In the United States Court of Federal Claims
No. 98-142C
(Filed April 2, 1999)
____________________________________
)
UNITED COMPUTER SUPPLIES, INC. / ) Contracts; Wunderlich Act
COLE COMPUTER FORMS / MCCALL'S ) review; 41 U.S.C. §§ 321-322
PRINTING EXPRESS, JOINT VENTURE, ) (1994); print order issued by
) the National Institutes of Health
Plaintiff ) as ordering agency for contract
) with the Government Printing
v. ) Office; plain meaning
)
THE UNITED STATES, )
)
Defendant )
____________________________________)
Frederic G. Antoun, Jr., Chambersburg, PA, for plaintiff.
Andrea I. Kelly, Washington, DC, with whom was Assistant Attorney
General Frank W. Hunger, for defendant. Kerry L. Miller,
Government Printing Office, of counsel.
OPINION
MILLER, Judge.
This Wunderlich Act, 41 U.S.C. §§ 321-322 (1994), review case
before the court after argument on cross-motions for summary
judgment, addresses the arcana of print orders. To be resolved is
whether a contractor should be compensated for responding to an
order for forms with a product that the Government claims was
noncompliant with the underlying contract, but not the order,
although the same forms had been accepted under similar prior
orders.
FACTS
The following facts derive from the record before the Government
Printing Office Board of Contract Appeals (the "GPOBCA"). On
October 29, 1992, the Government Printing Office (the "GPO")
issued an Invitation for Bids for Program C384-S, a one-year
fixed-price requirements contract for the procurement of
multiple-part carbonless paper sets (1) for the National
Institute of Health ("NIH"). The contract described the products
to be ordered as "multiple-part carbonless paper sets, fan apart
[(2)] or equal, and/or pads requiring such operations as film
making, composition, printing, cutting, drilling, perforating,
numbering, padding, packing, and delivery."
The trim size (3) for each format to be ordered under the
contract ranged from 3 x 5" to 8 1/2 x 11". The contract also
indicated that the occasional order might require horizontal or
vertical perforations. With respect to binding, the contract
stated:
Multiple-part sets shall be collated, trimmed to size and joined
into sets by "edge bonding" using a special adhesive made for
this purpose, that will hold individual parts of a set together
during fill-in and normal handling, but which allows ready
separation of the parts without damage to the parts. Parts shall
be joined into sets at the edge specified on individual print
orders.
On December 3, 1992, the GPO awarded the contract for Program
C384-S to United Computer, Inc., ("plaintiff"), a joint venture
comprised of United Computer Supplies, Inc., Cole Computer Forms,
and McCall's Printing Express. Beginning on December 1, 1992, and
ending on November 30, 1993, this contract authorized NIH, as the
ordering agency, to issue print orders and furnish camera copy
and other required materials directly to plaintiff. The contract
incorporated by reference the GPO publication, "Contract Terms"
(GPO Pub. 310.2), which provides, in pertinent part:
Awards by GPO for printing, binding, and related services are the
sole responsibility of GPO and not of its customer agencies.
Modification shall have no force or effect unless addressed
before the fact to and subsequently confirmed in writing by the
Contracting Officer. Failure to comply with this article may be
cause for nonpayment of additional costs incurred or rejection of
the order. (4)
The contract award letter dated December 3, 1992, from GPO
Contracting Officer Jack Scott also explained that "[r]
epresentatives of the ordering agency do not have authority to
alter or change the specifications, [or] contract terms . . . ."
The instant contract was not the first awarded to plaintiff under
Program C384-S; plaintiff was awarded predecessor contracts under
the Program in 1992 and 1991. The scope of the 1992 contract and
that of the instant contract -- the 1993 contract -- are almost
identical. Under each of these three contracts, NIH had ordered
numerous snap sets, (5) fan-apart sets, edge-glued sets, and
continuous forms. Specifically, in 1992 and 1993, NIH ordered
Form Nos. 2555 and 2556, both of which are marginally-punched,
multiple-part continuous forms under Program C384-S. The print
orders at the center of the instant dispute -- 80163 and 80164 --
involve these same forms.
