BOARD OF CONTRACT APPEALS
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON, DC 20401
In the Matter of )
)
the Appeal of )
RIM ADVERTISING ) Docket No. GPO BCA 38-94
Program 2052-S )
Purchase Order R-0298 )
For the Appellant: RIM Advertising, Billings, Montana 59108, by
Donald W. Kuntz, Owner (pro se).
For the Government: Kerry L. Miller, Esq., Associate General
Counsel, U.S. Government Printing Office.
Before FOSS, Administrative Judge.
DECISION AND ORDER
I. STATEMENT OF THE CASE
On December 5, 1994, the Board received a letter from RIM
Advertising (Appellant or Contractor), P.O. Box 80644, Billings,
Montana 59108, appealing the final decision of Contracting
Officer Michael J. Atkins, dated October 18, 1994, of the U.S.
Government Printing Office's (Respondent or GPO or Government),
Seattle Regional Printing & Procurement Office, 4735 East
Marginal Way, South, Seattle, Washington 98134 (SRPPO), denying
the Appellant's equitable adjustment claim of $8,370.33, under
its contract identified as Program 2052-S, Purchase Order R-0298
(R4 File, Tab).1 See Board Rules, Rules 1(a) and 2. The
contract in question is a "requirements" contract, and the
adjustment request was based on the Government's alleged failure
to place sufficient orders.2 For the following reasons, the
Contracting Officer's final decision is hereby AFFIRMED, and the
appeal is DENIED.
II. BACKGROUND
1. The contract at issue, Program 2052-S, was a single-award,
"requirements" agreement covering the production of multiple
volumes of court records for the Department of Agriculture, U.S.
Forest Service, Missoula, Montana (hereinafter Forest Service or
customer-agency), involving such operations as copying, binding,
packing, and delivery, for the term beginning June 1, 1993, and
ending May 31, 1994 (R4 File, Tab A, at 5). This agreement was
only the second such contract requisitioned by the Forest
Service. See Notice of Filing, dated July 21, 1995, Declaration
of Donna Crahay, � 4 (hereinafter Crahay Declaration);
Declaration of William Antonich, � 2 (hereinafter Antonich
Declaration).
2. The contract, which incorporated GPO Contract Terms by
reference, also contained GPO's standard "requirements" clause,
which provides, in pertinent part:
This is a requirements contract 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.3
Except as otherwise provided in this contract, the Government
shall order from the contractor all the items set forth which are
required to be purchased by the Government activity identified on
page 1.4
See R4 File, Tab A, at 3.
3. The contract specifications also told the Contractor that: (1)
there would be approximately 10 orders per year; (2) the average
order would consist of 15 copies; (3) an estimated five to 50
volumes, with approximately 500 to 600 pages per volume (550
pages on average), would comprise each order; (4) copying
operations would be required on three different page sizes-8-1/2
x 11", 8-1/2 x 14"; and 11 x 17"; and (5) the 8-1/2 x 14"; and 11
x 17" pages would fold (R4 File, Tab A, at 5, "Frequency of
Orders," "Quantity," "Number of Pages," and "Trim Size" clauses).
Furthermore, the specifications estimated that copying would be
required for 1,214,220 8-1/2 x 11" pages, while 12,390 copies
each would be needed for page sizes 8-1/2 x 14" and 11 x 17" (R4
File, Tab A, at 8, "Determination of Award" provision). These
work estimates were based on the previous agreement, after the
Forest Service had reviewed those figures and indicated to GPO
that its needs were unchanged. See Crahay Declaration, �� 4-6;
Antonich Declaration, � 3.5 At the time, there was no reason to
believe that the number of orders would substantially deviate
from the prior contract. See Crahay Declaration, �� 6; Antonich
Declaration, � 5.
4. The Respondent received three bids on the contract-from
Copies, Etcetera (which held the previous contract), Denny's Copy
Stop, and the Appellant (R4 File, Tab B). On May 25, 1993, GPO
issued Purchase Order R-0298 awarding Program 2052-S to the
Contractor for $36,303.28, the low bid (R4 File, Tab C).
5. Shortly afterward, the Contractor received an order for a
small copy job of about 35,000 pages (R4 File, Tab D). There is
no dispute that this was the only copy work ordered by the Forest
Service under the contract. See SRPTC, at 4, n. 5.
6. On August 19, 1994, after the contract expired, the
Appellant wrote to Contracting Officer Atkins, asking for
"reasonable compensation for the lack of performance" on Program
2052-S; i.e., an equitable adjustment (R4 File, Tab D). The
Contractor thought that 10 percent of the contract price
($3,630.33), as well as $4,740.00 for "machine payments," or
$8,370.33 all told, would be "reasonable compensation" under the
circumstances (R4 File, Tab D).
7. On October 18, 1994, Contracting Officer Atkins issued his
final decision rejecting the Appellant's claim because, inter
alia, the "Requirements" clause of the contract expressly states
that the Government's work estimates do not constitute the basis
for an equitable price adjustment under the contract (R4 File,
Tab E).
8. The Contractor timely appealed the Contracting Officer's
final decision on December 5, 1994 (R4 File, Tab F).
III. ISSUES PRESENTED
1. Were the Government's workload estimates for Program 2052-S
negligently prepared because it failed to foresee that the
quantity of copying forecast for the term of the agreement might
never materialize? Stated otherwise, did the Government neglect
to use all relevant information that was reasonably available to
it in establishing the estimates in the solicitation?
2. Assuming arguendo that the Government estimates were
negligently prepared, has the Appellant proved its claim in the
amount of $8,370.33, or is it entitled to compensation of some
lesser amount?
IV. SUMMARY POSITIONS OF THE PARTIES6
A. Appellant
The Appellant essentially argues that it was promised a large
volume of work as an inducement for accepting Program 2052-S,
indeed, as much as 200,000 copies within a few days of award, but
the work never materialized. See App. Brf., at 1; SRPTC, at 4.
Furthermore, the Contractor states that it constantly checked
with the Forest Service about placing more orders, but was told
the small copy order of 35,000 pages was all the reproduction
work the customer agency had.7 Id. The Appellant contends that
in its experience, contracts such as Program 2052-S are usually
fulfilled to within 80 or 90 percent of the estimated workload,
and that it is not unreasonable to expect the Government to order
10 percent of the work, as a "bare minimum." See SRPTC, at 5;
Kuntz Affidavit, �5. Accordingly, the Contractor submits that it
is entitled to additional compensation to the extent of its
claim; i.e., $8,370.30.8 Id.
B. Respondent
In response, the Respondent states that the claim should be
denied for two reasons. First, GPO contends that under the
express language of the "Requirements" clause, the Government
merely promises to purchase all of its requirements from the
Contractor, but does not guarantee a specific dollar amount of
work under the contract.9 See Res. Brf., at 4-5; SRPTC, at 5.
