BOARD OF CONTRACT APPEALS
   U.S. GOVERNMENT PRINTING OFFICE
   WASHINGTON, DC  20401

In the Matter of            )
                            )
the Appeal of               )
                            )
R.C. SWANSON PRINTING AND   )      Docket No. GPO BCA 15-90
  TYPESETTING COMPANY       )
Jacket No. 241-699          )
Purchase Order 70992        )
Program D404-M              )

   SUPPLEMENTAL DECISION AND ORDER

   On March 6, 1992, the Board issued its Decision and Order in
   the above-captioned appeal of R.C. Swanson Printing and
   Typesetting Company (hereinafter Appellant or Contractor),
   from the final decision of Contracting Officer Katherine M.
   Phillips (hereinafter Contracting Officer), of the U.S.
   Government Printing Office (hereinafter Respondent or GPO),
   disallowing nearly all of the Appellant's claim for
   termination costs of $245,796.75, arising out the Respondent's
   termination of the Appellant's contract identified as Purchase
   Order 70992, Program D404-M, Jacket No. 241-699, for the
   convenience of the Government (R4 File, Tab U).1  In its
   Decision and Order, the Board dismissed the Contractor's claim
   for breach of contract damages for lack of jurisdiction, but
   ruled that the appeal from the Contracting Officer's denial of
   its claim for termination costs was a justiciable
   controversy.2  R.C. Swanson Printing and Typesetting Company,
   GPO BCA 15-90 (March 6, 1992), Sl. op. at 2.  However, because
   the termination cost question could not be decided on the
   record as it existed, the Board ordered a hearing to take
   evidence on that issue.  Id., Sl. op. pp. 41-42.  GPO
   Instruction 110.12, Rules 8, 17-25.

   Accordingly, a hearing was conducted by the Board on June 2,
   1992, for the purpose of developing evidence on the issue of
   termination costs (Tr. 4).3  At the hearing, the Respondent
   was represented by counsel, while the Appellant appeared pro
   se.  Thereafter, both parties filed timely briefs and reply
   briefs with the Board addressing the issues involved.4  Based
   on the record in this case, including the evidence developed
   at the hearing and the written arguments of the parties
   contained in their posthearing briefs, the Contracting
   Officer's decision disposing of the Appellant's termination
   cost claim is REVERSED, and the matter is REMANDED to the
   Contracting Officer for further action in accordance with this
   opinion.

   I. BACKGROUND

   The relevant facts in this appeal are undisputed and were set
   forth at length in the Board's Decision and Order of March 6,
   1992.  They are repeated here only to the extent necessary for
   the Board's decision on the termination cost issue.

   This controversy stems from the Respondent's issuance, on
   December 1, 1988, of Purchase Order 70992 to the Appellant for
   the production of legal briefs for the Department of Justice
   (DOJ) under Program D404-M (R4 File, Tabs A, pp. 1, 5 and D).
   Purchase Order 70992 was a term contract for the period
   beginning December 1, 1988, and ending November 30, 1989.  The
   Appellant's contract price for the work over the term was
   $504,702.66.  Id.

   Among other contract specifications, Program D404-M provided,
   in pertinent part:

      QUANTITIES: . . .  The quantities of items specified herein
      are estimates only, and are not purchased hereby.  Except
      as may be otherwise provided in this contract, if the
      Government's requirements for the items set forth herein do
      not result in orders in the amounts or quantities described
      as "estimated," it shall not constitute the basis for an
      equitable price adjustment under this contract (R4 File,
      Tab A, p. 3).  [Emphasis added.]

      Except as otherwise provided in this contract, the
      Government shall order from the contractor(s) all the items
      set forth which are required to be purchased by the
      Government activity identified on page 1 (R4 File, Tab A,
      p. 3).  [Emphasis added.]

      The Government shall not be required to purchase from the
      contractor(s), requirements in excess of the limit on total
      orders under this contract, if any (R4 File, Tab A, p. 3).

   * * * * * * * * * *

      Subject to any limitations elsewhere in this contract, and
      pursuant to the section entitled "DETERMINATION OF AWARD
      AND PLACEMENT OF WORK," the low contractor and each
      successive low contractor shall furnish to the Government
      all items set forth herein which are called for by print
      orders issued in accordance with the "Ordering" clause of
      this contract, except when the shipping/delivery schedule
      cannot be met (R4 File, Tab A, p. 4).

   * * * * * * * * * *

      FREQUENCY OF ORDERS: Approximately 65 orders per month (R4
      File, Tab A, p. 5).

      QUANTITY: Approximately 50 to 1,000 copies per order.
      (Most orders will be for 400 copies or less.) (R4 File, Tab
      A, p. 5).

      NUMBER OF PAGES: 4 to 400 pages per order.  (Most order[s]
      will be for 64 page[s] or less, however an occasional order
      may have up to 1,200 pages.) (R4 File, Tab A, p. 5).

   * * * * * * * * * *

   DETERMINATION OF AWARD AND PLACEMENT OF WORK

      The Government will make multiple awards under this
      solicitation since it is anticipated that one firm may not
      be able to meet all of the requirements (R4 File, Tab A, p.
      11).

      In order to make multiple awards and to determine the
      sequence of bidders, the Government will apply the prices
      quoted by each bidder in the "Schedule of Prices" to the
      following units of production which are the estimated
      requirements to produce one year's under this contract.
      These units do not constitute, nor are they construed as a
      guarantee of the volume of work which may be ordered for a
      like period of time (R4 File, Tab A, p. 11).5  [Emphasis
      added.]



   On April 11, 1989, the Contracting Officer asked GPO's
   Contract Review Board (CRB) to approve termination of the
   Appellant's Program D404-M contract for the convenience of the
   Government because the DOJ had decided that its needs had
   changed.  Specifically, the DOJ wanted briefs produced from
   both manuscript copy and electronically transmitted data, and
   the existing Program D404-M did not provide for the production
   of briefs from dual sources; i.e., it was strictly a
   manuscript copy contract.  By April 12, 1989, all members of
   the CRB had given their approval for the proposed termination
   action (R4 File, Tab E).  See, PPR, Chapter XIV, Section 2 
   3.(a).

   On May 19, 1989, the Respondent telephoned the Appellant to
   inform it that Program D404-M was being terminated for the
   convenience of the Government, and to seek its agreement to
   terminate the contract without additional cost (R4 File, Tabs
   F and H).6  The Appellant would not agree to a no-cost
   cancellation of the contract, and instead filed a claim for
   $237,000 with the Contracting Officer (R4 File, Tab I).  As
   stated in its letter, dated September 9, 1989, the basis of
   the Appellant's claim was, in pertinent part:

      Purchase Order 70992 was issued, effective December 1, 1988
      through November 30, 1989.  It was issued to cover work
      performed under Program [D]404-[M].  Swanson was the low
      bidder with a bid of $560,780.73 . . . As of September 6,
      1989, when the contract was terminated, Swanson had been
      paid, or was still owed, $288,261.48.  This means the
      contract still had an estimated $272,519.25 of work to
      expect under the contract.

