MERRICK BUSINESS FORMS, INC. Appeal dated March 24, 1981 Hearing held on June 11, 1981 Decision dated June 30, 1981 PANEL 81-6 THOMAS O. MAGNETTI, Chairman ROBERT G. COX, Member JEFFREY L. BOWMAN, Member PRELIMINARY STATEMENT This is a decision on a timely appeal filed by Merrick Business Forms Inc. (hereafter referred to as the contractor). The appeal disputes the final decision of the Contracting Office [sic] to recover an overpayment made to the contractor. The appeal is taken pursuant to Article 3 (the "Disputes" clause) of the Government Printing Office (hereafter the GPO) Contract Terms No. 1, as incorporated by reference into the specifications of this contract. Exhibit 1 of the Appeal File (hereafter the A.F.). The contract required the contractor to produce forms of various sizes for the GPO as requested by the Department of Army. Sometime afterwards the contractor submitted its voucher for work done under Print Order 39 and was subsequently paid. Six months later the GPO discovered that the contractor had billed incorrectly and acted to recover the amount which it had overpayed. The overpayment was recovered when the GPO subtracted the incorrect amount from subsequent billings. The contractor claims that it is entitled to this amount on the grounds that the procedure it used to determine billing was more reasonable than the method used by the GPO. The determination of the appropriate billing procedure affects not only this print order but subsequent print orders since the contractor submitted these later vouchers using the Government's method of computing its charges instead of the method it used for billing for Print Order 39. In accordance with the request of the contractor dated March 24, 1981, an informal hearing before a panel of members of the GPO Contract Appeals Board was held on June 11, 1981. The decision of this Board is based solely upon the record as evidenced by the documents and exhibits that constitute the Appeal File and the testimony given at this hearing. This procedure is in accordance with GPO Instruction 110.10A, titled "Board of Contract Appeals Rules of Practice and Procedure," dated September 17, 1980. STATEMENT OF FACTS On March 7, 1980, in accordance with standard GPO contract award procedures, a multiple award term contract (Program 1625-M) for the production of forms of various trim sizes was awarded to the contractor for the period of April 1, 1980 to March 31, 1981. In the production of these various sized forms the contractor was required to perform such operations as negative making, offset printing, cutting, drilling, packing and shipping. A Purchase Order (J3569) was issued to the contractor covering this term contract. According to this order the work was to be performed in strict accordance with the contractor's price quotation and the specifications. Exhibit 2, A.F. This Purchase Order was supplemented by print orders for each separate job placed with the contractor over the term of the contract. As the contractor performed the work on each print order or series of print orders, it submitted a voucher billing the GPO according to the type of work performed and the number of forms produced. Because this contract required the production of forms of various sizes, the specifications set out the various trim sizes, measured by inches, that these forms should take (e.g., 8" x 12-1/2" to 10-1/2" x 12", 10-1/4" x 15-1/4" to 8-1/2" x 22", etc.). Exhibit 1, A.F. As the form progressed in size, the cost of the form as set out in the schedule of prices increased. The contractor was cautioned, however, that if there were a form required with a trim size not listed within one of the specific size categories listed in the schedule of prices, the item was to be charged under the applicable square inch group (e.g., 126 sq. in., 187 sq. in., etc.). The warning read as follows: "In case there is a requirement for a form with a trim size not listed, it is to be charged under the applicable square inch group." Page 11, Schedule of Prices, Id. See also similar language on pgs. 6 and 12, Id. The contract established two methods for computing the costs of varying trim sizes; by length and width of the form, and if the form was irregular and did not fall within these enumerated sizes, then by the total square inch size of the individual form. The contractor prepared a voucher for billing on Print Orders 37, 39, 48, 86 and 96 on June 6, 1980 and submitted it to the GPO for payment. Exhibit 4, A.F. Payment for this work was tendered for the full amount charged. Approximately six months later, the GPO discovered that the billing for Print Order 39 was in error as it was computed using incorrect trim size calculation. Whereas, the original billing for this Print Order was for $70,603, the correct billing according to the GPO should have been $52,603, a difference of $18,000. Exhibit 5, A.F. The contractor, when faced with a large number of irregular forms that did not fit into any of