BOARD OF CONTRACT APPEALS
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON, DC 20401
In the Matter of )
)
the Appeal of )
)
NEWS PRINTING COMPANY, INC. ) Docket No. GPOBCA 13-94
Program 1216-S )
Print Orders 80003, 80004, )
80005, and 80006 )
For the Appellant: News Printing Company, Inc., Claysburg,
Pennsylvania, by Frederic G. Antoun, Jr., Attorney at Law,
Chambersburg, Pennsylvania.
For the Respondent: Roy E. Potter, Esq., Assistant General
Counsel, U.S. Government Printing Office.
Before BERGER, Ad Hoc Chairman.
DECISION AND ORDER
News Printing Company, Inc. (Appellant), P.O. Box 373, Claysburg,
Pennsylvania 16625, timely appealed the March 11, 1994, final
decision of Contracting Officer James T. Reingruber of the U.S.
Government Printing Office (Respondent or GPO), denying the
Appellant's request to be compensated in the amount of $12,863.23
for expenses incurred in redrilling holes, at the Respondent's
direction, in copies of the Index of Specifications and Standards
(DODISS) and Associated Publications which it produced pursuant
to Print Orders 80003, 80004, 80005, and 8006, Program 1216-S,
Purchase Order B6196. For the reasons which follow, the
Contracting Officer's decision is REVERSED and the appeal is
GRANTED.
I. BACKGROUND
1. On or about May 12, 1993, the Appellant was awarded a
requirements contract for Program 1216-S. The contract, for the
period of June 1, 1993 through May 31, 1994, provided in the
"Ordering" clause of the General Terms and Conditions section
that the items to be furnished under the contract would be
ordered through the issuance of print orders and that all print
orders issued thereunder were "subject to the terms and
conditions of this contract." The clause also provided that "[t]
his contract shall control in the event of conflict with any
print order." Rule 4 File, Tab B.1 In the "Drilling" provision
of the Specifications section, the contract stated the following:
"Drill 3-3/8" diameter holes centered on the 11" side, 4-1/4"
center to center."
2. On they issued June 22, 1993, Print Orders 80000, 80001, and
80002 were issued to the Appellant. On August 18, 1993, Print
Orders 80003, 80004, 80005, and 80006 were issued. Unlike the
print orders issued in June, which set forth a 4-1/4" center to
center drilling requirement, the latter four print orders
specified a 4-1/2" center to center distance. This was later
determined to be the result of an error in typing. Rule 4 File,
Tab P; Report of Prehearing Conference.
3. The Appellant produced the publications in accordance with
the print orders. The requiring agency (the Navy) considered the
publications produced under Print Orders 80003, 80004, 80005, and
80006 to be unusable because the holes were drilled 4-1/2" center
to center instead of 4-1/4" center to center. Rule 4 File, Tab
J. The Respondent subsequently directed the Appellant to
pick up the publications, correct the problem by drilling holes
4-1/4" center to center as required by the contract
specifications, and to redeliver the corrected publications.
Rule 4 File, Tab K.
4. The Appellant followed the Respondent's instructions, but
advised the Respondent that because it had adhered to the
requirements of the print orders it did not consider itself to be
at fault and that it would be making a claim "for compensation
for the additional freight and labor involved in this additional
work." Rule 4 File, Tab L. Thereafter, the Appellant requested
additional compensation in the amount of $12,648.37, Rule 4 File,
Tab M, later revised to $12,863.23. Rule 4 File, Tab O. The
Contracting Officer denied the request on the basis that the
contract and its specifications were controlling over the print
orders and that the discrepancy between the contract and the
print orders was "so blatant that it should have prompted an
immediate query to the [Respondent] for clarification." Rule 4
File, Tab P. This appeal followed.
