BOARD OF CONTRACT APPEALS
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON, DC 20401
In the Matter of )
)
the Appeal of )
DIGIMATICS, INC. ) Docket No. GPOBCA 07-96
Jacket No. 392-253 )
Purchase Order 48757 )
For the Appellant: Digimatics, Inc., Aston, Pennsylvania, by Denis L. Alumbaugh, President, pro se.
For the Government: Kerry L. Miller, Esq., Associate General Counsel, U.S. Government Printing
Office.
Before FOSS, Administrative Judge.
DECISION AND ORDER
I. STATEMENT OF THE CASE
By letter dated March 27, 1996, Digimatics, Inc. (Appellant or Contractor), Rolling Hills
Industrial Center, 5 Crozierville Road, Aston, Pennsylvania 19014, filed a timely appeal of the
final decision of Contracting Officer Dan Clurman, dated February 26, 1996, Chief of the Small
Purchase Branch (SPB) in the U.S. Government Printing Office's (Respondent or GPO or Government),
Printing Procurement Department, Washington, DC 20401, denying the Appellant's equitable adjustment
claim of $5,571.68 for reprinting 200,000 Optical Character Recognition (OCR) forms for the
Department of Commerce's Patent and Trademark Office (PTO or customer-agency) under its contract
identified as Jacket No. 392-253, Purchase Order 48757 (R4 File, Tabs 18 and 19).1 See Board
Rules, Rules 1(a) and 2. For the following reasons, the Contracting Officer's final decision is
hereby AFFIRMED, and the appeal is DENIED.
II. BACKGROUND
The relevant facts are essentially uncontroverted, and are set forth here as presented in R4 File
and the SRPTC.
1. On March 13, 1995, the PTO submitted Printing and Binding Requisition No. 5-03748 to GPO for the
procurement of 200,000 OCR forms (R4 File, Tab 1). The Respondent assigned Jacket No. 392-253 to
the requisition. Id.
2. On March 24, 1995, following its small purchase procedures,2 GPO issued Purchase Order 48757 to
the Appellant awarding it the contract (R4 File, Tab 2). The purchase price was $5,528.00 and the
Purchase Order indicated that the OCR forms were to be delivered complete by April 10, 1995. Id.
Among other provisions, the contract contained the following pertinent specifications:
* * * * * * * * * *
NUMBER OF PAGES: Face and Back
DESCRIPTION: Type and rule matter printing black and blue on the face and black only on the back.
Forms are imposed head to head. Approx. blue ink coverage is less than 10% each side. Forms must
function properly when feed [sic] through a Fujitsu desktop scanner.
INK: (Must match Pantone's): 304 Blue and Black
* * * * * * * * * *
PRIOR TO PRODUCTION SAMPLES: The sample requirement for this contract is not less than 100 (each)
samples (Printing required) . . . . Each sample must be constructed as specified using the form
(if printed samples are required), materials, equipment, and methods of production which will be
used in producing the final product. All samples will be manufactured at the facilities in which
the contract production quantities are to be manufactured.
* * * * * * * * * *
Prior to commencement of production of the contract quantity, the contractor shall submit samples
to: U.S. Government Printing Office, Contract Management Division, Contract Compliance Section
(PPSC), Washington, DC 20401. All samples will be sent to the ordering agency for approval. . . .
The samples must be submitted in sufficient time to allow Government testing of the samples and
product and shipment in accordance with the shipping schedule.
The Government will approve, conditionally approve, or disapprove the samples within 3 workdays of
the receipt thereof. Approval or conditional approval shall not relieve the contractor from
complying with the specifications and all other terms and conditions of the contract. A
conditional approval shall state any further action required by the contractor. A notice of
disapproval shall state the reasons therefor.
* * * * * * * * * *
In the event the Government fails to approve, conditionally approve, or disapprove the samples
within the time specified, the Contracting Officer shall automatically extend the shipping schedule
in accordance with article 12 "Notice of Compliance with Schedules" of contract clauses in GPO
Contract Terms (Pub. No. 310.2, effective December 1, 1987 (Rev. 9-88) [hereinafter GPO Contract
Terms.]3
* * * * * * * * * *
Id. [Emphasis added.]
3. The Appellant supplied the required preproduction samples to GPO on March 29, 1995, and they
were forwarded to the PTO for review, with a return date to the Contractor of April 3, 1995. R4
File, Tab 4. However, the customer-agency did not return the samples within that time frame, but
rather kept them until August 10, 1995, when it provided the Respondent with new camera copy
containing numerous author's alterations, and asked that additional samples be furnished. R4 File,
Tabs 5 and 6.
