Fry Communications, Inc. v. United States

22 Cl. Ct. 497, 1991 WL 14092
CourtUnited States Court of Claims
DecidedFebruary 5, 1991
DocketNo. 174-89C
StatusPublished
Cited by26 cases

This text of 22 Cl. Ct. 497 (Fry Communications, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fry Communications, Inc. v. United States, 22 Cl. Ct. 497, 1991 WL 14092 (cc 1991).

Opinion

OPINION

REGINALD W. GIBSON, Judge.

Introduction

This case requires the court to decide— whether the Government Printing Office Board of Contract Appeals (GPOBCA) erred in upholding the contracting officer’s disallowance of certain claim charges by plaintiff pursuant to a contract to revise United States Army manuals. It is the liability issue which is before the court on the parties’ cross-motions for summary judgment. For the reasons set forth below, we hold — (i) that the GPOBCA committed legal error in interpreting the contractual definition of the word “transaction”; and (ii) that the court will stay a ruling on the parties’ cross-motions for summary judgment pending a remand to the Board of Contract Appeals for certain findings of fact.

Facts1

On May 4, 1983, the Government Printing Office (GPO) instituted formal two-step advertising for bids with respect to Purchase Order 33846, Jacket 421-710, otherwise known as GPO program 400-S (878-85-067). The objective of the program was to create and maintain a system for the electronic storage and revision of United States Army manuals. In step one of the process, offerors were requested to provide technical proposals without pricing. In step two, offerors with acceptable technical proposals submitted price quotations for the various tasks outlined in the Invitation for Bids (IFB), which was drafted by the GPO. Plaintiff, a joint venture consisting of Fry Communications, Inc. and Infoconversion (hereinafter Fry or plaintiff), submitted a satisfactory technical proposal and received an IFB.

The IFB set forth a number of required contractor functions and modifications, including but not limited to — (i) data capture, which involves keying current Army manuals into an electronic data base; (ii) digitizing art work and other illustrations to permit them to be read by the computer; (iii) photo composition, a computer process by which the computer composes the page in accordance with Army specifications; (iv) revision of the text, referred to as “updating and editing;” and- (v) traditional printing.

The dispute at bar concerns the interpretation of the contractual term “transaction.” This is so because a “transaction” is an activity warranting a contractual charge by plaintiff. More importantly, its definition is determinative as to whether an activity by plaintiff entitles it to one or two monetary transaction charges. Relevant portions of the GPO-drafted IFB provided as follows:

DEFINITIONS:
Character: A letter, number, graphic symbol, punctuation mark, or word space.
******
Updating and Editing: Any deviation from the original copy made at the direction of the ordering agency after initial keyboarding [entry into the database], and may consist of:
(1) Change or Addition — A single move or addition of word(s). May be a code, a word, a phrase, a sentence, a paragraph, or a block of continuous reading matter inserted at one place.
(2) Deletion — An elimination at a single place.
* * * * * *
Global Search Alteration: Altering a specific letter group (word or words), figure group or code throughout a database via the use of machine generated data manipulation capabilities.
* * * * * *
[500]*500Transaction: The act of making an update or edit in the data base. It includes searching the data base for the location of the alteration and the movement or deletion of existing data.
******
Measurement of and Payment for Updating and/or Editing:
******
(2) The charge for deleting or transposing type lines without setting and inserting new material will be one “per transaction” charge for each group, regardless of the number of lines in a group. Proofs of any deleted matter must be submitted with the voucher to obtain payment.
******

SCHEDULE OF PRICES

9. Updating and/or editing:

(a) Flat charge for making a deletion, a change, or an addition____per transaction.......................$.

(b) Adding characters to file from manuscript, reprint copy, or proofs:

(1) Text ... per 1,000 characters.....................$.

(2) Tabular ... per 1,000 characters..................$.

In submitting bids under step two, Fry and three other offerors proffered unit prices on over 100 line items. The IFB provided estimates on the anticipated number of units per year2 for each line-item category. Under the general heading of— “Updating/editing” were line items, inter alia, for “Flat charge/trans[action],” for which Fry bid $3.06, and for “Adding [text] characters to the file,” for which Fry bid $4.59 per 1,000 characters. There is nothing in the record to indicate, and it is not alleged therein, that Fry sought clarification from the GPO prior to bidding in January 1984,3 as to the meaning of the term “transaction.” Fry was the lowest responsive, responsible bidder, and was awarded the contract on February 9, 1984.4

After performing the initial data capture function of the contract, Fry began the updating and editing process. When Fry submitted payment vouchers to the GPO for performing the updating and editing, it claimed two transaction charges wherever a deletion of existing material and the addition of new material were made at the same location in the text. The contracting officer rejected the invoices, informing Fry that the search and deletion portion of the operation was chargeable as one transaction, and that the addition of new material without a second search should be charged as adding characters to the file, not as a second transaction. In view thereof, Fry appealed the contracting officer’s decision to the GPOBCA.

In a decision dated July 29, 1986, GPOBCA No. 9-85, the GPOBCA granted the government’s motion for summary judgment, ruling that Fry was entitled to only one “per transaction” charge “when in nearly simultaneous sequence it must make both a deletion and an addition to the data base at precisely the same physical point in the data base file.” The GPOBCA’s decision was explicitly based on its construction [501]*501of the IFB. After reviewing the contract provisions set forth above, inter alia, the GPOBCA concluded that the word “change,” under the “Updating and Editing” portion of the definition of a “transaction,” was used in its ordinary sense. Relying on selected definitions from the Random House Unabridged Dictionary, the GPOBCA held that the word “change” had “subsumed in its meaning the concomitant correlative concept of ‘deletion’ as a necessary process to its accomplishment,” and, therefore, a revision consisting of a deletion and an addition at one place was just one “change,” hence, one “transaction,” and hence, only one charge.

The GPOBCA’s adverse decision was appealed by Fry to this court, invoking jurisdiction under 28 U.S.C. § 1491

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Bluebook (online)
22 Cl. Ct. 497, 1991 WL 14092, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fry-communications-inc-v-united-states-cc-1991.