BOARD OF CONTRACT APPEALS U.S. GOVERNMENT PRINTING OFFICE WASHINGTON, DC 20401 In the Matter of ) ) the Appeal of ) ) BRACELAND BROTHERS, INC. ) Docket No GPO BCA 01-93 Program C423-S ) Purchase Order 91772 ) Print Order 60037 ) For the Appellant: Braceland Brothers, Inc., Philadelphia, Pennsylvania, by Frederic G. Antoun, Jr., Esq., Attorney At Law, Chambersburg, Pennsylvania. For the Government: Roy E. Potter, Esq., Assistant General Counsel, U.S. Government Printing Office. Before FOSS, Administrative Judge. DECISION AND ORDER I. STATEMENT OF THE CASE By Notice of Appeal, dated January 11, 1993, Braceland Brothers, Inc. (Appellant or Contractor), 7625 Suffolk Avenue, Philadelphia, Pennsylvania 19153, filed a timely appeal of the final decision of Contracting Officer Jack Scott, dated November 5, 1992, of the U.S. Government Printing Office's (Respondent or GPO or Government), Printing Procurement Department (PPD), Washington, DC 20401, denying the Appellant's equitable adjustment claim of $17,150.00 for the costs incurred in reprinting 40,000 copies of a publication for the Social Security Administration (SSA or customer agency) under its contract identified as Program C423-S, Purchase Order 91772, Print Order 60037 (R4 File, Tabs A, B, and C).1 See Board Rules, Rules 1(a) and 2. An evidentiary hearing was held by the Board on August 4, 1993, at which both parties were represented by counsel, who, thereafter, filed timely briefs on the issues involved.2 Board Rules, Rules 17 through 24, 26 and 27. For the following reasons, the Contracting Officer's final decision is hereby AFFIRMED, and the appeal is DENIED. II. BACKGROUND The relevant facts are essentially uncontroverted, and are set forth here as presented in the R4 File, the RPTC, and the hearing record.3 1. On August 26, 1991, the Respondent issued an Invitation for Bid (IFB) for Program C423-S, a single-award "requirements" term contract, involving the production of self-cover and separate- cover pamphlets and books for the SSA (R4 File, Tab A, at 1, 6). The contract was to cover the period beginning October 1, 1991, and ending September 30, 1992 (R4 File, Tab A, at 1). Among the IFB's specifications were the following pertinent provisions: SECTION 1.-GENERAL TERMS AND CONDITIONS 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 1989 (revised November 1989) [hereinafter QATAP]. * * * * * * * * * * QUALITY ASSURANCE LEVELS AND STANDARDS: The following levels and standards shall apply to these specifications: Product Quality Levels: (a) Printing (page related) Attributes-Level IV. (b) Finishing (item related) Attributes-Level IV. * * * * * * * * * * ASSIGNMENT OF JACKETS, PURCHASE AND PRINT ORDERS: A GPO jacket number will be assigned and a purchase order issues to the contractor to cover work performed. The purchase order will be supplemented by an individual "Print Order" for each job placed with the contractor. The print order, when issued, will indicate the quantity to be produced and any other information pertinent to the particular order. * * * * * * * * * * ORDERING: Items to be furnished under the contract shall be ordered by the issuance of print orders by the Government. Orders may be issued under the contract from October 1, 1991 through September 30, 1992. All print orders issued hereunder are subject to the terms and conditions of the contract. The contract shall control in the event of conflict with any print order. A print order shall be "issued" for purposes of the contract, when it is either deposited in the U.S. Postal Service mail or otherwise furnished to the contractor in conformance with the schedule.4 REQUIREMENTS: This is a requirements contract for the items and for the period specified herein. Shipment/delivery of items or performance of work shall be made only as authorized by orders issued in accordance with the clause entitled "Ordering". The quantities of items specified herein are estimates only, and are not purchased hereby. Except as may be otherwise provided in this contract, if the Government's requirements for the items set forth herein do not result in orders in the amounts or quantities described as "estimated", it shall not constitute the basis for an equitable adjustment under this contract. * * * * * * * * * * Subject to any limitations elsewhere in this contract, the contractor shall furnish to the Government all items set forth herein which are called for by print orders issued in accordance with the "Ordering" clause of this contract. SECTION 2.-SPECIFICATIONS * * * * * * * * * * FREQUENCY OF ORDERS: Approximately 70 orders per year. QUANTITY: Approximately 200 to 98,000 copies per order. Approximately 80 percent of orders will be for 8,000 copies or less. NUMBER OF PAGES: Approximately 4 to 2,280 pages per order. Approximately 80 percent of orders will be for 400 pages or less. * * * * * * * * * * GOVERNMENT TO FURNISH: Camera copy consisting of line art and photoprints to be reproduced at various focuses. Film negatives. * * * * * * * * * * 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. FILMS: The contractor must make all films required. All halftones are to be 133-line screen or finer. Films may be opaqued on either the emulsion or non-emulsion side. The films delivered to the Government must be the final films used for printing. They must be suitable for making press plates for subsequent reprinting without any retouching, opaquing, surprinting or any other hand or camera work. * * * * * * * * * * See R4 File, Tab A, at 2-3, 5-7. 2. Also, GPO Contract Terms, incorporated by reference in the IFB, contains, in pertinent part, the following relevant clauses: 7. Government Furnished Property (GFP). The contractor is required to examine the furnished property immediately upon receipt. If at that time there is disagreement with the description or the requirements as presented in the specifications (or print order/GPO Form 2511), and prior to the performance of any work, the contractor shall contact the U.S. Government Printing Office, Central Office Printing Procurement Division, Washington, DC 20401, or the originating Regional Printing Procurement Office, and contest the description. (Failure to examine the GFP/specifications and bring any discrepancies to the attention of the Contracting Officer will not relieve the contractor of responsibility to perform.) The Contracting Officer will then investigate and make a determination which will be final. If the decision is reached that the original description is proper, the contractor will be required to proceed with the work. Failure to agree to the description shall be a dispute within the meaning of article 5 "Disputes." If the decision is reached that the description is erroneous, the Contracting Officer will proceed in one the following manners: * * * * * * * * * * (b) in the case of a print order placed through a term contract, an equitable adjustment will be negotiated and a supplemental agreement issued. . . . * * * * * * * * * * 10. Return of Government Property. (a) GPO-furnished production media such as positives, negatives, artwork, camera copy, and similar articles (including unused [Government Bills of Lading] furnished for use in the completion of the contract) shall be returned immediate upon completion of the contract, without demand by the Government, at the contractor's expense unless specifically provided otherwise in the specifications or by the Contracting Officer. * * * * * * * * * * 14. Inspection and Tests. * * * * * * * * * * (c) The Government has the right to inspect and test all supplies5 called for, to the extent practicable, at all places and times, including the period of manufacture, and in any event before acceptance. The Government shall perform inspections and tests in a manner that will not unduly delay performance and assumes no contractual obligation to perform any inspection and test for the benefit of the contractor unless specifically set forth elsewhere. * * * * * * * * * * (f) The Government has the right either to reject or to require correction of nonconforming supplies. Supplies are nonconforming when they are defective in material or workmanship or are otherwise not in conformity with requirements. The Government may reject nonconforming supplies with or without disposition instructions. * * * * * * * * * * See GPO Contract Terms, Contract Clauses, ¶¶ 7, 10, 14. 3. On September 23, 1991, the Respondent issued Purchase Order 91772 awarding the Program C423-S contract to the Appellant for the term indicated (R4 File, Tab B). 4. On June 15, 1992, the customer agency issued Print Order 60037 to the Contractor for the production and delivery of 40,000 copies of "SSA PUB. 64-039 (5/92)," a 124-page publication (including blanks) entitled "Disability Evaluation Under Social Security" (hereinafter Disability Book) (R4 File, Tab C). See RPTC, at 2. See also Tr. 6, 28-29, 45, 94; Jt. Exh. No. 3. Among other things, the Print Order stated that the Government- furnished material (GFM) for the job consisted of 29 pieces of camera copy, 91 negatives, and a sample of the previous publication (R4 File, Tab C). See RPTC, at 3. See also Tr. 8, 31. Furthermore, the Appellant was expected to produce and ship the Disability Book by June 22, 1992, and the estimated contract price was $17,150.00 (R4 File, Tab C). See RPTC, at 2. Tr. 13. 5. The record discloses that when it received the Print Order, the Appellant, following its usual business practice, created a "job jacket" (Jacket No. 10267, dated June 16, 1992). See Tr. 29, 32-34, 38; App. Exh. No. 1. Furthermore, the record shows that when the Contractor received the GFM, one of its production planners, Bill Ewing, examined it to make sure that all the necessary material was there to complete the work, and noted on the job jacket that there were 30 pieces of camera copy and 89 negatives.6 See Tr. 6-7, 23, 30-31, 35, 43, 84, 86, 94; App. Exh. No. 1. Although the Appellant's GFM count differed from the Print Order's, the record indicates that the Contractor never contacted either GPO or the SSA to question the discrepancy (R4 File, Tab H).7 See Tr. 44. 