4. One of the changes made by the PTO was in the ink color on the reverse side of the form. R4
File, Tab 6. Specifically, the customer-agency printing specialist who sent the new copy to GPO,
wrote on the cover sheet: "Back now prints in OCR blue instead of black-memo to follow." Id.
Furthermore, on August 10, 1995, the PTO sent a memorandum to the Respondent's Departmental
Accounts Representative Division (DARD) stating:
Request specifications be changed to read "Backs of all forms to print in Pantone 304 Blue ink.["]
All other specifications are to remain unchanged.
R4 File, Tab 8. That same day the DARD forwarded the memorandum to Shirley Witt, a Printing
Specialist in the SPB,4 with the note "[s]amples [returned] to contract compliance [with] request
for revise[d] samples due to copy [change]. Id.
5. Also on August 10, 1995, after the Contracting Officer received the customer-agency's
memorandum, he wrote to the Appellant confirming the changes. R4 File, Tab 7. His letter said,
specifically:
This will confirm the telephone conditional approval by Ms. Shirley Witt, on August 9, 1995, of the
preproduction samples you submitted under the reference Jacket.
These samples are not equal to specifications due to author's alterations. Please destroy old
[negatives] and use new camera copy. Additional samples are required.
6. The Appellant made the requested changes, and furnished a new set of preproduction samples with
the reverse side correctly printed in blue ink. R4 File, Tab 9. On November 8, 1995, the samples
were approved with some minor corrections due to contractor errors, and the Appellant was told to
make the changes and proceed with production-no additional samples were needed.5 R4 File, Tab 10.
7. The Appellant produced the forms and shipped them to the PTO. However, when the customer-agency
inspected the forms on November 29, 1995, it discovered that the back had been printed in black
ink, as originally specified, instead of blue, as changed. R4 File, Tab 13. GPO was notified and
its own inspection confirmed the error. R4 File, Tab 16.
8. Because of this printing mistake, on January 23, 1996, the Contracting Officer orally directed
the Appellant to reprint the entire order with the reverse side of the form in the correct color
(blue) ink, and later confirmed his instructions, in writing, by letter dated February 22, 1996.
R4 File, Tabs 14 and 16.
9. The Appellant complied with these instructions, but in the meantime, on February 19, 1996, wrote
to the Contracting Officer protesting his decision, and asking that a contract modification be
issued to cover the cost of the reprinting. R4 File, Tab 17.
10. On February 26, 1996, the Contracting Officer issued his final decision rejecting the
Appellant's contract modification request on the ground that the error was the contractor's fault
for not following the revised specifications, and not seeking GPO's advice when its production
personnel, prior to printing, raised the question of which color ink-black or blue-was to be used
for the back of the form. R4 File, Tab 18.
11. A timely appeal was filed with the Board on April 1, 1996. R4 File, Tab 19.
III. ISSUE PRESENTED
Did the Respondent properly change the printing specification for the reverse side of the OCR form
from black to blue ink in this case? Stated otherwise, did the Contracting Officer ratify the
customer agency's request to change the ink color by forwarding the PTO's transmittal sheet with
the note "Back now prints in OCR blue instead of black-memo to follow" to the Appellant, and
writing a general confirming letter, or was he required to send a separate follow-up memorandum
specifically addressing the color change?
IV. SUMMARY POSITIONS OF THE PARTIES6
A. Appellant
The Appellant seeks an equitable adjustment in the amount of $5,571.68 as the price for reprinting
the OCR forms. The Contractor alleges that it properly printed the reverse side of the forms in
black, as called for in the original specifications, because contrary to its expectations, it never
received the "memo to follow" from the Contracting Officer officially changing the contract
requirements. The Appellant also contends that the PTO's transmittal notice returning the first
set of preproduction samples was not authority for it to change the ink color, but rather was
merely advisory. The Contractor expressly relies on the "Contractual Responsibility," "Order of
Precedence," and "Changes" clauses of GPO Contract Terms, for its position that only the
Contracting Officer could change the ink color specification for the back of the form. See GPO
Contract Terms, Contract Clauses, �� 1, 2 and 4. Indeed, the Appellant says that the PTO also
recognized this fact in its August 10, 1995, memorandum to GPO requesting the change. The
Contractor reasons that since the Respondent never took any action on the memorandum, the
specifications were never changed, and the reverse side of the forms were correctly printed in
black ink. Accordingly, for these reasons, it believes that it is entitled to an equitable
adjustment in the amount requested.
