U.S. GOVERNMENT PRINTING OFFICE BOARD OF CONTRACT APPEALS STUART M. FOSS, Administrative Law Judge Appeal of STEPHENSON, INC. Docket No. GPO BCA 02-88 Jacket No. 185-894 & 185-895 Purchase Order 66028 December 20, 1991 DECISION AND ORDER This appeal, timely filed by Stephenson, Inc., 5731 General Washington Drive, Alexandria, VA 22312 (hereinafter called Appellant), is from the final decision, dated December 17, 1987, of Contracting Officer, Mr. William E. Flood (Contracting Officer) of the U.S. Government Printing Office, Washington, D.C. (hereinafter called Respondent or GPO) partially terminating its contract identified as Purchase Order 66028, 1/ dated July 23, 1987, Jacket No. 185-894 for default. The decision of the Contracting Officer was based on the Appellant's inability to deliver "an acceptable product within the schedule limitations" under the terms of the contract. 2/ For the reasons which follow, the decision of the Contracting Officer partially terminating the contract for default, is hereby affirmed (R4 File, Tab D). 3/ BACKGROUND The relevant facts in this appeal are not in dispute. The Appellant and GPO entered a contract on July 23, 1987, by means of Purchase Order 66028. Although the Purchase Order included two Jacket Numbers, only one -- Jacket No. 185-894 -- is involved in this appeal. Jacket No. 185-894 was a contract for the printing and binding of 20,000 copies of a USPS publication entitled "1987 WILDLIFE AMERICA, A Collection of Commemorative Stamps (WILDLIFE AMERICA)." According to the contract specifications, WILDLIFE AMERICA was a "60-page publication with a separate wraparound cover, Singer sewn, case-bound" (R4 File, Tab B, p. 1). The contract specifications also provided for a dust cover for each book (R4 File, Tab B, p. 1). As previously noted, among other terms and conditions, the contract was subject to the 1981 QATAP. In that regard, the specifications explicitly stated (in "Quality Assurance Levels and Standards") that the contractor would be held to "Level 1" for both printing and finishing attributes (R4 File, Tab B, p. 5). In addition, the specifications required the contractor to ship the books to the USPS' Philatelic Marketing Division in Kansas City, Missouri, by September 30, 1987 (R4 File, Tab B, p. 7). The Appellant submitted a bid of $102,720.00 to produce this publication and was awarded the contract (R4 File, Tabs C and D). 4/ The record reveals that the Appellant produced and shipped the books within the time frame established by the contract, but when they were received by the USPS' Kansas City facility it was discovered that 18,000 copies (of the 20,000 ordered) were defective. 5/ On October 3, 1987, Mr. Gordon C. Morison, Assistant Postmaster General, Philatelic Affairs Department, wrote to Mr. John J. Davin, his counterpart in the Procurement and Supply Department, and told him, in pertinent part: . . . [W]e found that all of the books are missing a critical four-page outer signature in the text section. . . . Those 20,000 books were to go on sale this month, priced at $24.95 each. They were to be marketed as Christmas gifts and were to be featured in various promotions being released this month, including our November/December mail order catalog, a special holiday gift catalog and through a Christmas gift direct mail campaign to major corporation executives. All promotional ads guaranteed delivery before Christmas. Shipments were to begin in October; anticipated revenue was $600,000 [?]. 6/ The new books are inferior and cannot be sold. And, since were are asking a premium price for these items, we will not deliver a patched product to purchasers. Therefore, since we will not be able to meet our delivery commitments of this product, we want to cancel this order and return the books to the contractor for destruction. . . . Due to these circumstances, promotional activity for this product has been brought to a halt, and the item is being deleted from our forthcoming mail order program. [Original emphasis]. (R4 File, Tab E). 7/ On October 9, 1987, Morison's letter, along with a copy of the defective book, was forwarded to Mr. Jack Marken, Chief of the Respondent's Contracts Branch, by the General Manager of the USPS' Printing Division, Mr. Garth Shepherd, who reiterated that the USPS: (1) would not accept the books as delivered; (2) would not market a patched or repaired product; and (3) requested cancellation of the purchase order and destruction of the books by the Appellant (R4 File, Tab E). 8/ A GPO Notice of Quality Defects containing this information was also completed on October 9, 1987 (R4 File, Tab E). 9/ The record discloses that on October 14, 1987, after receiving the USPS' complaint, Mr. Gerald F. Flemion, a Printing Specialist in the PPD's Quality Assurance Branch, telephoned Mr. Tim Bowns, the Appellant's Account Manager, and informed him that the books which had been shipped to Kansas City were defective in that pages were missing (R4 File, Tab F). Bowns told Flemion that "he was aware of this," and that the Appellant had "tipped in [the] missing pages [and] sent [them to the] USPS" (R4 File, Tab F). 