U.S. GOVERNMENT PRINTING OFFICE
BOARD OF CONTRACT APPEALS
Appeal of GENERAL BUSINESS FORMS, INC.
GPO BCA 2-84
December 3, 1985
Michael F. DiMario, Administrative Law Judge
This is an appeal timely filed by General Business Forms,
Inc., 7312 Niles Center Road, P.O. Box 457, Skokie, IL 60077
(hereinafter "GBF" or "Appellant"), pursuant to the standard
"Disputes" clause provisions of paragraph 2-18, U.S.
Government Printing Office Contract Terms No. 1 (GPO Pub.
310.2 - Revised October 1, 1980), which such "Terms" were
incorporated in and made a part of the contract by reference.
The appeal is from the final decision of the Contracting
Officer, John J. O'Connor, San Francisco Regional Printing
Procurement Office, U.S. Government Printing Office
(hereinafter "SFRPPO" and "GPO" or "Appellant," respectively),
dated September 21, 1984, terminating the contract for
"default" under authority of paragraph 2-18, GPO Pub. 310.2,
supra, "because of your failure to produce this order on the
paper specified and your inability to reprint the order by the
date requested." (R4, Item 7) 1/
The jurisdiction of the Board to hear such matters is set
forth in GPO Instruction 110.12, dated September 17, 1984.
Initially, Appellant elected a hearing pursuant to the
provisions of Rule 8. However, at a prehearing conference
held February 13, 1985, pursuant to Rule 10, the parties
mutually agreed to proceed without a hearing upon the record
as settled, supplemented by the oral argument made at the
prehearing conference and written briefs to be filed, if
desired, by either party. The Appellant elected to file such
brief; the Respondent did not.
SUMMARY STATEMENT OF FACTS
The facts in the case are uncontested. Appellant, GBF, the
lowest of three competitive bidders (R4, Item 1), was awarded
a contract to produce some 1,075,000 +/- 1%, 4-color process
8-1/2 x 11-7/8 inch U.S. Postal Service Mailers,. entitled
"Express Mail Eagle Direct Mail" by the SFRPPO, GPO, by
Purchase Order P5014, Jacket No. 790-243 dated 7/17/84
1/ R4 denotes "Rule 4 file" submitted to the Board pursuant to
Rule 4 of BCA's Rules of Practice and Procedure, GPO Instruction
110.12, dated September 17, 1984.
to be performed "in strict accordance with your written bid and
the specifications." (R4, Item 5) The bid was dated 7/9/84 in the
net amount of $35,906.45 with additional per thousand rate of
$30.40 (R4, Tab 3). The specifications planned and drafted by
"G. E." of the SFRPPO (R4, Tab 2) required that the contractor
furnish the paper for the product as follows:
*Equal to Basis -- 500 Sheets
COLOR AND KIND OF PAPER JCP Code Size Weight
White Gloss Coated x
cover (coated 2 sides) L-lO 25 x 38 80
*Refer to "Government Paper Specification Standard No. 8" dated
April 1977.
The completed product was required to be shipped "on or before
8-31, 1984" to the SFRPPO and various postal facilities. The
copies to the SFRPPO were to be the first 50 completed and
were to be considered ss sample copies.
On September 6, 1984, the U.S. Postal Service informed the
SFRPPO that the completed product had been received by them
but that it was printed on the wrong paper (R4, Item 6); i.e.,
80 lb. text stock rather than 80 lb. cover stock. The SFRPPO
confirmed this fact by inspection of the samples on September
7, 1984 (R4, Item 6). The Postal Service requested that the
job be reprinted on the desired paper stock with delivery of
340,000 copies by September 21, 1984, and the remainder by
September 28. Thereafter, the SFRPPO contacted.Mr. Richard
Lynch, Vice-President, GBF, advising of the rejection of the
product by the Postal Service and requesting the reprinting
.on the desired stock. Mr. Lynch indicated that GBF could not
obtain thestock in time to meet the Postal Service delivery
dates. He also indicated his intention to dispute the SFRPPO
rejection of the product previously delivered. Apparently,
the SFRPPO then recontacted the Postal Service and was advised
by them that they would cancel their order if the SFRPPO could
not guarantee delivery by the desired date. The SFRPPO
explained the administrative procedures necessary to a default
action and reprocurement of the desired product to the Postal
Service representative whereupon on September 11, 1984, the
Postal Service decided to cancel the order due to the
improbability of competitively reprocuring the product in time
to meet its internal scheduling needs. The SFRPPO Contracting
Officer advised Mr. Lynch of the Postal Services' actions and
offered to obtain an "Invitation for Bid" for GBF. Mr. Lynch
declined the offer again because of the inability to obtain
the required paper stock in time to meet the delivery
schedule. Mr. Lynch was then informed of the Contracting
Officer's intention to reject the entire order and terminate
the contract for default.