      Swanson had been the [No.]1 contractor since September 1,
      1984 and had every reason to believe and expect the [G]
      overnment to procure the total amount as they had the prior
      years.  September, October and November have traditionally
      been the busiest months.

      Swanson acquired certain capital equipment in 1984 and 1985
      specifically gearing its facilities for this legal brief
      work.  These capital expenditures were tied to Swanson's
      plans to keep the [D]404-[M] program to cover these costs.
      There are still amounts left owing on these capital
      acquisitions which would have been paid off if the [GPO]
      had not terminated the contract.

      These capital purchases have a balance of approximately
      $70,500.00 which would have been paid up with proceeds from
      the remaining $272,519.25 of Purchase Order 70992.

      Furthermore, the loss of this contract suddenly with no
      adjustment period does not allow Swanson adequate time to
      replace such a substantial portion of its sales.  Swanson's
      gross sales during the 9 months that Purchase Order 70992
      was in effect were $418,479.33.  Purchase Order 70992
      represented 69% of gross sales for that 9 month period. . .
      .

      . . . [T]he bill [for a typical job under the contract]
      would be $842.16, Swanson's direct costs [would be]
      $109.17.  This would have yielded a gross profit of $732.99
      to go towards capital costs and overhead.  87.04%
      represented gross profit.  Swanson expected to receive on
      the remaining $272,519.25 of Purchase Order 70092[,]
      87.04%, or $237,200.76 to go to overhead and capital debt
      elimination as well as profit.

      Swanson hereby makes a claim for $237,200.76 on the
      Government's Termination for convenience of Purchase Order
      70992 plus any future costs incurred in relation to this
      claim (R4 File, Tab I).

   On September 26, 1989, the Respondent issued a formal "Notice
   of Termination" (Notice) to the Appellant (R4 File, Tab J).
   The Notice informed the Appellant that the effective date of
   termination was September 6, 1989, which was approximately 3
   months or 12 weeks prior to the end of the contract term
   (November 30, 1989) (R4 File, Tab J).  The Notice also
   instructed the Appellant, among other things, to submit a
   settlement proposal on GPO Form 911 (which was enclosed) in
   accordance with the "Termination for Convenience of the
   Government" (TCG) clause in the contract (R4 File, Tab J).
   See, GPO Contract Terms, Contract Clauses,  19(c).
   Accordingly, by letter dated October 2, 1989, the Appellant
   sent the Contracting Officer a properly filled out GPO Form
   911 with a claim in the amount of $245,796.75 (R4 File, Tab
   K).7

   The Appellant's termination settlement proposal was referred
   to GPO's Office of the Inspector General (OIG) for an audit
   (R4 File, Tabs M and N).  In referring the Appellant's
   proposal, the Contracting Officer asked the OIG to "determine
   the basis for and the accuracy of the amounts included in that
   claim[.]" (R4 File, Tab M).  [Emphasis added.]  The OIG issued
   its audit report of the Appellant's claim on February 27, 1990
   (R4 File, Tab Q) (hereinafter OIG Audit Report).  The audit
   report was based on an examination of the Appellant's
   settlement proposal, documents in GPO's procurement file, and
   records furnished by the contractor (R4 File, Tab Q,
   Attachment I).  Of the Appellant's claim of $245,796.75, the
   audit report questioned $244,265.86, leaving a balance of
   $1,530.89 (R4 File, Tab Q, Attachment III, p. 1).

   With respect to the "Basis of the Claim," the OIG Audit Report
   states, in pertinent part:

      [The Appellant] estimated the dollar value of the
      terminated portion of the contract to be $272,519.  [The
      Appellant] arrived at this figure by estimating the total
      dollar value of the contract to be $560,781 and deducting
      the $288,261 that the contractor claimed had been shipped
      and invoiced on the contract.  However, the contract
      specifications stated, "The quantities of items specified
      herein are estimates only, and are not purchased hereby.
      Except as may be otherwise provided in this contract, if
      the Government's requirements for the items set forth
      herein do not result in orders in the amounts or quantities
      described as 'estimated,' it shall not constitute the basis
      for an equitable price adjustment under this contract."
      See, OIG Audit Report, p. 1.  [Emphasis added.]

   As for the specific items encompassed in the Appellant's
   settlement proposal, the OIG Audit Report discloses the
   following:

      1.   Labor Costs: Of the Appellant's claim for labor costs
      ($6,468.00), the audit found that the Contractor could only
      support $809.80 ($404.80 for health care premiums and
      $405.00 for severance pay) with documentation.  Thus, the
      report questioned $5,658.20 of the claim.8

      2.   Overhead Expenses: The Appellant claimed overhead
      expenses of $136,230.00.  Although the auditors did not
      question the Appellant's overhead rate of 48.51 percent,
      they applied that rate only to the costs which they felt
      were directly associated with the termination of the
      contract-the labor costs.  As a result, the report
      determined that $392.83 was allowable on the claim.  As for
      indirect costs, the auditors said that they should be
      disallowed as unabsorbed overhead. [Citing, Technology,
      Inc., ASBCA No. 14083, 71-2 BCA  8956.]

      3.   Capital Acquisition Debt: The Appellant asked for
      $46,901.00 as reimbursement for the equipment it had
      purchased to perform work under Program D404-M when it
      first acquired the contract five years previously.  The
      auditors noted that Program D404-M was procured annually,
      thus the Appellant was never guaranteed more than a year's
      work under a Program D404-M contract.  Furthermore, the OIG
      auditors relied on the Contracting Officer's representation
      that GPO did not have an agreement with the Appellant to
      purchase machinery, that specialized machinery was not
      required to perform the contract, and that the machinery in
      question would have been used on any typesetting job, to
      support their conclusion that the capital acquisition claim
      should be denied in its entirety.

      4.   General and Administrative Expenses: Using a rate of
      5.51 percent for general and administrative expenses, the
      Appellant claimed $15,016.00 in such expenses on the
      terminated portion of the contract.  Although the auditors
      accepted the Appellant's rate of 5.51 percent, when they
      applied it to the "small dollar value of direct costs"
      involved they allowed only $44.62 toward general and
      administrative expenses.  As for general and administrative
      expenses which were not related to direct costs, the
      auditors believed that they should be disallowed as being
      merely a claim for lost business.  [Citing, Chamberlain
      Manufacturing Company, ASBCA No. 16877, 73-2 BCA  10,139.]

      5.   Lost Profit: The Appellant claimed $40,878.00 as lost
      profit on the remainder of the contract.  The OIG auditors,
      however, found that the entire claim was disallowable on
      the ground that the Government is not responsible in
      termination for convenience cases for paying for work which
      is neither ordered or performed.  [Citing, Shin
      Enterprises, Inc., ASBCA No. 16542, 72-1 BCA  9,391.]

