U.S. GOVERNMENT PRINTING OFFICE
BOARD OF CONTRACT APPEALS
STUART M. FOSS, Administrative Law Judge
Appeal of R.C. SWANSON PRINTING AND TYPESETTING COMPANY
Docket No. GPO BCA 15-90
Jacket No. 241-699, Purchase Order 70992, Program D404-M
March 6, 1992
DECISION AND ORDER
This appeal, timely filed by R.C. Swanson Printing and
Typesetting Company, 5205 York Road, Baltimore, Maryland 21212
(hereinafter Appellant), is from the final decision, dated April
10, 1990, of Contracting Officer, Ms. Katherine M. Phillips
(hereinafter Contracting Officer), of the U.S. Government
Printing Office, North Capitol and H Streets, NW., Washington, DC
20401 (hereinafter Respondent or GPO), denying the Appellant's
claim for termination costs of $245,796.75 (with the exception of
$283.64 allowed for the preparation of the Appellant's settlement
proposal) with respect to the Respondent's termination of the
Appellant's contract identified as Purchase Order 70992, Program
D404-M, Jacket No. 241-699, for the convenience of the Government
(R4 File, Tab U). 1/ The Appellant's claim has two aspects: (1)
an appeal from the Contracting Officer's denial of nearly all of
its termination costs; and (2) a claim for money damages for
breach of contract. 2/ For the following reasons, the
Appellant's breach of contract claim is hereby DISMISSED for lack
of jurisdiction. However, the Appellant's appeal from the
Contracting Officer's denial of its claim for termination costs
is a justiciable controversy. 3/
BACKGROUND
The relevant facts in this appeal are not in dispute and are set
forth here only to the extent necessary for the Board's decision.
On October 28, 1988, the Respondent issued an Invitation
for Bids (IFB) for Program D404-M, soliciting bids from potential
contractors for the production of legal briefs for the Department
of Justice (DOJ) (R4 File, Tab A, p. 1). Program D404-M was a
multiple award term contract, for the period beginning December
1, 1988, and ending November 30, 1988 (R4 File, Tab A, p. 1).
Apart from the specifications contained in the IFB, Program D404-
M was also governed by applicable articles of GPO Contract Terms,
GPO Publication 310-2, effective December 1, 1987, and GPO's
Quality Assurance Through Attributes Program, GPO Publication
310.1, Revised September 1986 (QATAP), which were incorporated by
reference (R4 File), Tab A, p. 2). 4/
The work covered by Program D404-M was " . . . the production of
legal publications requiring such operations as composition,
film-making, printing, binding, packing, and delivering" (R4
File, Tab A, p. 5). 5/ The following IFB provisions are
particularly pertinent to this appeal:
ASSIGNMENT OF JACKETS, PURCHASE AND PRINT ORDERS: A GPO purchase
order will be issued to the contractor to cover work performed.
The purchase order will be supplemented by an individual Print
Order and various jacket numbers for each job placed with the
contractor. The print order, when issued, will indicate the
quantity to be produced and any other information pertinent to
the particular order (R4 File, Tab A, p. 2).
* * * * * * * * * *
ORDERING: Items to be furnished under the contract shall be
ordered by the issuance of print orders by the Government.
Orders may be issued under the contract from December 1, 1988
through November 30, 1989. All print orders issued hereunder are
subject to the terms and conditions of the contract. The
contract shall control in the event of conflict with any print
order. When mailed, a print order shall be "issued" for the
purposes of the contract at the time the Government deposits the
order in the mail (R4 File, Tab A, p. 3).
* * * * * * * * * *
QUANTITIES: This contract IS for the items and for the period
specified herein. Shipment/delivery of items or performance of
work shall be made only as authorized by orders issued in
accordance with the clause entitled "Ordering." The quantities
of items specified herein are estimates only, and are not
purchased hereby. Except as may be otherwise provided in this
contract, 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 under this contract (R4 File, Tab
A, p. 3). [Emphasis added.]
Except as otherwise provided in this contract, the Government
shall order from the contractor(s) all the items set forth which
are required to be
purchased by the Government activity identified on page 1 (R4
File, Tab A, p. 3).
The Government shall not be required to purchase from the
contractor(s), requirements in excess of the limit on total
orders under this contract, if any (R4 File, Tab A, p. 3).
* * * * * * * * * *
Subject to any limitations elsewhere in this contract, and
pursuant to the section entitled "DETERMINATION OF AWARD AND
PLACEMENT OF WORK," the low contractor and each successive low
contractor shall furnish to the Government all items set forth
herein which are called for by print orders issued in accordance
with the "Ordering" clause of this contract, except when the
shipping/delivery schedule cannot be met (R4 File, Tab A, p. 4).
* * * * * * * * * *
FREQUENCY OF ORDERS: Approximately 65 orders per month (R4 File,
Tab A, p. 5).
QUANTITY: Approximately 50 to 1,000 copies per order. (Most
orders will be for 400 copies or less.) (R4 File, Tab A, p. 5).
NUMBER OF PAGES: 4 to 400 pages per order. (Most order[s] will
be for 64 page[s] or less, however an occasional order may have
up to 1,200 pages.) (R4 File, Tab A, p. 5).
* * * * * * * * * *
GOVERNMENT TO FURNISH: Unprepared typewritten manuscript and
printed pages will be furnished as manuscript for composition (R4
File, Tab A, p. 5).
* * * * * * * * * *
DETERMINATION OF AWARD AND PLACEMENT OF WORK
The Government will make multiple awards under this solicitation
since it is anticipated that one firm may not be able to meet all
of the requirements (R4 File, Tab A, p. 11).
In order to make multiple awards and to determine the sequence of
bidders, the Government will apply the prices quoted by each
bidder in the "Schedule of Prices" to the following units of
production which are the estimated requirements to produce one
year's under this contract. These units do not constitute, nor
are they construed as a guarantee of the volume of work which may
be ordered for a like period of time (R4 File, Tab A, p. 11).
[Emphasis added.]
In placing work, the Government will first communicate with the
low contractor to determine whether or not at that time one or
more orders for specified quantities can be accepted for shipment
within the time required by the Government. The Government will
be obligated to offer each job to the low contractor first, the
next low contractor second, and so on until the job has been
accepted. The offer shall be made only to those contractors who
prices are determined to be fair and reasonable. The low
contractor and each successive next low contractor shall be
obligated to accept the job except when the shipping schedule
cannot be met. Contractors refusing to accept orders offered
with the requested ship date shall be required to provide the
best date that can be met. When the contractor accepts, a formal
print order will be issued (R4 File, Tab A, p. 11).
Due to the urgency of work offered, all offers will be made by
telephone and the contractor must reply within 30 minutes whether
or not the offer can be accepted (R4 File, Tab A, p. 11).
Any contractor's position in the sequence of awards may be
jeopardized by consistently refusing work of one type and
accepting work of another. When such an instance is found, the
contractor involved will be notified and unless prompt adjustment
in order acceptance is made to maintain the lowest cost to the
Government, the contractor may be disqualified from further
participation under this contract (R4 File, Tab A, p. 11).
Notwithstanding any sequence of contractors established as a
result of the Determination of Award, the Government reserves the
right, without limitation,
to establish a specific sequence of contractors for any or all
print orders to be issued under this contract by abstracting the
contract prices of each contractor against actual print orders to
be issued, and adding any applicable costs to the Government, for
transportation of the finished product to all destinations. In
the event such a specific sequence is established, such specific
sequence of contractors shall control the order in which the
print order(s) is [are] offered. The determination to establish
a specific sequence or sequences shall not be cause for an
adjustment in the contract price or any other term or condition
of the contract (R4 File, Tab A, p. 11). 6/
The record discloses that five potential contractors, including
the Appellant, responded to the IFB (R4 File, Tabs B and C).
Although the abstract of bids indicates that the Appellant's
discounted bid was $532,741.69, Purchase Order 70992, which was
issued to it by the Respondent on December 1, 1988, shows a
contract "cost" of $504,702.66 (R4 File, Tabs C and D). 7/ Two
other contractors -- Charles P. Young Company and Wilson-Epes --
also participated in the Program D404-M contract (R4 File, Tab
E).
The controversy between the parties arose when the DOJ, four
months into the contract, apparently decided that in addition to
forwarding manuscript copy for typesetting, it also needed to be
able to send data electronically. This could not be accomplished
under the existing D404-M contract. As explained, in pertinent
part, by the Contracting Officer in her letter to GPO's Contract
Review Board (CRB) seeking its concurrence to terminate the
Program D404-M contract for the convenience of the Government and
to readvertise it with revised specifications.:
On February 7, 1989, a solicitation was issued for Program D283-
M, which is also a requirement for court briefs, but with
material to be furnished through teletransmission of already
keyed data. Bids were opened on February 28, 1989, but that IFB
was canceled before award because of a determination that there
was less than full and open competition caused by the
Government's failure to include on the bid list contractors
currently performing on Program D404-M. . . .
After cancellation of Program D283-M had occurred, it was
determined in a meeting with the [DOJ] that the estimate of
quantities in the current Program D404-M represented the entire
requirement for court briefs as determined by orders placed
during the previous contract year. The orders estimated for
Program D238-M[,] had it been awarded, would have had the effect
of decreasing the number of orders actually placed on Program
D404-M. It was therefore determined that the [DOJ's]
requirements can best be obtained by cancellation of the current
contract and readvertisement of a new Program D404-M, with
multiple awards to be made in two separate categories: The first
for material furnished as manuscript, and
the second for material furnished through teletransmission. . . .