The SFRPPO then sought and received concurrence for such
termination action from the GPO Contract Review Board,
Washington, DC (R4, Item 6). By letter dated September 21,
1984, GBF was notified of the termination "for default because
of your failure to produce this order on the paper specified
and your stated inability to reprint the order by the date
required." (R4, Item 7)
By letter dated October 2, 1984, GBF appealed the decision
contending that:
In our opinion we have fulfilled the contract paper
specifications and request payment of the contract for the
following reasons:
1. General Business Forms, Inc. followed the plain language of
the specification which read 25 x 38 80#.
2. The specification did not clearly state the paper must meet
postal mailing requirements of .007" thickness. (See attached
sample GPO bid specifications clearly stating Postal
Requirements). [sic]
3. General Business Forms, Inc. cannot assume responsibility
for sorting requirements in the Post Office wherein a critical
requirement for the operation is only implied or intended and is
not correctly stated in the simple language of the
specifications.
4. The GPO waived its requirement for a press okay. In our
opinion the waiver of the press okay indicated the GPO was
satisfied with our understanding of the job specifications and
our manufacturing capability.
5. The job was shipped on time and we were notified several days
after shipment that the job was to be printed on 20 x 26 cover
stock .0072 thickness. The best delivery date of the paper was
10/18/84 and a reprint was requested with a partial 9/21 and the
balance 9/28.
(R4, Item 8)
(Note: The attachment referenced in paragraph 2 was a
solicitation and specification for GPO Jacket No. 754-984 for the
Department of the Army wherein a handwritten note following the
paper description specified a particular paper caliper to meet
Postal Service requirements. The reference to "sample" in
numbered subparagraph 2 above is not relevant since the
attachment was not furnished to the Appellant as part of the
solicitation under appeal but came into its possession in an
altogether unrelated situation.)
The Manager, SFRPPO, by United States Government memorandum of
October 11, 1984 (R4, Item 1). responded to GBF's appeal
letter as follows:
In response to the statements made in the contractor's appeal,
the Contracting Officer believes that there are several pertinent
facts which should be noted.
1. The paper specifications for Jacket 790-243 clearly state
"White Gloss Coated Cover (coated 2 sides), equal to JCP code L-
lO, Basis size 25 x 38", weight 80."
s. The term "cover" is unmistakable and perfectly clear.
b. The phrase "(coated 2 sides)" is used in the industry to
describe certain "cover" stocks. It is not used to describe
"text" or "book" stocks.
c. JCP L-lO (attached) specifically describes "Litho Coated
Cover, White and India Tint." In .its detailed specifications,
one of the characteristics listed refers to a basis sheet size 20
x 26..
d. The basis sheet size of 25 x 38" is obviously incorrect since
this size is used only to describe "book" stocks. It is never
used to describe "cover" stocks.
2. The fact that the Government waived its right to a press
inspection does not relieve the contractor of his responsibility
to produce the order in accordance with the specifications.
3. General Business Forms has indicated that they "followed the
plain language of the specifications which read 25 x 38, 80#." In
doing this they have obviously applied an unreasonable
interpretation to the specifications; i.e. one that ignores all
other statements regarding the paper requirements. The
Contracting Officer believes this position to be indefensible.
a. It has long been held by the courts and Boards of Contract
Appeals that the standard of interpretation of an integrated
written contract is the meaning that would be attached to the
writing by a reasonably intelligent person acquainted with all
operative usages and knowing all the facts and circumstances
prior to and contemporaneously with the making of the
contract. The Contracting Officer does not believe that the
contractor's interpretation would be consistent with a
reasonably intelligent person.
b. Furthermore, it should be noted that one of the primary rules
of interpretation is that "a writing is interpreted as a whole
and all writings forming part of the same contract are
interpreted together. It is improper to interpret a single word,
phrase or sentence out of context with the rest of the contract."
General Business Forms, in isolating the reference to 25 x 38"
from the remainder of the specifications, has violated this rule.
4. It is the Contracting Officer's opinion that the intended
meaning of the specifications is clear and based on that fact
alone a decision should be rendered in favor of the Government.