II. DISCUSSION
This appeal involves the very straightforward issue of what
should happen when a print order issued by the Respondent to a
contractor under one of the Respondent's requirements contracts
is inconsistent with the specification provisions of that
contract. The Respondent asserts that when, as here, there is a
patent ambiguity between the two, the contractor has a duty to
seek clarification from the Respondent and, if it fails to do so,
must bear the consequences if it resolves the ambiguity
incorrectly. Respondent's Brief.2 The Appellant asserts that
there was no patent ambiguity because, under its interpretation
of the contract as well as its experience with the Respondent, it
could not ignore, and had no reason to question, the print orders
as issued. Appellant's Brief. In this regard, the Appellant
argues the following: (1) since no work under the contract may
be initiated without a print order and since the contract, in the
"Assignment of Jackets, Purchase and Print Orders" provision of
the General Terms and Conditions section, provides that the print
order "will indicate the quantity to be produced and any other
information pertinent to the particular order," it "should be
able to . . . rely" on the print order for "specific guidance and
information as to how to produce a particular order under the
contract"; (2) the language in the "ordering" clause that states
the contract shall control over a print order applies with
respect to contract terms and conditions but not to contract
specifications; and (3) in prior dealings with the Respondent the
Appellant was told "to follow the print order." The Appellant
concludes that under the circumstances it was justified in
viewing the four print orders as written change orders to the
contract. Complaint; Appellant's Reply Brief.
GPO relies on print orders to obtain printing and binding
services from contractors who have been awarded term contracts.
Printing Procurement Regulation, GPO Pub. 305.3 (Rev. 10-90)
(hereafter PPR), Chap. XII, Sec.1, ¶ 5; GPO Form 2511, "Print
Order", PPR, Chap. XVI. The term contracts contain
specifications which set forth mandatory requirements applicable
to the printed products to be furnished. GPO's regulations
provide that the print orders, for ordering "[i]tems to be
furnished under this contract," Rule 4 File, Tab B, are to
"include" information concerning ink color, number of pages for
cover and text, kind of paper, number and size of foldins, method
of binding, trim size,3 total copies, and quantity breakdown for
various delivery destinations, PPR Chap. XII, Sec. 1, ¶ 5.a.(1);
the print order form also contains a section for hole drilling
requirements. In some instances the contract and print orders
will overlap, with both specifying particular requirements. (In
this case, for example, both documents specify the trim size and
the ink color as well as the hole drilling requirements.) In
other cases, the contract specifications will refer the
contractor to the print order or impose a requirement that can be
"waived" by the print order. See RD Printing Assocs., Inc.,
GPOBCA 02-92 (December 16, 1992), slip op. at 3, 1992 WL 516088
("Margins will be as indicated on the print order . . . . Blank
apron of 8-1/2 x 11" required on bind side of all foldouts unless
waived in the print order."). Either way, it is the original
contract document and the print order that together constitute
the enforceable contract between GPO and the contractor. See
Reprographex, Inc., GPOBCA 14-86 (July 7, 1987), slip op., 1987
WL 228971; PPR, Chap. I, Sec. 1, ¶ 2 (definition of "contract").
In this case it is undisputed that Print Orders 80003, 80004,
80005, and 80006 contain a hole drilling requirement that is
different from the hole drilling requirement in the original
contract specifications. It is also undisputed that the
Appellant was aware of this difference prior to entering into
performance in response to those print orders. Complaint; Report
of Prehearing Conference. Where specifications or other contract
terms are inconsistent on their face, a patent ambiguity arises.
Newsom v. United States, 676 F.2d 647 (Ct. Cl. 1982) (. . . a
patent ambiguity existed. Two parts of the contract said very
different things."); Assurance Co., ASBCA 25254, 83-2 BCA ¶
16,908; MPE Business Forms, Inc., GPOBCA 10-95 (August 16, 1996),
slip op. at 44, 1996 WL 812877. The existence of this patent
ambiguity creates a duty to on the part of the contractor to seek
clarification. Dalton v. Cessna Aircraft Co., 98 F.3d 1298 (Fed.
