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



In the Matter of                  )
                                  )
the Appeal of                     )
                                  )
WICKERSHAM PRINTING COMPANY, INC. )   Docket No. GPOBCA 23-96
Program D688-S                    )
Purchase Order 95912              )

For the Appellant:  Wickersham Printing, Lancaster, Pennsylvania,
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 MOTIONS FOR SUMMARY JUDGMENT AND ORDER

   Wickersham Printing Company, Inc. (Appellant), 2959 Old Tree
   Drive, Lancaster, Pennsylvania requests summary judgment on
   its appeal of the assessment of excess reprocurement costs
   that followed the termination for default of its requirements
   contract for loose-leaf printed products under Program D688-S,
   awarded by the U.S. Government Printing Office (GPO or
   Respondent) for the June 1, 1996-May 31, 1997 contract year.
   The Respondent also moves for summary judgment.  For the
   reasons which follow, the Appellant's motion is DENIED and the
   Respondent's motion is GRANTED.

I. BACKGROUND
   1.   On April 19, 1996, the contract was awarded to the
   Appellant by Purchase Order 95912 following competitive
   bidding.  Rule 4 File, Tab 10.1 The Appellant, although not
   the low bidder, was the low responsible bidder at a total
   discounted estimated price of $194,851.10.  Rule 4 File, Tabs
   3, 4, 9.
   2.   The contract contained several line items for varieties
   of paper expected to be required for contract performance.
   The estimated quantity for the first line item of paper, 50-
   lb. white offset book paper, was 11,511,000 sheets.  The next
   highest quantity, for white vellum-finish cover paper, was
   228,000.  Rule 4 File, Tab 1 at 13, 18.  The contract also
   contained a "Paper Price Adjustment" clause which provided for
   paper price adjustments in the event a specified price index
   published by the Bureau of Labor Statistics (BLS) increased or
   decreased by more than 5 per cent.  Rule 4 File, Tab A at 3.
   3.   The contract was terminated for default on July 17, 1996
   because of the Appellant's inability to meet delivery
   requirements.  The termination notice advised the Appellant
   that the terminated items might be reprocured and that the
   Appellant would be held liable for any excess costs of
   reprocurement.  Rule 4 File, Tab 34.
   4.   The Contracting Officer then contacted Goodway Graphics
   of Virginia, Inc., the next low bidder.   That company agreed
   to perform the balance of the contract at the prices it had
   offered on the original procurement.   The Contracting Officer
   estimated the difference in cost between the

defaulted contract prices and Goodway Graphics' prices for the
remaining 10-1/2 months of the contract as $20,483.19.  Rule 4
File, Tab 37.
   5.   GPO's Contract Review Board (CRB), by a two to one vote,
   concurred in awarding the reprocurement contract to Goodway
   Graphics.  The dissenting member did not agree that the cost
   of reprocurement had been adequately mitigated.  He stated
   that the cost of paper had dropped 5 percent between April and
   May and that there was "no information as yet of the reduction
   between May and July," although he noted that "[a]s an
   indication of the trend, paper dropped 9 % between March and
   May."  Rule 4 File, Tab 37.
   6.   The reprocurement contract was awarded to Goodway
   Graphics on July 22, 1996, by Purchase Order 93232.  Rule 4
   File, Tab 38.  Excess reprocurement costs on orders placed
   under this contract totaled $20,741.09.  Declaration of
   Contracting Officer John R. Scott (hereafter Scott
   Declaration).  GPO collected that amount by deducting it from
   other funds owed to the Appellant.  Brief in Support of
   Appellant's Motion for Summary Judgment (hereafter App. Brf.)
   at 4.


