U.S. GOVERNMENT PRINTING OFFICE BOARD OF CONTRACT APPEALS The Appeal of QUESTAR PRINTING, INC. Docket No. GPO BCA 23-87 Purchase Order B-0338, Jacket No. 708-104 January 3, 1990 MICHAEL F. DiMARIO ADMINISTRATIVE LAW JUDGE OPINION This appeal, timely filed by Questar Printing, Inc., 5825 South Western Avenue, Chicago, IL 60636 (Appellant), is from the November 2, 1987, final decision of James T. Reingruber, Contracting Officer (CO), Philadelphia Regional Printing Procurement Office (PRPPO), United States Government Printing Office (Respondent), completely terminating Respondent's contract with Appellant, Purchase Order B-0338, Jacket No. 708-104, for default because Appellant had "failed to produce the first phase of proofs specified within the contract, and . . . [had] repeatdly [sic] informed [Respondent] about shipping the proofs, when proofs were actually never sent or produced." (Official File,. Tab 2) The appeal is denied and the decision of the CO affirmed for the reasons set forth hereinbelow. BACKGROUND On September 21, 1987, Respondent, pursuant to Requisition No. 7-00246 of the Department of Energy, issued an Invitation for Bid (IFB) for the composition and printing of some 1,110 copies of a certain publication titled "Annual Report PPPL- Q-44" to be shipped complete to the Princeton Plasma Physics Laboratory (PPPL), Princeton, NJ, by November 20, 1987. (Rule 4 File, hereinafter "R4 File," Tab A) The IFB advised potential bidders that the material to be furnished the successful bidder by the Government, included a reprint sample book (previous for style), 353 pages of manuscript copy, 20 tables, and 151 total figures,and would be on display at Respondent's offices in Southampton, PA, during stated workday hours before the day of bid opening which was set by the IFB for September 29, 1987. The solicitation emphatically warned in boldface print that: "EXAMINATION OF THE COPY BY THE BIDDER IS AN INTEGRAL PART OF THESE SPECIFICATIONS. NO ADDITIONAL PAYMENT WILL BE ALLOWED FOR THE CORRECTION OF ERRORS DUE TO THE FAILURE OF THE CONTRACTOR TO EXAMINE THE COPY AND UNDERSTAND THE NATURE OF THE WORK TO BE PERFORMED." (R4 File, Tab C, page 1 of 7) The IFB specifications gave bidders two composition options. Option #1 was for the electronic transmission of text; Option #2 was for composition from the manuscript copy itself. Under Option #1 the IFB in pertinent part stated: Contractor may pick up NBI, System 64, word processing diskette (8 x 8, Level 8.1, Double sided, double density, full feature) or establish a time with PPPL Network Operations for the transmission of text over phone lines [contact Marilyn Hondorp (609-683-2656)] . . ., format communicated text into proper fonts, etc., provide galley proofs; do mechanicals and layouts; provide page proofs and color proof of cover, provide blueline; print, bind and deliver completed job to PPPL." (R4 File, Tab C, page 3 of 7) The IFB was sent to a bid list of 20 potential bidders and also posted in GPO offices to encourage additional bids. Appellant requested an IFB as a result of the posting. Bids were opened on September 29, 1987, with three responsive bids being received. Appellant's bid at $14,709.52 was the lowest. The following day Respondent's Hytha M. Benton telephonically spoke to Appellant's Sales Manager, Eric Janowicz, and asked that he confirm Appellant's bid, which he did. Benton in her notes on the conversation stated that she "[E]xplained to him that this was a display bid, which he did not review, said he [sic] take it anyway." She also noted that she talked with "Tom" [not further identified] who said that she should award the contract to Appellant. The Purchase Order was issued that same day in strict accordance with Appellant's quotation and Respondent's specifications. Appellant received the order on Friday, October 2, 1987, and on Monday, October 5, 1987, called Hondorp DOE, to arrange for electronic transmission of text pursuant to composition Option #1. Per Hondorp's notes of the conversation, Appellant advised her that it did not have an NBI, but did have a Verityper 5810 and wanted to run a test of communication compatibility. The notes further stated "Questar is requesting information that does not seem necessary, and they commented they do not know how they will handle the Greek symbols." (R4 File, Tab Q) On October 6, 1987, Hondorp called Benton and advised her of the problem. Benton indicated that she would contact Appellant. (R4 File, Tab Q) Benton, in-turn, referred the matter to Lillian Davis, Respondent's Compliance Officer. Davis spoke