U.S. GOVERNMENT PRINTING OFFICE
BOARD OF CONTRACT APPEALS
STUART M. FOSS
Administrative Judge
Appeal of B. P. PRINTING AND OFFICE SUPPLIES
Docket No. GPO BCA 14-91
Jacket No. 531-043, Purchase Order F-0343, Program 1422-M, Print
Order 20477
August 10, 1992
DECISION AND ORDER
By letter dated July 10, 1991, B. P. Printing and Office
Supplies, 5050 Jimmy Carter Boulevard, Norcross, Georgia 30093
(Appellant or Contractor), timely filed an appeal from the April
11, 1991, final decision of Contracting Officer Douglas M. Faour,
of the U.S. Government Printing Office's (Respondent or GPO)
Regional Printing Procurement Office, Atlanta, Georgia (ARPPO),
reducing the contract price of the Appellant's contract
identified as Jacket No. 531-043, Purchase Order F-0343, Program
1422-M, Print Order 20477, by $74.20 because 28 copies of the
material ordered were not received by the customer agency - the
Department of Housing and Urban Development (HUD). Thereafter,
by letter dated October 12, 1991, the Appellant submitted
additional documentary material to the Board for the purpose of
supplementing the Contracting Officer's file prepared pursuant to
Rule 4 of the Board's Rules of Practice and Procedure. 1/ Rule
4(b). In the memorandum
attached to its supplemental letter, the Appellant contended that
the main issue did not concern a dispute over $74.20, but instead
involved the ARPPO's unfair treatment of the Appellant in this
matter, including acts of harassment and retaliation after the
claim was filed. Supplemental Memorandum. p. 2. Accordingly,
the Appellant requested a hearing so that the Board could
understand the full extent of the ARPPO's discriminatory activity
and "corruption." Id. Board Rules, 8. For the reasons which
follow, the Appellant's request for a full evidentiary hearing is
DENIED. Furthermore, considering the record as a whole, the
decision of the Contracting Officer is hereby affirmed, and the
appeal is DISMISSED.
BACKGROUND
The facts in this case are relatively simple and are set forth
here only to the extent necessary for this decision. The
contract in question was a multiple award contract for HUD's
short-run copying and printing for a one-year period beginning
February 1, 1991 and ending January 31, 1992 (R4 File, Tab A).
Specifically, the contract involved "...the production of various
sizes of forms, books, and pamphlets on a fast schedule requiring
such operations as film-making, copying/printing, binding,
packing and distribution" (R4-File, Tab A, Scope, p. 6). 2/
Furthermore, this was a "requirements" contract for the items to
be furnished (R4 File, Tab A, Ordering and Quantities, pp. 4-5),
with the Government's print orders being issued by HUD on a
"direct-deal" basis, instead of by GPO. 3/ Report of Prehearing
Telephone Conference (February 14, 1992), p. 3 (RPTC).
Complaint, p. 2.
This dispute is anchored in the "Distribution" and "Receipt for
Delivery" specifications of the contract, which provide in
pertinent part:
DISTRIBUTION: Deliver f.o.b. destination to addresses within
the commercial zone of Atlanta, GA and ship f.o.b.
contractor's city to all other destinations. . . 4/
* * *
Shipments by "Express Mail" will be required when requested on
the print order by the ordering agency and will require the
contractor to apply the appropriate postage to each mailing.
Contractor will be reimbursed for postage by submitting a
properly completed Postal Service Certificate of Mailing with the
voucher for billing.
A single shipment or several shipments totaling 120 pounds or
less scheduled for shipment on the same day to a single
destination are to be mailed by reimbursable parcel cost unless
otherwise instructed. Government bills of lading will be
furnished by the GPO for all shipments requiring a bill of
lading. The contractor must combine on one bill of lading (and a
continuation sheet, if required) all orders scheduled for
shipment to a single destination on the same day (R-4 File, Tab
A, p. 10). [Emphasis added.]
* * *
RECEIPT FOR DELIVERY: Contractor must furnish their own receipts
for delivery. These receipts must include the GPO jacket,
program, and print order numbers; total quantity delivered,
number of cartons, and quantity per carton; date delivery made;
and signature of the government agent accepting delivery. The
original copy of this receipt must accompany the contractor's
voucher for payment (R4 File, Tab A, p. 12).
On January 14, 1991, HUD issued Print Order 20477 under the
contract to the Appellant for the production of 250 copies of
folders/compendiums (folders) (R4 File, Tab B). Because these
folders were needed by HUD's Tampa, Florida office for a seminar
on February 13, 1991, the Print Order required the Appellant to
ship them by January 28, 1991 (R4 File, Tabs B and C). The
Appellant produced the folders, packaged them in cartons and took
them to the U.S. Postal Service (USPS) for shipment to HUD on the
scheduled ship/deliver date (R4 File, Tab E). The record shows,
however, that Print Order 20477 was not a sole shipment.
Instead, in accordance with the terms of the contract's
"Distribution" clause underscored above, the parcel post shipment
consisted of the Print Order 20477 folders and material which the
Appellant had also produced for HUD pursuant to Print Orders
20415 and 20491 (R4 File, Tab E). HUD received the shipment of
Print Order 20477 on February 6, 1991, and the Respondent's
financial office in Washington, DC paid for it on March 13, 1991.
RPTC p. 3.
The dispute between the parties arose when, on February 12, 1991,
HUD informed the Respondent that 28 folders were missing from the
shipment of Print Order 20477 and requested a credit of $74.20
instead of having the Appellant print additional copies (R4 File,
Tab C). 5/ On March 12, 1991, the Respondent telephoned the
Appellant to discuss the Print Order 20477 shortage (R4 File, Tab
D). The Appellant insisted Print Order 20477 had been completed
and shipped in five cartons (three cartons containing 56 folders
each, one carton containing 54 folders and one carton containing
28 folders) (R4 File, Tab D). When the Respondent made further
inquiries of HUD, the customer agency was equally sure that the
28 folders were missing (R4 File, Tab D).