II. DISCUSSION

   The "Default" clause of the contract, GPO Contract Terms,
   Solicitation Provisions, Supplemental Specifications, and
   Contract Clauses, Contract Clauses,  20, GPO Pub. 310.2,
   effective December 1, 1987 (Rev. 9-88), provides that the
   Government, upon terminating a contract for default, "may
   acquire, under the terms and in the manner the Contracting
   Officer considers appropriate, supplies or services similar to
   those terminated, and the contractor will be liable to the
   Government for any excess costs for those supplies or
   services."  The Government has a duty to mitigate the
   defaulted contractor's liability, however, and it is therefore
   the Government's burden to demonstrate the propriety of the
   repurchase and its entitlement to the amount claimed as excess
   reprocurement costs.  K.C. Printing Co., GPOBCA 2-91 (February
   22, 1995), slip op. at 18, 1995 WL 488531.  To meet this
   burden, the Government must show that (a) the reprocurement
   contract was performed under substantially the same terms and
   conditions as the original contract; (b) it acted within a
   reasonable time following default to reprocure; (c) it
   employed a reprocurement method that would maximize
   competition under the circumstances; (d) it obtained the
   lowest reasonable price; and (e) the work has been completed
   and final payment made so that the excess cost assessment is
   based upon liability for a sum certain.  Gold Country Litho,
   GPOBCA 22-93 (September 30, 1996), slip op. at 26, 1996 WL
   812956 (quoting from K.C. Printing Co., supra, at 18-19),
   aff'd in part and vacated in part, GPOBCA 22-93 (March 17,
   1997), slip op., 1997 WL 742506; Univex International, GPOBCA
   23-90 (July 5, 1996), slip op. at 4, 1996 WL 812959; Asa L.
   Shipman's Sons, Ltd., GPOBCA 06-95 (August 29, 1995), slip op.
   at 28, 1995 WL 818784;  Sterling Printing, Inc., GPOBCA 20-89
   (March 28, 1994), slip op. at 52-53, 1994 WL 275104, recon.
   denied, GPOBCA 20-89 (July 5, 1994), slip op., 1994 WL 377592.
   The Appellant, which challenges only the assessment of excess
   reprocurement costs and not the default termination itself,
   concedes that the Respondent has satisfied criteria (a), (b),
   and (e).  It asserts, however, that the facts establish that
   the Respondent did not employ a reprocurement method that
   maximized competition and did not obtain the lowest reasonable
   price.  This assertion is based on the Respondent's failure to
   seek competitive bids for the reprocurement when, the
   Appellant states, the Respondent knew or should have known
   that paper prices had undergone "a dramatic drop." App. Brf.
   at 7.
   Government contracting officers have broad discretionary
   powers to determine the appropriate method of reprocurement
   following a termination for default.  Big Red Enterprises,
   GPOBCA 07-93 (August 30, 1996), slip op. at 43, 1996 WL
   812960.  Thus, even though they have an obligation to mitigate
   the defaulted contractor's damages by selecting a
   reprocurement method that will maximize competition and result
   in the best or lowest reasonable price, an unrestricted, fully
   competitive approach is not always required.  The Government
   must simply act reasonably and prudently under the
   circumstances.  See Gold Country Litho, supra, at 30-31.  For
   example, if the Government's needs are sufficiently urgent,
   negotiation of a reprocurement contract with a single source
   or a limited number of sources is permissible notwithstanding
   that a fully competitive approach might produce a better
   price.  Consolidated Airborne Sys., Inc. v. United States, 348
   F.2d 941 (Ct. Cl. 1965); H & H Mfg. Co. v. United States, 168
   Ct. Cl. 873 (1964); Ross & McDonald Contracting, GmbH, ASBCA
   38154, 94-1 BCA  26,316.
   Further, and more germane to the case at hand, when it is
   reasonable to believe that the results of the original
   competition provide either the same or better pricing than
   what would be obtainable from a new competition, the award of
   a reprocurement contract to the bidder next in line for award
   in the original procurement, at that bidder's original
   pricing, is also permissible.  See Gold Country Litho, supra,
   at 32; Asa L. Shipman's Sons, Ltd., supra; Rainbow Connection,
   Inc., ASBCA 33583, 88-3 BCA  20,922.  As the Comptroller
   General has stated, notwithstanding that normally the
   Government is expected to obtain the best price available
   through the "crucible of competition," Olivetti Corp. of
   America, B-187369, Feb. 28, 1977, 77-1 CPD  146, "it is
   reasonable to award a repurchase contract to the next low
   responsive, responsible bidder on the original solicitation at
   its original bid price provided that there is a relatively
   short time span between the original competition and the
   default and there is a continuing need for the items."
   Performance Textiles, Inc., B-256895, August 8, 1994, 94-2 CPD
    65; see International Technology Corp., B-250377.5, Aug. 18,
   1993, 93-2 CPD  102; Hemet Valley Flying Service, 57 Comp.
   Gen. 703 (1978), 78-2 CPD  117.  Obviously, however, where a
   significant amount of time has elapsed after the original
   competition, so that the prices from that competition may no
   longer reasonably  reflect what would be realized in a new
   competition, or where, regardless of the time that has
   elapsed, market prices have decreased since the time of the
   original competition, it would not be reasonable for a
   contracting officer to rely on that original competition and
   simply make award to the next low bidder.  See Made-Rite Tool
   Co., Inc., ASBCA 22127, 79-2 BCA  13,975 (difference between
   the defaulted contract price and the price of the second low
   bidder is not a proper basis for assessing excess
   reprocurement costs where the record shows that prices went
   down after the competition so that a reprocurement should have
   resulted in a price lower than or no higher than the defaulted
   contract price).
   Here the reprocurement occurred approximately 90 days after
   the original competition.  During that period, the Appellant
   asserts, the cost of paper, a significant element of the
   contract pricing, had declined by 20.8 percent.  The Appellant
   arrives at that figure by referring to (1) the dissenting CRB
   member's statement that paper prices dropped 5 percent between
   April and May 1996 and (2) the July 22-26, 1996 issue of Pulp
   & Paper Week,2 which for 50-lb. white paper showed a price
   decrease from $760 on May 1 to $640-$700 on July 1.  The
   Appellant computes the decrease from $760 to $640 as one of
   15.8 percent, and combines that with the earlier 5 percent
   decrease to reach the 20.8 percent figure.  The Appellant
   concludes from this that it is entitled to summary judgment
   because under these circumstances the Respondent cannot show
   that its reprocurement method was appropriate or that it
   resulted in the lowest reasonable price.
   The Respondent, on the other hand, asserts that it acted
   reasonably and that the changes in the price of paper were far
   less dramatic than what the Appellant asserts them to be.  In
   his Declaration, Contracting Officer Scott states that he
   chose to attempt to negotiate a contract with Goodway Graphics
   for several reasons:
First, we had just gone through a formally advertised procurement
a few months earlier that had resulted in [a] very competitive
procurement.  The top three responsible bidders submitted bids
that were closely grouped together.  I had no reason to believe
that these prices were not reasonable or competitive or that
further competition would result in materially lower prices.

