BOARD OF CONTRACT APPEALS
UNITED STATES GOVERNMENT PRINTING OFFICE
In the Matter of )
)
the Appeal of )
)
WBC, INC., d/b/a LITHEXCEL ) Docket No. GPOBCA 17-98
Program 2848-S )
Print Order 61008 )
For the Appellant: Michael Allison, P.C., BARNETT & ALLISON,
Albuquerque, New Mexico.
For the Respondent: Kerry L. Miller, Esq., Associate General
Counsel, U.S. Government Printing Office.
DECISION AND ORDER
WBC, Inc., dba Lithexcel, 2408 Alamo S.E., Albuquerque, New
Mexico (Appellant), appeals the decision of Contracting Officer
Raymond MacDonald of the U.S. Government Printing Office (GPO or
Respondent) to reduce the amount to which the Appellant was
entitled to be paid for lamination work performed pursuant to its
Program 2848-S contract and ordered by Print Order 61008. The
Respondent has moved for summary judgment. For the reasons which
follow, the motion is DENIED, and the appeal is SUSTAINED.
I. BACKGROUND
1. On September 22, 1997, the Appellant was awarded a
requirements contract (Purchase Order M3448) for Program 2848-S,
which called for the production and delivery, as ordered, of
promotional materials, such as books, pamphlets, posters, and
post cards, for the Blue Angels, the Navy's aerial demonstration
team. Rule 4 File, Tabs 1, 2.1 The contract contained line
items for various materials to be used and operations to be
conducted in the performance of the contract, along with
estimated quantities for each line item and the prices bid by the
Appellant. Rule 4 File, Tabs 2, 4. For one line item, sheet
laminating, the contract contained an estimate of 26 (per page
sized unit/per side/per 100 leaves); Appellant bid a unit price
of $120, for an evaluated extended price of $3,120. Rule 4 File,
Tabs 4, 5. The total estimated contract price was $71,977.40,
less a 2 percent prompt payment discount. Rule 4 File, Tab 5.
2. The contract was a direct-deal contract, under which the
customer agency, the Defense Automated Printing Service (DAPS),
could place orders directly with the contractor. On December 22
DAPS issued Print Order 61008, which called for the production of
50,050 11" x 14" posters. The Print Order required both sides of
the posters to be laminated. Rule 4 File, Tab 6.
3. The Appellant produced and delivered the posters and,
consistent with the unit pricing of the contract, billed GPO for
$249,609.10. More than $240,000 of that amount was for
laminating work. GPO paid the invoiced amount, less a prompt
payment discount, on February 20, 1998. Rule 4 File, Tab 9.
4. In early February, the Contracting Officer, after learning
of the matter, advised DAPS that the amount of lamination
required by the Print Order "far exceeded" what the contract
anticipated and that the work was outside the scope of the
contract. Rule 4 File, Tab 11. He also wrote to Appellant and
stated that the order "did not fit the contract because we did
not anticipate requiring lamination of this magnitude" and that
the work "should be treated as a change to the contract and be
paid for by establishing new prices for the non-contract goods
and services." Rule 4 File, Tab 12.
5. After attempts to reach agreement with the Appellant on
revised pricing failed, the Contracting Officer issued a "Change
Order ? pursuant to ? [the] Changes [clause]," reducing the price
for the Print Order by $144,144 to $105,465.10, an amount the
Contracting Officer considered to be "fair and reasonable" for
the work performed. Rule 4 File, Tab 19. GPO subsequently
recovered the $144,144 through offset against amounts owed to the
Appellant for unrelated work. Complaint ¶ 16. The Contracting
Officer denied the Appellant's claim regarding this matter by
final decision dated June 11, 1998, Rule 4 File, Tab 24, and the
Appellant filed this appeal.