B. Respondent
The Respondent contends that the Contracting Officer authorized the change in dispute in two ways.
First, the PTO's transmittal sheet with the note "Back now prints in OCR blue instead of black-memo
to follow" was forwarded to the Appellant. Second, the Contracting Officer wrote a separate letter
to the Appellant on August 10, 1995, confirming the customer-agency's changes. GPO says that by
these steps the Contracting Officer thereby ratified the ink color change requested by the PTO.
Stated otherwise, the Respondent says that if the Contracting Officer did not wish to change the
back of the form to blue ink, he would not have sent the transmittal notice to the Appellant, or
written his confirming letter. Therefore, the Government submits that since the Contractor printed
the form in the original ink color without authorization, the error is its responsibility, and it
is not entitled to an equitable adjustment. Accordingly, the Respondent asks the Board to dismiss
the appeal.
V. DECISION
The Appellant has grounded its equitable adjustment claim in three specific provisions of its
contract-the "Contractual Responsibility," "Order of Precedence," and "Changes" clauses of GPO
Contract Terms. Those clauses state, in pertinent part:
1. Contractual Responsibility.
Awards by GPO for printing, binding, and related services are the sole responsibility of GPO and
not of its customer agencies. Modifications shall have no force or effect unless addressed before
the fact to and subsequently confirmed in writing by the Contracting Officer. Failure to comply
with this article may be cause for nonpayment of additional costs incurred or rejection of the
order.
2. Order of Precedence.
In the event of an inconsistency, the inconsistency shall be resolved by giving precedence in the
following order: (a) specifications; (b) supplemental specifications; (c) solicitation provisions;
(d) contract clauses; and (e) other provisions whether incorporated by reference or otherwise.
* * * * * * * * * *
4. Changes.
(a) The Contracting Officer may at any time, by written order, and without notice to the sureties,
if any, make changes within the general scope of this contract in any one or more of the following:
(1) Drawings, designs, or specifications when the supplies furnished are to be specially
manufactured for the Government in accordance with the drawings, designs, or specifications.
* * * * * * * * *
(b) If any change causes an increase or decrease in the cost of, or the time required for,
performance of any part of the work, whether or not changed by the order, the Contracting Officer
shall make an equitable adjustment in the contract price, the delivery schedule, or both, and shall
modify the contract.
(c) The contractor must submit any "proposal for adjustment" (hereinafter referred to as proposal)
under this article within 30 days from the date of receipt of the written order. However, if the
Contracting Officer decides that the facts justify it, the Contracting Officer may receive and act
upon a proposal submitted anytime before final payment.
* * * * * * * * * *
(e) Failure to agree to any adjustment shall be a dispute under article 5 "Disputes." However,
nothing in this article shall excuse the contractor from proceeding with the contract as changed.
See GPO Contract Terms, Contract Clauses, �� 1, 2 and 4. [Emphasis added.] The Contractor's
thinking is that despite the PTO's wish to change the ink color on the reverse side of the form
from black to blue: (1) the contract vests sole authority to make the change the ink specification
in the Contracting Officer ("Contractual Responsibility" clause); (2) the Contracting Officer never
officially notified it, in writing, that he had made such a change in the contract requirements
("Changes" clause); and (3) therefore, it had no choice but to print the back of the form as
originally ordered, in black ink ("Order of Precedence" clause). As a matter of logic, the
Respondent has no argument with the Appellant's view of the relationship between these three
clauses,7 but as a matter of fact, GPO disagrees strongly with the Contractor's contention that the
"Changes" clause was not properly invoked because the Contracting Officer failed to issue written
instructions expressly directing the color change requested by the customer-agency. Therefore, as
the Board sees it, the parties' dispute boils down to a technical question regarding the form of
the notice; i.e., were the steps taken by the Contracting Officer in conveying the PTO's requested
color change to the Appellant sufficient to satisfy the procedural requirements of the "Changes"
clause? In the Board's view, the Respondent has the better argument on this issue.
