BOARD OF CONTRACT APPEALS
U.S. GOVERNMENT PRINTING OFFICE
In the matter of )
)
the Appeal of )
)
HORIZON GRAPHICS ) Docket No. GPOBCA 15-02
)
Jacket 783-727 )
Purchase Order P9791 )
For the Appellant: Robert Gacek, Jr., President, Horizon Graphics, Eden
Prairie, Minnesota.
For the Respondent: Roy Potter, Esq., Associate General Counsel, U.S.
Government Printing Office, Washington, DC.
Before KERRY L. MILLER, Administrative Judge.
SUMMARY DECISION ISSUED UNDER
RULE 12.2 - SMALL CLAIMS PROCEDURE
Horizon Graphics (Appellant) challenges the decision of a U.S.
Government Printing Office (GPO) Contracting Officer denying the
company's request for additional compensation for performing GPO Jacket
783-727. Pursuant to GPOBCA Rule 12.2, the Board issues the following
summary decision.1
Appellant was awarded a small purchase contract to produce 1,000 copies of a
document entitled PT. REYES 2001 ANNUAL REPORT for the U. S. Department of
Interior. The contract specifications informed Appellant that the Government
would furnish a "650 MB CD-ROM disc (Windows 98 compatible PageMaker 6.5,
Photoshop 5.5, MS Word and Excel files, plus furnished fonts)." Rule 4 File,
Tab A.
After examining the Government-furnished materials (GFM) Appellant informed the
Contracting Officer that it would need an additional $250 to correct certain
"problems." Relevant to this appeal is Appellant's complaint that the GFM
contained 10 "JPEG graphics not converted to TIF/EPS." Rule 4 File, Tab C.
Appellant advised GPO that the job was on hold pending a contract modification
to compensate it for converting the JPEG2 graphics. Appellant later stated that
"TIFF and EPS graphics are the accepted formats at our shop." Rule 4 File, Tab
D. According to Appellant, the raster image processor3 (RIP) it used at that
time4 "would not reliably process color JPEG files without possible unusual
shifts in color." Appellant's Brief at 1.
The Contracting Officer advised Appellant to continue working on the contract
and that GPO would not pay for converting the JPEG files. Rule 4 File Tab F.
Appellant converted the JPEG files to EPS5 files, a format acceptable to its
raster image processor equipment and again requested an additional $165 from the
Contracting Officer. Rule 4 File, Tab H.
In a Final Decision dated June 10, 2002, the Contracting Officer rejected
Appellant's claim, writing:
I have once again reviewed the file, including all correspondence, for Jacket
783-727. I believe the actions of the Government to be correct.
You have requested reimbursement for the conversion of files that were furnished
in the "jpeg" format.
The facts are as follows:
Your were told in advance that no additional payment would be made for this
conversion.
We are unaware of any technological problem that prevents the jpeg format from
being output from most if not all RIPs.
There is no value added to the Government by the conversion of the jpeg files to
another file format. (Once the original files have been saved as "jpegs" they
have been compressed by removing some information this information cannot be
restored by a conversion to another format.) Your request for reimbursement for
this conversion is unprecedented in our experience. Many, if not a majority, of
the orders processed by this office contain jpeg files that are output from that
format without any conversion and without additional time or effort on the part
of the contractor. We do not reimburse vendors for choosing to do extra work in
accordance with their preferences. You were given the opportunity to return the
order prior to beginning any work.
With these facts in mind your request for additional payment is hereby denied.
Rule 4 File, Tab H. Thereafter Appellant filed a timely appeal with the GPO
Board of Contract Appeals.
Appellant has the burden of proving that the GFM was not suitable for its
intended purpose; i.e., that the GFM was inappropriate for use in the process of
printing the PT. REYES 2001 ANNUAL REPORT. See Web Business Forms, Inc., GPO
BCA 31-89 (July 22, 1994), 1994 GPOBCA LEXIS 24, 1995 WL 488523, slip op. at
13-14. Accord Thompson Ramo Wooldridge, Inc. v. United States, 175 Ct. Cl. 527,
361 F.2d 222 (1966); Topkis Brothers Co. v. United States, 155 Ct. Cl. 648, 297
F.2d 536 (1961); Bogue Electric Manufacturing Co., ASBCA No. 25184, 86-2 BCA �
18,925.