However, if in the opinion of the Board, the specification is not
clear and is considered to be ambiguous, it would undeniably be a
case of patent ambiguity.
a. With regard to ambiguities, it has been held in numerous
cases that, the contractor must demonstrate that the ambiguity
was not so patent that he was aware of it at the time his bid
was submitted. Failing to demonstrate this, contractors have
been held to have assumed the risk of a patent ambiguity if
they did not request clarification at the time the bid was
being prepared. In other words, a prospective bidder cannot
enter into a contract without asking for clarification of a
patent ambiguity and then later expect to receive an
adjustment. General Business Forms did not request any
clarification either at the time of bid preparation or when
they asked to review and confirm their bid prior to award.
5. Furthermore, the Contracting Officer feels that it would be
impossible for the contractor to demonstrate that he was unaware
of this error at the time of bid preparation because:
a. He has acknowledged that he followed the basis sheet size
of 25 x 38". As a result he furnished "book" stock as opposed
to a "cover" stock.
b. In the industry this basis sheet size is applicable only to
"book" or "text" stocks; never to "cover" stock.
c. The stated specifications clearly call for "cover" stock.
d. The stated specifications clearly reference "(coated 2
sides)" a term that is only used to describe certain "cover"
stocks.
e. The reference JCP L-lO specifications describe "Litho
Coated Cover Stock."
f. The referenced JCP L-lO specifications clearly reference a
basis sheet size of 20 x 26".
In summary, it would seem virtually impossible to notice the
one aspect of the specifications that would denote the use
of a "book" stock and at the same time overlook all the
other statements which relate precisely to a "cover" stock.
The Contracting Officer, therefore, feels that even if the
obviously incorrect basis size is considered to constitute
an ambiguity, such an ambiguity could only be classified as
patent. General Business Forms would have assumed the risk
of a patent ambiguity through its failure to request
clarification at the time of bid preparation and is,
therefore, liable for the correct production of the product.
Subsequently, by letter dated November 13, 1984, Appellant in
answer to the SFRPPO Manager's letter, filed its complaint and
requested a hearing. The letter set forth GBF's position as
follows:
[O]ur complaint is as follows. The bid was reviewed by key
personnel in our organization and confirmed that our quotation
was correct based on manufacturing the printed piece on a high
speed web perfecting press which has significant cost advantages
over sheet fed equipment. The cost factor for labor and material
were [sic] within our normal estimating standard. We accepted
the order after our review.
As matter of record, the original bid specifications that
were furnished by GPO were incomplete. Page 2 was missing.
We contacted SFRPPO for another set of bid specifications
including page 2. The second set of specs came in promptly.
The contracting officer in his brief states in paragraph 1a,
page 2 that the paper specs were clearly stated as being
"White Gloss Coated Cover (coated 2 sides) equal to JCP Code
L-lO, Basis 25 x 38, weight 80." On both the first and
second copies of specifications used to prepare our bid, as
well as the specifications furnished with the purchase
order, the word "cover" is incomplete ("C" is missing), and
the specifications appear to read "White Gloss Coated, over
coated 2 sides". [sic] See Exhibit 1. We did not attempt to
read something into the specifications that was not clearly
stated therein. The word "cover" is NOT "unmistakable and
perfectly clear". [sic]
In paragraph lb, it is stated that the phrase "coated 2
sides" is used in the industry to describe certain cover
stocks, and is NOT used to describe "text" or "book" stocks.
The phrase "coated 2 sides" is applied to "offset" stocks
which have the same 25 x 38 basis weight. This is clearly
covered by statements in two reference manuals commonly used
in the industry.
1. page 167, "Pocket Pal", thirteenth edition, published by
International Paper Company. "Coated (25 x 38) This
consists of base paper to which has been applied a smooth,
glossy coating". Exhibit 2
2. page 253, "Walden's Handbook for Paper Salespeople &
Buyers of Printing Paper", second edition, published by
Walden-Mott Corporation. "Coated offset - a C2S paper with
high resistance to picking and suitable for offset
printing". Exhibit 3
These two references clearly indicate that the term "coated
2 sides" is NOT "only" used in the industry in relation to
cover stocks. The coated 2 sides offset is a commonly used
paper stock in the industry.
Paragraph ld states that a "basis sheet size of 25 x 38 is
obviously incorrect" because it is only applied to book
stocks and never to cover stocks. This would be incorrect
only if it were obvious that a cover stock was required.
This was not the case, as the word "cover" is incomplete in
the specifications.