10/ Bowns also indicated that the Appellant was waiting for the USPS to call back to see if tipping in the missing pages was acceptable. At 9:30 a.m. the following day, October 15, 1987, Flemion telephoned Mr. Chuck Jernigan of the USPS and was informed that the "[p]roduct was not acceptable with pages tipped in" (R4 File, Tab F). At 9:45 p.m., after concluding his conversation with Jernigan, Flemion called Bowns and told him that "tipped in pages were not acceptable" to the USPS. However, a half-hour later, at 10:15 a.m., Flemion called Bowns again at Marken's request, and asked that two copies of the books with tipped in pages be sent to GPO so that the Respondent could evaluate them (R4 File, Tab F). The Appellant complied with the Respondent's request around 1:00 p.m. that same day, and two copies of the repaired books were given to Marken (R4 File, Tab F). See, App. Exh. Nos. 2 and 5. In agreement with the USPS, GPO also found the repaired books to be unacceptable. Consequently, on October 19, 1987, Flemion telephoned Jernigan and asked him if the USPS would accept the job with a discount (R4 File, Tab F). The same day, Flemion also called Ms. Paula Wood, the Appellant's Customer Service Manager, and inquired "if that's the best they [could] do on tip[ped] in [pages]" (R4 File, Tab F). By October 21, 1987, Flemion still had not heard from Jernigan regarding accepting the books at a discounted price ("corrected or not corrected"), so he telephoned Jernigan again and was informed that no decision had been made by higher authority but a meeting was scheduled for that day in which the issue would be discussed (R4 File, Tab F). Flemion retired on October 29, 1987, with the issue still unresolved, and responsibility for Jacket No. 185-894 was transferred to Mr. Rick Brzozowski (R4 File, Tab F). See, Response to Appellant's First Set of Interrogatories (May 23, 1988), Response to Interrogatory 2.A. On November 5, 1987, after waiting two weeks without hearing from Flemion, the Appellant sent two copies of a second repaired version of WILDLIFE AMERICA to the Respondent (addressed to Flemion), which had the tipped in pages closer to the spine. App. Exh. Nos. 4 and 6. As the Appellant acknowledged in its accompanying letter, the new samples had not been requested by the either the USPS or the Respondent, but it was interested in resolving the matter as quickly as possible. 11/ App. Exh. No. 3. The second set of tipped in books was also unacceptable. 12/ Therefore, on November 9, 1987, Brzozowski telephoned Bowns to discuss another approach which might make the books acceptable, namely, cutting out the text, pasting in the missing four page outer signature, reprinting the covers and recovering the book (R4 File, Tab F). Bowns suggested that perhaps the Appellant could salvage the covers and redo the text instead, but he would check and call back. On November 18, 1987, Bowns telephoned Brzozowski to let him know that the job had been shipped back to the bindery (R4 File, Tab F). The following day, Brzozowski asked Bowns to sent him two samples of the corrected books, and the Appellant responded by immediately dispatching one sample from the original printing and one from the second printing with original covers (R4 File, Tab F). See, App. Exh. No. 1; SHR, p. 4. The record reveals that on November 25, 1987, Mr. Robert G. Cox, the Superintendent of GPO's Departmental Account Representative Division, telephoned the USPS requesting certain information concerning the agency's marketing plans for WILDLIFE AMERICA. In response, Shepherd wrote Cox on November 30, 1987, attaching the requested information -- a June 1987 flyer and an article from the September 1987 issue of the "Memo to Mailers" newsletter -- which indicated that the hard cover (Executive Gift) edition of WILDLIFE AMERICA would be available for purchase in October 1987 (R4 File, Tab G). 13/ Furthermore, Shepherd made clear that despite this earlier wide publicity given by the USPS to the proposed availability of this Executive Gift edition, the agency could not "use the book if the printing contractor is allowed to reprint due to the errors made in the initial production" (R4 File, Tab G). On December 4, 1987, Flood, who was now personally involved in the matter, telephoned Wood and asked her to send him six copies of books repaired by removing the covers, inserting the four missing pages, and then replacing the covers (or repaired by any other method which would hide the corrections) (R4 File, Tab H). He expressly told Wood that he was making this request in an attempt to avoid default. Wood responded that she would first have to check with bindery subcontractor. Later that day, Wood contacted Flood (around 3:55 p.m.) and promised that six side- sewn books would be sent to him by the following Wednesday (R4 File, Tab H). She also asked Flood if the USPS would accept reprints in case the repaired books were not acceptable. However, a few days later, on December 7, 1987, Wood telephoned Flood to inform him the books could not be side-sewn, and therefore, no further samples of corrected books were being sent to the Respondent (R4 File, Tab H; PHT, p. 10). 14/ The following day, Wood called Flood again and offered to supply tipped in books at a discount in order to settle the matter. At Flood's request, Cox contacted the USPS with the Appellant's proposed resolution, but he was told that the offer of discounted tipped in books was unacceptable (R4 File, Tab H). Thereafter, Flood called Wood and informed her that the Appellant's proposal had been rejected. On December 9, 1987, the day after his last conversation with Wood, Flood wrote to the Respondent's CRB seeking its approval to terminate the Appellant's contract under Jacket No. 185-894 for default (R4 File, Tab I). As the Contracting Officer explained, in pertinent part: When Jacket 185-894 was delivered on September 30,1987, it was discovered that the copies were bound without a four-page outer signature [Exhibit citation omitted]. The contractor's offer to modify the bad books by tipping in the missing pages [Exhibit citation omitted], was met with a negative reply from the [USPS], because it would be considered an inferior and patched product. The [USPS] insists that the product was to be used as a Christmas promotion, which would generate as much as $499,000 in revenue, and reprinting to correct the defect would cause a delay which might hinder it's [sic] marketability. The [USPS] requests that the job be terminated and all of the offending copies be destroyed. The CRB concurred with the Contracting Officer's proposed action. Therefore, on December 17, 1987, the Appellant was notified that its contract was partially terminated for default because of its "inability to deliver the 20,000 copies required on Jacket No. 185-894, as an acceptable product and within the schedule limitations" (R4 File, Tab J). 