U.S. GOVERNMENT PRINTING OFFICE BOARD OF CONTRACT APPEALS The Appeal of TAMMS LITHOGRAPHY, INC. Docket No. GPO BCA 14-89 July 13, 1990 MICHAEL F. DiMARIO Administrative Law Judge OPINION This appeal, timely filed by Tamms Lithography, Inc., P. 0. Box 284, Cedarburg, WI 53012 (hereinafter Appellant), is from the final decision of James A. Davidson, Contracting Officer (C.O.), Los Angeles Regional Printing Procurement Office, U.S. Government Printing Office (GPO), Washington, DC 20401 (hereinafter Respondent), dated March 22, 1989, terminating its contract with Appellant identified as Purchase Order N-1262, Program 2909S, Jacket 679-155, for default for failure to meet delivery requirements. The decision of the Contracting Officer is affirmed for the reasons set forth hereinbelow. BACKGROUND The referenced contract required that Appellant produce all specified printing requirements as might be ordered by the Department of the Army from time to time during the term September 1, 1988, to August 31, 1989, each such order to be initiated by the issuance of a "print order" from the Department of the Army to the Appellant. The specifications reflected the anticipated frequency of orders during the term to be four per year. The specifications further stated that the following work schedule was to be adhered to for each print order, beginning the work day after notification of the availability of the print order and Government-furnished materials; i.e., camera copy, distribution list, blue labels, selection certificates, etc.: Contractor must pickup material and print order within 1 workday after notification. Contractor must deliver proofs within 5 workdays. Contractor must pickup edited proofs within 3 workdays. Contractor must complete distribution within 10 workdays. (Tab A, Rule 4 File) Pursuant to such terms, the contractor was issued Print Order 80000 (Tab D, Rule 4 File) on October 19, 1988, with an established delivery date of November 15, 1988. The contractor did not adhere to the scheduled delivery date nor to a promised delivery date of December 2, 1988. Nevertheless, the Army issued Print Order 80001 to Appellant on December 9, 1988, (Tab F, Rule 4 File) specifying delivery of the second requirement by December 30, 1988. .However, when Print Order 80000 was received, it was found to be deficient in certain technical respects for which a 15 percent discount was taken by the Government. (Tab H, Rule 4 File) Additionally, Appellant was advised by cure notice, dated December 16, 1988, that its failure to perform on .Print Order 80000 within the schedule of the specifications was a condition that was endangering performance on the contract in accordance with its terms. (Tab I, Rule 4 File) Appellant was given 5 days from its receipt of such notice to advise of the measures it was taking to cure such condition with advice that if the condition was not cured by December 30, 1988, the Government might terminate the contract for default pursuant to the terms of the contract. Appellant did not timely respond to the notice. Appellant did not adhere to the scheduled requirements for Print Order 80001. (Tabs J, K, L, M, and N, Rule 4 File) Accordingly, Appellant was issued a second cure notice on December 28, 1988, stating that such failure to perform was also a condition endangering performance and affording Appellant the same opportunity to respond to the cure notice within 5 days of its receipt with the caveat that unless such condition was cured the Government might terminate the contract for default pursuant to its terms. (Tab 0, Rule 4 File) On January 12, 1989, Appellant, Erwin Tamms, telephonically discussed the matter with the C.O., at which time Tamms was advised that the Government would not accept another late issue and that if Appellant was late on the next issue, the Government would default the contract. (Tab P, Rule 4 File) Appellant responded to both the Print Order 80000 and the Print Order 80001 cure notices by letter, dated January 21, 1989. (Tab Y, Rule 4 File) [Such response was not furnished to the Board for its consideration.] Appellant was issued Print Order 80002 on February 14, 1989, with a delivery date of March 10, 1989. (Tab S, Rule 4 File) Appellant again fell behind in meeting the scheduled requirements and was issued a third cure notice on February 23, 1989, advising that such condition was endangering the performance of the contract in accordance with its terms. (Tab V, Rule 4 File) The cure notice again afforded the Appellant the opportunity to present in writing advice of the measures it had adopted to cure such condition subject to the caveat that unless such condition was cured the Government might terminate the contract for default pursuant to its terms. Respondent was notified by the Army on March 13, 1989, that 100 copies of Print Order 80002 were received on March 10, 1989, but that the remainder of the order (450 copies) was late. (Tab X, Rule 4 File) On March 14, 1989, no other copies having been received, Respondent's contracting personnel sought the concurrence of Respondent's Contract Review Board for the termination of the contractor for default. Concurrence was given on March 21, 1989, (Tab Y, Rule 4 File) and the contract terminated that day with the Appellant advised of this action by "Notice of Termination Complete," dated March 22, 1989. (Tab Z, Rule 4 File) By letter dated May 1, 1989, Appellant filed its notice of appeal. An examination of Appellant's notice of appeal reflects in its third and fourth paragraphs that Appellant takes exception to the frequency with which the three print orders had been issued. It anticipated at the time of its bid that the specified frequency of "approximately four orders per year" meant "quarterly," whereas it had received three orders before the end of the "second quarter." This purportedly complicated its capability to fit such orders into its schedule, thus the delay. The remaining two substantive paragraphs of the letter deal only with Print Order 80002. The first alleges that March 15th was the date by which Appellant was to have completed its mailing. Appellant arrives at the March 15th date by applying the schedule set out in the specifications, supra, as