6. It is undisputed that the Contractor produced and shipped the Disability Book to the SSA by June 22, 1992, the contact due date. See RPTC, at 2. See also Tr. 7, 15. As required by the contract, the Appellant returned the GFM to the customer agency after completing the work. See Tr. 7-9, 47-48. See also GPO Contract Terms, Contract Clauses, ¶ 10(a). 7. About two months later, on or about August 10, 1992, the SSA informed GPO that it had inspected the Disability Book, and found it unacceptable because it contained a quality defect under QATAP printing attribute P-5 (R4 File, Tabs D and F). See Tr. 7, 46-47; Jt. Exh. No. 3. Specifically, the customer agency complained: Page 9 and 97 duplicated. Contractor appears to have used page 97 to create page 9. Negatives and camera copy were furnished. Pagination on camera copy has been altered and trimmed. Camera copy for page 9 was not returned to SSA. See R4 File, Tab D.8 The SSA also told the Respondent that, as a consequence, the Disability Book was rejectable and had to be reprinted (R4 File, Tabs D and F). GPO's own inspection of a random sample of the publication verified the customer agency's complaint (R4 File, Tab E). 8. The record indicates that after the SSA notified the Respondent of the page defect, several PPD employees, including Contracting Officer Scott, Chief of Program Section C in the Term Contracts Division, and two employees in the Quality Assurance Section of PPD's Contract Management Branch, Namon (Tony) Seaborn, a quality inspection technician, and John Nowalk, a printing specialist,9 telephoned the Appellant to discuss the problem (R4 File, Tab F). See Tr. 7, 11, 28, 46-47, 53. The record also shows that in the conversations which occurred on August 14, 1992, and August 17, 1992, respectively, the Contractor took the position that the error was not its fault, but rather the mistake was SSA's-indeed, possibly an act of "sabotage;" i.e., the customer agency itself made the camera copy for page 9 which duplicated page 97 and included it in the GFM (R4 File, Tab F). See Tr. 12-13, 53, 84, 115, 117-18, 121. See also RPTC, at 3. For its part, the Government adamantly maintained that it sent a negative of page 9 to the Appellant because there were no changes, which was lost or destroyed, either inadvertently or negligently, by the Contractor, who then created a new page 9 from the camera copy for page 97 (R4 File, Tab F).10 See Tr. 119-20, 150-51; Res. Exh. No. 2.11 See also RPTC, at 3. 9. By letter dated August 21, 1992, the Contracting Officer formally notified the Contractor that its shipment of the Disability Book was rejectable, which required its reprinting at no additional cost to the Government, and that by mutual agreement the reprints were to be delivered by August 29, 1992 (R4 File, Tab G).12 See Tr. 47. The parties also agreed to the destruction of the rejected copies (R4 File, Tabs F and G). 10. It is undisputed that the Appellant reprinted and delivered the Disability Book with a correct page 9,13 as instructed by the Contracting Officer, and that the publication was accepted and paid for by the Government. See Tr. 12-13, 17. However, in the interim, also by letter dated the August 21, 1992, Jones wrote to the Contracting Officer claiming, in effect, an equitable adjustment for the additional costs incurred in reprinting and delivering the Disability Book (R4 File, Tab H).14 In that regard, the Appellant supported its claim, in pertinent part, with the following rationale: . . . The agency is rejecting the order based on incorrect information which appears on page 9 of the book. The content of page 9 is the same as for page 97. It is the agencies [sic] contention that we made the error by creating page 9 from a piece of camera copy supplied for page 97, when we should have used a negative that was supplied for page 9. This is impossible. If we were supplied a negative for page 9 with the correct copy, and we did have another that was incorrect, we would have realized it when we stripped the job and realized there were two negatives for page 9. Some one [sic] would have had to question this and call the customer. [The] [f]act of the matter is we did not receive a negative for page 9, but we received a piece of camera copy. What has happened to this piece of camera copy is a mystery. Our best guess it disappeared once the camera copy and negatives were returned to the agency and this problem surfaced. There are a couple of reasons how we know we received camera copy for page 9 as opposed to a negative. First, our job jacket instructions to the camera department specify that 30 camera copy and 89 negatives were to be system stripped for the text portion of the book. The package we received from the agency through the GPO only had 29 camera copy. If we had 30 camera copy when we originally produced the job, where is the missing piece of copy? We realize our records conflict with the information on the print order, the [Print Order] states that 29 copy were supplied and we say there were 30. However, we don't call when there is such a minor discrepancy as this since it is very common place. If you'll note the figures on the [Print Order] don't seem to add [up] in any event. It states 29 camera copy, 89 negatives supplied to produce a 124 page book with 6 blanks and 2 covers printing. In reality there are only 5 blanks in the book, requiring a total of 119 negatives for the text and two for the covers. This is what our records showed, 89 negatives and 30 copy totaling 119 pieces for the text. Secondly and more significantly, the negatives for page 9 and 97 are not identical, but should be if the same piece of copy were used to produce both. When you overlay the copy for page 97 over the negative it matches but when you overlay the negative used to print page 9 the copy does not align with the negative. Also, the word "trisomy" has a broken "y" on the copy for page 97 and the negative for 97 but does not appear on the negative for page 9. There are other spots and holes in the negatives which do not match between the two pages, proving that the negative for page 9 was not made from same piece of copy as page 97 but there was another piece of copy. See R4 File, Tab H, at 1-2.15 11. The record indicates that on November 2, 1992, the parties discussed the Contractor's claim on the telephone (R4 File, Tab K). Thereafter, on November 5, 1992, Contracting Officer Scott issued his final decision rejecting the Appellant's equitable adjustment claim for lack of proof (R4 File, Tab K). See Tr. 15. See also RPTC, at 4. The Contracting Officer explained, in pertinent part: As is stated in Mr. Jones letter of August 21, 1992, it is your contention that page 9 was printed in error because the Agency furnished you with the wrong camera copy for this page, and you made negatives and printed the job from the Government Furnished Material. In addition, you contend that the furnished material indicated on the print order was in error, because your internal job log indicates you received 30 pieces of camera copy and 89 negatives for this order. However, the Agency contends that the print order was correct, and that you were supplied with 29 pieces of camera copy and 91 negatives, as indicated. One of these furnished negatives was for page 9. The Agency concluded that your must have used the furnished piece of camera copy for page 97 to create page 9. After the first printing had been determined rejectable, all camera copy and negatives were returned to you for use in the reprinting. As we agreed, after the reprinting had been completed, you were to return all of the camera copy and negatives to me for a second evaluation, to try and determine if your claim was valid. The camera copy was received at GPO on October 14, 1992. The negatives were not included. Mr. Jones was contacted about the missing negatives and he stated that the negatives were returned to the Agency.16 The Agency was contacted, and on October 14, 1992[,] they stated that the negatives had been disposed of and were no longer available. Because I do not have the negatives to evaluate, you have not met your burden of proving that your claim is valid. Given this lack of evidence, I must assume that the print order was correct and the error on the first printing was solely the fault of Braceland Brothers, Inc. Therefore, your claim for an equitable adjustment is denied. See R4 File, Tab K, at 1-2.17 12. By letter dated January 11, 1993, the Appellant timely appealed the Contracting Officer's final decision to the Board. III. ISSUE PRESENTED Although the Board identified three subquestions at the prehearing conference on June 30, 1993,18 in reality the sole issue in this appeal is: Has the Appellant proven that it is entitled to an equitable adjustment for reprinting the Disability Book? Stated otherwise, has the Contractor shown that the SSA supplied it with erroneous camera copy for page 9 of the original printing, and that the incorrect page 9 was not created at its plant from the camera copy for page 97? IV. POSITIONS OF THE PARTIES A. The Appellant As the above statement of the issue makes clear, the fact that the original printing of the Disability Book contained an erroneous page 9 is not in dispute in this appeal. Instead, the parties disagree about who is to blame for the mistake. In that regard, the Appellant has maintained from the outset that the fault was the Government's because the SSA supplied it with camera copy for page 9 that duplicated page 97.19 See RPTC, at 4; App. Brf., at 3. The Contractor believes that it is significant that the GFM