U.S. GOVERNMENT PRINTING OFFICE
BOARD OF CONTRACT APPEALS
WASHINGTON, D.C. 20401
In the Matter of )
)
The Appeal of )
)
GOLD COUNTRY LITHO ) Docket No. GPO BCA 22-93
Jacket No. 338-583 )
Purchase Order 88703 )
For the Appellant: Gold Country Litho, Sacramento, California, by
Mr. Donald Sternick, pro se.
For the Government: Kerry L. Miller, Associate General Counsel,
U.S. Government Printing Office.
Before FOSS, Administrative Judge.
DECISION ON MOTION FOR RECONSIDERATION AND ORDER
On September 30, 1996, the Board issued its Decision and Order in
the above-captioned appeal of Gold Country Litho (Appellant or
Contractor), sustaining the Contracting Officer's default
termination of the contract for a failure to perform in
accordance with the specifications, because the Appellant had not
shown that its failure to perform arose from causes beyond its
control and without its fault or negligence, or beyond the
control and without the fault or negligence of its suppliers.
Gold Country Litho, GPO BCA 22-93 (September 30, 1996), slip. op.
at 21-22, 25-26, 1996 WL _____. See GPO Contract Terms,
Solicitation Provisions, Supplemental Specifications, and
Contract Clauses, GPO Publication 310.2, effective December 1,
1987 (Rev. 9-88), �� 20(a)(1)(i), (c), (d) (Default) (hereinafter
GPO Contract Terms). In addition, the Board ruled that the U.S.
Government Printing Office (Respondent or GPO or Government) had
proved its claim of entitlement to excess reprocurement. Gold
Country Litho, supra, slip op. at 35. However, the Board reduced
GPO's claim by $2,093.38 on the ground that the Respondent had
overcharged the Appellant for excess reprocurement costs by
erroneously subtracting the Contractor's undiscounted contract
price from the repurchase contractor's undiscounted bid, when the
record showed that the Government actually took a prompt payment
discount on the reprocurement contractor's bill. Id., slip op.
at 36-37. Accordingly, because nothing in the record showed that
the excess costs were adjusted by the Respondent after the
reprocurement contractor had been paid, and as the amount
involved was not de minimis, the Board modified the amount
assessed against the Appellant, and directed GPO to refund
$2,093.38 to the Contractor. Id., slip op. at 36. Cf. Big Red
Enterprises, GPO BCA 07-93 (August 30, 1996) slip op. at 48, n.
41, 1996 WL _____; Univex International, GPO BCA 23-90 (July 5,
1996), Supplemental Decision on Excess Reprocurement Costs and
Order, slip op. at 12, n. 8, 1996 WL_____ (hereinafter Univex
Supp.).
The Respondent received a copy of the Board's Decision and Order
on October 3, 1996. Thereafter, on October 30, 1996, Counsel for
GPO submitted a timely Motion for Partial Reconsideration
(Motion) in this appeal.1 See GPO Instruction 110.12, Subject:
Board of Contract Appeals Rules of Practice and Procedure, dated
September 17, 1984, Rule 29 (Board Rules). The Motion's central
argument is that the Board's refund order is contrary to
established precedent and agency regulations, and accordingly
should be vacated. See Motion, at 1-2. Although Rule 29 of the
Board Rules is silent with regard to responses by the non-moving
party, on October 31, 1996, in accordance with its usual
practice, the Board notified the Appellant of the Motion, and
provided it with an opportunity to present, in writing, any
facts, arguments, or reasons which it might have in opposition to
the Motion. See Order on Reconsideration, dated October 31,
1996, at 2 (Order). The Contractor was given fifteen (15) from
the date it received the Order to respond.2 No response has been
submitted by the Appellant, and the time allowed to file an
opposition has now elapsed. Therefore, the Motion is unopposed
in the record.
The Board has carefully reviewed the arguments set forth in the
Motion. For the reasons which follow, the Board has decided to
GRANT the Motion and VACATE the Order to refund $2,093.38 to the
Contractor. However, to the extent that the Respondent asks the
Board to confirm the amount of excess reprocurement costs
computed and assessed by the Government, the Motion is DENIED,
and the so much of the Order capping the Respondent's total
amount of recovery at $10,012.62 is AFFIRMED.
DISCUSSION AND OPINION
In this forum, motions for reconsideration are governed by Rule
29 of the Board Rules, which provides:
A motion for reconsideration, if filed by either party, shall set
forth specifically the ground or grounds relied upon to sustain
the motion, and shall be filed within 30 days from the date of
the receipt of a copy of the decision of the Board by the party
filing the motion.
By its terms, apart from establishing precise time limits for
filing the appropriate motion, Rule 29 only gives general
guidance for parties seeking reconsideration. See Asa L.
