U.S. GOVERNMENT PRINTING OFFICE
BOARD OF CONTRACT APPEALS
WASHINGTON, D.C. 20401
In the Matter of )
)
the Appeal of )
)
CUSTOM PRINTING COMPANY ) Docket No. GPO BCA 28-94
Jacket No. 547-782 )
Purchase Order G-3283 )
For the Appellant: Custom Printing Company, Owensville, Missouri,
by Frederic G. Antoun, Jr., Esq., Attorney at Law, Chambersburg,
Pennsylvania.
For the Government: Kerry L. Miller, Esq., Associate General
Counsel, U.S. Government Printing Office.
Before FOSS, Administrative Judge.
DECISION ON MOTION FOR RECONSIDERATION AND ORDER
On March 12, 1997, the Board issued its Decision and Order in the
above-captioned appeal of Custom Printing Company (Appellant or
Contractor), reversing the Contracting Officer's decision
rejecting a 28-page plus cover saddle-stitched pamphlet entitled
"Student and Parent Guide" (Student Guide), which had been
printed by the Appellant for the Department of Defense's U.S.
Military Enlistment Processing Command (MEPCOM), and allowing the
Contractor's claim for the original contract price of $88,701.00.
Custom Printing Co., GPO BCA 28-94 (March 12, 1997), slip. op. at
88-89, 1997 WL _____. However, the Appellant's claim for
additional compensation in the amount of $15,726.00 to cover
increased paper and manufacturing costs incurred in reprinting
the Student Guide was denied by the Board for want of proof.
Id., at 89.
The U.S. Government Printing Office (Respondent or GPO or
Government) received a copy of the Board's Decision and Order on
March 18, 1997. Thereafter, on April 16, 1997, Counsel for GPO
submitted a timely Respondent's Motion for Reconsideration
(Motion) in this appeal. See GPO Instruction 110.12, Subject:
Board of Contract Appeals Rules of Practice and Procedure, dated
September 17, 1984, Rule 29 (Board Rules). The Motion's central
argument is that the Board's opinion misinterpreted GPO's quality
assurance regulations, which were incorporated in the contract by
reference, and thus the decision was legally flawed. See Motion,
at 2 (citing GPO Contract Terms, Quality Assurance Through
Attributes Program for Printing and Binding, GPO Publication
310.1, Effective May 1979 (Revised November 1989) (QATAP)).
Although Rule 29 of the Board Rules is silent with regard to
responses by the non-moving party, on April 30, 1997, Counsel for
the Appellant filed Appellant's Response to Respondent's Motion
for Reconsideration (Response), opposing the Motion.1 See
Response, at 3.
The Board has carefully reviewed the appeal record, its Decision
and Order, the Motion and the Response. For the reasons which
follow, the Motion is DENIED and the Decision and Order is
AFFIRMED.
DISCUSSION AND OPINION
1. Background
The facts involved in this appeal were amply set forth in the
Board's Decision and Order, and need not be repeated here.
Suffice it to say that this case arose when the Contracting
Officer issued a final decision on July 14, 1994, rejecting the
approval copies of the Student Guide produced by the Appellant on
the ground that the booklet was not a "saddle-stitched"
publication, as required by the contract's "BINDING"
specification,2 because it contained two binding stubs between
pages 20-21 and 24-25. Although the Contracting Officer gave a
number of reasons why, in his view, the product was
nonconforming, including that the product did not meet the
industry definition of saddle-stitching, and moreover, binding
stubs were not an acceptable trade practice, the rationale at
issue on reconsideration is "[t]he stubs are a nonspecified trim
size and a major deviation defect in accordance with the
applicable Level III [QATAP] for Finishing (F-1)."3 See R4 File,
Tab F, at 1. To avoid termination of the contract for default,
the Appellant agreed to reprint the Student Guide, but at the
same time preserved its right to appeal the rejection decision.
When the Board examined the contract, it found that the "BINDING"
specification was vague and ambiguous regarding the use of
binding stubs in the production of the Student Guide, the
ambiguity was latent, not patent, and therefore the Contractor
was entitled to recover on its claim under the doctrine of contra
proferentem.4 See Custom Printing Co., supra, slip op. at 28,
38-39, 62-65. In so ruling, while the Board found the evidence
of both parties to be equally weak on the "trade practice" and
"prior course of dealings" issues in the case, id., at 43, 55, it
resolved their dispute over the relationship between the
"BINDING" specification and QATAP in favor of the Appellant, who
had produced a booklet with two binding lips in reliance on the
fact that such stubs were not expressly barred in the
specification, or even mentioned for that matter, id., at 55.
