U S GOVERNMENT PRINTING OFFICE CONTRACT APPEALS BOARD C.A. 76-13 Vincent T. McCarthy, Chairman Samuel Soopper, Member Drew Spalding, Member APPEAL OF H. L. EIKENBERG COMPANY May 9, 1979 Introduction This timely appeal was filed by the H. L. Eikenberg Company (hereinafter Eikenberg or appellant) to contest a decision by the contracting officer that it had overbilled and had consistently been overpaid by the Government during the course of the contract. For reasons stated below, we deny the appeal. Findings of Fact In March 1975, the H. L. Eikenberg Company was awarded a term contract by the Government Printing Office (GPO) designated Program 1320-S for the printing and mailing of Civil Service Commission Training Announcements (Bd. Ex. 1b). 1/ The specifications indicated that the award was of a requirements contract, containing the following information to guide the contractor's bidding: "FREQUENCY OF ISSUE: No guarantee can be made as to the frequency of orders. It is anticipated that from 5 to 20 orders per week (average 50 a month) will be placed under this program. TRIM SIZE: 8 x 10 1/2" and 5 1/4 x 8" QUANTITY AND NUMBER OF PAGES: No definite quantity can be guaranteed. Anticipated requirements are: 5,000 to 20,000 copies per order; average 9,000. Number of pages: % of orders No. of pages Trim size 1 1 8 x 10 1/2 27 2 8 x 10 1/2 6 4 8 x 10 1/2 1 1 5 1/4 x 8 1 2 5 1/4 x 8 64 4 5 1/4 x 8 (Bd. Ex. 1b, Specifications at 3 of 12). The specifications also contained instructions for the packing, delivery and mailing of the announcements: "PACKING FOR DELIVERY AND MAILING: Bulk: Pack bulk shipments in shipping containers furnished by the contractor. Quantities which do not make a satisfactory container fill shall be wrapped in shipping bundles. Filled weight of containers must not exceed 45 lbs. Mailing: The contractor will be required to combine from 2 to 8 print orders (as specified by the department) into one mailed shipment, using furnished preaddressed kraft envelopes and labels for all destinations requiring a distribution of from 1 to 10 copies. Refer to 'Delivery and Mailing' hereinafter. Not all orders will be combined. * * * "DELIVERY AND MAILING: Deliver f.o.b. destination in Washington, D.C. and f.o.b. contractor's city for all mailed shipments. Quantities ordered mailed must be delivered by the contractor to the local post office for mailing. (Approx. 200 copies will be delivered to 2 local addresses). The contractor will be required to combine from 2 to 8 print orders (as specified by the department) into one mailing, using preaddressed kraft envelopes, for addresses that have a distribution of from 1 to 10 copies. All copies for addresses that have a distribution of over 10 copies are not to be held for combining. There will be approximately 3,000 to 6,000 copies of each order inserted into 400 to 600 envelopes with 10 copies or less, of each order, in each envelope. The contractor will be notified in writing, prior to the delivery date, of the print orders that are to be combined for mailing and will receive the preaddressed envelopes at that time. Refer to 'Schedule' hereinafter. * * * Note: There may be a mailing verification form furnished with each order. This form must be returned within 24 hours after shipment is made indicating the number of copies mailed and the date the shipment was made." (Bd. Ex. 1b, Specifications at 5 of 12, 6-7 of 12). (Emphasis added). The specifications contained other guidelines for bidding as follows: "BASIS OF AWARD: Award will be made to the responsible bidder whose total aggregate cost results in the lowest bid. The Government will determine the total aggregate cost by applying the prices quoted in the 'Schedule of Prices' to the following listed units of production which are the estimated requirements to produce the orders for a 1-year period under this contract. These units do not constitute, nor are they to be construed as, a guarantee of the volume of work which may be ordered under this contract for a like period of time. All needs of the Department requisitioned on this program from the Government Printing Office which are applicable to the product or products covered by these specifications will be ordered by the Government Printing Office under this contract. The item designations used herein correspond to those used in the 'Schedule of Prices'. I. (a) 4500 (1) (2) (3) (4) II. (a) 1 8 1 8 III. (b) 83 664 83 664 (a) 37,500 (c) 20 160 20 160 (b) 1,500 (d) 2 16 2 16 (c) 150 (e) 1 8 1 8 (d) 75 (f) 193 1544 193 1544 (e) 75 (Bd. Ex. 1b, Specifications at 8 of 12). The contractor was additionally advised that it was not to start production on any job until it received the individual print order (Bd. Ex. 1b, Specifications at 7 of 12). It was also informed that for each print order, a "certificate of conformance" was to be submitted to the GPO to support payment, and a sample of the information to be included in such certificates was furnished to the contractor. (Bd. Ex. 1b, Specifications at 9-10 of 12). The specifications contained a schedule of prices for the various tasks to be performed under the contract. The schedule for packing, mailing and delivery is set out in its entirety: "IV. PACKING, MAILING AND DELIVERY: The prices quoted are all inclusive and includes [sic] the cost of inserting in envelopes, cushioned shipping bags, wrapping packages, and / or packing shipping containers and all materials and services related thereto. Preaddressed 'Postage and Fees Paid' labels and kraft envelopes will be furnished by the Government. Mailed Shipments: (a) Inserting multiple copies in Kraft envelopes (preaddressed) (up to 160 leaves). . per envelope . . $ . (b) Inserting multiple copies in cushioned shipping bags or wrapped in shipping bundles (over 160 leaves up to 10 lbs.) . . . . . . . . . . per bag or bundle . . . . . (c) Wrapping or packing in shipping containers (at contractors [sic] option) over 10 lbs. up to 20 lbs . . . . . . . . . . . . . . . . . . . . . . each . . . (d) Packing in shipping containers over 20 lbs. up to 40 lbs. . . . . . . . . . . . . per container. . . . (e) Addressing additional labels for more than one parcel per destination . . . . . . . . . . . . . . . . (Bd. Ex. 1b, Specifications at 12 of 12). (Emphasis added). It should be noted at this juncture that while this portion of the schedule of prices is numbered IV, the previous portions are numbered I and II. This was apparently a clerical error with IV mistakenly used in place of III in the schedule of prices (TR-I. 41-42). There were several addenda to the specifications. One of these, Attachment B, titled "Payments," included two paragraphs significant to this appeal: "2. Final Payment Checks tendered by the Government in payment of any invoice submitted by the contractor, whether equal to or less than the amount invoiced, are tendered as final payment for all items covered by the invoice(s). Acceptance and payment of any check so tendered shall operate as a bar to the assertion of any exceptions by the contractor to the amount paid by the Government, unless the contractor notifies the contracting officer in writing within 60 calendar days of the date of such check. Such notice shall specify the specific exceptions taken to the sum tendered, and the reasons therefore [sic]. * * * "4. Failure to agree on any of the determinations to be made pursuant to this clause shall be a dispute concerning a question of fact within the meaning of the 'Disputes' clause of this contract." (Bd. Ex. 1b, Specifications, Attachment B). (Emphasis in original). The "Disputes" clause referred to is contained in United States Government Printing Office Contract Terms No. 1 (1970), which is incorporated by reference into the instant contract. (Bd. Ex. 1b, GPO Form 2826; Bd. Ex. 24). The "Disputes" clause, Article 29 of Terms No. 1, states: "Except as otherwise provided in this contract, any dispute concerning a question of fact arising under this contract which is not disposed of by agreement shall be decided by the Contracting Officer, who shall reduce his decision to writing and mail or otherwise furnish a copy thereof to the Contractor. The decision of the Contracting Officer shall be final and conclusive unless, within 30 days from the date of receipt of such copy, the Contractor mails or otherwise furnishes to the Contracting Officer a written appeal addressed to the Public Printer. The decision of the Public Printer or his duly authorized representative for the determination of such appeals shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent, or