United States Court of Federal Claims.
No. 99-265C.
CUSTOM PRINTING COMPANY
v.
UNITED STATES
Filed: Feb. 15, 2002.
Reissued for publication:
March 4, 2002 [FN*].
Raymond Fioravanti, Washington, DC, for the plaintiffs. Shlomo D.
Katz, of counsel.
Opher Shweiki, Washington, DC, with whom was Acting Assistant Attorney
General Stuart E. Schiffer for the defendant. Roy E. Potter,
Government Printing Office, of counsel.
OPINION
YOCK, Senior J.
On April 30, 1999, the plaintiff, Custom Printing Company ("Custom
Printing"), filed a Complaint against the United States (the
"defendant"), alleging breach of contract and promissory estoppel. On
September 15, 1999, Custom Printing voluntarily dismissed its
promissory estoppel claim, Count II of the Complaint. This matter is
now before this Court on the parties' cross- motions for summary
judgment. For the reasons set forth herein, the defendant's Motion for
Summary Judgment is GRANTED, and the plaintiff's Motion for Summary
Judgment is DENIED.
Background
In early 1998, the Government Printing Office ("GPO") sent out an
invitation for bids ("IFB") for Program C271-S, which involved the
procurement of the U.S. Terminal Procedures Publication (twenty loose-
leaf and twenty perfect-bound volumes), Alaska Terminal Procedures
Publication (one bound volume), and changes therein, as requisitioned
by the National Oceanic and Atmospheric Administration ("NOAA"). [FN1]
The Program C271-S IFB was sent to thirty- seven contractors; in
reply, the GPO received ten no bids and two responsive bids, made by
Custom Printing and Fry Communications, Inc. ("Fry Communications"),
respectively.
Section 3 ("Determination of Award") of the Program C271-S IFB
provided that "[t]he Government will determine the lowest bid by
applying the prices offered in the 'Schedule of Prices' to the
following units of production which are the estimated requirements to
produce [one year's production] under this contract." Def.'s Mot. for
Summ. J.App. at 5, 39. Using the estimated units of production listed
in the Determination of Awards, the total gross contract bid prices
for Custom Printing and Fry Communications were $2,472,216.88 and
$2,591,251.76, respectively. Thus, under the terms of the original
Determination of Awards contained in the Program C271-S IFB, Custom
Printing offered the lowest bid by a difference of $119,034.88. On
June 10, 1998, in accordance with the contracting officer's
recommendation, the GPO awarded the contract for Program C271-S (the
"Contract") to Custom Printing. The term of the Contract was "for the
period beginning Date of Award and ending February 28, 2003." Id. App.
at 6.
The Program C271-S IFB, however, contained a serious underestimate of
the number of strip-ins to be required annually under the Contract. A
"strip-in" is a line on a page that identifies the volume number, page
number, and effective date of the page. While nearly every page of the
U.S. Terminal Procedures publication and the Alaska Terminal
Procedures publication required a strip-in, the Program C271-S IFB
contained the erroneous estimate that only 108 strip-ins would be
needed per year. [FN2] In reality, the number of strip-ins required
was approximately 65,000 per year. [FN3] Based on Custom Printing's
original bid price of $12 per strip-in, its total estimated price for
strip-ins was $1,296 per year. Using the corrected number of strip-
ins, Custom Printing's revised bid price for strip-ins would amount to
approximately $780,000 per year. In contrast, Fry Communications had
offered an original bid price of $0.20 per strip-in, with a total
estimated price for strip-ins of $21.60 per year. Using the corrected
number of strip-ins, Fry Communications' revised bid price for strip-
ins would be approximately $13,000 per year. Assuming that all else
was equal, a change in the annual number of strip-ins required under
the Contract would have increased Custom Printing's estimated total
bid price to $3,250,920.88 per year; while Fry Communications'
estimated total bid price would have increased to only $2,604,230.16
per year. Thus, under the corrected requirements of the Program C271-S
IFB, Fry Communications might have been awarded the Contract as the
contractor with the lowest bid. [FN4]
*2 In approximately December 1998, the GPO's contracting officer, Mr.
