BOARD OF CONTRACT APPEALS
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON, DC 20401
In the Matter of )
)
The Appeal of )
)
GOLD COUNTRY LITHO ) Docket No. GPO BCA 22-93
Jacket No. 338-583 )
Purchase Order 88703 )
DECISION AND ORDER
By letter dated June 20, 1993, Gold Country Litho (Appellant or
Contractor), 3391-C Fitzgerald Road, Rancho Cordova, California
95742-6831, filed a timely appeal from the final decision of
Contracting Officer John W. Adams, Chief, Section 1, Contracts
Branch, Purchase Division of the U.S. Government Printing
Office's (hereinafter Respondent or GPO or Government), Printing
Procurement Department (PPD), Washington, DC 20401, dated March
31, 1993, terminating the Appellant's contract identified as
Purchase Order 88703, Jacket No. 338-583, for default because it
was unable to perform in accordance with the specifications. See
R4 File, Tab L.1 For the reasons which follow, the Contracting
Officer's default decision is hereby AFFIRMED, and the appeal is
DENIED. Furthermore, the Respondent is entitled to excess
reprocurement costs to the extent indicated.
I. BACKGROUND2
1. On January 25, 1993, the Respondent issued an Invitation
for Bid (IFB) for the production of 10,200 pads of 50 Data
Descriptor Labels (HZ813), Form SF 711, 1-87 (hereinafter
DDLs), for the General Services Administration (GSA). See R4
File, Tab A.3 Among other things, the contract specifications
stated:
* * * * * * * * * *
Any contract which results from this Invitation for Bid will be
subject to the applicable articles of GPO Contract Terms, GPO
Pub. 310.2 (effective December 1, 1987, Rev. 9-88) [hereinafter
GPO Contract Terms], and Quality Assurance Through Attributes
Program, GPO Pub. 310.1 (effective May 1979, Rev. 11-89).
* * * * * * * * * *
PRODUCT: Sheets of labels with permanent, pressure-sensitive
adhesive, padded. Bar code marking required on shipping
containers.
* * * * * * * * * *
CONTRACTOR TO FURNISH: All materials and operations, other than
those listed under "Government to Furnish," necessary to produce
the product(s) in accordance with these specifications.
* * * * * * * * * *
PROOFS: 5 sets of Dylux, or similar proofs, plus not less than 5
samples of the adhesive label materials to be used in the
production of the contract requirements.
Submit proofs and vinyl adhesive label material together with
copy, to the U.S. Government Printing Office, Contract Management
Division, Contract Compliance Section (PPSC), Washington, D.C.
20401. Furnished proof label must be filled in by the contractor
and used on all proof packages. The contractor must not print
prior to receipt of an "OK to print."
STOCK: The specifications of all stock furnished must be in
accordance with those listed herein.
Labels: White Opaque Vinyl equal in all respects to Fasson's
"TamperFas" Destructible Vinyl, G-70651.
Backing sheet: Extruded Polyolefin Film (or equal) with suitable
release coating for label removal from liner. Liner must be
moisture resistance, and must lay flat regardless of change in
humidity. Material must be appropriate to the adhesive and
permit easy release of label from backing sheet with no adhesive
residue.
* * * * * * * * * *
CONSTRUCTION: Back of labels to be coated with a permanent type,
pressure-sensitive, acrylic adhesive equal in all respects to
Fasson's S-730. Adhesive must adhere to automated data
processing (ADP) media, such as floppy disks, cassette and reel
tapes, Winchester disks, and other removable storage media.
Labels must remain so firmly affixed that they cannot be removed,
and are tamperproof. Labels must stay firmly affixed to backing
sheet during storage and processing, until removed by hand.
Adhesive must have a shelf life of at least 2 years.
* * * * * * * * * *
QUALITY ASSURANCE RANDOM COPIES: In addition to the Departmental
Random Copies (Blue Label), the contractor may be required to
submit quality assurance random copies to test for compliance
against specifications. The purchase order/specifi-cations will
indicate the number required, if any. When ordered, the
contractor must divide the entire order into equal sublots and
select a copy from a different general area of each sublot. The
contractor will be required to execute a statement furnished by
GPO certifying that copies were selected as directed. Copies
will be paid for at the running rate offered in the contractor's
bid and their cost will not be a consideration for award. A copy
of the purchase order/specifications must be included.
* * * * * * * * * *
SCHEDULE: Furnished material will be available for pick up at the
U.S. Government Printing Office, 27 G Street, NW., Washington,
D.C. 20401, on February 16, 1993.
Submit proofs as soon as the contractor deems necessary in order
to comply with the shipping schedule. Proofs will be withheld 7
workdays from receipt in the GPO until they are made available
for pick up by the contractor.
* * * * * * * * * *
Ship complete on or before March 19, 1993.
See R4 File, Tab A, at 1-4.
2. The IFB was publicly advertised and 32 IFBs were sent
to potential bidders. See Respondent's Filing, Declaration
of Contracting Officer Adams, �� 2, 4 (hereinafter Adams
Declaration).
3. Eight (8) bids were submitted, including the Appellant's,
who submitted the lowest offer. See Respondent's Filing, Adams
Declaration, � 3. The bids, in rank order from the lowest to
the highest, were:
BIDDER BID
a. Gold Country Litho $34,610.00
b. Pres-tige Label $46,716.00
c. Morris Industries $49, 358.00
d. Hub Labels $54,134.00
e. American Printing Converters $59,058.00
f. PH Ink LTD $62,250.95
g. Precision Printing Co. $74,062.95
h. Standard Register Co. $83,283,00
See Respondent's Filing, Adams Declaration, � 3.
4. In light of the $12,106.00 difference between the
Appellant's offer and the next low bidder (Pres-tige), the
Respondent twice asked the Contractor to review and confirm its
bid price. See Respondent's Filing, Adams Declaration, �� 4,
5. On each occasion, Don Sternick, the Appellant's owner,
responded by orally confirming his quote. Id. See also R4
File, Tab B. Sternick also confirmed the bid in writing, by
letter dated February 11, 1993, stating that the Contractor
could do the job, and saying that its bid was low because it
manufactured its own label stock.4 See Respondent's Filing,
Adams Declaration, � 4. See also R4 File, Tab C.
5. On February 12, 1993, GPO issued Purchase Order 88703,
Jacket No. 338-583, awarding the contract to the Appellant at
its bid price of $34,610.00. See R4 File, Tab D.
6. On March 4, 1993, after waiting three (3) weeks for the
pre-production proofs and not receiving them, the Charles H.
Homer, Jr., a Printing Specialist in the Contract Compliance
Section, of the PPD's Contract Management Branch, telephoned the
Contractor to inquire about the status of the order and spoke to
Sternick. See R4 File, Tab E. During this conversation,
Sternick told Horner that the Appellant had returned the job to
GPO. Id. When the Contracting Officer later called the
Contractor for an explanation, Sternick said that the job had
been returned because the sample was different from the
specifications, and the Appellant could not do the work. Id.
In response, the Contracting Officer reminded the Appellant that
he had assured the Respondent at least three times (twice orally
and once in writing) that it could do the work, that as far as
the Government was concerned it had a contract with the
Contractor, and that the Appellant could not simply "walk away"
from the agreement without being defaulted and held liable for
excess reprocurement costs. Id. The Contracting Officer ended
the conversation by saying that he would call back once he
received the Contractor's package. Id.
7. On March 12, 1993, the PPD's Purchase Division received
samples of the label and backing stock from the Appellant, but
not the Dylux or similar proofs. See R4 File, Tab G. The same
day, the Respondent also received a letter from the Contractor
stating that it "[would] not set type or order materials to
produce [the] job until samples [were] approved or o.k. to
print." See R4 File, Tab F. The PPD immediately sent the prior-
to-production samples to GPO's Quality Control and Technical
Department (QCTD) for testing, requesting the results by March
15, 1993. See R4 File, Tab H.
8. However, since the Dylux proofs had not been sent with the
stock samples, the Contracting Officer issued a "Show Cause"
notice to the Appellant on March 15, 1993, informing the
Contractor that it would be defaulted because it "failed to
perform the schedule requirements" of the contract, and
affording it an opportunity to explain the reasons why, in
writing, within five (5) days from the receipt of the notice.
See R4 File, Tab I. By letter, dated March 16, 1993, Sternick
responded to the "Show Cause" notice, stating, in pertinent
part:
Originally, Gum Papers of America (Manuel Cordova) said they
would give Gold Country Lithography (my company), "terms" with
the cost of materials to produce [the] job. Therefore, I was
able to bid on this job (& [it] was also awarded). I was then
referred (by Mr. Cordova) to the credit department when I was
awarded the contract. At that point, Juan (credit mgr.) denied
my credit. I could not get the monies to do [the] job so I got
another supplier to send samples of another material that was
simular [sic] & sent samples to Charles Washington to be
approved.
Mr. Washington said he cannot accept samples without proof of
copy. Gold Country Lithography does not see [the] reason to
submit proofs with copy change if paper will not be o.k.'d to
start manufacturing.
I was relying on the second paper company (Zellerbach Paper
Company) to issue credit & was waiting for approval of the paper
(of simular [sic] or equivalent stock) which has still been
unapproved.
See R4 File, Tab J.