(R4 File, Tab E). 8/
The record discloses that by April 12, 1989, all members of the
CRB had given their approval for the proposed termination action
(R4 File, Tab E). 9/
The record reveals that the Respondent telephoned the
Appellant on May 19, 1989, and informed it that the Program
D404-M contract was being terminated for the convenience of
the Government (R4 File, Tab F). 10/ The record also
discloses that the Respondent sought the Appellant's agreement
to terminate the contract
without additional cost (R4 File, Tab F). 11/ On September 6,
1989, the Respondent sent the following contract modification
(Contract Modification No. 1) to the Appellant for its
concurrence and signature:
You are notified that your Purchase Order 70992, Jacket Number
241-699, is hereby terminated for the convenience of the
Government, in accordance with the article entitled "Termination
for Convenience of the Government" of the U.S. Government
Printing Office Contract Terms.
As agreed, since no additional costs have been incurred other
than work already performed under previous print orders there
shall be no costs associated with this termination.
This supplemental agreement constitutes full and complete
settlement of the amount due the contractor by
reason of the complete termination of work under this contract
and of all other claims and liabilities of the contractor and the
GPO under this contract (R4 File, Tab H). [Emphasis added.]
The Appellant, however, did not agree to cancellation of the
contract without additional cost, as GPO requested, but instead,
by letter dated September 9, 1989, it filed a claim for $237,000
with the Contracting Officer (R4 File, Tab I). As stated in its
letter, the basis of the Appellant's claim was, in pertinent
part:
Purchase Order 70992 was issued, effective December 1, 1988
through November 30, 1989. It was issued to cover work performed
under Program [D]404-[M]. Swanson was the low bidder with a bid
of $560,780.73 . . . As of September 6, 1989, when the contract
was terminated, Swanson had been paid, or was still owed,
$288,261.48. This means the contract still had an estimated
$272,519.25 of work to expect under the contract.
Swanson had been the [No.]1 contractor since September 1, 1984
and had every reason to believe and expect the [G]overnment to
procure the total amount as they had the prior years. September,
October and November have traditionally been the busiest months.
Swanson acquired certain capital equipment in 1984 and 1985
specifically gearing its facilities for this legal brief work.
These capital expenditures were tied to Swanson's plans to keep
the [D]404-[M] program to cover these costs. There are still
amounts left owing on these capital acquisitions which would have
been paid off if the [GPO] had not terminated the contract.
These capital purchases have a balance of approximately
$70,500.00 which would have been paid up with proceeds from the
remaining $272,519.25 of Purchase
Order 70992.
Furthermore, the loss of this contract suddenly with no
adjustment period does not allow Swanson adequate time to replace
such a substantial portion of its sales. Swanson's gross sales
during the 9 months that Purchase Order 70992 was in effect were
$418,479.33. Purchase Order 70992 represented 69% of gross sales
for that 9 month period. Swanson's very existence is threatened
by this ungrounded termination.
. . . [T]he bill [for a typical job under the contract] would be
$842.16, Swanson's direct costs [would be] $109.17. This would
have yielded a gross profit of $732.99 to go towards capital
costs and overhead. 87.04% represented gross profit. Swanson
expected to receive on the remaining $272,519.25 of Purchase
Order 70092[,] 87.04%, or $237,200.76 to go to overhead and
capital debt elimination as well as profit.
Swanson hereby makes a claim for $237,200.76 on the Government's
Termination for convenience of Purchase Order 70992 plus any
future costs incurred in relation to this claim (R4 File, Tab I).
[Emphasis added.]
On September 26, 1989, the Respondent issued a formal "Notice of
Termination" (Notice) to the Appellant, indicating that the
effective date of the termination for convenience was September
6, 1989 (R4 File, Tab J). In accordance with the TCG clause in
the contract, the Appellant was instructed to: (1) accept no new
print orders and subcontract no further orders, except to the
extent necessary to complete the work placed prior to September
6, 1989; (2) immediately inform its subcontractors and suppliers
of the termination and direct them to promptly submit their
settlement proposals; (3) notify the Contracting Officer of any
pending legal proceedings relating to any subcontractors or
purchase orders;
(4) advise the Respondent of the number of completed articles
still on hand, and arrange for their delivery and/or disposal
with the Contracting Officer; (5) take a termination inventory;
and (6) if necessary, submit a settlement proposal on GPO Form
911 (which was enclosed) (R4 File, Tab J). By letter dated
October 2, 1989, the Appellant responded to the Notice by sending
the Contracting Officer a properly filled out GPO Form 911 with a
claim in the amount of $245,796.75 (R4 File, Tab K). Both in its
cover letter and on the enclosed completed GPO Form 911, the
Appellant placed at statement that submission of the claim did
not preclude it from pursuing a breach of contract action against
GPO (R4 File, Tab K). 12/
The Contracting Officer acknowledged receipt of the Appellant's
settlement proposal on October 10, 1989 (R4 File, Tab L). Ten
days later, on October 20, 1989, the Contracting Officer drafted
a memorandum to GPO's Office of the Inspector General (OIG)
requesting an audit of the Appellant's termination claim (R4
File, Tab M). That request was sent to the OIG on October 23,
1989, with the endorsement of GPO's Office of the General Counsel
(OGC)
because it appeared to the OGC that the Appellant had "a
colorable claim of entitlement in some respects to an equitable
adjustment in connection with the termination for convenience of
Program D404-M, Purchase Order 70992" (R4 File, Tab N). While
the matter was pending before the OIG, the Appellant sent a
letter to the Respondent, dated November 2, 1989, in which it
referred to its claim as one for "damages" for "a possible breach
of contract," and urged a prompt response from the Contracting
Officer either by authorizing "payment for the damages I have
suffered," or by issuing a negative final decision "so that I may
proceed" (R4 File, Tab O). 13/
The record discloses that on January 22, 1990, one of the
Appellant's managers, Larry Ford, telephoned the Contracting
Officer and asked about the status of "his firm's claim for
termination costs on Program D404-M," and was informed that the
matter was still with the OIG (R4 File, Tab P). On February 27,
1990, the OIG issued its audit report on the Appellant's
termination settlement claim (R4 File, Tab Q). 14/ Of the
Appellant's claim of $245,796.75, the audit report questioned
$244,265.86, leaving a balance of $1,530.89 (R4 File, Tab Q,
Attachment III, p. 1). 15/ Therefore, on March 23, 1990, the
Contracting Officer wrote to the Appellant offering to settle its
claim for $283.64 (representing the cost of preparing the
settlement proposal), with the possibility that some additional
compensation could be allowed with further documentation (R4
File, Tab S). 16/
By letter dated March 29, 1990, the Appellant wrote to the
Contracting Officer rejecting the settlement offer, and stating
in pertinent part:
I am in receipt of your "offer" of settlement on our claim for
Program [D]404-M. It is obvious that your offer
is not a good faith attempt to arrive at a fair and equitable
settlement. As you know, our claim is an attempt to avert a
court battle over a breach of contract by the [GPO] and grievous
misconduct by [GPO] officials including yourself.
So not to belabor the issue[,] suffice it to say that I find your
response totally unacceptable. If you wish to conduct a good-
faith negotiation I will wait two weeks until [Friday] April 13,
1990 to file my breach of contract suit in the Claims Court (R4
File, Tab T).
The record reveals that on April 10, 1990, the Contracting
Officer issued a final decision on the Appellant's termination
settlement proposal, confirming her letter of March 23, 1990, and
rejecting all but $283.53 of the Contractor's claim (R4 File, Tab
U). In that regard, the Contracting Officer wrote, in pertinent
part:
In your letter [of March 29, 1990], you fail to address any
specific points from my March 23, 1990 letter to you or to
provide any additional information in support of your claim which
would provide a basis for further discussion.
Therefore I have concluded that, of the $245,796.75 claim in your
October 2, 1989 settlement proposal, all claimed costs are denied
with the exception of $283.64 representing the costs of preparing
your settlement proposal. This decision is made based on the
reasons as stated in my March 23, 1990 letter (R4 File, Tab U).
17/
The Appellant responded with this appeal the Board (R4 File, Tab
V).
ISSUES PRESENTED
1. Breach of Contract
As indicated at the outset, the case presented by the Appellant
has two aspects: (1) an appeal from the Contracting Officer's
denial of nearly all of its proposed settlement costs; and (2) a
claim for money damages for breach of contract. At the
prehearing conference held on December 12, 1990, the Board
observed that the "pure" breach of contract issue raised by the
Appellant in this appeal was a matter of first impression which
was also being litigated in another pending case -- The Wessel
Company (Wessel), GPO BCA 8-90. See, PCR, p. 18, fn. 1. Because
that issue is a strictly a legal question concerning the Board's
jurisdiction, its resolution is absolutely necessary before the
case can proceed. Id. Accordingly, by Order, dated August 22,
1991, the Board announced that it would hold the Appellant's
breach of contract claim in abeyance, pending its decision in
Wessel on the same issue. 18/ See, Order Closing the Record and
Filing of Briefs, dated August 22, 1991, p. 2. Therefore, the
first issue is:
Does the GPO Board of Contract Appeals have jurisdiction over
breach of contract claims?