Jack Scott, informed Custom Printing that its invoiced charge for
strip-ins was too high and requested that Custom Printing lower its
price for that line item. The GPO and Custom Printing, however, were
unable to reach an agreement as to a revised price for strip-ins. See
Def.'s Mot. for Summ. J.App. at 48-50 (Deposition of John R. Scott,
Contracting Officer). See also Def.'s Opp'n to Pl.'s Mot. for Summ. J.
& Reply to Pl.'s Opp'n to Def.'s Mot. for Summ. J.App. at 1-2
(Deposition of Ronal Cooper, Director of Marketing, Custom Printing).
Section A of the Contract, entitled "General Terms and Conditions,"
explicitly provided that the Contract was subject to "the applicable
provisions, clauses, and supplemental specifications of GPO Contract
Terms (GPO Pub. 310.2, effective December 1, 1987 (Rev.9-88)) * * *."
Def.'s Mot. for Summ. J.App. at 7. Section 19 of the GPO Contract
Terms (GPO Pub. 310.2), entitled "Termination for the Convenience of
the Government," allows the GPO to terminate a contract for the
convenience of the Government. Section 19 states, in pertinent part:
The Government may terminate performance of work in whole or in part
if the Contracting Officer determines that a termination is in the
Government's interest. GPO Contract Terms 19(a) (GPO Pub.
310.2) (Dec.1987 (Rev.9-88)).
On February 1, 1999, the contracting officer submitted a memorandum to
the GPO Contract Review Board requesting "[c]oncurrence * * * to
terminate the contract for the convenience of the Government and
readvertise with revised specifications." Def .'s Mot. for Summ.
J.App. at 56. The contracting officer provided the following basis for
his request to terminate the Contract: The Determination of Award
figure for strip-ins (line item I.(e)) was incorrectly figured at 108,
when actually the figure should have been figured at 65,000. The
previous contractor, Fry Communications, Inc., did not charge for this
line item during the previous contract periods, therefore, the Agency
did not take the number of strip-ins into consideration when
determining the basis of award figure for this line item. Custom
Printings' cost for strip-in is $12.00 per strip-in which works out to
approximately $120,000.00 per printing/binding order or $780,000.00
per contract period, for this strip-in charge. After the error was
discovered, the Government was unsuccessful in attempting to negotiate
a fair and reasonable price for strip-ins with Custom Printing Co.
NOTE: Fry Communications, Inc. bid price for this line item was $.20
per strip-in. In addition, the Department of Commerce (NOAA), wants to
add an additional color to the charts, which is not covered in the
current specifications. If the correct line item figure for strip-ins
was used in the determination of award, Custom Printing Co. would not
have been the low bidder on program C271-S. The Department of Commerce
(NOAA) did not allocate the additional funds for the unexpected
increase in costs, nor do they have the appropriate funds to continue
this contract at current contract prices. *3 Id.
On February 1, 1999, the GPO Contract Review Board concurred in the
contracting officer's recommendation that the Contract should be
terminated for the convenience of the Government. Accordingly, on
February 2, 1999, the contracting officer served upon Custom Printing
a notice of termination for the convenience of the Government. This
notice explicitly stated that the Contract was "terminated for the
convenience of the Government, in accordance with the Article entitled
'Termination for Convenience of the Government' in GPO Contract Terms
(Pub.310.2)." Def.'s Mot. for Summ. J.App. at 57. The termination was
to be effective as of March 31, 1999.
