U.S. GOVERNMENT PRINTING OFFICE BOARD OF CONTRACT APPEALS Appeal of FRY COMMUNICATIONS, INC. / INFOCONVERSION JOINT VENTURE Docket No. GPO BCA 9-85 Jacket No. 421-710 Purchase Order 33846 August 5, 1991 STUART M. FOSS, Administrative Law Judge DECISION ON REMAND I. Statement of the Case On February 5, 1991, the United States Claims Court (Claims Court) reversed the Board's prior decision in this appeal, dated July 29, 1986, and remanded the matter to the Board, pursuant to RUSCC 60.1, for proceedings consistent with the Claims Court's opinion. Fry Communications, Inc. / InfoConversion Joint Venture v. United States, No. 174-89C (February 5, 1991). Specifically, the Claims Court charged the Board with taking evidence on the factual issue of -- whether Fry Communications, Inc. / InfoConversion Joint Venture (Appellant or InfoConversion) actually relied, when it prepared its bid, on its interpretation of the Invitation for Bids (IFB) as allowing two transaction charges following a single search of the text, a deletion of material, and an addition of material at the same location. Id., Slip. op. at 26. On April 4, 1991, a hearing on the sole factual issue remanded by the Claims Court was conducted by the Board in Washington, D.C., at which the Appellant and the Respondent Agency (GPO or Respondent) were represented by counsel and afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses and argue orally. Posthearing briefs were filed by both the Appellant and the Respondent and have been carefully considered. The following findings of fact on the reliance issue are based upon the record developed at the hearing, my observation of the witnesses and their demeanor, and from my evaluation of the evidence. II. Background A. Differences in Contract Interpretation The factual background regarding this dispute was set forth in detail in both the Board's initial opinion, and the Claims Court's decision on appeal, and is repeated here only to the extent necessary for consideration of the reliance issue. This appeal is rooted in a single award, "requirements" contract for data capture, printing, binding, and distribution of the Department of the Army's (Army) "Army Update Publications", which GPO awarded the Appellant on February 9, 1984. 1/ Step 2 of the procurement process asked bidders who had submitted acceptable technical proposals (Step 1) to quote their prices for a variety of activities contemplated by the contract, including updating and/or editing, to be measured on a transaction basis. R4 File, Tab A (IFB, ¶ I.9., pp. 11-12). The underscored terms were defined for bidders as follows: 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 raising 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. R4 File, Tab A (IFB, pp. 5-6). 2/ The core dispute between the parties arose when the Appellant began to submit payment vouchers to GPO for updating and/or editing work seeking double compensation for the deletion and addition of words at the same location on the ground that they were separate transactions. GPO, focusing on the measurement and payment provisions of the IFB, took the position that only a single transaction charge was appropriate under those circumstances. R4 File, Tab B. In the final analysis, however, both parties relied on the above quoted definitional clauses of the contract to support their respective, but contrary, positions. R4 File, Tabs C and D. Insofar as it is relevant to the issue before the Board here, the Appellant's initial response to GPO's rejection of its claim also informed the Respondent, in pertinent part: 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. * * * * * * * * * * . . . . 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 had an [sic] unique way of identifying new changes 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 . . . had to design a system that would separate [sic] additions and deletions and to handle them as individual transactions not as transactions that are done in conjunction with each other. [Emphasis added.] R4 File, Tab C (Letter from Donald B. Mandery (Mandery), Manager, Business Operations, InfoConversion, to R. E. Lee, Jr. (Lee), GPO Printing and Procurement Division, dated November 29, 1984). 3/ The Contracting Officer's final decision letter of January 23, 1985, specifically rejected each of the Appellant's arguments. R4 File, Tab D. In that regard, the final decision set forth GPO's view that: (1) under the contract definition of "transaction," the act of making an update or edit included searching the data base for the location of the alteration and the movement or deletion of exiting data; (2) the definition of updating and editing involved three distinct processes -- change or addition and deletion; (3) under the contract, where the contractor has to search the data base to remove a word or group of words from a single place in the text and add new words in that same spot, the search and removal may be compensated as a transaction but the keying in of the new material is charged for as adding characters to the file; and (4) the updatepublishing process whereby new changes are identified by strikethroughs of old material and underscoring of the new, is only for the benefit of the reader, and is not intended to indicate a new way of making changes in the data base. R4 File, Tab D. 4/ Thereafter, by letter dated April 15, 1985, the Appellant invoked the procedures of the Board to protest the Lee's final decision rejecting its interpretation of the data capture provisions of the contract as allowing two transaction charges following a single search of the text, a deletion of material, and an addition of material at the same location. 5/ At the Prehearing Conference held on July 23, 1985, both parties filed Cross Motions for Summary Judgment, and in this posture the issue was considered by the Board. B. The Board's Initial Decision On July 29, 1986, the Board rendered its decision on the parties' contract interpretation dispute. Both parties had argued to the Board that the "plain language" of the contract governed their dispute, but each had a diametrically opposed viewpoint as to the meaning of that "plain language." Recognizing that these divergent ways of looking at the "plain language" of the contract presented it with a dilemma, the Board relied on the treatise published by Professors John D. Calamari and Joseph M. Perillo, for guidance in interpreting the contract. Fry Communications, Inc. / InfoConversion Joint Venture, Docket No. GPO BCA 9-85 (July 29, 1986), Sl. op. at 12. 6/ In that regard, among the interpretive theories discussed in the treatise, the Board favored Professor Williston's "standard of reasonable expectation" as providing the best criterion by which to measure the meaning of the contract. Id. Under this yardstick, contract language is given "the meaning that the party making the manifestation should reasonably expect the other party to give it," or stated otherwise "what a reasonable person in the position of the parties would have concluded." 7/ Applying that standard, the Board concluded that the word "change" was used in its "ordinary" sense and did not have any special meaning under contract, notwithstanding that it was used to help define the technical term "updates and edits." Id., at 13. Furthermore, relying on the usual definitions ascribed to the word "change" by the dictionary (Random House Unabridged Dictionary), the Board also concluded that the use of that term in the contract was fully consistent with its ordinary meaning. Id. Consequently, the Board believed that the word "change" has subsumed in its meaning the concomitant correlative concept of "deletion" as a necessary process to its accomplishment. Id., at 14. Moreover, the Board felt that the separate recognition of the word "deletion" within the definition of the technical term "edits and updates" was intended to recognize that on occasion the contractor might be called upon to search the data base for the sole purpose of locating and removing previously entered material only. Id. Therefore, the Board held that under the terms of the contract, Appellant was entitled to be paid only one "per transaction" update and editing charge when, nearly simultaneously, it had to make both a deletion and an addition to the data base at precisely the same physical point in the data base file. Id., at 15. Accordingly, the Board denied the Appellant's Motion for Summary Judgment and granted the Respondent's Cross Motion. Id. C. Decision of the Claims Court In its review of the case, the Claims Court reached a contrary conclusion with respect to the meaning of the term "transaction" under the contract, and reversed the Board. Fry Communications, Inc. / InfoConversion Joint Venture v. United States, No. 174-89C (Cl. Ct., Feb. 5, 1991). Viewing its principal task as deciding whether the IFB was ambiguous, and if so to what extent, the Claims Court rejected the Board's "dictionary" approach to resolving the dispute at the outset. Id., Sl. op. at 13-15. 