MEDIA PRESS, INC.


                          UNITED STATES

                           No. 337-76

566 F.2d 1192; 215 Ct. Cl. 985

William A. Bradford, Jr., attorney of record, for plaintiff.
Edgar W. Holtz, and Hogan & Hartson, of counsel.

Susan M. Linden, with whom was Assistant Attorney General Barbara
Allen Babcock, for defendant.  Drew Spalding, Government Printing
Office, of counsel.

KUNZIG, Judge, Presiding, LARAMORE, Senior Judge, and BENNETT,


This case comes before the court on cross-motions for summary
judgment on the issue of contractual liability.  The case has
been submitted on the briefs and oral argument of counsel.

The present dispute arises out of a contract for the procurement
of certain printed forms by the Government Printing Office
(hereinafter referred to as "GPO") on behalf of the Department of
Health, Education and Welfare.  Multiple awards were made because
it was anticipated that no single printing firm would be able to
meet all of the agency's needs.  The solicitation asked for bid
prices on four variables, one of which was "folding".  The other
variables were (1) white paper, (2) colored paper, and (3)
address imprints.Plaintiff was named low bidder on the basis of
its aggregate low price, with the other awards made sequentially
from lowest to highest, also on the basis of aggregate prices.
In placing work, the GPO was obligated to first communicate with
the low contractor to determine whether or not he could accept an
order.  The only valid reason for declining was inability to meet
a shipping schedule.  If the low contractor was unable to accept
an order, the government would contact the next low bidder, and
so on, until the job was accepted.

The contract provided three exceptions to this method of placing
work, only one of which is pertinent here.  The provision in
question, Exceptions Clause (3), reserved the right to establish
a new low bidder and numerical sequence of other bidders on each
particular print order, taking into account only those variables
involved in that particular order, rather than on an aggregate
basis taking into account all four variables.  This process of
computing prices on each individual print order is known as
"abstracting".  Abstracting showed, because of the structure of
plaintiff's bid, that on orders requiring little or no folding,
the prices of other contractors were lower.  The government
invoked this exception with the result that all orders were not
automatically offered initially to plaintiff.  Plaintiff sues
here for lost profits on these print orders.

Plaintiff claims that the contract here in issue was a
requirements contract and that each failure on the part of the
defendant to offer it a print order constitutes a breach.  A
requirements contract has been defined as a contract in which the
purchaser agrees to buy all of its needs of a specified material
from a particular supplier, and the supplier agrees, in turn, to
fill all of the purchasers needs during the period of the
contract.  Inland Container, Inc. v. United States, 206 Ct.Cl.
478, 482-483, 512 F.2d 1073 (1975); Ready-Mix Concrete Co., Ltd.
v. United States, 141 Ct.Cl. 168, 169 (1958); Gemsco, Inc. v.
United States, 115 Ct.Cl. 209 (1950); Johnstown Coal & Coke Co.
v. United States, 66 Ct.Cl. 616 (1929). Neither party to the
instant contract is so tightly and exclusively bound to the other
so as to give rise to a requirements type arrangement.  The
government retained the right to purchase some of its needs from
other printers.  Similarly, plaintiff was empowered to refuse
orders if it was unable to meet a delivery schedule.  We
conclude, therefore, that such consideration is insufficient to
support plaintiff's construction of the contract as a
requirements contract.  See, Goldwasser v. United States, 163
Ct.Cl. 450, 454-455, 325 F.2d 722, 724 (1963)

Plaintiff also contends that the government made improper use of
Exceptions Clause (3) of the contract.  It is plaintiff's
position that the exceptions clause is to be interpreted so as to
be invoked by the government on rare occasions and only then to
deal with abusive contractors.  However, the plain language of
the clause convinces us that it was intended to be employed as a
cost-cutting measure.  That the government made use of the
exceptions clause as often as it did, is a direct result of the
structure of plaintiff's aggregate bid. Where, as here, plaintiff
was initially offered more than a majority (although we do not
posit this as a test) of the work under the contract, it is not
inconsistent to describe the clause in question as an exception.

For the foregoing reasons, IT IS ORDERED that plaintiff's motion
for summary judgment be and is hereby denied, defendant's motion
for summary judgment be and is hereby granted, and plaintiff's
petition be and is hereby dismissed.


Robert L. Kunzig Judge, Presiding

November 25, 1977