UNITED STATES GOVERNMENT PRINTING OFFICE
CONTRACT APPEALS BOARD
Appeal of CELIA TRANSLATIONS, INC.
Program 1548-S
Decision dated February 6, 1981
GPO CAB Panel 10-79
THOMAS O. MAGNETTI, Chairman
WILLIAM J. COSTIGAN, JR., Member
JEFFREY L. BOWMAN, Member
Preliminary Statement
This is a decision on a timely appeal by Celia Translations,
Inc. (hereafter referred to as the contractor). The appeal
disputes the final decision of the Contracting Officer
disallowing certain charges made by the contractor in its
vouchers. The appeal was taken pursuant to Article 29 (the
"Disputes" clause) of the Government Printing Office
(hereafter GPO) Contract Terms No. 1, as incorporated by
reference into both the Specifications and the Bid and
Acceptance document of this contract. See Exhibit 2 of the
Appeal File (hereafter A.F.).
The contract required the contractor to produce reproduction
galley proofs (repros) from manuscript copy as needed by the
Forest Products Laboratory, United States Department of
Agriculture. When the contractor submitted its vouchers for
payment, certain charges were disapproved by the Contracting
Officer. The contractor claims these costs on the grounds
that they were justifiably incurred (Exhibit 7, A.F.).
In accordance with the request of the contractor, the decision
of this panel is based solely upon the record as evidenced by
the documents and exhibits that constitutes the Appeal File.
This procedure is in accordance with GPO Instruction 110.10A
titled, "Board of Contract Appeals Rules of Practice and
Procedure," dated September 17, 1980.
Statement of Facts
On May 21, 1976, in accordance with GPO contract award
procedures, a GPO Term Contract Program 1548-S for the
procurement of reproduction proofs for the period of June 1,
1976 to May 31, 1977, was awarded to the contractor because
its bid was the lowest responsive bid that was in accordance
with the specifications (approximately $2,700.00; Exhibit 2,
A.F.).
Pursuant to this contract, a purchase order was issued to the
contractor (Exhibit 2, A.F.). This was then supplemented by
print orders for each job placed over the term of the
contract. The print orders involved in this appeal are
numbered 31 to 36 and 1 to 21 (Exhibits 5 and 9, A.F.). Each
order was accompanied by manuscript copy consisting of textual
and tabular matter and/or mathematical equations. Samples of
these equations were included in the specifications. The
contractor was to produce reproduction proofs of the copy in
accordance with the instructions in the specifications and the
manuscripts. However, the specifications cautioned the
contractor not to perform any work not provided for in the
specifications without prior authorization in writing from the
GPO (Specifications, Pg. 3, Exhibit 2, A.F.).
Work performed under the contract which could not be properly
classified under any item for which a specific price quotation
was asked, was to be charged on a pro rata hourly basis, as
timework. In order for such charges to be considered for
payment, each item that required the timework and the time
required to perform it had to be indicated separately and
fully described when each print order's voucher was submitted
for payment. The GPO reserved the right to decide whether the
operations billed and the charges made were proper and just
(Specifications, Pg. 5, supra).
The Schedule of Prices set out the prices to be charged for
textual matter, tabular matter (per column inch) and single
level and multiple level equations (per each equation).
Additional charges could be submitted for the reproduction of
any author's alterations in the manuscript copy as defined on
page 5 of the Specifications. These alterations of either the
text or the tables were priced at a different rate than the
reproduction of the original manuscript copy. However, the
charges for the alterations on any one galley could not exceed
the cost of setting that galley new from the manuscript copy
(Specifications, Pg. 9, supra). Furthermore, no timework
could be charged for work done on these alterations.
The contractor performed the work required by each print order
but did not submit its vouchers to the GPO for payment until
after the term of the contract had expired (Exhibits 5, 6, and
9, A.F.). Attached to these vouchers were copies of the
manuscript and the repro proofs. Upon the examination of
these vouchers, the GPO discovered that the contractor had
billed, not only for the tabular and textual matter, but for
other work, i.e., preparation of various cover pages, proofs,
etc. Timework for various tasks, e.g., paste-ups, was also
included as a separate charge. The charges were disallowed by
the Government on the grounds that they were either: computed
incorrectly; or the contract did not call for the work described
on the vouchers as timework; or because the title and cover pages
did not have to be made up. Timework charges were disallowed in
nineteen of the vouchers and the charges for cover and the title
page work disallowed in sixteen. The charges for tabular
composition were recomputed in some of the print orders to
correspond to the per column inch formula established in the
Schedule of Prices. See Exhibit 9, A.F. The GPO authorized
payment to the contractor in the amount of $2,767.66, instead of
the $7,960.45 billed by the contractor.