the enumerated categories set forth within the Schedule of Prices, had billed not by using the square inch category but by using the next larger category of trim size by length and width. Exhibit 6, A.F. The contracting officer notified the contractor by letter dated January 21, 1981 of this error and of the necessity to recover the amount overpaid. Id. Following this notification, the contractor challenged the action on the grounds that the Government's price schedule was not fair and that since the GPO had accepted the product and paid for the Print Order, it should be barred from recovering the amount. Exhibit 4, A.F. By letter dated March 20, 1981, the contracting officer informed the contractor of his final decision to recover the money involved in the overpayment of this Print Order. Exhibit 9, A.F. The contractor appealed this decision by letter to the Public Printer dated March 24, 1981. In this letter, the contractor requested an informal hearing. See also, contractor's letter of April 16, 1981, which reiterated this request for a hearing and referred to a particular provision of Contract Terms No. 1 as having some bearing on this appeal. This provision dealt with the necessity for contractors to assert claims concerning the payment for work within a certain amount of time following the tender of payment by the Government. The contractor asserted that the Government should also be required to assert any claim dealing with payments to contractors within a similar amount of time. Pursuant to this request a hearing was held on June 11, 1981, before a three member panel of the GPO Contract Appeals Board. At this hearing, the representative of the contractor explained that the contract as written was unfair, arbitrary and capricious. The contractor presented evidence that this contract was inconsistent with current GPO procurement practices in that the billing structure used by the Government and the source of this claim is no longer used by the GPO. Exhibit 7, A.F. At the end of this hearing, the Chairman asked whether any further relevant or internal evidence was to be rendered to supplement the record. As no additional evidence was offered, the record was closed. It should be noted that the contractor did submit supplemental evidence on June 2, 1981. At the hearing, the Chairman reserved the right to rule on the admissibility of this evidence. It is the ruling of this Panel that the evidence as submitted on that date by the contractor is relevant to the issues involved in this appeal and is accepted into the Appeal File as Exhibit 11. DISCUSSION This Board determines from the facts before it that the contractor misinterpreted the contract when it billed for Print Order 39 on June 6, 1980. The contract language governing the billing by trim sizes is not ambiguous. The contract set up two separate means to charge for work depending on the size of the form. In three separate areas in the specifications, the prospective bidders were alerted that irregular shaped forms not listed within the delineated trim sizes were to be charged under the applicable square inch group. Given the nature of this type of contract, one for printing of forms of various sizes, the possibility that an irregular form may have been ordered from the contractor was treated in the schedule of prices and throughout the specifications. The contract clearly allocated the risk of this occurrence to the contractor. And this risk should have been taken into account when the contractor prepared its bid. However, it was the contractor's contention that the contract could only be read reasonably and fairly by disregarding the provision dealing with irregular forms and bill as it did when it originally billed for Print Order 39. Instead of using the applicable square inch group, the contractor charged the irregular forms under the next larger trim size category. To accept this logic would make the language alluded to earlier in this decision, and found on pages 6, 11 and 12 of the specifications meaningless. An interpretation that leaves any portion of contract language useless, inexplicable or inoperative should be rejected. Blake Construction Company v. United States, 202 Ct. Cl. 794 (1973). Moreover, in order to read the contract as a whole, the provisions must be interpreted so as to be in harmony with each other. Unicon Management Corp. v. United States, 179 Ct. Cl. 534 (1967). To accept the contractor's interpretation would create a conflict between these trim size provisions in the schedules of prices and therefore should be rejected. The only reasonable way to interpret these provisions is the way the Government did when it sought to recover the overpaid amount. The contractor should have charged for the irregular forms produced under this Print Order by using the applicable square inch category and not by using the set trim size category. Furthermore, at the hearing, the contractor's representative admitted that the language of