U.S. GOVERNMENT PRINTING OFFICE
BOARD OF CONTRACT APPEALS
WASHINGTON, D.C. 20401
In the Matter of )
)
The Appeal of )
)
UNIVEX INTERNATIONAL ) Docket No. GPO BCA 23-90
Jacket No. 606-648 )
Purchase Order B-9708 )
SUPPLEMENTAL DECISION ON EXCESS
REPROCUREMENT COSTS AND ORDER
A. Statement of the Case
On February 7, 1996, the Board issued its Decision on Motion for
Reconsideration and Order in the above-captioned appeal of Univex
International (Appellant or Contractor), denying the Appellant's
motion for reconsideration of the Board's July 31, 1995, ruling
upholding the Contracting Officer's default termination of the
contract for a failure to timely deliver an acceptable product,
and rejecting the Appellant's defenses that: (1) the default was
procedurally defective; and (2) the Respondent breached its
implied duty to cooperate with the Contractor in the performance
of the contract. Univex International, GPO BCA 23-90 (February
7, 1996),slip op. at 7-8, 13, 1996 WL 112554, aff'g Univex
International, GPO BCA 23-90 (July 31, 1995), slip. op. at 24,
31, 36, 1995 WL 488438. See GPO Instruction 110.12, Subject:
Board of Contract Appeals Rules of Practice and Procedure, dated
September 17, 1984, Rule 29 (Board Rules). See also GPO Contract
Terms, Solicitation Provisions, Supplemental Specifications, and
Contract Clauses, GPO Publication 310.2, effective December 1,
1987 (Rev. 9-88), ¶ 20(a)(1)(I) (Default). Also rejected by the
Board in the context of its reconsideration ruling was the
Contractor's objection to the Board's decision that the issue
concerning excess reprocurement costs was not ripe for
consideration under the record before it, and therefore the
matter should be remanded to the Contracting Officer for the
submission of further evidence on that question.1 See Univex
International, supra (February 7, 1996), slip op. at 11-12, aff'g
Univex International, supra, (July 31, 1995), slip op. at 33-35
(citing Sterling Printing, Inc., GPO BCA 20-89 (March 28, 1994)
slip op. at 48, 1994 WL 275104, reconsid. denied Sterling
Printing, GPO BCA 20-89 (July 5, 1994), slip op. at 1-2, 1994 WL
377592). However, because the record showed that the Respondent
complied with the Board's remand order on August 29, 1995, and
the Appellant filed its motion for reconsideration on September
6, 1995, the Board believed that the eight (8) day difference was
too short a period of time for the Contractor to marshall its
arguments on the excess cost issue, particularly since those days
also included the Labor Day holiday. See Univex International,
supra (February 7, 1996), slip op. at 12. Consequently, even
though the Appellant's motion for reconsideration on the merits
of the remand was denied, the Board thought that fundamental
notions of justice and fair play dictated an opportunity for the
Contractor to review and respond to the Government's evidence
concerning excess costs. Id. (citing Board Rules, Preface to
Rules, ¶ VI.C. (Administration and Interpretation of Rules)).
Accordingly, the Board granted the Appellant an additional thirty
(30) days from the date it received the reconsideration decision
to submit any evidence or arguments it may have had solely on the
question of excess reprocurement costs, with any reply from the
Respondent being due within fifteen (15) days after receiving a
copy of the Contractor's submission. See Univex International,
supra (February 7, 1996), slip op. at 12-13 (citing Board Rules,
Rule 16).
The Appellant did not submit any additional evidence or arguments
on the excess reprocurement cost issue within the time allowed by
the Board. As a consequence, nothing further was received from
the Government either. Therefore, this supplemental decision is
based on the record, as augmented by the Respondent's Notice of
Filing, dated August 29, 1995, submitting declarations from
Contracting Officer Annamarie T. Mierson, Assistant Manager of
GPO's Philadelphia Regional Printing Procurement Office
(hereinafter Mierson Declaration), and Philip Jones, Chief,
Examination and Billing Branch, Procurement Accounting Division,
Financial Management Services (FMS) (hereinafter Jones
Declaration), as well as other relevant documents which were
attached. See Univex International, supra (February 7, 1996),
slip op. at 2, fn. 1. From the record, the Board concludes that
the Respondent has sustained is burden of proof with regard to
the Appellant's liability for excess reprocurement costs.