8/ As the Claims Court indicated, contractual language is ambiguous if it will sustain different reasonable interpretations. Id., Sl. op. at 11 (citing, Edward R. Marden Corporation v. United States, 803 F.2d 701, 705 (Fed. Cir. 1986); Sun Shipbuilding & Drydock Co. v. United States, 183 Ct. Cl. 358, 372 (1968)). In that regard, the Claims Court observed that the Respondent could not prevail simply by showing that its interpretation of the IFB is somehow "better" than [the Appellant's]; " . . . the crucial issue in this connection is whether [the Appellant's] interpretation is within the zone of reasonableness." Id., at 15 (citing, WPC Enterprises, Inc. v. United States, 163 Ct. Cl. 1, 6 (1963)). Looking at the Respondent's interpretation against this standard, which was predicated on the view that the essence of a transaction is an alteration performed after a search of the text, 9/ the Claims Court concluded that it fell within the "zone of reasonableness;" i.e., the Respondent drew inferences which were rational and consistent with contract language (citing, Sun Shipbuilding & Drydock Co. v. United States, supra, 183 Ct. Cl. at 372), and not based on any obvious errors, gross discrepancies, or glaring gaps (citing, WPC Enterprises, Inc. v. United States, supra, 163 Ct. Cl. at 6). Id., Sl. op. at 17. 10/ Similarly, the Claims Court believed that the Appellant's interpretation of a "transaction" was also reasonable. The crux of the Appellant's argument was that the IFB does not explicitly require a search before each deletion and addition at the same location in order to have multiple transaction charges. Therefore, according to the Appellant, it was reasonable to believe that the IFB permitted a charge for a deletion as one transaction, and a charge for an addition as a second transaction, even though the alterations were made in the same location. Id., Sl. op. at 18. In the Claims Court's view, the Appellant's position is fully consistent with the IFB itself. Id., Sl. op. at 18-20. 11/ Accordingly, the Claims Court rejected the Respondent's argument that the Appellant's interpretation is unreasonable because it renders certain provisions of the IFB meaningless -- the eight line items for adding characters to the file, as well as the explicit estimate of over 19,000,000 characters to be added to the file annually -- for two reasons: (1) the Respondent's unstated premise; that bidder is charged with knowing the principle of contract construction which prefers an interpretation giving meaning and effect to all portions of an instrument over one that leaves any portion meaningless; ignored the operative inquiry before the Claims Court, namely, whether the interpretation advanced by Fry -- ostensibly staffed by laymen -- is reasonable; and (2) in any event, the Appellant could reasonably have interpreted the provisions for adding characters to the file at face value and moved on. Id., Sl. op. 20-21. Because the Claims Court found that both the Respondent and Appellant advanced interpretations falling within the zone of reasonableness, it concluded that the IFB was ambiguous. Id., Sl. op. at 21 (citing, Edward R. Marden Corporation v. United States, supra, 803 F.2d at 705). Further, the Claims Court stated that under the doctrine of contra proferentem, the Appellant's reasonable interpretation of the IFB drafted by the Respondent will be adopted, provided: (1) the IFB was not patently ambiguous; and (2) that the Appellant relied on its interpretation in preparing its bId. Id., Sl. op. at 21-22 (citing, William F. Klingensmith, Inc. v. United States, 205 Ct. Cl. 651, 657 (1974); Fruin-Colnon Corporation v. United States, 912 F.2d 1426, 1430 (Fed. Cir. 1990)). A patent ambiguity would exist if the IFB contained a gross discrepancy, an obvious error in drafting, or a glaring gap, as seen through the eyes of a "reasonable man" on an ad hoc basis. Id., Sl. op. at 22 (citing, Max Drill, Inc. v. United States, 192 Ct. Cl. 608, 626 (1970); WPC Enterprises, Inc. v. United States, supra, 163 Ct. Cl. at 6). If such discrepancies, errors, or gaps are not present, the ambiguity is latent and not patent. On the other hand, if the Claims Court finds that the ambiguity is patent, the Appellant would have been obligated to seek clarification of the IFB prior to bidding, which it failed to do. Id., Sl. op. at 22 (citing, Newsom v. United States, 230 Ct. Cl. 301, 303 (1982)). In that regard, the Claims Court's examination of the IFB failed to reveal arguable gross discrepancies, obvious errors, or glaring gaps, and it therefore concluded that the ambiguity was latent only. Id., Sl. op. at 22. 12/ However, the final issue before the Claims Court -- whether the Appellant relied on its interpretation of the IFB in preparing its bid -- placed it in a quandary. 13/ Although the Appellant has alleged throughout these appellate proceedings, i.e., before both the Board and the Claims Court, that when its bid was prepared, it believed that it could charge for two transactions following a search, when making a deletion and an addition at the same location in the text -- and supported this position with the affidavit of George E. Devine (Devine), the president of joint venturer InfoConversion -- there was no substantive evidence in the record on the issue. Id., Sl. op. at 24-25. 14/ In the view of the Claims Court: For the purposes of the present case, . . . [the Appellant] must show that when it prepared its bid -- specifically, when it arrived at its bid of $3.06 per transaction -- it believed that it could charge for two transactions whenever a deletion and an addition were made at the same location in the text. There is no testimony in the record on this issue, nor are there any worksheets, notes, or other materials in the record which might shed some light on how [the Appellant] arrived at its $3.06 figure. The record developed thus far on the reliance issue consists merely of allegations (which the government neither admits nor denies) and self-serving statements made after the dispute arose. [Citation omitted.] Such allegations and statements on this record are, therefore, not sufficient to enable [the Appellant] to carry its burden of proof on the reliance issue. Id., Sl. op. at 24-25. The record showed that Board had disposed of the matter without a hearing and without making any factual findings on the reliance issue, even though the Appellant had explicitly argued that when it prepared its bid, it reasonably and actually interpreted the IFB to allow two transaction charges following a single search when an addition and a deletion were made at the same location. As a consequence, the Claims Court believed that the Appellant was entitled to an evidentiary hearing on the reliance issue. Id., Sl. op. at 25. Accordingly, because the Claims Court itself could not conduct such a hearing, the matter was remanded to the Board to take evidence on the sole factual issue of whether the Appellant actually relied, at the time it prepared its bid, on its present interpretation of the IFB. Id., Sl. op. at 25-26 (citing, 28 U.S.C. § 1491(a)(2) and RUSCC 60.1). 15/ III. Findings of Fact At the hearing on April 4, 1991, the Appellant called two witnesses -- Devine and Mandery -- and introduced three exhibits. 16/ The Respondent called no witnesses. From the evidence taken at the hearing it is clear that no dispute exists concerning the facts relevant to the reliance issue. As indicated earlier, InfoCoversion was one of several bidders who had submitted acceptable technical proposals (Step 1) for Program 400-S, and was invited to quote its prices at Step 2 of the procurement process for a variety of activities contemplated by the contract, including updating and/or editing. The Step 2 IFB was sent by GPO to InfoConversion on or about January 9, 1984, and was received by the Appellant shortly thereafter. Its bid had to be submitted to GPO by January 31, 1984. With the receipt of the Step 2 IFB, InfoConversion became aware for the first time of the schedule of items to be priced and the number of units that would be used as multipliers for the evaluation of the winning bidder. 17/ The preparation and submission of the schedule of prices in InfoConversion's Step 2 bid was essentially a two-man endeavor by Devine and Mandery. 18/ The critical pricing item involved in this dispute was the charge for updating and/or editing (line item 9.(a)), i.e., making a deletion, a change, or an addition, which was measured on a transaction basis. See C-1, at 11. Devine and Mandery were generally familiar with the meaning of the term "transaction" from their previous experience with Government contracts. In this particular instance, however, they were faced with deciding whether an addition and a deletion of material at one location was one transaction or two, because it was significant in terms of arriving at a price for that line item. Therefore, Devine and Mandery were compelled to consider the meaning of the term "transaction" in the IFB for Program 400-S during the bid preparation process. But they admit that their discussions about the matter were not lengthy because they felt sure about what the Government intended to cover by the term. The basis for their confidence was essentially three-fold. First, the Step 1 Request for Proposals (RFP) and the Step 2 IFB for Program 400-S told potential bidders that this was a contract for Army Update Publications. The Appellant knew "Update" to be the name of an Army program, with the acronym RC PAC, under which administrative manuals were periodically updated, edited and changed. 