      6.   Settlement Expenses: The Appellant claimed settlement
      expenses of $303.75, which represented 27 hours of
      termination proposal preparation time at an hourly rate of
      $11.25.  The auditors, however, found that the records of
      the actual hours and pay rates of the employees who worked
      on the proposal only supported a settlement expense figure
      of $283.64.9  See, R4 File, Tab Q, Attachment III, pp. 3-6.

   On March 23, 1990, the Contracting Officer wrote to the
   Appellant offering to settle the termination claim essentially
   as recommended by the OIG auditors (R4 File, Tab S).10  By
   letter dated March 29, 1990, the Appellant rejected the
   Contracting Officer's settlement offer (R4 File, Tab T).
   Accordingly, on April 10, 1990, the Contracting Officer issued
   a final decision on the Appellant's termination settlement
   proposal, which disallowed all of the Contractor's claim
   except for $283.53 (R4 File, Tab U).  In that regard, the
   Contracting Officer wrote, in pertinent part:

      In your letter [of March 29, 1990], you fail to address any
      specific points from my March 23, 1990 letter to you or to
      provide any additional information in support of your claim
      which would provide a basis for further discussion.

      Therefore I have concluded that, of the $245,796.75 claim
      in your October 2, 1989 settlement proposal, all claimed
      costs are denied with the exception of $283.64 representing
      the costs of preparing your settlement proposal.  This
      decision is made based on the reasons as stated in my March
      23, 1990 letter (R4 File, Tab U).

   The Appellant responded by filing this appeal with the Board
   (R4 File, Tab V).

   II. ISSUES PRESENTED

   In its Decision an Order of March 6, 1992, the Board described
   the central issue with regard to the disposition of the
   Appellant's termination proposal as:

      Was the Contracting Officer's decision denying nearly all
      of the Appellant's claim for settlement costs correct, and
      if not what should be the appropriate termination costs?11

   It is clear, however, that subsumed in this overall question
   are two others which must be answered in order to resolve the
   dispute over the Contracting Officer's disallowance of nearly
   the whole termination claim submitted by the Appellant:

      1.   Did the Contracting Officer use the proper cost basis
      for considering the Appellant's settlement proposal in this
      case?

      2.   Has the Appellant provided sufficient proof to show
      that it incurred the costs connected with the terminated
      contract described in its claim?

   III. POSITIONS OF THE PARTIES

   The respective positions of the parties on the issues
   presented in this appeal were set forth in the Board's
   Decision and Order of March 6, 1992.  R.C. Swanson Printing
   and Typesetting Company, supra, Sl. op. at 19-22.  Suffice it
   to say, the Appellant believes that the proper measure for
   termination costs is the estimated value of the contract over
   its entire term.  See, App. Brf., p. 1-2,  3-5; App. R.
   Brf., pp. 1, 5; Tr. 13, 19-20, 28; PCR, p. 8.  Furthermore,
   the Appellant contends that its claim for termination costs is
   fully justified and reasonable under the circumstances.12
   See, App. Brf., pp. 2, 3  5,6, 8 ; App. R. Brf., 1-3, Tr.
   14-15.

   The Respondent, on the other hand, believes that the cost
   basis of the contract became fixed at the moment of
   termination-that is the practical effect of its position that
   each print order is a separate contract.  R. Brf., pp. 7-8;
   Tr. 97-98; PCR, p. 6.  Furthermore, since the Government had
   already paid the Appellant for all the work it performed, the
   Respondent believes that there is no basis for any additional
   claim.  R. Brf., p. 7; Tr. 22, 97-98; PCR, p. 6.  The
   Respondent also rejects the major underlying assumption of the
   Appellant's claim, namely, that the contract implied a
   guarantee of a certain quantity of work.  R. Brf., pp. 2, 7-8;
   R. R. Brf., p. 4; Tr. 19-20, 97-98; PCR, p. 6.  Moreover,
   since Program D404-M is awarded annually through open
   competition and there is no guarantee that the Appellant will
   be the successful bidder each time, the Respondent believes
   that no basis exists for the Government to defray the cost of
   the machinery which the Contractor had purchased several years
   ago and used in performing the contract.  R. Brf., p. 5; Tr.
   62-63; PCR, p. 6.  Finally, since the Contractor has the
   burden of establishing the amount of its incurred costs
   associated with the termination for convenience, the
   Respondent contends that the Appellant's inability to provide
   the Contracting Officer and/or the OIG auditors with tangible
   support for its settlement proposal, warrants disallowance of
   the claim.13  R. Brf., pp. 2, 8-9; R. R. Brf., p. 4; Tr. 4-5;
   PCR. p. 6.  See, PPR, Chapter XIV, Section 2  3.j(7)(c)
   (i)-(iii).

   IV. DECISION14

      1. In considering the Appellant's settlement proposal, the
      Contracting Officer failed to take into account that the
      terminated contract was a "requirements" contract.  Thus,
      the decision disallowing nearly all of the claim for
      termination costs was made using the wrong cost basis.

   In its initial Decision and Order of March 6, 1992, ruling on
   the "breach of contract" issue raised by the Appellant, the
   Board held that it had no jurisdiction to consider "pure"
   breach of contract questions because, inter alia: (1) the
   Board was essentially a creature of the "Disputes" clause of
   the contract; and (2) its jurisdiction was derivative and
   contractual, and hence it was limited to the "four corners" of
   the agreement in deciding disputes.  R.C. Swanson Printing and
   Typesetting Company, supra, Sl. op. at 24-27 (citing, The
   Wessel Company, GPO BCA 8-90 (February 28, 1992), Sl. op. at
   32-33, 46; Peake Printers, Inc., GPO BCA 12-85 (November 12,
   1986), Sl. op. at 6; Bay Printing, Inc., GPO BCA 16-85
   (January 30, 1987), Sl. op. at 9).  Consequently, in resolving
   the dispute over settlement costs which divides the parties
   here, the Board is constrained to look for guidance in the TCG
   clause of the contract itself.

   In that regard, the TCG clause provides, in pertinent part:

      (d)   Subject to paragraph (c) above, the contractor and
      the Contracting Officer may agree upon the whole or any
      part of the amount to be paid because of the termination.
      The amount may include a reasonable allowance for profit on
      work done.  However, the agreed amount, whether under this
      paragraph (d) or paragraph (e) below, exclusive of costs
      shown in subparagraph (e)(3) below, may not exceed the
      total contract price as reduced by (1) the amount of
      payments previously made, and (2) the contract price of
      work not terminated.  The contract shall be amended and the
      contractor paid the agreed amount. . . .

      (e)   If the contractor and the Contracting Officer fail to
      agree on the whole amount to be paid because of the
      termination of work, the Contracting Officer shall pay the
      contractor the amounts determined by the Contracting
      Officer as follows, but without duplication of any amounts
      agreed on under paragraph (d) above:

      (1)   The contract price for completed supplies or services
      accepted by the Government . . . not previously paid for,
      adjusted for any savings of freight and other charges.

