Docket No. GPO BCA 28-88
February 9, 1990

Administrative Law Judge


   This appeal, timely filed by GraphicData, Inc., Fellowship
   Road and West Park Drive, Mt. Laurel, NJ 08054 (hereinafter
   "Appellant"), is from the August 24, 1988, final decision of
   Jack Scott, Contracting Officer (C.O.), U.S. Government
   Printing Office (GPO), Washington, DC (hereinafter
   "Respondent"), which denied three claims by Appellant for
   additional compensation under the referenced contract.  The
   decision of the Contracting Officer is affirmed for the
   reasons set forth hereinbelow.


   Respondent, upon requisition of the U.S. Patent and Trademark
   Office, Department of Commerce, competitively awarded
   Appellant a certain requirements contract, identified as
   Program C306-S, Purchase  Order No. 72599, dated September 30,
   1987, to print, collate, and distribute all United States
   Government patents submitted to it for production during the
   term beginning October 1, 1987, and ending September 30, 1990,
   pursuant to the general terms, conditions, and specifications
   issued by the Respondent on August 12, 1987, as amended.

   Sometime shortly after the commencement of work under the
   contract, Appellant discovered that certain aspects of the
   requirements were beyond what it had anticipated from the
   specifications at the time it made its bid.  As a consequence,
   Appellant filed claims for additional compensation.
   Thereafter, Appellant and Respondent engaged in an extended
   dialogue concerning the scope of the contract which culminated
   in an agreement to settle by equitable adjustment all but the
   three claims identified in the Contracting Officer's final
   decision letter.  Subsequently, Appellant filed its appeal
   with this Board as to two of the denied claims as follows:

1. Special Handling Production of Certificates of Correction

The Certificates of Correction referred to on Page 11 of 29 of
the Contract are acknowledged to be regular items of production.
However, unlike all other items of production listed on Page 11
of 29, Certificates of Correction require special handling as

a. Poor quality and various sized originals which cause
handfeeding and production slowdown.

b. Mechanical stripping of signature blocks.

c. Special collation and packing requirements.

d. Different trim size than patents.

The additional processes listed above are not adequately covered
in the Contract Specifications.  Certificates of Correction
should have been separated from Patent Production and
specifically described as to their own unique characteristics.

GraphicData, Inc. claims Certificates of Correction should have
been a separately priced contract item.  Our claim is an
additional 32 production hours per issue chargeable at $24.82 per
hour totaling $794.29 per issue.

2.  The Handling of Patents Out of Sequence

Our claim against this item is:

Because the patent originals are supplied out of sequence, they
must be produced out of sequence necessitating a very extensive
patent filing system.  After the patents are produced they are
filed in sequence on storage shelves and then removed from those
storage shelves for distribution when all patents for a
particular issue are finally received, produced and filed.

Paragraph 5, Page 13 of 29 of the Contract Specifications details
the process by which patent originals will be returned to the
Patent and Trademark Office.  Specifically, return all originals
in sequence.  By implication, all patent originals are initially
in sequence.

Since the Contract Specifications do not even vaguely indicate
that patent originals will be supplied out of sequence how is the
contractor to know?

Because there is no way we could have or should have known, we
claim 160 additional production hours per issue chargeable at
$24.82 per hour and totaling $3,971.20 per issue.

   The Government, by way of Answer, denied each of these
   arguments as follows:

   1. The scope of Program C306-S is the production of United
   States Patents, requiring such operations as making
   reproducibles, printing, gathering, binding, packing, and
   distribution.  As appellant acknowledges, Certificates of
   Correction are regular items of production under Program C306-
   Appellant complains that production of Certificates of
   Correction require "special handling" because of alleged "poor
   copy and various sized originals which cause handfeeding the
   production slowdown."  Under the contract, when poor quality
   camera copy for Certificates of Correction are received, the
   contractor is to proceed in accordance with the fourth
   paragraph on page 14 of the contract.  Exhibit A, Rule 4 File.
   In addition, the Government's on-site representative is
   authorized to make whatever changes or improvements are
   necessary to the camera copy.  If such improvements are not
   possible, the contractor is allowed a special handling charge.
   See, line items (e), (f), and (g), page 27, Exhibit A, Rule 4
   With regard to appellant's claim about various sized
   originals, as with any printing job, it is reasonable to
   expect various sizes of camera copy.  Indeed, the contract
   notes that "camera copy . . . to be reproduced at various
   focuses."  Page 11, Exhibit A, Rule 4 File.
   Appellant also complains of the requirement that it
   mechanically strip signature blocks on the Certificates of
   Correction.  There is no such requirement in the contract.
   The contractor may elect to place the image on the finished
   product using any method it chooses.  The appellant was warned
   in the solicitation that part of the Government furnished
   material would be "camera copy with a date, to be used with
   the Certificate of Correction." Page 12, Exhibit A, Rule 4
   Regarding appellant's complaint about the collation and
   packing requirements, the contract clearly states the
   approximate number of Certificates of Correction that can be
   expected in any week.  Page 11, Exhibit A, Rule 4 File.  The
   contract also spells out the collating and gathering
   requirements.  Page 16, Exhibit A, Rule 4 File.  The packing
   instructions can be found on page 17.  In addition, packing
   assembly and distribution requirements are outlined on pages
   21, 22, and Exhibit B to the IFB.  Exhibit A, Rule 4 File.
   In addition, although appellant complains about the trim size
   of the Certificates of Correction, the trim size requirements
   are explicitly spelled out on page 11 of the IFB, Exhibit A,
   Rule 4 File.

   Appellant's complaint about the necessity to "handfeed" stems
   from its decision to "print" using an electrostatic
   reproduction method.  The contract itself does not dictate
   which printing method should be used.
   No answer is required to the allegations contained in the
   remaining portions of this section as such allegations are in
   the nature of appellant's prayer for relief.  To the extent
   answers may be required, respondent denies that appellant is
   entitled to the relief for which it has prayed or to relief in
   any other form.

   2. Appellant seeks compensation, claiming that the fact that
   patent originals are supplied out of sequence increases its
   costs.  Appellant also claims that the IFB "[b]y implication"
   states that the patents will be furnished in sequence to the
   contractor.  This is clearly not what the contract states.
   The contract makes no representations that the camera copy for
   patents will be furnished in numerical sequence.  On the
   contrary, the specifications states that the camera copy will
   be made available over a five day period.  Page 19, Exhibit A,
   Rule 4 File.  Specific instructions for the return of camera
   copy are given on page 13 and 14.  The instructions for
   collating, gathering, and binding are contained on pages 15
   and 16.  Additionally, instructions as to the handling of late
   patents are given on pages 19 and 20.  See also, Exhibit B to
   the IFB, Exhibit A, Rule 4 File.
   All of the above-referenced contract provisions indicate that
   the camera copy for patents will not be furnished in numerical
   No answer is required to the allegations contained in the
   remaining portions of this section as such allegations are in
   the nature of appellant's prayer for relief.  To the extent
   answers may be required, respondent denies that appellant is
   entitled to the relief for which it has prayed or to relief in
   any other form.
   All allegations contained in the complaint not specifically
   admitted are denied.

   Thereafter, a prehearing conference was held wherein the
   parties agreed that both issues in dispute were purely
   questions of contract interpretation, and thus of law, and
   that no evidentiary hearing was necessary.  Each advanced
   their arguments at the conference and agreed to further
   illuminate their positions in written submissions to the
   Board.  The written record was settled upon receipt of the
   submissions.  The matter comes now before the Board in this
   form for decision.


   The underlying premise of each of Appellant's claims is
   identical; i.e., that the specifications were inadequate in
   the particulars of which it complains to put Appellant on
   notice of the work to be performed and that upon a theory of
   the Government's breach of its implied warranty of
   specifications Appellant is entitled to additional
   compensation.  We disagree with such premise and adopt fully
   the reasoning of Respondent's Answer and Brief as the Board's
   own with respect to the averments of Appellant's Complaint and
   expressly reject the additional arguments advanced by
   Appellant at the Prehearing Conference and in the post-
   conference submission.