On September 22, 1993, Anita Glinton, a NIH specialist, issued
Print Order 80163 to plaintiff. The print order called for the
production of 120,000 six-part marginally-punched continuous
forms (6) measuring 9 1/2 x 11". On the same day, Ms. Glinton
also issued Print Order 80164 calling for the production of
60,000 six-part marginally-punched continuous forms measuring 9
1/2 x 11". These forms were joined in sets by crimping in the
right and left margins instead of using special edge binding
adhesive specified in the contract. In addition, Print Orders
80163 and 80164 called for multiple holes smaller than 1/4" along
both the left and right margins of the form. This specification
differed from that in the contract which permitted 1/4" or 3/8"
holes in either the top or the left of the form. The marginally-
punched continuous forms identified by both orders also contained
vertical perforations running the length of the form on both
sides.
Plaintiff produced the marginally-punched continuous forms in
accordance with the terms of the print orders and delivered the
products to NIH. Plaintiff billed the GPO $93,230.80 for Print
Order 80163: $70,092.00 for perforations, and $23,138.80 for
printing, binding, and paper. The cost of Print Order 80164
totaled $41,890.90: $35,046.00 for perforations, and $6,844.90
for printing, binding, and paper.
On November 5, 1993, GPO's Financial Management Service paid
plaintiff $88,569.26 ($93,230.80 minus the 5% prompt payment
discount) on Print Order 80163 and $39,796.35 ($41,890.90 minus
the 5% prompt payment discount) on Print Order 80164. After the
GPO charged the cost of Print Orders 80163 and 80164 to NIH,
Reginald Russell, Chief of NIH Printing Procurement Section,
noticed that the amount paid was approximately ten times greater
than NIH had paid for similar products in the past. Notice of
this excessive charge reached Mr. Scott. Mr. Russell posited that
the similar prior print orders had been requested mistakenly and
issued in error, although the mistake was not discovered because
the orders were for comparatively small quantities.
After review of the finished products and the contract, Mr. Scott
concluded that the products specified by Print Orders 80163 and
80164 fell outside the scope of the contract. By letter dated
April 13, 1994, Mr. Scott advised plaintiff that its failure to
address this discrepancy with the GPO constituted "an
unauthorized contractual action." He calculated the fair market
value of the products by applying the line-item prices from
plaintiff's bid for Program A1026-M, a general usage contract
devoted exclusively to the procurement of marginally-punched
continuous forms, to the products under Print Orders 80163 and
80164. Mr. Scott determined that GPO would have purchased the
products in Print Order 80163 for $8,436.51 and Print Order 80164
for $5,380.96 had NIH issued a purchase order under Program
A1026-M.
On May 13, 1994, Mr. Scott issued his Notice of Final Decision.
He reasoned that although "[t]he print orders conformed to the
contract specifications," the attached specification sheets,
calling for 9 1/2 x 11" marginally-punched continuous forms,
crimp joined, file punched and perforated 1/2" left and right,
with a horizontal tearline perforation every 11"," were items
"clearly out of the scope of the contract specifications." The
decision explained that plaintiff produced the print orders
without notifying the GPO of the discrepancies among the contract
specifications, the print orders, and the attached specification
sheets. For these reasons, inter alia, Mr. Scott informed
plaintiff that it was his "intention to immediately begin to
recover the estimated overpayment amount of $114,548.14
($80,132.75 from Print Order 80163 and $34,415.39 from Print
Order 80164)" from plaintiff's account.
Plaintiff filed its appeal with the GPOBCA on September 30, 1994.
Following a hearing, the GPOBCA issued an opinion sustaining the
contracting officer's final decision. See United Computer
Supplies, Joint Venture, GPOBCA 26-94 (Jan. 23, 1998). The board
concluded that the contract, when read in its entirety, was not
ambiguous as to its scope; that the scope did not encompass
marginally-punched continuous forms; that plaintiff had not
sustained its burden of proof with regard to estoppel; and that
the GPO established its entitlement to recoup $114,548.30 from
plaintiff. See id., slip op. at 15, 17-18. Plaintiff thereafter
filed its complaint in the Court of Federal Claims seeking to
recover the amount awarded to the GPO, plus interest and
attorneys' fees. Defendant counterclaimed for the recovery of the
overpayments.
