BOARD OF CONTRACT APPEALS U.S. GOVERNMENT PRINTING OFFICE WASHINGTON, DC 20401 In the Matter of ) ) the Appeal of ) QUALITYPE, INC. ) Docket No. GPOBCA 21-95 Program 1020-S ) Purchase Order R-0143 ) Print Order 80000 ) For the Appellant: Qualitype, Inc., Macedon, New York, by Frederic G. Antoun, Jr., Attorney at Law, Chambersburg, Pennsylvania. For the Government: Kerry L. Miller, Esq., Associate General Counsel, U.S. Government Printing Office. Before BERGER, Ad Hoc Chairman. DECISION ON MOTION FOR RECONSIDERATION AND ORDER Qualitype, Inc. (Appellant) has filed a timely Motion for Reconsideration (Motion) of the Board's Decision and Order of April 21, 1998, in the above-captioned appeal, in which the Board upheld a final decision of the Contracting Officer determining that the Appellant had been billing incorrectly for author's alterations and directing recovery of the excess amounts paid to the Appellant. For the reasons which follow, the Motion is DENIED. Under the Appellant's contract, the Appellant was to be paid its price "per 1,000 characters" for author's alterations. The Appellant billed for this item on the basis of the total number of characters in a document to which author's alterations were made; the Contracting Officer, upon learning of this, determined that the Appellant was entitled to be paid only for the number of actual author's alterations. The Board held that the Contracting Officer's interpretation of the contract was the only reasonable interpretation. In its Motion the Appellant argues that the Board erred in reaching that conclusion because: (1) the Appellant reasonably interpreted what was latently ambiguous language; (2) the Contracting Officer's interpretation produced an unconscionable result; and (3) there was a course of conduct between the parties indicating that both parties had previously adhered to the Appellant's interpretation. The Appellant also argues that the Board could have relied on its precedent to find that there was no meeting of the minds with respect to the contract pricing language and to fashion an appropriate quantum meruit recovery. Finally, the Appellant asserts that the Board erred in affirming the Contracting Officer's decision to pay the Appellant nothing for Print Orders 20000 and 20001. Rule 29 of the Board's Rules of Practice and Procedure allows either party to an appeal to file a motion for reconsideration within 30 days of the party's receipt of the Board's decision. The traditional grounds for reconsideration are newly discovered or newly available evidence, or error in the Board's findings of fact or conclusions of law; reconsideration, however, is discretionary with the Board and will not be granted in the absence of specific and compelling reasons. Univex International, GPOBCA 23-90 (February 7, 1996), slip op. at 4-5, 1996 WL 112554; Sterling Printing, Inc., GPOBCA 20-89 (July 5, 1994), slip op. at 3-4, 1994 WL 377592; Graphic Litho, Inc., GPOBCA 17-85 (September 30, 1988), slip op. at 2-3, 1988 WL 363516. Arguments already made, reinterpretation of old evidence, and mere disagreement with the Board's decision do not provide a basis for reconsideration. Univex International, Inc., supra. The Appellant's first three points set out above essentially reflect disagreement with the Board's findings and conclusions; there is no showing, however, of any factual or legal errors. The first point is predicated on the Appellant's having previously billed, and GPO's having paid, for author's alterations on the basis of total characters in the publication; this, says the Appellant, "is sufficient to prove that the contractor's interpretation of the way in which it should bill is reasonable." Motion at 1. This argument ignores the primary bases set forth in the decision for the Board's conclusion that the only reasonable interpretation of the disputed language was GPO's. It also ignores the fact that even though the Appellant had been billing on the basis of total characters per publication, GPO, because of the Appellant's prior nominal pricing and the resultant nominal invoice amounts involved, was unaware of that fact and of the Appellant's interpretation. Thus, while it is not disputed that the Appellant previously billed on the basis of total characters in a publication, that establishes no more than that the Appellant did so; under the circumstances here it simply does not support the Appellant's assertion that its interpretation was reasonable.1 The second point, that the Board's agreement with the Contracting Officer's decision is erroneous because it leads to an unconscionable result, is without merit. The unconscionability claim is based on the Appellant's being paid only one-third of what it previously received as an average per page price. This argument, which the Appellant did not make previously, overlooks the fact that payment to the Appellant was based on the Appellant's pricing. For the 1993-1994 contract, which preceded the contract which was the subject of this appeal, the Appellant bid a unit price of $ .001 (per thousand) for author's alterations and a unit price per page of $9 for photocomposition. For the 1994-1995 contract, the Appellant changed its pricing approach-it bid $12.50 for author's alterations and only $2 for photocomposition. Had it retained its $9 photocomposition price, it would have been paid $7 per page more, which would have brought its average per page price to the prior year's level. As the Board noted, while the Appellant was essentially free to structure its bid as it chose, most of the tasks involved in performing the contract involved photocomposition and reimbursement for that work should have been realized through the per page photocomposition charge rather than through author's alterations charges; the Appellant could not "expect reimbursement for author's alterations when the work performed is not encompassed by the author's alterations line item of the contract." Qualitype, Inc., supra, at 10. The third point again is based on the Appellant's prior billing and GPO's payment of the Appellant's invoices. In response to the Appellant's argument that this established a prior course of conduct which reflected the parties' interpretation of the "per 1,000 characters" phrase, the Board pointed out that the prior course of dealing concept "requires that both parties have actual knowledge of the prior course of dealing and of its significance to the contract, Qualitype, Inc., supra, at 12, and held that the evidence fell short of establishing that the GPO Contracting Officer had actual or imputed knowledge