II. DISCUSSION
In deciding motions for summary judgment, the Board2 is guided by
Rule 56 of the Federal Rules of Civil Procedure, pursuant to
which courts will grant such motions where the pleadings and
supporting documents show that there are no genuine issues as to
material facts and that the moving party is entitled to judgment
as a matter of law. Composite Laminates, Inc. v. United States,
27 Fed. Cl. 310 (1992); Wickersham Printing Co., Inc., GPOBCA
23-96 (December 18, 1998), supra, at 8. The burden is on the
moving party to demonstrate that it is so entitled. Celotex Corp.
v. Catrett, 477 U.S. 317 (1986).
The material facts are not in dispute, and the Respondent asserts
that it is entitled to judgment as a matter of law because the
work called for by Print Order 61008 was outside the scope of the
contract and therefore the Appellant, while entitled to payment
of a reasonable amount for the work performed, was not entitled
to be paid pursuant to the pricing contained in the contract.
The Appellant, on the other hand, argues that the contract
contained no quantity limitations and that therefore the work
ordered by Print Order 61008, including the lamination, was
within the scope of the contract such that the Government is
obligated to pay for the work in accordance with the contract.
The courts and boards of contract appeals often have been called
upon to determine if work ordered by the Government was within
the scope of the contract against which the order was placed.
These cases, usually involving the "Changes" clause,3 tell us
that work is within the general scope of the contract if it was
"fairly and reasonably within the contemplation of the parties
when the contract was entered into," Freund v. United States, 260
U.S. 60 (1922), or "essentially the same work as the parties
bargained for when the contract was awarded." Aragona Constr.
Co. v. United States, 165 Ct. Cl. 382 (1964).4 If the work
effectively requires the contractor to perform duties materially
different from those originally bargained for, it is outside the
scope of the contract. Asbestos Transportation Servs., Inc.,
ASBCA 46263, 98-1 BCA ¶ 29,502. There is no exact formula,
however, for determining if ordered work is outside the scope of
the contract-each case must be analyzed "on its own facts and in
light of its own circumstances." Wunderlich Contracting Co. v.
United States, 351 F.2d 956 (Ct. Cl. 1965); ThermoCor, Inc. v.
United States, 35 Fed. Cl. 480 (1996).
Resolution of these types of disputes often turns on the nature
of the ordered work and its relationship to the work called for
by the contract. For example, certain repair work ordered under
a computer maintenance contract, although not identified by the
contract as a work requirement, was held to be work of a kindred
type and therefore within the scope of the contract, see ITT
Commercial Services, Inc., GSBCA 4210, 75-1 BCA ¶ 11,218, while
changing a requirement from red oak furniture to furniture made
of ash was held to have materially changed the nature of the
contract and therefore was outside the scope of the contract.
See Marvin J. Perry & Assocs., Comp. Gen. B-277684, B-277685,
Nov. 4, 1997, 97-2 CPD ¶ 128. In the case before us, Appellant's
contract clearly provided for the Government to order, and the
Appellant to furnish, laminated printed promotional material.
There is no question that the printed material-50,050 posters-
ordered pursuant to Print Order 61008 was encompassed by the
scope of the contract. There is also no question that lamination
of ordered printed products was encompassed by the contract.
Thus, what must be resolved here is whether the lamination
ordered by Print Order 61008 is beyond the scope
of the contract because the amount of lamination required is
materially different from what the parties contemplated when
entering into the contract.
An increase in the quantity of the major specific items to be
furnished under a contract normally is not a permissible change
within the scope of the contract because a quantity change is not
encompassed by the "Changes" clause.5 See, e.g., Valley Forge
Flag Co., Inc., VABCA 4667, 5103, 97-2 BCA ¶ 29,246; Swanson
Printing Co., supra, at 38-39; John Cibinic, Jr. & Ralph C.
Nash, Jr., Administration of Government Contracts 394 (Third ed.
1995). When, however, a requirements contract is involved, there
is no specified quantity that can be increased or decreased-there
are only estimates of what the Government will order. Under such
contracts, used when the Government has recurring needs but
cannot predetermine the precise quantities or future demand for
the commodity or service, Technical Assistance Int'l, Inc. v.
United States, 150 F.3d 1369 (Fed. Cir. 1998); Medart, Inc. v.