      (2)   The total of-

         (i) The costs incurred in the performance of the work
         terminated, including initial costs and preparatory
         expenses allocable thereto, but excluding any costs
         attributable to supplies or services paid or to be paid
         under subparagraph (e)(1) above;

         (ii) The cost of settling and paying termination
         settlement proposals under terminated subcontracts that
         are properly chargeable to the terminated portion if not
         included in subdivision (i) above; and

         (iii) A sum, as profit on subdivision (i) above,
         determined by the Contracting Officer to be fair and
         reasonable; . . .

      (3) The reasonable costs of settlement of the work
      terminated, . . .  GPO Contract Terms, Contract Clauses, 
      19(d),(e).  [Emphasis added.]

   A comparison of the above-quoted TCG provisions with the
   termination for convenience clauses in the Federal Acquisition
   Regulation (FAR), discloses that the GPO clause is essentially
   a verbatim adoption of the FAR provisions relating to
   convenience terminations of fixed price contracts.  See, FAR,
   Part 52,  52.249-2(e)(f).

   As the TCG clause indicates, under a termination for
   convenience, a contractor is generally entitled to reasonable
   costs incurred, a reasonable profit on them, and the costs of
   settlement; i.e., preparing the termination settlement
   proposal.  See, e.g., Humphrey Logging Company, supra, 85-3
   BCA  18,433; Bay Ridge Press, GPOCAB No. 4-82, Sl. op. at 3
   (September 15, 1983).15  Although a termination settlement
   should compensate the contractor fairly, it is the contractor
   who has the burden of establishing both that costs were
   actually incurred and the amount of its incurred costs.  Cf.,
   Building Maintenance Specialists, Inc., ENGBCA No. 5654, 90-3
   BCA  23,032.  Indeed, actual incurrence of costs is a
   prerequisite to recovery under a termination for convenience;
   i.e., if the contractor has incurred no cost, there is no
   recovery.16  Seiler Instrument and Manufacturing Company,
   Inc., ASBCA No. 44380, 93-1 BCA  25,436.  Accordingly, in
   these cases the contractor's cost, not the value of the
   performance to the Government, is the measure of recovery.
   See, e.g., Fil-Coil, ASBCA No. 23,137, 79-1 BCA  13,618
   (1978), mot. for reconsid. denied, 79-1 BCA  13,683 (1979);
   Scope Electronics, Inc., ASBCA No. 20359, 77-1 BCA  12,404,
   mot. for reconsid. denied, 77-2 BCA  12,586 (1977); Arnold H.
   Leibowitz, GSBCA CCR-1, 76-2 BCA  11,930 (1976).

   A second aspect of TCG clauses is the limitation placed on the
   contractor's recovery, namely, the "total contract price."
   GPO Contract Terms, Contract Clauses,  19(d); FAR, Part 52,
    52.249-2(e).  An examination of the cases discloses three
   things about the concept of "total contract price": (1) it
   sets the maximum amount a contractor may recover under a
   termination for convenience; (2) it is important when
   considering the recovery of costs continuing after
   termination; cf., Nolan Brothers, Inc. v. United States, 194
   Ct.Cl. 1, 437 F.2d 1371 (1971); Celesco Industries, Inc.,
   ASBCA No. 22460, 84-2 BCA  17,295; Pioneer Recovery Systems,
   Inc., ASBCA No. 24658, 81-1 BCA  15,059 (1981); Chamberlain
   Manufacturing Corporation, supra, 73-2 BCA  10,139 (1973);
   and (3) it is  variable insofar as the "total contract price"
   is directly related to the type of contract involved in the
   termination of convenience.  See, e.g.,  Alta Construction
   Company, PSBCA No. 1463, 92-2 BCA  24,824; Okaw Industries,
   Inc., ASBCA Nos. 17863, 17864, 77-2 BCA  12,793 (in
   indefinite quantities contracts, the "total contract price" is
   the minimum price plus quantities ordered in excess of
   minimum).  In other words, where a contract has been
   terminated for the convenience of the Government, the "total
   contract price" establishes the cost basis of the termination
   settlement.

   The core controversy in this appeal involves the parties'
   differing views about the proper measurement of the "total
   contract price," where, as here, a requirements contract is
   terminated for convenience.  As indicated above, the Appellant
   believes that in such a case termination costs should be based
   on the estimated value of the contract over its entire term.
   See, App. Brf., p. 1-2,  3-5; App. R. Brf., pp. 1, 5.  The
   Respondent, rejecting the Appellant's contention that the
   contract implied a guarantee of a certain quantity of work,
   argues that because each print order is a separate contract,
   the cost basis of the contract became fixed at the moment of
   termination.  R. Brf., pp. 2, 7-8; R. R. Brf., p. 4.  Thus, as
   the Board interprets the Respondent's theory, GPO seems to be
   arguing that the convenience termination of the Appellant's
   requirements contract in effect converted it into a fixed
   price contract-or a series of fixed price contracts (print
   orders)-for termination settlement purposes.  Contrary to the
   Respondent's position, however, a reading of the cases in this
   area tells the Board that for a requirements contract the
   "total contract price" for the purpose of the TCG clause is,
   as claimed by the Appellant, the estimated contract price.17
   See, e.g., Albano Cleaners, Inc. v. United States, 197 Ct.Cl.
   450, 455 F.2d 556 (1972); Aviation Specialists Inc., DOT BCA
   No. 1967, 91-1 BCA  23,534.

   Aviation Specialists Inc. is particularly instructive in
   understanding why the "total contract price" for a terminated
   requirements contract is the "estimated contract price."  In
   that case, where a requirements contract for use of a
   particular aircraft was terminated for convenience, the
   Department of Transportation Board of Contract Appeals
   (DOTBCA) permitted the contractor to recover its post-
   termination costs for the six months remaining in a one year
   contract including depreciation, overhead  and profit.
   Aviation Specialists Inc., supra, 91-1 BCA  23,534, at
   117,992, 117,994.  Although it limited the Contractor's
   recovery to the "total contract price" established by using
   the Federal Aviation Administration's (FAA) pre-award estimate
   of its requirements, the DOTBCA observed that the FAA could
   have avoided liability altogether if it had let the contract
   expire instead of terminating it.  Id., at 117,992.

   As set forth at length in the DOTBCA's decision, the rationale
   for equating the "total contract price" with the "estimated
   contract price" in a terminated requirements contract is, in
   pertinent part:

      A requirements contract is a contract by which one party,
      the seller, agrees to satisfy all of the buyer's
      requirements for services and/or items for a specified
      period of time.  That contract is violated if either the
      buyer does not purchase all of its requirements from the
      seller, or, if the seller fails to satisfy all of the
      buyer's needs.  The consideration that makes such a
      contract binding is the buyer's promise to purchase all of
      its requirements from the seller and the seller's promise
      to satisfy those requirements.  We cannot take lightly the
      FAA's obligation to purchase all of its requirements from
      appellant.  The appellant had a right to rely on this
      obligation when planning to perform the contract. . . .
      Id., at 117,991.  [Emphasis added.]

