U.S. GOVERNMENT PRINTING OFFICE
BOARD OF CONTRACT APPEALS
WASHINGTON, DC 20401
In the Matter of )
)
The Appeal of )
)
A & E COPY CENTER1 ) Docket No. GPO BCA 38-92
Jacket No. 635-985 )
Purchase Order F-4410 )
DECISION AND ORDER
This appeal, timely filed by A & E Copy Center, Inc. (hereinafter
Appellant or Contractor),2 500 St. Michael Street, Mobile,
Alabama 36602, is from the final decision of Contracting Officer
John M. Edridge of the U.S. Government Printing Office's
(hereinafter Respondent or GPO or Government) ARPPO, dated August
1, 1992, terminating the Appellant's contract identified as
Jacket No. 635-985, Purchase Order F-4410, for default for
failing to fulfill the requirements of the contract (R4 File, Tab
E).3 For the reasons which follow, the Contracting Officer's
default decision is hereby AFFIRMED, and to that extent, the
appeal is DENIED. However, the Government has failed to prove
that it is entitled to excess reprocurement costs, and
accordingly, its claim is DENIED.
I. BACKGROUND4
1. On June 19, 1992, pursuant to a requisition from the
Department of Defense Printing Service (DPS), the Respondent
issued Purchase Order F-4410 to the Appellant to produce and
deliver three (3) sets of 69 "Face Only Drawings" (FODs), to the
Commander, IMMC, at Redstone Arsenal, Alabama (Redstone Arsenal),
by June 26, 1992 (R4 File, Tab A).5 The estimated cost of the
contract was $553.25. Among other things, the contract
specifications provided:
DESCRIPTION: Contractor to make three sets of Xerox. Quality to
be such that the copy may be shot and a negative made. All line
matter. Sizes of drawings range from 18 x 12" to 45 x 16" (see
attachment # 1 for breakdown).
PAPER-COLOR AND KIND JCP BASIS - 500 SHEETS
Code No. (Size (Weight
inches) pounds)
White Offset Book or A60 25 x 38 50
White Writing D10 17 x 22 20
MATERIAL FURNISHED TO CONTRACTOR: Camera copy to be shot in the
range of 75 to 100%. Camera copy to be marked. The largest size
piece of camera copy is 45 x 16". Pick up copy and redeliver to
address below. [Commander, IMMC, Attn: AMSMI-MMC-MD-PAL, Building
5681, Redstone Arsenal, Alabama 35898.]
COLOR OF INK: Black-"Head to Head."
MARGINS (inches): "Follow copy sample;" "Adequate gripper."
* * * * * * * * * *
PROOFS REQUIRED: [Neither box is checked.]
Quality Assurance Through Attributes (GPO Pub. 310.1) in effect
on date of this order, applies. Level [No Quality Level
indicated.]
Attachments: One6
See R4 File, Tab A; Respondent's Filing I, Nemeth Declaration, �
4; Appellant's Filing, Pieper Affidavit, � 2).
2. When the Appellant picked up the GFM it discovered that the
camera copy was mounted on 3/16 inch display boards, which was
not indicated in the Purchase Order (R4 File, Tab J; Appellant's
Filing, Pieper Affidavit, � 3).7 Therefore, its President, Glenn
Pieper, telephoned the ARPPO and spoke to Printing Specialist
John R. Nemeth,8 and complained about the mounted camera copy
(Respondent's Filing I, Nemeth Declaration, � 5; Appellant's
Filing, Pieper Affidavit, � 3). Pieper says that when he advised
Nemeth of the problem, he was told to proceed with fulfilling the
order (Appellant's Filing, Pieper Affidavit, � 3). As Nemeth
recalls their conversation, he states that Pieper said that the
Appellant could not run the job as it had planned, but
nonetheless it could perform the contract, and that its machinery
was capable of accepting plywood up to 3/8 inch thick
(Respondent's Filing I, Nemeth Declaration, � 5). Accordingly,
Nemeth directed Pieper "to do the best job that he could do,"
but "did not authorize the [C]ontractor to deviate from the
specifications."9 Id.
3. The Contractor produced and delivered the FODs to the
Redstone Arsenal by the contract due date (R4 File, Tab D).
4. On July 13, 1992, the ARPPO received a telephone call from
DPS's Ray Garrett at the Redstone Arsenal, who complained that 18
of the FODs displayed a loss of information and 16 of the FODs
were not reduced as required by the contract (R4 File, Tabs B and
D). Consequently, Garrett said that the customer-agency wanted
to retain the job, and asked the ARPPO to terminate the contract
(R4 File, Tab B).
5. The following day, July 14, 1992, the ARPPO called the
Contractor about the matter (R4 File, Tab B). The Appellant
restated what it had told Nemeth, namely, that the specifications
did not indicate that the camera copy would be on display board.
Id. Furthermore, the Contractor said it wanted to withdraw from
the contract. Id. The Appellant was informed that GPO's
procurement procedure would not permit a withdrawal at this
stage, but rather it would have to be defaulted. Id. However,
the Contractor was also told that the ARPPO would look into the
possibility of a "no cost" cancellation of the contract, because
the Purchase Order failed to state that the camera copy was
mounted on 1/8 inch thick boards. Id.
6. On July 15, 1992, the ARPPO telephoned Nemeth, who had
returned to GPO's main facility in Washington, DC, and asked if
he told the Appellant that the camera copy was on 1/8 inch thick
art boards (R4 File, Tab B). Nemeth responded by stating that
while the specifications did not indicate the thickness of the
display boards, the Contractor had said that its equipment could
run a job on 3/8 inch plyboard. Id.
7. On July 17, 1992, the ARPPO received a "Notice of Quality
Defects" form, dated the previous day, from the DPS, noting two
deficiencies with respect to the illustrations: (a) blurred
image; and (b) loss of detail (R4 File, Tab C). The customer-
agency's specific complaint was:
Illustrations not reduced as per instructions given.
Reduction marked on each illustration.
Id. However, even though the DPS believed that the quality of
the FODs did not meet the contract specifications, and the
material could not be otherwise used, instead of requesting a
termination of the contract, it asked the Respondent to have the
entire order reprinted. Id.
