U S GOVERNMENT PRINTING OFFICE
CONTRACT APPEALS BOARD
C.A. 76-13
Vincent T. McCarthy, Chairman
Samuel Soopper, Member
Drew Spalding, Member
APPEAL OF H. L. EIKENBERG COMPANY
May 9, 1979
Introduction
This timely appeal was filed by the H. L. Eikenberg Company
(hereinafter Eikenberg or appellant) to contest a decision by the
contracting officer that it had overbilled and had consistently
been overpaid by the Government during the course of the
contract. For reasons stated below, we deny the appeal.
Findings of Fact
In March 1975, the H. L. Eikenberg Company was awarded a term
contract by the Government Printing Office (GPO) designated
Program 1320-S for the printing and mailing of Civil Service
Commission Training Announcements (Bd. Ex. 1b). 1/ The
specifications indicated that the award was of a requirements
contract, containing the following information to guide the
contractor's bidding:
"FREQUENCY OF ISSUE: No guarantee can be made as to the
frequency of orders. It is anticipated that from 5 to 20 orders
per week (average 50 a month) will be placed under this program.
TRIM SIZE: 8 x 10 1/2" and 5 1/4 x 8"
QUANTITY AND NUMBER OF PAGES: No definite quantity can be
guaranteed. Anticipated requirements are:
5,000 to 20,000 copies per order; average 9,000.
Number of pages:
% of orders No. of pages Trim size
1 1 8 x 10 1/2
27 2 8 x 10 1/2
6 4 8 x 10 1/2
1 1 5 1/4 x 8
1 2 5 1/4 x 8
64 4 5 1/4 x 8
(Bd. Ex. 1b, Specifications at 3 of 12).
The specifications also contained instructions for the packing,
delivery and mailing of the announcements:
"PACKING FOR DELIVERY AND MAILING:
Bulk: Pack bulk shipments in shipping containers furnished by
the contractor. Quantities which do not make a satisfactory
container fill shall be wrapped in shipping bundles. Filled
weight of containers must not exceed 45 lbs.
Mailing: The contractor will be required to combine from 2 to 8
print orders (as specified by the department) into one mailed
shipment, using furnished preaddressed kraft envelopes and labels
for all destinations requiring a distribution of from 1 to 10
copies. Refer to 'Delivery and Mailing' hereinafter. Not all
orders will be combined.
* * *
"DELIVERY AND MAILING: Deliver f.o.b. destination in Washington,
D.C. and f.o.b. contractor's city for all mailed shipments.
Quantities ordered mailed must be delivered by the contractor to
the local post office for mailing. (Approx. 200 copies will be
delivered to 2 local addresses).
The contractor will be required to combine from 2 to 8 print
orders (as specified by the department) into one mailing, using
preaddressed kraft envelopes, for addresses that have a
distribution of from 1 to 10 copies. All copies for addresses
that have a distribution of over 10 copies are not to be held for
combining. There will be approximately 3,000 to 6,000 copies of
each order inserted into 400 to 600 envelopes with 10 copies or
less, of each order, in each envelope.
The contractor will be notified in writing, prior to the delivery
date, of the print orders that are to be combined for mailing and
will receive the preaddressed envelopes at that time. Refer to
'Schedule' hereinafter.
* * *
Note: There may be a mailing verification form furnished with
each order. This form must be returned within 24 hours after
shipment is made indicating the number of copies mailed and the
date the shipment was made."
(Bd. Ex. 1b, Specifications at 5 of 12, 6-7 of 12). (Emphasis
added).
The specifications contained other guidelines for bidding as
follows:
"BASIS OF AWARD: Award will be made to the responsible bidder
whose total aggregate cost results in the lowest bid. The
Government will determine the total aggregate cost by applying
the prices quoted in the 'Schedule of Prices' to the following
listed units of production which are the estimated requirements
to produce the orders for a 1-year period under this contract.
These units do not constitute, nor are they to be construed as, a
guarantee of the volume of work which may be ordered under this
contract for a like period of time.
All needs of the Department requisitioned on this program from
the Government Printing Office which are applicable to the
product or products covered by these specifications will be
ordered by the Government Printing Office under this contract.
The item designations used herein correspond to those used in the
'Schedule of Prices'.
I. (a) 4500
(1) (2) (3) (4)
II. (a) 1 8 1 8 III.
(b) 83 664 83 664 (a) 37,500
(c) 20 160 20 160 (b) 1,500
(d) 2 16 2 16 (c) 150
(e) 1 8 1 8 (d) 75
(f) 193 1544 193 1544 (e) 75
(Bd. Ex. 1b, Specifications at 8 of 12).
The contractor was additionally advised that it was not to start
production on any job until it received the individual print
order (Bd. Ex. 1b, Specifications at 7 of 12). It was also
informed that for each print order, a "certificate of
conformance" was to be submitted to the GPO to support payment,
and a sample of the information to be included in such
certificates was furnished to the contractor. (Bd. Ex. 1b,
Specifications at 9-10 of 12).
The specifications contained a schedule of prices for the various
tasks to be performed under the contract. The schedule for
packing, mailing and delivery is set out in its entirety:
"IV. PACKING, MAILING AND DELIVERY: The prices quoted are all
inclusive and includes [sic] the cost of inserting in envelopes,
cushioned shipping bags, wrapping packages, and / or packing
shipping containers and all materials and services related
thereto. Preaddressed 'Postage and Fees Paid' labels and kraft
envelopes will be furnished by the Government.
Mailed Shipments:
(a) Inserting multiple copies in Kraft envelopes (preaddressed)
(up to 160 leaves). . per envelope . . $ .
(b) Inserting multiple copies in cushioned shipping bags
or wrapped in shipping bundles (over 160 leaves up
to 10 lbs.) . . . . . . . . . . per bag or bundle . . . . .
(c) Wrapping or packing in shipping containers (at
contractors [sic] option) over 10 lbs. up to 20 lbs
. . . . . . . . . . . . . . . . . . . . . . each . . .
(d) Packing in shipping containers over 20 lbs. up
to 40 lbs. . . . . . . . . . . . . per container. . . .
(e) Addressing additional labels for more than one
parcel per destination . . . . . . . . . . . . . . . .
(Bd. Ex. 1b, Specifications at 12 of 12). (Emphasis added).
It should be noted at this juncture that while this portion of
the schedule of prices is numbered IV, the previous portions are
numbered I and II. This was apparently a clerical error with IV
mistakenly used in place of III in the schedule of prices (TR-I.
41-42).
There were several addenda to the specifications. One of these,
Attachment B, titled "Payments," included two paragraphs
significant to this appeal:
"2. Final Payment
Checks tendered by the Government in payment of any invoice
submitted by the contractor, whether equal to or less than the
amount invoiced, are tendered as final payment for all items
covered by the invoice(s). Acceptance and payment of any check
so tendered shall operate as a bar to the assertion of any
exceptions by the contractor to the amount paid by the
Government, unless the contractor notifies the contracting
officer in writing within 60 calendar days of the date of such
check. Such notice shall specify the specific exceptions taken
to the sum tendered, and the reasons therefore [sic].
* * *
"4. Failure to agree on any of the determinations to be made
pursuant to this clause shall be a dispute concerning a question
of fact within the meaning of the 'Disputes' clause of this
contract."
(Bd. Ex. 1b, Specifications, Attachment B). (Emphasis in
original).
The "Disputes" clause referred to is contained in United States
Government Printing Office Contract Terms No. 1 (1970), which is
incorporated by reference into the instant contract. (Bd. Ex.
