U.S. GOVERNMENT PRINTING OFFICE BOARD OF CONTRACT APPEALS WASHINGTON, D.C. 20401 In the Matter of ) ) The Appeal of ) ) GOLD COUNTRY LITHO ) Docket No. GPO BCA 22-93 Jacket No. 338-583 ) Purchase Order 88703 ) For the Appellant: Gold Country Litho, Sacramento, California, by Mr. Donald Sternick, pro se. For the Government: Kerry L. Miller, Associate General Counsel, U.S. Government Printing Office. Before FOSS, Administrative Judge. DECISION ON MOTION FOR RECONSIDERATION AND ORDER On September 30, 1996, the Board issued its Decision and Order in the above-captioned appeal of Gold Country Litho (Appellant or Contractor), sustaining the Contracting Officer's default termination of the contract for a failure to perform in accordance with the specifications, because the Appellant had not shown that its failure to perform arose from causes beyond its control and without its fault or negligence, or beyond the control and without the fault or negligence of its suppliers. Gold Country Litho, GPO BCA 22-93 (September 30, 1996), slip. op. at 21-22, 25-26, 1996 WL _____. See GPO Contract Terms, Solicitation Provisions, Supplemental Specifications, and Contract Clauses, GPO Publication 310.2, effective December 1, 1987 (Rev. 9-88), ¶¶ 20(a)(1)(i), (c), (d) (Default) (hereinafter GPO Contract Terms). In addition, the Board ruled that the U.S. Government Printing Office (Respondent or GPO or Government) had proved its claim of entitlement to excess reprocurement. Gold Country Litho, supra, slip op. at 35. However, the Board reduced GPO's claim by $2,093.38 on the ground that the Respondent had overcharged the Appellant for excess reprocurement costs by erroneously subtracting the Contractor's undiscounted contract price from the repurchase contractor's undiscounted bid, when the record showed that the Government actually took a prompt payment discount on the reprocurement contractor's bill. Id., slip op. at 36-37. Accordingly, because nothing in the record showed that the excess costs were adjusted by the Respondent after the reprocurement contractor had been paid, and as the amount involved was not de minimis, the Board modified the amount assessed against the Appellant, and directed GPO to refund $2,093.38 to the Contractor. Id., slip op. at 36. Cf. Big Red Enterprises, GPO BCA 07-93 (August 30, 1996) slip op. at 48, n. 41, 1996 WL _____; Univex International, GPO BCA 23-90 (July 5, 1996), Supplemental Decision on Excess Reprocurement Costs and Order, slip op. at 12, n. 8, 1996 WL_____ (hereinafter Univex Supp.). The Respondent received a copy of the Board's Decision and Order on October 3, 1996. Thereafter, on October 30, 1996, Counsel for GPO submitted a timely Motion for Partial Reconsideration (Motion) in this appeal.1 See GPO Instruction 110.12, Subject: Board of Contract Appeals Rules of Practice and Procedure, dated September 17, 1984, Rule 29 (Board Rules). The Motion's central argument is that the Board's refund order is contrary to established precedent and agency regulations, and accordingly should be vacated. See Motion, at 1-2. Although Rule 29 of the Board Rules is silent with regard to responses by the non-moving party, on October 31, 1996, in accordance with its usual practice, the Board notified the Appellant of the Motion, and provided it with an opportunity to present, in writing, any facts, arguments, or reasons which it might have in opposition to the Motion. See Order on Reconsideration, dated October 31, 1996, at 2 (Order). The Contractor was given fifteen (15) from the date it received the Order to respond.2 No response has been submitted by the Appellant, and the time allowed to file an opposition has now elapsed. Therefore, the Motion is unopposed in the record. The Board has carefully reviewed the arguments set forth in the Motion. For the reasons which follow, the Board has decided to GRANT the Motion and VACATE the Order to refund $2,093.38 to the Contractor. However, to the extent that the Respondent asks the Board to confirm the amount of excess reprocurement costs computed and assessed by the Government, the Motion is DENIED, and the so much of the Order capping the Respondent's total amount of recovery at $10,012.62 is AFFIRMED. DISCUSSION AND OPINION In this forum, motions for reconsideration are governed by Rule 29 of the Board Rules, which provides: A motion for reconsideration, if filed by either party, shall set forth specifically the ground or grounds relied upon to sustain the motion, and shall be filed within 30 days from the date of the receipt of a copy of the decision of the Board by the party filing the motion. By its terms, apart from establishing precise time limits for filing the appropriate motion, Rule 29 only gives general guidance for parties seeking reconsideration. See Asa L. Shipman's Sons, Ltd., GPO BCA 06-95 (February 13, 1996) Decision