19/ More importantly, the Army had used private contractors for its RC PAC program in the past, and InfoConversion had been the contractor for all of the prepress work. 20/ As a consequence, the Appellant was familiar with the process by which the manuals were prepared and published. In that regard, according to the Appellant the key to the "Update" program was the way in which changes were identified for the reader by the appropriate use of strikethroughs and underlines; i.e., strikethroughs identified deleted material while replacement data (new or changed) was underlined (in the following edition of the publication the struck material was eliminated altogether and the underscoring was removed from the new material). Thus, when Devine and Mandery discussed how to count transactions for pricing line item 9.(a), they extrapolated from their RC PAC experience and applied the same method to Program 400-S. That is, since a deletion (a strikethrough) and an addition (an underscore) were considered two separate transactions under RC PAC even if they occurred at the same location, InfoConversion prepared its price for Program 400-S updates and/or edits with that approach in mind. 21/ Second, Devine and Mandery reviewed other GPO solicitations for similar work on which they had submitted bids in the past to see if they shed light on the use of the term "transaction" in this instance. In particular, at the same time they were working on InfoConversion's bid for Program 400-S, Devine and Mandery were also looking at another data capture and photocomposition IFB from GPO -- Program 280-M. See C-2. The Appellant had unsuccessfully bid on Program 280-M in the past, and believed that it covered work similar to Program 400-S. 22/ Therefore, as part of the bid preparation for Program 400-S, Devine and Mandery examined a copy of the IFB for Program 280-M. In that regard, apart from finding that Program 280-M shared several requirements and general concepts with Program 400-S, they discovered the following Program 280-M instruction regarding compensation for changes involving both a deletion and an addition of material taking place at the same location: . . . A transaction is any alteration of the database at any single location within the database. It includes, but is not necessarily limited to, the following: * * * * * * * * * * The deletion of a word or sequential block of words in a single location, regardless of their number, where no replacement word(s) are to be inserted. If a deletion and insertion occur at the same point, two transaction charges will be allowed. See C-2, at 14. Because of the perceived similarities between Program 280-M and Program 400-S, Devine and Mandery concluded that the same compensation instructions applied to the latter and priced line item 9.(a) accordingly. Moreover, Devine and Mandery said they saw their interpretation buttressed by the words in the Program 400-S IFB itself. That is, the word "deletion" appeared in both solicitations, and to them the word "addition" in Program 400-S was synonymous with "insertion" in Program 280-M. Since they thought that GPO was referring to the same type of functional operation in both cases, Devine and Mandery believed that the clear compensation instructions in 280-M applied to both cases; i.e., it was inconceivable to them that GPO would count a deletion and an addition in one location as two transactions in one instance (Program 280-M), and as a single transaction in the other (Program 400-S). In that regard, Devine recognized that the wording in the Program 400-S IFB was not as precise as Program 280-M in terms of the compensation rules. However, he saw Program 400-S' definition of "Updating and Editing," which shows "deletion" and "addition" as separate functions, and its definition of "transaction," which specifically refers to "making an update or edit in the data base," as sufficiently clear to indicate a parallel intent by GPO to pay for two transactions. In reaching this conclusion, Devine and Mandery also relied on the technical aspects of the work as they knew it. That is, as indicated previously, their experience showed that the Army "Update" system provided for deletions (strikethroughs) and additions (underlining) of material by means of different electronic codes. Technically, entering each code at the same location to delete and add material amounted to two separate electronic searches since different function keys were used for underscoring and strikethoughs on the computer terminals leased by InfoConversion for the Army "Update" work. 23/ Accordingly, the Appellant developed an accounting system for Program 400-S in which the final electronic file actually tallied the number of additions, deletions, underscores, and strikethroughs, and billed them as separate transactions. 24/ Working under the impression that the pertinent terms of Program 400-S allowed InfoConversion two transaction charges where an addition and a deletion were made at the same place in the data base, Devine and Mandery prepared the Appellant's bid from the Appellant's internal records with respect to work it had done for the Government on other electronic contracts, and from information provided by the Publications Service staff who had been working on RC PAC. 25/ In effect, to arrive at InfoConversion's bid, Devine and Mandery compared the previous jobs, including RC PAC, with the specifications for Program 400-S for similarities with respect to the type of tasks required, amount of hourly effort which would be expended, labor resources and job skills needed, and the necessary machinery and equipment. Once this analysis was complete, they applied InfoConversion's costing methodology to the factors involved, 26/ and then translated those costs to the bid sheet in the required format; i.e., per transaction, character, illustration, month, page proof, tape, etc. Aware that Program 400-S would involve a lot of electronic transfer work, and presuming that InfoConversion would be allowed to charge additions and deletions at one place as two transactions, Devine and Mandery relied primarily on the cost data developed under the RC PAC to arrive at a per transaction price of $3.06 for "Updating and/or Editing" (line item 9a). According to Devine, if the Appellant had known that only one transaction charge would have been allowed in these circumstances, the cost figures would have been divided by a much lower number, which would have resulted in a higher per transaction price. It is clear from the record that during the bid preparation process Mandery developed notes or worksheets reflecting the various components such as hours, labor resources, equipment resources, overhead, general and administrative expenses which were used to develop the per transaction price of $3.06. 27/ In fact, developing such worksheets is a normal practice followed by InfoConversion for submitting bids on any Government contract. This supporting cost information, however, did not have to accompany the bid submitted for Program 400-S. Since 1984, those worksheets have disappeared and are no longer available. Apparently, the worksheets were not kept with the Program 400-S file, and Mandery's attempt to locate them prior to the hearing was unsuccessful. 28/ Accordingly, there is no documentary evidence in the record such as worksheets, notes, or other materials, which would "shed some light" on how the Appellant arrived at its figure of $3.06 per transaction for updating and/or editing the data base. IV. Positions of the Parties A. Position of the Appellant Relying basically on the testimony of Devine and Mandery, the Appellant argues that it has sustained its burden of proof of showing that it relied on its "two transaction" interpretation of the contract when it prepared and submitted its bid. Thus, when the Program 400-S contract was reviewed by them with regard to "Updates and Edits," which had to be quoted on a per transaction basis, they reasonably concluded that the addition and deletion of material at one location in the text would entitle it to charge for two transactions. This conclusion was consistent with Appellant's experience on a contract for similar work for the Army and with the terms of another solicitation, Program 280-M, that Appellant had recently bid. In that regard, the Appellant reviewed its cost experience for doing virtually the same type of updates and edits for the same types of publications on the Army job, totaled the number of transactions accomplished on that contract, and determined its Program 400-S bid by counting an addition and deletion of material at one location in the text as two transactions. By doing so, the per transaction bid for updates and edits was substantially lower than if Appellant had considered additions and deletions in the same location to be only one transaction. Thus, the Appellant's bid was predicated on this understanding of