As a 25 x 38 coated 2 sides stock is common in the industry,
and 80# basis weight is common for this type of stock there
is no obvious error in our interpretation of the
specifications. We can only base our quotations on what is
clearly stated in the specifications as written, and cannot
try to determine the intent of the person who wrote the
specifications.
The plain language of the specifications, in our opinion,
leaves no room for misinterpretation. and therefore cannot
be considered as having been taken out of context.
The waiver of the press inspection by the GPO, in our
opinion, implied acceptance of General Business Forms
understanding of the Jacket Specification.
In conclusion, the mistakes in the Jacket Specifications,
namely a block-out of the letter "C" eliminating the
reference to "Cover", the incorrect basis size and the
failure to clearly specify Postal Paper caliper requirements
of .007" thickness all contributed to our dispute.
The Contracting Officer refers to Cover Stock as the correct
paper, however, the reason for the Jacket rejection is
because of the Postal department machine processing
requirement of .007" thickness. The Postal requirement is
"not clearly" written only implied.
(Original /s/ Richard E. Lynch)
(Appeal File, Item 5)
The Respondent did not file an Answer to GBF's letter of
Complaint. Accordingly, the Board, pursuant to Rule 6.(b),
GPO Instruction 110.12 dated September.17, 1984, entered a
general denial on behalf of the Government.
(Appeal File, Tab 7).
Subsequently, the matter in dispute was taken up at a
prehearing conference held February 13, 1985, at which time
GBF was represented by counsel.
At the prehearing conference, both parties agreed that the
main issue is the interpretation to be given the
specification. GBF acknowledged that the specification might
be ambiguous but agreed that is was not patently so. Mr.
Lynch contended that the specifications he received read "over
(coated) 2 sides" and not "cover" stock. At this time, Mr.
Lynch entered into the record the original "xerox" of the
specification he received from GPO as their invitation to bid
(Exhibit 10). The copy appeared to have been imprecisely
photocopied, since many of the characters appearing on the
left side of the paper were partially deleted.
The undersigned then noted that the Government also contended
that the thickness of the paper used by appellant did not
comply with Postal Service regulations for mailing. Mr. Lynch
stated that this is part of the ambiguity since the contract
makes no reference to postal regulations. The Government then
contended that if the entire specification had been carefully
read by appellant, this would not have been an issue.
Government counsel then referred the parties to a copy he had
of the JCP L-lO specification as requiring compliance with the
postal regulations, but upon looking at the specification in
his file he discovered that it did not refer to .007 thickness
of paper. Mr. Walker then said that the .007 thickness of
paper should not be the issue; rather, the issue is whether
the publication was in fact printed on the required cover
stock. The undersigned then noted that the specification also
refers to "Government Paper Specification Standard No. 8 dated
April 1977," and asked whether it might have clarifying data.
However, the Government did not have a copy available at that
time.
There followed much discussion by all parties over whether the
photocopy of the specification proffered in evidence by Mr.
Lynch was the actual copy sent by the RPPD. To clarify this
matter, the undersigned requested Government counsel to obtain
an affidavit from the individual who sent the specification to
GBF to determine if the paper specification of the IFB
actually sent to GBF read "cover" or "over." (Subsequent to
the meeting, Government counsel advised the undersigned that
all photocopies sent to prospective bidders had partial left
hand margins similar to the copy proffered by Mr. Lynch. In
so advising, the Government in fact withdrew its contention
that the specification received by GBF was worded other than
as contended by GBF. The interpretation of that wording still
remains for decision.)
The undersigned stated, at this point, that he did not feel
the need for a hearing since it appeared that an impartial
fair reading of the specification could resolve the matter.
The appellant, however, felt that a hearing might be necessary
to call expert witnesses in the paper industry to bear out the
fact that GBF's interpretation of the specification was a
reasonable one.
At this point Government counsel advised that the JCP L-lO
specification referenced a standard sample which the contractor
was to match. Government counsel showed the undersigned the
sample. The undersigned then expressed his feeling that
additional information was needed and would schedule a hearing.
At the time of hearing, he would consider the standard sample
against a sample of :he paper used by appellant. He also made
the point that Exhibit 10 presented by the appellant speaks for
itself as to a fair and reasonable interpretation of the text but
opined that the ambiguity is more with what L-lO, 25 x 38 80#
means with respect to the JCP Code than to how the specification
read to the appellant. Government counsel then stated that the
25 x 38 on the specification was a patent ambiguity and should
have put GBF on alert that there was a need for further
clarification of the specification by Government. GBF objected
to this being a patent ambiguity.