15/ This appeal to the Board from the Contracting Officer's termination action followed on January 22, 1988 (R4 File, Tab K). POSITIONS OF THE PARTIES The Appellant admits that it was in default. However, in its brief filed with the Board on June 6, 1990, the Appellant contends that notwithstanding its actual default in this matter, the Respondent waived its right to terminate the contract by waiting an unreasonable length of time to exercise it, thus creating the inference that time was no longer of the essence. Appeal File (hereinafter APPF), Tab 34, pp. 5, 7 (Appellant's Brief, dated June 4, 1990). The Appellant argues that while it was clear that time was of the essence to the USPS with respect to WILDLIFE AMERICA, the Respondent acted as if time was of no concern at all; i.e., although the Appellant had sent the Respondent samples of corrected books on three occasions between September 30, 1987 and December 17, 1987, apart from sporadic discussions with the Appellant concerning discounts and various methods of repairing the books, the Respondent allowed two months to pass without taking any action or making any decisions regarding further performance by the Appellant. Thus, the Appellant argues that the Respondent not only created the impression that time was no longer of the essence, but considering the USPS' interest in timely performance of the contract, the Respondent's delay went beyond the "reasonable period" of forbearance usually accorded to the Government in such termination cases. APPF, Tab 34, p. 7. Instead, the Respondent's dilatory conduct in this instance was such that it created a waiver of its right to terminate for default. Id. The Appellant also contends that the Respondent's failure to provide the Appellant with timely instruction and direction when it was ready, willing and able to complete performance of the contract, amounted to a breach of the Respondent's implied duty to cooperate with the Appellant. APPF, Tab 34, pp. 5, 8. According to the Appellant, as soon as the defects in the 18,000 case bound copies of WILDLIFE AMERICA were discovered, it could have reprinted corrected copies of the book and shipped them to the USPS in ample time for its October sales promotion. 16/ However, it was misled to its detriment by the Respondent into believing that some form of repair or discount would eventually be acceptable. APPF, Tab 34, p. 6. Finally, the Appellant claims that the USPS had a "hidden agenda" in seeking to cancel this contract. See, APPF, Tab 34, p. 8. See also, PHT, pp. 9-14. The Appellant argues that the USPS sales figures show that the hard cover copies of WILDLIFE AMERICA did not sell as well as the soft bound version. Thus, according to the Appellant, there is an inference that the USPS "took advantage" of Appellant's default and "seized upon the opportunity" to cancel the poor sellers. See, APPF, Tab 34. As the Board understands the Appellant's position, this accusation -- that the USPS, with the collusion of GPO, engaged in a conspiracy to cancel the contract -- is tantamount to an allegation of bad faith dealing on the part of the Government. For all of these reasons, therefore, the Appellant believes that the Contracting Officer's default termination decision must be vacated and set aside, and the matter remanded to him with directions to convert the termination into one of convenience of the Government. APPF, Tab 34, p. 8. The Respondent, on the other hand, contends that the Contracting Officer properly defaulted the Appellant in this case and his decision should be affirmed. APPF, Tab 35, pp. 7-8 (Respondent's Brief, dated July 2, 1990). In the Respondent's view, the products delivered by the Appellant were "severely defective." APPF, Tab 35, p. 7. Accordingly, the Respondent's position is anchored in the well-settled principle of public contract law which entitles Government to strict compliance with its contract specifications. APPF, Tab 35, p. 3 (citing, Jefferson Construction Co. v. United States, 151 Ct. Cl. 75 (1960); Red Circle Corporation v. United States, 185 Ct. Cl. 1, 8 (1968); American Electric Contracting Corp. v. United States, 579 F.2d 602, 608 (1978); Dependable Printing Company, Inc., GPO BCA 5-84 (1985)). Under this doctrine, the Government can enforce strict compliance either by rejecting nonconforming supplies, or accepting them at a reduced price, and the choice is discretionary with the agency; i.e., a contractor cannot compel the Government to accept defective products at a discount, even if the defects are relatively minor. APPF, Tab 35, p. 4 (citing, Famous Model Co., Inc., ASBCA No. 12,526, 68-1 BCA ¶ 6,902 (1968); Cherry Meat Packers, Inc., ASBCA No. 8,974, 1963 BCA ¶ 3,937 (1963)). The Respondent believes that the Contracting Officer in this case acted reasonably in rejecting the defective product and defaulting the Appellant. In that regard, the Contracting Officer knew that: (1) the USPS believed that the nature of the publication militated against the salability of a