The Board found no support in either the record or Board
precedent for implying a ban on the use of binding stubs merely
because QATAP was incorporated by reference in the contract, id.,
at 58, and held, therefore, that the Contractor's interpretation,
standing alone, was reasonable, which, after all, was all it had
to prove to sustain its claim for compensation, id, at 56 (citing
George Bennett v. United States, 178 Ct. Cl. 61, 371 F.2d 859,
861 (1967); MPE Business Forms, Inc., GPO BCA 10-95 (August 16,
1996), slip op. at 42, 1996 GPOBCA LEXIS 31; The George Marr Co.,
GPO BCA 31-94 (April 23, 1996), slip op. at 41, 1996 WL 273662;
Professional Printing of Kansas, Inc., GPO BCA 02-93 (May 19,
1995), slip op. at 47, 1995 WL 488488; Webb Business Forms, Inc.,
GPO BCA 16-89 (September 30, 1994), slip op. at 17, 1994 WL
837423; R.C. Swanson Printing and Typesetting Co., GPO BCA 31-90
(February 6, 1992), slip op. at 41, n. 22, 1992 WL 487874;
General Business
Forms, Inc., GPO BCA 2-84 (December 3, 1985), slip op. at 16,
1985 WL 154846).5 In reaching this conclusion, the Board
reasoned, in pertinent part, that:
The weakness in the Government's position based on QATAP is an
evidentiary one. Both the Contracting Officer and other
witnesses for the Respondent candidly testified that QATAP was
silent on the question of binding stubs, and that the definition
of "saddle-stitching" they espoused was nowhere to be found in
QATAP, or any other GPO publication for that matter. [Transcript
references omitted.] Their testimony basically confirmed the
Appellant's reading of QATAP. Tr. 16. Consequently, the
Respondent's argument is undermined by its own admission that the
Contractor's interpretation has some validity. [Case citations
omitted.] Furthermore, insofar as the Contracting Officer
measured the original version of the Student Guide against
QATAP's finishing attribute F-1 and found it rejectable, it is
clear that he looked only at the binding lips themselves to reach
that conclusion. See R4 File, Tab F, at 1 ("The stubs are a
nonspecified trim size and a major deviation defect . . .").
However, the Board has ruled that trim measurements for finishing
attribute F-1 are to be taken of the whole publication and not
its component parts, such as individual pages. [Footnote
omitted.] Thus, the Board has indicated that:
Under the QATAP, finishing attributes, such as trim size, are
measured by inspecting individual copies of publications, and
classifying each deviation from specifications as either a
critical defect or major defect, in accordance with the tolerance
table for that attribute. [Footnote omitted.] See, QATAP, p. 3
(Finishing Attributes). In that regard, QATAP tells us that a
major defect must be assessed on a Quality Level III job if the
trim size deviation is "greater than 1/8["] (3.2 mm). Id., p. 28
(F-1. Trim Size).
See McDonald & Eudy II, [McDonald & Eudy Printers, Inc., GPO BCA
06-91 (May 6, 1994)], slip op. at 24-25 [1994 WL 377581].
[Emphasis added.] See also Stabbe Senter Press, [GPO BCA 13-85
and 19-85 (May 12, 1989)], slip op. at 52-53 [1989 WL 384977]
("The Government will evaluate finishing attributes by inspecting
individual copies of publications." [Emphasis added.]).
Consequently, it is apparent that the Contracting Officer
misapplied QATAP in this case.
See Custom Printing Co., supra, slip op. at 58-60. [Original
emphasis.] The Respondent believes that the above-quoted
rationale constitutes a fatal flaw in the Board's Decision and
Order.
2. Positions of the Parties
Essentially, GPO argues that the Board itself has misapplied
QATAP in this case. See Motion, at 3. The crux of the
Government's complaint is that the Board failed to take into
account that finishing attribute F-1 also includes "nonflush trim
size" which is defined "any variation in length or width within a
copy." Id. (citing QATAP, p. 27). [Emphasis supplied by
Respondent.]. Under QATAP, "nonflush trim size" is determined by
measuring "the greatest deviations in length and width between
two pages in the copy." Id. [Emphasis supplied by Respondent.].
The defect is then classified based on the greater deviation.
See QATAP, p. 27. The Respondent asserts, in so many words, that
QATAP allows the evaluation of some attributes by an examination
of less than the whole publication, and here, "the individual
pages were subject to inspection and comparison to the required
trim size." See Motion, at 3. [Emphasis added.] Finally, GPO
says that a Board ruling to the contrary would be tantamount to a
license for "contractors to provide publications consisting of
pages with varying lengths and widths."6 Id. Accordingly, it is
the Government's position that since all copies of the Student
Guide contained the two binding stubs, the publication exceeded
the allowable deviation of 6.5 total defects per 100 copies, and
hence was rejectable under QATAP. See Motion, at 4 (citing
QATAP, p. 1, ¶ 1-6 (definition of Acceptable Quality Levels
(AQL's)).
