Board of Contract Appeals
                    General Services Administration
                         Washington, D.C. 20405
 
                THIS OPINION WAS INITIALLY ISSUED UNDER
                 PROTECTIVE ORDER AND IS BEING RELEASED
          TO THE PUBLIC IN REDACTED FORM ON NOVEMBER 16, 1998
             ______________________________________________
 
                        DENIED: October 30, 1998
             ______________________________________________
 
 
             GSBCA 13298, 13507, 13508, 13509, 13510, 13511
 
 
                      ACE-FEDERAL REPORTERS, INC.,
 
                     ANN RILEY & ASSOCIATES, LTD.,
 
                         ARTI RECORDING, INC.,
 
                    CALIFORNIA SHORTHAND REPORTING,
 
                       EXECUTIVE COURT REPORTERS,
 
                                  and
 
                      MILLER REPORTING CO., INC.,
 
                                                Appellants,
 
                                   v.
 
                    GENERAL SERVICES ADMINISTRATION,
 
                                                Respondent.
 
        Ronald K.  Henry  and  Mark  A. Riordan  of  Kaye,  Scholer,
   Fierman, Hays & Handler, Washington, DC, counsel for Appellants.
 
        John E. Cornell, Office of General Counsel, General Services
   Administration, Washington, DC, counsel for Respondent.
 
   Before Board Judges PARKER, HYATT, and WILLIAMS.
 
   WILLIAMS, Board Judge.
 
        In  these  appeals,  six  court   reporting  companies  seek
   $4,972,363.85 in  lost profits and $2,486,181.90 in consequential
   damages  due to  alleged  breaches  of  their  mandatory  General
   Services Administration  (GSA) multiple award  schedule contracts
   for court  reporting services  by  numerous user  agencies.   The
   facts  are largely  undisputed, and  the  parties have  submitted
   their cases on the record.[foot #] 1
 
 
        As  a threshold matter, respondent argues that a majority of
   appellants' claims are barred under the statute of limitations in
   the  Federal Acquisition  Streamlining Act  of 1994  (FASA).   We
   disagree.     FASA   provides  that   its  statute-of-limitations
   provision  takes  effect  on  the  date  specified  in  its final
   implementing regulations.   The regulations  promulgated pursuant
   to  that statute unambiguously state that the six-year limitation
   period shall not apply  to contracts awarded prior  to October 1,
   1995,  and  renders  the  statute  inapplicable  to  the  instant
   contracts, which were all awarded in 1988.
 
        Respondent has raised several defenses to liability.  First,
   respondent  contends that  appellants are  not  entitled to  lost
   profits   because,  absent   bad  faith,   the  termination   for
   convenience  clause in the  contracts precludes damages  for lost
   profits.   Essentially,  GSA  is arguing  that  because the  user
   agencies' off-schedule purchases were not made  in bad faith, the
   Board should impose a "constructive  termination for convenience"
   and    deny    breach    damages.[foot #] 2        Second,    GSA
   contends  that, based  upon  the  equities,  appellants  are  not
   entitled  to recover  because  they  received  orders  under  the
   contracts  exceeding  the  estimated  quantities  stated  in  the
   request  for proposals  (RFP).    Third,  GSA argues  that  court
   reporting for  grand jury  proceedings is  outside  the scope  of
   appellants'  contracts.   Fourth,  respondent contends  that each
   off-schedule purchase made at a lower price than schedule pricing
   was  an  exception  to  mandatory  use  pursuant  to the  Federal
   Property Management Regulation (FPMR), 41 CFR 101-26.401-4(f)(1).
   Fifth,  respondent  contends  that   appellants'  contracts  were
   illusory  because there were numerous exceptions to GSA's promise
   that  the court reporting requirements would be satisfied through
   these  contracts and the  exceptions taken together  vitiated the
   value of that promise, respondent's sole consideration.
 
        Appellants vigorously dispute  the validity of all  of these
   defenses, but  we do not  address their applicability  because we
   conclude  that appellants  have not  demonstrated  that they  are
   entitled  to recover lost profits or consequential damages, under
   the terms of their contracts.   Appellants' claim for recovery of
   lost profits based upon a  diversion theory and their reliance on
   S&W Tires is misplaced.  S&W Tires and other diversion cases  are
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 1 The parties filed 131 paragraphs of stipulations.
 
        [foot #] 2 In  so  arguing, respondent  urges  the  Board to
   distinguish  S&W  Tire  Services, Inc.,  GSBCA 6376,  82-2  BCA  
                _________________________
   16,048, and follow  John Reiner & Co. v.  United States, 325 F.2d
                       ___________________________________
   438 (Ct. Cl. 1963), cert. denied, 377 U.S. 931 (1964), and Kalvar
                       ____________                           ______
   Corp. v. United States, 543 F.2d 1298, 1304 (Ct. Cl. 1976), cert.
   ______________________                                      _____
   denied, 434 U.S. 830 (1977).
   ______
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   distinguishable in  a critical  respect --  those contracts  were
   requirements contracts and  one contractor was guaranteed  all of
   the  users'  requirements.     Each  appellant's  multiple  award
   schedule  contract  at issue  here  is  not  a pure  requirements
   contract in that no individual contractor was given the exclusive
   right to provide all the mandatory user agencies' court reporting
   services for the contract term.   Rather, the solicitation  which
   gave rise to these contracts and formed the basis of the parties'
   bargain  expressly  advised  offerors  that  there  could  be  an
   unspecified number of  "multiple" awards for any  geographic area
   for which  a  vendor chose  to  submit an  offer.   Further,  the
   contract did  not guarantee to  any awardee  that any  quantities
   would  be  ordered.    Nor  did the  contract  guarantee  to  any
   individual   awardee  a  percentage   of  the  totality   of  the
   Government's  required court  reporting  business. Agencies  were
   free  to  order  services based  upon  considerations  other than
   price.   As  such,  contractors  bore the  risk  they might  only
   receive an unspecified  amount of work, possibly  none, dependent
   upon  which of  the  multiple  award  schedule  contractors  user
   agencies elected to hire.
 
 
        User  agencies were not free to order services off-schedule,
   but the fact that they did  so does not give rise to a  remedy of
   either  lost profits or  consequential damages under  the instant
   contracts.   Appellants'  effort to  operate as  a consortium  of
   disappointed  vendors  claiming  breach   damages  based  upon  a
   diversion   of   the   potential   universe   of   work   divided
   proportionally  among them  must fail.   The  contracts were  not
   collective   endeavors   --   each   contractor  separately   and
   individually  offered   to   provide   services   at   different,
   independent  prices.  The  structure of the  individual contracts
   cannot  be altered  post hoc  to  bestow  collective  rights  and
   remedies neither originally contemplated nor bargained for.
 
                            Findings of Fact
 
   The Request for Proposals
 
        On   or  about  October 30,  1987,  GSA  issued  RFP  number
   FCGA-SS-SS205-N  soliciting  proposals  for court  reporting  and
   transcription  services contracts.  The  Statement of Work in the
   RFP specified:
 
             The   Contractor  shall   furnish  the   necessary
        personnel, materials, and services and otherwise do all
        things  necessary for  and  incidental to  the verbatim
        reporting and transcription  of conferences, courthouse
        and/or legal hearings, depositions, advisory board  and
        committee  meetings,  arbitration  hearings,  personnel
        grievances    and    appeal   hearings,    and    other
        administrative hearings for various Government agencies
        . . . .
 
   Appeal File, Exhibit 1 at 24.
 
        The     RFP    as     amended    sought     proposals    for
   transcribing/recording:     by   electronic  device,   stenomask,
   stenotype, and  floppy  disk.    Appeal File,  Exhibit 1  at  24.
   Offerors were required to be able to provide at least two  of the
   above methods of transcribing/recording.  Id.
 
        The  RFP  contemplated  multiple awards  of  what  it termed
   "requirements contracts"  under the federal supply schedule (FSS)
   for professional  verbatim  reporting  and  transcript  services.
   Appeal  File,  Exhibit 1  at  46,  97.    Paragraph  M.2  of  the
   solicitation provided:
 
        M.2  MULTIPLE AWARDS (M-FSS-305-B) (APR 1984)
 
             The  Government  may  make  multiple  awards   for
        services  listed herein  to those  responsible offerors
        whose offers, conforming to  the request for proposals,
        will be most advantages [sic] to the Government, taking
        into consideration the technical proposal and price for
        the  services  offered.    Offerors  are  advised  that
        agencies which contemplate placing orders for  services
        contained in  the contracts resulting from this request
        for  proposal[s]  will  be   instructed,  except  where
        precluded   by   administrative  expense   or   urgency
        considerations,  to  consider  equally  those  contract
        sources and other  sources to assure that  purchases of
        such  services are  made to  the best advantage  of the
        Government,  taking  into consideration  the  technical
        requirements,  price, availability,  delivery time  and
        any other pertinent factors.
 
   Appeal File, Exhibit 1 at 97.
 
        Amendment Two to  the solicitation clarified  Paragraph M.2,
   Multiple Awards, by adding the following:
 
        Where  the Government  makes multiple  awards, ordering
        agencies will  select a  contractor in  accordance with
        the provisions of this clause taking into consideration
        all   factors  mandated   by   the  clause:   technical
        requirements,  price, availability,  delivery time  and
        any   other  pertinent   factors   such  as   capacity.
        Selections need not be based solely on price.
 