9. In the meantime, QCTD inspected the sample stock submitted
by the Contractor and determined that it was not equal to the
specifications. See R4 File, Tab H. The reason for its finding
was explained by the QCTD in its test report, dated March 24,
1993:
Specifications required materials of labels to be vinyl
(destructible). Samples tested are not vinyl, maybe [sic] a
mylar or plastic base product. Labels can be removed 24 hours
after affixed to substrate without destroying, and may [be] used
again, hence labels are not permanent. Labels are not equal to
Fasson's S-730 Tampas [sic] Destructible Vinyl.
Id.
10. In light of this report, on March 30, 1993, the Contracting
Officer sought the approval of the Respondent's Contract Review
Board (CRB) to terminate the contract for default.5 See R4 File,
Tab K. Termination was requested because the Appellant's samples
did not meet the requirements of the contract, and moreover, the
Contractor had admitted that it ". . . could not perform per
specification." Id. The Contracting Officer also asked the CRB
to concur in his decision to repurchase the contract from Pres-
tige, the second low bidder, and charge the Appellant with the
excess reprocurement costs.6 Id. The CRB gave its approval to
both the Contracting Officer's default and reprocurement
proposals the same day. Id.
11. Accordingly, by letter dated March 31, 1993, expressly
titled "Notice of Termination-Complete," the Contracting Officer
terminated the Appellant's contract for default because of its
"inability to perform per specifications (stock not equal to
Fasson's S-730 Tampas [sic] Destructible Vinyl)." See R4 File,
Tab L. The termination notice also informed the Appellant that
in the event the Government exercised its right to repurchase the
same or similar items, the Contractor would be liable for excess
reprocurement costs. Id.
12. The same day, after negotiating a delivery schedule that
would meet GSA's needs, the Contracting Officer reprocured the
DDLs from Pres-tige at its original bid of $46,716.00. See R4
File, Tab M; Respondent's Filing, Adams Declaration, �� 6, 7;
Purchase Order 88872. The repurchase resulted in excess
reprocurement costs of $12,106.00. Id. The record indicates
that Pres-tige satisfactorily performed the contract and was paid
for its work on June 30, 1993, by check number 30644648 in the
amount of $44,622.62 (billed amount of $45,073.35 minus $450.73
for the 1 percent prompt pay discount). See Respondent's Filing,
Declaration of Hurley Eborn, � 3; Adams Declaration, � 7;
Financial Management Services (FMS) Computer Printout. 13.
On April 1, 1994, the Contracting Officer notified the Appellant
that the defaulted job had been reprocured for $46,716.00, and
that the amount of any excess reprocurement costs would be
deducted from its account. See R4 File, Tab O. That same day,
he also informed the FMS that the Appellant's contract had been
defaulted and reprocured from Pres-tige. See R4 File, Tab N.
Accordingly, the FMS was asked to withhold payment to the
Appellant, and recover any additional costs for the reprocurement
from the Contractor. Id.
14. By letter dated June 20, 1993, the Appellant timely
appealed the Contracting Officer's default termination decision
to the Board, claiming that its failure to perform was the fault
of its stock supplier.7 Thereafter, in its Complaint, dated
September 3, 1993, the Contractor also protested the Government's
assessment of excess reprocurement costs.
II. ISSUES PRESENTED8
Two questions require resolution in this case:
1. Was the Contracting Officer's decision terminating the
contract for default proper and correct, or has the Appellant
shown that its failure to perform arose from causes beyond its
control and without its fault or negligence, or beyond the
control and without the fault or negligence of its suppliers, Gum
and/or Zellerbach?
2. Has the Government proved its claim of entitlement to excess
reprocurement costs in this case, and if so, in what amount?
III. POSITIONS OF THE PARTIES
Although the Appellant did not file a written brief, the record
fully discloses its defense. In essence, the Contractor says
that it is not responsible for its failure to perform the
contract, and instead fixes the blame on Gum, its original
supplier of label stock. See RPTC, at 5; Complaint, at 2.
First, Gum assured the Appellant that its product was equivalent
to Fasson's "TamperFas" Destructible Vinyl, even though the
sample did not look the same to the Contractor. See Complaint,
at 1. Second, Gum refused to extend credit to the Contractor or
supply the label stock after the contract was awarded. See RPTC,
at 5; R4 File, Tab J. Third, by reason of Gum's actions, the
Appellant went to a backup supplier, Zellerbach, who assured the
Contractor that its substitute stock was equivalent to Fasson's
"TamperFas" Destructible Vinyl, which turned out not to be true.
See RPTC, at 5 (citing R4 File, Tab H); Complaint, at 1. Finally,
the Contractor states that it attempted to obtain proper quality
stock from Fasson itself in sufficient time to meet the required
delivery schedule, but was unsuccessful. See RPTC, at 5-6. In
that regard, the Appellant's problem with Fasson as a supplier
was not so much the availability of the stock as its price; i.e.,
the stock would have cost the Contractor as much as it bid for
the entire job and it would have had to send the material to a
subcontractor to convert it into sheets. See Complaint, at 1.
In summary, the Appellant asserts that it is not a manufacturer
of label stock, but rather a printer of finished products such as
the DDLs, and thus it should not be charged with the inability of
its supplier to provide it with acceptable material. See RPTC,
at 5; Complaint, at 1-2. Accordingly, for these reasons, the
Appellant argues that its failure to perform in this case arose
from causes beyond its control and without its fault or
negligence, and therefore it is not in default. See RPTC, at 6;
Complaint, at 2. Consequently, the Contractor also contends that
it should not be held liable for excess reprocurement costs
because it would be unfair to do so under these circumstances.
See RPTC, at 6; Complaint, at 1.
The Respondent, on the other hand, asserts that the Appellant's
contract was properly terminated for default, and the Government
was entitled to recover the excess reprocurement costs from the
Appellant, as provided for under the terms of the contract. See
RPTC, at 5; R. Brf., at 8. GPO asserts that the Contractor's
default is undisputed, thus entitling the Government to terminate
the contract immediately, and that the only issue in this case is
whether or not the failure to perform was excusable. See R.
Brf., at 4-5 (citing GPO Contract Terms, Contract Clauses, ��
20(c),(d); R4 File, Tab E; Riggs Engineering Co., ASBCA No.
26509, 82-2 BCA � 15,955; M.H. Colvin Co., GSBCA No. 5209, 79-2
BCA � 13,981; National Farm Equipment Co., GSBCA No. 4921, 78-1
BCA � 13,195). In the Respondent's view, neither of the two
excuses advanced by the Appellant is sustainable on this record.
See R. Brf., at 4. First, the Government claims that the
Contractor has not shown that its paper supplier was responsible
for the default for reasons beyond the control of both of them,
and without the fault or negligence of either, as required by the
contract's "Default" clause. See R. Brf., at 5-6 (citing GPO
Contract Terms, Contract Clauses, �� 20(c),(d)). Rather, the
Respondent notes that the Appellant has admitted that its paper
suppliers were either unable to produce stock matching the
specifications (Gum, Zellerbach), or the matching stock was too
costly (Fasson). See R. Brf., at 6. Consequently, GPO contends
that the Contractor has failed to carry its burden of proving
that its failure to perform is excused for reasons beyond its
control and without its fault or negligence. Id. (citing Lee K.
Geiger Construction Co., GSBCA Nos. 2152, 2164, 67-1 BCA � 6189;
American Construction Co., GSBCA No. 1097, 65-2 BCA � 4964).
Second, the Government argues that the Appellant's poor financial
condition will not excuse its default. See R. Brf., at 7 (citing
Summitt Group, ASBCA No. 45138, 93-3 BCA � 26,240; KARPAK Data
and Design, IBCA No. 2944, 93-1 BCA � 23,360). The Respondent
says that a contractor's financing is a matter solely within its
control, and that when a contractor enters a contract with the
Government it is obligated to ensure that it has adequate
financial resources to perform. Id. (citing Southeastern Airways
Corp. v. United States, 230 Ct. Cl. 47, 673 F.2d 368 (1982);
Marwel Engineering Co., ASBCA No. 17758, 74-2 BCA � 10788;
Schaecher-Kux Lumber Co., ASBCA No. 1390 (1953)). Indeed, GPO
states that the law will not excuse a contractor from default
based on a claim that its supplier will not ship the raw
materials unless paid in advance. Id. (citing National
Equipment, Inc., GSBCA Nos. 5643, (5104)-REIN, 5309, 81-2 BCA �
15365; Boyd Tools, Inc., GSBCA Nos. 3804, 3805, 73-2 BCA � 10148;
National Export Packing Company of Virginia, GSBCA No. 2691, 69-1
BCA � 7422; Mountain States Label Corp., GSBCA No. 2555, 68-2 BCA
� 7132). Likewise, the inability to obtain credit from its
supplier, as here, is not such a ground as would excuse a
contractor from its failure to perform. See R. Brf., at 7-8
(citing Douglas Chemical Division, DEICO Industries, Inc., ASBCA
No. 15047, 70-2 BCA � 8469; Geofabrics, Inc., ASBCA No. 13512,
69-1 BCA � 7629). Accordingly, the Respondent contends that on
the matter of finances as well, the Appellant has not sustained
its burden of proof to show that its failure to obtain the proper
supplies was due to causes beyond its control. See R. Brf., at 8
(citing Beco, Inc., ASBCA Nos. 9702, 9734, 1964 BCA � 4493).
Therefore, the Government states that it is entitled to judgment
in its favor, and urges the Board to deny the appeal. Id.