The contractor protested the reduction in the payments by a
letter dated August 26, 1977, claiming that the extra work was
necessitated because the mathematical equations provided in
the manuscript copies were much more complex than the samples
in the specifications and, further, that some of the
specifications were erroneous, requiring many hours of
unanticipated work attempting to straighten out the confusion
caused by the allegedly misleading specifications (Exhibit 7,
A.F.). The Contracting Officer responded in a letter dated
October 7, 1977, justifying its disallowance of the timework
and equation charges. Ibid. On December 27, 1977, the
Contracting Officer, after reviewing the method used to
compute timework for horizontal and vertical rules, readjusted
the final payment by authorizing the further payment of
$825.41. Ibid. This final decision was appealed by the
contractor in a letter dated January 3, 1978, alleging that
the Government disallowed valid charges for timework and
inconsistently computed the price for tabular matter. Ibid.
A more complete description of the nature of this appeal was
provided by the contractor in a letter addressed to the GPO
CAB and dated March 20, 1978.
In accordance with GPO Instruction 110.10A, this appeal is now
being decided on the material contained in the Appeal File and
the documents submitted by the contractor.
Decision
This Board determines from the facts before it that the
Contracting Officer was correct in disallowing the bill for
timework charged to this contract. He also properly computed
the price for the tabular matter. The decision is based on a
determination that the contractor has failed to support the
affirmative claims presented in its appeal letter by the
production of any substantial evidence proving those claims.
Without demonstrating by a preponderance of the evidence that
either the specifications were erroneous or that the timework
was justified, the contractor cannot expect to be granted
relief. Claims may not be allowed against the Government on
the basis of mere allegations. EG & G, Inc., ASBCA No. 14051,
71-1 BCA ¶ 8867. Moreover, an examination of the claims and
assertions of this contractor leads one to the conclusion that
the contractor might not have understood either the bidding
procedures or the performance standards required in Federal
procurement. See the contractor's letters dated January 3 and
March 20, 1978, respectively.
As regards, the contractor's claim for compensation for
timework performed under the contract, the Board concludes
from an examination of the timework as described in the
vouchers and the requirements of the contract language, that
this timework was either not required by the contract or
should have been factored into the bid price prepared by the
contractor prior to the award.
Although the contractor claims that some of this additional
work was requested by the Forest Products Laboratory, this is
unsupported by any concrete evidence. The contractor has the
burden of proving such allegations. EG & G, Inc, supra.
Furthermore, as stated above, the contractor was specifically
warned not to perform any work not provided for in the
specifications without previous written authorization from the
GPO ("Authorization for Additional Performance",
Specifications, supra). Without the appropriate change order
permitting the additional work, the Government could not
reimburse the contractor for the unauthorized and unnecessary
work. Louise Hardwick, Administratrix, 95 Ct. Cl. 336 (1942).
The contractor seemed confused over the procedure for
computing the price to be charged for tabular matter. The
specifications provided two separate prices for this
computation; the first price was for tabular matter that had
to be reproduced from the manuscript copy - charged by the
column inch; the second was the price for tabular matter that
has been altered by the author - this was charged by the line.
The contractor has alleged that the Contracting Officer
charged by the first method when he should have used the
second. However, once again the contractor has not provided
specific examples of this discrepancy in that the contractor
failed to indicate exactly which print order(s) this involved.
Failure in this regard must bring a determination that the
Contracting Officer was correct in his computations.
The contractor has claimed that it attempted to follow the
contract specifications. However, because they were
defective, it spent much time and effort trying to perform the
contract, thereby justifying an adjustment in the
contract price. See the contractor's letter dated August 26,
1977, Exhibit 7, A.F. In cases where the contractor alleges
faulty specifications, the contractor has the burden of proving
that the specifications were in fact defective and that the
defects caused the difficulties encountered. Baifield
Industries, Div. of A-T-O, Inc., ASBCA 18057, 77-1 BCA ¶ 12,348
(1977).
In the instant case, the contractor has alleged that the
equations provided to it in the manuscript copies of the print
orders were so much more complex than the samples provided in
the specifications that more time and effort was required to
produce repro proofs for the equations, necessitating a higher
charge (Exhibit 7, A.F.). The contractor has not demonstrated
that this was indeed the case since it has not proven how much
extra work was involved by the allegedly more complicated
equations or how much of an upward adjustment in price was
required by the extra work. Therefore, it has failed in its
burden of proving that it should receive relief for the
additional work. Nager Electric Company, Inc. v. United
States, 194 Ct. Cl. 835 (1971).
Moreover, when the contractor discovered that the
specifications were erroneous, it should have notified the
Contracting Officer immediately upon the discovery. This is
required by Article 2 of U.S. GPO Contract Terms No. 1
(Exhibit 2, A.F.). This clause allows for altering the
specifications or the price if warranted by the facts. There
is no evidence that either the Contracting Officer was ever
notified of alleged defects in the specifications or that
these defects caused the delays experienced by the contractor.