A similar question regarding the procedural requirements of the "Changes" clauses faced the Board
in GraphicData, Inc., a case in which, incidently, the PTO was also the customer-agency.8 While
not dispositive of the dispute, the Board had reason to examine and discuss the meaning of the term
"change order" in GPO's printing procurement regulation, and the circumstances in which it
applied.9 See GraphicData, Inc., supra, slip op. at 101-02 (citing PPR, Chap. XII, Sec. 2, ��
1(c), 2(a), (b), (e) (Contract Modifications)). The issue arose from the contractor's contention
that a "constructive change" in the contract occurred when the PTO suspended its plan to substitute
CD-ROM patents for paper ones in the second production period, which was an integral part of the
solicitation on which the contractor based its bid. The Government's response was that unless the
Contracting Officer received concurrence for the modification from GPO's Contract Review Board ,10
and informed the contractor of the change by signing and issuing a formal "Contract Modification"
(GPO Form 913), none of which happened, no "change order" within the contemplation of GPO's
regulations was issued. However, the record did contain a letter signed by the Contracting
Officer, notifying the contractor of "a change in the stated requirements . . .," directing the
contractor to perform the additional work, and informing the contractor of its equitable adjustment
rights. The Board disagreed with the Government's position, and held that a letter, such as the one
in the record, could be a "change order" provided it conformed to the requirements of the "Changes"
clause by: (a) being directed to the contractor by the person with contracting authority; (b) being
in writing; (c) being within the general scope of the contract and concerning the drawings,
designs, specifications, method of shipment or place of delivery; (d) providing for an equitable
adjustment in case costs are increased by the change; and (e) informing the contractor that must
submit any "proposal for adjustment" within 30 days from the date of receipt of the written order.
Id., at 99-100 (citing Queens Lithographing Corp., GPOCAB No. 9-77 (March 30, 1979), 1979 WL
28897).11 In short, the Board saw nothing in the "Changes"clause limiting contracting officers to
GPO Form 913 for the purposes of making a change in the contract, particularly since the drafters
of GPO Contract Terms had taken the trouble to identify various GPO forms in other clauses,
including referring to GPO Form 913 in the "Payment for Accelerated Delivery" clause, but had not
done so in the "Changes" clause. Id., at 102 (citing GPO Contract Terms, Contract Clauses, � 26
(Payment for Accelerated Delivery)). See W.H. Armstrong & Co. v. United States, 98 Ct. Cl. 519
(1943); A.L. Harding, Inc., DCAB PR-44, 65-2 BCA � 5261, reconsid. denied, 66-1 BCA � 5463; Lincoln
Construction Co., IBCA 438-5-64, 65-2 BCA � 5234, reconsid. denied, 66-1 BCA � 5343; C.A. Logeman
Co., ASBCA No. 5692, 61-2 BCA � 3232 (where the only Government defense is the lack of a written
change order, an oral change order will be upheld if the contracting officer also promised an
equitable adjustment once a fair amount could be determined). But cf. Plumley v. United States,
226 U.S. 545 (1913); General Bronze Corp. v. United States, 168 Ct. Cl. 176, 338 F.2d 117 (1964);
Comspace Corp., GSBCA No. 3550, 72-2 BCA � 9674 Instruments for Industries, Inc., DCAB NBS-16, 69-2
BCA � 8025, reconsid. denied, 70-1 BCA � 8169 (lack of a written change order is a reason for
denying a claim for price adjustment). See generally, John Cibinic, Jr. & Ralph C. Nash, Jr.,
Administration of Government Contracts, at 408-10 (3rd ed. 1995). In so ruling, the Board merely
followed its well-settled practice of giving the same interpretation to GPO's "Changes" clause, and
the rules pertaining thereto, that the Executive Branch contract appeals boards and the courts
apply to the "Changes" clause in the Federal Acquisition Regulations (FAR), which is identical.
See FAR � 52.243-1 (Changes-Fixed-Price)). See also Banta Co., GPO BCA 3-91 (November 15, 1993)
slip op. at 34, 1993 WL 526843 (citing United States v. Aguon, 851 F.2d 1158 (9th Cir. 1988); Van
Cleef v. Aeroflex Corp., 657 F.2d 1094 (9th Cir. 1981); L.B. Foster v. Railroad Service, Inc., 734
F.Supp. 818 (N.D. Ill. 1990)).
The essential holding of GraphicData, Inc. is that the Government's rights under the "Changes"
clause do not depend on the issuance of a formal contract modification, but rather something less,
like a letter, will suffice. In this case, the Contracting Officer also approved the PTO's change
request by letter instead of a contract modification, although admittedly, unlike the document in
GraphicData, Inc., his correspondence did not address the Appellant's equitable adjustment rights,
if any. Therefore, the issue is whether that omission constitutes a fatal defect?