8. Although the date is not indicated in the record, the
Contracting Officer called Pieper to discuss the matter with him,
and specifically to tell the Appellant that the defective FODs
needed to be corrected (R4 File, Tab D). In response, Pieper
said that the Contractor could not make the corrections because
"he did not have the equipment to reduce drawings . . .", and he
asked that the job not be returned to the Appellant. Id.
9. On July 28, 1992, the Contracting Officer wrote to GPO's
Contract Review Board (CRB) requesting its concurrence in
terminating the contract for default (R4 File, Tab D).10 The
Contracting Officer told the CRB, in pertinent part:
A complaint received from the ordering agency stated that 18 of
the drawings delivered with a loss of information and 16 of the
drawings were not reduced as required by the contract.
Mr. Glenn Piper [sic] of A & E Supply was called concerning the
order being corrected. Mr. Piper [sic] stated that he did not
have the equipment to reduce drawings and requested that the
order not be returned to him.
I have determined that A & E Supply is in default under the
contract specifications on subject order.
. . . Excess cost will be charged [to] this contractor.
See R4 File, Tab D. On July 30, 1992, the CRB gave its
permission to default the contract. Id.
10. By letter dated August 1, 1992, and captioned "Notice of
Termination-Complete" (Notice), the Contracting Officer
terminated the Appellant's contract for default because it
"failed to fulfill the requirements of the contract[.]" (R4 File,
Tab E). In that regard, the Notice
specifically told the Contractor that the reason for default was:
The drawings with reductions were not reduced. Information was
lost and some images were blurred throughout the order.
Id. The Notice also advised the Appellant that if the Government
exercised its right to repurchase the same or similar items, the
Contractor would be liable for excess reprocurement costs.11 Id.
11. That same day, the Contracting Officer also wrote a
memorandum to GPO's FMS, informing it that the Appellant's
contract was being defaulted, and requesting FMS to withhold
funds in the amount of the Purchase Order until notified by the
ARPPO (R4 File, Tab F).
12. On August 14, 1992, GPO reprocured the FODs from Allied
Reprographic Services (Allied), 763 Juniper Street, NE., Atlanta,
Georgia 30308, under Jacket No. 636-930, Purchase Order F-5679,
at a cost of $950.00 (Respondent's Filing I, Purchase Order
F-5679). The repurchase contract specifications provided, in
pertinent part:
DESCRIPTION: Drawings-Prints all line matter in Black ink. Sizes
range from 18 x 12' to 45 x 16"-SEE ATTACHMENT #1 FOR BREAKDOWN
OF ORIGINAL SIZES. DIRECT IMAGE IS ACCEPTABLE PROVIDED QUALITY
LEVEL 4 IS MAINTAINED!
PAPER-COLOR AND KIND JCP BASIS - 500 SHEETS
Code No. (Size (Weight
inches) pounds)
White Offset Book A60 25 x 38 50
MATERIAL FURNISHED TO CONTRACTOR: 61 drawing(s) are mounted on
1/8" thick boards & must be reproduced @ various focuses ranging
from 74% up to 100%. 8 drawings are on regular drafting paper. *
* * Total package of drawings will weight over 75 lbs upon
pickup.
COLOR OF INK: Black-"One Side."
MARGINS (inches): "Follow copy sample."
* * * * * * * * * *
PROOFS REQUIRED: [The "No" box is checked.]
Quality Assurance Through Attributes (GPO Pub. 310.1) in effect
on date of this order, applies. Level IV.
Attachments: 1 & 212
Id. The repurchase was by the same small purchase procedures
used in the original procurement (Respondent's Filing II, Bidders
List for Jacket 636-930). The record also indicates that Allied
fully performed the reprocurement contract, and was paid $950.00
on October 7, 1992, by check number 30613379 (Respondent's
Filing, Eborn Declaration, � 3; Computer Printout from FMS's
JAPS20 database). The repurchase resulted in excess
reprocurement costs of $396.75 (R4 File, Tab H).
13. On August 25, 1992, the Contracting Officer sent a
memorandum to the FMS informing it that the amount of excess
costs was $396.75, and asking it recover those costs plus $553.25
which had already been paid to the Appellant for the rejected
FODs (R4 File, Tab H).
14. That same day, the Contracting Officer also sent a letter
to the Contractor telling it that the defaulted contract had been
reprocured for $950.00, and therefore, it owed the Government
excess costs in the amount of $396.75 (R4 File, Tab I). Since
the Respondent's payment records showed that the Appellant had
already been paid $553.25 for the job, it was told to immediately
remit the sum of $950.00 to the Respondent by check payable to
"The Public Printer." Id.
15. The Contractor timely appealed the Contracting Officer's
termination and reprocurement decisions to the Board.
II. ISSUES PRESENTED13
1. Did the Contracting Officer properly default the Appellant
for failure to fulfill the requirements of the contract,
specifically, for not reducing the FODs where reductions were
indicated, and for poor quality because of lost information and
blurred images?
2. Assuming that the default termination decision was not
erroneous, is the Government also entitled to reimbursement of
excess reprocurement costs from the Contractor in the amount of
$396.75?
III. POSITIONS OF THE PARTIES
Although the Appellant did not file a written brief, the record
fully discloses its defense. First, the Contractor believes that
it complied with the terms of the contract in all respects when
it produced the FODs and delivered them to the Redstone Arsenal
on time. See Complaint, � 2; RPTC, at 4. Second, the Appellant
challenges the Government's right to reject the unreduced FODs
and default the contract on the ground that the specifications
did not provide for photographic reduction of the original
drawings. See R4 File, Tab J, � B; RPTC, at 4. Third, the
Contractor notes that specifications also did not say that the
camera copy provided by the Respondent were mounted on 3/16 inch
thick display boards. See R4 File, Tab J, � A; RPTC, at 4. In
order to produce the FODs from the GFM, the Appellant had to use
its special copier, which could neither enlarge nor reduce the
originals. Id. Indeed, the Contractor says that if it had been
initially informed that reduction was required from mounted
originals, it would not have bid on the job because it did not
have the capability for copying thick material needing reduction
or enlargement. See, R4 File, Tab J; RPTC, at 4. Accordingly,
for these reasons, the Appellant contends that GPO's default
action was erroneous, and that it is entitled to its full
contract price. See Complaint, � 3; RPTC, at 4. Furthermore, it
also claims that it is not liable to the Government for the
excess reprocurement costs of $396.75. See Complaint, � 4; RPTC,
at 5.