Consequently, the record shows that on or about April 1, 1991,
the Appellant was asked to present its proof of shipment to the
Respondent (R4 File, Tab D). The Appellant's evidence of
shipment is a document dated January 28, 1991, on its own
letterhead on which is handwritten the words "shipping list," and
which bears a USPS stamp of the same date (R4 File, Tab E). The
"Quantity" column of this "shipping list" shows a shipment of "50
bundles," while the "Description" column lists three Print
Orders-Nos. 20415, 20491, and 20477 (R4 File, Tab E). The
notation "50 bundles" appears next to Print Order 20415; there is
no number shown in the "Quantity" column next to Print Orders
20491 and 20477. The Contracting Officer considered the
Appellant's "shipping list" inadequate proof of shipment and
rejected it because it did not conform to the prescribed
documentation required by the contract. RPTC, p. 4.
Accordingly, on April 2, 1991, the Contracting Officer issued
Contract Modification No. 1, changing the quantity on the Print
Order from 250 folders to 222 folders and decreasing the contract
price by $74.20, and mailed it to the Appellant for signature (R4
File, Tab F). Because the Appellant disagreed with the
Contracting Officer's action, it annotated the Contract
Modification accordingly, and on April 5, 1991, returned it to
the ARPPO. Complaint, Attachment 3. On April 11, 1991,
therefore, the Contracting Officer issued his final decision on
the matter reducing the contract price because the Appellant was
"unable to supply proof of delivery for the 250 copies ordered on
Program 1422-M, Print Order 20477, and the ordering agency states
that only 222 were received, . . ." (R4 File, Tab G).
By letter dated July 10, 1991, the Appellant filed its Notice of
Appeal in this dispute with the Board. Board Rules, Rule 1(a).
Subsequently, on September 14, 1991, the Appellant forwarded its
Complaint to the Board in which it not only explained the
circumstances surrounding the missing folders under Print Order
20477, but also raised allegations of "reprisal" and
"discrimination" by the Respondent concerning other contracts. 6/
In its Complaint, the Appellant told the Board that it would "let
the appeal [be] decided on the record, but if need[ed] we have no
objection to a hearing." Complaint, p. 3. Thereafter, by
memorandum dated October 2, 1991, and filed with the Board on
October 12, 1991 as a "follow up Complaint," the Appellant
submitted additional documents under Rule 4(b) of the Board's
Rules, and renewed its allegation of harassment and retaliation.
7/ Supplemental Memorandum. p. 2. In addition, the Appellant
told the Board:
The main issue is not a dispute of [$]74.20. It is the fairness
in the case of [P]rint (O)rder 20477. Furthermore, and even more
importantly, because of the dispute, we are harassed and
[retaliated] against all the way from [April 2, 1991] up to this
moment and seeing no [end]. It may be necessary, and we request,
a hearing on this case to understand fully the extent. The
hearing, if held, may also help in understanding the corruption
in the office of the [ARPPO]. 8/
Id. [Emphasis added.]
Two months later, on December 2, 1991, the Respondent's Answer to
the Complaint was filed with the Board. Subsequently, by
memorandum dated January 10, 1992, the Appellant filed an Amended
Complaint, specifically responding to matters raised in the
Respondent's Answer, Rule 7(a). Finally, by memorandum dated
January 10, 1992, entitled "Amendment of Pleading," the Appellant
responded to the Answer, and reiterated that it had:
limited the complaint to [the ARPPO's] discriminating action and
mismanagement which have [a] severe effect on the Appellant to
conduct business with his own [G]overnment. The dispute over
[Print Order 20477] is a [beginning] of a series of actions the
law cannot overlook [sic]. 9/
Amended Complaint, p. 1. [Emphasis added.] See also,
Appellant's Letter, dated February 28, 1992, p. 2. ("It should
be emphasized here that the instant appeal is not a dispute
merely [involving] consideration of the Government's claim for
[a] refund of $74.20. It is the issue of mismanagement, not [to]
mention discrimination, of the GPO Atlanta office which has a
[devastating] affect on [the Appellant's ability] to do business
with the [G]overnment."). 10/
ISSUES PRESENTED
This case presents three issues for the consideration of the
Board, one jurisdictional, one procedural, and one on the merits
of the appeal:
1. Does the Board have jurisdiction to decide the Appellant's
allegations of "discrimination" and "mismanagement" by the
Respondent in the context of this case? 11/
2. Must the Board conduct an evidentiary hearing in this appeal
because the Appellant has requested one?
3. Was the Contracting Officer in error when he rejected the
Appellant's "shipping list" as adequate proof of shipment because
it did not conform to the documentation prescribed by the
contract?
POSITIONS OF THE PARTIES
The position of both parties was well-stated at the prehearing
telephone conference. On the jurisdictional question, the
Appellant believes that the Board can consider its allegations of
discrimination and unfair practices by the Contracting Officer,
and that all the cases presented in the attachments to its
Complaint are interrelated and deserve to be dealt with in this
appeal. RPTC, p. 6. To the contrary, the Respondent asserts that
the Board is without jurisdiction to consider matters outside the
scope of the original complaint. Id., p. 5.
With respect to the merits of the dispute, the essence of this
case concerns a missing carton from the shipment of Print Order
20477 - the one containing 28 folders. RPTC, p. 4. Hence, the
sole issue on the merits involves the weight to be given to the
Appellant's "shipping list" as adequate proof of shipment. On
that question, the Appellant argued that its "shipping list" was
in the form customarily accepted as evidence of shipment by GPO's
contracting officer's, HUD and the Respondent's financial office,
in the past. RPTC, pp. 6-7. The Appellant contended that its
"shipping list" tells the Respondent that on January 28, 1991,
it sent 50 cartons of the publications covered by Print Order No.
20415, and shipped all of the material ordered under Print Order
Nos. 20491 and 20477. Amended Complaint, p. 1. The Appellant
noted that when it informed the Respondent on April 2, 1991, how
it had divided the 250 folders covered by Print Order No. 20477
for shipping purposes, a tracer should have been placed with the
USPS to locate the missing carton of 28 copies. Id.