... Second, the reprocurement was for only a reduced portion of
the original requirements ....  It has been my experience in 13
years as a procurement official at GPO that when you reduce
contract requirements it results in increased unit prices, since
a bidder has fewer units of production to spread  its fixed and
overhead costs.  Thus, a formal reprocurement would likely result
in higher unit prices.

... Third, the default of Wickersham, and its delinquent
performance had resulted in the need to quickly reestablish a
source of supply....  In order to formally advertise I would not
have been able to make award for several weeks, if not longer.
Either the needs of the Department of Transportation  would have
gone unmet for that period of time, or its needs could have been
met through the use of one-time procurements.  This latter option
would ... have resulted in much higher reprocurement costs as the
economies of scale which are the basis for establishing term
contracts would be lost.

             . . . . .

... To explore this possibility [that, as suggested by the
Contract Review Board dissenting member, costs had not been
sufficiently mitigated in light of paper price decreases], I
reviewed the latest paper price statistics from [BLS].  These
official statistics are ... distributed monthly to GPO
contracting officers for use in calculating paper price
adjustments.

... I found that paper prices had fallen by less than 5% (4.8%)
from April to May 1996.  I also found that no paper price
adjustments were warranted for GPO contracts for the April to
July time period ....  I also saw that the larger paper price
drops that had occurred in the earlier months of 1996 for offset
book paper had almost slowed to a stop.  Prices for offset paper
dropped by only .9% from April to May 1996.  This small price
drop which directly affected only a portion of the contract price
(35.7% of Goodway's total price) would have negligible effect on
the total bid price.  Accordingly, I concluded that there was
little likelihood that should I formally readvertise that the
paper prices would have a significant effect on reprocurement
costs.