Austin, 967 F.2d 579 (Fed. Cir. 1992), the fact that the
Government orders substantially more or less than the estimated
quantity may raise a question about the validity of the estimates
and how they were derived, but usually will not raise a scope of
contract question. See, e.g., Crown Laundry & Dry Cleaners, Inc.
v. United States, 29 Fed. Cl. 506 (1993); American Marine Decking
Servs., Inc., ASBCA 44440 et al., 97-1 BCA ¶ 28,821; KPT, Inc.,
GPOBCA 14-97 (November 30, 1998), slip op., 1998 WL 993634; RIM
Advertising, GPOBCA 38-94 (September 24, 1997), slip op., 1997 WL
742429; GraphicData, Inc., GPOBCA 35-94 (June 14, 1996), slip
op., 1996 WL 812875.
This is so because it is well understood that the Government is
not bound to its estimates. While the Government must use due
care in preparing the estimates it furnishes, Womack v. United
States, 389 F.2d 793 (Ct. Cl. 1968); KPT, Inc., supra; Qualitype,
Inc., GPOBCA 21-95 (April 21, 1998), slip op. at 7, 1998 WL
350484, recon. denied, GPOBCA 21-95 (June 24, 1998), slip op.,
1998 WL 350480, the Government does not guarantee that it will
not order significantly less or significantly more than what it
has estimated, GOECO, ASBCA 46573, 96-2 BCA ¶ 28,412, and
bidders are on notice that, despite the Government's use of due
care, the estimates may not reflect what will actually occur
during the term of the contract.6 Technical Assistance Int'l
Inc. v. United States, supra; Medart, Inc. v. Austin, supra. In
other words, the fact that the Government orders substantially in
excess of the estimated amount does not mean that the ordered
quantity is beyond the contract's scope. While a contractor may
be entitled to an equitable adjustment if the estimate was not
prepared with due care, Womack v. United States, supra; Crown
Laundry & Dry Cleaners, Inc. v. United States,29 Fed. Cl. 506
(1993); Viktoria Fit Internationale Spedition, ASBCA 39703, 92-2
BCA ¶ 24,968; Ambulance Service & Transport of Marlin, VABCA
3485, 94-2 BCA ¶ 26,729, or, as this Board has held, when the
Government makes a program change that unreasonably increases the
quantities ordered at additional performance cost to the
contractor, GraphicData, Inc.,
supra, the bases for that entitlement and the adjustments
themselves are considered to be within the scope of the
contract.
That does not mean, however, that under a requirements contract
or other kind of indefinite delivery contract there cannot be
circumstances where the quantity ordered by the Government is
beyond that envisioned by the parties and therefore outside the
scope of the contract. For example, in some cases the Government
expresses an intention to order only up to a certain quantity.
In Valley Forge Flag Co., Inc., supra, a significant increase in
quantity orders over what the Government originally intended to
order was viewed as beyond the scope of the contract because the
Government had intended to order 60 percent of its requirements
from the contractor and 40 percent through other contracts but
ordered far more than 60 percent of its total needs from that
contractor. In Comdisco, Comp. Gen. B-277340, Oct. 1, 1997, 97-2
CPD ¶ 105, task orders, more than 25 percent of the value of
which was for hardware and software, were held to be outside the
scope of the contract because the contract limited the
acquisition of hardware and software to not more than 25 percent
of the value of a task order. Similarly, where a contract
imposed a maximum on the quantity of certain equipment that could
be ordered, an order that caused the maximum to be exceeded was
also outside the scope of the contract. Liebert Corp., 70 Comp.
Gen. 448 (1991), 91-1 CPD ¶ 413.