Accordingly, the Appellant believes that in this case its
performance under the contract was complete when it handed all
five of the Print Order 20477 cartons to the USPS for delivery to
HUD.
Id. Therefore, in its view, the Contracting Officer had no
reason or authority to reduce the contract price by $74.20, and
in effect, place responsibility for the loss of the carton
containing 28 folders on the Appellant. 12/ Id.
The Respondent, on the other hand, has a much simpler view of the
merits. Specifically, the Respondent points to the contract's
"RECEIPT FOR DELIVERY" clause which sets forth, in detail, the
type of information which must be contained on the contractor's
receipt for delivery which accompanies its voucher for payment
(R4 File, Tab A, p. 12). RPTC, p. 4. According to the
Respondent, the Appellant's "shipping list" did not measure up to
the requirements of the "RECEIPT FOR DELIVERY" clause, and the
Contracting Officer properly rejected it as inadequate proof of
delivery in this case. RPTC, p. 5. Therefore, in the
Respondent's view, since the Appellant was unable to produce the
required proof of shipment, it was entitled to judgment on the
pleadings. Id.
DECISION 13/
A. The Board is without jurisdiction to decide the Appellant's
allegations of "discrimination" and "mismanagement" by the
Respondent in the context of this case.
From the outset, the Appellant has made clear that the central
thrust of its Complaint concerns discriminatory conduct and
mismanagement by the ARPPO, and not the Contracting Officer's
reduction of the contract price on Print Order 20477 by $74.20.
However, during the prehearing telephone conference on January
14, 1992, the Board expressed its opinion that while it was
sensitive to the concerns raised in the Complaint, it believed
that it lacked jurisdiction to consider and adjudicate such
allegations under the "Disputes" clause of the contract. RPTC,
p. 9. Accordingly, the Board was of the view that it would not,
indeed could not, consider and adjudicate the bias issue raised
by the Appellant. Id. Since the prehearing telephone conference,
the Board has had an opportunity to reexamine the sources of its
authority and applicable precedent. Based on that review, the
Board is convinced that the views it expressed concerning its
ability to resolve disputes of discrimination and mismanagement
are correct, and it hereby affirms the ruling it made during the
prehearing telephone conference.
The jurisdiction of the Board to consider and determine appeals
is limited to ". . . final decisions of contracting officers
relating to contracts which contain provisions requiring the
determination of appeals by the Public Printer, or his duly
authorized representative or board." Board Rules, Preface to
Rules, I. Jurisdiction for Considering Appeals. See also, GPO
Instruction 110.10C Subject: Establishment of the Board of
Contract Appeals, dated September 17, 1984, ¶ 5. Under the
"Disputes" clause in GPO Contract Terms, which is incorporated by
reference in the contract at issue (R4 File, Tab A, GPO Contract
Terms and Quality Assurance Through Attributes, p. 2), the Board
only has authority to dispose of questions "arising under or
relating to" the contract. GPO Contract Terms. GPO Publication
310.2, Effective December 1, 1987, (rev. 9-88), Contract Clauses,
¶ 5(a). Hence, as a creature of the "Disputes" clause, the Board
has consistently maintained that its jurisdiction is narrowly
defined. Specifically, the Board has stated on numerous
occasions that its authority is purely derivative and
contractual, and it is constrained to decide disputes within the
parameters of the contract under review. See, e.g., The Wessel
Company, GPO BCA 8-90 (February 28, 1992), Sl. op. at 32-33; Bay
Printing, Inc., GPO BCA 16-85 (January 30, 1987), Sl. op. at 9;
Peake Printers, Inc., GPO BCA 12-85 (November 12, 1986), Sl. op.
at 6. See also, R. C. Swanson Printing and Typesetting Company,
supra, Sl. op. at 27. Indeed, the Board has expressly noted that
the Public Printer has not delegated authority to it to consider
legal questions existing outside the contract itself. Automated
Datatron, Inc., GPO BCA 20-87 (March 31, 1989), Sl. op. at 4-5.
In the Board's view, its "enabling legislation," as consistently
interpreted by the Board, deprives it of jurisdiction to consider
the general issues of discrimination and mismanagement which the
Appellant wishes to litigate in this case. See, RPTC, p. 9.
Similarly, the Board has no authority to award the punitive
damages requested by the Appellant. 14/ Cf., R. C. Swanson
Printing and Typesetting Company, supra, Sl. op. at 41; The
Wessel Company, supra, Sl. op. at 46. Also, as the Board
indicated during the prehearing telephone conference, its narrow
jurisdictional mandate prevents it from considering matters
pertaining to other contracts unrelated to the one under review
in this case. RPTC, pp. 7-8.
In passing, the Board observes that, by statute, allegations of
mismanagement by GPO employees fall within the province of the
agency's Inspector General and should be presented to that
office. 44 U.S.C. § 3901. On the other hand, while boards of
contract appeals can, under appropriate circumstances, entertain
claims that Government actions were motivated by bigotry and
bias, see, e.g., M. G. Technology Corporation, ASBCA No. 35249,
90-1 BCA ¶ 22,575;
Building Maintenance Specialist, Inc., ASBCA No. 25453, 85-1 BCA
¶ 17,932; S. Head Painting Contractor, Incorporated, AGBCA No.
80176-1, 82-2 BCA ¶ 16,005, the accuser is held to the same
evidentiary standard which applies to allegations of "bad faith,"
i.e., "well-nigh irrefragable" or indisputable proof. See,
Stephenson, Inc., GPO BCA 02-88 (December 20, 1991), Sl. op. at
5455 (citing, Cotyvan Company, ASBCA No. 24,599, 89-3 BCA ¶
22,129, at 11,356; Bruce Anderson Company, Inc., ASBCA Nos.
29,412, 32,247, 89-2 BCA ¶ 21,872, at 110,027); The Standard
Register Company, GPO BCA No. 4-86 (October 28, 1987), Sl. op. at
12-13 (citing, Knotts v. United States, 121 F.Supp. 630, 631 (Ct.
Cl. 1954)). The Board is compelled to note that in this case
while the Appellant raised the discrimination issue in its
Complaint, the appeal file reveals that its allegations are
clearly based on Government conduct occurring after the
Contracting Officer issued his final decision (April 11, 1991).