the contract terms. Certainly, Devine and Mandery knew from experience that making additions and deletions at one data base location occurred frequently in these sorts of contracts, so the issue was a significant factor in their pricing deliberations. They relied on that experience in calculating the total costs associated with the updating and editing work on Program 400-S. In fact, they set up the billing system to accommodate this "two transaction" viewpoint, and did not change it until the initial claim was denied. The Appellant sees no significance in the fact that the worksheets and notes developed by Devine and Mandery as part of the bid process are no longer available. First, the Appellant doubts that such records as these would have been kept unless this litigation had been anticipated, in which case the files might have been artificially documented with matters not normally maintained in them; e.g., notes to the file relating to the assumptions on which the calculations were based. Second, Devine and Mandery only had three weeks to develop the bid for all line items, so time was of the essence and they probably did not document everything that went into their figures. Third, the worksheets, even if available probably would not have been probative on the reliance issue. That is, the worksheets would undoubtedly only have contained the results of the analysis of the historical cost data on the RC PAC contract; they would not have revealed what assumptions were made by the Appellant concerning the definition of a "transaction" in Program 400-S. At this stage, the best evidence of the assumptions made is the corroborated and uncontroverted testimony of Devine and Mandery, the two persons most knowledgeable about how the Appellant collected its costs on the RC PAC contract and how the Appellant formulated its bid for doing updates and edits on Program 400-S. Accordingly, the Appellant submits that not only has it sustained its burden of proof, but also that the record evidence clear shows that, as a matter of law, it actually relied on its "two transaction" interpretation of the at the time it prepared its bid. B. Position of the Respondent Contrary to the Appellant, the Respondent believes that the failure of InfoConversion to produce the documents and worksheets it developed in formulating its bid is fatal to its case. As Counsel for the Respondent observed in his oral summation at the hearing, the Appellant had the burden of presenting credible evidence to support its contention that it interpreted the provisions of Program 400-S in a particular way and that it relied upon that interpretation. Here, however, although the witnesses testified that worksheets showing the accounting records dealing with the resources required, the cost of those resources, and the pricing formula applied, were in fact developed and existed at the time the Appellant submitted its bid, those contemporaneous documents are not now available to support the Appellant's generalizations about the thinking or the calculations which went into the development of a per transaction price for updates and edits. Similarly, the Respondent contends that the Appellant's failure to produce evidence concerning the computer program which it developed for billing purposes, and which it now claims that it changed when GPO would not accept its "two transaction" theory of compensation for updates and edits, is also a major omission. In addition, the Respondent believes that any changes to such an electronic accounting program should have been in writing. However, no documentation was produced at the hearing showing either the existence of such a program, or any change to it. Although Mandery went to InfoConversion prior to the hearing to retrieve the worksheets and documents from the files there, they could not be found. In the Respondent's view, these documents are the best evidence of whether in submitting its bid the Appellant relied on the interpretation of the Program 400-S IFB which it now advances; otherwise nothing is left but "inadequate self-serving statements" made seven years later. Furthermore, the Respondent sees the Appellant's "bootstrap" use of the Program 280-M solicitation as undermining the very grounds on which it prevailed before the Claims Court; i.e., that at the time it was preparing its bid on Program 400-S, the Appellant saw the ambiguity in the term "transaction" and used the definition in Program 280-M to clarify it. As a consequence, the Respondent believes the reliance on Program 280-M is evidence of the fact that perhaps the ambiguity issue was decided wrongly by the Claims Court. To the Respondent, the testimony Devine and Mandery clearly showed that at the time they prepared the Appellant's bid for updates and edits, they had a question about GPO's intent in using the word "transaction" in the Program 400-S IFB. The Respondent also contends that because Devine and Mandery could not find the meaning of that in the Program 400-S IFB itself, they searched for other guideposts outside that program. Therefore, according to the Respondent, regardless of whether the ambiguity was latent, as decided by the Claims Court, or patent, it was nonetheless incumbent on Devine and Mandery to seek a clarification from the Contracting Officer. 29/ In summary, it is the Respondent's position that the Appellant's evidence consists of nothing more than personal recollections and speculation about what might have happened in developing the bid for Program 400-S, and allegations and self-serving statements made after the dispute arose. As such, the Respondent argues, the evidence fails to show that at the time the Appellant submitted its bid, it in fact relied upon an interpretation of the contract which allowed compensation for two transactions where an addition and a deletion were made at the same location in the data base. Accordingly, the Respondent believes that the Appellant has failed to meet its required burden of proof under the law. V. Issue Presented The sole issue presented for the consideration of the Board on remand is whether or not the Appellant actually relied, at the time it prepared its bid, on its present interpretation of the Program 400-S IFB, which would allow it to charge for two transactions when it made an addition and a deletion at the same place in the text? 30/ VI. Analysis and Conclusions It is a fundamental principal of Government contract law that an appellant, to prevail, bears the burden of proving its affirmative claim against the Government and establishing its entitlement by a preponderance of the evidence. See, e.g., Singleton Contracting Corporation, GSBCA No. 8548 (January 18, 1990), 90-2 BCA ¶ 22,748; Tri-State Services of Texas, Inc., ASBCA No. 38010 (June 5, 1989), 89-3 BCA ¶ 22,064 (citing, Wunderlich Contracting Company v. United States, 173 Ct. Cl. 180, 351 F.2d 956 (1965); Air-A-Plane Corporation, ASBCA No. 3842, 60-1 BCA ¶ 2547; Coastal Contracting and Engineering Company, Inc., ASBCA No. 4835, 58-2 BCA ¶ 1875). "Preponderance of the evidence" simply means such evidence as, when weighed against that opposed to it, is more convincing that something is more likely so than not so. Cf., Hopkins v. Price Waterhouse, 737 F.Supp. 1202, 1204, n. 3 (D.D.C. 1990). That is, to meet this standard of proof a party is required to present evidence sufficient to persuade the finder of fact that the proposition is more likely true than not true. Id., at 1206 (citing, E. Devit, C. Blackmar, M. Wolff, FEDERAL JURY PRACTICE AND INSTRUCTIONS § 7-2.02 (4th ed. 1987). Stated in terms of this case, this means that the Appellant has the burden of showing, by a preponderance of the evidence, that when it prepared its bid, it actually relied on its interpretation of the "Updates and Edits" section of the IFB that two "transaction" charges were allowed for deletions and additions made in the same location. Fry Communications, Inc. / InfoConversion Joint Venture v. United States, supra, Sl. op. at 24. See also, Fruin- Colnon Corporation v. United States, supra, 912 F.2d at 1430; Edward R. Marden Corporation v. United States, supra, 803 F.2d at 705; Framlau Corporation v. United States, 568 F.2d 687, 693 (Ct. Cl. 1977); Dale Ingram, Inc. v. United States, 475 F.2d 1177, 1185 (Ct. Cl. 1973); Castillo Printing Company, Docket No. GPO BCA 10-90 (May 8, 1991) Sl. op. at 39 (citing, Fry Communications, Inc. / InfoConversion Joint Venture v. United States, No. 174-89C (Cl. Ct., Feb. 5, 1991)). As the Claims Court has observed, this rule of law is well settled. Fruin- Colnon Corporation v. United States, supra, 912 F.2d at 1430 (citing, Lear Siegler Management Services Corporation v. United States, supra, 867 F.2d at 603; Edward R. Marden Corporation v. United States, supra, 803 F.2d at 705). In this case, the Claims Court remanded the matter to the Board because the Appellant had not been afforded an opportunity to present the evidence necessary for it to carry its burden of proof on the reliance issue; i.e., the appellate record on that issue consisted merely of allegations and self-serving statements made after the dispute arose. 