   * * * * * * * * * *

      The "Termination for Convenience" clause of the contract
      provided that the cost principles of Part 31 of the Federal
      Acquisition Regulation would govern all costs claimed in
      the event of such a termination.  Part 31 provides that
      costs which cannot be discontinued immediately after
      termination are allowable.  After termination, appellant
      made reasonable, though unsuccessful, efforts to promptly
      dispose of the plane.  Aviation Specialists also acted
      reasonably in attempting to mitigate damages.  It was able
      to lease the plane during some of the period and apply the
      profits received from these operations against its
      continuing costs.  Thus, under the contract provisions,
      Aviation Specialists is entitled to be reimbursed for its
      continuing costs after termination.18  Id., at 117,992.

   * * * * * * * * * *

      We find that, . . . , Aviation Specialists is entitled to
      recover its costs relating to the aircraft which continued
      after the date of termination.  These costs are
      recoverable, pursuant to the plain language of the contract
      including Part 31 of the Federal Acquisition Regulation.
      The costs which appellant had claimed were incurred as a
      direct result of obligation Aviation Specialists undertook
      to perform the contract.  These costs could not reasonably
      be discontinued during the remaining contract term. . . .19
      Id.

   * * * * * * * * * *

      The "Termination for Convenience" provision states that a
      contractor's entitlement to payment cannot exceed the
      "total contract price" as reduced by the payments
      previously made and the price of the work not terminated.
      This contract does not contain any amount denominated as
      the "total contract price."  Were this a fixed price
      contract the Government's liability would be limited by the
      price of the contract.  Surely under a requirements
      contract where the Government has no obligation to purchase
      any fixed amount of supplies, the parties could not have
      intended for that obligation to become limitless in the
      event of termination.  On the other hand, .  . . , limiting
      the FAA's obligations to those services actually ordered
      would have the effect of permitting the FAA to avoid its
      obligation at any time, at no cost.  Under such
      circumstances there would be no binding obligation and the
      contract would fail for lack of consideration.  [Citation
      omitted.]  The portion of the termination for convenience
      clause limiting a contractor's recovery to the total
      contract price is ambiguous in its application to
      requirements contracts.  We must therefore determine the
      limits of the FAA's obligation.  Id., at 117,993.
      [Emphasis added.]

   * * * * * * * * * *

      Under an indefinite quantities contract the "total contract
      price" for purposes of the Termination of Convenience
      clause is the minimum price set forth in the contract plus
      the value of any services ordered in excess of that
      minimum.  [Citation omitted.] . . . However, there is a
      significant difference between the parties' rights and
      obligations under a indefinite quantities contract and
      under a requirements contract.  In the former case the
      contractor is aware that the Government's obligation is
      only to order the minimum quantity set forth in the
      contract.  After the Government has satisfied that
      obligation, the Government can purchase its requirements
      from other sources.

      However, under a requirements contract, the Government's
      obligation is not so limited.  While there may be no
      minimum quantity that must be obtained, the Government must
      purchase all of its needs from the contractor for the
      contract period.

      Thus, when planning its performance under a requirements
      contract, the contractor has a right to rely on the
      estimated quantity as set forth by the Government in the
      contract.  In Albano Cleaners, Inc. v. United States, [17
      CCF  81,144] 455 F.2d 556, 197 Ct.Cl. 450 (1972), the
      court had before it a contract which contained a minimum
      contract price, as in an indefinite quantities agreement.
      The contract otherwise was similar to a requirements
      contract in that the Government was required to order all
      of its needs from the contractor.  The court held that
      under a termination for convenience, the contractor was not
      limited by the minimum contract price, but was entitled to
      receive all of the expenses it incurred in preparing to
      fulfill its contractual obligations.

      Here, the FAA agreed that for one year it would purchase
      all of its specified needs from Aviation Specialists.  It
      estimated that 500 hours of airplane time at a cost of
      $212,250.00 would be required.  Based on this
      representation appellant purchased an aircraft for use on
      the contract.  We conclude that under a requirements
      contract the "total contract price" for the purpose of the
      termination for convenience clause is the estimated
      contract price.  Thus, FAA must reimburse appellant is
      allowable costs as we have set forth above, up to a maximum
      of $212,250.00.  Id., at 117,994.  [Emphasis added.]



   Applying the principles of Aviation Specialists Inc. to this
   appeal, which also involves a requirements contract, it is
   clear that the Appellant's argument that termination costs
   should be based on the estimated value of the contract over
   its entire term, is consistent with the law.  Consequently, by
   using the Government's estimates of work over the life of the
   contract to extrapolate a total contract price of $560,780.73
   for its settlement proposal, the Appellant computed the "total
   contract price" for the purposes of the TCG clause by the
   proper method (R4 File, Tab K).20  Therefore, the Board also
   finds that the Respondent's reliance on so much of the
   contract specifications which told bidders, inter alia, that
   the contract quantities were estimates only and not a
   guarantee of work or a basis for an equitable price
   adjustment, is misplaced in the context of this case.  When
   the Contracting Officer applied that view to the Appellant's
   settlement proposal, the effect was to treat the terminated
   contract as if it were one for a fixed price instead of the
   requirements contract which the parties had bargained for.21
   For this reason, the Board concludes that the Respondent
   employed the wrong cost basis of the contract when it
   considered the Appellant's settlement proposal, and thus the
   decision disallowing nearly all of the claim for termination
   costs was erroneous as a matter of law.  Accordingly, the
   Board REVERSES the Contracting Officer's termination cost
   decision, and will REMAND the matter to the Contracting
   Officer for further action in accordance with this opinion.22
   Cf., RD Printing Associates, Inc., GPO BCA 02-92 (December 16,
   1992), Sl. op. at 37 [citing, General Business Forms, Inc.,
   GPO BCA 2-84 (December 3, 1985), Sl. op. at 23].

   V. CONCLUSION

   For the above reasons, the Board finds and concludes that: (1)
   the Appellant correctly figured its termination settlement
   proposal on the basis of the estimated contract price over the
   life of the contract; (2) the Contracting Officer's failure to
   take into account that the terminated agreement was a
   requirements contract resulted in a decision which disallowed
   nearly all of the Appellant's claim for termination costs by
   using the wrong cost basis; and (3) the record in this case
   does not provide the Board with the necessary factual
   information to determine the appropriate settlement allowances
   for the Appellant's claim in light of the rule expressed in
   Aviation Specialists, Inc.  ACCORDINGLY, the decision of the
   Contracting Officer is REVERSED, and the appeal is allowed.
   FURTHERMORE, the matter is REMANDED to the Contracting Officer
   with instructions to reconsider the Appellant's claim in light
   of this Supplemental Decision and Order, and to offer
   compensation in settlement which is fair and reasonable under
   the circumstances.  See, Codex Corporation v. United States,
   226 Ct.Cl. 693, 698 (1981).  Also see, PPR, Chapter XIV,
   Section 2  3.k(1)(iii).

