McDonald & Eudy Printers, Inc.

GPO BCA 2-85
March 12, 1986
Michael F. DiMario, Administrative Law Judge

Opinion

   This appeal was timely filed by McDonald & Eudy Printers, Inc.
   (hereinafter "Appellant"), 4509 Beech Road, Temple Hills, MD
   20748, pursuant to the "Disputes" article of United States
   Government Printing Office Contract Terms No. 1 (GPO
   Publication 310.2 Revised October 1, 1980) which, by reference
   was incorporated in and made a part of a purported contract
   between Appellant and the United States Government Printing
   Office (hereinafter "Respondent" or "GPO"), identified as
   Jacket 457-909, Purchase Order 46690 dated December 10, 1984,
   in the amount of $1,045.

   The appeal is from the final decision of James L. Leonard,
   Contracting Officer, GPO, of December 18, 1984, advising
   Appellant of the complete termination of the contract "for
   default because of your failure to deliver an acceptable
   product as per specifications."

   The appeal is denied and the matter is remanded back to the
   contracting officer for processing in accordance with the
   directions set forth hereinbelow.

Background

The Office of Personnel Management (hereinafter "OPM"), a central
management agency of the United States Government, requisitioned
from the GPO the printing of approximately 21,653 copies of a
certain letter which was to be a part of a general regulation
entitled "FPM Basic". The work had to be accomplished
expeditiously and required (l)the pick up of a certain preprinted
attachment to the letter from an OPM warehouse in Alexandria, VA;
(2) the printing of the letter; (3) the affixing of the
attachments to the letters; (4) the insertion of the letters and
attachments into envelopes; (5) the affixation of labels to the
envelopes in accordance with prefurnished mailing and
distribution lists; and (6) the redelivery of the product to OPM
at a Washington, DC location.

   Because of the urgent need by OPM, Respondent sought to
   fulfill the requirements of the requisition by competitively
   negotiating a small purchase contract under authority of 41
   U.S.C. 5(1).  Prospective contractors thought capable of
   accomplishing the work were solicited by telephone to
   determine their interest.  The solicitation in general
   included Respondent's reading the specifications to the
   contractor's representative including the need to meet the
   anticipated delivery date and instructing them to place their
   price quotation, if any, with Respondent by return telephone
   call.  The original solicitation apparently included only 5
   vendors and was conducted on December 6 & 7, 1984, and was to
   be awarded December 7,.1984.  Three of the vendors had "no
   bid" responses.  Two vendors, Metro Printing & Mail and Bay
   Printing, had offers of $2,925, $42.50 per thousand "add'l
   rate" and $875, $40.50 "add'l rate", respectively.  (Appeal
   File, hereinafter "Rule 4 File", Tab B)

   For some undisclosed reason award was not made to any vendor
   at that time.  However, on December 10, 1984, Appellant and
   one other vendor were solicited.  One, G. W. Press, had no
   offer.  The other vendor was Appellant.  The sequence of
   events concerning Appellant's solicitation, offer, acceptance,
   performance, default, and appeal follow.

   On December 10, 1984, Respondent's representative, Phil Jones,
   Printing Specialist, Contracts Branch, telephoned Appellant's
   representative, Joy Moxley, to ascertain Appellant's interest
   and solicit its price quotation.  He advised her that the job
   was "[h]ot" and had to be expedited with completion by
   December 12, 1984.  He also read her the specifications,
   however, there is dispute as to whether they included the
   requirement to pick up the attachments from OPM and affix them
   to the letters so that they could be inserted in the
   distribution envelopes for redelivery to OPM.  Moxley asserts
   that she took the specifications by "dictation" and that her
   notes thereby reflect what she was read and they do not
   include the instructions to pick up and affix the attachment
   to the letter.