In the meantime, in January 1999, the GPO had issued an IFB for
Program C871- S. Similar to the IFB for the C271-S Program, the IFB
for the C871-S Program was for the procurement of the U.S. Terminal
Procedures Publication, Alaska Terminal Procedures Publication, and
changes therein, as requisitioned by the NOAA. Indeed, Program C871-S
was described in the new IFB as being "[f]ormerly C271-S." See Def.'s
Mot. for Summ. J.App. at 80. The two IFBs, however, were not wholly
identical. The Program C871-S IFB did not contain a specific line item
for strip-ins and required the use of an additional color for a
portion of the publications. Further, while the Program C271-S IFB had
resulted in the award of a basic five-year contract, the Program C871-
S IFB was to result in the award of a one-year contract with up to
four optional twelve-month extension periods. Despite these minor
differences, Program C871-S was clearly intended to replace Program
C271-S.
The Program C871-S IFB also initially contained a geographical
restriction that would have excluded Custom Printing from the bidding
process. [FN5] According to the defendant, this restriction was
inserted in order to accommodate for NOAA's lack of funds to travel
for press sheet, bindery, and distribution expenses. See Def.'s
Statement of Genuine Issues 9. Upon protest by Custom
Printing, this restriction was revised to fully enable Custom Printing
to submit a bid. [FN6] Despite this revision, Custom Printing failed
to offer a bid on the Program C871-S IFB.
The Program C871-S IFB was sent to twenty-three contractors and
resulted in four no bids and two responsive bids. Fry Communications
and a joint venture from Baltimore, Maryland, submitted the two
responsive bids. The GPO subsequently awarded the contract for Program
C871-S to Fry Communications as the responsive bidder with the lowest
bid price.
On February 23, 1999, Custom Printing submitted a formal claim to the
contracting officer alleging that the GPO's termination of the
contract was improper and constituted a breach of contract. The
contracting officer issued a final decision denying Custom Printing's
claim on March 16, 1999. The officer claimed that the Contract had
been terminated for the convenience of the Government effective March
31, 1999, in accordance with applicable contract terms. This action
was taken after the Government's discovery of an error in the
Determination of Award in the line item figure for strip-ins. This
error increased the contract award price $780,000 per year, an
increase of $3,900,000 for the contract term. Funds were not allocated
to cover this unexpected increase in cost. After the error was
discovered, the Government was unsuccessful in attempting to negociate
a fair and reasonable price for strip-ins with [Custom Printing]. *4
Def.'s Mot. for Summ. J.App. at 129.
On April30, 1999, Custom Printing timely filed a two-count Complaint
with this Court, alleging breach of contract and promissory estoppel.
Custom Printing sought $2,400,000 in allegedly lost anticipated profit
upon the grounds that the GPO had improperly terminated the Contract
for convenience of the Government. On August 13, 1999, the defendant
filed a motion to dismiss Count II of the Complaint for lack of
subject matter jurisdiction, and, in response to that motion, Custom
Printing voluntarily dismissed its promissory estoppel claim.
Discussion
Under the Rules of the United States Court of Federal Claims ("RCFC"),
this Court may grant summary judgment when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to
judgment as a matter of law." RCFC 56(c). See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-49 (1986); Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986); Mingus Constructors, Inc. v. United
States, 812 F.2d 1387, 1390 (Fed.Cir.1987). See also Pacificorp
Capital, Inc. v. United States, 25 Cl.Ct. 707, 713, reh'g denied, 26
Cl.Ct. 428 (1992), aff'd, 988 F.2d 130 (Fed. Cir1993) (Table)
(allowing summary judgment against contractor alleging breach of
contract based upon termination for convenience); Embrey v. United
States, 17 Cl.Ct. 617, 624 (1989) (same). If both parties have cross-
moved for summary judgment, such as in the present case, each party's
motion must be evaluated on its own merits, drawing all reasonable
presumptions and inferences against the party whose motion is being
considered. See Mingus Constructors, 812 F.2d at 1391. If the moving
party has met its burden of showing that it is entitled to judgment as
a matter of law, the burden then shifts to the nonmoving party to
provide facts establishing that a genuine issue for trial exists,
again drawing all reasonable inferences in favor of the nonmoving
party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586-87 (1986).
