U.S. GOVERNMENT PRINTING OFFICE
BOARD OF CONTRACT APPEALS
Appeal of AUTOMATED DATATRON, INC.
Docket No. GPO BCA 4-87
March 31, 1989
MICHAEL F. DiMARIO
Administrative Law Judge
OPINION
This appeal, timely filed by Automated Datatron, Inc.
(Appellant), 4318 Gallatin Street, Hyattsville, MD 20781,
dated January 27, 1987, is from the final decision of Jack
Scott, Contracting Officer (CO), U.S. Government Printing
Office, Washington, DC 20401 (Respondent), dated October
24, 1986, completely terminating contract Purchase Order
70091, Program C90-S, Jacket No. 91-058, for default
because of Appellant's "continuing failure to comply with
the delivery and Quality Assurance requirements of Program
C90-S." The appeal is denied and the decision of the CO
is affirmed for the reasons set forth hereinbelow.
BACKGROUND
Appellant was competitively awarded the Program C90-S
single-award term contract by Purchase Order 70091 dated
September 9, 1986, to produce such microfiche copies of the
Congressional Record as Congress might requisition from
Respondent from time to time during the term October 1,
1986, to September 30, 1987. The contract in the amount of
$59,350.50 was made in strict accordance with Appellant's
quotation of August 28, 1986, and Respondent's
specifications. (Rule 4 File, hereinafter "R4 File," Tabs
B and C.)
On October 6, 1986, the CO sent Appellant a letter stating
that an examination of microfiche samples produced by
Appellant under Print Order 60000 reflected the defects
shown on an inspection report attached thereto and that
based on such defects, the work had been determined to be
rejectable and would require remanufacturing by Appellant
in strict accordance with the specifications and at no
additional cost to the Government. (Thirty-six such
complaint letters, including the referenced letter, were
sent to the Appellant from October 6, 1986, through
December 9, 1986, on various print orders numbering 60000
through 60024.) (R4 File, Tab F.)
By letter dated October 9, 1986, referencing the Test Run
and Print Orders 60000 and 60001, the CO notified Appellant
that he considered Appellant's failure to comply with the
quality attributes and delivery schedule of the
specifications to be a condition that was endangering the
performance of the contract in accordance with its terms.
The notice gave the Appellant 10 days from its receipt to
advise Respondent of the measures it had taken or was then
taking to cure such condition. The notice also advised
Appellant that unless such condition had been cured, the
Government might terminate the contract for default
pursuant to the contract's "Default" clause. (R4 File, Tab
G.)
In response to the cure notice, Appellant's T.D. Marlatt,
Vice President, by letter dated October 24, 1986,
referencing both the instant program and the substantially
identical C151-S program respecting the production of
Federal Register microfiche, advised the CO that:
We have adhered to your October 22nd advice by
concentrating our efforts on the C151-S Program. A
dedicated team of workers has been trained to complete each
step in the conversion of the Federal Register to
microfiche.
Under this procedure specialists in document preparation,
camera operation, silver duplication, diazo duplication and
quality assurance have been designated to perform the
appropriate production functions in an assembly line
fashion from its arrival until each Print Order is
completed.
We have given priority to the current day's Federal
Register work in order to meet the nine hour turnaround
requirements and subsequent mailing deadlines. This
special team also completed the backlog of Print Orders
that had been rejected by GPO quality assurance personnel.
As of this date all material for the Federal Register has
been delivered to GPO. Mailings are being made as the
third generation microfiche are accepted by GPO quality
assurance.
By the close of business today we expect to complete
delivery of all Congressional Record material to GPO.
Mailings are being made as described above. Should any
Print Orders remain outstanding I will advise you of their
status on Monday, October 27. We are told by the Office of
Congressional Printing Management that it will have no
further material from the 99th Congress for conversion.
I would like to again express our concern regarding the
revised specifications for the length of microfiche.
Although we have procured expensive and complex equipment
which can cut the fiche within the .75 milimeter [sic]
tolerance, we feel that parallax errors inherent in even
the best optical measuring devices exceed .75mm. In
support [of] this opinion, we have experienced the
rejection of microfiche from six Print orders submitted to
GPO within the past two days. The fiche in question had
been carefully measured with instruments similar to those
used by GPO.