capricious, or arbitrary, or so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence. In connection with any appeal proceeding under this clause, the Contractor shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute hereunder, the Contractor shall proceed diligently with the performance of the contract and in accordance with the Contracting Officer's decision. "(a) This 'Disputes' clause does not preclude consideration of law questions in connection with decisions provided for in the paragraph above: Provided, That nothing in this contract shall be construed as making final the decision of any administrative official, representative, or board on a question of law." Appellant's bid on IV(a) was $0.18 (Bd. Ex. 21) (see page 4, supra). The price submitted by other bidders on this entry ranged from a low of $0.05 to a high of $0.26 (Bd. Ex. 1c). Braceland Press, Inc., the contractor which had performed Program 1320-S during the previous term, had bid $0.22 as its unit rate for this item (Bd. Ex. 1c). Appellant successfully performed its work under the contract (TR- I; 203). Appellant completed numerous print orders, and with each mailing submitted an invoice to the GPO for payment. (E.g., Bd. Ex. 16). On Item IV(a), appellant consistently billed at $0.18 per print order. (E.g., Bd. Ex. 16). Appellant was paid in the manner it billed without question or comment by the GPO during the course of the contract performance. The GPO Regional Printing Procurement Office, 2/ which administered the subject contract, was never involved in the billing. The contracting officer and his subordinates had no authority to stop payment on the billing. Rather, the Regional Printing Procurement Office performed only the clerical function of clocking in the vouchers, which were then submitted to the Financial Management Service at the main plant of the GPO. (TR- I; 46, 86-88, 139). On September 22, 1976, Bryan W. Mercer, Comptroller of the GPO, sent a letter to appellant. It stated, in pertinent part: "We have been informed by our auditors that you may have been overpaid on Program 1320-S in the amount of $88,371.51. * * * "You consistently billed for Item IVA on each print order when you should have billed for that item on only one print order in each group of orders combined. "If you have any additional information concerning charges for delivery and packing, let me know. Otherwise we have no choice but to effect these deductions from current invoices." (Bd. Ex. 2). On September 29, 1976, appellant, by its President, Henry L. Eikenberg, responded to Mr. Mercer's message, vehemently protesting his conclusions. The letter contained the basic themes that have been sounded throughout this appeal, namely that appellant's interpretation of the pricing was [correct.] This in turn prompted a letter from Raymond A. Hartman, Manager of the Washington, D.C., Regional Printing Procurement Office of the GPO, to appellant, on October 15, 1976. Written in his capacity as contracting officer on Program 1320-S, Mr. Hartman concurred with the conclusions of Mr. Mercer expressed in the prior letter. The letter was framed as a final decision of the contracting officer and gave notice that if Eikenberg wished to pursue this matter further, an appeal to the Public Printer would have to be filed within 30 days of its receipt (Bd. Ex. 4). On October 25, 1976, appellant filed notice of the instant appeal (Bd. Ex. 5). Additional findings of fact are contained in the course of the opinion. Conclusions of law Board Authority: Due process of law Appellant has presented a plethora of issues to the Board, raising and sometimes discarding them in quick succession. We will attempt to treat every significant argument that appellant has advanced. Several of its contentions go to the authority of the Board to make a decision in this case, and we will discuss these first. At the outset, we think that it is necessary to acknowledge the somewhat unorthodox position of appellant here, in that it is challenging the authority of the Board before which it chose to bring its case. Appellant's explanation of this is contained in one of its numerous papers filed with the Board: "The H.L. Eikenberg Company is not required by Federal or State law, by equitable principles, or by the terms of the contract which it made with the U.S. Government Printing Office to participate in this appeal. The H. L. Eikenberg Company nevertheless calls attention to the following facts: (a) Its billing procedure under the disputed contract was correct; (b) it desires to continue to perform contracts for the U.S. Government Printing Office; however, it was threatened with withholding of funds from future contract payments, unless it participated in this appeal; and (c) a review of the case demonstrates that an objective, fair Contract Appeals Board would have ruled in its favor at the conclusion of the hearing." (Appellant's Memorandum at 1). No documentation was provided concerning the alleged "threat" of withholding of funds, although we presume that the Government would follow its customary procedure in order to collect the money it deems erroneously overpaid. Since the contractor apparently wishes to dispute the contract interpretation underlying the Government position, it must follow the disputes procedure contained in the contract. However, this is not to say appellant is required to be before us; appellant has elected to contest the GPO's claim of overpayment and is doing so in what is, in our view, the proper forum at this juncture. However, while appellant's stance may seem anomalous, because the issues raised go to the Board's authority to make a decision in this case, we will address them nonetheless. Eikenberg's first challenge to the authority of the Board has been phrased in several ways during the course of the appeal, but comes down to an issue of due process of law. Essentially, appellant argues that the makeup of the GPO Contract Appeals Board is inherently unfair and deprives the contractor of the impartial hearing and decision to which it is entitled. In order that the basis of the argument may be fully understood, a few words about the GPO Contract Appeals Board are necessary. Article 29 of GPO Contract Terms No. 1, quoted above, states that a decision of the contracting officer may be appealed to the Public Printer, the official in charge of the GPO, "or his duly authorized representative for the determination of such appeals. . . ." The Public Printer has designated the Office of the General Counsel of the U.S. Government Printing Office as his representative for this purpose. 3/ Usually, the General Counsel himself serves as Chairman of the Contract Appeals Board, and two of the other attorneys from the office are selected to serve with him to make up a Board panel. Contract administration and advice to the contracting officer is generally performed by an attorney in the office specializing in procurement, who does not sit as a Board member. Also, if any member of the office is involved in an advisory capacity on any matter concerning a contract, he is of course barred from sitting on a Board that is ruling on that particular contract. The General Counsel also appoints an attorney to represent the contracting officer on these appeals; generally, but not always, and not in this case, the attorney specializing in procurement serves this function. 4/ The rationale for this informal system is primarily one of expedience, due to the relatively small number of contract appeals submitted to the GPO. No allegation has been made that any of the undersigned members who heard this appeal had anything to do with the administration of this contract. However, appellant argues that the dual role of the attorneys in the office, sometimes impartial Board members, other times advocates on behalf of the agency, renders the entire process inherently unfair. Appellant has certainly raised an important question. The Board is not unaware of the problem posed by the different roles played by its members at different times. This is especially true in a small office with only seven attorneys, one of whom generally represents the contracting officer before the Board, and can therefore not be a member of the Board. However, we are of the opinion that the appellant's argument is based on several significant misconceptions. It is important to remember that by signing a contract with the GPO, Eikenberg agreed that disputes would be decided by the Public Printer or his representative and that it would be allowed "to be heard and to offer evidence in support of its appeal." Article 29, GPO Contract Terms No. 1 (1970). 