1b, GPO Form 2826; Bd. Ex. 24). The "Disputes" clause, Article
29 of Terms No. 1, states:
"Except as otherwise provided in this contract, any dispute
concerning a question of fact arising under this contract which
is not disposed of by agreement shall be decided by the
Contracting Officer, who shall reduce his decision to writing and
mail or otherwise furnish a copy thereof to the Contractor. The
decision of the Contracting Officer shall be final and conclusive
unless, within 30 days from the date of receipt of such copy, the
Contractor mails or otherwise furnishes to the Contracting
Officer a written appeal addressed to the Public Printer. The
decision of the Public Printer or his duly authorized
representative for the determination of such appeals shall be
final and conclusive unless determined by a court of competent
jurisdiction to have been fraudulent, or capricious, or
arbitrary, or so grossly erroneous as necessarily to imply bad
faith, or not supported by substantial evidence. In connection
with any appeal proceeding under this clause, the Contractor
shall be afforded an opportunity to be heard and to offer
evidence in support of its appeal. Pending final decision of a
dispute hereunder, the Contractor shall proceed diligently with
the performance of the contract and in accordance with the
Contracting Officer's decision.
"(a) This 'Disputes' clause does not preclude consideration of
law questions in connection with decisions provided for in the
paragraph above: Provided, That nothing in this contract shall
be construed as making final the decision of any administrative
official, representative, or board on a question of law."
Appellant's bid on IV(a) was $0.18 (Bd. Ex. 21) (see page 4,
supra). The price submitted by other bidders on this entry
ranged from a low of $0.05 to a high of $0.26 (Bd. Ex. 1c).
Braceland Press, Inc., the contractor which had performed Program
1320-S during the previous term, had bid $0.22 as its unit rate
for this item (Bd. Ex. 1c).
Appellant successfully performed its work under the contract (TR-
I; 203).
Appellant completed numerous print orders, and with each mailing
submitted an invoice to the GPO for payment. (E.g., Bd. Ex. 16).
On Item IV(a), appellant consistently billed at $0.18 per print
order. (E.g., Bd. Ex. 16). Appellant was paid in the manner it
billed without question or comment by the GPO during the course
of the contract performance.
The GPO Regional Printing Procurement Office, 2/ which
administered the subject contract, was never involved in the
billing. The contracting officer and his subordinates had no
authority to stop payment on the billing. Rather, the Regional
Printing Procurement Office performed only the clerical function
of clocking in the vouchers, which were then submitted to the
Financial Management Service at the main plant of the GPO. (TR-
I; 46, 86-88, 139).
On September 22, 1976, Bryan W. Mercer, Comptroller of the GPO,
sent a letter to appellant. It stated, in pertinent part:
"We have been informed by our auditors that you may have been
overpaid on Program 1320-S in the amount of $88,371.51.
* * *
"You consistently billed for Item IVA on each print order when
you should have billed for that item on only one print order in
each group of orders combined.
"If you have any additional information concerning charges for
delivery and packing, let me know. Otherwise we have no choice
but to effect these deductions from current invoices." (Bd. Ex.
2).
On September 29, 1976, appellant, by its President, Henry L.
Eikenberg, responded to Mr. Mercer's message, vehemently
protesting his conclusions. The letter contained the basic
themes that have been sounded throughout this appeal, namely that
appellant's interpretation of the pricing was [correct.]
This in turn prompted a letter from Raymond A. Hartman, Manager
of the Washington, D.C., Regional Printing Procurement Office of
the GPO, to appellant, on October 15, 1976. Written in his
capacity as contracting officer on Program 1320-S, Mr. Hartman
concurred with the conclusions of Mr. Mercer expressed in the
prior letter. The letter was framed as a final decision of the
contracting officer and gave notice that if Eikenberg wished to
pursue this matter further, an appeal to the Public Printer would
have to be filed within 30 days of its receipt (Bd. Ex. 4).
On October 25, 1976, appellant filed notice of the instant appeal
(Bd. Ex. 5). Additional findings of fact are contained in the
course of the opinion.
Conclusions of law
Board Authority: Due process of law
Appellant has presented a plethora of issues to the Board,
raising and sometimes discarding them in quick succession. We
will attempt to treat every significant argument that appellant
has advanced. Several of its contentions go to the authority of
the Board to make a decision in this case, and we will discuss
these first.
At the outset, we think that it is necessary to acknowledge the
somewhat unorthodox position of appellant here, in that it is
challenging the authority of the Board before which it chose to
bring its case. Appellant's explanation of this is contained in
one of its numerous papers filed with the Board:
"The H.L. Eikenberg Company is not required by Federal or State
law, by equitable principles, or by the terms of the contract
which it made with the U.S. Government Printing Office to
participate in this appeal. The H. L. Eikenberg Company
nevertheless calls attention to the following facts: (a) Its
billing procedure under the disputed contract was correct; (b) it
desires to continue to perform contracts for the U.S. Government
Printing Office; however, it was threatened with withholding of
funds from future contract payments, unless it participated in
this appeal; and (c) a review of the case demonstrates that an
objective, fair Contract Appeals Board would have ruled in its
favor at the conclusion of the hearing."
(Appellant's Memorandum at 1).
No documentation was provided concerning the alleged "threat" of
withholding of funds, although we presume that the Government
would follow its customary procedure in order to collect the
money it deems erroneously overpaid. Since the contractor
apparently wishes to dispute the contract interpretation
underlying the Government position, it must follow the disputes
procedure contained in the contract. However, this is not to say
appellant is required to be before us; appellant has elected to
contest the GPO's claim of overpayment and is doing so in what
is, in our view, the proper forum at this juncture. However,
while appellant's stance may seem anomalous, because the issues
raised go to the Board's authority to make a decision in this
case, we will address them nonetheless.
Eikenberg's first challenge to the authority of the Board has
been phrased in several ways during the course of the appeal, but
comes down to an issue of due process of law. Essentially,
appellant argues that the makeup of the GPO Contract Appeals
Board is inherently unfair and deprives the contractor of the
impartial hearing and decision to which it is entitled.
In order that the basis of the argument may be fully understood,
a few words about the GPO Contract Appeals Board are necessary.
Article 29 of GPO Contract Terms No. 1, quoted above, states that
a decision of the contracting officer may be appealed to the
Public Printer, the official in charge of the GPO, "or his duly
authorized representative for the determination of such appeals.
. . ." The Public Printer has designated the Office of the
General Counsel of the U.S. Government Printing Office as his
representative for this purpose. 3/ Usually, the General Counsel
himself serves as Chairman of the Contract Appeals Board, and two
of the other attorneys from the office are selected to serve with
him to make up a Board panel. Contract administration and advice
to the contracting officer is generally performed by an attorney
in the office specializing in procurement, who does not sit as a
Board member. Also, if any member of the office is involved in
an advisory capacity on any matter concerning a contract, he is
of course barred from sitting on a Board that is ruling on that
particular contract. The General Counsel also appoints an
attorney to represent the contracting officer on these appeals;
generally, but not always, and not in this case, the attorney
specializing in procurement serves this function. 4/ The
rationale for this informal system is primarily one of
expedience, due to the relatively small number of contract
appeals submitted to the GPO. No allegation has been made that
any of the undersigned members who heard this appeal had anything
to do with the administration of this contract. However,
appellant argues that the dual role of the attorneys in the
office, sometimes impartial Board members, other times advocates
on behalf of the agency, renders the entire process inherently
unfair.