In the Board's view, the answer to that question can be found in Queens Lithographing Corp., the ad
hoc panel a case which it cited with approval in its discussion of "change orders" in GraphicData,
Inc. Queens Lithographing Corp. involved a contract for the production of 3,00,000 high quality
bookcovers for use as a recruiting tool by the U.S. Department of the Air (USAF). The Government-
furnished material (GFM) for the contract consisted of camera copy, two artboards and a mechanical
overlay. Pursuant to the contract, the contractor returned the GFM along with proofs of the
bookcovers to GPO, which transmitted them to the USAF "the same date without comment or a
transmittal communication." See Queens Lithographing Corp, supra, slip op. at 3. The USAF
reviewed the material, caught an error in the camera copy, which it corrected, and also made one
author's alteration directly on the art board, highlighting it with red ink circle on the tissue
overlay over the change, and writing the following instructions on both sides of the overlay:
"shoot and strip-in new copy."12 Id. The proof, the artwork and the mechanical overlay were then
returned to GPO with a letter of transmittal stating that the proofs were "acceptable with a
comment," namely "[s]hoot and strip-in new copy as indicated on mechanical overlay." Id. After
making file copies of the alterations for its own records, GPO informed the contractor of the
changes by telephone. Id., slip op. at 4. The following day, the proofs, the revised GFM, and the
USAF's transmittal correspondence, were forwarded to the contractor by GPO without any cover
letter. Id. The contractor received the materials, but its production employees failed to notice
the changes, and the bookcovers were printed as they appeared in the original proofs. When the
mistake was discovered, the contractor was notified, and directed by the contracting officer to
reprint the bookcovers. Id., slip op. at 4-5. The contractor complied with the contracting
officer's instructions, but then filed an equitable adjustment claim for the reprint, alleging that
it was not at fault. Id., slip op. at 5. The contracting officer denied the claim on the ground
that the contractor was solely responsible, and hence financially liable, for the failure to make
the required revisions before printing the bookcovers. Id. The ad hoc panel agreed, and denied
the appeal.13 Id., slip op. at 12. Insofar as the issue in this appeal is concerned, the
following excerpt from the panel's opinion is particularly instructive:
. . . Queens asserts that in the absence of a proper change order issued by the Contracting
Officer, the Government had no right to reject the performance of Queens, which conformed in all
respects to the original copy of the specifications. It is contended that under Article 2 of U.S.
GPO Contract Terms No. 1,14 only the Contracting Officer has the authority to order changes in
specifications pursuant to the terms thereof, no oral statements of any person may be allowed to
change such specifications.
As a general rule, change orders may be initiated by the Contracting Officer, or the contractor may
request that a change order be issued. If the contractor has been directed to perform the
contracts in such a manner as to appear outside the scope of the contract, or in excess of its
requirements, it is his obligation to notify the contracting officer of such situations so that an
appropriate change order may be issued. However, in this instance, we have items described as
author's alterations which a printing contractor customarily performing a print job would be
expected to render. It is within the scope of the contract, and therefore would not require a
change order.
The appellant, a printing establishment with extensive experience in performing Government
contracts is well aware that the purpose of submitting proofs as provided in the contract, is to
obtain "approval for printing." We must interpret as reasonable, that this permits the Government
to make author's alterations of the type incorporated in the mechanical overlay. In fact, the
changes were already made by the Government as indicated in the camera copy. The Contractor's
employees failed to recognize the comments on the tissue overlay or to read the revised copy or to
be alerted by the remarks in the [USAF transmittal letter].
The changes requested by the Government were integrated into the contract requirements by the trade
practice for which the contractor was responsible. (Creative Arts Studio, Inc., ASBCA No. 13217,
70-1 BCA [�] 8165 (1970)).
We must therefore reject the appellant's claim for compensation for additional costs for reprinting
a corrected telephone number plus the incidental costs thereto, based on the changes article in the
contract. Evidence showed that the trade practice was to consider author's alterations, as fairly
comprehended in the specifications, and thus we must therefore reject the claim (R.D. Thayer
Company, ASBCA No. 3900, 57-2 BCA [�] 1410 (1957)).
See Queens Lithographing Corp, supra, slip op. at 10-11. [Emphasis added.]
