BOARD OF CONTRACT APPEALS U.S. GOVERNMENT PRINTING OFFICE WASHINGTON, DC 20401 In the Matter of ) ) the Appeal of ) ) R.C. SWANSON PRINTING AND ) Docket No. GPO BCA 15-90 TYPESETTING COMPANY ) Jacket No. 241-699 ) Purchase Order 70992 ) Program D404-M ) DECISION ON MOTION FOR RECONSIDERATION AND ORDER On July 1, 1993, the Board issued its Supplemental Decision and Order (Supplemental Decision), in the above-captioned appeal of R.C. Swanson Printing and Typesetting Company (Appellant or Contractor)) on the issue of termination costs.1 In its Supplemental Decision, the Board overruled the U.S. Government Printing Office's (Respondent or GPO or Government) final decision disallowing nearly all of the Appellant's claim for settlement costs stemming from the canceling of its contract for the convenience of the Government because the Contracting Officer had failed to take into account that the contract in question was a requirements contract.2 R.C. Swanson Printing and Typesetting Company, GPO BCA 15-90 (July 1, 1993), Supplemental Decision and Order, Sl. op. at 26. In so ruling, the Board accepted the Contractor's view that the proper basis for calculating termination settlement costs was the estimated contract price over the life of the contract. Id., Sl. op. at 25 (citing, Aviation Specialists Inc., DOT BCA No. 1967, 91-1 BCA ¶ 23,534). Accordingly, the Board reversed the Respondent's final decision and remanded the matter to the Contracting Officer with instructions to reconsider the Appellant's claim in light of the Supplemental Decision. On August 2, 1993, Counsel for GPO submitted Respondent's Motion for Reconsideration (Motion for Reconsideration) to the Board, asking it to review its Supplemental Decision, and find instead that the decision of the Contracting Officer was correct. Board Rules, Rule 29. Thereafter, on August 24, 1993, Counsel for the Appellant filed Appellant's Opposition to Respondent's Motion for Reconsideration (Appellant's Opposition) with the Board, requesting that the Motion for Reconsideration be denied.3 The Board has carefully considered the Motion for Reconsideration and the Appellant's Opposition, and for the reasons which follow, it herein AFFIRMS the Contracting Officer's determination, and MODIFIES its Supplemental Decision. DISCUSSION AND OPINION As a rule, reconsideration is discretionary and will not be granted in the absence of specific and compelling reasons. See, e.g., Christie-Willamette, NASABCA No. 1182-16, 89-2 BCA ¶ 21,659; Carolina Maintenance, ASBCA No. 25891, 88-1 BCA ¶ 20,388; Ken Rogge Lumber Company, ASBCA No. 84-145-3, 84-3 BCA ¶ 17,570; Ronald C. Skillens d/b/a Skillens Enterprises, GSBCA No. 4625, 77-2 BCA ¶ 12,634. Reconsideration is not intended to allow the moving party to reargue the case or reinterpret old evidence. See, e.g., Blake Construction Company, GSBCA No. 8376-R, 90-1 BCA ¶ 22,408; Prime Roofing, Inc., ASBCA No. 30651, 89-2 BCA ¶ 21,593; Ford Aerospace & Communications Corporation, ASBCA No. 29088, 88-3 BCA ¶ 21,061; Sequal, Inc., ASBCA No. 29119, 85-3 BCA ¶ 18,366; Graphic Litho, Inc., GPO BCA No. 17-85 (September 30, 1988), Sl. op. at 3-5. Apart from establishing precise time limits for filing, Rule 29 provides only general guidance for parties seeking to have the Board reconsider a decision.4 Board Rules, Rule 29. However, in Graphic Litho, Inc., the Board enumerated the standards for reconsideration in this forum: Generally, Boards of Appeals, such as this, will not reopen an appeal record once it is settled. [Footnote omitted.] Polerad Electronics Corp., ASBCA [No.] 20636, 79-1 BCA ¶ 13,777[.] [See also,] Cal Constructors, ASBCA [No.] 21179, 78-1 BCA ¶ 12,992; Harold Benson, AGBCA [No.] 384, 77-1 BCA ¶ 12,490. However, on occasion they will exercise discretion and do so in order to receive significant newly- discovered evidence[,] Key, Inc. & Jones-Robertson, Inc., IBCA [No.] 690-12-67, 69-1 BCA ¶ 7,447, or non-newly discovered evidence, G.M. Co. Manufacturing, Inc., ASBCA [No.] 5345, 60-2 BCA ¶ 2,759, when it is clear that injustice will be done if the evidence