Telex Communications, Inc. v. United States

42 Cont. Cas. Fed. 77,281, 40 Fed. Cl. 703, 1998 U.S. Claims LEXIS 72, 1998 WL 178670
CourtUnited States Court of Federal Claims
DecidedApril 16, 1998
DocketNo. 96-475C
StatusPublished
Cited by2 cases

This text of 42 Cont. Cas. Fed. 77,281 (Telex Communications, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Telex Communications, Inc. v. United States, 42 Cont. Cas. Fed. 77,281, 40 Fed. Cl. 703, 1998 U.S. Claims LEXIS 72, 1998 WL 178670 (uscfc 1998).

Opinion

OPINION

MILLER, Judge.

This case is before the court after argument on cross-motions for summary judgment. The issues to be decided are 1) whether purchase orders constitute binding modifications to a fixed-price contract and 2) whether the contracting officer could correct a prior misapplication of a negotiated escalation rate and recoup an overpayment by offsetting a subsequent contract award to plaintiff.

FACTS

1. The solicitation provisions

The following facts are undisputed. On July 17, 1991, the Library of Congress (the “LOC”) issued Solicitation No. RFP91-37 (the “RFP”) seeking proposals to supply to the National Library Service for the Blind and Physically Handicapped 42,000 “C-l Cassette Talking Book Machines,” which are specially-designed audio cassette players used in its “talking book program.”

The RFP provided for a base year and two option years. Although the RFP required offerors to submit a fixed price for each talking book machine and required a three-year warranty on each machine for the base year, the RFP also provided that upon the exercise of each option year, the fixed prices would be adjusted according to two price adjustment clauses. First, contract section G.3, a “yen adjustment” clause, applied to the portion of the unit price that reflected materials originating in Japan and purchased with yen. It also gave an example of a cost breakdown of the “[t]otal firm-fixed unit price on which award is based.” Second, section G.2, “Escalation Rate for Option Years,” provided that “[t]he escalation rate shall be negotiated with [the] exercise of [705]*705each option year. The escalation rate shall not exceed the Consumer Price Index----”1 The parties and contracting officer have also referred to this clause as the “CPI adjustment clause” and the adjustment factor as the “CPI rate.” Contract section G.2(2) instructed the LOC contracting officer to “notify the contractor in writing of the percentage increase or decrease to be applied to any invoices to be submitted for orders subject to price adjustment in accordance with this clause____ The contractor shall apply the percentage increase or decrease against the total price of the invoice costs.”

The contract also contained an option clause. Section 1.8 52.217-06 Option for Increased Quantity (Mar.1989), provides:

The Government may increase the quantity of supplies called for in the Schedule at the unit price specified. The Contracting Officer may exercise the option by written notice to the Contractor any time during the performance of this contract up to the acceptance of the last machine. Delivery of the added items shall continue at the same rate as the like items called for under the contract, unless the parties otherwise agree.

Telex Communications, Inc. (“plaintiff’), submitted its Best and Final Offer (“BAFO”) by letter dated November 15, 1991. The BAFO, based on anticipated costs for labor, materials, overhead, and profit, was $141.29 per unit for the talking book machine and $12.36 per unit for each three-year warranty. The price per unit included the expected cost of materials to be purchased from Japan in yen, which was $45.82 and $107.83 for “all other costs,” including profit, totaling $153.65 per machine. Based on its BAFO, on December 19, 1991, plaintiff was awarded Contract No. 170243, which expired on December 20,1994.

The contract price of orders placed during the adjusted period (excluding reimbursable postage or transportation costs) shall be adjusted by the percentage increase or decrease in the average, seasonally adjusted Consumer Price Index for Commodities less Food as follows: An index shall be calculated by averaging the 12 seasonally adjusted months ending 3 months prior to the expiration of the first period of the contract. This average is then compared with the average index for the 12-month period ending 3 months prior to the beginning of the index, called the base index. The percentage increase or decrease by comparing these two indexes shall be applied to the contractor’s invoices for orders placed during the adjustment period.

2. Implementation of the contract

During the base year of the contract, plaintiff delivered and LOC paid for 42,000 talking book machines in accordance with the contract schedule. Anticipating the LOC’s exercise of the first option year, “Option Year One,” on November 17, 1992, Kaye Klinker, the LOC’s contracting officer, sent plaintiff a proposed 2% escalation rate, calculated under the CPI adjustment clause.2 Plaintiff responded with an “option year one adjustment calculation,” using the 2% escalation rate, for a total of $158.81 per unit.3 On November 17, 1992, Ms. Klinker exercised Option Year One by issuing a purchase order for 45,000 talking books at the adjusted price of $158.81. Plaintiff supplied the machines, and no dispute exists regarding the price or the performance of the contract for Option Year One.

On September 24, 1993, anticipating the LOC’s exercise of Option Year Two, the contracting officer sent plaintiff a proposed escalation rate of 4.02%, pursuant to the CPI adjustment clause found in contract section G.2. Plaintiff then submitted to Ms. Klinker an “option year two adjustment” by applying a 4%4 CPI rate to the previously adjusted figure of $109.99, for a total of $4.40. Plaintiff attached a computation page that enu[706]*706merated the “all other costs” figure; the prior 2% CPI adjustment clearly was included in the current “all other costs figure.” Whether this calculation was correct, and is now binding, is at the heart of the parties’ dispute.

Adding the $4.40 CPI adjustment to a proposed yen adjustment of $7.37 and to the adjusted unit price of $158.81, the total adjusted price for Option Year Two was $170.58 per unit. On or about September 23, 1993, Ms. Klinker exercised Option Year Two by issuing Purchase Order M70243 for 46,711 talking book machines at the adjusted price of $170.58 per unit. On March 2, 1994, the contracting officer requested that plaintiff stop including a “patron postal card” with the shipment of each unit. This change resulted in an reduction of the unit price from $170.58 to $170.56, and was implemented by the contracting officer’s issuance of a purchase order revising the Option Year Two prices.

On July 11,1994, increased demand for the talking book machines prompted Ms. Klinker to issue a purchase order to exercise the LOC’s “July 1994 Option,” under contract clause 1.3, to increase the quantities of the machines by 11,726 at the price of $170.56 per unit. By letter dated July 29, 1994, plaintiff proposed a yen adjustment of $4.24 per unit to reflect changes in the dollar-to-yen exchange rate. No CPI adjustment was made, but the unit price was calculated using the figure derived during Option Year Two and the subsequent postal card modification. On August 4, 1994, Ms. Klinker issued a revised purchase order, and the parties executed a bilateral contract modification to increase the July 1994 Option price per unit from $170.56 to $174.80, for a total increase of $2,049,704.80 under Option Year Two of the contract.

3. Contracting officer’s decision

By letter dated March 22,1995, Ms.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Seven Resorts, Inc. v. United States
112 Fed. Cl. 745 (Federal Claims, 2013)
Micalizzi v. Rumsfeld
247 F. Supp. 2d 556 (D. Vermont, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
42 Cont. Cas. Fed. 77,281, 40 Fed. Cl. 703, 1998 U.S. Claims LEXIS 72, 1998 WL 178670, Counsel Stack Legal Research, https://law.counselstack.com/opinion/telex-communications-inc-v-united-states-uscfc-1998.