FRY COMMUNICATIONS, INC. INFOCONVERSION JOINT VENTURE GPO BCA 9-85 JACKET NO. 421-710 (878-85-067) PURCHASE ORDER 33846 July 29, 1986 Michael F. DiMario, Administrative Law Judge Opinion This appeal, timely filed by Fry Communications, Inc.- InfoConversion Joint Venture (hereinafter "Appellant"), is from the final decision of R. E. Lee, Jr., Contracting Officer, U.S. Government Printing Office (hereinafter "GPO" or "Respondent"), dated January 23, 1984, reaffirming the correctness of his November 8, 1984, interpretation of the measurement and payment for data capture provisions of a certain contract between the parties identified as Purchase Order 33846, Jacket 421-710 and otherwise known as GPO Program 400-S (878-85-067). The appeal arises under Article 2-3 entitled "Disputes" of United States Government Printing Office Contract Terms No. 1 (GPO Publication 310.2 - Revised October 1, 1980) which was incorporated into and made a part of the said contract by reference therein. The decision of the Contracting Officer is affirmed for the reasons hereinafter set forth. Background On February 9, 1984, Appellant, a joint venture between Fry Communications, Inc., Mechanicsburg, PA 17055 (hereinafter "Fry"), and InfoConversion, a division of Grumman Data Information Services, Inc., Woodbury, NY (hereinafter "InfoConversion"), was awarded a requirements type single award term contract by Respondent for data capture, printing, binding, and distribution of "Army Update Publications" as required by the Department of the Army through July 31, 1984, and extending one year at a time up to 1988 as funds are available. The procurement was undertaken by two-step formal advertising wherein prospective bidders were requested under Step One to furnish technical proposals without pricing and under Step Two to formally bid with price quotations. Various documents from this process, including the Request for Technical Proposals/Specifications and the Invitation for Bids as each was amended, Appellant's Technical Proposal, and the bid itself comprise the contract between the parties. The contract, under "Part Two Invitation for Bids" (hereinafter "IFB") in parts pertinent to this appeal, provides that: DEFINITIONS: . . . Updating and Editing: Any deviation from the original copy made at the direction of the ordering agency after initial keyboarding, and may consist of: (1) Change or Addition - A single move or addition of word(s). May be a code, a word, a phrase, a sentence, a paragraph, or a block of continuous reading matter inserted at one place. (2) Deletion - An elimination at a single place. . . . . Global Search Alteration: Altering a specific letter group (word or words), figure group or code throughout a data base via the use of machine generated data manipulation capabilities. Transaction: The act of making an update or edit in the data base. It includes searching the data base for the location of the alteration and the movement or deletion of existing data. . . . . Measurement and Payment for Data Capture: . . . . Measurement of and Payment for Updating and/or Editing: (1) The maximum charge allowable for updating and or editing on any page shall be an amount equal to the cost of initial data capture for that page. (2) The charge for deleting or transposing typed lines without setting and inserting new material will be one "per transaction" charge for each group, regardless of the number of lines in a group. Proofs of any deleted matter must be submitted with the voucher to obtain payment. (3) If, after the pages are made-up, the contractor is required to transpose type from one column to another, or from one page to another, he will be entitled to charge only two "per transaction" charges per transposition. (Including deletion and insertion.) under item I.2(a). (4) If contractor is required to transpose within a madeup page such components as a table or space for an illustration, he will be entitled to charge two "per transaction" charges under item I.2(a) for each affected column. For example, transposition of a table printing across three columns will result in a charge for six "transactions". (5) The data base masterfile will consist of many inividual [sic] titles, with each title considered as a separate entity, even though they are often combined within the same publication. For this reason, the parameters for making a global search alteration must be by individual title, when required, and by complete masterfile, when required. When a change is required that may be made by a global search alteration, and the Government so directs, it must be charged for as a single transaction, except that a charge for any affected page to be re-photocomposed will be allowed, where applicable. Appeal File, hereinafter "R4 File," Tab A, page 6 of 18, Part Two IFB, dated January 9, 1984. SCHEDULE OF PRICES . . . . I. FILE CREATION AND MAINTENANCE. . . . . . . NOTE: The per 1,000 character measurement for all data capture will be based on output characters. . . . . 9. Updating and/or editing: (a) Flat charge for making a deletion, a change, or an addition per transaction $_____ (b) Adding characters to file from manuscript, reprint copy, or proofs: (1) Text per 1,000 characters $_____ (2) Tabular per 1,000 characters $_____ (c) Adding characters to file from word processing media: (1) Text per 1,000 characters $_____ (2) Tabular per 1,000 characters $_____ (d) Adding characters to file from magnetic tape: (1) Text per 1,000 characters $_____ (2) Tabular per 1,000 characters $_____ (e) Adding characters to file through teleprocessing: (1) Text per 1,000 characters $_____ (2) Tabular per 1,000 characters $_____ Rule 4 File, Tab A, Part Two IFB, page 10, 11, and 12 of 18 dated January 9, 1984. Subsequent to the award of the contract and the creation of the systems required thereunder, Appellant was issued certain print orders for data capture including "updating and/or editing" certain material. Thereafter, Appellant submitted vouchers to Respondent for its work. Following that, Respondent by letter of November 8, 1984, advised Appellant that: [V]ouchers submitted for payment for data capture under Program 400-S are being submitted by your firm in error . . . . . . . . . . . . . . .