The Appellant's reply, in so many words, is that the Respondent
has failed to allege a valid error of law in the Board's Decision
and Order because the passage challenged is nothing more than
mere dictum, which had no bearing on the final outcome. See
Response, at 1, 3. In that regard, the Contractor notes that the
central issue in the case was one of contract interpretation,
namely, whether the two binding stubs were inconsistent with the
language of the "BINDING" specification, and the Board resolved
the ambiguity question in the Appellant's favor. Id., at 2-3.
The Appellant says that the Board's discussion of QATAP was not
essential to its finding on the ultimate issue, and its presence
in, or absence from, the opinion is not dispositive, and is
without value as precedent.7 Id, at 2. Indeed, the Contractor
asserts that since the Board relied heavily on the Contracting
Officer's admission at the hearing that binding stubs were not
"pages" in reaching its conclusion on the ultimate issue,8 any
observation concerning his administration of QATAP was mere
commentary, and added nothing to the decision in the case. Id.
(citing Lawson v. United States, 85 App. DC 167, 176 F.2d 49
(1949), cert. denied, 339 U.S. 934, 70 S.Ct. 663 (1950);
Tillinghast v. Maggs, 82 R.I. 478, 111 A.2d 713, 52 ALR3d 1004
(1955)). Accordingly, because the Government is only seeking
reconsideration of the Board's supplementary rationale, the
Appellant says that the Motion should be denied.9 Id., at 3.
3. Decision on Reconsideration
Rule 29 of the Board Rules governs motions for reconsideration in
this forum. That rule provides:
A motion for reconsideration, if filed by either party, shall set
forth specifically the ground or grounds relied upon to sustain
the motion, and shall be filed within 30 days from the date of
the receipt of a copy of the decision of the Board by the party
filing the motion.
By its terms, apart from establishing precise time limits for
filing the appropriate motion, Rule 29 only gives general
guidance for parties seeking reconsideration. However, as
indicated in the Motion, the Board in Graphic Litho, Inc. set
forth the standards which it would apply to such motions. See
Motion, at 1-2 (citing Graphic Litho, Inc., GPO BCA 17-85
(September 30, 1988), Order Denying Appellant's Motion for
Reconsideration, slip op. at 2-3 (hereinafter Graphic Litho
Reconsid.)). In essence, the Board adheres to the two
traditional grounds for reconsidering decisions, namely: (1)
newly discovered evidence, or evidence which was unavailable at
the time of the initial proceeding; or (2) error or oversight in
the Board's findings of fact or conclusions of law.10 See Gold
Country Litho, GPO BCA 22-93 (March 17, 1997), Decision on Motion
for Reconsideration and Order, slip op. at 4-5, 1997 WL _____
(hereinafter Gold Country Reconsid.); Asa L. Shipman's Sons,
Ltd., GPO BCA 06-95 (February 13, 1996) Decision on Motion for
Reconsideration and Order, slip op. at 3-4, 1996 WL _____
(hereinafter Shipman's Reconsid.); Univex International, GPO BCA
23-90 (February 7, 1996), Decision on Motion for Reconsideration
and Order, slip op. at 3-4, 1996 WL_____ (hereinafter Univex
Reconsid.); Sterling Printing, Inc., GPO BCA 20-89 (July 5,
1994), Decision on Motion for Reconsideration and Order, slip op.
at 2-3, 1994 WL 377592 (hereinafter Sterling Reconsid.); R.C.
Swanson Printing and Typesetting Co., GPO BCA 15-90 (December 20,
1993), Decision on Motion for Reconsideration and Order, slip op.
at 3-4, 1993 WL 668317 (hereinafter Swanson Reconsid.); Graphic
Litho Reconsid., supra, slip op. at 2-3. Accord Sauer
Incorporated, ASBCA No. 39372, 96-2 BCA ¶ 28,620; Betty and Eddie
Jackson, PSBCA No. 3624, 96-2 BCA ¶ 28,456; Old Dominion
Security, Inc., GSBCA No. 8563-R, 88-3 BCA ¶ 21,072; Chrysler
Corp., NASABCA No. 1075-10, 77-2 BCA ¶ 12,829. See also FED. R.
