McDonald & Eudy Printers, Inc. GPO BCA 2-85 March 12, 1986 Michael F. DiMario, Administrative Law Judge Opinion This appeal was timely filed by McDonald & Eudy Printers, Inc. (hereinafter "Appellant"), 4509 Beech Road, Temple Hills, MD 20748, pursuant to the "Disputes" article of United States Government Printing Office Contract Terms No. 1 (GPO Publication 310.2 Revised October 1, 1980) which, by reference was incorporated in and made a part of a purported contract between Appellant and the United States Government Printing Office (hereinafter "Respondent" or "GPO"), identified as Jacket 457-909, Purchase Order 46690 dated December 10, 1984, in the amount of $1,045. The appeal is from the final decision of James L. Leonard, Contracting Officer, GPO, of December 18, 1984, advising Appellant of the complete termination of the contract "for default because of your failure to deliver an acceptable product as per specifications." The appeal is denied and the matter is remanded back to the contracting officer for processing in accordance with the directions set forth hereinbelow. Background The Office of Personnel Management (hereinafter "OPM"), a central management agency of the United States Government, requisitioned from the GPO the printing of approximately 21,653 copies of a certain letter which was to be a part of a general regulation entitled "FPM Basic". The work had to be accomplished expeditiously and required (l)the pick up of a certain preprinted attachment to the letter from an OPM warehouse in Alexandria, VA; (2) the printing of the letter; (3) the affixing of the attachments to the letters; (4) the insertion of the letters and attachments into envelopes; (5) the affixation of labels to the envelopes in accordance with prefurnished mailing and distribution lists; and (6) the redelivery of the product to OPM at a Washington, DC location. Because of the urgent need by OPM, Respondent sought to fulfill the requirements of the requisition by competitively negotiating a small purchase contract under authority of 41 U.S.C. 5(1). Prospective contractors thought capable of accomplishing the work were solicited by telephone to determine their interest. The solicitation in general included Respondent's reading the specifications to the contractor's representative including the need to meet the anticipated delivery date and instructing them to place their price quotation, if any, with Respondent by return telephone call. The original solicitation apparently included only 5 vendors and was conducted on December 6 & 7, 1984, and was to be awarded December 7,.1984. Three of the vendors had "no bid" responses. Two vendors, Metro Printing & Mail and Bay Printing, had offers of $2,925, $42.50 per thousand "add'l rate" and $875, $40.50 "add'l rate", respectively. (Appeal File, hereinafter "Rule 4 File", Tab B) For some undisclosed reason award was not made to any vendor at that time. However, on December 10, 1984, Appellant and one other vendor were solicited. One, G. W. Press, had no offer. The other vendor was Appellant. The sequence of events concerning Appellant's solicitation, offer, acceptance, performance, default, and appeal follow. On December 10, 1984, Respondent's representative, Phil Jones, Printing Specialist, Contracts Branch, telephoned Appellant's representative, Joy Moxley, to ascertain Appellant's interest and solicit its price quotation. He advised her that the job was "[h]ot" and had to be expedited with completion by December 12, 1984. He also read her the specifications, however, there is dispute as to whether they included the requirement to pick up the attachments from OPM and affix them to the letters so that they could be inserted in the distribution envelopes for redelivery to OPM. Moxley asserts that she took the specifications by "dictation" and that her notes thereby reflect what she was read and they do not include the instructions to pick up and affix the attachment to the letter. Appellant, relying upon Moxley's understanding of the specificants, by return call of its Vice-President, Mr. David McDonald, that same morning, quoted its price to Respondent as $1,045 for the first 21,653 copies +/- 1% and $84 for each additional 1,000 copies required thereafter. (Rule 4 File, Tab B) That same day after all offers were abstracted, Jones recommended award to Appellant " . . . based on similar procurement and availability of funds by Dept." (Rule 4 File, Tab B) Thereafter, at about 2 p.m. Appellant was telephonically notified by Jones that its offer had been accepted and that camera copy would be available for pick up from Respondent at 4:30 that afternoon. (Rule 4 File, Tab B) Appellant, after the telephone notification of award but before receipt of the written materials, apparently prepared its job jacket for the work it anticipated needed to be done by its night crew in order to meet the delivery schedule 2 days hence. (Rule 4 File, Tab K) Appellant asserts that its instructions conformed to the specifications telephonically received and recorded by Ms. Moxley. (Rule 4 File, Tab K) Appellant acknowledges that it did receive the written specifications with the camera copy when it picked up these materials at approximately 4:30 p.m. on December 10 but "failed to check" them before proceeding with the job. It asserts, however, that no sample of the OPM attachment was included with the materials although the written specifications indicate such materials were included therewith. The written specifications expressly require "[c] ontractor to pick up furnished attachments at OPM, 929 S. Pickett St. Alexandria, Va between the hours of 10 AM & 4 PM" and describes the work to be performed, thusly: "Furnished attachment is a folded, preprinted form. 11 boxes of folded forms 8 1/2 x 11" approx. 