5/ This, and only this, is what the contractor is guaranteed in terms of a remedy for contract disputes at the agency level. The question is what due process requires within this contractual framework, since there is no inherent due process right to an impartial decision of any kind, much less a quasi-judicial one, at the administrative level. Constitutionally speaking, an agency may afford no due process at the administrative level, as long as de novo judicial review is available. Nickey v. Mississippi, 292 U.S. 393, 396 (1934); see generally 1 Davis, Administrative Law Treatise § 7.10 (1958). However, we must examine the due process obligation of the Government by its contracting to abide by the "Disputes" clause. This issue was thoroughly addressed in the Circuit Court of the District of Columbia in the case of Jonal Corporation v. District of Columbia, 175 U.S. App. D.C. 57, 533 F.2d 1192, cert. denied, 429 U.S. 825 (1976). In that case the question was whether the District of Columbia Contract Appeals Board violated the contractor's due process rights. The Court described the plaintiff's argument in these terms: "[S]ince the Corporation Counsel of the District of Columbia, or his designated representative, appointed all the members of the panel, and since the counsel for the District of Columbia was the Corporation Counsel for the District of Columbia, represented by an Assistant Corporation Counsel, who was both defending the District of Columbia against Jonal's claim and prosecuting its claim for liquidated damages against Jonal, it was 'being required to try its case before its adversary's lawyer'." Jonal Corporation v. District of Columbia, supra, 533 F.2d at 1195 (quoting plaintiff's brief). The court, after reviewing applicable due process principles, took particular notice of the Supreme Court's decision in Marcello v. Bonds, 349 U.S. 302 (1955), which denied a claim of a due process violation in the context of deportation proceedings: "The case has consistently been interpreted to stand for the general proposition that the combination in administrative procedures of judging with prosecuting or investigating functions is not, per se, a denial of due process. E.g., American Telephone and Telegraph Co. v. F.C.C., 449 F.2d 439, 455 (2d Cir. 1971); Kinsella v. Board of Education of Central School District No. 7, 378 F.Supp. 54, 60 (W.D.N.Y. 1974); Toney v. Reagan, 326 F.Supp. 1093, 1099 (N.D.Cal. 1971); K. Davis, Administrative Law Treatise § 13.02, p. 1975 (1958); cf. Escalera v. New York City Housing Authority, 425 F.2d 853, 863 (2d Cir. 1970)." Jonal Corporation v. District of Columbia, supra, 533 F.2d at 1196. The Court then discussed a more recent Supreme Court case, Withrow v. Larkin, 421 U.S. 35 (1975), noting "the case's pronouncement of the presumption in favor of impartiality in administrative hearings irrespective of some overlap of adjudicative, prosecutorial and investigative function . . . ." 533 F.2d at 1197. The court concluded: "In the absence of evidence of actual personal bias or pecuniary interest, we hold that the fact that the Board membership was appointed by the Corporation Counsel, and the fact that the Corporation Counsel was also responsible for appointing an individual to prosecute and defend the case on behalf of the District of Columbia before the Board, does not, per se, constitute a violation of the due process clause of the Fifth Amendment." 533 F.2d at 1197. See also Giambanco v. Immigration and Naturalization Service, 531 F.2d 141, 143-145 & n.7 (3rd Cir. 1976). Jonal Corporation would seem to preclude appellant's due process objection. Appellant's attorneys were specifically referred to this case by the Board. However, it is not addressed in any of the numerous papers the attorneys, George W. McManus and Joseph T. Williams, filed on behalf of their client in this case. Rather, appellant chose to rely on Wong Yang Sung v. McGrath, 339 U.S. 33 (1950), which involved the Administrative Procedure Act rather than due process requirements and which was, at any rate, superseded by Marcello v. Bonds, supra, and on Columbia Research Corporation v. Schaffer, 256 F.2d 677 (2d. Cir. 1958), which likewise involves the APA. The only apparent attempt to discuss or distinguish the Jonal case was the following discourse by Mr. McManus during the course of the hearing. "Therefore, having looked at Jonal Corporation versus District of Columbia, we are of the opinion that the facts here are such that there is a personal and proprietary financial interest on the part of the Board, and furthermore, in this case, there are no other members of the Board at all, no members of any independent nature, or even representing Eikenberg. It isn't like, say where you have a Board of Arbitrators where one is picked by each of the disputants, and they in turn are picked by another. So as a consequence, we feel that as indicated by Jonal Corporation versus District of Columbia, that there is a violation of the due process principles, and that it is so self- evident that it doesn't become a question of fact, but one of law, and therefore, we think that this Board should make up its own mind as to what to do, because we are going to abide at this stage procedurally, with what the Board decides." (TR-III, 23). How this argument may have been "self-evident" to Mr. McManus is not clear to the Board. 6/ We feel that Jonal Corporation puts to rest appellant's due process objection based on inherent conflict of interest in this situation. 7/ However, as Mr. McManus points out, this is completely a question of law on which the decision of this Board, by virtue of the disputes clause, is not final. Moreover, the thrust of this objection really is aimed at the degree of judicial review that appellants will be afforded when and if our decision in this case is appealed to a court of competent jurisdiction. As noted previously, appellant has contracted for a decision by the Public Printer or his duly authorized representative. We believe that we have given appellant the fair hearing which it has contracted for. We certainly have no control over whether a reviewing court will find this record sufficient to make a decision on the record according to the standards of the Wunderlich Act, 41 U.S.C. § 321 (1976), or may wish to hear the matter de novo. Whether the procedures the appellant has followed before this Board employs sufficient safeguards of due process so as to be reviewable under these standards is a question to be resolved by the court and certainly not by this Board. Appellant makes a related objection of personal bias on behalf of one or all of the members of the Contract Appeals Board. 8/ Each of the undersigned sincerely believes that he is unbiased and perfectly capable of rendering an impartial decision in this case. We are unable to do more. Again, it would seem to be up to a reviewing court to make a determination as to whether personal bias or prejudice is so apparent in the conduct of the administrative proceedings as to invalidate them, rather than for this Board to do so. Jonal Corporation v. District of Columbia, supra, 533 F.2d at 1197 Administrative Procedure Act Appellant, in its Reply to Post-Hearing Brief of Respondent, at 10-11, raises a new issue related to the prior argument, namely that "the Board operates in direct violation of the Administrative Procedures [sic] Act." Specifically, it is contended that 5 U.S.C. § 554(b)(2) (1976) has not been followed by the Board. That section states: "(b) Persons entitled to notice of an agency hearing shall be timely informed of -- (1) the time, place, and nature of the hearing; (2) the legal authority and jurisdiction under which the hearing is to be held; and (3) the matters of fact and law asserted. 5 U.S.C. 554(b) (1976). Appellant's contention is not well taken. As a preliminary matter, we point out that the particular section cited was complied with in full. However, we need not discuss this further as the statute is irrelevant to this proceeding. Leaving aside the fact that the Government Printing Office, as an Office of the Legislative Branch of the Government, 9/ is not covered by the Act, 10/ we find that the section in question has no application to contract appeals boards even in the Executive Branch. Its scope is defined as follows: "(a) This section applies, according to the provisions thereof, in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing. . . " 5 U.S.C. § 554(a) (1976). (Emphasis added). As our emphasis indicates, the key phrase is "adjudication required by statute." Without a statute requiring an adjudication, the section is not operative. E.g., Sisselman v. Smith, 432 F.2d 750, 754 (3rd Cir. 1970); LaRue v. Udall, 116 U.S. App. D.C. 396, 234 F.2d 428, 432 (1963), cert. denied, 376 U.S. 907 (1964). As we have stated previously, the adjudication in question here is required only by the pertinent contract clause. We know of no statute, and appellant has pointed none out, that requires this hearing. 