[P]age 6 of 18 of Step Two of the contract under measurement and payment for data capture, and page 11 of 18 item I.9(a) under Schedule of Prices, . . . are interpreted as follows: 1. A single transaction charge may be made when a word or group of words is deleted or added or replaced. The act of removing and adding in a single location does not constitute two transactions. 2. The maximum charge allowable for updating or editing on any page may not exceed the cost of initial data capture for that page. R4 File, Tab B Appellant by letter of Donald B. Mandery, InfoConversion, dated November 29, 1984, disagreed with Lee stating instead that: The plain wording of the contract documents supports the interpretation which we have made, which we used to price the contract and to submit bills on the 400-S Program. The applicable clauses appear in Step 2 dated January 9, 1984, pages 5 and 6 of 18. They read: "Updating and Editing: Any deviation from the original copy made at the direction of the ordering agency after initial keyboarding, and may consist of: (1) Change or Addition - A single move or addition of word(s). May be a code, a word, a phrase, a sentence, a paragraph, or a block of continuous reading matter inserted at one place. (2) Deletion - An elimination at a single place. "Transaction: The act of making an update or edit in the data base[.] [It includes searching the data base] for the location of the alteration and the movement or deletion of existing data." . . . . . . . . Clearly, the deletion of words from a location and an addition of words in the same location is two transactions. A transaction is making an update or edit. Making an update or edit may be a "Change or Addition" or a "Deletion". A "Change or Addition" is not the replacement of words by other words at a single place, it is a move or addition of words. The definition of "deletion" is obvious. In your letter you have erroneously introduced the new term, "replaced". The contract documents do not discuss replacement, only deletions and additions. The UPDATE publishing process has an unique way of identifying new change in a publication. The text that is being changed is struck-through and the new text is underscored. If this same change was made using traditional methodology the word being changed would just be replaced. Therefore when we where [sic] pricing this program it made complete sense that the word replacement did not appear in the definition of Changes. The impetus of this program has been one of getting changes handled electronically. The contractor in assisting the governemnet [sic] in the achievement of this goal had to design a system that would seperate [sic] additions and deletions and to handle them as individual transactions not as transactions that are done in conjunction with each other. R4 File, Tab C Lee by final decision letter to Mandery of January 23, 1985, replied that: On page two of your letter in the paragraph beginning with the word "Transaction", you have omitted several words that could change the meaning of the contract. The paragraph in the contract reads, "Transaction: The act of making an update or edit in the data base. It includes searching the data base for the location of the alteration and the movement or deletion of existing data." The paragraph clearly defines a transaction as the act of making an edit or update in the data base and "includes" searching the data base etc. It does not say that it is limited to searching and moving or deleting. Under the definition of updating and editing there are three distinct processes; change or addition and deletion. The latter is self explanatory [sic]. According to Webster, "change" means change to another. In the act of removing a word or group of words from a single place in the text and adding new words in that same place; in effect, replacing the old words with the new; it is required that the contractor search the data base to find the spot, remove the words that are to be deleted, and then rekey the new words in that same spot. The searching and removal constitutes a transaction. The keying in of the new material may be charged for as adding characters to the file. No further search is required to find the spot where the words are to be keyed in; therefore, charging for an additional transaction here when payment is to be made under "adding characters" would have the effect of allowing the contractor to charge twice for the same effort. According to your letter, the update publishing process has a unique way of identifying new changes; by striking through that part to be changed or replaced, and underscoring new material to be added. This method, however, is to show the reader what is being changed; the changes are made in the publishing base in the same way that any other change is made; i.e., searching the date [sic] base to find the spot and then making the required change, addition, or deletion that is to be reflected in the printed publication. R4 File, Tab D After noting its appeal Appellant filed its formal Complaint wherein among other things it alleged: 7. In preparing its bid for the subject Contract, Appellant reasonably interpreted this language as allowing a one transaction charge for a change or addition and a second transaction charge for a deletion, even if these two transactions occurred at the same location in the text. 8. In its definition of the word "change", the Government clearly altered the ordinary meaning of that word, making it a single move or addition of word(s), rather than a replacement of a word or words by other words at the same location. This indicates a purposeful intent by the Government to allow one transaction charge for an addition, and another for a deletion, even where they occur in the same location. 