Furthermore, GPO relies on the clause's disclaimer, which
provides that failure to order the estimated items or quantities
will not form the basis for an equitable adjustment, as the basis
for excusing the Government from any liability in this case.10
Id. Indeed, the Respondent asserts even if there is a
significant variation between the contract estimates and the
amount of its actual purchases, the Government is protected from
any liability. See Res. Brf., at 5 (citing Clearwater Forest
Industries, Inc. v. United States, 227 Ct. Cl. 386, 650 F.2d 233
(1981); Womack v. United States, 182 Ct. Cl. 399, 389 F.2d 793
(1968) (hereinafter Womack)). In so many words, the only
obligation assumed by the Government under a "requirements"
contract is to allow the contractor to satisfy all of its actual
needs at the contract rate-it is not liable for unordered
supplies, and indeed, it may not even have any requirements at
all during the contract term.11 Id. (citing Folge & Co. v.
United States, 135 F.2d 117 (4th Cir. 1943); National Laundry Co.
v. United States, 63 Ct. Cl. 626 (1927); AGS-Genesys Corp., ASBCA
No. 35302, 89-2 BCA � 21,702; Alamo Automotive Service, Inc.,
ASBCA No. 8815, 63 BCA � 3830; Metro Industrial Painting Corp.,
ASBCA No. 6328, 62 BCA � 3343). Moreover, GPO observes that in
the past the Board itself has relied on these principles in
denying equitable adjustment claims by contractors. See Res.
Brf., at 6 (citing Shepard Printing, supra; B & W Press, GPOCAB
9-83 (March 8, 1984), 1984 WL 148109; Central Data Processing,
GPOCAB 74-14 (January 7, 1975), 1975 WL 22179); SRPTC, at 5.12
Therefore, the Government says that since it met its contractual
commitments by purchasing all copying work from the Appellant
during the contract term, no equitable adjustment is warranted.
See Res. Brf., at 6-7 (citing Torncello v. United States, 231 Ct.
Cl. 20, 681 F.2d 756 (1982); Media Press, Inc. v. United States,
215 Ct. Cl. 985 (1977)); SRPTC, at 5.
Second, the Respondent states that while it had a duty under the
"Requirements" clause to exercise due care in developing its
estimates, see Res. Brf., at 7 (citing Crown Laundry and Dry
Cleaners, Inc. v. United States, 29 Fed. Cl. 506 (1993)
(hereinafter Crown Laundry); Dynamic Science, Inc., ASBCA No.
29510, 85-1 BCA � 17,710; Huff's Janitorial Service, ASBCA No.
26860, 83-1 CA � 16,518), it disagrees that the "negligent
estimates" issue is before the Board,13 id., at 8 (citing cf.
Shepard Printing, supra; Dynamic Science, Inc., supra).
Nonetheless, GPO argues that the work estimates in this case were
not negligently prepared because they were based on the Forest
Service's experience under the first contract. See Res. Brf., at
8-9; SRPTC, at 5. However, because the Forest Service was not
involved in as many law suits under this contract, there was a
decrease in the amount of actual copying work. Id. Besides, as
a rule, a change in the Government's needs does not entitle a
contractor to relief. See Res. Brf., at 9-10 (citing Shepard
Printing, supra; Tennessee Valley Authority v. Imperial
Professional Coatings, 599 F.Supp. 436 (E.D. Tenn. 1984); Henry
Barracks Housing Corp. v. United States, 281 F.2d 196 (Ct. Cl.
1960); AGS-Genesys Corp., supra; East Bay Auto Supply, Inc.,
ASBCA No. 25542, 81-2 BCA �15,204; Solano Aircraft Service, Inc.,
ASBCA Nos. 20677, 20941, 77-2 BCA � 12,584; Gulf Coast Aviation,
ASBCA Nos. 10189, 10380, 65-2 BCA � 4928; Metro Industrial
Painting Corp., supra). Accordingly, GPO believes that under
these circumstances, the Contractor is not entitled to any extra
compensation under the contract, and urges the Board to affirm
the Contracting Officer's final decision.14 See Res. Brf., at
10, 13; SRPTC, at 5.
IV. DECISION
This appeal raises for only the third time in the combined annals
of the Board and the ad hoc panels which preceded it, a direct
challenge to the workload estimates of a "requirements" contract-
the other two cases being Graphicdata, Inc., supra, and
Datagraphics Press, Inc., (GPOCAB, June 23, 1978), 1978 WL 22342.
The adjudicatory history of this agency, which the Board supposes
mirrors the experience of its Executive Branch counterparts,
discloses that in most "requirements" contract disputes, the
validity of the estimates is a tangential matter, since the
typical complaint is that either too few orders were placed
according to the estimates, see e.g., Shepard Printing, supra;
McDonald and Eudy Printers, Inc.; supra; Information Systems,
Inc., supra; Central Data Processing, supra, or too many, see
e.g., Graphicdata, Inc., supra; R.C. Swanson Printing and
Typesetting Co., GPO BCA 31-90 (February 6, 1992), 1992 WL
487874; Tamms Lithography, Inc., GPO BCA 14-89 (July 13, 1990),
1990 WL 454986; B & W Press, supra. Accord Medart, Inc. v.
Austin, supra (less work); Perini Corp. v. United States, 180 Ct.
Cl. 768, 381 F.2d 403 (1967) (excess orders); LB & M Associates,
Inc., DOTBCA No. 2905, 96-1 BCA � 28,173 (less work); Independent
Manufacturing and Service Companies of America, Inc., ASBCA No.
47199, 95-1 BCA � 27,56 (excess work); California Bus Lines,
Inc., ASBCA No. 42181, 91-3 BCA � 24,341 (less work); Command
Tech Corp., ASBCA No. 40318, 90-3 BCA � 23,215 (less work) (cited
in McDonald and Eudy Printers, Inc.; supra, slip op. at 16); The
Tommy Nobis Center, Inc., GSBCA Nos. 8988-TD, 9420-TD, 89-3 BCA �
22,112 (excess orders); Robert H. O'Hair and O'Hair Construction
Co., a joint venture, AGBCA No. 82-115-1, 89-1 BCA � 21,384
(excess orders); LFS, Inc., LBCA No. 82-BCA-10, 84-2 BCA � 17,306
(excess orders); Miltex Industries, Inc., ASBCA Nos. 19449,
20886, 77-2 BCA � 12,768 (excess orders); Sponge Fishing Co.,
GSBCA No. 1386, 65-1 BCA � 4627 (excess orders). This appeal
falls into the "too few" category.
As previously noted, although the Appellant is demanding an
equitable adjustment because there was less work under the
contract than the Government's estimates showed, it also
acknowledges that "yearly contracts do not have to guarantee the
contractor anything."15 Therefore, the scope and meaning of
GPO's "Requirements" clause is not at issue in this appeal. See
Graphicdata, Inc., supra, slip op. at 55; Shepard Printing,
supra, slip op. at 20-23; McDonald and Eudy Printers, Inc.;
supra, slip op. at 11-14. Both the Appellant and the Respondent
also agree that Program 2052-S is a "requirements" contract, and
fully understand the legal consequences such an arrangement with
respect to the rights and obligations of the contracting parties.
With specific regard to the "negligent estimates" issue, however,
the Government's liability, if any, is tied to its pre-
solicitation conduct which wound up planting contractual land
mines for the innocent and unsuspecting contractor. See
Graphicdata, Inc., supra, slip op. at 55. Therefore, the Board
needs to take a moment to clarify its jurisdiction in this case,
because the source of its remedial powers is quite different from
those exercised by its Executive Branch counterparts operating
under the auspices of the Contract Disputes Act, 41 U.S.C. �� 601
et seq. (hereinafter CDA).