The contract at issue in this case incorporates by reference Section
19 ("Termination for the Convenience of the Government") of the GPO
Contract Terms. [FN7] This section explicitly provides the GPO with
the right to terminate a contract for the convenience of the
Government. [FN8] Section 19 states, in pertinent part, that [t]he
Government may terminate performance of work in whole or in part if
the Contracting Officer determines that a termination is in the
Government's interest. The Contracting Officer shall terminate by
delivering to the contractor a Notice of Termination specifying the
extent of termination and the effective date. GPO Contract Terms
19(a) (GPO Pub. 310.2) (Dec.1987 (Rev.9-88)).
This Court employs a highly deferential standard when reviewing the
Government's decision to terminate for convenience. See John Reiner
& Co. v. United States, 163 Ct. Cl. 381, 390, 325 F.2d 438, 442
(1963). While the Government's right to terminate a contract for
convenience is not unlimited, the case law clearly provides that the
Government is entitled to considerable latitude in making such a
decision to terminate. See, e.g., T & M Distrib., Inc. v. United
States, 185 F.3d 1279 (Fed.Cir.1999); Krygoski Constr. Co. v. United
States, 94 F.3d 1537 (Fed.Cir.1996), cert. denied, 520 U.S. 1210
(1997). Only evidence that the contracting officer acted in bad faith
or engaged in a clear abuse of discretion will be sufficient to merit
summary judgment for the contractor. Salsbury Indus. v. United States,
905 F.2d 1518, 1521 (Fed.Cir.1990), cert. denied, 498 U.S. 1024
(1991). See also Caldwell & Santmyer, Inc. v. Glickman, 55 F.3d 1578,
1581 (Fed.Cir.1995); John Reiner & Co., 163 Ct. Cl. at 390, 325 F.2d
at 442.
*5 Moreover, this Court must presume that the Government acted in good
faith in contracting, and this presumption may be overcome only by
"well-nigh irrefragable proof" that the Government acted in bad faith.
Torncello v. United States, 231 Ct. Cl. 20, 45, 681 F.2d 756, 770
(1982) (quoting Knotts v. United States, 128 Ct. Cl. 489, 492, 121
F.Supp. 630, 631 (1954)). See also Kalvar v. United States, 211 Ct.
Cl. 192, 198, 543 F.2d 1298, 1301 (1976) ( "Any analysis of a question
of Governmental bad faith must begin with the presumption that public
officials 'act conscientiously in the discharge of their duties" ')
(quoting Librach v. United States, 147 Ct. Cl. 605, 612 (1959));
Krygoski, 94 F.3d at 1541 ("The contractor's burden to prove the
Government acted in bad faith, however, is very weighty."). The
plaintiff must provide this Court with evidence of a specific intent
to harm the plaintiff in order to support its claim of bad faith.
Torncello, 231 Ct. Cl. at 45, 681 F.2d at 770. As a result of this
substantial burden, "contractors have rarely succeeded in
demonstrating the Government's bad faith." Krygoski, 94 F.3d at 1541.
Despite the weight of the case law, Custom Printing has argued for a
stricter review of the Government's termination for convenience.
Citing Torncello v. United States, 681 F.2d 756, 231 Ct. Cl. 20
(1982), the plaintiff asserts that "[i]t is well established that
termination for convenience is available as a remedy only in
situations where the circumstances of the bargain or the expectations
of the parties have changed." Pl.'s Mot. for Summ. J. & Opp'n to
Def.'s Mot. for Summ. J. at 3. Such an assertion, however, is contrary
to the settled law. The "changed circumstances" test to which the
plaintiff alludes, set out by the plurality in Torncello, has been
explicitly rejected by the United States Court of Appeals for the
Federal Circuit ("Federal Circuit") in subsequent cases. See T & M
Distrib., 185 F.3d at 1284 n. 4; Krygoski, 94 F.3d at 1543-45.
