U.S. GOVERNMENT PRINTING OFFICE
BOARD OF CONTRACT APPEALS
WASHINGTON, DC 20401
In the Matter of )
)
The Appeal of )
)
NEW SOUTH PRESS ) Docket No. GPO BCA 45-92
Jacket No. 635-994 )
Purchase Order F-1491 )
DECISION AND ORDER
By letter dated November 16, 1992, New South Press (Appellant
or Contractor), 3885 North Palafox Street, Pensacola, Florida
32505, filed a timely appeal from the November 12, 1992, final
decision of Contracting Officer Douglas M. Faour, of the U.S.
Government Printing Office's (Respondent or GPO or Government)
Atlanta Regional Printing Procurement Office (ARPPO), 1888
Emery Street NW., Suite 110, Atlanta, Georgia 30318-2536,
rejecting the Appellant's equitable adjustment claim in the
amount of $2,000.00,1 under its contract identified as Jacket
No. 635-994, Purchase Order F-1491, because of the
Respondent's delay in supplying Government-furnished materials
(GFM) (R4 File, Tabs D, L and M).2 For the reasons which
follow, the decision of the Contracting Officer is hereby
AFFIRMED, and the appeal is DISMISSED.3
I. FINDINGS OF FACT4
1. On July 10, 1992, the Respondent awarded the Appellant a
contract for the production of 12 pamphlets of various case
studies for the Centers for Disease Control (CDC) (R4 File,
Tab A, pp. 6, 8). Insofar as is pertinent to this appeal, the
contract terms provided:
Any contract which results from this Invitation for Bid
will be subject to the applicable articles of [GPO Contract
Terms] . . .
PRODUCT: 11 pamphlets at 7,017 copies and 1 pamphlet at
50,017 copies. All pamphlets are saddle stitched and range
from 20 to 28 pages each.
* * * * * * * * * *
GOVERNMENT TO FURNISH: Camera copy, 8-1/2 x 11" copy black
on white.
One reproduction proof (image size 7-7/8 c 6-1/8") for
shipping container labels.
Identification markings such as register marks, ring
folios, rubber stamped jacket numbers, commercial
identification marks of any kind, etc., except GPO imprint,
form number, and revision date, carried on copy or film,
must not print on finished product.
* * * * * * * * * *
PRINTING: Covers 1 thru 4 with text pages as follows:
JUNE
Pamphlets Pages Copies ID Number
7 20 7,017 0093503
8 24 7,017 0993504
9 24 7,017 0992505
10 24 7,017 0993506
12 20 7,017 0993508
13 20 7,017 0993509
4 24 7,017 0993400
17 28 7,017 0993673
JULY
18 28 7,017 0993669
19 28 7,017 0993668
20 28 7,017 0993672
1 28 50,017 0993678
* * * * * * * * * *
SCHEDULE: Government furnished materials for the first
eight (8) pamphlets will be available for pickup July 9,
1992. Pick up at the Atlanta RPPO, 1888 Emery St., NW., 2
Park Place, Suite 110, Atlanta, GA 30318. The Government
furnished materials for the next four (4) pamphlets will be
available for pickup at the same location in July 1992.
Deliver the first 8 pamphlets July 24, 1992 with the
balance of pamphlets being delivered at destination 10 days
after pickup of copy.
See, R4 File, Tab A, pp. 1, 6, 8. [Emphasis added.]
2. Contrary to the terms of the contract, the GFM for the
first eight pamphlets was not available for pickup July 9,
1992. Instead the Appellant received the GFM for those
pamphlets on or about July 13, 1992, and the delivery date was
extended to July 27, 1992, to accommodate for the delay (R4
File, Tab B).5 Thereafter, the Contractor completed the job
on the first eight pamphlets and made a timely delivery to the
CDC.
3. Under the contract's terms, the GFM for the remaining four
pamphlets-Pamphlet Nos. 1, 18, 19, and 20-was to be available
for pickup sometime in July 1992 (R4 File, Tabs A, p. 8, and
D). However, when the GFM was not ready for the Appellant by
the end of that month, the Contractor sent the following
facsimile message to the Contracting Officer on or about
August 13, 1992:
We received the first 8 pamphlets on July 13th, and have
completed and delivered them. The balance of the pamphlets
were to be ready for pick up before 7/31/92/ As of 8/13/92
the above jobs will be 8 days late. Since all four books
have a critical delivery we had left press and bindery
windows open in our schedule, of which 4 days could not be
filled. At a rate of 500.00 per day, the charge would be
2,000.00 for the four days.
Please contact me and let know when the pamphlets will be
ready to be picked up.
Please check the appropriate line and fax back a signed
copy of this form.6 Our number is (904) 434-8471.
See, R4 File, Tab D. [Emphasis added.]
4. After conferring with Douglas M. Faour, the ARPPO Manager,
Gary Bush, the Contracting Officer for this contract, refused
to authorize the Appellant's request to be paid for idle press
time on the ground that the matter was covered by GPO Contract
Terms, and besides the Government had not given its permission
for the Contractor to hold its press open (R4 File, Tab D).
5. Thereafter, on August 27, 1992, the Contracting Officer
sent the Appellant the GFM for two of the four remaining
pamphlets-Pamphlet Nos. 19 and 20-and established a delivery
date for those jobs of September 14, 1992 (R4 File, Tab E).
The Contractor was also advised that the GFM for the last two
pamphlets would be made available when received from the CDC
(R4 File, Tab E). The following day, the Appellant telephoned
the Contracting Officer and asked for additional time, and by
Contract Modification No. 1, dated September 1, 1992, the
delivery date for Pamphlet Nos. 19 and 20 was extended to
September 18, 1992 (R4 File, Tabs F and G).7 As noted in
Contract Modification No. 1, the adjustment in the delivery
date was made ". . . due to scheduling problems that resulted
from Government delay in providing camera copy to the
contractor." See, R4 File, Tab G.
6. On September 29, 1992, the Appellant was notified that the
GFM for the last two pamphlets-Pamphlet Nos. 1 and 18-was
available for pick up (R4 File, Tab E). The parties initially
agreed to a delivery date of October 26, 1992 for these
pamphlets, which was confirmed by Contract Modification No. 2
(R4 File, Tabs E and H). However, the delivery date was
subsequently revised to November 9, 1992 (R4 File, Tab K).
7. One reason for the Appellant's need for additional time
was the CDC had made certain author's alterations in three of
the pamphlets, i.e., Pamphlet Nos. 1, 19 and 20.
Specifically, the number of pages in Pamphlet No. 1 was
increased from 28 to 32, while the number of pages in Pamphlet
Nos. 19 and 20 was reduced by eight and four pages,
respectively. As a result of these alterations, the
Respondent issued Contract Modification No. 3 which increased
the contract price of Pamphlet No. 1 by $1,790.00, and
decreased the contract price of Pamphlet Nos. 19 and 20 by a
total of $639.95 (R4 File, Tabs F, J and K).8
8. It is undisputed that the Contractor completed the job on
the remaining four pamphlets and delivered them to the CDC in
accordance with the revised schedule.