2. Denial of Proposed Settlement Costs
The second prong of the Appellant's appeal is clearly
justiciable. However, as the Board reads the Appellant's claim,
it is basically raising two issues:
Was the decision to terminate the Program D404-M contract for the
convenience of the Government made in good faith?
Was the Contracting Officer's decision denying nearly all of the
Appellant's claim for settlement costs correct, and if not, what
should be the appropriate termination costs?
POSITIONS OF THE PARTIES 19/
Breach of contract issue: The essence of the Appellant's argument
in favor of breach of contract jurisdiction in this Board is
expressed in three paragraphs of the amicus statement it
submitted in the Wessel case:
2. My understanding of the law establishing administrative law
judges (hereinafter "ALJ") made them the 'trier of fact' in
contract disputes. In this role you would certainly have
jurisdiction to examine the facts of the case and determine
whether a breach had occurred or not.
3. ALJ's have the right to award compensation to the injured
parties and as such could award a dollar amount to make whole,
damages done.
4. ALJ's, even if statutorialy [sic] not given jurisdiction,
could obtain such jurisdiction by the mutual consent of the
parties involved. I have agreed to have case heard before you
and I am surprised that the agency disputes their own [Board]
from having jurisdiction to review their actions. 20/
There is no doubt but that the Appellant is seeking "damages" as
a remedy for the alleged breach of contract. PCR, p. 12.
The Respondent, on the other hand, consistent with its position
in the Wessel case, believes that the Board lacks jurisdiction to
consider breach of contract claims because it derives its
authority solely from the "Disputes" clause of the contract.
PCR, pp. 2-3, 12.
Denial of settlement costs: The Appellant's position with respect
to the settlement costs issue, encompasses both a challenge to
the Respondent's decision to terminate the contract and to the
Contracting Officer's disposition of the claim submitted on GPO
Form 911. In that regard, the Appellant argued that the contract
was terminated not because DOJ had no requirements, but because
GPO acted unilaterally to cancel the contract in mid-stream, thus
depriving the Appellant of the full quantities of orders
estimated in the contract specifications. PCR, p. 8.
Similarly, from its review of the Contracting Officer's
memorandum to the CRB (R4 File, Tab E), the Appellant contended
that it was ambiguous as to the real reasons Program D404-M was
canceled. PCR, p. 9. Thus, while it was told that Program D404-
M was terminated because DOJ wanted to be able to transmit data
electronically as well as by manuscript, in fact nearly two
months passed before teletransmissions were made under the
revised contract, and then only at the urging of GPO. Id. In
effect, the Appellant contends that no justification or urgency
existed which would warrant terminating Program D404-M for the
convenience of the Government. Id.
With respect to the Contracting Officer's disposition of its
monetary claim, the Appellant argued that the Contracting
Officer's settlement offer was not made in good faith and hence
was not acceptable. PCR, p. 10. However, the Appellant also
believes that its claim is fully justified and it should be
allowed reasonable costs associated with the termination of the
contract. 21/
The Respondent believes that the real issue before the Board, on
which it has unquestionable jurisdiction under the "Disputes"
clause, is to consider the adequacy of the termination costs as
determined by the Contracting Officer. PCR, p. 10. As for the
Appellant's challenge of its right to terminate the contract for
the convenience of Government, the Respondent contends that it is
not an issue before the Board. Id.
The Respondent argues that the Contracting Officer's denial of
nearly all of the proposed settlement offer was correct because
the Appellant was not entitled to the termination costs as
claimed. PCR, p. 6. Furthermore, the Respondent rejects the
underlying assumptions of the Appellant's claim: (1) that the
contract implied a guarantee of a certain quantity of work; and
(2) that the Respondent was liable for the pro rata cost of
machinery, now rendered surplus, purchased by the Appellant in
anticipation of receiving orders for these special jobs. Id.
With regard to the first assumption, the Respondent believes that
it was not supported by the contract specifications. Id.
Similarly, the Respondent contends there is no merit in the
Appellant's claim that the Government defray the cost of now
surplus machinery because the equipment had been purchased
several years ago. Id. Moreover, the Program D404-M is awarded
on an annual basis by open competition and there is no guarantee
that the Appellant will be the
successful bidder each time. Id.
The Respondent stresses that GPO's multiple award term contracts,
such as Program D404-M, set forth the basic specifications, but
each print order constituted a separate contract. PCR, p. 6. In
this case, since the Government had already paid the Appellant
for all the work it performed, the Respondent believes that there
is no basis for any additional claim. Id. The Respondent places
particular significance in the fact that the Appellant was unable
to give support for its claim to the OIG auditors, and argues
that unless the Appellant has additional information, the Board
can render a final decision on this aspect of the appeal. Id.
DECISION 22/
1. Breach of Contract
From the outset of this appeal, the Board has recognized that the
"pure" breach of contract issue raised by the contractor in
Wessel and the Appellant, was a matter of first impression. No
other cases previously before the Board have asked it to weigh
its jurisdictional mandate against a "pure" breach of contract
claim. 23/ As indicated previously, by Order, dated August 22,
1991, the Board announced that it would hold the Appellant's
breach of contract claim in abeyance, pending its decision in
Wessel on the same issue. On February 28, 1992, the Board issued
its decision in Wessel, and ruled that it lacked the authority to
entertain "pure" breach of contract claims where redress is
sought in the form of damages. 24/ The Wessel Company, GPO BCA
8-90 (February 28, 1992), Sl. op. at 46. The Board's decision in
Wessel is dispositive of that issue in this appeal.
Wessel involved a situation where the Government failed to return
corrected proofs to the contractor with an "OK to print" within 4
workdays, as required by the contract, but instead took 18
workdays -- 14 more than allowed. Although the contract delivery
date was automatically extended in accordance with the contract's
"Extension of schedules" clause, the contractor filed a claim for
damages of $255,506.00 based on 672 hours of idle time for two
presses (at an hourly rate of $365.00, or $252,000.00) and the
carrying cost of paper in stock for those extra days ($3,506.00).
The contracting officer denied the damages claim because the
contractor failed to substantiate and provide documentary
evidence in support of an entitlement. The gravamen of the
appellant's complaint to the Board was that the GPO's 14 workday
delay in furnishing corrected proofs amounted to a breach of
contract which caused it financial harm. 25/ In a 46-page
opinion giving detailed reasons for its decision, the Board held
that breach of contract jurisdiction did not lie because: (1) it
was essentially a creature of the "Disputes" clause of the
contract, not law (the Contract Disputes Act of 1978 (CDA), 41
U.S.C. � 601 et seq., gave executive agency boards of contract
appeals breach of contract jurisdiction by statute); 26/ (2) its
jurisdiction was derivative and contractual, and hence it was
limited to the "four corners" of the agreement in deciding
disputes; (3) breach of contract was a question of law and under
the relevant statutes Board opinions on questions of law are not
final but advisory only, hence, sound policy justified the
withholding of jurisdiction; (4) Congress expressly excluded
legislative branch agencies from coverage of the CDA, and as GPO
was such an agency the Board had to be mindful of the intent of
Congress in that regard; and (5) nothing in 44 U.S.C. � 502
disclosed an intent by Congress to waive the Government's
sovereign immunity when it authorized the Public Printer to
contract out printing, binding and blank-book work.
First, with regard to the Board's view that it was a creature of
the "Disputes" clause of the contract, and not statute, the
sources of the Board's authority to act -- its "enabling statute"
-- GPO Instruction 110.10C, 27/ the regulation which implements
it -- GPO Instruction 110.12, 28/ and the "Disputes" clause,
speak for
themselves. 29/ As the Board observed in Wessel, on those
occasions when it has had to consider its regulatory foundations
in deciding appeal, it has consistently maintained that its
jurisdiction was narrowly defined. The Wessel Company, supra,
Sl. op. at 32.
Particularly instructive was its prior decision in Peake
Printers, Inc., GPO BCA 12-85 (November 12, 1986), in which the
Board denied a contractor's request for a contract modification,
stating, among other things:
The Board is not a creature of statute; thus, it has no powers
which arise under law as do courts. Instead, it derives all its
powers by virtue of the so-called disputes clause of the contract
itself. That clause, Article 2-3 of GPO Contract Terms No. 1,
gives a contractor the contractual right to appeal any dispute
with the Contracting Officer which is "related to the contract"
to the Public Printer who is in fact the Officer of the United
States authorized by statute to contract on behalf of the United
States (44 U.S.C. 502). The disputes clause in turn gives the
Public Printer the authority to delegate his appeal authority to
his designee which he has done by instruction 110.12 dated
September 17, 1984, designating this Board has his agent for that
purpose. Thus, the Board's authority is purely derivative and
contractual. As such, it is constrained by the terms of the
contract itself. Since this is the case, the Board cannot
enlarge the very agreement between the parties from which it
derives its authority merely because it deems such action to be
equitable, but will be constrained to deciding disputes within
the parameters of the contract itself. [Emphasis added.]