The Respondent, on the other hand, asserts that the Appellant's
contract was properly terminated for default, and the Government
was entitled to recover a total amount of $950.00, including
excess reprocurement costs of $396.75. See RPTC, at 4. In that
regard, the Government rejects the Contractor's complaint about
the GFM, and says that the camera copy it supplied was clearly
suitable for its intended use. See R. Brf., at 5. First, GPO
notes that the burden of proving that the GFM was defective and
unsuitable was the Appellant's. See R. Brf., at 3-4 (citing
Printing Unlimited, supra; Bogue Electric Manufacturing Co.,
ASBCA No. 25184, 86-2 BCA � 18,925; Metal-Tech Incorporated,
ASBCA No. 14828, 72-2 BCA � 9,545; Lentino's Chauncey Clothing
Company, Inc., ASBCA No. 8447, 65-1 BCA � 4,646); Royal Electric,
Inc., ASBCA No. 3340, 62 BCA � 3,571; Hudson Garment Company,
Inc., ASBCA No. 4847, 60-2 BCA � 2,827). The Respondent states
that "suitable for use" in this sense, is a question of fact, and
means that the GFM was appropriate for use in manufacturing the
items contracted for. See R. Brf., at 4 (citing 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)). In addition, GPO observes that
"suitability" also contains an element of reasonableness; i.e.,
the end product alone is not the only measure of usefulness, but
tediousness, convenience and expense must also be considered.
See R. Brf., at 4-5 (citing M. Rudolph Preuss v. United States,
188 Ct. Cl. 469 (1969); AAA Engineering and Drafting Company,
Inc., ASBCA No. 21326, 77-1 BCA � 12,454; Singer-General
Precision, Inc., ASBCA No. 15372, 72-2 BCA � 9,640; Keco
Industries, Inc., ASBCA No. 11468, 66-2 BCA � 5,899).
Furthermore, perfection is not required; i.e., reasonable efforts
to use the GFM may be asked of the contractor, but not
"extraordinary lengths." See R. Brf., at 5 (citing M. Rudolph
Preuss v. United States, supra; AAA Engineering and Drafting
Company, Inc., supra). The Government contends that there is
nothing in this record which would warrant the conclusion that
the GFM received by the Appellant was defective. See R. Brf., at
4. The only thing proven by the Contractor, according to GPO, is
that the photocopier it planned to use to reproduce the FODs was
not up to the task of accepting the GFM, not that the camera copy
itself was incapable of producing a clear and usable image. See
R. Brf., at 5. Moreover, the Respondent finds it instructive
that even though the Appellant presented the problem to the
Contracting Officer, it never explored its options with him-
additional time to perform; more compensation; permission to
subcontract the job; acquiring a new photocopy machine; or
returning the GFM to the ARPPO without incurring any liability,
as it could have under GPO"s small purchase procedures-but
instead went ahead with production of the FODs. See R. Brf., at
5-6. Therefore, the Government believes that on this record the
Contractor has not carried its evidentiary burden, and the
"suitable for use" issue must be resolved in GPO's favor. R.
Brf., at 6.
Finally, relying on the "black letter" principal of law which
entitles the Government to strict compliance with its contract
specifications, GPO believes that the contract was properly
terminated in this case.14 See R. Brf., p. 6 (citing American
Electric Contracting Corp. v. United States, 217 Ct. Cl. 338, 579
F.2d 602 (1978); Red Circle Corp. v. United States, 185 Ct. Cl.
1, 398 F.2d 836 (1968); Jefferson Construction Co. v. United
States, 151 Ct. Cl. 75 (1960); Fry Communications, Inc., GPO BCA
1-87 (June 1, 1989), 1989 WL 384980; Copigraph, Inc., GPO BCA
20-86 (May 25, 1989); 1989 WL 385174; Dependable Printing
Company, Inc., GPO BCA 5-84 (September 12, 1985); 1985 WL 154847;
Vogard Printing, GPOCAB 7-84 (January 7, 1986).15 The
Respondent states that in this case, the solicitation
specifications clearly showed that the FODs were of various sizes
and that reductions would be required. See R. Brf., at 7 (citing
R4 File, Tab A). The substance of the Government's argument is
that when the Appellant received the display board-mounted GFM,
which precluded its using the photocopier it had set aside for
the job, and produced the FODs on another photocopy machine
capable of accepting the GFM but not reducing the drawings, and
thereby delivered nonconforming FODs to Redstone Arsenal, the
Contracting Officer properly defaulted the contract. Id.
Accordingly, the Respondent urges the Board to affirm his
decision and dismiss the appeal. See R. Brf., at 7-8.
IV. DISCUSSION
Although the critical issue in this case centers on whether the
GFM given to the Appellant was suitable for its intended use, the
ultimate question which the Board must resolve is whether or not
the contract was erroneously defaulted. The Contractor's
liability for excess reprocurement costs is a secondary matter
which only comes into play if the termination was proper. 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.16 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, Inc.,
supra, slip op. at 24; Asa L. Shipman's Sons, Ltd., GPO BCA 06-95
(August 29, 1995), slip op. at 15-16, 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, supra, slip op. at
16; Chavis and Chavis Printing, supra, slip. op. at 11. 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, Inc., supra, slip op. at 24; 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.17
See Big Red Enterprises, Inc., supra, slip op. at 24; Univex
International, supra, slip op. at 17; K.C. Printing Co., supra,
slip op. at 10; Shepard Printing, supra, slip op. at 10-11; 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);18 Stephenson, Inc.,
supra, slip op. at 20 (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, Inc., supra, slip op. at 25; 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., GPO BCA 13-92 (August 31, 1992), slip. op. at 24-28,
1992 WL 487875. Cf. Big Red Enterprises, Inc., supra, slip op.
at 25; 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, the "Default" clause identifies several grounds which have
the effect of excusing defaulting conduct by Government
contractors, including acts of the Government in either its
sovereign or contractual capacity. See GPO Contract Terms,
Contract Clauses, � 20(c). See also Printing Unlimited, supra,
slip op. at 16. Government acts which may extinguish a
contractor's performance obligations include defective
specifications, see e.g., Robert E. Moore Construction, AGBCA No.
85-262-1, 90-2 BCA � 22,803, and defective Government-furnished
equipment, cf. e.g., Tar Heel Canvas Products, Inc., ASBCA No.