It is so Ordered.

July 1, 1993                  STUART M. FOSS
                        Administrative Judge
_______________

    1 The Contracting Officer's appeal file, assembled pursuant
    to Rule 4 of the Board's Rules of Practice and Procedure, was
    delivered to the Board on June 29, 1990.  GPO Instruction
    110.12, Subject: Board of Contract Appeals Rules of Practice
    and Procedure (GPO Instruction 110.12), dated September 17,
    1984 (Board Rules), Rule 4.  It will be referred to hereafter
    as R4 File, with an appropriate Tab letter also indicated.
    The R4 File consists of documents identified as Tab A through
    Tab V.
    2 The bifurcated nature of the Appellant's appeal was clear
    from the pleadings and documentation in the appeal file.
    See, R4 File, Tab V; Appeal File, Tabs 1 and 6 (the Board's
    appeal file will be referred to hereafter as App. F., with an
    appropriate Tab number also indicated).  See also, Prehearing
    Telephone Conference Report (PCR), pp. 11-12.

    3 The court reporter's transcript shall be referred to herein
    as "Tr." with an appropriate page number thereafter.
    4 Although the Respondent's initial brief is entitled
    "Respondent's Closing Argument on Issue of Termination
    Costs," it will be referred to hereinafter as "R. Brf.", with
    an appropriate page citation thereafter.  The Appellant's
    initial brief will be cited as "App. Brf.," with an
    appropriate page number thereafter.
The Respondent's reply brief and the Appellant's reply brief
shall be referred to as "R. R. Brf." and "App. R. Brf.,"
respectively, with an appropriate page citation thereafter.
    5 As indicated in the Board's March 6, 1992, Decision and
    Order in this matter, the invitation for bids (IFB) on
    Program D404-M also provided that the contract would be
    governed by GPO Contract Terms effective December 1, 1987.
    R.C. Swanson Printing and Typesetting Company, supra, Sl. op.
    at 3, fn. 4.  In its undated posthearing brief, which the
    Board received on July 20, 1992, the Appellant advanced the
    argument that this IFB provision meant that the 1987 version
    of GPO Contract Terms governed the dispute, and that the
    Respondent's reliance on the 1988 revision was misplaced.
    App. Brf., p. 1,  1, 2.  The gravamen of the Appellant's
    contention was that the 1987 version of GPO Contract Terms
    made no provision for the application of "any cost accounting
    standards" to this dispute.  App. Brf., p. 1,  1.  In its
    reply brief of July 27, 1992,, the Respondent's disputed the
    Appellant's argument.  R. R. Brf., pp. 1-3.  The Board
    resolved this issue in footnote 4 of its Decision and Order
    when it held that the 1988 version of GPO Contract Terms was
    the relevant regulation for the purpose of this appeal.  R.C.
    Swanson Printing and Typesetting Company, supra, Sl. op. at
    3, fn. 4.  Thus, the Board observed that: (a) the IFB was
    issued and the contract awarded after the 1988 revisions to
    GPO Contract Terms went to effect-September 1988; and (b)
    even the revised IFB for Program D404-M issued by the
    Respondent on May 23, 1989, for the period from July 1, 1989,
    to June 30, 1990, still referred to GPO Contract Terms
    effective December 1, 1987 (R4 File, Tab G, p. 2).  Id.  In
    any event, GPO's Printing Procurement Regulation, which was
    in effect on the date the contract was awarded to the
    Appellant, specifically states that the Contracting Officer
    shall use cost principles, inter alia, in "[p]roposing,
    negotiating, or determining costs under terminated
    contracts[;]".  GPO Printing Procurement Regulation, GPO
    Publication 305.3, revised September 1, 1988, Chapter VIII,
    Section 1  3.b(1) (hereinafter PPR).
    6 In termination for convenience cases, it is GPO policy for
    the Contracting Officer to explore the possibility of a no-
    cost settlement with the contractor, where it looks as if
    very small costs were incurred on the terminated portion of
    the contract and the contractor may be willing to waive
    his/her right to collect in order to avoid the administrative
    work and expense associated with processing a claim.  PPR,
    Chapter XIV, Section 2  2, 3.j(4).  In fact, one of the
    other contractors on the Program D404-M contract, Wilson-
    Epes, did agree to a no-cost settlement (R4 File, Tab F).
    R.C. Swanson Printing and Typesetting Company, supra, Sl. op.
    at 10, fn. 11.
    7 The settlement proposal submitted by the Appellant
    discloses the following information: (a) Section I (Bid Price
    Cost Breakdown)-material ($28,946.00), labor ($39,922.00),
    overhead ($280,391.00), general and administrative expense
    ($127,405.00), and profit ($84,117.00); (b) Section II
    (Status of Contract At Effective Date of
    Termination)-$288,261.00 previously shipped and invoiced, and
    $272,519.00 not to be completed, for a total covered by the
    contract of $560,781.00; and (c) Section III (Settlement
    Proposal)-labor ($6,468.00), overhead ($136,230.00), capital
    acquisition debt ($46,901.00), general and administrative
    expense ($15,016.00), lost profit ($40,878.00), and
    settlement expenses ($303.75), for a total proposal price of
    $245,796.75  (R4 File, Tab K).
    8 As indicated in the OIG Audit Report, the Appellant's labor
    costs were a combination of health premiums and severance
    pay.  OIG Audit Report, Attachment III, p. 3, fn. 1.
    Subsequently, by letter dated April 15, 1992, to Counsel for
    GPO, the Appellant sought payment for additional labor costs
    based on a potential increase in its contribution to the
    State of Maryland unemployment fund because it had to lay off
    employees when the contract was terminated.  The Respondent
    contends, inter alia, that this aspect of the Appellant's
    labor cost claim cannot be considered by the Board because it
    is untimely.  R. Brf., p. 4.  The Board agrees.  The TCG
    clause in the contract clearly states that a contractor shall
    submit his/her termination settlement proposal ". . .
    promptly, but no later than 3 months from the effective date
    of termination, unless extended in writing by the Contracting
    Officer upon written request of the contractor within this 3-
    month period."  GPO Contract Terms, Contract Clauses, 
    19(c).  In the Board's view, the Appellant's claim based on
    its contribution to the Maryland unemployment compensation
    fund is not so much a request for additional labor costs as
    it is a demand that the Government defray its tax burden to
    the State.  As such, it is not an amendment to an existing
    claim, but a new one.  Under the circumstances, the Board has
    no jurisdiction over a claim filed by the Appellant after the
    contractual period for filing a termination settlement