DISCUSSION
In reviewing the GPOBCA's decision under the Wunderlich Act, the
court "may not take new evidence or redetermine the facts, and
limits its review to the record developed before the agency."
Titan Pac. Constr. Corp. v. United States, 17 Cl. Ct. 630, 632
(1989), aff'd 899 F.2d 1227 (Fed. Cir. 1990) (Table). A factual
finding of an agency board of contract appeals shall be upheld
unless it is "fraudulant or capricious or arbitrary or so grossly
erroneous as to imply bad faith, or is not supported by
substantial evidence." 41 U.S.C. § 321. "Where two equally
reasonable but contrary inferences might be drawn from the
record, and each could be sustained as supported by substantial
evidence, the one adopted by the Board should be sustained." Gulf
Contracting, Inc. v. United States 23 Cl.Ct. 525, 528 (1991)
(citing Titan Pac. Constr., 17 Cl.Ct at 634-635 (1989)). Unless
the court first concludes that no substantial evidence supports
the board's findings, it should not "decide an issue of fact not
decided by the Board, or contrary to the finding made by the
Board." Gulf Contracting, Inc., 23 Cl. Ct. at 528. Although
conclusions of law are not binding, the board's interpretation of
a contract is accorded considerable deference and respect. See
Fortec Constructors v. United States, 760 F.2d 1288, 1291 (Fed.
Cir. 1985); George Hyman Constr. Co. v. United States 215 Ct.Cl.
70, 80, 564 F.2d 939, 944 (1977).
Plaintiff advances several theories to support its argument that
the scope of the contract encompasses the forms identified in
Print Orders 80163 and 80164. Plaintiff first contends that the
contract extends to marginally-punched "multiple-part carbonless
paper sets" with "vertical and/or horizontal perforation," and
that "[c]omplete instructions will be indicated on the print
order." Because it is undisputed that the products ordered and
produced under Print Orders 80163 and 80164 are "multiple-part
carbonless paper sets," and because no language in the
specifications excludes "continuous" sets, plaintiff reasons that
the marginally-punched multiple-part carbonless paper sets
produced under the subject print orders fall unambiguously within
the scope of contract's language.
Plaintiff next argues that defendant's interpretation of the
contract language describing "multiple-part carbonless paper
sets, fan apart or equal, and/or pads . . . requiring such
operations . . . as perforations," is unduly restrictive.
Defendant reads this language such that "fan apart or equal"
modifies "multiple-part carbonless paper sets." In plaintiff's
view the "SCOPE" clause of the contract contemplates three
distinct products: (1) "multiple-part carbonless paper sets,"(2)
"fan apart or equal," and (3) "pads." Thus, following plaintiff's
logic, "fan apart or equal" is a separate type of product that
allows for the bonding method required by Form Nos. 2555 and
2556.
Regarding the remaining inconsistencies that the board discussed
between the contract specifications and Print Orders 80163 and
80164, plaintiff asserts that none of these alleged
inconsistencies removes the marginally-punched multiple-part
carbonless paper sets it produced from the contract's scope.
According to plaintiff, (1) because the contract states that
additional instructions would be provided on individual print
orders, and Print Orders 80163 and 80164 contained an attachment
allowing crimping as an alternative to gluing, the contract
language addressing "[j]oining" permitted crimping as an
acceptable alternative to gluing; (2) because the contract
provides for "an occasional order with either vertical and/or
horizontal perforation," plaintiff's product under Print Orders
80163 and 80164 should not be excluded on the ground that it
contained perforations; and, finally, (3) "there is no basis in
the contract for the Board's conclusion that the maximum trim
size of 8 1/2 x 11" refers to the overall size of a form with a
stub or stubs which are intended to be detached by the user to
create the final product," Plf's Br. filed Aug. 31, 1998, at 12,
because it is the final or detached trim size that accurately
describes the product.
