U.S. GOVERNMENT PRINTING OFFICE
BOARD OF CONTRACT APPEALS
WASHINGTON, DC 20401
In the Matter of )
)
The Appeal of )
)
OLYMPIC GRAPHIC SYSTEMS ) Docket No. GPO BCA 01-92
Program 2927-S )
Purchase Order N-1595 )
DECISION AND ORDER
By letter dated April 5, 1991, Olympic Graphic Systems (Appellant
or Contractor), 3516 East Olympic Boulevard, Los Angeles,
California 90023, filed a timely appeal from the January 17,
1991, final decision of Contracting Officer James A. Davidson, of
the U.S. Government Printing Office's (Respondent or GPO or
Government) Los Angeles Regional Printing Procurement Office
(LARPPO), 3950 Paramount Boulevard, Room 220, Lakewood,
California 90712-4137, rejecting the Appellant's claim of a post-
award mistake in bid on its contract identified as Program 2927-
S, Purchase Order N-1595, and notifying the Contractor that steps
would be taken to "recover all payments that may have been made
in excess of the agreed
to Schedule of Prices rates[.]" (R4 File, Tab M).1 For the
reasons which follow, the decision of the Contracting Officer is
hereby AFFIRMED, and the appeal is DENIED.2
I. BACKGROUND3
1. On December 19, 1989, the Respondent issued a solicitation
for a single-award "Requirements" contract on behalf of the
Department of the Navy (Navy) for "Copying, Diazo Printing, and
Films" in each of two (2) categories for a one-year term
beginning January 1, 1990, and ending December 31, 1990 (R4 File,
Tab A, at 1). As described in the solicitation, the scope of the
work consisted of "the production of text matter, films, and
drawings requiring such operations as copy pickup, copying, diazo
printing, camera work, binding, packing, labeling and marking,
and distribution[.]" (R4 File, Tab A, at 5). The contract also
provided that "[p]ayment will [be] based on the finished trim
size indicated on the Print Order, rounded up to the nearest
square foot[.]" (R4 File, Tab A, at 13). This dispute concerns
the award of, and payment for Category II work.
2. On January 9, 1990, the Appellant, who was the incumbent
contractor, submitted its bid for the contract (R4 File, Tabs B
and U). In that regard, the Contractor was one of five (5)
responsive bidders for the Category II work (R4 File, Tabs C, D
and H).4 The Contractor's Category II offer for the line items
listed in the solicitation's "Schedule of Prices" was:
I. Diazo Prints: (PAYMENT WILL [BE] BASED ON THE FINISHED TRIM
SIZE INDICATED ON THE PRINT ORDER, ROUNDED UP TO THE NEAREST
SQUARE FOOT.)
a. Diazo blueline/blackline prints. . . per
square foot $0.06
b. Diazo sepia vellum. . .per square foot 0.25
c. Intermediates. . . .per square foot 0.25
d. Blackprints - electrostatic/xerographic
2080 or equivalent:
(1) White bond 20-lb. .per square foot. . 0.44
(2) White vellum 20-lb. . . .per square
foot 0.54
II. ADDITIONAL OPERATIONS:
a. Folding prints. . . .per 100 leaves $1.00
b. Wrapping in rolls. . . .each roll 1.00
c. Staple sets. . . .each set 1.00
d. Collating prints into sets. . . . .per
100 prints 5.00
III. Films:
a. Lithographic Film. . . per square foot $3.00
b. Mylars. . . . . . . . . . per square foot 3.00
c. Washoff Mylars. . . . per square foot 3.25
See R4 File, Tab B.
3. On March 9,1990, the Respondent issued Purchase Order N-1595
to the Appellant awarding it the Category II work at a contract
price of $66,650.25 (R4 File, Tab E). Thereafter, it received
print orders, satisfactorily performed the work and delivered it
on time, and submitted its bills for payment to the Government.
See RPTC, at 3.
4. On October 19, 1990, the Navy facility at Point Mugu,
California, contacted the LARPPO and complained about the
Contractor's charges on seven print orders-Print Orders 21014,
21015, 21016, 21017, 21020, 21022, and 21024 (R4 File, Tab F).
Specifically, the Navy said that it appeared the Appellant was
overbilling, and wanted GPO to explain the difference between its
invoices and the customer-agency's estimates for the work. In
that regard, the record shows the following:
Print Order Navy Estimate5 GPO Estimate GPO Bill
21014 $ 187.76 $ 164.00 $
216.00
21015 821.80 867.00 1,743.00
21016 68.56 67.00 126.00
21017 1,236.23 1,330.00 1,374.00
21020 176.48 177.00 352.00
21022 536.57 545.00 1,033.00
21024 112.20 114.00 27.00
See R4 File, Tabs F and G.
5. After receiving the Navy's complaint, the Contracting
Officer immediately contacted Robert E. Burns, the Appellant's
President, and requested that he send copies of the disputed
invoices to the LARPPO (R4 File, Tab F). From his own
examination, it appeared to the Contracting Officer that the
Contractor was (with one exception) overcharging the Government
for the contract work, as alleged by the Navy (R4 File, Tab G).
See RPTC, at 3. Therefore, on November 6, 1990, the Contracting
Officer wrote to Philip Jones, Chief, General Examination and
Support Branch, in GPO's Financial Management Service
(hereinafter FMS), and asked him to: (a) audit the invoices in
question and make any necessary corrections; and (b) monitor the
Appellant's future billings on the contract (R4 File, Tab G).
6. On November 13, 1990, the Contracting Officer received a
letter from the Contractor, dated November 7, 1990, which stated,
in pertinent part:
Today I was involved in a three way conversation with Ms. Diane
Abeyt and Ms. Molina of Point Magu [sic] and myself.
They brought to my attention category Item II I D Blackprints
Electrostatic/Xerographic 2080 or Equivalent.
1 White Bond 20Lb per Square Foot $ .44
[2] White Vellum 20Lb per Square Foot $ .54
Diane Abeyt stated that we were overcharging the Navy for the
work. Last year on 9/14/89, you signed a contract modification
for these two Items to change the price to .90 for Bond and $1.00
for Vellum. This was necessary due to the cost to produce this
work. We continued to charge this price this year with no
changes made in the contract.
When my Manager Don LaPlante typed up the new contract with the
same prices as last year, they were submitted to me to sign and
initial. I was under the understanding that all prices were the
same and that the two Items in question were still $ .90 and
$1.00[,] as the modification stated.
If that modification is not acceptible [sic] then I would not be
able to do the work for .44 and .54 per Square Foot.
You are aware of our previous correspondence which we stated and
referred to the modification. Therefore we were not misleading
you, the Navy or GPO.
We also stated that we were not getting paid for all of the
footage that was processed because GPO was figuring on square
inches instead of to the nearest square foot which the contract
states.
* * * * * * * * * *
See R4 File, Tab H. [Emphasis added.]
7. The contract modification referred to in the Appellant's
letter, was Contract Modification No. 89-1, issued December 20,
1998, for the prior year's Program 2927-S (R4 File, Tab S).
Contract Modification No. 89-1 provided:
Effective with print order 10124 and continuing for the balance
of the contract term add the following items to the
specifications:
20-lb. white bond, blackprints, electrostatic/xerographic 2080 or
equivalent, per square
foot.....................................$0.90[.]
20-lb. white regular vellum, blackprints,
electrostatic/xerographic 2080 or equivalent per square
foot............................$1.00[.]
All other specifications remain the same.
See R4 File, Tabs J and S. The contract modification was issued
because the 1989 contract for Program 2927-S did not contain
these two line item specifications (R4 File, Tab T; Answer, � 3).
8. The Respondent interpreted the Appellant's November 7, 1990,
letter as a post-award mistake in bid claim. See RPTC, at 3.
Accordingly, on November 14, 1990, the Contracting Officer sent
a letter to the Contractor, which said, in pertinent part:
This concerns your claim of a mistake in bid alleged after award
on Program 2927-S. Before any further action can be taken, you
must support this claim immediately, by furnishing a sworn
statement (affidavit), . . . supported by all pertinent evidence
such as the contractor's file copy of the bid, the original
worksheets and other data used in preparing the bid,
subcontractors' or suppliers' quotations (if any), published
price lists and any other evidence which will serve to establish
the mistake, the manner in which it occurred, and the bid
actually intended. Failure to submit material as prescribed may
preclude consideration of your claim.
See R4 File, Tab I.
9. Pursuant to the Contracting Officer's request, the Appellant
submitted a document entitled "Affidavit," dated November 27,
1990 (notarized on November 28, 1990), and signed by Burns, which
stated, in pertinent part:
* * * * * * * * * *
2. The bid Olympic Graphic Systems submitted was for the GPO
Program 2927[-]S which was submitted in error in the following
respects.
a. On Items [sic] I D (1) White Bond 20Lb per Square Foot should
be $ .90 not $ .44.
b. On Item I D (2) White Vellum 20Lb per Square Foot should be
$1.00 not $ .54.
3. The error occurred because the mark up was changed by hand and
was not changed by the typist.
4. The attached worksheets are the original worksheets used to
prepare the bid and have not been altered. The marked up sheet
was typed by Don LaPlante, Production Manager. We can not [sic]
find the original copies, all we can find is a copy of the marked
up sheet. This is the sheet where the error was made. We also
enclose a copy of the contract modification of the previous
contract.
* * * * * * * * * *
5. We wish the bid to be corrected and, if not correctable, that
the bid be withdrawn.
