_____________________________________________ GRANTED AS TO ENTITLEMENT: November 26, 1997 _____________________________________________ GSBCA 14057 TRAVEL CENTRE, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. O. Kevin Vincent of Baker & Botts, Washington, DC, counsel for Appellant. Wendy Nevett Bazil and Michael D. Tully, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges PARKER, HYATT, and VERGILIO. PARKER, Board Judge. Travel Centre, appellant, maintains that the General Services Administration (GSA), respondent, breached a contract under which Travel Centre was to provide travel management services to federal agencies in the states of Maine and New Hampshire. The contract was breached, according to appellant, because GSA knew at the time the contract was awarded that the estimates provided by GSA of the amount of business which could be expected under the contract, and upon which offerors were required to base their proposals, were vastly overstated. Thus, appellant argues, GSA knowingly misled Travel Centre into entering into a contract under which Travel Centre was certain to lose money. As discussed below, we agree with Travel Centre that GSA breached the contract. Findings of Fact The Solicitation On April 21, 1995, GSA issued a solicitation for the establishment and operation of a travel management center for federal agencies located in Maine, New Hampshire and Vermont for the period from October 1, 1995 through September 30, 1996, with four one-year option periods. The solicitation contemplated award of an indefinite quantity, indefinite delivery type contract, with a guaranteed minimum revenue of $100. Appeal File, Exhibit 2. Essentially, the winning contractor would serve as a preferred, but not mandatory, source for federal agencies that required airline tickets, lodging, rental vehicles, etc. for their employees. The winning contractor would not be paid by the Government to perform these services, however; compensation under the contract would be in the form of commissions received by the contractor from the carriers, hotels and car rental companies from which the services were procured. Id. at 27. The winning contractor would be required to rebate a percentage of these commissions to the Government. Id. at 30. Section B-2 of the solicitation offered the following caution to prospective offerors: IMPACT OF NON-MANDATORY USE ON SALES ESTIMATES: Sales estimates, agency names, and any other information in Section H, is provided solely for informational purposes, and does not represent any guaranty of sales. It is not known how many Federal agencies will choose to utilize this contract, and it is not known how much business this contract will generate for the Contractor. Appeal File, Exhibit 2 at 8. Section H of the solicitation provided the following information: ITEM 1: STATE OF MAINE . . . . FY94 DATA: 4,156 TICKETS $1,861,700 ANNUAL DOLLAR AMOUNT (Sources: GSA forms 3531 and current agency customer list) Offerors shall base their offer[s] on the above illustrated FY94 figures. The following table is for information purposes only and it does not represent any guaranty of sales, it does not list all of the Federal agencies located in the state, and it does not reflect any commitments received by GSA from the Federal agencies (listed below or otherwise) to utilize any contract resulting from this solicitation. [A table of requirements, broken down by individual agency, followed. There were numerous errors contained in the table.] Appeal File, Exhibit 2 at 30a. The parties agree that 2,186 of the tickets and $992,900 of the annual dollar amount were attributable to Maine Air and Army National Guard (MEANG) and Department of Defense (DoD) agencies. GSA's Knowledge of Expected Business In December 1994, GSA received a "Monthly Narrative" report from Dube Travel, the incumbent contractor for the state of Maine.[foot#] 1 The narrative informed GSA that The Department of the Army has solicited bids for 19 states including Maine, which encompasses all of the National Guards' units worth $121,000,000.00 It has been won by Carlson Travel, along with it's [sic] other five contracts. They are due to take over the Army National Guard account in February 1995. Appeal File, Exhibit 55. The information was repeated in Dube's monthly reports received by GSA in January and February. Id., Exhibits 56, 57. In preparing for the current solicitation, respondent contends that it conducted a telephone survey during February- March 1995 of potential federal customers for the new contract. Appeal File, Exhibit 67. Telephone records for the relevant period, however, show at most one call, on April 6, 1995, which could possibly have been made in connection with a telephone survey. The forty-four other agencies which were customers for the predecessor contract apparently were not contacted at all. Id., Exhibit 78. GSA has stipulated that its "limited