Documenting The File

[Vern Edwards]

Back in the late 1970s, a new boss told me importance to keeping a telephone log for each contract I worked on. I was to document the date and time of all incoming and outgoing official business calls, including the date and time, the name of the person I spoke with, their title, their organization, the topic of conversation, and the gist of the conversation in appropriate detail.

A recently ublished decision of the GAO Contract Appeals Board (GAOCAB), The Regal Press v. Government Publishing Office, CAB No. 2019-03, April 20, 2021, shows why my boss gave me good advice.

https://www.gao.gov/assets/2019-03.pdf 

What happened was that the Government Publishing Office (GPO) and one of its contractors got into a dispute about an order for presidential stationary. The contractor had filed a claim for about $290,000 based on the assertion that the contracting officer had given it an oral approval to proceed with production. The CO denied that he had given any such go-ahead. The dispute ended up before the Government Accountability Office Contract Appeals Board. The following is from the decision:

Quote

As addressed above, the central issue in dispute is whether the GPO contracting officer indicated his approval of the prior-to-production samples during the February 5, 2018, telephone call with Mr. LaCroix [the contractor's representative]. As discussed above, the parties have stipulated that the call occurred, but dispute what Mr. Coleman [the contracting officer] relayed to Mr. LaCroix. AJSF, ¶ 14.

As recounted above, Regal [the contractor] contends that Mr. LaCroix inquired of Mr. Coleman his views with respect to the prior-to-production samples of the Presidential Letter, and that Mr. Coleman responded that the samples “looked good.” Mr. LaCroix then made a note of Mr. Coleman’s approval of the samples (“verbal[ly] by phone”) for Regal’s file, and Regal commenced production of the Presidential Letters. See AHE 9, LaCroix Memo. to File at 1.

In contrast, the respondent [the GPO] does not offer a specific, contrary version regarding the content of the discussion. Indeed, Mr. Coleman repeatedly testified that he had no recollection of participating in the stipulated February 5 conference call, or any other discussions with Regal regarding the prior-to-production samples. See, e.g., Hearing Tr. 111:22–112:5; 120:18–24; 149:8–12. Thus, this case does not reasonably present the Board with conflicting recollections of the content of the February 5 telephone conversation upon which we must weigh the credibility of the opposing witnesses’ testimony. Rather, the record presents us with Mr. LaCroix’s credible testimony—which was provided under oath in live testimony before the Board—about the contents of the discussion and his contemporaneous notation of his impression of that conversation, against Mr. Coleman’s absence of any recollection that the call occurred, let alone the content of the discussion.5 

GPO nevertheless contests the notion that Mr. Coleman approved the prior-to-production samples. In support of its contention, GPO points to a number of matters that it suggests call into question the credibility of Mr. LaCroix’s testimony. As the following representative examples demonstrate, the Board is unconvinced by GPO’s arguments.

*     *     *

Additionally, we believe that Mr. Coleman’s response that the prior-to-production samples “look good” was sufficient to denote the government’s approval of the samples, especially here where the only record of the call shows that Mr. Coleman provided his “verbal [approval] by phone.” In this regard, there is no suggestion that Mr. Coleman in any way conditioned his approval by, for example, directing Regal to wait to produce the Presidential Letters until USCIS and/or the White House separately confirmed their approval... Thus, under the totality of the circumstances and absent any compelling evidence refuting Regal’s assertions regarding the content of the stipulated February 5, 2018, telephone call with the contracting officer, we find Mr. Coleman’s verbal representation that the prior-to-production samples “look good” was a sufficient and binding authorization.

 

The GAOCAP granted the contractor's appeal in the amount of about $225,000.

[formerfed]

I’ve got a similar story.  My first job was with the Army at an agency responsible for the centralized DoD purchase of ammunition during the Viet Nam era.  At the peak of the war, a critical shortage of ammunition occurred.  As My boss telephoned one of our contractors and told them to “immediately increase production of fuzes to the maximum capacity.”  The next day the contractor called back with an estimate for the new fuze unit price.  The estimate was about 50% more than current prices.  My boss told the contractor to proceed.

A few months later the contractor submitted the price proposal for a 100% increase.  Needless to say a dispute arose.  My boss claimed everything he approved was based on a ceiling.  The contractor claimed the agreement was on a “best effort” basis without monetary limit.  My boss made notes of the conversation but they didn’t have any details about pricing or ceiling.  His statements to the ASBCA was “no experienced contracting officer would authorize changes like that unless it was understood that a not-to-exceed applied.”

This went on and on with the ASBCA for years.  I think the court mostly sided with the contractor.