With respect to a question from the undersigned, Mr. Lynch
stated that he and one other individual from his company (a
person in the Estimating Department), reviewed the
specification.
A hearing was then scheduled for February 26, 1985 (Appeal
File, Tab 15). However, by letter dated March 5, 1985,
counsel for appellant requested that the hearing not be held
because the expert witnesses it intended to call could not be
in attendance, and that instead the matter be decided upon the
written record. She advised that Government counsel had no
objection to such request. She further requested that the
record be held open for a reasonable time so that it might be
supplemented by affidavits, if desired, and that simultaneous
briefs be permitted (Appeal File, Tab 16). Permission was
granted to these requests and appellant filed such brief on
May 2, 1985 (Appeal File, Tab 17). Respondent did not avail
itself of the opportunity to brief the issue. Moreover,
supplemental affidavits were not filed by either party. The
record was administratively closed by the undersigned on
September 30, 1985.
Appellant's artful brief which is too voluminous to quote here
in its entirety sets forth its alternate arguments as follows:
ARGUMENT I
[T]he termination for default . . . was improperly grounded. The
Notice . . . stated the . . . contract was terminated for . . .
failure to produce this order on the paper specified . . . . But
it was impossible to produce the order on the paper specified
because no such paper exists. The contractor could not possibly
comply; therefore, he should not be defaulted for failure to
comply.
ARGUMENT II
. . . [T]hough the contract specifications at issue were
ambiguous, the contractor interpreted them reasonably and,
therefore is entitled to prevail because the risk of
ambiguity is placed on the drafting party, the Respondent.
(Appeal File, Tab..17)
The appeal is before the Board in this form.
ISSUE
The questions presented by this appeal are: (1) Whether the
appellant should have been defaulted for "failure to produce
on the paper specified . . . " when no such exactly specified
paper existed; or (2) Whether vel non the specification for
paper as set forth in the photocopy of the bid solicitation
actually received by appellant was ambiguous, and if so,
whether the ambiguity was (a) patent so as to have created an
affirmative burden upon the appellant at or before the time of
its bid submission to seek clarification from the respondent
as to the meaning of the specification, or (b) latent so as to
lend itself to more than one reasonable interpretation in
which case the clause must be read against the interest of the
respondent as drafter provided the interpretation given by
the appellant was reasonable; i.e., an interpretation which a
reasonably prudent printer of ordinary knowledge and
experience for the level of work required would likely place
upon the language in question, all other aspects of the
language of the solicitation being considered as a whole.
DISCUSSION
We dismiss out of hand appellant's first argument that no
default should lie for failure to produce on the paper
specified when no such paper exists, although we concede that
the argument might be proper had appellant not produced the
product at all. The Notice of Termination for Default was
drafted by the contracting officer to give reasonable notice
to the contractor of his final decision in a contract action
and the underlying basis for such decision. The contracting
officer is not acting in a manner akin to a grand jury issuing
an indictment precisely charging some violation of law which
must of necessity make out a crime or fail on its face.
Rather, we believe the Notice of Termination was reasonably
stated to assert the proposition that the appellant used a
paper different from the paper which the respondent intended
to be used when it drafted its specifications, and to afford
the appellant the opportunity to contest such judgment by way
of appeal to this Board which it has done.
The resolution of appellant's second argument is more complex.
The issue of whether or not the provision of the contract
concerning the requirement for paper is ambiguous is a
question of law, John C. Grimberg Co. v. United States, 7 Ct.
Cl. 452 (1985), and thus any decision by this Board concerning
such matter is reviewable by the courts pursuant to the
Wunderlich Act, 41 U.S.C. Sects. 321-322 (1964). "Ordinarily,
when interpreting a contract, the plain meaning of the
contract is binding upon the court unless the contract by its
very terms is inherently ambiguous. A contract is ambiguous
if it is subject to more than one reasonable interpretation.
But it is not appropriate to strain the language of the
contract to create an ambiguity." Opalack v. United States, 5
Cl. Ct. 349, 359 (1984). Moreover, the general rule is that a
contract is to be interpreted as a whole; that all provisions
of the contract are to be.given effect and that no provision
is to be rendered meaningless. Ratheon Co. v. United States,
2 Cl. Ct. 763 (1983).
In Enrico Roman, Inc. v. United States, 2 Cl. Ct. 104 (1983),
the United States Claims Court at 106 et seq stated that:
This court can be guided by the opinion of the Court of
Claims in George E. Newsom v. United States, 231 Ct. Cl.