telephone survey of potential customers prior to issuance of the 1995 RFP [request for proposals] was inadequate to properly update the survey data used in the 1994 solicitation." Stipulation 8. Travel Centre submitted its proposal on May 24, 1995. Stipulation 21. On June 27, the agent for MEANG issued a notice ----------- FOOTNOTE BEGINS --------- [foot #] 1 During the predecessor contract, most federal agencies were required to use GSA contracts as mandatory sources for their travel agency requirements. This situation changed between the award of the predecessor contract and the contract at issue in this appeal; GSA became a "preferred provider" instead of a "mandatory source." Appeal File, Exhibit 100. of termination of travel services, effective August 20, to Dube Travel. On August 15, Travel Centre submitted a best and final offer. On September 18, GSA received a Monthly Narrative from Dube Travel that stated: With the Camp Keyes being taken over by another larger out-of-state agency on August 20, 1995, we are no longer servicing the Camp Keyes accounts which includes Maine Air National Guard units, and the U.S. Army Battalion and Recruiting units. ----------- FOOTNOTE ENDS --------- Appeal File, Exhibit 59. On October 10, GSA requested a second best and final offer from Travel Centre. Id., Exhibit 7. Travel Centre submitted an amended best and final offer the same day. Stipulation 25. During this whole process, GSA never said a word about the information that it had received about the MEANG and DoD units, notwithstanding the fact that these units generated more than half of the expected business in Maine. GSA has stipulated that "the incumbent contractor's notification of a competing source of supply should have prompted GSA to make further inquiry into the matter." Stipulation 24. Contract Award and Subsequent Events On October 25, 1995, GSA awarded to Travel Centre a contract for travel management services for the states of Maine and New Hampshire (appellant was not awarded the contract for Vermont). Shortly after it began performance of the contract, Travel Centre learned that the MEANG and DoD agencies would not be participating in the contract. Appeal File, Exhibit 66.[foot #]2 When expected revenues did not materialize, Travel Centre closed its business. Appellant's Record Submission and Brief, Exhibit A. On June 21, 1996, GSA terminated the contract for default. GSA changed the default termination to one for the convenience of the Government on April 30, 1997. Stipulation 35. Travel Centre filed its claim for breach of contract on October 21, 1996 and, on January 2, 1997, appealed the GSA contracting officer's denial of that claim. The parties have requested that the Board decide only the issue of entitlement. Discussion ----------- FOOTNOTE BEGINS --------- [foot #]2 Although GSA maintains that Travel Centre knew about the Carlson Travel contract prior to contract award, this contention is not supported in the record. Travel Centre admits to hearing about a large contract award to Carlson Travel, but maintains that it had no idea that Carlson's contract covered the same agencies covered by GSA's solicitation. Appeal File, Exhibit 66 at 25-28. There is no evidence to the contrary. ----------- FOOTNOTE ENDS --------- Travel Centre contends that GSA breached the contract for travel services because GSA knew or should have known at the time of award that the estimates provided by GSA of the amount of business which could be expected under the contract, and upon which offerors were required to base their proposals, were vastly overstated. We agree. There are many factors which enter into the assignment of risk of a bad Government estimate. Among these are the potential for economic injury to the contractor, the form of contract chosen and the degree to which the estimating process itself was defective. S & W Tire Services, Inc., GSBCA 6376, 82-2 BCA 16,048. An estimate as to a material matter in a bidding invitation is an expedient. Ordinarily it is only used where there is a recognized need for guidance to bidders on a particular point but specific information is not readily available. Intrinsically, the estimate that is made in such circumstances must be the product of such relevant underlying information as is available to the author of the invitation. If the bidder were not entitled to so regard it, its inclusion in the invitation would be surplusage at best or deception at worst. Assuming that the bidder acts reasonably, he is entitled to rely on Government estimates as representing honest and informed conclusions. In short, in promulgating an estimate for bidding- invitation purposes, the government is not required to be clairvoyant but it is obliged to base that estimate on all relevant information that is reasonably available to it. Womack v. United States, 389 F.2d 793, 801 (Ct. Cl. 1968). To GSA's credit, the agency has not