United States Government Printing Office Contract Appeals Board Appeal of Braceland Brothers, Inc. July 5, 1978 Vincent T. McCarthy, Chairman Drew Spalding, Member Samuel Soopper,Member Panel 76-14 Findings of Fact 1. On April 1, 1974, Braceland Brothers, Inc., was awarded Program 1320-S with the United States Government Printing Office (hereinafter GPO). The contract was for the production, packing, mailing, and delivery of United States Civil Service Commission "Training Announcements." 2. The specifications provided, in pertinent part: "PACKING FOR DELIVERY AND MAILING: . . . Mailing: The contractor will be required to combine from 2 to 8 print orders (as specified by the department) into one mailed shipment, using furnished preaddressed kraft envelopes and labels for all destinations requiring a distribution of from 1 to 10 copies. Refer to 'Delivery and Mailing' hereinafter. Not all orders will be combined. (Page 5 of 12.) . . . DELIVERY AND MAILING: Deliver f.o.b. destination in Washington, D.C., and f.o.b. contractor's city for all mailed shipments. Quantities ordered mailed must be delivered by the contractor to the local post office for mailing. The contractor will be required to combine from 2 to 8 print orders (as specified by the department) into one mailing, using preaddressed kraft envelopes, for addresses that have a distribution of from 1 to 10 copies. All copies for addresses that have a distribution of over 10 copies are not to be held for combining. There will be approximately 3,000 copies of each order inserted into 387 envelopes with 10 copies or less, of each order, in each envelope. The contractor will be notified in writing, prior to the delivery date, of the print orders that are to be combined for mailing and will receive the preaddressed envelopes at that time. Refer to 'Schedule' hereinafter. (Pages 6 of 12 - 7 of 12.) . . . "SCHEDULE OF PRICES IV. PACKING, MAILING AND DELIVERY: The prices quoted are all inclusive and includes [sic] the cost of inserting in envelopes, cushioned shipping bags, wrapping packages, and/or packing shipping containers, and all materials and services related thereto. Preaddressed 'Postage and Fees Paid' labels and kraft envelopes will be furnished by the Government. Mailed Shipments: (a) Inserting multiple copies in Kraft envelopes (Preaddressed) (up to 160 leaves). . . . . . . . . . . . per envelope . . . . . . . . . . . $ _____ . (Page 12 of 12.) Quote prices in strict accordance with all specifications." (Page 12 of 12.) The contractor bid $ .22 at IV(a). 3. There were two other responsive bidders to the contract. Their bids to Item IV.(a) of the schedule of prices were: H.L. Eikenberg -.27, United Litho Services - .15. 4. The contract was performed by Braceland Brothers, Inc., and payment was made by the Government pursuant to invoices supplied. 5. On or about October 4, 1976, approximately 19 months after the completion of the contract, the appellant was sent a letter by Bryan W. Mercer, Comptroller of the United States Government Printing Office. The letter quoted relevant contract provisions and stated: "We found discrepancies in your invoices that indicate that you may have been overpaid on Program 1320-S, Purchase Orders 78097 & D-0009, in the amount of $43,291.09. . . . "You consistently billed for Item IV A and IV B on each print order when you should have billed for that Item IV A on only one print order in each group of orders combined. "If you have any additional information concerning charges for delivery and packing, let me know. Otherwise we have no choice but to effect these deductions from current invoices. Your prompt response will be appreciated." Errors assigned to the billing of Item IV(b) were subsequently conceded by the contractor and are not involved in this appeal. 6. Appellant subsequently, on October 8, 1976, responded to Mr. Mercer by wire. The relevant portions stated: "We are in receipt of your letter dated October 4, 1976, concerning a possibility of overpayment on Program 1320-S, Purchase Orders 78097 & D0009. "We vehemently oppose an arbitrary reduction of our billing in the amount of $43,219.09. "We are investigating your allegation and will respond to it upon the conclusion of our study." 7. On October 14, 1976, appellant was sent a letter by Raymond A. Hartman, the contracting officer. The letter stated, in pertinent part: "We are in receipt of your October 8, 1976, wire to Mr. Bryan Mercer, Comptroller, U.S. Government Printing Office protesting the overpayment of approximately $43,219.09 of your invoices on Program 1320-S. "As Contracting Officer, and after giving the matter careful consideration, we can find no basis on which to honor your protest. In our opinion, the invoices submitted by your company for work performed under Program 1320-S were overbilled and subsequently erroneously overpaid by Government Printing Office. We do not feel that any basis exists from misinterpretation of the contract nor does any basis exist for compromise on this type of overpayment. Based on the work performed, it is clear that the billed mailing for each print order was not required or the mailing performed. We, therefore, have no choice but to disallow your protest." 8. By letter dated November 9, 1976, the contractor filed this appeal in response to the decision of the contracting officer. Decision The issue presented here is one of contract interpretation. The appellant performed its tasks under the contract, apparently without delay or other difficulty. It billed the GPO and was paid for its work. Some 19 months later, the GPO found that, according to its calculations, the appellant had been overpaid $43,219.09. The agency's Comptroller informed the contractor of this discovery and that a corresponding amount would be deducted from its account. 