Appellant has certainly raised an important question. The Board
is not unaware of the problem posed by the different roles played
by its members at different times. This is especially true in a
small office with only seven attorneys, one of whom generally
represents the contracting officer before the Board, and can
therefore not be a member of the Board. However, we are of the
opinion that the appellant's argument is based on several
significant misconceptions.
It is important to remember that by signing a contract with the
GPO, Eikenberg agreed that disputes would be decided by the
Public Printer or his representative and that it would be allowed
"to be heard and to offer evidence in support of its appeal."
Article 29, GPO Contract Terms No. 1 (1970). 5/ This, and only
this, is what the contractor is guaranteed in terms of a remedy
for contract disputes at the agency level. The question is what
due process requires within this contractual framework, since
there is no inherent due process right to an impartial decision
of any kind, much less a quasi-judicial one, at the
administrative level. Constitutionally speaking, an agency may
afford no due process at the administrative level, as long as de
novo judicial review is available. Nickey v. Mississippi, 292
U.S. 393, 396 (1934); see generally 1 Davis, Administrative Law
Treatise � 7.10 (1958). However, we must examine the due process
obligation of the Government by its contracting to abide by the
"Disputes" clause.
This issue was thoroughly addressed in the Circuit Court of the
District of Columbia in the case of Jonal Corporation v. District
of Columbia, 175 U.S. App. D.C. 57, 533 F.2d 1192, cert. denied,
429 U.S. 825 (1976). In that case the question was whether the
District of Columbia Contract Appeals Board violated the
contractor's due process rights. The Court described the
plaintiff's argument in these terms:
"[S]ince the Corporation Counsel of the District of Columbia, or
his designated representative, appointed all the members of the
panel, and since the counsel for the District of Columbia was the
Corporation Counsel for the District of Columbia, represented by
an Assistant Corporation Counsel, who was both defending the
District of Columbia against Jonal's claim and prosecuting its
claim for liquidated damages against Jonal, it was 'being
required to try its case before its adversary's lawyer'."
Jonal Corporation v. District of Columbia, supra, 533 F.2d at
1195 (quoting plaintiff's brief).
The court, after reviewing applicable due process principles,
took particular notice of the Supreme Court's decision in
Marcello v. Bonds, 349 U.S. 302 (1955), which denied a claim of a
due process violation in the context of deportation proceedings:
"The case has consistently been interpreted to stand for the
general proposition that the combination in administrative
procedures of judging with prosecuting or investigating functions
is not, per se, a denial of due process. E.g., American
Telephone and Telegraph Co. v. F.C.C., 449 F.2d 439, 455 (2d
Cir. 1971); Kinsella v. Board of Education of Central School
District No. 7, 378 F.Supp. 54, 60 (W.D.N.Y. 1974); Toney v.
Reagan, 326 F.Supp. 1093, 1099 (N.D.Cal. 1971); K. Davis,
Administrative Law Treatise � 13.02, p. 1975 (1958); cf. Escalera
v. New York City Housing Authority, 425 F.2d 853, 863 (2d Cir.
1970)."
Jonal Corporation v. District of Columbia, supra, 533 F.2d at
1196.
The Court then discussed a more recent Supreme Court case,
Withrow v. Larkin, 421 U.S. 35 (1975), noting "the case's
pronouncement of the presumption in favor of impartiality in
administrative hearings irrespective of some overlap of
adjudicative, prosecutorial and investigative function . . . ."
533 F.2d at 1197.
The court concluded:
"In the absence of evidence of actual personal bias or pecuniary
interest, we hold that the fact that the Board membership was
appointed by the Corporation Counsel, and the fact that the
Corporation Counsel was also responsible for appointing an
individual to prosecute and defend the case on behalf of the
District of Columbia before the Board, does not, per se,
constitute a violation of the due process clause of the Fifth
Amendment."
533 F.2d at 1197. See also Giambanco v. Immigration and
Naturalization Service, 531 F.2d 141, 143-145 & n.7 (3rd Cir.
1976).
Jonal Corporation would seem to preclude appellant's due process
objection. Appellant's attorneys were specifically referred to
this case by the Board. However, it is not addressed in any of
the numerous papers the attorneys, George W. McManus and Joseph
T. Williams, filed on behalf of their client in this case.
Rather, appellant chose to rely on Wong Yang Sung v. McGrath, 339
U.S. 33 (1950), which involved the Administrative Procedure Act
rather than due process requirements and which was, at any rate,
superseded by Marcello v. Bonds, supra, and on Columbia Research
Corporation v. Schaffer, 256 F.2d 677 (2d. Cir. 1958), which
likewise involves the APA.
The only apparent attempt to discuss or distinguish the Jonal
case was the following discourse by Mr. McManus during the course
of the hearing.
"Therefore, having looked at Jonal Corporation versus District of
Columbia, we are of the opinion that the facts here are such that
there is a personal and proprietary financial interest on the
part of the Board, and furthermore, in this case, there are no
other members of the Board at all, no members of any independent
nature, or even representing Eikenberg. It isn't like, say where
you have a Board of Arbitrators where one is picked by each of
the disputants, and they in turn are picked by another.
So as a consequence, we feel that as indicated by Jonal
Corporation versus District of Columbia, that there is a
violation of the due process principles, and that it is so self-
evident that it doesn't become a question of fact, but one of
law, and therefore, we think that this Board should make up its
own mind as to what to do, because we are going to abide at this
stage procedurally, with what the Board decides."
(TR-III, 23).
How this argument may have been "self-evident" to Mr. McManus is
not clear to the Board. 6/ We feel that Jonal Corporation puts
to rest appellant's due process objection based on inherent
conflict of interest in this situation. 7/ However, as Mr.
McManus points out, this is completely a question of law on which
the decision of this Board, by virtue of the disputes clause, is
not final. Moreover, the thrust of this objection really is
aimed at the degree of judicial review that appellants will be
afforded when and if our decision in this case is appealed to a
court of competent jurisdiction. As noted previously, appellant
has contracted for a decision by the Public Printer or his duly
authorized representative. We believe that we have given
appellant the fair hearing which it has contracted for. We
certainly have no control over whether a reviewing court will
find this record sufficient to make a decision on the record
according to the standards of the Wunderlich Act, 41 U.S.C. �
321 (1976), or may wish to hear the matter de novo. Whether the
procedures the appellant has followed before this Board employs
sufficient safeguards of due process so as to be reviewable under
these standards is a question to be resolved by the court and
certainly not by this Board.
Appellant makes a related objection of personal bias on behalf of
one or all of the members of the Contract Appeals Board. 8/ Each
of the undersigned sincerely believes that he is unbiased and
perfectly capable of rendering an impartial decision in this
case. We are unable to do more. Again, it would seem to be up
to a reviewing court to make a determination as to whether
personal bias or prejudice is so apparent in the conduct of the
administrative proceedings as to invalidate them, rather than for
this Board to do so. Jonal Corporation v. District of Columbia,
supra, 533 F.2d at 1197
Administrative Procedure Act
Appellant, in its Reply to Post-Hearing Brief of Respondent, at
10-11, raises a new issue related to the prior argument, namely
that "the Board operates in direct violation of the
Administrative Procedures [sic] Act." Specifically, it is
contended that 5 U.S.C. � 554(b)(2) (1976) has not been followed
by the Board. That section states:
"(b) Persons entitled to notice of an agency hearing shall be
timely informed of --
(1) the time, place, and nature of the hearing;
(2) the legal authority and jurisdiction under which the hearing
is to be held; and (3) the matters of fact and law asserted.