Indeed, the Federal Circuit has stated that Torncello merely "stands
for the unremarkable proposition that when the government contracts
with a party knowing full well that it will not honor the contract, it
cannot avoid a breach claim by adverting to the convenience
termination clause." Salsbury Indus., 905 F.2d at 1521. There is no
requirement that the Government show "changed circumstances" (or even
a "cardinal change" of some sort) in order to justify termination for
convenience. T & M Distrib., 185 F.3d at 1284.
In the present case, the GPO justified its termination for convenience
on the grounds that the Determination of Awards significantly
underestimated the actual requirements of the Contract. As a result of
this underestimate, the GPO asserts that the resulting Contract was
prohibitively expensive and that the integrity of the competitive
bidding was adversely affected. Specifically, the contracting officer
determined that: *6 The Determination of Award figure for strip-ins
(line item I.(e)) was incorrectly figured at 108, when actually the
figure should have been figured at 65,000. * * * Custom Printings'
cost for strip-in is $12.00 per strip-in which works out to
approximately $120,000.00 per printing/binding order or $780,000.00
per contract period, for this strip-in charge. * * * If the correct
line item figure for strip-ins was used in the determination of award,
Custom Printing Co. would not have been the low bidder on program
C271-S. The Department of Commerce (NOAA) did not allocate the
additional funds for the unexpected increase in costs, nor do they
have the appropriate funds to continue this contract at current
contract prices. Def.'s Motion for Summ. J.App. at 56.
The Federal Circuit and this Court frequently have upheld terminations
for convenience under similar circumstances, in which irregularities
in the original solicitation had an impact upon competitiveness of the
bidding process. For example, in Caldwell & Santmyer, Inc. v.
Glickman, 55 F.3d 1578 (Fed.Cir.1995), the Federal Circuit upheld a
contracting officer's decision to terminate a contract for convenience
based on a mere ambiguity within the bid solicitation. This ambiguity
increased the actual cost of the contract by between $200,000 to
$300,000, and led the contracting officer to conclude that "the
ambiguity of the specifications impeded full and open competition."
Id. at 1580. More specifically, the contracting officer determined
that "the modification that would have been necessary to reflect [the
agency's] original intent would have been too costly and would have
been unfair to the other bidders." Id. at 1581. The Federal Circuit
stated that "[t]he stipulated facts simply do not support [the
plaintiff's] claim that the contracting officer acted in bad faith or
abused his discretion." Id.
Similarly, in Krygoski Construction Co. v. United States, 94 F.3d 1537
(Fed.Cir.1996), cert. denied, 520 U.S. 1210 (1997), the Federal
Circuit determined that the contracting officer had not acted in bad
faith when he terminated a contract for the convenience of the
Government based upon the discovery that the contract that the
Government had entered into would cost more than expected because of a
misestimate in the original IFB. In Krygoski, the Government had
entered into a contract for the demolition of an airfield and missile
site, including the removal and disposal of all asbestos found at the
site. Id. at 1538-39. While the IFB had estimated that the site
contained limited asbestos only around pipes, tanks, and ducts, a pre-
demolition survey by the plaintiff had discovered additional asbestos
in the flooring and roof insulation. Id. As a result, the costs of the
asbestos removal increased from about 10 percent of the contract's
costs ($40,000 out of an estimated $415,000 contract) to approximately
50 percent of the contract's costs ($360,000 out of an estimated
$775,000 contract). Id. at 1544. Thus, the Federal Circuit held that
the contracting officer's *7 decision to terminate is analogous to
that made in Caldwell. [The contracting officer] terminated the
contract to preserve full and open competition. He decided to avoid
any prospect of prejudice to other bidders. Unlike the Torncello
situation, this record shows no evidence that the Corps intended from
the outset to void its promises. Thus, Torncello does not apply.