B. Discussion
1. As indicated in the Board's principal opinion in this dispute,
the assessment of excess reprocurement costs is considered a
Government claim. See Univex International, supra (July 31,
1995), slip op. at 32 (quoting K.C. Printing Co., GPO BCA 02-91
(February 22, 1995), slip op. at 18, 1995 WL 488531, and citing
Sterling Printing, Inc., supra, slip op. at 50-51). See also Asa
L. Shipman's Sons, Ltd., GPO BCA 06-95 (August 29, 1995), slip
op. at 28, 1995 WL 818784, reconsid. denied February 13, 1996.
The burden is on the Government to show that the repurchase was
proper and to prove its entitlement to the amount of excess costs
claimed. See Univex International, supra (July 31, 1995), slip
op. at 32-33 (quoting K.C. Printing Co., supra, slip op. at 18,
and citing Sterling Printing, Inc., supra, slip op. at 51). The
Government does this by proving five things, namely, that: (a)
the reprocurement contract was performed under substantially the
same terms and conditions as the original contract; (b) it acted
within a reasonable time following default to repurchase the
supplies; (c) it employed a reprocurement method which would
maximize competition under the circumstances; (d) it obtained the
lowest reasonable price; and (e) the work has been completed and
final payment made so that the excess costs assessment is based
upon liability for a sum certain.2 See Univex International,
supra (July 31, 1995), slip op. at 33 (quoting K.C. Printing Co.,
supra, slip op. at 18-19, and citing Sterling Printing, Inc.,
supra, slip op. at 52-53). See also Asa L. Shipman's Sons, Ltd.,
supra, slip op. at 28. Furthermore, each element of the
Government's claim must be supported by record evidence; i.e.,
failure to satisfy even one criterion may result in a reduction
of the excess costs claimed. See Univex International, supra
(July 31, 1995), slip op. at 33 (quoting K.C. Printing Co.,
supra, slip op. at 19, and citing Sterling Printing, Inc., supra,
slip op. at 53-54). See also Asa L. Shipman's Sons, Ltd., supra,
slip op. at 28. All of the necessary elements have been
satisfied by the Respondent in this case.
2. First, the Board's own comparison of the original and
reprocurement contracts leaves no question but that the
reprocurement contractor, Quadra Graphics, was asked to produce
and deliver the identical books as those in the Appellant's
original contract, under essentially the same terms and
conditions. Compare R4 File, Tabs A and Notice of Filing,
Mierson Declaration, Attachment 2. The Appellant does not allege
otherwise. Both the Appellant and Quadra Graphics were asked to
produce 605 copies of a 698-page loose-leaf book with covers, and
one complete set of films for the Department of the Navy. Among
other things, the original and reprocurement contracts described
the same product in terms of trim size, paper weight and color,
ink color, drill hole dimensions and spacing, and gave the same
packing instructions to the contractor. Indeed, the only
observable difference between the two contracts was the
assignment of a new Jacket number (705-869) to the repurchase
contract. Accordingly, the Board concludes that the Respondent
has met the first condition for excess reprocurement costs,
namely, showing that the second contract purchased the same or
similar items, and was performed under substantially the same
terms and conditions as the original contract. See Asa L.
Shipman's Sons, Ltd., supra, slip op. at 29; K.C. Printing Co.,
supra, slip op. at 19; Sterling Printing, Inc., supra, slip op.
at 62-63. Accord B & M Construction, Inc., AGBCA No. 90-165-1,
93-1 BCA ¶ 25,431; Zan Machine Co., ASBCA No. 39462, 91-3 BCA ¶
24,085; Boston Pneumatics, Inc., ASBCA Nos. 26188, 26190, 26825,
26984, 27605, 27606, 87-1 BCA ¶ 19,395.
3. Second, the Board has no trouble in concluding that the
reprocurement was accomplished in a timely fashion. The record
in this case shows that the Appellant's contract was terminated
for default on March 16, 1990. See Notice of Filing, Mierson
Declaration, ¶ 4; R4 File, Tab U. The reprocurement contract was
awarded to Quadra Graphics 18 days later, on April 3, 1990. See
Notice of Filing, Mierson Declaration, ¶ 5, Attachment 2.