Sl. op. at 6. See also, The Wessel Company, supra, Sl. op. at
32-33; Bay Printing, Inc., GPO BCA 16-85 (January 30, 1987), Sl.
op. at 9. Furthermore, in Automated Datatron, Inc., GPO BCA
20-87 (March 31, 1989), the Board pointed out that:
The Public Printer has not under the provision of paragraph 5 of
GPO Instruction 110.10C delegated authority to this Board to
consider legal questions
existing outside the contract itself.
Sl. op. at 4-5.
Second, because the Board's jurisdiction is purely derivative and
contractual, and since it must decide contract appeals within the
"four corners" of the agreement itself, the historic view in GPO
with respect to the resolution of breach of contract claims has
been that the rule in Utah Mining is controlling; i.e., the
Board, which is in the position of an executive branch board of
contract appeals prior to the enactment of the CDA, will follow
the settled practice of such boards before 1978, and refuse to
consider "pure" breach of contract claims. The Wessel Company,
supra, Sl. op. at 34. See, United States v. Utah Construction
and Mining Company, supra, 384 U.S. at 406. In that regard, the
ad hoc panels of GPO's CAB, the Board's predecessor, uniformly
held that they lacked jurisdiction to award damages for alleged
breaches of contract by the Government. 30/ Thus, for example,
in Microform Data System, Inc., GPOCAB No. 3-79 (February 1,
1980), where the "Disputes" clause gave the Board jurisdiction
over ". . . any dispute concerning a question of fact arising
under this contract . . .",
the panel stated:
It is our opinion that what the Court [in Utah Mining] is saying
in this case is that unless there is specific language in the
contract to convert what would otherwise be a claims [sic] for
damages for breach of contract into claims payable under such
contract and hence to be regard as "arising under the contract,"
the [CAB] does not have authority to entertain a breach of
contract case.
There is no language in this contract that would convert a pure
breach of contract claim into one that would bring it under the
provisions of the Disputes clause. Therefore, this case comes
squarely under the rule set down in [Utah Mining], where at p.
412 it states:
Thus the settled construction of [the] disputes clause excluded
breach of contract claims from its coverage . . .
Microform Data System, Inc., Sl. op. at 10, 11-12. See also,
Harbor Printing & Copy Service, Inc., supra, Sl. op. at 1;
Information Systems, Inc., supra, Sl. op. at 5-7; Cloverleaf
Enterprises, Inc., supra, Sl. op. at 10-11. Accord, Jet
Services, Inc., DOT CAB No. 77-14, 78-2 BCA � 13,223, at 64,675;
Blake Construction Company, Inc., supra, 67-1 BCA � 6,311, at
29,197-98.
The third reason for rejecting breach of contract jurisdiction in
Wessel was that it involved a question of law and under the
relevant statutes, and Board opinions on questions of law are not
final but advisory only. The Wessel Company, supra, Sl. op. at
37-39. In that regard, the 1980 revisions to GPO Contract Terms
the key phrase in the first part of the "Disputes" clause from ".
. . any dispute concerning a question of fact arising under this
contract . . ." to ". . . any dispute concerning a question of
fact related to the contract . . .". It was this latter
language which furnished the basis for the Board's jurisdiction
when it was established in 1984, and which is contained in the
1988 version of GPO Contract Terms applicable to the Appellant's
contract. See, GPO Instruction 110.10C, 5; GPO Instruction
110.12, Preface, I. In 1988 the "Disputes" clause was amended
again so that the pertinent wording is now " . . . any dispute
concerning a question of fact arising under or related to this
contract . . .". 1988 Contract Terms, Contract Clauses, 5.(a).
31/ Notwithstanding the fact that the "Disputes" clause has
contained the phrase "related to" since 1980, a phrase which
traditionally encompasses breach of contract claims, the Board
stated in Wessel that the real question is whether GPO's
tinkering with the relevant language has resulted in any
substantive change in the powers of this Board to decide such
cases. The Wessel Company, supra, Sl. op. at 36.
As the Board observed in Wessel, the key "Disputes" clause
language which prevents it from taking jurisdiction over "pure"
breach cases is not found in the first paragraph of that clause,
but rather in the last. Id. Until 1988, paragraph (b) of the
"Disputes" clause had provided:
This Disputes clause does not preclude consideration of law
questions in connection with decisions provided for in paragraph
(a) above: Provided, that nothing in the contract shall be
construed as making final the decision of any administrative
official, representative or board on a question of law.
1980 Contract Terms, 2-3.(b). See, Microform Data System, Inc.,
supra, Sl. op. at 10. The only changes made in 1988 were
cosmetic and minor; i.e., the paragraph was renumbered and the
phrase "in the contract" after the word "nothing" was deleted,
but the language was not otherwise altered. 1988 Contract Terms,
5.(e). The concept embodied in the "Disputes" clause's last
paragraph was incorporated into the Board's "enabling
legislation" and carried forward into its rules. That is, the
Board is instructed that in dealing with issues of law, it has
discretion under the "Disputes" clause to ". . . hear, consider,
and decide all questions of law necessary for the complete
adjudication of the appeal," and if it appears that jurisdiction
is lacking, the Board may nonetheless ". . . make findings of
fact with respect to such claims without expressing an opinion on
the question of liability." GPO Instruction 110.10C, 7.b.; GPO
Instruction 110.12, Preface, V.
Whether or not the Respondent has committed a breach of contract
is a question of law. The Wessel Company, supra, Sl. op. at 37;
Microform Data System, Inc., supra, Sl. op. at 15; Cloverleaf
Enterprises, Inc., supra, Sl. op. at 11. Therefore, as the Board
understands its mandate, even if it agreed that
paragraph (a) of the "Disputes" clause -- containing the phrase
"related to" -- gave the Board jurisdiction over the Appellant's
breach of contract claim -- it would nonetheless have to deal
with the dilemma created by paragraph (e) -- that the Board's
decision would not be final and binding, but advisory only.
Stated otherwise, if these competing paragraphs of the "Disputes"
clause were to be harmonized and given a literal reading, the
Board would be allowed to make factual determinations regarding
the Appellant's breach of contract claim, but it would be
prevented from awarding a meaningful remedy. This situation was
specifically addressed by the Supreme Court in Utah Mining, where
it observed, in pertinent part:
The United States, . . . contends that even if it be accepted
that the Boards of Contract Appeals are without jurisdiction to
grant relief for breach of contract they are nevertheless
authorized by the disputes clause to make binding findings of
fact respecting all disputes.
* * * * * * * * * *
[T]he present charter of the ASBCA provides that:
"[when] in the consideration of an appeal it appears that a claim
is involved which is not cognizable under the terms of the
contract, the Board may, insofar as the evidence permits, making
findings of fact with respect to such a claim without expressing
an opinion on the question of liability." [Citation omitted.]
* * * * * * * * * *
The practice of the ASBCA has evidenced an even narrower
understanding of the charter provision authorizing findings
without expression of opinion on liability. . . . [T]he Board has
explained that:
"[generally,] as a matter of sound policy, the Board's
discretionary right to make findings of fact in instances where a
claim is not cognizable under the contract is not exercised,
simply because the Board has no way to afford the parties the
remedy which logically would flow from the facts found. The
cases wherein the Board has declined to consider an appeal
because it had no method within the confines of the contract
terms to afford a remedy have sometimes been described rather
inaptly as being beyond our jurisdiction or beyond our authority
to consider. Basically, the lack is not of authority to hear but
of authority finally to dispose administratively." [Citation
omitted.] [Emphasis added.]
United States v. Utah Construction and Mining Company, supra, 384
U.S. at 407-11. See also, Blake Construction Company, Inc.,
supra, 67-1 BCA � 6,311, at 29,197-98. Since this was the exact
problem faced by the Board with respect to the breach of contract
claim in Wessel, it was also persuaded that "sound policy"
justified a decision not to exercise jurisdiction because it
would be unable to dispose of the question with finality. The
Wessel Company, supra, Sl. op. at 39.
Fourth, the Board rejected the appellant's argument in Wessel
that it had breach of contract jurisdiction, because Congress
expressly excluded legislative branch agencies from coverage of
the CDA, and as GPO was such an agency the Board had to be
mindful of
the intent of Congress in that regard. Id., Sl. op. at 39-41. In
that respect, the appellant contended that the enactment of the
CDA, and GPO's subsequent revision of the "Disputes" clause to
conform to that law, enlarged the Board's jurisdiction and gave
it authority over breach of contract claims by consent of the
parties. The Board, however, found that argument to be without
substance. The contractor in Microform Data System, Inc., made a
similar point when he argued that the CDA effectively overruled
the Supreme Court's holding in Utah Mining. Microform Data
System, Inc., supra, Sl. op. at 6, 12. However, the CAB panel
rejected that contention noting that notwithstanding Congress'
conferring breach of contract jurisdiction on agency boards in
section 8(d) of the CDA, 41 U.S.C. � 607(d), S. REP. No. 95-1118,
95th Cong., 2d Sess. (1978), reprinted in 1978 U.S. Code Cong. &
Ad. News 5239, 5259, that legislation also:
. . . provided that a contractor could go directly to the Court
of Claims in lieu of appealing to the Contract Appeals Board.