9. On November 10, 1992, after the contract was completed,
the Appellant sent the following facsimile message to the
Contract Officer:
We bid the above jacket on 7/7/92 for which we were to
receive books on 7/9/92. We finnaly [sic] received the
first of the 8 books on 7/14/92. These books were printed
and delivered on 7/27/92. The balance of the 4 books,
according to the contract were to be received July 1992,
and in order to comply with the contract we left the window
open to receive and produce the books.
On 8/14/92 we sent a fax to your office in reference to the
balance of the books and the fact that we held a window
open for the same (I am enclosing a copy of this fax).
Your reply was also received the same day and is also
attached.
When the jobs were finally received, two on 8/28/92 and two
on 10/1/92 we turned them around in a timely fashion.
However, one full shift in our pressroom was initially
lost, which could not be filled quickly enough when it was
evident that the balance of the books would not be on time.
That shift loss cost our plant $2000.00 in lost production.
New South hereby requests the agent [sic] to pay for the
above losses. If additional information is necessary
kindly advise.
Please check the appropriate line and fax back a signed
copy of this form.9 Our number is (904) 434-8471.
See, R4 File, Tab L. [Emphasis added.]
10. By letter dated November 12, 1992, the ARPPO
Manager/Contracting Officer denied the Appellant's request to
be paid for idle press time (R4 File, Tab M). The reason
given for his decision was succinctly stated in his letter,
namely:
Please refer to Contract Terms, Contract Clauses, page 15,
(c) Extension of schedules. The schedule was adjusted as
requested by you. Therefore, no payment due to Government
delay will be paid for Purchase Order F 1491, Jacket
635-994.
See, R4 File, Tab M.
11. On November 16, 1992, the Appellant timely appealed the
Contracting Officer's decision to the Board.
II. ISSUES PRESENTED
At the prehearing telephone conference, the following issue
was identified for resolution in this threshold proceeding:
Where the Government does not have the GFM ready for the
Appellant by the date specified in the contract, does the
"Extension of Schedules" clause in GPO Contract Terms
provide the exclusive remedy, or is the Contractor also
entitled to compensation for the delay under some other
clause?
See, RPTC, p. 3.10
III. POSITIONS OF THE PARTIES11
The crux of the Appellant's position at this stage of the case
is that because the late delivery of the GFM for Pamphlet Nos.
1, 18, 19, and 20 was caused by the Government's changes to
those publications, GPO's standard "Changes" clause entitles
it to reimbursement for unabsorbed overhead resulting from the
delay.12 App. Brf., pp. 3, 4. The Appellant contends that
where a contractor's costs under a fixed-price contract are
increased by the Government's dilatory conduct, the
authorities hold that it may be compensated for any financial
inconvenience caused by the delay, App. Brf., p. 3 (citing,
Cibinic and Nash, Chap. 6 (Delays), provided that it proves,
by credible evidence, that it was impossible or impractical to
obtain new work to absorb overhead or pay facilities costs
during the period of delay, id. (citing, Capital Electric
Company v. United States, 729 F.2d 743 (Fed.Cir. 1984); J.W.
Cook & Sons, Inc., ASBCA No. 39691, 92-3 BCA ¶ 25,053, at
124,863).
The Contractor relies heavily on the Board's decision in Banta
Company to support its position on the entitlement issue. Id.
(citing, Banta Company, GPO BCA 03-91 (November 15, 1993), Sl.
op. at 30-32). In that regard, the Appellant sees Banta
Company as standing for the proposition that, contrary to the
Respondent's belief, the contract's "Extension of Schedules"
clause is not the exclusive remedy available to contractors
adversely affected by Government delays. Id. See, GPO
Contract Terms, Contract Clauses, ¶ 12(c). The Contractor
argues that Banta Company is factually similar to this appeal
in most respects, and thus the Board's holding in that case is
dispositive of the legal issue here. App. Brf., pp. 3-4.
Accordingly, the Appellant urges the Board to find, as a
threshold matter, that the Contractor is entitled to
compensation under the "Changes" clause for the press downtime
caused by the Government's delayed delivery of the GFM, and it
also asks the Board to direct the parties to proceed with
discovery on the question of recoverable costs. App. Brf., p.
4.
The Respondent, on the other hand, while admitting that the
Government was responsible for the delay in delivering the GFM
to the Contractor, contends that the Appellant's reimbursement
demand is really a breach of contract claim which cannot be
considered under the "Changes" clause. R. Brf., p. 1.
Furthermore, the Respondent reminds the Board that it is
without jurisdiction to hear claims for breach of contract
because GPO is a Legislative branch agency, and hence is not
covered by the Contract Disputes Act (CDA), Pub. L. 95-563
(November 1, 1978), 92 Stat. 2383, 41 U.S.C. §§ 601, 606. R.
Brf., pp. 1-2 (citing, The Wessel Company, supra; United
States v. Utah Construction and Mining Company, 384 U.S. 394
(1966); Harbor Printing & Copy Service, Inc., GPOCAB No. 77-5
(1977); Cloverleaf Enterprises, Inc., GPOCAB No. 79-12 (1980);
and Information Systems, Inc., GPOCAB No. 78-11 (1979)).13
Thus, the Respondent contends that the Appellant's sole remedy
is to be found within the contract itself, namely, in the
clause which provides for an automatic extension of the
delivery schedule in the event of a delay caused by "any
action" of the Government. RPTC, p. 2; R. Brf., p. 2 (citing,
United States v. Rice, 317 U.S. 61 (1942)). See, GPO Contract
Terms, Contract Clauses, ¶ 12(c). Since such an extension was
granted to the Appellant in this case-indeed, the Contractor
received additional time, at its request-it has received the
full relief allowed by the contract.14 RPTC, p. 2; R. Brf.,
p. 3; Res. R. Brf., p. 4. See, R4 File, Tabs G and H.
As for the Appellant's reliance on the Board's decision in
Banta Company, the Respondent believes that it is misplaced.