Accordingly, on this record the Board finds that the Respondent
acted with reasonable dispatch and without undue delay to
reprocure the defaulted books, and thus it has satisfied its
evidentiary burden for the second criterion. See Asa L.
Shipman's Sons, Ltd., supra, slip op. at 29-30; K.C. Printing
Co., supra, slip op. at 20; Sterling Printing, Inc., supra, slip
op. at 63-65. Accord Astro-Space Laboratories, Inc. v. United
States, 200 Ct.Cl. 282, 470 F.2d 1003 (1972); Puroflow Corp.,
ASBCA No. 36058, 93-3 BCA ¶ 26,191; John L. Hartsoe, AGBCA No.
88-116-1, 93-2 BCA ¶ 25,614; Sequal, Inc., ASBCA No. 30838, 88-1
BCA ¶ 20,382; Disan Corp., ASBCA Nos. 21297, 22221, 79-1 BCA ¶
16,677.
4. Third, the Board believes that the Contracting Officer chose a
reasonable method to repurchase the loose-leaf books. See Asa L.
Shipman's Sons, Ltd., supra, slip op. at 30; K.C. Printing Co.,
supra, slip op. at 20-23. Cf. Sterling Printing, Inc., supra,
slip op. at 73. As a rule, a contracting officer has very broad
discretionary powers in reprocuring items on a defaulted
contract, and the choice of which procurement method to use is
one of them. See Asa L. Shipman's Sons, Ltd., supra, slip op. at
30; Sterling Printing, Inc., supra, slip op. at 17, fn. 25
(citing Astro-Space Laboratories, Inc. v. United States, supra;
Old Dominion Security, Inc., GSBCA No. 9126, 90-2 BCA ¶ 22,745;
Columbia Loose Leaf Corp., GSBCA Nos. 5805(5067)-REIN,
5806(5230)-REIN, 82-1 BCA ¶ 15,464). See also Venice Maid Co.,
Inc. v. United States, 639 F.2d 690 (Ct. Cl. 1980); Zan Machine
Co., supra. Although the Government has an obligation in
reprocuring a defaulted contract to mitigate the defaulted
contractor's excess cost liability by selecting a method that
will maximize competition and obtain the best or lowest
reasonable price under the circumstances, see e.g., Scalf
Engineering, supra, 89-3 BCA at 110,425 (citing Techcraft
Systems, VABCA Nos. 1894, 2027, 86-3 BCA ¶ 19,320); Sequal, Inc.,
supra, 88-1 BCA at 103,067, the law also allows a contracting
officer to limit competition for the repurchase if the situation
demands it-e.g., the Government's need to assure a quick award to
a firm which could begin work almost immediately-since a
reprocurement is technically a purchase for the defaulted
contractor's account, see Asa L. Shipman's Sons, Ltd., supra,
slip op. at 31; Sterling Printing, Inc., supra, slip op. at 67.
Accord William A. Hulett, AGBCA Nos. 91-230-3, 92-133-3,
92-196-3, 93-1 BCA ¶ 25,389, at 126,459; Old Dominion Security,
Inc., supra, 90-2 BCA at 114,165 (citing, Camrex Reliance Paint
Co., GSBCA No. 6870, 85-3 BCA ¶ 18,376; Century Tool Co., GSBCA
No. 3999, 76-1 BCA ¶ 11,850); Sequal, Inc., supra, 88-1 BCA at
103,067.3
The test used in determining the adequacy of a repurchase
solicitation is one of reasonableness, and the burden is on the
Government to prove that it acted reasonably in selecting the
reprocurement method and in mitigating the contractor's excess
costs.4 See Asa L. Shipman's Sons, Ltd., supra, slip op. at 31;
K.C. Printing, supra, slip op. at 21 (citing Sam's Electric Co.,
GSBCA Nos. 9359, 10044, 90-3 BCA ¶ 12,128; Fancy Industries,
Inc., ASBCA No. 26578, 83-2 BCA ¶ 16,659); Sterling Printing,
Inc., supra, slip op. at 67. However, the Government's
obligation to mitigate costs "is not one of perfection, but one
of reasonableness and prudence under the circumstances."5 See
Mid-America Painters, Inc., ENG BCA No. 5703, 91-1 BCA ¶ 23,367,
at 117,232; Barrett Refining Corp., supra, 91-1 BCA at 118,145.