In addition to its arguments based on the contract language,
plaintiff notes that, in prior years, NIH has accepted "snap
sets," which are comparable to the marginally-punched, multiple-
part continuous forms that the GPO now rejects, under Program
C384-S. These snap sets, like the marginally-punched multiple-
part continuous forms, were not bound by edge glue, as the
contract specified. Plaintiff points out that NIH ordered and
paid for these snap sets numerous times under Program C384-S,
constituting a course of dealing between plaintiff and NIH that
should compel acceptance of the products currently at issue.
Defendant rejoins that Program C384-S excludes these forms.
First, defendant observes that the contract specifically calls
for the sets to be joined by "edge bonding" using a special
adhesive, but the forms at issue were joined by crimping. Second,
the forms exceeded the maximum trim size specified in the
contract. Defendant's definition of trim size is based on the
form's size after excess paper, required in production, is
trimmed off, but before the 1/2" stubs typically torn off by the
end user are removed. (7) Third, the contract permits 1/4" or
3/8" holes to be drilled on either the top or left of the form,
but the print orders at issue called for multiple holes smaller
than a 1/4" along both the left and right margins of the form.
Finally, defendant asserts that the contract provides an estimate
of 100 perforations for its entire term, but Print Orders 80163
and 80164 far exceeded this estimate.
To the extent that plaintiff relies on a prior course of dealing
between the parties in which similar products were requested and
accepted under Program C384-S, defendant insists that, because
the NIH specialist lacked authority to change the terms of the
contract, NIH's previous erroneous acceptance of similar products
should not permit plaintiff to benefit once this error was
recognized. Defendant also notes that the GPO contracting
officer, in whom actual authority for Program C384-S was vested,
had no knowledge of these prior orders.
Although it may appear oxymoronic to invoke the concept of plain
meaning for a contract addressing a panoply of terms and
measurements, the court must look to the plain meaning of the
contract in order to determine whether Program C384-S includes or
excludes the print orders at issue. See Textron Defense Sys. v.
Widnall, 143 F.3d 1465, 1468 (Fed. Cir. 1998); Aleman Food
Servs., Inc. v. United States, 994 F.2d 819, 822 (Fed. Cir.
1993). When the contract language is unambiguous, the court's
inquiry is at an end and the plain language of the contract is
controlling. See Textron Defense Sys., 143 F.3d at 1469. A
contract term is unambiguous when there is only one reasonable
interpretation. See Triax Pac., Inc. v. West, 130 F.3d 1469, 1473
(Fed. Cir. 1998); A-Transport Northwest Co. v. United States, 36
F.3d 1576, 1584 (Fed. Cir. 1994); see also Community Heating &
Plumbing Co. v. Kelso, 987 F.2d at 1575, 1579 (Fed. Cir. 1993)
(noting that contract is ambiguous where two reasonable
interpretations are consistent with contract language). The
contract must be considered as a whole and interpreted to
"'effectuate its spirit and purpose'" giving "'reasonable meaning
to all parts.'" Gould, Inc. v. United States, 932 F.2d 1271, 1274
(Fed. Cir. 1991) (quoting Arizona v. United States, 216 Ct. Cl.
221, 235-36, 575 F.2d 855, 863 (1978)); see Fortec Constructors,
760 F.2d at 1292. Such construction "'will be preferred to one
which leaves a portion of it useless, inexplicable, inoperative,
void, insignificant, meaningless, superfluous, or achieves a
weird and whimsical result.'" Gould, Inc., 932 F.2d at1274
(quoting Arizona, 216 Ct.Cl. at 235-36, 575 F.2d at 863); see
Fortec Constructors, 760 F.2d at 1292.
The contract under Program C384-S is unambiguous because only one
interpretation is consistent with the contract language.
Plaintiff is correct insofar as the contract allows for the holes
and perforations in Print Orders 80163 and 80164, and further
states that complete instructions regarding drilling and
perforations will be indicated on the print orders. Plaintiff is
also correct that the contract is silent as to the precise
meaning of "trim size," leaving room for plaintiff's definition.
Nonetheless, plaintiff's interpretation of the contract
ultimately fails because it renders a portion of the contract
meaningless.