11/ Jurisdictional Argument Appellant next challenges the Board's authority to decide this appeal on jurisdictional grounds. In support of this contention, it makes four inter-related points: "1. This matter is not a dispute 'arising under the contract' as defined by the Supreme Court. 2. The disputes clause was part of a contract which had expired before this claim arose. The disputes clause did not, by its own terms, survive the expiration of the contract. When the contract expired, so therefore did the validity of the disputes clause. 3. Final payment, indicating acceptance, had been made to Eikenberg by GPO before this claim arose. A presumption was thus created that this transaction was closed. 4. The only question which must be answered to resolve this matter is a legal one, of contract interpretation, which is beyond the scope of the disputes clause." Appellant's Memorandum at 6-7 Appellant correctly notes that the disputes clause in a federal procurement contract has been limited to claims "arising under the contract" as opposed to claims for "pure" contract breach. United States v. Utah Construction & Mining Co., 384 U.S. 394 (1966). 12/ Appellant then gives his view of the impact of this decision on this case: "If there were a clause in the contract relating to this specific problem, i.e., the allegation of overpayment subsequent to contract termination and a dispute were to arise in regard thereto, then the Board would have jurisdiction over that matter. Because there is no provision in the contract dealing with this situation, there is no dispute 'arising under the contract' as defined by the Supreme Court." Appellant's Memorandum at 8. Our main difficulty with the appellant's explanation is that the contract in question contains a payment clause to which the disputes clause is specifically made applicable. (Bd. Ex. 1b). Appellant never attempts to distinguish this clause. As far as we can tell, the only factor which at all differentiates this case from appellant's own hypothetical is that here the Government is seeking reimbursement of the overpayment subsequent to the contract termination. We do not see this as relevant to the operation of this provision. While the clause bars a contractor from the assertion of any exceptions to the amount paid unless the contracting officer is notified in writing within 60 days of the payment, no such restriction is placed on the Government's right to make such assertions. An examination of the cases on which appellant relies for support disclose like conceptual difficulties. For example, Transport Properties, Inc., PSBCA No. 165, 76-1 BCA 11,687 (1976), is cited in support of the contention that the Board has no jurisdiction after the expiration of the contract. However, this case deals not with a contract dispute, but with the contractor's contesting its failure to receive the award of the new contract after the previous contract, which the contractor had performed, had expired. In dismissing the claim, the Board was merely adhering to the long-standing principle that issues relating to whether a contract is awarded are outside of board jurisdiction. No such problem is presented here. Appellant also would mistakenly rely on Chrysler Corp., ASBCA No. 17259, 75-1 BCA 11,236, aff'd (in pertinent part) on reconsideration, 76-1 BCA 11,665 (1975), where the contracting officer had made a determination of allowability in accord with an allowable cost, fixed fee and payment clause which bound the Government contractually to pay in accordance with his decision. The contracting officer had mistakenly allowed certain overhead as an allowable cost. The Board did not permit the Government to recoup these costs, noting that the contracting officer did not act in excess of his authority and that the contracts specifically included a clause limiting the Government to auditing the contractor's invoices or vouchers prior to the final payment of the contract (no such provisions appeared in the Eikenberg contract). As appellant here stresses, the Board did acknowledge "the general presumption" that completion of contract performance and payment of "a stipulated consideration" bars the Government from reopening the transaction. 75-1 BCA 11,236 at 53,491. However, appellant fails to mention the Board's language immediately following this principle: "The Government has cited many cases in support of its contentions that (1) the excess of the accrual amounts over the insurance premiums were wrongfully or erroneously paid to appellant and are recoverable by the Government and (2) that final payment was not a bar to recovery by the Government of wrongful or erroneous payments. We recognize that in given situations the Government may recoup monies wrongfully or erroneously paid and that final payment may not be a bar to recovery by the Government of such payments; however, this is not one of those situations." 75-1 BCA 11,236 at 53,491 (Emphasis added). 13/ We believe that the claim of erroneous overpayment here is one of these given situations. In our view, the decision of the Armed Services Board of Contract Appeals in A. Padilla Lighterage, Inc., ASBCA No. 17288, 75-2 BCA 11,406 (1975) (cited by neither side here) is dispositive on this point. In that case, the Board considered a demand for repayment by the contracting officer for an amount overpaid to a contractor due to its use of a rate of Foreign Exchange other than that specified by the contract. The case arose because the General Accounting Office, a year after the last payment on the contract had been made, determined that there had been an overpayment. Because of the similarity to the case at bar, we quote at length from the Board's response to appellant's jurisdictional attack in that case: "Appellant contends in respect to the exchange rate problem that the Government's claim should be dismissed because there is no clause in the contract specifically authorizing the Government to claim a refund of payments erroneously made. Appellant relies upon the rationale of Potomac Power Company, GSBCA No. 3448, 72-1 BCA 9419. This contention, of course, is directed to the question of our jurisdiction. In Potomac Power Company, where a refund was sought, the GSA Board concluded that it did not have jurisdiction because there was not a clause providing for a refund. We have not taken such a limited view of our jurisdiction and are persuaded that we should not do so. See J. J. Fritch General Contractor, Inc., ASBCA Nos. 13445 and 13672, 70-1 BCA 8123, Harrington and Richardson, Inc., ASBCA No. 9839, 72-2 BCA 9507, Roy F. Weston, Inc., ASBCA No. 17490, 73-2 BCA 10,188; Eaton Corporation, ASBCA Nos. 17713 and 18378, 74-2 BCA 10,697. What is involved here is the recoupment of a erroneous payment made to appellant by means of an 'offset' against funds admitted owing to the appellant. We observe first that the dispute between the parties clearly arose out of the performance of the contract and is thus a dispute as to a question of fact arising under the contract. The claim is one which the Government could assert as it did. The contract provided, clearly in our view, in what manner appellant was to be paid it did so in the General Provision entitled 'Payments' and the Special Provision entitled 'Currency to be Used for Payments'. The question for us to decide is whether appellant was paid in accordance with those provisions. In our view if it was not then those same provisions provide ample basis upon which we can determine the proper payment to which appellant is due. We conclude that we have jurisdiction to make that determination." 