attempted to defend either the accuracy of its estimate or the manner in which the estimate was constructed. GSA argues that, although the agency was negligent in preparing the estimate, it was not guilty of the "bad faith" necessary to constitute a breach of contract. According to GSA, a termination for the convenience of the Government is the appropriate remedy. Courts and boards of contract appeals have struggled mightily with the question of where to draw the line between a breach of contract by the Government and a legitimate use of the Government's power to terminate a contract for convenience. Prior to 1982, courts consistently held that terminations for convenience would be overturned only in cases of "bad faith" or "abuse of discretion" on the part of the Government. John Reiner & Co. v. United States, 325 F.2d 438 (Ct. Cl. 1963), cert. denied, 377 U.S. 931 (1964). In some cases, the required "bad faith" was equated with a specific intent on the part of the Government to injure the contractor. Kalvar Corp. v. United States, 543 F.2d 1298 (Ct. Cl. 1976), cert. denied, 434 U.S. 830 (1977). The field was muddied somewhat with the Court of Claims' decision in Torncello v. United States, 681 F.2d 756 (Ct. Cl. 1982). Torncello involved a requirements contract for various janitorial services. The Navy, believing that one of the items was overpriced, performed the work in-house. In a plurality opinion, the court held that the Navy's failure to order the work constituted a breach of contract, not because of bad faith or abuse of discretion on the part of the Navy, but because a termination for convenience could only be justified where circumstances had changed after the contract was awarded. Id. at 772. Since circumstances had not changed after award, the Navy could not rely on the termination for convenience clause to avoid a breach. The limit on the Government's power to terminate a contract for convenience established in Torncello has been substantially eroded in subsequent cases, most significantly by the Court of Appeals for the Federal Circuit in Krygoski Construction Co. v. United States, 94 F.3d 1537 (Fed. Cir. 1996). In Krygoski, the U.S. Army Corps of Engineers terminated for convenience a contract to demolish two buildings when it found that the amount of asbestos which needed to be removed was far in excess of the amount which had been estimated. The Corps considered the proposed price increase of about thirty-three percent to be a cardinal change and decided to terminate the contract and resolicit based upon the new requirements. In reversing the Court of Federal Claims' award of breach damages, the Federal Circuit rejected the Torncello "changed circumstances" test, holding that Torncello applies "only when the Government enters a contract with no intention of fulfilling its promises." 94 F.3d at 1545. The Federal Circuit determined that the contracting officer, by terminating the contract for convenience to avoid a cardinal change, did not act in bad faith or abuse his discretion. Given the current state of the law, which seems to be about the same as it was prior to 1982, we must determine whether GSA's termination for convenience of Travel Centre's contract as a result of a severely deficient estimate was in bad faith or constituted an abuse of discretion. As discussed below, we think that GSA did breach the contract -- GSA's actions in connection with the award of the contract demonstrated bad faith. Boards of contract appeals have been deciding faulty estimate cases for a long time. Of the many confusing and seemingly conflicting cases, the one that makes the most sense to us in terms of application to the instant case is Atlantic Garages, Inc., GSBCA 5891, 82-1 BCA 15,479. In Atlantic Garages, a faulty estimate of the number of vehicles that would need to be repaired during the year suffered from the same basic defect as the faulty estimate here -- the Government's actions were sufficiently irrational as to support a finding that it knew or should have known that the estimate was not based on all relevant information. Also, as here, the irrationally-arrived-at estimate (and the resulting lack of income) caused the contractor to lose money and fail to meet its financial obligations. The Board held that the Government's actions in arriving at such an irrational estimate constituted a breach of contract: The decisions establish that an estimate on which a prospective contractor must necessarily base its prices is an estimate to which the Government will be closely held. Although they use the rubric "due care" or "good faith," which appears at times to be the sole basis for the decision, cases such as Womack would probably have reached the same result regardless of the degree of care of the procuring personnel. But Pied Piper [Pied Piper Ice Cream, Inc., ASBCA 20605, 76- 2 BCA 12,148] shows that other elements can also affect