U.S. Government Printing Office
Contract Appeals Board
Appeal of Datagraphics Press, Incorporated
June 23, 1978
Vincent T. McCarthy, Chairman
Drew Spalding, Member
Jay E. Eisen, Member
Panel 75-12
This appeal was filed on August 29, 1975, by Datagraphics Press, Incorporated (hereinafter the
Appellant), 3064 N. 30th Avenue, Phoenix, Arizona 85017, pursuant to the "Disputes" clause, Article
29, Contract Terms No. 1, Revised July 15, 1970, U.S. Government Printing Office (GPO).
Summary
The controversy here involves a claim by the appellant for payment of $14,766 in excess of that
provided by the contract. In essence, the Appellant claims the contract specifications and
information which it had obtained orally about the contract from GPO personnel prior to bid, misled
it into making overly conservative cost estimates. It asserts that its actual experience under the
term of the contract has shown that far less work was required than was estimated and, therefore,
it has been deprived of the profit it would have made if the contract specification had been more
accurate. It has made a claim for this amount.
In a final decision of the Contracting Officer, Appellant's claim was denied (except for setup
costs incurred after a Government delay in supplying manuscript copy), on the basis that the
contract did not guarantee any specific amount of work to the Appellant.
This contract was later terminated for convenience for reasons not related to this dispute. The
termination is not specifically contested although Appellant argues the final payment provided
thereunder was not adequate and did not take into account the claims made earlier by the Appellant
during the pre-termination phase of the contract.
Findings of Fact
1. This contract called for:
". . . the production of a complete set of camera ready pages, data base magnetic tapes for
retrieval purposes consisting of approximately 30,000,000 characters, and approximately 1,600
pieces of art (exhibits) which contractor must reproduce photographically and insert in the proper
place on camera ready pages as indicated in the manuscript. . . ." ("General", page 1 of
Specifications.)
The manuscript to be photocomposed was a record of proceedings before the Postal Rate Commission
and the requesting agency was the United States Postal Service (USPS).
Incorporated as an integral part of the contract were the provisions of the U.S. Government
Printing Office, Contract Terms No. 1, approved July 1, 1943 (Revised July 15, 1970).
2. The Specifications contained a strict performance schedule which required the Appellant and the
GPO to process increments of copy and proofs, completing the work by April 15, 1975. The schedule
also indicated that:
"Approximately 1,500 of these folios may be furnished [by GPO] at a later date but within 30 days."
(Specifications, page 4.)
3. The Invitation for Bid was mailed on January 31, 1975. The Appellant responded by bid, dated
February 13, 1975. Because its bid was much lower (by more than $60,000) than the other bids
received by the GPO, it was asked to review and confirm its bid. This it did and the contract was
awarded to it by Purchase Order 36391, dated February 24, 1975. The contract was assigned Jacket
No. 567-844.
In compliance with the Specifications, during the period January 31 through February 24, 1975,
approximately 8,500 folios of manuscript and previously printed samples were available at the GPO
in Washington, D.C., for inspection by bidders. (Specifications, page 1.)
The representatives of the Appellant inspected these samples for the first time at the pre-award
conference on February 24, 1975. However, Appellant maintains it had received information about
the makeup of the material to be printed from GPO employees. The Appellant states in relevant
part:
"Several conversations took place with many different people during the three days prior to mailing
the bid to GPO." (Letter of J. L. Harris, March 20, 1975.)
Also,
"At the time Datagraphics was preparing to bid on this job several telephone calls were made in an
attempt to find out how much tabular and camera copy work was involved." (Attachment Para. II, 4,
letter of J. L. Harris, April 17, 1975.)
And,
"Upon acceptance of DG's [Appellant's] bid, a DG representative went to Washington for the post-
award conference with the [GPO]. At said conference, DG's employee confirmed with representatives
of the GPO the nature, size and character of the contract, quantitatively and qualitatively. The
GPO made specific representations to DG at the time of and preceding the bid acceptance, regarding
the contract requirements, particularly by Messrs. W. Conner and J. Markely to Messrs. Fields,
Olson and Harris of DG. The GPO confirmed that the contract would approximate 30 million
characters, would not contain much tabular work and would be delivered according to the time
schedule described in the bid." ("Facts", attached to letter of Donald T. Scher, January 22, 1976.)
Bid quotations for photocomposition were per page of text and for fractions thereof. Tabular
matter was paid at double the rate submitted for text pages. ("Quotations", Specifications, page
7.)