Plaintiff's interpretation of "binding" cannot be reconciled with
the language outlining the contract's scope. This portion of the
contract states, in pertinent part:
BINDING:
Multiple-part sets shall be collated, trimmed to size, and joined
into sets by "edge bonding" using a special adhesive made for
this purpose, that will hold the individual parts of a set
together during fill-in and normal handling, but which allows
ready separation of the parts without damage to the parts. Parts
shall be joined into sets at the edge specified on the individual
print orders.
Plaintiff contends that the contract language, "[p]arts shall be
joined into sets at the edge specified on the individual print
orders," permits the use of a bonding type specified in the print
order, even if the type specified in the print order contradicts
the terms of the contract. Plaintiff reaches this conclusion by
ignoring three words in the middle of the sentence and by doing
violence to the fundamentals of grammar and sentence
construction. Plaintiff's preferred reading is "Parts shall be
joined into sets . . . specified on the individual print orders."
The additional instructions that one might expect to find
"specified on the print order" refer to the particular "edge," --
top, bottom, left, or right -- on which the sets are bonded --
not the manner by which the "parts shall be joined." Moreover,
plaintiff's interpretation ignores the language in the contract
stating explicitly that the sets would be joined by "edge
bonding." The products described by Print Orders 80163 and 80164
called for binding by crimping. The pertinent contract language
does not state that the sets "may" -- but, instead, "shall" -- be
joined using a special adhesive. No provision in the contract
permits the agency to ignore or modify this requirement.
Therefore, plaintiff cannot contend reasonably that its products
that were joined by crimping fall within the scope of the binding
provision and are thus in accord with the scope of the contract.
Plaintiff next argues that the phrase "fan apart or equal" stands
independent of, and does not modify, "multiple-part carbonless
paper sets." The subsection of the contract entitled, "SCOPE"
reads, in its entirety:
SCOPE: These specifications cover the production of multiple-part
carbonless paper sets, fan apart or equal, and/or pads requiring
such operation as film making, composition, printing, cutting,
drilling, perforating, numbering, padding, packing and delivery.
Plaintiff's urging that "fan apart or equal" constitutes a
separate product, distinct from "multiple-part carbonless paper
sets," is not reasonable, particularly in light of the contract
specifications addressing binding. The provision of the contract
contemplating binding specifies that the multiple-part sets are
joined by "'edge bonding' using a special adhesive made for that
purpose." If "fan apart or equal" were interpreted to suggest
that the marginally-punched, multiple-part continuous forms
produced by plaintiff were compliant, the contract's binding
specifications would be rendered wholly inapplicable, because
multiple-part continuous forms typically are not joined by an
adhesive bond. The binding provision neither states that crimping
is an acceptable means of binding each set, nor permits the
substitution of an alternative binding method -- by print order
or otherwise -- for the "special adhesive" specified in the
contact. Reasonably interpreted, "fan apart or equal" operates as
an adjectival phrase restricting "multiple-part carbonless paper
sets." Because plaintiff's interpretation neither affords meaning
to each of the contract provisions, nor reconciles the contract
as a whole, it cannot be considered reasonable. See Gould, Inc.,
932 F.2d at 1274.
The GPOBCA determined that the term "trim size" was not defined
in the contract. United Computer, GPOBCA 26-94, slip op. at 12.
After consulting Webster's Third New International Dictionary
(1971), which defines trim size as "the actual size of something
(as a magazine or book or page) after excess material required in
production has been cut off," the board agreed with the GPO that
the trim size includes not just the forms themselves, but also
the removable tabs, stubs, or side strips that enable the agency
to use the forms. See United Computer, slip op. at 14.
The contract specification addressing trim size does not provide
a definition:
TRIM SIZES: Various trim sizes will be ordered and paid for in
their respective "Format" classification as follows:
Format "A": 3 x 5" up to and including 4 x 6".
Format "B": Over 4 x 6" up to and including 8-1/2 x 11"
However, the mere fact that the parties disagree with regard to
the interpretation of a specific contract provision does not, in
and of itself, render the provision ambiguous. See Community
Heating & Plumbing, 987 F.2d at 1579; Brunswick Corp. v. United
States, 951 F.2d 334, 337 (Fed. Cir. 1991). Although plaintiff's
interpretation of trim size is reasonable, i.e., that trim size
refers to the size of the forms after removal of any post-
production excess paper, as well as the aforementioned tabs,
stubs, or side strips, defendant's contention that the print
orders are outside the scope of the contract is still valid.