31/ Fry Communications, Inc. / InfoConversion Joint Venture v. United States, supra, Sl. op. at 25. Specifically, the appellate record lacked testimony and documentary evidence such as worksheets and notes, which might explain how the Appellant arrived at its "per transaction" figure of $3.06, and the Claims Court expected the Appellant, on remand, to supply the missing proof. 32/ Id., Sl. op. at 24-25. Thus, from the Claims Court's opinion, it is clear that for the Appellant to sustain its burden of proof on the reliance issue, it had to offer evidence which showed not only whether it relied on its "two transaction" interpretation of the Program 400-S IFB in formulating its bid for updates and edits, but also how that interpretation affected its bid. The Board believes that when the evidence presented at the hearing is properly weighed and considered, the conclusion is inescapable that the Appellant has failed to carry its burden of proof on the reliance issue by a preponderance of the evidence. The Appellant's case rests primarily on the testimony of its two witnesses, Devine and Mandery, who prepared InfoConversion's bid. From the record developed at the hearing, it is clear that when they first saw the Step 2 IFB for Program 400-S, Devine and Mandery knew immediately that in pricing the line item for "Updates and Edits," their most significant decision would be determining whether an addition and a deletion of material at one location was one transaction or two. Notwithstanding the importance of the matter, Devine and Mandery spent little time discussing the meaning of the term "transaction" when formulating the Appellant's bid because they felt sure they knew what the GPO intended to cover by the term from their previous experience with Government contracts. While Devine and Mandery did not ignore the words in the Program 400-S IFB, it seems clear to the Board that their deliberations concerning the meaning of the term "transaction" centered primarily on outside sources. In the opinion of the Board, the Appellant's interpretation that two transaction charges were allowed where an addition and a deletion were made at the same location in the data base, is principally rooted in: (1) the understandings they derived from InfoConversion's previous work on the Army's RC PAC program; and (2) the definitions found in the solicitation for Program 280-M, which they were reviewing contemporaneously with Program 400-S. In the latter regard, the specific instruction in the Program 280-M solicitation which said that "[i]f a deletion and insertion occur at the same point, two transaction charges will be allowed," seems to have been controlling because the language was practically the same (if one considers the word "addition" in Program 400-S was synonymous with "insertion" in Program 280-M), and the same type of functional operation seemed to be involved in both programs; hence, Devine and Mandery believed that the clear compensation instructions in 280-M applied to Program 400-S as well. As for their experience with RC PAC, because a deletion (a strikethrough) and an addition (an underscore) were considered two separate transactions under that program even if they occurred at the same location, Devine and Mandery applied the same method to Program 400-S when counting transactions for pricing line item 9.(a). In light of this analytical approach taken by Devine and Mandery, the Board is compelled to conclude that the Appellant did not actually rely, at the time it prepared its bid, on its present interpretation of the Program 400-S IFB. See, Lear Siegler Management Services Corporation v. United States, supra, 867 F.2d at 604 ("[t]he actual basis on which appellant prepared its bid was its prior experience with a similar contract at Warner Air Force Base."). See also, Edward R. Marden Corporation v. United States, supra, 803 F.2d at 705 ("[h]ere it is obvious that in the preparation of its bid, . . . Marden did not rely on an interpretation that composition or latex flooring was unnecessary in the mechanical rooms."). The Board's conclusion is reenforced by the fact that the Appellant's worksheets and notes, which the record discloses were developed by Mandery as part of the bid preparation process, have since disappeared. Those notes or worksheets, which were compiled from the Appellant's internal records with respect to work it had performed on other Government contracts and the RC PAC program, reflected the various components such as job tasks, hours, labor resources, equipment resources, overhead, general and administrative expenses. In that regard, it is clear that Devine and Mandery relied primarily on the cost data developed under the RC PAC to arrive at a per transaction price of $3.06 for "Updating and/or Editing" (line item 9a). These documents, however, were not introduced at the hearing because they are no longer available. The testimony in the record is that this supporting cost information did not have to accompany the Appellant's bid, the data was never an official part of the Program 400-S files, and since 1984, the worksheets have disappeared. Accordingly, there is no documentary evidence in the record such as worksheets, notes, or other materials, which, in the words of the Claims Court, would "shed some light" on how the Appellant arrived at its figure of $3.06 per transaction for updating and/or editing the data base. Given the state of this record, the Board must agree with the Respondent that the Appellant's failure to produce the worksheets and notes which Devine and Mandery developed in the bid preparation stage of the procurement, is a fatal omission because without those documents the Appellant cannot show how its interpretation affected its bid; i.e., how the figure of $3.06 was determined. See, e. g., Malloy Construction Company, ASBCA No. 25055, 82-2 BCA ¶ 16,104 (". . . [Appellant] failed to produce documents upon which it purportedly relied in formulating its bid. . . . In the absence of documentary evidence revealing such reliance, we hold that appellant has failed to produce credible evidence to meet its burden of proof."). See also, G W Mechanical Contractors, Inc., ASBCA No. 36430, 88-3 BCA ¶ 21,126. Even though the Counsel for the Appellant expressed his concern at the hearing about the Appellant's inability to locate the missing records, the Appellant nonetheless believes that their omission is without significance because: (1) such worksheets and notes probably would not have been kept unless this litigation had been anticipated, in which case the files might have been artificially documented with matters not normally maintained in them (e.g., notes to the file relating to the assumptions on which the calculations were based); (2) Devine and Mandery were pressed for time to develop the bid for all line items, so they most likely did not document everything that went into their figures; (3) the worksheets, even if available, probably would not have been probative on the reliance issue because they would undoubtedly only have contained the analysis of the cost data on the RC PAC contract and not disclosed the assumptions made by the Appellant concerning the definition of a "transaction" in Program 400-S; and (4) the "best evidence" of the Appellant's interpretation is the corroborated and uncontroverted testimony of Devine and Mandery. Hearing Transcript, at 81-83; Appellant's Brief, dated May 29, 1991 (unnumbered) pages 5-6 (App. Brf.). Furthermore, while Appellant's Counsel admits the possibility that the Appellant could have formulated its interpretation after its bid was prepared, he also believes that because the first billing to GPO for updates and edits charged the Government for two transactions where material was added and deleted at one location in the text, that fact makes such a possibility less probable. App. Brf., at 6. The Board believes it is unnecessary to address each of these arguments advanced by the Appellant. Suffice it to say, that it seems to the Board that at least since November 8, 1984, when GPO rejected the Appellant's first billing showing two transaction charges for additions and deletions made at the same place in the text (R4 File, Tab B), a reasonably prudent contractor would in have preserved the relevant files and records, whether in anticipation of litigation or to support its claim. Furthermore, the Board is unable to tell whether the worksheets and notes, even if available, would have had probative value on the reliance issue because they were never introduced. Consequently, in light of the Appellant's failure to explain how the documents came to be missing, the Board agrees with Counsel for the Respondent that the "best evidence" of the contents of the missing worksheets and notes are the documents themselves, not the testimony of Devine and Mandery. 