is not considered. K-Square Corp., IBCA [No.] 959-3-72, 73-2 BCA ¶ 10,146; Turner Construction Co., GSBCA [No.] 3549, 75-1 ¶ 11,106. A Board may also exercise such discretion in granting reconsideration where it is alleged that the Board erred in its legal conclusions, Pansophic Systems, Inc., GSBCA [No.] 4983, 78-2 BCA ¶ 13,390; or where it is claimed that the decision was founded in a legal theory which neither party had espoused. Kaminer Construction Corp., ENGBCA [No.] 2833, 70-1 BCA ¶ 8,257. Id., Sl. op. at 2-3. [Emphasis added.] As indicated in Graphic Litho, Inc., the traditional grounds for reconsideration are: (1) newly discovered evidence, or evidence which was unavailable at the time of the initial proceeding; or (2) error or oversight in a contract appeals board's findings of fact or conclusions of law. See also, Old Dominion Security, Inc., GSBCA No. 8563-R, 88-3 BCA ¶ 21,072; Chrysler Corporation, NASABCA No. 1075-10, 77-2 BCA ¶ 12,829; Winsco Instruments & Controls Company, NASABCA No. 1065-40, 67-2 BCA ¶ 6,644. It is also settled that any new evidence must be significant and material, and it must be such as to require a different result. See, e.g., United States v. 41 Cases, More or Less, 420 F.2d 1126, 1132 (5th Cir. 1970); Reed & Reed, Inc., ASBCA No. 34367, 88-3 BCA ¶ 20,876; Wise Instrumentation and Controls, NASABCA No. 1072-12, 76-1 BCA ¶ 11,641; Mastic-Tar Co., Inc., ASBCA No. 7272, 1962 BCA ¶ 3,429. The same requirements regarding materiality and a difference of result also apply to alleged errors or oversights of findings of fact and conclusions of law. See, e.g., Camel Manufacturing Company, ASBCA No. 41231, 91-2 BCA ¶ 23,908; Optimal Data Corporation, NASABCA No. 381-2, 85-2 BCA ¶ 18,165. In seeking review here, the Respondent alleges that the Board "mischaracterized the nature of the contract" in its Supplemental Decision by calling it a requirements contract, and thus the Board's conclusion is legally flawed.5 Motion for Reconsideration, at 1. In that regard, contract interpretation is clearly a question of law. Pacificorp Capital, Inc. v. United States, 25 Cl.Ct. 707, 715 (1992), aff'd 988 F.2d 130 (Fed. Cir. 1993); Fry Communications, Inc.- Infoconversion Joint Venture v. United States, 22 Cl.Ct. 497, 503 (Cl.Ct. 1991); Fortec Contractors v. United States, 760 F.2d 1288, 1291 (Fed.Cir. 1985); P.J. Maffei Building Wrecking Company v. United States, 732 F.2d 913, 916 (Fed. Cir. 1984); Hol-Gar Mfg. Corp. v. United States, 169 Ct.Cl. 384, 386, 351 F.2d 972, 973 (1965). Consequently, the task confronting the Board in this proceeding is to examine the terms of the contract and decide what the agreement really is, regardless of what the contract is called.6 Ralph Construction, Inc. v. United States, supra, 4 Cl.Ct. at 731. The crux of the Respondent's argument is that the contract at issue was a multiple-award type of agreement, which did not create an exclusive contractual relationship between the Appellant and GPO-an essential ingredient for a requirements contract. Motion for Reconsideration, at 2-3. In that regard, the Respondent specifically directed the Board's attention to a case decided by the United States Claims Court (Claims Court) 16 years ago, in which it held that GPO's multiple-award agreements were not requirements contracts, as that concept is understood in Government contracts law.7 See, Media Press, Inc. v. United States, 215 Ct.Cl. 985, 986 (1977). In Media Press, Inc., GPO made multiple awards in a contract for the procurement of certain printed forms for the Department of Health, Education and Welfare, because it believed that no single printing firm would be able to meet all of the customer-agency's needs. Id., at 985. As the Claims Court described the contractual scheme: Plaintiff was named low bidder on the basis of its aggregate low price, with other awards made sequentially from lowest to highest, also on the basis of aggregate prices. In placing work, the GPO was obligated to first communicate with the low contractor to determine whether or not he could accept an order. The only valid