It retained the [Wunderlich Act] language on questions of law
and provided in 41 U.S.C. 609(b):
"In the event of an appeal by a contractor or the Government from
a decision of any agency board pursuant to section 607 of this
title, notwithstanding any contract provision, regulation or
rules of law to the contrary, the decision of the agency board on
any question of law shall not be final or conclusive, but the
decision on any question of fact shall be final and conclusive
and shall not be set aside unless the decision is fraudulent, or
arbitrary, or
capricious or so grossly erroneous as to necessary imply bad
faith, or if such decision is not supported by substantial
evidence."
If [the CDA] was in effect prior to Utah Mining, . . . there may
have been a difference in the [sic] some aspects of the decision,
but it would not have affected a question similar to the one
before this Board. We are not considering a fact question, but
one of law, and both the Wunderlich Act and the [CDA] are
consistent with regard to decisions by Contract Boards of Appeal
on questions of [l]aw and that is they are not final when an
Appeals Board decides them. [Emphasis added.]
Microform Data System, Inc., supra, Sl. op. at 15. Consequently,
in this case, whether the Board assumed jurisdiction over breach
of contract claims by law or by consent, it would still be unable
to make a final disposition of the matter. Therefore, here as in
Wessel, there is nothing to defeat the sound policy reasons
favoring the Board's refusal to exercise its discretion to make
factual findings only on such claims, while remaining silent on
the issue of liability, and thus provide the Appellant with only
"half a loaf." The Wessel Company, supra, Sl. op. at 41.
Finally, the Board believed that the doctrine of "sovereign
immunity" precluded acceptance of jurisdiction in Wessel. 32/
Id.,
Sl. op. at 41-45. In that regard, executive branch precedents
reflecting that agencies can and do waive sovereign immunity by
contract or regulation, 33/ are not particularly helpful in
deciding whether the Board should exercise its discretion and
take jurisdiction in breach of contract cases. Rather, the Board
must be mindful of the fact that GPO is an entity within the
legislative branch and that Congress has expressed a certain
intent with respect to the processing of contract claims arising
in this branch of Government. See, Tatelbaum v. United States,
supra, 749 F.2d at 730.
Congress expressly excluded judicial and legislative branch
agencies from coverage of the CDA because it thought that "[a]
cquisition activity by these agencies is relatively small, and
subjecting them to regulations promulgated by the executive
branch agencies could raise constitutional questions under the
'separation of powers' doctrine." 34/ S. REP. No. 95-1118, 95th
Cong., 2d Sess. (1978), 16, reprinted in 1978 U.S. Code Cong. &
Ad. News 5250.
The CDA is a clear expression of Congress' intent to waive the
Government's sovereign immunity with respect to breach of
contract claims against covered Federal agencies. 35/ Id., at
5239. 41 U.S.C. � 607(d). Because Congress did not include GPO
within the parameters of the CDA, the Board concluded, contrary
to the appellant's argument in Wessel, that sovereign immunity
applies to breach of contract claims brought against this agency
unless some other law governing GPO provides a waiver. The
Wessel Company, supra, Sl. op. at 43.
The Board only has such powers delegated to it by the Public
Printer, the Officer of the United States authorized by statute
to contract on behalf of the United States. Peake Printers,
Inc., supra, Sl. op. at 6; Bay Printing, Inc., supra, Sl. op. at
9. The Public Printer's procurement authority stems from section
502 of title 44 United States Code, which provides:
Printing, binding, and blank-book work authorized by law, which
the Public Printer is not able or equipped to do at the
Government Printing Office, may be produced elsewhere under
contracts made by him with the approval of the Joint Committee on
Printing.
The legislative history of section 502 discloses that it was
enacted as a simple amendment to the Legislative Branch
Appropriations Act for Fiscal Year 1930. Act of February 28,
1929, 45 Stat. 1400, H.R. 17053, 70th Cong., 2d Sess (1929).
Nothing in section 502 discloses a clear intent by Congress to
waive its sovereign immunity. The Congressional Record reveals
no lengthy discussion about this amendment in the Senate where it
was introduced, 70 Cong. Rec. 3850 (1929), and none at all in the
House debates. 70 Cong. Rec. 3329, 3350 ff. (1929). Similarly,
the Senate Report has no comments on printing, binding and blank
book-work whatsoever. S. REP. No. 1825, 70th Cong., 2d Sess.
(1929).
Accordingly, there is nothing in the legislative history of
section 502 which would reveal the intent of Congress beyond the
plain meaning of the words used in the law, i.e., the Public
Printer is authorized to contract out printing, binding, and
blank-book work which cannot be accomplished in GPO.
As the Board indicated in Wessel, it sees nothing in the
abbreviated legislative history of section 502 to indicate that
by authorizing the Public Printer to contract out printing,
binding, and blank-book work, Congress thereby also intended to
waive the Government's sovereign immunity with respect to his
settlement of contract claims against the United States. The
Wessel Company, supra, Sl. op. at 44. Certainly, there is
nothing in section 502, or its legislative history, which would
amount to the sort of unequivocal expression of a waiver of
sovereign immunity which the law requires before imposing a
liability on the public treasury. United States v. Mitchell,
supra, 445 U.S. at 538; United States v. Testan, supra, 424 U.S.
at 399 (1976); Overall Roofing & Construction, Inc. v. United
States, supra, 929 F.2d at 688; Fitzgerald v. U.S. Civil Service
Commission, 554 F.2d 1186, 1189, n. 8 (D.C. Cir. 1977) (in an
appropriate case, it might be possible to find an express waiver
of sovereign immunity in particularly clear legislative history).
Suffice it to say, Congress is perfectly capable of regulating
GPO's procurement activities by statute if it has a mind to.
See, United States v. International Business Machines
Corporation, supra, 892 F.2d at 1007-08 (GPO is subject to the
"Brooks Act" for the purpose of its ADP procurements).
Here, as in Wessel, since it takes specific legislation to waive
the Government's sovereign immunity, the burden was on the
Appellant in this case to point to a Congressional act that gives
consent. The Wessel Company, supra, Sl. op. at 45. See, Malone
v. Bowdoin, supra, 369 U.S. 643; Cole v. United States, supra,
657 F.2d at 109; Paradyne Corporation v. United States Department
of Justice, supra, 647 F.Supp. 1228. The Appellant has not done
so in this case. Moreover, the Appellant is in error when it
contends (in its Amicus Statement, 4), that the Board acquired
breach of contract jurisdiction by virtue of the "Disputes"
clause, because sovereign immunity may not be waived by
Government officials, United States v. Shaw, supra, 309 U.S. at
500-01; Champaign-Urbana News Agency, Inc. v. J. L. Cummins News
Company, Inc., supra, 632 F.2d at 687; Pezzola v. United States,
supra, 618 F.Supp. at 548, or by regulation. Heller v. United
States, supra, 776 F.2d at 97-98; Millard v. United States, 16
Cl.Ct. at 490.
Finally, as the Board indicated in Wessel, from a practical
standpoint, the Board believes that the Appellant is not
prejudiced by the dismissal of its appeal on jurisdictional
grounds. The Wessel Company, supra, Sl. op. at 45. First,
except for contract disputes processed in accordance with the
CDA, the statute of limitations for filing a claim against the
United States with the Claims Court is six years after the right
of action first accrues. 28 U.S.C. � 2401. Under the facts in
this case, since the Contracting Officer's final decision was
rendered on April 10, 1990, the time allowed the Appellant to
file its breach of contract claim in the appropriate judicial
forum will not expire for four more years. Second, and perhaps
more importantly, it is certain that the Appellant and the
Respondent would expend a great deal of time and money presenting
the appeal at the administrative level, after which either this
Board and/or the courts would ultimately, and possibly after the
passage of a substantial period of time, decide that the Board
had no jurisdiction, with the result that the parties would have
to repeat their efforts before a tribunal of competent
jurisdiction. Therefore, it seems that the interests of
fairness and economy of litigation are best served by having the
forum of doubtful jurisdiction -- the Board -- decline to
consider the matter and to leave the parties to the forum whose
jurisdiction is certain -- the Claims Court. Id., Sl. op. at 46.
Accordingly, for these reasons the Board concludes that it lacks
jurisdiction to entertain "pure" breach of contract claims, such
as this appeal, on the merits. Therefore, to the extent that the
Appellant is seeking breach of contract damages, this appeal
should be and is DISMISSED.
2. Denial of settlement costs
There is no dispute but that the Board has jurisdiction over the
Appellant's challenge to the Contracting Officer's final decision
regarding its termination settlement proposal. Cf., Microform
Data System, Inc., supra, Sl. op. at 17. However, the Board is
unable to decide that matter on the state of this record.
Therefore, pursuant to Rule 8 of the Board Rules, an evidentiary
hearing as prescribed in Rules 17 through 25, is hereby ordered
in this appeal on the denial of settlement costs issue. GPO
Instruction 110.12, Rules 8, 17-25. The hearing has been
scheduled for 10:00 a.m., on Tuesday, April 14, 1992, in the
Board's Conference Room (Room A-651), at the U.S. Government
Printing Office, 732 North Capitol Street, NW., Washington, DC
20401.
It is so Ordered.
_______________
1. The Contracting Officer's appeal file, assembled pursuant to
Rule 4 of the Board's Rules of Practice and Procedure, was
delivered to the Board on June 29, 1990. GPO Instruction 110.12,
Subject: Board of Contract Appeals Rules of Practice and
Procedure (GPO Instruction 110.12), dated September 17, 1984
(Board Rules), Rule 4. It will be referred to hereafter as R4
File, with an appropriate Tab letter also indicated. The R4 File
consists of documents identified as Tab A through Tab V.
