BOARD OF CONTRACT APPEALS
U.S. GOVERNMENT PRINTING OFFICE
In the matter of )
)
the Appeal of )
)
HORIZON GRAPHICS ) Docket No. GPOBCA 14-02
)
Jacket 783-405 )
Purchase Order P9576 )
For the Appellant: Robert Gacek, Jr., President, Horizon Graphics,
Eden Prairie, Minnesota.
For the Respondent: Roy E. Potter, Esq., Associate General Counsel,
U.S. Government Printing Office, Washington, DC.
Before KERRY L. MILLER, Administrative Judge.
SUMMARY DECISION ISSUED UNDER
RULE 12.2 - SMALL CLAIMS PROCEDURE
INTRODUCTION
Horizon Graphics (Appellant) appeals the decision of a U.S. Government
Printing Office (GPO) Contracting Officer denying the company's claim for
$539.20 in additional compensation for performing GPO contract 783-405.
Pursuant to GPOBCA Rule 12.2, the Board issues the following summary
decision.\1\
FINDINGS OF FACT
1. Horizon Graphics was awarded a small purchase contract worth $2,319.05 for
the production of 615 copies of a 48-page publication entitled USGS
EVAPOTRANSPIRATION REPORT: WRIR 01-4234. The contract contained the following
provisions that are in dispute:
DESCRIPTION:
Covers 1 and 4 print type, line art and solids in black plus four-color process
photo on Cover 1. Covers 2 and 3 print type copy in black only. Excepting four
blank pages, the text pages (eight preface pages plus page nos. 1 thru 40) print
type, rules and line art in black throughout. Eight text pages (first page, plus
page nos. 3, 5, 13, 14, 15, 22 and 23) additionally print four-color process
imagery.
MATERIAL FURNISHED:
650 MB CD-R disc with CMYK digital copy for Cover 1 and eight text pages (System
9.2/10.1 Mac-compatible Illustrator 8/9, Photoshop 5/6 files plus furnished
fonts), bound color hardcopy dummy, 44 page-size camera-ready originals,
pagination sheet and GPO Form 952. Contractor to shoot 45 base negs; provide
traps and output CMYK films for Cover 1 and eight text pages at min. 1600 dpi
(133-line) and composite/strip-in with base negs; typeset and strip-in GPO
imprint Cover 3, bottom inside.
Rule 4 File, Tab A.
2. After reviewing the Government-furnished CD-R, Appellant concluded that
the materials were not as described by the contract specifications.
Appellant complained to the Contracting Officer that the CD-R did not
contain eight "formatted" text pages, i.e., pages with both text and
illustrations already in position on the pages. Appellant argued that the
contract specifications led it to believe that it would not have to perform
the process of combining both text and graphics to produce the finished
pages. According to Appellant, the additional cost to strip\2\ in the
illustrations would be $539.20. Exhibit 6, Appellant's Brief.
3. The Contracting Officer disagreed with Appellant's interpretation of the
contract and ordered Horizon Graphics to proceed with the work, pursuant to
Clauses 4(e)\3\ and 5(i)\4\ of GPO Contract Terms, GPO Publication 310.2 (Rev.
6-01). Exhibits 9, 10, Appellant's Brief.
4. After reviewing Appellant's claim for additional compensation, the
Contracting Officer issued the following final decision:
I have once again reviewed the file, including all correspondence, for Jacket
783-405. I believe the actions of the Government to be correct.
Your position is based on your isolation and misrepresentation of one aspect of
the specifications. Your request for payment is based on the fact that you
"found no formatted text pages on disk". All of your charges relate to the
process of stripping-in the CMYK illustrations with the base negatives.
The following facts are clear:
The specifications did not say that the Government was furnishing "formatted
text pages on the disk".
The specifications did say that the Government was furnishing CMYK digital copy
for eight text pages.
The Government did furnish CMYK digital copy for those pages.
The specifications did say that the Government would furnish camera ready
originals.
The Government did furnish camera ready originals.
The specifications did say "Contractor to shoot 45 base negs.."
The specifications did say "..output CMYK films for Cover 1 and eight text pages
at min. 1600 dpi (133-line) and composite/strip-in with base negs;.. "
The work, for which you are requesting additional reimbursement, is clearly
required by, and spelled out in, the specifications.
It has long been established in contract law that a writing is interpreted as a
whole and all writings forming part of the same contract are interpreted
together. It is improper to interpret a single word, phrase, or sentence out of
context with the rest of the contract. Clearly, to make additional payment in
accordance with your request would be in violation of this long established
rule. With this in mind, your request for additional payment is denied.
Rule 4 File, Tab C.
5. Thereafter, Appellant filed a timely appeal with the GPO Board of
Contract Appeals.
DISCUSSION
The purpose of any rule of contract interpretation is to carry out the intent of
the parties, Hegeman-Harris & Co., 194 Ct. Cl. 574, 440 F.2d 1009 (1971); and to
give effect to the "spirit and purpose" of the agreement. Julius Goldman's Egg
City v. United States, 697 F.2d 1051 (Fed. Cir. 1983); Thanet Corp v. United
States, 591 F.2d 629 (Ct. Cl. 1979). The Board must first seek to resolve a
contract interpretation dispute by trying to determine the mutual intent of the
parties as manifested in the contract itself. IBI Security Services, Inc. v.
United States, ASBCA No. 3492, 88-1 BCA ¶ 20,364; Coastal Dry Dock & Repair
Corp., ASBCA No. 31894, 87-1 BCA ¶ 19,618. The test for ascertaining intent is
an objective one; i.e., the question is what would a reasonable contractor have
understood, not what did the drafter or the bidder subjectively intend.