See R4 File, Tab J.6 [Emphasis added.] In addition to enclosing
the markup sheet and a copy of Contract Modification 89-1, Burns
also attached a copy of pages 4 through 8 of the Contractor's
"Price Guide" to his Affidavit , (R4 File, Tab J). See also
RPTC, at 4. The "Price Guide," showed that the Appellant's
standard charge for xerographic copying on bond paper was $1.30
(line item I.d(1)) per square foot, and on 20 pound vellum (line
item I.d(2)) it was $1.60 (R4 File, Tabs J and K). Id.
10. On January 3, 1991, after considering the Contractor's
evidence, the Contracting Officer determined that the post-award
mistake in bid claim had no merit, and he wrote to GPO's
Contract Review Board (CRB) requesting its concurrence in his
decision to deny it (R4 File, Tabs K and L).7 See RPTC, at 4-5.
The Contracting Officer told the CRB, in pertinent part:
* * * * * * * * * *
The items involved can not [sic] be deleted from the contract.
The contract price, if corrected, would exceed that of the next
lowest acceptable bidder.
At certification, I believed the bid prices were lower for these
items, when compared to the prices on the previous year[']s
negotiated prices, due to competition.
The contractor has performed and received payment for
approximately 83 orders.
The contractor has not presented clear and convincing evidence
that a mistake was made, the mistake was not mutual, and the
claimed
unilateral mistake was not so apparent as to have charged the
contracting officer with notice of a possibility of a mistake.
* * * * * * * * * *
See R4 File, Tabs K and L. On January 17, 1991, the CRB approved
the Contracting Officer's proposal to deny the Appellant's post-
award mistake in bid claim (R4 File, Tab K and L).
11. By letter, dated January 17, 1991, expressly designated
"final decision," the Contracting Officer notified the Contractor
that its post-award mistake in bid claim was rejected and that he
was taking steps to recover all excess payments (R4 File, Tab
M).8 See RPTC, at 5. On that same day, the Contracting Officer
sent a memorandum to the FMS, telling it that the Contractor's
claim of a mistake after award on Program 2927-S had been denied,
and requesting "an audit of vouchers submitted to date and for
the balance of the current term for items I.d.(1) and (2),
Category II, Program 2927-S, which was awarded to Olympic Graphic
Systems, 040-23092, on [March 9, 1990], under Purchase Order N[-]
1595[.]" (R4 File, Tab N).
12. By letter dated April 5, 1991, the Contractor timely
appealed the Contracting Officer's final decision to the Board.9
II. ISSUES PRESENTED10
1. Was the Contracting Officer in error when he decided that
under the PPR the Appellant had not supported its post-award
mistake in bid claim for line items I.d.(1) and I.d.(2),
respectively, with sufficient "clear and convincing evidence"?
Stated otherwise, has the Contractor shown, by "clear and
convincing evidence," that, in fact, it made a bidding error
which was so apparent as to have charged the Contracting Officer
with notice of the probability of a mistake, and that it is
entitled to a contract modification revising the contract price
for line item I.d.(1) from $0.44 to $0.90 per square foot, and
for line item I.d.(2) from $.054 to $1.00 per square foot?
2. Are the WRA's printing industry standards which measure
diazo/black prints to the nearest "square inch" instead of
"square foot" binding on the Government so that the contract may
be deemed to be modified to that extent for payment purposes?
III. POSITION OF THE PARTIES
The Appellant recognizes that its obligation is to prove that it
made a mistake in bid by "clear and convincing evidence," and it
believes that it has done so in this appeal. See RPTC, at 5;
App. Brf., at 2. The Contractor relies primarily on two things
in support of its position: (1) Burns' Affidavit, with
attachments; and (2) the parties' prior dealings with regard to
the 1989 contract. These, the Appellant states are sufficient to
show that its bids for line items I.d.(1) and I.(d).(2) of $ .44
and $ .54, respectively, were clearly a mistake, which should
have been apparent to the Respondent because it had previously
issued Contract Modification 89-1, which allowed prices of $ .90
and $1.00 for the same work.11 See RPTC, at 5-6; App. Brf., at
1; R4 File, Tab J. In the latter regard especially, the
Appellant argues that it had a good faith belief that the prices
negotiated by the parties when the two disputed line items were
added to the 1989 contract remained in force and effect for the
1990 agreement. See RPTC, at 6 (citing R4 File, Tab S; see also
Tab J); App. Brf., at 1. Furthermore, the Contractor contends
that the Contracting Officer's two (2) month delay in responding
to its request for a contract modification, was also prejudicial
in this case. See RPTC, at 6 (citing R4 File, Tab M); App. Brf.,
at 2. Finally, the Appellant also argues that the "square foot"
formula GPO employed to price Diazo/black prints was contrary to
the WRA standard established for the industry, in which prices
are figured on a "square inch" basis. See RPTC, at 6; App. Brf.,
at 2, 3. The Contractor claimed that the Respondent's
"erroneous" pricing method had cost it approximately $4,000.00
over the previous five (5) years. See RPTC, at 6. Since this
way of pricing worked to the disadvantage of all GPO contractors,
including the Appellant, it urged the Board to reverse the policy
and to refund the past deductions made by the Government from its
invoices on various contracts. See RPTC, at 7. Accordingly, for
these reasons, the Contractor asserts that the Respondent's
decision denying its post-award mistake in bid claim and seeking
recovery of any overpayments, was in error, and should be
overturned by the Board. See RPTC, at 6; App. Brf., at 3.
The Respondent, on the other hand, contends that the Appellant's
evidence is inadequate to support the Contractor's post-award
mistake in bid claim.12 See RPTC, at 4-5; R. Brf., at 3. The
Government says that it is clear that if any bidding error
occurred in this case it was unilateral on the part of the
Appellant, and thus it can recover only if the Contracting
Officer had constructive notice of the mistake, when measured
against a standard of reasonableness.13 See R. Brf., at 4
(quoting Citiplate, Inc., GPOCAB 4-83 (December 20, 1983), slip
op. at 2, 1983 WL 135374. Citing Charnick v. United States, 178
Ct. Cl. 498, 372 F.2d 492 (1967); Wender Presses, Inc. v. United
States, 170 Ct. Cl. 483, 343 F.2d 961 (1965)).14 GPO contends
that the Contractor's evidence does not meet the standard
necessary to place the Contracting Officer on notice that there
may have been a bidding error, because, inter alia, the Appellant
was not the lowest bidder, but rather the third lowest.15 See
RPTC, at 5; R. Brf., at 4 (citing R4 File, Tab C). As for the
argument that Contract Modification 89-1 established the prices
for the disputed line items in the 1990 contract, the Respondent
says that the Contractor has completely misconstrued the facts.
See R. Brf., at 4 (citing R4 File, Tab H). In that regard, the
contract modification added the two line items in question to the
contract-they were not part of the original 1989 solicitation.
Id., (citing R4 File, Tab S). Therefore, when the Contracting
Officer reviewed the bids for the 1990 contract, he thought that
the Appellant had lowered its prices because of competition, and
had no reason to suspect that he was looking at an erroneous bid.
See RPTC, at 7; R. Brf., at 4-5 (citing R4 File, Tab K).
Accordingly, the Respondent asserts that since the Contractor has
not presented any new evidence to the Board, the Contracting
Officer's decision should be upheld. See RPTC, at 7; R. Brf., at
5.
Finally, the Government rejects the Appellant's contention that
the WRA measuring standards are binding on the parties to this
contract. See RPTC, at 7; R. Brf., at 5. In the Government's
view, the contract itself spells out the payment basis for diazo
prints-" . . . the finished trim size . . . rounded up to the
nearest square foot[.]"-and anything else is irrelevant. See
RPTC, at 7; R. Brf., at 5 (citing R4 File, Tab A, at 13). GPO's
argument rests on black letter law which holds that the
Government is entitled to strict compliance with its contract
specifications. Id., (citing Cascade Pacific International v.
United States, 773 F.2d 287 (Fed. Cir. 1987); American Electric
Contracting Corp. v. United States, 217 Ct. Cl. 338, 579 F.2d 602
(1978); Dependable Printing Co., Inc., GPO BCA 5-84 (September
12, 1985), 1985 WL 154847). The Respondent asserts that contract
specifications tell a contractor precisely what the Government
wants and is entitled to receive under the "strict compliance"
doctrine. Id., (Rohr Industries, Inc., ENGBCA No. 4094, 82-1 BCA
� 15,732). The principle also means that a contractor has no
right to substitute its views for the Government's requirements,
especially where the specifications are clear, unambiguous, and
objectively ascertainable, as here. Id., (citing Maxwell
Dynameter Co. v. United States, 386 F.2d 855 (Ct. Cl. 1967);
Herley Industries, Inc., ASBCA No. 15378, 72-2 BCA � 9749,
reconsid. denied, 73-1 BCA � 9922 (1973); Arrow Lacquer Corp.,
ASBCA No. 4667, 58-2 BCA � 2003). GPO contends that in light of
this rule, the Appellant's allegation that the contractual
standard of measurement was depriving it of complete compensation
for all diazo copying, is absolutely without merit. See RPTC, at
7; R. Brf., at 6 (citing R4 File, Tab H). Indeed, the
Government's own analysis shows that there is practically no
difference in the compensation for diazo prints whether the
calculations are made using the WRA standards or the contractual
formula. See R. Brf., at 6 (citing R4 File, Tab W). Therefore,
for all of these reasons, the Respondent urges the Board to deny
the Appellant's claim and sustain the Contracting Officer's
decision. See RPTC, at 7; R. Brf., at 6.
IV. DISCUSSION
Basically, the Appellant's claim for equitable relief is
predicated on two grounds, namely: (1) a clerical error caused
its mistaken bid on the 1990 Program 2927-S contract which was
discovered after award, but in light of the parties prior
dealings with respect to the 1989 contract the Contracting
Officer should have known the correct pricing; and (2) the WRA's
printing industry standards which measure diazo/black prints to
the nearest "square inch" instead of "square foot" should be
binding on the Government.16 In the Board's view, neither
contention has merit.