15/ Therefore, apart from the fact that the Board sees nothing
in the record to support the Appellant's bold assertion of
Government discrimination; cf., Stephenson, Inc., supra, Sl. op.
at 57; Fry Communications, Inc./InfoConversion Joint Venture, GPO
BCA No. 9-85 (decision on remand) (August 5, 1971), Sl. op. at
33, n. 31 (citing, Tri-State Services of Texas, Inc., ASBCA No.
38,019, 89-3 BCA ¶ 22,064); The Standard Register Company, supra,
Sl. op. at 12-13); Singleton Contracting Corporation, GSBCA No.
8,548, 90-2 BCA ¶ 22,748; Gemini Services, Inc., ASBCA No. 30247,
86-1 BCA ¶ 18,736, the claim is procedurally defective because it
does not arise under or relate solely to the
contract under review. GPO Contract Terms, Contract Clauses, ¶
5(a). Accordingly, the Board holds it has no jurisdiction to
consider the Appellant's allegations of discrimination and
mismanagement in this case.
B. Even though the Appellant has requested an evidentiary
hearing, such a proceeding is not warranted in this appeal.
The second issue which the Board must address in the context of
this case concerns an important matter relating to the Board's
own responsibilities in managing GPO's adjudicatory system for
resolving appeals from final decisions of GPO's contracting
officers. The procedural question involved, simply stated, is
whether or not the Board is obligated to conduct an evidentiary
hearing in processing an appeal simply because an appellant
demands one.
The appeal record shows that the Appellant raised the matter of a
hearing on two occasions. In its Complaint, dated August 16,
1991, the Appellant said it would "let the appeal [be] decided on
the record, but if need[ed] we have no objection to a hearing."
Complaint. p. 3. [Emphasis added.] The second time the
Appellant mentioned a hearing was in its Supplemental Memorandum
of October 2, 1991, in which it stated: "It may be necessary,
and we request, a hearing on this case to understand fully the
extent."
Supplemental Memorandum, p. 2.
As indicated above, the Board's power to decide contractor
appeals is rooted in the "Disputes" clause of the contract
itself. The Wessel Company, Inc., supra, Sl. op. at 32 (citing,
Peake Printers, Inc., supra, Sl. op. at 6). See also, Bay
Printing Inc., supra, Sl. op. at 9. That clause provides, in
pertinent part:
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. [Emphasis added.]
GPO Contract Terms, Contract Clauses, ¶ 5(d). The contractor's
"opportunity to be heard" is implemented by means of the
following provisions in the Board Rules:
Rule 8. Hearing Election. Upon receipt of respondent's answer .
. ., Appellant shall advise the Board whether it desires a
hearing, as prescribed in Rules 17 through 25, or whether it
elects to submit its case on the record without a hearing, as
prescribed in Rule 11. In appropriate cases, the Appellant shall
also elect whether it desires the optional accelerated procedure
prescribed in Rule 12. 16/
Rule 17. Where and When Held. Hearings will ordinarily be held
in Washington, D.C., except that upon request reasonably made and
upon good cause shown, the Board may, in its discretion, set the
hearing at another location. Hearings will be scheduled at the
discretion of the Board with due consideration to the regular
order of appeals, Rule 12 requirements and other pertinent
factors. On request or motion by either party and upon good
cause shown, the Board may, in its discretion, adjust the date of
a hearing. [Emphasis added.]
Rule 18. Notice of Hearings. The parties shall be given at
least fifteen (15) days notice of the time and place set for
hearings. In scheduling hearings, the Board will consider the
desires of the parties and the requirement for just and
inexpensive determination of appeals without unnecessary delay.
Notices of hearings shall be promptly acknowledged by the
parties. A party failing to acknowledge a notice of hearing
shall be deemed to have submitted his case upon the Board record
as provided in Rule 11. [Emphasis added.]
Rule 19. Unexcused Absence of a Party. The unexcused absence of
a party at the time and place set for a hearing will not be
occasion for delay. In the event of such absence, the hearing
will proceed and the case will be regarded as submitted by the
absent party as provided in Rule 11.
Although the rules of the Board pertaining to the scheduling and
conduct of hearings, Board Rules, 17, 18, and 19, are
substantially similar to the regulations promulgated by Executive
branch contract appeals boards to implement the provisions of the
Contract Disputes Act (CDA), Pub. L. 95-563, 92 Stat. 2383-91
(codified at 41 U.S.C. §§ 601-613 (1982)), the hearing election
procedure is significantly different in at least two respects:
(1) only an appellant can choose a hearing under Rule 8; and (2)
Rule 8 does not provide for a mandatory hearing at the election
of the appellant. 17/ Board Rules, Rule 8. In that regard, the
Board's Rule 8 procedure is closer to the administrative practice
followed in contract appeals prior to the enactment of the CDA,
when the decision whether or not to conduct a hearing on a
contract appeal was completely discretionary with the agency
board. 18/ See, e.g., Bateson-Cheves Construction Company, IBCA
No. 670-9-67, 68-2 BCA ¶ 7,289. Furthermore, the boards took the
view that even a "full" hearing did not have to be an "oral" one.
Id. (citing, Boston & M. R. R. v. United States, 208 F.Supp. 661,
669 (D. Mass. 1962), affirmed 371 U.S. 20 (1962)). However,
agency boards generally provided contractors with an oral hearing
under the "Disputes" clause, if requested, where they had
jurisdiction and there were disputed issues of fact present. Id.,
fn. 7 (citing, Morgan Construction Co., IBCA-253, 60-2 BCA ¶
2,737; Flora Construction Company, IBCA-180, 60-2 BCA ¶ 2,692).