Shipman's Sons, Ltd., GPO BCA 06-95 (February 13, 1996) Decision
on Motion for Reconsideration and Order, slip op. at 3, 1996 WL
_____ (hereinafter Shipman's Reconsid.); Univex International,
GPO BCA 23-90 (February 7, 1996), Decision on Motion for
Reconsideration and Order, slip op. at 3, 1996 WL_____
(hereinafter Univex Reconsid.); Sterling Printing, Inc., GPO BCA
20-89 (July 5, 1994), Decision on Motion for Reconsideration and
Order, slip op. at 2, 1994 WL 377592 (hereinafter Sterling
Reconsid.); R.C. Swanson Printing and Typesetting Co., GPO BCA
15-90 (December 20, 1993), Decision on Motion for Reconsideration
and Order, slip op. at 3, 1993 WL 668317 (hereinafter Swanson
Reconsid.). However, in Graphic Litho, Inc., the Board set forth
the standards which it would apply to such motions:
Generally, Boards of Appeals, such as this, will not reopen an
appeal record once it is settled. [Footnote omitted.] Polerad
Electronics Corp., ASBCA [No.] 20636, 79-1 BCA � 13,777[.] [See
also,] Cal Constructors, ASBCA [No.] 21179, 78-1 BCA � 12,992;
Harold Benson, AGBCA [No.] 384, 77-1 BCA � 12,490. However, on
occasion they will exercise discretion and do so in order to
receive significant newly-discovered evidence[,] Key, Inc. &
Jones-Robertson, Inc., IBCA [No.] 690-12-67, 69-1 BCA � 7,447, or
non-newly discovered evidence, G.M. Co. Manufacturing, Inc.,
ASBCA [No.] 5345, 60-2 BCA � 2,759, when it is clear that
injustice will be done if the evidence is not considered. K-
Square Corp., IBCA [No.] 959-3-72, 73-2 BCA � 10,146; Turner
Construction Co., GSBCA [No.] 3549, 75-1 � 11,106.
A Board may also exercise such discretion in granting
reconsideration where it is alleged that the Board erred in its
legal conclusions, Pansophic Systems, Inc., GSBCA [No.] 4983,
78-2 BCA � 13,390; or where it is claimed that the decision was
founded in a legal theory which neither party had espoused.
Kaminer Construction Corp., ENGBCA [No.] 2833, 70-1 BCA � 8,257.
See Graphic Litho, Inc., GPO BCA 17-85 (September 30, 1988),
Order Denying Appellant's Motion for Reconsideration, slip op. at
2-3. See also Shipman's Reconsid., supra, slip op. at 3-4;
Univex Reconsid., supra, slip op. at 3-4; Sterling Reconsid.,
supra, slip op. at 2-3; Swanson Reconsid., supra, slip op. at 4.
As indicated in Graphic Litho, Inc., the traditional grounds for
reconsideration are: (1) newly discovered evidence, or evidence
which was unavailable at the time of the initial proceeding; or
(2) error or oversight in the contract appeals board's findings
of fact or conclusions of law. Accord Old Dominion Security,
Inc., GSBCA No. 8563-R, 88-3 BCA � 21,072; Chrysler Corp.,
NASABCA No. 1075-10, 77-2 BCA � 12,829; Winsco Instruments &
Controls Co., NASABCA No. 1065-40, 67-2 BCA � 6,644. See also
FED. R. CIV. P. 60(b). For the purposes of reconsideration,
"newly discovered evidence" is defined as evidence of facts
existing at the time of the original proceeding of which the
party was excusably ignorant, and which could not, by the
exercise of due diligence, have been discovered in time to
present in the original proceeding. See Yachts America, Inc. v.
United States, 779 F.2d 656, 662 (Fed. Cir. 1985); Warner v.
Transamerica Insurance Co., 739 F.2d 1347, 1353 (8th Cir. 1984);
United States v. Walus, 616 F.2d 283, 287-88 (7th Cir. 1980).
See also Danac, Inc., ASBCA No. 33394, 94-1 BCA � 26,286, at
130,759; M.C. & D. Capital Corp., ASBCA No. 38181, 93-2 BCA �
25,894, at 128,802; Sunshine Cordage Corp., ASBCA No. 38904, 90-1
BCA � 22,572, at 113,277; Dae Lim Industries Co., ASBCA No.
28416, 87-3 BCA � 20,110. Also, newly discovered proof must not
be merely cumulative and must be of such a material nature as
will probably change the outcome or produce a different result.