Baifield Industries, supra. The Government acted properly in
these
circumstances by disallowing these charges since Article 23 of
the above term contract directs that no payment be made for any
charge not properly authorized by the original specifications and
purchase order or by a change order.
The difficulty the contractor encountered when it attempted to
be reimbursed for the work it performed was compounded by the
fact that it submitted its vouchers for payment long after
completion of the work (Exhibit 9). If each voucher had been
submitted in a timely fashion after the completion of work on
each print order, the contractor could have been alerted by
the Government that the work that was being performed on
almost every print order was unnecessary.
In the process of arriving at its decision, the Board has
carefully reviewed each print order submitted by the
contractor. During this procedure, the Board noticed that on
at least sixteen occasions, work done by the contractor on
cover or title pages, which had been submitted as such by the
Government within its manuscript copies, was disallowed by the
Contracting Officer. Although the contractor did not
specifically appeal the disallowance of these charges, since
the principal issue raised in this appeal was whether the
Government properly interpreted the schedule of price
provisions and the specifications of the contract when it
reimbursed the contractor at a rate substantially less than
the amount the contractor billed, it is proper for the Board
to examine the validity of all of these disallowances. This
would necessarily include the propriety of billing for the
cover or title pages.
The contract specifications state that title or cover pages
would be reimbursed at the rate of $8.00 per page
(Specifications, Pg. 9, Exhibit 2, A.F.). Title and cover pages
are defined as follows:
"This item applies to setting the type for title or cover pages
in any size or combination of sizes of type, whether hand machine
set, and the makeup, including rules borders, cuts, ornaments,
etc., or leaving space therefor in accordance with the format
submitted, usually 39 1/2 x 53 picas." (Pg. 5, supra.)
Therefore, wherever the contractor set type for and madeup a page
signified by the Government as a cover or title page, regardless
of the amount of work involved, the contractor should have been
reimbursed at the rate of $8.00 for each page.
Apparently, this did not occur. For example, when the
contractor submitted the voucher for Print Order 20, it
included a charge for title and cover pages. These charges
were disallowed. (P.O. 20, Pg. 2, Exhibit 9, A.F.) On the
reverse side of page 4, there is a typewritten manuscript copy
of what is referred to as a "title page" together with various
written instructions concerning type size for reproduction.
Although it is not readily apparent who has written these
instructions, it is assumed that they were written by the
Contracting Officer or his agents. Page 5 of this part of
Exhibit 9 is the reproduction proof of the manuscript copy and
reflects the typesetting and makeup done.
It might be argued that these charges were properly disallowed
because the contractor was not instructed by the Contracting
Officer to "makeup" any of
the cover or title pages, however, this is not a reasonable
interpretation of the contract language. While it is agreed that
this contract did not provide for makeup of the repro proofs for
ordinary textual or tabular matter, the contract specifications
did call for the makeup of title and cover pages. This provision
was not qualified by any warning to the effect that makeup was
not to occur unless specifically instructed by the Government to
perform the operation. Absent any clear instructions to the
contrary, it would be reasonable for the contractor to rely on
the specifications and not only typeset manuscript copies clearly
marked as title and cover pages, but also makeup these pages as
per the contract provisions. Where the Government draws up
specifications which are susceptible to a certain construction
and a contractor actually and reasonably construes them according
to that construction, justice and equity require that
construction be adopted. Peter Kiewit Sons' Co. v. United
States, 109 Ct. Cl. 390 (1947). The Contracting Officer or his
representative had the opportunity to examine the repro proofs as
the proofs for each print order were delivered. The responsible
official should have noticed that these cover or title pages were
being made up and instructed the contractor to cease this
operation. There is no evidence in the Appeal File that would
indicate that such communication ever took place.
In our view, this was in variance with the contract
specifications and the contractor should have been paid for
this work. Therefore, unless the Contracting Officer can
prove that it instructed the contractor not to makeup any of
these pages, this Board requires the Contracting Officer to
examine
each voucher, print order, manuscript copy and reproduction
galley and reimburse the contractor at the rate of $8.00 for
every cover or title page which the contractor was required to
set type in accordance with the contract specifications and the
format submitted in the manuscript copies. The Board retains
jurisdiction to hear any further dispute arising from the
disposition of the cover or title pages charges. The contractor
is warned that, if it decides to dispute this final disposition
of its claim, it must be prepared to prove and justify each
charge for the work on a cover or title page.
The remainder of the contractor's appeal is denied in its
entirety except to the extent that the Board directs the
Contracting Officer to check the mathematics used in computing
the proper charges. A mistake was found by the Board in a
random perusal of the print orders. See, Print Order 15, pg.
2, across from the heading "4 (1) Display - 18 Picas", 63 is
multiplied by $ .50 with a result of $8.00 instead of $31.50
(Exhibit 9). Therefore, there seems to some basis for a
belief that some of the computations may be incorrect and
should be rechecked.