   Respondent's Record Submission, Appendix, Exhibit 2, (Declaration
   of Doris L.  Marsh (Marsh Declaration) (July 14,  1997)), Exhibit
   12 at 2.
 
        The solicitation did  not advise offerors of any  minimum or
   maximum number  of contract  awards which  would result from  the
   instant   solicitation.    Paragraph   B.1  of  the  solicitation
   requested  offerors to  allow for  a minimum  of ninety  days for
   acceptance of their offers.  Appeal File, Exhibit 1 at 5.
 
        The RFP  and the  resultant contracts  included the  Federal
   Acquisition  Regulation   (FAR)  clause   entitled  "Requirements
   (52.216-21) (Apr. 1984)," which provided, in pertinent part:
 
        c)   Except as  this contract  otherwise provides,  the
        Government  shall  order from  the  Contractor all  the
        supplies or services specified in the Schedule that are
        required  to be purchased by the Government activity or
        activities specified in the Schedule.
 
   Appeal File, Exhibit 1 at 46 (emphasis added).
 
        Amendment One to the RFP stated:
 
             The solicitation  provides for  the normal  supply
        requirements of the Federal Government and will be used
        as  a mandatory  source for  the  articles or  services
        listed  herein  by  all  departments  and   independent
        establishments,   including   wholly-owned   Government
        corporations, in  the executive  branch (excluding  the
        U.S. Postal  Service, Department  of Defense,  National
        Labor  Relations   Board,  and  the   Equal  Employment
        Opportunity Commission)  for deliver[y]  within the  48
        Contiguous States and Washington, D.C.
 
             . . . .
 
        TEMPORARY EXCEPTION TO MANDATORY USE PROVISION:
 
        Any agency designated  above as a mandatory  user shall
        be  exempt from the mandatory use provision if prior to
        issuance  of  the  GSA contract,  the  agency  may have
        entered  into  a prior  contract  on  its own  with  an
        ordering  period  conflicting  with  the  GSA  contract
        ordering  period.    Upon  expiration of  the  agency's
        previous commitment,  the GSA mandatory  use provisions
        shall prevail without exception.
 
   Appeal File, Exhibit 1, Amendment One at 3.
 
        The RFP  and the  contracts contained  standard FAR  clauses
   applicable to service contracts, including  "Warranty of Services
   (52.246-20)  (Apr. 1984)" and "Termination for Convenience of the
   Government  (Services)  (52.249-4)(Apr.  1984)."    Appeal  File,
   Exhibit 1   at  49.    The  Termination  for  Convenience  clause
   provided:
 
             The Contracting  Officer, by  written notice,  may
        terminate this contract,  in whole or in part,  when it
        is  in the Government's interest.   If this contract is
        terminated, the  Government  shall be  liable only  for
        payment under  the payment provisions of  this contract
        for  services rendered  before  the effective  date  of
        termination.
   Id.
 
 
        The RFP's Schedule of Items  included line items for each of
   the   forty-eight   contiguous   states,  Alaska,   Hawaii,   and
   Puerto Rico, followed by sub-items covering Standard Metropolitan
   Statistical Areas  (SMSAs) or  Standard Consolidated  Statistical
   Areas  (SCSAs).    Each  offeror   was  requested  to  mark   the
   geographical  areas  covered  by its  proposal.    Offerors could
   propose to  provide services  for an entire  state or  to provide
   services within a designated sub-item.  Appeal File, Exhibit 1 at
   5.
 
        Prior  to the  contracts at  issue  in these  appeals, GSA's
   regional  office in Ft. Worth, Texas,  had awarded a single award
   schedule  contract   for  court   reporting  services  with   one
   contractor serving as the exclusive source for  all of designated
   users'  requirements in  the geographic  locale  awarded.   Marsh
   Declaration    1, 6.   The predecessor contract was mandatory for
   fourteen agencies.  Id.  The RFP at issue was mandatory  for over
   fifty agencies.  Id.    1.  The  Department of Justice was  not a
   mandatory user  of the predecessor  contract but was  a mandatory
   user  of the  contracts that  are the  subject of  these appeals.
   Appeal  File, Exhibit 18  at  2.   The  agencies  which were  not
   covered  by  the earlier  contracts  were  not  asked by  GSA  to
   estimate  their  requirements  prior  to  award  of   appellants'
   contracts.  Stipulation (July 11, 1997)   39 (citing Appeal File,
   Exhibit 18  at 5, General  Services Administration Report  to the
   General  Accounting Office (GSA  Report) at 10  (Feb. 19, 1993)).
   According to the contracting officer, "the estimated requirements
   do  not vary significantly in most  locations from the historical
   data generated  by the  prior, single  award schedule  contract."
   Marsh Declaration   5.
 
        In  the  original  solicitation,  paragraph  B.2,  Estimated
   Requirements,  provided  total  estimated  requirements  of  $3.5
   million for  the forty-eight  contiguous states, Alaska,  Hawaii,
   and  Puerto Rico.    Amendment B  to  the solicitation  clarified
   paragraph B.2 as follows:  
 
             2.   ESTIMATED    REQUIREMENTS    (B-FSS-FCGA-998)
                  (APR 1984)
 
             This  Request  for   Proposal  includes  estimated
        requirements  of  $3.5 million  for  the 48  contiguous
        states,  Alaska,  Hawaii,  and  Puerto  Rico  to  cover
        Government  agencies included  in Section I,  Clause I-
        FSS-102.   No guarantee  is given  that any  quantities
        will be ordered.   Estimated requirements shown  on the
        amended schedule of items are derived from requirements
        of  agencies   that  were  mandatory  users  under  the
        previous GSA contract and do not encompass requirements
        of  additional mandatory  users of  resultant contracts
        from this RFP.  Resultant contracts from this RFP  will
        be mandatory for the majority of Federal agencies.  The
 
        prices paid under previous contracts can be obtained by
        contacting the General Services Administration, Special
        Programs Division (FCGA), Washington, DC 20406.
 
        B.3  SCHEDULE OF ITEMS
 
             Estimated dollar  requirements as  clarified above
        have been  added for each Special Item  Number.  Delete
        pages  6 through 22  from the solicitation  and replace
        with pages 1 through 18 of Attachment One.
 
   Appeal File Exhibit 1 at 2 (emphasis added).
 
        The solicitation as amended contained eighteen pages listing
   each  geographic location nationwide  for which an  offeror could
   propose  services  and   the  estimated  dollar  amount   of  the
   requirements  for   each,  including   the  following   locations
   pertinent to this case: 
 
                               Special Item
   Estimated
        SCSA #      Number        State/City          Reqmnts
 
                    733-4         California         $140,000
        4480        733-4a        Los Angeles/Lg. Bch. 60,100
        0360        733-4b        Anaheim/Santa Ana     5,000
        6780        733-4c        Riverside/S..         2,500
        7360        733-4d        San Francisco/Oklnd. 34,800
        7400        733-4e        San Jose              2,500
        0680        733-4f        Bakersfield               0
        2840        733-4g        Fresno                3,200
        6920        733-4h        Sacramento            4,500
        7320        733-4i        San Diego            10,600
        7120        733-4j        Monteray (sic)       10,000
        7480        733-4k        Santa Barbara         5,800
 
        . . . .
 
                               Special Item
   Estimated
        SCSA #      Number        State/City          Reqmnts
 
        8840        733-8         District of Columbia
                                                     $100,000
                                  Maryland, Northern
                                  Virginia
 
        . . . .
 
                               Special Item
   Estimated
        SCSA #      Number        State/City          Reqmnts
 
                    733-12        Illinois            $33,500
        1600        733-12a       Chicago              32,000
 
        7880        733-12b       Springfield               0
        6120        733-12c       Peoria                1,500
 
        . . . .
 
                               Special Item
   Estimated
        SCSA #      Number        State/City          Reqmnts
 
                    733-29        New Jersey           $5,000
        5640        733-29a       Newark                5,000
        3480        733-29b       Trenton                   0
 
        . . . .
 
                               Special Item
   Estimated
        SCSA #      Number        State/City          Reqmnts
 
                    733-31        New York            $39,500
        1280        733-31a       Buffalo               3,000
        5600        733-31b       New York City/N.J.   27,500
        0160        733-31c       Albany                3,500
        5380        733-33d       Hempstead             2,500
        8160        733-33e       Syracuse              3,000
 
   Appeal File, Exhibit 1 at 2, 3, 5, 10, 11.
 
        Offerors  were required to propose per-page pricing for each
   method of  transcribing/reporting offered  for each  geographical
   area to be  covered.  Appeal File,  Exhibit 1 at 1-22.   Offerors
   were to  price three separate  delivery times for each  method of
   service offered: (1) daily, which required transcript delivery on
   the next  day by  not later than  12:00 noon;  (2) regular, which
   required delivery  before 5:00 p.m.  (or  prior to  the close  of
   business day for  the agency) of the twentieth  day following the
   hearing; and  (3) expedited,  which required  delivery not  later
   than 5:00 p.m. (or  prior to the  close of business  day for  the
   agency) of the sixth day following  the end of the hearing.   Id.
   The RFP also required offerors to state their proposed prices for
   additional copies  and ancillary  items such  as computer  disks.
   Id.  Finally,  offerors were obligated to  provide transcripts to
   third  parties on  whatever basis  they are  ordered at  the same
   price as the  Government for additional  copies.  Id.,  Amendment
   One at 2.
 