Res. R. Brf., p. 1. In the Respondent's view, this case is
distinguishable from Banta Company because the Contractor here
has not shown any nexus between the alterations to the number
of text pages ordered by the Government and the delay
experienced by the contractor.15 Res. R. Brf., p. 2 (citing,
Banta Company, supra, Sl. op. at 33). Instead, the record
discloses simple tardiness by the Government in furnishing the
GFM, or the sort of "naked delay" not compensable under the
"Changes" clause. Id. (citing, Banta Company, supra, Sl. op.
at 31-32). For the same reason, the Respondent believes that
the Contractor's reliance on J.W. Cook & Sons, Inc., supra,
and Capital Electric Company v. United States, supra, is
equally unavailing; i.e., both decisions are anchored in two
contract clauses-the "Suspension of Work" clause (FAR §
52.212-12) and the "Protest After Award" clause (FAR §
52.233-3)-which explicitly allow a contracting officer to
equitably adjust the contract price to compensate for the
costs associated with a Government-caused delay, but which are
not present in this appeal. Res. R. Brf., pp. 2-3 (citing,
Capital Electric Company v. United States, supra, 758 F.2d at
744 ("Suspension of Work" clause); J.W. Cook & Sons, Inc.,
supra, 92-3 BCA ¶ 25,053 at 124,863 ("Protest After Award"
clause)). Here, instead, the applicable GPO contract clause
only provides for an automatic extension of the delivery
schedule when the contractor experiences a delay in the
Government's making the GFM available for contract
performance. Res. R. Brf., p. 3. Accordingly, as the
requisite schedule adjustment was received by the Appellant,
the Respondent believes argues that no further relief is
authorized and the appeal should be denied in its entirety.
RPTC, p. 2; Res. R. Brf., p. 4.
IV. DECISION16
As a rule, absent facts or a clause allowing otherwise, a
contractor bears the risk of performance costs in a firm
fixed-price contract. See, Web Business Forms, Inc., GPO BCA
16-89 (September 30, 1994), Sl. op. at 23 (citing, D.K.'s
Precision and Manufacturing, ASBCA No. 39616, 90-2 BCA ¶
22,830; Chevron U.S.A., Inc., ASBCA No. 32323, 90-1 BCA ¶
22,602; Nedlog Company, ASBCA No. 26034, 82-1 BCA ¶ 15,519).
In this threshold proceeding, the Board is asked to decide
whether, as a matter of law, the Appellant can recover its
downtime costs under GPO's standard "Changes" clause for the
delay caused by the Government's late delivery of the GFM for
Pamphlet Nos. 1, 18, 19, and 20, if it can prove its claim.17
GPO Contract Terms, Contract Clauses, ¶ 4. On one side of
this question is the Appellant, who claims an entitlement to
compensation based on the standard GPO "Changes" clause.
See, GPO Contract Terms, Contract Clauses, ¶ 4. On the other
side is the Respondent, who argues that the automatic
extension of the delivery schedule received by the Contractor
by virtue of the "Extension of Schedules" clause, is the
exclusive remedy for the delay.18 See, GPO Contract Terms,
Contract Clauses, ¶ 12(c)(1). Although both sides cite the
Board's decision in Banta Company, they disagree on whether
that opinion answers the issue in this proceeding; i.e., the
Appellant sees that decision as controlling, while the
Respondent thinks Banta Company has no application whatsoever.
Therefore, this dispute provides the Board with a convenient
vehicle to clarify its holding in Banta Company and describe
the circumstances in which it applies.
The controversy in Banta Company arose out of two contracts
awarded by GPO for the production of separate tax booklets for
the Internal Revenue Service. Apart from being covered by GPO
Contract Terms, both contracts contained a clause which
instructed the Government to negotiate supplemental agreements
with the contractor for contract changes. Banta Company,
supra, Sl. op. at 4-5, 20. As originally ordered by the
Government, the contractor was to print 4,701,000 copies of
one tax booklet consisting of 88 pages, and 911,000 copies of
the other one, a 120 page IRS publication.19 After the
contractor had submitted the pre-production samples of both
tax booklets to GPO, and the agency had approved them, the
Government issued change orders reducing the number of pages
in each booklet from 88 to 80 and from 120 to 112,
respectively. The parties stipulated that the change orders
required the contractor to revise its production plans,
reconfigure its presses, "slit" the already manufactured paper
stock to fit those new press and forms configurations, and
employ extra press crews to handle the additional roll changes
required by the use of smaller paper rolls, all of which
substantially increased the contractor's manufacturing
costs.20 Id., Sl. op. at 5-7. Furthermore, the parties
agreed that the Government's late delivery of the revised
camera copy for the 80 page tax booklet also resulted in
increased costs because, among other things, it disrupted the
contractor's printing operations.21 Id., Sl. op. 7, 10, fn.
11. Following completion of both printing jobs, the
contractor submitted two equitable adjustment claims to the
contracting officer, including one which asked for
compensation for the late arrival of the GFM for the 80 page
tax booklet. Id., Sl. op. at 8. On the recommendation of
GPO's Office of the Inspector General (OIG), which audited the
claims and found that the contractor had bid both contracts at
a loss, the contracting officer employed the "total cost"
method of cost accounting to recover money from the contractor
instead of awarding it an equitable adjustment.22 Id., Sl.
op. at 12-13. Before the Board the contractor contended,
inter alia, that: (1) the Government's use of the "total cost"
approach to determine the contractor's equitable adjustment
was inappropriate; and (2) under express language in the
contract specifications, the Government's late delivery of the
GFM was a "change" within the meaning of the "Changes" clause
in GPO Contract Terms, thus, entitling the contractor to
compensation for the delay. Banta Company, supra, Sl. op. at
16. In the process of defending its choice of the "total
cost" technique, GPO also contested its liability for late
delivery of the revised camera copy with essentially the same
arguments it makes in this case, namely, the Board has no
authority to decide breach of contract claims, and the only
remedy available to the contractor was an extension of the
delivery schedule under the relevant clause in GPO Contract
Terms. Banta Company, supra, Sl. op. at 20-21.
On these facts, the Board held, for the first time, that the
"Changes" clause in GPO Contract Terms provided a basis for
compensating a contractor whose production costs were
increased by the delay resulting from the Government's late
delivery of the GFM, and that an automatic adjustment of the
delivery schedule pursuant to the "Extension of Schedules"
clause was not an exclusive remedy for such dilatory
conduct.23 Banta Company, supra, Sl. op. at 35. In
explaining its decision, the Board reasoned, in pertinent
part, as follows:
The Board's examination of cases involving contractor
claims for the recovery of delay and impact costs, teaches
it that a vital consideration is the timing of the delay
with respect to the Government-ordered change. In the
simplest situation, extra costs stemming from a "naked"
delay, that is, a disruption of work resulting from some
Government action which does not physically change the work
under the contract, are usually not recoverable under the
standard "Changes" clause. [Footnote omitted.] See, Model
Engineering & Manufacturing Corporation, ASBCA No. 7490,
1962 BCA ¶ 3,363; Weldfab, Inc., IBCA No. 268, 61-2 BCA ¶
3,121. Also cf., Editors Press Incorporated, GPO BCA 03-90
(September 4, 1991), Sl. op. at 18-19. . . . On the other
hand, the cases hold that if a delay occurs from some
Government action after a change order is issued, the
contractor may recover delay and impact costs for both
changed and unchanged work. Thus, the ASBCA has ruled
that:
Where costs in a work item are increased as a direct
result of a change in that item, the increased costs are
compensable, including costs of delays in performance in
the change order. [Emphasis added.]