4. At the close of the pre-award conference, the Appellant's representatives took with them the
manuscript for Volume III of what was to be a 4-volume set. On the same day, February 24, 1975,
the manuscript for Volumes II and IV was sent via commercial carrier to the Appellant's plant. The
manuscript for Volume I was not available at this time, because the Postal Rate Commission had not
issued its final decision. (Refer to Finding of Facts No. 2). All of the manuscript was not
supplied to Appellant until August 11, 1975, which was considerably (4 months) after the
Specifications indicated it would be supplied.
5. In a letter to the GPO dated March 20, 1975, the Appellant made a request for additional
payments above that provided for in the contract. This was supplemented by a letter dated April
17, 1975, in which the Appellant made several claims which in summary are as follows:
a. an amount to cover lost profits because the manuscript supplied to Appellant required only
19,325,000 characters to be set, whereas the contract specified 30 million characters. This
variance in character count caused Appellant to experience a higher unit cost which could not be
anticipated at the time of Appellant's bid, because of the contract's misrepresentation of the job
size.
b. an amount to cover increased expenses which Appellant incurred when it subcontracted out tabular
work in order to comply with the contract's production schedules. Appellant claimed these expenses
were not anticipated and not included in their bid because the samples and oral statements by GPO
personnel were "misleading" regarding the amount of tabular work to be performed. Appellant
asserted their bid anticipated producing all the work in plant at a lower cost.
c. an amount to cover additional setup costs which could not have been anticipated because of the
late arrival of the final folios of manuscript for Volume 1.
d. an amount to cover Appellant's idle time and profits from other work turned away because the
Appellant anticipated a job of 30 million characters.
The Appellant also requested that no late charges be assessed for delayed delivery caused by the
amount of tabular work which Appellant could not have anticipated.
6. In a final decision dated August 1, 1975, the GPO Contracting Officer made the following
decisions regarding Appellant's requests for additional compensation:
a. Did not allow a contract price adjustment because the "Basis of Award" provision of the contract
provided:
". . . there is no guarantee of the volume of work which may be necessary to produce the items
ordered under these specifications."
b. Did not allow a price adjustment for tabular work because the contract does not "stipulate" the
amount of tabular work to be performed, and further the contract provides for payment for tabular
matter at double the normal page rate.
c. Agreed to negotiate regarding additional setup costs.
d. Did not allow a claim for idle time because the number of characters specified in the contract
is merely an estimate. (Reference a. above.)
e. Did not impose late delivery penalties, however, once the final folios of manuscript become
available the Appellant will be required to adhere to final phase of the production schedule.
7. On August 7, 1975, the GPO mailed Appellant the final manuscript folios for Volume I. (On April
23, 1975, USPS had requested the GPO to hold the contract open.) On same day, the GPO telephoned
Appellant requesting its best rate and earliest production date for this final increment of
manuscript. Appellant responded by telephone on August 14, 1975, with a minimum requirement of 3
weeks production time and at a per page rate 3 times greater than the contract price. Appellant
claimed they were in "peak" production at that time, which would cause the delay and increased
prices.
8. On August 21, 1975, the GPO recalled the unworked manuscript from the Appellant and performed
the work in the Central Office. This was done in order to comply with a USPS imposed deadline for
final production of the material.
9. On or about August 27, 1975, the GPO wired the Appellant informing them the contract was
terminated for convenience of the Government. This was confirmed by a formal "Notice of Change"
order dated September 15, 1975, which stated Appellant would be reimbursed for work performed under
the contract in the amount of $50,066.26, and that this sum would "constitute a full and complete
settlement of the amount due the contractor. . . ."
10. On August 29, 1975, Appellant filed this appeal to the Final Decision of the Contracting
Officer rendered on August 1, 1975. In its supporting materials Appellant maintains GPO
misrepresented the size of the job to be performed which substantially affected their bidding; GPO
breached its contractual duty to supply the final portion of manuscript in accordance with the
schedule causing it to lose the profits to be earned on this final amount; GPO misrepresented the
excessive amount of tabular work requiring Appellant to incur expenses which could not be
anticipated by its bid.
Appellant submits that they are due an additional payment based on the following calculations:
a. Total due Appellant if manuscript had
been delivered per schedule and produced
by Appellant. $71,763.00
b. Savings to Appellant by not doing
undelivered portion. $12,495.00
Subtotal $59,268.00
c. Additional expense for tabular work. $ 5,565.00
$64,833.00
d. Amount Appellant paid to date. $49,165.76
$15,667.24
Cancelled GPO Checks confirm payments to Appellant in the amount of $50,066.26. Therefore, this
would result in a reduction of Appellant's claim against GPO of $900.50, resulting in a corrected
balance of $14,766.74.