75-2 BCA at 54,307-08. As we see it, this case stands for the proposition that a contract appeals board has jurisdiction to rule on an alleged overpayment by the Government to a contractor due to the contractor's alleged misinterpretation of contract terms, whether or not the contract has expired when the Government seeks payment. Appellant's citations for the proposition that contract interpretation is a question of law precluding a decision by this Board are no more persuasive. We are, of course, bound by the Court of Claim's view "that interpretation of contract documents is a judicial function to be performed independently of any Board decision." Arundel Corp. v. United States, 207 Ct. Cl. 84, 515 F.2d 1116, 1123 (1975) (citation omitted) (one of several cases cited by appellant for this proposition). However, these cases do not say that a Board may not interpret contract documents. They only state that on interpretation of contracts, as with any other issue of law, a court may substitute its judgment for that of the Board, which it is not able to do concerning findings of facts made upon substantial evidence. This is the mandate of the Wunderlich Act, and goes to the standard of judicial review rather than Board authority. In fact, the disputes clause specifically states that it "does not preclude consideration of law questions in connection with decisions" resolving factual disputes. Article 29, United States Government Printing Office Contract Terms No. 1 (1970). We thus deny Eikenberg's motion to dismiss the claim of the contracting officer due to lack of Board jurisdiction. Estoppel Appellant's next argument is a sympathetic one, namely that the GPO should be estopped from billing for the overpayment because: "[t]he evidence is that the GPO accepted and paid Eikenberg's charges under Item IV(a), throughout the term of this Contract without ever having questioned or challenged the fact that Eikenberg had billed this item on the basis of the number of print orders inserted in envelopes by Eikenberg employees. Moreover, the GPO frequently did make adjustments and changes in invoices submitted by Eikenberg with regard to other items of work performed under this Contract by Eikenberg and also on Item IV(a) charges. In fact, when Item IV(a) billings were corrected by GPO, even these corrections were made on a per print order basis. On one work sheet the GPO had even written 'per print order' next to such a change, indicating that the GPO had interpreted this charge identically to Eikenberg's interpretation." Hearing Memorandum at 11. (Emphasis in original). See Bd. Ex. 17. While we accept appellant's view of the facts quoted above, we cannot accept the legal conclusion it draws. While such a course of conduct might well estop a private party in this situation, parties dealing with the Federal Government are bound by different rules. We found above that the contracting officer had no relationship to the payment of vouchers pursuant to this contract. In Deloro Smelting & Refining Co. v. United States, 161 Ct. Cl. 489, 317 F.2d 382 (1963) (which appellant was invited to distinguish and did not address), the court dealt with a similar situation and resolved it in this fashion: "This is another case (see W. H. Edwards Engineering Corp. v. United States [161 Ct. Ct. 322], decided April 5, 1963) in which the evidence of the parties' subjective intention is of little assistance. The critical issue was not broached until 1954 and there is no adequate showing of what the parties consciously thought about the point, if it was in mind at all, prior to that time. In this connection, we attribute little significance to the course of payments by defendant (in 1951, 1952, and 1953) using the date of actual delivery for the cobalt market price quotation or for the dollar rate of exchange. These payments were made, more or less routinely, by fiscal and accounting employees who had no procedures for determining whether the shipments were late and did not concern themselves with that problem. The defendant's contracting officers were wholly unaware of the basis of the payments, of plaintiff's filing of amended invoices . . ., or of the existence of any issue between the parties as to the proper method of calculation. If the Government officials whose actions are cited as revealing the defendant's own construction of a contract are not significantly tied to the administration of contract performance, their conduct is meaningless as an aid to contract interpretation. When the canon of construction speaks of giving weight to the 'parties'' own interpretation, it refers, so far as the Government is concerned, to a responsible officer assigned the function of overseeing the essentials of contract performance -- not to any federal employee or officer whose work happens to be connected with the contract. Agency fiscal or finance offices are not ordinarily a significant part of the process of negotiating and performing contracts. Cf. United States v. Joseph A. Holpuch Co., 328 U.S. 234, 240-241, 66 S.Ct. 1000, 90 L.Ed. 1192 (1946). The auditors' payments on which plaintiff relies do not, therefore, advance its cause." 317 F.2d at 385-86 (footnotes omitted); see also, A.Padilla Lighterage, Inc., supra, at 54,308. Even had the contracting officer been aware of the contractor's method of billing, appellant's argument would fall before the established principle that the Government has not only the right, but indeed the constitutional duty, to recover erroneously paid sums, "and that it cannot be estopped from doing so by the mistakes of its officers or agents." Aetna Casualty & Surety Co. v. United States, 208 Ct. Cl. 515, 526 F.2d 1127, 1130 (1975), cert. denied, 425 U.S. 973 (1976); Fansteel Metallurgical Corp. v. United States, 145 Ct. Cl. 496, 172 F.Supp. 268, 270 (1959). We therefore hold that the GPO is not estopped from collecting the money in question if erroneously paid. Contract Interpretation: The meaning of "per envelope" This brings us to the central question of appellant's case: whether the payments in question were indeed erroneous. Appellant makes this attack on several fronts. One of its stronger arguments is that in the preceding year of the contract, the previous contractor had billed in the same manner as Eikenberg on the relevant item. 14/ Eikenberg concludes: "In a long line of cases, the Court of Claims has firmly established the rule that the parties' interpretation of a previous contract containing specifications identical to those currently in dispute may be determinative of how the disputed specification should be construed." Appellant's Memorandum at 15. While this is certainly a valid point of law, we cannot find it dispositive in this case. First, the argument is essentially that the Government has waived its current interpretation of the contract provision in question and, having done so, is estopped from asserting it. Gresham & Company, Inc. v. United States, 200 Ct. Cl. 97, 470 F.2d 542, 555 (1972). However, Gresham also recognizes that such a waiver "requires a decision by a responsible officer assigned the function of overseeing the essentials of contract performance . . ." 470 F.2d at 555. In light of the court's view of the proper authority concerning payment, as discussed above, and recognized by the citation of Deloro Smelting, supra, in the Gresham case, the action characterized here as a waiver was performed by Financial Management employees having nothing to do with the administration of the contract. 15/ Moreover, Eikenberg was not the contractor on the preceding contract, and presented absolutely no evidence that it knew of or relied on the prior contractor's bid. Nor did Eikenberg present any evidence that the GPO contracting officer should have known of any different interpretation from another source, for instance the view of the Civil Service Commission, the agency for which the materials were procured. With an evidentiary showing on either of these points, the argument would have been considerably more persuasive. However, Eikenberg's counsel made the surprising decision to present no case whatsoever at the hearing, and thus failed to develop any support for these contentions. (TR-IV 3, 19). 16/ Eikenberg contends that the provision in question is ambiguous, and should thus be construed against the Government. Hearing Memorandum at 7-11. The claimed ambiguity, it continues, led it to bill for Item IV(a) on the basis of a particular amount per print order, rather than per envelope. It is undisputed that appellant did bill (and was paid) on per print order basis on this item. The Government's position, of course, is that there is no ambiguity and Item IV(a) should have been billed and paid on a per envelope basis. Appellant pursues its ambiguity argument in several ways. We will explain its contentions to the best of our ability, but we find none of them convincing since none credibly provide an explanation of the meaning of the phrase other than what it says on its face, namely that the contractor was to bill on this item, inserting multiple copies in pre-addressed envelopes, by the envelope. 