2. The Appellant filed its appeal with the Board by letter
dated April 12, 1990 (R4 File, Tab V). See also, Appeal File,
Tab 1. (The Board's appeal file will be referred to hereafter as
App. F., with an appropriate Tab number also indicated.) In a
two-page summary attached to that letter, the Appellant
categorized its claim as one for "damages" for "[b]reach of
contract and [m]alicious and/or negligent behavior on the part of
GPO." Id. However, exhibit 11 of the initial filing is a copy of
the Appellant's letter to the Contracting Officer, dated
September 9, 1989, setting forth the contractor's claim for
termination of convenience. Id. The dual nature of the
Appellant's claim was confirmed in its letter to the Board, dated
July 5, 1990, which it wrote after having received and reviewed
the R4 File (App. F., Tab 6).
3. With the consent of the parties, this case was joined for
the purposes of a prehearing telephone conference on December 12,
1990, with another appeal filed by the Appellant, Docket No. GPO
BCA 31-90. During the prehearing telephone conference, however,
the parties were assured by the Board that even though the
appeals had been consolidated for that limited purpose, separate
decisions would be rendered in each. See, Prehearing Telephone
Conference Report (PCR), p. 1 By Order, dated August 22, 1991,
the Board officially severed both cases. See, Order Closing the
Record and Filing of Briefs, dated August 22, 1991, p. 1.
4. The IFB refers to GPO Contract Terms effective December 1,
1987. However, the IFB was issued and the contract awarded after
the 1988 revisions to GPO Contract Terms went to effect-September
1988. Therefore, the Board assumes that the IFB is referring to
the 1987 draft of those 1988 revisions, which the Board
understands to be basically the same. Indeed, the Board notes
that even the revised IFB for Program D404-M, note 9 infra, which
was issued by the Respondent on May 23, 1989, and covered the
period from July 1, 1989, to June 30, 1990, still referred to GPO
Contract Terms effective December 1, 1987 (R4 File, Tab G, p. 2).
Accordingly, for the sake of convenience, the Board will refer to
the final (1988) version of GPO Contract Terms in this opinion;
i.e., 1988 Contract Terms. Finally, the record discloses that
the Program D404-M QATAP standards for both Product Quality
Levels (Printing Attributes and Finishing Attributes) was Level
III (R4 File, Tab A, p. 2). The Inspection Level standard for
Non-Destructive tests was General Inspection Level I, while the
measurement for Destructive tests was Special Inspection Level
S-2 (R4 File, Tab A, p. 2).
5. There were also a specified standard relating to the Type
Quality and Uniformity attribute (Average type dimension in
publication/Camera copy) (R4 File, Tab A, p. 2). For
subcontracting purposes, the predominant production function was
typesetting (R4 File, Tab A, p. 2).
6. The contract in question was a "direct-deal term contract"
and print orders were to be issued by the DOJ. As explained in
the GPO Agency Procedural Handbook, GPO Publication 305.1, dated
March 1987 (GPO Handbook): "[d]irect-deal term contracts allow
the customer agency to place print orders (GPO Form 2511)
directly with contractors rather than routing them through the
GPO for placement." GPO Handbook, Section IV, � 1, at 8. The
purpose of this method of contract administration is " . . . to
ensure that agency printing needs are met in the most effective
and efficient manner possible." Id. It should be noted,
however, that agency direct-deal authority ". . . extends only
the placement of print orders and to the transmission of copy and
proofs. . . .All other authority rests with GPO's Contracting
Officers." GPO Handbook, Section IV, � 2, at 9. See, Castillo
Printing Co., GPO BCA 10-90 (May 8, 1991), Sl. op. at 3-4.
7. At the prehearing conference, Counsel for GPO stated that
the difference between the bid and the contract cost shown on the
Purchase Order was based on proration of the total cost and other
factors, which could be explained in detail if this became an
issue between the parties. PCR, p. 4.
8. Under GPO's Printing Procurement Regulation (PPR), GPO
Publication 305.3, CRB review and concurrence is required in four
post-award situations, including proposed termination of a
contract for the convenience of the Government when
resolicitation is required. PPR, Chap. I, Sec. 10, � 4.b.(ii).
CRB approval is also required for proposed settlements of
contracts terminated for the convenience of the Government if the
settlement is more than $2,000. Id., � 4.b.(iii).
9. One member of the CRB, Joseph Nadler, indicated that he was
approving the termination for convenience only, and not the
proposal to revise or readvertise Program D404-M (R4 File, Tab
E). However, in a conversation with the Contracting Officer on
April 12, 1989, Nadler explained that his concurrence was limited
to the termination action because he had not read the revised
specifications for Program D404-M, and therefore he could not
agree in advance to the manner in which GPO would readvertise
contract (R4 File, Tab E). The IFB for Program D404-M, as
revised, were issued by the Respondent on May 23, 1989, and
covered the period from July 1, 1989, to June 30, 1990 (R4 File,
Tab G). All potential bidders were informed that the
specifications had been extensively revised (R4 File, Tab G, p.
1). Essentially, the revised specifications divided the work
into two categories-category 1 was work performed from
Government-furnished manuscript, category 2 was work sent to the
contractor by teletransmission. Among other things, the "SCOPE"
clause was amended to read as follows: "These specifications
cover the production of legal publications requiring such
operations as composition, film-making, printing, binding,
packing, and delivering. For category 1, manuscript will be
furnished. For category 2, material will be furnished through
teletransmission of data that has been keyed using word
processing software and by facsimile transmission" (R4 File, Tab
G, p. 6).
10. See, 1988 Contract Terms, Contract Clauses (Termination for
the Convenience of the Government) (TCG), �� 19.(a)-(k)((2)(1).
Among other things, the TCG clause: (1) gives the Government an
absolute right to terminate a contract for convenience, in whole
or in part, where it is determined that such termination is in
the Government's interest (� 19.(a)); (2) provides for a Notice
of Termination (Notice) to the contractor specifying the extent
of termination and the effective date (� 19.(a)); (3) places
certain obligations on the contractor on receipt of the Notice,
including stopping work, ceasing subcontracting, terminating
existing subcontracts, settling all outstanding liabilities and
termination settlement proposals from the subcontractors,
completing performance of the work not terminated, and using its
best efforts to sell property and inventory, as directed by the
contracting officer (� 19.(b)(1)-(10)); (4) requires that the
contractor submit a final termination settlement proposal on GPO
form 911 to the contracting officer no later than 3 months from
the effective date of termination (� 19.(c)); (5) provides that
where no agreement is reached on the total amount of settlement,
the contracting officer shall still pay the contractor: (a)the
contract price for completed supplies or services accepted by the
Government (adjusted for any savings for freight and other
charges) (� 19.(e)(1)); (b) the costs incurred in the performance
of the work terminated (� 19.(e)(2)(i)); (c) the cost of settling
and paying termination proposals under terminated subcontracts (�
19.(e)(2)(ii)); (d) a fair and reasonable profit on the work
terminated (� 19.(e)(2)(iii); (6) incorporates the costs
principles and procedures of article 45 of 1988 Contract Terms (�
19.(f)); and (7) allows a contractor who disagrees with the
contracting officer's decision on its termination settlement
proposal to appeal to the Board under the "Disputes" clause
(article 5) (� 19.(h)).
11. According to the record, one of the other contractors,
Wilson-Epes, did agree to cancellation of the contract without
additional cost (R4 File, Tab F). The record does not indicate
if the third contractor, Charles P. Young Company, also concurred
in those terms.
12. Furthermore, in an attachment to the form, the Appellant not
only explained how it arrived at its settlement proposal figures,
but also told the Respondent that the termination action had
serious consequences because: "I have been in negotiations to
sell a share of my company to a group of investors and this
Breach of Contract/Termination for Convenience has seriously
jeopardized that sale. My winning of the [t]elecommunications
contract for [DOJ] helped offset the loss of this contract, but
as I pointed out in my cover letter, that telecommunications need
appears to have been a sham and not a single job has developed,
even though the contract estimates an average of 32 pages of
briefs per day to be issued." See, R4 File, Tab K, Attachment to
GPO Form 911, p. 3. See also, R4 File, Tab O.
13. The Appellant's letter refers to correspondence from the
Contracting Officer, dated October 16, 1989, which is not in the
R4 File. From the correspondence in the file, it is apparent
that the October 16, 1989, letter relates to another Program
(D358-M) and a different issue (poor shipping/delivery
performance) than those involved in this appeal.
14. The audit report was based on an examination of the
Appellant's settlement proposal, documents in GPO's procurement
file, and records furnished by the contractor (R4 File, Tab Q,
Attachment I).
15. The record shows that on March 21, 1990, the Contracting
Officer contacted Laurel Wilson of the OIG staff for additional
information on the settlement expenses portion of the audit
report (R4 File, Tab R). According to Wilson, one problem with
performing the audit was that the Appellant did not explain how
he arrived at his figures, but it did provide a listing of hours
worked, well as the hourly rate for two employees-Rita Langford
and Ford (R4 File, Tab R). Although no hourly rate was provided
for Richard Swanson, the auditors believed $15.00 an hour was
fair compensation (R4 File, Tab R).