IV. DISCUSSION
In the Board's view, as it mentioned during the prehearing
conference, there is no doubt that the Appellant failed to
perform the contract, and that there was adequate justification
for the Contracting Officer to terminate the contract for
default. See RPTC, at 6. The only question remaining,
therefore, is whether the Contractor has presented a legally
sufficient excuse so that the Board may hold it blameless for the
default, and forgive its liability for excess reprocurement
costs? At the outset, therefore, it is worthwhile to repeat the
legal principles which apply to these issues.
First, GPO's "Default" clause provides that a contracting
officer may, upon written notice of default to the
contractor, terminate a contract, in whole or in part, if
the contractor fails to: (1) deliver the supplies or perform
the required services within the time specified or any
extension which may have been granted; (2) make progress on
the work, so as to endanger performance of the contract; or
(3) perform any of the other provisions of the contract.
See GPO Contract Terms, Contract Clauses, � 20(a)(1)
(I),(ii),(iii). Furthermore, where a contract is terminated
for default and the work must be reprocured, the contractor
will be held responsible for excess procurement costs and
possible liquidated damages. See GPO Contract Terms,
Contract Clauses, �� 20(b), 22(d). However, the contractor
is excused from paying such reprocurement costs or damages
if the failure to perform or to deliver on time results from
causes beyond its control and without its fault or
negligence.9 See GPO Contract Terms, Contract Clauses, ��
20(c), 22(e), 23. Such causes include, but are not limited
to, acts of God or of the public enemy, acts of the
Government in either its sovereign or contractual capacity,
fires, floods, epidemics, quarantine restrictions, strikes,
freight embargoes, and unusually severe weather-but in each
case, the failure to perform must be beyond the control and
without the fault or negligence of the contractor. See GPO
Contract Terms, Contract Clauses, � 20(c). See also Big Red
Enterprises, supra, slip op. at 24; Asa L. Shipman's Sons,
Ltd., GPO BCA 06-95 (August 29, 1995), slip op. at 16, 1995
WL 818784, reconsid. denied, February 13, 1996; Univex
International, supra, slip op. at 17; K.C. Printing Co., GPO
BCA 02-91 (February 22, 1995), slip op. at 9, 1995 WL
488531; Printing Unlimited, GPO BCA 21-90 (November 30,
1993), slip op. at 16, 1993 WL 516844; Chavis and Chavis
Printing, GPO BCA 20-90 (February 6, 1991), slip. op. at 11,
1991 WL 439270. Where the failure to perform is caused by
the default of a supplier or subcontractor, the cause of the
default must be beyond the control of both the contractor
and subcontractor, and without the fault or negligence of
either, in order for the contractor not to be liable for any
excess costs for failure to perform, unless the
subcontracted supplies or services could have been secured
from other sources in sufficient time to meet the required
delivery schedule. See GPO Contract Terms, Contract
Clauses, � 20(d). See also Big Red Enterprises, supra, slip
op. at 24; Asa L. Shipman's Sons, Ltd., supra, slip op. at
16; Univex International, supra, slip op. at 17; K.C.
Printing Co., supra, slip op. at 10; Chavis and Chavis
Printing, supra, slip op. at 11.
Second, a default termination is a drastic action which may only
be taken for good cause and on the basis of solid evidence.10
See Big Red Enterprises, supra, slip op. at 24; Asa L. Shipman's
Sons, Ltd., supra, slip op. at 16; Univex International, supra,
slip op. at 17; K.C. Printing Co., supra, slip op. at 10; Shepard
Printing, GPO BCA 23-92 (April 29, 1993), slip op. at 10, 1993 WL
526848; R.C. Swanson Printing and Typesetting Co., GPO BCA 31-90
(February 6, 1992), slip op. at 25, 1992 WL 487874, aff'd, Civil
Action No. 92-128C (U.S. Claims Court, October 2, 1992);11
Stephenson, Inc., GPO BCA 2-88 (December 20, 1991), slip op. at
20, 1991 WL 439274 (citing Mary Rogers Manley d/b/a Mary Rogers
Real Estate, HUDBCA No. 76-27, 78-2 BCA � 13,519; Decatur Realty
Sales, HUDBCA No. 75-26, 77-2 BCA � 12,567). Consequently, the
Government has the burden of proving the basis for the default,
while the contractor has the burden of showing that its failure
to perform was excusable. See Big Red Enterprises, supra, slip
op. at 25; Asa L. Shipman's Sons, Ltd., supra, slip op. at 16-17;
Univex International, supra, slip op. at 18; K.C. Printing Co.,
supra, slip op. at 10; Shepard Printing, supra, slip op. at 11;
R.C. Swanson Printing and Typesetting Co., supra, slip op. at 28;
Chavis and Chavis Printing, supra, slip op. at 11. Accord Lisbon
Contractors v. United States, 828 F.2d 759 (Fed. Cir. 1987));
Switlik Parachute Co. v. United States, 216 Ct. Cl. 362 (1978);
J.F. Whalen and Co., AGBCA Nos. 83-160-1, 83-281-1, 88-3 BCA �
21,066; B. M. Harrison Electrosonics, Inc., ASBCA No. 7684, 1963
BCA � 3,736. If the Government fails to meet its burden of
proof, then the termination is converted into one of convenience
and the contractor is allowed to recover for the work performed.
See GPO Contract Terms, Contract Clauses, � 20(g). See also
Graphics Image, Inc., supra, slip. op. at 24-28. Cf. Big Red
Enterprises, supra, slip op. at 25; Asa L. Shipman's Sons, Ltd.,
supra, slip op. at 17; Univex International, supra, slip op. at
18; K.C. Printing Co., supra, slip op. at 11; Stephenson, Inc.,
supra, slip op. at 17-18; Chavis and Chavis Printing, supra, slip
op. at 9.
Third, where the default termination is based on untimely
performance, the contractor's burden of proof is four-fold: (1)
to prove affirmatively that the delay was caused by or arose out
of a situation which was beyond the contractor's control and that
it was not at fault or negligent; (2) to show that performance
would have been timely but for the occurrence of the event which
is claimed to excuse the delay; (3) to show that it took every
reasonable precaution to avoid foreseeable causes for delay and
to minimize their effect; and (4) to establish a precise period
of time that performance was delayed by the causes alleged. See
Big Red Enterprises, supra, slip op. at 26; Asa L. Shipman's
Sons, Ltd., supra, slip op. at 17; Univex International, supra,
slip op. at 18-19; K.C. Printing Co., supra, slip op. at 11;
Chavis and Chavis Printing, supra, slip op. at 12. This burden
must be carried by substantial evidence-unsupported reasons by
way of explanation are not enough-and the contractor must also
show that the delay in contract performance was due to
unforeseeable causes beyond its control and without any
contributory negligence on its part. See Big Red Enterprises,
supra, slip op. at 26; Asa L. Shipman's Sons, Ltd., supra, slip
op. at 18; Univex International, supra, slip op. at 19; K.C.
Printing Co., supra, slip op. at 11; Chavis and Chavis Printing,
supra, slip op. at 12-13.
Finally, a default termination is a discretionary act which can
be challenged on an abuse of discretion standard. See Big Red
Enterprises, supra, slip op. at 26; Asa L. Shipman's Sons, Ltd.,
supra, slip op. at 18; Univex International, supra, slip op. at
19; K.C. Printing Co., supra, slip op. at 12; Graphics Image,
Inc., supra, slip op. at 24-25; Shepard Printing, supra, slip op.
at 12. Accord Darwin Construction Co., Inc. v. United States,
811 F.2d 593 (Fed. Cir. 1987); Quality Environment Systems v.
United States, 7 Cl. Ct. 428 (1985); Jamco Constructors, Inc.,
VABCA Nos. 3271, 3516T, 94-1 BCA � 26,405, reconsid. denied, 94-2
BCA � 26,792; Walsky Construction Co., ASBCA No. 41541, 94-1 BCA
� 26.264, reconsid. denied, 94-2 BCA � 26,698. The burden is on
the contractor to prove abuse of discretion. See Big Red
Enterprises, supra, slip op. at 26; Asa L. Shipman's Sons, Ltd.,
supra, slip op. at 18; Univex International, supra, slip op. at
19; K.C. Printing Co., supra, slip op. at 12; Shepard Printing,
supra, slip op. at 12. Accord Kit Pack Co., Inc., ASBCA No.
33135, 89-3 BCA � 22,151; Lafayette Coal Co., ASBCA No. 32174,
89-3 BCA � 21,963.
Applying these principles to this record, the Board reaches the
following conclusions:
A. The Appellant has not shown that its failure to perform arose
from causes beyond its control and without its fault or
negligence, or beyond the control and without the fault or
negligence of its suppliers. Therefore, the Contracting
Officer's termination of the contract for default was not in
error.
As previously indicated, the Appellant's default in this case is
not even in question; indeed, the Contractor candidly admits that
was unable to perform in accordance with the contract
specifications See R4 File, Tabs E and P; Notice of Appeal, at
1; Complaint, at 1. However, it offers two excuses for its
failure: (1) its paper supplier could not provide stock
equivalent to Fasson's "TamperFas" Destructible Vinyl, G-70651;
and (2) its poor financial condition precluded it from purchasing
the label stock from Fasson itself. The Board agrees with the
Respondent that none of these reasons fall within the range of
acceptable occurrences or events which would excuse the
Contractor's failure to perform. See Chavis and Chavis Printing,
supra, slip op. at 13; Jomar Enterprises, Inc., GPO BCA 13-86
(May 25, 1989), slip op. at 3-5. The Board will discuss each of
the Appellant's proferred excuses seriatim.