the result, such as the extent of the estimating error, the potential injury to the contractor, and the degree of care exercised by the procuring personnel in carrying out their responsibilities for formulating accurate estimates. . . . . Whatever risks a contractor takes should not include the risk that the contract will be based on an irrationally contrived estimate. Atlantic Garages, 82-1 BCA at 76,710. We think that this analysis makes good sense and is not inconsistent with more recent cases such as Krygoski. Here, GSA's irrationally-arrived-at estimate was not merely the result of a run-of-the-mill mistake. GSA awarded a contract to Travel Centre knowing (or recklessly disregarding information that gave GSA every reason to know) that the estimate was vastly overstated and knowing that Travel Centre, in accordance with GSA's direction, had based its offer upon the estimate. By not telling offerors that half of the estimated sales for Maine would not be attainable, GSA withheld crucial information material to an offeror's decision whether to submit a proposal at all and, if so, how to structure it. Under such circumstances, whether GSA actually knew about important additional relevant information, or recklessly disregarded it (an explanation which we do not find credible but, in any event, amounts to the same thing), potential injury to Travel Centre was present from the outset. We reject GSA's argument that such behavior lacks the bad faith element necessary to sustain a finding of breach. GSA argues that, since (1) the contract was for an indefinite quantity, with a minimum guaranteed revenue of only $100, (2) there was no guarantee that any of the listed agencies would actually use the contract, and (3) Travel Centre actually received more than $100 in revenue, there was no breach. We disagree. First, we have serious doubts that, even in the case of a true indefinite quantity contract, the contractor accepts the risk that the Government has misled him as to the amount of business which he might reasonably expect. In normal circumstances, a contractor assumes that the Government has prepared its estimate in good faith and accepts the risk that he may not achieve the level of sales estimated. However, where the Government knows or has reason to know that the contractor has no chance of achieving the estimated quantity of sales, and fails to disclose that fact prior to entering into the contract, the term "risk" is a misnomer. The impossibility of reward for which the contractor accepts the risks of an indefinite quantity contract is a certainty known only to the Government. In this situation, for the Government to argue that the contractor assumed this risk is absurd.3 GSA's argument also overlooks a crucial fact: this was no ordinary indefinite quantity contact in which the Government promises nothing more than to purchase the minimum quantity. The solicitation told offerors that the winning contractor would be the preferred source for federal agencies in the region and required offerors to base their offers on the estimates provided. Thus, although there was no guarantee of a certain amount of business beyond the $100 minimum, the solicitation, unlike the typical indefinite quantity contract, set up a situation in which the likelihood of economic injury to the contractor was considerable if GSA's estimate was defective. By inducing Travel Centre to base its proposal on quantities that GSA knew or should have known were overstated, GSA breached its duty to deal with ----------- FOOTNOTE BEGINS --------- [foot #]3 he situation here is analogous to one which arises most often in construction cases in which the Government is accused of failing to disclose its superior knowledge about a condition affecting performance. The duty to disclose superior knowledge applies in situations where (1) a contractor undertakes to perform without vital knowledge of a fact that affects performance costs or duration; (2) the respondent was aware the contractor had no knowledge of and had no reason to obtain such information; (3) any contract specification supplied misled the contractor, or did not put it on notice to inquire; and (4) the respondent failed to provide the relevant information. Petrochem Services, Inc. v. United States, 837 F.2d 1076 (Fed. Cir. 1988). Travel Centre fairly and in good faith. In other words, GSA entered into the contract "with no intention of fulfilling its promises." Krygoski, 94 F.3d at 1545.