For years, whenever they have had to described the parties'
rights and obligations under a "requirements" contract, the Board
and the ad hoc panels usually repeated, in almost mantra-like
fashion, the accepted principle that the Government's obligation
is merely to exercise due care in preparing its estimates, see
Shepard Printing, supra, slip op. at 23-24; McDonald and Eudy
Printers, Inc.; supra, slip op. at 15; Datagraphics Press, Inc.,
supra, slip op. at 7 (". . . the Government is only required to
produce as accurate an estimate as possible." Citing Womack,
supra), and thus no equitable price adjustment is available to
the contractor in the absence of evidence that the Government has
been negligent in the preparation of its estimates, see
Graphicdata, Inc., supra, slip op. at 56; McDonald and Eudy
Printers, Inc.; supra, slip op. at 19. However, as explained by
the Department of Veterans Affairs Board of Contract Appeals
(VABCA):
The rationale for holding the Government liable for a
contractor's damages resulting from negligently prepared
estimates in its requirements contracts is that the contractor
has reasonably relied upon such estimates in the preparation of
its unit price(s) to the Government for such services. Since the
contractor then agrees to be bound to provide such services to
the Government at the price(s) bid, the Government is equally
bound to use its best information in preparing the quantity
estimates upon which the contractor has relied. Womack v. United
States [12 CCF � 81,795], 182 Ct. Cl. 399, 412-13, 389 F.2d 793,
800-01 (1968).
It thus follows that failure to exercise due care in preparing
estimates, coupled with a contractor's financial losses directly
attributable to reasonable reliance on such estimates, subjects
the Government to liability. Since there is no remedy-granting
clause in the contract itself, the negligent misrepresentation
can be pursued as a common law breach of contract. Alert Care
Ambulance Service, VABCA No. 2844, 90-3 BCA � 22,945; Atlantic
Garages, Inc., GSBCA No. 5891, 82-1 BCA � 15,479, at 76,711.
See Ambulance Service & Transport of Marlin, VABCA Nos. 3485,
3486, 94-2 BCA � 26,729, at 133,005. [Emphasis added.] See also
Everett Plywood & Door Corp. v. United States, 190 Ct. Cl. 80.
90-91. 419 F.2d 425, 430-31 (1969).
Unlike the VABCA, the Board is not a creature of statute, but
rather derives all of its powers from the "Disputes" clause of
the contract itself, and thus its jurisdiction is narrowly
defined. See e.g., R.C. Swanson Printing and Typesetting Co.,
GPO BCA 15-90 (March 6, 1992), slip op. at 26-27, 1992 WL 382924;
The Wessel Co., Inc., supra, slip op. at 32; Automated Datatron,
Inc., GPO BCA 20-87 (March 31, 1989), slip op. at 4-5, 1989 WL
384973; Bay Printing, Inc., GPO BCA 16-85 (January 30, 1987),
slip op. at 9, 1987 WL 228967; Peak Printers, Inc., GPO BCA 12-85
(November 12, 1986), slip op. at 6, 1986 WL 181453. See
generally, Matthew S. Foss, U.S. Government Printing Office: The
First Decade, 24 PUB. CONT. L.J. 579, 584-85 (ABA 1995)
(hereinafter Foss, The First Decade). Specifically, as the Board
interprets GPO Instruction 110.10C-its "enabling statute"-and the
jurisdictional provisions of its rules of practice and procedure,
see Board Rules, Preface to Rules, � I (Jurisdiction), it sees
its authority as purely derivative and contractual, and has
consistently confined the exercise of its remedial powers to the
contract before it. See Graphicdata, Inc., supra, slip op. at
57; Shepard Printing, Inc., supra, slip op. at 9, fn. 8; R.D.
Printing Associates, Inc., GPO BCA 2-92 (December 16, 1992), slip
op. at 9, 13, ns. 9, 15, 1992 WL 516088; Peak Printers, Inc.,
supra, slip op. at 6. See also Automated Datatron, Inc.,supra,
slip op. at 4-5 ("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."). Accord Wehran Engineering Corp., GSBCA No.
6055-NAFC, 84-3 BCA � 17,614. See generally, Foss, The First
Decade, at 585-86. Consequently, the Board has followed the
trail blazed by the ad hoc panels and steadfastly refused to
entertain "pure" breach of contract claims, that is claims for
damages not redressable under a specific contract provision, on
the twin grounds that because of its limited jurisdiction it can
only mine for remedies in the contract clauses themselves, and
that any breach decision it might render would be no better than
an advisory opinion. See Graphicdata, Inc., supra, slip op. at
58; R.C. Swanson Printing and Typesetting Co., supra, slip op. at
30-35; The Wessel Co., Inc., supra, slip op. at 27, fn. 29, 33-41
(citing United States v. Utah Construction and Mining Co., supra,
384 U.S. at 407-11; Blake Construction Co., Inc., GSBCA No. 2205,
67-1 BCA � 6,311, at 29,197-98); Cloverleaf Enterprises, Inc.,
supra, slip op. at 11; Microform Data System, Inc., GPOCAB 3-79
(February 1, 1980), slip op. at 10-12, 1980 WL 81258; Information
Systems, Inc., supra, slip op. at 5-6. See also H.L. Eikenberg
Co., GPOCAB 76-13 (May 9, 1979), slip op. at 35, fn. 21 ("The
Board can only grant relief in situations where an administrative
remedy is provided under some remedy or relief clause in the
contracts." Quoting Federal Food Marketers Co., AGBCA Nos. 447,
448, 76-1 BCA � 11,709, at 55,82. (Citations omitted.)). See
generally, Foss, The First Decade, at 587.
Therefore, the Appellant's "negligent estimates" claim would
seem to be beyond the reach of the Board since it has no
access to the traditional means for rectifying such
Government nonfeasance. However, the Court of Federal
Claims has provided the solution to this conundrum. In
Crown Laundry, the Court said:
In Womack v. United States, 182 Ct. Cl. 399, 401, 389 F.2d, 801
(1968), the Court of Claims pointed out that the government was
obligated to base solicitation estimates on "all relevant
information that is reasonably available to it." If the critical
element in this summary judgment matter is what relevant
information was available to Redstone Arsenal procurement
personnel relative to the estimate formulation utilized in the
solicitation at issue in this case, then the case is not ripe for
decision at this time. Indeed, the other areas were plaintiff is
critical of the government's estimate formulation practice and
procedure likewise needs to be ventilated at trial. On the other
hand, if the issue is confined to the question of reasonableness
of the government's estimate formulation and attendant
circumstances, then summary judgment is appropriate.
See Crown Laundry, supra, 29 Fed. Cl. at 522. [Emphasis added.]