CIV. P. 60(b). However, reconsideration is always discretionary
with the Board, and will not be granted in the absence of
specific and compelling reasons. See Gold Country Reconsid.,
supra, slip op. at 6; Shipman's Reconsid., supra, slip op. at
5-6; Univex Reconsid., supra, slip op. at 5; Sterling Reconsid.,
supra, slip op. at 4-5. Accord Christie-Willamette, NASABCA No.
1182-16, 89-2 BCA ¶ 21,659; Carolina Maintenance, ASBCA No.
25891, 88-1 BCA ¶ 20,388; Ken Rogge Lumber Co., ASBCA No.
84-145-3, 84-3 BCA ¶ 17,570; Ronald C. Skillens d/b/a Skillens
Enterprises, GSBCA No. 4625, 77-2 BCA ¶ 12,634). Reconsideration
is not intended to allow the moving party to reargue the case or
reinterpret old evidence. See Castillo Reconsid., supra, slip
op. at 5; Graphic Litho Reconsid., supra, slip op. at 3-5.
Accord Blake Construction Co., GSBCA No. 8376-R, 90-1 BCA ¶
22,408; Prime Roofing, Inc., ASBCA No. 30651, 89-2 BCA ¶ 21,593;
Ford Aerospace & Communications Corp., ASBCA No. 29088, 88-3 BCA
¶ 21,061; Sequal, Inc., ASBCA No. 29119, 85-3 BCA ¶ 18,366.
Indeed, as the General Services Board of Contract Appeals has
observed:
Reconsideration is . . . strongly disfavored; it will not be
granted "on the basis of arguments already made and
reinterpretations of old evidence." Atlas Construction Co.,
GSBCA 7903-R et al., (Sept. 18, 1990); Input Output Computer
Services, Inc., GSBCA 8453-C-R (7090) et al., 88-3 BCA ¶ 20,851
(1988). See also Rocky Mountain Trading Co., GSBCA 10404-C-
R(10210-P), 92-1 BCA ¶ 24,261, 1991 BPD ¶ 171. To warrant
reconsideration, the "moving party must make a satisfactory
showing that it is appropriate for the Board to revisit the
matter." Government Technology Services, Inc., GSBCA 10389-P-R,
90-2 BCA ¶ 22,913, 1990 BPD ¶ 75.
See Zinger Construction Co., Inc., GSBCA No. 11039-R, 92-3 BCA ¶
25,039, at 124,814.
In this case, the only ground asserted by the Respondent in
support of the Motion is that the Board's interpretation of QATAP
was erroneous as a matter of law.11 See Motion, at 2. And, as
indicated above, the claimed error is that the Board limited its
analysis of finishing attribute F-1 to "nonspecified trim size,"
and failed to consider that QATAP also includes "nonflush trim
size." See Motion, at 3. However, in the Board's view, the
Motion merely reargues the same evidence considered by the Board
in its Decision and Order, and has presented nothing new upon
which it could base reconsideration of its opinion. See
Shipman's Reconsid., supra, slip op. at 7-9; Univex Reconsid.,
supra, slip op. at 7-8; Sterling Reconsid., supra, slip op. at
16. Accord Sauer Incorporated, supra; Betty and Eddie Jackson,
supra. See also Dinah Wolverton Perkins, PSBCA No. 3691, 96-1
BCA ¶ 28,169.
The Respondent's argument on reconsideration that the Board's
failure to consider "nonflush trim size" in its analysis of QATAP
finishing attribute F-1, while new, is without merit for several
reasons. First, in his final decision letter of July 14, 1994,
the Contracting Officer clearly stated that he was rejecting the
initial printing of the Student Guide because of, inter alia, a
"nonspecified trim size" defect; nowhere in his correspondence is
any mention made of a "nonflush trim size" deviation. Indeed,
throughout these proceedings prior to reconsideration, the
Government never alluded to the possibility that the binding
stubs presented a "nonflush trim size" defect within the meaning
of QATAP finishing attribute F-1. In that regard, even a cursory
look at QATAP shows that "nonflush trim size" and "nonspecified
trim size" are substantially different concepts. The Respondent
has already told us that "nonflush trim size" means "any
variation in length or width within a copy," and is determined by
measuring "the greatest deviations in length and width between
two pages in the copy." See Motion, at 3. "Nonspecified trim
size," on the other hand, is defined in QATAP as "any deviation
in the specified horizontal or vertical trim size," and is
determined by measuring "the greatest deviations of the
horizontal and vertical trim from the specified size." See
QATAP, p. 27. Consequently, unlike "nonflush trim size" defects,
which are determined by measuring individual pages in a
publication, any deviation in "nonspecified trim size," by its
very nature, can only be revealed by measuring the entire
publication. Therefore, if the Board made any mistake at all in
its Decision and Order when it stated that " . . . the Board has
ruled that trim measurements for finishing attribute F-1 are to
be taken of the whole publication and not its component parts,
such as individual pages," it was an error of omission; i.e., in
light of the Motion, perhaps the Board should have made it
absolutely clear that it was referring only to "nonspecified trim
size" defects by adding the word "nonspecified" before the words
"trim measurements" when it drafted that sentence. However,
since the Board quoted the relevant portion of the Contracting
Officer's final decision ("The stubs are a nonspecified trim size
and a major deviation defect . . .") in the immediately preceding
sentence, which addressed what he measured in determining that
the Student Guide violated QATAP ("only . . . the binding lips
themselves"), one would think that such a clarification was
unnecessary, and that as a matter of logic, the parties could
have made the connection on their own. In any event, even if the
Board was now to correct its error of omission by adding the
missing word in the disputed sentence, such an amendment would be
immaterial and would not change its decision of March 12, 1997.