1 The contractor protested vigorously to the Comptroller, and received a confirmation of the Comptroller's position from the contracting officer. This appeal followed. The appellant views this case as one of ambiguity of contract terminology. The issue, as defined in its brief, is "whether the bid price in the 'Schedule of Prices' of the Contract (Contract Item-IV(a), pg. 12) was to be applied to each print order or to each mailed shipment." Appellant's Brief at 2. The referenced contract item states: "Mailed Shipments: (a) Inserting multiple copies in Kraft envelopes (preaddressed) (up to 160 leaves) . . . . . . . . . . . per envelope . . . . . . . . . . $ ." Specifications at page 12 of 12. (Emphasis added.) The appellant bid $.22 on this contract item. It interpreted the bid price to apply to each print order, and billed accordingly. The contractor asserts that this course was reasonable, since print orders were sometimes required to be combined in a mailed shipment (up to 8 at a time), and sometimes not. The rationale for this view was that billing per print order, rather than per mailed envelope, provided compensation for additional tasks required in mailing an envelope containing more than one print order. The contractor thus concludes that it followed a reasonable interpretation of the contract when faced with an ambiguity in a contract term. This being the case, in light of the rule of contra proferentum (to construe contract ambiguities against the drafter), its interpretation must be accepted. There is, however, a fatal flaw in the theory. The provision quoted above is unmistakably lucid: it calls for an "all inclusive" bid for packing, mailing, and delivery of the print orders to be made "per envelope," Specifications at page 12 of 12. The contractor's interpretation of "per envelope" is more a case of wishful thinking than of linguistic ambiguity. "[A]ny word or group of words can be twisted, by strained construction, into an ambiguity." Southern Construction Company v. United States, 176 Ct. Cl. 1339, 1362, 364 F.2d 439, 453 (1966); Aero Mayflower Transit Company v. United States. 162 Ct. Cl. 233, 237 (1963). The gravamen of appellant's claim of ambiguity is that it would have been difficult to know exactly what amount to bid without being certain as to how many print orders were to be in each shipment. While this may be a legitimate business concern, it was up to the appellant to put forth a bid based on the language in the specifications which would take this uncertainty into account. This is particularly true when the prices quoted were meant to be "all inclusive and [include] the cost of inserting in envelopes . . . and all materials and services related thereto." Specifications at page 12 of 12. The contractor was additionally warned to "[q]uote prices in strict accordance with all specifications." Id. The contractor appears to be asserting not an ambiguity in the language, but how he would have preferred the contract to be drafted. Without such an ambiguity, the rules of construction put forth by appellant are simply not appropriate. As the Court of Claims has explained: "Contracts are not necessarily rendered ambiguous by the mere fact that the parties disagree as to their meaning. There must be a reasonable uncertainty of meaning. . . . The fact that the interpretation placed by plaintiff upon the specifications may be considered conceivable, is not the proper basis for construction of the contract against the author of the language." Southern Construction Company v. United States, 176 Ct. Cl. 1339, 1361, 364 F.2d 439, 453 (1966) (citation omitted); ITT Arctic Services, Inc. v. United States, 207 Ct. Cl. 743, 524 F.2d 680 (1975). There was no "reasonable uncertainty" concerning the contract term in question here. It is not a reasonable construction of a contract which leaves a specific term inoperative or superfluous. Astro-Space Laboratories, Inc. v. United States, 200 Ct. Cl. 282, 295, 470 F.2d 1003, 1010 (1972) (contract interpretation eliminating a word unreasonable); Bishop Engineering Company v. United States, 180 Ct. Cl. 411, 416 (1967); that is exactly what the appellant's interpretation would do to the term "per envelope." 2 When a contractor chooses to interpret a contract in such a way as to ignore a specific provision, it relies on such an interpretation at its own risk. Burnett Electronics Lab, Inc. v. United States, 479 F.2d 1329, 1332 (Ct. Cl. 1973); Space Corporation v. United States, 200 Ct. Cl. 1, 470 F.2d 536 (1972). In other words, by interpreting the contract in this manner, appellant created an ambiguity so patent that it should have inquired of the Government what the proper interpretation should be. The appellant additionally contends that a comparison of the competitive pricing for this particular contract item reveals that all bidders interpreted the item in the same manner in which the appellant did. There is nothing but the appellant's bare assertion that such an interpretation must be inferred from allegedly similar pricing. More importantly, the same interpretation by other contractors would not make it any more reasonable. "A trade practice cannot prevail over unambiguous provisions of a contract. . . ." George Hyman Construction Company v. United States, 564 F.2d 939, 945 (Ct. Cl. 1977). Having examined all of the arguments presented by appellant, and several that were not, we are constrained to hold, on the record presented to us, that the Government's interpretation of the contract is legally correct. While the manner in which the Government handled this situation could have been improved, particularly the 19-month lapse prior to assessing the overpayment against appellant, we see no legal defect in the Government's position. Conclusion Having fully considered the record before us and the applicable law, the appeal is denied. _______________ 1 The Comptroller's mathematical computations are not contested by the appellant at this time, and we therefore make no finding or decision concerning them. As a result, we have not examined the invoices of the contractor and they are not made part of the record. 2 This is not to say that the contract is a model of good draftsmanship. However, the fact that a more artful drafting may have been possible does not render a contract ambiguous in a legal sense.