30341, 88-1 BCA � 20,347; Bogue Electric Manufacturing Co.,
supra; Bristol Electronics Corporation, ASBCA Nos. 24792, 24929,
25135 through 25150, 84-3 BCA � 17,543; King's Point
Manufacturing Company, Inc., ASBCA No. 21279, 83-2 BCA � 16,883.
However, the contractor has the burden of proving the Government
defects, including showing that such defects caused the problems
in question. See Printing Unlimited, supra, slip op. at 17;
Editors Press Incorporated, GPO BCA 03-90 (September 4, 1991)
slip op. at 12-13, 1991 WL 439271. Accord Bailfield Industries,
Division A-T-O, Inc., ASBCA No. 18057, 77-1 BCA � 12,348); Metal-
Tech Incorporated, supra.
Finally, a default termination is a discretionary act which can
be challenged on an abuse of discretion standard. See Big Red
Enterprises, Inc., supra, slip op. at 26; 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, Inc., 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 the facts in the record, the Board
reaches the following conclusions:
A. The Contracting Officer's decision to terminate the contract
for default was not erroneous because the Appellant has failed to
prove that the GFM was unsuitable for the use intended.
The default aspect of this appeal is relatively straightforward
and uncomplicated. The Contracting Officer based his default
termination decision on two grounds-(1) the Appellant's failure
to reduce the drawings as required by the contract, and (2) the
poor quality of the FODS (lost information and blurred images)
(R4 File, Tab E). However, only one of these reasons has any
validity in the context of this case.
Apart from the fact that the Board was not provided with copies
of the rejected FODs, and hence has not had a chance to examine
their quality for itself, the simple fact is the defaulted
contract did not establish any QATAP standard against which the
Appellant's product could be measured; i.e., the Contractor was
not asked to provide proofs, and no Quality Level is indicated on
the "Quality Assurance Through Attributes" line in Purchase Order
F-4410 (R4 File, Tab A). The law is clear that before the
Government can reject a contractor's product, either as a prelude
to default or some lesser action, it must first establish
specific, quantifiable, objective, and firm criteria indicating
the level of quality which the product is expected to meet. See
Wornick Family Foods Co., ASBCA Nos. 41317, 41318, 41319, 94-2
BCA � 26,808 (the Government improperly rejected pears that were
pink, beige, brown, red, reddish brown, or gray following
dehydration because the contract for freeze dehydrated fruit had
no provision for rejecting the fruit for discoloration); John L.
Hall dba Taiga Resource Consultants, AGBCA No. 92-217-1, 93-3 BCA
� 26,212 (the contract criteria were not specific enough to
support a Government deduction based on the contractor's failure
to provide sufficiently thorough briefings); Shirley Contracting
Corp. and ATEC Contracting Corp., ENG BCA No. 4650, 85-3 BCA �
18,214 (the Government's rejection of a contractor's source of
rock was improper because the contract did not set forth any
objective performance criteria and the standards that the
Government had insisted on were in excess of its own prevailing
standards and those accepted in the industry); Chandler-Wilbert
Vault Co., VACAB No. 1444, 80-2 BCA � 14,682 (rejection of the
contractor's grave liners for failure to prevent sinkage in
graves was improper because there was no specified test or
standard in the contract for "sunken graves"). Stated otherwise,
the Government cannot leave a contractor "in the dark" with
respect to the quality standards it is expected to strive toward,
and then rely on unclear, subjective, or indefinite standards to
reject a product, because such conduct is tantamount to setting a
contractor up for failure. See Mid-American Engineering and
Manufacturing, ASBCA No. 20939, 78-1 BCA � 12,870 (in a contract
for the supply of electrical harnesses, where the Government,
without showing a sample of an acceptable product to the
contractor, rejected the contractor's first article submission
because too many air bubbles were present in the potting compound
encapsulating the cables, and then replied to the contractor's
request for the establishment of some criteria as to the number
of air bubbles allowed by stating that there should be no, or
almost no, visible air bubbles, a default termination following
the first article test failure was improper because the
performance criterion thus established was too indefinite). The
reason why the absence of clear and objective standards for
evaluating and measuring performance is a fatal contractual
defect is patent; i.e., it is because ". . .[w]ithout such
criteria, testing performance against the specifications becomes
untrustworthy, vague and inadequate for the principle purpose of
the contract." See Professional Printing of Kansas, Inc., GPO
BCA 02-93 (May 19, 1995), slip op. at 80-81, 1995 WL 488488. One
way to set such a standard, of course, is to provide the
contractor with a sample of an acceptable product. See Mid-
American Engineering and Manufacturing, supra, 78-1 BCA � at
62,629. With respect to printing contracts like this one,
another way would be to require proofs or a press-sheet
inspection prior to production. See Professional Printing of
Kansas, Inc., supra, slip op. at 69-70. Neither approach was
utilized in this case.
Therefore, where, as here, GPO fails to indicate in the contract
specifications exactly what quality standards are expected, the
Board will not penalize a contractor for failing to "read the
Government's mind," and will reject a Contracting Officer's
adverse decision rendered on that basis. See Professional
Printing of Kansas, Inc., supra, slip op. at 81. See also Elgin
Business Forms, GPOCAB 10-84 (October 19, 1984), slip op. at
5-10, 1984 WL 148108; Electronic Composition, [No GPOCAB No.]
(December 22, 1978), slip op. at 34, 1978 WL 22339 (". . . the
contractor will not be bound by the unexpressed intent of the
Government." Citing ITT Arctic Service, Inc. v. United States,
207 Ct. Cl. 743, 524 F.2d 680 (1975); Elgin National Watch Co.,
ASBCA Nos. 10421, 10589, 10698, 10730, 11721, 67-2 BCA � 6400).
On the other hand, the Contractor's failure to provide reduced
drawings is another matter altogether.19 Contrary to the
Appellant, the Board believes that the contract specifications do
state that the original drawings are to be photographically
reduced-that is the plain meaning of the sentence "[c]amera copy
to be shot in the range of 75 to 100%" in the "MATERIAL FURNISHED
TO CONTRACTOR" block of the Purchase Order (R4 File, Tab A).
