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.