5 U.S.C. 554(b) (1976).
Appellant's contention is not well taken. As a preliminary
matter, we point out that the particular section cited was
complied with in full. However, we need not discuss this further
as the statute is irrelevant to this proceeding. Leaving aside
the fact that the Government Printing Office, as an Office of the
Legislative Branch of the Government, 9/ is not covered by the
Act, 10/ we find that the section in question has no application
to contract appeals boards even in the Executive Branch. Its
scope is defined as follows:
"(a) This section applies, according to the provisions thereof,
in every case of adjudication required by statute to be
determined on the record after opportunity for an agency hearing.
. . "
5 U.S.C. � 554(a) (1976). (Emphasis added).
As our emphasis indicates, the key phrase is "adjudication
required by statute." Without a statute requiring an
adjudication, the section is not operative. E.g., Sisselman v.
Smith, 432 F.2d 750, 754 (3rd Cir. 1970); LaRue v. Udall, 116
U.S. App. D.C. 396, 234 F.2d 428, 432 (1963), cert. denied, 376
U.S. 907 (1964). As we have stated previously, the adjudication
in question here is required only by the pertinent contract
clause. We know of no statute, and appellant has pointed none
out, that requires this hearing. 11/
Jurisdictional Argument
Appellant next challenges the Board's authority to decide this
appeal on jurisdictional grounds. In support of this contention,
it makes four inter-related points:
"1. This matter is not a dispute 'arising under the contract' as
defined by the Supreme Court.
2. The disputes clause was part of a contract which had expired
before this claim arose. The disputes clause did not, by its own
terms, survive the expiration of the contract. When the contract
expired, so therefore did the validity of the disputes clause.
3. Final payment, indicating acceptance, had been made to
Eikenberg by GPO before this claim arose. A presumption was thus
created that this transaction was closed.
4. The only question which must be answered to resolve this
matter is a legal one, of contract interpretation, which is
beyond the scope of the disputes clause."
Appellant's Memorandum at 6-7
Appellant correctly notes that the disputes clause in a federal
procurement contract has been limited to claims "arising under
the contract" as opposed to claims for "pure" contract breach.
United States v. Utah Construction & Mining Co., 384 U.S. 394
(1966). 12/ Appellant then gives his view of the impact of this
decision on this case:
"If there were a clause in the contract relating to this specific
problem, i.e., the allegation of overpayment subsequent to
contract termination and a dispute were to arise in regard
thereto, then the Board would have jurisdiction over that matter.
Because there is no provision in the contract dealing with this
situation, there is no dispute 'arising under the contract' as
defined by the Supreme Court."
Appellant's Memorandum at 8.
Our main difficulty with the appellant's explanation is that the
contract in question contains a payment clause to which the
disputes clause is specifically made applicable. (Bd. Ex. 1b).
Appellant never attempts to distinguish this clause. As far as
we can tell, the only factor which at all differentiates this
case from appellant's own hypothetical is that here the
Government is seeking reimbursement of the overpayment subsequent
to the contract termination.
We do not see this as relevant to the operation of this
provision. While the clause bars a contractor from the assertion
of any exceptions to the amount paid unless the contracting
officer is notified in writing within 60 days of the payment, no
such restriction is placed on the Government's right to make such
assertions.
An examination of the cases on which appellant relies for support
disclose like conceptual difficulties. For example, Transport
Properties, Inc., PSBCA No. 165, 76-1 BCA 11,687 (1976), is cited
in support of the contention that the Board has no jurisdiction
after the expiration of the contract. However, this case deals
not with a contract dispute, but with the contractor's contesting
its failure to receive the award of the new contract after the
previous contract, which the contractor had performed, had
expired. In dismissing the claim, the Board was merely adhering
to the long-standing principle that issues relating to whether a
contract is awarded are outside of board jurisdiction. No such
problem is presented here.
Appellant also would mistakenly rely on Chrysler Corp., ASBCA No.
17259, 75-1 BCA 11,236, aff'd (in pertinent part) on
reconsideration, 76-1 BCA 11,665 (1975), where the contracting
officer had made a determination of allowability in accord with
an allowable cost, fixed fee and payment clause which bound the
Government contractually to pay in accordance with his decision.
The contracting officer had mistakenly allowed certain overhead
as an allowable cost. The Board did not permit the Government to
recoup these costs, noting that the contracting officer did not
act in excess of his authority and that the contracts
specifically included a clause limiting the Government to
auditing the contractor's invoices or vouchers prior to the final
payment of the contract (no such provisions appeared in the
Eikenberg contract). As appellant here stresses, the Board did
acknowledge "the general presumption" that completion of contract
performance and payment of "a stipulated consideration" bars the
Government from reopening the transaction. 75-1 BCA 11,236 at
53,491. However, appellant fails to mention the Board's language
immediately following this principle:
"The Government has cited many cases in support of its
contentions that (1) the excess of the accrual amounts over the
insurance premiums were wrongfully or erroneously paid to
appellant and are recoverable by the Government and (2) that
final payment was not a bar to recovery by the Government of
wrongful or erroneous payments. We recognize that in given
situations the Government may recoup monies wrongfully or
erroneously paid and that final payment may not be a bar to
recovery by the Government of such payments; however, this is not
one of those situations."
75-1 BCA 11,236 at 53,491 (Emphasis added). 13/
We believe that the claim of erroneous overpayment here is one of
these given situations.
In our view, the decision of the Armed Services Board of Contract
Appeals in A. Padilla Lighterage, Inc., ASBCA No. 17288, 75-2 BCA
11,406 (1975) (cited by neither side here) is dispositive on this
point. In that case, the Board considered a demand for repayment
by the contracting officer for an amount overpaid to a contractor
due to its use of a rate of Foreign Exchange other than that
specified by the contract. The case arose because the General
Accounting Office, a year after the last payment on the contract
had been made, determined that there had been an overpayment.
Because of the similarity to the case at bar, we quote at length
from the Board's response to appellant's jurisdictional attack in
that case:
"Appellant contends in respect to the exchange rate problem that
the Government's claim should be dismissed because there is no
clause in the contract specifically authorizing the Government to
claim a refund of payments erroneously made. Appellant relies
upon the rationale of Potomac Power Company, GSBCA No. 3448, 72-1
BCA 9419. This contention, of course, is directed to the question
of our jurisdiction. In Potomac Power Company, where a refund
was sought, the GSA Board concluded that it did not have
jurisdiction because there was not a clause providing for a
refund. We have not taken such a limited view of our
jurisdiction and are persuaded that we should not do so. See J.
J. Fritch General Contractor, Inc., ASBCA Nos. 13445 and 13672,
70-1 BCA 8123, Harrington and Richardson, Inc., ASBCA No. 9839,
72-2 BCA 9507, Roy F. Weston, Inc., ASBCA No. 17490, 73-2 BCA
10,188; Eaton Corporation, ASBCA Nos. 17713 and 18378, 74-2 BCA
10,697.
What is involved here is the recoupment of a erroneous payment
made to appellant by means of an 'offset' against funds admitted
owing to the appellant. We observe first that the dispute
between the parties clearly arose out of the performance of the
contract and is thus a dispute as to a question of fact arising
under the contract. The claim is one which the Government could
assert as it did. The contract provided, clearly in our view, in
what manner appellant was to be paid it did so in the General
Provision entitled 'Payments' and the Special Provision entitled
'Currency to be Used for Payments'. The question for us to
decide is whether appellant was paid in accordance with those
provisions. In our view if it was not then those same provisions
provide ample basis upon which we can determine the proper
payment to which appellant is due. We conclude that we have
jurisdiction to make that determination."