11. GPO records indicate Appellant was permitted to work on an approximate total of 18,822 folios.
If the Appellant had been permitted to finish the work on all available folios, the total would
have been approximately 21,206. The Specifications state that approximately 23,000 folios of
manuscript copy will be furnished by the Government. ("Materials furnished by the Government,"
Specifications, page 2.)
Discussion
The material submitted by the Appellant has confused the appeal of the final decision of the
Contracting Officer with the issues pertaining to the early termination of the contract for the
convenience of the Government. While admittedly some of the issues raised by the Appellant are
similar, if not identical, this Board functions as an appellate body to consider properly filed
appeals to decisions of the Contracting Officer. As such, the Board only considers issues and
facts as they existed at the time of the Contracting Officer's Final Decision and cannot deal with
issues which may have arisen subsequently. We, therefore, do not consider this appeal to raise any
issue of the propriety of the termination for convenience.
Simply stated, Appellant claims that the contract language, the samples and the statements of GPO
representatives were misrepresentative of the actual size and nature of the work to be performed.
As a result, its bid was substantially out of line with what it would have been and, therefore,
Appellant is due a price adjustment to cover their unrealized anticipated profits and increased
expenses. 1
With regard to any statements made by Government officials prior to Appellant's bid submission, it
is difficult to assess what affect they might have had since the materials submitted by Appellant
do not relate with any specificity the content or context of these statements. The Board assumes
that any such statements were made in good faith and with the best knowledge available at the time
they were made, since no credible evidence to the contrary has been submitted. Moreover, Article 2
of Contract Terms No. 1 required that any change to the written contract should be in writing from
the Contracting Officer and
". . . No oral statement of any person shall be allowed in any manner or degree to modify or
otherwise affect the terms, conditions or specifications of the contract or any purchase order
thereunder. . . ."
The Specifications do include several sections which seem to specify the amount of work which is to
be performed, to wit, "General", page 1; "Quantity", page 1; "Composition", page 2 and "Material
furnished by the Government", page 2. However, in each of these provisions, the quantity specified
is preceded by the adjective "approximately". The work amounts are not represented as absolutes
and this was not a fixed-price contract. That the stated amounts were never more than mere
estimates is made explicit by the express disclaimer language of the "Basis of Award" section which
reads in relevant part:
"Award will be made to the bidder whose total aggregate cost results in the lowest bid. The
Government will determine the total aggregate cost by applying the prices quoted under 'Pricing'
hereinafter to the following listed units of production which are the estimated requirements
necessary to produce the items ordered under these specifications. These units do not constitute,
nor are they to be construed as, a guarantee of the volume of work which may be necessary to
produce the items ordered under these specifications.'' Page 5. (Emphasis added.)
It is in the nature of a requirements contract that the quantities are not fixed prior to
completion of the contract term. In the specifications, the Government is only required to produce
as accurate an estimate as possible. In the case of Travis T. Womack v. U.S., the Court of Claims
wrote:
". . . in promulgating an estimate for bidding - invitation purposes, the Government is not
required to be clairvoyant but is is obliged to base that estimate on all relevant information that
is reasonably available to it." (389 F.2d 793, 801, 182 Ct. Cl. 399, 412-413 (1968).)
In the case before us, there is no suggestion in the evidence that GPO and USPS did not comply with
this standard. The postal rate proceedings were not concluded at the time the contract was
formulated and the amounts specified could be nothing more than informed estimates. In addition,
the Board notes the contract estimate of 23,000 folios was only 1,800 folios over the actual total
volume. (Ref: Finding of Fact, No. 11.)
The Appellant maintains the Government, by oral statements of GPO employees and the samples
provided prior to bid, also misrepresented the amount of tabular work which would be required under
the contract and, therefore, has included a charge to cover the additional expenses it was forced
to incur in order to meet the contract's production dates. As indicated above, we assume any oral
statements were made in good faith and we can find no provision in the Specifications which even
approximates the amount of tabular work to be performed. The only contract provision pertaining to
tabular matter permits the Appellant to bill for tabular work at double the rate of a standard text
page. The risk that there would be more tabular work than Appellant could handle "in-house" was
one it assumed when they bid on the contract. The price they quoted for a standard text page could
have included an amount to cover any amount of tabular work. For these reasons the Board sees no
objection to the Contracting Officer denying a claim for extra payment for tabular work.
For the reasons noted above, the appeal is denied. 2
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1 Appellant's requests that no late charges be assessed, and that additional setup charges be
permitted are not in contention since the Contracting Officer has agreed to both requests.
2 0ur decision in this case is fully supported by the decision of the Comptroller General in
Jarrett Press, Inc., B-168619, dated May 11, 1970, which has not been overruled or modified. This
case also involved a GPO requirements contract in which the identical disclaimer language was
contained in the Basis of Award section.