Plaintiff cannot rely on the reasonableness of its interpretation
with respect to this particular clause to overcome the extent to
which the forms it submitted on Print Orders 80163 and 80164
remain beyond the scope of the contract, e.g., with respect to
binding.
Even if the products requested by Print Orders 80163 and 80164 do
not fall within the scope of the contract, plaintiff relies on
the parties' prior course of dealings to render the subject forms
compliant. "[A] course of dealing can supply an enforceable term
to a contract, or even may even supplement or qualify that
contract, provided the conduct which identifies the course of
dealing can reasonably be construed as indicative of the parties'
intentions -- a reflection of their joint or common
understanding." Sperry Flight Sys. Div. of Sperry Rand Corp. v.
United States, 212 Ct. Cl. 329, 342, 548 F.2d 915, 923 (1977). In
determining whether the parties' conduct reflects a joint or
common understanding, Gresham & Co. v. United States, 200 Ct. Cl.
97, 470 F.2d 542 (1972), is instructive:
"When a party with knowledge or the means of knowledge of his
rights and of the material facts does what amounts to a
recognition of the transaction as existing, or acts in a manner
inconsistent with its repudiation or permits the other party to
deal with the subject matter under the belief that the
transaction has been recognized, or abstains for a considerable
length of time from impeaching it, so that the other is
reasonably induced to supposed that it is recognized, there is
acquiescence. . . ."
200 Ct. Cl. at 119, 470 F.2d at 554-55 (quoting Harvey Radio
Labs., Inc. v United States, 126 Ct. Cl. 383, 391-92, 115 F.
Supp. 444, 449 (1953), cert. denied, 346 U.S. 937 (1954)).
During argument plaintiff directed the court's attention to a
snap set that NIH requested and accepted on a prior print order
issued under Program C384-S. Although these snap sets, like the
marginally-punched multiple-set continuous forms, were not bound
by edge glue, they were ordered and paid for numerous times.
Relying on Gresham and Miller Elevator Co. v. The United States,
30 Fed. Cl. 662 (1994), plaintiff argues that this conduct was
sufficient to establish a course of dealing.
In Gresham the court determined that the Government's acts led
the contractor to believe that a contract specification had been
suspended or, in effect, waived, until further notice. "There can
be no doubt that a contract requirement for the benefit of a
party becomes dead if that party knowingly fails to exact its
performance, over such an extended period, that the other side
reasonably believed the requirement to be dead." Gresham, 470
F.2d at 554. Although the court rested its decision, in part, on
the Government's acceptance of a non-conforming product, the
course of dealing between the parties in Gresham indicated more
convincingly than the conduct in the instant matter that a
contract provision had been waived. Moreover, the court
recognized that "[t]he waiver of a contract provision requires a
decision by a responsible officer assigned the function of
overseeing the essentials of contract performance, not just any
Federal employee connected with the contract." Id. at 555.
The prior course of dealing in Miller Elevator allowed for
substantial work done beyond the scope of the contract. The court
considered significant the consistent frequency with which the
work was requested and approval of the additional work by the
assistant field office manager to whom authority had been
delegated. Based on the oral instruction properly authorizing
this work, despite its absence from the express terms of the
contract, the court found that defendant waived certain contract
requirements, the result of an established course of dealing. See
Miller Elevator, 30 Fed.Cl. at 693-94.
Establishing a course of dealing requires a reflection of a joint
or common basis of understanding held by both parties. See Sperry
Flight Sys., 212 Ct. Cl. at 342, 548 F.2d at 923-24. Plaintiff's
reliance on NIH's unauthorized conduct in support of its argument
that such an understanding existed between plaintiff and the GPO
does not meet this standard. Unlike the contractor in Gresham,
the facts here are not such that the contracting officer "knew or
should have known," that plaintiff was manufacturing products in
violation of contract requirements. Gresham, 200 Ct. Cl. at 120,
470 F.2d at 555-56; see Miller Elevator, 30 Fed. Cl. at 689-90.
Gresham also requires an officer who is assigned the function of
overseeing the essentials of contract performance, not just any
federal employee or officer whose work happens to be connected
with the contract, to waive such provision.