Even where the Government does not express any intended quantity
limitation, there is language in several cases suggesting that an
order or modification could be beyond the scope of the contract
simply because it results in a very large increase in the
quantities ordered over those estimated. For example, it has
been stated that "[t]here is a point when the increase in amount
may become so great that it would be unreasonable to insist on
peformance," LFS, Inc., LBCA 82-BCA-10, 84-2 BCA ¶ 17,306, and
that an agency is not entitled to place unlimited orders having
no reasonable relation to the estimates. Allied Paint Mfg. Co.,
Inc., GSBCA 1488, 67-1 BCA ¶ 6,387, aff'd, Allied Paint Mfg. Co.,
Inc. v. United States, 470 F.2d 556 (Ct. Cl. 1972). Moreover,
this Board, while holding that a significant increase in the
quantity of paper patent sets ordered, well above the contract's
estimated quantity due to the Government's change in the planned
method of producing patents from a mix of paper and CD-ROMs to
paper only, was within the scope of the contract, recognized the
possibility that under other circumstances a very large quantity
increase could be a "drastic modification beyond the scope of the
contract work." GraphicData, Inc., supra, at 113 n.68.
Similarly, the Comptroller General, while finding that delivery
orders and contract modifications that increased by varying
amounts the quantities ordered or that could be ordered were
within the scope of the contract, recognized the possibility that
larger increases could have been outside the scope of the
contract. See Exide Corp., Comp. Gen. B-276988, B-276988.2, Aug.
18, 1997, 97-2 CPD ¶ 51, and cases cited therein.
These cases, to the extent they remain viable on this point, see
infra at 12, would not compel any particular result here. The
Appellant's contract contains no express limitation on the amount
of lamination that could be ordered, and the cited cases, while
recognizing the possibility that a quantity deviation could be so
great so as to be beyond the contract's scope, all viewed the
specific variation involved as within the contract's scope and
provide little guidance as to when or under what circumstances a
substantial quantity increase must be considered to be beyond the
scope of the contract. In this regard, the Comptroller General
has viewed quantities ranging from 13 percent to 30 percent above
the contract estimates as within the scope of the contract, see
Exide Corp., supra, and cases cited therein, while in
GraphicData, Inc., supra, this Board, consistent with the
approach taken by other boards of contract appeals, concluded
that an increase of 138 percent over the estimated requirements
was not sufficiently "drastic" to be outside the scope of the
contract. See also Allied Paint Mfg. Co. Inc., supra (125
percent deviation from estimate); Sponge Fishing Co., Inc., GSBCA
1386, 65-1 BCA ¶ 4,627 (143 percent deviation); and Crawford
Painting & Decorating Co., ASBCA 10914, 66-1 BCA ¶ 5,658 (150
percent deviation). Even quantities varying from the estimates
by as much as 3,000 percent have been treated as within the scope
of the contract. See Viktoria Fit Internationale Spedition,
supra.7
The Board notes that in addition to considering the extent to
which quantities exceed estimates, the boards and courts also
consider the impact of an order or modification on contract cost
when resolving questions of contract scope. It is not clear,
however, that a modification or order may be considered outside
the scope of the contract on the basis of cost impact alone.
While cost is taken into account, it appears to be used to
buttress a conclusion based on other factors that the order or
modification is beyond the contract's scope. For example, in
finding a $99 million contract modification to be outside the
scope of the contract, the GSBCA noted the "enormous increase in
contract value" represented by the modification, but reached its
conclusion on the basis of several other factors as well. Wiltel
v. General Services Administration, GSBCA 11857-P, 93-1 BCA ¶
25,314. That decision was reversed in AT&T Communications, Inc.