See Yachts America, Inc. v. United States, supra, 779 F.2d at
662; Warner v. Transamerica Insurance Co., supra, 739 F.2d at
1353; United States v. 41 Cases, More or Less, 420 F.2d 1126,
1132 (5th Cir. 1970). See also Danac, Inc., supra, 94-1 BCA at
130,759; Sunshine Cordage Corp., supra, 90-1 BCA at 113,277;
Finast Metal Products, Inc., ASBCA No. 19860, 85-1 BCA � 17,873
at 89,518. The same requirements regarding materiality and a
difference of result also apply to alleged errors or oversights
of findings of fact and conclusions of law.3 See e.g., Camel
Manufacturing Co., ASBCA No. 41231, 91-2 BCA � 23,908; Optimal
Data Corp., NASABCA No. 381-2, 85-2 BCA � 18,165. In the
final analysis, reconsideration is discretionary with the Board,
and will not be granted in the absence of specific and compelling
reasons. See Shipman's Reconsid., supra, slip op. at 5-6 (citing
Christie-Willamette, NASABCA No. 1182-16, 89-2 BCA � 21,659;
Carolina Maintenance, ASBCA No. 25891, 88-1 BCA � 20,388; Ken
Rogge Lumber Co., ASBCA No. 84-145-3, 84-3 BCA � 17,570; Ronald
C. Skillens d/b/a Skillens Enterprises, GSBCA No. 4625, 77-2 BCA
� 12,634); Univex Reconsid., supra, slip op. at 5; Sterling
Reconsid., supra, slip op. at 4-5. Indeed, we agree with the
view expressed by the General Services Board of Contract Appeals,
when it said:
Reconsideration is, . . . , strongly disfavored; it will not be
granted "on the basis of arguments already made and
reinterpretations of old evidence." Atlas Construction Co.,
GSBCA 7903-R et al., (Sept. 18, 1990); Input Output Computer
Services, Inc., GSBCA 8453-C-R (7090) et al., 88-3 BCA � 20,851
(1988). See also Rocky Mountain Trading Co., GSBCA 10404-C-
R(10210-P), 92-1 BCA � 24,261, 1991 BPD � 171. To warrant
reconsideration, the "moving party must make a satisfactory
showing that it is appropriate for the Board to revisit the
matter." Government Technology Services, Inc., GSBCA 10389-P-R,
90-2 BCA � 22,913, 1990 BPD � 75.
See Zinger Construction Co., Inc., GSBCA No. 11039-R, 92-3 BCA �
25,039, at 124,814.
The Respondent believes that reconsideration is warranted in this
appeal for two reasons, one factual and the other legal. First,
the Motion notes that while the Board figured the appropriate
amount of excess reprocurement costs was $10,012.62, as compared
to the Contracting Officer's calculation of $12,106.00, the
Government has only been able to recover $455.00 from the
Appellant. See Motion, at 3; Declaration of Erma H. Collins.
Furthermore, the Contractor had not been awarded any more
contracts, so future setoffs for GPO are problematic. Id.
Therefore, the Board ordered refund amounts to a "windfall" for
the Appellant. See Motion, at 3.
Second, GPO candidly admits that the Board simply applied the
general rule by crediting the Appellant with the amount of the
prompt payment discount which the Government took when it paid
the reprocurement contractor. See Motion, at 2 (citing
Industrial Fasteners Ltd. of North America, GSBCA No. 3634, 72-2
BCA � 9761). However, the Respondent argues that the special
place GPO occupies in the Federal printing scheme militates in
favor of creating an exception to the general rule, and allowing
it to retain the discount. See Motion, at 1-2 (citing "Prompt
Payment Discounts at [the] Government Printing Office," GAO
Memorandum B-238495, September 12, 1990 (hereinafter GAO
Memorandum)). In that regard, the GPO compares its contracts, in
which the prompt payment discount is irrelevant to the actual
cost of printing, to purchases made by other Federal agencies in
their own behalf, where the discounted price represents the
Government's actual cost. See Motion, at 2 (citing GAO
Memorandum, supra). Furthermore, the Respondent points out that
both the PPR and the FAR require the Government to consider
increases and decreases in "other costs" when assessing excess
costs in default cases, and that such costs expressly include
"discounts." See Motion, at 2 (citing Printing Procurement
Regulation, GPO Publication 305.3 (rev. 10-90), Chap. XIV, Sec.
1, � 3.f (hereinafter PPR); Federal Acquisition Regulation, �
49.402-6(c) (1996) (hereinafter FAR)). As the Government
interprets these regulations, it is allowed to retain the prompt
payment discount offered by the reprocurement contractor
essentially as a means of "recapturing" the discounted contract
price which would have been paid to the original contractor but
for the default. See Motion, at 2 (citing Consolidated Machine
Corp., ASBCA No. 14366, 73-1 BCA � 9943; 32 Comp. Gen. 328
(1953); 15 Comp. Gen. 177 (1953)). In the Respondent's opinion,
the Appellant was not entitled to any benefit from the discount
given by the reprocurement contractor, and for this reason the
Government says that excess costs were properly based on the
undiscounted original and repurchase prices. See Motion, at 3.
Accordingly, GPO urges the Board to modify its so much of its
decision reducing the Appellant's liability by $2,093.38, and
allow the Government to recover excess reprocurement cost in the
amount assessed by the Respondent. Id. Addressing the
Government's legal arguments first, there is no dispute that, as
a general matter, the Board applied the correct legal principle
when it reduced the Appellant's excess cost liability by the
amount of the prompt payment discount-the Respondent admits as
much. See e.g. Futura Systems, ENG BCA Nos. 6037, 6058,, 6099,
95-2 BCA � 27,654, at 137,874; Professional Window & House
Cleaning, Inc., GSBCA Nos. 8268, 8775, 90-3 BCA � 22,982, at
115,402; Aerospace Components, Inc., ASBCA No. 28606, 84-3 BCA �
17,536, at 87,339-40 (citing Empresas Electronics Walser, Inc.,
ASBCA No. 17524, 74-2 BCA � 10,664; Martin & Turner Co., ASBCA
No. 17824, 73-1 BCA � 9947; cf. John T. Penrod, AGBCA No.