1. The Government did not breach its implied warranty of
commercial availability with respect to the paper stock for the
labels.
Setting aside the fact that the Appellant did not produce the
prior-to-production Dylux or similar proofs, as required by the
specifications, giving as its reason that it wanted the samples
of the paper stock approved first, see R4 File, Tabs F, G and J,
a situation which also exposed the Contractor to liability under
the contract, see e.g. Hurt's Printing Company, Inc., supra, slip
op. at 23 (no excuse to default that Government refused to
inspect the contractor's artwork before the prior-to-production
samples were prepared and submitted for approval); Editor's
Press, Inc., GPO BCA 3-90 (September 4, 1991), slip op. at 18-19,
1991 WL 439271 (Government not liable for delay costs caused by
contractor's seeking a retesting of the paper stock by GPO), from
the Appellant's description of its attempts to acquire the label
stock, it seems clear to the Board that its principal allegation
is that somehow there has been a breach of the Government's
implied warranty of commercial availability in this case.
The specifications in the disputed contract required the
Appellant to provided paper stock for labels that was ". . .
equal in all respects to Fasson's "TamperFas" Destructible Vinyl,
. . .". Where, as here, the Government writes its specifications
in terms of a "brand name or equal" product:
[I]t is the obligation of the Government to ascertain and assure
bidders the commercial availability of the component from its
manufacturer before it employs it as a purchase description, or
failing that, to provide bidders with a sufficient description of
the physical specifications and performance characteristics so
that it may be duplicated by the bidders either by in-house
fabrication or by purchase from suppliers.
See Aerodex, Inc. v. United States, 189 Ct. Cl. 344, 354, 417
F.2d 1361 (1969). See also S & D Construction Co., VABCA No.
3885, 95-2 BCA � 27,609 (although the Government is not precluded
from writing specification around the design features of a
particular manufacture, when it does so without informing the
bidders or mentioning the manufacturer's name, the specifications
will be treated as calling for a brand name or equal,
necessitating a description of the salient characteristics);
Ocean Electric Corp., NASABCA 371-8, 73-2 BCA � 10,335 (the lack
of a commercially available equal meeting the salient
characteristics may enable the contractor to substitute a
nonconforming product). See generally, John Cibinic, Jr. & Ralph
C. Nash, Jr., Administration of Government Contracts 3d ed., (The
George Washington University, 1995), at 284-86 (hereinafter
Cibinic & Nash). Here, the salient characteristics are described
in both the "STOCK" and "CONSTRUCTION" clauses of the contract.
See R4 File, Tab A, at 2. See also R4 File, Tab H (QCTD's
Miscellaneous Materials Test Report).
Furthermore, where a contract specifies a particular
product, such as Fasson's "TamperFas" Destructible Vinyl,
the Government only warrants that the product existed at the
time of solicitation, and the contractor assumes the risk
that the product may become unavailable. See James Reeves
Contractor, Inc., ASBCA No. 44065, 95-2 BCA � 27,718;
Parker's Mechanical Constructors, Inc., ASBCA No. 29020,
84-2 BCA � 17,427; Omega Construction Co., ASBCA No. 22705,
78-2 BCA � 13,425. Similarly, the Government does not
thereby become an a insurer that the product will be
available within the time period contemplated for
performance under the contract, see Franklin E. Penny Co. v.
United States, 207 Ct. Cl. 842, 524 F.2d 668 (1975), or at a
price and location which is less costly for the contractor,
see Callison Construction Co., AGBCA No. 88-309-1, 92-3 BCA
� 25,071. In no case, however, does the implied warranty
rule extend to unspecified equal products; i.e., the
Government makes no promise that acceptable substitutes are
available. See M.S.I. Corp., IBCA 554-4-66, 68-1 BCA �
6983. See also WRB Corp. v. United States, 183 Ct. Cl. 409
(1968); James Walford Construction Co., GSBCA No. 6498, 83-1
BCA � 16,277 (no warranty of commercial availability for
generically described products or products of listed
manufacturers). Stated otherwise, the law places on the
contractor's shoulders the responsibility for determining
the availability of the supplies, materials, and products
necessary for performance prior to bidding, see Interstate
Coatings, Inc. v. United States, 7 Cl. Ct. 259 (1985); ACS
Construction Co., ASBCA No. 33832, 87-3 BCA � 20,138, aff'd,
848 F.2d 1245 (Fed. Cir. 1988); DeLaval Turbine, Inc., ASBCA
No. 21797, 78-2 BCA � 13,521; Datametrics, Inc., ASBCA No.
16086, 74-2 BCA � 10,742; Therm-Air Manufacturing Co., ASBCA
No. 17128, 74-2 BCA � 10,652, and the risk is not shifted to
the Government just because the contractor experiences
difficulty in that regard, see Pioneer Enterprises, Inc.,
ASBCA No. 43739, 93-1 BCA � 25,395; Toyad Corp., ASBCA No.
26785, 85-3 BCA � 18,354. See also Alabama Dry Dock &
Shipbuilding Corp., ASBCA No. 39215, 90-2 BCA � 22,855
(Government only warranted that the supplier could
manufacture a conforming item, not that it would do so, and
thus it was not liable when the supplier delivered defect
items).
When these principles are applied to the facts of this case, the
Board has little difficulty concluding that the Respondent did
not breach its implied warranty of commercial availability. In
that regard, the record shows that the Contractor's first
supplier of choice, Gum, said that its product was equivalent to
Fasson's "TamperFas" Destructible Vinyl, but would not extend
credit to the Appellant to buy it. The second paper company,
Zellerbach, assured the Contractor that its stock was also
equivalent to Fasson's "TamperFas" Destructible Vinyl, but the
samples it supplied failed GPO's quality control tests. The
Appellant also contacted Fasson which said it could supply the
required paper stock, but only at a price which was prohibitive
as far as the Contractor was concerned. Clearly, to the extent
that the specifications warranted that "TamperFas" Destructible
Vinyl existed at the time of solicitation, and indeed, was still
available from Fasson, the Respondent met the requirements of the
law. See James Reeves Contractor, Inc., supra; Parker's
Mechanical Constructors, Inc., supra; Omega Construction Co.,
supra. It was not obligated to promise that label stock equal to
Fasson's "TamperFas" Destructible Vinyl would be available from
other suppliers, see WRB Corp. v. United States, supra; James
Walford Construction Co., supra; M.S.I. Corp., supra, or that
Fasson would sell the named material to the Appellant at a price
it was willing to pay, see Callison Construction Co., supra.
Rather, it was the Contractor's duty to determine the
availability of equal paper stock at a price it could afford (if
it did not want to or could not purchase "TamperFas" Destructible
Vinyl from Fasson) prior to submitting its bid. See Interstate
Coatings, Inc. v. United States, supra; ACS Construction Co.,
supra; DeLaval Turbine, Inc., supra; Datametrics, Inc., supra;
Therm-Air Manufacturing Co., supra. The Respondent is not
responsible for any difficulties or frustrations experienced by
the Appellant in its efforts to obtain label stock which would
satisfy the requirements of the contract. See Pioneer
Enterprises, Inc., supra; Toyad Corp., supra. Accordingly, the
Board holds that the Government did not breach its contractual
obligations under the circumstances herein, and thus, the failure
to obtain acceptable label stock prior to default is wholly
charged to the Contractor.
2. The fact that the Appellant was having financial difficulty
does not furnish it with such an excuse as would forgive its
failure to perform.
As previously indicated, the "Disputes" clause excuses a
defaulting contractor from the consequences of its failure to
perform or make timely deliveries in accordance with the contract
terms, if it can demonstrate that its delinquency results from
causes beyond its control and without its fault or negligence.
See GPO Contract Terms, Contract Clauses, �� 20(c). Here, the
Appellant offers its poor financial condition, which limited its
options with respect to purchasing proper label stock, as another
ground for its failure to perform. In the Board's view, this
second excuse identifies the real reason the Contractor was
unable to perform the contract in this case. However, this
excuse is also without legal merit.
It is "black letter" law that a contractor is responsible for
having the labor, plant, equipment, material and finances
adequate for contract performance prior to making a contract
commitment with the Government. See K.C. Printing Co., supra,
slip op. at 15; Chavis and Chavis Printing, supra, slip op. at
14-15. The reason for this rule is simple-implicit in a
contractor's promise to perform is its assurance that it has the
ability to perform. See K.C. Printing Co., supra, slip op. at
15; Chavis and Chavis Printing, supra, slip op. at 14.
The basic rule with regard to contractor finances was stated
by the Armed Services Board of Contract Appeals (ASBCA) in
Dependable Metal Products, Inc., ASBCA Nos. 41446, 41449,
94-3 BCA � 26,963. In that case, the contractor's failure to
provide evidence from its bank that the bank's negative
financing decision was based on Government action or
inaction, as contended by the contractor, resulted in the
ASBCA's rejection of the contractor's attempt to excuse its
default based on its financial problems. As the ASBCA
observed:
While we hear appellant argue that repudiation was compelled, in
part, by a decision of a lender not to provide additional
financing, the general rule is that a contractor assumes the risk
of assuring adequate financing to perform the work. Southeastern
Airways Corporation v. United States [29 CCF � 82,261], 673 F.2d
368 (Ct. Cl. 1982); International Equipment Services, Inc., ASBCA
Nos. 21104, 23170, 83-2 BCA � 16,675. There is an exception
where the contractor can show that financing was denied because
of Government wrongdoing. TGC Contracting Corporation v. United
States [32 CCF � 73,655], 736 F.2d 1512 (Fed. Cir. 1984).