... I later learned that officially revised BLS statistics for
that time period showed that paper prices generally decreased
from April to July 1996 by 3.4%.  Offset book paper prices
actually increased during that time by 3.2%.

   In deciding motions for summary judgment, the Board is guided
   by Rule 56 of the Federal Rules of Civil Procedure, pursuant
   to which courts will grant such motions where the pleadings
   and supporting documents show that there are no genuine issues
   as to material facts and that the moving party is entitled to
   judgment as a matter of law.  Composite Laminates, Inc. v.
   United States, 27 Fed. Cl. 310 (1992); Artisan Printing Inc.,
   GPOBCA 15-93 (February 6, 1998), slip op. at 6, 1998 WL
   149001; GraphicData, Inc., GPOBCA 35-94 (June 14, 1996), slip
   op. at 48, 1996 WL 812875.  The burden is on the moving party
   to demonstrate that it is so entitled. Celotex Corp. v.
   Catrett, 477 U.S. 317 (1986).  Where, as here, both parties
   have moved for summary judgment, the Board must consider each
   motion, with each party in its capacity as the opponent of
   summary judgment entitled to all applicable presumptions and
   inferences and with the evidence viewed in the light most
   favorable to the non-moving party.  Kanehl v. United States,
   38 Fed. Cl. 89 (1997);  Bataco Ind., Inc. v. United States, 29
   Fed. Cl. 318 (1993).
   The issue raised by this appeal is whether the Respondent
   failed in its duty to mitigate damages by not (1) acting
   reasonably in choosing its reprocurement method and (2)
   obtaining the lowest reasonable price.  There is no hard and
   fast rule or formula for making this determination; whether
   the Respondent met its duty is a question of fact resolved by
   an inquiry into the reasonableness of the Respondent's
   actions.  Puroflow Corp., ASBCA 36058, 93-3 BCA  26,191;
   Birken Mfg. Co., ASBCA 32590, 90-2 BCA  22,245.  That inquiry
   properly focuses not only on the Respondent's duty to mitigate
   excess reprocurement costs but also on its duty to protect the
   Government's legitimate interests.  WEDJ, Inc., ASBCA 27067,
   86-3 BCA  19,169.
   To prevail on its motion the Appellant must show that the
   Contracting Officer knew or should have known that a better
   price than Goodway Graphics' likely would have been obtainable
   through a competitive reprocurement and that the Government's
   needs did not foreclose a competitive approach.  To do this
   the Appellant has referenced the statement of the dissenting
   member of the CRB and an issue of Pulp & Paper Week as
   indicating a meaningful drop in paper prices that should have
   resulted in lower prices than those received on the original
   competition, and explained that any immediate needs of the
   customer agency could have been obtained through individual
   jackets until a competitive reprocurement could take place.
   The Appellant, however, while submitting evidence (the
   Ardinger Affidavit) indicating that Pulp & Paper Week is used
   by industry sources, has not shown that the Contracting
   Officer or any other GPO official knew of this publication or
   was aware of the specific information in it.  According to the
   Contracting Officer, he obtained his information from BLS
   statistics which are furnished monthly to GPO contracting
   officers.  Scott Declaration at 2-3.  The dissenting CRB
   member also states that his information came from "BLS indices
   and not ...` any other data."  Declaration of Anthony A.
   Valentine.  Thus, the Appellant's evidence does not establish
   that the Contracting Officer was on notice of a paper price
   decline of the magnitude represented by the Pulp & Paper Week
   publication.  Morerover, the BLS statistics do not paint quite
   the same picture as the Appellant gleans from Pulp & Paper
   Week.  As the Contracting Officer stated in his Declaration,
   the BLS data available to him in July 1996 and furnished as
   Attachment 1 to his Declaration show that paper prices had
   declined less than 5 percent from April to May, that offset
   paper prices had dropped by less than 1 percent for the same
   period,  and that paper price adjustments on GPO contracts
   containing the Paper Price Adjustment clause were not
   warranted for the April--July period.3  Considering the
   totality of this evidence in the light most favorable to the
   Respondent (showing what appeared to be relatively small paper
   price declines since the original contract was awarded,
   coupled with the Contracting Officer's concern about the
   effect on pricing of reduced quantities and economies of
   scale), the Board cannot conclude that the Appellant has shown
   that the Contracting Officer failed to mitigate excess
   reprocurement costs by choosing an inadequate method of
   reprocurement.  Accordingly,  the Appellant is not entitled to
   judgment as a matter of law.
   Denial of the Appellant's motion does not mean that the
   Respondent is automatically entitled to the granting of its
   motion for summary judgment.  Vanier Graphics, Inc., GPOBCA
   12-92 (May 17, 1994), slip op. at 47, 1994 WL 275102.  The
   Respondent's motion may be granted only if the Respondent
   satisfies its own burden of showing that its reprocurement
   actions were reasonable under the circumstances and were
   legally sufficient to meet its obligation to mitigate the cost
   of reprocurement.
   The factual picture painted by the existing evidence in
   support of the Respondent's motion is, in some respects, more
   than a little sketchy.  First, the evidence does not establish
   what the Contracting Officer actually knew or should have
   known about the change in paper pricing from April to July.
   Although the Contracting Officer stated that GPO contracting
   officers receive the relevant BLS statistics monthly, the
   Contracting Officer appears to have given no consideration to
   any change in paper prices at the time he decided to negotiate