Accordingly, this court finds that [the contracting officer] did not
abuse his discretion, act arbitrarily or capriciously or in bad faith
in terminating the contract for the Government's convenience. Id. at
1545.
Most recently, in T & M Distributors, Inc. v. United States, 185 F.3d
1279 (Fed.Cir.1999), the Federal Circuit allowed a contracting officer
to terminate for convenience, and to issue a second solicitation,
based upon the discovery of an error in the original solicitation that
increased the price of the contract and likely had an impact upon the
integrity of the procurement process. In that case, the estimated
scope of a Navy requirements contract for automobile parts and
accessories was substantially increased so that the value of the
contract increased by 450 percent. Id. at 1280-81. In light of this
error, the Federal Circuit held that the contracting officer was well
within his discretion in resoliciting the contract. Id. at 1284.
The contracting officer's reasoning in the present case is consistent
with the above cases. The contracting officer had ample justification
to terminate the Contract for the convenience of the Government, and
the stipulated facts support the contracting officer's decision. As
the contracting officer asserted, the original IFB contained a serious
underestimate of the number of strip-ins required under the Contract,
and such an underestimate affected the original bid estimates to such
an extent that it is unclear whether or not Custom Printing would have
been the low bidder for Program C271-S. The erroneous estimate found
in the original IFB increased the cost of the Contract by
approximately $778,704 per year, or $3,893,520 over the life of the
Contract. While strip-ins represented only about .05 percent of the
cost of the Contract under the original estimate, under the corrected
figures, strip-ins represented approximately 24 percent of the cost of
the Contract. This inaccurate estimate had a direct impact upon the
competitiveness of the bidding process. If the number of strip-ins is
corrected, all else being equal, Custom Printing would not have been
the low bidder for Program C271-S. Even if the other bidders would
have increased the cost of other line items as a result of the
enlarged number of strip-ins actually required by the Program C271-S,
the seriously erroneous underestimate of the number of strip-ins
introduced substantial uncertainty into the bidding process such that
the contracting officer was reasonable in terminating for convenience.
Although the plaintiff has alleged bad faith in this action, the
plaintiff's purported evidence of bad faith is unconvincing. First,
the plaintiff points to statements made by an official at NOAA that
the agency did not wish to renew Custom Printing's contract after the
first year. These statements, however, were made in the mistaken
belief that Custom Printing had an option contract, rather than a
five-year contract, in reaction to numerous alleged technical errors
made by Custom Printing. Although these statements express a
dissatisfaction with the quality of Custom Printing's work and a
misunderstanding of the nature of the Contract, they clearly do not
rise to the level of bad faith. In any event, such statements were
made by an official at NOAA, not the contracting officer.
*8 Second, the plaintiff claims that the geographical restriction
initially contained in the Program C871-S IFB was designed to exclude
Custom Printing, offering evidence of bad faith. This geographical
restriction, however, was revised upon protest by Custom Printing to
allow Custom Printing to participate fully in bidding for the Program
C871-S IFB. Custom Printing chose not to participate. Moreover, the
evidence makes clear that this restriction was separate and distinct
from any desire that NOAA officials had to avoid dealing with Custom
Printing. The geographical restriction was merely intended to
accommodate for NOAA's lack of funds to travel for press sheet,
bindery, and distribution expenses.
The plaintiff here has successfully demonstrated that an official at
NOAA was dissatisfied with Custom Printing's performance and wished to
avoid business with Custom Printing in future matters. However, this
official had no authority to decide whether or not the GPO awarded its
bids to Custom Printing and had no authority to decide whether or not
to terminate for convenience. Rather, the contracting officer
determined to terminate for convenience for legitimate reasons that
were unrelated to the NOAA official's concerns about the plaintiff's
performance.
In summary, this Court can find no evidence of bad faith under the
facts presented here. The contracting officer decided to terminate the
Contract for convenience based upon the discovery of an error in the
original solicitation that significantly increased the price of the
Contract and likely had an impact upon the integrity of the
procurement process. The Government was acting within its contractual
rights to have done so.