See Dependable Metal Products, Inc., supra, 94-3 BCA � 26,963, at
134,264. See also K.C. Printing Co., supra, slip op. at 16.
Compare Litchfield Manufacturing Corp. v. United States, 338 F.2d
94 (Ct. Cl. 1964) (bank vice president testified that bank
declined financing because of the Government's failure to timely
deliver necessary tooling). Similarly, as another contract
appeals board noted:
It is fundamental that the contractor assumes the risk of
providing funds to perform the contract. Consequently, neither
undercapitalization nor insolvency (actual or impending) will
excuse a failure to perform. Consolidated Airborne Systems, Inc.
v. United States [10 CCF � 73,125], 172 Ct. Cl. 588, 597, 348
F.2d 941, 946 (1965); Willems Industries, Inc. v. United States
[8 CCF � 71,693], 155 Ct. Cl. 360, 295 F.2d 822 (1961);
International Equipment Services, Inc., ASBCA Nos. 21104, 23170.
83-2 BCA � 16,675; Medical Fabrics Company, ASBCA No. 1148, 66-2
BCA � 5,887.
See El Greco Painting Co., ENG BCA No. 5693, 92-1 BCA � 24,522,
at 122,379. See also K.C. Printing Co., supra, slip op. at 17.
Accord Sierra Tahoe Manufacturing, Inc., GSBCA No. 12679, 94-2
BCA � 26,771; Centennial Leasing, GSBCA No. 12037, 94-1 BCA �
26,398; Swiss Products, Inc., ASBCA No. 40031, 93-3 BCA � 26,163;
Local Contractors, Inc., ASBCA No. 37108, 92-1 BCA � 24,491;
Ralcon, Inc., ASBCA Nos. 38059, 38191, 40398, 41376, 92-2 BCA �
24,971.
In the Board's view, the general rule is dispositive of this
case. Here, the undisputed facts permit the Board draw but one
conclusion-the Appellant was undercapitalized. Evidence of the
Appellant's shortage of funds to perform the contract, all of
which is admitted by the Contractor, simply worms its way through
the record. First, even before the contract was awarded, the
Appellant asked the Respondent for a "letter of credit" to
guarantee payment for the finished job, which in effect was a
request for payment in advance.12 See R4 File, Tab C. Second,
the Contractor tells us that bid on the contract after its paper
supplier, Gum, had assured it of "terms" regarding the cost of
the stock, and that when Gum reneged on its commitment for
credit, it was without ". . . the monies to do [the] job . . .".
See R4 File, Tab J. Third, although the Appellant obtained free
samples of paper stock from a second paper company, Zellerbach,
which it submitted to GPO for approval, it was ". . . relying on
[Zellerbach] to issue credit . . .". Id. Finally, the
Contractor rejected the option of purchasing "TamperFas"
Destructible Vinyl from the manufacturer, Fasson, because ". . .
the stock was as much as [the Appellant} bid the job for." See
Complaint, at 1.
It was the Appellant's obligation to have proper and adequate
financial resources to perform the contract. See K.C. Printing
Co., supra, slip op. at 17 (citing Ralcon, Inc., supra, 92-2 BCA
� 24,971, at 124,435). The Contractor's inability to acquire
sufficient funds for performance is not such an excuse "beyond
its control and without its fault or negligence" within the
meaning of the "Disputes" clause, unless it could show that its
financial incapacity was caused by the Government. Id. (citing
Local Contractors, Inc., supra, 92-1 BCA � 24,491, at
122,235-36). Furthermore, financial problems not caused by
wrongful Government action do not form the basis to excuse a
failure to deliver. Id. (citing Midwest Satellite Equipment,
Inc., ASBCA No. 40713, 91-2 BCA � 23,907, at 119,759; Unimach
Manufacturing, ASBCA No. 39883, 90-3 BCA � 22,968, at 115,348).
Here, the Appellant has not shown any improper conduct on the
part of the Government affecting its ability to acquire
sufficient funds. Accordingly, the Contractor has not met its
burden of proof with respect to excusing its failure to make a
timely shipment of the DDLs under Purchase Order 88703, and the
Contracting Officer was justified in terminating the contract for
default. See K.C. Printing Co., supra, slip op. at 18; Chavis
and Chavis Printing, supra, slip op. at 15. Accord Midwest
Satellite Equipment , Inc., supra, 91-2 BCA � 23,907, at 119,759.
B. The Government has proved its claim of entitlement to excess
reprocurement costs in the amount indicated.
The last issue concerns the scope of the Appellant's liability
for excess reprocurement costs, if any. In K.C. Printing, Co.,
the Board summarized the legal principles governing questions
concerning excess reprocurement costs:
The assessment of excess reprocurement costs is considered a
Government claim. See Sterling Printing, Inc., supra, [Slip op.]
at 50-51 (and cases cited therein). [Sterling Printing, Inc, GPO
BCA 20-89 (March 28, 1994),1994 WL 275104, reconsid. denied, July
5, 1994, 1994 WL 377592.] Consequently, the Government has the
burden of demonstrating the propriety of the repurchase and
proving its entitlement to the amount of excess costs it claims.
Id., [Slip op.] at 51 (and cases cited therein). In doing so,
the Government must satisfy five criteria to establish an
entitlement to recovery against a defaulting contractor, namely,
it must show that: (a) the reprocurement contract was performed
under substantially the same terms and conditions as the original
contract; (b) it acted within a reasonable time following default
to repurchase the supplies; (c) it employed a reprocurement
method which would maximize competition under the circumstances;
(d) it obtained the lowest reasonable price; and (e) the work has
been completed and final payment made so that the excess costs
assessment is based upon liability for a sum certain. [Footnote
omitted.] Id., [Slip op.] at 52-53 (and cases cited therein).
Furthermore, the Government claim must be supported by evidence
in the record as to each element of the claim. Id., [Slip op.]
at 53 (and cases cited therein). Failure to satisfy even one
criterion may result in a reduction of the excess costs claimed.
Id., [Slip op.] at 53-54 (and cases cited therein).
See K.C. Printing, Co., supra, slip op. at 18-19. [Original
emphasis.] Whether the Government's repurchase was improper, and
if so, what is the amount of reasonable excess costs under the
circumstances, are questions of fact. See A & E Copy Center, GPO
BCA 38-82 (September 25, 1996), slip op. at 27, 1996 WL_____; Big
Red Enterprises, supra, slip op. at 41; Asa L. Shipman's Sons,
Ltd., supra, slip op. at 28; Univex International, supra, slip
op. at 33; K.C. Printing Co., supra, slip op. at 19, fn. 20;
Sterling Printing, Inc, supra, slip op. at 50 (citing Cable
Systems and Assembly Co., ASBCA No. 17844, 73-2 BCA � 10,172, at
47,892). The Board finds that the Respondent has satisfied all
of the necessary elements in this case.
First, the Board's own comparison of the original and
reprocurement contracts leaves no question but that the
reprocurement contractor, Pres-tige, was asked to produce and
deliver the same DDLs, in the same quantity, and under the same
terms and conditions as the Appellant's original contract.
Compare R4 File, Tab D, Purchase Order 88703 and Respondent's
Filing, Purchase Order 88872. Indeed, the Contractor does not
allege otherwise. In fact, except for an adjustment in the
deliver date to account for the repurchase and a few
administrative changes (e.g., new contractor code, new jacket
number, new area/state code, etc.), the two contracts are
identical. Certainly, these changes are not a material
alterations because they have no pecuniary impact; i.e., they are
not such as would cause a substantial increase in the price of
the reprocurement contract.13 See Big Red Enterprises, supra,
slip op. at 41; Sterling Printing, Inc., supra, slip op. at 59-60
(citing AGH Industries, ASBCA Nos. 27960, 31150, 89-2 BCA �
21,637; Ace Reforestration, Inc., AGBCA No. 84-271-1, 83-2 BCA �
20,218; T.M. Industries, ASBCA No. 21025, 77-1 BCA � 12,545;
Churchill Chemical Corp., GSBCA No. 4353, 77-1 BCA � 12,318,
aff'd, 221 Ct. Cl. 284, 602 F.2d 358 (1979); Solar Laboratories,
Inc., ASBCA No. 19957, 76-2 BCA � 12,115; Arjay Machine Co.,
ASBCA No. 16535, 73-2 BCA � 10,179; Marmac Industries, ASBCA No.
12158, 72-1 BCA � 9,249). Accord Schmalz Construction, Ltd.,
AGBCA No. 92-177-1, 94-1 BCA � 26,423; Meyer Labs, Inc., ASBCA
No. 19525, 87-2 BCA � 19,810; Lester Phillips, Inc., ASBCA No.