        Section F.6 of the RFP provided that the contractor would be
   paid a  minimum  of $100  per  day  for work  ordered  under  its
   contract under certain listed conditions.  Appeal File, Exhibit 1
   at  40.    Section F.7  of  the  RFP  further provided  that  the
   contractor  would  be   paid  overtime  in  accordance   with  an
   established formula.  Id. at 41.
 
        Amendment One, Paragraph I.10,  to the solicitation  advised
   offerors as follows:
 
        Articles  or services will be ordered from time to time
        in  such quantities  as may  be needed  to  fill agency
        requirements  determined in  accordance with  currently
        applicable supply procedures.   Since it is  impossible
        to pre-determine  the precise  quantities that will  be
        required  during the contract  term, each contractor is
        obligated  within the scope of this contract to deliver
        all articles and services ordered.
 
   Appeal File, Exhibit 1, Amendment One at 3.
 
        The  RFP did  not  prohibit  subcontracting  work,  and  the
   Government   recognized   that   appellants   proposed   to   use
   subcontractors  or independent contractors  as well as  their own
   full-time employees  to fulfill  schedule contract  requirements.
   Appeal File, Exhibits 1, 25 at 5, 28 at 5; see Appellants' Record
   Supplement, Exhibit 1 (Affidavit  of Robert Monick,  President of
   Ace-Federal Reporters, Inc. (Ace-Federal) (July 9,  1997)) at   4
   ("Ace-Federal  would   have  had  no  difficulty  performing  the
   additional work,  because the company  had in place a  network of
   subcontractors and  independent contractors the company  had used
   in  the  past   when  orders  exceeded  the   company's  in-house
   capabilities.");   Appellants'   Record   Supplement,  Exhibit 2,
   Affidavit  of Ann  Riley (Riley  Affidavit)  (July 10, 1997)    5
   ("Companies  in  the  court reporting  business  typically  use a
   combination   of   employees,    independent   contractors,   and
   subcontractors  to   perform   any  work   that  is   ordered.");
   Appellants'  Record Supplement,  Exhibit 3,  Affidavit of  Sandra
   Tankoos  (Tankoos Affidavit)  (July 8,  1997)    10;  Appellants'
   Record Supplement,  Exhibit 5, Affidavit of Marijke  Elder (Elder
   Affidavit)   (July 3, 1997)    9; Appellants'  Record Supplement,
   Exhibit 7, Affidavit of  Michael J. Tallman  (July 3, 1997)    7;
   Appellants' Record  Submission, Exhibit 9,  Affidavit of  Stephen
   Miller (July 8,  1997)     5, 6;  Appellants' Record  Supplement,
   Exhibit 15,   Appellant  Ace-Federal's   Answers  to   Respondent
   Interrogatory  No. 35.     (In  addition   to  some   sixty-seven
   subcontractors and independent contractors, Ace-Federal also "had
   available to  it all of the  court reporters listed in  the Court
   Reporters  Source  Book,  published  annually   by  the  National
   Shorthand  Reporters Association (now known as the National Court
   Reporters Association).").
 
   The Pre-Proposal Conference
 
        GSA conducted  a  pre-proposal  conference  on  November 23,
   1987.    During  the  conference,   representatives  of  Heritage
   Reporting Corporation  (Heritage) asked a GSA representative, Ms.
   Trilma  Davis, if  mandatory users  could "get  out of  using the
   Federal Supply Schedule."  Stipulation   25.  Ms. Davis responded
   that to be excused  from the schedule an agency would  first have
   to obtain  a waiver, but  that GSA had  no intention  of granting
   waivers and  that she  had input  into GSA's  decisionmaking when
   responding to requests for waivers.  Id.; Appeal File, Exhibit 17
   at 12.
 
   Proposals
 
 
        The parties stipulated that each of the appellants submitted
   a proposal in  response to the RFP with the  expectation that, by
   receiving award  of a  schedule contract, each  would be  able to
   develop and  maintain ongoing  relationships with  mandatory user
   federal  agencies for  which  they  had  not  previously  worked.
   Stipulation      43   (citing   Appellants'  Record   Supplement,
   Exhibits 1, 2, 4, 6, 8, 10).
 
   Award
 
        GSA awarded a total of ten multiple award contracts covering
   various geographic regions as a  result of the offers received in
   response to  the RFP.   Appeal File, Exhibit 3.   Alaska, Hawaii,
   and Puerto Rico were non-mandatory requirements.  Id.
 
        At  the  time  of  award,  each of  the  appellants  was  an
   established business  with  a history  of  performing  government
   contracts;  each  had one  or  more  established offices  in  its
   respective areas of award, and each had  made capital investments
   and developed an organization and structure that permitted it  to
   accommodate fluctuating workloads  through the use  of piece-work
   or payment-by-the-page labor.  Stipulation   46.  For example, as
   of 1988, Ace-Federal had been in  business for twenty-seven years
   and employed about  eighty-four people.  Id.   The company's 1988
   gross  receipts approached  $3,000,000, and  it  had invested  in
   equipment necessary  to conduct its  business, including computer
   equipment, copiers,  stenotype machines,  translation systems  to
   produce transcripts, recording  equipment, and delivery vehicles,
   valued  in excess  of $600,000.   Id.   Further,  Ace-Federal had
   developed  a network  of trained  subcontractors  and independent
   contractors to whom it could assign work on  a piece-work or per-
   page basis.  Id.
 
        By  letter dated  August 24, 1988,  GSA advised  Ace-Federal
   that  it  had  been  awarded  contract  number  GS-OOF-03036  for
   reporting and transcription  services for SMSA 840,  special item
   number (SIN) 733-8, for the  District of Columbia, Maryland,  and
   Northern  Virginia.    The  letter  further advised  Ace-Federal:
   "Multiple awards  will be made  for SIN 733-8, and  your contract
   will be one  of several for the area."   Appellants' Supplemental
   Appeal  File,   Exhibit 9.    Ace-Federal's  contract   ran  from
   August 1, 1988, through July 31, 1989, with two one-year options.
   Id.
 
        GSA  awarded contract  number GS-OOF-03035  to  Ann Riley  &
   Associates, Ltd. (Ann Riley) for the same term, with two one-year
   options.   The contract covered court reporting and transcription
   services for  the same  District of  Columbia metropolitan  area.
   Stipulation   48.  In its notification of award to Ann Riley, GSA
   stated:  "Multiple awards  will be  made for  SIN 733-8  and your
   contract will  be one  of several  for the  area."   Appeal File,
   Exhibit 29.
 
 
        By   letter  dated  August  12,  1988,  GSA  advised  Miller
   Reporting Co.,  Inc. (Miller)   that it  had received  a multiple
   award schedule contract for SIN 733-8 and that its contract would
   "be one of  several for the area."  Appeal File, Exhibit 26.  The
   term  of   Miller's  contract,  number  GS-OOF-03034,   ran  from
   August 1,  1988, through July 31, 1989, with two one-year options
   and also covered  court reporting and transcription  services for
   the District of  Columbia metropolitan area.  Id.;  Stipulation  
   52.   In  this contract,  the Government  expressly  reserved the
   right  to make  additional awards  under the  RFP.   Appeal File,
   Exhibit 26 at 5.
 
        GSA awarded contract number GS-OOF-03039 to ARTI  Recording,
   Inc. (ARTI), for the term August 19, 1988, through July 31, 1989,
   with two one-year options.  The  contract covered court reporting
   and transcription  services for  the New  York City  metropolitan
   area,  including portions of New Jersey.  The New York portion of
   this  area  included  Bronx,  Kings,  New York,  Putnam,  Queens,
   Richmond, Rockland,  and  Westchester  Counties;  the  New Jersey
   portion included only Bergen County.  Stipulation   49.
 
        By letter dated  September 30, 1988, GSA  advised California
   Shorthand  Reporting  (CSR)  that it  had  been  awarded contract
   number GS-OOF-03045 and  that multiple awards  had been made  for
   some  areas.[foot #] 3     The   term  of   CSR's  contract   ran
   from September 26, 1988, through July 31, 1989, with two one-year
   options, and  covered court reporting  and transcription services
   for  California   (except   Los Angeles   County)   and   Hawaii.
   Stipulation    50.    At  the time  of  award, GSA's  contracting
   officer advised  CSR's president  that multiple  awards had  been
   made in  California and  that there  were  two other  contractors
   which received  awards in  that state.   Appeal  File, Exhibit 35
   (Letter from Walter Young to Marijke Elder (Nov. 23, 1987)).  CSR
   acknowledged that it was "very much aware that there [were] other
   schedule  contractors in the  State of California  . . .  ."  Id.
   (Letter from Marijke Elder to Walter Young (Dec. 13, 1987)).
 
        By letter dated  September 23, 1988, GSA  notified Executive
   Court Reporters (Executive) that it had received a multiple award
   contract  for  reporting  and  transcription  services   covering
   special  item  numbers  733-4a,  8,   12a,  31b,  and  49.    The
   notification further advised Executive:  "Multiple awards will be
 
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 3 CSR's  contract  covered   a  nonmandatory  area,
   Hawaii, and CSR  was the only contractor which  received an award
   for this state.  Appeal File, Exhibit 3.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   made      for      some      areas."            Appeal      File,
   Exhibit 32.[foot #] 4         Executive's    contract,     number
   GS-OOF-03043,  ran  for  the  term  September 23,  1988,  through
   July 31, 1989, with  two one-year options.  The  contract covered
   court reporting and transcription services in Alaska, Los Angeles
   County   in  California,   the   New York/New Jersey  area,   the
   District of Columbia,  and  the Chicago  metropolitan area.   The
   contract defined the  Chicago metropolitan area to  include Cook,
   Dupage, Kane, Lake, McHenry, and Will Counties.  Id. 
 