[foot #] 4 ----------- FOOTNOTE ENDS------- Finally, GSA argues that the Government is not responsible for the consequences of the faulty estimate because the solicitation told offerors that the estimates provided were "solely for informational purposes." This argument, however, misses the mark. It is well established that where the Government requires offerors to base their proposals on information it provides, it may not absolve itself of risk merely by labeling data supplied in the solicitation "for information purposes only." Cherry Hill Construction Corp. v. General Services Administration, GSBCA 11217, 92-3 BCA 25,179. The dissent essentially argues that it is acceptable for the Government to award a contract which permits a contractor to sell his services within a certain "territory," where the Government knows prior to the award that the territory is far less vast than represented in the solicitation, as long as the Government puts in the contract boilerplate language to the effect that it does not guarantee any amount of sales beyond a stated minimum. Thus, according to the dissent, when the contractor incurs the losses that were a certainty known only to the Government, the contractor is without recourse because he accepted the "risk" that this would occur. If a baseball team sold the rights to sell beer during baseball games, telling the offerors to base their offers on last year's sales, and then announced after the fact that the team had previously decided to move to a stadium half the size next year, would we say that the vendor assumed the risk that the team owner would withhold this material information? We should not do so here, either. ----------- FOOTNOTE BEGINS --------- [foot #]4 Although GSA breached the contract, we do agree with GSA that calculating the amount of damages may be problematic. Whether, and if so, to what extent, anticipated profits can be reasonably foreseeable on an indefinite quantity contract is an issue which will arise in the quantum phase of this appeal. ----------- FOOTNOTE ENDS --------- Decision For the reasons discussed above, the appeal is GRANTED as to entitlement. The Board will issue an order on further proceedings for the quantum phase of this appeal after convening a conference with the parties. ________________________ ROBERT W. PARKER Board Judge I concur: _____________________ CATHERINE B. HYATT Board Judge VERGILIO, Board Judge, dissenting. My view of the underlying facts and case law differs from that of the majority. I conclude that the contractor is not entitled to relief under its contract; therefore, I dissent from the majority's decision. This offeror obtained work in excess of the guaranteed minimum. Thereafter, it ceased performance. Rather than leave the default termination in place, the agency converted it to one for the convenience of the Government. Apparently this was in recognition of the possibility that the contractor's failure to perform may have been attributable, at least in part, to a failure in communications prior to award. In my view, the findings do not support a conclusion that agency actions leading to the termination for convenience constituted a breach of good faith. Moreover, even if a breach did occur by the agency in the formation process, the record establishes that the contractor could not have reasonably relied on the information provided to now support a demand of entitlement to relief. In fact, the majority finds entitlement in the absence of proof of actual reliance on the solicitation figures such that there is no basis to conclude that the contractor was affected by the alleged breach. The majority posits the issue to be resolved as "whether GSA's termination for convenience of Travel Centre's contract as a result of a severely deficient estimate was in bad faith or constituted an abuse of discretion." The contract was terminated (initially for default and later converted to a termination for the convenience of the Government) because Travel Centre closed its business during the contract period, after the Government had satisfied the minimum guaranteed under the contract. The agency fulfilled its obligations under the indefinite-delivery, indefinite-quantity (IDIQ) contract, as awarded. 48 CFR 16.501- 2(b)(3) (1995) ("Indefinite-quantity contracts limit the Government's obligation to the minimum quantity specified in the contract"). Faced with a non-performing contractor, a termination cannot be said to be in bad faith or to constitute an abuse of discretion, if the agency had fulfilled its obligations up to that point in time. A more fundamental question underlies this appeal. The contractor contends that the agency acted in bad faith by entering into the contract with pricing based upon solicitation information which the agency knew or should have known was inaccurate. The contractor asserts that the solicitation overstates the potential business attainable under the IDIQ contract. The contractor maintains that it priced its offer utilizing the solicitation's figures and that correct figures would have led to a different contract. As a result, the contractor concludes that it is entitled to relief for an agency breach in the formation of the contract. The findings and record fall short of meeting the standard of "well-nigh irrefragable proof" required to overcome the presumption of