A. The Appellant has not sustained its claim that it is entitled
to relief because it made a mistake in its bid which was only
discovered after award.
Post-award mistake in bid claims are generally not favored in the
law because they tend to disadvantage the unsuccessful bidders by
creating a situation where a contractor can "buy into" a contract
at a low offer and then rely on its mistake to increase its
contract price to a level where it might not have been awarded
the contract in the first instance. See Web Business Forms, Inc.
supra, slip op. at 25. In that regard, the Board has remarked
that:
It is the duty of the Government to treat all bidders fairly.
Indeed, the very nature of advertised competitive procurements
mandates such action in order that commercial providers of goods
and services will be encouraged to compete for the public's
business. This requirement places a heavy burden upon
contracting officials to strictly adhere to the exact letter of
contract language once award has been made. To do otherwise
would be patently unfair to the unsuccessful bidders and would
discourage future participation in Government solicitations. The
downside of this is that an innocent bidder, as here, who might
not fully comprehend the provisions of the solicitation will
receive the award as low bidder and be economically injured as a
result. Absent Government fault contributing to the commission
of such error, there is no means of negating such an unfortunate
consequence.
See GraphicData, Inc., GPO BCA 28-88 (February 9, 1990), slip op.
at 9, 1990 WL 454980 (hereinafter GraphicData I). See also
Chavis and Chavis Printing, supra, slip op. at 18-19. Accord
Ideal Restaurant Supply Co., VACAB No. 570, 67-1 BCA � 6,237.
Consequently, although such claims are recognized by the law, the
contractor alleging a post-award mistake in bid bears a heavy
burden of proof.17 See Web Business Forms, Inc. supra, slip op.
at 26. Accord W.B. & A., Inc., ASBCA No. 32524, 89-2 BCA �
21,736, at 109,310 (citing United States v. Hamilton Enterprises,
Inc., 711 F.2d 1038 (Fed. Cir. 1983)).
Executive Branch boards of contract appeals draw their authority
to reform contracts from the CDA and the provisions of the
Federal Acquisition Regulation (FAR), � 14.406-4 (Mistakes after
award), which is essentially a statement of the general law
pertaining to contract reformation.18 See Web Business Forms,
Inc. supra, slip op. at 26-27 (citing Construction Administrative
Services, Inc., ENG BCA No. 6033, 93-3 BCA � 26,091; Diamond
Shamrock Refining and Marketing Co., ASBCA No. 43729, 92-3 BCA �
25,132; Para/Medical Supplies, Inc., VABCA No. 1464, 82-1 �
15,660). As a Legislative Branch agency, GPO is not covered by
the CDA, and thus contractors who do business with the Respondent
have no access to that statute for resolution of their disputes.
See Tatelbaum v. United States, 749 F.2d 729, 730 (Fed. Cir.
1984); Wessel Company, Inc., supra, slip. op. at 17, fn. 18. See
also Foss, The First Decade, at 580-81. However, the phrase
"related to this contract" in the GPO "Disputes" clause, see GPO
Contract Terms, Contract Clauses, � 5(a), as well as the agency's
printing procurement regulation, see PPR, Chap. XI, Sec. 6, � 4,
gives the Board the authority to remedy the post-award discovery
of a mistake in bid. See GraphicData, Inc., GPO BCA 35-94 (June
14, 1996), slip op. at 86, 1996 WL_____ (hereinafter GraphicData
II); Web Business Forms, Inc. supra, slip op. at 27; Peake
Printing, Inc., GPO BCA 12-85 (November 12, 1986), slip op. at 6,
1986 WL 181453; Great Lakes Lithograph Co., GPO BCA 18-84 (May
22, 1985), slip op. at 18, 1985 WL 154849. See also Foss, The
First Decade, at 587, fn. 41.
In that regard, the PPR states, in pertinent part:
a. When a mistake in a contractor's bid is not discovered until
after the award, the mistake may be corrected by contract
modification if correcting the mistake would make the contract
more favorable to the Government without changing the essential
requirements of the contract.
b. In addition to the case in subparagraph 6.4a above,
Contracting Officers, after review by the Chairperson, Contract
Review Board, are authorized under the circumstances set forth in
subparagraph 6.4c to make administrative determinations described
as follows in connection with mistakes in bid alleged or
disclosed after award. A determination may be made (1) to
rescind a contract or (2) reform a contract:
(i) by deleting the item or items involved in the mistake; or
(ii) by increasing the price if the contract price, as corrected,
does not exceed that of the next lowest acceptable bid under the
original invitation for bids.
c. Determinations under subparagraph 6.4b may be made only on the
basis of clear and convincing evidence that a mistake in bid was
made, and either that the mistake was mutual or that the
unilateral mistake made by the contractor was so apparent as to
have charged the Contracting Officer with notice of probability
of mistake. If the evidence does not warrant a determination
under subparagraph 6.4(b)(i) or (ii), a determination may be made
that no change shall be made in the contract as awarded.
See PPR, Chap. XI, Sec. 6, �� 4.a-c. [Emphasis added.] Except
for some minor variations in language and structure, the above
quoted paragraphs of the PPR are identical to the provisions of
FAR � 14.406-4 (Mistakes after award).19 Thus, like FAR �
14.406-4 (Mistakes after award), the above provisions of the PPR
basically repeat the general rule of Government contracts law
which holds that a contractor who is awarded a contract on the
basis of mistaken bid will be bound by its erroneous offer if the
mistake was neither induced nor shared by the Government, unless
the contracting officer knew or should have known of the
existence of the mistake at the time the bid was accepted. See
GraphicData, II, supra, slip op. at 87; Web Business Forms, Inc.
supra, slip op. at 28; Great Lakes Lithograph Co., supra, slip
op. at 20-21 (citing, Doke, Mistakes in Government Contracts-
Error Detection Duty of Contracting Officers, 18 S.W.L.J. 1
(1964)). Furthermore, as the Board has indicated several times
in the past, where GPO adopts the regulatory language of other
agencies as its own (in this case the rules regarding post-award
discovery of mistakes in bid), then under settled rules of
construction the Board must presume that the uniform
interpretation given to those words has also been accepted. See
GraphicData, II, supra, slip op. at 87; Web Business Forms, Inc.
supra, slip op. at 29; Sterling Printing, Inc., GPO BCA 20-89,
Decision Denying Second Motion for Reconsideration and Order
(August 12, 1994), slip op. at 3; McDonald & Eudy Printers, Inc.,
GPO BCA 40-92 (January 31, 1994), slip
op. at 11-12, 1994 WL 275096; Banta Co., GPO BCA 03-91 (November
15, 1993), slip op. at 34, 1993 WL 526843; Shepard Printing,
supra, slip op. at 21-22.
The leading decision of this Board on the question of post-award
discovery of a mistake in bid is Great Lakes Lithograph Co.,
supra. In that case the Board, relying on the decision of the
Federal Circuit in United States v. Hamilton Enterprises, Inc.,
supra, found for the contractor on its post-award mistake claim
because the record showed: (1) the existence of a mistake; (2)
that the mistake was not one of judgment but of misreading the
specifications; (3) that the Government shared in the mistake;
and (4) that the appellant presented clear and convincing
evidence what its price would have been but for the mistake. See
Great Lakes Lithograph Co., supra, slip op. at 29. In a lengthy
opinion, the Board set forth, in detail, the standards which are
applied in such cases by this adjudicatory body, explaining, in
pertinent part:
. . . it is well established that an erroneous bid based upon a
mistake in judgment does not entitle the contractor to
reformation of its contract. [Footnote and citations omitted.]
While on the other hand a "clear cut clerical or arithmetical
error, or misreading of specifications" may be compensated in
certain circumstances. [Citation omitted.] "The question depends
not alone on whether the bidder made a mistake but on the
application of certain legal principles to the established facts
in the particular case . . . .". [Citation omitted.]
* * * * * * * * * *
The principles of law to be applied in "mistake in bid" cases
have been judicially fashioned (Aydin Corp. v. United States, 669
F.2d 681, 685 (Ct. Cl. 1982)), based on the view that:
Although an award normally results in a binding contract fixing
the parties' rights and obligations [citation omitted], so that
ordinarily no relief will be granted to a party to an executory
contract in the case of a unilateral mistake [citation omitted],
nevertheless an acceptance of a bid containing a palpable,
inadvertent, error cannot result in an enforceable contract.
Moffett, Hodgkins & Clarke Co. v. City of Rochester, 178 U.S.
373, 20 S.Ct. 957, 44 L.Ed. 1108 (1940); United States v. Metro
Novelty Manufacturing Co., 125 F.Supp. 713 (S.D.N.Y. 1954); Kemp
v. United States, 38 F.Supp. 568 (D.Md. 1941).
* * * * * * * * * *
. . . The task of ascertaining what an official in charge of
accepting bids "should" have known or suspected is, of course not
always an easy one. . . . the test here, as in so many areas,
must be that of reasonableness, i.e., whether under the facts and
circumstances of 'the particular case there were any factors
which reasonably should have raised a presumption of error in the
mind of the contracting officer', Welch, Mistakes in Bids, 18
Fed.B.J. 75, 83 (1958), [Wender Presses, Inc. v. United States,
170 Ct. Cl. 483, 343 F.2d 961, 963 (1965)]. . . where it is
obvious from the range of bids itself that a mistake must have
been made, or that there is a real possibility of such error, and
the Government has done nothing by way of making appropriate
inquiry, relief will be afforded. [Citations omitted.]