017" thick. After printing and drilling of letter, place 1 letter on top of each attachment & stitch with 1 wire stitch in upper left (per furnished sample)." On December 14, 1984, Appellant was contacted by Respondent by telephone regarding the discrepancy in the completed job. Appellant indicated it had already learned of the same from OPM. Appellant was asked to reprint the job but refused to do so. Appellant was then advised that it would be responsible for any reprocurement costs if it continued its refusal and the job had to be obtained from another vendor. (Rule 4 File, Tab K) Formal notification and default.followed. (Rule 4 File, Tabs E & F) Thereafter, Appellant by letter of January 15, 1985, formally appealed (Rule 4 File, Tab K) asserting among other things that "[o]ur bid was for the Printing, Trim, Drilling, Mailing of a face only form and does not include the cost for gathering, stitching of furnished material from the agency." Further, they allege that "the bid submitted on December 10 by the next low responsive bidder, Metro, $2,925 should have put the contracting officer.on notice that a probable error had been made and given Respondent the opportunity to review and confirm the specifications and its bid due to the difference in prices." Appellant requested a hearing on the dispute. Subsequently, a prehearing conference was held at which time it became clear that the only factual dispute between the parties was in whether or not the telephonic reading of the specifications included the pick up and affixing of the OPM attachments as described, supra, and that oral testimony by Ms. Moxley and Mr. Jones would only corroborate the diametrically opposing positions set forth in their affidavits. (Rule 4 File, Tab L, and the Official Record, Tab 9) Accordingly, it was agreed at that time that the appeal would be decided on the written record. Respondent, at the prehearing conference, supplemented that record by proffering evidence of the reprocurement (Rule 4 File, Tabs M thru P) which was accepted without objection. The case is before the Board for decision in this form. Decision We believe that in arriving at a proper decision in this case it is unnecessary to resolve the factual dispute between the parties concerning the specifications since the conduct of the parties convince us that no contract ever existed between them. We also believe that Appellant's arguments that the Government was or should have been alerted to its mistake in bid because of the price differential with the second low bidder need not be considered, since such arguments could only be raised if a valid contract existed. Moreover, the burden of persuasion would be on the Appellant in light of the post "award" nature of such claim and Jones' notation on the bid abstract that his recommendation of award was based upon prior contract price experience. We base our belief on the Court of Claims admonition in Penn- Ohio Steel Corp. v. United States, 173 Ct.Cl. 1064, 354 F.2d 254, 266 (1965), wherein the court stated that: The first task in this factual setting is to determine whether there was a meeting of the minds, and if so, whether it was objectively manifested and sufficiently definite so that major terms and conditions are reasonably capable of ascertainment. For [a] court cannot enforce a contract unless it can determine what it is. It is not enough that the parties think that they have made a contract; they must have expressed their intention in a manner that is capable of understanding. 1 Corbin, Contracts, � 107 (1951). Those preeminent authorities, Professors Nash and Cibinic, tell us that in Government contracts: Offers are solicited by a Request for Proposals (RFP) or a Request for Quotations (RFQ). When it appears that the contract terms and specifications are sufficiently definite, the agencies follow a procedure which is very similar to the one described above for formal advertising. However, in most cases, the RFQ or RFP is an invitation to begin negotiations. In some instances, the parties intend that offer and acceptance occur simultaneously with the conclusion of negotiations. However, negotiations often conclude with agreement in principle and one of the parties, almost invariably the Government, reduces the agreement to writing in an integrated document. Under normal practice, this document is sent to the contractor for execution. Upon his signature and return it becomes the offer. Acceptance is usually accomplished by the contracting officer's signing and transmitting the document to the contractor. When time is at a premium (this occurs most frequently near the end of the Government's fiscal year) the contracting officer may sign the contract first, thus becoming the offerer, and then send it to the contractor for acceptance. 1 R. Nash & J. Cibinic, Federal Procurement Law, at 108-109 (3d ed. 1977). "The determination of whether a certain communication by one party to another is an operative offer and not merely an inoperative step in the preliminary negotiation, is a matter of interpretation in the light of all the surrounding circumstances." 1 Corbin, Contracts, � 23, at 67, West Publishing Co. (1963). Solicitations such as that made by Respondent have consistently been held not to be offers which create powers of acceptance in the party to whom made. 1 Corbin, Contracts, supra, � 24, at 71, et seq. Moreover, price quotations such as that made by Appellant have likewise been held not to be such offers. 1 Corbin, Contracts, supra, � 26, at 77, et seq. Thus, no oral offer having been made by either Appellant or Respondent, no powers of acceptance were created in either of them pursuant to the oral exchange. Additionally, it is clear that even if such powers had been created, the facts show that there was no real mutuality of assent, that so called "meeting of the minds" necessary to contract formation. Thus, in the case before us, we find that the only offer giving rise to a power of acceptance was that contained in the purchase order setting forth the written specification requiring the pick up and affixing, and redelivery of the OPM attachment. Appellant, while admitting receipt, states that it "failed to check" this offer and performed not in reliance upon it but rather upon the oral information it had received earlier. The conclusion which must necessarily follow from such facts is that no acceptance occurred. There being no acceptance, there is no contract and absent a contract, there is no basis for default nor any basis for the assessment of excess reprocurement costs. On the other side of the coin we do not believe Appellant to be entitled to any compensation for its work even under equitable theories such as quasi contracts; i.e., quantum meruit. The fact militating against such recovery is Appellant's own admission that it had the written specifications in its possession at a time before it undertook actual production but had simply not reviewed them relying instead on its oral understanding of the requirements. From this fact we draw the conclusion that but for Appellant's own negligence, it would have incurred no substantial financial loss. Accordingly, the appeal is denied and Respondent is directed to correct its records respecting the default and withdraw its assessment of excess reprocurement costs against Appellant.