The express terms of the subject contract, reinforced by the
language in the award letter, dated December 3, 1992, which
states, "representatives of the ordering agency do not have the
authority to alter or change the specifications, contract terms
or the print orders once issued," demonstrate that the NIH
contract specialist was not authorized to request and receive
products outside the scope of the contract under which the print
orders were issued. Nothing in the record suggests that GPO had
the knowledge or the means of knowledge that NIH's prior requests
were beyond the scope of the subject contract, which further
underscores that no course of dealing existed. (8)
The court is mindful that this is one of those cases where
government employees -- NIH's contracting personnel -- hide
behind the skirts of an ironclad argument that they lacked
authority to issue a print order beyond the scope of the GPO
contract. As plaintiff observed, were the roles reversed in this
fixed-price contract dispute, and the Government profited
handsomely from an ill-considered contractor bid, the contractor
would be unable to recover its losses. Although the equities lie
on plaintiff's side, and the GPO in these circumstances could
well have offered plaintiff some accommodation, the larger point
remains that the controlling principles of contract law that the
court has applied protect the fisc and allow for predictability
in result. Regrettably, they do not address the competence of the
contract personnel who precipitated plaintiff's difficulties.
The record fully supports the GPOBCA's decision under the
Wunderlich Act standard of review.
CONCLUSION
Accordingly, based on the foregoing, plaintiff's motion for
judgment on the administrative record is denied, and defendant's
cross-motion and motion for judgment on its counterclaim are
granted. The Clerk of the Court shall enter judgment for
defendant in the amount of $114,548.30.
IT IS SO ORDERED.
No costs.
_______________________________
Christine Odell Cook Miller
Judge
_______________
1. Multiple-part carbonless paper sets are the forms covered by
Program C384-S. They consist of multiple-page forms trimmed on
all four sides to size and fastened together at the top with fan-
apart type adhesive.
2. "Fan apart" refers to a method of joining carbonless paper
with an adhesive made for that purpose.
3. It is undisputed that the 8 1/2 x 11" specification in the
contract refers to the size of the forms. However, the parties
disagree on whether the term "trim size" refers to the size of
the paper before or after the 1/2" stubs have been removed.
4. The GPO Agency Procedure Handbook contains a similar
provision:
[A]gency authority under direct-deal term contracts extends only
to the placement of print orders and to the transmission of copy
and proofs. Exceeding this authority, or not meeting the
responsibilities prescribed by GPO, may be cause for an agency to
lose its direct-deal privilege. All other authority rests with
GPO's Contracting Officers. Agency personnel are not allowed to
negotiate with contractors or to require performance beyond the
terms of the contract.
Defendant maintains that plaintiff was aware of this provision,
although it was not incorporated directly into the contract.
Plaintiff disputes this allegation.
5. "Snap sets" are forms that require perforations for detachment
from the top or side binding stub. It is edge glued. If the top
or side perforated strip is torn, the forms are released.
6. "Marginally-punched continuous forms" are forms manufactured
from a continuous roll of paper that is not cut into units or
sets. This type of product contains small holes punched into the
margins of the paper which are used to propel the continuous
forms through an automatic feed computer printer. Defendant takes
the position that Program C384-S was not intended for marginally-
punched continuous forms because multiple-part carbonless paper
sets are a different manufacturing specialty than marginally-
punched continuous forms.
7. For instance, an 8 1/2 x 11" form, prior to the removal of
both side strips bordering the left and right sides of the form,
will measure 9 1/2 x 11". Defendant interprets trim size to refer
to the form as it measures 9 1/2 x 11", presumably its size after
the producer of the form has removed any excess paper associated
with its manufacture.
8. Plaintiff's estoppel argument fails because it has not
established that the contracting officer at the GPO had actual
knowledge that NIH had issued print orders requesting products
beyond the scope of the governing contract. See Plf's Br. filed
Aug. 31, 1998, at 22-26.