79-169-4, 80-2 BCA � 14,789); Industrial Fasteners Ltd. of North
America, supra, 72-2 BCA at 45,581 (citing Seymour P. Thomas v.
United States, 53 Ct. Cl. 430 (1918); Rio Hondo Containers, GSBCA
No. 3494, 72-2 BCA � 9414). Essentially, the rule says that the
proper basis for recovery under the "Default" clause is the
Government's actual excess reprocurement costs, and that it is
inappropriate simply to compare "bare contract prices." See
Professional Window & House Cleaning, Inc., supra, 90-3 BCA at
115,402. However, in this case, the Respondent urges the Board
to adopt a different principle, and relies on an opinion by the
GAO to support its position that it is entitled to retain the
prompt payment discount because the general rule has no
application to GPO operations. See GAO Memorandum, at 5-6.
The specific question addressed by the GAO in its opinion was
"whether GPO is required to pass on prompt payment discounts
received from commercial printers directly to [F]ederal agencies
requesting printing from GPO." See GAO Memorandum, at 1.
Viewing that issue in light of the statutory scheme governing
Federal printing, the GAO basically held that GPO was not
required to reduce customer-agency printing costs to the extent
of the prompt payment discounts it received, but rather could
retain such discounts for its own use.4 See GAO Memorandum, at
3-5. The GAO based its conclusion on a combined reading of
Sections 309 and 310 of Title 44 of the United States Code, which
it said "require[d] GPO to recover from its customers the direct
and
indirect costs of procured as well as in-house printing." See
GAO Memorandum, at 3 (citing 44 U.S.C. �� 309, 310 (1988)).5 The
GAO reasoned, in pertinent part:
We think sections 309 and 310 make clear that Congress intended
GPO to operate on a self-sustaining basis, recovering its costs
of operation from its customers. Conversely, we think it fair to
conclude that Congress did not intend for GPO to adopt a costing
methodology that augments in a significant way one appropriation
account at the expense of another. . . .
By charging its customers the full invoice price on procured jobs
and using the retained discounts to reduce its surcharge on
procured printing, GPO recovers the direct and indirect costs of
procured printing at rates that reflect those costs as section
309(b) requires. Alternatively, GPO could pass the discounts for
individual jobs directly to specific customers and recover its
indirect costs through a higher surcharge. [Footnote omitted.]
However, since section 309(b) requires only that GPO charge at
rates that cover its costs and GPO's current practice satisfies
this requirement without violating any specific statutory or
other legal principle, we believe that GPO has reasonably
exercised its discretion by retaining the prompt payment
discounts from commercial printers and reflecting such fact
through reduced surcharges on procured printing.
See GAO Memorandum, at 4-5. [Emphasis added.]
In the Board's view, the Respondent reads too much into the GAO
Memorandum, and it has no application in this case. As the GAO
noted, GPO, because it is an agency of Congress, is not covered
by the Prompt Payment Act of 1982, as amended (PPA), 31 U.S.C. �
3901 et seq. (1994), but rather any "penalties and discounts are
governed solely by the terms of the contracts between GPO and its
suppliers." See GAO Memorandum, at 5 (citing GAO Memorandum
B-211307, August 26, 1983). See also Chavis and Chavis Printing,
GPO BCA 20-90 (February 6, 1991), slip. op. at 7, n. 7, 1991 WL
439270.6 In that regard, as previously indicated, the
Government's right to collect excess reprocurement costs is not
rooted in statute, but rather in the contract's "Default" clause.
See Professional Window & House Cleaning, Inc., supra, 90-3 BCA
at 115,402. See also John Cibinic, Jr. and Ralph C. Nash, Jr.,
Administration of Government Contracts, at 998 (The George
Washington University, 3rd ed. 1995) ("Excess costs of
reprocurement or completion are the unique remedies given to the
Government upon a valid default termination. The standard
default clauses for fixed-price supply, service, and construction
contracts state that the right to assess excess costs is 'in
addition to any other rights and remedies provided by law or
under this contract'") (hereinafter Cibinic & Nash,
Administration). The specific language in GPO's "Default" clause
which gives the Respondent the right to recover excess costs is:
If the Government terminates in whole or in part, it may acquire,
under the terms and in the manner the Contracting Officer
considers appropriate, supplies or services similar to those
terminated, and the contractor will be liable to the Government
for any excess costs for those supplies and services. However,
the contractor shall continue the work not terminated.
See GPO Contract Terms, Contract Clauses, � 20(b). With one
minor change (the addition of the words "this contract" preceding
the phrase "in whole or in part"), the above-quoted provision
repeats verbatim the language of the "Default" clause in the FAR
for fixed-price supply and service contracts. See FAR �
52.249-8(b). See also Cibinic & Nash, Administration, at 1002.