count on its job jacket for the original printing shows the receipt of 30 pieces of camera copy, while the GFM for the reprint contained only 29 pieces of camera copy. See RPTC, at 3; App. Brf., at 3. The Appellant says that not surprisingly the missing piece of camera copy was the erroneous page 9, and suspects that the SSA purposely destroyed the camera copy once it became aware of the problem after the first printing of the Disability Book had been completed, and the GFM returned by the Contractor.20 See RPTC, at 5; App. Brf., at 3. Indeed, the Appellant also argues that in light of the customer agency's destruction of the relevant camera copy, it was unfair and improper for the Contracting Officer to decide that the Contractor had failed to establish an evidentiary basis for its claim. See RPTC, at 5. Additionally, the Appellant alleges that a visual comparison of printed pages 9 and 97 in the original printing of the Disability Book clearly shows that the two pages are sufficiently different so that they could not have been derived from the same camera copy. See RPTC, at 5; App. Brf., at 3. In that regard, the Contractor observes that page 9, unlike page 97, has better type quality and unbroken letters in the words "anencephaly" and "trisomy."21 See App. Brf., at 3. Furthermore, the Appellant claims that although both parties' expert witnesses agree that page 97 was created from the SSA's camera copy, they offered different reasons for the quality differences between that page and page 9. Id. Thus, the Contractor says that while its witness asserted "some certainty" that based on his experience "it was impossible to fill in voids or missing areas of a letter on camera copy when producing a negative from that camera copy," the explanation advanced by the Respondent's expert essentially boiled down to "dust contamination during the negative-making process from the glass which holds the copy in place." Id. However, the Appellant notes that the camera method used on this job-the opti-copy system-does not use glass.22 Id. Finally, the Contractor rejects the Respondent's idea that it should have examined all of the camera copy and negatives in the GFM before printing the Disability Book. See RPTC, at 4-5. Indeed, the Appellant argues that such an issue is not even before the Board. Id. In its view, the contract merely required that it produce the publication from the GFM supplied by the SSA, and thus, the Government is wholly responsible for any printing error caused by the wrong camera copy. See RPTC, at 5. Accordingly, for these reasons, the Appellant alleges that because of the SSA's error in the GFM, it had to print the same job twice, and therefore, it is entitled to an equitable adjustment equal to the purchase price, less $100.00, which represents the savings realized by work it previously performed on the initial printing, or $17.050.00.23 See RPTC, at 4; App. Brf., at. 4. B. The Respondent The Respondent, for its part, offers two reasons why the Contracting Officer's decision should be sustained in this case. First, the Government alleges that the Appellant has failed to prove that the reason for an erroneous 9 in the original printing of the Disability Book was a mistake in the GFM supplied by the SSA. See RPTC, at 3; Res. Brf., at 3. Rather, GPO insists that the Print Order correctly showed the GFM sent to the Contractor, and that it included a film negative for page 9, which should have been used to print that page.24 See RPTC, at 3. Under applicable principles, the Appellant has the burden of proving that, in fact, the Print Order was in error, and that the GFM it received was unsuitable for its intended use. See Res Brf., at 3 (citing Hudson Garment Co., Inc., ASBCA No. 4847, 60-2 BCA ¶ 2827; Royal Electric, Inc., ASBCA No. 3340, 62 BCA ¶ 3571). In that regard, the Respondent says that the Contractor's "suitability" argument is based on its claim that it received 30 pieces of camera copy, and not the 29 pieces called for in the Print Order, the extra piece being marked page 9. See Res. Brf., at 4. Since negatives were made from all of the camera copy supplied by the SSA, the Contractor states that the erroneous page 9 was simply included in that mix. Id. However, the Government, relying on Schwenk's testimony, contends that the "more likely scenario" is that the Appellant mistakenly used the camera copy for page 97 of the Disability Book to create the camera copy for page 9, and then made the negative.25 See RPTC, at 3-4; Res. Brf., at 4-5 (citing Tr. 57, 181; Res. Exh. Nos. 4-6). Thus, GPO believes that the error occurred when the camera copy was grouped to shoot negatives and something, such as an overlapping piece of camera copy, covered the number 7 on the camera copy for 97.26 See Res. Brf., at 4 (citing Tr. 150). Consequently, the Respondent asserts that it was a mistake in the manufacturing process, rather a defect in the GFM, which resulted in the incorrect page 9, and required a reprinting of the Disability Book. See RPTC, at 4. Indeed, while candidly acknowledging that the precise cause for the page 9 error might never be known, GPO also believes that the fact of not knowing only demonstrates that the Contractor failed to meet its burden of proof.27 See Res. Brf., at 5. Secondly, the Respondent argues that the Appellant's failure to comply with the "Government Furnished Property" clause of the contract is also a reason to deny the equitable adjustment claim. See Res. Brf., at 4 (citing GPO Contract Terms, Contract Clauses,¶ 7). Essentially, GPO contends that if the Contractor received 30 pieces of camera copy when the Print Order indicated 29 pieces were being supplied, then there was an obvious discrepancy in the GFM. Id. (citing App. Exh. No. 1). See also R4 File, Tab C. The Government states that since the Appellant was aware of the differences in the camera copy numbers before it started production, the terms of the contract required it to notify GPO so that the error could either be resolved or explained. See Res. Brf., at 3. However, the Contractor did not do so, but rather assumed its count was correct and proceeded to print the Disability Book without bringing the discrepancy to the Contracting Officer's attention. Id. Therefore, because settled principles tell us that a contractor who knows, or should know, before performance that the GFM is defective, cannot recover on a claim based on that alleged defect, the Respondent believes that the Appellant has forfeited any right to an equitable adjustment in this case.28 See Res. Brf., at 4 (citing Kilgore, Inc., ASBCA No.. 1387 (1953)). Accordingly, for these reasons, GPO submits that the Contractor's equitable adjustment claim is without merit, and thus the Contracting Officer's decision should be upheld, and the appeal denied. See RPTC, at 4; Res. Brf., at 5. V. DECISION29 The Appellant tells us that "[t]his case presents no complex legal issues or questions of law." See App. Brf., at 2. The Board agrees completely with this assessment of the record. The controversy with respect to Print Order 60037 involves a simple question-is the Appellant entitled to an equitable adjustment under the circumstances; i.e., has it supported its right to extra compensation?-the amount of the claim itself has not been challenged by the Respondent. Furthermore, this is the sort of issue which the Board has dealt with innumerable times before. In past cases, the Board has detailed the fundamental principles relating to equitable adjustments so that the parties could have a clear understanding of the guideposts followed in resolving their dispute. See e.g., Swanson Printing Co., supra, slip op. at 20-24; Universal Printing Co., GPO BCA 09-90 (June 22, 1994), slip op. at 39-42, 1994 WL 377586; Banta Co., GPO BCA 3-91 (November 15, 1993), slip op. at 25-26, 37-38, 1993 WL 526843. No such recitation is necessary in this appeal. The reason is quite simple. Overarching legal precepts aside, the Contracting Officer is correct-as a purely evidentiary matter, the Appellant has failed to establish its entitlement to an equitable adjustment. See e.g., Swanson Printing Co., supra, slip op. at 31-32 (failure to retain required documentation); Fry Communications, Inc./InfoConversion Joint Venture, GPO BCA 9-95 (August 5, 1991), Decision on Remand, slip op. at 35-36, 1991 WL 439272 (necessary worksheets and notes disappeared). Reduced to its essentials, the Appellant's case consists of two allegations: (1) the Government was responsible for the page error in the first printing of the Disability Book because the GFM supplied by the SSA contained a piece of camera copy for page 9 that duplicated page 97; and (2) once the problem with page 9 surfaced after the initial printing, the SSA purposely destroyed the defective camera copy which had been returned with the GFM, thus depriving the Contractor of the necessary evidence to prove its claim; i.e., the customer agency, in bad faith, deliberately "sabotaged" the Appellant. See R4 File, Tab F; Res. Brf., at 5. The burden of proof is different for each of these contentions, involving "preponderance of the evidence," on the one hand, and ""well-nigh irrefragable proof," on the other. However, the Contractor has not carried its burden on either assertion. A. The Appellant has not shown by a preponderance of the evidence that the GFM supplied by the SSA for the initial printing of the Disability Book mistakenly included a piece of camera copy for page 9 that duplicated page 97, instead of a negative from the previous printing. Furthermore, under the terms of the contract, when the Contractor saw that there was a discrepancy between the GFM description on the Print Order and the material received from the customer agency, it was obligated to notify GPO prior to the performance of any work, and it failed to do so. Accordingly, there is no support