    proposal (3 months).  See, e.g., Mictonics, Inc., ASBCA No.
    30262, 85-2 BCA  18,119.
    9 On March 21, 1990, the Contracting Officer contacted Laurel
    Wilson of the OIG staff for additional information on the
    settlement expenses portion of the audit report (R4 File, Tab
    R).  According to Wilson, one problem with performing the
    audit was that the Appellant did not explain how he arrived
    at his figures, although a list of hours worked, well as the
    hourly rate for two employees-Rita Langford and Larry Ford-
    was provided to the OIG auditors (R4 File, Tab R).  While no
    hourly rate was provided for Richard Swanson, the auditors
    believed $15.00 an hour was fair compensation (R4 File, Tab
    R).
    10 An examination of the Contracting Officer's letter of
    March 23, 1990, discloses the following disposition of the
    Appellant's claim: (1) Labor costs for severance pay
    ($6,468.00 claimed)-$809.80 of the claim could be supported
    if the Appellant proved that amount was actually paid, that
    the employees spent a substantial amount of their time on
    contract work, and the employees were released because of the
    termination of Program D404-M (the balance of the claim was
    denied); (2) Overhead expenses ($136,230 claimed)-provided
    that the labor costs of $809.80 was supported with additional
    evidence, $392.83 (based on a claimed overhead rate of 48.51
    percent) could be allowed (the balance of the claim,
    representing all overhead not related to direct labor costs,
    was denied); (3) Capital acquisition debt ($46,901.00
    claimed)-the entire amount was denied because the Appellant
    was not guaranteed an award of the contract in any given
    year, nor a was it assured of a position in the sequence of
    bidders, and the equipment in question could be used for a
    variety of composition and printing contracts; (4) General
    and administrative expenses ($15,016.00 claimed)-provided
    that the labor costs of $809.80 was supported with additional
    evidence, $44.62 (based on a claimed rate of 5.51 percent)
    could be allowed (the balance of such costs not related to
    direct labor costs was denied); (5) Lost profit ($40,878.00
    claimed)-the entire amount was denied on the ground that
    profit on work which was neither ordered nor performed is not
    allowed in a termination for convenience; and (6) Settlement
    expenses ($303.75 claimed)-$283.64 was allowed as
    reimbursement for the cost of preparing the settlement
    proposal (the balance was denied because it was not supported
    by documentation) (R4 File, Tab S).
    11 R.C. Swanson Printing and Typesetting Company, supra, Sl.
    op. at 18.
    12 During the preliminary stages of this appeal, the
    Appellant also argued that the Contracting Officer's
    settlement offer was not made in good faith and hence was not
    acceptable.  See, R.C. Swanson Printing and Typesetting
    Company, supra, Sl. op. at 20 (citing, PCR, p. 10).  However,
    at the hearing and in its post-hearing briefs to the Board,
    the Appellant did not pursue that allegation, thus the Board
    deems it abandoned for the purpose of this appeal.  In any
    event, such a "bad faith" claim needs to be established by
    "well-nigh irrefragable" proof because of the strong
    presumption that Government officials properly and honestly
    carry out their functions.  See, e.g., Shepard Printing, GPO
    BCA 23-92 (April 23, 1993), Sl. op. at 7-8, fn. 11; B. P.
    Printing and Office Supplies, GPO BCA 14-91 (August 10,
    1992), Sl. op. at 16; Stephenson, Inc., GPO BCA 02-88
    (December 19, 1991), Sl. op. at 55;  The Standard Register
    Company, GPO BCA 4-86 (October 28, 1987); Sl. op. at 12-13.
    Also see, Melvin R. Kessler, PSBCA No. 2820, 92-2 BCA 
    24,857, aff'd on resconsid. 92-2 BCA  25,092; Federal Data
    Corporation, DOTBCA No. 2389, 91-3 BCA  24,063; Karpak Data
    and Design, IBCA No. 2944 et al., 93-1 BCA  25,360; Local
    Contractors, Inc., ASBCA No. 37108, 92-1 BCA  24,491.  The
    key to such evidence is that there must be a showing of a
    specific intent on the part of the Government to injure the
    contractor.  See, Solar Turbines, Inc. v. United States, 26
    Cl.Ct. 1249, 1275 (citing, Kalvar Corporation v. United
    States, 211 Cl.Ct. 192, 199, 543 F.2d 1298, 1302 (1976),
    cert. denied, 434 U.S. 830 (1977)); Stephenson, Inc., supra,
    Sl. op. at 54.  In the Board's view, no such "irrefragable"
    proof of the Respondent's bad faith exists in this record.
    Certainly, there is absolutely nothing in the record which
    would show that the employees of two separate Government
    entities-GPO and the DOJ-set out to harm the Appellant or
    that they acted in concert to achieve that specific result.
    Id., Sl. op. at 57.
    13 See generally, John Cibinic, Jr. & Ralph C. Nash, Jr.,
    Administration of Government Contracts 2d ed., (The George
    Washington University, 1986), p. 842 (hereinafter Cibinic and
    Nash).  It is "black letter" law in this area that the
    contractor has the burden of proof concerning termination
    costs, and in the absence of evidence provided by the
    contractor, the contracting officer's allowance will be
    accepted.  See, e.g., R & B Bewachungs GmbH, ASBCA No. 42214,
    92-3 BCA  25,105; American Geometrics Construction Company,
    Inc., ASBCA No. 37334, 92-1 BCA  24,545; Humphrey Logging
    Company, AGBCA Nos. 84-359-3, 85-204-3, 85-3 BCA  18,433;
    Roberts International Corporation, ASBCA No. 15,118, 71-1 BCA
     8869 (1971); Delaware Tool & Die Works, Inc., ASBCA No.
    14033, 71-1 BCA  8860 (1971), mot. for reconsid. denied,
    72-1 BCA  9206 (1972).  Also see, PPR, Chapter XIV, Section
    2  3.j(7)(c)(i)-(iii).  While it is preferable to establish
    incurred costs from accounting records, if such documentation
    is not available due to no fault of the contractor, the costs
    may be established on the basis of estimates.  See, e.g.,
    Bailey Specialized Buildings, Inc., ASBCA No. 10576, 71-1 BCA
     8699 (1971).  However, even if estimates are used, the
    contractor still has the burden of proof.  See, e.g.,
    Lagarelli Brothers Construction Company, Inc., ASBCA No.
    34793, 88-1 BCA  20,363 (A contractor's claim for
    termination costs was denied because he did not provide
    evidence to prove his losses.  Cost estimates are acceptable
    only if accounting records are unavailable due to no fault of
    the contractor.  Here the contractor testified to his
    estimate of losses, but failed to show that the accounting
    records were unavailable).  See also, e.g., Clary
    Corporation, ASBCA No. 19,274, 74-2 BCA  10,947 (1974); R.
    G. Robbins & Company, ASBCA No. 27,516, 83-1 BCA  16,420
    (1983) (disallowing recovery for general and administrative
    expenses not supported by cost data or accounting testimony).