   only with Goodway Graphics despite the downward trend in paper
   prices reflected by the statistics available to him (furnished
   to the Board as Attachment 1 to the Scott Declaration) at that
   time.  Moreover, while the Contracting Officer refers only to
   BLS data and relies only on BLS data in connection with the
   Paper Price Adjustment clause, the record is silent as to
   whether the Contracting Officer also was aware of the data
   from Pulp & Paper Week, described in the Ardinger Affidavit as
   a "primary and standard source for bid preparation" and a
   "primary source in accurate market paper prices," or of any
   other information bearing on the paper market situation.
   Second, when, in response to the CRB's dissenting member's
   concern about declining paper prices, the Contracting Officer
   examined the BLS data, he simply noted that paper prices had
   fallen just under 5 percent from April to May, that "the
   larger paper price drops" for offset paper that had occurred
   earlier in 1996 had "almost slowed to a stop" and had dropped
   less than 1 percent between April and May, and that paper
   price adjustments were not warranted for the April to July
   period.  Contract price adjustments, however, are made
   pursuant to the adjustment clause only to the extent there is
   a change in the index in excess of 5 percent, so that the data
   did not foreclose the possibility that price decreases
   approaching 5 percent had continued during that period or that
   decreases in that range had occurred with respect to the
   offset paper.  A monthly 5 percent decline in the price of
   offset paper, of course, could have resulted in lower bid
   prices for that paper even if that decline did not entitle GPO
   to a downward adjustment on its existing contracts.  Also,
   while the Contracting Officer had concerns about higher unit
   prices resulting from reduced contract requirements on the
   reprocurement, a definite quantity contract was not involved
   here; the awarded contract was a requirements contract that
   anticipated the placement of 200 to 300 separate orders during
   the contract year.  Each of these orders involves its own
   separate printing and other requirements, and, in light of the
   requirements nature of the contract, there was no guarantee
   that the orders or the contract's estimated quantities would
   be realized.  KPT, Inc., GPOBCA 14-97 (November 30, 1998),
   slip op. at 4, 1998 WL ______; McDonald & Eudy Printers, Inc.,
   GPOBCA 40-92 (January 31, 1994), slip op. at 14, 1994 WL
   275096.  Thus, there is at least a question as to whether the
   higher quantity/lower unit price expectation typical in
   definite quantity situations is a reasonable one in these
   circumstances.  Moreover, to the extent that it is a
   reasonable one notwithstanding the requirements nature of the
   contract, there is no explanation from the Contracting Officer
   as to why it is reasonable to expect anything more than
   nominally higher unit prices on the reprocurement in view of
   the fact that approximately 10-1/2 months, more than 80
   percent of the contract period, remained for the reprocurement
   contractor.  Exactly what the Contracting Officer's experience
   has been that led him to his conclusions in this regard is not
   on the record.
   Nonetheless, notwithstanding this sketchy portrait, there is
   evidence of record, the final BLS statistics for the period
   involved, that leads the Board to conclude that summary
   judgment for the Respondent is appropriate.  These statistics
   show that paper prices declined slightly from April (index
   145.6) to July (index 140.6) but that offset paper prices
   increased (131.2 in April, 131.5 in May, 134.6 in June, and
   135.4 in July).  With offset paper prices actually going up
   each month from the time of bidding on the original contract
   until the reprocurement contract was let, there is no reason
   to believe that the market fluctuations in paper prices would
   have produced a decrease in paper and overall bid pricing in a
   competitive reprocurement for the Program D688-S contract.
   With no such decrease likely, the Appellant could not have
   been subjected to unreasonable excess reprocurement costs when
   the Contracting Officer awarded the replacement contract to
   the original next low bidder at that bidder's original prices.
   Thus, despite reservations about the basis for the Contracting
   Officer's conclusions, the Board finds, on the basis of the
   BLS data, that the Contracting Officer did not fail in his
   duty to the Appellant because, had the Contracting Officer
   conducted a competition for the reprocurement, the resulting
   bid prices would not likely have been lower than the original
   prices and well may have been higher, thereby subjecting the
   Appellant to greater reprocurement costs than are involved
   here.
   Disposing of a matter by summary judgment is appropriate where
   the submission of additional evidence could not reasonably be
   expected to change the result warranted by the evidence
   currently of record.  Kanehl v. United States, 38 Fed. Cl. 762
   (1997).  In light of the BLS statistics reflecting what
   actually occurred during the time period in question, the
   Board must conclude that, regardless of  whatever factual
   questions remain about the basis for the  Contracting
   Officer's reprocurement approach, that approach did not
   adversely affect the Appellant with regard to its liability
   for the excess costs of reprocurement.  Thus, the submission
   of additional evidence to resolve those factual questions
   would have no impact on the Board's ultimate conclusion that,
   because the Contracting Officer's approach resulted  in the
   lowest reprocurement costs likely to be obtained, the
   Contracting Officer effectively fulfilled his duty to mitigate
   those costs when he awarded the reprocurement contract to
   Goodway Graphics.