16. An examination of the Contracting Officer's letter of March
23, 1990, discloses the following disposition of the Appellant's
claim: (1) Labor costs for severance pay ($6,468.00
claimed)-$809.80 of the claim could be supported if the Appellant
proved that amount was actually paid, that the employees spent a
substantial amount of their time on contract work, and the
employees were released because of the termination of Program
D404-M (the balance of the claim was denied); (2) Overhead
expenses ($136,230 claimed)-provided that the labor costs of
$809.80 was supported with additional evidence, $392.83 (based on
a claimed overhead rate of 48.51 percent) could be allowed (the
balance of the claim, representing all overhead not related to
direct labor costs, was denied); (3) Capital acquisition debt
($46,901.00 claimed)-the entire amount was denied because the
Appellant was not guaranteed an award of the contract in any
given year, nor a was it assured of a position in the sequence of
bidders, and the equipment in question could be used for a
variety of composition and printing contracts; (4) General and
administrative expenses (G & A) ($15,016.00 claimed)-provided
that the labor costs of $809.80 was supported with additional
evidence, $44.62 (based on a claimed G & A rate of 5.51 percent)
could be allowed (the balance of the G & A costs not related to
direct labor costs, was denied); (5) Lost profit ($40,878.00
claimed)-the entire amount was denied on the ground that profit
on work which was neither ordered nor performed is not allowed in
a termination for convenience; and (6) Settlement expenses
($303.75 claimed)-$283.64 was allowed as reimbursement for the
cost of preparing the settlement proposal (the balance was denied
because it was not supported by documentation) (R4 File, Tab S).
17. See note 16 supra.
18. At the request of the Board, the Appellant was invited to
submit an amicus statement of position on the breach of contract
issue in the Wessel case. PCR, p. 18, fn. 1. The Appellant
complied with this request in an undated letter, which was
received by the Board on March 19, 1991.
19. The Board's understanding of the positions of the parties is
based on the documents in the record, other material submitted by
the Appellant including its amicus statement in the Wessel case,
and their statements during the prehearing telephone conference
held on December 12, 1990.
20. It is apparent from both the Appellant's amicus statement
in the Wessel case and the discussions during the prehearing
telephone conference, that the Appellant was presenting the
breach of contract issue to the Board on the advise of its
attorney, who thought it was necessarily in order to exhaust the
Appellant's administrative remedies before filing suit in the
Claims Court. Amicus Statement, � 1; PCR, p. 7. However, the
Appellant also stated it was primarily interested in obtaining
fair compensation, and if available as termination costs, then it
might not pursue the breach of contract claim. Id.
21. During the prehearing telephone conference the Appellant
questioned the completeness of the OIG's audit report, stating
that some essential attachments like the auditor's preliminary
reports, work papers, and prior drafts were missing from the R4
File and should be included. PCR, p. 9. The Respondent, on the
other hand, stated that copies of all the communications
addressed to and received from the audit staff, had been included
in the R4 File. PCR, p. 10. Furthermore, the Respondent
contended that only the audit report was sent by the OIG to the
Contracting Officer; no draft reports or staff work papers were
received by her. Id. Moreover, no rules or guidelines, other
than those included in the R4 File were separately issued to the
audit staff, but rather they had used generally accepted
accounting principles in their approach. Id.
22. The record on which the Board's decision is based consists
of: (1) the Appellant's letter, dated April 12, 1990, appealing
the Contracting Officer's final decision; (2) the R4 File (Tabs
A-V); (3) the Appellant's letter, dated July 5, 1990, furnish
additional information; (4) the Prehearing Telephone Conference
Report; and (5) the amicus statement submitted by the Appellant
in the Wessel case.
23. A "pure" breach of contract claim is a claim not redressable
under a specific contract provision. United States v. Utah
Construction and Mining Company, 384 U.S. 394, 404, n. 6 (1966);
Blake Construction Company, Inc., GSBCA No. 2205, 67-1 BCA �
6,311, at 29,198.
24. In a recent decision, Stephenson, Inc., GPO BCA 2-88
(December 20, 1991), a case stemming from a contracting officer's
partial termination of the appellant's contract for default based
on the timely delivery of nonconforming books, the Board was
asked to consider, among the other defenses offered by the
breaching contractor, whether GPO's conduct during the period
between receipt of the books and the date of termination amounted
to a breach of the Government's implied duty to cooperate with
the appellant to complete performance under the contract.
Stephenson, Inc., supra, Sl. Op. at 38. The Board found, on the
facts, that no breach had occurred in that case and rejected the
appellant's defense. Stephenson, Inc., supra, Sl. Op. at 46-47.
That decision is clearly distinguishable from this appeal because
it was not a "pure" breach claim; rather, the appellant, as the
breaching party, was alleging "breaching" conduct on the part of
the Government as a defense against the consequences of its own
default; i.e., no money damages were being sought by the
contractor. Accord, Spectrum Leasing Corporation, GSBCA Nos.
7347, 7379, 7425-27, 90-3 BCA � 22,984; Ballenger Corporation,
DOTCAB No. 74-32, 84-1 BCA �16,973, mod. on other grounds, 84-2
BCA � 17,277. Therefore, the focus of the Board's analysis in
this appeal, as in Wessel, must necessarily be on whether or not
it has the authority to award damages or are its remedial powers
limited by the contract itself?
25. Before the Board, Wessel amended its claim to reflect total
damages in the amount of $353,817.60.
26. The CDA does not apply to GPO contracts because it is a
legislative branch agency. See, Tatelbaum v. United States, 749
F.2d 729, 730 (Fed. Cir. 1984).
27. The Board was created by the Public Printer in 1984 to
succeed the prior Contract Appeals Board (CAB), in order to
provide GPO with permanent, independent organization solely
responsible for the resolution of contract disputes. GPO
Instruction 110.10C, Subject: Establishment of the Board of
Contract Appeals (GPO Instruction 110.10C), dated September 17,
1984. Among other things, GPO Instruction 110.10C, provides, in
pertinent part: "3. Statutory Authority. The United States
Government Printing Office (hereinafter GPO) is an Office in the
legislative branch of the United States Government. United
States v. Allison, 91 U.S. 372 (1876); Lewis v. Sawyer, C.A. No.
82-2869, Memorandum at 3 (D.D.C. Dec. 20, 1982); Thompson v.
Sawyer, 678 F.2d 257 (D.C. Cir. 1982); McKenzie v. Sawyer, 648
F.2d 257 (D.C. Cir. 1982); Comp. Gen. Op. B-208272 (1983); Comp.
Gen. Op. B-152126 (1963); 36 Comp. Gen. 163 (1956); 34 Comp. Gen.
485 (1955). As such, GPO contract disputes are not subject to
the procedures prescribed by the Administrative Procedure Act, 5
U.S.C. � 551 et seq. (1982), or the Contract Disputes Act of
1978, Pub. L. No. 95-563, 92 Stat. 2383-91 (codified at 41 U.S.C.
�� 601-613 (1982)). The GPO is under the direction and
supervision of the Public Printer of the United States, whose
statutory and administrative powers include the authority to
enter into contracts on behalf of the United States and to make
final administrative determinations regarding such contracts.
See 44 U.S.C. �� 301, 309, 501, 502. . . . 5. Jurisdiction of the
Board. The Board shall consider and determine appeals from final
decisions of Contract Officers relating to contracts which
contain provisions requiring the determination of appeals by the
Public Printer, or his duly authorized representative or board.
By agreement, the Board may also consider and determine appeals
from decisions of other legislative branch Contracting Officers
made pursuant to their contracts. In addition, the Board shall
have jurisdiction over such other procurement-related matters as
may be assigned to it by the Public Printer. The Board has
authority to determine appeals falling within the scope of its
jurisdiction as fully and finally as might the Public Printer. .
. . 7. Decisions of the Board. a. Appeals shall be heard by a
single Administrative Judge who shall decide them in an
impartial, fair, and just manner. Decisions shall be supported
by substantial evidence on the record as a whole. The decision
shall be deemed the decision of the Board. b. When an appeal is
taken pursuant to a Disputes clause of a contract which limits
appeals to disputes concerning questions of fact, the Board may,
in its discretion, hear, consider, and decide all questions of
law necessary for the complete adjudication of the appeal. In
consideration of an appeal, should it appear that a claim is
involved which is not cognizable by the Board, the Board may make
findings of fact with respect to such claims without expressing
an opinion on the question of liability." [Emphasis added.]
28. The preface to GPO Instruction 110.12, the Board's Rules of
Practice and Procedure, provides in relevant part: "I.
Jurisdiction for Considering Appeals. [The Board] . . .
shall consider and determine appeals from final decisions of
contract officers relating to contracts which contain provisions
requiring the determination of appeals by the Public Printer, or
his duly authorized representative or board. By agreement, the
Board may also consider and determine appeals from decisions of
other legislative branch Contracting Officers made pursuant to
their contracts. In addition, the Board shall have jurisdiction
over other procurement-related matters assigned to it by the
Public Printer. The Board has authority to determine appeals
falling within the scope of its jurisdiction as fully and finally
as might the Public Printer. . . . V. Decisions on Questions of
Law. When an appeal is taken pursuant to a "Disputes" clause of
a contract which limits appeals to disputes concerning questions
of fact, the Board may, in its discretion, hear, consider, and
decide all questions of law necessary for the complete
adjudication of the appeal. In consideration of an appeal,
should it appear that a claim is involved which is not cognizable
by the Board, the Board may make findings of fact with respect to
such claims without expressing an opinion on the question of
liability." [Emphasis added.]