v .WilTel, Inc, supra, with the court disagreeing with the GSBCA
on the effect of those other factors and ignoring the cost of the
modification. In Sprint Communications Co., Comp. Gen. B-278407,
B-278407.2, Feb. 13, 1998, 98-1 CPD ¶ 60, the Comptroller General
referred to the potential cost of a modification as supporting
what was otherwise clear from the contract itself--that the
modification was outside the scope of the contract, while in an
earlier case he referred to the magnitude of the technical
changes made by a modification and their overall impact on price
(a 29 percent increase in unit price) and delivery. See American
Air Filter Corp., 57 Comp. Gen. 285 (1978), 78-1 CPD ¶ 136,
recon., 57 Comp. Gen. 567 (1978), 78-1 CPD ¶ 443. In the
Comptroller General's view, a substantial price increase
engendered by a contract modification is not sufficient to
establish that the modification is outside the scope of the
contract where the modification has not changed the nature and
purpose of the contract. Techno-Sciences, Inc., supra; Defense
Sys. Group et al., Comp. Gen. B-240295.2 et al., Nov. 6, 1990,
1990 WL 293536.
The Board's own precedent also does not dictate a particular
result here. The only case with somewhat similar facts--where
the very high cost of a subsidiary operation led the Respondent
to declare work ordered by customer agency print orders to be
outside the scope of the contract--is United Computer Supplies,
Joint Venture, GPOBCA 26-94 (January 23, 1998), slip op., 1998 WL
148845. In that case, Respondent's customer agency issued print
orders for marginally-punched continuous forms against a
requirements contract for multiple-part carbonless paper sets.
The contract, envisioning only an occasional order for
perforating, contained a very low estimate for perforations. The
print orders, however, required more than 5.5 million
perforations. The contractor complied with the print orders and
subsequently billed the Government $93,230.80 and $41,890.90;
included in those amounts were charges for perforations, based on
the contract unit price, of $70,092 and $35,046, respectively.
After the customer agency and the Respondent became concerned
about the unexpectedly high cost of the print orders, the GPO
contracting officer determined that the ordered work was outside
the scope of the contract, that the contract pricing therefore
did not apply, and that the contractor was entitled to be paid
only the reasonable amounts of $8,436.51 and $5,380.96, the
amounts the contractor would have been paid had the work been
ordered under another contract specifically intended for the
acquisition of marginally-punched continuous forms. The Board
held that the contracting officer was correct, and the Board's
decision was subsequently affirmed on appeal. United Computer
Supplies, Inc./Cole Computer Forms/McCall's Printing Express,
Joint Venture v. United States, No. 98-142C, 1999 WL 216833 (Fed.
Cl. Apr. 2, 1999). Neither the Board nor the court based its
decision on the excessive quantity of ordered perforations; the
focus instead was on the differences between multiple part
carbonless sets and marginally-punched continuous forms,
particularly with respect to binding. The Board did find support
for its conclusion in the contract estimate, however, noting that
because the ordered forms typically are ordered with vertical and
horizontal perforations, the low contract estimate for
perforations provided "a strong indication" that the forms were
not meant to be encompassed by the contract. United Computer
Supplies, Joint Venture, supra, at 10-11.
In United Computer Supplies, there were clear differences between
the forms ordered and the carbonless sets that were the subject
of the contract, and the perforation estimate was a strong
indication that the ordered forms were not meant to be
encompassed by that contract because the estimated number of
perforations was completely inconsistent with the type of form
ordered. Obviously that is not the situation here. The material
ordered was exactly what the contract was for--promotional
material for the Blue Angels, in a format (poster) and in a size8
permitted by the contract. Moreover, the contract provided that
"[a]n occasional order may require that the product be laminated
face only or face and back after printing ?." Rule 4 File, Tab 2
at 13. Thus, United Computer Supplies is of little help in
resolving the instant appeal.
Ultimately, and notwithstanding the language in the cases
suggesting that an ordered quantity could be so large as to be
beyond the scope of the requirements contract against which the
order was placed, what must be controlling here is the standard
enunciated by the Court of Appeals for the Federal Circuit in
Technical Assistance Int'l, Inc. v. United States, supra. In
that case the contractor alleged damages resulting from the
Government's failure to place orders approaching the estimated
quantity. Stating that under a requirements contract the buyer
"is generally accorded significant freedom in determining its
requirements ? because it has specifically bargained for such
flexibility," the court held that the only limit on the buyer
("lest it be permitted to vary its requirements to such an extent
that the seller is exposed to an undue risk of severe economic
hardship") is the duty to act in good faith. 150 F.3d at 1372.
