U.S. Government Printing Office
Contract Appeals Board
Vincent T. McCarthy, Chairman
Jay E. Eisen, Member
Drew Spalding, Member
Panel 78-4
Appeal of the
September 19, 1978
This is an appeal filed on March 1, 1978, by the Wessel Company,
1201 Kirk Street, Elk Grove Village, Illinois 60007, herein also
referred to as the contractor, under the disputes clause, Article
29, U.S. Government Printing Office, Contract Terms No. 1, Jacket
No. 752-100, Purchase Order G-1508.
I. Findings of Fact
(a) This case arises out of contract 752-100 entered into by the
appellant, the Wessel Company, Inc., and the U.S. Government
Printing Office, Procurement Department, at the Regional Printing
Procurement Office, Chicago, Illinois, (herein referred to as the
GPO) for the production of 22,697,200 newspaper inserts for the
U.S. Army Recruiting Command, Fort Sheridan, Illinois.
(b) The contract, Purchase Order G-1508 is a fixed price
agreement for the procurement of recruiting brochures for the
U.S. Army, at a cost of $266,500.00, awarded on November 11,
1977.
(c) The contract specified the following requirements as to the
type and quality of the paper stock:
"Paper; 140 - lb. White Hi - Bulk Offset paper, basis 25 x 38" -
M with the following minimum requirements:
1. Thickness: Minimum 0.006"
2. Porosity: Minimum 22 seconds (Gurley)
3. Brightness: 80% average, plus or minus 1.
4. Opacity: Not less than 92%
5. Stock must be free from ground woodpulp" (Emphasis supplied)
(d) The contract specified in pertinent part that perforations
will be made horizontally in nine places and vertically in seven
places using regular slit or slot perforations. That the:
"Dimensions specified for perforations are approximate: follow
film for exact positioning. All perforations must be clean and
sharp for easy separation and must register exactly on the
printed form. Face and back must line up properly and stamp area
must be perforated from the face side of the form." [Emphasis in
original]
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(e) The schedule for shipment by the contractor required
delivery of the inserts to 117 newspaper destinations for
scheduled insertion dates. Except as otherwise indicated in the
contract, all insertions in newspapers were scheduled for
Saturday, January 29, 1978.
(f) In accordance with the contract, a GPO contract compliance
officer and a U.S. Army representative inspected the press sheets
for quality performance during production on January 3, 1978, at
the contractor's plant. Their inspection of the paper led them
to question whether the opacity and weight of the paper complied
with the specifications; they also questioned the quality
conformance of the press perforations. The contractor sent a
sample of the paper to Bradner & Smith Paper Co., Chicago,
Illinois and a verbal response from the firm confirmed the
suspicions as to the low opacity.
(g) A request for material tests on press sheets and blank
sheets was submitted by GPO to the Quality Control and Technical
Department, Central Office GPO, Washington for testing. In
addition, 25 trimmed and folded samples furnished by the
contractor taken from various stages in the press run were
tested. The results are as follows:
1. Test #1. 1/10/78
Specification Test Results Difference
Basis Weight 140 (+/-5%) 125.0# -8.0#
Opacity 92% 86.8% -5.2%
Paper not equal to specifications. Low Opacity, low basis
weight.
2. Test #2. 1/20/78
Specification Test Results Difference
Brightness 80% (+/-1%) 81.4% +0.4%
Paper not equal to specifications, High Brightness.
3. Test #3. 1/30/78
Specifications Test Results Difference
Lot 1. Basis Weight 140# 126.7 -6.3#
Opacity 92% 87.9% -4.1%
Lot 2. Basis Weight 140# 127.4 -5.6#
Opacity 92% 88.3% -3.7%
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Lot 3. Basis Weight 140# 127.4 -5.6#
Opacity 92% 88% -4.0%
Lots 1, 2, 3 Not equal to specifications. Low Basis Weight and
Low Opacity.
Lot 4. Specification Test Results Difference
Opacity 92% 90.9% -1.1%
Lot 5. Basis Weight 140# 130 -3.0#
Opacity 92% 90.3% -1.7%
Lots 4 and 5 not equal to specifications.
Lot 4 - Low Opacity; Lot 5 - Low Opacity and Low Basis Weight.
(h) Inspection of the samples submitted by contractor to the
Contracting Officer revealed that the horizontal perforations did
not align properly where they met the vertical perforations, and
made the separation difficult and caused in some instances
tearing of the paper.
(i) The contractor, upon notification that the paper was not
equal to specifications stated that replacement paper would not
be received in time to meet the required newspaper insertion date
for the forms. The customer agency refused to consider a delay
in printing due to their contractual obligations with newspapers
throughout the United States for insertion of the brochures
necessary to their recruiting program.