 
        GSA  awarded contract  number  GS-OOF-03033 to  Heritage,  a
   company which is not an appellant  in this case, for the term  of
   August 1, 1988, through July 31, 1989, with two one-year options.
   The  contract   covered  all   types  of   court  reporting   and
   transcription services  for the forty-eight contiguous states and
   the     District      of     Columbia.           Appeal     File,
   Exhibit 3.[foot #] 5      In   thirty-nine   of  the   contiguous
   states, Heritage  was the sole contractor for mandatory users and
   in  the  remaining  contiguous states  and  in  Washington, D.C.,
   Heritage   was  one   of  several  contractors.     Id.[foot #] 6
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 4 Executive's contract covered Alaska,  which was a
   non-mandatory  area, and according to the schedule, Executive was
   the only  contractor  which received  an  award for  this  state.
   Appeal File, Exhibit 3.
 
        [foot #] 5 Heritage filed its  own appeal,  and the  parties
   settled  that  matter.    Heritage  Reporting  Corp.  v.  General
                             _______________________________________
   Services Administration, GSBCA 10396 (Aug. 22, 1992).
   _______________________
 
        [foot #] 6 Specifically, Heritage was awarded a contract for
   SIN 733-4 covering any area in California, including Los Angeles,
                      ___
   Long  Beach,  and   all  other  California   metropolitan  areas.
   Executive also  was awarded a  contract for Los Angeles  and Long
   Beach,  and CSR  was also  awarded a  contract for  SINs 733-4(b)
   through  (j), covering the Anaheim, Riverside, San Francisco, San
   Jose, Sacramento, San  Diego, and  Salinas areas.   Appeal  File,
   Exhibit 3.   Similarly, Heritage was  awarded a contract  for any
   area in the  states of Illinois and New York, including the areas
   also awarded to Executive in  Illinois, and to ARTI and Executive
   in New York.  Id.
                 ___
 
        In  its  decision  partially  adopting  the   allocation  of
   liability among various agencies resulting from the settlement of
   Heritage's appeal, the General Accounting Office recognized  that
   Heritage's award was a multiple award schedule (MAS) contract and
   stated: "A MAS consists of  contracts with more than one supplier
   for services  at  varying prices  for  delivery within  the  same
   geographic area.  In  this case, Heritage was listed  as the sole
   contractor for thirty-nine of the forty-eight  contiguous states;
   in the District of Columbia and the  remaining contiguous states,
   Heritage  was one  of  several  contractors  listed."    Heritage
                                                            ________
   Reporting Corp., B-252754, at 6 n.1 (Oct. 6, 1994).
   _______________
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   The contracting officer attested that  a mandatory user under the
   schedule contract "is  obligated to use  the contractors that  we
   have  awarded."    Appellants'  Record  Supplement,   Exhibit 22,
   Deposition  of   Doris  L.  Marsh   (Heritage  Reporting   Corp.,
   GSBCA 10396) at 10 (emphasis added).
 
 
        GSA  awarded contract number GS-OOF-03040 to a company which
   is  not  an  appellant  in  this  case,  Argie  Reporting Service
   (Argie), for  the term of August 19, 1988, through July 31, 1989,
   with two one-year options.   The contract covered court reporting
   and transcription services in Illinois, Nebraska, the  Des Moines
   and  Cedar Rapids metropolitan  areas in  Iowa, the  Kansas City,
   Topeka,  and  Wichita  metropolitan  areas  in  Kansas,  and  the
   Kansas City,  St. Louis,  and Springfield  metropolitan  areas in
   Missouri.  Stipulation   57.
 
        GSA awarded  contract number GS-OOF-03044 to  another entity
   which  is not  an appellant  in this  case, Arlington  Typing and
   Mailing  (Arlington), for the term of September 26, 1988, through
   July 31, 1989, with two one-year options.  Stipulation   58.  The
   contract covered court  reporting and  transcription services  in
   Massachusetts.  Id.
 
   GSA's Responsibility for the Schedule Contracts
 
        Under the multiple award  schedule, individual agencies were
   to   place  orders  directly   with  contractors,  but   GSA  had
   supervisory   responsibility  with   respect   to  the   schedule
   contracts.   Appeal File, Exhibit 22  at 2; 48 CFR  8.405 (1988).
   The parties stipulated that:
 
             GSA  exercises   supervisory  authority   for  the
        schedule   contracts  under   40 U.S.C.    481,   which
        provides  that the  Administrator  of General  Services
        shall prescribe policies and methods of procurement and
        supply of personal property and nonpersonal services. .
        . .  Pursuant to  41 U.S.C.   252, the civilian portion
        of the executive  branch is required to  make purchases
        and contracts  for property and  services in accordance
        with  the provisions  of  this  title and  implementing
        regulations   of  the  Administrator.   .  .  .     The
        implementing  regulations  are   the  Federal  Property
        Management Regulations (FPMR), found at 41 C.F.R.   101
        et seq.   41 C.F.R.   101-26.401 states,  in part, that
        "[a]ll executive agencies shall procure needed articles
        and services from Federal Supply Schedule contracts  in
        accordance  with  the  provisions  of  the  appropriate
        Federal Supply Schedule."  The burden of complying with
        mandatory  supply  schedules is  on  the  user agencies
        pursuant to  41 C.F.R.    101-26.401(a) which  provides
        that  "prior to  initiating  procurement directly  from
        commercial  sources, agencies  shall determine  whether
        the  required  commodities  and   services  or  similar
        commodities   and   services   serving   the   required
 
        functional end-use purpose are available from a Federal
        Supply  Schedule."    Under  the  FAR,  the  FPMR,  and
        existing  case law, GSA  has been recognized  as having
        overall supervisory responsibility for the GSA schedule
        contracts.
 
   Stipulation    36  (citing 48  CFR    38.00  et  seq.; 41  CFR   
   101-26.491 et  seq.; Digital  Equipment Corporation, GSBCA  9618,
   90-2 BCA   22,808; GSA Report at 2-3).
 
   Contract Terms
 
        Each contract contained all of the above-quoted solicitation
   terms, as well  as the awardee's schedule of  items, which listed
   each geographic  area, pricing, and  the type of  court reporting
   services the contractor  offered.  Amendments One and  Two to the
   RFP were incorporated into the contracts.
 
        Appellants and Heritage, Argie, and Arlington were listed in
   the  October 31, 1988, FSS  (OOSS 7301, Basic  Ed., "Professional
   Verbatim  Reporting and  Transcript  Services," Industrial  Group
   733, IG Class 7339).  Appeal File, Exhibit 3.
 
        The  parties stipulated that "mandatory user agencies had no
   authority to amend or terminate, in whole or in part, appellants'
   schedule contracts  for the convenience of the  government.  Only
   GSA's schedule  contracting officer had the authority to amend or
   terminate appellants' schedule  contracts for the convenience  of
   the government."  Stipulation   70 (citing FAR 8.405-6(a)).
 
   Performance
 
        Upon  award of  their schedule  contracts, appellants  began
   contacting   mandatory  user  agencies  directly  to  inform  the
   agencies that mandatory  schedule contracts had been  awarded and
   that the companies were ready to accept orders.  Stipulation   65
   (citing Elder Affidavit at     5, 6); Tankoos Affidavit at     5,
   6.
 
        GSA  was responsible for  printing and distributing  to user
   agencies a catalogue  of the supplies or services available under
   the contract.   Stipulation   63 (citing  Appeal File, Exhibit 1,
   Amendment One; GSA Report at 10, n.7).  Although the terms of the
   contract were to  commence as early as August 1,  1988, or in two
   cases  in September 1988, the  catalogue for this  multiple award
   schedule  was  not   distributed  to  the  user   agencies  until
   October 31, 1988.  Marsh Declaration   7.
 
        During the  terms of  the schedule  contracts, GSA  received
   several notifications  from Heritage that mandatory users subject
   to  the FSS were  issuing solicitations, awarding  contracts, and
   otherwise  procuring court  reporting and  transcription services
   off-schedule  in violation  of the contracts.   Stipulation    75
   (citing Appeal  File, Exhibits 10, 11,  12, 14, 17).   On various
   occasions,  GSA contacted  mandatory  user  agencies  to  address
   issues of noncompliance with schedule requirements.   Stipulation
     76.
 
 
        The  contracting  officer described  performance  under this
   schedule contract as follows:
 
        Most schedule contracts  require very little  attention
        on the  part of GSA  after award; agencies  place their
        orders,  the contractor  performs  and is  subsequently
        paid by the agency.  The  schedule contracts for IG-733
        [Industrial   Group   733    Transcripts   Stenographic
        Reporting  Services] were the exception to this general
        rule.   In  addition to  Ms.  Benson's complaints  that
        agencies which  should have  been mandatory users  were
        going  outside  of  the  contracts  to   satisfy  their
        requirements,  there  were   complaints  from  schedule
        contractors  that   other  schedule   contractors  were
        intruding on their territory, and there were complaints
        from the customer  agencies that on  numerous occasions
        court reporters would not show up when scheduled, would
        be  late in producing  a transcript, would  produce low
        quality  transcripts, and that  the contract rates were
        significantly higher than  the agency had been  used to
        paying,  and that the quality of service received under
        the contract  did not  justify the  price differential.
        The issue  of price  was an  ongoing  dispute with  our
        federal  agency  customers, and  there  were  many more
        requests for waivers from mandatory use than was normal
        for   a  schedule   of  this   nature.     After   much
        deliberation,  my office  concluded that  we could  not
        solve  these problems  by  tinkering with  the contract
        terms and conditions, and that  it would be in the best
        interest of the  government to not exercise  the option
        period on these  contracts and cancel the  schedule for
        IG-733.
 