Power Equipment Corporation, ASBCA No. 5904, 1964 BCA ¶
4,025, at 19,815, mot. for reconsid. denied, 1964 BCA ¶
4,228. See also, Coastal Drydock and Repair Corporation,
ASBCA No. 36754, 91-1 BCA ¶ 23,324, at 117, 002 (increased
cost of disrupted unchanged work flowing directly from the
change is compensable under the "Changes" clause); Merritt-
Chapman and Scott v. United States, 192 Ct.Cl. 851, 429
F.2d 431 (1970); Paul Hardeman, Inc. v. United States, 186
Ct.Cl. 743, 752, 406 F.2d 1357 (1969) (concurring opinion
of Judge Davis). [Footnote omitted.] See generally,
Cibinic and Nash, pp. 525-26. In other words, recovery is
allowed if there is a clear nexus between the change
ordered by the Government and the delay experienced by the
contractor.
The reason why recovery is allowed for the contractor's
delay and disruption costs which are the direct and
necessary result of the Government's change order, can be
found in the language of the "Changes" clause itself. See,
Cibinic and Nash, p. 524. In that regard, the standard
"Changes" clause for fixed-priced contracts provides, in
pertinent part:
(b) If any change causes an increase or decrease in the
cost of, or the time required for, performance of any
part of the work, whether or not changed by the order,
the Contracting Officer shall make an equitable
adjustment in the contract price, the delivery schedule,
or both, and shall modify the contract.
See, FAR § 52.243-1 (Changes-Fixed-Price). The drafters of
the clause, which first appeared in the 1967 revision to
the FAR, stated that under this language:
[A]n equitable adjustment clearly encompasses the effect
of a change order upon any part of the work, including
delay expense, provided, of course, that such effect was
the necessary, reasonable, and foreseeable result of the
change. [Emphasis added.]
See, 32 Fed. Reg. 16269 (1967).
Even a cursory examination of GPO's "Changes" clause, which
was incorporated by reference in both contracts here,
discloses that the language is identical to the wording of
the FAR "Changes" clause. GPO Contract Terms, Contract
Clauses, ¶ 4(b). Under settled rules of construction, the
Board must presume that when the drafters of GPO's
"Changes" clause adopted the FAR language verbatim, they
also accepted the uniform interpretation given to those
words by the 1967 revision committee, Executive branch
contract appeals boards, and the courts. Cf., United
States v. Aguon, 851 F.2d 1158 (9th Cir. 1988); Van Cleef
v. Aeroflex Corporation, 657 F.2d 1094 (9th Cir. 1981);
L.B. Foster v. Railroad Service, Inc., 734 F.Supp. 818
(N.D. Ill. 1990). Furthermore, the cost accounting
principles governing GPO contracts reenforce the Board's
belief that GPO's "Changes" clause is intended to apply to
a contractor's delay and disruption costs flowing from
Government changes to the contract. In that regard, the
applicable accounting rules provide that payment for
equipment downtime is allowable if, inter alia, the
machinery was necessary when acquired and is now idle
because of changes in requirements, production economies,
reorganization, termination, or other causes which could
not have been foreseen. [Footnote omitted.] [Citing, GPO
Contract Cost Principles, p. 22, ¶ 25(b)(2) (Idle
facilities and idle capacity costs).] Therefore, the Board
concludes that GPO's standard "Changes" clause, like the
parallel provision in the FAR, allows a contractor to
recover compensation for delay expenses stemming from a
change order upon any part of the work as part of an
equitable adjustment. [Footnote omitted.]
See, Banta Company, supra, Sl. op. at 31-35.
In this case, there is no doubt that the Government altered
the number of pages in Pamphlet Nos. 1, 19 and 20, and that
the time it took to do so resulted in late delivery of the GFM
for those publications to the Appellant.24 Therefore, the
issue in this case boils down to a question of whether that is
enough, standing alone, to give rise to an obligation on the
part of the Respondent to compensate the Contractor for its
downtime costs stemming from that delay. The Board believes
not. When the Board measures the facts here against the
principles set forth above, it is compelled to conclude that
this is simply not a Banta Company situation.
Thus, the record shows that under the terms of the Appellant's
contract the GFM for Pamphlet Nos. 1, 18, 19, and 20 was to be
ready for pickup sometime in late July 1992 (Factual Finding
No. 2). However, the camera copy for the last four booklets
was not available then (Factual Finding No. 3), but instead
the GFM for Pamphlet Nos. 19 and 20 was delivered to the
Appellant on August 27, 1992, and the camera copy for Pamphlet
Nos. 1 and 18 was made available on September 29, 1992
(Factual Finding Nos. 5 and 6). While the Government changed
the number of text pages in three of the publications
(Pamphlet Nos. 1, 19 and 20) and it was solely to blame for
the delayed delivery of the revised camera copy (Factual
Finding No. 5), it is also clear that until that time the
Appellant had performed no work whatsoever toward producing
those booklets. In that regard, the single most important
distinction between Banta Company and the Appellant's
situation here is that in Banta Company the contractor had
already performed substantial work on the publications ordered
by the Government. See, KRW, Incorporated, DOT BCA No. 2572,
94-1 BCA ¶ 26,435; Diversified Marine Tech, Inc., DOT BCA Nos.
2455, 2482, 93-2 BCA ¶ 25,720; Industrial Controls, GSBCA No.
5391, 79-2 BCA ¶ 14,171. Stated otherwise, the changes in
Banta Company, which occurred after the GPO had already
approved the contractor's pre-production samples of both tax
booklets, had a substantial impact on the contractor's
production plans and operations, increased its press, paper
and labor costs, and did more than just disrupt the
contractor's manufacturing schedule.25 Under those
circumstances, traditional "Changes" clause concepts clearly
entitled the contractor to an equitable adjustment in the
contract price to compensate for its increased costs,
including downtime expenses-a fact which even the OIG auditors
recognized when measuring the contractor's claim by the
"actual cost" method.26 See, Southwest Marine, Inc., ASBCA
No. 39472, 93-2 BCA ¶ 25,682; Bryant & Bryant, ASBCA No.
27910, 88-3 BCA ¶ 20,923; Kolar, Inc., ASBA No. 23252, 28482,
86-2 BCA ¶ 18,9929.
Apart from the delay in the delivery of the GFM for the
remaining four pamphlets, this case bears absolutely no
resemblance to Banta Company. That is, even though the
Respondent altered the number of pages in three of the
pamphlets, those changes had no affect on contract performance
because the Appellant had done nothing as yet to produce the
remaining booklets-indeed, it could not do so because it did
not have the necessary GFM. Consequently, for all practical
purposes, the impact on the Appellant's manufacturing posture
here is no different than if the Government had not made any
alterations all; i.e., we would be looking at a simple delay
situation. Accordingly, the Board holds that the Appellant's
claim in this case is not a matter appropriate for resolution
under the "Changes" clause, as described in Banta Company.
Since the "Changes" clause is not applicable in this dispute,
the Board's authority to equitably adjust the contract price
must be found in some other clause of the contract. Nello L.