Soliciting those firms which bid on the original procurement is
one commonly used reprocurement method.6 See Asa L. Shipman's
Sons, Ltd., supra, slip op. at 32; K.C. Printing, supra, slip op.
at 22 (citing American Marine Upholstery Co. v. United States,
170 Ct.Cl. 564, 345 F.2d 577 (1965); Mid-America Painters, Inc.,
supra). Indeed, such a mitigation step is considered
presumptively reasonable, even if the reprocurement price itself
seems unreasonable. See Asa L. Shipman's Sons, Ltd., supra, slip
op. at 32; K.C. Printing, supra, slip op. at 22 (citing Mid-
America Painters, Inc., supra); Sterling Printing, Inc., supra,
slip op. at 69-70 (citing Zoda v. United States, 148 Ct. Cl. 49,
180 F.Supp. 419 (1980); United Microwave Co., ASBCA No. 7947,
1963 ¶ 3,701). Cf. American Photographic Industries, Inc., ASBCA
Nos. 29272, 29832, 90-1 BCA ¶ 22,728 (the Government failed to
mitigate damages because it did not contact the second low bidder
on the original contract). In this case, the Contracting Officer
utilized the same small purchase procedures to reprocure the
contract, as she had in making the initial award. See Notice of
Filing, Mierson Declaration, ¶ 5; Attachment 3. Basically, as
with the original contract, five (5) potential contractors were
contacted for the reprocurement, and likewise two (2) offers were
received, including one from Quadra Graphics, the second low
bidder on the original contract. See Notice of Filing, Mierson
Declaration, Attachment 3; R4 File, Tab B. See also Univex
International, supra (July 31, 1995), slip op. at 3, fn. 4. On
the evidence before it, the Board is satisfied that the
reprocurement method chosen by the Respondent was reasonable in
that a sufficient number of potential contractors were contacted
to assure competitive prices, and that further solicitation of
other firms would not have resulted in lower prices and therefore
would have been unnecessary. See K.C. Printing, supra, slip op.
at 22-23 (citing Century Tool Co., GSBCA No. 4007, 78-1 BCA ¶
13,050, at 63,735, reconsid. denied, 78-2 BCA ¶ 13,345; Sterling
Printing, Inc., supra, slip op. at 73). Accordingly, the Board
believes that the Respondent has met its burden with respect to
the third criterion necessary to establish an entitlement to
recovery of excess reprocurement costs against a defaulting
contractor. See K.C. Printing, supra, slip op. at 23 (citing
Sterling Printing, Inc., supra, slip op. at 73).
5. Fourth, mitigation of damages also requires the Government to
show that it obtained the lowest reasonable reprocurement price-
the lowest reasonable price for the Government under
circumstances not the defaulted Contractor.7 See Asa L.
Shipman's Sons, Ltd., supra, slip op. at 35; K.C. Printing Co.,
supra, slip op. at 23-24. Accord Barrett Refining Corp., supra;
Scalf Engineering, supra; Sequal, Inc., supra; Fancy Industries,
Inc., supra. In that regard, the Board has observed that ". . .
the most common method used for recalculating excess costs is
simply to take the difference between the original contract price
and the second low bid on the original contract." See Sterling
Printing, Inc., supra, slip op. at 84-85. Accord Mid-America
Painters, Inc., supra; Sequal, Inc., supra; Fancy Industries,
Inc., supra; Zero-Temp, Inc., ASBCA No. 21590, 78-1 BCA ¶ 13,212.
Under that way of figuring, the Appellant's excess cost liability
would be $2,318.00 (Quadra Graphics' original bid of $16,736.00
minus the contract price of $14,418.00). See R4 File, Tabs A and
B. However, in this case, the Contractor was actually assessed
excess costs of $5,829.40 (the difference between the price paid
to Quadra Graphics for the repurchased work-$20,282.08-and the
Appellant's original bid after certain adjustments were made).