III. ORDER

   The Appellant's motion for summary judgment is DENIED.  The
   Respondent's motion for summary judgment is GRANTED.
It is so ordered.

December 18, 1998                  Ronald Berger
                                   Ad Hoc Chairman
                                   GPO Board of Contract Appeals

_______________

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 January 14, 1997.  It will be referred
to as the Rule 4 File, with an appropriate Tab number also
indicated.  The Rule 4 File consists of 38 numbered tabs.
2    The Appellant provided a copy of the relevant pages of this
publication as an attachment to an affidavit of  Misti Ardinger,
an employee of the Appellant's attorney.  The affidavit
(hereafter Ardinger Affidavit) states the employee "contacted
several printing companies in an effort to find out their primary
source for up-to-date market prices on paper.  The private sector
printing industry uses Pulp & Paper Week as a primary and
standard source for bid preparation."  The affidavit further
states that the employee also "contacted Printing Industries of
America ... and Graphic Arts Technical Foundation ..., both of
which confirmed this publication as a primary source in accurate
market paper prices."
3    As ultimately revised, the BLS Producer Price Index shows
that paper prices declined substantially from January (index
price 160.8) to April 1996 (index price 145.6), and then declined
at a significantly lower rate from April through July (the index
price declined to 142.5 in May, maintained that level in June,
and then declined to 140.6 in July).  For offset uncoated book
paper, the Index shows a decline from 147.0 in January to 131.2
in April, but an increase in May (131.5), June (134.6), and July
(135.4).