--- , 676 F.2d 647 (1982), wherein the court said:
The analytical framework for cases like the instant one was
set out authoritatively in Mountain Home Contractors v.
United States. It mandated a two-step analysis. First, the
court must ask whether the ambiguity was patent. This is
not a simple yes-no proposition but involves placing the
contractual language at a point along a spectrum. Is it so
glaring as to raise a duty to inquire? Only if the court
decides that the ambiguity was not patent does it reach the
question whether a plaintiff's interpretation was
reasonable. The existence of a patent ambiguity in itself
raises the duty of inquiry, regardless of the reasonableness
vel non of the contractor's interpretation.3 (Emphasis in
original.)
[1] In accordance with the court's reasoning in the Newsom
case, this court's first responsibility is to ascertain
analytically whether vel non an ambiguity existed regarding
the replacement of the floor area under the air conditioning
units and the closet walls. Second, the court must
ascertain if the ambiguity was so patent and glaring, as to
impose an affirmative duty on the part of plaintiff to seek
clarification from the designated Government agent before
submitting its bid.
Only if the court ascertains that a patent ambiguity does
not exist, may it proceed to determine f [sic] plaintiff's
interpretation of the contract terms is reasonable.
The foregoing analysis is ineluctable since the doctrine of
patent ambiguity is an exception to the contra proferentem
4/ rule which requires that the contractual language be
construed against the drafting party.
Policy consideration for this exception to the contra
proferentem rule consist of the need to protect bidders so
that they are all bidding on the same material; to
discourage contractors from taking advantage of the
Government; and most of all, to prevent post-award
litigation. In this case, the IFB and attached drawings did
not indicate the presence of the air conditioning units and
closet walls.
The rule that a contractor, before bidding, should attempt
to have the Government resolve a patent ambiguity in the
contract's terms is a major device of prevention hygiene; it
is designed to avoid just such post-sward disputes as this
by encouraging contractors to seek clarification before
anyone is legally bound. [Emphasis supplied.]
S.O.G. of Arkansas v. United States, 212 Ct. Cl. 125, 131, 546
F.2d 367, 373 (1976); see Robert L. Guyler v. United States, 219
Ct. Cl. 403, 593 F.2d 406 (1979); Sturm v. United States, 190 Ct.
Cl. 691, 421 F.2d 723 (1970).
Additional guidance regarding the analytical process to be
undertaken by the court in interpreting such language was
given in Salem Engineering and Construction Corp. v. United
States, 2 Cl. Ct. 803 (1983), at 806 et seq, which is quoted
in pertinent part, thus:
The contract is ambiguous if it sustains the interpretations
advanced by both parties, Max Drill, Inc. v. United States,
192 Ct. Cl. 608, 627, 427 F.2d 1233, 1245 (1970), and in
construing it, the court must place itself in the shoes of a
reasonable and prudent . . . contractor. Norcoast
Constructors, Inc., v. United States, 196 Ct. Cl. 1, 9, 448
F.2d 1400. 1404. (1971); Firestone Tire & Rubber Co. v.
United States, 195 Ct. Cl. 21, 30, 444 F.2d 547, 551 (1971).
The language o[ the contract must be given that meaning
which a reasonably intelligent contractor acquainted with
the circumstances surrounding the contract would derive.
Id; Hol-gar Manufacturing Corp. v. United States, 169 Ct.
Cl. 384, 388, 351 F.2d 972, 975 (1965). Therefore, the
court must consider the purpose of the contract along with
its language.
. . . It is correct that the court should accept an
interpretation which gives a reasonable meaning to all parts
of a contract, rather than the one which renders a provision
of the instrument meaningless or useless. Hol-gar
Manufacturing, 169 Ct. Cl. at 395, 351 F.2d at 979.
. . .[D]efendant contends that the work was clearly and
unambiguously prescribed by the contract and if it merely
had wanted the new roof connected to the existing one, it
would have specifically said how to do it. This may have
been clear in the minds of the drafters of the contract or
defendant's architect, but their subjective intent does not
control. The representations of the specifications and
drawings govern the interpretation of the contract. Max
Drill, 192 Ct. Cl. at 628, 427 F.2d at 1245; L. Rosenman
Corp. v. United States, 182 Ct. Cl. 586, 590, 390 F.2d 711,
714 (1968).
. . . .
. . . .
[4.5] The burden of ambiguity is somewhat shifted to the
contractor by a provision calling on it to seek
clarification of ambiguities. See WPC Enterprises, Inc. v.