Cir. 1996); S.O.G. of Ark. v. United States, 546 F.2d 367 (Ct.
Cl. 1976); Renfrow v. United States, 38 Fed. Cl. 435 (1997); Fry
Comms., Inc./InfoConversion Joint Venture v. United States, 22
Cl. Ct. 497 (1991); MPE Business Forms, Inc., supra. While in
the typical case this duty will arise in the preaward environment
as a result of ambiguity in the solicitation, see, e.g., Grumman
Data Sys. Corp. v. Dalton, 88 F.3d 990 (Fed. Cir. 1996), the
underlying rationale for the patent ambiguity rule-avoiding later
disputes and expensive litigation by clarifying ambiguous
language before the parties are locked in, S.O.G. of Ark. v.
United States, supra; Int'l Transducer Corp. v. United States, 30
Fed. Cl. 522 (1994)-is equally applicable when the issuance of
orders under term/requirements contracts first gives rise to the
ambiguity. See Goal Chemical Sealants Corp., GSBCA 8626
(unpub.), 1988 WL 71816 (the agency erroneously issued a
delivery order that was inconsistent with the contract
specifications, the contractor followed the delivery order, the
agency rejected the delivered supplies and ultimately defaulted
the contractor, and the default was upheld because the contractor
did not meet its duty to inquire in the face of the patent
ambiguity) and C-Mor Co., ASBCA 30479, 87-2 BCA ¶ 19,682
(delivery order specifications were different from the contract
specifications, the contractor followed the contract
specifications, the agency rejected the delivery and terminated
for default, and the default was upheld because upon receipt of
the delivery order the contractor "should have . . . resolved the
matter with [the] Army."). In other words, where a term
contractor is aware of an ambiguity between its basic contract
and a print order issued under that contract, the same duty to
inquire is present because it is only through such inquiry, a
"device of preventive hygiene," S.O.G. of Ark. v. United States,
supra, that disputes such as this one can be avoided. If the
contractor fails in its duty to inquire, it bears the risk of
misinterpreting the Government's actual requirements. MWK Int'l,
Ltd. v. United States, 2 Cl. Ct. 206 (1983).
The Appellant asserts that it had no duty to inquire because it
was aware of no patent ambiguity. It bases this assertion on its
position that under the circumstances it was entitled to view the
print orders as written change orders. If these print orders did
constitute change orders, of course, the Appellant would be
correct as there would have been no ambiguity at all concerning
the hole punching requirement-the contract would have been
modified to require 4-1/2" center to center drilling.
The "Changes" clause, incorporated in the contract by reference,
allows the Contracting Officer to make unilateral changes, within
the general scope of the contract, to drawings, designs, and
specifications. GPO Contract Terms, Solicitation Provisions,
Supplemental Specificatioons, and Contract Clauses, GPO Pub.
310.2, effective December 1, 1987 (Rev. 9-88), Contract Clauses,
¶ 4. As the Board has previously pointed out, while a formal
change order issued pursuant to the "Changes" clause need not be
on the specific form (Form 913) identified for that purpose in
GPO's regulations, see PPR, Chap. XII, Sec. 2, ¶ 2.b., it must:
(a) be directed to the contractor by the person with contracting
authority; (b) be in writing; (c) be within the general scope of
the contract and concern the specifications or other matters
encompassed by the clause; (d) provide for an equitable
adjustment in case costs are increased by the change; and (e)
inform the contractor that it must submit any equitable
adjustment proposal within 30 days from receipt of the order.
GraphicData, Inc., GPOBCA 35-94 (June 14, 1996), slip op. at
99-102, 1996 WL 837426.