reason for declining was inability to meet a shipping schedule. If the low contractor was unable to accept an order, the Government would contact the next low bidder, and so on, until the job was accepted. The contract provided three exceptions to this method of placing work, only one of which is pertinent here. The provision in question, Exceptions Clause (3), reserved the right to establish a new low bidder and numerical sequence of other bidders on each particular print order, taking into account only those variables involved in that particular order, rather than on an aggregate basis taking into account all four variables. This process of computing prices on each individual print order is known as "abstracting". Abstracting showed, because of the structure of plaintiff's bid, that on orders requiring little or no folding, the prices of other contractors were lower. The Government invoked this exception with the result that all orders were not automatically offered initially to plaintiff. Media Press, Inc. v. United States, supra, 215 Ct.Cl. 985-86. The aggregate low bidder sued in the Claims Court for lost profits on the print orders it failed to receive, alleging that the contract was a requirements contract, and thus every offer of a print order to another contractor was a breach of contract by GPO. The Claims Court disagreed and dismissed the low bidder's suit. Media Press, Inc. v. United States, supra, 215 Ct.Cl. 987. The rationale for the Claims Court's decision was: A requirements contract has been defined as a contract in which the purchaser agrees to buy all of its needs of a specified material from a particular supplier, and the supplier agrees, in turn, to fill all of the purchaser's needs during the period of the contract. Inland Container, Inc. v. United States, 206 Ct.Cl. 478, 482-483, 512 F.2d 1073 (1975); Ready-Mix Concrete Co., Ltd. v. United States, 141 Ct.Cl. 168, 169, 158 F.Supp. 571 (1958); Gemsco, Inc. v. United States, 115 Ct.Cl. 109 (1950); Johnstown Coal & Coke Co. v. United States, 66 Ct.Cl. 616 (1929). Neither party to the instant contract is so tightly and exclusively bound to the other so as to give rise to a requirement-type arrangement. The government retained the right to purchase some of its needs from other printers. Similarly, plaintiff was empowered to refuse orders if it was unable to meet a delivery schedule. We conclude, therefore, that such consideration is insufficient to support plaintiff's construction of the contract as a requirements contract. See, Goldwasser v. United States, 163 Ct.Cl. 450, 454-455, 325 F.2d 722, 724 (1963). Media Press, Inc. v. United States, supra, 215 Ct.Cl. 986. [Emphasis added.] The Board's own research on the question raised by the Motion for Reconsideration, confirms that the earmark of a requirements contract is the existence of an exclusive relationship between the contractor and the Government; i.e., an understanding that the contractor has the exclusive right and legal obligation to fill all of the Government's needs for the work of the kind described in the contract and that the Government will purchase those needs from no one other than the contractor. Ralph Construction, Inc. v. United States, supra, 4 Cl.Ct. at 731; Torncello v. United States, supra, 681 F.2d at 761; Automated Services, Inc., DOTBCA No. 1753, 87-1 BCA ¶ 19,459, at 98,350; Dynamic Science, Inc., supra, 85-1 BCA ¶ 17,710, at 88,383. As explained by the Claims Court in Torncello: Requirements contracts also lack a promise from the buyer to order a specific amount, but consideration is furnished, nevertheless, by the buyer's promise to turn to the seller for all such requirements as do develop. Such contracts clearly are enforceable on that basis. Brawley v. United States, 96 U.S. 168, 172, 24 L.Ed. 622 (1878); Shader Contractors, Inc. v. United States, 149 Ct.Cl. 535, 540-43, 276 F.2d 1, 4-6 (1960); Gavin at 244-48 [Gavin, Government Requirements Contracts, 5 Pub.Cont.L.J. 234 (1972)]. The entitlement of the seller to all of the buyer's requirements is the key, for if the buyer were able