patched or repaired publication; and (2) the tight time schedule associated with the USPS' guarantee of prior-to-Christmas delivery precluded a reprint of the book. Id. With respect to the Appellant's claim that GPO waived its right to terminate the contract for default because it waited until December before acting, the Respondent argues that failure to terminate a contract immediately after the right accrues does not constitute a waiver. APPF, Tab 35, pp. 4-5 (citing, Frank A. Pelliccia v. United States, 208 Ct. Cl. 278, 525 F.2d 1035 (Ct. Cl. 1975)). Rather, the law gives a contracting officer a reasonable amount of time to investigate the facts and decide what course of action will be in the Government's best interest. During this so-called "forbearance period" the Government may terminate at any time, without prior notice. APPF, Tab 35, p. 5 (citing, Raytheon Service Co., ASBCA No. 14,746, 70-2 BCA ¶ 8,390)). Furthermore, the Respondent believes that the Appellant has neither alleged nor proved an indispensable element of the "waiver" theory -- i.e., that the Government has indicated a willingness to have the contractor continue performance. 17/ Id. Indeed, as the Respondent sees it, because the Appellant had completed the work under the contract and delivered the books, the conclusion is inescapable that there was no continued performance and no detrimental reliance by the Appellant. APPF, Tab 35, p. 5 (citing, Doyle Shirt Manufacturing Corporation v. United States, 462 F.2d 1150 (Ct. Cl. 1972)). Moreover, the Respondent observes that the Appellant has neither alleged nor offered any evidence of detrimental reliance or injury due to GPO's termination of the contract. APPF, Tab 35, p. 5, n. 5. Accordingly, the Respondent submits that the Contracting Officer properly exercised his discretion to terminate the contract for default, and urges the Board to affirm that decision. APPF, Tab 35, pp. 5-6. DISCUSSION 18/ The sole issue before the Board is whether or not the Contracting Officer erroneously terminated the Appellant's contract under Jacket No. 185-894 for default. Stated otherwise, the question is whether or not the Respondent's conduct with respect to the contract after the September 30, 1987, was so dilatory and misleading, or otherwise erroneous or defective, that it effectively lost its right to terminate the contract. If so, under the terms of the "Default" clause applicable to the contract, the Appellant would be allowed to recover for the work performed. 19/ See, e.g., Chavis and Chavis Printing, supra, Sl. op. at 9; Bonnar-Vawter, GPOCAB [No Docket Number], Sl. op. at 5 (1975) (citing, Racon Electric Company, ASBCA, 1,962 BCA ¶ 3,528 (October 3, 1962)). 20/ Among other things, the "Default" clause which applies in this case allows the Contracting Officer, on written notice of default to the contractor, to terminate a contract, in whole or in part, "[i]f the contractor fails to make delivery of the supplies or to perform the services within the time specified herein or any extension, thereof;. . .". 1980 Contract Terms, 2-18(a)(1). Such clauses have uniformly been held to apply not only to late deliveries of the contracted for goods, see, e.g., Chavis and Chavis Printing, supra, Sl. op. at 12-15; Jomar Enterprises, Inc., GPO BCA 13-86 (May 25, 1989), Sl. op. at 3-5, but also to the timely delivery of nonconforming supplies. 21/ See, e.g., KOPA Kopier Produckte, ASBCA No. 29,471, 85-3 BCA ¶ 18,367; Meyer Labs, Inc., ASBCA No. 18,347, 77-1 BCA ¶ 12,539. Moreover, no "cure notice" is required where a contract is to be terminated because of the contractor's failure to timely deliver or perform. 22/ See, e.g., Kit Pack Company, Inc., supra, 89-3 BCA ¶ 22,151; Norm Hodges and Associates, Inc., GPOCAB 2-82, Sl. op. at 3 (1982); Sales Aids, Inc., GPOCAB 14-80, Sl. op. at 6 (1981). However, because a default termination is a drastic action, it may only be taken for good cause and on the basis of solid evidence. 23/ See, e.g., Mary Rogers Manley d/b/a Mary Rogers Real Estate, HUDBCA No. 76-27, 78-2 BCA ¶ 13,519; Decatur Realty Sales, HUDBCA No. 75-26, 77-2 BCA ¶ 12,567. There should be no question but that on September 30, 1987, when the Appellant delivered a product to the USPS which failed to conform to the specifications, it was in actual default of the contract; indeed, the Appellant admits as much. See, e.g., Chavis and Chavis Printing, supra, Sl. op. at 13. The general rule, as indicated by the Respondent, is that the Government is entitled to strict compliance with its specifications. 24/ See, e.g., Rose Printing Company, GPO BCA 2-87 (June 9, 1989), Sl. op. at 6 (and cases cited therein); Fry Communications, Inc., GPO BCA 1-87 (June 1, 1989), Sl. op. at 5; Mid-America Business Forms Corporation, GPO BCA 8-87 (December 30, 1988), Sl. op. at 18-19. See also, Astro Dynamics, Inc., ASBCA No. 28,320, 83-2 BCA ¶ 16,900; Arnold Diamond, Inc., ASBCA No. 12,335, 68-1 BCA ¶ 8,672. Therefore, the Respondent would have been within its rights to terminate the contract immediately. See, e.g., Nuclear Research Associates, Inc., ASBCA No. 13,563, 70-1 BCA ¶ 8,237 (where the contractor's delivery was late by one day, the Armed Services Board of Contract Appeals upheld the default termination, stating that "once an appellant has failed to deliver on time, the Government, absent excusable cause of delay, has an indefensible right to terminate the contract, unless its own conduct deprives it of that right."). See also, e.g., Northeastern Manufacturing and Sales, ASBCA No. 35,493, 89-3 BCA ¶ 22,093; Appli Tronics, ASBCA No. 31,540, 89-1 BCA ¶ 21,555; Riggs Engineering Co., ASBCA No. 26,509, 82-2 BCA ¶ 15,955; R & O Industries, Inc., GSBCA No. 4,804, 80-1 BCA ¶ 14,196; M. H. Colvin Co., GSBCA No. 5,209, 79-2 BCA ¶ 13,981; KOPA Kopier Produckte, supra, 85-3 BCA ¶ 18,367. As a practical matter, however, the Government rarely terminates contracts for slight delays, much less immediately. 