In summary, we have secured additional precision equipment
and trained a sufficient number of personnel to meet the
turnaround requirements of both programs. We will report
any problems and maintain close contact with your office as
we continue to improve upon our production procedures. 1/
R4 File, Tab H.
Thereafter, by letter of October 24, 1986, the CO advised
Marlatt of the termination. (R4 File, Tab I.) By letter
dated January 27, 1987, Appellant noted its appeal as
follows:
Automated Datatron, Incorporated (ADI) hereby appeals the
Contracting Officers decision to terminate the referenced
contracts for "Default". While agreeing that rejections
of microfiche occurred, resulting in shipping delays for
both contracts, ADI believes the reason for termination
should be for "Convenience of the Government".
1/ Appellant's appeal in Docket No. GPO BCA 3-87 is from the
Contracting Officer's final decision in the Program C151-S
contract.
This appeal is based upon the fact that despite diligent
effort, and at considerable additional expense, the
contractor was unable to procure equipment that consistently
creates microfiche which meet the extremely tight
specifications stipulated in the contracts. This problem
has been identified to the vendors of camera and duplicator
equipment. Their position is that the tolerances,
particularly for length, exceed the capability of current
equipment on a continuous basis. We advised the Government
Printing Office of the problems encountered several times.
Our most recent letter requesting that the remainder of the
contract be cancelled for "Convenience of the Government" is
attached at Appendix A. 2/
In summary, we believe that the new specifications for
Programs (151 and 90) are excessively restrictive for
currently available equipment. No other GPO, or other
Government contracts, to our knowledge, contain these same
specifications. Therefore, if these specifications for
this particular job are necessary for the convenience of
the Government, the cancellations should be for that same
reason, rather than default.
Official File, Tab 1.
By letter dated February 6, 1987, this Board notified
Appellant and Respondent that the appeal had been docketed,
provided Appellant with a copy of the Board's Rules of
Practice and Procedure, advised Respondent of its duty to
assemble and furnish to this Board and Appellant a copy of
all documents pertinent to the appeal (the R4 File), and
advised Appellant that, within 30 days after receipt of
such documents, it should transmit to the Board and
Respondent any documents not contained therein which it
considers to be relevant to the appeal. The Appellant was
also advised of the requirement for filing a
2/ Tab A, referenced by Appellant, is its letter of December 30,
1980, supra.
complaint and for making an election respecting the desire for a
hearing.
Respondent complied with the R4 File requirement on March
10, 1987. The file contained all of the documents
referenced above, plus a copy of the specifications (Tab B),
the original bidders list (Tab C), the abstract and
confirmation of bid prices (Tab D), a record of quality
problems and late deliveries kept by GPO's Quality Assurance
Section (Tab F), and a memorandum of February 17, 1987, with
attachments referenced therein (Tab K) from Robert M.
Saholsky, Industrial Engineer, Quality Systems Division,
Quality Control and Technical Department, GPO, to Printing
Specialist, Term Contract Division, Printing Procurement
Department, GPO, respecting microfiche length. The
memorandum stated:
In the establishment of microfiche standards for the U.S.
Government Printing Office (GPO), the GPO has attempted to
adhere to the recognized national standards for microfiche
created by the American National Standards Institute and
the Association for Information and Image Management
(ANSI/AIIM).
The ANSI/AIIM Committees that prepare and approve these
microfiche standards are comprised of the most
knowledgeable authorities in the field of micrographics
from both private industry and the federal government.
The most current standard for microfiche length is
ANSI/AIIM MS5-1985, approved as a national standard on May
13, 1985. MS5-1985 requires a microfiche length of 148
millimeters with a tolerance of plus zero millimeters and
minus .75 millimeters (see attached MS5-1985). MS5-1985
represents a tightening of the previous microfiche length
standard MS5-1975, (see attached MS5-1975), requiring a
microfiche length of 148 millimeters with a tolerance of
plus zero millimeters and minus 1.00 millimeters. The
tightening
of this standard is the result of improvements in micrographics
equipment and technology over the last 12 years.