29. The "Disputes" clause applicable to the Appellant's contract
provided that: (a) any dispute concerning a question of fact
arising under or related to this contract which is not disposed
of by agreement shall be decided by the contracting officer, who
shall make his/her decision in writing and mail or otherwise
furnish a copy thereof to the contractor; (b) the decision of the
contracting officer shall be final and conclusive unless, within
90 days from the date of receipt of such copy, the contractor
mails or otherwise furnishes a written notice of appeal to the
Board; (c) the Board's decision is final and conclusive unless
determined by a court of competent jurisdiction to have been
fraudulent, or capricious, or arbitrary, or so grossly erroneous
as necessarily to imply bad faith, or not supported by
substantial evidence; (d) the contractor shall be afforded an
opportunity to be heard and to offer evidence in support of
his/her appeal; and (e) the "Disputes" clause does not preclude
consideration of law questions by the Board, provided, that
nothing shall be construed as making final the decision of any
administrative official, representative, or board on a question
of law. [Emphasis added.] 1988 Contract Terms, Contract Clauses,
� 5. The last paragraph of the "Disputes" clause paraphrases the
requirements of the Wunderlich Act, 41 U.S.C. �� 321, 322, which
provides, in part: "No Government contract shall contain a
provision making final on a question of law the decision of any
administrative official, representative, or board." 41 U.S.C. �
322. See also, GPO Contract Terms No. 1, GPO Publication 310.2
(Rev. October 1980), �2-3.(b) (1980 Contract Terms).
30. Prior to 1984, appeals from decisions of GPO Contracting
Officers were considered by ad hoc panels composed of various GPO
employees specifically appointed by the Public Printer from
nominees selected by GPO Department and Service heads to serve on
the CAB. GPO Instruction 110.10 , Subject: Board of Contract
Appeals Rules of Practice and Procedure, dated June 6, 1979 (GPO
Instruction 110.10), � 3.b.; GPO Instruction 110.10A, Subject:
Board of Contract Appeals Rules of Practice and Procedure, dated
September 17, 1980 (GPO Instruction 110.10A), � 4.b.; GPO
Instruction 110.10B, Subject: Board of Contract Appeals Rules of
Practice and Procedure, dated June 18, 1981 (GPO Instruction
110.10B), � 4.b. These ad hoc panels consisted of three (3)
members who were assigned to hear appeals on a case-by-case
basis. GPO Instruction 110.10, � 3.c.; GPO Instruction 110.10A, �
4.c.; GPO Instruction 110.10B, � 4.c. The 1981 directive amended
the panel makeup to the extent that at least one member had to be
an attorney. Id.
31. On its face, the 1988 revision to the "Disputes" clause
harmonizes GPO Contract Terms with FAR � 52.233-1(b).
32. The doctrine of "sovereign immunity" simply means that the
Government cannot be sued or held liable without its consent.
United States v. Mitchell, 445 U.S. 535 (1980), rehearing den.
446 U.S. 992 (1980), on remand 664 F.2d 265 (Ct. Cl. 1981), cert.
granted 457 U.S. 1104 (1982), affirmed, case remanded 103 S.Ct.
2961 (1983); United States v. Sherwood, 312 U.S. 584, 586 (1941);
McQueen v. Bullock, 907 F.2d 1544 (5th Cir. 1990), cert. denied
111 S.Ct. 1308 (1991); Valn v. United States, 708 F.2d 116 (3rd
Cir. 1983); Garrett v. United States, 640 F.2d 24 (6th Cir.
1981); Vote v. United States, 753 F.Supp. 866 (D.Nev. 1990),
affirmed 930 F.2d 31 (9th Cir. 1991). The purpose of the
doctrine is to protect the fiscal integrity of the Government.
Gnotta v. United States, 415 F.2d 1271, 1277 (8th Cir. 1969);
Neely v. Blumenthal, 458 F.Supp. 945, 954 (D.D.C. 1978);
Drumright v. Padzieski, 436 F.Supp. 310, 318 (E.D. Mich., S.D.
1977).
33. See, Color Corner, Ltd., ASBCA No. 26683, 82-2 BCA �15,957
at 79,095 (non-CDA case). See also, King and Queen Drive-In,
ASBCA No. 14764, 72-1 BCA � 9467; Texida, Inc., ASBCA No. 19854,
75-2 BCA � 11,505. These cases involve nonappropriated fund
activities (NAFs) which, in the Federal Government's
organizational scheme are considered sui generis because of their
quasi-commercial aspects and their close connection to the
welfare funds of the Military Departments. The Board is not
persuaded that the GPO's situation it analogous to that of the
NAFs. The Wessel Company, supra, Sl. op. at 41-42.
34. Congress' concern for the "separation of powers" doctrine
can be somewhat flexible. See, Wehran Engineering Corporation,
GSBCA No. 6055-NAFC, 84-3 BCA � 17,614 (where a legislative
branch entity, the National Alcohol Fuels Commission (NAFC),
entered into an agreement with the GSBCA to resolve NAFC contract
disputes). Indeed, for certain types of procurements-those
relating to the purchase, lease and maintenance of Automated Data
Processing (ADP) equipment- Congress has included GPO within the
definition of "Federal agency" for coverage under the so-called
"Brooks Act." Federal Property and Administrative Services Act of
1949, �111(a)(1), 40 U.S.C. � 759(a)(1), as amended by the Act of
October 30, 1986, � 101 et seq., 100 Stat. 3341, 334-342
(amending sec. 822). See, United States v. International
Business Machines Corporation, 892 F.2d 1006, 1007-08 (Fed. Cir.
1989). Furthermore, GPO was included under the coverage of the
Civil Service Reform Act of 1978, Pub. L. 95-454 (October 13,
1978), 92 Stat. 1191, and appears, for example, before the
Federal Labor Relations Authority for the resolution of its
labor-management disputes. 5 U.S.C. ��7103(a)(3). See, Joint
Council of Unions, GPO and U.S. Government Printing Office, Case
No. 0-NG-397, 10 FLRA 448 (1982).
35. It is "black letter" law that waivers of sovereign immunity
must be unequivocally expressed and may not be implied. United
States v. Mitchell, supra, 445 U.S. at 538; United States v.
Testan, 424 U.S. 392, 399 (1976); United States v. King, 395 U.S.
1, 4 (1969); Overall Roofing & Construction, Inc. v. United
States, 929 F.2d 687, 688 (Fed. Cir. 1991); Ascot Dinner Theatre,
Ltd. v. Small Business Administration, 887 F.2d 1024 (10th cir.
1989); Fidelity Construction Company v. United States, 700 F.2d
1379, 1387 (Fed. Cir. 1983). Furthermore, waivers of sovereign
immunity are strictly construed in favor of the sovereign.
Library of Congress v. Shaw, 478 U.S. 310, 318 (1986); Ruckelhaus
v. Sierra Club, 463 U.S. 680 (1983); Lehman v. Nakshian, 453 U.S.
156 (1981); McMahon v. United States, 342 U.S. 25, 17 (1951);
Haase v. Sessions, 893 F.2d 370 (D.C. Cir. 1990); First National
Bank in Brookings v. United States, 829 F.2d 697 (8th Cir. 1987);
Sutton v. United States, 819 F.2d 1289 (5th Cir. 1987); Wagner
Seed Company, Inc. v. Bush, 709 F.Supp. 249 (D.D.C. 1989); United
States v. Rose, 549 F.Supp. 830 (S.D.N.Y. 1982); Boehm v. United
States, 22 Ct. Cl. 511 (1991). Res. Brf., pp. 2-3. For that
reason, it takes an Act of Congress to waive the Government's
sovereign immunity. Malone v. Bowdoin, 369 U.S. 643 (1962);
Dalehite v. United States, 346 U.S. 15 (1953); Cole v. United
States, 657 F.2d 107, 109 (7th Cir. 1981), cert. denied 454 U.S.
1083 (1981); Metropolitan Sanitary District of Greater Chicago v.
United States Department of Navy, 722 F.Supp. 1565, on
reconsideration 737 F.Supp. 51 (N.D.Ill. 1989); Paradyne
Corporation v. United States Department of Justice, 647 F.Supp.
1228 (D.D.C. 1986); Van Schaick v. United States, 586 F.Supp.
1023, 1029 (D.S.C. 1983). Sovereign immunity may not be waived
by Government officials, United States v. Shaw, 309 U.S. 495,
500-01 (1940); Champaign-Urbana News Agency, Inc. v. J. L.
Cummins News Company, Inc., 632 F.2d 680, 687 (7th Cir. 1980);
Pezzola v. United States, 618 F.Supp. 544, 548 (D.E.D. N.Y.
1985), or by regulation. Heller v. United States, 776 F.2d 92,
97-98 (3rd Cir. 1985); Millard v. United States, 16 Cl.Ct. 485,
490 (1989).