Consequently, it is clear that even if an appropriate election is
made under Rule 8, an appellant does not have an unconditional
right to a hearing. 19/
Under Rule 8 of the Board Rules an appellant's right to a hearing
is dependent on a showing that genuine issues of material fact
exist which need to be resolved. 20/ Matthew's Printing, Inc.,
GPO BCA 31-88 (March 14, 1990), Sl. op. 5. Cf., RBP Chemical
Corporation, GPO BCA 4-91 (January 23, 1992), Sl. op. 29-30;
G.E.T. Construction Company, ASBCA No. 24234, 28709, 85-1 BCA ¶
17,721. Absent a showing of such a factual dispute, an
appellant's right to a hearing and an opportunity to present
evidence is satisfied by affording an adequate opportunity for a
documentary presentation. See, e.g., Korshoj Construction Co.,
IBCA No. 321, 65-1 BCA ¶ 4,731; Bateson-Cheves Construction
Company, supra, 68-2 BCA ¶ 7,289. This view is consistent with
the overarching principle regarding the interpretation of the
Board's procedural rules, namely that they should be administered
"so as to secure a just and inexpensive determination of appeals
without unnecessary delay." Board Rules, Preface to Rules, ¶
VI.C.; Rule 18. [Emphasis added.]
It is clear to the Board that a hearing is unwarranted in this
case because there is no genuine issue of material fact on any
matter over which the Board has jurisdiction. Since appeals are
taken to the Board "from final decisions of contracting
officers," Board Rules, Preface to Rules, I. Jurisdiction for
Considering Appeals, it is the Contracting Officer's action
which frames the parameters of the dispute. In this case, the
Contracting Officer's final decision of April 11, 1991, reducing
the contract price was expressly based on his view that the
Appellant's "shipping list" was insufficient "to supply proof of
delivery for the 250 copies ordered on Program 1422-M, Print
Order 20477, and the ordering agency states that only 222 were
received, . . ." (R4 File, Tab G). The Appellant's "shipping
list" is already a part of the record (R4 File, Tab E).
Consequently, the only issue properly before the Board on appeal
from the Contracting Officer's final decision is whether he erred
in deciding that the Appellant's "shipping list" was inadequate
as proof of delivery of Print Order 20477. The adequacy of the
"shipping list" is a question relating to the weight of the
evidence in the record, a matter wholly within the discretion of
the Board. Board Rules, Rule 13 (c). See also, Board Rules.
Rule 20. Each party is, of course, free to offer their
respective views regarding the worth of the Appellant's "shipping
list" as proof of shipment, and they have, but the ultimate
decision rests with the Board.
The Board's conclusion that a hearing is unwarranted is
reenforced by its examination of the Appellant's own pleadings in
this case. The Appellant has maintained throughout these
proceedings that the main issue did not concern a dispute over
$74.20, but rather involved questions of mismanagement and
discrimination on the part of the Government. See, Appellant's
Letter dated February 28. 1992, p. 2; Supplemental Memorandum, p.
2; RPTC, pp. 5-6. Thus, the Appellant's interest in a hearing
was focused solely on matters neither "arising under or relating
to" the contract in question which, as previously stated, defines
the Board's authority under the "Disputes" clause. GPO Contract
Terms. Contract Clauses, ¶ 5(a). Because the Board must decide
disputes within the parameters of the contract under review, see,
e.g., The Wessel Company, supra, Sl. op. at 32-33; Peake
Printers, Inc., supra, Sl. op. at 6; Automated Datatron, Inc.,
supra, Sl. op. at 45, it lacks jurisdiction to consider the
general questions of discrimination and mismanagement which
furnish the basis for the Appellant's request for a hearing.
See, RPTC, p. 9. Consequently, any hearing in this appeal would
serve no purpose, see, e.g., United States v. Cheramie B-Truc No.
5, Inc., supra, 538 F.2d 696; Monumental Health Plan, Inc. v.
Department of Health and Human Services, supra, 510 F.Supp. 244,
because the Board could not award any meaningful remedy.
Therefore, if for no other reason, a hearing would be precluded
in this appeal as a matter of sound policy, simply because the
Board has no power to dispose of the discrimination and
mismanagement questions with finality; i.e., to afford a remedy
which logically would flow from the facts found.
Cf., The Wessel Company, supra, Sl. op. at 37-39 (citing, United
States v. Utah Construction and Mining Company, 384 U.S. 394,
40711 (1966)). Also, cf., Blake Construction Company, Inc.,
GSBCA No. 2205, 67-1 BCA ¶ 6,311, at 29,197-98. Accordingly,
the Board denies the Appellant's request for a full evidentiary
hearing in this appeal.
C. The Contracting Officer properly rejected the Appellant's
"shipping list" as inadequate proof of shipment because it did
not conform to the documentation prescribed by the contract.
At the outset, it must be clearly understood that while the issue
on the merits was placed before the Board by the Appellant's
Notice of Appeal protesting the Contracting Officer's final
decision reducing the contract price for Print Order 20477 by
$74.20, we are really dealing here with a "Government claim."
21/ Cf., LTV Aerospace and Defense Company, Vought Missiles and
Advanced Programs Division, ASBCA No. 35674, 89-2 BCA ¶ 21,858
(an appeal protesting the Government's reduction of a contract
price pursuant to an Economic Price Adjustment clause); P.X.
Engineering Company, ASBCA No. 38215, 89-2 BCA ¶ 21,859 (a
unilateral contract modification by the Government reducing the
price of the contract); Unimatic Manufacturing Company, ASBCA
Nos. 25212, 25933, 84-1 BCA ¶ 17,099 (a Government setoff of
amounts paid for undelivered
goods). Because the matter concerns a "Government claim," it was
the Respondent's burden to prove by a preponderance of the
evidence that the Appellant failed to deliver a complete shipment
of folders under Print Order 20477 to the USPS, as required by
the contract, and that, therefore, the Government was entitled to
take the deductions and, moreover, the amounts deducted were
accurate. Cf., R&B Bewachungsgesellschaft mBH, ASBCA Nos. 42213,
42220, 42222, 91-3 BCA ¶ 24,310 at 121,496; Unimatic
Manufacturing Company, supra, 84-1 BCA ¶ 17,099, at 85,111. If
the Respondent has met its burden of proof, the fact that its
financial office in Washington, DC, had already paid the
Appellant the full contract price for Print Order 20477 would not
be a bar to recovery by the Government. 22/ Id.
