BOARD OF CONTRACT APPEALS
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON, DC 20401
In the Matter of )
)
the Appeal of )
)
KENNEDY GRAPHICS ) Docket No. GPOBCA 15-98
Jacket No. 531-736 )
Purchase Order E-0388 )
For the Appellant: Kennedy Graphics, Strongsville, Ohio, by
Frank Toth, Jr., General Manager, pro se.
For the Government: Thomas Kelly, Esq., Assistant General
Counsel, U.S. Government Printing Office.
Before BERGER, Ad Hoc Chairman.
DECISION1 AND ORDER
Kennedy Graphics (Appellant), 12102 Pearl Road, Strongsville,
Ohio appeals the January 15, 1998, final decision of U.S.
Government Printing Office (GPO or Respondent) Contracting
Officer Susan J. Williams requiring it to replace and repack 100
damaged cartons containing brochures produced under Jacket
531-736, Purchase Order E-0388. For the reasons that follow, the
Board finds no merit to the appeal. Accordingly, the Contracting
Officer's decision is AFFIRMED and the appeal is DENIED.
I. BACKGROUND
1. The contract, calling for the production of 225,000 copies of
a 12-page brochure, was awarded to the Appellant on November 14,
1997.
2. On December 17, the brochures, packed in 292 cartons mounted
on 7 pallets, were received by the U.S. Army Publications Center
in St. Louis, Missouri. A Center employee signed for the
shipment without noting any damage. A Center printing
specialist, however, noted that approximately 100 cartons on the
lower two layers of the pallets were crushed. In inspecting the
cartons he discovered that no filler had been used and that there
was 3/4" to 1" of empty space in the cartons.
3. On December 18 the Contracting Officer notified the Appellant
of the damage. The Appellant subsequently refused to accept
responsibility for the damage because no damage had been noted by
the Army employee who had signed for delivery. The Contracting
Officer then formally directed the Appellant to replace the
damaged cartons. The Appellant arranged to have another company
replace and repack the cartons, at a cost of $620. The Appellant
seeks reimbursement of that amount.
II. DISCUSSION
This is a very simple case, easily disposed of. Approximately
100 cartons containing the brochures called for by the contract
were received in damaged condition. While GPO makes no assertion
that the brochures were damaged, the Appellant's obligation under
the contract extends not only to producing an acceptable printed
product but also to properly packaging that product.
Professional Printing of Kansas, Inc., GPOBCA 28-93 (September
16, 1997), slip op. at 34 et seq. In this respect, the packing
provision of the contract specifications required the Appellant
to "[p]ack suitable in 275 psi shipping containers." In
addition, the "packing" clause of the Supplemental
Specifications, incorporated into the contract by reference,
required the Appellant, "[i]n the event the material does not fit
snugly on the top or sides," to add stuffer material in the form
of "open-cell pads or thicknesses of corrugated board." GPO
Contract Terms, Solicitation Provisions, Supplemental
Specifications, and Contract Clauses, Supplemental
Specifications, � 2(j), GPO Pub. 310.2, effective December 1,
1987 (Rev. 9-88). This clause, which refers to the "method and
manner of packaging for preservation and required storage and/or
transportation," when read with the "[p]ack suitable" language,
requires packing that is suitable not only for protecting the
printed product during shipment, but also for "their preservation
and required storage, based on the realistic assumption that
delivered supplies might not be used immediately." Professional
Printing of Kansas, Inc., supra, at 37. (Emphasis in original.)
While the Appellant states that it did not add stuffer material
to the cartons because they were packed tight, the crushed
cartons with their sides bowed out (as evidenced by photographs
taken by the company that repacked and replaced the cartons)
supports the statement of the Army's printing specialist that in
fact the cartons were not tightly packed. Cartons so damaged
cannot be said to have been packed suitably for transportation
(as will be required for further shipment from the Army
Publications Center), preservation, and storage since the damage
could lead to bursting and consequent loss or damage to the
contents.
In short, the contract required the Appellant to pack the cartons
in a certain way (with filler material if they weren't packed
tightly with the printed product), and in a manner suitable for
storage and preservation as well as for transportation; on this
record, the Board must conclude that the Appellant did not do so.
It is firmly established that the Government has the right to
insist on compliance with its specifications. Shepard Printing,
GPOBCA 23-92 (April 29, 1993), slip op. at 19, 1993 WL 526848.
This rule encompasses specification requirements not only for end
products, but also for packing and shipping. See Resolute Paper
Products Corp., ASBCA 3961, 58-1 BCA � 1,738; Swift & Co., ASBCA
4303, 58-1 BCA � 1,679; Comp. Gen. Dec. B-133492, Oct. 8, 1957.
Accordingly, GPO's insistence that the Appellant take corrective
action with respect to the damaged cartons was not improper.
Although the Appellant complains that the Army's failure to note
the damage when signing for the shipment will keep it from
recovering from its transportation carrier, it is not clear that
the carrier would be liable under these circumstances; in any
event, the Army's failure to note the damage has no bearing on
the Appellant's responsibility to the Government under its
contract and to the consequences of its failure to meet that
responsibility by not complying with the specifications.
III. ORDER
The Contracting Officer's decision is AFFIRMED and the
appeal is DENIED.
It is So Ordered.
August 21, 1998 Ronald Berger
Ad Hoc Chairman
Board of Contract Appeals
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1 This decision is issued under the Board's Small Claims
Procedure pursuant to the Appellant's election filed with the
Board on May 18, 1998. Under that procedure, decisions of the
Board are to be issued within 120 days, when possible, of when
the Board receives written notice of the Appellant's election;
the decisions are to be "brief," with "summary findings of fact
and conclusions," and "shall have no value as precedent and, in
the absence of fraud, shall be final and conclusive and may not
be appealed or set aside." Board of Contract Appeals Rules of
Practice and Procedure, Rule 12, GPO Pub. 110.12 (September 17,
1984).