The print orders clearly do not provide for an equitable
adjustment or inform the contractor of any adjustment submittal
requirement. More importantly, the record does not establish
that the print orders were signed by a contracting officer. (The
Respondent's regulations make it absolutely clear that formal
change orders may be issued only by the Contracting Officer. See
PPR, Chap.XII, Sec. 2 [change orders "require the signature of
the contracting officer only." PPR, Chap. XII, Sec. 2, ¶
1.c.(2)]). Two contracting officers are identified in this
record: Annamarie T. Mierson, who awarded the original contract
to the Appellant, Rule 4 File, Tabs F and G, and James T.
Reingruber, who issued the Contracting Officer's final decision
in this matter, Rule 4 File, Tab P, and who described himself as
having been the Contracting Officer on Program 1216-S.
Reingruber Declaration. The print orders were not signed by
either of these individuals-they were signed by Joan Ridgway.
While Ms. Ridgway is not further identified in the record, the
Respondent's regulations make clear that the signature on print
orders normally will not be that of the contracting officer, but
of an individual from the requiring agency authorized to sign
print orders. PPR, Chap. XII, Sec. 1., ¶ 5.a.(1)(vii).
Accordingly, on this record the Board cannot consider the print
orders to be formal change orders. Compare GraphicData, Inc.,
supra, where the Board found all the necessary elements of a
formal change order to be present.
The Board does find, however, that the issuance of the print
orders constituted a constructive change. "A constructive change
occurs when the contract work is actually changed but the
procedures of the 'Changes' clause have not been followed." John
Cibinic, Jr. and Ralph C. Nash, Jr., Administration of Government
Contracts 429 (Third ed. 1995) (hereafter Cibinic & Nash,
Administration). Since the Government may be bound only by the
actions of its officers acting within the scope of their
authority, Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380
(1947); Wilber Nat'l Bank v. United States, 294, U.S. 120 (1935),
the act or acts asserted to be a constructive change to a
contract must be those of someone with authority to make a change
to the contract. That someone, of course, is the contracting
officer. Thus, for a constructive change to be recognized, the
basis for it must be some action by either the contracting
officer or someone authorized to act on his/her behalf, DOT
Sys., Inc., DOTCAB 1208, 82-2 BCA ¶ 15,817; Inez Kaiser &
Assocs., Inc., ASBCA 22212, 88-2 BCA ¶ 20,732, or a ratification
by the contracting officer or other authorized official of some
other official's unauthorized act. Reliable Disposal Co., Inc.,
ASBCA 40100, 91-2 BCA ¶ 23,895. As discussed, the print orders
were not issued by the Contracting Officer, and there is no
suggestion in the record of a ratification. Accordingly, the
issuance of the print orders can be a constructive change only if
they were issued by someone who had express or implied authority
to change the contract.
According to the Respondent's regulations, print orders, when
received from customer agencies, are reviewed by a GPO "printing
specialist and/or the procurement assistant (program operator) to
determine that the work is within the scope of the contract and
that the print order is properly filled out . . . ." PPR, Chap.
XII, Sec.1, ¶ 5.a.(1). When it is determined that those
requirements, including one for an authorized signature (with
authorization for the signature "on file" with the Respondent's
Central and Regional Offices), id., have been met, "the order may
be placed." PPR, Chap. XII, Sec. 1, ¶ 5.a.(2). It is clear from
other references in the regulation that the order is to be placed
by the program operator. Thus, under the Respondent's regulatory
scheme for print order processing for the type of contract
involved here, the print orders will be signed by someone from
the customer agency and, after review, placed with the contractor
by a GPO program operator. A program operator is defined as "a
printing specialist or procurement assistant assigned
responsibility for processing and administering orders under a
term contract." PPR, Chap. 1, Sec. 2. While "processing and
administering orders" by itself falls far short of an express
grant of authority to make changes to the contract, the role and
function of the program operator in GPO's contractual scheme,
along with GPO's regulations concerning print orders, are
sufficient, in the Board's view, to establish implied authority
in the program operator to make changes to the contract.