follows: Page nine of the specs. states that the contractor will deliver proofs within 5 workdays. Program 2909S Print Order 80002 was dated 2/14/89. The five days would begin on the workday after notification that date should be 2/16/89. Monday, the 20th of February, was a Holiday. We sent the proof via UPS overnight on the 23rd. The proof was returned 3/1 which should mean that 3/2 would be the start of 10 workdays for completion. March 15th then should be the completion date. The second alleges that Appellant, in fact, had completed the mailing on March 13th, having sent 100 advance copies via "UPS overnight" on March 10th and the remaining 450 copies the same day via "UPS ground." Subsequently, by letter dated June 12, 1989, the Board advised Appellant that the appeal was received and docketed on June 8, 1989, and that Appellant had 30 days from receipt of the Board's docketing letter to file a complaint with the Board in accordance with Rule 6.(a) of the Board's Rules of Practice and Procedure, a copy of which was furnished to Appellant as an enclosure to the said letter. Thereafter, by letter dated July 12, 1989, Appellant advised that it wished to submit the case on the record, that it still had not been told why the job was considered late, and that it had sent the original of a certain enclosed letter but had not received the courtesy of a reply. l No further information has been filed with the Board. A general denial was entered on behalf of the Government pursuant to Rule 6.(b), no answer having been received. The matter is before the Board in this form for its decision on the record. 1 Examination of the enclosed letter showed it to be dated June 24, 1989, and addressed to "USGPO, 15000 Aviation Blvd. Room 2W26, Lawndale, CA 90261, Attention: Verbe Sutton, Contracting Officer." The letter, in substance, protested Respondent's "nonresponsibility determination in regard to Program 2909S on the basis of greater prices" and asks Sutton to "reconsider our bid." As such, it does not appear to be responsive to the Board's Rule 6.(a) requirement or relevant to this appeal. DISCUSSION The first issue presented is whether the default termination should be vacated or modified based upon Appellant's assertion that it failed to meet the contract schedule requirements because it had anticipated that the orders would be received quarterly. Having examined the contract terms and the facts, we conclude that the mere assertion presents no basis for either action. The contract's plain language states that it "is a requirements contract for the items and for the period specified herein. . . . The quantities of items specified herein are estimates only, . . ." (Page 3 of 12, Tab A, Rule 4 File) "Subject to any limitations elsewhere in this contract, the contractor shall furnish to the Government all items set forth herein which are called for by print orders issued in accordance with the 'ORDERING' clause of this contract. Given such language the "Frequency of Orders" provision of "approximately four orders per year" (Page 4 of 12, Tab A, Rule 4 File) cannot be construed as "quarterly" without distorting the clear meaning of the contract. "Quarterly" and four times per year are plainly not synonymous terms since the Government could order more or less than one order in any one quarter and still be within the approximate or estimated annual quantity. Moreover, the fact that Appellant was delinquent on the very first order militates against a conclusion that but for such anticipation Appellant would have performed within the schedule of the contract. The second issue presented is whether or not Appellant's delivery of the products required by Print Order 80002 was within the schedule requirements of the contract. Appellant argues that the scheduled completion date was March 15th, 1989. The C.O. and the Army, on the other hand, apparently believed the scheduled date to be March 10, 1989. (Tab X, Rule 4 File) Neither date was apparently correct. First, the March 10, 1989, date appears on the Print Order as the scheduled delivery date. The ordering provisions set forth on page 3 of the Specifications, however, provide that "all print orders issued hereunder are subject to the terms and conditions of this contract. This contract shall control in the event of conflict with any print order." Thus, the March 10th date is not controlling unless it, in fact, is the date arrived at by applying the schedule requirements of the contract. Examining those requirements as Appellant has done, we find that the schedule begins on "the work day after notification of the availability of the print order and Government-furnished materials." The record does not show the date of such notification. Appellant claims, in effect, that the date was February 15, 1989, the day after the print order was issued. He therefore concludes that the schedule began on February 16, 1989. We disagree. The only available record to the Board is the print order issued February 14, 1989. From this we must conclude, absent a showing to the contrary, that notification occurred the same day. This being the case, by applying the schedule formula we conclude that the full order was due by March 14, 1989, one day earlier than asserted by Appellant and four days later than believed by the Department of the Army. That being the case, it is clear from the record that Appellant did not meet the delivery schedule, the C.O. having stated to the GPO Contract Review Board that "as of March 14, 1989, no other copies have been received." (Tab Y, Rule 4 File) Accordingly, we find no basis for concluding that the Contracting Officer's determination to "terminate the remainder of the contract for Default with all reprocurement costs" to Appellant "[b]ecause they have failed to meet our schedule requirements . . ." was erroneous in light of the fact that the contract provision that "Adherence to this schedule must be maintained." (Page 9 of 12, Tab A, Rule 4 File), the cure notices, various telephone calls, and the January 12, 1989, conversation between the C.O. and Erwin Tamms made it clear that time was of the essence. Therefore, we affirm his decision and deny the appeal. It is so Ordered.