17/ If it had not billed for this item in the manner it did, appellant contends, not it would not have been compensated for "performing the individual tasks required of it in inserting each of the print orders being held for combination." Hearing Memorandum at 8. By not breaking down the schedule of prices to provide for separate bids if various numbers between 2 and 8 print orders were required to be combined, the argument continues, see Bd. Ex. 1b at 5 of 6, the Government "caused a substantial uncertainty of meaning to exist in the Contract." Hearing Memorandum at 9. Additionally, it is alleged that the trade practice in the printing industry supports this interpretation of this clause. Eikenberg explains what it feels is wrong with the phrase in question, in language which is simply not susceptible of paraphrasing: "Within IV(a) there is an omission which, if supplied, would explain when Eikenberg should have billed $ .18. One of two phrases could be inserted in order to give IV(a) precise meaning. The first phrase which could be inserted after the word 'copies' is 'of a print order'. The second phrase which could be inserted is 'of multiple print orders'. Because both phrases were omitted from the contract, Eikenberg interpreted the contract in the same manner as the prior contractor, and consistently with the rest of the contract. There was substantial testimony which proved that, wherever the word 'copies' was used in other places in the contract, it meant 'copies of a print order'. There is no justification in the contract for interpreting the word 'copies' in IV(a), page 12 of 12, differently from the word 'copies' when used elsewhere. The word 'copies' suggests a clear meaning. A copy of a document and multiple copies of a document must be identical to that document. Because a copy of one print order is not a copy of another print order, the omitted term following 'copies' must logically be 'of a print order' or copies of the same document. 'Copies' must mean copies of the same thing, because it is not described any further, and there is no ambiguity when IV(a) is read the way Eikenberg interpreted it." Appellant's Memorandum at 19. (Emphasis in original.) Appellant also claims that if the words "per envelope" control the price in Item IV(a), GPO's position is that the "bare words closest to the price are controlling." 18/ This would mean that appellant had been underpaid for other items. All of these arguments fly in the face of law as well as common sense. Taking the last first, we quote in full the portion of the contract appellant uses as an example: "II. PRINTING AND BINDING: The prices quoted are all inclusive and include the cost of negatives of text pages, imposition, offset platemaking, press makeready and running, paper, ink, and binding. Printing in black or any single color of Ink Printing on Printing on 160 lb white offset 140 lb colored offset First 1,000 Each add'l First 1,000 Each add'l copies 1,000 copies copies 1,000 copies (1) (2) (3) (4) 8 x 10-1/2": (a) One side only $ $ $ $________ (b) 2 pages...... ________ ________ ________ ________ (c) 4 pages...... ________ ________ ________ ________ 5-1/4 x 8": (d) one side only . _______ ________ ________ ________ (e) 2 pages ....... _______ ________ ________ ________ (f) 4 pages ....... _______ ________ ________ ________ (Bd. Ex. 1(b) at 11 of 12.) If proximity controls, this argument goes, the bid in II(c)(l), for instance, would be for four pages, rather than the first 1,000 copies of four pages, as is clearly indicated by the layout of the item, as appellant agreed, and so bid. However, the Government's position on Item IV(a) does not depend on mere proximity. The phrase clearly indicates that the bid is to be per envelope, and not in some other unit. No other unit, including print orders, are mentioned. There is no other guide for making the price determinations, as there is with the table format employed for the bids in Part II. Neither this or the previous argument, gives any explanation of what "per envelope" means were we to accept Eikenberg's interpretation. This is contrary to the well established principle that a reasonable construction of a contract does not leave a specific term inoperative or superfluous. Astro-Space Laboratories, Inc. v. United States, 200 Ct. Cl. 282, 295, 470 F.2d 1003, 1010 (1972); Bishop Engineering Co. v. United States, 180 Ct. Cl. 411, 416 (1976). Nor do these arguments explain why appellant apparently had no trouble reading Items IV(b) through (d),as ''per bag or bundle," "each," and "per container," respectively, when bidding. Yet "per envelope" occupies exactly the same position in its particular item as those phrases do in theirs. See Findings of Fact at 4 above. Appellant contends that the contract terms in question contains "an omission which, if supplied, would explain when [sic] Eikenberg should have billed $ .18." Appellant's Memorandum, supra.. But this is simply creating an ambiguity on the part of appellant. "[A]ny word or group of words can be twisted, by strained construction, into an ambiguity." Southern-Construction Company v. United States, 176 Ct. Cl. 1339, 1362, 364 F.2d 439, 453 (1966); Aero Mayflower Transit Company v. United States, 162 Ct. Cl. 233, 237 (1963). Appellant is attempting to take a plain phrase out of the contract and call it an ambiguity. This is certainly an invalid interpretation of the canons of contract construction, as we understand them. Nor are we more impressed by the "trade custom" argument based on the billing of the previous contractor and supported by appellant's one witness. First it must be remembered that "[a] trade practice cannot prevail over unambiguous provisions of a contract. . . ." George Hymen Construction Company v. United States, Ct. Cl., 564 F.2d 939, 945 (1977). Not only does the phrase clearly ask for a bid "per envelope", the contractor is also warned that "[t]he prices quoted are all inclusive and includes [sic] the cost of inserting in envelopes . . . and all materials and services related thereto." (Bd. Ex. 1b at 12 of 12). Again, this argument simply does not explain what "per envelope" is doing in the clause, and appellant's expert was not any help in resolving this. (TR-I, 177.) Nor did appellant's expert very convincingly explain why Item IV(a) should have been billed any differently than the other items in section IV. (TR-I, 182, 183.) Even so, no evidence was presented that appellant knew of or relied on the previous contractor's bid. We have no reason to disbelieve appellant when it states that bidding "per envelope" would have made it impossible to tell exactly how much to bid, since the contractor would not be certain as to how many print orders would be in each mailed shipment. However, this is what the contract calls for. If a contractor chooses to interpret a contract in such a way so as to ignore a specific provision, it must rely on this interpretation at its own risk. In other words, if by its interpretation, Eikenberg created an ambiguity sufficiently patent, it should have inquired of the Government as to the meaning of the phrase. Burnett Electronics Lab, Inc. v. United States, 479 F.2d 1329, 1332 (Ct. Cl. 1973); Space Corporation v. United States, 200 Ct. Cl. 1, 470 F.2d 536 (1972). The record does not reveal that appellant ever made such an inquiry. We thus must conclude that there was no ambiguity in this contract, and that without such ambiguity, the Government's position, based on the plain words of the phrase in question, must prevail. Without such ambiguity, rules of construction calling for interpretation against the Government, as the drafter of the contract, are simply inappropriate. We can best sum this up by quoting the Court of Claims on this issue: "Contracts are not necessarily rendered ambiguous by the mere fact that the parties disagree as to their meaning. There must be a reasonable uncertainty of meaning. . . . The fact that the interpretation placed by plaintiff upon the specifications may be considered conceivable, is not the proper basis for construction of the contract against the author of the language." Southern Construction Company v. United States, 176 Ct. Cl. 1339, 1361, 364 F.2d 439, 453 (1966) (citation omitted); ITT Arctic Services, Inc. v. United States, 207 Ct. Cl. 743, 524 F.2d 680 (1975). Damages Appellant's next contention is that it must prevail in this appeal because the Government has failed to prove damages. In order to prove its case, appellant argues, the GPO would have to show not only that "certain payments were not justified by terms of the contract" but also that "those certain unjustified payments, when totaled, amounted to a sum certain." Appellant's memorandum at 23. Appellant is correct, and the Board has already so ruled, see TR- I, 3-4, with respect to the Government having the burden of proof in a claim of overpayment. However, appellant was asked to frame the issues in this case as early as September 2, 1977. At no time, until almost a year later, actually during the formal hearing, did appellant make any objection to the mathematical calculations of the overpayment. Rather, appellant consistently contested only the contract interpretation issues. 