75-2 BCA at 54,307-08.
As we see it, this case stands for the proposition that a
contract appeals board has jurisdiction to rule on an alleged
overpayment by the Government to a contractor due to the
contractor's alleged misinterpretation of contract terms, whether
or not the contract has expired when the Government seeks
payment.
Appellant's citations for the proposition that contract
interpretation is a question of law precluding a decision by this
Board are no more persuasive. We are, of course, bound by the
Court of Claim's view "that interpretation of contract documents
is a judicial function to be performed independently of any Board
decision." Arundel Corp. v. United States, 207 Ct. Cl. 84, 515
F.2d 1116, 1123 (1975) (citation omitted) (one of several cases
cited by appellant for this proposition). However, these cases
do not say that a Board may not interpret contract documents.
They only state that on interpretation of contracts, as with any
other issue of law, a court may substitute its judgment for that
of the Board, which it is not able to do concerning findings of
facts made upon substantial evidence. This is the mandate of the
Wunderlich Act, and goes to the standard of judicial review
rather than Board authority. In fact, the disputes clause
specifically states that it "does not preclude consideration of
law questions in connection with decisions" resolving factual
disputes. Article 29, United States Government Printing Office
Contract Terms No. 1 (1970).
We thus deny Eikenberg's motion to dismiss the claim of the
contracting officer due to lack of Board jurisdiction.
Estoppel
Appellant's next argument is a sympathetic one, namely that the
GPO should be estopped from billing for the overpayment because:
"[t]he evidence is that the GPO accepted and paid Eikenberg's
charges under Item IV(a), throughout the term of this Contract
without ever having questioned or challenged the fact that
Eikenberg had billed this item on the basis of the number of
print orders inserted in envelopes by Eikenberg employees.
Moreover, the GPO frequently did make adjustments and changes in
invoices submitted by Eikenberg with regard to other items of
work performed under this Contract by Eikenberg and also on Item
IV(a) charges. In fact, when Item IV(a) billings were corrected
by GPO, even these corrections were made on a per print order
basis. On one work sheet the GPO had even written 'per print
order' next to such a change, indicating that the GPO had
interpreted this charge identically to Eikenberg's
interpretation."
Hearing Memorandum at 11. (Emphasis in original). See Bd. Ex. 17.
While we accept appellant's view of the facts quoted above, we
cannot accept the legal conclusion it draws. While such a course
of conduct might well estop a private party in this situation,
parties dealing with the Federal Government are bound by
different rules. We found above that the contracting officer had
no relationship to the payment of vouchers pursuant to this
contract. In Deloro Smelting & Refining Co. v. United States,
161 Ct. Cl. 489, 317 F.2d 382 (1963) (which appellant was invited
to distinguish and did not address), the court dealt with a
similar situation and resolved it in this fashion:
"This is another case (see W. H. Edwards Engineering Corp. v.
United States [161 Ct. Ct. 322], decided April 5, 1963) in which
the evidence of the parties' subjective intention is of little
assistance. The critical issue was not broached until 1954 and
there is no adequate showing of what the parties consciously
thought about the point, if it was in mind at all, prior to that
time. In this connection, we attribute little significance to
the course of payments by defendant (in 1951, 1952, and 1953)
using the date of actual delivery for the cobalt market price
quotation or for the dollar rate of exchange. These payments
were made, more or less routinely, by fiscal and accounting
employees who had no procedures for determining whether the
shipments were late and did not concern themselves with that
problem. The defendant's contracting officers were wholly
unaware of the basis of the payments, of plaintiff's filing of
amended invoices . . ., or of the existence of any issue between
the parties as to the proper method of calculation. If the
Government officials whose actions are cited as revealing the
defendant's own construction of a contract are not significantly
tied to the administration of contract performance, their conduct
is meaningless as an aid to contract interpretation. When the
canon of construction speaks of giving weight to the 'parties''
own interpretation, it refers, so far as the Government is
concerned, to a responsible officer assigned the function of
overseeing the essentials of contract performance -- not to any
federal employee or officer whose work happens to be connected
with the contract. Agency fiscal or finance offices are not
ordinarily a significant part of the process of negotiating and
performing contracts. Cf. United States v. Joseph A. Holpuch
Co., 328 U.S. 234, 240-241, 66 S.Ct. 1000, 90 L.Ed. 1192 (1946).
The auditors' payments on which plaintiff relies do not,
therefore, advance its cause."
317 F.2d at 385-86 (footnotes omitted); see also, A.Padilla
Lighterage, Inc., supra, at 54,308.
Even had the contracting officer been aware of the contractor's
method of billing, appellant's argument would fall before the
established principle that the Government has not only the right,
but indeed the constitutional duty, to recover erroneously paid
sums, "and that it cannot be estopped from doing so by the
mistakes of its officers or agents." Aetna Casualty & Surety Co.
v. United States, 208 Ct. Cl. 515, 526 F.2d 1127, 1130 (1975),
cert. denied, 425 U.S. 973 (1976); Fansteel Metallurgical Corp.
v. United States, 145 Ct. Cl. 496, 172 F.Supp. 268, 270 (1959).
We therefore hold that the GPO is not estopped from collecting
the money in question if erroneously paid.
Contract Interpretation: The meaning of "per envelope"
This brings us to the central question of appellant's case:
whether the payments in question were indeed erroneous.
Appellant makes this attack on several fronts. One of its
stronger arguments is that in the preceding year of the contract,
the previous contractor had billed in the same manner as
Eikenberg on the relevant item. 14/ Eikenberg concludes:
"In a long line of cases, the Court of Claims has firmly
established the rule that the parties' interpretation of a
previous contract containing specifications identical to those
currently in dispute may be determinative of how the disputed
specification should be construed."
Appellant's Memorandum at 15.
While this is certainly a valid point of law, we cannot find it
dispositive in this case. First, the argument is essentially
that the Government has waived its current interpretation of the
contract provision in question and, having done so, is estopped
from asserting it. Gresham & Company, Inc. v. United States, 200
Ct. Cl. 97, 470 F.2d 542, 555 (1972). However, Gresham also
recognizes that such a waiver "requires a decision by a
responsible officer assigned the function of overseeing the
essentials of contract performance . . ." 470 F.2d at 555. In
light of the court's view of the proper authority concerning
payment, as discussed above, and recognized by the citation of
Deloro Smelting, supra, in the Gresham case, the action
characterized here as a waiver was performed by Financial
Management employees having nothing to do with the administration
of the contract. 15/
Moreover, Eikenberg was not the contractor on the preceding
contract, and presented absolutely no evidence that it knew of or
relied on the prior contractor's bid. Nor did Eikenberg present
any evidence that the GPO contracting officer should have known
of any different interpretation from another source, for instance
the view of the Civil Service Commission, the agency for which
the materials were procured. With an evidentiary showing on
either of these points, the argument would have been considerably
more persuasive. However, Eikenberg's counsel made the
surprising decision to present no case whatsoever at the hearing,
and thus failed to develop any support for these contentions.
(TR-IV 3, 19). 16/
Eikenberg contends that the provision in question is ambiguous,
and should thus be construed against the Government. Hearing
Memorandum at 7-11. The claimed ambiguity, it continues, led it
to bill for Item IV(a) on the basis of a particular amount per
print order, rather than per envelope. It is undisputed that
appellant did bill (and was paid) on per print order basis on
this item. The Government's position, of course, is that there
is no ambiguity and Item IV(a) should have been billed and paid
on a per envelope basis.