According to the court, a buyer acts in good faith if it has a
valid business reason for varying its requirements other than
dissatisfaction with the contract. Since there was no evidence
that the Government had acted in bad faith, the court held that
the contractor was not entitled to relief.9
While the court was called upon to deal with a situation where
the ordered quantity fell below the contract estimate, the
court's decision clearly is intended to apply also to the
situation where the ordered quantity significantly exceeds the
estimate ("?where the quantity ordered is considerably more or
considerably less than that anticipated from a reading of the
contract's terms ? the courts will ? [apply] a test of good faith
?." 150 F.3d 1372, quoting from Shader Contractors, Inc. v.
United States, 276 F.2d 1, 7 (Ct. Cl. 1960)). Moreover, the
General Services Board of Contract Appeals recently ruled that
the court's ruling does indeed apply to situations where orders
under a requirements contract significantly exceed the contract
estimate. Workrite Uniform Co. v. General Services
Administration, GSBCA 14839, 1999 WL 417074. In other words,
under the standard set forth by the Federal Circuit, a
requirements contract is virtually an open-ended agreement
pursuant to which the federal agency buyer may place orders in
any quantity, so matter how far removed from the contract
estimate, so long as the agency's action reflects good faith
business reasons. Such orders, by definition, must be regarded
as within the scope of the contract as originally awarded.
That being so, the Respondent is not entitled to judgment as a
matter of law. There is no evidence before the Board that the
Government acted in bad faith in placing Print Order 61008. In
fact, it appears that the Order was issued for very legitimate
business reasons__the requiring activity believed its needs
required 50,050 posters that were to laminated on both sides.
Therefore, the Appellant contractor, should it have made a claim
for relief on the grounds that the ordered work was beyond the
scope of the contract, would not be entitled to such relief.
That being so, the Board must conclude that the Respondent also
is not entitled to avoid the consequences of placing the Order by
asserting that the Order was outside the scope of the contract.
It would be anomalous indeed if an order could be viewed as
outside the scope of a properly bargained-for contract if the
Government makes that argument but not so if the assertion is
made by the contractor.
III. ORDER
The Respondent's motion for summary judgment is DENIED. The
Appellant has not formally filed its own motion for summary
judgment. In its Response to Motion for Summary Judgment,
however, the Appellant requested the Board to order the return to
Appellant of "sums wrongfully withheld by the GPO, equal to
$144,400." The Appellant also referenced its Prehearing Brief, a
document in which it reserved its right to a hearing "[i]f the
Board determines that there are disputed material facts which
preclude summary resolution ? for the benefit of WBC." Since, in
the Board's view, there are no material facts in dispute, in
effect the Appellant is requesting the Board to render judgment
in its favor without resort to a hearing or the introduction of
additional evidence. Moreover, under Rule 56 of the Federal
Rules of Civil Procedure the absence of a formal motion for
summary judgment does not preclude the entry of summary judgment
in favor of the non-moving party if the other party has had an
adequate opportunity to show that such summary judgment would be
inappropriate. Wright, Miller & Kane, Federal Practice and
Procedure: Civil 3d §§ 2720. The Respondent, through the
submission of its Motion for Summary Judgment and supporting
documents, has had that opportunity. Accordingly, since there
are no material facts in dispute and, pursuant to the discussion
above the Appellant is entitled to judgment as a matter of law,
the Board grants summary judgment for the Appellant in the amount
of $144,144. The appeal is SUSTAINED.
It is so Ordered.
September 22, 1999
Ronald Berger
Ad Hoc Chairman
Board of Contract Appeals
_______________
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 July 30, 1998. It is referred to as
the Rule 4 File, with an appropriate Tab letter also indicated.
The Rule 4 File consists of 24 documents identified as Tab 1
through Tab 24.
2 Although the Board's rules do not explicitly provide for a
summary judgment procedure, the Board routinely entertains
summary judgment motions. See Wickersham Printing Co., Inc.,
GPOBCA 23-96 (December 18, 1998), slip op., 1998 WL 993636, aff'd
on recon., GPOBCA 23-96 (March 1, 1999), slip op., 1999 WL
______; French Bray, Inc., GPOBCA 16-96 (August 21, 1998), slip
op., 1998 WL 640415; Nimbus Mfg., Inc., GPOBCA 21-96 (July 9,
1998), slip op., 1998 WL 640422; Graphicdata, Inc., GPOBCA 35-94
(June 14, 1996), slip op. at 47, 1996 WL 812875, and cases cited
therein.