good faith dealing by the agency. Kalvar Corp. v. United States, 543 F.2d 1298, 1301-03 (Ct. Cl. 1976). Presumptions and assumptions unsupported by the record do not justify a conclusion of bad faith on the part of the agency. Lacking is an indication of an intentional or deliberate attempt to mislead or an abuse of discretion. The information provided to the agency by Dube Travel about military entities was limited in substance--the reports do not indicate the type, scope, pricing structure, or duration of the underlying contract(s) or the potential impact on the contract here at issue. The majority's findings are not specific as to who at the agency reviewed the information, and if the individual(s) had any connection with this IDIQ solicitation and should have understood the potential impact on the available work under the IDIQ contract. Moreover, nothing in the reports suggests that a non-mandatory contract(s) was not awarded, such that the contractor under the IDIQ contract may have been able to obtain business despite the other contract(s). While it would not have been improper for the agency to voluntarily pass on the information provided or derivable therefrom (and the agency may have been required to reveal information if a protest was filed demanding current, realistic data), the findings do not indicate support for a conclusion of bad faith or an abuse of discretion. Even if one assumes agency impropriety in withholding information regarding the military entities (that is, a mis- statement regarding potentially attainable work), the contractor's position demanding breach compensation is fatally flawed in light of the data in section H and the language in the solicitation. The section H figures are internally inconsistent and, therefore, patently unreliable. This is so because the individual entries found in section H associate for specific agencies or entities a number of official travel tickets, an annual dollar amount, and other data. The actual sums of the entries for tickets (3,100) and for dollar amounts ($1,101,891) are not the totals identified in the solicitation: 4,979 and $1,601,891, respectively. The contractor submitted its proposal without seeking clarification of which figures, if any, were accurate. Further, while the parties may agree that 2,186 of the tickets and $992,900 of the annual dollar amount were attributable to military entities, the table for Maine found in the solicitation reveals subtotals for these entities of 1,285 and $368,379, respectively. At best, the contractor could have anticipated the work identified in the solicitation, not the figures now recognized by the parties. Exhibit 2 at 30a-35. The language of the solicitation further alerts offerors to the unreliability of the data and figures in the solicitation (ignoring the inconsistencies explained above) as an indicator of potentially attainable work. This occurs in section B, where the solicitation highlights that a mandatory-use contract will no longer be in place, such that it is unknown how many agencies will utilize the contract and how much business will be generated. Exhibit 2 at 8 ( B-2). Given the section B language, section H contains some mixed guidance. It specifies a number of tickets and annual dollar amount for fiscal year 1994 (FY94), said to be based upon "current agency customer list," and directs that "Offerors shall base their offer on the above illustrated FY94 figures." Also, the section highlights that the table of figures (discussed in the paragraph above) does not reflect any commitments received by GSA from agencies to utilize the IDIQ contract. Id. at 30a. The direction to prepare proposals utilizing fiscal year 1994 data for an IDIQ contract with a base year of fiscal year 1996 does not say to do so without regard to the other terms and conditions of the contract. The solicitation contains cautionary language regarding the figures and estimates. Just as offerors are directed to price options for evaluation and selection purposes, the agency's failure to exercise an option does not result in the repricing of the base contract. While the majority reads the phrase as an absolute direction establishing the actual and reasonable reliance on figures, the findings fail to reveal any reliance in fact. It may be that the contractor obtained precisely the amount of work it assumed it would obtain under the contract. The statement that the solicitation does not reveal commitments received alerts offerors to the fact that the agency may not be revealing information it possessed--that is, actual commitments. Such information would reflect current, relevant data. However, offerors were content to compete without that information. The language of the solicitation in sections B and H make it patently obvious that the information provided was not necessarily realistic or current at the time of award in terms of which agencies would (or