Considering the possible difficulty in attaining this
microfiche length standard on a consistent production
basis, Mr. Ray Gulick (Documents Technical Support Group,
Superintendent of Documents) and myself contacted the
Engineering Division of Consolidated Micrographics, Inc.
and the Southeastern Regional Manager of the Photomatrix
Corporation. Consolidated Micrographics and Photomatrix
Corporation are large manufacturers of microfiche
duplicators.
Both Consolidated Micrographics and the Photomatrix
Corporation confirmed the fact that a microfiche length
standard of 147.25 millimeters to 148.00 millimeters is
warranted and can easily be achieved on a consistent
production basis.
It is therefore, recommended that the Government Printing
Office ultimately adhere to the ANSI/AIIM standards,
including the ANSI/AIIM standard for microfiche length.
By letter dated April 16, 1987, the Board, having received
no answer to Appellant's complaint from the Respondent,
advised Appellant that it had entered a general denial on
behalf of the Government pursuant to Rule 6.(b) of the
Board's Rules of Practice and Procedure. On April 22,
1987, the Board received a letter from Marlatt dated April
9, 1987, which stated:
Automated Datatron, Inc. (ADI) wishes the Board to note the
following:
Both of the referenced files contain GPO Memoranda stating
that Consolidated Micrographics, Inc. confirmed that "a
micrographic length standard of 147.25 millimeters to
148.00 millimeters is warranted and can easily be achieved
on a consistent production basis."
ADI has received information from Consolidated
Micrographics that only its most recently manufactured
machines can be modified to meet this standard.
We will forward written confirmation of this information
when it is received from Consolidated micrographics.
Official File, Tab 7.
No further correspondence was received from either party.
Accordingly, the record was administratively closed in
accordance with the Board's Rules and comes on for decision
on the written record in this manner, Appellant having
failed to exercise its right to a hearing.
DISCUSSION
The appeal raises the question of whether the
specification's provision respecting the length of
microfiche is excessively restrictive. The question is
substantially the same as that raised by Appellant in
Docket No. GPO BCA 3-87 decided this date upon identical
specification language and similar facts. In the instant
case, as in Docket No. GPO BCA 3-87, the Appellant has
offered no evidence whatsoever to support the primary
assertion of its complaint that "the new specifications are
excessively restrictive for currently available equipment."
Moreover, the Board's examination of the record convinces
it that such assertion is clearly erroneous for the
following reasons:
(1) The solicitation advised: "BIDDERS PLEASE NOTE: "This
contract has been extensively revised; therefore, all
bidders are cautioned to familiarize themselves with all
provisions of this contract before bidding." (R4 File, Tab
B, page 1 of the specifications.)
(2) The specifications state the size of the microfiche to
be 148 by 105 millimeters and that the microfiche "shall
conform to the microfiche Format 24/98, as specified in
'ANSI/AIM MS5-1985, American National Standard for
Micrographics - Microfiche'," and that the microfiche
conform to the quality assurance for microfiche provisions
set forth in Section 3 of the specifications.
(3) Among the provisions of Section 3 is a quality
attribute for length which states the nominal standard for
such attribute as 148 millimeters as per table 5 of "ANSI PH
1.51-1983 American National Standard 'Dimensions for
Micrographic Sheet and Roll Films.'"; with tolerances for
such standard to be as per Defect Classification Table
included in such specifications as follows:
LENGTH
Defect Classification
less than 147.25 mm (5.797") critical
greater than 148.0 mm (5.827") critical
Rule 4 File, Tab B, specifications, page 9 of 21.
(4) The Government based its inclusion of such provision
upon a highly regarded, universally accepted standard. (R4
File, Tab K.)
(5) There is no evidence of any protest of these
specifications by Appellant or any other vendor to whom the
solicitation was sent. The bidder's list reflects that
Respondent received 4 responsive bids to the solicitation,
including Appellant's bid. (R4 File, Tab C.)
(6) Performance records indicate that while Appellant had
great difficulty in meeting the specifications respecting
length, acceptance was achieved after correction in certain
instances, thus confirming that while the specifications
were difficult to meet, performance was not impossible.
(R4 File, Tab J.)
Given such findings, the Board, as in Docket No. GPO BCA
3-87, denies the appeal in its entirety and affirms the CO's
decision.
AFFIRMED.