Appellant pursues its ambiguity argument in several ways. We
will explain its contentions to the best of our ability, but we
find none of them convincing since none credibly provide an
explanation of the meaning of the phrase other than what it says
on its face, namely that the contractor was to bill on this item,
inserting multiple copies in pre-addressed envelopes, by the
envelope. 17/
If it had not billed for this item in the manner it did,
appellant contends, not it would not have been compensated for
"performing the individual tasks required of it in inserting each
of the print orders being held for combination." Hearing
Memorandum at 8. By not breaking down the schedule of prices to
provide for separate bids if various numbers between 2 and 8
print orders were required to be combined, the argument
continues, see Bd. Ex. 1b at 5 of 6, the Government "caused a
substantial uncertainty of meaning to exist in the Contract."
Hearing Memorandum at 9.
Additionally, it is alleged that the trade practice in the
printing industry supports this interpretation of this clause.
Eikenberg explains what it feels is wrong with the phrase in
question, in language which is simply not susceptible of
paraphrasing:
"Within IV(a) there is an omission which, if supplied, would
explain when Eikenberg should have billed $ .18. One of two
phrases could be inserted in order to give IV(a) precise meaning.
The first phrase which could be inserted after the word 'copies'
is 'of a print order'. The second phrase which could be inserted
is 'of multiple print orders'. Because both phrases were omitted
from the contract, Eikenberg interpreted the contract in the same
manner as the prior contractor, and consistently with the rest of
the contract. There was substantial testimony which proved that,
wherever the word 'copies' was used in other places in the
contract, it meant 'copies of a print order'. There is no
justification in the contract for interpreting the word 'copies'
in IV(a), page 12 of 12, differently from the word 'copies' when
used elsewhere. The word 'copies' suggests a clear meaning. A
copy of a document and multiple copies of a document must be
identical to that document. Because a copy of one print order is
not a copy of another print order, the omitted term following
'copies' must logically be 'of a print order' or copies of the
same document. 'Copies' must mean copies of the same thing,
because it is not described any further, and there is no
ambiguity when IV(a) is read the way Eikenberg interpreted it."
Appellant's Memorandum at 19. (Emphasis in original.)
Appellant also claims that if the words "per envelope" control
the price in Item IV(a), GPO's position is that the "bare words
closest to the price are controlling." 18/ This would mean that
appellant had been underpaid for other items.
All of these arguments fly in the face of law as well as common
sense. Taking the last first, we quote in full the portion of
the contract appellant uses as an example:
"II. PRINTING AND BINDING: The prices quoted are all inclusive
and include the cost of negatives of text pages, imposition,
offset platemaking, press makeready and running, paper, ink, and
binding.
Printing in black or any single color of Ink
Printing on Printing on
160 lb white offset 140 lb colored offset
First 1,000 Each add'l First 1,000 Each add'l
copies 1,000 copies copies 1,000 copies
(1) (2) (3) (4)
8 x 10-1/2":
(a) One side only $ $ $ $________
(b) 2 pages...... ________ ________ ________ ________
(c) 4 pages...... ________ ________ ________ ________
5-1/4 x 8":
(d) one side only . _______ ________ ________ ________
(e) 2 pages ....... _______ ________ ________ ________
(f) 4 pages ....... _______ ________ ________ ________
(Bd. Ex. 1(b) at 11 of 12.)
If proximity controls, this argument goes, the bid in II(c)(l),
for instance, would be for four pages, rather than the first
1,000 copies of four pages, as is clearly indicated by the layout
of the item, as appellant agreed, and so bid.
However, the Government's position on Item IV(a) does not depend
on mere proximity. The phrase clearly indicates that the bid is
to be per envelope, and not in some other unit. No other unit,
including print orders, are mentioned. There is no other guide
for making the price determinations, as there is with the table
format employed for the bids in Part II.
Neither this or the previous argument, gives any explanation of
what "per envelope" means were we to accept Eikenberg's
interpretation. This is contrary to the well established
principle that a reasonable construction of a contract does not
leave a specific term inoperative or superfluous.
Astro-Space Laboratories, Inc. v. United States, 200 Ct. Cl. 282,
295, 470 F.2d 1003, 1010 (1972); Bishop Engineering Co. v. United
States, 180 Ct. Cl. 411, 416 (1976). Nor do these arguments
explain why appellant apparently had no trouble reading Items
IV(b) through (d),as ''per bag or bundle," "each," and "per
container," respectively, when bidding. Yet "per envelope"
occupies exactly the same position in its particular item as
those phrases do in theirs. See Findings of Fact at 4 above.
Appellant contends that the contract terms in question contains
"an omission which, if supplied, would explain when [sic]
Eikenberg should have billed $ .18." Appellant's Memorandum,
supra.. But this is simply creating an ambiguity on the part of
appellant. "[A]ny word or group of words can be twisted, by
strained construction, into an ambiguity." Southern-Construction
Company v. United States, 176 Ct. Cl. 1339, 1362, 364 F.2d 439,
453 (1966); Aero Mayflower Transit Company v. United States, 162
Ct. Cl. 233, 237 (1963). Appellant is attempting to take a plain
phrase out of the contract and call it an ambiguity. This is
certainly an invalid interpretation of the canons of contract
construction, as we understand them.
Nor are we more impressed by the "trade custom" argument based on
the billing of the previous contractor and supported by
appellant's one witness. First it must be remembered that "[a]
trade practice cannot prevail over unambiguous provisions of a
contract. . . ." George Hymen Construction Company v. United
States, Ct. Cl., 564 F.2d 939, 945 (1977). Not only does the
phrase clearly ask for a bid "per envelope", the contractor is
also warned that "[t]he prices quoted are all inclusive and
includes [sic] the cost of inserting in envelopes . . . and all
materials and services related thereto." (Bd. Ex. 1b at 12 of
12). Again, this argument simply does not explain what "per
envelope" is doing in the clause, and appellant's expert was not
any help in resolving this. (TR-I, 177.) Nor did appellant's
expert very convincingly explain why Item IV(a) should have been
billed any differently than the other items in section IV. (TR-I,
182, 183.) Even so, no evidence was presented that appellant knew
of or relied on the previous contractor's bid.
We have no reason to disbelieve appellant when it states that
bidding "per envelope" would have made it impossible to tell
exactly how much to bid, since the contractor would not be
certain as to how many print orders would be in each mailed
shipment. However, this is what the contract calls for. If a
contractor chooses to interpret a contract in such a way so as to
ignore a specific provision, it must rely on this interpretation
at its own risk. In other words, if by its interpretation,
Eikenberg created an ambiguity sufficiently patent, it should
have inquired of the Government as to the meaning of the phrase.
Burnett Electronics Lab, Inc. v. United States, 479 F.2d 1329,
1332 (Ct. Cl. 1973); Space Corporation v. United States, 200 Ct.
Cl. 1, 470 F.2d 536 (1972). The record does not reveal that
appellant ever made such an inquiry.
We thus must conclude that there was no ambiguity in this
contract, and that without such ambiguity, the Government's
position, based on the plain words of the phrase in question,
must prevail. Without such ambiguity, rules of construction
calling for interpretation against the Government, as the drafter
of the contract, are simply inappropriate. We can best sum this
up by quoting the Court of Claims on this issue:
"Contracts are not necessarily rendered ambiguous by the mere
fact that the parties disagree as to their meaning. There must
be a reasonable uncertainty of meaning. . . . The fact that the
interpretation placed by plaintiff upon the specifications may be
considered conceivable, is not the proper basis for construction
of the contract against the author of the language."