Teer, supra, 86-3 BCA ¶ 19,326. The Board's research
indicates that if this case had arisen under the CDA, an
Executive Branch board of contract appeals would be able to
allow recovery under the "Government-Furnished Property"
clause of the FAR because it expressly provides for the sort
of relief sought by the Appellant. See, Dave Hakala, AGBCA
No. 85-219-3, 85-3 BCA ¶ 18,382; LogiMetrics, Inc., ASBCA No.
28516, 84-3 BCA ¶ 17,593; Swinging Hoedads, AGBCA No.
82-278-3, 83-2 BCA ¶ 16,707. In that regard, the relevant FAR
provision states, in pertinent part:
(a) The Government shall deliver to the Contractor, at the
time and locations stated in this contract, the Government-
furnished property described in the Schedule or
specifications. If that property, suitable for its
intended use, is not delivered to the Contractor, the
Contracting Officer shall equitably adjust affected
provisions of this contract in accordance with the
"Changes" clause . . .
FAR § 52.245-4 (Government-Furnished Property (Short Form)).
[Emphasis added.]
However, the "Government Furnished Property" clause in GPO
Contract Terms, which is incorporated by reference in the
Appellant's contract, is more limited in scope. It states, in
pertinent part:
The contractor is required to examine the furnished
property immediately upon receipt. If at that time there
is disagreement with the description or requirements as
presented in the specification . . ., and prior to the
performance of any work, the contractor shall contact
[GPO], . . . and contest the description. . . . The
Contracting Officer will then investigate and make a
determination which will be final. If the decision is
reached that the original description is proper, the
contractor will be required to proceed with the work. . . .
If the decision is reached that the description is
erroneous, the Contracting Officer will proceed in one of
the following manners:
(a) In the case of sealed bids, either an equitable
adjustment will be negotiated with the contractor or the
order will be terminated.
(b) In the case of a print order placed through a term
contract, an equitable adjustment will be negotiated and
a supplemental agreement issued.
GPO Contract Terms, Contract Clauses, ¶¶ 7 (Government Furnished
Property (GFP)). [Emphasis added.] By its terms, the GPO clause
only authorizes an equitable adjustment in cases where there is a
difference between the GFM, as described in the specifications
and as actually delivered to the Contractor. Although the word
"description" is not defined in the clause, or elsewhere in GPO
Contract Terms, it usually refers to a statement that paints a
word picture of what a particular item or thing should look like.
See, WEBSTER'S NEW WORLD DICTIONARY 372 (3d ed. 1988). Thus, for
the pamphlets involved in this dispute, the "description" would
include such things as the type of paper stock for both the text
and cover, the number of pages, the identification number, the
margin dimensions, the type of binding, the location of drill
holes, and the quality level of the product; i.e., the printing
specifications. When the GFM for Pamphlet Nos. 1, 19 and 20 was
delivered to the Appellant, the only "description" change
concerned a variation in the number of pages for each booklet,
for which the Contractor received an equitable adjustment
(Factual Finding No. 7).27 See, R4 File, Tabs F, J and K.
There is nothing in GPO's "Government Furnished Property"
clause comparable to the Government promise in the FAR to
deliver the GFM to the Contractor, "at the time and locations
stated in this contract," which is necessary to support an
equitable adjustment for any downtime costs associated with a
delay in the GFM. Instead, as the Respondent contends, such
matters are addressed and controlled by the "Extension of
Schedules" provisions of the "Notice of Compliance with
Schedules" clause. GPO Contract Terms, Contract Clauses, ¶
12(c). See, Graphics Image, Inc., GPO BCA 13-92 (August 31,
1992) Sl. op. at 23. Since it is uncontroverted in the
record that the GFM delay was accommodated by revising the
delivery schedule for the last four pamphlets, the Contractor
received only remedy authorized by its contract with the
Respondent. See, R4 File, Tabs G, H and K.
As a final observation, it seems to the Board that the only
other theory of recovery available to Appellant is that
somehow the Respondent breached its implied duty to cooperate
with the Contractor in performance of the contract. See,
Stephenson, Inc., supra, Sl. op. at 38-39. Accord, Finesilver
Manufacturing Company, ASBCA No 28955, 86-3 BCA ¶ 19,243
(Government continually failed over the term of the contract
to timely furnish the fabric needed by the contractor to make
the number of trousers ordered by the government, and its
failure to do so constituted a breach of its implied
obligation under the contract to deliver fabric in sufficient
time and quantity to enable the contractor to manufacture the
specified pairs of trousers by the contract completion date);
Oxwell, Inc., ASBCA Nos. 27523, 27524, 86-2 BCA ¶ 18,967
(Government failed to provide proper GFP support); Robert J.
DiDomenico, GSBCA No. 5539, 82-2 BCA ¶ 16,093 (Government
breached its lease contract by delivering the plans for
building alterations four months late and causing the
contractor to incur additional costs resulting from
performance in winter weather and from inability to schedule
work in the most efficient sequence). Although the Board has
ruled that it is without jurisdiction to entertain "pure"
breach of contract claims, see, The Wessel Company, Inc.,
supra, Sl. op. at 46, R.C. Swanson Printing and Typesetting
Company, supra, Sl. op. at 41, it has never expressly held
that claims relying on the Government's alleged breach of its
implied duty to cooperate with the Contractor in performance
of the contract are barred from this forum as well, cf.,
Stephenson, Inc., supra, Sl. op. at 46-47 (contractor's breach
of duty allegation considered and rejected by the Board).
However, it is unnecessary to reach that question in this
case. As already mentioned, settled law holds that breach of
contract damages are not recoverable if the contract itself
provides a remedy.28 See, Banta Company, supra, Sl. op. at
31, fn. 40 (citing, Triax-Pacific, A Joint Venture, supra,
91-2 BCA ¶ 23,724). See also, R.C. Swanson Printing and
Typesetting Company, GPO BCA 31-90 (February 6, 1992), Sl. op.
at 46, aff'd Civil Action No. 92-128C (Cl.Ct. October 2,
1992). Accord, Dave Hakala, supra, 85-3 BCA ¶ 18,382. In
this case, the automatic extension of the shipping schedule
authorized by the "Extension of Schedules" clause, GPO
Contract Terms, Contract Clauses, ¶ 12(c), is the contractual
remedy so provided for the late delivery of the GFM to the
Appellant. Therefore, even if the Board, as a theoretical
matter, had breach jurisdiction over a failure by the
Respondent to cooperate with the Appellant in the performance
of the contract, damages would not lie in this case, in any
event. Accordingly, for all of these reasons, the Board
AFFIRMS the decision of the Contracting Officer and DISMISSES
the appeal.