   Marsh Declaration   9. 
 
        Each appellant received delivery  orders from mandatory user
   agencies under  its schedule  contract.  Stipulation    66.   CSR
   received  a  total of  *******  in  revenue under  its  contract;
   Executive,  ********; ARTI,  *******;  Ace-Federal, *******;  Ann
   Riley,  ********;  and  Miller,  ********.     Heritage  received
   **********.  Stipulation, Exhibit 2.
 
        By letters dated April 21, 1989, GSA notified each appellant
   of GSA's intent to exercise the option of extending each contract
   for  twelve  months,  for  the  period  August 1,  1989,  through
   July 31, 1990, but  later reversed its position and notified each
   appellant  that  it  would  not  exercise  the  option  and  that
   "[a]gencies will be advised that they may procure this service on
   an  open  market  basis  after  July 31,  1989."    Appeal  File,
   Exhibits 13,  15,  27,  30, 33,  36.    Twelve  agencies formally
   requested  waivers from mandatory  use of the  schedule contract.
   Appellants' Record  Supplement, Exhibit 20,  Respondent's Answers
   to  Appellant's Interrogatories  in Heritage  Reporting Corp.  v.
   General  Services Administration, GSBCA10396  at 5.   GSA granted
   waivers  to the Federal  Communications Commission, the   Federal
   Energy Regulatory Commission for the Office of Administrative Law
   Judges only, and the Department  of Labor, Branch of Hearings and
   Review.  Id. at 6.
 
 
        Appellants'   contracts  remained   operative  through   the
   scheduled expiration  on July 31, 1989,  and appellants performed
   work under their contracts.  Stipulation   69.
 
 
   Mandatory Users Who Procured Off-Schedule Services
 
        The parties  stipulated that  during the  contracts' periods
   some seventy-one  federal agencies or  components contracted off-
   schedule for court reporting  and transcription services totaling
   3,732,605 original pages.  Stipulation    97-98.
 
        On August 28, 1992, the Board  granted a joint motion of the
   parties in the Heritage appeal  to enter a stipulated judgment in
   the    amount     of    $7,254,525.60,    based     upon    their
   settlement,[foot #] 7    which    was    subsequently   allocated
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 7 The  Board did not  adjudicate the merits  of the
   Heritage appeal, and  did not itself make any findings of fact or
   conclusions of law.   Rather, as is the common  practice when the
   parties settle  their claims  independent of  Board process,  the
   Board  awarded  the  parties'  stipulated  settlement  amount  to
   facilitate  payment from  the  Government's permanent  indefinite
   judgment  fund.   As  such,  the settlement  in  Heritage has  no
   collateral estoppel effect on these claims.  E.g., United  States
                                                ____  ______________
   v. International  Building Co., 345  U.S. 502 (1953)  ("Unless we
   ______________________________
   can  say that  [consent judgments]  were an  adjudication of  the
   merits,  the  doctrine of  estoppel  by judgment  would  serve an
   unjust  cause: it would become  a device by  which a decision not
   shown to  be on the  merits would forever foreclose  inquiry into
   the merits."); Red Lake Band  v. United States, 607 F.2d 930, 934
                  _______________________________
   (Ct.  Cl.  1979) ("As  a  general rule  .  . .  an  issue is  not
   'actually litigated' for purposes  of collateral estoppel  unless
   the parties to the stipulation manifest an intent to be bound  in
   a subsequent litigation . . . .  Moreover, the intention to be so
   bound should not  be readily inferred."); see  generally, Charles
                                             ______________
   Wright,  Arthur Miller, and  Edward Cooper, Federal  Practice and
                                               _____________________
   Procedure     4443  (1981  &   Supp.  1998).    In  the  Heritage
   _________
   settlement,  the Government did  not indicate an  intent to admit
   liability under any other schedule contracts.  Appellant's Record
   Supplement,  Exhibit 26.  Importantly, the merits of the Heritage
   case were  not "actually litigated,"  and the issue on  which our
   decision  rests --  the  nature  of the  contracts  -- was  never
                                                      (continued...)
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   among   enumerated   mandatory   user  agencies   without   Board
   involvement.[foot #] 8
 
   Facts Pertinent to Appellants' Claimed Lost Profits
 
 
        The parties stipulated  that calculation of the  profit rate
   which would have been earned by appellants for the original pages
   which  were  ordered  off-schedule  is  determined  by  examining
   appellants'  marginal cost of  undertaking additional work beyond
   the work which was actually  received by appellants.  Stipulation
     117.  Payment to labor in the court reporting and transcription
   industry  is  predominantly  based upon  piece  rate  or per-page
   compensation.    Id.     If  the  pages ordered  off-schedule  by
   mandatory  users had been  ordered under the  schedule contracts,
   appellants  would  have  met the  increased  demand  by providing
   additional  piece-work to employees  and by  retaining additional
   independent contractors and subcontractors.  Id.  The ability  to
   handle sharp fluctuations in demand through the use of employees,
   independent contractors, and subcontractors operating on a piece-
   rate or per-page basis is a characteristic of the court reporting
   industry.  Id.   118.
 
        The  total  number  of pages  ordered  off-schedule  by user
   agencies  is  3,741,487.    Stipulation      111.    The  parties
   stipulated  that  based  upon appellants'  share  of  the market,
   appellants'  share of the original pages ordered off-schedule was
   1,381,731.    Id.     According  to  the   parties'  stipulation,
   appellants'  share  of  original  pages ordered  off-schedule  by
   mandatory  schedule  users  (1,381,731  pages) times  appellants'
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 7 (...continued)
   raised.  Moreover, Heritage stood in a different posture than any
   of  the appellants  here, since  it  was the  sole and  exclusive
   schedule contractor in many locations.
 
        [foot #] 8 In  a proceeding  before  the General  Accounting
   Office  (GAO),  the  Department of  Justice,  the  Securities and
   Exchange Commission  (SEC), and the  Federal Maritime  Commission
   (FMC) challenged the amount of damages allocated to each of their
   agencies  in connection with the settlement of Heritage's appeal.
   Stipulation     100.   GAO  denied  the Department  of  Justice's
   contention, but agreed that the SEC was not required to reimburse
   the judgment fund for the amount attributable to its off-schedule
   purchases.  GAO found that  FMC qualified for a partial exception
   from  the FSS'  mandatory  use provisions  and  ordered that  its
   contribution  to the  $7,254,525.60 judgment  be  reduced by  the
   proportionate value of 253 pages.  Id. (citing Heritage Reporting
                                      ___         __________________
   Corp.,  B-252754 (Oct. 6, 1994)).   Appellants in  this case have
   _____
   not  sought  compensation  for  the  253 FMC  pages.    When  the
   adjustment in  the FMC's original  page count recommended  by the
   GAO is made, the number  of original pages acquired  off-schedule
   by these agencies becomes 3,732,352.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   average  original page price ($4.393) yields $6,069,944.28 as the
   amount  of  lost  revenue  from  the   sale  of  original  pages.
   Stipulation   116.[foot #] 9
 
 
        Appellants' average  cost per  original page  for performing
   additional assignments is $2.55.  Stipulation   119.  The parties
   stipulated that the average marginal profit rate  that would have
   been achieved  by appellants if additional work  had been ordered
   under the schedule rather than off-schedule by mandatory users is
   41.91%.   Id.    120.    According to  the parties'  stipulation,
   appellants' lost revenue for original pages ordered  off-schedule
   ($6,069,944.28) times appellants' profit rate for additional work
   ordered  under the  contract yields $2,543,913.65  as appellants'
   lost profits for original pages ordered off-schedule by mandatory
   users.  Id.   121.
 
        According  to the  stipulation,  the  off-schedule order  of
   original transcript pages by mandatory users deprived  appellants
   of  the   opportunity  to   sell  copies   of  those   originals.
   Stipulation   122.   The parties agree that  applying appellants'
   market  share to  the  off-schedule  original  pages  which  were
   eligible  for copy sales  results in 947,503  original transcript
   pages eligible for copy sales which were lost to appellants.  Id.
     124.  The parties further stipulated that the average number of
   lost copy sales per eligible original  page is 2.33, and that the
   number  of off-schedule  original transcript  pages eligible  for
   copy sales (947,503) times the  average number of lost copy sales
   per  original  transcript  page (2.33)  yields  2,207,682  as the
   number of copy page sales lost to appellants.  Id.    125, 126.
 
        The parties  agree that  appellants' weighted  average price
   per copy page was  $1.10, and that the number of  copy page sales
   lost to appellants (2,207,682) times appellants' weighted average
   price per copy page (41.10) yields $2,428,450.20 as the amount of
   lost copy sale revenue to appellants.  Stipulations     127, 128.
 