33/ R. Brf., at 9. Cf., Bendix Corporation v. United States, 600 F.2d 1364, 220 Ct. Cl. 507 (Ct. Cl. 1979), appeal after remand 676 F.2d 606, 230 Ct. Cl. 247 (Ct. Cl. 1982). Moreover, because the Appellant has not introduced evidence to explain why the documents are missing, the accepted legal principles allow the Board to draw a negative inference in favor of the Respondent that the contents would be harmful to the Appellant's case. See, e.g., Jen-Beck Associates, VABCA Nos. 2107-10, 2133-2117, 2119-20, 2122, 2124-25, 2127, 2129-35, 2186, 87-2 BCA ¶ 19,831. See also, Morowitz v. United States, 15 Cl. Ct. 621, 631 ("[i]nasmuch as a party's failure to bring forth evidence within his control, or to explain such omission, warrants an inference that the evidence, if proffered, would be unfavorable to his cause [citations omitted], we conclude that the plaintiff's failure to call the foregoing witnesses and introduce certain Darby, Inc. records, . . ., is motivated by the negative impact that such evidence would have had on their tenuous contention."). In the final analysis, the Board is left with the conclusion that the Appellant's evidence supporting its claim that it relied on its "two transaction" interpretation of the Program 400-S IFB in submitting its bid, consists of nothing more than the self- serving testimony of Devine and Mandery, which is not enough to sustain the Appellant's burden of proof in this matter. See. e.g., Singleton Contracting Corporation, supra, 90-2 BCA ¶ 22,748. As indicated previously, assertions and allegations standing alone do not constitute proof. 34/ VII. Decision Because the Appellant has offered insufficient proof supporting its claim that it relied on its present interpretation of the Program 400-S IFB, when it submitted its bid, the appeal must be denied. _______________ 1. The initial contract term was until July 31, 1984, but was extendable for one year increments up to and including 1988, as funds became available. Rule 4 File, Tab A (Specifications -- cover page; Part Two Invitation for Bids -- "NOTICE TO BIDDERS," p. 1) (hereinafter R4 File). 2. The IFB also contained detailed instructions concerning how updates and/or edits would be measured and paid for. Rule 4 File, Tab A (IFB, p. 6). Among other things, those instructions stated that: (1) the maximum allowable charge for updates and/or edits on any particular page would 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 on "per transaction" charge for each group, regardless of the number of lines in a group; (3) transpositions of type, including deletions and insertions, and/or pages of made-up pages, would entitle the contractor to charge two "per transaction" charges per transposition; and (4) transpositions on made-up pages of components such as tables or spaces for an illustration, would allow the contractor to charge two "per transaction" charges for each affected column -- e.g., a table which prints across three columns would result in a transposition charge based on six "transactions". 3. Similarly with respect to the issue herein, in its formal complaint to the Board, the Appellant alleged, in pertinent part, that: "...[i]n 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." [Emphasis added.] Official File. Tab 8 (hereinafter OF). 4. The Respondent's Answer to the Complaint further amplified its position on (4) above by adding that the strikethrough and underscoring system of identifying changes had no relevance to the definition of "transaction" under the contract or the method of paying for them; indeed, the same method had been applied for many years to changes in congressional bills and other documents regardless of the manner in which they were composed. OF, Tab 11, ¶ 10. 5. The original appeal also disputed GPO's billing system under the contract, including the supporting material required to be submitted with the Appellant's invoices. However, the parties bilaterally resolved this second issue shortly after the appeal was filed, and by letter dated May 1, 1985, the Appellant notified the Board that it was withdrawn from the case. R4 File, Tab J. 6. John D. Calamari and Joseph M. Perillo, The Law of Contract, West Publishing Co., St. Paul, Minnesota (1977) (herinafter Calamari and Perillo). 7. See, Calamari and Perillo, § 310, at p. 118, and discussion in n. 18 (citing, James v. Goldberg, 256 Md. 520, 261 A.2d 753 (1970)). 8. In the Claims Court's view, "...context and intent of the parties are more important than bland dictionary definitions." Fry Communications, Inc. / InfoConversion Joint Venture v. United States, Sl. op. at 11 (citing, Rice v. United States, 192 Ct. Cl. 903, 908 (1970)). While the general rule is that contractual terms are to be given their plain and ordinary meaning unless it is shown that the parties intended otherwise, Id., at 10. (citing, Hol-Gar Manufacturing Corporation v. United States, 169 Ct. Cl. 384, 390 (1965), here it was clear that the contract itself supplied the applicable definition of the key term "transaction." Id., at 14. Thus, it was "fundamental error" for the Board to disregard the special meanings given to the term in the contract (which included the subterms "update and edit," "change or addition" and "deletion" "a single move of addition" and an "elimination"), in favor the selective application of common dictionary definitions. Id., at 14-15. 9. The Respondent argued that because a deletion and an addition at the same location requires just one search, only one transaction is involved. Therefore, adding material at the location of a deletion should only entitle plaintiff to a charge for "adding characters to the file" and not a charge for a second transaction. According to the Respondent, for the Appellant to be entitled to two transaction charges where there is a deletion and an addition to the data base, there must be a separate location for each activity. Fry Communications, Inc. / InfoConversion Joint Venture v. United States, Sl. op. at 16-17. 10. The Claims Court was compelled to note, however, that the Respondent always had the power, and perhaps the duty, to make its intent clear in the IFB itself; i.e., with a provision which simply said "[a]n alteration requiring only one search of the text, where a deletion and an addition is made at the same location, entitles the contractor to only transaction charge." Id., Sl. op. at 17. Since the IFB did not contain a provision explicitly stating that a search of the text was an indispensable element of a "transaction," the Appellant was caught in "...precisely the sort of 'hidden trap,' the risk of which should fall on the drafter." Id. (citing, Sturm v. United States, 190 Ct. Cl. 691, 697 (1970); WPC Enterprises, Inc. v. United States, supra, 163 Ct. Cl. at 6). 11...The Claims Court found support for the Appellant's position in" (1) paragraph (2) of "Measurement of and Payment for Updating and/or Editing" (IFB at 6); (2) the full definition of "Updating and Editing;" and (3) paragraph (9) of the Schedule of Prices (IFB at 11). With respect to the standards for measurement and payment, the IFB allows one transaction charge "deleting or transposing type lines without setting and inserting new material." (Emphasis supplied by Court.) Thus, by negative inference, the Claims Court found it reasonable to conclude that an additional transaction charge is permitted when new material is inserted. Id., Sl. op. at 18. Similarly, in agreement with the Appellant, the Claims Court saw the full definition of "Updating and Editing" which set forth three fundamental ways to alter the existing data base (moving material, eliminating material, and adding material), as supporting a reasonable interpretation of the IFB to allow a transaction charge for an "addition" (following a "deletion") whenever words, phrases, sentences, or paragraphs are added to the text, regardless of whether one or two searches are involved. Id., Sl. op. at 19. Finally, insofar as paragraph (9) of the Schedule of Prices provides that for updating and/or editing (a definition of a "transaction") a flat charge for making a deletion, a change, or an addition is computed "per transaction," the Claims Court believed it was reasonable to interpret a "change" as a "single move [of existing material]"; and "addition" is "addition [of new material]"; and "deletion" is "elimination [of existing material.]" Id. Indeed, the Claims Court felt that such an approach, which accounts for all possible types of alterations in the Schedule of Prices, comports with two fundamental principles of contract construction: (i) meaning and effect should be given to all parts of a contract (citing, Fortec Constructors v. United States, 760 F.2d 1288, 1292 (Fed. Cir. 1985)); and (ii) when there is a clear intention to depart from the ordinary meaning of terms, the contractual definitions govern over ordinary meaning (citing, Rice v. United States, supra, 192 Ct. Cl. at 908; Hol- Gar Manufacturing Corporation v. United States, supra, 169 Ct. Cl. at 390). Id., Sl. op. at 20. 