ORDER
From the foregoing analysis, the Board finds and concludes
that: (1) the Appellant is not entitled to an equitable
adjustment for the late delivery of the revised GFM on
Pamphlet Nos. 1, 19 and 20 under the "Changes" clause of GPO
Contract Terms; (2) no other provision of the contract
authorizes such an equitable adjustment; and (3) the automatic
extension of the shipping schedule allowed by the "Extension
of Schedules" clause, GPO Contract Terms, which the Appellant
received, is the exclusive contractual remedy for the delayed
delivery of the GFM which occurred in this case. THEREFORE,
the Contracting Officer's decision rejecting the Appellant's
claim for reimbursement in the amount of $2,000.00, for the
Government's delay in the supplying the GFM, is AFFIRMED and
the appeal is DISMISSED.
It is so Ordered.
November 4, 1994 STUART M. FOSS
Administrative Judge
_______________
1 During the prehearing telephone conference held on June 14,
1994, Counsel for the Appellant stated that although the
Appellant had initially claimed $2,000.00 , it did so only to
settle the matter. Since the Contractor's actual loss due to
the Government delay was $4,020.92, Counsel for the Appellant
said that the Contractor was now seeking full reimbursement
for its costs. See, Report of Prehearing Telephone
Conference, dated September 2, 1994, p. 3 (RPTC). In the
Board's view, the Appellant's assertion of a new legal theory
of recovery on appeal (compensation for actual delay costs,
in contrast to the "bottom line" settlement figure given the
Contracting Officer) does not constitute a new claim
requiring a final decision from the Contracting Officer
before the Board can exercise its jurisdiction, see, Shepard
Printing, GPO BCA 37-92 (January 28, 1994), Sl. op. at 28;
Epco Associates, GPO BCA 26-93 (November 18, 1993), Decision
and Order Granting Appellant's Motion Under Rule 1(c) and
Staying Proceedings Under Rule 1(d), Sl. op. at 3, because it
is based upon the same operative facts underlying the
original claim, see, Blaze Construction Company, Inc., IBCA
No. 2863, 91-3 BCA ¶ 24,071, at 120,503 (citing, Placeway
Construction Corporation v. United States, 910 F.2d 835, 840
(Fed. Cir. 1990); Trepte Construction Company, ASBCA No.
38555, 90-1 BCA ¶ 22,595, at 113,385-86; Flores Drilling &
Pump Company, AGBCA No. 82-204-3, 83-1 BCA ¶ 16,200, at
80,484). Furthermore, despite the different approach taken
by the Appellant before the Board, the Contracting Officer
certainly had no misapprehension about the basic factual
allegations in reaching his decision to deny the claim. See,
Contract Cleaning Maintenance, Inc. v. United States, 811
F.2d 586, 592 (Fed. Cir. 1987); Paragon Energy Corporation v.
United States, 645 F.2d 966, 976 (Ct.Cl. 1981); Cerberonics,
Inc. v. United States, 13 Cl.Ct. 415, 418 (1987); Holk
Development, Inc., ASBCA Nos. 40579, 40609, 90-3 BCA ¶ 23,086
at 115,938 ("Adequate notice" requires a sufficient statement
"to enable the contracting officer to undertake a meaningful
review of the claim."). Moreover, no useful purpose would be
served by requiring resubmission of the claim to the
Contracting Officer and asking for his final decision, since
Counsel for GPO neither objected to the amendment at the
prehearing conference nor in his brief, the parties have
already briefed the threshold issue, and besides it is clear
from the record that whether the Appellant's claim had been
for $2,000.00, $4,020.92, or 100 times those amounts for that
matter, the Contracting Officer would still have denied it
because he was acting on his understanding that the
"Extension of Schedules" clause in the contract only
authorized an adjustment of the delivery schedule for a
Government delay. See, GPO Contract Terms, Solicitation
Provisions, Supplemental Specifications, and Contract
Clauses, GPO Pub. 310.2, Effective December 1, 1987 (Rev.
9-88), Contract Clauses, ¶ 12(c) (Extension of schedules)
(GPO Contract Terms). See also, So-Pak-Company, Inc., ASBCA
No. 38906, 93-3 BCA ¶ 26,215, at 130,469 (citing, ACS
Construction Company, ASBCA No. 365535, 89-1 BCA ¶ 21,406;
Emerson Electric Company, ASBCA No. 31184, 86-2 BCA ¶ 18,979;
cf., Continental Products, Inc., ASBCA No. 45293, 93-2 BCA ¶
25,879). Thus, under the circumstances of this case, which
shows that the same or related evidence is involved in
connection with the original claim and the claim as amended
at the prehearing conference, that there is no prejudice to
the contracting officer from the Board's consideration of the
revised claim, and that no useful purpose would be served by
requiring resubmission of the claim to the Contracting
Officer, the Board concludes that it has jurisdiction to
decide the issue presented by the parties.
2 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 December 29, 1992. GPO Instruction
110.12, Subject: Board of Contract Appeals Rules of Practice
and Procedure, dated September 17, 1984, Rule 4(a) (Board
Rules). It will be referred to hereinafter as the R4 File,
with an appropriate Tab letter indicated thereafter. The R4
File consists of 13 documents identified as Tabs A through M.
3 By facsimile transmission dated June 3, 1994, the Appellant
advised the Board that it had elected to have a hearing on
its appeal. Board Rules, Rules 8 and 17 through 25.
However, during the prehearing telephone conference, the
parties agreed that the Board's decision on the threshold
issue-whether or not the contract's "Extension of Schedules"
clause, see, GPO Contract Terms, Contract Clauses, ¶ 12(c),
provided the exclusive remedy available to the Appellant in
this case?-could be dispositive of the appeal. See, RPTC,
pp. 2-3. Therefore, the Board said that it would reserve
judgment on whether a hearing was necessary until it had
decided the threshold question, and directed them to file
briefs on the question of remedy. Id., p. 4.
4 The factual description of this case is based: (a) the
Appellant's Notice of Appeal, dated November 16, 1992; (b)
the Appellant's Letter, dated December 14, 1992, stating that
the Government's delay was the direct cause of its loss of
$2,000.00 in lost press time; (c) the R4 File; (d) the
Appellant's Letter, dated January 8, 1993, submitting
additional information in accordance with Rule 4(b); (e) the
Respondent's Answer, dated April 28, 1994; and (f) the Report
of Prehearing Telephone Conference, dated September 2, 1994
(RPTC). The facts, which are essentially undisputed, are
recited here only to the extent necessary for this decision.
5 Subsequently, the Contractor asked for an additional
extension to July 29, 1992, because of a delay in the
delivery of its cover stock, but its request was denied by
the Contracting Officer (R4 File, Tab C).
6 The facsimile message contained two blank lines-"Confirm
Above" and "Not Confirmed"-for the Contracting Officer to
indicate his approval or disapproval of the requested payment
(R4 File, Tab D).
7 As indicated previously, see note 4 supra, the Appellant's
Letter, dated January 8, 1993, submitted certain additional
information, namely copies of three facsimile messages it
sent to the Contracting Officer concerning this contract.