See Material Sciences Corp., ASBCA No. 47067, 96-2 BCA ¶ 28,532,
at 142,468; Intermax, Ltd., supra, 93-3 BCA at 130,443; Cherokee
Construction Co., ASBCA No. 39360, 90-2 BCA ¶ 22,754, at 114,215;
Mission Van and Storage Co., Inc., GSBCA No. 7386-R, 85-2 BCA ¶
18,032, at 90,492. Accordingly, by definition, the Board's
mistake would, at most, constitute mere "harmless error," and as
such is an insufficient reason to reverse the Decision and Order
in a reconsideration proceeding. See Castillo Reconsid., supra,
slip op. at 15. Accord Intermax, Ltd., supra; Mark Smith
Construction Co., Inc., supra; Structural Painting Corp., supra.
Second, apart from the conceptual differences between "nonflush
trim size" and "nonspecified trim size," the Respondent's
argument on reconsideration has no evidentiary support in the
record. In stating that "nonflush trim size" is tested by
measuring "the greatest deviations in length and width between
two pages in the copy," see Motion, at 3 (citing QATAP, p. 27)
[emphasis supplied by Respondent.], and telling us that "[i]n
this case, the individual pages were subject to inspection and
comparison to the required trim size," id. [emphasis added.], the
Government ignores the fact that at the hearing the Contracting
Officer admitted that the binding stubs were not "pages," and
indeed, the Board so found, see Custom Printing Co., supra, slip
op. at 60, n. 56 (citing hearing transcript at 107)-a finding
which has not been challenged by GPO in this proceeding.12
Consequently, the Board agrees with the Appellant that any
discussion of "nonflush trim size" is irrelevant to the issues
considered in this appeal. See Response, at 3. See also
Cherokee Construction Co., supra, 90-2 BCA at 114,215; Mission
Van and Storage Co., Inc., supra, 85-2 BCA at 90,492.
Third, as the Contractor correctly points out, this case was
really about contract interpretation and not the administration
of QATAP. See Response, at 2-3. Thus, at the outset of its
discussion in the Decision and Order of the first of the two
issues involved in the appeal,13 the Board emphasized that since
the parties had drawn different meanings from the "BINDING"
specification, its primary task was to interpret the contract and
decide which of the two conflicting interpretations was correct,
or whether both readings might be reasonably derived from the
contract terms; i.e., it had to determine if the contract was
ambiguous. See Custom Printing Co., supra, slip op. at 29-30.
After examining the contract language and the evidence of record,
the Board ruled in favor of the Appellant on the ambiguity
question and allowed recovery on the basis of the doctrine of
contra proferentem. See Custom Printing Co., supra, slip op. at
38-39, 62-65. In that regard, like its discussion of the
parties' divergent views with respect to trade practice, id., at
39-49, and their prior course of dealings, id., at 49-55, the
Board's primary purpose in addressing QATAP in the context of its
opinion was simply to illustrate the ambiguous nature of the
contract, and to show that the ". . . 'BINDING' specification,
as written, with no language prohibiting the use of binding
stubs," did not ". . . adversely [affect] the Government's
ability to administer the express requirements of the quality
assurance provisions in the agreement[,]" id., at 62 (citing The
George Marr Co., supra, slip op. at 45-46; Professional Printing
of Kansas, Inc., supra, slip op. at 53). Consequently, GPO's
arguments to the contrary were rejected. Id. Therefore, the
Board views the Motion as nothing more than an attempt by the
Respondent to reopen that discussion. However, not only has the
Government failed to present any new evidence, but all of the
relevant contract provisions were considered by the Board in its
Decision and Order. As previously indicated, reconsideration is
not intended to allow the moving party to reinterpret old
evidence or reargue the case. See Shipman's Reconsid., supra,
slip op. at 7-9; Univex Reconsid., supra, slip op. at 7-8;
Sterling Reconsid., supra, slip op. at 16; Castillo Reconsid.,
supra, slip op. at 5; Graphic Litho Reconsid., supra, slip op. at
3-5. Accord Sauer Incorporated, supra; Betty and Eddie Jackson,
supra; Dinah Wolverton Perkins, supra; Blake Construction
Company, supra; Prime Roofing, Inc., supra; Ford Aerospace &
Communications Corp., supra. See also Contel Federal Systems,
Inc., GSBCA No. 9743-P-R, 89-1 BCA ¶ 21,510. Moreover, the Board
is convinced that its decision on the ambiguity question was
consistent with the case law cited in its opinion; i.e., the
Board's only job was to determine if the Appellant's
interpretation of the contract, standing alone, fell within the
"zone of reasonableness," not whether that meaning was more
reasonable than the Government's, see Custom Printing Co., supra,
slip op. at 56 (citing George Bennett v. United States, 178 Ct.