25/ See, e.g., ACL-FILCO Corporation, ASBCA No. 26,196, 83-1 BCA ¶ 16,151 ("It has often been noted, . . . , that neither the Government nor the contractor is well served by a precipitously taken decision to terminate a contract for default . . ."). Consequently, it is well-settled that the Government does not waive its right to terminate a defaulted contract because it fails to do so immediately when the right to terminate accrues. See, Frank A. Pelliccia v. United States, supra, 525 F.2d 1035 (1975). Instead, a contracting officer has a reasonable period of time to investigate the facts and to determine what course of action would be in the best interest of the Government as the non-defaulting party. During this forbearance period the Government may terminate the contract at any time, without prior notice. See, e.g., Raytheon Service Co., supra, 70-2 BCA ¶ 8,390; Lapp Insulator Co., ASBCA No. 13,303, 70-1 BCA ¶ 8,219, mot. for reconsid. denied 70-2 BCA ¶ 8,471. Under the law, the extent of a reasonable forbearance period depends on the facts and circumstances of each individual case. 26/ See, e.g., H. N. Bailey & Associates v. United States, 196 Ct. Cl. 156, 449 F.2d 387 (1971); Methonics, Incorporated v. United States, 210 Ct. Cl. 685 (1976). Although the decision to terminate a defaulted contract is a matter largely within a contracting officer's discretion, there are four doctrines in Government contract law -- three of which are expressly raised by the Appellant and the other one which is implied -- that have the effect of forestalling such an action in appropriate circumstances. First, the Appellant seeks the protection of the so-called DeVito doctrine, see, D. Joseph DeVito v. United States, supra, 413 F.2d. 1147, which holds that the Government may waive its right to terminate a contract for default if it takes an unreasonable amount of time to exercise that right, and the defaulting contractor relies to its detriment on the Government's delay. Second, the Appellant contends that the Respondent's dilatory conduct between September 30, 1987 and December 17, 1987 -- a 78-day period marked by, according to the Appellant, the Respondent's failure to communicate with it about solving the defective book problem or give it further advice and direction concerning continued performance -- amounted to a breach of the Respondent's implied duty to cooperate with the Appellant to complete performance under the contract. 27/ The Appellant's third defense arises by implication from its argument concerning the Respondent's alleged breach of its duty to cooperate; namely, that it is entitled to the protection of the so-called "substantial compliance" rule in this case. See, e.g., Radiation Technology, Inc. v. United States, 177 Ct. Cl. 227, 366 F.2d 1003 (1966). Finally, the Appellant alleges that the termination of its contract for the case bound version of WILDLIFE AMERICA was not bona fide, but rather the Government acted in bad faith, in order to cancel a large order of books which were selling poorly. The Board will discuss each of these defenses separately. 1. Waiver The first defense raised by the Appellant to the Respondent's default action is the so-called DeVito doctrine. 28/ See, D. Joseph DeVito v. United States, supra, 413 F.2d. 1147 (1969). In DeVito, the Court held that time is of the essence in any contract containing fixed dates for performance. 29/ Id., 413 F.2d at 1154. Consequently, the Court found that when a contract has not been terminated for default within a reasonable time after the due date has passed, an inference is created that time is no longer of the essence. Id. That is, in the absence of a new delivery date, the law will assume that the Government has elected to have the contractor continue with performance and the Government will be estopped from terminating the contract, so long as the constructive election not to terminate continues and the contractor proceeds with performance. Id. As outlined by the DeVito Court: The necessary elements of an election by the non-defaulting party to waive default in delivery under a contract are (1) failure to terminate within a reasonable time after the default under circumstances indicating forbearance, and (2) reliance by the contractor and continued performance by him under the contract, with the Government's knowledge and implied or express consent. [Emphasis added.] Id. The Court also indicated that the determination of what constitutes a reasonable time for the Government to terminate a contract after default depends on the circumstances. 