See Notice of Filing, Jones Declaration,¶ 3. Therefore, the
question is whether the extra $2,511.40 is a reasonable
assessment under the circumstances. The Board believes that it
is. First, even though Quadra Graphics' repurchase bid is 43
percent higher than the Appellant's winning bid on the original
contract ($20,514.00 compared to $14,418.00), its original bid
was already 16 percent greater. More importantly, however,
Quadra Graphics' $20,514.00 bid is 16 percent lower than GMC's
offer of $24,372.00-the next lowest reprocurement bid-and the
closeness of the two reprocurement offers indicates a reasonable
market price. See American Kal Enters, Inc., GSBCA No. 4449,
76-2 BCA ¶ 11,929. Second, while Quadra Graphics received the
reprocurement contract at a price 23 percent higher than its bid
on the original contract, the fact remains that the reprocurement
award was made to second low bidder on the original procurement.
See Great Northern Forestry Service, AGBCA 85-260-1, 90-2 BCA ¶
22,668. Besides, it is well-settled that the mere fact of a
significant price increase in the reprocurement does not render
it unreasonable in the face of Government due care and diligence.
See K.C. Printing Co., supra, slip op. at 23. Accord Futura
Systems, Inc., ENG BCA No. 6037, 95-2 BCA ¶ 27,654; Foster
Refrigerator Corp., ASBCA No. 34021, 89-2 BCA ¶ 21,591; Boston
Pneumatics, Inc., supra; Fancy Industries, Inc., supra. Third,
this is not a situation where the reprocurement occurred shortly
after the original award; i.e., nearly eight (8) months elapsed
between the time the Appellant received the original contract
(August 23, 1989) and the date Quadra Graphics was given the
repurchase agreement (April 3, 1990). Cf. Century Tool Co.,
GSBCA No. 4000, 76-1 BCA ¶ 11,855 (no mitigation where
reprocurement unit price was three (3) cents greater than a bid
by same contractor two weeks earlier); International Technology
Corp., B-250377.5, 93-2 CPD ¶ 102 (original offers satisfied
competition requirement where only a few months had passed
between the default termination and original competition for a
hazardous waste management contract). Indeed, the Board has
upheld repurchase awards at prices significantly higher than the
original contract where less time has passed between the initial
award and the reprocurement. See Asa L. Shipman's Sons, Ltd.,
supra (contract price 39 percent higher on reprocurement made
three (3) months after the original award); K.C. Printing Co.,
supra (contract price three times higher on reprocurement made
less than two (2) months after original award). Finally, the
Appellant has not objected to the Respondent's excess
reprocurement cost figure of $5,829.40,8 and in the absence of
such a challenge the Government's cost assessment is presumed to
be correct. See Pickett Enterprises, Inc., GSBCA No. 9472, 9890,
10051, 10102, 10426, 92-1 BCA ¶ 24,668. Accordingly, the Board
finds that the Respondent has carried its evidentiary burden of
showing that the excess reprocurement costs assessed in this case
mitigated the Appellant's liability and represented the lowest
reasonable price for the Government under the circumstances. See
Asa L. Shipman's Sons, Ltd., supra, slip op. at 36; K.C. Printing
Co., supra, slip op. at 25. Cf. Sterling Printing, Inc., supra,
slip op. at 77.
6. Finally, in order to establish a right to excess reprocurement
costs, the Government must demonstrate that the repurchased work
has been completed, and final payment made to the reprocurement
contractor so that the excess costs assessment is based upon
liability for a sum certain. See Asa L. Shipman's Sons, Ltd.,
supra, slip op. at 36 (citing Whitlock Corp. v. United States,
141 Ct. Cl. 758, 159 F.Supp. 602 (1958), cert. denied, 358 U.S.
815 (1958); John L. Hartsoe, supra; Lafayette Coal Co., ASBCA
Nos. 32174, 33311, 87-3 BCA ¶ 20,116). See also K.C. Printing
Co., supra, slip op. at 25-26; Sterling Printing, Inc., supra,
slip op. at 78. Where the Government fails to offer evidence
that a reprocurement contract was awarded, performed, or paid
for, the assessment of excess costs against a defaulted
contractor will be denied. See Sterling Printing, Inc., supra,
slip op. at 85. Accord, Patty Armfield, AGBCA Nos. 91-185-1,
92-141-1, 92-143-1, 93-1 BCA ¶ 25,235; Pyramid Packing, Inc.,
AGBCA No. 86-128-1, 92-2 BCA ¶ 24,831; Scalf Engineering, supra.