Cl. 61, 371 F.2d 859 (1967); Peter Kiewit Sons' Co. v. United
States, 109 Ct. Cl. 390, 74 F.Supp. 165 (1947)), or which of the
parties' conflicting versions of the agreement was better, see
Castillo Reconsid., supra, slip op. at 12-13 (citing Fry
Communications, Inc./InfoConversion Joint Venture v. United
States, supra; WPC Enterprises, Inc. v. United States, 163 Ct.
Cl. 1, 323 F.2d 874 (1963)). Accordingly, the Board's
reconsideration of the ambiguity issue is not warranted. See
Castillo Reconsid., supra, slip op. at 13.
Finally, there is no merit to the Respondent's "warning" that
unless the Board reversed its views regarding QATAP, contractors
will be allowed ". . . to provide publications consisting of
pages with varying lengths and widths." See Motion, at 3. Such
speculation by the Government does not establish a basis for
reconsideration. See Service Ventures, Inc., ASBCA No. 36726,
89-1 BCA ¶ 21,438 (Government's contention that the board's
ruling would have an adverse impact on the procurement process).
Besides, making predictions about the future conduct of other GPO
contractors on different contracts is not a legitimate part of
the Board's decisional role. Rather, the Board's responsibility
is to decide a controversy based on the evidence presented by the
parties, the language of the contract in dispute, and the legal
precedents. Id., at 108,019. The Board believes that it
performed this function correctly in this case.
ORDER
For all of the foregoing reasons, the Board finds and concludes
that the Respondent has presented no grounds which would warrant
reconsideration of the Decision and Order in this case.
ACCORDINGLY, the Motion is DENIED and the Decision and Order is
AFFIRMED.
It is so Ordered.
July 10, 1997 STUART M. FOSS
Administrative Judge
_______________
1 The Appellant did not seek reconsideration of the Board's
decision denying its claim for additional manufacturing and paper
costs.
2 The specification in question provided: "BINDING: Score covers
and fold with grain parallel to spine. Separate covers
wraparound. Saddle wire stitch in two places along 216 mm
(8-1/2") bind. Trim 3 sides."
3 In its opinion, the Board noted that even though finishing
attribute F-1 (Trim Size) was the only QATAP reference made by
the Contracting Officer in his final decision of July 14, 1994,
at the hearing he testified that the binding stubs could also be
considered extra blank pages, and thus rejectable under finishing
attribute F-15 (Blank Pages-Other Than Specified). See Custom
Printing Co., supra, slip op. at 15, n. 23 (citing QATAP, p. 44).
However, the Board held that because it functions as an appellate
body to consider properly filed appeals from final decisions of
GPO contracting officers, it only deals with issues and facts as
they existed at the time of the final decision, and not with
those which may have arisen subsequently. Id., at 28-29, n. 43
(citing See Datagraphics Press, Inc., [GPOCAB] (June 23, 1978),
slip op. at 6, 1978 WL 22342; Board Rules, Preface to Rules, ¶ I
(Jurisdiction for Considering Appeals)). Therefore, since
finishing attribute F-15 was not a reason given by the
Contracting Officer for his rejection of the product in his final
decision, the Board did not consider that element of QATAP in the
context of its opinion. Id. See also Custom Printing Co.,
supra, slip op. at 60, n. 56.
4 The Board also reasoned that another ground of recovery could
have been the doctrine of constructive change since the
Appellant's "single signature" press configuration was not
unreasonable under the circumstances. See Custom Printing Co.,
supra, slip op. at 65-68.