for the Contractor's equitable adjustment claim for extra costs in the amount of $17,050.00 under Print Order 60037. For the Appellant to receive an equitable adjustment in this case, it had to establish three necessary elements; i.e., liability, causation, and resultant injury. See Swanson Printing Co., supra, slip op. at 22; GraphicData, Inc., supra, slip op. at 51; Universal Printing Co., supra, slip op. at 40; Banta Co., supra. slip op. at 43, n. 53. Accord Delco Electronics Corp. v. United States, 17 Cl. Ct. 302, 320 (1989); Wunderlich Contracting Co. v. United States, 173 Ct. Cl. 180, 199, 351 F.2d 956, 968 (1965); JGB Enterprises, Inc., ASBCA No. 49493, 96-2 BCA ¶ 28,498, at 142,309; West End Welding & Fabricating, Inc., ASBCA Nos. 40423, 41120, 41213, 48307, 96-1 BCA ¶ 28,151, at 140,531; McDonnell Douglas Services, Inc., ASBCA No. 45556, 95-1 BCA ¶ 27,333, at 136,230 (citing Wilner Construction co. v. United States, 24 F.3d 1397, 1401 (Fed. Cir. 1994)). See generally John Cibinic, Jr. and Ralph C. Nash, Jr., Administration of Government Contracts 3d ed., (The George Washington University, 1995), at 699-700 (hereinafter Cibinic & Nash, Administration). Furthermore, it was incumbent on the Contractor, as the party claiming the benefit of the adjustment, to prove each of these elements by a preponderance of the evidence. See Swanson Printing Co., supra, slip op. at 22; Universal Printing Co., supra, slip op. at 40; Fry Communications, Inc./InfoConversion Joint Venture, GPO BCA 9-95 (August 5, 1991), Decision on Remand, slip op. at 31, 1991 WL 439272 (Decision on Remand) (citing Hopkins v. Price Waterhouse, 737 F.Supp. 1202, 1204, fn. 3 (D.D.C. 1990) (hereinafter Fry Communications). Accord Teledyne McCormick Selph v. United States, 214 Ct. Cl. 672, 558 F.2d 1000 (1977); Wilbur Smith & Associates, Inc., ASBCA No. 35301, 89-3 BCA ¶ 22,025. See generally Cibinic & Nash, Administration, at 698. This evidentiary standard was defined by the Board in Fry Communications, where it stated: "Preponderance of the evidence" simply means such evidence as, when weighed against that opposed to it, is more convincing that something is more likely so than not so. Cf., Hopkins v. Price Waterhouse, 737 F.Supp. 1202, 1204, fn. 3 (D.D.C. 1990). That is, to meet this standard of proof a party is required to present evidence sufficient to persuade the trier of fact that the proposition is more likely to be true than not true. Id., at 1206 (citing E. Devit, C. Blackmar, M. Wolff, Federal Jury Practice and Instructions § 7-2.02 (4th ed. 1987)). See Fry Communications, supra, slip op. at 31-32. See also Swanson Printing Co., supra, slip op. at 22, n. 34. Accord Joyce C. Smith v. United States, 557 F.Supp. 42, 51 (W.D.Ark. 1982) ("Preponderance of the evidence" means the greater weight of evidence. It is the evidence, which, when weighed with that opposed to it, has more convincing force and is more probably true and accurate. If, upon any issue in the case, the evidence appears to be equally balanced, or if it cannot be said upon which side it weighs heavier, then plaintiff has not met his or her burden of proof." [Citations omitted.]). Moreover, there is a presumption of regularity which attaches to the official acts of public officers, see P. Francini & Co., Inc. v. United States, 2 Cl. Ct. 7, 11 (1983), which means that, for the purposes of this appeal, the Government's description of the GFM on the Print Order as consisting of 29 pages of camera copy and 91 negatives, is presumed to be accurate and correct; i.e, it reflects what the SSA actually supplied the Appellant to produce the Disability Book. To overcome this presumption and to prevail on its claim, the Appellant was required to submit sufficient proof to show that, contrary to the Print Order count, it was "more likely . . . true than not true" that the GFM it received consisted of 30 pieces of camera copy and 89 negatives. However, the Contractor has not done so. The Appellant's evidence in support of its claim consists entirely of Jones' hearing testimony, which, as previously noted, essentially repeated his letter of August 21, 1992 (R4 File, Tab H),30 and the job jacket it created when it received the Print Order (App. Exh. No. 1). In substance, the Contractor's proof amounts to little more than: (1) Jones' opinion that the visual discrepancies between the letters "h" and "y" in the words "anencephaly" and "trisomy," respectively, which were broken in the camera copy for page 97 of the first printing of the Disability Book, but were clear and crisp in the negative for page 9, see Tr. 69-72, 74-78, 79, 80, 82, 96-97; Jt. Exh. Nos. 1 and 2, demonstrated conclusively that the negative could not have been made from the camera copy, see Tr. 74-75, 77-78, 114-15; and (2) his assertion, in effect, that the Appellant's records showing the receipt of 30 pieces of camera copy, not 29, could not possibly be wrong, see Tr. 43, 48, 50, 57, 84-86, 94; App. Exh. No. 1. In the Board's view, this proof is insufficient to defeat the Respondent's countervailing evidence tending to show that: (1) there were "more similarities than differences" between the negative used for page 9 and the camera copy for page 97 in the first printing of the Disability Book;31 and (2) something commonplace in the production process, like dust or dirt on the photocopier which made the camera copy, or on the film during platemaking, especially if the camera copy for page 9 was photographed first, could have caused the visual differences between the letters "h" and "y" on the negative and the camera copy, see Tr. 156, 171-72, 174-75, 177-78. Indeed, the fact that the Appellant and GPO agree that "overlapping" was responsible for creating the negative for page 9 from the camera copy for page 97, and only differ with respect to the place where the error occurred,32 just tells the Board that both parties are, to some extent, confusing speculation with proof. The point is, however, that the presumption of regularity, which favors the Government in this case, cannot be overcome by inferences or speculation. See Gregory Lumber Co., Inc. v. United States, 11 Cl. Ct. 489, 501 (1986), aff'd, 831 F.2d 305 (Fed. Cir. 1987), cert. denied, 484 U.S. 1061, 108 S.Ct. 1016, 98 L.Ed.2d 982 (1988); rehearing denied, 485 U.S. 1015, 108 S.Ct. 1490, 99 L.Ed.2d 717 (1988). See also Contract Custom Drapery Service v. United States, 6 Cl. Ct. 811, 817 (1984); American General Leasing v. United States, 218 Ct. Cl. 367, 587 F.2d 53, 59 (Ct. Cl. 1978); Knotts v. United States, 121 F.Supp. 630, 631 (Ct. Cl. 1954); Keno and Sons Construction Co., ENG BCA No. 5837, 95-2 BCA ¶ 27,687, at 138,053 (Government claim). Likewise, suspicions and innuendo are no substitute for hard facts, and are insufficient to amount to proof by a preponderance of the evidence. See CACI, Inc.-Federal v. United States, 719 F.2d 1567, 1582 (Fed. Cir. 1983); Zenovia Bryant v. St. Helena Parish School Board, et al., 561 F.Supp. 239, 245 (M.D. La. 1983). In so many words, the presumption of regularity attaching to the Print Order's description of the GFM had to be offset by factual evidence from the Appellant explaining to the Board's satisfaction why its job jacket was correct, as alleged, and the Print Order was wrong. Such proof from the Contractor is not in the record. Consequently, the Board finds it necessary to repeat what it said in dismissing the identical assertion made by the contractor in Custom Printing Co., namely: The single disputed fact in the case is whether or not Appellant was furnished the correct camera copy for the original printing. Appellant argues that it must have received defective copy from [Respondent], because its own procedures for handling copy were so exacting it could not have caused the error. We are not [persuaded] by this argument. See Custom Printing Co., GPO BCA 10-87 (May 10, 1988), slip op. at 12, 1988 WL 363328. Stated otherwise, since the Respondent's explanation about what happened to cause the error is just as plausible as the Appellant's, the evidence of record is "equally balanced," and thus, it can not be said that the Contractor has sustained its burden of proof by a preponderance of the evidence. See Swanson Printing Co., supra, slip op. at 22, n. 34; Fry Communications, supra, slip op. at 31-32. Accord Joyce C. Smith v. United States, supra, 557 F.Supp. at 51; Keno and Sons Construction Co., supra, 95-2 BCA at 138,052-53. On the other hand, there was clearly a mistake committed here, and it was made by the Appellant. In that regard, the Contractor had the burden of proving that the GFM was not suitable for its intended purpose in this case; i.e., that the GFM was inappropriate for use in the process of manufacturing the Disability Book. See Web Business Forms, Inc., GPO BCA 31-89 (July 22, 1994), slip op. at 13-14, 1995 WL 488523; Printing Unlimited, GPO BCA 21-90 (November 30, 1993), slip op. at 18, 1993 WL 516844; Custom Printing Co., supra, slip op. at 13. Accord Topkis Brothers Co. v. United States, 155 Ct. Cl. 648, 297 F.2d 536 (1961); Thompson Ramo Wooldridge, Inc. v. United States, 175 Ct. Cl. 527, 361 F.2d 222 (1966); Bogue Electric Manufacturing Co., ASBCA No. 25184, 86-2 BCA ¶ 18,925; Space Age Engineering, Inc., ASBCA Nos. 25761, 25982, 26020, 26381, 28346, 86-1 BCA ¶ 18,611; C.M. Moore Division, K.S.H., Inc., PSBCA No. 1131, 85-2 BCA ¶ 18,110. As a rule, if a contractor can show that the GFM it receives is defective and not suitable (in this case, because it included an erroneous piece of camera copy), then compensation for its extra work would be warranted. Cf. Printing Unlimited, supra, slip op. at 20-21 (claim denied where the Board's own inspection of the GFM indicated that the mylar materials were clean and clear enough to produce readable proofs with a reasonable amount of effort from the contractor); Custom