The Board has said on numerous occasions that where GPO adopts
the FAR contract provisions or other regulatory language as its
own, it will be presumed that the uniform interpretation given to
those words has also been accepted. See Graphidata, Inc., GPO
BCA 35-94 (June 14, 1996), slip op. at 99, 1996 WL _____
("Changes" clause); Sterling Printing, Inc., GPO BCA 20-89 (March
28, 1994), slip op. at 36, 1994 WL 275104 ("Disputes" clause);
McDonald & Eudy Printers, Inc., GPO BCA 40-92 (January 31, 1994),
slip op. at 11-12, 1994 WL 275096 ("Requirements" clause);
Shepard Printing, GPO BCA 37-92 (January 28, 1994), slip op. at
21-22, 1994 WL 275077 ("Requirements" clause); Banta Co., GPO BCA
3-91 (November 15, 1993), slip op. at 34, 1993 WL 526843
("Changes" clause). See also New South Press & Associates, Inc.,
GPO BCA 14-92 (January 31, 1996), slip op. at 47, 1996 WL 112555
(cost principles applicable to terminations for convenience);
Sterling Printing, Inc., GPO BCA 20-89 (August 12, 1994),
Decision Denying Second Motion for Reconsideration and Order,
slip op. at 3, 1994 WL _____ (procedural rule which allows only
one motion for reconsideration in any appeal). Indeed, the Board
has consistently administered GPO's "Default" clause, and the
rules pertaining thereto, in the same way that the Executive
Branch contract appeals boards and the courts apply the FAR
"Default" clause. See e.g., Gold Country Litho, supra, slip op.
at 13-17; Big Red Enterprises, GPO BCA 07-93 (August 30, 1996),
slip op. at 24-26, 1996 WL _____; Asa L. Shipman's Sons, Ltd.,
GPO BCA 06-95 (August 29, 1995), slip op. at 16-18, 1995 WL
818784, reconsid. denied, February 13, 1996; Univex
International, GPO BCA 23-90 (July 31, 1995), slip op. at 17-19,
1995 WL 488438, reconsid. denied, 1996 WL 112554 (February 7,
1996), Univex Supp., supra; K.C. Printing Co., GPO BCA 02-91
(February 22, 1995), slip op. at 9-12, 1995 WL 488531; Shepard
Printing, GPO BCA 23-92 (April 29, 1993), slip op. at 10-12, 1993
WL 526848; Stephenson, Inc., GPO BCA 2-88 (December 20, 1991),
slip op. at 18-20, 1991 WL 439274; Chavis and Chavis Printing,
supra, slip. op. at 9-13. Accord Lisbon Contractors v. United
States, 828 F.2d 759 (Fed. Cir. 1987)); Darwin Construction Co.,
Inc. v. United States, 811 F.2d 593 (Fed. Cir. 1987); Quality
Environment Systems v. United States, 7 Cl. Ct. 428 (1985);
Switlik Parachute Co. v. United States, 216 Ct. Cl. 362 (1978);
Sierra Tahoe Manufacturing, Inc., GSBCA No. 12679, 94-2 BCA �
26,771; Jamco Constructors, Inc., VABCA Nos. 3271, 3516T, 94-1
BCA � 26,405, reconsid. denied, 94-2 BCA � 26,792; Centennial
Leasing, GSBCA No. 12037, 94-1 BCA � 26,398; Walsky Construction
Co., ASBCA No. 41541, 94-1 BCA � 26,264, reconsid. denied, 94-2
BCA � 26,698; Swiss Products, Inc., ASBCA No. 40031, 93-3 BCA �
26,163; El Greco Painting Co., ENG BCA No. 5693, 92-1 BCA �
24,522; Kit Pack Co., Inc., ASBCA No. 33135, 89-3 BCA � 22,151;
J.F. Whalen and Co., AGBCA Nos. 83-160-1, 83-281-1, 88-3 BCA �
21,066.
The Respondent readily concedes that the Board correctly stated
the general rule when it said that defaulted contractors are
entitled to credit for any prompt payment discounts taken because
the Government is only entitled to recover its actual excess
reprocurement costs under the "Default" clause. See Futura
Systems, supra; Professional Window & House Cleaning, Inc.,
supra; Aerospace Components, Inc., supra; Industrial Fasteners
Ltd. of North America, supra. Contrary to GPO, the Board sees
nothing in the GAO Memorandum which would warrant a different
result in this case. Indeed, the Board believes that the general
rule is precisely the sort of "legal principle" which the GAO had
in mind when it indicated that GPO's practice of retaining prompt
payment discounts might satisfy the requirements of 44 U.S.C. �
309, but it could violate some "other legal principle." See GAO
Memorandum, at 5. In the final analysis, the Board finds no
reason, and the GAO Memorandum provides none, for making an
exception to the general rule in this case, and for treating a
defaulted contractor like a customer-agency.7 Accordingly, the
Respondent's contention that GPO should be allowed to retain the
prompt payment discount and figure its excess reprocurement costs
by simply comparing raw contract prices, as an exception to the
general rule, is dismissed for lack of merit.8
GPO's assertion that the PPR and the FAR both authorize the
retention of the prompt payment discount is equally unavailing.