Where, as in the case at hand, the Government surmises that there
may be a mistake in bid, "[t]here is authority that a mere
general request for verification would not suffice; it should
invite attention to the reason for surmising error." [Citations
omitted.]
* * * * * * * * * *
In Ruggiero v. United States, 190 Ct. Cl. 327, 420 F.2d 709
(1970), the Court at 715 and 716 said:
. . . As we pointed out in [Charnick] v. United States, 372 F.2d
492, 178 Ct. Cl. 498 (1967), what we are really concerned with is
the overreaching of a contractor by a contracting officer when
the latter has the knowledge, actual or imputed as something he
ought to know, that the bid is based on or embodies a disastrous
mistake and accepts the bid in face of that knowledge. The
corrections of the mistake, perhaps in the teeth of general
conditions or specifications, by rescission or reformation,
represents an application of equitable principles in a legal
action. The mistake, to invoke such principles, must be, as in
the cases cited, a clear cut clerical or arithmetical error, or
misreading of specifications, and the authorities cited do not
extend to mistakes of judgment. . . . [A]n agreement cannot be
revised to reflect a plaintiff's subjective understanding the
defendant does not and should not know of. Benjamin v. United
States, 348 F.2d 502, 172 Ct. Cl. 118 (1965).
See Great Lakes Lithograph Co., supra, slip op. at 17-18, 22-23,
25-26. See also Web Business Forms, Inc. supra, slip op. at
29-31; Atlantic Research Corp., GPO BCA 22-87 (July 10, 1989),
slip op. at 5-6, 1989 WL 384985; Federated Lithographers-
Printers, Inc., GPO BCA 1-86 (May 29, 1987); slip op. at 5, 1987
WL 228970; Peake Printing, Inc., supra, slip op. at 7; Valley
Forms, GPO BCA 1-84 (January 15, 1986), slip op. at 10-11, 13-14,
1986 WL 181464.
Subsequently, in Taggart Printing Corp., the Board amplified its
views when it stated, in pertinent part:
Recently in Valley Forms, Inc., . . .and again in Peake Printers,
Inc., . . . , we cited Manistique Tool and Manufacturing Company,
ASBCA No. 29164, Aug. 13, 1984, 84-2 BCA [� 17,599], wherein at
page 87,677 it said:
As a general rule, neither a Board of Contract Appeals or the
Claims Court is authorized to relieve a bidder from its
obligations under a contract unless it is subject to invalidation
on recognized legal grounds, such as mutual mistake, or a mistake
of which the contracting officer was on notice or should have
been on notice. [Citations omitted.] Moreover, before relief by
reformation or rescission is available to relieve a contractor of
the effect of its mistake, the mistake must be a "clear cut
clerical or arithmetical error, or misreading of the
specifications" and such relief does not extend to mistakes of
judgment. [Citations omitted.]
* * * * * * * * * *
[A]ppellant is entitled to relief in contract reformation or
rescission for a unilateral mistake in bid claimed after contract
award only where the contracting officer knew or should have
known of
the mistake at the time the bid was accepted. [Citations
omitted.]
See Taggart Printing Corp., GPO BCA 11-85 (January 20, 1987),
slip op. at 7, 1987 WL 228967. See also Web Business Forms, Inc.
supra, slip op. at 31-32; Valley Forms, supra, slip op. at 11;
Peake Printers, Inc., supra, slip op. at 7-8. Furthermore, the
Board has adopted the Armed Service Board Contract Appeal's
(ASBCA) analysis in Aerospace Components, Inc., when considering
post-award mistake in bid claims, where the ASBCA said:
. . . [F]or a unilateral mistake in bid (discovered or alleged
after award), to be remediable, the contracting officer must have
had actual knowledge or been on constructive notice of a possible
clerical or careless error in bid. [Citations omitted.] Here,
the only potential indication would have been a substantial price
disparity between the Texas Aerospace bid and the next lowest
offers. Given that this disparity with the next lowest offer was
only 3 percent and the next two offers were 13.4 and 18.8
percent, respectively, higher than Texas Aerospace's bid, we are
unable to conclude that the contracting officer should have been
deemed to have been on constructive notice of an error.
See Web Business Forms, Inc. supra, slip op. at 32-33 (citing
Aerospace Components, Inc., ASBCA No. 28606, 84-3 � 17,536, at
87,339); Valley Forms, supra, slip op. at 12 ; Peake Printers,
Inc., supra, slip op. at 8.
As can be seen, the Board applies precisely the same rules to
post-award mistake in bid claims as its Executive Branch
counterparts. See e.g., Liebherr Crane Corp. v. United States,
810 F.2d 1153 (Fed. Cir. 1987); Bromley Contracting Co., Inc. v.
United States, 794 F.2d 669, 672 (Fed. Cir. 1986); United States
v. Hamilton Enterprises, Inc., supra; Aydin Corp. v. United
States, supra; Ruggiero v. United States, supra; Wender Presses,
Inc. v. United States, supra; Charnick v. United States, supra;
Packard Construction Co., ASBCA No. 45996, 94-1 BCA � 26,512;
Universal Construction Co., NASA BCA No. 83-1092, 93-3 BCA �
26,173; Construction Administrative Services, Inc., supra;
Baltazar Torres, GSBCA No. 11472, 92-3 BCA � 25,178; CESICA
S.p.a., ASBCA No. 42021, 92-2 BCA � 24,964; Lake Shore, Inc.,
ASBCA No. 42577, 92-1 BCA � 24,685; Worldwide Parts, Inc., ASBCA
No. 38896, 91-2 BCA � 23,717; Fan Inc., GSBCA Nos. 7836, 8715,
91-1 BCA � 23,364; George A. Harris Enterprises, Inc., GSBCA No.
9888, 90-1 BCA � 22,405; W.B. & A., Inc., supra; Elias Brothers,
Inc., ENG BCA No. 5321, 88-3 BCA � 21,091; Chemtronics, Inc.,
ASBCA No. 30883, 88-2 BCA � 20,534; Penn-Field Industries, Inc.,
ASBCA No. 31105, 86-3 BCA � 19,228.
The type of claim presented by the Appellant has been considered
by the Board in numerous other cases. See e.g., Web Business
Forms, Inc. supra; Taggart Printing Corp., supra; Peake Printing,
Inc., supra; Federated Lithographers-Printers, Inc., supra;
GraphicData, I, supra; Great Lakes Lithograph Co., supra. In
that regard, the ultimate issue in this appeal is whether or not
the Contractor has a right to reformation of the contract so that
it can be paid more for the contract work than it originally bid,
because its offer was impaired by a clerical error and the
mistake was only discovered after award. In the Board's view,
the settled law in this area requires that the question be
resolved against the Appellant.
Under the law, reformation of the Appellant's contract is
indicated if one of three circumstances is present: (a) there is
proof of a mistake by clear and convincing evidence;20 (b) there
is evidence of a unilateral mistake of such a nature as to put
the Contracting Officer on notice of the error; or (c) the
parties have made a mutual mistake.21 See Web Business Forms,
Inc. supra, slip op. at 35 (citing Construction Administrative
Services, Inc., supra, 93-3 BCA � 26,091, at 129,682; Diamond
Shamrock Refining and Marketing Co., supra, 92-3 BCA � 25,132, at
125,293). At the outset, it is clear that we are not dealing
here with a mutual mistake. See GraphicData, II, supra, slip op.
at 89-94. Accord Rosenburg Lumber co. v. United States, 978 F.2d
660, 668-69 (Fed. Cir. 1992); Atlas Corp. v. United States, 895
F.2d 745, 750 (Fed. Cir. 1990), cert. denied, 498 U.S. 811
(1990). Jeppson Sanderson, Inc. v. United States, 14 Cl. Ct. 624,
628 (1988) (citing American Employers Insurance Co. v. United
States, 812 F.2d 700, 705 (Fed. Cir. 1987)); LTG Timber
Enterprises Incorporated, AGBCA No. 89-126-1, 92-3 BCA � 25,070,
at 124,945; Southern Dredging Company, Inc., supra, 92-2 BCA at
124,117 (citing Martin-Copeland Co., supra; Hilton Construction
Co., Ltd., supra). In that regard, a "mutual mistake" justifying
reformation is generally understood to be a genuine misconception
shared by the parties at the time a contract is formed about a
basic assumption of the agreement, which is erroneous at the time
they enter the contract, and not one which subsequently turns out
to be wrong. See e.g., Management & Training Corp. v. General
Services Administration, GSBCA Nos. 11182, 11297, 11673, 11698,
93-2 BCA � 25,814 (mutual mistake about the costs of providing
chilled water and steam to the buildings under the contracts);
Air Compressor Products, Inc., ASBCA No. 40015, 91-2 BCA � 23,957
(mutual mistake about the nature of the product); Active Fire
Sprinkler Corp., GSBCA No. 5461, 85-1 BCA � 17,868 (mutual
mistake regarding EPA asbestos rules which made work processes
more costly). Cf. Jay P. Altmayer, Nancy Hirshler, Jane Beskin,
Amsouth Bank, N.A., as Trustee Under the Will of Claire Pollack,
and Jay P. Altmayer and Amsouth Bank, N.A., as Co-Trustees Under
the Will of Marvin C. Altmayer v. General Services
Administration, GSBCA No. 12720, 94-3 BCA � 27,070 (a lessor's
claim for reformation of a building lease on the grounds that the
parties were mutually mistaken as to the total price of
alteration work was rejected because, even if a mistake existed,
it did not constitute a basic assumption underlying the lease or
have a material effect on the bargain). However, there is no
evidence in this record tending to establish the criterion for a
mutual mistake, which is that both parties entered the contract
unaware of a fact material to its successful performance or that
both parties entertained an erroneous belief as to the existence
of a matter material to the contract. See GraphicData, II,
supra, slip op. at 93-94 (citing Emerald Maintenance, Inc., ASBCA
No. 29948, 89-3 BCA � 22,127; Southern Dredging Company, Inc.,
supra; Martin-Copeland Co., supra; Hilton Construction Co.,
Ltd., supra); Web Business Forms, Inc. supra, slip op. at 35
(citing Construction Administrative Services, Inc., supra; Elias
Brothers, Inc., supra). Instead, the issue before the Board
clearly concerns a claim of a unilateral mistake by the
Appellant-specifically a mistaken assumption regarding the
continued effect of Contract Modification No. 89-1-which resulted
in an erroneous initial offer for the contract work.