Reviewing the reasonableness of actions by GPO Contracting
Officers is within the inherent authority of the Board, and is
accomplished by applying the so-called "abuse of discretion"
test. See Asa L. Shipman's Sons, Ltd., GPO BCA 6-95 (August 29,
1995), slip op. at 18, 1995 WL 818784, reconsid. denied, 1996
WL_____(February 13, 1996); Univex International, supra, slip op.
at 19; Graphic Image, Inc., GPO BCA 13-92 (August 31, 1992), slip
op. at 25, 1992 WL 487875; Atlantic Research Corp., GPO BCA 22-87
(July 10, 1989), slip op. at 5-6, 1989 WL 384985. Accord Darwin
Construction Co. v. United States, 811 F.2d 593 (Fed. Cir. 1987);
Quality Environment Systems v. United States, 7 Cl. Ct. 428
(1985); Jamco Constructors, Inc., VABCA Nos. 3271, 3515T, 94-1
BCA � 26,405, reconsid. denied, 94-2 BCA � 26,792; Walsky
Construction Co., ASBCA No. 41541, 94-1 BCA � 26,264, reconsid.
denied, 94-2 BCA � 26,698. It is on that basis that the Board
assumes jurisdiction over the "negligent estimates" issue. See
Graphicdata, Inc., supra, slip op. at 59.
The Board's analysis begins with three observations. First, only
the Appellant and GPO were the parties to the contract in
question. See GPO Contract Terms, Contract Clauses, � 1
(Contractual Authority).16 See also Graphicdata, Inc., supra,
slip op., at 60; B & B Reproductions, supra, slip op. at 37-38
(citing PPR, Chap. I, Sec. 2 (Definition of "Contracting
Officer), Sec. 3, � 2(d) (Procurement Authority-Contracting
Officers); RD Printing Associates, Inc., supra, slip op. at 10,
fn. 11. Thus, while the Forest Service was certainly an active
"participant" in the contract by virtue of its "direct-deal"
authority, it was not a party. Second, there is no disagreement
about the standard of care in these sorts of cases-the
Government's estimates should be realistic, and based on "all
relevant information that is reasonably available to it;" i.e.,
the most current information available. See Crown Laundry,
supra, 29 Fed. Cl. at 522 (citing Womack, supra); Medart, Inc. v.
Austin, supra, 967 F.2d at 582; Contract Management, Inc., ASBCA
No. 44885, 95-2 BCA � 27,886, at 139,107 (citing FAR � 16.503(a)
(1));17 Fa. Kammerdiener GmbH & Co., KG, ASBCA No. 45248, 94-3
BCA � 27,197, at 135,554; Ambulance Service & Transport of
Marlin, supra, 94-2 BCA at 133,005. See also Integrity
Management International, Inc., ASBCA Nos. 34802, 35412, 36149,
37140, 89-3 BCA � 21,996; Crown Laundry & Dry Cleaners, Inc.,
ASBCA No. 28889, 85-2 BCA � 18,003. In simple terms, the
Government is not free to carelessly guess at its needs. See
Crown Laundry, supra, 29 Fed. Cl. at 520; Medart v. Austin, 967
F.2d at 581. Therefore, if the contractor can prove by a
preponderance of the evidence that the Government's estimates are
unreasonably inaccurate because it failed to exercise due care,
and that it relied on those faulty estimates to its detriment in
bidding, then the risk of any shortfall, which is normally the
contractor's under a "requirements" contract, shifts to the
Government and it will be held liable. See Crown Laundry, supra,
29 Fed. Cl. at 519-20; Timber Investors, Inc. v. United States,
supra, 587 F.2d at 478; Womack, supra, 389 F.2d at 801-02;
Contract Management, Inc., supra, 95-2 BCA at 139,107-08 (citing
Chemical Technology, Inc. v. United States, supra, 645 F.2d at
947-48); Fa. Kammerdiener GmbH & Co., KG, supra, 94-3 BCA at
135,554 (citing Apex International Management Services, Inc.,
ASBCA Nos. 37813, 38178, 38224, 38278, 38297, 38354, 38514, 94-1
BCA � 26,299); Ambulance Service & Transport of Marlin, supra,
94-2 BCA at 133,005; Alert Care Ambulance Service, supra, 90-3
BCA at 115,179. Unless this were the rule, then Government-
furnished data in a bidding invitation, whether an estimate,
"historical" material, or empirical data, which was not developed
from relevant, current and available information, would be
"surplusage at best or deception at worst." See Womack, supra,
389 F.2d at 801. See also Emerald Maintenance, Inc., ASBCA No.
42908, 94-2 BCA � 26,904, at 133,970. Finally, the "all relevant
and reasonably available information" rule concerns matters of
time, or more properly timing. Perhaps the most quoted phrase
from the Womack decision is the Court of Claims' statement that
the Government "is not required to be clairvoyant . . .".
Womack, supra, 389 F.2d at 801. See also Graphicdata, Inc.,
supra, slip op. at 62; Shepard Printing, supra, slip op. at
20-23; McDonald and Eudy Printers, Inc.; supra, slip op. at
11-14; Datagraphics Press, Inc., supra, slip op. at 7. Accord
Contract Management, Inc., supra, 95-2 BCA at 139,108; Fa.
Kammerdiener GmbH & Co., KG, supra, 94-3 BCA at 135,554;
Integrity Management International, Inc., supra, 89-3 BCA at
110,605. Accordingly, as the Board said in Graphicdata, Inc.,
"to paraphrase a famous question from the Watergate era, the
central issue in this case boils down to-'What did the
Contracting Officer know, and when did he know it?'" See
Graphicdata, Inc., supra, slip op. at 62.
There is no dispute that the Appellant relied on the work
estimates in the contract in formulating its bid. Therefore, if
the Contractor is to prevail on its "negligent estimates" claim
it must prove, by a preponderance of the undisputed material
evidence, that the inaccuracy of those workload figures was a
direct consequence of the Respondent's failure to exercise due
care in preparing them. In other words, its evidence must show
that before the award of the contract, GPO was aware of, but
failed to take into account, all relevant and reasonably
available information when developing the contract work
estimates. See e.g., Crown Laundry, supra (by not checking out
or verifying the estimates provided by the user activities which
the contracting officer felt were "exaggerated" as a hedge
against the possibility of increased needs in the future-
estimates which were nothing more than wild guesses and which
were admittedly inaccurate-before the solicitation containing
them was put out for bids, the Government failed to exercise
reasonable care and was liable to the contractor for damages);
Contract Management, Inc., supra (Government contractual
estimates of custodial requirements which were based on the prior
year's fixed-price contract, were negligent because they were not
revised to account for a projected funding shortfall which was
known before award-the most current financial information
available-so that the subsequent reduction of work for budgetary
reasons warranted an equitable adjustment in favor of a
janitorial contractor that was misled by the unadjusted original
estimate); Fa. Kammerdiener GmbH & Co., KG, supra (Government
estimates were negligent under a contract for floor sanding and
sealing work in unoccupied Army housing units where the
contracting officer awarded the contract using the original
estimates, which predicted certain dates of unoccupancy, without
considering a so-called "stop loss" order, which he received
before award, that kept the troops in place and made the dates
that the units would become vacant uncertain, or without revising
the estimates or making the uncertain occupancy dates known the
contractor); Ambulance Service & Transport of Marlin, supra
(although the Government contended that its estimates under two
"requirements" contracts for ambulance services were prepared in
good faith using the best available historical data combined with
anticipated future needs, the board found that it had not
properly assessed the information in its possession regarding
past usage and projected needs in developing the estimates or
considered all of the relevant, available information; thus, the
Government failed to exercise due care and was liable to the
contractor for damages resulting from the contractor's reasonable
reliance on those negligently prepared estimates); Alert Care
Ambulance Service, supra (Government failed to exercise due care
in preparing its quantity estimates for each type of trip it
required in its solicitation for ambulance services, because
neglected to use historical data and also relied estimates for
earlier contracts which had proven to be inaccurate; i.e., there
was no rational basis for the projected ambulance usage which was
significantly overstated). See also Pruitt Energy Sources, Inc.,
supra (Government's estimates of work under a "requirements"
contract for computer services were grossly and unreasonably
inadequate because it: (a) applied, without adjustment, a year's
worth of historical data on service calls to the contract base
period of less than seven months; (b) inflated the estimate for a
one-year option period by proportionally increasing the already
inflated seven-month base period estimate; (c) accounted for a
300 percent increase in its computer equipment inventory by
multiplying the estimate by three to take care of the overlap
between the period during which the inventory increased and the
period during which the government had gathered its historical
service call data, thus engaging in double counting; and (d)
guessed at the average travel time per service call, without
regard to available information as to where most of the equipment
was located and where most service calls had occurred in the
past).