20735, 77-1 BCA � 12,447. See generally Cibinic & Nash, at
1007-09, 1011-12. Cf. A & E Copy Center, supra, slip op. at 28
(the Board denied the Government's claim for excess reprocurement
costs because the addition of identifiable quality standards and
a substantial revision in the description of the Government-
furnished materials in the repurchase contract, as well as other
significant changes, warranted the conclusion that it was not the
same or similar to the defaulted agreement). Accordingly, the
Board concludes that the Respondent has met the first condition
for excess reprocurement costs, namely, showing that the
reprocurement contract purchased the same or similar items, and
was performed under substantially the same terms and conditions
as the original contract. See Big Red Enterprises, supra, slip
op. at 42; Univex Supp., slip op. at 5-6; Asa L. Shipman's Sons,
Ltd., supra, slip op. at 29; K.C. Printing Co., supra, slip op.
at 19; Sterling Printing, Inc., supra, slip op. at 62-63. Accord
B & M Construction, Inc., AGBCA No. 90-165-1, 93-1 BCA � 25,431;
Zan Machine Co., ASBCA No. 39462, 91-3 BCA � 24,085; Boston
Pneumatics, Inc., ASBCA Nos. 26188, 26190, 26825, 26984, 27605,
27606, 87-1 BCA � 19,395.
Second, the Board has no trouble in concluding that the
reprocurement was accomplished in a timely fashion. The record
in this case shows that the Appellant's contract was terminated
for default on March 31, 1993. See R4 File, Tab L. The
reprocurement contract was awarded to Pres-tige the same day.
See R4 File, Tab M; Respondent's Filing, Adams Declaration, ��
6, 7; Purchase Order 88872. Accordingly, on this record the
Board finds that the Respondent acted with reasonable dispatch
and without undue delay to reprocure the defaulted books, and
thus it has satisfied its evidentiary burden for the second
criterion. See Big Red Enterprises, supra, slip op. at 43;
Univex Supp., supra, slip op. at 6; Asa L. Shipman's Sons, Ltd.,
supra, slip op. at 29-30; K.C. Printing Co., supra, slip op. at
20; Sterling Printing, Inc., supra, slip op. at 63-65. Accord
Astro-Space Laboratories, Inc. v. United States, 200 Ct. Cl. 282,
470 F.2d 1003 (1972); Puroflow Corp., ASBCA No. 36058, 93-3 BCA �
26,191; John L. Hartsoe, AGBCA No. 88-116-1, 93-2 BCA � 25,614;
Sequal, Inc., ASBCA No. 30838, 88-1 BCA � 20,382; Disan Corp.,
ASBCA Nos. 21297, 22221, 79-1 BCA � 16,677.
Third, the Board believes that the Contracting Officer chose a
reasonable method to repurchase the books. See Big Red
Enterprises, supra, slip op. at 43; Univex Supp., supra, slip op.
at 6-7; Asa L. Shipman's Sons, Ltd., supra, slip op. at 30; K.C.
Printing Co., supra, slip op. at 20-23. Cf. Sterling Printing,
Inc., supra, slip op. at 73. As a rule, a contracting officer
has very broad discretionary powers in reprocuring items on a
defaulted contract, and the choice of which procurement method to
use is one of them. See Big Red Enterprises, supra, slip op. at
43; Univex Supp., supra, slip op. at 6-7; Asa L. Shipman's Sons,
Ltd., supra, slip op. at 30; Sterling Printing, Inc., supra, slip
op. at 17, fn. 25 (citing Astro-Space Laboratories, Inc. v.
United States, supra; Old Dominion Security, Inc., GSBCA No.
9126, 90-2 BCA � 22,745; Columbia Loose Leaf Corp., GSBCA Nos.
5805(5067)-REIN, 5806(5230)-REIN, 82-1 BCA � 15,464). See also
Venice Maid Co., Inc. v. United States, 639 F.2d 690 (Ct. Cl.
1980); Zan Machine Co., supra. Although the Government has an
obligation in reprocuring a defaulted contract to mitigate the
defaulted contractor's excess cost liability by selecting a
method that will maximize competition and obtain the best or
lowest reasonable price under the circumstances, see e.g., Scalf
Engineering Co. and Pike County Construction Co., A Joint
Venture, IBCA No. 2328, 89-3 BCA � 21,950 at 110,425 (citing
Techcraft Systems, VABCA Nos. 1894, 2027, 86-3 BCA � 19,320)
(hereinafter Scalf Engineering); Sequal, Inc., supra, 88-1 BCA at
103,067, the law also allows a contracting officer to limit
competition for the repurchase if the situation demands it-e.g.,
the Government's need to assure a quick award to a firm which
could begin work almost immediately-since a reprocurement is
technically a purchase for the defaulted contractor's account,14
see Big Red Enterprises, supra, slip op. at 44; Univex Supp.,
supra, slip op. at 7; Asa L. Shipman's Sons, Ltd., supra, slip
op. at 31; Sterling Printing, Inc., supra, slip op. at 67.
Accord William A. Hulett, AGBCA Nos. 91-230-3, 92-133-3,
92-196-3, 93-1 BCA � 25,389, at 126,459; Old Dominion Security,
Inc., supra, 90-2 BCA at 114,165 (citing Camrex Reliance Paint
Co., GSBCA No. 6870, 85-3 BCA � 18,376; Century Tool Co., GSBCA
No. 3999, 76-1 BCA � 11,850); Sequal, Inc., supra, 88-1 BCA at
103,067. The test used in determining the adequacy of a
repurchase solicitation is one of reasonableness, and the burden
is on the Government to prove that it acted reasonably in
selecting the reprocurement method and in mitigating the
contractor's excess costs.15 See Big Red Enterprises, supra,
slip op. at 44; Univex Supp., supra, slip op. at 8; Asa L.
Shipman's Sons, Ltd., supra, slip op. at 31; K.C. Printing,
supra, slip op. at 21 (citing Sam's Electric Co., GSBCA Nos.
9359, 10044, 90-3 BCA � 12,128; Fancy Industries, Inc., ASBCA No.
26578, 83-2 BCA � 16,659); Sterling Printing, Inc., supra, slip
op. at 67. However, the Government's obligation to mitigate
costs "is not one of perfection, but one of reasonableness and
prudence under the circumstances."16 See Mid-America Painters,
Inc., ENG BCA No. 5703, 91-1 BCA � 23,367, at 117,232; Barrett
Refining Corp., supra, 91-1 BCA at 118,145. This duty may be
satisfied by a variety of repurchase methods, including
soliciting those firms which bid on the original procurement.
See Big Red Enterprises, supra, slip op. at 45; Univex Supp.,
supra, slip op. at 8; Asa L. Shipman's Sons, Ltd., supra, slip
op. at 32; K.C. Printing, supra, slip op. at 22 (citing American
Marine Upholstery Co. v. United States, 170 Ct. Cl. 564, 345 F.2d
577 (1965); Mid-America Painters, Inc., supra). Indeed, such a
mitigation step is considered presumptively reasonable, even if
the reprocurement price itself seems unreasonable.17 See Univex
Supp., supra, slip op. at 8; Asa L. Shipman's Sons, Ltd., supra,
slip op. at 32; K.C. Printing, supra, slip op. at 22 (citing Mid-
America Painters, Inc., supra);18 Sterling Printing, Inc., supra,
slip op. at 69-70 (citing Zoda v. United States, 148 Ct. Cl. 49,
180 F.Supp. 419 (1980); United Microwave Co., ASBCA No. 7947,
1963 � 3,701). Cf. American Photographic Industries, Inc., ASBCA
Nos. 29272, 29832, 90-1 BCA � 22,728 (the Government failed to
mitigate damages because it did not contact the second low bidder
on the original contract). See also Dillon Tool Maintenance,
Inc. v. United States, 218 Ct. Cl. 732 (1978); AAA Janitorial
Services, ASBCA No. 9603, 67-1 BCA � 6,091 (the law creates a
rebuttable presumption that the repurchase could have been
completed at the price previously quoted by a lower bidder if an
effort had been made to do so). In this case, the Contracting
Officer, not believing that further advertising would result in
lower prices, simply returned to the bids on the original
solicitation, which were relatively fresh (only a month and a
half old) and were obtained through public advertising, and
awarded the reprocurement contract to the second low bidder,
Pres-tige, whose prices he determined to be fair and reasonable.
See R4 File, Tab K; Respondent's Filing, Adams Declaration, � 6.
See International Technology Corp., B-250377.5, 93-2 CPD � 102
(original offers satisfied competition requirement where only a
few months had passed between the default termination and
original competition for a hazardous waste management contract).
While the repurchase price was approximately 35 percent more than
the Appellant's original offer, the Board is satisfied, on the
evidence before it, that the reprocurement method chosen by the
Respondent was reasonable; i.e., the number of bidders on the
original IFB assured competitive prices, and further solicitation
of other firms would not have resulted in lower prices and
therefore would have been unnecessary. See Big Red Enterprises,
supra, slip op. at 46; Univex Supp., supra, slip op. at 9; K.C.
Printing, supra, slip op. at 22-23 (citing Century Tool Co.,
GSBCA No. 4007, 78-1 BCA � 13,050, at 63,735, reconsid. denied,
78-2 BCA � 13,345; Sterling Printing, Inc., supra, slip op. at
73). Accordingly, the Board believes that the Respondent has met
its burden with respect to the third criterion necessary to
establish an entitlement to recovery of excess reprocurement
costs against a defaulting contractor. See Big Red Enterprises,
supra, slip op. at 46; Univex Supp., supra, slip op. at 9; K.C.
Printing, supra, slip op. at 23 (citing Sterling Printing, Inc.,
supra, slip op. at 73).