        The  parties stipulated that  "[t]he cost of  producing copy
   pages for  sales is  nominal.  Accordingly,  the profit  rate for
   copy sales  is set at  100 percent . .  . ."   Stipulation   129.
   Appellants  claimed direct  lost profits  totaling $4,972,363.85,
   consisting  of  $2,543,913.65  in  lost  profits  from  sales  of
   original  transcript pages and  $2,428,450.20 from sales  of copy
   pages.  Id.   130. 
 
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 9 The Federal  Supply Schedule for  court reporting
   and transcription  services required  each offeror  to bid  basic
   per-page prices  for each  category of  services.  The  contracts
   also provided that the amount paid for individual orders would be
   increased  for additional charges  for such items  as exhibits or
   inserts, minimum  appearance fees,  delivery, overtime,  computer
   disks, and other special services.  Stipulation   113.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
                               Discussion
 
     I. Does  FASA's Statute of  Limitations Bar Any  of Appellants'
   Claims?
 
        The  Federal  Acquisition Streamlining  Act  of 1994  (FASA)
   amended the  Contract Disputes  Act of 1978  (CDA) by  imposing a
   limitation  on the submission of contractor and Government claims
   -- "within 6 years after  the accrual of the claim."  41 U.S.C.  
   605(a) (1994);  Pub. L. No.  103-355,   2351(a), 108  Stat. 3243,
   3322 (1994).   FASA was enacted on October 13,  1994.  Respondent
   contends that  the six-year limitation  on claims took  effect on
   that date.   Ace's claim was submitted on  February 13, 1995, and
   Ann  Riley's,  ARTI's,   CSR's,  Executive's,  and  Miller's   on
   September 28,  1995.    Because   appellants'  claims  were   all
   submitted after FASA's  enactment, and because the  contracts ran
   from  August 1,  1988 (or  in  the  case  of Executive  and  CSR,
   September 23 and  26, 1988, respectively) through  July 31, 1989,
   respondent  argues that  the first  half of  Ace Federal's  claim
   should be excluded,  and the claims  of the remaining  appellants
   should  be excluded in their entirety.   Respondent's Reply Brief
   at 4.  We disagree.
 
        Section 10001  of FASA  sets forth  the effective  dates and
   applicability  of  its  various  statutory  amendments.   Section
   10001(c)  provides that certain enumerated amendments apply as of
   October 13, 1994.   Section 2351, establishing the  six-year time
   limitation  for  the submittal  of  claims,  is  not one  of  the
   enumerated amendments.
 
        Section 10001(b)  provides that other amendments  enacted by
   FASA  apply  as of  the  date  specified  in  final  implementing
   regulations.  Specifically, Section 10001(b) states:
 
           (1) An  amendment made  by this  Act shall  apply, in
        the  manner   prescribed  in   the  final   regulations
        promulgated pursuant to section 10002 to implement such
        amendment,  with respect  to any  solicitation that  is
        issued, any unsolicited proposal that is received,  and
        any   contract  entered   into  pursuant   to  such   a
        solicitation or proposal on or after the date described
        in paragraph (3).
 
           (2) An amendment made  by this Act  shall also apply,
        to the extent and in the manner prescribed in the final
        regulations  promulgated pursuant  to section  10002 to
        implement such  amendment, with  respect to  any matter
        related to--
 
                  (A) a contract  that is in effect on the date
           described in paragraph (3);
 
                  (B) an offer under consideration on the  date
           described in paragraph (3); or
 
                  (C) any  other proceeding  or action that  is
           ongoing on the date described in paragraph (3).
 
           (3) The  date referred to  in paragraphs  (1) and (2)
        is  the date specified in  such final regulations.  The
        date  so specified  shall be  October 1,  1995, or  any
        earlier date that is not  within 30 days after the date
        on which such final regulations are published.
 
        Section 10002 of  FASA, entitled "Implementing Regulations,"
   includes these paragraphs:
 
           (a) Proposed  Revisions -  Proposed revisions  to the
        Federal Acquisition Regulation and  such other proposed
        regulations (or  revisions to existing  regulations) as
        may  be  necessary  to  implement  this  Act  shall  be
        published in the Federal Register.
 
        . . . .
 
           (f) Savings Provision  - Nothing in this Act shall be
        construed to affect the validity of any actions taken .
        .  . before  the  date  specified  in  the  regulations
        pursuant to  section 10001(b)(3)  except to  the extent
        and in the manner prescribed in such regulations.
 
        The  implementing  regulation  referenced  in  the  statute,
 
   FAR 33.206(a), provides:
 
        Initiation of a claim.
 
        (a)       Contractor  claims  shall  be  submitted,  in
        writing,  to  the contracting  officer  for a  decision
        within  6 years  after accrual of  a claim,  unless the
        contracting  parties agree  to a  shorter  time period.
        This 6-year  time period  does not  apply to  contracts
        awarded prior to October 1, 1995. . . .
 
   48 CFR 33.206(a) (1997) (emphasis added).
 
        Respondent contends that this regulation is both superfluous
   and  contrary to the  express provisions  of FASA.   Respondent's
   Record Submission at  25.  The  regulation is hardly  superfluous
   when  the  statute   expressly  provides  that  certain   of  its
   amendments   shall  apply  in   the  manner  prescribed   in  the
   implementing regulations.
 
        Respondent also contends  that the Board should  "disregard"
   the   amendments  to  FAR 33.206(a)  on  the  ground  that  those
   amendments  are contrary  to  the terms  of  FASA.   Respondent's
   Record Submission  at  28.   Respondent  submits that  FASA  only
   authorized  regulations necessary to  implement the Act  and that
   FAR  33.206(a) was  not "necessary"  because of the  statement in
   FASA Section 2351(a) permitting contractually agreed-upon earlier
   statutes of limitations  to stand  in spite of  the Act.   Again,
   regulations  were  expressly  contemplated   by  the  statute  to
   establish the effective dates of certain of its provisions.
 
 
        Other  than its  interpretation  of "necessary,"  respondent
   cites no provision  of the regulation which is  contrary to FASA.
   In fact, the  regulation writers took their cue  from the statute
   and established a bright line rule that the six-year period shall
   not apply to  contracts awarded prior to October 1,  1995.  Thus,
   the  regulation is consistent with the limited discretion granted
   to the regulation writers by the statute on its face.
 
        This regulation is also consistent with precedent addressing
   the effective date for the FASA amendments.  See, e.g., OAO Corp.
   v. Johnson, 49  F.3d. 721, 725 (Fed. Cir.  1995) (FASA amendments
   not effective  until "the date provided in  the final regulations
   implementing those  amendments, or on  October 1, 1995, whichever
   is  earlier"); Ungermann-Bass Networks, Inc. v. Department of the
   Navy, GSBCA 13005-C(12977-P), 95-1 BCA   27,344 at 136,269 (1994)
   (FASA takes  effect on  the earlier of  October 1, 1995,  or such
   date  as  may  be  prescribed  in  regulation);  Motorola,  Inc.,
   ASBCA 48841, 96-2  BCA   28,465,  at 142,172  (FASA authorizes  a
   regulation excluding contracts awarded prior to October 1, 1995).
 
    II. Did  the Agencies' Failure to Order Court Reporting Services
        from Appellants Breach The Multiple Award Schedule Contracts
        and Entitle Appellants to Recover Lost Profits?
 
        It  is undisputed that mandatory user agencies ordered court
   reporting  and transcription  services  from  parties other  than
   schedule  contract awardees.  Appellants  claim this was a breach
   of their schedule contracts and collectively claim entitlement to
   lost profits in the amount of $4,972,363.85.
 
        In  determining whether there  was a compensable  breach, we
   must  first  examine  the  terms  of the  contracts.    In  their
   stipulations,  the  parties  characterize  their  multiple  award
   schedule  contracts as requirements  contracts, but a  reading of
   each  of  the  contracts  as   a  whole  does  not  support  this
   characterization.  See Stipulations    19, 47-52.
 
        The determination of the type  of contract the parties  have
   entered into  is generally  a matter of  law.   E.g., Maintenance
   Engineers, Inc.  v. United States, 749  F.2d 724, 726  n.3. (Fed.
   Cir.  1984) (citing  41  U.S.C.    609(b)  (1982)); Torncello  v.
   United States, 681 F.2d 756,  760 (Ct. Cl. 1982); see  also Crown
   Laundry  &  Drycleaners, Inc.  v.  United States, 29 Cl. Ct.  506
   (1993).    The   stipulations  of   the  parties   characterizing
   appellants' contracts as requirements contracts are therefore not
   binding  on   a  reviewing   tribunal.     E.g.,     Al-Kurdi  v.
   United States, 16 Cl. Ct. 660 (1989); Bromley  Contracting Co. v.
   United States, 14 Cl.  Ct. 69,  74  (1987), aff'd,  861 F.2d  729
   (Fed. Cir. 1988).  Nor is the tribunal bound by the name or label
   given to  a contract in the  contract itself.   Crown Laundry, 29
   Cl.  Ct.     at  515   (citing  A-Transport   Northwest  Co.   v.
   United States, 27  Cl. Ct.  206, 214  (1992) aff'd,  36 F.3d 1576
   (Fed. Cir. 1993));  Ralph Construction, Inc.  v. United States, 4
   Cl.  Ct. 727, 731 (1984);  Mason v. United States, 615 F.2d 1343,
   1346 (Ct. Cl. 1980).[foot #] 10
 
 
        Further,  although  the   contracts  contain  the   standard
   Requirements clause,  which purports  to bind  the Government  to
   order "all"  its requirements from  each awardee, that  clause is
   trumped  by other contract  provisions.  The  Requirements clause
   itself is  qualified  --  it  expressly states  "Except  as  this
   contract  otherwise provides, the Government shall order from the
   Contractor all the supplies or services specified in the Schedule
   .  . . ."   The contract "otherwise  provides" that this contract
   neither binds the Government to purchase all  of its requirements
   from any one vendor, nor obligates the Government to purchase any
   minimum amount from any one vendor.  The schedule itself, as well
   as  the cover letters transmitting the contracts, advised vendors
   that  multiple  awards  were  made  for   all  of  the  mandatory
   geographic   locales   at   issue.[foot #] 11      Clause    M.2,
   Multiple Awards, made  clear that ordering agencies  could select
   any contractor listed  on the schedule and that  agencies were to
   consider schedule contractors equally in determining which source
   was most advantageous to the  Government.  Clause B.2,  Estimated
   Requirements, expressly provided that "no guarantee is given that
   any quantities will be ordered."
 