on Motion for Reconsideration and Order, slip op. at 3, 1996 WL _____ (hereinafter Shipman's Reconsid.); Univex International, GPO BCA 23-90 (February 7, 1996), Decision on Motion for Reconsideration and Order, slip op. at 3, 1996 WL_____ (hereinafter Univex Reconsid.); Sterling Printing, Inc., GPO BCA 20-89 (July 5, 1994), Decision on Motion for Reconsideration and Order, slip op. at 2, 1994 WL 377592 (hereinafter Sterling Reconsid.); R.C. Swanson Printing and Typesetting Co., GPO BCA 15-90 (December 20, 1993), Decision on Motion for Reconsideration and Order, slip op. at 3, 1993 WL 668317 (hereinafter Swanson Reconsid.). However, in Graphic Litho, Inc., the Board set forth the standards which it would apply to such motions: Generally, Boards of Appeals, such as this, will not reopen an appeal record once it is settled. [Footnote omitted.] Polerad Electronics Corp., ASBCA [No.] 20636, 79-1 BCA ¶ 13,777[.] [See also,] Cal Constructors, ASBCA [No.] 21179, 78-1 BCA ¶ 12,992; Harold Benson, AGBCA [No.] 384, 77-1 BCA ¶ 12,490. However, on occasion they will exercise discretion and do so in order to receive significant newly-discovered evidence[,] Key, Inc. & Jones-Robertson, Inc., IBCA [No.] 690-12-67, 69-1 BCA ¶ 7,447, or non-newly discovered evidence, G.M. Co. Manufacturing, Inc., ASBCA [No.] 5345, 60-2 BCA ¶ 2,759, when it is clear that injustice will be done if the evidence is not considered. K- Square Corp., IBCA [No.] 959-3-72, 73-2 BCA ¶ 10,146; Turner Construction Co., GSBCA [No.] 3549, 75-1 ¶ 11,106. A Board may also exercise such discretion in granting reconsideration where it is alleged that the Board erred in its legal conclusions, Pansophic Systems, Inc., GSBCA [No.] 4983, 78-2 BCA ¶ 13,390; or where it is claimed that the decision was founded in a legal theory which neither party had espoused. Kaminer Construction Corp., ENGBCA [No.] 2833, 70-1 BCA ¶ 8,257. See Graphic Litho, Inc., GPO BCA 17-85 (September 30, 1988), Order Denying Appellant's Motion for Reconsideration, slip op. at 2-3. See also Shipman's Reconsid., supra, slip op. at 3-4; Univex Reconsid., supra, slip op. at 3-4; Sterling Reconsid., supra, slip op. at 2-3; Swanson Reconsid., supra, slip op. at 4. As indicated in Graphic Litho, Inc., the traditional grounds for reconsideration are: (1) newly discovered evidence, or evidence which was unavailable at the time of the initial proceeding; or (2) error or oversight in the contract appeals board's findings of fact or conclusions of law. Accord Old Dominion Security, Inc., GSBCA No. 8563-R, 88-3 BCA ¶ 21,072; Chrysler Corp., NASABCA No. 1075-10, 77-2 BCA ¶ 12,829; Winsco Instruments & Controls Co., NASABCA No. 1065-40, 67-2 BCA ¶ 6,644. See also FED. R. CIV. P. 60(b). For the purposes of reconsideration, "newly discovered evidence" is defined as evidence of facts existing at the time of the original proceeding of which the party was excusably ignorant, and which could not, by the exercise of due diligence, have been discovered in time to present in the original proceeding. See Yachts America, Inc. v. United States, 779 F.2d 656, 662 (Fed. Cir. 1985); Warner v. Transamerica Insurance Co., 739 F.2d 1347, 1353 (8th Cir. 1984); United States v. Walus, 616 F.2d 283, 287-88 (7th Cir. 1980). See also Danac, Inc., ASBCA No. 33394, 94-1 BCA ¶ 26,286, at 130,759; M.C. & D. Capital Corp., ASBCA No. 38181, 93-2 BCA ¶ 25,894, at 128,802; Sunshine Cordage Corp., ASBCA No. 38904, 90-1 BCA ¶ 22,572, at 113,277; Dae Lim Industries Co., ASBCA No. 28416, 87-3 BCA ¶ 20,110. Also, newly discovered proof must not be merely cumulative and must be of such a material nature as will probably change the outcome or produce a different result. See Yachts America, Inc. v. United States, supra, 779 F.2d at 662; Warner v. Transamerica Insurance Co., supra, 739 F.2d at 1353; United States v. 41 Cases, More or Less, 420 F.2d 1126, 1132 (5th Cir. 1970). See also Danac, Inc., supra, 94-1 BCA at 130,759; Sunshine Cordage Corp., supra, 90-1 BCA at 113,277; Finast Metal Products, Inc., ASBCA No. 19860, 85-1 BCA ¶ 17,873 at 89,518. The same requirements regarding materiality and a difference of result also apply to alleged errors or oversights of findings of fact and conclusions of law.3 See e.g., Camel Manufacturing Co., ASBCA No. 41231, 91-2 BCA ¶ 23,908; Optimal Data Corp., NASABCA No. 381-2, 85-2 BCA ¶ 18,165. In the final analysis, reconsideration is discretionary with the Board, and will not be granted in the absence of specific and compelling reasons. See Shipman's Reconsid., supra, slip op. at 5-6 (citing Christie-Willamette, NASABCA No. 1182-16, 89-2 BCA ¶ 21,659; Carolina Maintenance, ASBCA No. 25891, 88-1 BCA ¶ 20,388; Ken Rogge Lumber Co., ASBCA No. 84-145-3, 84-3 BCA ¶ 17,570; Ronald C. Skillens d/b/a Skillens Enterprises, GSBCA No. 4625, 77-2 BCA ¶ 12,634); Univex Reconsid., supra, slip