to turn elsewhere for some of its needs, then the contract would not be distinguishable from an indefinite quantities contract with no stated minimum, unenforceable as we have stated. Torncello v. United States, 681 F.2d at 761-62. [Emphasis added.] Indeed, in a case not unlike Media Press, Inc., the Armed Services Board of Contract Appeals held that a roofing contractor, who claimed that work done by two other contractors should have gone to him, was not entitled to any work required to be purchased under his requirements contract other than that specified in delivery and call orders issued under his agreement, where the Government properly followed its delivery order/call order system in administering the contract. Skip Kirchdorfer, Inc., ASBCA No. 22997, 83-2 BCA ¶ 16,713. The Board has carefully studied the relevant terms of the Appellant's contract with GPO, and has determined that, as the Respondent contends, it misapplied the law in this case, and that the conclusion it reached in its Supplemental Decision was in error. In that regard, the contract specifications here disclose a print order placement scheme which is identical to the one considered by the Claims Court in Media Press, Inc. Thus, the Appellant's contract also provides, in pertinent part, that: DETERMINATION OF AWARD AND PLACEMENT OF WORK The Government will make multiple awards under this solicitation since it is anticipated that one firm may not be able to meet all of the requirements. In order to make multiple awards and to determine the sequence of bidders, the Government will apply the prices quoted by each bidder in the "Schedule of Prices" to the following units of production which are the estimated requirements to produce one year's under this contract. These units do not constitute, nor are they construed as a guarantee of the volume of work which may be ordered for a like period of time. In placing work, the Government will first communicate with the low contractor to determine whether or not at that time one or more orders for specified quantities can be accepted for shipment within the time required by the Government. The Government will be obligated to offer each job to the low contractor first, the next low contractor second, and so on until the job has been accepted. The offer shall be made only to those contractors whose prices are determined to be fair and reasonable. The low contractor and each successive next low contractor shall be obligated to accept the job except when the shipping schedule cannot be met. Contractors refusing to accept orders offered with the requested ship date shall be required to provide the best date that can be met. When the contractor accepts, a formal print order will be issued. * * * * * * * * * * Notwithstanding any sequence of contractors established as a result of the Determination of Award, the Government reserves the right, without limitation, to establish a specific sequence of contractors for any or all print orders to be issued under this contract by abstracting the contract prices of each contractor against actual print orders to be issued, and adding any applicable costs to the Government, for transportation of the finished product to all destinations. In the event such a specific sequence is established, such specific sequence of contractors shall control the order in which the print order(s) is offered. The determination to establish a specific sequence or sequences shall not be cause for an adjustment in the contract price or any other term or condition of the contract. See, R4 File, Tab A, p. 11. [Emphasis added.] Where, as here, one contract either refers to or incorporates the provisions of another contract, both contracts should be construed together to determine the meaning of the terms and intent of the parties. Pacificorp Capital, Inc. v. United States, supra, 25 Cl.Ct. at 716 (citing, Chicago Pneumatic Tool Co. v. Ziegler, 151 F.2d 784, 795 (3rd Cir. 1945)). Therefore, when the Board considers the relevant provisions of the Appellant's contract in light of the Claims Court's analysis in Media