GPO BCA 1-86
May 29, 1987
Michael F. DiMario
Administrative Law Judge


   This appeal, timely filed by Federated Lithographers-Printers,
   Inc. (hereinafter "Appellant"), 369 Prairie Avenue,
   Providence, RI 02901, is from the final decision of Michael J.
   Atkins, Contracting Officer, Seattle Regional Printing &
   Procurement Office (hereinafter "SRPPO"), U.S. Government
   Printing Office, Washington, DC 20401 (hereinafter "GPO" or
   "Respondent"), dated January 16, 1986, terminating Jacket No.
   691-542, Purchase Order R-3951 "for default because of . . .
   failure to produce the maps as specified." (Rule 4 File,
   hereinafter "R4 File," Tab F)

   The decision of the Contracting Officer is affirmed for the
   reasons set forth hereinbelow.

   On or about December 12, 1985, Appellant was awarded GPO SRPPO
   contract Jacket No. 691-542, Purchase Order R-3951 to produce
   26,838 5-color maps, 36 x 40 inches, folded to 4 x 9 inches,
   with 9 accordion folds and 2 right angle folds to ship
   complete by January 24, 1986. The award was made in the amount
   of $14,010 in accordance with Appellant's low bid.

   According to Atkins, Appellant's Mr. Paul DeGasparre
   telephonically informed him on January 3, 1986, that Appellant
   could not perform the .required folding and would like to
   return the order to the SRPPO. Atkins informed DeGasparre of
   Appellant's responsibility for performance and suggested that
   Appellant subcontract the work. DeGasparre indicated that
   subcontracting would cause his price to exceed the next lowest
   bidder's price and rather than do that his firm would accept
   default. Atkins explained the consequences of such action to
   DeGasparre who according to Atkins indicated his understanding
   and said his decision to accept default would be confirmed in
   writing. (R4 File, Tab E) That same day, DeGasparre wrote to
   Atkins, referenced the conversation, and requested that Atkins
   "consider this letter as confirmation that we cannot
   manufacture the above job. Our folding equipment prevents us
   from producing the necessary accordion folds in the second and
   third sections of the machine which have a maximum capacity of
   35" and 27" respectively and the map dimension is 36"." (R4
   File, Tab C) On January 6, 1986, upon receipt of the letter,
   Atkins telephonically contacted Appellant because the letter
   did not expressly state that the "default" was being
   voluntarily accepted. Atkins asserts that he was then told
   that Appellant did not agree with the consequences of
   "default," and would not complete the order but would return
   the Government-furnished materials. That same day Atkins
   caused a "Cure Notice" to be delivered to Appellant by private
   express carrier advising Appellant that: (1) Its failure to
   perform was considered "a condition that is endangering
   performance of the contract in accordance with its terms.";
   (2) it was being "afforded the opportunity.to present, in
   writing, within 5 days from receipt hereof, the measures
   adopted which have cured such condition."; and (3) that "[u]
   nless such condition" was cured, the Government might
   "terminate the contract for default pursuant to the article
   entitled 'Default,' United States Government Printing Office
   Contract Terms No. 1." (R4 File, Tab D) Following such action
   the SRPPO received the Government-furnished materials on
   January 16, 1986. Thereafter, Atkins, as Contracting Officer,
   issued the final decision letter terminating the contract. He
   also advised the Appellant that the Government might reprocure
   the required products from another contractor, and in such
   case could hold Appellant liable for any excess reprocurement
   costs. Lastly, he advised Appellant of its right to appeal his

   By letter of January 30, 1986, addressed to SRPPO Attn:
   Atkins, one Dennis R. Newsham, not further identified, wrote
   to the SRPPO referencing Atkin's January 16 letter and
   advising that the instant letter was Appellant's notice of
   appeal. The letter in pertinent part stated that "[w]ithout
   the benefit of a folding dummy which usually accompanies most
   bids, we misinterpreted your folding specifications which did
   not allow us to fit the map on any of our four (4) folders. .
   . . If a dummy had been supplied, we would have immediately
   refrained from bidding; but as such was not the case, we, in
   good faith, submitted a bid as best as we interpreted it." (R4
   File, Tab G)

   Atkins subsequently forwarded the appeal letter and Rule 4
   File to this Board where it was received on February 4, 1986.
   By letter of March 12, 1986, the Board provided Appellant with
   a copy of GPO Instruction 110.12, "Board of Contract Appeals
   Rules of Practice and Procedure" dated September 17, 1984, and
   advised Appellant that such Rules required the filing of a
   Complaint, and an election and notification to the Board as to
   whether Appellant desired a hearing or a decision upon the
   written record alone. The Board received no response.
   Thereafter, by letter of May 30, 1986, the Board advised the
   parties that as a matter of procedure it was entering a
   general denial into the record on behalf of Respondent
   pursuant to GPO Instruction 110.12, supra, Rule 6.(b).

   The appeal has laid dormant in the dockets of this office
   since that time. Therefore, this Board, under its own
   initiative and pursuant to its Rules of Practice and
   Procedure, supra, elects to decide this case upon the written
   record now before it.


   The issue presented by this appeal is founded in Appellant's
   contention that Respondent was in some way culpable for
   Appellant's default after award but before performance because
   Respondent had failed to provide it with a "folding dummy"
   which it asserts "usually accompanies most [Invitations for]
   bids . . . ."

   This Board believes that such argument has been proffered by
   Appellant to cloak its own shortcomings respecting its failure
   to properly evaluate the product specifications prior to its
   bid. (R4 File, Tab B) The specifications provide that the
   finished product trim size shall be 36 x 40 inches. Moreover,
   the additional instructions under the caption "Binding"
   specify: "Fold to 4 x 9" with 9 accordion folds and 2 right
   angle folds. Last fold to be on top of cover panel. (Two half
   folds)" Certainly, such instructions are enough to alert a
   reasonably prudent printer knowledgeable of its own equipment
   limitations, i.e., that the 2nd and 3rd sections of its
   folding equipment have maximum capacities of 35 x 27 inches,
   respectively, to question its own ability to perform such
   folding work for a map of fixed trim size as above before
   submitting its bid, irrespective of whether or not it was
   furnished a folding dummy. Moreover, the record shows that 2
   other bidders responded to the Invitations for Bid (R4 File,
   Tab A) without raising any questions concerning the necessity
   of such dummy. It is inconceivable to this Board that 3
   bidders would fail to question a routine customary practice of
   the sort alleged here if such practice were consequential to
   their bid submissions. Finally, to allow such argument to
   prevail after award under established law regarding post-award
   discovery of mistake in bid, this Board must make a
   determination that the Government either knew or suspected the
   mistake and failed to request Appellant to review and confirm
   its bid, Chernick v. United States, 178 Ct.Cl. 498, 372 F.2d
   492 (1967), or that the Government contributed to the error.
   Leal v. United States, 149 Ct.Cl. 451 (1960). This Board
   declines to make such judgment from the facts before it. To do
   otherwise would destroy the integrity of the competitive
   procurement process.

   Accordingly, this Board affirms the decision of the
   Contracting Officer.