Similarly, the parties agree that, performance-wise, the
Government's estimates were inaccurate, perhaps whoppingly so,
since the actual amount of work placed under the contract was
substantially less than anticipated. On the other hand, while
the size of the discrepancy looks suspicious, much like a
telltale column of smoke in the distance, that fact alone is
insufficient to prove that the Government failed to exercise due
care when it prepared its work estimates for Program 2052-S. See
Medart, Inc. v. Austin, supra, 967 F.2d at 581; Crown Laundry,
supra, 29 Fed. Cl. at 520; Clearwater Forest Industries, Inc. v.
United States, 227 Ct. Cl. 386, 650 F.2d 233, 240 (1981); Womack,
supra, 389 F.2d at 802; Pruitt Energy Sources, Inc., supra, 95-2
BCA at 138,828; Alert Care Ambulance Service supra, 90-3 BCA at
115,180. See also Emerald Maintenance, Inc.,supra, 94-2 BCA at
133,970 (fact that actual experience varies significantly from
data furnished in a Government solicitation does not, standing
alone, create liability nor shift to the Government the burden of
proving the reasonableness of its data); Gulf Construction Group,
Inc., ENG BCA No. 5964, 94-1 BCA � 26,524 (disparity with
estimates alone do not show that estimates are prepared without
due care). What it does mean, however, is that the magnitude of
the forecasting error, when considered in light of other factors,
might be the final link in a chain of evidence presented by the
Appellant to show that the Government's estimates were
negligently prepared. See Pruitt Energy Sources, Inc., supra,
95-2 BCA at 138,828 (citing Ambulance Service & Transport of
Marlin, supra). Compare Crown Laundry, supra (failure to verify
estimates plus 45 percent shortfall was evidence of negligent
preparation); Pruitt Energy Sources, Inc., supra (estimates based
on faulty computation methods which resulted in an 84 percent
shortfall were negligent); Fa. Kammerdiener GmbH & Co., KG, supra
(Government negligence found in a failure to revise original
estimates in light of a "stop loss" order received before award
of the contract that changed vacancy dates of housing units and
led to a 90 percent shortfall); Ambulance Service & Transport of
Marlin, supra (shortfalls of 46 percent and 72 percent,
respectively, on two contracts for transportation services were
the result of the Government's failure to account for past
shortfalls and future projections of decreased hospital usage in
preparing its estimates); and Alert Care Ambulance Service supra
(Government's estimates were significantly overstated by 41
percent because it failed to use historic data and relied on
inaccurate estimates in earlier contracts), with Medart, Inc. v.
Austin, supra (Government estimates based the previous year's
demand for metal storage cabinets were reasonable notwithstanding
a shortfall in actual orders of between 24 percent and 70 percent
for the four types of cabinets covered by the contract); Gulf
Construction Group, Inc., supra (no showing of basis for
estimates so overrun of 115 percent not proof of negligent
preparation); Integrity Management International, Inc., supra
(using the historical workload under the predecessor contract and
adjusting for certain foreseeable factors such as the level of
troop strength, was a rational approach for developing estimates
for laundry services even though there were shortfalls of 10.7
percent and 44.6 percent, respectively, in actual work ordered
under the two parts of the contract); Datagraphics Press, Inc.,
supra (GPO estimates based on the status of United States Postal
Service postal rate proceedings were not negligently prepared
despite an 18 percent shortfall in actual orders). Consequently,
in a case like this the spotlight is trained on how the
Government arrived at the estimates relied on by the bidding
contractor, rather than on the contractor's subsequent financial
position stemming from the failure of the actual level of work to
represent some reasonable relationship to the Government's
projections.
In this case, the Government's estimates were prepared by Donna
Crahay, a Printing Specialist in the SRPPO. As Crahay describes
the process:
. . . [I] developed the basis of award estimates that are
contained in the Program 2052-S (June 1, 1993-May 31, 1994) IFB
by reviewing the Print Orders and determining actual quantities
ordered the previous year. I estimated the frequency of orders
by adding the total number of orders placed and dividing the
number of months (and ultimately reducing that total by two
orders). I estimated the number of volumes and the number of
orders from the previous year's print orders. . . .
Based on the actual volume of work performed on Program 2052[-S]
for the period June 1, 1992-May 31, 1993, which exceeded our
original estimates for that contract, I believed that the amount
of copying that could be expected for the June 1, 1993-May 31,
1994, contract period would be higher. I had no reason to
believe that the copying requirements would decrease from the
previous year's actual requirements.
See Crahay Declaration, �� 5, 6. Furthermore, Antonich confirms
that:
In February 1993, the [SRPPO] sent me a draft of the IFB and
asked for my review. I did so, and after making certain
modifications, returned the specification to GPO.
* * * * * * * * * *
At the time of my review of the Program 2052-S specifications, I
had no reason to believe that the requirements of the Region 1
Office of General Counsel would vary significantly from the
previous year's requirements.
See Antonich Declaration, �� 3, 5.
As a rule, a customer-agency's historical data with respect to a
particular contract is the logical place to start when
calculating the work estimates for the follow-on agreement. See
Graphicdata, Inc., supra, slip op. at 73. Accord Medart, Inc. v.
Austin, supra; Alert Care Ambulance Service, supra; Integrity
Management International, Inc., supra. However, since the Forest
Service in this case is not a party to the contract in question,
in order to succeed on its "negligent estimates" claim, the
Appellant has to show that the Program 2052-S estimates were
unrealistic because the GPO Contracting Officer's agent, Crahay,
did not consider the most current information reasonably
available to her before the contract was awarded. See
Graphicdata, Inc., supra, slip op. at 77. Accord Crown Laundry,
supra; Medart, Inc. v. Austin, supra; Contract Management, Inc.,
supra; Ambulance Service & Transport of Marlin, supra; Fa.
Kammerdiener GmbH & Co., KG, supra. Specifically, the Appellant
must prove that Crahay herself knew, or had reason to know, at
the time of the solicitation, that there would be a marked
decline in the number of court actions, and a concomitant
decrease in the requirements for photocopying, during the
contract term. This record is devoid of any such evidence.