In that regard, the PPR provides, in pertinent part:
. . .[T]he Contracting Officer shall make a written demand . . .
on the defaulted contractor for the total amount of such excess
[reprocurement costs] including increases or decreases in other
costs such as transportation and discounts.
See PPR, Chap. XIV, Sec. 1, � 3.f (3). [Emphasis added.] The
comparable provision in the FAR reads as follows:
. . . [T]he contracting officer shall, after completion and final
payment of the repurchase contract, make a written demand on the
contractor for the total amount of the excess, giving
consideration to any increases or decreases in other costs such
as transportation, discounts, etc.
See FAR, � 49.402-6(c). [Emphasis added.] Again, since the
critical language in both the PPR and the FAR is exactly the
same, the Board presumes that the uniform interpretation given to
those words by its Executive Branch counterparts has also been
accepted. See Graphidata, Inc., supra; New South Press &
Associates, Inc., supra; Sterling Printing, Inc., supra; McDonald
& Eudy Printers, Inc., supra; Shepard Printing, supra; Banta Co.,
supra.
From its reading of the cases, the Board believes that the
Respondent has misread the PPR. It is clear that the law and
regulations require the Government to basically take a "balance
sheet" approach in calculating excess reprocurement costs; i.e.,
in computing excess costs, all savings and losses must be
considered and balanced against each other not only to determine
the scope of the defaulted contractor's liability, but also to
see whether such costs may be assessed at all. See Lustro
Plastics Co., GSBCA Nos. 7300, 7301, 7302, 7303, 7304, 7305,
7474, 7475, 86-2 BCA � 18,814, at 94,813 (citing Racine Screw Co.
v. United States, 156 Ct. Cl. 256 (1962); Bowman's Transport Co.,
ASBCA Nos. 1088, 1089, 1092, 84-1 BCA � 17,217; Skiatron
Electronics & Television Corp., ASBCA No. 9513, 65-2 BCA � 5053).
See generally Cibinic & Nash, Administration, at 1042-44.
Consequently, the final excess cost figure might be composed of
various categories of additional costs incurred by the Government
in repurchasing the contract, see e.g. Mega Construction Co. v.
United States, 29 Fed. Cl. 396 (1993) (cost of repairing
defective workmanship and consultant's fees); Futura Systems,
supra (travel and reinspection costs); James W. Furst, PSBCA No.
3483, 95-1 BCA � 27,453 (administrative costs, including cost of
a transportation specialist); Milner Construction Co., DOTBCA No.
2043, 91-3 BCA � 24,195 (temporary storage of hazardous waste
materials during the repurchase period); Sealtite Corp., ASBCA
No. 34156, 90-2 BCA � 22,844 (cost of architect-engineering
firm); Landmark Interior Builders, Inc., GSBCA No. 8382, 91-1 BCA
� 23,386 (overtime for Government employees used to complete the
project); but see, Datronics Engineers, Inc. v. United States,
190 Ct. Cl. 196, 418 F.2d 1371 (1969) (travel costs incurred in
bringing Government personnel from distant location to perform
unskilled tasks was not allowed and the excess cost assessment
was reduced accordingly), offset by certain cost reductions
flowing to the benefit of the defaulted contractor, see e.g.
Schmalz Construction, Ltd., AGBCA No. 92-177-1, 94-1 BCA � 26,423
(deletion of right-of-way timber purchase requirement entitled
contractor to reduction in price); Foster Refrigerator Corp.,
ASBCA No. 320, 88-1 BCA � 20,398 (reprocurement price reduced to
reflect deletion of first article testing); Iran B. Tech
Enterprises, Ltd., ASBCA No. 24820, 81-2 BCA � 15,424 (assessment
reduced to account for constructive changes); Lee Manufacturing &
Engineering Co., ASBCA No. 22866, 79-1 BCA � 13,814
(reprocurement price adjusted to eliminate costs of additional
testing); American Dredging Co., ENGBCA No. 2920, 78-2 BCA �
13,494 (assessment reduced to account for differing site
condition). As the Board sees it, at its core this "balance
sheet" approach is nothing more than just another way of saying
that in repurchasing the defaulted work the Government has a duty
to mitigate the defaulted contractor's excess cost liability.