Printing Co., supra, slip op. at 12-13 (no proof that the contractor was furnished defective camera copy for the original printing). Also cf. AAA Engineering & Drafting, Inc., ASBCA No. 24872, 85-2 BCA ¶ 17,970, at 90,101 (despite a contractor's claim to the contrary, there was no indication that the Government failed to furnish the amount of reproducible copy needed to perform a technical order-writing contract); Space Age Engineering, Inc., supra, 86-1 BCA at 93,464 (no evidence that the Government's computer printouts were unsuitable for use). However, this is not true where a contractor fails to give timely notice of the defect to the Government and thus deprives the Contracting Officer of a chance to rectify the problem. See Web Business Forms, Inc., supra, slip op. at 13. Accord Landscape Pavers, Ltd., ASBCA No. 47773, 96-2 BCA ¶ 28,441, at 142,090 (no recovery for relocation of valves because the contractor failed to notify the project engineer once the problem was discovered and await his direction); Service Engineering Co., ASBCA No. 42139, 96-1 BCA ¶ 28,012, at 139,883-84 (the repair of GFM was not compensable because the contractor did not inspect the equipment upon receipt and therefore could not prove that it was defective when the Government turned it over); Logicon, Inc., ASBCA No. 39683, 90-2 BCA ¶ 22,786, at 114,444 (contractor not entitled to an equitable adjustment for the cost of dissembling and inspecting GFM because the contract required inspection and notice to the contracting officer if the equipment was not suitable for its intend use. Citing Structural Systems Technology, Inc., ASBCA No. 36950, 89-2 BCA ¶ 21,693). See also JGB Enterprises, Inc., supra, 96-2 BCA at 142,309 (a contractor was not entitled to an equitable adjustment for its efforts to correct admittedly defective specifications, because it undertook these efforts without giving the Government notice or seeking Government approval of its actions; i.e., the contractor was, in effect, a volunteer). In the Board's view, the Appellant cannot escape the consequences of its admission that although the GFM count in its own records differed from the information on the Print Order, it did not bother to call GPO's attention to the difference because, in its opinion, the discrepancy was "commonplace" and too minor. See R4 File, Tab H; Tr. 44. As previously indicated, the contract contains GPO's standard "Government Furnished Property" clause, which among other things, required the Contractor ". . . to examine the furnished property immediately upon receipt[,]" and notify the Contracting Officer "prior to performance" of any "disagreement with the description or the requirements as presented in the specifications (or print order/GPO Form 2511), . . .". See GPO Contract Terms, Contract Clauses, ¶ 7. A contractor's duty to notify GPO under the circumstances described in the above clause is an affirmative one. See Web Business Forms, Inc., supra, slip op. at 13; Custom Printing Co., supra, slip op. at 12. Consequently, where, as here, a contractor claims that the GFM is either inadequate or unsuitable, it has the burden of proving that it notified the Respondent of its problems in accordance with the terms of "Government Furnished Property" clause; i.e., "prior to the performance of any work." See Web Business Forms, Inc., supra, slip op. at 13-14; Printing Unlimited, supra, slip op. at 13; Custom Printing Co., supra, slip op. 12. Regardless of the Appellant's reasons, it candidly admits that even though its inspection of the GFM disclosed a discrepancy between the number of pieces of camera copy and negatives described on the Print Order and the number it says it received, it never contacted either GPO or the SSA "prior to performance" for instructions on how to proceed, as required by the contract. Therefore, the Respondent cannot be held liable for the Contractor's failure to comply with the terms of their agreement. See Web Business Forms, Inc., supra, slip op. at 15; Printing Unlimited, supra, slip op. at 14; Custom Printing Co., supra, slip op. 13. Accord Landscape Pavers, Ltd., supra, 96-2 BCA at 142,090; Logicon, Inc., supra, 90-2 BCA at 114,444. In the final analysis, the Appellant's attempt to shift responsibility for its performance failures to the Government is unavailing. On this record, the Contractor's position with respect to the allegedly defective GFM is essentially nothing more than a res ipsa loquitur argument, which is no substitute for hard proof and is not favored by contract appeals boards, in any event. See Professional Printing of Kansas, Inc., GPO BCA 2-93 (May 19, 1995), slip op. at 62, 1995 WL 488488; Vanier Graphics, Inc., GPO BCA 12-92 (May 17, 1994), slip op. at 40-41, n. 32, 1994 WL 275102. Accord Cannon Structures, Inc., AGBCA No. 90-207-1, 93-3 BCA ¶ 26,059, at 129,541; ABM/Ansley Business Materials v. General Services Administration, GSBCA No. 9367, 93-1 BCA ¶ 25,246, at 125,749-50; Santa Barbara Research Center, ASBCA 27831, 88-3 BCA ¶ 21,098, at 106,516. Perhaps the Respondent is correct when it says that the precise reason for the erroneous page 9 in the original printing of the Disability Book may always remain a mystery. See Res. Brf., at 5. However, the Board has stated that where the parties' dispute concerns the GFM supplied to the contractor, or some aspect of the manufacturing process: The question is purely technical in nature and, pursuant to the terms of the contract concerning the rights of inspection, is reserved to the Government to determine. The exercise of such authority by the Government is usually made by the [Contracting Officer], . . . and will not be overturned by the Board except upon clear and convincing evidence that it was fraudulently made or that the discretion was clearly erroneous or exercised in an arbitrary or capricious way. See The Printery, Inc., GPO BCA 14-87 (July 7, 1989), slip op. at 3-4, 1989 WL 384983. See also P. Francini & Co., Inc. v. United States, supra, 2 Cl. Ct. at 11 (". . . [T]he prevailing view among courts [is] that determinations in procurement matters should ordinarily be left to the discretion of administrative officials exercising procurement authority, and that the proper scope of judicial review over administrative determinations in the procurement field is relatively narrow. Court decisions have indicated that judicial review in such cases should be limited to determining whether the administrative action under attack (1) lacked any rational basis . . . or (2) involved a clear and prejudicial violation of an applicable statute or regulation . . . [Citations omitted.]). Accordingly, considering the record as a whole, the Board concludes that the Appellant has failed to sustain its burden of proof on the defective GFM issue, and thus its equitable adjustment claim of $17,050.00 under Print Order 60037 is unsupported. See Web Business Forms, Inc., supra, slip op. at 15; Printing Unlimited, supra, slip op. at 15; Custom Printing Co., supra, slip op. 13. B. The Appellant has not established any legal basis for application of the "spoliation" doctrine in this case. That is, the Contractor has not shown that the SSA purposely destroyed the allegedly defective camera copy after the page 9 problem surfaced, thereby depriving the Contractor of the evidence it needed to prove its claim, or that the customer agency, either alone or in concert with the Contracting Officer, otherwise acted in bad faith. The Appellant's second contention, that the most critical piece of evidence in this case-the camera copy for the erroneous page 9 supplied by the SSA for the first printing of the Disability Book-was deliberately destroyed by the customer agency after it became aware of its mistake, is easily disposed of.33 The Appellant accuses the SSA of "sabotage," see R4 File, Tab F, but what it is alluding to, in legal parlance, is "spoliation," an offshoot of the "bad faith" doctrine. "Spoliation," which is akin to obstruction of justice, refers to the intentional destruction of evidence, which, if established, allows a fact finder to draw an inference that evidence destroyed was unfavorable to the p arty responsible for its destruction. See BLACK'S LAW DICTIONARY 1401 (6th ed. 1990) (hereinafter BLACK'S).34 The contours of the doctrine were recently described by the Federal Circuit in Hardwick Brothers Co. v. United States: It is a well-established doctrine that a party's destruction or "spoliation" of evidence can give rise to an inference that the destroyed evidence would have been damaging to that party's case. 31A C.J.S. Evidence § 152 (1964). The rationale is a presumption that a party does not withhold information from a tribunal which is beneficial to its case. Consequently, courts may draw an inference where it can be shown that the destroyed evidence was critical or controlling on an issue of liability and the evidence was destroyed in bad faith. Eaton Corp. v. Appliance Valves Corp., 790 F.2d 874, 878 (Fed. Cir. 1986) (an inference on an issue of liability not made by the court where destroyed documents were produced earlier in discovery and plaintiff was unable to demonstrate the probative value of the destroyed evidence). In short, courts will not draw this negative inference if the evidence was unintentionally or even negligently destroyed or the destruction can be otherwise satisfactorily explained. INA Aviation Corp. v. United States, 468 F.Supp. 695, 700 (E.D.N.Y.), aff'd, 610 F.2d 806(2d Cir. 1979) (trial court properly granted summary judgment dismissing a wrongful death action under the Federal Tort Claims Act where the government destroyed weather logs in accordance with established administrative procedure). A showing of bad faith is also an element of this doctrine. Eaton Corp., 790 F.2d at 878. What constitutes bad faith depends on the circumstances. Coats v. Johnson & Johnson, 756 F.2d 524, 551 (7th Cir. 1985). For example, the Fifth Circuit has held that mere negligence does not meet the requisite bad faith requirement for purposes of raising an adverse inference. Vick v. Texas Employment Comm., 514 F.2d 734, 737 (5th Cir. 1975). In Vick, the plaintiff filed a Title VII sexual discrimination action against the Texas State Employment Commission ("TEC"). Before trial, in accordance with its established regulations concerning inactive matters, TEC destroyed records concerning the plaintiff. The Fifth Circuit held that TEC's destruction was mere negligence and not tantamount to bad faith. Thus, it said that no adverse inference against TEC was justified. In view of the holding in Vick, it is clear that more than mere negligence is required to give rise to the element of bad faith. See also INA Aviation, 468 F.Supp. at 700; Coates, 756 F.2d at 551 (destruction of relevant disciplinary letters by manager of labor relations did not meet the requisite bad faith requirement for purposes of raising an adverse inference where the manager was unaware of the pending litigation). See Hardwick Brothers Co. v. United States, 36 Fed. Cl. 347, 416-17 (1996). The above excerpt from the court's opinion tells us that the party claiming the benefit of the "spoliation" doctrine must prove two elements: (1) that critical or controlling evidence on issue of liability was destroyed by a party;35 and (2) the destruction was in bad faith. As the Board has said on numerous occasions, an allegation of bad faith must be established by "well-nigh irrefragable proof" because there is a strong presumption that Government officials properly and honestly carry out their functions.36 See e.g. Rose Printing, Inc., supra, slip op. at 25; Big Red Enterprises, GPO BCA 07-93 (August 10, 1996), slip op. at 36-37, 1996 GPOBCA LEXIS 26; MPE Business Forms, Inc., GPO BCA 10-95 (August 16, 1996), slip op. at 27-28, n. 34, 1996 GPOBCA LEXIS 31; New South Press & Assoc., Inc., GPO BCA 14-92 (January 31, 1996), slip op. at 36, 1996 WL 112555; Asa L. Shipman's Sons, Ltd., GPO BCA 06-95 (August 29, 1995), slip op. at 12, n. 16, 1995 WL 818784, reconsid. denied, 1996 WL _____ (February 13, 1996); Professional Printing of Kansas, Inc., supra, slip op. at 43, n. 58; Universal Printing Co., supra, slip op. at 24, n. 24; B. P. Printing and Office Supplies, GPO BCA 14-91 (August 10, 1992), slip op. at 16, 1992 WL 382917; Stephenson, Inc., supra, slip op. at 54; The Standard Register Co., GPO BCA 4-86 (October 28, 1987), slip op. at 12-13, 1987 WL 228972. Accord Claude R. Smith v. United States, 34 Fed. Cl. 313, 321-22 (1995); Brill Brothers, Inc., ASBCA No. 42573, 94-1 BCA ¶ 26,352; Karpak Data and Design, IBCA No. 2944, 93-1 BCA ¶ 25,360; Local Contractors, Inc., ASBCA No. 37108, 92-1 BCA ¶ 24,491. The key to such evidence is a showing of specific intent on the part of the Government to injure the contractor. See Rose Printing, Inc., supra, slip op. at 26; Big Red Enterprises, supra, slip op. at 37; MPE Business Forms, Inc., supra, slip op. at 27-28, n. 34; New South Press & Assoc., Inc., supra, slip op. at 36, n. 52; Stephenson, Inc., supra, slip op. at 54. Accord Claude R. Smith v. United States, supra, 34 Fed. Cl. at 322; Kalvar Corp. v. United States, 211 Ct. Cl. 192, 199, 543 F.2d 1298, 1302 (1976), cert. denied, 434 U.S. 830, 98 S.Ct. 112, 54 L.Ed.2d. 89. Assuming arguendo, that the Appellant was furnished an erroneous piece of camera copy for page 9 of the Disability Book-which must be considered a possibility in light of the statement that the "[c]amera copy for page 9 was not returned to SSA" on the customer agency's "Notice of Quality Defects," dated August 10, 1992 (R4 File, Tab D)-and that the camera copy was critical or controlling evidence on the issue of liability, the fact of the matter is the "spoliation" doctrine does not apply in this case. First, to the extent that Hardwick Brothers Co. refers to the destruction of evidence by a party, the simple fact is the SSA is not a party to this dispute; i.e., only the Appellant and GPO were the parties to the contract in question. See GPO Contract Terms, Contract Clauses, ¶ 1 (Contractual Responsibility).37 See also Swanson Printing Co., supra, slip op. at 33-34; GraphicData, Inc., supra, slip op. at 60-61; B & B Reproductions, supra, slip op. at 37-38 (citing PPR, Chap. I, Sec. 2 (Definition of "Contracting Officer), Sec. 3, ¶ 2(d) (Procurement Authority- Contracting Officers); RD Printing Associates, Inc., GPO BCA 2-92 (December 16, 1992), slip op. at 10, n. 11, 1992 WL 516088. Second, even if the camera copy was destroyed by the customer agency, there is no "irrefragable proof" that the destruction was in bad faith. At most, the evidence, such as it is, leads only to the conclusion that the destruction would have been inadvertent, negligent, or perhaps in the ordinary course of business, none of which are grounds for application of the "spoliation" doctrine. See Hardwick Brothers Co. v. United States, supra, 36 Fed. Cl. at 416-17; Coates v. Johnson & Johnson, supra, 756 F.2d at 551. And certainly, there is absolutely no evidence which would show that GPO by itself, or in concert with the SSA, specifically set out to harm the Appellant. See Rose Printing, Inc., supra, slip op. at 26; Big Red Enterprises, supra, slip op. at 37; Asa L. Shipman's Sons, Ltd., supra, slip op. at 12, fn 16; Stephenson, Inc., supra, slip op. at 57. Indeed, such a conclusion would be farcical in face of the Respondent's offer to take a second look at the Appellant's claim, and the Contractor's failure to follow the Contracting Officer's instructions to return the negatives to GPO for that purpose, but sending them to the SSA instead (R4 File, Tab K, at 1). Accordingly, for these reasons, the Board concludes that the Appellant's "spoliation" claim is without merit, and should be dismissed. ORDER Considering the record as a whole, the Board finds and concludes that: (1) the Appellant has not met its burden of proof with respect to showing that the GFM supplied by the SSA for the initial printing of the Disability Book erroneously included a piece of camera copy for page 9 that duplicated page 97, instead of a negative from the previous printing; (2) under the terms of the contract, the Contractor was obligated to notify GPO, prior to the performance of any work on the Disability Book, of any discrepancy between the GFM description on the Print Order and the material received from the customer agency, and it failed to do so; and (3) the Appellant has not established any legal basis for application of the "spoliation" doctrine in this case, or otherwise shown the SSA, either alone or in concert with the Respondent, acted in bad faith. THEREFORE, the Contracting Officer's final decision rejecting the Appellant's equitable adjustment claim in the amount of $17,050.00 for reprinting the Disability Book is hereby AFFIRMED, and the appeal is DENIED. It is so Ordered. August 8, 1997 STUART M. FOSS Administrative Judge _______________ 1 The Contracting Officer's appeal file was assembled pursuant to Rule 4 of the Board's Rules of Practice and Procedure, and delivered to the Board on February 16, 1993. See GPO Instruction 110.12, Subject: Board of Contract Appeals Rules of Practice and Procedure, dated September 17, 1984, Rule 4(a) (Board Rules). It will be referred to hereafter as the R4 File, with an appropriate tab letter also indicated. The R4 File contains eleven (11) documents, identified as Tabs A-K. See Report of Prehearing Telephone Conference, dated July 9, 1993, at 2 (hereinafter RPTC). Furthermore, additional documentary evidence was introduced by the parties at the hearing in this matter. The Appellant's exhibits, the Respondent's exhibits, and the parties' joint exhibits shall be cited as "App. Exh. No.," "Res. Exh. No.," and "Jt. Exh. No.," respectively, followed by an appropriate number. 2 The Appellant's brief, entitled "Post-Hearing Memorandum," was submitted to the Board on October 4, 1993, and will be referred to hereinafter as "App. Brf.," with an appropriate page citation thereafter. The Respondent's brief, entitled "Response of GPO to Appellant's Post-Hearing Reply Memorandum," was filed with the Board on October 26, 1993, and will be cited as "Res. Brf.," with an appropriate page number thereafter. 3 The court reporter's hearing transcript shall be referred to hereinafter as "Tr.," followed by a colon and an appropriate page number. 4 The contract anticipated that orders for work could be issued to the contractor directly by the SSA. Under GPO's regulations, this sort of arrangement is called a "direct-deal term contract." See Printing Procurement Regulation, GPO Publication 305.3 (Rev. 10-90), Chap. XII, Sec. 1, ¶ 2 (hereinafter PPR). As defined in the regulations, a "direct-deal term contract" is one which: ". . . allow[s] the customer agency to place print orders (GPO Form 2511) directly with contractors rather than routing them through the GPO for placement." See GPO Agency Procedural Handbook, GPO Publication 305.1, dated March 1987, Sec. IV, ¶ 1, at 8 (hereinafter GPO Handbook). The purpose of this method of contract administration is: ". . . to ensure that agency printing needs are met in the most effective and efficient manner possible." Id. It should be noted, however, that an agency's direct-deal authority: ". . . extends only to the placement of print orders and to the transmission of copy and proofs. . . . All other authority rests with GPO's Contracting Officers." See GPO Handbook, Sec. IV, ¶ 2, at 9. [Emphasis added.] See also Swanson Printing Co., GPO BCA 27-94 and 27A-94 (November 18, 1996), slip op. at 4, n. 9, 1996 WL _____; Graphicdata, Inc., GPO BCA 35-94 (June 14, 1996), slip op. at 60-61, n. 54, 1996 GPOLEXIS 28; B & B Reproductions, GPO BCA 09-89 (June 30, 1995), slip op. at 3, n. 5, 1995 WL 488447; McDonald & Eudy Printers, Inc., GPO BCA 40-92 (January 31, 1994), slip op. at 3, n. 4, 1994 WL 275096; Shepard Printing, GPO BCA 37-92 (January 28, 1994), slip op. at 2, n. 4, 1994 WL 275077. 