Corbetta Construction Co. v. United States, 198 Ct. Cl. 712, 461 F.2d 1330
(1972). See also Salem Engineering and Construction Corp. v. United States, 2
Cl. Ct. 803, 806 (1983). The provisions of the contract itself should provide
the evidence of the objective intent of the parties, and so, when interpreting a
contract, the Board's examination should begin with the plain language used in
the contract. Textron Defense Sys., 143 F.3d 1465, 1469 (Fed. Cir. 1998);
Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed. Cir. 1991); Craft Mach.
Works Inc. v. United States, 926 F.2d 1110, 1113 (Fed. Cir. 1991).
There is a burden on the Government when writing contracts to use language
that conveys the Government's intent. If the Government uses language
reasonably susceptible to more than one interpretation that is consistent
with the contract language and an objective determination of the intent of
the parties, the specification is ambiguous and the Government may be liable
to the contractor. Gentz Construction Co., IBCA No. 1015, 75-1 BCA ¶ 11,010,
citing Bennett v. United States, 178 Ct. Cl. 61, 64, 371 F.2d 859 (1967).
While the disputed contract language in this appeal, with its terse prose
and heavy reliance on printing industry argot, is not an example of good
literature, it is unambiguous and not reasonably susceptible to more than
one interpretation.
Appellant's complaint is that the Government did not furnish "formatted"
text pages as digital files. However, the contract contains no such
explicit promise. Instead, Appellant points to language in the DESCRIPTION
section of the contract, arguing that the sentence "[e]ight text pages
(first page, plus page nos. 3, 5, 12, 14, 15, 22 and 23) additionally print
four-color process imagery" is a commitment on the part of the Government to
furnish "formatted" text pages. The Board concludes that Appellant's
interpretation of this sentence is incorrect.
In coming to this conclusion the Board must take into account the context within
which the above-quoted sentence appears. That sentence is contained in the
DESCRIPTION portion of the contract, a section that lists the types of printing
that will be required of the contractor. As an example, the DESCRIPTION section
directs the contractor to print covers 1 and 4 of the REPORT with type, line art
and solids printed in black ink, plus a four-color process\5\ photo on the cover.
The DESCRIPTION section goes on to state that eight of the text pages must be
printed with four-color process images in addition to type, rules and line art
printed in black. Rule 4 File, Tab A.
The DESCRIPTION section of the contract does not, however, contain any
description of the electronic files to be furnished by the Government. Instead,
the DESCRIPTION section of Jacket 783-405 is simply a listing of the printing
components of the USGS EVAPOTRANSPIRATION REPORT. Therefore, the Board
concludes it is not reasonable for Appellant to read the sentence "[e]ight text
pages (first page, plus page nos. 3, 5, 12, 14, 15, 22 and 23) additionally
print four-color process imagery" as a description of the electronic files to be
furnished by the Government. There is a separate section of the contract,
entitled MATERIAL FURNISHED, that lists the items the Government promised to
provide to the contractor and also lists the operations the Government expected
the contractor to perform. It is only in this section of the contract that the
Government-furnished digital files are referenced.
An examination of the language of the MATERIAL FURNISHED section lends no
support for Appellant's argument. Instead of promising to furnish "formatted
pages" as alleged by Appellant, the MATERIAL FURNISHED section promises to
furnish "CMYK\6\ digital copy for Cover 1 and eight text pages." The MATERIAL
FURNISHED section also directs the contractor to "output CMYK films for Cover 1
and eight text pages . . . and composite/strip-in with base negs." Thus, the
contract promised to provide digital color images and directed the contractor to
output those images and to "composite/strip-in" the images with the contractor-
produced base negatives.
It is precisely these strip-in functions that Appellant is seeking
additional compensation for. The Board concludes that Appellant is not
entitled to additional compensation since the contract specifications
adequately described both the Government-furnished materials and the
composite/strip-in operations required of Appellant.
CONCLUSION
Having considered all the arguments of the parties, whether or not expressly
mentioned, the Board concludes that Appellant's interpretation is
unreasonable and inconsistent with the plain language of the contract.
Accordingly, the appeal is denied.
December 4, 2003 KERRY L. MILLER
Administrative Judge
___________________
1 Decisions issued under this small claims procedure have no value as precedent.
GPOBCA Rule 12.2 (d).
2 "Strip" means "to attach a film negative to a carrier sheet (such as
goldenrod) to create a flat for platemaking. Stip also means to insert an
additional negative (such as a halftone) into an already assembled flat." F.
Romano, THE GATF ENCYCLOPEDIA OF GRAPHIC COMMUNICATIONS 750.
3 Clause 4 (e), Changes, reads: "Failure to agree to any adjustment shall be a
dispute under the Disputes clause. However, nothing in this clause shall excuse
the contractor from proceeding with the contract as changed."
4 Clause 5 (i), Disputes, reads: "The contractor shall proceed diligently with
performance of the contract, pending final resolution of any request for relief,
claim, appeal, or action arising under the contract, and comply with any
decision of the contracting officer."
5 Process color refers to the printing of "full color" images using a
photographic color separation process in which each of the three primary colors
(cyan, magenta and yellow) plus black are separated from the original art and
given their own printing plates. F. Romano, THE GATF ENCYCLOPEDIA OF GRAPHIC
COMMUNICATIONS 647.
6 "CMYK" is an acronym for cyan, magenta, yellow and key (black), the four
process colors or inks used in printing. F. Romano, THE GATF ENCYCLOPEDIA OF
GRAPHIC COMMUNICATIONS 146.