See e.g., Gold Country Litho, supra, slip op. at 30; Big Red
Enterprises, supra, slip op. at 44-45; Univex Supp., supra, slip
op. at 7-8; Asa L. Shipman's Sons, Ltd., supra, slip op. at
31-32; K.C. Printing, supra, slip op. at 21-22; Sterling
Printing, Inc., supra, slip op. at 67. Accord Cascade Pacific
International v. United States, 773 F.2d 287 (Fed. Cir. 1985);
American Marine Upholstery Co. v. United States, 170 Ct. Cl. 564,
345 F.2d 577 (1965); Ready-Buffaloes Pump, Inc., ENG BCA No.
6049, 96-1 BCA � 28,111; William A. Hailed, AGBCA Nos. 91-230-3,
92-133-3, 92-196-3, 93-1 BCA � 25,389; Barrett Refining Corp.,
ASBCA Nos. 36590, 37093, 91-1 BCA � 23,566; Old Dominion
Security, Inc., GSBCA No. 9126, 90-2 BCA � 22,745; Scala
Engineering Co. and Pike County Construction Co., A Joint
Venture, IBCA No. 2328, 89-3 BCA � 21,950; Sequal, Inc., ASBCA
No. 30838, 88-1 BCA � 20,382; Solar Laboratories, Inc., ASBCA No.
19957, 76-2 BCA � 12,115. Consistent with this viewpoint, the
Board is convinced that the phrase "increases or decreases in
other costs such as transportation and discounts" is just an
accounting yardstick, and that the word "transportation" merely
provides one example of a possible "add on" or "increase" in the
Government's costs on repurchase, see e.g., James W. Furst,
supra, while "discounts" refers to one type of transaction which
will "reduce" or "decrease" the final excess cost figure, see
e.g. Futura Systems, supra; Professional Window & House Cleaning,
Inc., supra; Aerospace Components, Inc., supra; Industrial
Fasteners Ltd. of North America, supra. Thus, the Board finds
nothing in the language of PPR, Chap. XIV, Sec. 1, � 3.f (3),
which would provide a regulatory basis for GPO to retain the
prompt payment discount when figuring the excess reprocurement
cost liability of the defaulted contractor. Indeed, the Board is
not aware of any decision from an Executive Branch contract
appeals board which has ruled otherwise with respect to FAR, �
49.402-6(c). Accordingly, the Respondent's assertion to the
contrary is also dismissed for lack of merit.
Even though the Government has not shown any legal or regulatory
grounds for reconsideration, it has brought to the Board's
attention such new facts as would warrant setting aside so much
of its Order refunding money to the Contractor. See Gold Country
Litho, supra, slip op. at 36-37. In that regard, as the
Respondent correctly surmises, when the Board directed GPO to
refund the "surplus" amount of excess costs, it was under the
impression that the Appellant's original liability of $12,106.00
had been fully satisfied, and that the Government would be
returning $2,093.38 from funds which it had already collected.
See Motion, at 3. The Board was unaware that the Respondent had
only recovered $455.00 from the Appellant, and that further
setoffs were not on the horizon because the Contractor had not
been awarded any more contracts. Id., Declaration of Erma H.
Collins. If the Board had known at the time that the Government
had only recouped a de minimis amount, and that there are no more
opportunities at present to collect additional sums to satisfy
its claim, the refund Order would not have been issued.
Consequently, the small amount of recovery and the lack of
further setoff sources constitute, in the Board's judgment, new
facts of such a material nature as would have changed the Board's
decision to award a refund, see Yachts America, Inc. v. United
States, supra; Warner v. Transamerica Insurance Co., supra;
United States v. Walus, supra; Danac, Inc., supra; M.C. & D.
Capital Corp., supra; Sunshine Cordage Corp., supra, or at least
such non-newly discovered evidence which must be considered to
prevent an injustice from occurring, see Turner Construction Co.,
supra; K-Square Corp., supra; G.M. Co. Manufacturing, Inc.,
supra. It was certainly not the Board's intention to reward the
Appellant's default, or permit either party to gain a "windfall"
in this dispute. See Gold Country Litho, supra, slip op. at 36;
Motion, at 3. Therefore, while the Board will not reconsider its
decision to place a maximum ceiling of $10,012.62 on the
Appellant's liability for excess costs in this case, it will
grant the Motion and vacate its Order to issue a refund of
$2,093.38.
ORDER
For all of the foregoing reasons, the Board finds and concludes
that the Respondent has presented grounds which would warrant
reconsideration of the Board's decision in this case.
ACCORDINGLY, insofar as the Government questioned the Board's
decision to refund $2,093.38 to the Appellant, the Motion is
GRANTED, and the Board's Order is VACATED. HOWEVER, insofar as
GPO requests that the Board reinstate the Respondent's original
assessment of excess reprocurement costs, the Motion is DENIED,
and the so much of the Order capping the Respondent's total
amount of recovery at $10,012.62 is AFFIRMED.9
It is so Ordered.
March 17, 1997 STUART M. FOSS
Administrative Judge
1 The Appellant did not seek reconsideration of the Board's
decision.
2 The U.S. Postal Service was unable to make delivery of the
Order because the Contractor had moved and returned it to the
Board. After obtaining the Appellant's new address, the Board
mailed a second copy of its Order, which the Contractor received.
