United States Government Printing Office
Contract Appeals Board

Appeal of Braceland Brothers, Inc.
July 5, 1978

Vincent T. McCarthy, Chairman
Drew Spalding, Member
Samuel Soopper,Member
Panel 76-14

Findings of Fact

1.  On April 1, 1974, Braceland Brothers, Inc., was awarded
Program 1320-S with the United States Government Printing Office
(hereinafter GPO).  The contract was for the production, packing,
mailing, and delivery of United States Civil Service Commission
"Training Announcements."

2.   The specifications provided, in pertinent part:


. . .

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.  (Page 5 of 12.)

. . .

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.

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 copies of each
order inserted into 387 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.  (Pages 6 of 12 - 7 of 12.)

. . .


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 . . . . . . . . . . . $ _____ .
(Page 12 of 12.)

Quote prices in strict accordance with all specifications." (Page
12 of 12.)

The contractor bid $ .22 at IV(a).

3.  There were two other responsive bidders to the contract.
Their bids to Item IV.(a) of the schedule of prices were:  H.L.
Eikenberg -.27, United Litho Services - .15.

4.  The contract was performed by Braceland Brothers, Inc., and
payment was made by the Government pursuant to invoices supplied.

5.  On or about October 4, 1976, approximately 19 months after
the completion of the contract, the appellant was sent a letter
by Bryan W. Mercer, Comptroller of the United States Government
Printing Office.  The letter quoted relevant contract provisions
and stated:

"We found discrepancies in your invoices that indicate that you
may have been overpaid on Program 1320-S, Purchase Orders 78097 &
D-0009, in the amount of $43,291.09.
. . .

"You consistently billed for Item IV A and IV B on each print
order when you should have billed for that Item IV A 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.

Your prompt response will be appreciated."

Errors assigned to the billing of Item IV(b) were subsequently
conceded by the contractor and are not involved in this appeal.

6.  Appellant subsequently, on October 8, 1976, responded to Mr.
Mercer by wire.  The relevant portions stated:

"We are in receipt of your letter dated October 4, 1976,
concerning a possibility of overpayment on Program 1320-S,
Purchase Orders 78097 & D0009.

"We vehemently oppose an arbitrary reduction of our billing in
the amount of $43,219.09.

"We are investigating your allegation and will respond to it upon
the conclusion of our study."

7.  On October 14, 1976, appellant was sent a letter by Raymond
A.  Hartman, the contracting officer.  The letter stated, in
pertinent part:

"We are in receipt of your October 8, 1976, wire to Mr. Bryan
Mercer, Comptroller, U.S. Government Printing Office protesting
the overpayment of approximately $43,219.09 of your invoices on
Program 1320-S.

"As Contracting Officer, and after giving the matter careful
consideration, we can find no basis on which to honor your
protest.  In our opinion, the invoices submitted by your company
for work performed under Program 1320-S were overbilled and
subsequently erroneously overpaid by Government Printing Office.
We do not feel that any basis exists from misinterpretation of
the contract nor does any basis exist for compromise on this type
of overpayment.  Based on the work performed, it is clear that
the billed mailing for each print order was not required or the
mailing performed.  We, therefore, have no choice but to disallow
your protest."

8.  By letter dated November 9, 1976, the contractor filed this
appeal in response to the decision of the contracting officer.


The issue presented here is one of contract interpretation.  The
appellant performed its tasks under the contract, apparently
without delay or other difficulty.  It billed the GPO and was
paid for its work.  Some 19 months later, the GPO found that,
according to its calculations, the appellant had been overpaid
$43,219.09.  The agency's Comptroller informed the contractor of
this discovery and that a corresponding amount would be deducted
from its account. 1  The contractor protested vigorously to the
Comptroller, and received a confirmation of the Comptroller's
position from the contracting officer.  This appeal followed.

The appellant views this case as one of ambiguity of contract
terminology.  The issue, as defined in its brief, is "whether the
bid price in the 'Schedule of Prices' of the Contract (Contract
Item-IV(a), pg. 12) was to be applied to each print order or to
each mailed shipment."  Appellant's Brief at 2.  The referenced
contract item states:

"Mailed Shipments:

(a)  Inserting multiple copies in Kraft
envelopes (preaddressed) (up to
160 leaves) . . . . . . . . . . .
per envelope . . . . . . . . . . $          ."
Specifications at page 12 of 12.  (Emphasis added.)