5 The clause defines "supplies" as including, inter alia, "raw materials, components, intermediate assemblies, end products, and supplies by lot." See GPO Contract Terms, Contract Clauses, ¶ 14(a). 6 The record testimony regarding the camera copy and negatives refers only to the GFM for the text of the Disability Book, and not the covers. See Tr. 43, 94. The camera copy in question was assembled by the SSA from a mix of previously printed pages, Xerox copies of such pages, and some laser output pages. See Tr. 61-62, 87, 131, 182-83; Res. Exh. No. 1; Jt. Exh. No. 2. The record also indicates that camera copy was provided only for pages which were changed from the previous printing of the Disability Book, while negatives were supplied for unchanged pages. See Tr. 88-90, 120-21; Res. Exh. No. 1. Furthermore, at the hearing, Ronald A. Jones, the Appellant's Director of Quality Improvement, testified that the usual procedure is to check the GFM against the sequence sheet accompanying the Print Order to make sure that the pages and blanks are assembled in the correct order because sometimes the camera copy and negatives are not. See Tr. 27, 43-44, 66, 118-19. See also Tr. 6, 20 (testimony of Lawrence J. Huff, the Contractor's sales chief). There is nothing in the record to indicate that the GFM in this case was handled any differently. 7 Jones testified that in the event of GFM problems, such as a differences between the number of pieces of camera copy and negatives indicated on the Print Order and the number received, as here, or damaged material, the production planner assigned to the job is the person who normally calls GPO or the customer agency to verify the count and resolve any problems. See Tr. 44. He also testified that in this case, the Appellant searched Ewing's personal notes and ". . . there wasn't any notation that the Government was called or the agency was called." Id. 8 Given the nature of its complaint, the SSA's categorizing the defect under printing attribute P-5 appears to be an innocent error. That attribute deals with defects in text and illustration image position. See QATAP, at 11. Rather, as GPO personnel immediately recognized, the real problem concerned a finishing attribute defect either for wrong pagination (F-16) or loss of information (F-17) (R4 File, Tabs E , F and K). Id., at 44. See also RPTC, at 2. Either one of these defects is considered critical under QATAP. See QATAP, at 44. 9 Although not spelled out in the record, Scott's, Seaborn's, and Nowalk's job titles and office locations are "capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned," in this case GPO Telephone Directory, GPO Pub. 865.2 (December 1989), and GPO Telephone Directory, GPO Pub. 865.2 (August 1994), and thus judicial notice by the Board is appropriate. FED. R. EVID. 201(b)(2). See Questar Printing, Inc., GPO BCA 19-94 (June 12, 1997), slip op. at 20, n. 33, 1997 WL _____ ; Graphics Image, Inc., GPO BCA 13-92 (August 31, 1992), slip op. at 15-16, n. 17, 1992 WL 487875. Accord Powerline Oil Co., EBCA Nos. 278, 280-83, 290, 296, 300-05, 307, 321, 91-2 BCA ¶ 23,789, at 119,146 (citing American Indians Residing on Maricopa-Ak Chin Reservation v. United States, 667 F.2d 980, 999 (Ct. Cl. 1981), cert. denied, 456 U.S. 989 (1982)). 10 Robert Schwenk, Superintendent of the Electronic Photocomposition Division, testified as the Respondent's expert witness at the hearing. Among other reasons, Schwenk thought that the erroneous page 9 had been created from the camera copy for page 97 by the process of "overlapping," which occurs in the photocomposition process for reasons of economy. Tr. 150-51, 162. See also R4 File, Tab F. As he explained after examining the negative for page 9 and the camera copy for page 97 (Jt. Exh. Nos. 1 and 2) of the original printing of the Disability Book: ". . . [T]here are a lot of things that happen when you [shoot] line art or any kind of art on camera to make a piece of film, you never shoot one because is too time consuming to shoot them one at a time, so you gang them up. When you gang them up you have a stack, you lay the stack down in a sequence and you also overlap these to save film. Film is a very expensive product in this business. The first thing that you look at on this negative is there is a crop mark up here that is partly cutoff, but it has not been [effaced], so it obviously has been covered by something. At the same time you look, the seven is missing from the bottom. So it has been covered by something. More than likely it was covered when this overlapping piece of camera copy was laid down. [¶] The second reason for overlapping these is the cameraman doesn't have to pick them up one at a time. He now just scopes them together, takes the top row and lays it on top of the bottom and he is done with them. So it is a common practice to overlap camera copy. So when they photograph this piece of film, on this ganged up section, this and this seven at the bottom were [obliterated] by the overlapping piece of camera copy." See Tr. 150-51. Indeed, Schwenk thought that other identifiers confirmed his opinion, especially the fact that the text on both the negative and the piece of camera copy was skewed. See Tr. 151-52. 11 Res. Exh. No. 2 is the camera copy if page 9 which the Appellant received for the reprint. See Tr. 89-90. It seems clear that Res. Exh. No. 2 is a page from a previous printing of the Disability Book, and that there are no changes in the text. See Tr. 90-91. 12 The record indicates that a day earlier, August 20, 1992, the Contractor had telephoned GPO and had agreed to reprint the Disability Book, suggesting August 27, 1992 as the new delivery date (R4 File, Tab F). The record also shows that the Contractor only made a partial shipment on August 27, 1992, with delivery of the balance being promised for September 8, 1992 (R4 File, Tabs I and J). In fact, the reprinted job was not shipped complete until September 10, 1992 (R4 File, Tab J). See Tr. 13-14. 13 For the reprint the Government sent the Appellant new camera copy for page 9. Tr. 46, 52, 54; Res. Exh. No. 2. See note 11 supra. 14 At the hearing, Jones testified that the reprinting of the Disability Book cost about $30.00 less than the original printing because the Appellant did not have to remake all of the negatives. See Tr. 83-84. However, in its "Post-Hearing Memorandum" the Appellant revised its savings estimate to $100.00. See App. Brf, at 3. Thus, the total amount of the Contractor's claim before the Board is $17,050.00. 15 Jones' testimony at the hearing essentially tracked his letter of August 21, 1992. Thus, on the witness stand he insisted that the Appellant received a separate piece of camera copy for page 9 of the original printing, and not a negative, as the Respondent contends. See Tr. 50, 57, 84-86. Jones thought that no other conclusion could be drawn from the fact that while 30 pieces of camera copy were included in the GFM for the original printing of the Disability Book, only 29 pieces were sent to the Contractor for the reprint. See Tr. 43, 48, 84, 86, 94. Although Jones recognized that the Appellant's records differed from the Print Order, he said that because the discrepancy was so minor the Contractor did not bring it to the Government's attention. See Tr. 44. Jones also stated that because the Disability Book consisted of 124 pages of text, 5 blank pages, and 2 covers, a total of 119 negatives were required to produce the book, but the number of pieces of camera copy (29) and the negatives (89) indicated on the Print Order when added together fell short of that total, whereas the number shown on the Appellant's job jacket (30 pieces of camera copy and 89 negatives) added up precisely to the number of negatives needed. See Tr. 45-46, 48. Furthermore, Jones denied that the Appellant had created page 9 in the original printing from the camera copy for page 97, and said that he found no evidence from his own investigation that one of the Contractor's employees had in fact done so. See Tr. 78, 84-86. When asked to compare the negative of page 9 in the first printing of the Disability Book (Jt. Exh. No. 1) with the original camera copy for page 97 (Jt. Exh. No. 2), Jones noted that they were not identical, particularly with regard to the letter "h" in the word "anencephaly," and the "y" in the word "trisomy," which were broken in the camera copy, but not in the negative. See Tr. 69-72, 76, 79, 80, 82, 96-97. Jones asserted that if the camera copy had been used to make the negative, then the same character imperfections would have appeared on both pages 9 and 97 in the first printing of the Disability Book, but only page 97 had those broken letters. See Tr. 74-75, 77-78, 114-15. Indeed, on cross-examination, Jones was asked to examine enlargements of certain portions of Jt. Exh Nos. 1 and 2, see Res. Exh. Nos. 4, 5, 6, and 7, and while he admitted the various characters and numbers were not identical, especially the L- shaped "crop mark" on Res. Exh. No. 6, and that a latent image of page 98 appeared on the backside of camera copy for page 97, he said that he could draw no firm conclusions, one way or the other, that the negatives were made from the camera copy. See Tr. 100-111, 113. In summary, Jones said that while his comparison revealed "more similarities than differences" between the text copy on pages 9 and 97 of the original printing of the Disability Book, he was still convinced that the "[camera] copy [for page 97] was not used to make the negative [of page 9][,]" primarily because of the differences between the letters "h" and "y" in the words "anencephaly" and "trisomy," respectively, on those pages. See Tr. 114-15. 