to Appellant's Michele McGee and Eric Janowicz on October 7, 1987. They advised Davis that DOE was trying to transmit text electronically but that compatibility with Appellant's system was questionable, and thus they wanted the agency "to reprogram with some type of symbols." Davis was asked to "call Marilyn Hondorp [DOE] ASAP." (R4 File, Tab G) After contacting Hondorp, Davis made the following entries in her notes: 10/7/87-This printer is not qualified to do this job. Pre- award survey from Chicago shows he does not have proper equipment. Eric said he can do the job by different method with no extra money. Per Eric. 10/8/87 Told contractor, he will be monitored, no extra money no matter which way he does it & he will be defaulted if he does not produce job on 11/20/87. (R4 File, Tab G) Davis noted additional pertinent telephone conversations as follows: 10/8 Eric from Questar is demanding to have program altered. DOE cannot do this, he was told that there would be no changes. 10/9 According to Marilyn Hondrop [sic] they are calling continuously trying to make DOE change the format & symbols. I have checked preaward survey & they are not equipped to do job. 10/9 Received message from Michele at Questar. Eric told Questar that there is [sic] not going to be any changes and he said he will make a decision on this within an hour. 10/14 Marilyn Hondorp called & said that Questar called that they [do want] diskette because they are talking to NBI. L. Davis Table from the MFCTR [manufacturer] of computer or from MNFCTR [manufacturer] of software - Mike O'Henry [sic] [Appellant's employee, Mike Henry] - everywhere where there are symbols. Conference call between Mike O'Henry, [sic] Questar, Marilyn Hondrop, [sic] DOE. and Lillian Davis, GPO. Mr. Henry said he will adapt to DOE's system as all they need is to identify the symbols. Marilyn is going to DHL [DHL is an overnight delivery service] all symbols chart to Mike Henry on 10/9/87. First proofs due 10/16/87. Proofs never received on the 16th. Called on 10/19 & Eric said that he do [sic] his best to got [sic] proofs ASAP. I told him his best is not enough. (R4 File, Tab G, sheets 1 - 3) Called Eric on 10/14/87. Proofs should be in here tomorrow or show cause. 10/20 Mr. Janowicz never responded to my call. Cure notice 10/20/87. Response to cure notice 10/27/87. No proofs. (R4 File, Tab H) 11/4 Called Tom & me several times. Told him to send back copy by 11/9 or it will be picked up. 11/5 Received letter from Eric & Val [Krumplis] at Questar. 11/5 Marilyn Hondorp received call from Val and tried to appeal to her about letting them do the job. She told Val that the agency has had it & Val hung up. Then called back & tried to appeal again. (R4 File, Tab G, sheet 3) The "Cure Notice" dated October 20, 1987, stated: You are notified that the Government Printing Office considers your failure to furnish proofs in a timely manner on Purchase Order B-0338, Jacket 708-104, for the Department of Energy a condition that is endangering performance of the contract in accordance with its terms. Therefore, you are hereby afforded the opportunity to present in writing, within five (5) days from receipt hereof, the measures adopted which have cured such condition. Unless such condition has been cured, the Government may terminate the contract for default pursuant to the article entitled "Default", United States Government Printing Office Contract Terms No. 1. (R4 File, Tab I) By letter of October 26, 1987, Janowicz replied stating: On September 3, 1986, we purchased telecommunication hardware & software from varityper for $3,806.24. At the time of installation we were told that by using varityper's compatability [sic] worksheet we could set up our typesetter to communicate text from any computer in the world. We have been able to use this hardware & software successfully on every attempt since installation. This is the basis of us bidding on this particular jacket. Immediately after receiving materials on this jacket our typesetter Michele contacted Marilyn with the intention of establishing compatibility. At this time a test was made transmitting 7 bit ASCII (because this is the most popular format for text transmission), it was found that Greek/Math characters and special symbols were not received (due to Princeton's computer stripping out these symbols) and further work had to be done to improve compatibility. Due to a misunderstanding between Michele & Marilyn compatibility was not established. Three days later Mike Henry, our production manager, contacted Marilyn and agreed to