3 Where such legal grounds can be shown, the Board will reverse
itself and grant the motion. See e.g., Swanson Reconsid., supra
(the Board overturned its initial decision declaring that the
contractor, who was party to a "requirements" term contract, was
entitled to convenience termination costs based on the estimated
contract price over its term, when the Government showed that the
contract in question was a multiple-award contract, and as such
was not a "requirements" contracts, as that term is understood in
procurement law. Citing Media Press, Inc. v. United States, 215
Ct. Cl. 985, 986 (1977)). On appeal by the contractor, the
Board's decision was affirmed by the U.S. Court of Federal
Claims. See Richard C. Swanson and Larry A. Ford, d.b.a. Swanson
Printing & Typesetting Co. v. United States, C.A. 94-185C (August
15, 1996) (unpublished).
4 In so ruling, the GAO rejected as "unconvincing" GPO's position
that a prompt payment discount is a financing matter between GPO
and its contractors. See GAO Memorandum, at 2, n. 3. In
essence, the GAO reasoned that while prompt payment discounts may
be an important matter from the financial perspective of a
commercial printer for reasons related to ensuring the smooth
flow of financing for its operations, no such claim could be made
with respect to the conduct of GPO's operations since the
discount is unrelated to the contractor's invoice price or the
actual cost of the printing work done. Id. The Respondent has
made the same argument to the Board. See Motion, at 1-2.
However, the Board finds GPO's position equally unpersuasive.
5 The first statute cited by GAO establishes GPO's revolving
fund, and provides, in pertinent part, that the fund shall be:
"reimbursed for the cost of all services and supplies furnished,
. . . at rates which include charges for overhead and related
expenses, . . ." 44 U.S.C � 309(b)(1). The second concerns
payments for printing, binding, blank paper, and supplies, and
states, in pertinent part, that: "[a]n executive department or
independent establishment of the Government ordering printing and
binding or blank paper and supplies from the Government Printing
Office shall pay promptly by check to the Public Printer upon his
written request, either in advance or upon completion of the
work, all or part of the estimated or actual cost, as the case
may be, . . . Adjustments on the basis of the actual cost of
delivered work paid for in advance shall be made monthly or
quarterly and as may be agreed by the Public Printer and the
department or establishment concerned." 44 U.S.C � 310.
6 As the Board noted in Chavis and Chavis Printing, the reason is
that the PPA, which was enacted to provide incentives for the
Federal Government to pay its bills on time, see H.R. REP. No.
97-461, 97th Cong., 2d Sess. 1, reprinted in 1982 U.S. CODE CONG.
& AD. NEWS 111, defines "agency" coverage in terms of the
Administrative Procedure Act (APA), 5 U.S.C. � 551 (1994).
Because GPO is an agency of the Legislative Branch of the Federal
Government, it does not fall within the confines of the APA, or
any other statute, such as the PPA, which uses the APA to define
its coverage. See Chavis and Chavis Printing, supra, slip op. at
7, n. 7. See also, Mayo v. Government Printing Office, 9 F.3d
1450, 1451 (9th Cir. 1993 (GPO excluded from coverage of the
Freedom of Information Act, 5 U.S.C. � 552 (1994); Gray Graphics
Corp. v. U.S. Government Printing Office, No. 82-2869, slip op.
at 6 (D.D.C. 1982) (unpublished) (GPO not covered by the Small
Business Act, 15 U.S.C. � 637 (1994). Accord Ethnic Employees
of the Library of Congress v. Boorstin, 751 F.2d 1405, 1416, n.
15 (D.C. Cir. 1985) (Freedom of Information Act). See generally,
Matthew S. Foss, U.S. Government Printing Office Board of
Contract Appeals: The First Decade, 24 PUB. CONT. 579, 595-96
(1995).
7 The GAO was careful to observe that customer-agencies were not
entitled to any benefit from GPO's taking a prompt payment
discount because, inter alia, not only was the decision to take
advantage of the discount exclusively GPO's, but also the
customer-agency "has no contractual relationship with the
contractor and no influence over the terms of the contract." See
GAO Memorandum, at 5. See also Graphicdata, Inc., supra, slip
op. at 60 (while the customer-agency was certainly an active
"participant" in the contract by virtue of its "direct-deal"
authority, it was not a party). That is certainly not the case
with defaulted contractors-they have a continuing relationship
with GPO arising from the defaulted contract until their debt to
the Government is satisfied or is otherwise canceled.
8 Obviously, the rule only applies if the Government, in fact,
assesses excess reprocurement costs, and takes the discount from
the repurchase contractor. Cf. B.P. Printing and Office
Supplies, GPO BCA 22-91 (February 5, 1993), slip op. at 5, n. 7,
1993 WL 311371 (cost of repurchase less than the original
contract price so no excess costs assessed).
9 The Board notes that the PPR also provides that: "[i]f the
contractor fails to make payment, the Voucher Examination Branch
shall take appropriate action to collect the amount due." See
PPR, Chap. XIV, Sec. 1, � 3.f (3). [Emphasis added.] Therefore,
in so ruling, the Board is mindful that apart from the statutory
right of administrative offset, see 31 U.S.C. � 3716, which seems
to be the only collection tool used by GPO to recover excess
costs from the Appellant so far, the law also provides the
Respondent with other means to collect the debt, see 31 U.S.C. �
3711, and it may eventually choose to invoke them.