(j) The Contracting Officer, by letter dated February 10, 1978,
notified the contractor that test results indicated that 130
pound paper was used with an opacity of less than 92%. It was
computed that the weight of 22,697,630 trim size sheets using 140
pound stock is 491,176 pounds; that the weight of the same number
of sheets using 130 pound stock would be 455,995 pounds, a
difference of 35,181 pounds. The Contracting Officer, being
advised that GPO procures both weights of paper at $0.231 per
pound, deducted the cost of 35,181 pounds of stock at $0.231,
totaling $8,126.81, from contractor's voucher because of the
deficiency. In addition, the Contracting Officer deducted 1% of
the total bid price $2,665.00 from the contractor's voucher
because of the deficiency as related to the perforations which
did not meet the requirements as provided in the specifications.
A total of $10,791.81 was deducted from the contractor's voucher
for the above noted deficiencies.
(k) The contractor filed notice of appeal by letter dated March
1, 1978.
Opinion
The Contract Appeals Board notified the contractor by letter on
March 17, 1978, and June 12, 1978,of the opportunity to offer
evidence in support of its appeal pursuant to the disputes clause
in the contract. The disputes clause, Article 29 U.S. GPO
Contract Terms No. 1, is incorporated by reference and is part of
the contract. The letter dated June 12, 1978, was forwarded by
certified mail and receipt acknowledged on June 14, 1978. The
contractor did not submit any additional evidence, and apparently
has elected to waive a hearing and submit its case on the record.
GPO Contract Terms No. 1 incorporated by reference Article 13. -
Inspection and Tests - provides the following clause in pertinent
part:
"All material or workmanship shall be subject to inspection at
all times and places by employees or representatives of the
Government. In case any article is found to be defective in
material or workmanship or not in conformity with the requirement
of the specifications, the Government shall have the right to
reject such articles or require their correction. . . . In the
event public necessity requires the use of materials as supplies
not conforming to the specifications, payment shall therefore be
made at a proper reduction in price.'' (Emphasis added).
The test results indicated that 130 pound, not 140 pound paper
was used for four of the five lots tested and that the opacity
did not measure 92% as required. Likewise inspection of the
samples submitted to GPO revealed that the horizontal
perforations of the brochure did not align properly where they
met the vertical perforations and none of the perforations were
deep enough. These two deficiencies made separation from the
form, even after folding on the perforation line, very difficult;
and in some cases caused tearing of the paper. It was only
because replacement paper would not be received in time to meet
the required insertion dates for the forms and the Department of
the Army would not agree to a delay in the printing due to
contractual commitment with the newspapers for distribution of
the recruiting material, that there was a relaxation by GPO of
the requirements called for in the specifications.
The contractor asserted in its letter of March 1, 1978, that it
used 543,729 pounds of paper and that total number of sheets used
amounted to 4,244,000; that the weight per thousand sheets equals
128,117 pounds and one thousand sheets at 140 pounds would equal
130,517 pounds. The contractor asserts that with the trade
custom allowing a +/-5% variance in all aspects of paper
specifications, their paper would be within acceptable standards.
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The attempt by the contractor to qualify the paper as acceptable
is ineffective because of the stringent requirements in the
contract. By the very nature of the contract, the contractor was
required to perform in accordance with the specifications made a
part of the contract. W. M. Schlosser Co., Inc., GSBCA 1966,
66-2 BCA � 5796. The GPO's test results clearly indicated that
130 pound, not 140 pound paper was used and that the opacity did
not measure 92%. It is a matter of common sense that the use of
130 pound stock in lieu of 140 pound paper would reduce the total
weight of the manufactured product. The formula used by GPO to
compute the cost of the reduced weight in paper appears fair and
reasonable. Likewise the deduction of 1% or $2,665.00 for the
deficiency relating to the perforations was reasonable. There
was sufficient evidence submitted to show that public necessity
required the immediate need or use of the recruiting material,
despite its not conforming to the specifications. Complaints
were forwarded by the Department of the Army, the Minneapolis
Tribune and the Pittsburgh Press that mechanical problems were
encountered in attempting to insert the recruiting material
because of poorly aligned perforations.
In addition, the Government is entitled to a price reduction for
the savings in the amount of $8,126.81, that resulted from the
contractor's using the 130 pound paper, in lieu of the required
140 pound paper stock. A. W. Barnhart Co., Inc., (1970) 70-1
BCA � 8105; Techni Data Laboratories, (1977) 77-2 BCA � 12667).
It is therefore concluded that a total reduction in payment in
the amount of $10,791.81 was fair and reasonable.
Decision
The appeal is denied.