The cases tell us that for reformation of a contract where a
unilateral mistake has been made by a bidder, the mistake must be
"a clear cut clerical or arithmetic error, or a misreading of
specifications," and not a mistake in judgment. See Bromley
Contracting Co., Inc. v. United States, supra; United States v.
Hamilton Enterprises, Inc., supra; Aydin Corp. v. United States,
supra; Ruggiero v. United States, supra. See also Universal
Construction Co., supra; Outside Plant Engineering & Construction
Company, Inc., NASA BCA No. 58-1191, 93-1 BCA � 25,489; Baltazar
Torres, supra. In addition, the bidder must establish that the
Government either knew or should have known of the mistake at the
time the offer was accepted. See Bromley Contracting Co., Inc.
v. United States, supra; Wender Presses, Inc. v. United States,
supra. See also Packard Construction Co., supra; Universal
Construction Co., supra; Construction Administrative Services,
Inc., supra; Baltazar Torres, supra; George A. Harris
Enterprises, Inc., supra. Stated otherwise, the controlling
legal principle with respect to unilateral mistakes is that a
mistake of one party at the time of contract formation may permit
rescission or reformation only if the mistaken party "does not
bear the risk of the mistake" and either "(a) the effect of the
mistake [would make] enforcement of the contract unconscionable,
or (b) the other party had reason to know of the mistake or his
fault caused the mistake." See Diamond Shamrock Refining and
Marketing Co., supra, 92-3 BCA at 125,293 (citing CESICA S.p.a.,
supra; Uniflite, Inc.,
ASBCA No. 27818, 85-1 BCA � 17,813; Robert S. Davies, ASBCA No.
27334, 83-2 BCA � 16,556; RESTATEMENT (SECOND) OF CONTRACTS � 153
(1981)).
In the Board's view, the Appellant has not sustained its burden
of proof on this issue. To begin with, the Board does not find
clear and convincing evidence of a the sort of mistake which
would allow reformation of the contract. Assuming arguendo that
the facts are as stated by the Contractor-(1) it intended to bid
$ .90 and $1.00 for line items I.d.(1) and I.d.(2), respectively;
(2) it made hand alterations to its bid markup by crossing out
its prices of $ .44 and $ .54 and substituting $ .90 and $ 1.00;
and (3) the typist neglected to make those changes on its
official offer sheet-that alone is not enough to support
reforming the agreement. The problem for the Appellant, in the
Board's view, is that while these steps reflect the mechanics of
the bidding process, they do not account for the fact, as the
Contractor admits, that it was acting in the underlying belief
that the 1989 prices for the two disputed line items were still
in force and effect. By definition, the Appellant's mistaken
belief was a mistake in judgment and not a mere misreading of the
specification itself. See Web Business Forms, Inc. supra, slip
op. at 37; Federated Lithographers-Printers, Inc., supra, slip
op. at 5; Taggart Printing Corp., supra, slip op. at 8; Peake
Printing, Inc., supra, slip op. at 8; Great Lakes Lithograph Co.,
supra, slip op. at 26. Accord Universal Construction Co., supra,
93-3 BCA at 130,226; Construction Administrative Services, Inc.,
supra, 93-3 BCA at 129,682. It is well-settled that a mistake in
judgment does not provide a basis for relief. See Web Business
Forms, Inc. supra, slip op. at 37
(citing Universal Construction Co., supra; Electrical Systems
Engineering Co., ASBCA No. 37147, 90-2 BCA � 22,715; Hanna
Contracting Co., ASBCA No. 38597, 90-1 BCA � 22,306).
Furthermore, the Appellant has not established by clear and
convincing evidence that the Respondent either knew or should
have known of the mistake at the time the offer was accepted.
See Web Business Forms, Inc. supra, slip op. at 37; Federated
Lithographers-Printers, Inc., supra, slip op. at 5; GraphicData,
I, supra, at slip op. 6. Certainly, there was nothing in the
Contractor's bid to place the Contracting Officer on notice of
the error. As a rule, a difference in price alone is not enough
to alert a contracting officer that a mistake has been made, even
if the price differential is great. See Packard Construction
Co., supra, 94-1 BCA at 131,972 (citing, Wender Presses, Inc. v.
United States, supra). In this case, the Appellant's bid price
was in line with the other bids, and any price disparity was so
negligible that it could not possibly be a basis for charging the
Contracting Officer with constructive notice of the probability
of a mistake. See Web Business Forms, Inc. supra, slip op. at 38
(citing Packard Construction Co., supra, 94-1 BCA at 131,971-72;
Universal Construction Co., supra, 93-3 BCA at 130,227). Accord
P.J. Valves, Inc., ASBCA No. 39398, 91-3 BCA � 24,251. Indeed,
the $768.90 difference between the Appellant's bid of $66,650.25
for Category II work, which resulted in award, and Volt's
otherwise low offer of $65,881.35, amounts to a differential of
only 1.1 percent (R4 File, Tab D). Similarly, the Contractor's
bid is only 1.9 percent less than Continental's third lowest
offer of $67,892.60 (R4 File, Tab D). With particular respect to
Category II line items I.d.(1) and I.d.(2), the three low bids in
order were: (1) Continental-$ .38 and $ .48, respectively; (2)
Volt-$ .39 and $ .49, respectively; and (3) the Appellant-$ .44
and $ .54, respectively (R4 File, Tab C). Consequently, it is
clear that the range of prices between the Appellant, Volt and
Continental, the three lowest bidders for Category II work, is so
small that it is ludicrous to think that the disparity should
have alerted the Contracting Officer to the existence of an error
in the Contractor's offer. See Web Business Forms, Inc. supra,
slip op. at 38 (the contractor's post-award mistake in bid claim
was denied where its low bid, which won it the contract, was only
.1 percent less than the next low offer and just 6 percent less
than the third low bid, since the price differences were not
enough to signal the Contracting Officer that there was an error
in bid). Accord Construction Administrative Services, Inc.,
supra, 93-3 BCA at 129,683 (a mistake on a bid which was only 8
percent lower than the next lowest bid and 12 percent lower than
the Government estimate, was not of the significance to place the
Contracting Officer on notice of a possible mistake prior to
award of the contract); Diamond Shamrock Refining and Marketing
Co., supra, 92-3 BCA at 125,294 (price variations of 2.19 percent
and 3.99 percent were not large enough to have alerted the
contracting officer of a mistake).
Moreover, Contract Modification No. 89-1 is a weak foundation for
the Appellant's assertion that the 1989 contract established the
prices for the disputed line items in the 1990 agreement. In the
context of this case, such a "prior course of dealing" argument
has no better chance of success than the proverbial attempt to
"make a silk purse out of a sow's ear." In the first place, the
"prior course of dealing" principle is an interpretative device
which applies to situations where the parties are divided over
the meaning of contract language.22 See MPE Business Forms,
Inc., GPO BCA 10-95 (August 16, 1996), slip op. at 59, 1996
WL_____; Publishers Choice Book Manufacturing Co., GPO BCA 4-84
(August 18, 1986), slip op. at 10-11, 1986 WL 181457.23 See
generally, John Cibinic, Jr. and Ralph C. Nash, Jr.,
Administration of Government Contracts, at 206-09 (The George
Washington University, 3rd ed. 1995) (hereinafter Cibinic & Nash,
Administration). Here, however, there is no dispute over the
contract specifications-they are clear and unambiguous and the
parties know exactly what they mean. Second, and perhaps most
importantly, one prior contract is not enough evidence to
establish a "prior course of dealing." See MPE Business Forms,
Inc., supra, slip op. at 62; Publishers Choice Book Manufacturing
Co., supra, slip op. at 11 (citing Doyle Shirt Manufacturing
Corp. v. United States, supra). Accord Kvaas Construction Co.,
ASBCA No. 45965, 94-1 BCA � 26,513 (no waiver found even though
Government had approved a deviation on four prior contracts);
General Secretarial Services Corp., GSBCA No. 11381, 92-2 BCA �
24,897 (no waiver found although the Government had approved a
specification deviation on six prior contracts); Western States
Construction Co., ASBCA No. 37611, 92-1 BCA � 24,418 (no waiver
by course of dealing on two prior contracts-one with another
contractor). See also, Cibinic & Nash, Administration, at
206-07. Accordingly, the Appellant's reliance on Contract
Modification No. 89-1 is misplaced.
In the final analysis, what this case boils down to is a
situation where the Appellant made an erroneous assumption about
the effect of a contract modification issued with respect to a
predecessor contract. While the Board is sympathetic to the
Contractor's predicament, its mistake cannot serve as the basis
for reformation of this contract.24 See Web Business Forms, Inc.
supra, slip op. at 39. Accord Liebherr Crane Corp. v. United
States, supra, 810 F.2d at 1153; Baltazar Torres, supra, 92-3 BCA
at 125,469. See also, Fan Inc., supra. For the Board to reform
the contract under these circumstances, would destroy the
integrity of the competitive procurement process. See Web
Business Forms, Inc. supra, slip op. at 39; Federated
Lithographers-Printers, Inc., supra, slip op. at 5.