   Appellant, relying upon Moxley's understanding of the
   specificants, by return call of its Vice-President, Mr. David
   McDonald, that same morning, quoted its price to Respondent as
   $1,045 for the first 21,653 copies +/- 1% and $84 for each
   additional 1,000 copies required thereafter. (Rule 4 File, Tab
   B)

   That same day after all offers were abstracted, Jones
   recommended award to Appellant " . . . based on similar
   procurement and availability of funds by Dept." (Rule 4 File,
   Tab B)

   Thereafter, at about 2 p.m. Appellant was telephonically
   notified by Jones that its offer had been accepted and that
   camera copy would be available for pick up from Respondent at
   4:30 that afternoon.  (Rule 4 File, Tab B)

   Appellant, after the telephone notification of award but
   before receipt of the written materials, apparently prepared
   its job jacket for the work it anticipated needed to be done
   by its night crew in order to meet the delivery schedule 2
   days hence. (Rule 4 File, Tab K) Appellant asserts that its
   instructions conformed to the specifications telephonically
   received and recorded by Ms. Moxley. (Rule 4 File, Tab K)
   Appellant acknowledges that it did receive the written
   specifications with the camera copy when it picked up these
   materials at approximately 4:30 p.m. on December 10 but
   "failed to check" them before proceeding with the job. It
   asserts, however, that no sample of the OPM attachment was
   included with the materials although the written
   specifications indicate such materials were included
   therewith.  The written specifications expressly require "[c]
   ontractor to pick up furnished attachments at OPM, 929 S.
   Pickett St.  Alexandria, Va between the hours of 10 AM & 4 PM"
   and describes the work to be performed, thusly:  "Furnished
   attachment is a folded, preprinted form. 11 boxes of folded
   forms 8 1/2 x 11" approx. 017" thick.  After printing and
   drilling of letter, place 1 letter on top of each attachment &
   stitch with 1 wire stitch in upper left (per furnished
   sample)."

   On December 14, 1984, Appellant was contacted by Respondent by
   telephone regarding the discrepancy in the completed job.
   Appellant indicated it had already learned of the same from
   OPM.  Appellant was asked to reprint the job but refused to do
   so.  Appellant was then advised that it would be responsible
   for any reprocurement costs if it continued its refusal and
   the job had to be obtained from another vendor. (Rule 4 File,
   Tab K) Formal notification and default.followed. (Rule 4 File,
   Tabs E & F) Thereafter, Appellant by letter of January 15,
   1985, formally appealed (Rule 4 File, Tab K) asserting among
   other things that "[o]ur bid was for the Printing, Trim,
   Drilling, Mailing of a face only form and does not include the
   cost for gathering, stitching of furnished material from the
   agency." Further, they allege that "the bid submitted on
   December 10 by the next low responsive bidder, Metro, $2,925
   should have put the contracting officer.on notice that a
   probable error had been made and given Respondent the
   opportunity to review and confirm the specifications and its
   bid due to the difference in prices." Appellant requested a
   hearing on the dispute.

   Subsequently, a prehearing conference was held at which time
   it became clear that the only factual dispute between the
   parties was in whether or not the telephonic reading of the
   specifications included the pick up and affixing of the OPM
   attachments as described, supra, and that oral testimony by
   Ms. Moxley and Mr. Jones would only corroborate the
   diametrically opposing positions set forth in their
   affidavits. (Rule 4 File, Tab L, and the Official Record, Tab
   9) Accordingly, it was agreed at that time that the appeal
   would be decided on the written record.  Respondent, at the
   prehearing conference, supplemented that record by proffering
   evidence of the reprocurement (Rule 4 File, Tabs M thru P)
   which was accepted without objection.

   The case is before the Board for decision in this form.

Decision

   We believe that in arriving at a proper decision in this case
   it is unnecessary to resolve the factual dispute between the
   parties concerning the specifications since the conduct of the
   parties convince us that no contract ever existed between
   them.  We also believe that Appellant's arguments that the
   Government was or should have been alerted to its mistake in
   bid because of the price differential with the second low
   bidder need not be considered, since such arguments could only
   be raised if a valid contract existed.  Moreover, the burden
   of persuasion would be on the Appellant in light of the post
   "award" nature of such claim and Jones' notation on the bid
   abstract that his recommendation of award was based upon prior
   contract price experience.