Specifically, the three messages related to: (a) the
Appellant's request for an additional day's extension of the
delivery date on the first eight pamphlets, see note 5 supra;
(b) the Contractor's request that the shipping date on
Pamphlet Nos. 19 and 20 be scheduled for September 18, 1992
(which the Contracting Officer approved); and (c) the
Appellant's message, dated November 2, 1992, confirming the
delivery date of November 2, 1992, for the last two
pamphlets, and informing the Contracting Officer of
additional costs for extra pages on one of the pamphlets, see
note 8 infra. These messages, which were relevant to this
appeal, were not in the Contracting Officer's R4 File,
although clearly they should have been included. (Indeed,
also missing from the R4 File are copies of the Appellant's
bid and Purchase Order F-1491.) While the Board believes
that their omission was unintentional, it must reaffirm its
view that: ". . . the Government's obligation in preparing
the appeal file is to search its records diligently so that
it submits to the Board as complete a file as may be
assembled under the circumstances. It goes without saying
that the Government may not, with respect to those documents
actually reviewed during compilation of the appeal file,
limit inclusion only to those documents which support its
position. It should be emphasized that selective omission of
pertinent documents is contrary to the requirements of Rule 4
of the Board Rules." See, Universal Printing Company, GPO
BCA 9-90 (June 22, 1994), Sl. op. at 14, fn. 15 (citing, P.J.
Dick Contracting, Inc., VABCA No. 3177R-82R, 93-1 BCA ¶
25,263; Bethlehem Steel Corporation, ASBCA No. 29459, 86-3
BCA ¶ 19,159).
8 There is nothing in the record to show on what basis the
Contracting Officer calculated these contract price
adjustments. However, the Board assumes for the purposes of
this decision, especially insofar as Pamphlet No. 1 is
concerned, that the Contractor's bid contained a rate for
additional pages. See, R4 File, Tab A, p. 8 (Offers).
9 As in its facsimile message of August 13, 1992, the
Appellant provided "Confirm Above" and "Not Confirmed" lines
for the Contracting Officer to indicate his approval or
disapproval of the requested payment. See, note 6 supra.
10 Because the parties agreed to limit this proceeding to the
"entitlement" question, the Appellant has made no effort to
prove the merits of its claim, reserving that matter for
discovery procedures and a hearing if the Board agrees with
its reading of GPO Contract Terms. RPTC, p. 3. See, Board
Rules, Rules 14, 15 and 17 through 25.
11 Both parties submitted written briefs setting forth their
respective positions on the threshold issue in this appeal.
On July 14, 1994, the Board received the Appellant's Brief
(App. Brf.) Similarly, on July 15, 1994, the Board received
the Respondent's Brief on Entitlement (Res. Brf.).
Thereafter, on July 29, 1994, the Board received the
Respondent's Reply Brief on Entitlement (Res. R. Brf.). The
Appellant did not file a reply brief. The Board's
understanding of the positions of the parties is based on the
Appellant's Notice of Appeal, the Appellant's letter of
December 14, 1992, the Respondent's Answer, the formal briefs
filed by the parties, and the discussions at the prehearing
telephone conference on June 14, 1994.
12 The Appellant distinguishes this situation from one where
there is merely a delay, unaccompanied by any changes in the
work, in which case the Courts and boards of contract appeals
leave the contractor to pursue a breach of contract claim
under the contract. App. Brf., p. 3 (citing, John Cibinic,
Jr. and Ralph C. Nash, Jr., Administration of Government
Contracts, 2d ed. (The George Washington University, 1985),
pp. 522-24) (hereinafter Cibinic and Nash).
13 The Board was established by the Public Printer in 1984.
GPO Instruction 110.10C, Subject: Establishment of the Board
of Contract Appeals, dated September 17, 1984. Prior to the
Board's creation, appeals from decisions of GPO Contracting
Officers were considered by ad hoc contract appeals boards.
R.C. Swanson Printing and Typesetting Company, GPO BCA 15-90
(March 6, 1992), Sl. op. at 28, fn. 30. While it is the
Board's policy to follow the holdings of these ad hoc panels
where applicable and appropriate, it does not regard those
decisions as legally binding precedent; indeed, the Board
differentiates between its decisions and the opinions of the
ad hoc panels by citing the latter as GPOCAB. See, The
Wessel Company, Inc., supra, Sl. op. at 25, fn. 25. See
also, Sterling Printing, Inc., GPO BCA 20-89 (July 5, 1994)
(Decision on Motion for Reconsideration), Sl. op. at 10, fn.
6; Chavis and Chavis Printing, GPO BCA 20-90 (February 6,
1991), Sl. op. at 9, fn. 9; Stephenson, Inc., GPO BCA 02-88
(December 20, 1991), Sl. op. at 18, fn. 20.
14 The Respondent also notes that the Appellant asked for and
received additional compensation for the changes in the
number of pages of the publications. Res. Brf., p. 3, fn. 1
(citing, R4 File, Tab K). See, Factual Finding No. 7.
15 Of course, whether or not such a nexus exists is a
question of fact which is beyond the scope of this
proceeding. However, establishing a causal connection
between such a delay and any increased costs would be part of
a claimant's burden of proof on the merits. See, Banta
Company, supra, Sl. op. at 35, fn. 44 (citing, Cooper
Mechanical Contractors and Continental Engineering, IBCA Nos.
2744-2749, 2692, 2706-2713, 2714, 92-2 BCA ¶ 24,821; Gerald
Miller Construction Company, IBCA No. 2292, 91-2 BCA ¶
23,829).
16 The record on which the Board's decision is based consists
of: (a) the Appellant's Notice of Appeal, dated November 16,
1992; (b) the Appellant's Letter, dated December 14, 1992;
(c) the R4 File; (d) the Appellant's Letter, dated January 8,
1993, and the additional information enclosed; (e) the
Respondent's Answer, dated April 28, 1994; (f) the Report of
Prehearing Telephone Conference, dated September 2, 1994; (g)
the Appellant's Brief, dated July 14, 1994; (h) the
Respondent's Brief on Entitlement , dated July 15, 1994; and
(i) the Respondent's Reply Brief on Entitlement, dated July
29, 1994. See, Board Rules, Rule 13(a).
17 GPO's "Changes" clause provides: "(a) The Contracting
Officer may at any time, by written order, and without notice
to the sureties, if any, make changes within the general
scope of this contract in any one or more of the following:
(1) Drawings, designs, or specifications when the supplies
furnished are to be specially manufactured for the
Government in accordance with the drawings, designs, or
specifications. (2) Method of shipment or packing. (3)
Place of delivery. (b) If any change causes an increase or
decrease in the cost of, or the time required for,
performance of any part of the work, whether or not changed
by the order, the Contracting Officer shall make an equitable
adjustment in the contract price, the delivery schedule, or
both, and shall modify the contract. (c) The contractor must
submit any "proposal for adjustment" (hereinafter referred to
as proposal) under this article within 30 days from the date
of receipt of the written order. However, if the Contracting
Officer decides that the facts justify it, the Contracting
Officer may receive and act upon a proposal submitted anytime
before final payment. (d) If the contractor's proposal
includes the cost of property made obsolete or excess by the
change, the Contracting Officer shall have the right to
prescribe the manner or the disposition of the property. (e)
Failure to agree to any adjustment shall be a dispute under
article 5 `Disputes.' However, nothing in this article shall
excuse the contractor from proceeding with the contract as
changed." See, GPO Contract Terms, Contract Clauses, ¶ 4.