United States, 163 Ct. Cl. 1, 7, 323 F.2d 874, 877 (1963).
But the government cannot require a contractor to notify it
of every possible ambiguity or potential difference in
interpretation. Max Drill, 192 Ct. Cl. at 625, 427 F.2d at
1244. To do so would be to make the contractor an insurer
against all government mistakes. See Mountain Home
Contractors v. United States, 192 Ct. Cl. 16, 22, 425 F.2d
1260, 1264 (1970). The most that can be required of a
contractor is to notify the government of major
discrepancies or errors it detects in the specifications and
drawings, or risk an adverse construction. ld. quoting
Blount Bros. Construction Co. v. United States, 171 Ct.
Cl. 478, 496, 346 F.2d 962, 973 (1965). What constitutes a
patent or major discrepancy or ambiguity is defined on an ad
hoc basis. Max Drill, 192 Ct. Cl. at 626, 427 F.2d at
1244; L. Rosenman Corp., 182 Ct. Cl. at 590, 390 F.2d at
713.
[6] A government contractor need not exercise clairvoyance
to determine its contractual responsibilities. See Corbetta
Construction Co. v. United States, 198 Ct. Cl. 712, 723, 461
F.2d 1330, 1336 (1972). It does not bear the burden of
interpreting a contract correctly, only of interpreting it
reasonably. Max Drill, 192 Ct. Cl. at 627, 427 F.2d at
1245. Accordingly, as drafter of the contract, defendant
shoulders the responsibility of seeing that within the zone
of reason the words used convey their intended meaning. See
John McShain, Inc. v. United States, 199 Ct. Cl. 364, 378,
462 F.2d 489, 496 (1972); Firestone Tire & Rubber Co., 195
Ct. Cl. at 30, 444 F.2d at 551. The risk of ambiguity rests
on the government. United States v. Seckinger, 397 U.S.
203, 216, 90 S. Ct. 880, 887, 25 L. Ed. 2d 224 (1970);
United Pacific Insurance Co. v. United States, 204 Ct. Cl.
686, 695, 497 F.2d 1402, 1407 (1974).
If defendant wanted Salem to remove and replace the entire
existing roof, it should have said so explicitly. See L.
Rosenman Corp., 182 Ct. Cl. at 591, 390 F.2d at 714;
Schweigert, Inc. v. United States, 181 Ct. Cl. 1184, 1190,
388 F.2d 697, 700 (1967). To merely say, "remove existing
roof," when part of the existing roof would have to be
removed to join it to the new addition is not adequate to
place a contractor on notice to reroof the entire existing
building.
More recently in John C. Grimberg Co., Inc. v. United States,
7 Cl. Ct. 452 (1985), the Claims Court at 456:
[1,2] The court's first responsibility in a case such as
this "is to ascertain analytically whether vel non an
ambiguity existed," Enrico Roman Inc. v. United States, 2
Cl. Ct. 104, 106 (1983). regarding the type of test to be
performed. Assuming arguendo that an ambiguity were
presented by GSA's use of the phrase "across the bags" to
describe the test, any ambiguity is not so glaring as to be
patent and thereby put plaintiff on a duty to inquire. See
e.g., George E. Newsom v. United States, 230 Ct. Cl. 301,
303, 676 F.2d 647, 650 (1982). In the circumstances
plaintiff was not obligated to "seek clarification of any
and all ambiguities, doubts, or possible differences in
interpretation." WPC Enterprises, Inc. v. United States, 163
Ct. Cl. 1, 6, 323 F.2d 874, 877 (1963).
[3-6] The familiar rule that a non-patent ambiguity be
resolved against the drafter "is subject to the condition
that the alternative interpretation tendered by the other
party be reasonable one." William F. Klingensmith, Inc. v.
United States, 205 Ct. Cl. 651, 657, 505 F.2d 1257, 1261
(1974) (per curiam); Perry & Wallis, Inc. v. United States,
192 Ct. Cl. 310, 316, 427 F.2d 722, 726 (1970). The issue
is a question of law for the court to decide. See e.g.,
William F. Klingensmith, Inc., 205 Ct. Cl. at 656, 505 F.2d
at 1260. The alternative interpretation need only be within
the "zone of reasonableness," the Government shouldering
"the major task of seeing that . . . the words of the
agreement communicate the proper notions . . . ." WPC
Enterprises, Inc. v. United States, 163 Ct. Cl. at 6, 323
F.2d at 876-77 (quoted in Folk Construction Co. v. United
States, 2 Cl. Ct. 681, 688 (1983)). The Government "must
bear the risk of an insufficient attempt, even though the
plaintiff's obtuseness likewise contributed to the . . .