If a contractor can show that the GFM it receives is defective and not suitable,
then compensation for its extra work would be warranted. Cf. Printing
Unlimited, GPOBCA No. 21-90 (Nov. 30, 1993), 1993 GPOBCA LEXIS 28, 1993 WL
516844, slip op. at 20-21 (claim denied where the Board's own inspection of the
GFM indicated that the mylar materials were clean and clear enough to produce
readable proofs with a reasonable amount of effort from the contractor); Custom
Printing Co., GPOBCA No. 10-87 (May 10, 1988), 1988 GPOBCA LEXIS 12, 1988 WL
363328, slip op. at 12-13 (no proof that the contractor was furnished defective
camera copy for the original printing). Also cf. AAA Engineering & Drafting,
Inc., ASBCA No. 24872, 85-2 BCA � 17,970, at 90,101 (despite a contractor's
claim to the contrary, there was no indication that the Government failed to
furnish the amount of reproducible copy needed to perform a technical order-
writing contract); Space Age Engineering, Inc., ASBCA No. 31825, 86-1 BCA �
18,776 at 93,464 (no evidence that the Government's computer printouts were
unsuitable for use).
In the instant case "suitability" is specifically related to the manufacturing
process. The question is whether the GFM was appropriate for use in producing
the items called for in the contract. See Printing Unlimited, supra, slip op.
at 18 (citing Thompson Ramo Wooldridge, Inc. v. United States, supra; Topkis
Brothers Co. v. United States, supra).
In resolving this dispute the Board looks to the earlier GPOBCA decision in A &
E Copy Center, GPOBCA No. 38-92 (Sept. 25, 1996), 1996 GPOBCA LEXIS 44, 1996 WL
812881. In that appeal a contractor was provided camera copy mounted on a
display board. While the camera copy was of sufficient clarity to be used for
reproduction, the mounting board was too large to fit on the contractor's
photocopier. The Board held that "suitability" refered to the clarity of image
in the camera copy and that the real problem with the GFM was the Contractor's
own choice of machinery with which to perform the contract. Id. at 22-23.
In A & E Copy, the Board denied the appeal on two grounds. First, the Board
cited GPO's small purchase procedures that allowed the contractor the option of
returning the GFM to the GPO and canceling the contract after the contractor
realized that the mounted camera copy could not be used on its photocopier. The
Board concluded that the contractor's decision to continue attempting to produce
the product with the GFM absolved the Government of any further responsibility
for the Appellant's performance. Id. at 23.
Secondly, the Board found that the contractor was in no different position from
any other contractor that finds itself in difficulty because it entered into a
contract without the necessary equipment to perform. The Board noted that
machinery and equipment problems are not within the range of acceptable
occurrences or events that would excuse a contractor's failure to perform. Id.
at 23-24 (citing R.C. Swanson Printing and Typesetting Co., GPOBCA No. 31-90
(Feb. 6, 1992), 1992 GPOBCA LEXIS 17, 1992 WL 487874, slip op. at 33; Chavis and
Chavis Printing, GPOBCA No. 20-90 (Feb. 1, 1991), 1991 GPOBCA LEXIS 15, 1991 WL
439270, slip op. at 13-14; Jomar Enterprises, Inc., GPO BCA 13-86 (May 25, 1989)
1989 GPOBCA LEXIS 53, 1989 WL 384979, slip op. at 3.) See also K.C. Printing
Co., GPOBCA No. 2-91 (Feb. 22, 1995), 1995 GPOBCA LEXIS 20, 1995 WL 488531, slip
op. at 15 (lack of financial resources is no excuse for failure to perform).
In the instant appeal the Board finds the long-standing precedent in this area
compelling. It is well-settled that a contractor has an obligation to reasonably
assure itself of the availability of necessary supplies and machinery prior to
making a contract commitment with the Government. See Asa L. Shipman's Sons,
Ltd., GPOBCA No. 6-94 (Feb. 13, 1996), 1996 GPOBCA LEXIS 46, 1996 WL 1805665,
slip op. at 27, fn. 27; K.C. Printing, supra, slip op. at 15; R.C. Swanson
Printing and Typesetting Co., supra, slip op. at 33. Implicit in a contractor's
promise to perform is its assurance that it has the ability to perform in terms
of equipment so that performance will not be delayed. See Asa L. Shipman's
Sons, Ltd., supra, slip op. at 27, fn. 27; K.C. Printing, supra, slip op. at 15;
R.C. Swanson Printing and Typesetting Co., supra, slip op. at 34; Chavis and
Chavis Printing, supra, slip op. at 14; Allegheny Plastics, Inc., GPOBCA No.
75-7 (Feb. 12, 1976), 1976 GPOBCA LEXIS 27, 1976 WL 22915, slip op. at 7. See
also Jomar Enterprises, Inc., supra, slip op. at 3.
