BOARD OF CONTRACT APPEALS
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON, DC 20401
In the Matter of )
)
the Appeal of )
)
KPT, INC. ) Docket No. GPOBCA 14-97
Program D632-S )
Purchase Order 95847 )
For the Appellant: KPT, Inc., Dallas, Texas, by Anthony W.
Hawks, Esq.
For the Government: Roy E. Potter, Esq., Assistant General
Counsel, U.S. Government Printing Office.
Before BERGER, Ad Hoc Chairman.
DECISION AND ORDER ON APPELLANT'S MOTION TO
CONDUCT DISCOVERY AND FILE SUPPLEMENTAL BRIEF
On September 24, 1997, the Board docketed Appellant KPT, Inc.'s
appeal from Government Printing Office (GPO) Contracting Officer
Jack Scott's decision denying the Appellant's request for an
equitable adjustment under its requirements contract (Program
D632-S, Purchase Order 95847) to cover certain expenses incurred
as a result of the Government's ordering substantially less than
the contract's estimated quantities.
At a prehearing conference held on July 1, 1998, the Appellant,
pro se, waived its right to a hearing. The Board then
established a July 27 due date for the submission of briefs. The
Appellant filed a letter on that date setting forth its position,
and counsel for GPO filed a brief. On August 13, the Board
received a letter and motion from Anthony W. Hawks, Esquire,
seeking leave to enter an appearance on behalf of the Appellant,
to conduct discovery, and to submit a supplemental brief. Mr.
Hawks explained that the Appellant, upon reviewing GPO's brief,
had decided to seek legal representation; he requested discovery
so that he could "verify or challenge" certain statements made in
the GPO brief. These statements included GPO's explanation for
the ordering of quantities below the contract estimates and its
assertions that there is no evidence of negligently-prepared or
flawed estimates or of Government bad faith and that this is not
a case where the Government diverted work to another contractor.
Counsel for GPO opposes the motion, arguing primarily that GPO
would be harmed and the Appellant given an unfair advantage if
GPO's brief is allowed to become the basis for discovery because
the Appellant now knows GPO's "thought process and arguments."
GPO counsel further states that there will be "no clear end" to
matters before the Board if parties who agree to a briefing
schedule are allowed to start "additional proceedings" after
reviewing the other party's brief.
Discovery is a pre-trial procedure designed to promote full
disclosure of relevant facts with the ultimate objective of
achieving a just and speedy resolution of the matter in dispute.
Gulf & Western Indus., Inc., ASBCA 21090, 78-1 BCA � 12,988. To
this end, discovery procedures "are to be broadly and liberally
construed to effect their "purpose of adequately informing the
litigants." Automated Datatron, Inc., GPOBCA 25-87 & 26-87
(April 12, 1989), slip op. at 14, 1989 WL 384974. Discovery,
however, is a pre-trial procedure, used to (1) narrow the issues
to be tried, (2) enable the parties to prepare for trial by (a)
securing information as to the existence of evidence that may be
used at the trial and (b) obtaining evidence to use at the trial,
and (3) eliminate concealment and surprise at the trial. Gulf &
Western Indus., Inc., supra; see Federal Rules of Civil Procedure
26 et seq. The Board's discovery rules, Rules 14 and 15 of the
Board's Rules of Practice and Procedure, GPO Pub. 110.12
(September 17, 1984), envision discovery as a pre-hearing
process, and the Board, when asked to do so, has willingly agreed
to additional discovery when the case was in the pre-hearing
stage. See Vanier Graphics, Inc., GPOBCA 12-92 (May 17, 1994),
slip op. at 55-56, 1994 WL 275102. Here, no hearing has been
requested and in fact the Appellant has waived its right to a
hearing. Counsel cannot obtain discovery under these
circumstances--discovery is not intended as a technique for
impeaching or verifying statements contained in briefs that are
filed after a hearing or after a decision has been made to rely
on the facts of record without benefit of a hearing.
In addition, the Board has a duty to manage its docket so that
cases can proceed expeditiously. See Metadure Corp. v. United
States, 6 Cl. Ct. 61 (1984); Johnson & Son Erector Co., ASBCA
23689, 86-2 BCA � 18,931. While the Board traditionally has been
amenable to granting motions for enlargement of time for various
filings upon a showing of good cause or if there is no objection,
see Vanier Graphics, Inc., supra, at 2 n.4, it is not inclined to
allow resort to a procedure that is intended to be used at an
earlier stage of the case and for a purpose that is no longer a
relevant consideration. Nonetheless, the Board is concerned
that the record is not complete. In cases where a contractor
seeks relief because of a disparity between the estimated
quantities of a requirements contract and the quantities actually
ordered, the Government, while having "the ultimate burden of
proving that its estimates are reasonable, ... has no obligation
to present evidence of reasonableness in the absence of
allegations that the Government ... failed to exercise due care"
in the preparation of the estimates." McDonald & Eudy Printers,
Inc., GPOBCA 40-92 (January 31, 1994), slip op. at 19, 1994 WL
275096. The Appellant here, initially not represented by
counsel, has never explicitly alleged negligence or the lack of
due care in the preparation of the estimates. It has, however,
challenged the reasonableness of the estimates. In the
Appellant's July 14, 1997 letter to the Contracting Officer,
which accompanied the letter of appeal and which also appears in
the Rule 4 File at Tab K, the Appellant queried whether there was
"any responsibility on the part of [the Government] to be
reasonable on their estimates," pointing out that if not the
Government could obtain for itself lower unit costs based on an
inflated quantity expectation. This same letter concluded that
there was a quantity "exaggeration of 84.6%," which "cannot be
considered reasonable," and that it would be unfair to hold the
Appellant responsible for the "unreasonable estimated
quantities." Although it is not clear whether the Appellant
considers the estimates to be unreasonable simply because they
differed substantially from what was actually ordered or because
the Government acted unreasonably in formulating the estimates,
the Appellant arguably has raised the question of whether the
estimates were prepared with due care. The record contains a
declaration from a GPO contracting officer that includes an
explanation for the "unanticipated decrease" in required
quantities, but is silent with respect to the basis for the
estimated quantities themselves. That being so, the Board,
preferring not to have to decide this case in a factual vacuum,
will not close the record at this time, but instead will hold the
record open for a short but reasonable period to allow GPO to
submit evidence on this point and to allow the parties to submit
briefs on the matter.
Accordingly, the record will remain open until October 7, 1998,
for the submission of any additional evidence GPO chooses to
submit, and until October 30, 1998, for the submission of briefs.
The appearance of counsel will be noted; the motion for discovery
is denied.
It is so Ordered.
September 16, 1998 Ronald Berger
Ad Hoc Chairman
Board of Contract Appeals