CONCLUSION
For the foregoing reasons, the plaintiffs' Motion for Summary Judgment
is DENIED, the defendant's Motion for Summary Judgment is GRANTED, and
the plaintiff's Complaint is to be dismissed.
Each party is to bear its own costs.
_______________
FN* On February 15, 2002, this Opinion was issued under a Protective
Order. On March 4, 2002, the Court issue an Order directing that the
Opinion, in its entirety, was to be removed from the Protective Order
and was to be released for publication.
FN1. Because these publications were to be used during the takeoff and
landing of airplane flights, contractors would be required to adhere
strictly to product specifications and rigid schedules in preparing
these publications.
FN2. The defendant asserts that this error occurred because the
previous contractor, Fry Communications, did not charge for strip-ins
during the previous contract period. See Def.'s Mot. for Summ. J.App.
at 56.
FN3. This estimate is achieved by taking the number of strip-ins
required for Custom Printing's first printing production cycle
(9,756), rounded up to the nearest thousand (10,000) and multiplying
it by the number of production cycles per year (6.5). Both parties
agree thatthis is an accurate estimate of the number of strip-ins
actually required under the Contract. See Def.'s Proposed Findings of
Uncontroverted Facts 11; Pl.'s Statement of Genuine Issues
11. See also Def.'s Mot. for Summ. J.App. at 56.
FN4. The plaintiff objects to these calculations on the ground that a
contractor's high or low bid for strip-ins may represent a
commensurate increase or decrease in other line items under the
contract. Pl.'s Statement of Genuine Issues 12.
Nevertheless, Custom Printing does not dispute that there was a
significant increase in the number of strip-ins actually required
under the Contract, that it billed the GPO $12 per strip- in for the
first printing production cycle, or that Custom Printing's total price
for strip-ins increased to approximately $780,000 per year. Id.
12. Given such admissions, this Court cannot ignore that,
as a matter of simple mathematics, Custom Printing's estimated total
bid price would have been at least $3,250,920 per year. The effect of
the error on Fry Communications' bid, however, is a bit more ambiguous
at this stage, because it is unclear to what extent, if any, an
increase in the number of strip-ins would have had on Fry
Communications' other line items. Neither the plaintiff nor the
defendant has produced any evidence regarding how Fry Communications
bid might have been affected by the changed figures. Nevertheless,
even assuming that Fry Communications' corrected total bid would have
been more than $2,604,230, an error in the number of strip-ins in the
original IFB resulted in significant uncertainty as to the actual
pricing of the bids that may or may not have resulted in Fry
Communications having the lowest bid.
FN5. This restriction provided that "[a]ll production facilities
(including subcontractors) used in the manufacture of the product(s)
ordered under this contract must be located within a 201-kilometer
(125- mile) radius of zero milestone, Washington, DC." See Def.'s Mot.
for Summ. J.App. at 80.
FN6. The revised restriction stated that "[a]ll presswork, bindery,
and distribution facilities used in the manufacture of the product(s)
ordered under this contract must be located within a 201-kilometer
(125- mile) radius of zero milestone, Washington, DC." See Def.'s Mot.
for Summ. J.App. at 64.
FN7. Section A of the Contract stated that the agreement was subject
to "the applicable provisions, clauses, and supplemental
specifications of GPO Contract Terms (GPO Pub. 310.2, effective
December 1, 1987 (Rev.9- 88)) * * *." Def.'s Mot. for Summ. J.App. at
7.
FN8. Because the GPO is part of the legislative branch of the United
States Government, the Federal Acquisition Regulations ("FAR") are
inapplicable to the Contract. Nevertheless, the "Termination for the
Convenience of the Government" clause contained in the GPO Contract
Terms is nearly identical to the FAR's termination for convenience
provisions. See, e.g., 48 C.F.R. 52.249-6 (2001).
END OF DOCUMENT