[Emphasis added.] Indeed, as the Board sees it, the Contractor's
failure to produce reduced FODs has nothing to do with how it
read the specifications. Instead, the real reason is that when
the Appellant received the GFM it discovered that the camera copy
was mounted on thick display boards, which caused it to use a
different copy machine than it had planned-one which did not have
the capability of either enlarging or reducing the originals.
See Respondent's Filing I, Nemeth Declaration, � 5; Appellant's
Filing, Pieper Affidavit, � 3. Therefore, the Contractor's
excuse for nonperformance is simply a claim that the GFM was not
suitable for its use on the contract. Under the law, the
Appellant bore the burden on the "suitability" question. See
Printing Unlimited, supra, slip op. at 18. Accord Bogue Electric
Manufacturing Co., supra; Metal-Tech Incorporated, supra.
As the Respondent indicates, "suitability" in this context is
specifically related to the manufacturing process, and asks the
question 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).
Furthermore, the Government correctly observes that "suitability"
is not determined by just measuring the end product, but also
encompasses considerations of usefulness, tediousness,
convenience and expense. See Printing Unlimited, supra, slip op.
at 19 (citing M. Rudolph Preuss v. United States, supra; AAA
Engineering and Drafting Company, Inc., supra; Singer-General
Precision, Inc., supra; Keco Industries, Inc., supra. Moreover,
while the contractor may be expected to make reasonable efforts
to work with the GFM,, extraordinary exertions are not required;
i.e., the contractor is not required to "make a round peg fit in
a square hole." See Printing Unlimited, supra, slip op. at
19-20 (citing M. Rudolph Preuss v. United States, supra; The Cage
Company of Abilene, Inc., supra; AAA Engineering and Drafting
Company, Inc., supra).
The Board agrees with the Respondent that in this case, GFM
"suitability" refers to the clarity of image in the camera copy;
i.e., was the camera copy clear enough so that the Appellant,
with a reasonable expenditure of effort, could use it to produce
legible and readable FODs? The Board has not made its own
examination of the GFM to see if it has any imperfections which
would render it unusable. See Printing Unlimited, supra, slip
op. at 20-21. However, it notes that the Contractor's objection
to the GFM is not to its quality, but rather to its format; i.e.,
because the camera copy was pasted on display boards it was in a
form which made it unusable for the photocopier that had been set
aside for contract. In other words, the real problem with the
GFM in this case is not with the camera copy per se, but rather
with the Appellant's own choice of machinery with which to
perform the contract. In the Board's view, however, this is not
what the "suitability" concept has in mind with respect to
defective GFM. Id. Since the Respondent's small purchase
procedures clearly allowed a "no fault" return of the GFM to the
ARPPO and cancellation of the contract once the Contractor
recognized that the mounted camera copy could not be used on its
photocopier, its decision to proceed with attempting to produce
the FODs with the GFM it was given absolved the Government of any
further responsibility for the Appellant's performance.
In essence, the Appellant is in no different position from any
other contractor who finds itself defaulted because it entered a
contract without the necessary machinery to do the job. The
Board has said on numerous occasions that machinery and equipment
problems are not within the range of acceptable occurrences or
events which would excuse a contractor's failure to perform. See
R.C. Swanson Printing and Typesetting Co., supra, slip op. at 33;
Chavis and Chavis Printing, supra, slip op. at 13-14; Jomar
Enterprises, Inc., GPO BCA 13-86 (May 25, 1989), slip op. at 3.
See also K.C. Printing Co., supra, slip op. at 15 (financial
resources). In that regard, 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.,
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
33; Chavis and Chavis Printing, supra, slip op. at 13-14. See
also Scanforms, Inc., GPOCAB [No Docket No.] (September 24,
1975), slip op. at 4 (citing Woodhull Construction Co., ASBCA No.
3628, 57-1 BCA � 1,260; First Dominion Corp., GSBCA No. 2659,
69-1 BCA � 7,488); American Printing and Publishing, Inc., GPOCAB
[No Docket No.] (September 19, 1975), slip op. at 4; Allegheny
Plastics, Inc., GPOCAB [No Docket No.] (Undated), slip op. at 5-7
(citing Vereinigte Osterreichische Eisen and Stahlwerke
Aktiengesellschaft, IBCA No. 327, 1962 BCA � 3,503). Thus, for
example, the unexplained breakdown of machinery is not excusable
per se; in fact, the difficulty attending the performance of a
contract is not an excusable cause of delay. See R.C. Swanson
Printing and Typesetting Co., supra, slip op. at 34; Chavis and
Chavis Printing, supra, slip op. at 14. See also Allegheny
Plastics, Inc., supra, slip op. at 7 (citing Carnegie Steel Co.
v. United States, 240 U.S. 156 (1916)). The reason is simple-
implicit in a contractor's promise to perform is its assurance
that it has the ability to perform in terms of machinery,
replacement parts, etc., 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., supra,
slip op. at 7. See also Jomar Enterprises, Inc., supra, slip op.
at 3. As explained by one of GPO's ad hoc boards:
Every contractor impliedly represents, when he makes his bid,
that he can accomplish what he sets out to do, within the time
upon which there was an agreement; and by such implied
representation, he is not, in the eyes of the law, entitled to
maintain a mental reservation, to the effect, that he can perform
within the time required provided the material suppliers lives
[sic] up to their commitment and he can obtain the paper stock in
time to maintain the required schedule. [Citation omitted.] The
failure of the paper supplier to make timely delivery of the
necessary stock does not excuse the contractor from resulting
delays in contract completion. [Citation omitted.]
See Scanforms, Inc., supra, slip op. at 4. In short, it is the
contractor's responsibility to have labor, plant, equipment,
finances and material 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). Therefore, once the Appellant accepted the
contract by not returning the GFM, it was obligated to have
available to it a photocopy machine which could use the display
board mounted camera copy to produce reduced-size FODs. Here,
however, the Appellant admitted that it did not have the proper
photocopier (R4 File, Tab D). Consequently, the Contractor's
claim that the GFM required it to use its special copier, which
did not have the capability of either reducing or enlarging the
originals, is not an acceptable excuse which, under the law,
would allow the Appellant to escape the consequences of its
failure to perform the tasks required of it under the contract.
See R.C. Swanson Printing and Typesetting Co., supra, slip op. at
35; Chavis and Chavis Printing, supra, slip op. at 15.
