350-Program 3952M Region 9-11 covering Print Order # 10009
and all others upon which we are performing and will be
ensuing." (R4 File, Tab 9.) His contention was that the
contract was being misinterpreted by the Voucher Examination
Section. He asserted that the contract in essence said:
THIS IS TO BE A TELECOMMUNICATING CONTRACT. We are not supposed
to keyboard material - our customer is supposed to do that (See
Exhibit 3).
Your contract with us says there maybe an EXCEPTION.
1. AFTER WE HAVE SUBMITTED WHAT WAS TELECOMMUNICATED, WE MAY
RECEIVE REQUESTS FOR CHANGES AND ADDITIONS (OR DELETIONS), TO BE
KEYBOARDED IN THE SAME OR DIFFERENT POINT SIZES, LEADING AND SET
WIDTHS.
2. THESE REQUESTS MAY BE ANNOTATED ON THE PROOF COPY OR EVEN ON
THE REPRO COPY.
3 ANY SUCH CHANGES ARE TO BE KEYBOARDED AND THE PREVIOUSLY
TELECOMMUNICATED COPY, THEREBY REVISED ACCORDINGLY, TO BE
REIMBURSED AT THE PER LINE PRICE (See Exhibit 4).
R4 File, Id.
This led to a conference between Abrams and O'Connor out of which
came Contract Modification SF-32-86 of October 25, 1985, which in
pertinent part stated:
Change is hereby made in Program 3952-M, Purchase Order P-5699
to the effect that the "per line" charge for Author's
Alterations (Item I. F.(l) & (2)) will be limited to a minimum
of $10.00 per page and a maximum of $30.00 per page. The "per
line" charge is applicable only to AA's which require
typesetting through manual keystroking.
These limitations are to be in effect for the entire contract
period from June 1, 1985 thru May 31, 1986.
R4 File, Tab 8.
Subsequent to such modification, Respondent's Voucher
Examination Section disallowed Appellant's vouchered claims
for payment under Section Ie(2) of the Contract for "Add'l
Camera Copy" which Appellant had generated as substitute
pages after keyboarding various author's alterations made to
previously created camera copy galley proofs. The Voucher
Examination Section also asserted that certain previous
claims for such work had been erroneously paid to Appellant
and that adjustments in their respective accounts were
therefore necessary.
Next, Appellant's Abrams, in a series of communications,
angrily advised O'Connor of the correctness of his claims
and again asked for his intervention with Respondent's
Voucher Examination Section, such request being premised
upon Abrams' interpretation of the contract and the method
by which the work thereunder was required to be performed.
O'Connor refused to intervene with the Voucher Examination
Section and so advised Abrams in writing by final decision
of Contracting Officer letter dated September 15, 1986,
wherein O'Connor stated:
It appears from your attachments [to letter of July 8, 1986] that
the item of overpayment is "I.E.(2) Add'l camera copy." While I
don't know whether overpayment did or did not occur on certain
orders; you are aware from our last meeting that I disagree with
your interpretation of this item. I will not therefore direct the
'Voucher Examination Section' to make any additional payment.
Official File, Tab B.
Thereafter, Abrams by letter of September 23, 1986, appealed
to this Board on behalf of Appellant. In such letter Abrams
requested that the case be processed pursuant to the small
claims procedure. The appeal file required by GPO
Instruction 110.12 dated September 17, 1984, was then
assembled by Respondent and furnished to this Board and to
Appellant. Subsequently, on January 6, 1987, in lieu of a
prehearing conference, a telephone conference call was
initiated by the Board to all parties concerned. Upon
conclusion of remarks by Abrams and O'Connor, all parties
were advised by the undersigned that in his judgment the
issue being raised was solely a question of contract
interpretation and thus to be decided by the Board subject
to the provisions of Article 2-3(b) U.S. Government Printing
Office Contract Terms No. 1 (GPO Publication 310.2, Revised
October 1, 1980) concerning finality.
The matter is before the Board for decision upon the record
in this format.
Discussion
The issue presented by this appeal is whether or not the
production of certain corrected camera copy necessitated by
manual keyboarding of author's alterations of "original
camera copy" galley proofs which themselves were created
from both telecommunicated and marked up hard copy
constitutes "additional camera copy" for purposes of payment
under Section I.E.(2) of the "Schedule of Prices."
The Appellant asserts that such copy is in fact the
"additional camera copy" contemplated by the "Schedule of
Prices" and supports such contention by arguing that:
Additional camera copy was underscored in the contract
requirements item I Composition Camera Copy - subparagraph E(2)
because reference was made to Author's Alterations page 7 that
instructed us to make the necessary changes on the hard copy or
the reader's proofs and we would be reimbursed for making these
alterations on a per line basis. In actuality, changes on the
hard copy are covered by Editing the transmission received
diskette. Alterations on the reader's proofs are an entirely
different matter, necessitating extensive keyboarding and playout
of additional Composition/Camera Copy.
Official File, Tab A.
"[W]hen we have to produce certain portions twice (because of
author's changes) we have to prepare additional pages of
(composition) camera copy and thus expect to be paid for it." (R4
File, Tab 8.)