Fourth, mitigation of damages also requires the Government to
show that it obtained the lowest reasonable reprocurement price-
the lowest reasonable price for the Government under
circumstances, not the defaulted Contractor.19 See Big Red
Enterprises, supra, slip op. at 46; Univex Supp., supra, slip op.
at 10; Asa L. Shipman's Sons, Ltd., supra, slip op. at 35; K.C.
Printing Co., supra, slip op. at 23-24. Accord Barrett Refining
Corp., supra; Scalf Engineering, supra; Sequal, Inc., supra;
Fancy Industries, Inc., supra. In that regard, the Board has
observed that ". . . the most common method used for
recalculating excess costs is simply to take the difference
between the original contract price and the second low bid on the
original contract." See Sterling Printing, Inc., supra, slip op.
at 84-85. Accord Mid-America Painters, Inc., supra; Sequal,
Inc., supra; Fancy Industries, Inc., supra; Zero-Temp, Inc.,
ASBCA No. 21590, 78-1 BCA � 13,212. That is precisely what the
Contracting Officer did in this case; i.e., subtract the
Appellant's original bid of $34,610.00 from Pres-tige's second
low bid of $46,716.00, to arrive at an excess reprocurement cost
liability figure of $12,106.00. See R4 File, Tabs K and M;
Respondent's Filing, Adams Declaration, �� 3, 6. This method of
calculation is presumptively reasonable. Even though the
repurchase price was approximately 35 percent more than the
Appellant's bid on the original contract, it is well-settled that
the mere fact of a significant price increase in the
reprocurement does not render it unreasonable in the face of
Government due care and diligence. See Big Red Enterprises,
supra, slip op. at 47; Univex Supp., supra, slip op. at 11; K.C.
Printing Co., supra, slip op. at 23. Accord Futura Systems,
Inc., ENG BCA No. 6037, 95-2 BCA � 27,654; Foster Refrigerator
Corp., ASBCA No. 34021, 89-2 BCA � 21,591; Boston Pneumatics,
Inc., supra; Fancy Industries, Inc., supra. Accordingly, the
Board finds that the Respondent has carried its evidentiary
burden of showing that the excess reprocurement costs assessed in
this case mitigated the Appellant's liability and represented the
lowest reasonable price for the Government under the
circumstances. See Big Red Enterprises, supra, slip op. at 48;
Univex Supp., supra, slip op. at 12; Asa L. Shipman's Sons, Ltd.,
supra, slip op. at 36; K.C. Printing Co., supra, slip op. at 25.
Cf. Sterling Printing, Inc., supra, slip op. at 77.
Finally, in order to establish a right to excess reprocurement
costs, the Government must demonstrate that the repurchased work
has been completed, and final payment made to the reprocurement
contractor so that the excess costs assessment is based upon
liability for a sum certain. See Big Red Enterprises, supra,
slip op. at 49; Univex Supp., supra, slip op. at 12; Asa L.
Shipman's Sons, Ltd., supra, slip op. at 36 (citing Whitlock
Corp. v. United States, 141 Ct. Cl. 758, 159 F.Supp. 602 (1958),
cert. denied, 358 U.S. 815 (1958); John L. Hartsoe, supra;
Lafayette Coal Co., ASBCA Nos. 32174, 33311, 87-3 BCA � 20,116).
See also K.C. Printing Co., supra, slip op. at 25-26; Sterling
Printing, Inc., supra, slip op. at 78. Where the Government
fails to offer evidence that a reprocurement contract was
awarded, performed, or paid for, the assessment of excess costs
against a defaulted contractor will be denied. See Big Red
Enterprises, supra, slip op. at 49; Univex Supp., supra, slip op.
at 12-13; Sterling Printing, Inc., supra, slip op. at 85.
Accord, Patty Armfield, AGBCA Nos. 91-185-1, 92-141-1, 92-143-1,
93-1 BCA � 25,235; Pyramid Packing, Inc., AGBCA No. 86-128-1,
92-2 BCA � 24,831; Scalf Engineering, supra. Here, the relevant
documentation presented by the Respondent consists of: (1) Pres-
tige's reprocurement contract (Respondent's Filing, Purchase
Order 88872); (2) the Contracting Officer's memorandum, dated
April 1, 1993, informing the FMS that the Appellant's defaulted
contract had been reprocured for $46,716.00 and asking that the
excess costs be charged to the Contractor (R4 File, Tab N); (3)
statements from an employee of the FMS' Examination and Billing
Branch, as well as the Contracting Officer, that Pres-tige had
been paid $44,622.62 for the completed work by check number
30644648 on June 30, 1993 (Respondent's Filing, Declaration of
Hurley Eborn, � 3; Adams Declaration, � 7); and (4) a copy of
the FMS' record of the payment (Respondent's Filing, FMS Computer
Printout). In the Board's view, this evidence is sufficient to
prove that Pres-tige was awarded the contract, produced and
delivered the books, and received final payment for the work.
Accordingly, the Board finds that the Respondent has carried its
burden of proof with respect to the last element necessary to
establish its entitlement to excess reprocurement costs. See Big
Red Enterprises, supra, slip op. at 49-50; Univex Supp., supra,
slip op. at 13; Asa L. Shipman's Sons, Ltd., supra, slip op. at
37; K.C. Printing Co., supra, slip op. at 26. Cf. Sterling
Printing, Inc., supra, slip op. at 83. Also cf. Patty Armfield,
supra; Pyramid Packing, Inc., supra; Scalf Engineering, supra.
Finally, in reviewing the record, the Board notes that while the
Respondent apparently calculated excess reprocurement costs by
subtracting the Appellant's undiscounted contract price
($34,610.00) from Pres-tige's undiscounted bid ($46,716.00).
However, the reprocurement contractor was not paid $46,716.00.
The Board's own calculations based on the discounted payment made
to Pres-tige shows the Contractor's actual excess cost liability
to be $10,012.62 (the $44,622.62 actually paid to Pres-tige minus
the Appellant's winning bid of $34,610.00). The difference
amounts to overcharging the Contractor for excess reprocurement
costs by $2,093.38, and is a windfall to the Government in that
amount. Since there is nothing in the record to show that the
excess costs charged to the Appellant were later adjusted by GPO
once Pres-tige had been paid, and as the amount involved is not
de minimis, see Big Red Enterprises, supra, slip op. at 48, fn.
41; Univex Supp., supra, at 12, fn. 8, the Board will direct the
Contracting Officer to refund $2,093.38 to the Contractor.
ORDER
Considering the record as a whole, the Board finds and concludes:
(1) the Appellant has not shown that its failure to perform arose
from causes beyond its control and without its fault or
negligence, or beyond the control and without the fault or
negligence of its suppliers; (2) the Contracting Officer's
termination of the contract for default was not in error; and
(3) GPO has sustained is burden of proof with regard to the
Contractor's liability for excess reprocurement costs.
THEREFORE, the Contracting Officer's decision terminating the
Appellant's contract for default, and his assessment of excess
reprocurement costs is hereby AFFIRMED, and the appeal is DENIED.
HOWEVER, for the reasons expressed in opinion above, the amount
of excess reprocurement costs is MODIFIED, and the Respondent is
directed to REFUND the amount of $2,093.38 to the Contractor.
It is so Ordered.
September 30, 1996 STUART M. FOSS
Administrative Judge
1 The Contracting Officer's appeal file, assembled pursuant to
Rule 4 of the Board's Rules of Practice and Procedure, was
delivered to the Board on August 24, 1993. Board Rules, Rule
4(a). It will be referred to hereafter as R4 File, with an
appropriate Tab letter also indicated. The R4 File consists of
sixteen (16) documents identified as Tab A through Tab P.
However, at the prehearing telephone conference held on November
30, 1993, the Board directed the parties to supplement the record
with certain additional documentary evidence. See Report of
Prehearing Telephone Conference, dated August 9, 1994, at 6
(hereinafter RPTC). Specifically, the Board asked the Appellant
to supply: (a) letters from its original supplier of materials,
Gum Papers of America (Gum), and its secondary supplier,
Zellerbach Paper Company (Zellerbach), or any other communication
addressed to the Contractor, offering to supply materials
equivalent to Fasson's S-730 TamperFas Destructible Vinyl, the
quantity offered and the price quoted; (b) Gum's letter, or any
other communications from Gum, denying the Appellant credit and
refusing to supply the required materials; (c) letters, or any
other communication from Fasson or other potential suppliers,
stating their inability to supply the specified materials in
sufficient time for the Contractor to meet the required delivery
schedule; and (d) an affidavit from the Appellant, setting forth
its version of the chronology of events in this case. See RPTC,
at 6-7. The Respondent, on the other hand, was required to
furnish: (a) copies of letters, or other communications from the
Appellant in support of GPO's assertion that the Contractor
admitted that it could not perform in accordance with the
contract specifications; (b) an affidavit from the Contracting
Officer and/or the Contract Compliance Officer outlining GPO's
view of the chronology of events in this appeal; and (c) copies
of the relevant documents necessary to prove all elements of the
Government's excess reprocurement cost claim of $12,106.00,
including the reprocurement method used to establish a reasonable
repurchase price and details of the final payment made to Pres-
tige Label Corporation (Pres-tige), the reprocurement contractor.