Indeed, the Contractor has made no effort to introduce such
proof. Moreover, assuming arguendo, that the Forest Service's
Office of the General Counsel knew prior to award that its need
for photocopying would be considerably less than the previous
year because there was less litigation, there is absolutely no
evidence that Antonich was so advised or was otherwise aware of
that fact. Therefore, this is not the type of case which might
justify application of the "imputed knowledge" rule.18 See
Graphicdata, Inc., supra, slip op. at 78-79. Accepted legal
fictions such as "imputed knowledge" have their purposes, see New
South Press & Assoc., Inc., supra, slip op. at 39 (conventional
wisdom that a fixed-price contract terminated for convenience is
converted into a cost reimbursement contract is an accepted legal
fiction and not completely true. Citing Graphic Litho Co., Inc.,
GPO BCA 17-85 (February 23, 1988), slip op. at 9-10, 1988 WL
363329), but they should not be allowed to overcome clear,
unmistakable and uncontroverted facts. See Graphicdata, Inc.,
supra, slip op. at 80. More importantly, using "imputed
knowledge" as the basis for finding GPO negligent in its
preparation of the estimates for Program 2052-S would violate one
of the principal teachings of Womack, namely, that the exercise
of due care is not synonymous with clairvoyancy. See
Graphicdata, Inc., supra, slip op. at 81 (citing Womack, supra,
389 F.2d at 801).
Obviously, the rules should protect against careless guesswork by
the Government as to its requirements in formulating its
estimates, see Medart v. Austin, 967 F.2d at 581, but unlike the
situation in Crown Laundry, supra, where the contracting officer
proceeded with the solicitation and award without verifying the
estimates of the user activities, even though he thought they
were "exaggerated," there is nothing in this record about the
numbers given to Crahay by the Forest Service for the
solicitation, and on which the contract award was based, that
would have raised a "red flag" in her mind or led her to suspect
that the estimates might be seriously flawed, see Crown Laundry,
supra, 29 Fed. Cl. at 523. In any event, GPO's contracting
officers have many important responsibilities, but trying to
predict future litigation activity in another agency and the
potential impact with respect to its contracts is not one of
them, and it would be foolish for them to try to do so. The
Womack court would not impose a requirement on contracting
officers to be clairvoyant. Neither will the Board. See
Graphicdata, Inc., supra, slip op. at 83.
When all is said an done, the Appellant's position in this case
is essentially an unverified assertion that the Government's
estimates were negligent and misleading. Such a contention is
little more than argument, which standing alone cannot substitute
for proof. See Swanson Printing Co., supra, slip op. at 32;
Univex International, supra, slip op. at 31. Cf. Reese
Manufacturing, Inc., ASBCA No. 35144, 88-1 BCA � 20,358. Indeed,
the Board has never allowed such unsubstantiated contentions to
form the basis of recovery. See Swanson Printing Co., supra,
slip op. at 32; Univex International, supra, slip op. at 31-32; B
& B Reproductions, supra, slip op. at 39; Stephenson, Inc.,
supra, slip op. at 57. Accord Singleton Contracting Corp., GSBCA
No. 8548, 90-2 BCA � 22,748; Tri-State Services of Texas, Inc.,
ASBCA No. 38019, 89-3 BCA � 22,604; Gemini Services, Inc., ASBCA
No. 30247, 86-1 BCA � 18,736. Accordingly, the Board concludes
that under the circumstances, the plain and accepted meaning of
the "Requirements" clause shields the Respondent from any
financial liability to the Appellant for the lack of orders under
the contract in dispute. Therefore, the Contractor's request for
an equitable adjustment in this case is without merit and is
denied.19
ORDER
Considering the record as a whole, the Board finds and concludes
that the Appellant has not proved that the Government negligently
prepared its estimates of the Forest Service's photocopying needs
under its "requirements" contract identified as Program 2052-S,
Purchase Order R-0298. Therefore, the Contractor is not entitled
to an equitable adjustment. ACCORDINGLY, the Contracting
Officer's final decision is hereby AFFIRMED, and the appeal is
DENIED.
It is so Ordered.
September 24, 1997 STUART M. FOSS
Administrative Judge
_______________
1 The Contracting Officer's appeal file was assembled pursuant to
Rule 4 of the Board's Rules of Practice and Procedure, and
delivered to the Board on January 31, 1995. See GPO Instruction
110.12, Subject: Board of Contract Appeals Rules of Practice and
Procedure, dated September 17, 1984, Rule 4(a) (Board Rules). It
will be referred to hereafter as the R4 File, with an appropriate
tab number also indicated. The R4 File contains six (6)
documents, identified as Tabs A-F. See Summary Report of
Prehearing Telephone Conference, dated August 11, 1997, at 2, n.
2 (SRPTC).
2 The Contractor's original appeal sought review of the
Contracting Officer's actions with respect to three (3)
contracts; i.e., Programs 2011-S, 2091-S, and 2052-S. See SRPTC,
at 1, n. 1. Program 2011-S was a termination for convenience
claim which the parties subsequently settled. A copy of Contract
Modification No. 1, dated January 13, 1995, which incorporates
the terms of their settlement was furnished to the Board on
January 31, 1995, and was placed in the appeal file. The
Appellant's claim with respect to Program 2091-S involved its
protest against the award of the contract to another contractor.
In its docketing letter, the Board indicated that it had no
jurisdiction to entertain award protests, but rather was confined
to determining appeals arising from or relating to contracts
between an appellant and the Government. See letter to Mr.
Donald W. Kuntz, RIM Advertising, from Sallie M. Johnson, Clerk
of the Board, dated December 21, 1994, at 1, n.1 (citing GPO
Contract Terms, Solicitation Provisions, Supplement
Specifications, and Contract Clauses, GPO Pub. 310.2, effective
December 1, 1987 (Rev. 9-88), � 5 (Disputes) (hereinafter GPO
Contract Terms); Board Rules, Preface to Rules, � I (Jurisdiction
for Considering Appeals). Instead, under the relevant rules and
regulations, the established forums for considering protests
against award are "the contracting officer, the General
Accounting Office (GAO) under GAO regulations (4 C.F.R. 21), or
other board or court having jurisdiction). Id. (citing GPO
Contract Terms, Solicitation Provisions, � 16; Printing
Procurement Regulation, GPO Pub. 305.3 (Rev. 10-90), Chap. X,
Sec. 2, �� 2, 3) (hereinafter PPR). Consequently, on December 6,
1994, the Board telephoned both parties and informed them that it
lacked jurisdiction over the Appellant's protest of the award of
Program 2091-S. Id. Thereafter, the Appellant filed a protest
with GAO, but the Comptroller General dismissed it on the ground
that it was untimely. See RIM Advertising, GAO No. B-259695
(February 27, 1995). A copy of the GAO decision is also in the
appeal file. Therefore, the only contract pending before the
Board is Program 2052-S. See SRPTC, at 1, n. 1.