30/ Id. In subsequent cases, the Claims Court described the standard to be applied in such situations as follows: The overriding test is whether [G]overnment action[s] between default by the contractor and termination action by the [G] overnment were such as to reasonably indicate an election by the [G]overnment to continue the contract despite a contractor's failure to timely deliver contract items. Northrop Carolina, Inc. v. United States, 213 Ct. Cl. 670 (1977), adopting the Trial Judge's opinion at 22 CCF at ¶ 80,535, 85,754. See also, Prestex, Inc., supra, 81-1 BCA ¶ 14,882. In other cases, the Claims Court has made clear that since the DeVito rule applies only when the Government's forbearance from demanding its right to timely performance is coupled with continued performance by the contractor, the real focus of inquiry is on the contractor's reliance, not on the Government's failure to have insisted upon strict adherence to the terms of the delivery schedule. See, A.B.G. Instrument & Engineering, Inc. v. United States, 593 F.2d 394, 403-04 (Ct. Cl. 1979). However, it must be emphasized that in order to bring itself under the protection of the rule, a contractor's activity during the post-delivery period must be productive performance or tangible progress. See, e.g., Frank A. Pelliccia v. United States, supra, 525 F.2d 1035 (1975); Prestex, Inc., supra, 81-1 BCA ¶ 14,882 (and cases cited therein). See also, Phoenix E. Incorporated, ASBCA No. 25,872, 82-1 BCA ¶ 15,729 (the contractor's continued performance must be substantial). The Board's task under DeVito is to determine: (1) whether the time taken by the Respondent between September 30, 1987 (the date the Appellant defaulted on the contract), and December 17, 1987 (the date the Respondent terminated the contract), was unreasonable under the circumstances, and (2) whether the Appellant continued performance under the contract in detrimental reliance on the Respondent's delay. Both elements must be satisfied in order to establish a DeVito waiver. Applying the principles of DeVito to this appeal, the answer to the Board's initial inquiry -- whether the Respondent's 78-day delay in terminating the Appellant's contract for default was reasonable or not -- depends on the substance of the contacts between the parties from September 30, 1987, to December 17, 1987. Specifically, the central question facing the Board is whether the Respondent's conduct between the time the Appellant defaulted and the date the contract was terminated ". . .was such as to reasonably indicate an election by the [Respondent] to continue the contract despite [the Appellant's] failure to timely deliver [conforming] contract items." Northrop Carolina, Inc. v. United States, supra, 213 Ct. Cl. 670. Furthermore, in applying the DeVito rule here, the Board is mindful that it must look at all of the circumstances confronting the parties to decide whether the Respondent's delay was reasonable or excessive. 31/ D. Joseph DeVito v. United States, supra, 413 F.2d. at 1154; Methonics, Incorporated v. United States, supra, 22 CCF ¶ 80,350, 210 Ct. Cl. 685; H.N. Bailey & Associates v. United States, supra, 449 F.2d 387. At the outset, the Board believes that it would be worthwhile to review the relevant facts. The Appellant sent nonconforming books to the USPS on September 30, 1987. However, the first indication that the Respondent had of the Appellant's default was Shepherd's October 9, 1987, letter to Marken, forwarding Morison's initial complaint and a copy of the defective product (R4 File, Tab E). Thereafter, notwithstanding the USPS' position, voiced from the outset, concerning its unwillingness to market patched or repaired books, and its demand that the purchase order be canceled, the record indicates that the Respondent refused to act "precipitously" in terminating the contract for default. ACL-FILCO Corporation, supra, 83-1 BCA ¶ 16,151. Instead, the Respondent took time to investigate the facts and to determine what course of action would be in the best interest of the Government. Frank A. Pelliccia v. United States, supra, 525 F.2d 1035; Harold Burgmayer Real Estate, Inc., supra, 88-3 BCA ¶ 21,063; Environmental Tectonics Corporation, ASBCA No. 29,947, 87-1 BCA ¶ 19,382. In that regard, the Respondent initiated a series of coordinated contacts involving the USPS and the Appellant with a view toward seeing if the contractor's product could be conformed to the specifications. However, at the time the Respondent became involved in the matter, the Appellant already knew that it had delivered defective books and had begun dealing with the USPS directly with respect to remedying the situation. Thus, on October 14, 1987, Bowns informed Flemion that the Appellant had made corrections a week earlier by tipping in the missing pages and had sent samples to the USPS. Bowns also told Flemion that he was waiting to hear from the USPS to learn if the repairs were acceptable. The following day, October 15, 1987, when Flemion called the USPS, he was told by Jernigan that the Appellant's corrections were not acceptable -- a message which Flemion immediately relayed to Bowns. Nonetheless, Flemion asked Bowns to send GPO two copies of repaired books like the ones sent to the USPS so the Respondent could make its own evaluation. As a result of this independent examination, the Respondent agreed with the USPS that the repaired books were of poor quality and unacceptable. 32/ Although it judged the tipped in corrections to be unsatisfactory, the Respondent did not abandon its efforts to find a solution to the problem. Instead, between October 19, 1987, and his retirement on October 29, 1987, Flemion: (1) spoke to the Appellant about making better tipped in repairs to the books (October 19, 1987); and (2) talked to the USPS on two occasions concerning accepting the job at a discount price (October 19, 1987 and October 21, 1987). Thereafter, on November 5, 1987, the Appellant sent the Respondent two corrected copies of WILDLIFE AMERICA, which had the tipped in pages closer to the spine. On November 9, 1987, Flemion's successor, Brzozowski, telephoned Bowns to discuss a totally different approach to repairing the books which, in essence, involved tearing them apart and pasting in the missing pages. Nine days later, on November 18, 1987, Bowns informed Brzozowski that the repairs had been made and the job had been sent to the bindery subcontractor. He also had two copies of the newly corrected books delivered to Brzozowski the following