B. The WRA's "square inch" standards for diazo/black prints are
not binding on the Government, but rather the contract's "square
foot" specification sets the basis for payment in this case.
The Appellant's final allegation-that the WRA's "square inch"
standard of measurement, in effect, supersedes the terms of the
contract which expressly states that "[p]ayment will [be] based
on the finished trim size indicated on the Print Order, rounded
up to the nearest square foot[.]" (R4 File, Tab A, at 13)-is
easily disposed of. In that regard, the Appellant's contention
has at least two fatal flaws.
First, the Board agrees with the Respondent that the Contractor's
reliance on any WRA standards is irrelevant to this agreement.
The contract does not incorporate the WRA measuring standards
relied upon by the Contractor, and thus they can have no bearing
on this dispute. See MPE Business Forms, Inc., supra, slip op.
at 49, fn. 45 (in a dispute over the interpretation of certain
contract terms, the Board ruled that two of the forms industry's
standard lexicons, which the contractor introduced into evidence
and relied upon to support its position, were irrelevant because
the contract did not incorporate those publications). Accord
Hogan Construction, Inc., ASBCA No. 39679, 95-1 BCA � 27, 428
(the board rejected as irrelevant portions of two publications
submitted by the parties as evidence of industry standards for
the thickness of the sand base to be used under replacement
sidewalks because the contract in question did not incorporate
those publications). See also Oakcreek Funding Corp., GSBCA No.
11244-P, 91-3 BCA � 24,200 (the board dismissed a contention that
the term "routine" in the context of maintaining computers meant
"test software" even though there was evidence that the term was
so understood in the industry, because there was no proof that it
referred exclusively to software in the contract).
Second, the Appellant's claim is tantamount to a request that the
Board rewrite the parties' agreement. Unfortunately for the
Contractor, the Board is not a creature of statute, but rather
derives all of its powers from the "Disputes" clause of the
contract itself, and thus its jurisdiction is narrowly defined.
See Big Red Enterprises, GPO BCA 07-93 (August 30, 1996), slip
op. at 38, 1996 WL_____; GraphicData, II, supra, slip op. at 57;
R.C. Swanson Printing and Typesetting Co., GPO BCA 15-90 (March
6, 1992), slip op. at 26-27, 1992 WL 382924; The Wessel Company,
Inc., supra, slip op. at 32; Automated Datatron, Inc., GPO BCA
20-87 (March 31, 1989), slip op. at 4-5, 1989 WL 384973; Bay
Printing, Inc., GPO BCA 16-85 (January 30, 1987), slip op. at 9,
1987 WL 228967; Peak Printers, Inc., supra, slip op. at 6. See
generally, Foss, The First Decade, at 584-85. Specifically, as
the Board interprets GPO Instruction 110.10C, Subject:
Establishment of the Board of Contract Appeals, dated September
17, 1984-its "enabling statute"-and the jurisdictional provisions
of its rules of practice and procedure, see Board Rules, Preface
to Rules, � I (Jurisdiction), it sees its authority as purely
derivative and contractual, and has consistently confined the
exercise of its remedial powers to the contract before it. See
Big Red Enterprises, supra, slip op. at 38; GraphicData, II,
supra, slip op. at 57; Shepard Printing, Inc., supra, slip op. at
9, fn. 8; R.D. Printing Associates, Inc., GPO BCA 2-92 (December
16, 1992) slip op. at 9, 13, fns. 9, 15, 1992 WL 516088; Peak
Printers, Inc., supra, slip op. at 6. See also Automated
Datatron, Inc.,supra, slip op. at 4-5 ("The Public Printer has
not under the provision of paragraph 5 of GPO Instruction 110.10C
delegated authority to this Board to consider legal questions
existing outside the contract itself."). Accord Wehran
Engineering Corp., GSBCA No. 6055-NAFC, 84-3 BCA � 17,614. See
generally, Foss, The First Decade, at 585-86. As a forum of
limited jurisdiction whose remedial powers are tied to the
clauses in the contract, the Board functions essentially as a
pre-CDA board of contract appeals. See GraphicData, II, supra,
slip op. at 85; R.C. Swanson Printing and Typesetting Co., GPO
BCA 15-90, Supplemental Decision (July 1, 1993), slip op. at 28,
1993 WL 526638 (hereinafter Swanson Supplemental); The Wessel
Company, Inc.,supra, slip op. at 34. See also H.L. Eikenberg
Co., GPOCAB No. 76-13 (May 9, 1979), slip op. at 35, fn. 21.
This simply means that the Board must take the agreement as it
finds it, and unless the Board can find the relief granting
source within the "four corners" of the contract, its hands are
tied, and the appellant will have to seek its remedy in another
forum. By definition, therefore, the Board cannot revise or
tinker with the express terms of the contract, as the Appellant
requests.25 See AJN Reporters, GSBCA No. 5022, 78-2 BCA � 13,298
(no equitable authority to revise the terms of the contract);
RIHA Construction Co., ASBCA No. 21441, 77-1 BCA � 12,324 (no
authority to grant reformation or remedy a mistake in bid without
a relief provision in the contract); American Standard, Inc.,
NASA BCA No. 771-14, 73-1 BCA � 9,899 (no authority to reform the
contract); Taiei Co., Inc., ASBCA No. 17123, 72-2 BCA � 9,738 (no
jurisdiction to consider a mutual mistake claim); University of
Iowa, ASBCA No. 14581, 70-1 BCA � 8,218 (no power to grant
reformation of the contract because of a mutual mistake); Horton
& Converse, VACAB No. 519, 65-2 BCA � 4,995 (authority of the
head of an agency to reform contracts in limited situations not
delegated to the board). Here, the contract clearly establishes
measurements by the "square foot" as the basis of payment for
diazo/black prints. Accordingly, in this forum, at least, the
Appellant's request to substitute the WRA's "square inch"
standard must be denied.
ORDER
Because the Board finds and concludes that the Appellant has
not sustained its post-award mistake in bid claim, or shown
that the WRA's "square inch" standards for diazo/black
prints are binding on the Government, the decision of the
Contracting Officer is AFFIRMED, and the appeal is DENIED.
It is so Ordered.
September 13, 1996 STUART M. FOSS
Administrative Judge
_______________
1 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 March 13, 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
is referred to hereinafter as the R4 File, with an appropriate
Tab letter also indicated. As originally submitted, the R4 File
consisted of 18 documents identified as Tabs A through R.
Thereafter, on July 24, 1992, GPO submitted four (4) additional
documents as attachments to its Answer, see Board Rules, Rule
6(b), as Tabs S through V of the R4 File. Finally, attached to
its brief dated June 28, 1993, the Government submitted one more
document-a memorandum dated May 21, 1993, from the Contracting
Officer to Counsel for GPO, comparing the square footage
measurements on seven (7) Print Orders against the Western
Reprographic Association's (WRA) industry standard and the
formula used by the Respondent in the disputed contract-which was
placed in the R4 File as Tab W. It should be noted that several
of the documents in the R4 File are duplicates. For example, R4
File, Tabs C and V are the same abstract of bids for Category II
work for the 1990 Program 2927-S. Similarly, R4 File, Tabs B
and U are both copies of the Appellant's bid on the 1990 Program
2927-S contract, and Tabs J and S are copies of Contract
Modification 89-1.
2 The Appellant's April 5, 1991, notice of appeal was mailed to
the Contracting Officer at the LARPPO (R4 File, Tab O ). The
Contracting Officer, who received the appeal letter on April 15,
1991, forwarded it to the Board two days later, on April 17, 1991
(R4 File, Tab Q). However, the letter was either misplaced or
misdirected by GPO's mail room, and not actually received by the
Board until December 31, 1991, and the appeal was not docketed
until February 18, 1992. See Letter from the Board to Robert E.
Burns, Olympic Graphic Systems, 3516 East Olympic Boulevard, Los
Angeles, California 90023, dated February 19, 1992 (Appeal File,
Tab 2). The time limits for filing an appeal with the Board is
90 days from the date the contracting officer's final decision is
received by the appellant. Board Rules, Rule 1(a). See also R4
File, Tab M. The notice of appeal in this case was not filed in
accordance with Rule 1(a), and normally would be dismissed as
untimely. See e.g., Ace Duplicating Co., GPO BCA 44-92 (February
1, 1993); Moore Business Forms & Systems Division, GPO BCA 3-86
(February 25, 1987), 1987 WL 228968. But, the Board also takes
judicial notice of the fact that the Contractor issued its notice
of appeal (April 5, 1991), and it was received by the LARPPO
(April 15, 1991), which promptly forwarded it to the Board's
office (April 17, 1991), all within the 90-day time frame (78
days, 88 days, and 90 days, respectively). FED. R. EVID. 201(b)
(2). See Asa L. Shipman's Sons, Ltd., GPO BCA 06-95 (August 29,
1995), slip op. at 21, fn. 24, 1995 WL 818784, reconsid. denied,
February 13, 1996. Where, as here, the record shows a good faith
attempt by an appellant to comply with the Board's procedures, if
somewhat imperfectly, the Board has accepted an otherwise
untimely appeal. See e.g., McDonald & Eudy Printers, Inc., GPO
BCA 06-91 (May 6, 1994), slip op. at 2, fn. 2, 1994 WL 377581
(appeal docketed six (6) months after the contracting officer's
final decision on the basis of a duplicate notice of appeal,
where the record showed that the original timely notice was lost
by GPO's mail room). Accord Micrographic Technology, Inc., ASBCA
No. 25577, 81-2 BCA � 15,357; Astro Industries, Inc., ASBCA No.