Here, the relevant documentation presented by the Respondent
consists of: (a) Quadra Graphics' reprocurement contract (Notice
of Filing, Mierson Declaration, Attachment 2); (b) the Compliance
Officer's memorandum, dated April 4, 1990, informing the FMS that
the Appellant's defaulted contract had been reprocured for
$20,514.00 and asking that the excess costs be charged to the
Contractor (Notice of Filing, Mierson Declaration, Attachment 4);
(c) a statement from FMS' Chief, Examination and Billing Branch,
Procurement Accounting Division, that Quadra Graphics had been
paid $20,282.08 for the completed work by Treasury Check No.
30,499,167 on June 20, 1990, and assessing $5,829.40 against the
Appellant's as its excess cost obligation (Notice of Filing,
Jones Declaration,¶ 3); and (d) a computer printout of the
payment history for the repurchased job (Notice of Filing, Jones
Declaration,¶ 4, Attachment). In the Board's view, this evidence
is sufficient to prove that Quadra Graphics was awarded the
contract, produced and delivered the books, and received final
payment for the work. Accordingly, the Board finds that the
Respondent has carried its burden of proof with respect to the
last element necessary to establish its entitlement to excess
reprocurement costs. See Asa L. Shipman's Sons, Ltd., supra,
slip op. at 37; K.C. Printing Co., supra, slip op. at 26. Cf.
Sterling Printing, Inc., supra, slip op. at 83. Also cf. Patty
Armfield, supra; Pyramid Packing, Inc., supra; Scalf Engineering,
supra.
ORDER
Considering the record as a whole, the Board finds and concludes
that the Respondent has sustained is burden of proof with regard
to the Appellant's liability for excess reprocurement costs.
THEREFORE, the Government's assessment is hereby AFFIRMED, and
the appeal is DENIED.
It is so Ordered.
July 5, 1996 STUART M. FOSS
Administrative Judge
_______________
1 The Appellant challenged the Board's ruling on two grounds: (a)
the Board's remand order violated the well-settled rule against
acceptance of evidence after the record is settled; and (b) any
remand should be equally available to the Appellant for the
purpose of providing additional proof on its efforts to perform
and on the Government's breach of its implied duty to cooperate.
The Board agreed with the Contractor that, generally, absent
unusual circumstances, evidence proffered for admission after the
record has been settled is not be accepted. See Univex
International, supra (February 7, 1996), slip op. at 11-12
(citing Goetz Demolition Co., ASBCA Nos. 40605, 41346, 93-2 BCA ¶
25,886; Sunshine Cordage Corp., supra, 90-1 BCA ¶ 22,572; Scalf
Engineering Co. & Pike County Construction Co., a Joint Venture,
IBCA No. 2328, 89-3 BCA ¶ 21,950, reconsid. denied 89-3 BCA ¶
22,221 (hereinafter Scalf Engineering); USD Technologies, Inc.,
ASBCA No. 31305, 87-2 BCA ¶ 19,680, aff'd 845 F.2d 1033 (Fed.
Cir. 1988); Jim Davis, AGBCA Nos. 86-103-1, 86-104-1, 86-1 BCA ¶
18,634 (the rule applies equally to an appeal without a hearing);
Sequal, Inc., ASBCA No. 29119, 85-3 BCA ¶ 18,366). Indeed, that
principle is specifically incorporated in the Board Rules, see
Board Rules, Rule 13(b), and has been applied by the Board in
appropriate circumstances, see Professional Printing of Kansas,
Inc., GPO BCA 02-93 (May 19, 1995), slip op. at 29, fn. 43, 1995
WL 488488; Sterling Printing, supra (July 5, 1994), slip. op. at
12. However, the Board also observed that by its terms, the rule
operates only against a party who wishes to introduce additional
evidence, and the Board is not a party to the litigation. See
Univex International, supra (February 7, 1996), slip op. at 10
(citing Sterling Printing, supra (July 5, 1994) slip. op. at 6;
Zinger Construction Co., Inc., GSBCA No. 11039-R, 92-3 BCA ¶
25,039, at 124,815). In the Board's view, it had inherent power
to reopen the record on its own, and when it remanded the matter
to the Respondent for submission of additional evidence on the
issue of excess reprocurement costs in this case, it was merely
following a course already laid out by the Armed Services Board
of Contract Appeals. See Univex International, supra (February
7, 1996), slip op. at 10-11 (citing Marmac Industries, Inc.,
ASBCA Nos. 23590, 24029, 24502, 24503, 84-1 BCA ¶ 17,098, at
85,108). Accordingly, there was nothing in the Appellant's
objection which would establish any error on the part of the
Board so as to justify a reversal of its opinion. See Univex
International, supra (February 7, 1996), slip op. at 11-12
(citing Sterling Printing, supra (July 5, 1994) slip op. at 5-6;
Graphic Litho, Inc., GPO BCA 17-85 (September 30, 1988), Order
Denying Appellant's Motion for Reconsideration, slip op. at 4-5;
Castillo Printing Co., GPO BCA 10-90 (March 30, 1992), Decision
on Motion for Reconsideration and Order, slip. op. at 7;
Pennsylvania Printed Products, Inc., GPO BCA 29-87 (June 7,
1990), Order Denying Respondent's Motion for Reconsideration,
slip op. at 2-3).