misunderstanding." 163 Ct. Cl. at 11, 323 F.2d at 879. In
judging the import of the words of the contract, "the
context and intention [of the contracting parties] are more
meaningful than the dictionary definition," Rice v. United
States, 192 Ct. Cl. 903, 908, 428 F.2d 1311, 1314 (1970),
and the contract language "must be afforded the meaning
derived from the contract by a reasonably intelligent person
acquainted with the contemporary circumstances." Firestone
Tire & Rubber Co. v. United States, 195 Ct. Cl. 21, 30, 444
F.2d 547, 551 (1971). The court frequently must place
itself in the shoes of a reasonable contractor in
considering the contract language. Id.
Based upon the above discussion of the law concerning the
interpretation of contracts, it is the Board's opinion that
the language in dispute is ambiguous but not so glaringly so
as to be deemed patent, thus shifting the burden to the
contractor to have discovered the error and alerted the
Government to the same prior to submitting its bid. The facts
of the case support this conclusion since appellant did not
discover the error in specification at all but in fact only
became aware of it at the time of the agency's rejection of
the completed product. Moreover, there is no evidence that
any other bidder responding to the solicitation questioned the
specification, nor that the Government Printing Office in its
bid review and award phases thought the specification to be
anything but clear on its face. To hold now that it was
patently ambiguous and shift the burden to appellant would
simply fly in the face of reason. This same holds true with
respect to the application of the exculpatory contract clause
requiring the contractor to notify the Government of errors it
discovers, since both the issue of patent ambiguity and the
application of such clause presuppose that the contractor is
aware of the error or reasonably should have been before
undertaking production. In stating this position we point out
that our opinion might have been different had the
solicitation upon which the appellant based its bid contained
the word "cover" rather than "over," since a requirement for
cover stock coupled with the 25 x 38 basis size and 80 lb.
basis weight for 500 sheets by any standards in the paper and
printing industries would have been patently ambiguous. The
word "over," however, is a perfectly good English language
word standing alone. A contractor as stated above cannot in
such circumstances be held to a standard of clairvoyance even
where some ambiguity exists as it does here. It is apparent
to the Board that the real ambiguity was not between the
written description of "white gloss coated" etc., and the
basis size and weight, but rather between the basis size and
weight 25 x 38 80 lb. and the JCP Code-10 description of the
paper stock; i.e., "Basis weight: 20 x 26 - 1,000 . . .
pounds . . . 120 160." Here it is clear to the Board that the
paper described under JCP Code-10 (the paper the Government
intended to be used) does not comport with the basis size and
weight set forth in the narrative description in the
specification. But to come to this conclusion one must go to
the U.S. Government Paper Specifications which are not
furnished to the contractor, although on sale by the
Superintendent of Documents, GPO, and look up the L-lO
description. It is our opinion, however, that an ordinary
printer in like circumstances bidding upon these
specifications and seeing the basis weight 80 lbs. for 500
sheets, size 25 x 38, accompanied by a noncontradictory
narrative description might reasonably conclude out of common
experience that the paper was book paper and that the equal to
JCP Code-10, a Government citation of mere formality,
unnecessary to be further examined. Indeed, the Board
believes that appellant did just that. Of course, we could
fault the contractor for not raising the question as to what
purpose the word "over" served in the descriptive language,
especially with respect to its relationship to the appositive
parenthetical phrase. The Board sees no purpose in dwelling
upon such second guessing and has taken more than enough time
in its pensive deliberations on the question of fault. It is
clear that the language in question could not in any
circumstance be given the reading first asserted by the
contracting officer (i.e., 20 x 26 cover stock), and that the
interpretation applied by appellant was reasonable although
perhaps not the most reasonable. The real fault originated in
the Government with sloppy draftsmanship and continued through
sloppy photocopying, bid review, and award. The incorrect
product thus resulted. Upon being advised of this
circumstance by the requisitioning agency, the respondent,
rather than acknowledge its fault by terminating the contract
for the convenience of the Government, looked to appellant to
reprint the product and seek relief, if any, at its expense
through the appellate process. The contractor refused to
incur the expense of reprinting but did appeal. All efforts
thereafter both by the appellant and the Government were by
way of argument, whether by contractor, contracting officer,
or learned counsel. Accordingly, the Board rules in favor of
appellant and directs that it be compensated in accordance
with the terms of the contract.