3 Respondent's clause, which is identical to that used by the
Executive Branch, is found at GPO Contract Terms, Solicitation
Provisions, Supplemental Specifications, and Contract Clauses,
GPO Pub. 310.2, effective December 1, 1987 (Rev. 9-88), Contract
Clauses, ¶ 4. The "Changes" clause allows the Contracting
Officer to make changes, within the general scope of the
contract, to the specifications, the method of shipment or
packing, and the place of delivery.
4In other cases, where the dispute is not between the
contractor and the Government but arises from a third-party
complaint that the Government, instead of ordering under an
existing contract, should have conducted a new competitive
procurement, the focus is on whether the work ordered was
within the scope of the competition originally conducted,
that is, whether the original competitors should have
reasonably anticipated that the work could be ordered under
the contract to be awarded, or whether the work added to or
ordered under the contract is materially different from the
contract as originally entered into. AT&T Communications,
Inc. v. WilTel, Inc., 1 F.3d 1201 (Fed. Cir. 1993); CCL, Inc.
v. United States, 39 Fed. Cl. 780 (1997); Techno-Sciences,
Inc., Comp. Gen. B-277260.3, May 13, 1998, 98-1 CPD ¶ 138;
MCI Telecommunications Corp., Comp. Gen. B-276659.2, Sept,
29, 1997, 97-2 CPD ¶ 90; Neil R. Gross & Co., 69 Comp. Gen.
247 (1990), 90-1 CPD ¶ 212. Changes in the type of work,
performance period, and costs are examined to determine if
there is a material difference between the original contract
and the contract as modified. Makro Janitorial Services,
Inc., Comp. Gen. B-282690, Aug. 18, 1999, 99-2 CPD ¶ ___;
Access Research Corp., Comp. Gen. B-281807, Apr. 5, 1999,
99-1 CPD ¶ 64.
5 Respondent's regulations permit a quantity increase through a
supplemental agreement signed by both parties. Printing
Procurement Regulation (PPR), GPO Pub. 305.3 (Rev. 5-99), Ch.
XIII (formerly Ch. XII), Sec. 2. See Swanson Printing Co.,
GPOBCA 27-94, 27-94A (November 18, 1996), slip op. at 34-36, 1996
WL 812958.
6 Indeed, the rules of the Executive Branch regarding unbalanced
bidding, see Federal Acquisition Regulation §§ 14.404-2(g),
15.404-1(g), have stemmed from a concern that bidders, knowing
that the estimates may prove to be an unreliable indicator of
what will be ordered, may structure their bids not on the basis
of the estimates but on the basis of their own understanding of
what the Government's requirements actually will be, which, if
that understanding proves correct, could result in the evaluated
low bid actually costing the Government more than another bid.
See Severn Cos., Inc., GSBCA 9353-P et al., 88-2 BCA ¶ 20,689;
Daniel I. Gordon, Unbalanced Bids, 24 PUB. CONT. L.J. 1 (1994).
There is no provision in the Respondent's PPR dealing with
unbalanced bids.
7 In Viktoria Fit the ASBCA held that an appellant's burden to
show lack of due care in the preparation of estimates was
satisfied solely by evidence of a large disparity between the
estimates and the quantities ordered. That holding was
effectively overruled by Medart, Inc. v. Austin, supra. See KPT,
Inc., supra, at 6.
8 The Print Order called for 11 x 14" posters. The contract's
Schedule of Prices established a 10 x 12" page size for billing
purposes but made clear that pricing for larger sizes would be
adjusted accordingly. Rule 4 File, Tab 2 at 19-22.
9 The court noted that under the Uniform Commercial Code (UCC) a
buyer cannot order a quantity "unreasonably disproportionate" to
the estimate but held that the UCC is not binding with respect to
Government contracts and declined to adopt the UCC standard. 150
F.3d at 1372.