The Rule 4 File does not in fact contain any document in
which Respondent itself articulates the reasons for its
opposition to Appellant's position. Instead, those reasons,
if any, must be gleaned from documents originating with
Appellant. The most definite of such documents appears to be
a letter from Abrams to O'Connor dated March 3, 1986, which
Abrams appended as Exhibit 1 to another letter from him to
O'Connor dated May 1, 1986. Therein Abrams states:
According to Mr. Phil Jones of Voucher Examination (202)
275-2269, the modification is written wrong. He is playing
lawyer and:
(A) says the modification has no standing because the pages,
which is the last step we do, have no changes, only the
galleys used to make these pages had changes.
(B) Since there was [sic] no changes to pages there is no
additional camera copy necessary.
(R4 File, Tab 7.)
While the term "additional camera copy" is not defined in
the contract, the words are clear and unambiguous being
readily defined by dictionary. The legal question to be
resolved, however, is not what the words themselves mean but
rather what is the antecedent usage to which "additional
camera copy" refers. This can only be determined by
examining the context in which such term is used in the
contract itself.
Turning to the contract we find that bids were to be made by
line item price on the portion of the IFB/specifications
captioned "Section 4. Schedule of Prices." Section 4 is
divided into Subsection "I. Composition Camera Copy" and
Subsection "II. TIMEWORK." Instructions following Subsection
I tell us that line item price quotes for Subsection I were
to "be all-inclusive for the materials and operations
necessary to produce and deliver one set of camera copy, in
accordance with the specifications." The line item which
follows in indented fashion thereafter, generally coincides
with the narrative description of services set forth
elsewhere in the specifications, i.e., "A. Composition
Camera Copy," "B. Text Editing . . .," "C. Page Makeup . .
.", "D. Cover and Title Page (composition and makeup)," "E.
Proofs/Camera Copy," and "F. Author's alterations."
Line item "E. Proofs/Camera Copy," the line item in
question, is further divided into two indented numbered
subcategories: "(1) Electrostatic Proofs . . ." and "(2)
Additional Camera Copy . . . ." with the latter subcategory
requiring a per page bid price for which Appellant bid $6.
Following line item (e) is line item (f) "Author's
Alterations" which itself is divided into two indented and
numbered subcategories. Schematically, the arrangement looks
thusly:
SECTION 4. - SCHEDULE OF PRICES
I. Composition Camera Copy
. . . .
A. Composition Camera Copy
. . . .
B. Text Editing - Text and/or tabular (deleting,
setting inserting or merging and mending)
. . . .
C. Page Makeup (includes vertical rule on mutli column
[sic] page format)
. . . .
D. Cover and Title Page (composition and makeup)
. . . .
E. Proofs/Camera Copy
(1) Electrostatic proofs . . . per page . . . or
galley . . . . . $_____
(2) Additional Camera Copy . . . per page . . .
$_____
F. Author's alterations
(1) . . . .
(2) . . . .
R4 File, Tab 2, pages 11 and 12 of 13.
This schematic arrangement makes clear that the term
"additional camera copy" serves an intermediate production
purpose similar in this regard to the term "Electrostatic
Proofs." The conclusion which one must draw from this is
that such term, in fact, cannot mean the production and
final delivery of more than one set of final pages of camera
copy as alleged by Respondent, its drafter. This is so
because the scheme shows a request for only one final set of
camera copy with the word "one" underscored, whereas the
term "additional camera copy" falls within a series of steps
intermediate to the production of such one set. This
intermediate purpose is also clear from the fact that the
term "additional camera copy" is followed by another
intermediate step, i.e., "author's alterations." Since we
find that "additional camera copy" refers to an intermediate
step in the production of "one final set" of camera copy, we
must look to the remainder of the specification language to
give the term "additional camera copy" its appropriate
meaning. In so doing we find that the contract does indeed
tell us, as Appellant alleges, that copy will be received by
transmission or floppy disk; that the type must be set from
such mediums by interfacing compatible photocomposing
machines; and that ordinarily the contractor must not
keystroke work except copy for tabular matter and equations
which will be furnished predominantly in manuscript form.
(R4 File, Tab 1, page 5 of 13.) The specifications also tell
us that there may be author's alterations to the original
text; that is, to the transmitted copy, the floppy disk, or
the tabular or equation manuscript copy, and that such
alterations will be made on either the hard copy or reader's
proofs. It is obvious that when hand keyed alterations are
made to automatically generated copy, the contractor of
necessity must generate new camera copy as a substitute for
the camera copy originally set. Only then can he submit
proofs showing that he has made such alterations. The camera
copy generated in this fashion is in fact the "additional
camera copy" of the "Schedule of Prices," and the
"antecedent usage" to which it inferentially refers is
undoubtedly the copy automatically generated by equipment
interface. Thus, it is the opinion of this Board that the
Appellant's interpretation of the contract is the only
rational interpretation which can be given to the language
of the contract, the intention of the drafter to the
contrary notwithstanding.
It is, therefore, the decision of this Board that the appeal
be granted and that the decision of the Contracting Officer
be reversed.