3 The "Requirements" clause's stipulation that the contract's
"estimated" orders is not a guarantee of work, and hence not a
basis for an equitable price adjustment, is reenforced in the
"Determination of Award" section which states, in pertinent part:
". . . the following units of production . . . do not constitute,
nor are they to be construed as, a guarantee of the volume of
work which may be ordered for the term of this contract." See R4
File, Tab A, at 8.
4 The contract anticipated that orders for work could be issued
to the contractor directly by the Forest Service. Under GPO's
regulations, this sort of arrangement is called a "direct-deal
term contract." See PPR, Chap. XII, Sec. 1, � 2. As defined in
the regulations, a "direct-deal term contract" is one which: ". .
. allow[s] the customer agency to place print orders (GPO Form
2511) directly with contractors rather than routing them through
the GPO for placement." See GPO Agency Procedural Handbook, GPO
Publication 305.1, dated March 1987, Sec. IV, � 1, at 8
(hereinafter GPO Handbook). 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 an agency's
direct-deal authority: ". . . extends only to the placement of
print orders and to the transmission of copy and proofs. . . .
All other authority rests with GPO's Contracting Officers." See
GPO Handbook, Sec. IV, � 2, at 9. [Emphasis added.] See also
Swanson Printing Co., GPO BCA 27-94 and 27A-94 (November 18,
1996), slip op. at 4, n. 9, 1996 WL _____; Graphicdata, Inc., GPO
BCA 35-94 (June 14, 1996), slip op. at 60-61, n. 54, 1996 GPOBCA
LEXIS 28; B & B Reproductions, GPO BCA 09-89 (June 30, 1995),
slip op. at 3, n. 5, 1995 WL 488447; McDonald & Eudy Printers,
Inc., GPO BCA 40-92 (January 31, 1994), slip op. at 3, n. 4, 1994
WL 275096; Shepard Printing, GPO BCA 37-92 (January 28, 1994),
slip op. at 2, n. 4, 1994 WL 275077.
5 Antonich indicates that because of the nature of the contract-
copying voluminous records for court cases involving the Forest
Service-the amount of work is heavily dependent on the number of
lawsuits brought against the Government. See Antonich
Declaration, � 4.
6 Both parties filed briefs. The Appellant's brief, dated
August 18, 1995, shall be referred to as "App. Brf.." The
Respondent's brief was also submitted on August 18, 1995, and
shall be cited as "Res. Brf." Neither party filed a reply brief.
7 The Appellant says that there was some discussion with the
Forest Service concerning the production of some manuals, but
they disagreed about whether the work was for copying or
printing, and whether it could be ordered under the contract. In
any event, the Contractor did not receive the job. See SRPTC, at
4, n. 6. Furthermore, the Appellant alleges that he had a
conversation with the Forest Service's representative, Antonich,
about a month after award, and was told that the customer-agency
had no work to place under Program 2052-S. See Affidavit of
Donald W. Kuntz, dated July 18, 1995, � 3 (hereinafter Kuntz
Affidavit). Antonich, on the other hand, asserts that the
Contractor misunderstood him, and that he actually said he "did
not have any orders to place under Program 2052-S at that point
in time." See Antonich Declaration, � 6. [Emphasis added.]
Kuntz also stated in his affidavit that he had a conversation
with Antonich after the appeal was filed, and was told that "the
volume of contract #2052-S was highly questionable." See Kuntz
Affidavit, � 4. Antonich denies making such a statement, but
rather says he told Kuntz that "there was no way to guarantee or
predict with any great certainty the amount of work a contractor
might receive under this requirements contract." See Antonich
Declaration, � 7. Subsequently, Kuntz admitted that the
statement concerning the "questionable volume of work" was not an
exact quote, but instead was meant to be "a summary of the many
comments that were made to me by Mr. Antonich." See App. Brf.,
at 2. However, this verbal jousting is immaterial to the issues
in this case, because, inter alia, a valid "requirements"
contract can exist without any orders being placed, see Shepard
Printing, supra, slip op. at 20, and besides the Appellant
acknowledges that "yearly contracts do not have to guarantee the
contractor anything," see Letter, dated March 17, 1995, from
Donald W. Kuntz, Owner, RIM Advertising, to Ved Gulati (Special
Assistant), Board of Contract Appeals, at 2.
8 At the prehearing conference, the Appellant alleged that it was
later denied another contract (Program 2091-S) because the
Respondent thought that the Contractor lacked sufficient capacity
to perform Program 2052-S as well as additional contract work.
See SRPTC, at 4-5. However, this assertion is directed at the
Contracting Officer's "responsibility" determination, which, if
made in good faith and reasonable, is beyond the Board's power to
review. See Rose Printing, Inc., GPO BCA 32-95 (December 16,
1996), slip op. at 22, 1996 GPOBCA LEXIS 34; Big Red Enterprises,
GPO BCA 07-93 (August 30, 1996), slip op. at 37-39, 1996 GPOBCA
LEXIS 26. Accord Wright Industries, Inc., ASBCA No. 18282, 78-2
BCA � 13,396, at 65,492 (citing Warren Brothers Roads Co. v.
United States, 173 Ct. Cl. 714 (1965); Coastal Cargo Co., Inc. v.
United States, 173 Ct. Cl. 259 (1965); Brown & Son Electric Co.
v. United States, 163 Ct. Cl. 465 (1963)). The Appellant has not
made any allegation of bad faith on the part of the Government in
this appeal. Moreover, during the conference the Contracting
Officer disputed the Contractor's allegation that it was not
awarded Program 2091-S because of the amount of work forecast for
Program 2052-S. Regardless, the Board has already ruled that
Program 2091-S is not before it, see note 2 supra, and its lack
of jurisdiction to review "responsibility" determinations made by
GPO contracting officers constitutes an additional reason for
that decision.
9 The Respondent states that the "Requirements" clause in Program
2052-S is "almost identical to the provisions contained in other
Government contracts which have been construed by the courts and
boards of contract appeals." See Res. Brf., at 4. Actually, for
all practical purposes, the clause is a verbatim republication of
the "Requirements" clause found in Executive Branch contracts
prior to 1984. See Graphicdata, Inc., supra, slip op. at 55, n.
49; Shepard Printing, supra, slip op. at 21; McDonald and Eudy
Printers, Inc.; supra, slip op. at 11-12.
10 As GPO notes, a "requirements" contract is formed when the
Government promises to fill all of its actual needs during the
contract period with purchases from the contractor, and the
latter commits to meeting those needs at the agreed contract
price. See Res. Brf., at 4-5 (citing Shader Contractors, Inc. v.
United States, 276 F.2d 1, 4 (Ct. Cl. 1960). A key
characteristic of "requirements" contacts is the very uncertainty
about actual purchases over the contract term, since this type
of arrangement is used when the Government anticipates future
recurring needs but cannot tell precisely what they will be at
the time the contract is awarded. Id., at 5 (citing Medart,
Inc., v. Austin, 967 F.2d 579 (Fed. Cir. 1992). Another feature
is the allocation of the risks associated with the difference
between the contract estimates and actual purchase to the
contractor, not the Government; i.e., contract estimates alone,
will not change a "requirements" contract to one for a definite
quantity. Id (citing Medart, Inc., supra; Lone Star Energy Co.,
VACAB No. 1163, 76-1 BCA � 111,650). It is this risk allocation
element which is at the heart of this dispute.