In summary, 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., supra; Bogue Electric Manufacturing Company,
supra; 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; Metal-Tech Incorporated,
supra). Similarly, the Board also concludes that the Contractor
has not met its burden of demonstrating that its failure to
perform was due to causes beyond its control and without its
fault or negligence. See R.C. Swanson Printing and Typesetting
Co., supra, slip op. at 36; Chavis and Chavis Printing, supra,
slip op. at 15. Therefore, on this record, the Appellant's case
is essentially a collection of unverified assertions focused
largely upon its claimed inability to make satisfactory FODs from
the GFM supplied by the Government. Unsubstantiated assertions
are not sufficient proof to permit recovery. See Printing
Unlimited, supra, slip op. at 23; R.C. Swanson Printing and
Typesetting Company, supra, slip op. at 45-46. Accord Palmetto
Enterprises, Inc., supra; S & S Constructors, ASBCA No. 20590,
76-1 BCA � 11,759; Air-A-Plane Corp.,ASBCA No. 3842, 60-1 BCA �
2,547. Therefore, the Board is unable to say that the
Contracting Officer's decision to terminate the Appellant's
contract under the circumstances described herein is clearly
erroneous. See Asa L. Shipman's Sons, Ltd., supra, slip op. at
27; Univex International, supra, slip op. at 31; K.C. Printing
Co., supra, slip op. at 18; Hurt's Printing Company, Inc., supra,
slip op. at 19; Printing Unlimited, supra, slip op. at 23; R.C.
Swanson Printing and Typesetting Company, supra, slip op. at
52-53; Chavis and Chavis Printing, supra, slip op. at 15.
Accordingly, the Board affirms the Contracting Officer's decision
to default the contract because of the Contractor's failure to
fulfill the requirements of the contract, namely, reduce the FODs
as required by the specifications.
C. The Government has not proved its claim of entitlement to
excess reprocurement costs in the amount of $396.75.
Although there is no doubt that under the circumstances the
Contracting Officer's default of the Appellant was a proper
exercise of his discretion in this case, the Government's
assessment of excess reprocurement costs is an entirely different
matter. 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). 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.] The propriety of the Government's repurchase action,
and the amount of reasonable excess costs under the
circumstances, if any, are questions of fact. See Big Red
Enterprises, Inc., supra, slip op. at 41; See 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 failed to
support its claim for excess reprocurement costs in this appeal.
Specifically, the Government has not satisfied the threshold
element-a showing that the reprocurement contract was performed
under substantially the same terms and conditions as the original
contract. Doubtlessly, on repurchase the Government asked Allied
to produce the same three (3) sets of 69 FODs as the Appellant.
Compare R4 File, Tab A and Respondent's Filing I, Reprocurement
Contract. Indeed, the Appellant does not allege otherwise.
Similarly, both Allied and the Appellant were asked to reproduce
the FODs in various focuses ranging from 75 percent to 100
percent.20 Id. However, a comparison of the original and
reprocurement contracts discloses several significant differences
between the repurchase specifications and the terms and
conditions under which the Contractor was expected to perform.
First, as already mentioned, the Appellant's contract does not
contain any express QATAP standard for measuring the FODs it
produced-the "DESCRIPTION" specification in the original
agreement simply says "[q]uality to be such that the copy may be
shot and a negative made." See R4 File, Tab A. Likewise, the
"Level" line following the statement that "Quality Assurance
Through Attributes (GPO Pub. 310.1) in effect on date of this
order, applies[.]" is blank. Id.
However, the same specifications in Allied's repurchase contract
shows the following, in pertinent part:
DESCRIPTION: . . . DIRECT IMAGE IS ACCEPTABLE PROVIDED QUALITY
LEVEL 4 IS MAINTAINED!
* * * * * * * * * *
Quality Assurance Through Attributes (GPO Pub. 310.1) in effect
on date of this order, applies. Level IV.
See Respondent's Filing I, Reprocurement Contract. Similarly,
the repurchase agreement has a second attachment, not part of the
Appellant's contract, which is expressly titled "Quality
Assurance Through Attributes" and establishes the printing and
finishing attributes for the FODs at Quality Level IV. See
Respondent's Filing I, Reprocurement Contract, Attachment No. 2.
Second, the GFM provision in the reprocurement contract told
Allied, inter alia, that "61 drawing(s) are mounted on 1/8" thick
boards . . .," and that the "[t]otal package of drawings will
weigh over 75 lbs upon pickup." See Respondent's Filing I,
Reprocurement Contract. The original contract was silent on
these matters.21 See R4 File, Tab J; Appellant's Filing, Pieper
Affidavit, � 3; Respondent's Filing I, Nemeth Declaration, � 5.
The Board has no doubt that the language relating to the weight
of the GFM was included in the repurchase agreement because the
Contractor, at some time, informed GPO that weight of the mounted
camera copy had resulted in extra freight charges beyond those
included in its bid. See R4 File, Tab J.
The remaining differences-the original contract allowed the
Appellant a choice of paper stock (White Offset Book, JCP Code
No. A60, or White Writing, JCP Code No. D10), said that it should
print the FODs in black ink "head to head," instructed it to set
the margins according to "follow copy sample" and "adequate
gripper," and was silent about providing proofs, whereas the
repurchase agreement limited Allied to using White Offset book
paper, JCP Code No. A60, directed it to print in black ink "one
side," told it to set the margins according to "follow copy
sample" only, and specifically stated that proofs would not be
required-while small in themselves, when considered in light of
the changes with respect to QATAP and the GFM, is enough to
convince the Board that in reprocuring the FODs the Respondent
materially altered the terms and conditions of the contract.22
Indeed, insofar as the reprocurement contract alerted potential
bidders to the fact that the camera copy was mounted on 1/8 inch
thick boards, and the GFM package would weigh more than 75 pounds
when picked up, the pecuniary impact is clear; i.e., new
offerors, unlike the Appellant, were forewarned that the GFM
could have a substantial impact on their freight costs, which
would certainly have been accounted for in their bids. Cf.
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.
Where, as here, the Government has made significant changes in
the original contract specifications, it cannot be said that the
reprocurement contract is substantially similar to the defaulted
agreement. See e.g., B & M Construction, Inc., AGBCA No.