Despite the language in the "Changes" clause empowering only the
contracting officer to issue change orders, Government employees
other than the contracting officer, such as the contracting
officer's technical representatives, inspectors, and project
managers, have been held to have implied authority to act for
the contracting officer and bind the Government to constructive
changes. See Cibinic & Nash, Administration at 44-47, 441-2. The
authority generally has been implied when "considered to be an
integral part of the duties assigned" to the employee. Cibinic &
Nash, Administration at 45, citing H. Landau & Co v. United
States, 886 F.2d 322 (Fed. Cir. 1989), and DOT Sys. Inc., supra.
For example, one of the predecessor panels to this Board4 held
that certain employees of the requisitioning agency who acted as
inspectors for GPO had implied authority to act for the
contracting officer on technical matters and that their
instructions to the contractor resulted in a constructive change.
Pikes Peak Lithographing Co., GPOCAB 77-7 (October 6, 1978), slip
op. On the other hand, this Board held that a GPO press sheet
inspector had no implied authority "with respect to acceptance of
the paper." Graphic Litho, GPOBCA 21-84 (February 4, 1985) slip
op. at 20-21, 1985 WL 154850. In so holding, the Board relied on
"a careful reading of the contract" to conclude that the
inspector's job was simply to make a visual inspection which fell
considerably short of what the Respondent was entitled to do to
determine compliance with the specifications prior to acceptance.
Id. at 20. Thus, what is ultimately dispositive here is whether
the authority to bind the Government is an integral part of the
duties assigned to the program operator.
The term contract awarded here tells the contractor that it is to
do no work except that called for by print orders issued "by the
Government" for "[i]tems to be furnished under this contract."
That is, the contract, the document signed by the contracting
officer, establishes the print orders as the contractual
documents to which the contractor is to look for its specific
production and delivery requirements. In other words, it is the
print orders that give rise to specific contractual performance
obligations and therefore, as recognized in the PPR definition of
"contract," are themselves, in that sense, contracts. Under the
PPR the GPO program operator is charged with administering and
processing print orders, including, for this contract, placing
them with the contractor. Thus, it is clear that once a GPO term
contract (other than a "direct-deal" contract, which is discussed
below) has been awarded, the contracting officer's authority to
order specific tasks of the contractor and to bind the Government
to pay for that effort has been delegated to the program operator
and it is from that official that the contractor receives its
binding orders to perform.
Since the print orders are the mechanism through which the
Respondent deals with the contractor when imposing specific
production obligations on the contractor and it is through the
program operator that the print orders are issued,5 the program
operator necessarily has the implied authority to specify what
those obligations will be. See D.W.S., Inc., ASBCA 29743, 93-1
BCA ¶ 25,404. The Respondent, of course, could place express
limitations on the program operator's authority, and indeed it
has done so. Those limitations, however, which are set forth in
the PPR, are themselves limited. First, the program operator is
to determine that the print orders are within the scope of the
contract, PPR, Chap. XII, Sec. 1, ¶ 5.a.(1), and that the
delivery schedule complies with the contract schedule. Id. at ¶
5.a.(1)(ii). Second, if the order submitted by the customer
agency contains an item not included in the contract schedule of
prices, the program operator is to obtain a price for the item
from the contractor and if that price is determined to be fair
and reasonable, the contracting officer is to modify the contract
and the program operator is to then place the order. PPR, Chap.