The Board believes that the above quoted rationale from Queens Lithographing Corp. is dispositive
of the ultimate issue in this appeal. To put it bluntly, it is hard to see how the Contracting
Officer's letter here, brief though it may be, expressly confirming the author's alterations made
by the PTO and orally communicated to the Appellant beforehand by telephone, can be procedurally
less effective than the transmittal actions taken in Queens Lithographing Corp., where GPO orally
notified the contractor, and then simply forwarded the USAF's revisions and transmittal letter
without any instructions of its own. Therefore, the Board adopts the holding of Queens
Lithographing Corp., and finds that here, as there, according to the custom and usages of the
printing trade, the ink color change requested by the PTO was "fairly comprehended in the
specifications," and an integral part of the contract requirements. See Queens Lithographing Corp,
supra, slip op. at 11. Consequently, it was not necessary for the Contracting Officer to provide
the Appellant with "change order" or other written communication specifically authorizing the
author's alterations for the Contractor to make the ink color change on the reverse side of the
form. Accordingly, in the Board's view, the Contracting Officer's confirming letter sufficiently
satisfied the procedural requirements of the "Changes" clause, even though it omitted mention of
the Appellant's equitable adjustment rights.
Which brings us to the perplexing aspect of this case. The fact is that the Contractor made the
requested color change on the reverse side of the form, and the Government approved the revised
samples with an "O.K. to print," only to have the Appellant revert to the original color scheme for
final production. The Contractor's excuse for following the original specifications is that it
never received the so-called "memo to follow" from the Contracting Officer authorizing the change
from black to blue ink. However, it is clear that the message "memo to follow" was not intended
for the Appellant. The note in which that phrase appears-"[b]ack now prints in OCR blue instead of
black-memo to follow"-was written by a PTO printing specialist on the cover sheet which accompanied
the revised copy sent to GPO on August 10, 1995. R4 File, Tab 6. The Board has no doubt that PTO
meant those words for the Respondent, and refers to the memorandum which the customer-agency did,
in fact, send to GPO on August 10, 1995, formally requesting the color change. R4 File, Tab 8. It
is unfortunate that the Appellant misunderstood the message, and perhaps the Government could have
avoided any confusion by striking the words "memo to follow" from the PTO's cover sheet when it
forwarded the revised copy to the Contractor. However, the Board has consistently maintained that
"the Government is not required to be clairvoyant." See Questar Printing, Inc., supra, slip op. at
57; GraphicData, Inc., supra, slip op. at 62 (citing Womack v. United States, 182 Ct. Cl. 399, 389
F.2d 801 (1968); Contract Management, Inc., ASBCA No. 44885, 95-2 BCA � 27,886; Fa. Kammerdiener
GmbH & Co., KG, ASBCA No. 45248, 94-3 BCA � 27,197; Integrity Management International, Inc., ASBCA
Nos. 34802, 35412, 36149, 37140, 89-3 BCA � 21,996). This is especially true in this case since
the Contractor made the author's alterations requested by the PTO, and even furnished a second set
of proofs to the Government which were approved for final printing. Only after the OCR forms were
delivered did the Contracting Officer learn that the Appellant, on its own, had changed the ink
color on the reverse side of the form back to black, as called for in the original specifications.
In the Board's view, it would be unreasonable to require the Contracting Officer to anticipate such
a bizarre sequence of events. Consequently, the Board concludes that "the financial responsibility
for the Appellant's surfeit of caution in this case rests with the Appellant itself, and not with
the Respondent." See Editors Press, Inc., GPO BCA 3-90 (September 4, 1991), slip op. at 19, 1991
WL 439271. Accordingly, the Board also holds that the Contracting Officer properly denied the
Contractor's equitable adjustment claim for reprinting the OCR forms, and the appeal is denied.
ORDER
For the above reasons, the Board finds and concludes that the Contracting Officer, by forwarding
the customer-agency's transmittal sheet to the Contractor, and writing a general confirming letter,
properly changed the print specification for the back of the OCR form from black to blue ink, as
requested by the PTO; no separate follow-up memorandum addressing the color change was required.
ACCORDINGLY, the Contracting Officer's final decision denying the Appellant's equitable adjustment
claim is hereby AFFIRMED, and the appeal is DENIED.
It is so Ordered.
September 18, 1997 STUART M. FOSS
Administrative Judge
_______________
1 The Contracting Officer's appeal file was assembled pursuant to Rule 4 of the Board's Rules of
Practice and Procedure, and delivered to the Board on May 2, 1996. See GPO Instruction 110.12,
Subject: Board of Contract Appeals Rules of Practice and Procedure, dated September 17, 1984, Rule
4(a) (Board Rules). It will be referred to hereafter as R4 File, with an appropriate tab number
also indicated. The R4 File contains eleven (25) documents, identified as Tabs 1-25. See Summary
Report of Presubmission Telephone Conference, dated August 11, 1997, at 2, n. 1 (SRPTC).