19/ Lack of timeliness notwithstanding, the appellant's position is legally incorrect. Nothing forecloses this or any other Board from reaching a decision on the issue of liability but remanding on quantum. Such severance of issues is common both before the various Boards of Contract Appeals and the Courts. Appellant has not cited any authority that would lead us to a contrary conclusion. We do agree with appellant that the Government has not prove the specific amount of overpayment in issue. However, we have found that the Government's interpretation of the contract was correct, and that Eikenberg, since it by its own admission billed per "print order," rather than "per envelope" on the provision in question, overbilled the Government. Having framed the issues in terms of liability, rather than amount, appellant will not be allowed to say that because the Government did not prove a specific amount, it may not collect for the erroneous overpayment. We must also put to rest the mistaken notion that "damages" is somehow an element in the Government's case. We know of no case involving a claim of overpayment that so holds, and appellant cites none. Representations made during argument indicate that counsel for appellant is perhaps viewing this issue in terms of breach of contract. We reiterate that breach of contract is not the issue here. Moreover, as we understand it, damages is not an element of a breach of contract claim. 20/ On the contrary, even "[i]f the aggrieved party has suffered no damage" in the case of a breach "he is entitled to a judgment for nominal damages . . . to symbolize vindication of the wrong done to him." J. Calamari & J. Perillo, Contracts, § 203 (1970) (footnotes omitted). This does not mean that appellant owes the Government the amount mentioned in the original final decision of the contracting officer. We believe it is incumbent on the contracting officer in a case of this nature to fully account to the contractor concerning the amount owed. If a dispute later arises between the parties concerning the amount, the contractor may appeal the final decision of the contracting officer as to amount to the Board or its successor. We feel this is the only fair result. We certainly are not going to attempt to ascertain quantum on this record, nor estop the contractor from contesting the Government's estimation of quantum. It is simply not an issue presented in this appeal. Evidence Tampering Appellant charges, in its Reply to Post-Hearing Brief of Respondent, pages 1-5, that: "[a]ccounting documents, which had not been admitted in evidence, have been placed in the Appeal evidence file. These documents had been changed, in ink and by hand, subsequent to the Hearing. By far more serious changes additionally appeared [sic] to have been made on the documents in evidence, by persons unknown, which changed or corrected billing totals thereon. It is impossible, as a result, to determine how payment was made thereunder, whether according to the original totals, or according to the totals as changed. Because GPO produced no testimony concerning the vouchers as it was instructed to do, (supra ) the invoices themselves cannot speak as to how the payments were made by GPO." Appellant's Reply to Post-Hearing Brief of Respondent at 3-4. Appellant's counsel was asked to substantiate this charge, and declined to. We must only assume that he cannot. However, due to the gravity of the charge a few comments are in order. The evidence apparently referred to is a box of vouchers admitted as appellant's Exhibit C and D during the hearing. Because of the bulk of these exhibits, copies were not made by the parties as was done with the rest of the evidence. The evidence was subject to the custody of the Board. Both appellant's and the contracting officer's representatives were permitted access to this material and were allowed to study it without hindrance by the Board. As we have stated, we reach no decision in this case on the quantum owed by Eikenberg. For that reason, the Board has had no need to consider the allegedly "tainted" evidence in reaching its decision. The evidence is, therefore, excluded from the record for decision in this case. The Board will retain custody of the exhibits in question, however, until the parties can agree on the disposition of them in light of this decision. Conclusions We are not questioning the contractor's good faith in its contention that it billed according to the manner in which it understood the contract provision. Nor are we questioning that the sudden receipt of this claim of over payment was, to say the least, an unpleasant surprise to the contractor. However, the fact that a hardship, even of cataclysmic proportions, may result from the Government's recouping this erroneous overpayment is not a legal defense. 21/ Contrary to appellant's supposition, interpretation of Federal procurement contracts are governed by Federal law. E.g., United States v. Seckinger, 397 U.S. 203, 209 (1970); United States v. County of Allegheny, 322 U.S. 174, 183 (1944). 22/ We acknowledge that a very different result might be possible by the application of state law if a private contract were at issue. For example, the delay in claiming the overpayment might well be cause to invoke laches. However, the doctrine of laches has no application to the Federal Government. Seee.g., United States v. Summerlin, 310 U.S. 414, 416 (1940); United States v. Ulvedal, 372 F.2d 31, 35 (8th Cir. 1967) (Blackmun, J.). We are therefore constrained to reach the legal conclusion which we do. The contract may not be a model of good draftsmanship, but this does not render it legally ambiguous. Likewise, we find the delay with which the Government acted in this case very unfortunate. However, we are not able to let these considerations sway us. We have reached, in our judgment, the proper legal decision, and the only possible legal decision in this case. We believe that one more comment is in order. From the record, and previous comments in this decision, it is apparent that appellant's counsel was less than pleased with this Board. However, at no time did we let the conduct of counsel interfere with our judgment in this case. We attempted to extend every convenience to appellant and its counsel. For example, when this case first arose, appellant requested an informal hearing, without a verbatim transcript. We granted this request, and held that hearing. When appellant was dissatisfied with the record produced as a result, we gave him the opportunity to request a formal hearing to supersede the prior, informal one. For reasons known only to appellant's counsel, appellant, except to a limited extent previously noted, failed to present any case at the formal hearing. Perhaps a different result might have been possible had appellant presented additional evidence in support of some of its many contentions. However, we are bound by the record before us, and on this record, we have reached the only decision possible. Decision For the reasons stated above, we reach the following decisions: Appellant's motions to dismiss are denied. Appellant's "counterclaim" is dismissed. The appeal is denied in its entirety. The Board's decision is limited to the proper interpretation of the contract terms in question. Thus, the Board makes no findings and contract terms reaches no decision on the amount owed by the contractor resulting from its improper interpretation of the contract specifications. This decision is without prejudice to the contractor if, after a final decision of the contracting officer specifically accounting for the amounts deemed owed under this contract, it wishes to contest the amount and appeal the decision to the appropriate authority. _______________ 1. For convenience, during the course of the appeal, all exhibits in the appeal file, whether submitted to the Board by the contracting officer or appellant, have been designated as Board exhibits except for those introduced at the hearing by appellant. Certain pleadings were numbered as exhibits, and these exhibit numbers are deleted (Bd. Exs. 7-10, 18-19). 