XII, Sec.1, ¶ 5.a.(3). Thus, under the PPR the program operator
may not issue a print order unless it is within the scope of the
contract and consistent with the delivery schedule of the
underlying contract, and may not include in the print order an
item not priced in the original contract without first obtaining
contracting officer approval and contract modification. Nothing
in the PPR calls for the program operator to ensure that the
print orders, with the exception of the delivery schedule, adhere
precisely to the various contract specifications. By singling
out only the delivery schedule from the contract specifications
as having to be unchanged from the contract and identifying only
the inclusion of an unpriced item as requiring contracting
officer approval and contract modification, the PPR, under
recognized principles of both statutory and contract
interpretation, may be reasonably read as impliedly authorizing
the program operator to issue print orders that do contain
changes to the original contract specifications exclusive of
those pertaining to the delivery schedule. See, e.g., Supermex,
Inc. v. United States, 35 Fed. Cl. 29 (1996) (interpret so as to
give effect to every word and clause and not render any provision
meaningless or superfluous); Henry J. Korpi, ASBCA 6948, 61-1 BCA
¶ 3,030 (failure to list an item when specifically referencing
other items "would lead reasonably intelligent persons to
conclude" that the unlisted item was not meant to be included).
The Board notes that the Respondent, when it wants to place
express limits on the authority of those issuing print orders,
has no difficulty in so doing. Certain term contracts awarded by
the Respondent are "direct-deal" contracts, under which print
orders are issued to the contractor directly by the customer
agency. PPR, Chap. XII, Sec. 1, ¶¶ 1 and 2; see Swanson Printing
Co., GPOBCA 27-94 and 27-94A (November 18, 1996), slip op. at 4,
n.9. When "direct-deal" contracts are awarded, the Respondent
explicitly informs the contractor in the award notification
letter that while direct contact with the customer agency is
authorized "for transmitting print orders," the "[r]
epresentatives of the ordering agency do not have authority to
alter or change the specifications, contract terms, or the print
orders, once issued." Swanson Printing Co., supra, at 34; see
United Computer Supplies, Joint Venture, supra, at 3 and GPO
Agency Procedural Handbook, GPO Pub. 305.1, dated March 1987,
Sec. IV, ¶ 2 (an agency's direct-deal authority "extends only to
the placement of print orders and to the transmission of copy and
proofs. . . . All other authority rests with GPO's Contracting
Officers.") Thus, the contractor is explicitly placed on notice
from the outset that the individual issuing the print orders is
without authority to change the specifications and contract
terms. In contrast, the award notification in this case advised
the contractor that print orders would be transmitted by GPO,
that direct contact with the customer agency was not authorized,
that representatives of the ordering agency had no authority to
change the specifications, and that changes requested by other
than GPO "are without authority and shall have no force or effect
unless confirmed in writing" by GPO. Rule 4 File, Tab G. There
is absolutely nothing in this
letter that would alert the contractor to any limitation on the
authority of the GPO official who would be issuing print orders.
Accordingly, the Board concludes that GPO's program operator had
implied authority to change the contract specifications so long
as the change did not involve the delivery schedule and was
within the scope of the contract. The Board further concludes
that the issuance of Print Orders 80003, 80004, 80005, and 80006
with the 4-1/2" center to center distance hole drilling
requirement properly could be viewed by the Appellant as a
constructive change to the contract since the two elements of a
constructive change-a "change" and an "order," see Cibinic &
Nash, Administration at 431-are inherent in the print orders.6
That being so, the Appellant did not proceed improperly when it
performed in accordance with those print orders. Consequently,
the Respondent's direction to the Appellant to retrieve the
publications it had furnished under the print orders and to
correct them in accordance with the original contract
specification was tantamount to another constructive change, see
Custom Printing Co., GPOBCA 28-94 (March 12, 1997), slip op. at
67, 1997 WL 742505, entitling the Appellant to an equitable
adjustment to compensate it for the extra work it was directed to
perform.