day. 33/ On December 4, 1987, after the Thanksgiving holiday, Flood called Wood and requested six copies of books repaired essentially in accordance with Brzozowski's instructions (or any other method which hid the corrections) because the "[j] ob needs to be perfect" (R4 File, Tab H). At this time, Wood raised the possibility of reprinting the books. On December 7, 1987, Wood informed Flood that the books could not be side-sewn, and thus the only corrected copies produced by the Appellant were those which had the missing pages tipped in. In a final effort to settle the matter, Wood called Flood on December 8, 1987, and offered to supply WILDLIFE AMERICA repaired with tipped in pages, at a discount. However, the USPS rejected this proposal. Consequently, on December 9, 1987, Flood initiated steps to terminate the contract for default. As previously indicated, the Government is entitled to take a reasonable time after the right to terminate accrues to determine what course of action will be in its best interest. In the opinion of the Board, it does not appear that the time taken in this case was excessive. It is apparent from the record that the elapsed time was taken up by tripartite discussions over ways to fix the defective books which might satisfy the USPS, the Appellant's attempts to produce acceptable corrections, and multiple reviews of the Appellant's repairs by both the Respondent and the USPS (on three separate occasions during this period -- October 15, 1987, November 5, 1987, and November 19, 1987 -- the Appellant sent GPO sample copies of corrected books for its inspection). Cf., ACL-FILCO Corporation, supra, 83-1 BCA ¶ 16,151. Specifically, at various times during this period the parties talked about: (1) repairing the book by tipping in the missing pages; (2) making corrections which would involve cutting out the text, replacing the missing pages, and recovering the book; (3) the possibility of reprinting the books; and (4) the acceptance of the books, corrected or uncorrected, at a discount price. Since these discussions involved three separate parties -- the Respondent, the Appellant and the USPS -- and their respective management organizations, the Board believes that it was reasonable to anticipate that the resolution process would take longer than if only two parties were involved. In this case, not only was there a need to coordinate information and responses among all of the parties during this period, but the situation was compounded by the fact that the communications were free and unstructured; e.g., the Appellant could and did discuss matters with the USPS directly and inform the Respondent afterward. Indeed, in the Board's opinion, the ease and informality with which the parties exchanged views and information should surprise no one since they were not strangers; i.e., the Appellant was also the successful printing contractor for the previous edition of WILDLIFE AMERICA and it is reasonable to expect that the parties would have developed a comfortable business relationship as a by-product of that prior experience. 34/ It is manifest to the Board that the Respondent spent the time between September 30, 1987, and December 17, 1987, attempting to ascertain whether there was any possibility of conforming the books which had been delivered to the USPS to the contract specifications. Only when it was determined, within a reasonable time the Board believes, that acceptable repairs were not feasible was the contract terminated. See, KOPA Kopier Produckte, supra, 85-3 BCA ¶ 18,367. See also, e.g., Computer Products International, Inc., ASBCA Nos. 26,107, 26,130, 83-2 BCA ¶ 16,889; Environmental Tectonics Corporation, supra, 87-1 BCA ¶ 19,382. Accordingly, in the judgment of the Board, the time taken by the Respondent between September 30, 1987, when the Appellant defaulted, and December 17, 1987, when the contract was terminated, was a period of reasonable forbearance and did not constitute a waiver of the Government's right to default the contract. Id. Much longer periods have occurred without the Government losing the right to enforce the contract. 35/ As for the second prong of the DeVito rule in this matter, the Board sees nothing in the facts before it to warrant the conclusion that the effort expended by Appellant between September 30, 1987, and December 17, 1987, amounted to detrimental reliance. It is well recognized that for detrimental reliance to occur under DeVito there must be: (1) conduct by a contracting officer which the contractor reasonably believes constitutes encouragement to proceed with performance of the contract after the delivery date has passed; and (2) incurrence of costs related to performance by the delinquent contractor in reliance thereon. See, e.g., General Products Corporation, ASBCA No. 16,658, 72-2 BCA ¶ 9,629; Franklin Instrument Company, Inc., IBCA No. 1270-6-79, 81-1 BCA ¶ 14,970. It seems clear to the Board that there was no "continued performance," as that term is understood in the context of the DeVito rule, by the Appellant after September 30, 1987. 