would not) be utilizing the IDIQ contract. Objections to terms of a solicitation must be raised before the submission of offers. Having obtained the award on the underlying competition, the contractor is not in a position to object to the lack of information when that lack of information was plain from the terms of the solicitation. Because the solicitation contains patently inconsistent figures and clearly states that sales estimates do not reflect known commitments of agencies to utilize the IDIQ contract, the agency's failure to provide that information cannot be challenged after-the-fact and viewed as a compensable breach. This competitively awarded IDIQ contract should be viewed as are other IDIQ contracts when the guaranteed minimum quantity was ordered. Dot Systems, Inc. v. United States, 231 Ct. Cl. 765 (1982); C.F.S. Air Cargo, Inc., ASBCA 40694, 91-2 BCA 23,985; DynCorp., ASBCA 38862, 91-2 BCA 24,044. I find no reason to depart from the rationale of these decisions. It is inappropriate to reform the contract to reallocate risks expressly placed upon the contractor. The guaranteed minimum did not change because some entities entered into their own contracts. During the formation process, this offeror could have sought clarification of the estimates and up-to-date information on potential users, or could have decided not to compete without the information. This contractor, which submitted an offer in light of the expressly limited amount of information, should not now benefit by shifting the risks under which it competed. Some further comments on entitlement Apart from my finding no agency breach, if one assumes the asserted breach, I also disagree with the majority's conclusion that the contractor has demonstrated entitlement to relief. The information provided by Dube Travel does not reveal the type (IDIQ, mandatory use, or other), pricing structure, or duration of the contracts of the Maine Air National Guard and Department of Defense entities. The majority has not found that Travel Centre's prices were competitive with pricing under those contracts. Further, the majority has not made findings which indicate how Travel Centre priced its offer; thus, it is possible that it priced its offer based on the level of work actually ordered under the contract, such that it did not detrimentally rely on the sales estimates. The majority assumes that an agency breach entitles a contractor to recover, even in the absence of detrimental reliance or cause and effect between the agency's breaching action and the position of the contractor. The contractor bears the burden of proof in the entitlement phase of a proceeding, because absent detrimental reliance or harm the quantum phase should not be reached. Finally, regarding the New Hampshire portion of the contract, no findings suggest a breach regarding the award, or any impropriety in the termination, such that a basis for entitlement is lacking. Comments on other statements by the majority The suggestions of the majority in the final paragraph of its discussion reveal a misunderstanding of my analysis and conclusions. The solicitation states that it does not reflect received commitments of agencies to utilize the IDIQ contract. That language, with the resulting incompleteness of information, was an element of the underlying competition. It is too late to argue a breach by the agency, when the contractor knowingly competed without information which it says affected its ability to compete. Thus, while I agree that it is wrong for an agency to mislead an offeror in pricing its proposal (whether IDIQ or otherwise), I find that the language of the solicitation should not have misled the contractor, that the facts do not reveal an intentional or deliberate attempt to mislead, and that the facts do not reveal a level of reliance supporting a conclusion of entitlement. Moreover, nothing in the record suggests that losses were a certainty, or that the agency should have anticipated contractor losses, particularly given the IDIQ contractual vehicle. What is missing from the hypothetical raised by the majority is a critical element of the solicitation to parallel that here. That is, in obtaining a contract for beer sales, the team states that it is not prepared to state a commitment to remain or not in the stadium for the year of the contract. If the beer vendors are willing to compete notwithstanding the absence of such a commitment, I would find an after-award allegation of entitlement to relief for breach for not revealing a change of stadiums to be unsupportable. Further, the attendance at the new stadium may be the same (or greater) than that at the larger stadium, and beer sales may actually be greater; unlike the majority, I do not assume material facts in favor of a party which has the burden of proof in the entitlement phase of this proceeding. _________________________ JOSEPH A. VERGILIO Board Judge