        It  is  well  established that  a  requirements  contract is
   formed  when  the  seller  has  the  exclusive  right  and  legal
   obligation to fill  all of  the buyer's  needs for  the goods  or
   services  described in the contract.   Coyle's Pest Control, Inc.
   v.  Cuomo,   154  F.3d   1302,  1305   (Fed. Cir.  1998);   Ralph
   Construction, 4  Cl. Ct. at 731;  Mason, 615 F.2d  at 1346; Media
   Press, Inc. v. United  States, 215 Ct. Cl. 985, 986 (1977); Hemet
   Valley  Flying  Service  v. United  States,  7 Cl.  Ct.  512, 515
   (1985).
 
        In Media  Press,  the  Court  of Claims  concluded  that  an
   analogous multiple-award printing contract  let by the Government
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 10 As  the Court of Appeals for the Federal Circuit
   has  reasoned:  "Case  law  warns  that  reliance  on  labels and
   contract   provisions  is   most  risky.     In  any   event  the
   determination of the type of contract the parties entered into is
   a matter of  law and is not  controlled by any label  or contract
   provision."  Maintenance Engineers, Inc., 749 F.2d at 726 n.5.
                ___________________________
 
        [foot #] 11 In the mandatory geographic areas at issue here,
   there were at  least two vendors --  one or more  appellants, and
   Heritage,  which held a  nationwide contract covering  all forty-
   eight contiguous states  and all areas within those  states.  See
                                                                 ___
   Appeal File, Exhibits 3, 31.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   Printing Office (GPO) was not a requirements contract.  Under the
   terms  of that contract, GPO was obligated  to first ask the low-
   priced contractor to determine whether  or not it could accept an
   order; that  contractor could  only decline if  it was  unable to
   meet a shipping  schedule. If this occurred, the Government would
   contact the next low bidder and so on until the job was accepted.
   The contract provided three exceptions to this  method of placing
   work.  Plaintiff claimed that the Government had wrongly  invoked
   one of these exceptions such that all  orders were not offered to
   plaintiff  initially.   Plaintiff sought  lost profits,  claiming
   that the GPO  contract was a requirements contract  and that each
   failure on the part of GPO to offer it a printing job constituted
   a  breach.    The   court  held  that  the  contract  was  not  a
   requirements contract, reasoning:
 
 
        A  requirements contract has been defined as a contract
        in which the  purchaser agrees to buy all  of its needs
        of a specified material from a particular supplier, and
        the  supplier  agrees, in  turn,  to  fill all  of  the
        purchaser's  needs during  the period of  the contract.
        Inland  Container, Inc. v.  United States, 206  Ct. Cl.
        478, 482-83, 512  F.2d 1073 (1975); Ready  Mix Concrete
        Co. Ltd. v.  United States, 141 Ct.  Cl. 168, 169,  158
        F.Supp. 571 (1958); Gemsco,  Inc. v. United States, 115
        Ct. Cl.  209  (1950); Johnstown  Coal and  Coke Co.  v.
        United States, 66 Ct. Cl. 616 (1929).  Neither party to
        the  instant  contract is  so  tightly and  exclusively
        bound to the other so as to give rise to a requirements
        type arrangement.  The Government retained the right to
        purchase  some  of  its  needs  from   other  printers.
        Similarly, plaintiff was empowered  to refuse orders if
        it  was  unable  to  meet  a  delivery  schedule.    We
        conclude,   therefore,  that   such  consideration   is
        insufficient to support plaintiff's construction of the
        contract as a  requirements contract.  See,  Goldwasser
        v. United States,  163 Ct.  Cl. 450,  454-55, 325  F.2d
        722, 724 (1963).
 
   Media Press, 215 Ct. Cl. at 986.
 
        Similarly, in the instant case, Government agencies retained
   the  right to  purchase  their  needs from  any  of the  schedule
   contractors,  and   were  not   bound  to   use  any   particular
   awardee.[foot #] 12         No    individual     appellant    was
   guaranteed any business, and  user agencies were free to  utilize
   any schedule  contractor without  regard to  price.   There could
   have been any  number of  vendors, and  there were   two or  more
   vendors in all areas at issue -- none of which was guaranteed the
   exclusive right to provide all the court reporting services for a
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 12 Although appellants  were not free to  turn away
   work, they were free to subcontract it out to other reporters who
   were not themselves listed on the schedule.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   given     geographic      area.[foot #] 13           As     such,
   appellants' schedule contracts are not requirements contracts.
 
 
        We  recognize  that  in  an  earlier  decision,    Locke  v.
   United States,  283 F.2d 521 (Ct. Cl.  1965), the Court of Claims
   suggested in dicta that a  multiple award federal supply contract
   for  typewriter  repair  and  reconditioning was  a  requirements
   contract and  ruled that  a  contractor whose  schedule had  been
   improperly terminated  for default  could be  entitled to  breach
   damages.   Given the clarification in subsequent precedent, Media
   Press, we conclude that Locke neither warrants characterizing the
   instant  schedule   contract  as  a  requirements   contract  nor
   justifies an award of lost profits here.
 
        Further, Locke  is distinguishable from the instant appeals.
   In Locke, plaintiff was removed from the  schedule altogether due
   to an improper termination of its contract and had no possibility
   whatsoever of performing work, thus prompting the Court of Claims
   to  conclude  that   the  termination  deprived  it   of  a  lost
   opportunity  which  had  "value."    In  the  instant  case,  all
   appellants continued to obtain work throughout the course  of the
   contract, but  mandatory users,  for unknown  reasons, failed  to
   o r d e r   s o m e   s e r v i c e s   f r o m   s c h e d u l e
   contractors.[foot #] 14          No     appellant    demonstrated
   that  it would have  received business  from a  particular agency
   which  utilized  an off-schedule  vendor.   Unlike  the  court in
   Locke, we  cannot conclude  that any  particular vendor  received
   less  "value"  than  what  it  bargained for  by  virtue  of  the
   mandatory user  agencies' ordering off-schedule services -- since
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 13 Regulations in effect at the time describing the
   multiple award schedule confirm that more than one contractor was
   contemplated: 
 
        (a)  Multiple-Award  Federal   Supply  Schedules  cover
        contracts   made  with  more   than  one  supplier  for
                                __________________________
        comparable items at either the same or different prices
        for delivery to the same geographical area.
 
   41  CFR  101-26.408-1  (1981);  accord,  48  CFR  8.403-2  (1988)
                                   ______
   ("Multiple  award schedules cover  contracts made with  more than
   one  supplier  for  comparable supplies and  services.  Contracts
   are awarded to suppliers  of the same  generic types of items  at
   varying prices for delivery within  the same geographic area. . .
   .").
 
        [foot #] 14 Appellants have not alleged or demonstrated that
   either GSA, which administered the schedule, or the user agencies
   that ordered off-schedule acted in bad faith.  Appellants elected
   to present their  cases on the record without a hearing, and that
   record does  not  reveal why  in  every instance  mandatory  user
   agencies  elected  to  procure  court  reporting  services   off-
   schedule.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   all appellants received  more work than estimated,  and no vendor
   had been guaranteed any business.
 
 
        Moreover,   the  Media   Press   court's  definition   of  a
   requirements contract has been consistently applied in subsequent
   cases.   As the  Federal Circuit  recently recognized  in Coyle's
   Pest Control, Inc.,  154 F.3d at 1305, "an essential element of a
   requirements contract is the promise by the buyer to purchase the
   subject  matter of  the contract  exclusively  from the  seller,"
   quoting Modern Systems Technology v. United States, 979 F.2d 200,
   205  (Fed. Cir.  1992).   Similarly,  the court  in Torncello  v.
   United States, 681 F.2d 756, 768-69 (Ct. Cl. 1982), reasoned:
 
        [I]t is the very essence of a requirements contract . .
        . that the buyer agree to turn to  the supplier for all
        of its needs.   If there  is not a  commitment for  all
        needs,  then  the  relation is  not  different  from an
        indefinite   quantities  contract   with  no   required
        minimum, the  very type  of relation  that the  Supreme
        Court  held in  Willard, Sutherland  &  Co. [v.  United
        States, 262 U.S. 489 (1923)], could not be a contract.
 