op. at 5; Sterling Reconsid., supra, slip op. at 4-5. Indeed, we agree with the view expressed by the General Services Board of Contract Appeals, when it said: Reconsideration is, . . . , strongly disfavored; it will not be granted "on the basis of arguments already made and reinterpretations of old evidence." Atlas Construction Co., GSBCA 7903-R et al., (Sept. 18, 1990); Input Output Computer Services, Inc., GSBCA 8453-C-R (7090) et al., 88-3 BCA ¶ 20,851 (1988). See also Rocky Mountain Trading Co., GSBCA 10404-C- R(10210-P), 92-1 BCA ¶ 24,261, 1991 BPD ¶ 171. To warrant reconsideration, the "moving party must make a satisfactory showing that it is appropriate for the Board to revisit the matter." Government Technology Services, Inc., GSBCA 10389-P-R, 90-2 BCA ¶ 22,913, 1990 BPD ¶ 75. See Zinger Construction Co., Inc., GSBCA No. 11039-R, 92-3 BCA ¶ 25,039, at 124,814. The Respondent believes that reconsideration is warranted in this appeal for two reasons, one factual and the other legal. First, the Motion notes that while the Board figured the appropriate amount of excess reprocurement costs was $10,012.62, as compared to the Contracting Officer's calculation of $12,106.00, the Government has only been able to recover $455.00 from the Appellant. See Motion, at 3; Declaration of Erma H. Collins. Furthermore, the Contractor had not been awarded any more contracts, so future setoffs for GPO are problematic. Id. Therefore, the Board ordered refund amounts to a "windfall" for the Appellant. See Motion, at 3. Second, GPO candidly admits that the Board simply applied the general rule by crediting the Appellant with the amount of the prompt payment discount which the Government took when it paid the reprocurement contractor. See Motion, at 2 (citing Industrial Fasteners Ltd. of North America, GSBCA No. 3634, 72-2 BCA ¶ 9761). However, the Respondent argues that the special place GPO occupies in the Federal printing scheme militates in favor of creating an exception to the general rule, and allowing it to retain the discount. See Motion, at 1-2 (citing "Prompt Payment Discounts at [the] Government Printing Office," GAO Memorandum B-238495, September 12, 1990 (hereinafter GAO Memorandum)). In that regard, the GPO compares its contracts, in which the prompt payment discount is irrelevant to the actual cost of printing, to purchases made by other Federal agencies in their own behalf, where the discounted price represents the Government's actual cost. See Motion, at 2 (citing GAO Memorandum, supra). Furthermore, the Respondent points out that both the PPR and the FAR require the Government to consider increases and decreases in "other costs" when assessing excess costs in default cases, and that such costs expressly include "discounts." See Motion, at 2 (citing Printing Procurement Regulation, GPO Publication 305.3 (rev. 10-90), Chap. XIV, Sec. 1, ¶ 3.f (hereinafter PPR); Federal Acquisition Regulation, § 49.402-6(c) (1996) (hereinafter FAR)). As the Government interprets these regulations, it is allowed to retain the prompt payment discount offered by the reprocurement contractor essentially as a means of "recapturing" the discounted contract price which would have been paid to the original contractor but for the default. See Motion, at 2 (citing Consolidated Machine Corp., ASBCA No. 14366, 73-1 BCA ¶ 9943; 32 Comp. Gen. 328 (1953); 15 Comp. Gen. 177 (1953)). In the Respondent's opinion, the Appellant was not entitled to any benefit from the discount given by the reprocurement contractor, and for this reason the Government says that excess costs were properly based on the undiscounted original and repurchase prices. See Motion, at 3. Accordingly, GPO urges the Board to modify its so much of its decision reducing the Appellant's liability by $2,093.38, and allow the Government to recover excess reprocurement cost in the amount assessed by the Respondent. Id. Addressing the Government's legal arguments first, there is no dispute that, as a general matter, the Board applied the correct legal principle when it reduced the Appellant's excess cost liability by the amount of the prompt payment discount-the Respondent admits as much. See e.g. Futura Systems, ENG BCA Nos. 6037, 6058,, 6099, 95-2 BCA ¶ 27,654, at 137,874; Professional Window & House Cleaning, Inc., GSBCA Nos. 8268, 8775, 90-3 BCA ¶ 22,982, at 115,402; Aerospace Components, Inc., ASBCA No. 28606, 84-3 BCA ¶ 17,536, at 87,339-40 (citing Empresas Electronics Walser, Inc., ASBCA No. 17524, 74-2 BCA ¶ 10,664; Martin & Turner Co., ASBCA No. 17824, 73-1 BCA ¶ 9947; cf. John T. Penrod, AGBCA No. 79-169-4, 80-2 BCA ¶ 14,789); Industrial Fasteners Ltd. of North America, supra, 72-2 BCA at 45,581 (citing Seymour P. Thomas v. United States, 53 Ct. Cl. 430 (1918); Rio Hondo Containers, GSBCA No. 3494, 72-2 BCA ¶ 9414). Essentially, the