Taggart Printing Corporation

GPO BCA 11-85
January 20, 1987
Michael F. DiMario, Administrative Law Judge

Opinion

     This appeal, timely filed by Taggart Printing Corporation,
     323 South Matlack Street, West Chester, PA 19380
     (hereinafter "Appellant"), is from the final decision of
     Lowell W. Borton, Contracting Officer, U.S. Government
     Printing Office, Philadelphia Regional Printing &
     Procurement Office (hereinafter "Respondent/GPO" and "RPPO,"
     respectively), dated May 15, 1985, denying Appellant's
     request for payment for $491.40 in handling charges incurred
     in the performance of the GPO contract Jacket No. 506-620.

     The decision of the Contracting Officer is affirmed and the
     appeal denied for the reasons set forth hereinbelow.

Background

     Appellant was awarded GPO contract Jacket 506-620 in
     accordance with its bid and Respondent's specifications for
     the production and distribution of 2 pamphlets for the U.S.
     Marine Corps, one pamphlet to be entitled "Marine Corps
     Recruit Training for Men" and the other entitled "Marine
     Corps Recruit Training for Women" of which 160,000 copies of
     the men's pamphlet and 30,000 copies of the women's pamphlet
     were to be produced. Distribution of the pamphlets was to be
     nationwide with the men's pamphlet being sent to some 57
     destinations in quantities varying from 50 to 108,500 copies
     and the women's pamphlet to be sent to 54 destinations in
     quantities varying from 15 to 22,700 copies. Shipping was to
     be by Government bill of lading F.O.B. contractor's city
     with transportation charges, although reimbursable to the
     contractor, to be a factor in determining award. All other
     charges were to be included in a single comprehensive bid
     price. The specifications further stated that:

Separate distribution lists will be furnished . . . .
   It is intended that shipping instructions and addresses will
   be furnished with the order or shortly thereafter. However, in
   the event the contractor does not receive such information in
   due time he will not be relieved of any responsibility in
   meeting the shipping schedule because of his failure to
   request such information.

Rule 4 File (hereinafter "R4 File"), Tab I.

     After award of the contract, appropriate distribution lists
     were furnished to the Appellant and distribution was
     subsequently carried out. Thereafter, Appellant by letter of
     April 2, 1985, requested that it be paid an additional
     $491.40 asserting that its "original bid did not contain
     handling charges. . . . because no actual shipping list was
     available to us at the time the bid was due." (R4 File, Tab
     B.)

     The Contracting Officer by letter of April 9, 1985, replied
     to this claim stating in pertinent part that "the
     specifications had sufficient information with which to
     estimate approximate handling charges and include them in
     your total bid. Further, the invitation for bid did not
     request a separate cost for handling charges, therefore your
     cost incurred cannot be compared to your estimated cost.
     Your request for additional money is denied." (R4 File, Tab
     C.)

     Appellant in turn responded by letter of April 22, 1985,
     stating:

   The information given was that from 15 to 108,500 copies would
   be shipped to a total of 111 destinations. As you can see,
   this gives us a large margin for error. Our estimating
   department is very thorough and does not guess at such things.
   If the quantities were slightly similar we perhaps could make
   an educated estimate of handling.

   In a competitive bidding situation, we can not [sic] throw in
   random dollar amounts for any one item especially after all of
   the other categories are so carefully evaluated, thus risking
   loss of the job.

R4 File, Tab D.

     The Contracting Officer in his final decision letter of May
     15, 1985, advised Appellant that the "request for a $491.40
     handling charge is denied . . ." because Appellant had "not
     presented clear and convincing evidence of costs incurred
     for handling charges . . . ." The Contracting Officer then
     pointed out that:

The specifications called for distribution as follows:  1. Men -
57 destinations of from 50 to 108,500 copies Formula: ordered
160,000 copies, minus 108,500 copies for one bulk shipment =
51,500 copies to be distributed to the remaining 56 destinations
with smallest shipment to be not less than 50 copies; 2. Women -
54 destinations of from 15 to 22,700 copies - Formula: ordered
30,000 copies, minus 22,700 copies for one bulk shipment = 7,300
copies to be distributed to the remaining 53 destinations with
the smallest shipment to be not less than 15 copies. The
distribution list was not available in time to be included as
part of the specifications, however, as evidenced above,
sufficient distribution information was supplied to enable
prospective bidders to estimate charges for handling the
distribution requirements of the IFB.

R4 File, Tab E.

The appeal followed.

     In the notice of appeal dated July 11, 1985, Appellant
     restated its claim putting forth the following examples to
     illustrate why it could not estimate the handling charges
     without the itemized distribution list:

   Example I - We were able to calculate that 700 copies fit into
   one package. Estimating that 10 destinations were to receive
   50 copies (500 copies total 10 packages), 15 destinations were
   to receive 100 copies (1500 copies - total 15 packages), 30
   destinations were to receive 1596 copies (47,880 copies -
   total 90 packages), and 1 destination to receive 1620 copies
   (1620 copies - total 3 packages), therefore making a total of
   118 packages to be handled, labeled & shipped.

   Example II - Estimating that 5 destinations were to receive 50
   copies (250 copies - total 5 packages), 45 destinations get
   700 copies (31,500 copies - totat [sic] 45 packages), 5
   destinations get 3292 copies (16,460 copies total 25
   packages), and 1 destination gets 3290 copies (3290 copies -
   total 5 packages), making a total of 80 packages to handle,
   label and ship.

   Based on these two aforementioned theories, we arrived at
   different quantities of packages to be distributed, making it
   impossible to arrive at an intelligent figure.

Official File, Tab 4.