As previously indicated, resolution of the dispute between the
parties depends on the answer to a single question - is the
"shipping list" which the Appellant furnished to the Contracting
Officer adequate proof of shipment of Print Order 20477? The
differences between the parties on this issue could not be
clearer. The Appellant says that its "shipping list" was in the
form customarily accepted as evidence of shipment in the past by
GPO's contracting officer's, HUD and the Respondent's financial
office. RPTC, pp. 67. The Respondent argues that the Appellant's
"shipping list" did not meet the requirements of the contract's
"RECEIPT FOR DELIVERY" clause, and therefore the Contracting
Officer properly rejected it as inadequate proof of delivery in
this case. RPTC, p. 5. The Board agrees with the position taken
by the Respondent.
The keystone to the Respondent's position in this case is the
contract's "RECEIPT FOR DELIVERY" clause. That specification
sets forth, in detail, the type of information which a contractor
must provide to GPO in order to receive payment for the work
performed (R4 File, Tab A, p. 12). In that regard, a
contractor's receipt must include: (1) the GPO jacket, program,
and print order numbers; (2) the total quantity delivered; (3)
the number of cartons, and quantity per carton; (4) the date when
delivery made; and (5) the signature of the Government agent
accepting delivery. 23/
Notwithstanding the Appellant's contention that its "shipping
list" was in a form which the Government had accepted as evidence
of shipment in the past, even a cursory examination of that
document discloses that it fails to provide most of the
information required by the "RECEIPT FOR DELIVERY" clause, and is
therefore inadequate as proof of delivery under the contract.
With respect to Print Order 20477 specifically, while the
Appellant's "shipping list" shows that the order was delivered to
the USPS on January 28, 1991, there is nothing to indicate, on
the face of the document, the number of cartons, and quantity per
carton for that order, and who accepted them on behalf of the
USPS. Although the Appellant later told the Respondent that
Print Order 20477 had been shipped in five cartons -- three
cartons containing 56 folders each, one carton containing 54
folders and one carton containing 28 folders -- this information
was given to the Contracting Officer verbally and is not
contained in the "shipping list" itself. 24/ Indeed, by the
Appellant's own admission, the "shipping list" does not even give
the total number of cartons for the three Print Orders it covers.
As explained by the Appellant, the "50 bundles" shown in the
"Quantity" column refers only to Print Order 20415, although the
same information could reasonably be read as a total of "50
bundles" for all three Print Orders. Accordingly, in the Board's
opinion the Appellant's "shipping list" is incomplete, misleading
and confusing, and does not come close to meeting the contractual
standards of the "RECEIPT FOR DELIVERY" clause.
In the Board's view, the Respondent has established by a
preponderance of the evidence that the Appellant did not deliver
the missing carton of 28 folders under Purchase Order 20477 to
the USPS for shipment to HUD. The Board bases its opinion on:
(1) evidence that the 28 folders were not received by HUD's
Tampa, Florida office; (2) the fact that a subsequent check of
the items delivered under the Appellant's shipment of January 28,
1991, made by HUD's Tampa, Florida office at the Respondent's
request, disclosed that the carton with 28 folders was missing;
and (3) the failure of the Appellant to provide the Contracting
Officer with sufficient information, as required by the "RECEIPT
FOR DELIVERY" clause, to show that, in fact, a carton containing
28 folders had been given to the USPS for delivery to HUD in
Tampa, Florida. As the Board understands the contractual terms
of shipment -- "F.O.B. Contractor's City" -- responsibility for
insuring safe delivery of the missing carton would have passed to
the Respondent if the Appellant could show that it had met all of
its obligations under the contract relative to packing and
shipping, including obtaining the required USPS receipts and
certificates and maintaining the appropriate documentation. The
evidence in the record convinces the Board that the Appellant has
failed to meet those ministerial, but nonetheless important
duties relating to shipment and delivery under the contract, and
therefore, responsibility for the missing carton remains with the
Appellant. Thus, on the basis of this record, the Board is
unable to say that the Contracting Officer's decision to reduce
the contract price for Print Order 20477 under the circumstances
described herein is clearly erroneous. Chavis and Chavis
Printing, GPO BCA 20-90 (February 6, 1991), Sl. op. at 18.
Accordingly, the Board affirms the Contracting Officer's decision
to reduce the contract 20477 because only 222 folders were
received by HUD.
CONCLUSION
Considering the record before it as a whole, the Board reaches
the following conclusions: (1) the Board is without jurisdiction
to consider the Appellant's allegations of discrimination and
mismanagement in this case; (2) the Appellant's request for a
full evidentiary hearing in this appeal is unwarranted; and (3)
the Contracting Officer's decision to reduce the contract price
for Print Order 20477 under the circumstances described herein is
not clearly erroneous. Therefore, the Board AFFIRMS the
Contracting Officer's decision and DISMISSES the appeal. 25/
It is so Ordered.
_______________
Footnotes:
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 September 12, 1991. GPO Instruction
110.12, Subject: Board of Contract Appeals Rules of Practice and
Procedure dated September 17, 1984 (Board Rules), Rule 4. It
will be referred to hereafter as the R4 File. with an appropriate
Tab letter also indicated. The R4 File consists of documents
identified as Tab A through Tab G.
2 Under the terms of the contract, the production of forms was
deemed to be Category 1 work, while the printing of books and
pamphlets was classified as Category 2 work (R4 File, Tab A,
Title, p. 6). It was anticipated that over the life of the
contract the total number of print orders would be equally
divided between these two categories (R4 File, Tab A, Frequency
of Orders, p. 6).
3 As explained in the GPO Agency Procedural Handbook, GPO
Publication 305.1, dated March 1987 (GPO Handbook): "[d]irect-
deal term contracts allow the customer agency to place print
orders (GPO Form 2511) directly with contractors rather than
routing them through the GPO for placement." GPO Handbook.
Section IV, ¶ 1, at 8. The purpose of this method of contract
administration is "...to ensure that agency printing needs are
met in the most effective and efficient manner possible." It
should be noted, however, that agency direct-deal authority ". .