investigate problems with computer compatibility. After conversation between Mike Henry and Lillian from G.P.O. Philadelphia, it was stated by Lillian that the agency at Princetown [sic] University was not responsible for cooperation with us and we had to work thru their computer company, "NBI" to solve any technical problems. Mike Henry contacted NBI offices in Washington, D.C., Boulder, Colorado, and Chicago, Illinois, searching for a solution. After talking with a NBI technical representative (Paula), who was very helpful and referred us to telecommunication specialist named Art Meredith. After several hours of trouble shooting it was established that the problem was due to transmitting a 7 bit ASCII. An attempt was made to transmit in 8 bit ASCII and it was found that it was not compatible with our equipment. An alternate solution must be found. It was determined at this time that our best alternative was to work on converting NBI disk to varityper format. After converting the disc it was found to require many hours of hand editing to eliminate coding used by NBI computer. However, this would be a workable solution. Michele started to work typesetting from the edited disc on October 22, 1987. At this time we have 30 pages of text completed. In determining our performance please take into consideration the following: 1.) At the time of bidding using our record. of successful telecommunications and information given by varityper, we were positive that successful telecommunication from NBI computer was possible. 2.) It was not stated in the specifications that 8 bit ASCII was required. 3.) The fact that the agency was not responsible for cooperation with us created an obstacle and unnecessary delays. 4.) We have absorbed all the extra costs to get this typesetting completed and we feel that we can submit galley proofs by/or on Friday, October 30, 1987. 5.) All galleys completed will be sent to you upon request before Friday. (R4 File, Tab J) Based upon the reply the CO sought the concurrence of Respondent's Contract Review Board (CRB) to terminate the contract based upon a theory of anticipatory breach since "Using [Appellant's] promised date of 10-30-87 for first phase of proofs, revised proof schedule would be as follows: 1. First phase to GPO by October 30, 1987. 2. Second phase to GPO by November 10, 1987. 3. Third phase to GPO by November 20, 1987."; thus making "on-time delivery of final product by the specified ship date impossible." (R4 File, Tab K) On November 2, 1987, Davis was telephonically notified that CRB concurrence was unanimous. (R4 File, Tab K) Thereafter, the CO issued his "final decision" letter, supra. (R4 File, Tab L) Appellant then called the CO claiming the termination was not justified. (R4 File, Tab N) This was followed that same date, November 4, 1987, with a letter to the CO stating Appellant's position. In turn, the CO, by letter of November 5, 1987, furnished Appellant's letter to this Board as a notice of appeal. (R4 File, Tab P) Thereafter, the Board, by letter dated November 20, 1987, notified Appellant that the appeal was docketed and provided Appellant with a copy of this Board's Rules of Practice and Procedure. The letter directed specific attention to Rule 6.(a) which requires that a "complaint" setting forth the express basis for its claim be filed with the Board within 30 days after receipt of docketing letter. Appellant failed to comply with the Rule 6.(a) requirement. As a result, on January 11, 1988, Respondent, through its legal counsel, filed a "Motion to Dismiss or in the Alternative for a More Definite Statement." On January 12, 1988, in response to the motion, the Board issued an order directing Appellant to file a more definite statement of its complaint on or before January 28, 1988. Appellant replied by letter dated January 18, 1988, in pertinent part as follows: Points of complaint: 1) Specifications on Jacket #708-104 OPTION 1, part one; "or establish time with PPPL network operations for the transmission of text over phone lines." This statement allowed us phone telecommunicating but gave no facts about compatibility. We could not have known compatibility problems even if we had looked at display. 2) Agency could not answer compatability [sic] questionaire [sic]. See enclosed copy of questionaire [sic]. They only answered five questions. 3) Greek symbol code sheet was received by us only on October 12, 1987, this should have gone out with the job. We lost 12 days trying to figure out what was missing and finally had to insist on greek code sheet because we could not transmit without it. 4) We were also forbidden to talk to agency on October 8, 1987 by compliance officer Lillian Davis. How can we transmit on our own, or receive without cooperation. 