The appellant bid $.22 on this contract item.  It interpreted the
bid price to apply to each print order, and billed accordingly.
The contractor asserts that this course was reasonable, since
print orders were sometimes required to be combined in a mailed
shipment (up to 8 at a time), and sometimes not.  The rationale
for this view was that billing per print order, rather than per
mailed envelope, provided compensation for additional tasks
required in mailing an envelope containing more than one print
order.  The contractor thus concludes that it followed a
reasonable interpretation of the contract when faced with an
ambiguity in a contract term.  This being the case, in light of
the rule of contra proferentum  (to construe contract ambiguities
against the drafter), its interpretation must be accepted.

There is, however, a fatal flaw in the theory.  The provision
quoted above is unmistakably lucid:  it calls for an "all
inclusive" bid for packing, mailing, and delivery of the print
orders to be made "per envelope,"  Specifications at page 12 of
12.  The contractor's interpretation of "per envelope" is more a
case of wishful thinking than of linguistic ambiguity.  "[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

The gravamen of appellant's claim of ambiguity is that it would
have been difficult to know exactly what amount to bid without
being certain as to how many print orders were to be in each
shipment.  While this may be a legitimate business concern, it
was up to the appellant to put forth a bid based on the language
in the specifications which would take this uncertainty into
account.  This is particularly true when the prices quoted were
meant to be "all inclusive and [include] the cost of inserting in
envelopes . . . and all materials and services related thereto."
Specifications at page 12 of 12.  The contractor was additionally
warned to "[q]uote prices in strict accordance with all
specifications."  Id.  The contractor appears to be asserting not
an ambiguity in the language, but how he would have preferred the
contract to be drafted.

Without such an ambiguity, the rules of construction put forth by
appellant are simply not appropriate.  As the Court of Claims has

"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).

There was no "reasonable uncertainty" concerning the contract
term in question here.  It is not a reasonable construction of a
contract which leaves a specific term inoperative or superfluous.
Astro-Space Laboratories, Inc. v. United States, 200 Ct. Cl. 282,
295, 470 F.2d 1003, 1010 (1972) (contract interpretation
eliminating a word unreasonable); Bishop Engineering Company v.
United States, 180 Ct. Cl. 411, 416 (1967); that is exactly what
the appellant's interpretation would do to the term "per
envelope." 2

When a contractor chooses to interpret a contract in such a way
as to ignore a specific provision, it relies on such an
interpretation at its own risk.  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).
In other words, by interpreting the contract in this manner,
appellant created an ambiguity so patent that it should have
inquired of the Government what the proper interpretation should

The appellant additionally contends that a comparison of the
competitive pricing for this particular contract item reveals
that all bidders interpreted the item in the same manner in which
the appellant did.  There is nothing but the appellant's bare
assertion that such an interpretation must be inferred from
allegedly similar pricing.  More importantly,

the same interpretation by other contractors would not make it
any more reasonable.  "A trade practice cannot prevail over
unambiguous provisions of a contract. . . ."  George Hyman
Construction Company v. United States, 564 F.2d 939, 945 (Ct. Cl.

Having examined all of the arguments presented by appellant, and
several that were not, we are constrained to hold, on the record
presented to us, that the Government's interpretation of the
contract is legally correct.  While the manner in which the
Government handled this situation could have been improved,
particularly the 19-month lapse prior to assessing the
overpayment against appellant, we see no legal defect in the
Government's position.


Having fully considered the record before us and the applicable
law, the appeal is denied.


1  The Comptroller's mathematical computations are not contested
by the appellant at this time, and we therefore make no finding
or decision concerning them. As a result, we have not examined
the invoices of the contractor and they are not made part of the

2  This is not to say that the contract is a model of good
draftsmanship. However, the fact that a more artful drafting may
have been possible does not render a contract ambiguous in a
legal sense.