19082, 74-2 BCA � 10,921; C & B Construction Co., ENGBCA No.
3317, 73-2 BCA � 10,163. The Board's reasoning is that unlike
the 90-day appeal period under the Contract Disputes Act of 1978
(CDA), Pub. L. No. 96-563, 92 Stat. 2382-91 (1978) (codified at
41 U.S.C. �� 601-613 (1994), which is strictly construed because
the right to appeal a contracting officer's decision is
considered a waiver of sovereign immunity by the United States,
see Cosmic Construction Co. v. United States, 697 F.2d 1389, 1390
(Fed. Cir. 1982); Elden-Rider, Inc., GSBCA No. 8643, 90-2 BCA �
22,878; George's Lawn & Rental Service, Inc., GSBCA No. 10087,
89-3 BCA � 22,081, it sees nothing in the legislative history of
44 U.S.C. � 502 (1988) to indicate that by authorizing the Public
Printer to contract out printing, binding, and blank-book work,
Congress thereby also intended to waive the Government's
sovereign immunity with respect to the settlement of contract
claims against the United States, see The Wessel Company, Inc.,
GPO BCA 8-90 (February 28, 1992), slip op. at 44, 1992 WL 487877.
Accordingly, the Board believes that there is a measure of
flexibility in its 90-day rule, which allows it to accept an
otherwise late appeal if good cause is shown for the delay. See
generally, Matthew S. Foss, U.S. Government Printing Office Board
of Contract Appeals: The First Decade, 24 PUB. CONT. L. J. 579,
590-91 (1995) (hereinafter Foss, The First Decade). The Board
has accepted the appeal in this case on that basis.
3 The Board's decision is based on: (a) the Appellant's Notice of
Appeal, dated April 5, 1991; (b) the R4 File; (c) the
Appellant's Letter, dated April 29, 1992, setting forth its
summary position in the dispute; (d) the Contractor's letter,
dated June 1, 1992, satisfying the requirements for a Rule 6(a)
Complaint; (e) the Respondent's Answer, dated July 24, 1992; (f)
the Report of Prehearing Telephone Conference, dated June 4, 1993
(RPTC); (g) the Appellant's letter, dated June 24, 1993,
constituting its brief (hereinafter App. Brf.); and (h) the
Respondent's Brief, dated June 28, 1993 (hereinafter R. Brf.).
Neither party filed a reply brief. See RPTC, at 9. Furthermore,
while the Board, because of administrative oversight, neglected
to issue a formal Order settling the record in this appeal on
July 26, 1993, nonetheless, since that date it has considered the
record officially closed and ripe for decision. Id. The facts,
which are essentially undisputed, are recited here only to the
extent necessary for this decision.
4 The other four (4) offerors were Volt Century Graphics, Inc.
(hereinafter Volt), Continental Graphics (hereinafter
Continental), Commercial Graphics (hereinafter Commercial), and
Ready Reproductions (hereinafter Ready) (R4 File, Tabs C, D and
V). Volt was the low bidder, but before award could be made it
notified the LARPPO that it was going out of business (R4 File,
Tab D). The Contractor was the second low bidder (R4 File, Tab
D).
5 The Navy's estimate included the Respondent's six (6) percent
surcharge (R4 File, Tab F).
6 For comparison purposes, the bids of the other offerors for
xerographic printing on 20 pound bond paper and 20 pound vellum
paper were: (a) Volt-$ .39 and $ .49, respectively; (b)
Continental-$ .38 and $ .48, respectively; (c) Commercial-$ .75
and $ .85, respectively; and (d) Ready-$ .95 and $1.10,
respectively (R4 File, Tabs C and D).
7 Attached to the Contracting Officer's memorandum were copies of
all of the relevant evidence, as well as his proposed
"Determination and Findings" (R4 File, Tabs K and L). See
Printing Procurement Regulation, GPO Pub. 305.3 (Rev. 10-90),
Chap. XI, Sec. 6, �� 4.e(ii) (hereinafter PPR). In that regard,
the PPR states that "[w]here the contractor furnishes evidence in
support of an alleged mistake, the case shall be referred to
through the Office of General Counsel to the Chairperson, CRB
together with the following data: (a) [a]ll evidence furnished by
the contractor[;] (b) [a] copy of the contract, including a copy
of the bid and any specifications or drawings relevant to the
alleged mistake, and any change orders or supplemental agreements
thereto[;] (c) [a]n abstract or record of the bids received[;]
(d) [a] written statement by the Contracting Officer setting
forth: (1) [s]pecific information as to how and when the mistake
was alleged or disclosed; (2) [a] summary of the evidence
submitted by the contractor; (3) [a]n opinion whether a bona fide
mistake was made in the bid and whether the Contracting Officer
was, or should have been, on constructive notice of the mistake
before award, together with the reasons or data upon which the
opinion is based; (4) [a] quotation of a recent contract price
for the supplies or services involved, or, in the absence of a
recent comparable contract, the Contracting Officer's estimate of
a fair price for the supplies or services, and the basis for such
estimate; (5) [a]ny additional evidence considered pertinent,
including copies of all relevant correspondence between the
Contracting Officer and the contractor concerning the alleged
mistake; (6) [t]he course of action with respect to the alleged
mistake that the Contracting Officer considers proper on the
basis of the evidence, and, if other than a change in contract
price is recommended, the manner by which the item will otherwise
be procured; and (7) [t]he status of performance and payments
under the contract, including contemplated performance and
payments[;] (e) [a] proposed Determination and Findings." See
PPR, Chap. XI, Sec. 6, �� 4.e(ii)(a)-(e).
8 The Contracting Officer also informed the Appellant that if it
disagreed with the decision it could appeal to the Board (R4
File, Tab M). See PPR, Chap. XI, Sec. 6, � 4.(f) ("Any
contractor wishing to dispute a Contracting Officer's
determination regarding a post award mistake-in-bid may do so
pursuant to the disputes clause in the contract."). The
"Disputes" clause is contained in GPO Contract Terms,
Solicitation Provisions, Supplemental Specifications, and
Contract Clauses, GPO Pub. 310.2, Effective December 1, 1987
(Rev. 9-88) (hereinafter GPO Contract Terms) which is
incorporated by reference in the contract (R4 File, Tab A, at 2).
See GPO Contract Terms, Contract Clauses, � 5.b (Disputes) ("The
decision of the Contracting Officer shall be final and conclusive
unless, within 90 days from the date of receipt of such copy, the
contractor mails or otherwise furnishes a written notice of
appeal to the Government Printing Office Board of Contract
Appeals.")).
9 See note 2 supra.
10 The Board framed three questions for disposition during the
prehearing telephone conference. See RPTC, at 8. However, there
are really only two issues in this case.
11 The Appellant tells us that its actual costs for bond paper
copying was $. 60 per square foot, and for vellum paper it was $
.70 per square foot. See App. Brf., at 1. Therefore, its bids
of $ .44 and $ .54, respectively, placed it in a "loss" position,
where it "could not do the work for that price." See App. Brf.,
at 2. Furthermore, the Contractor believes that the reason its
bids were within the range of the offers submitted by the other
bidders is that its competitors were using "new less expensive
machines" to perform the work, even though that equipment
produced very poor quality copies. See App. Brf., at 1.
12 GPO notes that the Contractor did not submit the original bid
worksheet, as required by the Respondent's regulations. R. Brf.,
at 3, 4 (citing R4 File, Tab I; PPR, Chap. XI, Sec. 6, � 4.e(i)).
13 The rule, as stated by the Government, is that a mistake in
bid after the contract has been awarded must be proved by clear
and convincing evidence, that the mistake was mutual or, if the
mistake was made unilaterally by the contractor, it was so
apparent as to have charged the Contracting Officer with notice
of the probability of a mistake when the bid was accepted. See
R. Brf., at 3 (citing PPR, Chap. XI, Sec. 6, � 4.c). A mutual
mistake, as the term implies, is one that was made by both the
Government and the contractor at the time they enter the
contract. Id., (citing RESTATEMENT (SECOND) OF CONTRACTS � 152
(1981)). The Respondent believes there was no mutual mistake in
this case because GPO awarded the contract on the basis of the
Appellant's price quotations. See R. Brf., at 4.
14 The Board was created by the Public Printer in 1984. GPO
Instruction 110.10C, Subject: Establishment of the Board of
Contract Appeals, dated September 17, 1984. Before then, ad hoc
panels considered disputes between contractors and GPO.
Citiplate, Inc. was decided by one of the ad hoc panels. The
Board cites the decisions of these ad hoc boards as GPOCAB.
However, the Board has consistently taken the position that it is
a different entity from the GPOCAB. See The Wessel Company,
Inc., supra, slip op. at 25, fn. 25. On the other hand, while
the Board is not bound by GPOCAB decisions, its policy is to
follow the rulings of the ad hoc panels where applicable and
appropriate. See The George Marr Co., GPO BCA 31-94 (April 23,
1996), slip op. at 50, fn. 40, 1996 WL ______; New South Press &
Assoc., Inc., GPO BCA 14-92 (January 31, 1996), slip op. at 32,
fn. 45, 1996 WL 112555; Shepard Printing, GPO BCA 37-92 (January
21, 1994), slip op. at 11, fn. 10, 1994 WL 275077; Shepard
Printing, GPO BCA 23-91 (April 29, 1993), slip op. at 14, fn. 19,
1993 WL 526848; Stephenson, Inc., GPO BCA 02-88 (December 20,
1991), slip op. at 18, fn. 20, 1991 WL 439274; Chavis and Chavis
Printing, GPO BCA 20-90 (February 6, 1991), slip op. at 9, fn. 9,
1991 WL 439270.
15 The Respondent is referring to the Appellant's bid for
Category I work (R4 File, Tab D). With respect to the Category
II work involved in this dispute, the Contractor was the second
low bidder (R4 File, Tab D). See note 4 supra.