Southern Construction Company v. United States, 176 Ct. Cl. 1339,
1361, 364 F.2d 439, 453 (1966) (citation omitted); ITT Arctic
Services, Inc. v. United States, 207 Ct. Cl. 743, 524 F.2d 680
(1975).
Damages
Appellant's next contention is that it must prevail in this
appeal because the Government has failed to prove damages. In
order to prove its case, appellant argues, the GPO would have to
show not only that "certain payments were not justified by terms
of the contract" but also that "those certain unjustified
payments, when totaled, amounted to a sum certain." Appellant's
memorandum at 23.
Appellant is correct, and the Board has already so ruled, see TR-
I, 3-4, with respect to the Government having the burden of proof
in a claim of overpayment. However, appellant was asked to frame
the issues in this case as early as September 2, 1977. At no
time, until almost a year later, actually during the formal
hearing, did appellant make any objection to the mathematical
calculations of the overpayment. Rather, appellant consistently
contested only the contract interpretation issues. 19/
Lack of timeliness notwithstanding, the appellant's position is
legally incorrect. Nothing forecloses this or any other Board
from reaching a decision on the issue of liability but remanding
on quantum. Such severance of issues is common both before the
various Boards of Contract Appeals and the Courts. Appellant has
not cited any authority that would lead us to a contrary
conclusion.
We do agree with appellant that the Government has not prove the
specific amount of overpayment in issue. However, we have found
that the Government's interpretation of the contract was correct,
and that Eikenberg, since it by its own admission billed per
"print order," rather than "per envelope" on the provision in
question, overbilled the Government. Having framed the issues in
terms of liability, rather than amount, appellant will
not be allowed to say that because the Government did not prove a
specific amount, it may not collect for the erroneous
overpayment.
We must also put to rest the mistaken notion that "damages" is
somehow an element in the Government's case. We know of no case
involving a claim of overpayment that so holds, and appellant
cites none. Representations made during argument indicate that
counsel for appellant is perhaps viewing this issue in terms of
breach of contract. We reiterate that breach of contract is not
the issue here. Moreover, as we understand it, damages is not an
element of a breach of contract claim. 20/ On the contrary, even
"[i]f the aggrieved party has suffered no damage" in the case of
a breach "he is entitled to a judgment for nominal damages . . .
to symbolize vindication of the wrong done to him." J. Calamari
& J. Perillo, Contracts, � 203 (1970) (footnotes omitted).
This does not mean that appellant owes the Government the amount
mentioned in the original final decision of the contracting
officer. We believe it is incumbent on the contracting officer
in a case of this nature to fully account to the contractor
concerning the amount owed. If a dispute later arises between
the parties concerning the amount, the contractor may appeal the
final decision of the contracting officer as to amount to the
Board or its successor. We feel this is the only fair result.
We certainly are not going to attempt to ascertain quantum on
this record, nor estop the contractor from contesting the
Government's estimation of quantum. It is simply not an issue
presented in this appeal.
Evidence Tampering
Appellant charges, in its Reply to Post-Hearing Brief of
Respondent, pages 1-5, that:
"[a]ccounting documents, which had not been admitted in evidence,
have been placed in the Appeal evidence file. These documents
had been changed, in ink and by hand, subsequent to the Hearing.
By far more serious changes additionally appeared [sic] to have
been made on the documents in evidence, by persons unknown, which
changed or corrected billing totals thereon. It is impossible,
as a result, to determine how payment was made thereunder,
whether according to the original totals, or according to the
totals as changed. Because GPO produced no testimony concerning
the vouchers as it was instructed to do, (supra ) the invoices
themselves cannot speak as to how the payments were made by GPO."
Appellant's Reply to Post-Hearing Brief of Respondent at 3-4.
Appellant's counsel was asked to substantiate this charge, and
declined to. We must only assume that he cannot. However, due
to the gravity of the charge a few comments are in order.
The evidence apparently referred to is a box of vouchers admitted
as appellant's Exhibit C and D during the hearing. Because of
the bulk of these exhibits, copies were not made by the parties
as was done with the rest of the evidence. The evidence was
subject to the custody of the Board.
Both appellant's and the contracting officer's representatives
were permitted access to this material and were allowed to study
it without hindrance by the Board.
As we have stated, we reach no decision in this case on the
quantum owed by Eikenberg. For that reason, the Board has had no
need to consider the allegedly "tainted" evidence in reaching its
decision. The evidence is, therefore, excluded from the record
for decision in this case.
The Board will retain custody of the exhibits in question,
however, until the parties can agree on the disposition of them
in light of this decision.
Conclusions
We are not questioning the contractor's good faith in its
contention that it billed according to the manner in which it
understood the contract provision. Nor are we questioning that
the sudden receipt of this claim of over payment was, to say the
least, an unpleasant surprise to the contractor. However, the
fact that a hardship, even of cataclysmic proportions, may result
from the Government's recouping this erroneous overpayment is not
a legal defense. 21/ Contrary to appellant's supposition,
interpretation of Federal procurement contracts are governed by
Federal law. E.g., United States v. Seckinger, 397 U.S. 203, 209
(1970); United States v. County of Allegheny, 322 U.S. 174, 183
(1944). 22/ We acknowledge that a very different result might be
possible by the application of state law if a private contract
were at issue. For example, the delay in claiming the
overpayment might well be cause to invoke laches. However, the
doctrine of laches has no application to the Federal Government.
Seee.g., United States v. Summerlin, 310 U.S. 414, 416 (1940);
United States v. Ulvedal, 372 F.2d 31, 35 (8th Cir. 1967)
(Blackmun, J.). We are therefore constrained to reach the legal
conclusion which we do. The contract may not be a model of good
draftsmanship, but this does not render it legally ambiguous.
Likewise, we find the delay with which the Government acted in
this case very unfortunate. However, we are not able to let
these considerations sway us. We have reached, in our judgment,
the proper legal decision, and the only possible legal decision
in this case.
We believe that one more comment is in order. From the record,
and previous comments in this decision, it is apparent that
appellant's counsel was less than pleased with this Board.
However, at no time did we let the conduct of counsel interfere
with our judgment in this case. We attempted to extend every
convenience to appellant and its counsel. For example, when this
case first arose, appellant requested an informal hearing,
without a verbatim transcript. We granted this request, and held
that hearing. When appellant was dissatisfied with the record
produced as a result, we gave him the opportunity to request a
formal hearing to supersede the prior, informal one. For reasons
known only to appellant's counsel, appellant, except to a
limited extent previously noted, failed to present any case at
the formal hearing. Perhaps a different result might have been
possible had appellant presented additional evidence in support
of some of its many contentions. However, we are bound by the
record before us, and on this record, we have reached the only
decision possible.
Decision
For the reasons stated above, we reach the following decisions:
Appellant's motions to dismiss are denied.
Appellant's "counterclaim" is dismissed.
The appeal is denied in its entirety.
The Board's decision is limited to the proper interpretation of
the contract terms in question. Thus, the Board makes no
findings and contract terms reaches no decision on the amount
owed by the contractor resulting from its improper interpretation
of the contract specifications.
This decision is without prejudice to the contractor if, after a
final decision of the contracting officer specifically accounting
for the amounts deemed owed under this contract, it wishes to
contest the amount and appeal the decision to the appropriate
authority.
_______________
1. For convenience, during the course of the appeal, all
exhibits in the appeal file, whether submitted to the Board by
the contracting officer or appellant, have been designated as
Board exhibits except for those introduced at the hearing by
appellant. Certain pleadings were numbered as exhibits, and
these exhibit numbers are deleted (Bd. Exs. 7-10, 18-19).