   The Board believes that Appellant's claim of inadequacy of the
   specifications is, in fact, a post-award claim of mistake in
   bid.  The real underpinning of Appellant's first claim
   revealed in the Prehearing Conference and post-conference
   submission is that it did not comprehend the specifications to
   indicate that "Certificates of Correction" would be more than
   one page and therefore did not plan for the work necessary to
   collate the Certificates or to position the "camera copy with
   date" on the last page of each Certificate.  The entire basis
   of this failure in comprehension is Appellant's misreading of
   the plain language of the "QUANTITY AND NUMBER OF PAGES"
   provision of the specifications set forth on page 11 thereof,
   which states in pertinent part:

QUANTITY AND NUMBER OF PAGES:  The following table shows the
approximate number of patents that will be ordered each week for
the next three contract years.

   Oct 87-    Oct 88-   Oct 89-
   Sept 88   Sept 89   Sept 90

Utility Patents   1575   1625   1660
Reissue Patents   8   8   8
Plant Patents   4   3   3
Design Patents    95   95   95
Statutory Inv. Regs. (SIRs)    3   4   4
Reexamination Certificates   4   4   4
Certificates of Correction   195   185   190

Each contract year nine or ten orders will consist of
approximately 20% fewer utility patents.

Patent quantities range from 40 to 275 copies, with an average of
130 copies and from 2 to 16 printed pages, with an average of 9
printed pages.  Unusually large patents may contain 450 drawing
sheets and nearly the same number of specification pages.

Approximately 400 Dedications, Disclaimers, Adverse Decisions,
and Special Certificates, requiring 135 copies of each, will be
ordered per year.

The Government reserves the right to change the number of patents
to be printed.  Such change(s) in scheduled weekly issue levels
shall be within 15 percent plus or minus the anticipated issue

   In the Board's judgment the plain meaning of the introductory
   language of the table clearly indicates that all the
   categories of publications specified in the table are included
   within the word "patents" for purposes of the provision,
   including number of pages.

Moreover, since we base this conclusion on the plain meaning of
language of the term "patents" as used in the introductory
material, we deem the use of the term "patents" elsewhere within
the specifications to be of no importance with respect to the
interpretation of the "QUANTITY AND NUMBER OF PAGES" provisions.
We draw the same conclusion regarding the fact that different
trim sizes are specified for certain of these categories of
publications.  Nor do we find merit in the distinction Appellant
makes in its submission respecting the use of "Certificates of
Correction" here and "Certificates of Corrections " (emphasis
added) elsewhere in the specifications under "TRIM SIZE."  We
think the distinction is one of typographical error and not of
substance respecting quantity.  We therefore deny this claim.

   Turning to the second question, we find no legal validity in
   Appellant's post-award assertion that the receipt of
   sequentially ordered patents by the contractor from the
   Government was implied in the requirements that the contractor
   collate, gather, and bind the patents in sequential order.
   Indeed, we are persuaded that such requirements imply a
   contrary assumption, precisely as the Government argues and
   documents.  Moreover, the Appellant's argument that its
   production layout plan was based upon a presumption that
   patents would be received in sequence and was submitted to the
   Government for its review does nothing to disturb the Board's
   view on this question since the contract called for the plan
   to be submitted within 60 days after award.  Accordingly, we
   likewise deny this claim.

   It is the duty of the Government to treat all bidders fairly.
   Indeed, the very nature of advertised competitive procurements
   mandates such action in order that commercial providers of
   goods and services will be encouraged to compete for the
   public's business.  This requirement places a heavy burden
   upon contracting officials to strictly adhere to the exact
   letter of contract language once award has been made.  To do
   otherwise would be patently unfair to the unsuccessful bidders
   and would discourage future participation in Government
   solicitations.  The downside of this is that an innocent
   bidder, as here, who might not fully comprehend the provisions
   of the solicitation will receive the award as low bidder and
   be economically injured as a result.  Absent Government fault
   contributing to the commission of such error, there is no
   means of negating such an unfortunate consequence.  Therefore,
   the Board must and does hereby deny the appeal and affirm the
   Contracting Officer's decision in its entirety.

It is so Ordered.