     Thereafter, the Government in its Answer to Appellant's
     notice of appeal urged denial of the appeal because:

[T]he specifications were sufficiently precise to permit
appropriate handling charge estimates by any contractor who
wished to bid on the work. The specifications indicated the total
number of copies to be distributed, the total number of shipping
destinations, and the range in quantity of pamphlets to be
shipped to any one destination. AF, Tab I, pp. 1, 2. Based on
this information, any bidder had the ability to make a "worst
case" analysis of the shipping requirements to ensure that its
bid covered all possible handling costs. 1/

   Appellant also had two other remedies available to it prior to
   bid. The first was to make inquiry of the contracting officer
   to resolve any potential ambiguity. 2/ There is no indication
   that Appellant sought any information of this nature from the
   contracting officer, although by its own admission it was
   uncertain how to estimate the handling charges. See Notice of
   Appeal, dated July 11, 1985.

   Secondly, if the contractor for its own reasons chose not to
   make inquiry of the contracting officer, it had still another
   option to avoid the additional "handling" charges. Assuming it
   concluded that the specifications were insufficiently precise
   in order to permit a reasonable bid estimate, it could have
   chosen not to bid on the work. This, of course, by its own
   admission, it was unwilling to do. It was unwilling to risk
   "loss of the job", and instead bid low, got the award, and is
   now seeking a post hoc adjustment to its original bid
   proposal. Having found the contract less to its liking now
   that the work is done, it wants an unsupportable price
   adjustment.

   . . . .

Official File, Tab 6.

     This appeal is before the Board in this format for decision.

Discussion

     The single issue presented by this appeal is whether or not
     Appellant should be paid a sum of money in excess of its bid
     price for work within the original scope of that required by
     the specifications on the basis of Appellant's own
     representation that it did not include such costs in its bid
     because the information provided it by Respondent's
     Invitation for Bids (hereinafter "IFB") was inadequate for
     such purposes.

     The issue can be quickly disposed of by reference to the IFB
     itself. There in the "Note" set forth in the clause
     captioned "Material Furnished," it expressly states that:
     "All expenses incidental to preparing and shipping this
     material must be borne by the contractor and included in the
     quotation." Given such language the burden, necessarily
     falls upon the Appellant to show by clear and convincing
     evidence supporting some recognized theory of law, that
     notwithstanding such provisions in the specification, the
     facts and circumstances of the case warrant reformation of
     the contract in order to create an entitlement in Appellant
     to be paid according to its claim.

     Recently in Valley Forms, Inc., Docket No. GPO BCA 1-84,
     January 15, 1986; and again in Peake Printers, Inc., Docket
     No. GPO BCA 12-85, November 12, 1986, we cited Manistique
     Tool and Manufacturing Company, ASBCA No. 29164, Aug. 13,
     1984, 84-3 BCA  17,599, as clearly summarizing the
     controlling law wherein at page 87,677 it said:

   As a general rule, neither a Board of Contract Appeals or the
   Claims Court is authorized to relieve a bidder from its
   obligations under a contract unless it is subject to
   invalidation on recognized legal grounds, such as mutual
   mistake, or a mistake of which the contracting officer was on
   notice or should have been on notice. Aydin Corporation v.
   United States [29 CCF  82,129], 229 Ct.Cl. 309, 669 F.2d 681
   (1982); Wender Presses, Inc. v. United States [10 CCF 
   72,978], 170 Ct.Cl. 483, 343 F.2d 961 (1965); Holway. Oil
   Company, ASBCA No. 27862, 83-2 BCA  16,684. Moreover, before
   relief by reformation or rescission is available to relieve a
   contractor of the effect of its mistake, the mistake must be a
   "clear cut clerical or arithmetical error, or misreading of
   the specifications" and such relief does not extend to
   mistakes of judgment. Aydin Corporation v. United States,
   supra; National Line Co. v. United States [26 CCF  83,394],
   221 Ct.Cl. 673, 607 F.2d 978 (1979); Ruggiero v. United States
   [14 CCF  83,352], 190 Ct.Cl. 327, 420 F.2d 709 (1970);
   Michael Chernick v. United States [12 CCF  80,938], 178
   Ct.Cl. 498, 372 F.2d 492 (1967).

   . . . .

   [A]ppellant is entitled to relief in contract reformation or
   rescission for a unilateral mistake in bid claimed after
   contract award only where the contracting officer knew or
   should have known of the mistake at the time the bid was
   accepted. Figgie International, Inc. ASBCA No. 27541, 83-1 BCA
    16,421; Paragon Energy Corp. v. United States [28 CCF 
   81,290], 227 Ct.Cl. 176, 645 F.2d 966 (1981).

     Examining the written record upon which this Board must base
     its decision, this Board concludes that Appellant has not
     met its burden since it has not espoused any legally
     adequate theory for the relief it seeks. Rather, it has put
     forth as its only argument, without substantial or
     compelling proof of the same, that because it had not been
     provided what it deemed to be adequate information upon
     which to make an educated estimate of handling costs, it had
     chosen to include no estimated handling cost in its bid
     price. This unilateral decision by Appellant, especially
     without notice of the same to Respondent before the time of
     bid, flies in the face of the specifications, supra, and
     amounts to a clear cut case of mistake in judgment.

     Accordingly, this Board affirms the decision of the
     Contracting Officer and denies the appeal.

_______________


1/ Under U.S. Government Printing Office Contract Terms No. 1,
Revised October 1, 1980, which was incorporated into the terms of
the contract under the subject specifications (Tab AF, Tab I, p.
1, "Notice"), the bidder had an obligation to include in its bid
"anticipated items of cost for production . . ."
 1-1.(c).

2/ The government does not suggest that the contract
specifications were ambiguous. Indeed, it is our contention that
the specifications were clear and provided a suitable basis for
bid formulation.