5 The Board also found, inter alia, in agreement with the
parties, that neither the contract, QATAP, or the supplement
specifications in GPO Contract Terms (GPO Contract Terms,
Solicitation Provisions, Supplemental Specifications, and
Contract Clauses, GPO Publication 310.2, Effective December 1,
1987 (Rev. 9-88)), which was also incorporated by reference in
the contract, expressly addressed, or provided evaluation
standards for products which use binding stubs. See Custom
Printing Co., supra, slip op. at 68. Consequently, it concluded
that there were no valid, quantifiable, objective, and firm
standards against which to measure the Appellant's compliance
with QATAP finishing attribute F-1 (Trim Size). Id., at 74.
Therefore, it held that without any such objective evaluation
criteria, the Government could not establish the basis for its
rejection of the Student Guide. Id., at 77-78 (citing
Professional Printing of Kansas, Inc., supra, slip op. at 71,
74-77, 80-81; Elgin Business Forms, GPOCAB 10-84 (October 19,
1984), slip op. at 5-6, 1984 WL 148108; Electronic Composition,
Inc., [GPOCAB] (December 22, 1978), slip op. at 34, 1978 WL
22339). The Board's ruling has not been challenged by the
Respondent.
6 The Motion also addresses the Board's observation that MEPCOM's
complaint was treated as an exception to the usual quality
complaint procedures, see Custom Printing Co., supra, slip op. at
60, n. 57, by explaining that, in this case, samples from the
entire shipment of the Student Guide were not subject to the
QATAP evaluation, but rather the Government's examination was
confined to the five "prior to shipping approval copies" required
by the contract. See Motion, at 3-4 (citing R4 File, Tab A, at
3, 5). The Respondent tells us that if QATAP measurements had
been taken of the final delivered product, then the record would
have included the "Notice of Quality Defects" (GPO Form 1815) and
the "Inspection Report" (GPO Form 916), which the Board observed
were missing from the file. See Motion, at 4. Unlike its
allegations with respect to finishing attribute F-1 (Trim Size),
GPO's comments regarding the inspection procedure followed in
this case are clearly not intended as an accusation of error in
the Board's Decision and Order. Instead, it is apparent that the
Respondent's only purpose is to clarify why GPO Form 1815 and
GPO Form 916 were not part of the record. While the Board
appreciates the explanation, it had already concluded that the
absence of those QATAP forms had no meaningful effect on its
decision. See Custom Printing Co., supra, slip op. at 60, n. 57
(citing Shepard Printing, GPO BCA 23-92 (April 29, 1993), slip
op. at 18-19, 1993 WL 526848). The Board's conclusion was made
easier by the fact that this dispute did not involve a challenge
to the size of the sample upon which the rejection was based.
See B.P. Printing and Office Supplies, GPO BCA 22-91 (February 5,
1993), slip op. at 16-21, 1993 WL 311371. A rejection based on
the full production run would have required an examination of 50
pamphlets, not five, selected randomly from sublots of
approximately 13,000 copies of the Student Guide, see R4 File,
Tab A, at 5 ("QUALITY ASSURANCE RANDOM COPIES" specification),
although it is true that a lot can be rejected without sampling
if it is obvious from the nature of the defect that it extends
throughout the lot, see B.P. Printing and Office Supplies, supra,
slip op. at 19, n. 24 (citing QATAP Technical Manual, GPO
Publication 355.1, March 1989, at 7; GPO Technical Report No. 27,
Subject: Acceptance Sampling, dated July 1, 1988).
7 The Appellant correctly observes that the Board, like its
Executive Branch counterparts, will often address all of the
arguments raised by the parties in its decisions, regardless of
whether they are controlling of, or ancillary to, the ultimate
outcome. See Response, at 2.
8 See Custom Printing Co., supra, slip op. at 60, n. 56 (citing
hearing transcript at 107). As the Appellant notes, the Board's
conclusion in this regard has not been challenged by the
Respondent. See Response, at 1.
9 The Contractor urges the Board to adopt a general rule which
would bar reconsideration unless the grounds alleged as error is
dispositive of the ultimate conclusion or holding in a particular
case. See Response, at 2. However, such a "harmless error rule"
has already been enunciated by the Board. See Castillo Printing
Co., GPO BCA 10-90 (March 30, 1992), Decision on Motion for
Reconsideration and Order, slip op. at 15 (hereinafter Castillo
Reconsid.). In that regard, the Board's "harmless error" rule is
consistent with the reasoning applied by other contract appeals
boards when reconsidering previous decisions. See e.g.,
Intermax, Ltd., ASBCA Nos. 41828, 42226, 42227, 43900, 93-3 BCA¶
26,207; Mark Smith Construction Co., Inc., DOT BCA No. 2044, 90-1
BCA ¶ 22,626; Structural Painting Corp., ASBCA Nos. 36813, 3705,
89-3 BCA ¶ 21,978. See also Rules of the U. S. Court of Federal
Claims, 28 U.S.C. Appendix, Rule 61 ("Harmless Error. . . . The
court at every stage of the proceeding must disregard any error
or defect in the proceeding which does not affect the substantial
rights of the parties.").