the contract clearly provided that irregularly sized forms were to be billed by the applicable square inch category. As for the argument that to hold the contractor to this interpretation would be manifestly unfair, the contractor was well aware or should have been aware that these separate methods of billing for forms were present in the specifications prior to its bidding on the contract. Freeman Electric Construction Co., DOTCAB No. 74-23, 75-1 BCA ¶ 11,184 (1975). The language of the contract clearly put the risk of producing irregular sized forms on the contractor. Since the bid was presented, it is assumed that the contractor accepted this risk. If the contractor had any misgivings about how to calculate the trim size charges, it should have brought these misgivings to the attention of the contracting officer prior to the submission of its bid. It should also be noted that there was no persuasive evidence presented by the contractor indicating that the contractor actually suffered any loss because it was required to use the square inch option instead of by the trim size. Mere allegations can not be used as a basis for granting relief. EG & G, Inc., ASBCA No. 14051, 71-1 BCA ¶ 8,867. As for the contention that this particular contract language is inconsistent with current GPO procurement practices and therefore unfair in its application to this contractor, any such inconsistency is irrelevant to the issues at hand. This contract language was unambiguous as to what was required for the computation of charges. When a contract is clear on its face as to what is required, there is no need to rely on language of subsequent contracts as guidance for contract interpretation. Additionally, the contractor presented no convincing evidence as to why these practices have been changed. The contractor also argued that the Government was not entitled to the amount in question because the Government's acceptance of the goods produced under Print Order 39 and its tender of a check in payment for this Print Order bars any recovery of the amount. In support of this, contractor cited Article 22 of Contract Terms No. 1, "Payments on Purchase Order." This provision reads in part as follows: "(a) Payment will be made to the contractor upon submission of a proper voucher. . . . (b) Checks tendered by the GPO in payment of any invoice submitted by the contractor, whether equal to or less than the amount invoiced are tendered as final payment. 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] GPO, unless the contractor notifies the contracting officer in writing within 60 calendar days of the date of such a check. . . ." Although this provision does not specifically bar the Government from asserting any exceptions to money paid to a contractor, the contractor has argued that this provision must be interpreted to place a reciprocal bar on the Government to assert any claim after 60 calendar days have elapsed. According to this logic, because the Government discovered the overpayment six months after payment, it should be barred from recovering the money. This reasoning is defective. This provision does not bind the Government in any way, as it only applies to the contractor. It can not be assumed that just because a provision obligates one party to perform a particular action that there is an unstated reciprocal obligation for the other party to perform in the same manner. Furthermore, since the contract was still in force when the Government discovered the error, there was no finality of acceptance here as a matter of law. The Government can recover funds which its agents have wrongfully, erroneously or illegally paid. United States v. Wurts, 303 U.S. 414 (1938). Although this case dealt with an erroneously made income tax refund, this rule has been applied to cases involving payments made under procurement contracts. See, Burnett Electronics Laboratory, Inc., ASBCA No. 23938, 80-2 BCA ¶ 14,619. In the instant case, the contracting officer lacked the contractual authority to make this overpayment because under the terms of the contract a smaller amount should have been paid for the goods produced under this Print Order. Since the June payment for Print Order 39 was clearly erroneous, it was recoverable. Space Age Engineering, Inc., ASBCA No. 22981, 80-2 BCA ¶ 14,701. Moreover, those receiving overpayments are bound to refund them just as the Government has an obligation to recover them. DiSilvestro v. United States, 405 F.2d 150 (2d Cir. 1968); A Padilla Lighterage, Inc., ASBCA No. 17288, 75-1 BCA ¶ 11,406; Foreman Industries, Inc., ASBCA No. 23948, 80-2 BCA ¶ 14,501. In the instant case, the contractor was bound ex aequo et bono to pay the Government back for the incorrect billing. Not to do so would have been unjust enrichment. DECISION In light of the above, the Board upholds the recovery of the overpayment made to this contractor in payment for Print Order 39 and hereby denies the contractor's appeal in its entirety.