   We base our belief on the Court of Claims admonition in Penn-
   Ohio Steel Corp. v. United States, 173 Ct.Cl. 1064, 354 F.2d
   254, 266 (1965), wherein the court stated that:

The first task in this factual setting is to determine whether
there was a meeting of the minds, and if so, whether it was
objectively manifested and sufficiently definite so that major
terms and conditions are reasonably capable of ascertainment. For
[a] court cannot enforce a contract unless it can determine what
it is. It is not enough that the parties think that they have
made a contract; they must have expressed their intention in a
manner that is capable of understanding.  1 Corbin, Contracts, 
107 (1951).

   Those preeminent authorities, Professors Nash and Cibinic,
   tell us that in Government contracts:

Offers are solicited by a Request for Proposals (RFP) or a
Request for Quotations (RFQ). When it appears that the contract
terms and specifications are sufficiently definite, the agencies
follow a procedure which is very similar to the one described
above for formal advertising. However, in most cases, the RFQ or
RFP is an invitation to begin negotiations. In some instances,
the parties intend that offer and acceptance occur simultaneously
with the conclusion of negotiations.  However, negotiations often
conclude with agreement in principle and one of the parties,
almost invariably the Government, reduces the agreement to
writing in an integrated document.  Under normal practice, this
document is sent to the contractor for execution.  Upon his
signature and return it becomes the offer.  Acceptance is usually
accomplished by the contracting officer's signing and
transmitting the document to the contractor.  When time is at a
premium (this occurs most frequently near the end of the
Government's fiscal year) the contracting officer may sign the
contract first, thus becoming the offerer, and then send it to
the contractor for acceptance.

1 R. Nash & J. Cibinic, Federal Procurement Law, at 108-109 (3d
ed. 1977).

   "The determination of whether a certain communication by one
   party to another is an operative offer and not merely an
   inoperative step in the preliminary negotiation, is a matter
   of interpretation in the light of all the surrounding
   circumstances." 1 Corbin, Contracts,  23, at 67, West
   Publishing Co. (1963).

   Solicitations such as that made by Respondent have
   consistently been held not to be offers which create powers of
   acceptance in the party to whom made.  1 Corbin, Contracts,
   supra,  24, at 71, et seq.  Moreover, price quotations such
   as that made by Appellant have likewise been held not to be
   such offers.  1 Corbin, Contracts, supra,  26, at 77, et seq.
   Thus, no oral offer having been made by either Appellant or
   Respondent, no powers of acceptance were created in either of
   them pursuant to the oral exchange.  Additionally, it is clear
   that even if such powers had been created, the facts show that
   there was no real mutuality of assent, that so called "meeting
   of the minds" necessary to contract formation.

   Thus, in the case before us, we find that the only offer
   giving rise to a power of acceptance was that contained in the
   purchase order setting forth the written specification
   requiring the pick up and affixing, and redelivery of the OPM
   attachment. Appellant, while admitting receipt, states that it
   "failed to check" this offer and performed not in reliance
   upon it but rather upon the oral information it had received
   earlier.  The conclusion which must necessarily follow from
   such facts is that no acceptance occurred.  There being no
   acceptance, there is no contract and absent a contract, there
   is no basis for default nor any basis for the assessment of
   excess reprocurement costs.

   On the other side of the coin we do not believe Appellant to
   be entitled to any compensation for its work even under
   equitable theories such as quasi contracts; i.e., quantum
   meruit.  The fact militating against such recovery is
   Appellant's own admission that it had the written
   specifications in its possession at a time before it undertook
   actual production but had simply not reviewed them relying
   instead on its oral understanding of the requirements.  From
   this fact we draw the conclusion that but for Appellant's own
   negligence, it would have incurred no substantial financial
   loss.

   Accordingly, the appeal is denied and Respondent is directed
   to correct its records respecting the default and withdraw its
   assessment of excess reprocurement costs against Appellant.