rule says that the proper basis for recovery under the "Default" clause is the Government's actual excess reprocurement costs, and that it is inappropriate simply to compare "bare contract prices." See Professional Window & House Cleaning, Inc., supra, 90-3 BCA at 115,402. However, in this case, the Respondent urges the Board to adopt a different principle, and relies on an opinion by the GAO to support its position that it is entitled to retain the prompt payment discount because the general rule has no application to GPO operations. See GAO Memorandum, at 5-6. The specific question addressed by the GAO in its opinion was "whether GPO is required to pass on prompt payment discounts received from commercial printers directly to [F]ederal agencies requesting printing from GPO." See GAO Memorandum, at 1. Viewing that issue in light of the statutory scheme governing Federal printing, the GAO basically held that GPO was not required to reduce customer-agency printing costs to the extent of the prompt payment discounts it received, but rather could retain such discounts for its own use.4 See GAO Memorandum, at 3-5. The GAO based its conclusion on a combined reading of Sections 309 and 310 of Title 44 of the United States Code, which it said "require[d] GPO to recover from its customers the direct and indirect costs of procured as well as in-house printing." See GAO Memorandum, at 3 (citing 44 U.S.C. §§ 309, 310 (1988)).5 The GAO reasoned, in pertinent part: We think sections 309 and 310 make clear that Congress intended GPO to operate on a self-sustaining basis, recovering its costs of operation from its customers. Conversely, we think it fair to conclude that Congress did not intend for GPO to adopt a costing methodology that augments in a significant way one appropriation account at the expense of another. . . . By charging its customers the full invoice price on procured jobs and using the retained discounts to reduce its surcharge on procured printing, GPO recovers the direct and indirect costs of procured printing at rates that reflect those costs as section 309(b) requires. Alternatively, GPO could pass the discounts for individual jobs directly to specific customers and recover its indirect costs through a higher surcharge. [Footnote omitted.] However, since section 309(b) requires only that GPO charge at rates that cover its costs and GPO's current practice satisfies this requirement without violating any specific statutory or other legal principle, we believe that GPO has reasonably exercised its discretion by retaining the prompt payment discounts from commercial printers and reflecting such fact through reduced surcharges on procured printing. See GAO Memorandum, at 4-5. [Emphasis added.] In the Board's view, the Respondent reads too much into the GAO Memorandum, and it has no application in this case. As the GAO noted, GPO, because it is an agency of Congress, is not covered by the Prompt Payment Act of 1982, as amended (PPA), 31 U.S.C. § 3901 et seq. (1994), but rather any "penalties and discounts are governed solely by the terms of the contracts between GPO and its suppliers." See GAO Memorandum, at 5 (citing GAO Memorandum B-211307, August 26, 1983). See also Chavis and Chavis Printing, GPO BCA 20-90 (February 6, 1991), slip. op. at 7, n. 7, 1991 WL 439270.6 In that regard, as previously indicated, the Government's right to collect excess reprocurement costs is not rooted in statute, but rather in the contract's "Default" clause. See Professional Window & House Cleaning, Inc., supra, 90-3 BCA at 115,402. See also John Cibinic, Jr. and Ralph C. Nash, Jr., Administration of Government Contracts, at 998 (The George Washington University, 3rd ed. 1995) ("Excess costs of reprocurement or completion are the unique remedies given to the Government upon a valid default termination. The standard default clauses for fixed-price supply, service, and construction contracts state that the right to assess excess costs is 'in addition to any other rights and remedies provided by law or under this contract'") (hereinafter Cibinic & Nash, Administration). The specific language in GPO's "Default" clause which gives the Respondent the right to recover excess costs is: If the Government terminates in whole or in part, it 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 and services. However, the contractor shall continue the work not terminated. See GPO Contract Terms, Contract Clauses, ¶ 20(b). With one minor change (the addition of the words "this contract" preceding the phrase "in whole or in part"), the above-quoted provision repeats verbatim the language of the "Default" clause in the FAR for fixed-price supply and service contracts. See FAR § 52.249-8(b). See also Cibinic & Nash, Administration, at 1002. The Board has said on numerous occasions that where GPO adopts the FAR