. extends only the placement of print orders and to the
transmission of copy and proofs. . . . All other authority rests
with GPO's Contracting Officers." GPO Handbook. Section IV, ¶ 2,
at 9. See, R.C. Swanson Printing and Typesetting Company, GPO
BCA 15-90 (March 6, 1992), Sl. op. at 7, fn. 6.
4 As explained in GPO's Printing Procurement Regulation: (1)
"F.O.B. Contractor's City" means that the contractor is liable
for insuring safe delivery of all items within the contractor's
commercial zone, with the Government assuming responsibility only
for the safe delivery of all other shipments, provided that the
contractor has met all requirements of the contract relative to
packing and shipping; and (2) "F.O.B. Destination" places
responsibility for insuring safe delivery to the point(s) of
destination specified in the contract of the contractor. GPO
Printing Procurement Regulation. GPO Publication 305.3
(September 1, 1988), Chap. V (Transportation and Traffic
Management), Sect. 2 (Liability). ¶¶ 1, 2. [Emphasis added.]
Print order 20477 was shipped to HUD's facility in Tampa, Florida
(R4 File. Tab c). Therefore, under the terms of the contract the
order was sent "F.O.B. Contractor's City" (R4 File, Tab A, p.
10).
5 Apparently, HUD used its in-house Xerox machine to complete
the order; i.e., reproduce additional folders to make up for the
shortage (R4 File, Tab C).
6 The Complaint was in the form of a memorandum, dated August
16, 1991, but was not sent to the Board until a month later. The
reason is apparent from the document itself. The list of the
Respondent's actions in the Complaint discloses that it was
written over a period of time -- the memorandum is dated August
16, 1991, but the last action of the Respondent listed is August
27, 1991. Furthermore, the subject line of the Complaint reads:
"Mismanagement and discrimination against B.P. Printing and
Office Supplies in the period of six months from March 1991 to
[August] 1991. The dispute due to Print [o]rder 20477, Jacket
531-043 is just a start." Overall, the Appellant believes that
eight other cases should be considered by the Board in the
context of this appeal -- "Exception clause" of Program 1422-M,
Program 1426-S, Program 1403-M, Jacket No. 535-488, Program 3445-
S (Print order 40006), Jacket No. 535-720, Jacket No. 535-512,
and Jacket No. 631-655. See, Appellant's Letter, dated February
28, 1992. Commenting on the Board's Report of Prehearing
Telephone Conference, p. 2 (Appellant's Letter, dated February
29, 1992).
7 The appeal file shows that for some reason not apparent in the
record, a copy of the Appellant's Supplemental Memorandum was not
served on the Respondent until November 20, 1991.
8 In its letter dated February 28, I992, commenting on the
Board's report of the prehearing telephone conference held on
January 14, 1992, the Appellant renewed its argument that the
main thrust of its appeal concerned mismanagement and
discrimination by the ARPPO, and that eight other cases should be
considered by the Board -- "Exception Clause" of Program 1422-M,
Program 1426-S, Program 1403M, Jacket No. 535-488, Program 3446-S
(Print order 40006), Jacket No. 53S-720, Jacket No. 535-512, and
Jacket No. 631-655-in order to fully understand this central
issue. Appellant's Letter. dated February 28, 1992, p. 2.
Moreover, the Appellant asks the Board to award it punitive
damages. Id., p. 4.
9 During the prehearing telephone conference on January 14,
1992, the Appellant repeated that the dispute had arisen because
of the "discrimination shown and unfair practices adopted by the
Contracting Officer. . . " RPTC, p. 5. As indicated in the
conference report, "[a]ccording to the Appellant, the unfair
practices adopted by the Contracting Officer were evident not
only in the matter involved in the Appeal, but also in other
cases cited in Attachments 1 to 16 of his Complaint and Amended
Complaint (October 12, 1991). In particular, the Appellant
referred to the Contracting Officer's decision not to offer
further work to the Appellant on Program 1422-M, and his final
decision to terminate the Appellant's Jacket No. 535-394 contract
for default (which is the subject of a separate appeal), as proof
of the Contracting Officer's discriminatory conduct." See,
Complaint, Attachments 4 and 12." Id., pp. 5-6.
10 Accordingly, the Appellant asked the Board to award it
punitive damages. Appellant's Letter, dated February 28, 1992,
p. 4.
11 In its December 2, 1991 Answer to the Complaint, the
Respondent raised another jurisdictional issue by asserting as a
defense that the Board lacked jurisdiction to entertain the
appeal because it was not filed within 90 days from the date of
receipt of the Contracting Officer's final decision, and hence
was untimely. Answer, Second Defense, p. 2. Neither party has
requested a hearing on the jurisdictional question raised in the
Answer. Board Rules, Rule 5. However, an examination of the
appeal file convinces the Board that it has jurisdiction to
decide this case. There is nothing in the record to indicate
when the Appellant received the Contracting Officer's letter of
April 11, 1991. In any event, July 10, 1991 would be the 90th
day under the Board's rule regarding the computation of time
(which does not count the day of the event from which the
designated period of time begins to run) even if it was assumed
that the Appellant received the Contracting Officer's letter on
April 11, 1991. Board Rules, Preface to Rules, III.B.
Furthermore, while the Board's appeal file does not contain the
envelope in which the Appellant mailed its Notice of Appeal, for
the purpose of this case, the Board presumes that it was
dispatched on the day it was written (July 10, 1991), and
therefore was timely under the so-called "mail box" rule. Cf.,
Micrographic Technology, Inc., ASBCA No. 25577, 81-2 BCA ¶
15,357.
12 At the prehearing telephone conference, the Appellant also
mentioned that, in any event, the Contracting Officer's price
reduction figure of $74.20 was incorrect. According to the
Appellant's calculations, the correct price reduction should have
been $63.83. RPTC, p. 7. See Complaint, Attachment 15.