9. This concept is consistently applied throughout the subject Contract. In setting forth the rules for the "Measurement of and Payment for Updating and/or Editing", the Contract provides, in part: (2) The charge for deleting or transposing type lines without setting and inserting new material will be one "per transaction" charge for each group, regardless of the number of lines in a group. It follows that if new material is inserted in the location where lines were deleted, another "per transaction" charge would be allowed. Accordingly, the Appellant reasonably interpreted this rule as a limitation on its ability to charge for more than one transaction where whole lines of text are deleted or transposed, rather than a clause which enabled it to charge one "per transaction:" charge for a deletion only if at least a line of text was deletion [sic], but not if less than a line was deleted. 10. The Appellant's interpretation is further supported by the physical process required to achieve the deletion of a word or words at a location and the addition of words at the same location. Under this program, a deleted word isn't simply typed over when it is being replaced by another word. The deleted word remains in the data base and must be specially coded so that it appears in the printed copy as the word, with dashes through each letter to show that it has been deleted. The new word or words must then be coded so that they appear in the printed text underscored, so that the reader will recognize the change. 11. For the foregoing reasons, the Contracting officer's [sic] decision represents a breach of contract, and as a result of said breach, Appellant has been damaged in an amount in excess of $15,000, and will continue to be damaged throughout the life of the Contract. Official File, Tab 8 Respondent specifically denied each of these allegations adding in its answer to Appellant's paragraph 10 that: The method used to show material being removed from the Regulation (shown by words being struck through in the printed version), and material to be added to the Regulation (shown by words being underscored in the printed version), has no relevance to the definition or method of payment of a "transaction" under this contract. This method of showing changes has been used in Congressional bills and other documents for many years, regardless of whether composition has been computerized or not. Official File, Tab 11 At a Prehearing Conference held July 23, 1985, the parties filed Cross Motions for Summary Judgment. These were followed by briefs in support and/or opposition thereof. The case is before the Board in this format for decision. Issue Whether Appellant is entitled to one or two "per transaction" update and editing charges when in nearly simultaneous sequence it must make both a deletion and an addition to the data base at precisely the same physical point in the data base file. Decision The issue presented is solely one of contract interpretation. Such matters have been deemed to be questions of law (Langer v. Iowa Beef Packers, Inc., 420 F.2d, 365 (8th Cir. 1970)) over which the Federal courts retain jurisdiction pursuant to the Wunderlich Act, 41 U.S.C. 321, 322. Notwithstanding such fact, it is wholly appropriate for a Board of Contract Appeals, such as this, to render its opinion regarding the dispute applying the same rules of interpretation and reasoning which the courts themselves would apply. The parties, being aware of this, have presented briefs wherein they espouse their respective positions and urge the application of certain rules of interpretation. Ironically, both parties have argued that the "plain language" of the contract governs but have framed diametrically opposing viewpoints as to what that "plain language" means. Appellant argues that the operative meaning of the word "change" as it is used in the definitional portion of the contract relating to "Updating and Editing" is itself contractually defined therein as either being "synonymous with the word 'addition' and therefore means 'a single move or addition . . .'," or as . . . "a single move . . . leaving the word 'addition' to be defined as 'addition'". (Official File, Tab 14, page 3) Appellant further argues that its interpretation is "within the zone of reasonableness"; that well settled law requires "that where a contractor's interpretation or construction of the government drafted contract is reasonable, the contractor's interpretation will govern"; and that Appellant is entitled therefore to a Summary Judgment as a matter of law. The Respondent in turn argues that the word "change" has no special contractual meaning but should be given its dictionary meaning; i.e., "to replace with another". (Official File, Tab 13, page 8) The Respondent supports its argument by citation to principles of contract interpretation gleaned from the Restatement of Contracts and case law. Respondent states that in interpreting a contract, words should be given their plain, ordinary meaning, unless it is apparent that they are special terms which are to