contract provisions or other regulatory language as its own, it will be presumed that the uniform interpretation given to those words has also been accepted. See Graphidata, Inc., GPO BCA 35-94 (June 14, 1996), slip op. at 99, 1996 WL _____ ("Changes" clause); Sterling Printing, Inc., GPO BCA 20-89 (March 28, 1994), slip op. at 36, 1994 WL 275104 ("Disputes" clause); McDonald & Eudy Printers, Inc., GPO BCA 40-92 (January 31, 1994), slip op. at 11-12, 1994 WL 275096 ("Requirements" clause); Shepard Printing, GPO BCA 37-92 (January 28, 1994), slip op. at 21-22, 1994 WL 275077 ("Requirements" clause); Banta Co., GPO BCA 3-91 (November 15, 1993), slip op. at 34, 1993 WL 526843 ("Changes" clause). See also New South Press & Associates, Inc., GPO BCA 14-92 (January 31, 1996), slip op. at 47, 1996 WL 112555 (cost principles applicable to terminations for convenience); Sterling Printing, Inc., GPO BCA 20-89 (August 12, 1994), Decision Denying Second Motion for Reconsideration and Order, slip op. at 3, 1994 WL _____ (procedural rule which allows only one motion for reconsideration in any appeal). Indeed, the Board has consistently administered GPO's "Default" clause, and the rules pertaining thereto, in the same way that the Executive Branch contract appeals boards and the courts apply the FAR "Default" clause. See e.g., Gold Country Litho, supra, slip op. at 13-17; Big Red Enterprises, GPO BCA 07-93 (August 30, 1996), slip op. at 24-26, 1996 WL _____; Asa L. Shipman's Sons, Ltd., GPO BCA 06-95 (August 29, 1995), slip op. at 16-18, 1995 WL 818784, reconsid. denied, February 13, 1996; Univex International, GPO BCA 23-90 (July 31, 1995), slip op. at 17-19, 1995 WL 488438, reconsid. denied, 1996 WL 112554 (February 7, 1996), Univex Supp., supra; K.C. Printing Co., GPO BCA 02-91 (February 22, 1995), slip op. at 9-12, 1995 WL 488531; Shepard Printing, GPO BCA 23-92 (April 29, 1993), slip op. at 10-12, 1993 WL 526848; Stephenson, Inc., GPO BCA 2-88 (December 20, 1991), slip op. at 18-20, 1991 WL 439274; Chavis and Chavis Printing, supra, slip. op. at 9-13. Accord Lisbon Contractors v. United States, 828 F.2d 759 (Fed. Cir. 1987)); Darwin Construction Co., Inc. v. United States, 811 F.2d 593 (Fed. Cir. 1987); Quality Environment Systems v. United States, 7 Cl. Ct. 428 (1985); Switlik Parachute Co. v. United States, 216 Ct. Cl. 362 (1978); Sierra Tahoe Manufacturing, Inc., GSBCA No. 12679, 94-2 BCA ¶ 26,771; Jamco Constructors, Inc., VABCA Nos. 3271, 3516T, 94-1 BCA ¶ 26,405, reconsid. denied, 94-2 BCA ¶ 26,792; Centennial Leasing, GSBCA No. 12037, 94-1 BCA ¶ 26,398; Walsky Construction Co., ASBCA No. 41541, 94-1 BCA ¶ 26,264, reconsid. denied, 94-2 BCA ¶ 26,698; Swiss Products, Inc., ASBCA No. 40031, 93-3 BCA ¶ 26,163; El Greco Painting Co., ENG BCA No. 5693, 92-1 BCA ¶ 24,522; Kit Pack Co., Inc., ASBCA No. 33135, 89-3 BCA ¶ 22,151; J.F. Whalen and Co., AGBCA Nos. 83-160-1, 83-281-1, 88-3 BCA ¶ 21,066. The Respondent readily concedes that the Board correctly stated the general rule when it said that defaulted contractors are entitled to credit for any prompt payment discounts taken because the Government is only entitled to recover its actual excess reprocurement costs under the "Default" clause. See Futura Systems, supra; Professional Window & House Cleaning, Inc., supra; Aerospace Components, Inc., supra; Industrial Fasteners Ltd. of North America, supra. Contrary to GPO, the Board sees nothing in the GAO Memorandum which would warrant a different result in this case. Indeed, the Board believes that the general rule is precisely the sort of "legal principle" which the GAO had in mind when it indicated that GPO's practice of retaining prompt payment discounts might satisfy the requirements of 44 U.S.C. § 309, but it could violate some "other legal principle." See GAO Memorandum, at 5. In the final analysis, the Board finds no reason, and the GAO Memorandum provides none, for making an exception to the general rule in this case, and for treating a defaulted contractor like a customer-agency.7 Accordingly, the Respondent's contention that GPO should be allowed to retain the prompt payment discount and figure its excess reprocurement costs by simply comparing raw contract prices, as an exception to the general rule, is dismissed for lack of merit.8 GPO's assertion that the PPR and the FAR both authorize the retention of the prompt payment discount is equally unavailing. In that regard, the PPR provides, in pertinent part: . . .