Press, Inc., it is compelled to conclude that, in fact, the multiple-award agreement in question was not a requirements contract. Furthermore, since the Board's error of law was, indeed, significant and material, and was such as to require a different result, it will grant the Respondent's Motion for Reconsideration. See, e.g., United States v. 41 Cases, More or Less, supra, 420 F.2d at 1132; Camel Manufacturing Company, supra, 91-2 BCA ¶ 23,908; Reed & Reed, Inc., supra, 88-3 BCA ¶ 20,876; Optimal Data Corporation, supra, 85-2 BCA ¶ 18,165; Wise Instrumentation and Controls, supra, 76-1 BCA ¶ 11,641; Mastic-Tar Co., Inc., supra, 1962 BCA ¶ 3429. However, the Board's responsibility does not end here. As indicated in the Supplemental Decision, the Board was faced with two issues: 1. Did the Contracting Officer use the proper cost basis for considering the Appellant's settlement proposal in this case? 2. Has the Appellant provided sufficient proof to show that it incurred the costs connected with the terminated contract described in its claim? Supplemental Decision, Sl. op. at 13. Granting the Motion for Reconsideration only disposes of the first question. The Board must still determine the quantum of relief which the Appellant is entitled to because of the convenience termination of its contract. The record in this case shows that the Appellant's termination settlement proposal was referred to GPO's Office of the Inspector General (OIG) for an audit (R4 File, Tabs M and N). On February 27, 1990, the OIG issued its audit report of the Appellant's claim (R4 File, Tab Q) (hereinafter OIG Audit Report). As indicated in the Supplemental Decision, of the Appellant's claim of $245,796.75, the audit report questioned $244,265.86, leaving a balance of $1,530.89 (R4 File, Tab Q, Attachment III, p. 1). The reasoning of the OIG auditors with respect to their disposition of the individual settlement categories presented by the Appellant-Labor Costs, Overhead Expenses, Capital Acquisition Debt, General and Administrative Expenses, Lost Profit, and Settlement Expenses-has been set forth previously, and need not be repeated here. Supplemental Decision, Sl. op. at 9-11. Suffice it to say, that the Contracting Officer's settlement offer of March 23, 1990, essentially adopted the findings in the OIG Audit Report (R4 File, Tab S). The Board has recently indicated that it would rely heavily on OIG audits in assessing a contractor's evidence of costs. See, Banta Company, GPO BCA 03-91 (November 15, 1993), Sl. op. at 57 (and cases cited therein). Here, too, the Board believes that the information contained in the OIG Audit Report is the best available in the record to determine the quantum of relief issue. Id. See also, S.W. Electronics & Manufacturing Corporation v. United States, 228 Ct.Cl. 333, 655 F.2d 1078 (1981); E.W. Eldridge, Inc., ENGBCA No. 5269, 90-3 BCA ¶ 23,080,; Celesco Industries, ASBCA No. 22251, 79-1 BCA ¶ 13,604. Accordingly, when the Board considers the record in this case as a whole, including the transcript of the hearing held on June 2, 1992, it finds that the evidence supports payment of the Appellant's claim to the extent offered by the Contracting Officer on March 23, 1990. Therefore, the Board will allow termination costs in the amount of $1,530.89, which it finds is fair and reasonable under the circumstances. Cf., Banta Company, supra, Sl. op. at 61. ORDER For all of the foregoing reasons, the Board finds and concludes that the Respondent has presented grounds which would warrant reconsideration of the Supplemental Decision, and that therefore, its Motion for Reconsideration is GRANTED. Furthermore, the Board finds and concludes that the record evidence supports the Appellant's termination claim to the extent of the Contracting Officer's settlement offer of March 23, 1990. THERFORE, the Board MODIFIES its Supplemental Decision and REMANDS the case to the Contracting Officer with instructions to make appropriate arrangements to pay the Contractor in accordance with this opinion. Banta Company, supra, Sl. op. at 62; RD Printing