See RPTC, at 7. On September 16, 1994, Counsel for GPO submitted
a Notice of Filing to the Board, attaching copies of the
requested additional information (hereinafter Respondent's
Filing). Despite the Board's directions at the prehearing
conference, the Appellant never provided any further documents to
the Board, and after waiting sixteen (16) months, it closed the
record on February 14, 1996. See Order Settling the Record,
dated February 14, 1996, at 3.
2 The Board's decision is based on: (a) the Appellant's Notice of
Appeal, dated June 20, 1993; (b) the R4 File; (c) the Appellant's
letter, dated September 3, 1993, explaining the grounds for its
failure to perform, protesting the Government's assessment of
excess reprocurement costs, and otherwise meeting the
requirements of a Rule 6(a) Complaint (hereinafter Complaint);
(d) the Respondent's "general denial," dated October 22, 1993;
(e) the Report of Prehearing Telephone Conference, dated August
9, 1994; (f) the Respondent's Filing; (g) the Respondent's Brief,
dated October 14, 1994 (hereinafter R. Brf.). The Contractor did
not file a brief. The facts, which are essentially undisputed,
are recited here only to the extent necessary for this decision.
3 As indicated in the contract specifications, 10,200 pads of 50
DDLs was equal to 510,000 sheets of forms, plus or minus 1
percent (R4 File, Tab A, at 1).
4 Sternick's letter also asked the Government for a "letter of
credit that will guarantee payment of [the] finished work." See
R4 File, Tab C.
5 Under the Respondent's printing procurement regulation, the
Contracting Officer must submit a proposal to terminate a
contract for default to the CRB for its review and concurrence.
See Printing Procurement Regulation, GPO Publication 305.3
(September 1, 1988), Chap. I, Sec. 10, � 4.b.(i) (hereinafter
PPR). See also Big Red Enterprises, GPO BCA 07-93 (August 30,
1996), slip op. at 16, fn. 15, 1996 WL_____; Univex
International, GPO BCA 23-90 (July 31, 1995), slip op. at 9; fn.
12, 1995 WL 488438, reconsid. denied, February 7, 1996, 1996 WL
112554, Supplemental Decision on Excess Reprocurement Costs and
Order (July 5, 1996) (hereinafter Univex Supp.); Hurt's Printing
Co., Inc., GPO BCA 27-91 (January 24, 1994), slip op. at 7, fn.
10, 1994 WL 275098; Graphics Image, Inc., GPO BCA 13-92 (August
31, 1992), slip. op. at 9, fn. 10, 1992 WL 487875.
6 The Contracting Officer believed that it was appropriate to
repurchase the contract from Pres-tige because the bids, which
were obtained through public advertising, were only a month and a
half old, and he did not think that further advertising would
result in lower prices. See Respondent's Filing, Adams
Declaration, � 6. Furthermore, he felt that Pres-tige's price
was fair and reasonable, inter alia, based on the general
distribution of prices from all bidders. Id.
7 Specifically, in his letter Sternick said: "My failure to
perform (default of contract) is caused by a supplier unable to
produce the stock to match specifications at the cost that was
given on the original bid, which is beyond my control. I could
not find [a] comparable substitute." See Notice of Appeal, at 1.
The Contracting Officer received an identically worded letter,
also dated June 20, 1993. See R4 File, Tab P.
8 The Board framed three questions for disposition during the
prehearing telephone conference. See RPTC, at 6. However, there
are really only two issues in this case. In that regard, the
separate questions about who is to blame for the Appellant's
default-itself or its supplier-really amounts to a single issue;
i.e., has the Contractor proven that its failure to perform was
excusable?
9 While the excusable events listed in the "Default" clause, all
of which must be beyond the control and without the fault or
negligence of the contractor, are set forth in the context of
relieving the contractor from responsibility for excess
reprocurement costs, it is well-settled that the same occurrences
extend the time available for performance and make termination
prior to that time improper. See e.g., FKC Engineering Co.,
ASBCA No. 14856, 70-1 BCA � 8,312.
10 Default terminations-as a species of forfeiture-are strictly
construed. See D. Joseph DeVito v. United States, 188 Ct. Cl.
979, 413 F.2d 1147, 1153 (1969). See also Murphy, et al. v.
United States, 164 Ct. Cl. 332 (1964); J. D. Hedin Construction
Co. v. United States, 187 Ct. Cl. 45, 408 F.2d 424 (1969);
Foremost Mechanical Systems, Inc., GSBCA Nos. 12335, 12384, 95-1
BCA � 27,382.
11 Since October 29, 1992, the United States Claims Court has
been known as the United States Court of Federal Claims. See
Federal Courts Administration Act of 1992, Pub. L. No. 102-572,
106 Stat. 4506 (1992) (Title IX).
12 See note 4 supra. Although the request seems incongruous
since the Government generally self-guarantees its own
obligations, it seems clear that the Contractor was taking the
same approach it would follow if this situation involved a
commercial contract, despite the fact that it was acquainted with
GPO's payment system from other contracts. See Complaint, at 1.
In that regard, a "letter of credit" is defined as "a letter from
a bank asking that the holder of the letter be allowed to draw
specified sums of money from other banks or agencies, to be
charged to the account of the writer of the letter." See
WEBSTER'S NEW WORLD DICTIONARY 775 (3rd coll. ed. 1988). As
such, it would have allowed the Appellant to finance the contract
even before it delivered the finished product. See Jesse S.
Raphael, Uniform Commercial Code Simplified, 203-18 (Ronald Press
Co. 1967). Indeed, the rules regarding such instruments require
the issuer to honor a draft or demand for payment which complies
with the terms of the letter of credit regardless of whether the
goods conform to the underlying contract between the customer and
the beneficiary. Id., at 215.
13 In any event, it was the Appellant's burden of proof to show
that the Respondent's changes made the reprocurement contract
"materially different" from the one it received by demonstrating
that the increase in performance time also caused an unreasonable
increase of a specified amount in the price of the repurchase.
See Sterling Printing, Inc., supra, slip op. at 61 (citing
Theodore R. Korotie, AGBCA No. 86-245-1, 89-3 BCA � 22,214; Ace
Reforestration, Inc., supra; Solar Laboratories, Inc., supra);
Knepper Press, GPOCAB Nos. 2-84 and 3-84 (October 2, 1984), slip
op. at 4, 1984 WL 148107. The Contractor has not done so in this
case. It should be further noted that Knepper Press was decided
by one of the ad hoc panels which considered disputes between
contractors and GPO before the Board's creation by the Public
Printer in 1984. See GPO Instruction 110.10C, Subject:
Establishment of the Board of Contract Appeals, dated September
17, 1984. The Board cites the decisions of these ad hoc boards
as GPOCAB. While the Board is not bound by their decisions, its
policy is to follow the rulings of the ad hoc panels where
applicable and appropriate. See The George Marr Co., GPO BCA
31-94 (April 23, 1996), slip op. at 50, fn. 40, 1996 WL ______;
New South Press & Assoc., Inc., GPO BCA 14-92 (January 31, 1996),
slip op. at 32, fn. 45, 1996 WL 112555; Shepard Printing, supra,
slip op. at 14, fn. 19; Stephenson, Inc., supra, slip op. at 18,
fn. 20; Chavis and Chavis Printing, supra, slip op. at 9, fn. 9.
14 GPO procedures are consistent with the general theory and
practice in Government reprocurements. See PPR, Chap. XIV, Sec.
1, � 3.f.(2).
15 In most cases, the Government satisfies this burden by showing
that it used sealed bid advertising to repurchase defaulted
supplies and services. See e.g., H & H Manufacturing Co. v.
United States, 168 Ct. Cl. 873 (1964); Lester Brothers, Inc. v.
United States, 151 Ct. Cl. 536 (1960); Star Food Processing,
Inc., ASBCA Nos. 34161, 34163, 34164, 34165, 35544, 35545, 35546,
35547, 90-1 BCA � 22,390; Erickson Enterprises, AGBCA 77-168,
79-1 BCA � 13,628.
16 This duty is to be carried out within the confines of Federal
procurement statutes, regulations, policies and directives, and
in pursuit of the Government's own best interests, whether or not
that results in a lower price for a defaulted contractor. See
Barrett Refining Corp., ASBCA Nos. 36590, 37093, 91-1 BCA �
23,566, at 118,145.
17 In fact, if the Government fails to make a reasonable effort
at contacting the original bidders, the result may result in a
denial or reduction of the excess cost assessment. See Big Red
Enterprises, supra, slip op. at 45, fn. 38; Univex Supp., supra,
slip op. at 8, fn. 6; Asa L. Shipman's Sons, Ltd., supra, slip
op. at 32, fn. 32; K.C. Printing, supra, slip op. at 22, fn. 23
(citing Associated Cleaning, Inc., GSBCA No. 8320, 91-1 BCA �
23,360; Old Dominion Security, Inc., supra; Barrett Chemical Co.,
Inc., GSBCA No. 4544, 77-2 BCA � 12,625).
18 In Mid-America Painters, Inc., the contract appeals board for
the Corps of Engineers held that the Government acted reasonably
in taking the second low bid in the original solicitation despite
the fact that the reprocurement price was 174 percent above the
original contract price.
19 In fulfilling the obligation to secure the best price for the
Government, a contracting officer must follow the same standard
of reasonableness and prudence under the circumstances which
he/she exercised in the timing and selecting of the method of
reprocurement. See William A. Hulett, supra; Barrett Refining
Corp., supra; Mid-America Painters, Inc., supra.
37