12. At best, the Claims Court found only a few "minor discrepancies and esoteric gaps," which were not so obvious and glaring that the Appellant should have noticed and sought to have them clarified. Id., Sl. op. at 22. As the Claims Court observed, a contractor "is not normally required (absent a clear warning in the contract) to seek clarification of any and all ambiguities, doubts, or possible differences in interpretation." Id. (citing, WPC Enterprises, Inc. v. United States, supra, 163 Ct. Cl. at 6). Indeed, to the Claims Court the only arguable patent ambiguity is whether a "transaction" included an "addition" because the latter term, at first blush, is not contained in the contractual definition of the former. Id., Sl. op. at 23 (citing, Public Utility Dist. No. 1 of Ferry County v. United States, 20 Cl. Ct. 696 (1990) (generally, the expression of one thing in a contract is the exclusion of another). However, even though the missing term appears in another portion of the contract (the detailed circumstance, ipso facto, rendered the IFB patently ambiguous because no gross discrepancies, obvious errors, or glaring gaps were thereby created. Essentially, the Claims Court held that because the fuller definition of "Update and/or Edit" specifically included an "addition" as an example of a "transaction," it controlled over the more general definition of "transaction" elsewhere, especially since the latter directly refers a bidder to the "Update and/or Edit" provisions for more specific examples of "transactions." Id., Sl. op. at 23 (citing, United Pacific Insurance Company v. United States, 204 Ct. Cl. 686, 694 (1974) (when there are two conflicting clauses in a contract, the clause which is specially directed to particular matter controls over a clause which is general in its terms, even though the specific matter may be included within those general terms). 13. As the Claims Court noted, the reason for the well-settled rule that "where a contractor seeks recovery based on his interpretation of an ambiguous contract, he must show that he relied on this interpretation in submitting his bid," is to prevent contractors from recovering additional compensation under a contract based on a mere afterthought. Id., Sl. op. at 23-24 (citing, Fruin-Colnon Corp. v. United States, supra, 912 F.2d at 1430 [quoting, Lear Siegler Management Services v. United States, 867 F.2d 600, 603 (Fed. Cir. 1989)]). Thus, the "actual reliance" rule compels a contractor to prove an actual injury from a government-drafted latently ambiguous provision; if a contractor did not formulate its bid actually relying on its interpretation, it cannot later claim that failure to adopt its post-bid interpretation will result in a pecuniary loss. Id., Sl. op. at 24. 14. As the Claims Court observed, the Respondent has neither admitted nor denied the Appellant's allegations concerning the reliance issue, nor contested the statements made in Devine's affidavit. Id., Sl. op. at 24. 15. The Claims Court in a Wunderlich Act case is strictly limited to a review of the factual record developed before the agency; it may not take evidence to supplement the record. Id., Sl. op. at 25 (citing, United States v. Anthony Grace & Sons, Inc., 384 U.S. 424, 432 (1966); Titan Pacific Construction Corporation v. United States, 17 Cl. Ct. 630, 632 n. 4 (1989), aff'd mem. 899 F.2d 1227 (Fed. Cir. 1990)). 16. The exhibits were marked C-1 through C-3, inclusive. Briefly, C-1 is the Step 2 of the IFB for Program 400-S (the pricing stage), dated January 9, 1984; C-2 is a 16-page solicitation for Program 280-M, a multiple award contract for data capture and/or photocomposition, beginning February 1, 1983 and ending January 31, 1984; and C-3 is a list prepared by InfoConversion summarizing the disallowed transactions under Program 400-S. It should be noted that C-1 duplicates part of Tab A in the Rule 4 File. 17. A unit multiplier is the Government's estimate of the number of times a particular item in the schedule of prices would occur over the life of the contract, usually a year. As such, it not only allows the Government to evaluate a bidder's price quotations for specific tasks, but also provides the potential contractor with a reasonable estimate of the number of items that would be ordered under the contract. According to Devine, the multipliers for Program 400-S were, for the most part, accurate and realistic predictions of the activity which could be expected under the contract. While a few multipliers might have been lower than anticipated, they were a small part of the contract in terms of the total price. 18. InfoConversion was only responsible for preparing the prepress portion of the joint venture's bid. The remainder of the bid was formulated by Fry. Furthermore, even though Devine and Mandery were responsible for preparing InfoConversion's bid, the record shows that other employees were also involved. In that regard, they held conversations with the staff of InfoConversion's publications services with regard to the hours worked and the effort expended on the contract with the Army called RC PAC. See note 19 infra. For example, Devine specifically remembered speaking to Jeanette Viaino, RC PAC group leader, and Janet Whitcomb, RC PAC project manager, who was scheduled to perform the same function for Program 400-S. Devine and Mandery were particularly interested in the RC PAC contract for the mirror it held to possible item costs on such things as the camera-ready copy pages. For items where InfoConversion's computerized accounting system did not exactly fit the pricing line item in Program 400-S, Devine and Mandery manually worked out the bid figures. The final bid numbers, including appropriate discounts, were entered on the bid sheet in pencil and pen by Mandery, and initialed by Devine before it was submitted to GPO. 19. "RC PAC" involved updates and changes to publications, regulations and manuals concerning the Army's Reserve Components, including pay and other personnel matters affecting reservists. 20. InfoConversion's contract for this work was with the Army directly, and not with GPO. Indeed, the product sample attached to the Program 400-S procurement, was a previous "Update" -- RC PAC-4 -- on which InfoConversion had done the prepress work. According to Devine the specifications for RC PAC-4 were not as detailed as Program 400-S', so it was necessary to consult InfoConversion's publications staff in the pricing process, particularly in determining how many pages of changes could be accomplished in an hour, and how many transactions were involved. However, the staff was not asked if an addition and a deletion at the same location was counted as one or two transactions. The discussion focused instead on how many author's alterations could be accomplished in a particular time period. 21. The Appellant's experience under RC PAC also allowed it to estimate how many of the updates and/or edits which might occur in Program 400-S would involve an addition and a deletion of material at one location. In that regard, at the time it prepared its bid, the Appellant believed that between 40 to 60 percent of the Program 400-S changes would have been so classified. In actuality, about 50 percent of the updates and/or edits in Program 400-S were combined changes; i.e., additions and deletions of material made in the same place in the text. 22. Program 280-M covered a multiple award contract for the production or updating of data base tapes and/or photocomposition for GPO and various other agencies. See, C-2, at 1, 5. The IFB was issued, and the contract awarded, on an annual basis. 23. Devine also testified that because Program 400-S did not include coding in the count of "characters" used as the basis for compensating the contractor, it differed significantly from InfoConversion's prior contract for the Army "Update" work and other similar Government contracts he had reviewed in the past. He also said that it had an impact on how transactions would be paid for under Program 400-S, because in order to make additions and deletions at the same place in the data base it was necessary to enter two different sets of codes, neither of which was compensable under the line items for adding characters to the file. See C-2, at 12 (line items 9 (b)-(e)). 24. The record shows that InfoConversion has a costing system that its uses to assess jobs, and an electronic accounting system which supports that system. Once the dispute arose, InfoConversion rewrote this accounting program for transaction. However, the Appellant continued to maintain a list of the disallowed transactions under Program 400-S. See , C-3. While this list, by definition, was not a document relied on by the Appellant in the preparation of its bid, the Board nonetheless allowed its admission at the hearing for the limited purpose of showing the extent of the dispute between InfoConversion and GPO. See, GPO Instruction 110.12, Subject: Board of Contract Appeals Rules of Practice and Procedure, September 17, 1984, Rule 20, at 12 ("Letters or copies thereof, affidavits, or other evidence not ordinarily admissible under the generally accepted rules of evidence, may be admitted in the discretion of the Board. The weight to be attached to evidence presented in any particular form will be within the discretion of the Board, taking into consideration all the circumstances of the particular case.") 25. See, note 18 supra. 26. Under InfoConversion's costing methodology, unit costs included the price of the task, associated overhead costs, general and administrative expenses, and profit. With regard to Program 400-S, the per transaction price for updates and edits was arrived at by first determining how much time it took an operator to handle a transaction, multiplying that effort by current pay rates, and applying the above formula (adding overhead costs, general and administrative expenses, and profit) to arrive at the bid price of $3.06. 