In short, it is the contractor's responsibility to have equipment adequate for
contract performance. See Asa L. Shipman's Sons, Ltd., supra, slip op. at 27,
fn. 27; K.C. Printing, supra, slip op. at 15; R.C. Swanson Printing and
Typesetting Co., supra, slip op. at 34-35; Chavis and Chavis Printing, supra,
slip op. at 14-15; Allegheny Plastics Inc., supra, slip op. at 7 (citing Fulton
Shipyard, IBCA No. 735-10-68, 71-1 BCA � 8,616).
In the instant appeal, Appellant, and all prospective bidders, were advised by
the GPO's solicitation for Jacket 783-727 that the awardee would be provided
Adobe Photoshop 5.5 files. Rule 4 File, Tab A. The Photoshop program is
described by its developer as a "photo retouching, image editing, and color
painting software." Adobe Systems Inc., ADOBE PHOTOSHOP VERSION 5.0 USER GUIDE
(1998) at 5. The Photoshop program can be used to import and export images in a
variety of file formats. Among the 19 supported file formats6 is the JPEG
format. Id. at 323; Adobe Systems Inc., ADOBE PHOTOSHOP VERSION 5.5 USER GUIDE
SUPPLEMENT (1999) at 47. Thus, when bidding on the contract, Appellant was on
notice that the Adobe Photoshop files provided in the GFM could contain graphics
in any one of many formats, including the JPEG format.
Therefore, once Appellant accepted the contract by not returning the GFM and
making substantial performance, it was obligated to have available to it
equipment that would enable it to utilize JPEG graphics files. However,
Appellant has admitted that its raster image processor had not yet been upgraded
to enable it to process JPEG files. The real problem was not with the JPEG
files, but with Appellant's choice of raster image processor hardware and
software. The Board concludes that the preponderance of the evidence supports
the Respondent's position that the GFM was suitable for its intended use, and
hence the Appellant has not sustained its burden of proof in this case. See
Printing Unlimited, supra, slip op. at 22 (citing Tar Heel Canvas Products,
Inc., ASBCA No. 30341, 88-1 BCA � 20,347; Bogue Electric Manufacturing Company,
ASBCA No. 25184, 86-2 BCA � 18,925; Bristol Electronics Corp., ASBCA Nos. 24792,
24929, 25135 through 25150, 84-3 BCA � 17,543; Palmetto Enterprises, Inc., ASBCA
No. 20421, 76-2 BCA � 11,978.
Having considered all of Appellant's arguments, whether or not expressly
mentioned, the Board concludes that Appellant is not entitled to additional
compensation. Accordingly, the Board affirms the Contracting Officer's decision
to deny Appellant's request for additional compensation. The appeal is denied.
August 13, 2003 KERRY L. MILLER
Administrative Judge
1 Decisions issued under this small claims procedure have no value as
precedent. GPOBCA Rule 12.2 (d).
2 JPEG is an acronym for Joint Photographic Experts Group, an International
Standards Organization committee that has defined standards for the digital
compression of graphic images. Image files compressed in accordance with these
standards are also known as JPEG files. Richard M. Romano, THE GATF
ENCYCLOPEDIA OF GRAPHIC COMMUNICATIONS 451-2 (1998).
3 A raster image processor (RIP) is "the hardware and software configuration
used in output devices to determine what value each pixel or spot of output
should possess, driven by commands from a page description language such as
PostScript." Richard M. Romano, THE GATF ENCYCLOPEDIA OF GRAPHIC COMMUNICATIONS
663 (1998).
4 Soon thereafter, Appellant upgraded its RIP to enable it to process JPEG
files. Rule 4 File, Tab I.
5 EPS is an acronym for Encapsulated PostScript, a "graphics file format
developed by Adobe Systems, Inc.; a device-independent PostScript representation
of a graphic or other object (or page)." Richard M. Romano, THE GATF
ENCYCLOPEDIA OF GRAPHIC COMMUNICATIONS 280 (1998).
6 The other graphics formats used by Adobe Photoshop are BMP, DCS (Desktop Color
Separations), Photoshop EPS (Encapsulated PostScript), EPS TIFF or EPS PICT
Preview, Filmstrip, FlashPix, GIF (Graphics Interchange Format), IFF
(Interchange File Format), PCX, PDF (Portable Document Format), PICT, PICT
Resource, PIXAR, PNG (Portable Network Graphics), Raw, Scitex CT (Continuous
Tone), Targa or TGA, and TIFF (Tagged-Image File Format). Adobe Systems Inc.,
ADOBE PHOTOSHOP VERSION 5.0 USER GUIDE (1998) 321-326.