10 For the purposes of reconsideration, "newly discovered
evidence" is defined as evidence of facts existing at the time of
the original proceeding of which the party was excusably
ignorant, and which could not, by the exercise of due diligence,
have been discovered in time to present in the original
proceeding. See Yachts America, Inc. v. United States, 779 F.2d
656, 662 (Fed. Cir. 1985); Warner v. Transamerica Insurance Co.,
739 F.2d 1347, 1353 (8th Cir. 1984); United States v. Walus, 616
F.2d 283, 287-88 (7th Cir. 1980). See also Danac, Inc., ASBCA
No. 33394, 94-1 BCA ¶ 26,286, at 130,759; M.C. & D. Capital
Corp., ASBCA No. 38181, 93-2 BCA ¶ 25,894, at 128,802; Sunshine
Cordage Corp., ASBCA No. 38904, 90-1 BCA ¶ 22,572, at 113,277;
Dae Lim Industries Co., ASBCA No. 28416, 87-3 BCA ¶ 20,110.
Also, newly discovered proof must not be merely cumulative and
must be of such a material nature as will probably change the
outcome or produce a different result. See Yachts America, Inc.
v. United States, supra, 779 F.2d at 662; Warner v. Transamerica
Insurance Co., supra, 739 F.2d at 1353; United States v. 41
Cases, More or Less, 420 F.2d 1126, 1132 (5th Cir. 1970). See
also Danac, Inc., supra, 94-1 BCA at 130,759; Sunshine Cordage
Corp., supra, 90-1 BCA at 113,277; Finast Metal Products, Inc.,
ASBCA No. 19860, 85-1 BCA ¶ 17,873 at 89,518. The same
requirements regarding materiality and a difference of result
also apply to alleged errors or oversights of findings of fact
and conclusions of law. See e.g., Camel Manufacturing Co., ASBCA
No. 41231, 91-2 BCA ¶ 23,908; Optimal Data Corp., NASABCA No.
381-2, 85-2 BCA ¶ 18,165.
11 As the Respondent indicates, contract interpretation is
clearly a question of law. See Motion, at 2 (citing Fortec
Contractors v. United States, 760 F.2d 1288, 1291 (Fed. Cir.
1985); P.J. Maffei Building Wrecking Co. v. United States, 732
F.2d 913, 916 (Fed. Cir. 1984); Pacificorp Capital, Inc. v.
United States, 25 Cl. Ct. 707, 715 (1992), aff'd 988 F.2d 130
(Fed. Cir. 1993); Fry Communications, Inc./InfoConversion Joint
Venture v. United States, 22 Cl. Ct. 497, 503 (1991); Hol-Gar
Manufacturing Corp. v. United States, 169 Ct. Cl. 384, 386, 351
F.2d 972, 973 (1965). Where such legal grounds can be shown, the
Board will reverse itself and grant the motion. See e.g.,
Swanson Reconsid., supra (the Board overturned its initial
decision declaring the that contractor, who was party to a
"requirements" term contract, was entitled to convenience
termination costs based on the estimated contract price over its
term, when the Government showed that the contract in question
was a multiple-award contract, and as such was not a
"requirements" contracts, as that term is understood in
procurement law. Citing Media Press, Inc. v. United States, 215
Ct. Cl. 985, 986 (1977)). On appeal by the contractor, the
Board's decision was affirmed by the U.S. Court of Federal
Claims. See Richard C. Swanson and Larry A. Ford, d.b.a. Swanson
Printing & Typesetting Co. v. United States, C.A. 94-185C (August
15, 1996) (unpublished).
12 See note 8 supra. GPO's failure to challenge the Board's
conclusion that binding stubs are not "pages" is probably reason
enough to deny the Motion. See Mission Van and Storage Co.,
Inc., supra, 85-2 BCA at 90,493 (" Aside from appellant's
arguments in support of its motion, we would nevertheless affirm
our original result because appellant has not challenged our
primary rationale for finding no binding course of dealing.").
13 The second question concerned whether or not the contract,
QATAP, or GPO Contract Terms contained the evaluation standards
against which the binding stubs would be measured. See note 5
supra.
18