[T]he Contracting Officer shall make a written demand . . . on the defaulted contractor for the total amount of such excess [reprocurement costs] including increases or decreases in other costs such as transportation and discounts. See PPR, Chap. XIV, Sec. 1, ¶ 3.f (3). [Emphasis added.] The comparable provision in the FAR reads as follows: . . . [T]he contracting officer shall, after completion and final payment of the repurchase contract, make a written demand on the contractor for the total amount of the excess, giving consideration to any increases or decreases in other costs such as transportation, discounts, etc. See FAR, § 49.402-6(c). [Emphasis added.] Again, since the critical language in both the PPR and the FAR is exactly the same, the Board presumes that the uniform interpretation given to those words by its Executive Branch counterparts has also been accepted. See Graphidata, Inc., supra; New South Press & Associates, Inc., supra; Sterling Printing, Inc., supra; McDonald & Eudy Printers, Inc., supra; Shepard Printing, supra; Banta Co., supra. From its reading of the cases, the Board believes that the Respondent has misread the PPR. It is clear that the law and regulations require the Government to basically take a "balance sheet" approach in calculating excess reprocurement costs; i.e., in computing excess costs, all savings and losses must be considered and balanced against each other not only to determine the scope of the defaulted contractor's liability, but also to see whether such costs may be assessed at all. See Lustro Plastics Co., GSBCA Nos. 7300, 7301, 7302, 7303, 7304, 7305, 7474, 7475, 86-2 BCA ¶ 18,814, at 94,813 (citing Racine Screw Co. v. United States, 156 Ct. Cl. 256 (1962); Bowman's Transport Co., ASBCA Nos. 1088, 1089, 1092, 84-1 BCA ¶ 17,217; Skiatron Electronics & Television Corp., ASBCA No. 9513, 65-2 BCA ¶ 5053). See generally Cibinic & Nash, Administration, at 1042-44. Consequently, the final excess cost figure might be composed of various categories of additional costs incurred by the Government in repurchasing the contract, see e.g. Mega Construction Co. v. United States, 29 Fed. Cl. 396 (1993) (cost of repairing defective workmanship and consultant's fees); Futura Systems, supra (travel and reinspection costs); James W. Furst, PSBCA No. 3483, 95-1 BCA ¶ 27,453 (administrative costs, including cost of a transportation specialist); Milner Construction Co., DOTBCA No. 2043, 91-3 BCA ¶ 24,195 (temporary storage of hazardous waste materials during the repurchase period); Sealtite Corp., ASBCA No. 34156, 90-2 BCA ¶ 22,844 (cost of architect-engineering firm); Landmark Interior Builders, Inc., GSBCA No. 8382, 91-1 BCA ¶ 23,386 (overtime for Government employees used to complete the project); but see, Datronics Engineers, Inc. v. United States, 190 Ct. Cl. 196, 418 F.2d 1371 (1969) (travel costs incurred in bringing Government personnel from distant location to perform unskilled tasks was not allowed and the excess cost assessment was reduced accordingly), offset by certain cost reductions flowing to the benefit of the defaulted contractor, see e.g. Schmalz Construction, Ltd., AGBCA No. 92-177-1, 94-1 BCA ¶ 26,423 (deletion of right-of-way timber purchase requirement entitled contractor to reduction in price); Foster Refrigerator Corp., ASBCA No. 320, 88-1 BCA ¶ 20,398 (reprocurement price reduced to reflect deletion of first article testing); Iran B. Tech Enterprises, Ltd., ASBCA No. 24820, 81-2 BCA ¶ 15,424 (assessment reduced to account for constructive changes); Lee Manufacturing & Engineering Co., ASBCA No. 22866, 79-1 BCA ¶ 13,814 (reprocurement price adjusted to eliminate costs of additional testing); American Dredging Co., ENGBCA No. 2920, 78-2 BCA ¶ 13,494 (assessment reduced to account for differing site condition). As the Board sees it, at its core this "balance sheet" approach is nothing more than just another way of saying that in repurchasing the defaulted work the Government has a duty to mitigate the defaulted contractor's excess cost liability. See e.g., Gold Country Litho, supra, slip op. at 30; Big Red Enterprises, supra, slip op. at 44-45; Univex Supp., supra, slip op. at 7-8; Asa L. Shipman's Sons, Ltd., supra, slip op. at 31-32; K.C. Printing, supra, slip op. at 21-22; Sterling Printing, Inc., supra, slip op. at 67. Accord Cascade Pacific International v. United States, 773 F.2d 287 (Fed. Cir. 1985); American Marine Upholstery Co. v. United States, 170 Ct. Cl. 564, 345 F.2d 577 (1965); Ready-Buffaloes Pump, Inc., ENG BCA No. 6049, 96-1 BCA ¶ 28,111; William A. Hailed, AGBCA Nos. 91-230-3, 92-133-3, 92-196-3, 93-1 BCA ¶ 25,389; Barrett Refining Corp., ASBCA Nos. 36590, 37093, 91-1 BCA ¶ 23,566; Old Dominion Security, Inc., GSBCA No. 9126, 90-2 BCA ¶ 22,745; Scala Engineering Co. and Pike County Construction Co., A Joint Venture, IBCA No. 2328, 89-3 BCA ¶ 21,950; Sequal, Inc., ASBCA No. 30838, 88-1 BCA ¶ 20,382; Solar Laboratories, Inc., ASBCA No. 19957, 76-2 BCA ¶ 12,115. Consistent with this viewpoint, the Board is convinced that the phrase "increases or decreases in other costs such as transportation and discounts" is just an accounting yardstick, and that the word "transportation" merely