16 The record indicates that the Appellant returned the GFM to Nowalk at GPO on October 13, 1992. See Tr. 58-60; App. Exh. No. 2. At the hearing, Jones testified that he prepared the GFM package for shipment, and that it included the negatives for pages 9 and 97, and the camera copy for page 97. See Tr. 60, 87, 89; Res. Exh. No. 1. Consequently, there seems to be a difference between Jones' testimony, and the Contracting Officer's statement that he (Jones) had sent the negatives to the SSA. However, in light of the Board's disposition of this matter, it is unnecessary to resolve the discrepancy. 17 As previously noted, Schwenk, the Respondent's expert witness, testified at the hearing that the negative for page 9 of the original printing had been created from the camera copy for page 97 by the process of "overlapping." See note 10 supra. With regard to the letters "h" and "y," he said that the reason why they were broken on page 97 of the original book but filled in on page 9 was most likely due something which occurred in the platemaking process. See Tr. 156. As Schwenk explained: ". . . [T]here is a small area in each of those two characters that is blocked. So it does not show up in the print. So it was either missing from the plate or [obliterated] on the negatives. All it takes is a speck of dust or dirt on the piece of film in the platemaking process, when you transfer the image from the film to the plate, that in the clear areas can [obliterate] the information [on] the plate. And this [is] common, [it] happens all the time in printing." See Tr. 156; Jt. Exh. No. 3. He also stated, by way of contrast, that if copies were made on a photocopier, broken lines can be filled in because that is one of the properties of xerographic toner. See 171-72, 177. Similarly, Schwenk said that the order in which the negatives were made could have been responsible for the differences in the characters between pages 9 and 97 of the original printing; i.e., if page 9 was photographed first and then specks of dirt and dust caused the imperfections in the "h" and "y" on page 97. See Tr. 174-75, 177-78. In the final analysis, however, from his examination of the GFM, Schwenk concluded that the negative for page 9 was made from the camera copy supplied for page 97. See Tr. 157; Jt. Exh. Nos. 1 and 2. (It should be noted that there was also some testimony by Schwenk regarding the letter "y" in the word "hypogammaglobulinemia," in which he ascribed the differences between the camera copy and the negative to the properties of lithographic film. See Tr. 154; Res. Exh. No. 4. His testimony was based on his assumption that the process camera method was used to make the negatives. See Tr. 168-69, 180-81. In fact, according to Jones, the Appellant used the opti-copy process to create the negatives. See Tr. 186-87.) 18 As formulated at the hearing, the Board saw those questions as: (a) were the camera copies and film negatives which the SSA supplied to the Appellant accurate, complete and correct as to number; (b) did the Appellant receive from the SSA a camera copy or a film negative for the production of page 9 of the Disability Book; and (c) was the first production run of the Disability Book properly rejected by the Contracting Officer for a loss of information [with respect to] page 9? See RPTC, at 6. 19 The Contractor suggests two likely scenarios for the error. First, in the process of making the numerous photocopies which were utilized to create the paste up, an SSA employee made a photocopy of page 97, and later numbered it page 9 in a separate process. Or, the error could have occurred when another sheet covered the number 7 on page 97. See App. Brf., at 3. 20 The Appellant also observes that there was no "correct" negative for page 9, and that the only negative it received for that page for the reprint was the erroneous one it had made for the original printing. Consequently, the Contractor had to contact GPO and have a copy of the correct page 9 sent to it. See App. Brf., at 3. The Respondent, on the other hand, fails to see how the fact that the GFM for the reprint did not contain a piece of camera copy for page 9 supports the Appellant's claim. It states that the explanation is simple-because there were no changes to page 9, no camera copy for that page ever existed. See Res. Brf., at 4, n. 1 (citing Tr. 90). Thus, since the original negative was erroneous, a page torn from a previous edition of the Disability Book was used for the reprint. Id.; Res. Exh. No. 2. 21 Prior to its brief, the Appellant's "quality" argument has focused solely on the appearance of the letters "h" and "y" in these two words, respectively. See note 15 supra. However, in its brief, the Contractor for the first time also asserts that "[t]he condition of the camera copy boards themselves makes it clear to even an untrained eye that the preparation of this job was completed in a shoddy and unworkmanlike manner. It is not possible for the [G]overnment to argue that an error on their part was unlikely due to the care which they took to produce this product." See App. Brf., at 3. In the Board's view, this is a "straw" argument. There is nothing in the appeal record to indicate that the Respondent ever made such a claim. Indeed, as discussed infra, GPO's case is essentially technical in nature, and rests on two grounds: (a) the Appellant's inability to prove that the error was due to defective GFM; and (b) the Contractor's failure to comply with the "Government Furnished Property" clause of GPO Contract Terms. See Res. Brf., at 3 (citing GPO Contract Terms, Contract Clauses, ¶ 7). 22 See note 17 supra. 23 See note 14 supra. 24 The Respondent's reasoning is somewhat syllogistic: (a) camera copy was supplied only for pages with changes; (b) negatives were furnished for unchanged pages; (c) as acknowledged by the Appellant, page 9 was unchanged from the previous printing; and (d) therefore, the SSA must have sent a negative for page 9. See Res. Brf., at 3 (citing Tr. 90-91; Res. Exh. Nos. 1 and 2). 25 For some reason, the Respondent feels compelled to defend Schwenk's credentials as an expert in this matter, despite the fact that the Appellant has not challenged his qualifications, or accused Schwenk of bias even though he is a GPO employee. See Res. Brf., at 5. Suffice it to say that the Contractor raised no objection to Schwenk's being called as an expert witness, and indeed, agreed that his qualifications made him "an excellent expert witness." See Tr. 147. 26 The Respondent notes that even Jones had to admit that the negative used for page 9 in the first printing of the Disability Book and the camera copy for page 97 "contain more similarities than differences." See Res. Brf., at 5 (citing Tr. 115). See note 15 supra. 27 The Respondent flatly denies the Appellant's allegation that the SSA purposely destroyed the negative of page 9 which the Contractor needed to prove its case. See Res. Brf., at 4. 28 The Government asserts that the Contractor's failure to return the film negatives to GPO after reprinting the job, and sending them to the SSA instead, was also a critical mistake because it prevented the Contracting Officer from taking another look at the Disability Book to see if its claim was valid. See RPTC, at 4 (citing R4 File, Tab K). 29 The Board's decision is based on the following record: (a) the Appellant's Notice of Appeal, dated January 11, 1993; (b) the Appellant's Complaint, dated February 16, 1993; (c) the Respondent's Answer, dated March 16, 1993; (d) the R4 File; (e) the RPTC; (f) the transcript and documentary evidence presented at the hearing on August 4, 1993; and (g) the parties posthearing briefs. 30 See note 15 supra. 31 See notes 15 and 25 supra. 32 Thus, while the Respondent blames an unknown employee of the Appellant's for the error, see notes 10 and 17 supra, the Contractor points its finger at some unidentified SSA worker, see note 19 supra. 33 Under the terms of the contract, the Appellant was required to return the GFM to the Government as soon as it completed the first printing. See GPO Contract Terms, Contract Clauses, ¶ 10 (Return of Government Property). 34 The actual legal maxim is contra spoliatorem omnia praesumuntur, which translates as "everything most to his disadvantage is to be presumed against the destroyer (spoliator)." See BLACK'S 1401. 35 The Federal Circuit's description of the destroyed evidence as "critical or controlling on an issue of liability," clearly narrows the doctrine by limiting its application. Prior to Hardwick Brothers Co., "spoliation" only required proof of destruction and evidence of bad faith. See Eaton Corp. v. Appliance Valves Corp., supra, 790 F.2d at 878 (citing S.C. Johnson & Son, Inc. v. Louisville & Nashville Railroad Co., 695 F.2d 253, 258-59 (7th Cir. 1982); A.C. Becken Co. v. Gemex Corp., 314 F.2d 838, 841 (7th Cir. 1962), cert. denied, 375 U.S. 816, 84 S.Ct. 68, 11 L.Ed.2d 51 (1963)); Coates v. Johnson & Johnson, supra, 756 F.2d at 551. 36 "Irrefragable" proof simply means evidence which is incapable of being refuted; i.e., indisputable evidence. See Rose Printing, Inc., GPO BCA 32-95 (December 16, 1996), slip op. at 25, n. 26, 1996 GPOBCA LEXIS 34; Stephenson, Inc., GPO BCA 2-88 (December 20, 1991), slip op. at 54, 1991 WL 439274 (citing WEBSTER'S NEW WORLD DICTIONARY 714 (3d coll. ed. 1988). 37 The "Contractual Responsibility" clause of GPO Contract Terms provides: "Awards by GPO for printing, binding, and related services are the sole responsibility of GPO and not of its customer agencies. Modifications shall have no force or effect unless addressed before the fact to and subsequently confirmed in writing by the Contracting Officer. Failure to comply with this article may be cause for nonpayment of additional costs incurred or rejection of the order."