While the Appellant has requested $12,863.23, broken down by
print order and by freight costs and labor, the Appellant has not
met its burden to establish its entitlement to that amount as it
has furnished no supporting documentation. Thus, the Board is
unable to determine the reasonableness of either the total amount
claimed or the amounts claimed under each print order. In Custom
Printing Co., supra, the Board denied a claim for the costs
incurred in performing certain extra work because no evidence was
offered to support the claim. However, in another case where the
contractor also failed to provide evidentiary support for the
amount of its claim, the Board determined an equitable adjustment
amount after noting the "undisputed fact" that the Respondent
had ordered the contractor to do extra work and that it was
"inescapable that the contract changes ordered . . . had some
cost impact." Universal Printing Co., GPOBCA 09-90 (June 22,
1994), slip op. at 49, 1994 WL 377586. In that case, both the
contractor and the Respondent had staked out positions as to the
monetary amount to which the contractor was entitled, and the
Board was able to utilize a jury verdict approach to resolve the
matter. Here, it is also inescapable that the extra work ordered
by the Respondent had a cost impact, but there is no indication
in the record that the Respondent has ever determined an amount
to which the Appellant would be entitled. The record contains
only a statement from the Contracting Officer, which pre-dates
his final decision on this matter, that he had not determined the
reasonablenesss of the amount claimed. Under the circumstances,
the matter is remanded to the Contracting Officer for a
determination of a fair and reasonable equitable adjustment
amount.
III. ORDER
The Contracting Officer's final decision is REVERSED, the appeal
is SUSTAINED, and the matter is REMANDED to the Contracting
Officer.
It is so Ordered.
February 20, 1998 Ronald Berger
Ad Hoc Chairman
GPO 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 May 4, 1994. It will be referred to as
the Rule 4 File, with an appropriate Tab letter also indicated.
The Rule 4 File consists of 16 tabs identified as Tab A through
Tab P.
2 The parties agreed that a hearing was not required in this
case. Report of Prehearing Conference dated December 23, 1994.
The decision is based on the Rule 4 File and the briefs
(Appellant's Brief, Respondent's Brief with accompanying
declaration from Contracting Officer James T. Reingruber
(hereafter Reingruber Declaration), and Appellant's Reply Brief)
submitted by the parties.
3 For a discussion of "trim size," see United Computer Supplies,
Joint Venture, GPOBCA 26-94 (January 23, 1998), slip op. at
11-14, 1998 WL ______.
4 Prior to the creation of this Board in 1984, ad hoc panels
heard and decided disputes between GPO and its contractors. The
Board cites the decisions of these ad hoc panels as GPOCAB. See
Rose Printing, Inc., GPOBCA 32-95 (December 16, 1996), slip op.
at 27, n.28, 1996 WL 812880.
5 While the Respondent's regulations refer to the order being
"placed," PPR, Chap. XII, Sec. 1, ¶ 5.a.(2), the "Ordering"
clause of the contract states that items shall be ordered "by the
issuance of print orders," which is defined in that clause as
depositing in the mail or otherwise furnishing to the contractor.
See Rule 4 File, Tab B.
6 The Board recognizes that the change made by the print orders
was an unusual one. As the Contracting Officer states, "[t]he
standard for 3-hole drilling when drilling a 8-1/2 x 11 book or
paper is 4-1/4 inches center to center." Reingruber Declaration.
While the Appellant asserts that it is not uncommon for GPO to
require 4-1/2 inch center to center drilling, the specifications
Appellant furnishes in support of its assertion are less than
convincing on this point as they do not appear to involve 8-1/2"
x 11" products. Nonetheless, the Board does not consider the
unusual aspect of the 4-1/2" drilling requirement as imposing
some duty of inquiry on the Appellant that had to be satisfied
before it could view the print orders as changing the
specifications since: (1) the 4-1/2" requirement was set forth
in four different print orders; (2) the print orders, unlike the
prior print orders issued to the Appellant under this contract,
were for the basic Index rather than for a supplement to the
Index; (3) 4-1/2" drilling requirements are not unknown to both
the Appellant and the Respondent: and (4) the Respondent's
position that a 4-1/2" center to center drilling requirement for
the paper size specified here is not "standard" and is a
"deviation from the widely used standard," Resp. Brief, stops
well short of establishing that such a requirement has not been
or could not be reasonably imposed.