of the Appellant's basis for billing. The Appellant describes the Board's treatment of this issue as follows: The Board found no course of conduct because neither the contracting officer nor the division empowered to pay invoices reviewed the invoices. Thus, the Board concluded there was no "knowing" acceptance of the interpretation or payment policy- since no one at GPO checks invoices. Accepting this conclusion would prevent any course of conduct from establishing a contract pricing language interpretation. The Board did not say that no one at GPO checks invoices. In fact, the Board described GPO's voucher/invoice review process and noted the various scenarios under which this review occurs. See Qualitype, Inc., supra, at 12-13. The Board said only that in this case it was clear from the hearing testimony that the Contracting Officer had no actual knowledge of how the Appellant was billing, and that the Appellant had failed to establish that the Contracting Officer had such knowledge imputed from GPO's Financial Management Service (FMS) (which initially reviews and pays vouchers) because FMS, in light of the Appellant's prior nominal pricing for author's alterations, itself did not know and had no reason to know how the Appellant was billing for author's alterations or to question the amounts billed. Since, as previously recognized by the Board, knowledge of a prior course of dealing is an essential element of the presumption that a prior course of dealing reflects what the parties intend contract language to mean, see MPE Business Forms, Inc., GPOBCA 10-95 (August 16, 1996), slip op., 1996 WL 812877, and Publishers Choice Book Mfg. Co., GPOBCA 4-84 (August 18, 1986), slip op., 1986 WL 181457, the Board could only conclude in this case that the Appellant's position was not supported by its prior course of dealing theory. The Appellant's "no meeting of the minds" approach stems from the Board's decisions in MPE Business Forms, Inc., supra, and Publishers Choice Book Mfg. Co., supra, in which the Board, after holding that disputed contract language was not ambiguous, nevertheless concluded that there was no meeting of the minds between the parties and that therefore there was no binding contract in place. The Board then concluded that the contractor in each case was entitled to be paid the reasonable value of what it provided to the Government in accordance with quantum meruit principles under an implied-in-fact contract theory. These two cases do not reflect the usual contract interpretation situation. As the Board stated in the more recent of those two cases, "[i]f this appeal was a typical contract interpretation case, the matter would end with the Board's decision that the Respondent's ... reading of the disputed contract language was correct, and the Appellant's contrary ... version was without merit." MPE Business Forms, Inc., supra, at 67. In determining that MPE Business Forms, Inc. and its predecessor case were not typical, the Board relied on the "well-stated" rule set forth by Professor Corbin as follows: If the meaning that either [party to the contract] gave to the words was the only reasonable one under the existing circumstances, as the other party had reason to know, the latter is bound by that meaning and there is a contract accordingly....But if the parties had materially different meanings, and neither one knew or had reason to know the meaning of the other, there is no contract. 1 CORBIN ON CONTRACTS § 4.10 (1993) at 617-18. Notwithstanding that in both cases the Board found that there was only one reasonable meaning-that proffered by the Respondent-of the disputed contract language, the Board also found that the contractors had in good faith based their offers on a different, erroneous interpretation, which led to the conclusion that the parties failed to reach a meeting of the minds. Crucial to that conclusion was the Board's belief that the contractors did not know or have reason to know that GPO had another interpretation. See MPE Business Forms, Inc., supra, at 70, 71. The Board cannot say the same thing in this case, as it believes the Appellant did have reason to know that the Respondent did not interpret the "per 1,000 characters" phrase the way it did. As the Board pointed out in its earlier decision in this matter, "the gross disparity between the estimate [for the author's alterations line item] and the expectations of the Appellant under its interpretation ... should have alerted the Appellant to at least the possibility that its interpretation was incorrect," and "the Appellant's appreciation of this ... possibility should have been reinforced by the change made from the previous year's estimate." Qualitype, Inc., supra, at 8. In other words, while the Board does not question that Appellant believed "per 1,000 characters" meant total characters per publication, the facts of this case lead the Board to believe that the Appellant had reason to know that its interpretation of that phrase might well not be GPO's interpretation. Accordingly, the Board sees no reason to follow MPE Business Forms, Inc. and Publishers Choice Book Mfg. Co. here. Finally, the Appellant asserts that the Board erred in affirming the Contracting Officer's decision to pay nothing under Print Orders 20000 and 20001. The Contracting Officer's final decision in fact stated that the Appellant was to be paid "that which is due" on those print orders in accordance with the Contracting Officer's interpretation of the disputed contract language. The Contracting Officer did not decide that the Appellant was to be paid nothing and the Board did not affirm any such decision.2 For the foregoing reasons, the Motion is DENIED. It is so Ordered. June 24, 1998 Ronald Berger Ad Hoc Chairman GPO Board of Contract Appeals _______________ 1 They also do not support the assertion that there was a latent ambiguity. As the Board noted after thoroughly analyzing the contract, "[t]he best that can be said for the Appellant's position is that there was a patent ambiguity" in the contract about which the Appellant made no inquiry. See Qualitype, Inc., GPOBCA 21-95 (April 21, 1998), slip op. at 8 n.4, 1998 WL ______. 2 The Respondent indicates that the Appellant was paid under those print orders but the payments were subject to setoff so that GPO could recover an earlier overpayment; it further indicates that if the Appellant has not been paid for author's alterations it need only submit a revised voucher with appropriate supporting documentation. Respondent's Opposition to Appellant's Motion for Reconsideration at 3.