2. The Washington, D.C. Regional Printing Procurement Office is located separately from the central GPO facility. 3. This procedure has changed since the time of the appeal. The new procedure, however, will be even less formal than the current one. 4. The contracting officer's representative in this case is Lawrence W. Kennelly, Esq. At the time of his appointment to the case by the Chairman, he was Associate General Counsel of the GPO, but has since moved to the Office of Labor-Management Relations. The procurement specialist who generally served in this role, could not be appointed because the Board had consulted him on a legal matter related to this appeal shortly after it was filed. It should also be noted that apart from the procurement specialist, the office attorneys spend the remainder of their time on litigation and other matters unrelated to procurement. 5. The clause language tracks that of the standard federal disputes clause. Compare 41 CFR § 1-7.102-12 (1978). That the contractor is bound by the remedy contracted for was established in United States v. Moorman, 338 U.S. 457 (1950). 6. Mr. McManus apparently withdrew the proprietary interest charge later on. See Appellant's Memorandum at 4. 7. Appellant also rests this contention on various portions of the Code of Professional Responsibility and the Canons of Judicial Ethics. After careful examination, we conclude that we are not in violation of any of the CPR guidelines cited, and that the Canons do not apply to us. A collateral attack by appellant on this point failed when the Committee on Professional Responsibility of the American Bar Association declined to issue an opinion on this matter. Appellant then sought the opinion of the Board on Professional Responsibility of the District of Columbia bar. By letter dated April 12, 1979, that Board concurred in our view that the CPR sections cited were irrelevant to this situation. 8. The bias objection is specifically permitted by Jonal, 533 F.2d at 1197. While this seems to be directed to all Board members, only the Chairman is referred to in the specific allegations. Of course, each Board member speaks for himself on this issue and cannot speak for his colleagues. 9. See United States v. Allison, 91 U.S. 303 (1975); Duncan v. Blattenberger, 141 F.Supp. 513 (D.D.C. 1956). 10. The APA does not cover Congress. 5 U.S.C. 551(1)(A)(1976). 11. In the contract appeals context, this point has been recognized by several authorities. See United States v. Carlo Bianchi & Co., Inc., 373 U.S. 709 (1963) (Douglas, J., dissenting); S. REP. No. 95-118, 95th Cong., 2d Sess., 15 (1978). The point is not without some controversy, however. Compare Cuneo, The Administrative Procedure Act Applies to Boards of Contract Appeals, 1 PUB. CONT. L.J. 18 (1967), with Davis, The Administrative Procedure Act Applies to Boards of Contract Appeals, 1 PUB. CONT. L.J. 4 (1967). 12. The Contract Disputes Act of 1978, 41 U.S.C. 601 et seq, eliminates this difficult and artificial distinction, at least for future Executive Branch contracts. See section 8(d), 92 Stat. 2386. 13. Certain of appellant's other citations deserve brief mention. We do not find Compudyne Corporation v. Maxon Construction Company, 428 F. Supp. 83 (1965), persuasive, as it concerns a contract between private parties. Likewise, Fitch v. Atomic Energy Commission, 419 F.2d 1392 (C.C.P.A. 1974), is not helpful, as it involves interpretation of a particular specialized statute. 491 F.2d at 1395. And while the district court in United States v. P. J. Heaton, 195 F.Supp. 742 (D.Neb. 1961) did hold that the disputes clause did not apply to controversies arising after contract termination as an alternate ground for its decision, this view has been disapproved by the Court of Claims as well as the circuit courts that have considered the issue. E.g., Bar Ray Products, Inc. v. United States, 163 Ct. Cl. 836, 837 (1963) ("We do not agree that disputes issues may not in any case legally arise after the contract has been completed"); United States v. Taylor, 333 F.2d 633, 640 (5th Cir. 1964) ("better view" is that disputes clause is not limited to disputes arising during contract performance); Silverman Brothers. Inc. v. United States, 324 F.2d 287, 289 (lst Cir. 1963) (citing cases). See also the cases discussed in text. 14. The previous contractor referred to was Braceland Brothers, Inc. A similar appeal by that contractor was denied by the Board on July 5, 1978. The contractor after appellant apparently bid this item on a "per envelope" basis. 15. Without extensive discussion, we note that we have read appellant's other cases on this point and found them unpersuasive. 16. While appellant presented no evidence subsequent to the Government's case, one witness for appellant, Willard Brown, had been permitted to testify out of order for appellant's convenience. Giving appellant the benefit of doubt, we therefore have considered Mr. Brown's testimony in deciding its appeal. We also have considered a variety of documentary evidence which appellant submitted or requested to be submitted during the contracting officer's case. The previous informal hearing held in this matter has been disregarded and superseded by the formal hearing which is contained in the transcript. 17. Appellant presented no evidence that the envelopes were not furnished. However, in appellant's submission labeled "Counterclaim", it is stated that such envelopes were furnished to the contractor. 18. This argument is presented in what is termed as appellant's "Counterclaim". Since, as we have discussed above, appellant is essentially bringing this appeal, notwithstanding the Government having the burden due to this being a claim of overpayment. We do not understand how a counterclaim can be filed by the moving party. At any rate, we address the contentions contained therein and dismiss the counterclaim in its entirety. 19. Appellant's initial statement of issues appeared in its Pre- Hearing Statement, filed October 21, 1979, at 2-3: "1. The Contract is unconscionable if interpreted and enforced in accordance with the interpretation placed thereon by the GPO. 2. Appellant's interpretation is within the zone of reasonableness. 3. Appellant relied on its interpretation of the Contract. 4. Appellant was not under a duty to inquire. 5. The GPO is estopped to deny that Appellant's interpretation of the Contract is reasonable and correct. 6. The GPO has accepted and acquiesced in the course of performance of The H. L. Eikenberg Co. under the Contract, with full knowledge of the nature of that performance and without objecting thereto during the life of the Contract, and has thereby waived any terms of the Contract which it alleges to be inconsistent with that course of performance." Quantum of overpayment first was raised by appellant at the formal hearing itself. All of the issues listed are addressed by this opinion, as well as others that were not timely raised but the Board viewed as significant enough to warrant decision. 20. Mr. McManus, counsel for appellant, made a somewhat oblique reference during argument to a Michigan case concerning destruction of cattle in support of the contrary conclusion (TR- III; 113). The case was never subsequently cited in the papers submitted by appellant. 21. See Federal Food Marketers Co., AGBCA 447, 448, 76-1 BCA 11,709 at 55,824, where the Board states: "There is no provision for granting equitable relief on the basis of hardship under the contracts. The Board can only grant relief in situations where an administrative remedy is provided under some remedy or relief clause in the contracts. United States v. Utah Construction and Mining Co. [11 CCF 89,489], 384 U.S. 394 (1966); Werner G. Smith, Inc., AGBCA No. 383, 75-1 BCA 10,992 (concurring opinion). This disposes of appellant's "unconscionability" argument. See Bd. Ex. 14. 22. The only exception would be where there is no federal precedent and no express contract language governing the issue, R. Nash & J. Cibinic, 1 Federal Procurement Law, 802 (3d. ed. 1977) (citing cases). This is not the case with any of appellant's arguments.