16 The Board observes that this is the second bid "mistake" made
by the Appellant with respect to this contract. The record
discloses that the first error concerned a misplaced decimal in
its offer for Category I work (R4 File, Tab D [Contracting
Officer's memorandum, dated February 6, 1990, at 2]). Here, the
Contractor's post-award mistake claim is advanced as
justification for its request for an increase in the contract
price. While there is certainly no fixed ceiling on the number
of mistake claims in any one contract, it is also true that a
contractor's too frequent reliance on its own errors will leave
the Board wondering about the integrity of the bid preparation
practices used, and will tend to cast doubt upon the accuracy and
bona fides of the entire bid. See Web Business Forms, Inc., GPO
BCA 16-89 (September 30, 1994), slip op. at 25, fn. 25, 1994 WL
837423.
17 It is generally accepted that a mistake of fact supporting
reformation does not arise merely from an inability to predict
the future, but rather must be a bona fide mistake regarding the
existing facts on which a bargain is based. See Southern
Dredging Company, Inc., ENG BCA No. 5843, 92-2 BCA � 24,886, at
124,117 (citing Martin-Copeland Co., ASBCA No. 26551, 83-2 BCA �
16,752; Hilton Construction Company, Ltd., DOT CAB No. 1035, 80-1
BCA � 14,318. See also RESTATEMENT (SECOND) OF CONTRACTS � 151
cmt. a (1981).
18 Reformation of a contract requires that a contract appeals
board find the existence of a qualifying "mistake." See Atlas
Corp., et al. v. United States, 15 Cl. Ct. 681 (1988); Johns-
Manville Corp. v. United States, 12 Cl. Ct. 1 (1987); Olson
Plumbing and Heating Co. v. United States, 221 Ct. Cl. 197, 591
F.2d 1308 (1979); ITT Arctic Services, Inc. v. United States, 207
Ct. Cl. 533, 513 F.2d 588 (1975); Foster Wheeler Corp. v. United
States, 206 Ct. Cl. 533, 513 F.2d 588 (1975). See also, EDC/MTI
Joint Venture, ENG BCA No. 5631, 90-2 BCA � 22,669. In that
regard, FAR � 14.406-4 (Mistakes after award) defines what would
be considered a qualifying mistake.
19 FAR � 14.406-4 (Mistakes after award) states, in pertinent
part: ". . . (a) When a mistake in a contractor's bid is not
discovered until after the award, the mistake may be corrected by
contract modification if correcting the mistake would make the
contract more favorable to the Government without changing the
essential requirements of the contract. (b) In addition to the
cases contemplated in paragraph (a) above or as otherwise
authorized by law, agencies are authorized to make a
determination-(1) To rescind a contract; (2) To reform a contract
(i) to delete the items involved in the mistake or (ii) to
increase the price if the contract price, as corrected, does not
exceed that of the next lowest acceptable bid under the original
invitation for bids; or (3) That no change shall be made in the
contract as awarded, if the evidence does not warrant a
determination under subparagraphs (1 or (2) above. (c)
Determinations under subparagraphs (b)(1) and (2) above may be
made only on the basis of clear and convincing evidence that a
mistake in bid was made. In addition, it must be clear that the
mistake was (1) mutual, or (2) if unilaterally made by the
contractor, so apparent as to have charged the contracting
officer with notice of the probability of mistake."
20 There must not only be evidence of the mistake, but the
contractor must also establish by clear and convincing proof what
the bid price would have been but for the error. See United
States v. Hamilton Enterprises, Inc., supra, 711 F.2d at 1046;
W.B. & A., Inc., supra, 89-2 BCA at 109,310.
21 In at least one case, the Board, apparently interpreting PPR,
Chap. XI, Sec. 6, � 4(b), has indicated that the contracting
officer has the exclusive discretion to remedy unilateral
mistakes, after properly verifying both the erroneous offer and
the intended bid price, finding the latter bid lower than the
next lowest offer, and ascertaining that correction of the
mistake would make the contract more favorable to the Government.
See Atlantic Research Corp., supra, slip op. at 5-6.
Consequently, under this principle the Board's review would be
limited to a consideration of whether or not the contracting
officer abused his/her discretion. However, the standard of
review enunciated in Atlantic Research Corp. appears in no other
Board post-award mistake in bid case, and thus that decision is
probably sui generis.
22 "Prior course of dealing" is defined as a sequence of previous
conduct between the parties relating to their former agreements
or transactions which is fairly to be regarded as establishing a
common basis of understanding for interpreting their expressions
and other conduct. See RESTATEMENT (SECOND) OF CONTRACTS � 223
("agreement"); U.C.C. � 1-205 (1977) ("transaction"). The rule
is that the Government will not be allowed to suddenly change its
long-standing interpretation of contract language to the
detriment or prejudice of a contractor who has acted in reliance
on that historic meaning or contractual practice. See Gresham
and Co., Inc. v. United States, 470 F.2d 542 (Ct. Cl. 1972);
Western Avionics, Inc., ASBCA No. 33158, 88-2 BCA � 20,662).
23 Publishers Choice Book Manufacturing Co. is the Board's lead
case on the issue. In that opinion, it said the following about
the use of "prior course of dealing" as an interpretive device in
contract interpretation cases: "[�] On the question of the weight
to be given a course of prior dealings, Professors Nash and
Cibinic in examining the principal case of L.W. Foster
Sportswear, Co. v. United States, 186 Ct. Cl. 499, 405 F.2d 1,285
(1969), tell us that in Government contract law "[w]here the
parties to an interpretation dispute have interpreted, either
expressly or by their actions, the provisions of a similar,
previously performed contract in a certain manner, they will be
presumed to have intended the same meaning for those provisions
in the disputed contract. This presumption is rebuttable by
clear evidence that the parties have changed their intent or are
in disagreement at the time they enter into the disputed
contract. See, e.g., Lock[h]eed Aircraft Corp. v. United States,
192 Ct. Cl. 36, 426 F.2d (1970)." Ralph C. Nash, Jr. and John
Cibinic, Jr., Federal Procurement Law, Third Edition, The George
Washington University, 1980, at 969 n.1 (emphasis added). [�]
They further tell us in footnote 2 that "[w]hen the contract
language is clear and precise, the court or board will normally
give lesser weight to a prior course of dealing. [T]he governing
factor in such cases is the degree of clarity or exactness with
which the disputed term or clause is written, Robert McMullan &
Sons, Inc., ASBCA [No.] 21455, 77-1 BCA [�] 12,456 (1977) . . .
however, superficially exact language may not correctly express
the parties agreement. Generally more convincing evidence of a
course of prior dealing will be required to controvert contract
language which is stated precisely. Cf. Doyle Shirt
Manufacturing Corp. v. United States, 199 Ct. Cl. 150, 462 F.2d
1150 (1972)." Id. at 970, n.3. [�] In addition, they tell us
that "[t]he parties may be bound by their interpretation of prior
contracts even though the language of the disputed contract has
been altered." Id. at 971, n.3. [�] Lastly, they tell us that
"[t]he reasoning underlying the prior course of dealing rule
requires that both parties have actual knowledge of the prior
course of dealing and of its significance to the contract.
Clearly, it would be unreasonable to find that a party had agreed
to a term which he was not aware." Id. at 972, n.5 (emphasis
added)." See Publishers Choice Book Manufacturing Co.,supra,
slip op. at 10-11. [Original emphasis.]
24 In so ruling the Board notes that, in any event, the PPR would
preclude reformation of the Appellant's contract. The
Contractor's proposed price increase for line item I.d.(1) from $
.44 to $ .90 amounts to nearly a 105 percent boost for that line
item. Similarly, its request to increase line item I.d.(2) from
$ .54 to $1.00 is nearly as large-85 percent. The PPR states
quite clearly that in correcting a post-award mistake in bid, the
increase in the contract price may not ". . . exceed that of the
next lowest acceptable bid under the original invitation for
bids." See PPR, Chap. XI, Sec. 6.b(ii). See also Web Business
Forms, supra, slip op. at 39, fn. 31; Atlantic Research
Corporation, supra, Slip. op. at 6. The same rule applies in
reforming contracts under the FAR. See FAR � 14.406-4(b)(2)(ii),
note 19 supra. In this case, the ceiling on any increase in the
Appellant's contract price was established by Continental's bid
of $67,892,60. More particularly, Continental's Category II
offer for line item I.d.(1) was $ .38 and its bid for line item
I.d.(2) was $ .48, which are lower than the Appellant's original
offers for the same line items (R4 File, Tab C). Stated
otherwise, the Contractor's original bid for these line items
already exceeded the remedial ceiling.
25 The Board's inability to provide equitable relief also extends
to contractor requests for reinstatement of their contracts. See
Swanson Supplemental, slip op. at 26, fn. 14 (where the Board
denied the contractor's request for reinstatement because that
form of equitable relief was solely within the authority of GPO's
contracting officers). Accord Crow Fitting Co., Inc., ASBCA No.
25378, 81-1 BCA � 14,951; Campbell & Associates, GSBCA No. 5061,
78-2 BCA � 13,354; Southwestern Cooperative Educational
Laboratory, LBCA No. 74-BCA-101, 75-1 BCA � 11,309.