5) We never got a chance to speak to our contracting officer Annamarie T. Mierson. Lillian Davis dominated everything. When we insisted on speaking to Mr. Reingruber, Lillian Davis told us that she is speaking for him. 6) Throughout the whole process Lillian Davis was very emotional and rude to us and could not understand any technical problems we were faced with. Her answers to us were always that the old printer of 5 years never had a problem but we must be incompetent. 7) We would like to have our invoice paid for $6,056.11. This is our cost so far on the job. Also enclosed with invoice is computer worksheet to show we have set the type. 8) We have been telecommunicating G.P.O. Army Recruiter Journal and have been doing a good job so we are not inexperienced in setting up telecommunicating. The appeal comes now before the Board in this form for decision upon the written record. DISCUSSION There is no significant dispute between the parties concerning the facts of this case. The single issue presented is whether under the facts the CO should have terminated the contract for the reasons stated. The issue turns upon a single legal question whether the language of Option #1 of the contract required the Government to transmit its copy to Appellant in an electronic format compatible with Appellant's equipment. The question turns on whether the first clause of Option #1, stating that the "Contractor may pick up NBI, System 64, word processing diskette" should be read into the second clause "or establish a time . . . for transmission of text over phone lines . . . ." Protocols of legal interpretation require that contracts be examined in a light most favorable to the non-drafting party, and, if deemed ambiguous, be construed against the interest of the drafting party. Moreover, the same protocols require that "plain meaning" be given to provisions in contracts which are clear and unambiguous. Additionally, in this case, since the language is contained in an IFB, it is important that its construction be based not upon what the drafter claims was intended nor upon what the Appellant in post award dispute alleges it understood, but rather what a reasonable printer having knowledge of the use of electronic word processing equipment would have understood the language to mean in the preparation of its contract bid. Applying these principles to our interpretation of the language in question we conclude that the language is clear and unambiguous and that the plain language requires the first clause be read into the second clause for the following reasons: First, the contract speaks of two, and only two, numbered options. It seems clear to us from the use of numbers to designate the options had the drafter intended three completely independent options, he or she would have done so by numbering the third option as such. Second, the caption "Option #1 - Electronic Transmission of Text" conveys the thought that all the words of the sentence which follows thereafter under the caption will relate to the concept of electronic transmission of text. Splitting the operative sentence of the option into two independent clauses, as Appellant would have us do to give efficacy to its argument, would result in the first clause respecting the pick-up of the "diskettes" being inconsistent with the heading. Third, we deem the sentence in question to be a "complex sentence" as such term is used in the study of English language grammar, with the first clause being the "independent clause" and the second clause being the "subordinate clause" which cannot stand alone since it does not express a complete thought. To give the second clause meaning it must be read together with the first clause. If the sentence were intended to be a "compound sentence," each clause would have to be "independent" from one another; i.e., be able to stand alone in expressing a complete thought. Moreover, if such were the case, the "or" would be preceded by a comma. From this, we conclude that the Government was not compelled to communicate in an electronic format compatible with Appellant's equipment, but rather to communicate electronically using an NBI System 64, as it did. Thus, we see no merit in the appeal, the Government clearly having attempted to accommodate the Appellant in every way before default. Accordingly, The decision of the CO is Affirmed and the appeal denied. It is so Ordered.