provides one example of a possible "add on" or "increase" in the Government's costs on repurchase, see e.g., James W. Furst, supra, while "discounts" refers to one type of transaction which will "reduce" or "decrease" the final excess cost figure, see e.g. Futura Systems, supra; Professional Window & House Cleaning, Inc., supra; Aerospace Components, Inc., supra; Industrial Fasteners Ltd. of North America, supra. Thus, the Board finds nothing in the language of PPR, Chap. XIV, Sec. 1, ¶ 3.f (3), which would provide a regulatory basis for GPO to retain the prompt payment discount when figuring the excess reprocurement cost liability of the defaulted contractor. Indeed, the Board is not aware of any decision from an Executive Branch contract appeals board which has ruled otherwise with respect to FAR, § 49.402-6(c). Accordingly, the Respondent's assertion to the contrary is also dismissed for lack of merit. Even though the Government has not shown any legal or regulatory grounds for reconsideration, it has brought to the Board's attention such new facts as would warrant setting aside so much of its Order refunding money to the Contractor. See Gold Country Litho, supra, slip op. at 36-37. In that regard, as the Respondent correctly surmises, when the Board directed GPO to refund the "surplus" amount of excess costs, it was under the impression that the Appellant's original liability of $12,106.00 had been fully satisfied, and that the Government would be returning $2,093.38 from funds which it had already collected. See Motion, at 3. The Board was unaware that the Respondent had only recovered $455.00 from the Appellant, and that further setoffs were not on the horizon because the Contractor had not been awarded any more contracts. Id., Declaration of Erma H. Collins. If the Board had known at the time that the Government had only recouped a de minimis amount, and that there are no more opportunities at present to collect additional sums to satisfy its claim, the refund Order would not have been issued. Consequently, the small amount of recovery and the lack of further setoff sources constitute, in the Board's judgment, new facts of such a material nature as would have changed the Board's decision to award a refund, see Yachts America, Inc. v. United States, supra; Warner v. Transamerica Insurance Co., supra; United States v. Walus, supra; Danac, Inc., supra; M.C. & D. Capital Corp., supra; Sunshine Cordage Corp., supra, or at least such non-newly discovered evidence which must be considered to prevent an injustice from occurring, see Turner Construction Co., supra; K-Square Corp., supra; G.M. Co. Manufacturing, Inc., supra. It was certainly not the Board's intention to reward the Appellant's default, or permit either party to gain a "windfall" in this dispute. See Gold Country Litho, supra, slip op. at 36; Motion, at 3. Therefore, while the Board will not reconsider its decision to place a maximum ceiling of $10,012.62 on the Appellant's liability for excess costs in this case, it will grant the Motion and vacate its Order to issue a refund of $2,093.38. ORDER For all of the foregoing reasons, the Board finds and concludes that the Respondent has presented grounds which would warrant reconsideration of the Board's decision in this case. ACCORDINGLY, insofar as the Government questioned the Board's decision to refund $2,093.38 to the Appellant, the Motion is GRANTED, and the Board's Order is VACATED. HOWEVER, insofar as GPO requests that the Board reinstate the Respondent's original assessment of excess reprocurement costs, the Motion is DENIED, and the so much of the Order capping the Respondent's total amount of recovery at $10,012.62 is AFFIRMED.9 It is so Ordered. March 17, 1997 STUART M. FOSS Administrative Judge 1 The Appellant did not seek reconsideration of the Board's decision. 2 The U.S. Postal Service was unable to make delivery of the Order because the Contractor had moved and returned it to the Board. After obtaining the Appellant's new address, the Board mailed a second copy of its Order, which the Contractor received. 3 Where such legal grounds can be shown, the Board will reverse itself and grant the motion. See e.g., Swanson Reconsid., supra (the Board overturned its initial decision declaring that the contractor, who was party to a "requirements" term contract, was entitled to convenience termination costs based on the estimated contract price over its term, when the Government showed that the contract in question was a multiple-award contract, and as such was not a "requirements" contracts, as that term is understood in procurement law. Citing Media Press, Inc. v. United States, 215 Ct. Cl. 985, 986 (1977)). On appeal by the contractor, the Board's decision was affirmed by the U.S. Court of Federal Claims. See Richard C. Swanson and Larry A. Ford, d.b.a. Swanson Printing & Typesetting Co. v. United States, C.A. 94-185C (August 15, 1996) (unpublished). 