13 The record on which the Board's decision is based consists
of: (1) the Notice of Appeal. dated July 10, 1991; (2) the R4
File (Tabs A-O); (3) the Complaint, dated August 16, 1991, and
sent to the Board on September 14, 1991; (4) the memorandum,
dated October 2, 1991, providing information supplementing the R4
File, and sent to the Board on October 12, 1991; (5) the Answer,
dated December 2, 1991; (6) the Amended Complaint, dated January
10, 1992; (7) the Report of Prehearing Telephone Conference; (8)
the Appellant's comments to the Report of Prehearing Telephone
Conference; and (9) the Respondent's comments to the Report of
Prehearing Telephone Conference.
14 See note 10 supra.
15 See note 6 supra.
16 Rule 11 Allows either party the option of waiving a hearing
and to submit its case to the Board upon the record. Rule 12
provides two alternate procedures, available solely at the
election of the appellant, for claims of $10,000 or less (Small
claims (Expedited) Procedure; Rules 12.1;(a), 12.2), and for
claims of $50,000 or less (Accelerated Procedure; Rules 12.1(b).
12.3). In this regard, the Board Rules adopt the procedural
regulations of Executive branch boards of contract appeals. See,
e.g., General Services Administration Board of Contract Appeals
Rules of Practice and Procedure (GSBCA Rules), 48 C.F.R. Parts
6101.11, 6101.13, 6101.14. However, these optional procedures
relate to the speed with which a case must be processed by the
Board (120 days for the Small Claims (Expedited) Procedure and
180 days for the Accelerated Procedure), and not to an
appellant's right to hearing, which may be had under both
procedures.
17 Compare, GSBCA Rules, 48 C.F.R. Part 6101.9 (Election of
hearing or record submission), which clearly states, in pertinent
part: "Each party shall inform the Board, in writing, whether it
elects a hearing or submission of its case on the record. . . A
hearing will be held if one of the parties elects one. . . "
18 Because GPO is a legislative branch agency, the CDA does not
apply, as a matter of law, to the contracts it awards. See,
Tatelbaum v. United States, 749 F.2d 729, 730 (Fed. Cir. 1984);
The Wessel Company, Inc., supra, Sl. op. at 17, fn. 18. See
also, GPO Instruction 110.10C. ¶ 3.
19 In this case, although the Appellant made its request for a
hearing prior to its receipt of the Respondent's Answer, contrary
to the procedure set forth in Rule 8 of the Board Rules, the
Board has at all times treated the Appellant's election as valid.
See, RPTC, p. 2. In that regard, Rule 8 is not jurisdictional
and may be waived by the Board at its discretion. As noted in
the Federal Bar Association Board of Contract Appeals Practice
Manual (1981) FBA Manual: ". . . [The hearing election rule] is
not self-executing, since it prescribes no firm time limit, and
tends to be honored more in the breach than in the observance.
On occasion, one of the parties expresses its desire for a
hearing at the time of filing a notice of appeal or a pertinent
pleading." See, FBA Manual, Chap. IV, Pretrial Practice, Sect.
A, ¶ 2, p. IV-l.
20 The principle that an agency is not obligated to conduct an
adjudicatory hearing unless there are material issues of fact to
be resolved is "black letter" administrative law. See, e.g.,
State of California Department of Education v. Bennett, 843 F.2d
333 (9th Cir. 1988); Veg-Mix, Inc. v. U.S. Department of
Agriculture, 832 F.2d 601 (D.C. Cir. 19S7); Louisiana Land and
Exploration Company v. F.E.R.C., 788 F.2d 1132 (5th Cir. 1986).
The reason for the rule is simple -- agency's are not required to
conduct meaningless evidentiary hearings which would serve
absolutely no purpose. See, e.g., United States v. Cheramie B-
Truc No. 5, Inc., 538 F.2d 696 (5th Cir. 1976), rehearing denied
559 F.2d 1217 (5th Cir. 1977); Monumental Health Plan, Inc. v.
Department of Health and Human Services, 510 F.Supp. 244 (D. Md.
1981). In short, there must be a dispute worth hearing. See,
Greenwald v. Whalen, 609 F.2d 665 (2d Cir. 1979).
21 For a discussion of "Government claims," see generally, John
Cibinic, Jr. & Ralph C. Nash, Jr., Administration of Government
Contracts, 2d ed., (The George Washington University, 1986), pp.
959-63.
22 As the Armed Services Board of Contract Appeals stated in
Unimatic Manufacturing Company: "No delay by the Government in
giving notice of non receipt precludes its recovery of payments
induced by erroneous, if not false, certifications of shipment."
Unimatic Manufacturing Company, supra, 84-1 BCA ¶ I7,099, at
85,111.
23 In this particular case, because Print order 20477 was sent
"F.O.B. Contractor's City" the "Government agent" for the purpose
of the "RECEIPT FOR DELIVERY" clause would have been the USPS
employee at the Rockbridge Branch Post office receiving the
cartons for shipment to HUD's Tampa, Florida facility (R4 File,
Tab E). See note 4 supra.
24 Although the Appellant's "shipping list" shows HUD as the
addressee, there is no information on the "Address" line. Thus,
while other evidence in the record discloses that Print Order
20477 was shipped to HUD in Tampa, Florida (R4 File, Tab C), the
"shipping list" itself does not provide that information.
Consequently, there is no merit to the Appellant's contention
that once the Respondent learned how Print Order 20477 was
packaged for shipment it should have placed a tracer to locate
the missing 28 copies. Without the requisite information
concerning the missing carton such an action would have been
difficult, if not impossible, for the USPS.
25 As indicated previously, the parties disagree on the correct
amount of the price reduction in this case. See note 12 supra.
Their dispute concerns the difference between $74.20 (the
Contracting Officer's figure) and $63.83 (the Appellant's
calculation). The Board is unable to resolve that dispute on the
basis of this record. Therefore, in accordance with Board policy
in such situations, the matter is remanded to the parties to
determine the correct price reduction figure. See, e.g.,
American Drafting and Laminating Company, GPO BCA 15-85 (June 25,
1986), Sl. op. at 4-5. See also, e.g., Edward Brothers, Inc.,
GPO CAB 3-83 (May 3, 1984), Sl. op. at 4-5; Celia Translations,
Inc., GPO CAB 10-79 (February 6, 1981), Sl. op. at 12.