90-165-1, 93-1 BCA � 25,431; AGH Industries, supra; Cosmos
Engineers, Inc., ASBCA No. 24270, 88-2 BCA � 20,795; Luis
Martinez, 86-148-1, 87-3 BCA � 20,219; Ace Reforestration, Inc.,
supra; Suffolk Environmental Magnetics, Inc., ASBCA No. 17593,
74-2 BCA � 10,771; Seay's Moving & Storage Co., ASBCA No. 12806,
69-1 BCA � 7639. See generally John Cibinic, Jr. & Ralph C.
Nash, Jr., Administration of Government Contracts 3d ed., (The
George Washington University, 1995), at 1007-09, 1011-12.
Accordingly, the Board concludes that the Respondent has not met
the threshold 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. Cf. Big Red
Enterprises, Inc., supra, slip op. at 42; Univex International,
GPO BCA 23-90, Supplemental Decision on Excess Reprocurement
Costs and Order (July 5, 1996), slip op. at 5-6, 1996 WL _____ ;
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. Therefore,
the Government's claim for excess reprocurement costs in the
amount of $396.75 is denied.
ORDER
The Board finds and concludes that the Appellant has not
proved that the GFM was unsuitable for its intended purpose,
and therefore the Respondent's termination of the contract
for default was not erroneous. ACCORDINGLY, to that extent,
the decision of the Contracting officer is AFFIRMED, and the
appeal is DENIED.
The Board also finds and concludes that the Government has not
proved its claim of entitlement to excess reprocurement costs in
the amount of $396.75. THEREFORE, to that extent, the
Respondent's assessment of such costs is REVERSED, and the case
is REMANDED to the Contracting Officer with instructions to
reimburse the Appellant that sum.23
It is so Ordered.
September 25, 1996 STUART M. FOSS
Administrative Judge
1 When the appeal was filed the Appellant was named "Anchor Bolt
Corporation dba A & E Supply," and the case was so docketed. See
Notice of Appeal, dated October 6, 1992; Board Docketing Letter,
dated October 28, 1992. However, by Notice of Filing and Request
for Rule 8 Decision on the Record, dated September 9, 1994,
Counsel for the Appellant advised the Board that the Contractor
was "now known as A & E Copy Center, Inc." Accordingly, the
Board has changed the caption of this case to reflect the
Appellant's new name.
2 Although the Notice of Appeal, dated October 6, 1992, was
mailed to the Contracting Officer at the Atlanta Regional
Printing Procurement Office, 1900 Emery Street, NW. 2 Park Place,
Suite 110, Atlanta, Georgia 30318 (hereinafter ARPPO), he
immediately forwarded it to the Board, where it was received on
October 19, 1992 (R4 File, Tab J). Since the Contracting
Officer's final decision is dated August 1, 1992, even though the
Notice of Appeal was misdirected it was nonetheless furnished to
the Board within the 90-day time frame required by the Board's
rules of practice. GPO Instruction 110.12, Subject: Board of
Contract Appeals Rules of Practice and Procedure, dated September
17, 1984 (Board Rules), Rule 1(a) (hereinafter Board Rules). See
Olympic Graphic Systems, GPO BCA 01-92 (September 13, 1996), slip
op. at 2, fn. 2, 1996 WL _____.
3 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 November 30, 1992. Board Rules, Rule
4(a). It will be referred to hereafter as the R4 File, with an
appropriate Tab letter also indicated. The R4 File consists of
ten (10) documents identified as Tab A through Tab J. However,
at the presubmission telephone conference held on December 7,
1993, the Board directed the parties to supplement the record
with certain additional documentary evidence. See Report of
Presubmission Telephone Conference, dated August 10, 1994, at 6
(hereinafter RPTC). Specifically, the Board asked the Appellant
to supply: (a) an affidavit from its owner and President, Glenn
W. Pieper; (b) any relevant documents and/or other evidence
supporting the Contractor's contention that it was not liable for
excess reprocurement costs; and (c) a written statement pursuant
to Rule 8 of the Board Rules either electing a hearing or
requesting a decision on the record without a hearing. See RPTC,
at 6 (citing Board Rules, Rules 8, 11, and 17 through 25). The
Respondent, on the other hand, was to furnish: (a) an affidavit
or a declaration from John R. Nemeth, Printing Specialist; and
(b) any relevant documents relating to all elements of the
Government's excess reprocurement cost claim of $396.75. Id. On
January 6, 1994, Counsel for GPO submitted a Notice of Filing to
the Board, attaching copies of the reprocurement contract and
Nemeth's declaration (hereinafter Respondent's Filing I).
Thereafter, by facsimile transmission, dated September 9, 1994,
Counsel for the Appellant sent the Board the Contractor's "
Notice of Filing and Request for Rule 8 Decision on the Record"
to which were attached Pieper's affidavit and copies of five (5)
documents from the Appellant's files concerning this case
(hereinafter Appellant's Filing). That same day, Counsel for GPO
also submitted a Notice of Filing attaching a declaration from
Hurley Eborn (hereinafter Eborn Declaration), Printing Specialist
in the Respondent's Examination and Billing Branch, Financial
Management Service (FMS), and other documents relating to the
Government's excess reprocurement cost claim (hereinafter
Respondent's Filing II).
4 The Board's decision is based on: (a) the Appellant's Notice of
Appeal, dated October 6, 1992; (b) the R4 File; (c) the
"Petitioner's Claim for Relief from Order of Board of Contract
Appeals," dated September 2, 1993, satisfying the requirements
for a Rule 6(a) Complaint; (d) the Respondent's "general denial,"
dated October 4, 1993; (e) the Report of Presubmission Telephone
Conference, dated August 10, 1994; (f) the Respondent's Notice of
Filing, dated January 6, 1994; (g) the Appellant's " Notice of
Filing and Request for Rule 8 Decision on the Record," September
9, 1994; (h) the Government's Notice of Filing, dated September
9, 1994; and (i) the Respondent's Brief, dated November 1, 1994
(hereinafter R. Brf.). The Contractor did not file a brief.
Furthermore, although the Board indicated that the record would
be settled on November 21, 1994, see Order Establishing Briefing
Schedule, dated September 22, 1994, at 3, because of
administrative oversight it neglected to issue a formal Order
doing so. Nonetheless, since that date it has considered the
record officially closed and ripe for decision. See Olympic
Graphic Systems, supra, slip op. at 3, fn. 3. The facts, which
are essentially undisputed, are recited here only to the extent
necessary for this decision.