   Importantly,   the  Federal  Circuit   in  Coyle's  Pest  Control
   clarified that "a requirements contract necessarily obligates the
   Government  to purchase  exclusively  f  rom  a  single  source."
   154 F.3d at 1305;  accord, Franklin Co., ASBCA 10285,  65-2 BCA  
   5215, aff'd, Franklin Co. v. United States, 381 F.2d 416 (Ct. Cl.
   1967)  (Armed Services Board  of Contract Appeals  disagreed with
   parties' characterization  of contract  as requirements  contract
   when there  were  concurrent contracts  with  overlapping  work).
   Thus,  although  each  appellant's   contract  masqueraded  as  a
   requirements contract and contained a misleading label, when read
   as a whole  each contract is more akin  to an indefinite delivery
   indefinite quantity  (IDIQ)  contract  enforceable  only  to  the
   extent performed.   Federal Electric Corp. v.  United States, 486
   F.2d  1337 (Ct. Cl. 1973);  Tennessee Soap Co.  v. United States,
   126 F. Supp. 439 (Ct. Cl. 1954).
 
        The  United States Court of Federal Claims recently analyzed
   the differences between a requirements contract and an indefinite
   quantity contract in  Rice Lake Contracting v.  United States, 33
   Fed.  Cl.  144  (1995).     There,  the  court,  consistent  with
   precedent, defined an indefinite quantity contract as follows:
 
        a contract under which the buyer agrees to purchase and
        the  seller agrees to supply whatever quantity of goods
        the  buyer  chooses to  purchase from  the seller.   It
        differs  from a requirements  contract in that  under a
        requirements contract the buyer agrees  to purchase all
        his  requirements from the seller.  Under an indefinite
        quantit[y]   contract,   even   if   the   buyer    has
        requirements,  he is not obligated to purchase from the
        seller.
   33 Fed.  Cl. at 152 (citing  Mason v. United States,  615 F.2d at
   1346  n.5).   The court  noted that  in order  for  an indefinite
   quantity  contract to  be  enforceable there  must  be a  minimum
   quantity  which the buyer  was obligated to  purchase; without an
   obligatory minimum quantity,  the buyer would be allowed to order
   nothing,  rendering  its  obligations  illusory  and,  therefore,
   unenforceable.  Id. at 152-53; accord, Coyle's  Pest Control, 154
   F.3d at 1306. Under the  multiple award contracts at issue, there
   was no minimum quantity that agencies were required to order from
   any  specific contractor,  and there  was no  guarantee that  any
   quantities would be  ordered.  We conclude that  the contracts at
   issue are analytically most akin to indefinite quantity contracts
   with  no stated mandatory minimum, enforceable to the extent they
   were performed, and  there is no basis in the  contracts to award
   damages for the  off-schedule orders.   Cf.  William W. Goodrich,
   Jr. and  Coralyn  G. Mann,  Avoiding Disaster  in Federal  Supply
   Service Contracts, 15 Pub. Cont.  L.J. 1, 12 (1984) ("Awardees of
   multiple award schedule contracts  would appear to have no  legal
   assurance of sales or profit.").
 
 
        Appellants' collective efforts to obtain an award of damages
   representing  all off-schedule  purchases  and  divide  it  among
   themselves based  upon assumptions  and market  share must  fail.
   These contracts do not contemplate  such a collective remedy.  No
   amount of  post-contract collaboration  can alter  the fact  that
   each appellant  filed a separate  claim and had its  own contract
   based upon its individual  offer, with different pricing and,  in
   some  cases,  different  services to  be  performed  in different
   locales.   At best,  each appellant has  shown that  there should
   have been  a larger universe  of potential work for  the schedule
   contractors.    However, this  does not mean that  every schedule
   contractor's  share of  that work  should  necessarily have  been
   larger.   Nor  does this  diminished universe  of potential  work
   trigger Government liability to each schedule contractor.
 
        Any  expectation  that  an individual  appellant  would have
   received any portion of the  additional amount of work claimed is
   speculative and not supported by  the terms of its multiple award
   contract --  which expressly warned  that there was  no guarantee
   that any quantities  would be ordered.   As such, in  addition to
   failing  to  prove   a  compensable  breach,  no   appellant  has
   demonstrated that  its claimed  damages were  foreseeable at  the
   time of contract formation.  Cienega Gardens v. United States, 38
   Fed. Cl. 64,  73 (1997) ("To the extent  that plaintiffs' damages
   were foreseeable  at the time  of contract formation, not  at the
   time   of  the   breach,  they   are  recoverable.     Lucas   v.
   United States, 25 Cl. Ct. 298, 310  (1992) (citing Globe Refining
   Co. v. Landa  Cotton Oil Co., 190 U.S. 540, 545-47, 23 S.Ct. 754,
   756-57, 47 L.Ed. 1171 (1903).").
 
        Respondent argued  that the Board  take a different  tack in
   denying  liability   here  --   suggesting  that   we  impose   a
   constructive termination  for convenience,  deny breach  damages,
   and hold that appellants  are entitled only to damages  permitted
   under  the Termination  for Convenience  clause --  in this  case
   nothing.  Respondent's argument assumes that breach damages would
   otherwise be  warranted.   Given our  conclusion that  appellants
   have not  demonstrated entitlement  to breach  damages under  the
   terms  of their contracts  and appellants' stipulation  that they
   have no  termination for convenience  costs, we need  not address
   this  argument or  any  of  respondent's  other  arguments  here.
   Instead,  we  hold  that  the  contracts  were  not  requirements
   contracts   and,  under  the  bargain  the  parties  struck,  the
   individual schedule  contractors cannot recover lost  profits for
   off-schedule purchases.
 
   III. Are Appellants Entitled to Consequential Damages?
 
 
        Appellants  seek consequential  damages  in  the  amount  of
   $2,486,181.90.   Given our  conclusion that  appellants have  not
   demonstrated   a   compensable   breach,   they  cannot   recover
   consequential  damages.      Further,   appellants'   claim   for
   consequential   damages  is  based  solely  upon  their  loss  of
   incumbency.  Appellants' Opening Brief at 53.  Appellants rely on
   their  stipulation  that   they  submitted  proposals  with   the
   expectation that by  receiving award of a schedule  contract they
   would each be  able to develop and maintain ongoing relationships
   with  user agencies  for which  they had  not previously  worked.
   Appellants contend  that  it was  reasonable to  expect that  the
   mandatory user  agencies would do business with  the awardees for
   at least  a  year.   Id. at  53-54.   Appellants  point out  that
   incumbency had a  particular value here because  history revealed
   that expiration of  mandatory contracts were followed  by periods
   of  informal contracting.   Appellants derive their consequential
   damages  of  $2,486,181.90   by  "taking  the  starting incumbent
   positions that appellant would have had but for the breach (i.e.,
   $4,972,363.85)  and reducing the value of that incumbent position
   to zero after only one year.
 
        Appellants  cite this  Board's decision  in  Stroh Corp.  v.
   General Services Administration, GSBCA 11029, 96-1 BCA    28,265,
   in support of  their claim for consequential damages.   This case
   in  no way supports the proposition  that appellants are entitled
   to consequential  damages.  To  the contrary, the Board  in Stroh
   stated:
 
        Furthermore, Stroh is not entitled to an award of under
        absorbed  home  office  overhead   under  its  modified
        Eichleay formula because, in  reality, this claim seeks
        recovery  of  consequential  damages.   See  Prudential
        Insurance Co.  of America  v. United  States, 801  F.2d
        1295  (Fed.  Cir. 1986),  cert.  denied, 479 U.S.  1086
        (1987).  To be recoverable,  consequential damages must
        be  foreseeable   at  the   time  of  contract   award.
        Landmovers,  Inc.,  ENGBCA  5656,  92-1  BCA    24,473.
        Foreseeable  means  within  the  contemplation  of  the
        parties  at the  time  of  award.   For  damages to  be
        recoverable there must be  no intervening incident; the
 
        Government's actions must produce the effect inevitably
        and naturally.   Ramsey v. United  States, 121 Ct.  Cl.
        426, 433  (1951); accord  Hart, Clark,  and Hirt,  IBCA
        1508-8-81, 84-1 BCA   17,134, at 85,352-53.
 
   96-1 BCA at 109,791.
 
        Appellants   have   cited   no  legal   support   for  their
   consequential  damages claim,  and  the facts  of  record do  not
   demonstrate  entitlement to  such  damages.    As  our  appellate
   authority has  recognized, "Remote and  consequential damages are
   not recoverable in a common law suit for breach of contract . . .
   especially  . .  . in  suits  against the  United States for  the
   recovery of  common  law  damages, such  as  the  instant  case."
   San Carlos Irrigation &  Draining District v. United  States, 111
   F.3d 1557, 1563 (Fed. Cir.  1997) (quoting Wells Fargo Bank, N.A.
   v. United States,  88 F.3d 1012, 1020 (Fed.  Cir.), cert. denied,
   117 S. Ct.  1245 (1996), and Northern Helex Co. v. United States,
   254 F.2d 707, 713, 720 (Ct. Cl. 1975)).
 
                                Decision
 
        The appeals are DENIED.
   ________________________________
 
                                      MARY ELLEN COSTER WILLIAMS
                                      Board Judge
 
   We concur:
 
 
 
   ________________________________
   ________________________________
   ROBERT W. PARKER                   CATHERINE B. HYATT
   Board Judge                        Board Judge