11 Thus, GPO says that the Government's failure to order any
services whatsoever under a "requirements" contract does not
entitle the contractor to compensation. See Res. Brf., at 5,
SRPTC, at 5.
12 B & W Press and Central Data Processing were decided by ad
hoc contract appeals panels which considered appeals from final
decisions of GPO Contracting Officers prior to the establishment
of the Board in 1984. GPO Instruction 110.10C, Subject:
Establishment of the Board of Contract Appeal, dated September
17, 1984 (hereinafter GPO Instruction 110.10C). Decisions of
these ad hoc panels are cited by the Board in its decisions as
"GPOCAB." While the Board is not bound by the decisions of the
ad hoc panels, its policy is to follow their rulings where
applicable and appropriate. See e.g. Custom Printing Co., GPO
BCA 28-94 (March 12, 1997), slip op. at 24, n. 38, 1997 WL _____;
Big Red Enterprises, supra, slip op. at 22, n. 22; The George
Marr Co., GPO BCA 31-94 (April 23, 1996), slip op. at 50, n. 40,
1996 WL 273662; New South Press & Assoc., Inc., GPO BCA 14-92
(January 31, 1996), slip op. at 32, n. 45, 1996 WL 112555; Univex
International, GPO BCA 23-90 (July 31, 1995), slip op. at 23, fn.
24, 1995 WL 488438, reconsid. denied, February 7, 1996, 1996 WL
112554; Universal Printing Co., GPO BCA 9-90 (June 22, 1994),
slip op. at 11, fn. 9, 1994 WL 377586; Shepard Printing, GPO BCA
23-92 (April 29, 1993), slip op. at 14, fn. 19, 1993 WL 526848;
Stephenson, Inc., GPO BCA 2-88 (December 20, 1991), slip op. at
18, n. 20, 1991 WL 439274; Chavis and Chavis Printing, GPO BCA
20-90 (February 6, 1991), slip op. at 9, n. 9, 1991 WL 439270.
13 However, the Board, to the contrary, sees the "estimates"
question as the only issue in this appeal. See SRPTC, at 6.
Moreover, it is well-settled that a board of contract appeals, in
deciding a case, is not limited by the theories, positions, or
contentions of the parties. See Bart Associates, Inc., EBCA Nos.
C-9211144, C-9312163, 96-2 BCA � 28,479, at 142,235-3, n. 14
(citing Harvey C. Jones, Inc., IBCA Nos. 2070, 2150, 2151, 2152,
2153, 2467, 90-2 BCA � 22,762, at 114,250, n. 5; Wilner
Construction Co., ASBCA No. 32499, 88-3 BCA � 21,101, at
106,526).
14 The Respondent also reads the Appellant's pleadings as
alleging that not all of the Forest Service's photocopying work
was placed under Program 2052-S, and thus the Government breached
the contract. See Res. Brf., at 10 (Kuntz Affidavit, � 3).
However, the Board does not see the pleadings as raising a
"breach of contract" issue for its consideration. See note 7
supra. Furthermore, as GPO indicates, the Board has no
jurisdiction over "pure" breaches of contract. See Res. Brf., at
10-11 (citing The Wessel Co., Inc., GPO BCA 8-90 (February 28,
1992), 1992 WL 487877; Cloverleaf Enterprises, Inc., (GPOCAB, May
9, 1980), 1980 WL 81267; Information Systems, Inc., GPOCAB 78-11
(January 18, 1979), 1979 WL 28889; Harbor Printing & Copy
Service, Inc., (GPOCAB, November 4, 1977), 1977 WL 24257). See
also United States v. Utah Construction and Mining Co., 384 U.S.
394 (1966). The reasons why are explained infra.
15 See note 7 supra.
16 As made clear in the "Contractual Responsibility"
provision of GPO Contract Terms: "Awards by GPO for printing,
binding, and related services are the sole responsibility of
GPO and not of its customer agencies. Modifications shall
have no force or effect unless addressed before the fact to
and subsequently confirmed in writing by the Contracting
Officer. Failure to comply with this article may be cause
for nonpayment of additional costs incurred or rejection of
the order."
17 The Board is unaware of any requirement in the PPR comparable
to FAR � 16.503(a)(1). However, the PPR does state that a term
contract, such as here, is appropriate "[w]hen requirements can
be forecast with relative accuracy, . . .". PPR, Chap. VII,
Section 1, � 2. In any event, the Board's cases have generally
assumed that the GPO Contracting Officers are bound to the same
standard of care as their Executive Branch counterparts. See
e.g., Graphicdata, Inc., supra, slip op. at 61, n. 55; Shepard
Printing, supra, slip op. at 23-24; McDonald & Eudy Printers,
Inc., supra, slip op. at 15.
18 Imputing the knowledge or conduct of one Federal agency to
another one is not automatic. See Cryo-Sonics, Inc., ASBCA No.
11483, 66-2 BCA � 5,890, at 27,331. Indeed, there are relatively
few cases on the books involving imputed knowledge or conduct.
Where it is applied, the usual rule is that imputation is
appropriate if there is a "significant bond" between the two
agencies and their projects. See Weaver Construction Co., DOT
BCA No. 2034, 91-2 BCA� 23,800, at 119,184 (Forest Service's
tortious interference with contract work performed in a national
forest which it supervised and regulated and which caused a delay
was imputed to the contracting agency, Federal Highway
Administration, because there was "a significant bond" between
the two agencies; i.e., coordination between them concerning the
contract was undoubtedly essential. Citing Lewis-Nicholson, Inc.
v. United States, 213 Ct. Cl. 192 (1977); L.W. Foster Sportswear
Co. v. United States, 186 Ct. Cl. 499 (1969); J.A. Jones
Construction Co. v. United States, 182 Ct. Cl. 615 (1968)). But
cf. Hawaiian Dredging & Construction Co., ASBCA No. 25594, 84-2
BCA � 17,290, aff'd, 776 F.2d 1063 (Fed. Cir. 1985) (Board
refused to impute knowledge of the plans of the Department of
Labor and the Immigration and Naturalization Service to change
the regulations covering the use of alien workers on Guam to the
procuring agency, the Navy, which was as unaware of Labor's plans
as the contractor); Unitec, Inc., ASBCA No. 22025, 79-2 BCA �
13,923 (Board refused to impute knowledge of Corps of Engineers
personnel to Army's Fort Stewart personnel because there was no
"meaningful connection."). Similarly, the rule may be applied to
impute the knowledge of one organization within an agency to
another. See Cryo-Sonics, Inc., supra, 66-2 BCA at 27,331-32
(knowledge of engineer in the Air Force command that did the
developmental work on a project was charged to the Air Force
command which negotiated and administered the contract since the
engineer's report was referenced by the contractor's proposal).
However, as the Board has observed, there appears to be no case
which, in effect, combines the principles expressed in Weaver
Construction Co. and Cryo-Sonics, Inc.; i.e., one where a
contracting agency with "a significant bond" to another agency
has been charged with knowledge possessed by an organization
within the latter agency with which has no connection whatsoever.
See Graphicdata, Inc., supra, slip op. at 79.
19 In light of the Board's decision on the "negligent estimates"
question, the second issue stated above is moot.