Associates, Inc., GPO BCA 02-92 (December 16, 1992), Sl. op. at 37; General Business Forms, Inc., GPO BCA 2-84 (December 3, 1985), Sl. op at 23. It is so Ordered. December 20, 1993 STUART M. FOSS Administrative Judge _______________ 1 The Board's initial opinion in this appeal was issued on March 6, 1992. The Board's Decision and Order dismissed the Contractor's claim for breach of contract damages for lack of jurisdiction, but ruled that the appeal from the Contracting Officer's denial of its claim for termination costs was a justiciable controversy. R.C. Swanson Printing and Typesetting Company, GPO BCA 15-90 (March 6, 1992), Decision and Order, Sl. op. at 2. 2 In that regard, the Contracting Officer had disallowed nearly all of the Appellant's claim for termination costs of $245,796.75. However, because the termination cost question could not be decided on the record as it existed, the Board ordered a hearing to take evidence on that issue. R.C. Swanson Printing and Typesetting Company, supra, Decision and Order, Sl. op. at 41-42. GPO Instruction 110.12, Subject: Board of Contract Appeals Rules of Practice and Procedure, dated September 17, 1984, Rules 8, 17-25 (Board Rules). The hearing was conducted by the Board on June 2, 1992. After reviewing the record in the case, including the evidence introduced at the hearing and the posthearing briefs submitted by the parties, the Board issued its Supplemental Decision. 3 Throughout these proceedings, up to and including the issuance of the Board's Supplemental Decision, the Appellant was represented pro se. However, by Notice of Appearance, dated August 9, 1993, Counsel for the Appellant entered an appearance on behalf of the Contractor. 4 Rule 29 provides: "A motion for reconsideration, if filed by either party, shall set forth specifically the ground or grounds relied upon to sustain the motion, and shall be filed within 30 days from the date of the receipt of a copy of the decision of the Board by the party filing the motion." 5 The Respondent does not question the Board's conclusion that the proper basis for calculating termination settlement costs for a requirements contract is the estimated contract price over the life of the contract. R.C. Swanson Printing and Typesetting Company, supra, Supplemental Decision and Order, Sl. op. at 25 (citing, Aviation Specialists Inc., supra, 91-1 BCA ¶ 23,534). This rule applies provided that the Government exercises due care in preparing its estimates. See, Crown Laundry and Dry Cleaners, Inc. v. United States, 39 CCF ¶ 76,575 (Fed.Cl. September 22, 1993); Dynamic Science, Inc., ASBCA No. 29510, 85-1 BCA ¶ 17,710; Huff's Janitorial Service, ASBCA No. 26860, 83-1 BCA ¶ 16,518. 6 The Board is not bound by what the parties call a contract, Ralph Construction, Inc. v. United States, 4 Cl.Ct. 727, 731 (1984) (citing, Torncello v. United States, 681 F.2d 756, 760 (Ct.Cl. 1982); Mason v. United States, 222 Ct.Cl. 436, 444, 615 F.2d 1343, 1346-47 (1980)), and the understanding and actions of officials administering an agreement are not dispositive, Salem Engineering & Construction Corporation v. United States, 2 Cl.Ct. 803, 808 (1983). Thus, in Stanley F. Horton d.b.a T & H Rental & Snow Removal, the Department of Transportation board of contract appeals determined, in the absence of any expression within the agreement denoting that it was a requirements contract, that such a contract existed between the parties nonetheless because the facts showed that the Government, historically, had awarded all snow removal work to the lowest bidder, and the contract in question contained a reservation clause allowing the Government to procure elsewhere in the event of non-performance, which would not be necessary unless the contract was a requirements contract. Stanley F. Horton d.b.a T & H Rental & Snow Removal, DOTCAB No. 1231, 82-2 BCA ¶ 15,967. 7 Pursuant to Title IX of the Federal Courts Administration Act of 1992, Pub. L. No. 102, 106 Stat. 4506 (1992), the United States Claims Court was renamed the United States Court of Federal Claims, effective October 29, 1992.