5 The contract was awarded pursuant to the GPO's "small purchase"
procurement procedures. See Respondent's Filing I, Nemeth
Declaration �� 2-3; Appellant's Filing, Pieper Affidavit, � 2).
See also Printing Procurement Regulation, GPO Pub. 305.3 (Rev.
10-90), Chap. VII, Sec. 4, �� 1-4 (hereinafter PPR).
6 The attachment to the Purchase Order is not included in the R4
File. However, is seems reasonable to assume that the
attachment was essentially the same hand-written sheet, expressly
identified as "Attachment # 1" to the repurchase contract, which
shows the number of copies for the various original sized
drawings (Respondent's Filing I, Purchase Order F-5679).
7 The Contractor also says that it thought the originals of the
GFM were in "poor condition with frayed edges[.]" (R4 File, Tab
J).
8 Nemeth was a GPO central office employee detailed to the ARPPO
for the month of June 1992, and had written the specifications
for the contract. See Respondent's Filing I, Nemeth Declaration,
� 2.
9 Nemeth also notes that the Appellant did not make a request to
be relieved of the contract, or ask for additional compensation
or time. See Respondent's Filing I, Nemeth Declaration, � 5.
10 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 PPR, Chap. I, Sec. 10, � 4.b.(i). See also 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; Hurt's Printing Company, 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.
11 After the contract was defaulted, the DPS asked the ARPPO for
instructions concerning the rejected drawings (R4 File, Tab G).
The ARPPO contacted Pieper, who said that the customer-agency
should destroy them. Id.
12 Unlike the original contract in the R4 File, the Respondent
included both attachments with the repurchase contract (R4 File,
Tab A; Respondent's Filing I, Purchase Order F-5679). See note 6
supra. In that regard, "Attachment # 1" is a hand-written sheet
showing the number of copies for the various original sized
drawings, and "Attachment # 2" is a page entitled "Quality
Assurance Through Attributes" stating that "[t]he bidder agrees
that any contract resulting from [the] bidder's offer under these
specifications shall be subject to the terms and conditions of
GPO Pub. 310.1 'Quality Assurance Through Attributes-Contract
Terms" in effect on the date of issuance of the invitation for
bid . . ." and establishing the product quality level at Quality
Level IV (Respondent's Filing I, Purchase Order F-5679). See GPO
Contract Terms, Quality Assurance Through Attributes Program for
Printing and Binding, GPO Pub. 310.1, Effective May 1979 (Revised
November 1989) (hereinafter QATAP).
13 The Board framed four questions for disposition during the
prehearing telephone conference. See RPTC, at 5. However, there
are really only two issues in this case. In that regard, while
the suitability of the camera copy provided to the Appellant is a
critical issue in this case, it is clear that since the
Contractor is raising the matter as its excuse to Contracting
Officer's default decision, it is subsumed within the ultimate
question in this case. See Printing Unlimited, GPO BCA 21-90
(November 30, 1993), slip op. at 15, 1993 WL 516844. Similarly,
although the Board had wondered whether the appeal presented a
question concerning whether the parties had entered a binding
agreement, after reviewing the procurement regulations, it finds
itself in complete agreement with the Respondent that a proper
and effective contract was formed pursuant to GPO's small
purchase procedures. See PPR, Chap. VII, Sec. 4, �� 1(a)-(b); R.
Brf., at 6.
14 As indicated by the Respondent, one purpose of this rule is to
protect the integrity of the bidding system and ensure that it is
not compromised. See R. Brf., p. 7 (citing Ideal Restaurant
Supply Co., VACAB No. 570, 67-1 BCA � 6,237).
15 The Board was created by the Public Printer in 1984. See GPO
Instruction 110.10C, Subject: Establishment of the Board of
Contract Appeals, dated September 17, 1984. Before then, ad hoc
panels considered disputes between contractors and GPO. Even
though it was decided in January 1986, Vogard Printing was an ad
hoc panel case. 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 Big Red
Enterprises, Inc., GPO BCA 07-93 (August 30, 1996), slip op. at
22, fn. 22, 1996 WL_____; 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, GPO BCA
23-91 (April 29, 1993), slip op. at 14, fn. 19, 1993 WL 526848;
Stephenson, Inc., GPO BCA 02-88 (December 20, 1991), slip op. at
18, fn. 20, 1991 WL 439274; Chavis and Chavis Printing, GPO BCA
20-90 (February 6, 1991), slip op. at 9, fn. 9, 1991 WL 439270
16 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.
17 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.
18 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).
19 Although the Respondent has the burden of showing that the
default was justified in this case, GPO is not required to prove
both grounds given in the Notice-one ground is sufficient
provided that it is factually supported in the record. Indeed, a
Contracting Officer's termination decision may be sustained on
other than the stated grounds as long as the alternate grounds
existed at the time of termination. See Sterling Printing, Inc.,
GPO BCA 20-89 (March 28, 1994), slip op. at 37, fn. 50, 1994 WL
275104, reconsid. denied, July 5, 1994, 1994 WL 377592 (citing
Joseph Morton Company, Inc. v. United States, 757 F.2d 1273 (Fed.
Cir. 1985); James B. Beard, D.O., ASBCA Nos. 42677, 42678, 93-3
BCA � 25,976).
20 The repurchase agreement says "74" percent. See Respondent's
Filing I, Reprocurement Contract. Apart from the fact that the
difference between 74 percent and 75 percent is so marginal as to
be de minimis, it seems likely that the number in the
reprocurement contract is merely a typographical error.
21 Indeed, the record indicates that the ARPPO initially
considered the possibility of a "no cost" cancellation of the
Appellant's contract, rather than default, because it failed to
state that the camera copy was mounted on display boards. See R4
File, Tab B.
22 The Board believes that the QATAP revision alone would warrant
the conclusion that the two contracts were substantially
dissimilar, since it is illogical to think that excess
reprocurement costs can be supported on a ground which would
defeat the default itself. See Professional Printing of Kansas,
Inc., supra, slip op. at 81; Elgin Business Forms, supra, slip
op. at 5-10.
23 The record indicates that the Government has already recouped
the excess costs from another contract awarded to the Appellant.
See Appellant's Filing, Pieper Affidavit, � 6; Exhibit E.