2 See Printing Procurement Regulation, GPO Publication 305.3 (Rev. 10-90), Chap. VII, Sec. 4, ��
1-4 (hereinafter PPR). Among other things, the Respondent's small purchase procedures require that
"three or more quotations" be solicited to ensure adequate competition. Id., at � 2.b(5). In this
case, GPO secured quotes from six printing firms, including the Contractor (R4 File, Tab 2).
3 Indeed, on the face of the Purchase Order beneath the Appellant's name and address, this
statement appears: "GPO Contract Terms (GPO Pub. 310.2), in effect on date of this order, applies."
4 Although not spelled out in the memorandum, Ms. Witt's job title is "capable of accurate and
ready determination by resort to sources whose accuracy cannot be questioned," in this case GPO
Telephone Directory, GPO Pub. 865.2 (July 1997), and thus judicial notice by the Board is
appropriate. FED. R. EVID. 201(b)(2). See Braceland Brothers Inc., GPO BCA 01-93 (August 8,
1997), slip op. at 9, n. 9, 1997 WL_____; Questar Printing, Inc., GPO BCA 19-94 (June 12, 1997),
slip op. at 20, n. 33, 1997 WL_____ ; Graphics Image, Inc., GPO BCA 13-92 (August 31, 1992), slip
op. at 15-16, n. 17, 1992 WL 487875. Accord Powerline Oil Co., EBCA Nos. 278, 280-83, 290, 296,
300-05, 307, 321, 91-2 BCA � 23,789, at 119,146 (citing American Indians Residing on Maricopa-Ak
Chin Reservation v. United States, 667 F.2d 980, 999 (Ct. Cl. 1981), cert. denied, 456 U.S. 989
(1982)).
5 By letter dated November 22, 1995, the Appellant requested two equitable adjustments: (a) for the
cost of producing new copy and preproduction samples due to the author's alterations in the amount
of $2,012.00; and (b) because it thought that the "contractor's errors" on the second set of
samples should have been "author's alterations," in the amount of $82.50 for making the changes.
R4 File, Tab 12. The record indicates that at the time this appeal was filed, the Contracting
Officer and the Appellant were engaged in an exchange of correspondence regarding these requested
adjustments. R4 File, Tabs 21, 22, 23, 24, and 25. In any event, that matter is unrelated to the
issues in this appeal.
6 At the prehearing conference held on July 22, 1997, the parties waived discovery and briefs. See
SRPTC, at 5. The parties' positions are set forth here as stated at the conference. Id., at 4-5.
7 With respect to the "Contractual Responsibility" clause, it is well-settled before this Board
that its clear purpose is to implement so much of GPO's printing procurement regulation which says
the only person authorized to enter into, administer and terminate contracts, and to make related
determinations and findings is the Contracting Officer. See PPR, Chap. I, Sec. 2 (Definition of
"Contracting Officer"), Sec. 3, � 2(d) (Procurement Authority-Contracting Officers). See also
Swanson Printing Co., GPO BCA 27-94 and 27A-94 (November 18, 1996), slip op. at 33, 1996 GPOBCA
LEXIS 38; B & B Reproductions, GPO BCA 9-89 (June 30, 1995), slip op. at 37-39, 1995 WL 488447; RD
Printing Associates, Inc., GPO BCA 2-92 (December 16, 1992), slip op. at 10, fn. 11, 1992 WL
516088. This means that customer-agencies, such as the PTO, are not parties to GPO contracts;
i.e., a contractual relationship exists only between the Respondent and its contractors. See
GraphicData, Inc., GPO BCA 35-94 (June 14, 1996), slip op. at 60, 1996 GPOBCA LEXIS 28.