2 Whether the Government's repurchase was improper, and if
so, what is the amount of reasonable excess costs under the
circumstances, are questions of fact. See Sterling
Printing, Inc., supra, slip op. at 50 (citing, Cable Systems
and Assembly Co., ASBCA No. 17844, 73-2 BCA ¶ 10,172, at
47,892).
3 GPO procedures are consistent with the general practice in
Government reprocurements. See Printing Procurement
Regulation, GPO Publication 305.3 (Rev. 10-90), Chap. XIV,
Sec. 1, ¶ 3.f.(2).
4 In most cases, the Government satisfies this burden by showing
that it used sealed bid advertising to repurchase defaulted
supplies and services. See e.g., H & H Manufacturing Co. v.
United States, 168 Ct. Cl. 873 (1964); Lester Brothers, Inc. v.
United States, 151 Ct. Cl. 536 (1960); Star Food Processing,
Inc., ASBCA Nos. 34161, 34163, 34164, 34165, 35544, 35545, 35546,
35547, 90-1 BCA ¶ 22,390; Erickson Enterprises, AGBCA 77-168,
79-1 BCA ¶ 13,628.
5 This duty is to be carried out within the confines of Federal
procurement statutes, regulations, policies and directives, and
in pursuit of the Government's own best interests, whether or not
that results in a lower price for a defaulted contractor. See
Barrett Refining Corp., ASBCA Nos. 36590, 37093, 91-1 BCA ¶
23,566, at 118,145.
6 In fact, if the Government fails to make a reasonable effort at
contacting the original bidders, the result may result in a
denial or reduction of the excess cost assessment. See Asa L.
Shipman's Sons, Ltd., supra, slip op. at 32, fn. 32; K.C.
Printing, supra, slip op. at 22, fn. 23 (citing Associated
Cleaning, Inc., GSBCA No. 8320, 91-1 BCA ¶ 23,360; Old Dominion
Security, Inc., supra; Barrett Chemical Co., Inc., GSBCA No.
4544, 77-2 BCA ¶ 12,625). Basically, the law creates a
rebuttable presumption that the repurchase could have been
completed at the price previously quoted by a lower bidder if an
effort had been made to do so. See Dillon Tool Maintenance, Inc.
v. United States, 218 Ct.Cl. 732 (1978); AAA Janitorial Services,
ASBCA No. 9603, 67-1 BCA ¶ 6,091.
7 In fulfilling the obligation to secure the best price for
the Government, a contracting officer must follow the same
standard of reasonableness and prudence under the
circumstances which he/she exercised in the timing and
selecting of the method of reprocurement. See William A.
Hulett, supra; Barrett Refining Corp., supra; Mid-America
Painters, Inc., supra.
8 In the principal decision in this case, the Board noted that
the Contractor mistakenly believed that it was responsible for
the entire amount of the repurchase contract, and that the
maximum extent of its excess costs liability was nearer
$5,685.72, which represented the difference between the
Appellant's winning bid of $14,418.00 for the original contract
and Quadra Graphics reprocurement offer of $20,103.72 (the
$20,514.00 repurchase price less the 2 percent prompt payment
discount). See Univex International, supra (July 31, 1995), slip
op. at 35, fn. 33. As it turns out, the Respondent's excess
costs assessment and the Board's estimate only differs by
$143.68, or less than 3 percent-a de minimis amount in the
context of this case.