4 In so ruling, the GAO rejected as "unconvincing" GPO's position that a prompt payment discount is a financing matter between GPO and its contractors. See GAO Memorandum, at 2, n. 3. In essence, the GAO reasoned that while prompt payment discounts may be an important matter from the financial perspective of a commercial printer for reasons related to ensuring the smooth flow of financing for its operations, no such claim could be made with respect to the conduct of GPO's operations since the discount is unrelated to the contractor's invoice price or the actual cost of the printing work done. Id. The Respondent has made the same argument to the Board. See Motion, at 1-2. However, the Board finds GPO's position equally unpersuasive. 5 The first statute cited by GAO establishes GPO's revolving fund, and provides, in pertinent part, that the fund shall be: "reimbursed for the cost of all services and supplies furnished, . . . at rates which include charges for overhead and related expenses, . . ." 44 U.S.C § 309(b)(1). The second concerns payments for printing, binding, blank paper, and supplies, and states, in pertinent part, that: "[a]n executive department or independent establishment of the Government ordering printing and binding or blank paper and supplies from the Government Printing Office shall pay promptly by check to the Public Printer upon his written request, either in advance or upon completion of the work, all or part of the estimated or actual cost, as the case may be, . . . Adjustments on the basis of the actual cost of delivered work paid for in advance shall be made monthly or quarterly and as may be agreed by the Public Printer and the department or establishment concerned." 44 U.S.C § 310. 6 As the Board noted in Chavis and Chavis Printing, the reason is that the PPA, which was enacted to provide incentives for the Federal Government to pay its bills on time, see H.R. REP. No. 97-461, 97th Cong., 2d Sess. 1, reprinted in 1982 U.S. CODE CONG. & AD. NEWS 111, defines "agency" coverage in terms of the Administrative Procedure Act (APA), 5 U.S.C. § 551 (1994). Because GPO is an agency of the Legislative Branch of the Federal Government, it does not fall within the confines of the APA, or any other statute, such as the PPA, which uses the APA to define its coverage. See Chavis and Chavis Printing, supra, slip op. at 7, n. 7. See also, Mayo v. Government Printing Office, 9 F.3d 1450, 1451 (9th Cir. 1993 (GPO excluded from coverage of the Freedom of Information Act, 5 U.S.C. § 552 (1994); Gray Graphics Corp. v. U.S. Government Printing Office, No. 82-2869, slip op. at 6 (D.D.C. 1982) (unpublished) (GPO not covered by the Small Business Act, 15 U.S.C. § 637 (1994). Accord Ethnic Employees of the Library of Congress v. Boorstin, 751 F.2d 1405, 1416, n. 15 (D.C. Cir. 1985) (Freedom of Information Act). See generally, Matthew S. Foss, U.S. Government Printing Office Board of Contract Appeals: The First Decade, 24 PUB. CONT. 579, 595-96 (1995). 7 The GAO was careful to observe that customer-agencies were not entitled to any benefit from GPO's taking a prompt payment discount because, inter alia, not only was the decision to take advantage of the discount exclusively GPO's, but also the customer-agency "has no contractual relationship with the contractor and no influence over the terms of the contract." See GAO Memorandum, at 5. See also Graphicdata, Inc., supra, slip op. at 60 (while the customer-agency was certainly an active "participant" in the contract by virtue of its "direct-deal" authority, it was not a party). That is certainly not the case with defaulted contractors-they have a continuing relationship with GPO arising from the defaulted contract until their debt to the Government is satisfied or is otherwise canceled. 8 Obviously, the rule only applies if the Government, in fact, assesses excess reprocurement costs, and takes the discount from the repurchase contractor. Cf. B.P. Printing and Office Supplies, GPO BCA 22-91 (February 5, 1993), slip op. at 5, n. 7, 1993 WL 311371 (cost of repurchase less than the original contract price so no excess costs assessed). 9 The Board notes that the PPR also provides that: "[i]f the contractor fails to make payment, the Voucher Examination Branch shall take appropriate action to collect the amount due." See PPR, Chap. XIV, Sec. 1, ¶ 3.f (3). [Emphasis added.] Therefore, in so ruling, the Board is mindful that apart from the statutory right of administrative offset, see 31 U.S.C. § 3716, which seems to be the only collection tool used by GPO to recover excess costs from the Appellant so far, the law also provides the Respondent with other means to collect the debt, see 31 U.S.C. § 3711, and it may eventually choose to invoke them.