8 GraphicData, Inc. involved an equitable adjustment claim under a single-award "requirements"
contract for the printing of patents. As awarded, the contract was divided into two production
periods, the first period in which patents were to be produced on paper or microfilm, and the
second where CD-ROMs would be substituted for printed patents. Under this plan, the PTO's need for
printed patents would be substantially reduced in the second production period, and the contract
estimates reflected that fact. Furthermore, the invitation for bids had expressly warned potential
contractors that as customers switched to CD-ROM patents the contract's estimated quantities might
be "significantly reduced even further." The contractor relied on the Government's estimates of
reduced work in the second production period in bidding the job. However, after award the PTO
canceled its CD-ROM plan, and required all patents to be printed on paper or microfilm for the
entire contract term. This unexpected additional work resulted in a financial loss to the
contractor when priced at the contract rates, and it asked for an equitable adjustment and a
repricing of the agreement. GPO denied the claim on the ground that the contract's "Determination
of Award" figures were estimates only, and GPO's standard "requirements" clause expressly states
that "if the Government's requirements for the items set forth herein do not result in orders in
the amounts or quantities described as 'estimated', it shall not constitute the basis for an
equitable price adjustment." Appealing to the Board solely on the issue of entitlement, the
contractor advanced three theories in support of its claim: (a) the Government's estimates were
negligently prepared; (b) the parties had made a mutual mistake; and (c) the customer-agency's
cancellation of its CD-ROM program amounted to a "constructive change" in the contract. Although
the Board rejected the "negligent estimates" and "mutual mistake" arguments, it agreed with the
contractor that there had been a "constructive change," i.e., a complete restructuring of the
contract, and ruled that the contractor, therefore, was entitled to an equitable adjustment. See
GraphicData, Inc., supra, slip op. at 95-110.
9 A "change order" is one of two procedural devices provided in the procurement rules for making
changes in an existing contract. The other is called a "supplemental agreement." See PPR, Chap.
XII, Sec. 2, � 1(c)(1) (Contract Modifications). A "change order" is used if the modified work is
authorized by the "Changes" clause or other contract provision, is within the scope of the
contract, and may be issued unilaterally by the Contracting Officer; i.e., the contractor's
signature is not required. Id., � 1(c)(2). On the other hand, a "supplemental agreement" is
required when the proposed modifications affect substantial/material aspects of the contract not
covered in the original contract (e.g., increases in the ordered quantity, additional contract
provisions, extension of the contract period, etc.), and can only be consummated if both the
Contracting Officer and the contractor sign it; i.e., it is a bilateral agreement. Id., �� 1(c)
(1), 5(b). GPO's "Contract Modification" form (GPO Form 913) contains two checkboxes to indicate
whether the change is being made pursuant to a "change order" or a "supplemental agreement," and
the Contracting Officer is instructed to mark the appropriate one. Id., �� 2(b), (e). For and
example of a situation in which a "supplemental agreement" would be appropriate, see Swanson
Printing Co., supra, slip op. at 37-43.
10 See PPR, Chap. XII, Sec. 2, � 2(a), which provides "CRB concurrence. All proposed modifications
involving an increase or decrease in excess of 25 percent of the contract or print order price (if
the increase/decrease exceeds $5000), or any modification increasing or decreasing the contract or
print order price by $10,000 or more must be submitted to the central office CRB [Contract Review
Board]."
11 The Board was created by the Public Printer in 1984. See 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. Queens Lithographing Corp. is such an ad
hoc panel case. The Board cites the decisions of these ad hoc boards as GPOCAB. While the Board
is not bound by ad hoc panel rulings, its policy is to follow them where applicable and
appropriate. See e.g. Custom Printing Co., GPO BCA 28-94 (March 12, 1997), slip op. at 24, n. 38,
1997 WL _____; Big Red Enterprises, GPO BCA 07-93 (August 30, 1996), slip op. at 22, n. 22, 1996
GPOBCA LEXIS 26; The George Marr Co., GPO BCA 31-94 (April 23, 1996), slip op. at 50, n. 40, 1996
WL 273662; New South Press & Assoc., Inc., GPO BCA 14-92 (January 31, 1996), slip op. at 32, n. 45,
1996 WL 112555; Stephenson, Inc., GPO BCA 2-88 (December 20, 1991), slip op. at 18, n. 20, 1991 WL
439274; Chavis and Chavis Printing, GPO BCA 20-90 (February 6, 1991), slip op. at 9, n. 9, 1991 WL
439270.
12 At the hearing which was held in this case, the contractor admitted that while author's
alterations were generally made on the proof, it was not unusual to find them on an overlay. See
Queens Lithographing Corp., supra, slip op. at 4, � 7.
13 Although the ad hoc panel split 2-1 in favor of denying the appeal, the dissent was based on a
disagreement with certain evidentiary rulings which were unrelated to the core issue. See Queens
Lithographing Corp., supra, slip op. at 1-12 (Dissenting Opinion).
14 The predecessor contract clause to GPO Contract Terms, Contract Clauses, � 1.