U.S. GOVERNMENT PRINTING OFFICE
BOARD OF CONTRACT APPEALS
The Appeal of FRY COMMUNICATIONS, INC.
Docket No. GPO BCA 1-87
June 1, 1989
MICHAEL F. DiMARIO
Administrative Law Judge
OPINION
This appeal, timely filed by Fry Communications, Inc.,
800 West Church Road, Mechanicsburg, PA 17055-0211
(Appellant), is from the final decision of John J.
O'Connor, Contracting Officer (CO), dated December 24,
1986, terminating U.S. Government Printing Office, San
Francisco Regional Printing and Procurement Office
(SFRPPO/Respondent) contract, Purchase Order P-4853,
Jacket No. 687-502, for default for failure to furnish
satisfactory press sheets for this order." The appeal is
denied and the decision of the CO affirmed for the
reasons set forth hereinbelow.
BACKGROUND
Appellant was awarded contract Purchase Order P-4853,
Jacket No. 687-502, on June 30, 1986, to produce some
3,136 books requisitioned from the SFRPPO by the
Department of the Interior (Requisition No. 6-04627) in
accordance with certain specifications prepared by the
SFRPPO. Among other things, the specifications required
Appellant to reproduce some 34 pages of halftone text
pages using a 300 line screen. The paper to be used was
specified as matte coated offset book, basis size and
weight: 25 x 38", 60 lb., equal to JCP Code A-240 of the
U.S. Government Paper Specification Standards issued by
the Congressional Joint Committee on Printing. The
quality of such halftone printing was to be in
conformance with attribute P-8 of the GPO Quality
Assurance Through Attributes Program (QATAP) with the
specified standard being the match of Velox proofs.
The first set of proofs was rejected for failure to meet
the P-8 halftone attribute. At that time Appellant
advised Respondent that it did not believe such standard
could be met using the specified paper. (Rule 4 File,
hereinafter "R4 File," Tab 4.) Appellant, nevertheless,
attempted a second and third set of proofs each of which
were rejected for the same defects in halftone
reproduction. (R4 File, Tab 4, sheets 5 and 6.) At that
point, Respondent, by letter dated October 29, 1986,
advised Appellant that GPO considered Appellant's
inability to furnish a press sheet with satisfactory
halftone illustrations to be a "condition that is
endangering performance of the contract in accordance
with its terms [and that] unless such condition [was]
cured within 5 days after receipt [of the notice] the
government [might] terminate subject contract for
default." (R4 File, Tab 5.)
Appellant, by letter dated November 11, 1986, responded
that it was "in the process of buying non-compressable
[sic] blankets, a different ink, plus re-shoot dark
halftones." Thereafter, a fourth set of proofs was
furnished and rejected. The rejection letter dated
December 12, 1986, again advised Appellant that its
inability to furnish press sheets with satisfactory
halftones was a condition endangering performance of the
contract in accordance with its terms and that the
contract might be defaulted unless such condition was
cured within 5 days after receipt of the letter. (R4
File, Tab 8.)
In response, Appellant, by letter dated December 19,
1986, advised: "We have reviewed each step of operation,
and have been advised by outside specialist, plus
purchased equipment and also the proofs were printed on a
new Heidelberg ZP102 press. With the interest of the
agency to give the best results possible, for 34 photo's
w/overlays per specifications." (R4 File, Tab 9.)
The CO then decided to terminate the contract for default
and sought the concurrence of the GPO Contract Review
Board. In so doing, the CO expressed its opinion to the
Board that Appellant's repeated claim respecting the
inappropriateness of specified paper for the halftone
reproductions was unfounded because "[n]umerous similar
jobs have been successfully produced for this customer
and Fry was even furnished a sample of one of these
previous orders." (R4 File, Tab 10.)
Concurrence was given and the contract was terminated by
letter dated December 24, 1986, for the reasons stated,
supra. (R4 File, Tab 11.) Appellant thereafter filed
its Notice of Appeal dated December 30, 1986. (R4 File,
Tab 12). This was followed by the issuance of an
internal "Inspection Results" memorandum by Darwin D.
Hughes, the Chief of GPO's Quality Assurance Section, to
GPO's Western Regional Printing Procurement Assistant
Superintendent which in pertinent part stated:
Comparing the press sheets to the camera copy Quality
Assurance has determined that there is a definite detail
loss in the shadow and mid-tone areas. We assesed [sic]
20 demerits against each halftone using attribute P-8.
Halftone Match, Procedure: 1, paragraph a.
Conclusion:
I do not feel this contractor has achieved the standards
of our Quality Assurance Through Attributes program for
level 3 halftone match.
R4 File, Tab 13.
Appellant, by letter of February 12, 1987, advised the
Board that it desired to have the appeal decided on the
written record and further expressed the view that the
paper specification created:
[A]n unjustifiable requirement. Simply, the manufacturing
of this paper in addition to 34-300 line halftone pages at
quality level III, has demonstrated that we cannot produce
these halftones to meet the quality level required using the
above mentioned paper specifications.
We offered at no additional cost to the government a
higher quality grade paper over and above original
specifications, to achieve the results expected. Case in
point we do numerous Department of Interior publications
with no printing problems.
Official File, Tab D.
The case is thus before this Board for decision in this
form.
DISCUSSION
It is well settled in the law of Government contracts
that the contractor has the burden of proving that the
Government's specifications were defective in design and
that such defects were the cause of the problems in
question, Bailfield Industries, Div. of A-T-O, Inc.,
ASBCA 18057, 77-1, BCA ¶ 12,348 (1977). Absent such
proof, the general rule is that the Government is
entitled to strictly enforce compliance with its
specifications, S.S. Silberblatt, Inc. v. United States,
433 F.2d 1314 (1970). Thus, the Government can refuse to
acquiesce to a contractor's request that it be allowed to
use substitute materials, Polyphase Contracting Corp.,
ASBCA 11787, 68-1, BCA ¶ 6,759 (1967), even if such
materials are superior. Nichols & Co. v. United States,
156 Ct. Cl. 358 (1962), cert. denied, 371 U.S. 959
(1963).
FINDINGS OF FACT
Examining the record in the light of the law, the Board
finds that Appellant has failed to carry its burden of
proof inasmuch as it has offered no probative evidence
whatsoever to support its contention that its "failure to
furnish satisfactory press sheets for this order." was
caused by the specification of inappropriate paper stock.
Accordingly,
DECISION
The appeal is denied and the decision of the CO affirmed.
IT IS SO ORDERED.