be given special meaning; that the contract writings are to be interpreted together, as a whole, and not as "individual sections or clauses"; and that "the provisions should, if possible, be interpreted so as to be in harmony with each other." Furthermore, Appellant also asserts that, "[s]ince language derives its meaning largely from the context in which it appears, an attempt to interpret a word, term, or clause independent of the remainder of the contract document may distort its meaning and thus not accurately reflect the intention of the parties." These varying approaches to interpreting the "plain language" of the contract presents an obvious dilemma for this Board and the courts. To aid itself in this regard this Board has turned to the guidance of Professors John D. Calamari and Joseph M. Perillo, hornbook on The Law of Contract (West Publishing Co., St. Paul, MI (1977)) wherein they examine the various approaches to contract interpretation including those of the Restatement of Contracts, supra, and those eminent authorities Williston on Contracts and Corbin on Contracts. Among those approaches is Professor Williston's "standard of reasonable expectation" which this Board favors. This standard holds that the contract language should be given "the meaning that the party making the manifestation should reasonably expect the other party to give it." Calamari and Perillo, supra, § 310, at 118. Professors Calamari and Perillo in footnote 18, at 118, tell us that: This test is somewhat similar to, but not exactly the same as, the test of the reasonable man in the position of the party other than the one making the manifestation, a standard of reasonable understanding. See § 2-2 supra. The standard of reasonable understanding takes into account what the other party knows or should know, whereas the standard chosen by Williston would take this into account only where the party making the manifestation knew or should know of the knowledge of the other party. A compromise between the two tests is employed by Corbin. See test at note 35 infra. Sometimes the test is stated in terms of what a reasonable person in the position of the parties would have concluded. James v. Goldberg, 256 Md. 520, 261 A.2d 753 (1970). Applying this standard to the case at hand, the Board thinks that a "reasonable person in the position of the parties would have concluded" that the word "change" was used in its "ordinary" sense and not in fact defined itself in the contract, although it is employed in the contract to help define the technical term "edits and updates". The Board also concludes that the meaning of the word "change" as used in the context of the contract necessarily comports with the following Random House Unabridged Dictionary definitions, and that the conventional synonyms and antonyms for the word "change" following such definitions strengthen such meaning. These definitions, synonyms, and antonyms are: 1. to make the form, nature, content, etc., of (something) different from what it is or from what it would be if left alone: . . . . 2. to transform or convert (usually fol. by into): . . . 3. to substitute another or others for; exchange for something else, usually of the same kind: . . . . 4. to give and take reciprocally; interchange: . . . . 8. to become different: . . . . 9. to become altered or modified: . . . . 10. to become transformed or converted (usually fol. by into): . . . . 12. to make a change or an exchange: . . . . 27. the supplanting of one thing by another. 28. that which is or may be substituted for another. Syn. 1. transmute, transform; vary, mutate; amend, modify. 3. replace, trade. 4. trade. 6. convert. 9. vary, mutate, amend. 20. transmutation, mutation, conversion, . . . . 23. exchange. 27, 28. replacement. ---Ant. 9. remain. 20. permanence. The Board believes that the word "change" has subsumed in its meaning the concomitant correlative concept of "deletion" as a necessary process to its accomplishment. The Board further believes that what was intended by the contract language in having a separate recognition of the word "deletion" within the definition of the technical term "edits and updates" was to recognize that on occasion the contractor might be called upon to search the data base for the sole purpose of locating and removing therefrom previously entered material without substituting one bit of material for another (change) or adding more material to the file (addition). The Board believes that the logic of this interpretation is buttressed by the global search provisions of the "Updating and Editing" portion of the contract, supra, wherein the concepts of deletion, change, and addition are clearly an integral part of the global search process and payment entitlement for a single "per transaction payment" is abundantly clear. Moreover, the Board believes that the payment provisions respecting the deletion of whole lines or passages referenced by Appellant are fully consistent with this ruling. Thus, the Board holds that under the terms of the contract, Appellant is entitled to be paid only one "per transaction" update and editing charge when in nearly simultaneous sequence it must make both a deletion and an addition to the data base at precisely the same physical point in the data base file. Appellant's additional entitlement to be paid for adding characters to the file as outlined by Mr. Lee in his letter of January 23, 1985, are in accordance with Schedule of Prices, Sect. I.9(b), (c), (d), and (e), and remain unchanged. Accordingly, Appellant's Motion for Summary Judgment is denied, while Respondent's Motion for Summary Judgment is granted and the decision of the Contracting Officer is affirmed.