    14 The record on which the Board's supplemental decision is
    based consists of: (1) the Appellant's letter, dated April
    12, 1990, appealing the Contracting Officer's final decision;
    (2) the R4 File (Tabs A-V); (3) the Appellant's letter, dated
    July 5, 1990, furnish additional information; (4) the
    Prehearing Telephone Conference Report; (5) the transcript of
    the evidentiary hearing conducted by the Board on June 2,
    1992; (6) the Respondent's initial brief, dated July 17,
    1992, as amended by its "Erratum" of July 30, 1992; (7)
    Appellant's initial brief (undated, but received by the Board
    on July 20, 1992; (8) the Respondent's reply brief, dated
    July 27, 1992; and (9) the Appellant's reply brief (undated,
    but received by the Board on July 27, 1992).
    15 The Board was established by the Public Printer in 1984.
    GPO Instruction 110.10C, Subject: Establishment of the Board
    of Contract Appeals, dated September 17, 1984.  Prior to the
    Board's creation, appeals from decisions of GPO Contracting
    Officers were considered by ad hoc contract appeals boards
    (the decisions of these ad hoc boards are hereinafter cited
    as GPOCAB).  R.C. Swanson Printing and Typesetting Company,
    supra, Sl. op. at 28, fn. 30.  While the decisions of these
    ad hoc boards are not legally binding on the Board, it is
    Board policy to follow them where applicable and appropriate.
    See, e.g., Chavis and Chavis Printing, GPO BCA 20-90
    (February 6, 1991), Sl. op. at 9, fn. 9; Stephenson, Inc.,
    supra, Sl. op. at 18, fn. 20.
    16 In short, allowable costs incurred, plus profit, will be
    recovered, subject to the overall limitation of the contract
    price and the possible application of the loss adjustment
    provisions.  See generally, Cibinic and Nash, note 13 supra,
    p. 841.
    17 See generally, Cibinic and Nash, note 13 supra, p. 868.
    18 Part 31 of the FAR is entitled "Contract Cost Principles
    and Procedures."  Although this appeal is not covered by the
    FAR, for reasons already stated by the Board the standard
    cost principles applicable to Government contracts apply to
    the terminated contract involved in this dispute, as well.
    See, note 5 supra.
    19 Specifically, the DOTBCA found that the appellant had
    incurred expenses of depreciation, insurance, maintenance,
    facilities capital, overhead, and advertising following
    termination.  The DOTBCA held that these costs were
    recoverable as continuing costs under the FAR because they
    could not be "reasonably discontinued immediately."  Aviation
    Specialists Inc., supra, 91-1 BCA  23,534, at 117,993.

    20 See, note 7 supra.
    21 Indeed, practically all of the cases cited to the Board by
    the Respondent in support of its position involve some
    variation of a fixed price contract.  See, e.g., KDI
    Precision Products, Inc., ASBCA No. 21522, 79-1 BCA  13,640
    (firm fixed price); Chamberlain Manufacturing Company, supra,
    73-2 BCA  10,139 (fixed price incentive); Shin Enterprises,
    Inc., supra, 72-1 BCA  9,391 (fixed price); Technology,
    Inc., supra, 71-2 BCA  8,956 (cost plus fixed fee).  The
    exception appears to be Dairy Sales Corporation, ASBCA No.
    20193, 75-2 BCA  11,613, aff'd sub nom., Dairy Sales
    Corporation v. United States, 593 F.2d 1002 (Ct.Cl. 1979),
    which involved the convenience termination of an item in a
    requirements contract which was awarded by mistake and on
    which no work had been performed.  The Respondent cites Dairy
    Sales Corporation for two propositions: (a) the burden of
    proof regarding the amounts due in a termination settlement
    remains with the contractor; and (b) anticipatory profits are
    not recoverable.  R. Brf., p. 9; R. R. Brf., p. 4, fn. 2.  In
    Dairy Sales Corporation, both the Armed Services Board of
    Contract Appeals and the Claims Court relied on a specific
    provision in the Armed Services Procurement Regulation (ASPR)
    which provided, inter alia, that: " [a]nticipatory profits
    and consequential damages shall not be allowed. . . . " in
    disallowing the appellant's claims for anticipatory profits.
    See, Dairy Sales Corporation v. United States, supra, 593
    F.2d at 1004 (citing, ASPR  8-303(a)).  That identical
    language is not only repeated in the FAR, see, FAR, Part 49,
     49.202(a) (Profit), but it also appears in GPO's Printing
    Procurement Regulation.  See, PPR, Chapter XIV, Section 2 
    3.n. (Allowance for Profit).  Consequently, it seems to the
    Board that the award of a small (1.3 percent) profit on the
    appellant's continuing costs in Aviation Specialists, Inc.,
    is an exception to the general rule against allowing
    anticipatory profits in convenience terminations which the
    DOTBCA crafted because of the special circumstances of that
    case.
    22 The Board is remanding the Appellant's claim to the
    Contracting Officer for reconsideration in light of the rule
    of Aviation Specialists, Inc. which the Board adopts here;
    i.e., that the parameters for settlement of a termination for
    convenience claim under a requirements contract is
    established by the estimated contract price.  The Board
    expects that its decision will have the greatest impact on
    any recomputation of allowances for the Appellant's overhead,
    capital acquisition, and general and administrative expenses.
    Unlike the situation in Aviation Specialists, Inc., the
    record in this case, including the testimony taken at the
    hearing conducted by the Board on June 2, 1992, does not
    provide the Board with the necessary factual information to
    make the determination in those areas for itself.  For
    example, while the Appellant might be allowed a reasonable
    allowance for depreciation on its machinery for the three
    months remaining in the contract term, there is no evidence
    in the record to show how much depreciation had been taken on
    that machinery in the past.  Cf., Hugo Auchter Gmbh, ASBCA
    No. 39462, 91-1 BCA  23,645; Metered Laundry Services, ASBCA
    No. 21573, 78-1 BCA  13,206, modified on reconsid., 78-2 BCA
     13,451.  Moreover, there is nothing in the record which
    would allow the Board to make a finding as to which of the
    Appellant's costs could or could not "reasonably be
    discontinued during the remaining contract term."  Aviation
    Specialists, Inc., supra, 91-1 BCA  23,534, at 117,992.
    Finally, the Contractor is reminded that although the Board
    has endorsed its theory of the case, it still has the burden
    of proving its claim for settlement costs, see, e.g., R & B
    Bewachungs GmbH, supra, 92-3 BCA  25,105; American
    Geometrics Construction Company, Inc., supra, 92-1 BCA 
    24,545; Humphrey Logging Company, supra, 85-3 BCA  18,433;
    Roberts International Corporation, supra, 71-1 BCA  8869
    (1971); Delaware Tool & Die Works, Inc., supra, 71-1 BCA 
    8860 (1971), mot. for reconsid. denied, 72-1 BCA  9206
    (1972), even if estimates are used.  See, e.g., Lagarelli
    Brothers Construction Company, Inc., supra, 88-1 BCA 
    20,363; Bailey Specialized Buildings, Inc., supra, 71-1 BCA 
    8699 (1971).  Also see, PPR, Chapter XIV, Section 2  3.j(7)
    (c)(i)-(iii).