18 To the extent that the Respondent also contends that the
Appellant's demand for reimbursement is really a disguised
breach of contract claim which cannot be considered under the
"Changes" clause, see, R. Brf., p. 1, that argument was
rejected by the Board in Banta Company. See, Banta Company,
supra, Sl. op. at 31, fn. 40, where the Board said: "As a
rule, breach of contract damages are not recoverable if the
contract itself provides a remedy. See, Triax-Pacific, A
Joint Venture, ASBCA No. 36353, 91-2 BCA ¶ 23,724. However,
even though the Board has no jurisdiction to hear breach of
contract claims, it has stated that breach of contract
damages and contract provisions for extensions of time are
not mutually exclusive; i.e., in the appropriate forum, the
fact that the contract includes a provision for extension of
time to perform does not exclude the possibility that
recovery may also be had in the form of damages for breach of
contract. See, The Wessel Company, Inc., supra, Sl. op. at
27, fn. 29 (citing, The Kehm Corporation v. United States, 93
F.Supp. 620, 624-25 (Ct.Cl. 1950)). The simple holding of
Wessel Company, another case involving the impact of
Government delays, is that the Board is not an appropriate
forum to resolve "pure" breach of contract claims; i.e.,
breach claims not redressable under a specific contract
provision. See, The Wessel Company, Inc., supra, Sl. op. at
46.]" See also, R.C. Swanson Printing and Typesetting
Company, GPO BCA 15-90 (March 6, 1992), Sl. op. at 41.
19 The total contract price for this work was $950,808.00.
See, Banta Company, supra, Sl. op. at 2-3.
20 These steps were found to be reasonable by GPO's Plant
Planning Division (PPD); indeed, the PPD staff could not
suggest anything better. Banta Company, supra, Sl. op. at
8-9.
21 The record showed that the revised GFM was two days late,
for which the contractor claimed combined downtime costs and
lost paper profits on two presses totalling $51,281.00. See,
Banta Company, supra, Sl. op. 7-8, fn. 8.
22 The OIG had looked at the contractor's claim two ways;
i.e., under the so-called "specific cost" or "actual cost"
approach, and under the "total cost" method. Banta Company,
supra, Sl. op. at 10. The OIG auditors preferred the use of
the "total cost" technique because they thought it best
preserved the contractor's loss position under the contracts.
Id., Sl. op. at 11-12, fn. 15. The contracting officer
agreed. Id., Sl. op. at 12, fn. 16.
23 The key to the Board's opinion on this issue was its
rejection of the contracting officer's use of the "total
cost" method to decide the contractor's equitable adjustment
claim. The record Banta Company showed that the OIG auditors
had allowed the claim for downtime expenses resulting from
the late delivery of the GFM when they examined the
contractor's evidence under the "actual cost" method. OIG
Audit Report, dated October 23, 1990, Jacket No. 245-004,
Summary of Contractor's Claim and Results of Audit, Specific
Cost Method, pp. 5 (Idle Resources, ¶¶ II.A, B), 8
(Explanatory Notes, ¶¶ 9, 11). See, GPO Procurement
Directive 306.2, Subject: Contract Cost Principles and
Procedures, dated April 1, 1988, p. 22, ¶ 25(b)(2) (Idle
facilities and idle capacity costs) (hereinafter GPO Contract
Cost Principles). However, the contractor's separate delay
claim was completely submerged by the Government's use of the
"total cost" approach. Banta Company, supra, Sl. op. at
41-43. When the Board rejected the "total cost" technique,
the contractor's request for an equitable adjustment because
of the Government's late delivery of the revised camera copy
resurfaced as an independent item within the overall claim.
24 The record establishes that the number of text pages in
Pamphlet No. 18 remained unchanged. Consequently, the late
delivery of the GFM for this booklet by the Government was a
delay, pure and simple. Under the principles enunciated by
the Board in Banta Company, any additional costs experienced
by the Appellant regarding Pamphlet No. 18 would not be
recoverable under the "Changes" clause, in any case. Banta
Company, supra, Sl. op. at 31-32. Accord, Nello L. Teer, ENG
BCA No. 4376, 86-3 BCA ¶ 19,326.
25 The core concept in the Government's argument was its
assumption that reducing the number of printed pages for each
tax booklet "undoubtedly" lowered the level of production
effort, because less raw materials would be needed to perform
the contracts, and thus there was a "dramatic" reduction in
the Appellant's potential losses. However, GPO not only
offered no evidence to support this premise, but to the
contrary, it stipulated to facts which tended to show that
the contractor's level of effort was increased because of the
changes, and the record failed to disclose any evidence which
would contradict that stipulation. Banta Company, supra, Sl.
op. at 52-53. See also, Universal Printing Company, GPO BCA
09-90 (June 22, 1994), Sl. op. at 45. Accord, Celesco
Industries, ASBCA No. 22251, 79-1 BCA ¶ 13,604. In that
regard, the authors of the book "Getting It Printed: How to
Work with Printers and Graphic Arts Services to Assure
Quality, Stay on Schedule, and Control Costs", have observed
that: "The cost of alterations varies from almost free to
very expensive, depending on the nature of the changes and at
what stage they occur. We use the rule of thumb that a
change that costs $5 at the pasteup stage will cost $50 at
the negative stage and $500 on press [in other words, at
multiples of 1, 10 and 100]. . . . After negatives are
stripped, any change in format such as a revised page count,
a new trim size, or a different number of colors means major
alteration costs. New formats require at least partial
restripping and may require refiguring the entire job." Mark
Beach, Steve Shepro, and Ken Russon, Getting It Printed: How
to Work with Printers and Graphic Arts Services to Assure
Quality, Stay on Schedule, and Control Costs, (Coast to Coast
Books, Portland, Oregon, 1986), pp. 90-91. [Emphasis added.]
26 See, footnote 23 supra.
27 In the absence of a challenge by the Appellant, or any
evidence in the record whatsoever to the contrary, the Board
accepts the Contracting Officer's determination that
increasing the contract price of Pamphlet No. 1 by $1,790.00,
and decreasing the contract price for Pamphlet Nos. 19 and 20
by a total $639.95, for Pamphlet Nos. 19 and 20 (R4 File, Tab
K), was a reasonable equitable adjustment in this case.
McDonald & Eudy Printers, Inc., GPO BCA 25-92 (April 11,
1994), Sl. op. at 24, fn. 20.
28 See, note 18 supra.