2. The Washington, D.C. Regional Printing Procurement Office is
located separately from the central GPO facility.
3. This procedure has changed since the time of the appeal. The
new procedure, however, will be even less formal than the current
one.
4. The contracting officer's representative in this case is
Lawrence W. Kennelly, Esq. At the time of his appointment to
the case by the Chairman, he was Associate General Counsel of the
GPO, but has since moved to the Office of Labor-Management
Relations. The procurement specialist who generally served in
this role, could not be appointed because the Board had consulted
him on a legal matter related to this appeal shortly after it was
filed. It should also be noted that apart from the procurement
specialist, the office attorneys spend the remainder of their
time on litigation and other matters unrelated to procurement.
5. The clause language tracks that of the standard federal
disputes clause. Compare 41 CFR � 1-7.102-12 (1978). That the
contractor is bound by the remedy contracted for was established
in United States v. Moorman, 338 U.S. 457 (1950).
6. Mr. McManus apparently withdrew the proprietary interest
charge later on. See Appellant's Memorandum at 4.
7. Appellant also rests this contention on various portions of
the Code of Professional Responsibility and the Canons of
Judicial Ethics. After careful examination, we conclude that we
are not in violation of any of the CPR guidelines cited, and that
the Canons do not apply to us. A collateral attack by appellant
on this point failed when the Committee on Professional
Responsibility of the American Bar Association declined to issue
an opinion on this matter. Appellant then sought the opinion of
the Board
on Professional Responsibility of the District of Columbia bar.
By letter dated April 12, 1979, that Board concurred in our view
that the CPR sections cited were irrelevant to this situation.
8. The bias objection is specifically permitted by Jonal, 533
F.2d at 1197. While this seems to be directed to all Board
members, only the Chairman is referred to in the specific
allegations. Of course, each Board member speaks for himself on
this issue and cannot speak for his colleagues.
9. See United States v. Allison, 91 U.S. 303 (1975); Duncan v.
Blattenberger, 141 F.Supp. 513 (D.D.C. 1956).
10. The APA does not cover Congress. 5 U.S.C. 551(1)(A)(1976).
11. In the contract appeals context, this point has been
recognized by several authorities. See United States v. Carlo
Bianchi & Co., Inc., 373 U.S. 709 (1963) (Douglas, J.,
dissenting); S. REP. No. 95-118, 95th Cong., 2d Sess., 15 (1978).
The point is not without some controversy, however. Compare
Cuneo, The Administrative Procedure Act Applies to Boards of
Contract Appeals, 1 PUB. CONT. L.J. 18 (1967), with Davis, The
Administrative Procedure Act Applies to Boards of Contract
Appeals, 1 PUB. CONT. L.J. 4 (1967).
12. The Contract Disputes Act of 1978, 41 U.S.C. 601 et seq,
eliminates this difficult and artificial distinction, at least
for future Executive Branch contracts. See section 8(d), 92
Stat. 2386.
13. Certain of appellant's other citations deserve brief mention.
We do not find Compudyne Corporation v. Maxon Construction
Company, 428 F. Supp. 83 (1965), persuasive, as it concerns a
contract between private parties. Likewise, Fitch v. Atomic
Energy Commission, 419 F.2d 1392 (C.C.P.A. 1974), is not helpful,
as it involves interpretation of a particular specialized
statute. 491 F.2d at 1395. And while the district court in
United States v. P. J. Heaton, 195 F.Supp. 742 (D.Neb. 1961) did
hold that the disputes clause did not apply to controversies
arising after contract termination as an alternate ground for its
decision, this view has been disapproved by the Court of Claims
as well as the circuit courts that have considered the issue.
E.g., Bar Ray Products, Inc. v.
United States, 163 Ct. Cl. 836, 837 (1963) ("We do not agree that
disputes issues may not in any case legally arise after the
contract has been completed"); United States v. Taylor, 333 F.2d
633, 640 (5th Cir. 1964) ("better view" is that disputes clause
is not limited to disputes arising during contract performance);
Silverman Brothers. Inc. v. United States, 324 F.2d 287, 289 (lst
Cir. 1963) (citing cases). See also the cases discussed in text.
14. The previous contractor referred to was Braceland Brothers,
Inc. A similar appeal by that contractor was denied by the Board
on July 5, 1978. The contractor after appellant apparently bid
this item on a "per envelope" basis.
15. Without extensive discussion, we note that we have read
appellant's other cases on this point and found them
unpersuasive.
16. While appellant presented no evidence subsequent to the
Government's case, one witness for appellant, Willard Brown, had
been permitted to testify out of order for appellant's
convenience. Giving appellant the benefit of doubt, we therefore
have considered Mr. Brown's testimony in deciding its appeal. We
also have considered a variety of documentary evidence which
appellant submitted or requested to be submitted during the
contracting officer's case. The previous informal hearing held
in this matter has been disregarded and superseded by the formal
hearing which is contained in the transcript.
17. Appellant presented no evidence that the envelopes were not
furnished. However, in appellant's submission labeled
"Counterclaim", it is stated that such envelopes were furnished
to the contractor.
18. This argument is presented in what is termed as appellant's
"Counterclaim". Since, as we have discussed above, appellant is
essentially bringing this appeal, notwithstanding the Government
having the burden due to this being a claim of overpayment. We
do not understand how a counterclaim can be filed by the moving
party. At any rate, we address the contentions contained therein
and dismiss the counterclaim in its entirety.
19. Appellant's initial statement of issues appeared in its Pre-
Hearing Statement, filed October 21, 1979, at 2-3:
"1. The Contract is unconscionable if interpreted and enforced in
accordance with the interpretation placed thereon by the GPO.
2. Appellant's interpretation is within the zone of
reasonableness.
3. Appellant relied on its interpretation of the Contract.
4. Appellant was not under a duty to inquire.
5. The GPO is estopped to deny that Appellant's interpretation of
the Contract is reasonable and correct.
6. The GPO has accepted and acquiesced in the course of
performance of The H. L. Eikenberg Co. under the Contract, with
full knowledge of the nature of that performance and without
objecting thereto during the life of the Contract, and has
thereby waived any terms of the Contract which it alleges to be
inconsistent with that course of performance."
Quantum of overpayment first was raised by appellant at the
formal hearing itself. All of the issues listed are addressed by
this opinion, as well as others that were not timely raised but
the Board viewed as significant enough to warrant decision.
20. Mr. McManus, counsel for appellant, made a somewhat oblique
reference during argument to a Michigan case concerning
destruction of cattle in support of the contrary conclusion (TR-
III; 113). The case was never subsequently cited in the papers
submitted by appellant.
21. See Federal Food Marketers Co., AGBCA 447, 448, 76-1 BCA
11,709 at 55,824, where the Board states:
"There is no provision for granting equitable relief on the basis
of hardship under the contracts. The Board can only grant relief
in situations where an administrative remedy is provided under
some remedy or relief clause in the contracts. United States v.
Utah Construction and Mining Co. [11 CCF 89,489], 384 U.S. 394
(1966); Werner G. Smith, Inc., AGBCA No. 383, 75-1 BCA 10,992
(concurring opinion).
This disposes of appellant's "unconscionability" argument. See
Bd. Ex. 14.
22. The only exception would be where there is no federal
precedent and no express contract language governing the issue,
R. Nash & J. Cibinic, 1 Federal Procurement Law, 802 (3d. ed.
1977) (citing cases). This is not the case with any of
appellant's arguments.