27. These worksheets were basically information concerning the number of hours expended on a particular job being compared with Program 400-S, the number of author's alterations (which were viewed as synonymous with additions and deletions), and the time it took to accomplish them, as well as the hours spent on proofreading and keying in data. The figures would have been totaled on an adding machine or calculator. 28. Mandery left the Appellant in 1987 to go to work for Grumman Data systems, InfoConversion's parent company, as Manager of Business Operations. Mandery testified that before the hearing, he went back to InfoConversion to look for the old files, which he had left there, but could not find them. Mandery thought that he might have been able to locate the files a few years ago, but "realistically" some of the material was not physically attached into the contract file and so may have been disposed of, while other information would not have been kept with the file in any case. Furthermore, Mandery believed that the personnel changes which have taken place at InfoConversion since 1984 would also make locating the worksheets difficult. 29. See, Respondent's Post Hearing Brief, dated May 24, 1991, at 5-8 (hereinafter R. Brf.). In effect, the Respondent argues that since the Appellant had a question about whether it could charge for one or two transactions prior to the time it submitted its bid, it was improper for it to use self-help to interpret the IFB instead of seeking a clarification from the Contracting Officer. R. Brf., at 6-7. Further, in light of the fact that Devine admitted that the alleged ambiguity was known to the Appellant before it submitted its bid, the doctrine of contra proferentum is inapplicable to these circumstances. Id., at 7 (citing, James A. Mann, Inc. v. United States, 535 F.2d 51, 61 (Ct. Cl. 1976) (the contra proferentum rule does not apply where the plaintiff knew of alleged ambiguity before it submitted its bid). Instead, the Respondent argues that because the Appellant was on notice of the incipient problem, it had an affirmative duty to contact the Contracting Officer for a solution, and its failure to do so deprives it of access to the principle that ambiguities in contracts written by the Government are held against the drafter. Id. (citing, Beacon Construction Co. v. United States, 314 F.2d 501, 504, 161 Ct. Cl. 1, 6-7 (1963)). Moreover, the obligation to ask for a clarification from the Contracting Officer arises where a prospective contractor has actual knowledge of an ambiguity irrespective of whether it is patent. Id., at 8 (citing, Solar Turbines International v. United States, 3 Cl. Ct. 489, 497 (1983)). According to the Respondent, sound policy reasons support the requirement that a potential contractor should ask the Contracting Officer to clarify any ambiguities before a bid is submitted, i.e., (1) it provides a "level playing field" for all potential bidders; (2) it discourages contractors from taking advantage of the Government; and (3) it prevents post-award litigation. Id. (citing, Enrico Roman, Inc. v. United States, 2 Cl. Ct. 104, 107 (1983)). 30. The Respondent's Post Hearing Brief raises an additional issue, namely whether the Appellant, knowing of the ambiguity concerning the meaning of the word "transaction" in the Program 400-S IFB, and failing to seek a clarification from the Contracting Officer, losses the benefit of the doctrine of contra proferentum and instead bears the risk of misinterpretation. R. Brf., at 5. The Respondent's view rests on Devine's admission at the hearing that he was doubtful about GPO's intent in using the word "transaction" at the time he was preparing the Appellant's Program 400-S bid for updates and edits, and nonetheless resolved the matter himself without asking the Contracting Officer for an explanation. In effect, the Respondent is asking the Board to reverse the so much of the Claims Court's ruling that, as a matter of law: (1) the ambiguity here was latent, not patent; and (2) the doctrine of contra proferentum would apply if the Appellant establishes that it actually relied on its reasonable interpretation of the IFB drafted by the Respondent in preparing its bid. Fry Communications, Inc. / InfoConversion Joint Venture v. United States, supra, Sl. op. at 21-22, 26. (The Respondent seems to imply that the Claims Court has already applied the doctrine of contra proferentum in this case, and did so based on an incomplete record, i.e., before the Appellant admitted that it knew an ambiguity existed at the time it was preparing its bid. R. Brf., at 7, fn. 7. The Respondent's argument proves too much. As the Board sees it, the Claims Court's contra proferentum ruling is conditional only, and depends on a factual finding of the Board that the Appellant actually relied on its interpretation of the Program 400-S IFB in preparing its bid to be given effect.) The Claims Court's review of the issues was conducted under the provisions of the Wunderlich Act, 41 U.S.C. §§ 321, 322. Fry Communications, Inc. / InfoConversion Joint Venture v. United States, supra, Sl. op. at 6, fn. 6. As the Claims Court observed, "[i]n a Wunderlich Act case, the court sits, in effect, as an appellate tribunal,...". Id., Sl. op. at 10. Consequently, in the Board's view, this administrative body has no authority in this case to overturn the rulings of the Claims Court on matters of law. Indeed, the very notion that an inferior adjudicatory body can overrule the competent legal decisions of a superior forum is foreign to the American scheme of jurisprudence. Simply stated, the Wunderlich Act rulings of the Claims Court on issues of law are binding on this Board. Therefore, if the Respondent wishes a reversal of any of those rulings on the grounds stated (Devine's hearing testimony), the appropriate forum is the Claims Court itself. RUSCC 60.(b) (2). 31. As the Claims Court observed, such allegations and statements are not sufficient to enable an appellant to carry its burden of proof on the reliance issue. Fry Communications, Inc. / InfoConversion Joint Venture v. United States, supra, Sl. op. at 25. See also, Tri-State Services of Texas, Inc., supra, 89-3 BCA ¶ 22,064 (citing, Gemini Services, Inc., ASBCA No. 30247, 86-1 BCA ¶ 18,736). 32. The Claims Court apparently believed that such worksheets would most likely show an estimate of the amounts of labor, equipment and time required for the contract and the calculations by which the Appellant's arrived at its price. Cf., Hof Construction, Inc. (Engineered Fire Protection, Inc.), GSBCA No. 7027-R, 87-2 BCA ¶ 19.838. 33. As expressed in the Federal Rules of Evidence, the "best evidence" rule states that to prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided the rules of evidence or by Act of Congress. FED. RULES EVIDENCE, RULE 1002, 28 U.S.C.A. Thus, the "best evidence" rule is a rule of exclusion and applies only if party offering evidence is seeking to prove contents of a writing. See, e.g., Jackson v. Crews, 873 F.2d 1105 (8th Cir. 1989). Secondary evidence to establish the contents or the originals is allowed under the rule, however, see e.g., United States v. United States Trust company, 660 F.Supp. 1085 (D. Mass. 1986), so long as the party seeking to prove contents of writing can establish the existence of the original and give a proper excuse for nonproduction of the documents. See e.g., A.F.L. Falck, S.P.A. v. E. A. Karay Company, Inc., 722 F.Supp. 12 (D.S.D.N.Y.1989). Under Rule 1004 of the Federal Rules of Evidence, secondary evidence of original documents which are lost or destroyed is allowed, but the burden of proving the loss or destruction is on the proponent of the evidence, and provided that the evidence was not lost or destroyed by him in bad faith. FED. RULES EVIDENCE, RULE 1004 (1), 28 U.S.C.A. See, e.g., Seiler v. Lucasfilm, Ltd., 613 F.Supp. 1253 (D.C.Cal. 1984), 808 F.2d 1316 (9th Cir. 1987), certiorari denied 108 S. Ct. 92, 484 U.S. 826 (1987). Also, admitting such secondary evidence requires the finder of fact to make preliminary findings that the original has become unavailable otherwise than through the fault of proponent and that a reasonable search has been made for it. See, e.g., Sylvania Electric Products, Inc. v. Flanagan, 352 F.2d 10055 (1st Cir. 1965). In this appeal, the testimony of Devine and Mandery on the contents of the missing worksheets and notes was admitted without objection from the Respondent. Nonetheless, in the estimation of the Board, the Appellant, who had the burden of explaining how the documents became lost or missing, did not do so. Further, it is the Board's opinion that the brief visit of Mandery to the InfoConversion office's prior to the hearing in order to find the documents was not a reasonable search, particularly since the Claims Courts remand order alerted the Appellant that they would be required. 34. See note 31 supra.