36/ The entire focus of dealings between the parties concerned repairing or replacing the defective books. Thus, in the time allotted for performance under the contract, the Appellant had completed the work and delivered a nonconforming product. See, e.g., Doyle Shirt Manufacturing Corporation V. United States, supra, 462 F.2d 1150. Furthermore, it seems not to be contended, and nothing in the record would support such a finding, that the work which did occur on the rejected books after September 30, 1987, was "productive" work, within the meaning of the DeVito rule. See, e.g., Environmental Tectonics Corporation, supra, 87-1 BCA ¶ 19,382; ("trouble shooting" and attempting to bring the delivered product into conformance with specifications, are post-production tasks). See also, Frank A. Pelliccia v. United States, supra, 555 F.2d at 1043. Assuming for the sake of argument that the Appellant's attempts to satisfy the contract by repairing the nonconforming books with tipped in pages constituted "performance," it is clear that the originator of such a solution was the Appellant itself; indeed, the Appellant had sent samples of the repaired books to the USPS at least five days before the Respondent became involved in the matter (October 14, 1987). 37/ Thus, it can not be said that the Respondent "encouraged" the Appellant to continue performance after September 30, 1987, as required by the DeVito rule. See, e.g., Centroid, Inc., supra, 86-1 BCA ¶ 18,644. Stated otherwise, even though the Contracting Officer wanted to examine the repairs made by the Appellant, he did not urge or initiate the Appellant's efforts to correct the books, and it is highly unlikely that he would have done so in light of the USPS' outright rejection of a patched or repaired product. 38/ ACL- FILCO Corporation, supra, 83-1 BCA ¶ 16,151. Furthermore, in the Board's judgment, the Appellant's "performance" efforts after September 30, 1987, do not amount to "substantial performance," within the meaning of DeVito. See, e.g., Environmental Tectonics Corporation, supra, 87-1 BCA ¶ 19,382 ("trouble shooting" and tasks related to complying with the specifications do not constitute substantial performance). Compare, Prestex, Inc., supra, 81-1 BCA ¶ 14,582 (substantial performance consisted of the contractor continuing to expend efforts to solve the problems of its subcontractor and to develop another source of supply, and the Government accepting a partial delivery). Moreover, there is nothing in the record, nor has the Appellant offered any evidence, that it suffered additional expense, or was otherwise prejudiced, as a result of the delay between its default and the termination of the contract by the Respondent. See, e.g., Belmont Instrument Corporation, ASBCA No. 18,861, 77-1 BCA ¶ 12,332; Environmental Tectonics Corporation, supra, 87-1 BCA ¶ 19,382. For all of these reasons, the Board finds the Appellant's argument that the Respondent waived its right to terminate the contract by waiting an unreasonable time to exercise its right, to be without merit. Instead, the Board believes that the 78-day delay in this case was a reasonable period of forbearance under the circumstances. Furthermore, in the Board's view, the time taken by the Respondent to determine which course of action would be in its best interest was not excessive. Accordingly, in the opinion of the Board, the DeVito doctrine is inapplicable under the facts and circumstances herein. 39/ Cf., A.B.G. Instruments & Engineering, Inc. v. United States, supra, 219 Ct. Cl. 381, 593 F.2d 394 (1979); DeVito v. United States, supra, 413 F.2d 1147; Phil Rich Fan Manufacturing Company, Inc., ASBCA No. 12,770, 71-1 BCA ¶ 8,694. 2. Implied Duty to Cooperate The Appellant also claims that the Respondent's failure to give it instructions and directions between September 30, 1987, and December 17, 1987, deprived it of an opportunity to complete the contract. It is the Appellant's contention that it could have satisfied the contract by reprinting correct copies of WILDLIFE AMERICA in ample time for the USPS' October sales promotion. The Appellant states that it was ready, willing and able to complete performance in this fashion, but the Respondent engaged in conduct which detrimentally misled it into believing that some form of repair or discount would eventually be acceptable. Therefore, the Appellant believes that the Respondent breached its implied duty to cooperate with the Appellant to complete performance under the contract. The Appellant's second defense relies on a well-settled principle of public contract law which states that in every Government contract there is an implied affirmative obligation on the part of the Government that it will do whatever is necessary to enable the contractor to perform. 40/ See, e.g., Nanofast, Inc., supra, 69-1 BCA ¶ 7,566. (citing, The Kehm Corporation v. United States, 119 Ct. Cl. 454, 93 F.Supp. 620 (1950); United States v. Speed, 75 U.S. (8 Wall.) 77 (1868)). Under this doctrine, the Government will be held liable for breaching its implied duty to cooperate if it wrongfully fails or refuses to take some action, within its control, which is essential for the contractor to perform. 41/ In most cases applying this principle to excuse a contractor's default, there is a clear nexus between the Government's breaching conduct and the performance period itself. See, e.g., Maitland Brothers Company and Maitland Brothers Company and St. Paul Fire and Marine Insurance Company, ASBCA Nos. 30,089, 30,764, 31,032, 32,071, 32,605, 34,659, 90-1 BCA ¶ 22,367; Singleton Contracting Corporation, GSBCA No. 8,552, 90-1 BCA ¶ 22,298; G. W. Galloway Company, ASBCA Nos. 17,436, 17,723, 17,836, 17,911, 18,324, 77-2 BCA ¶ 12,640. Furthermore, whether the Government is liable depends on the reasonableness of its conduct under the circumstances. See, e.g., Ben C. Gerwick, Inc. v. United States, 152 Ct. Cl. 69, 285 F.2d 432 (1961); Tolis Cain Corporation, DOTCAB No. 72-2, 76-2 BCA ¶ 11,954. It is unnecessary for the Board to engage in a detailed survey of the cases involving the Government's duty to cooperate with a contractor for the purpose of this decision. However, it should be noted that an agency's failure to supply the contractor with pertinent information will breach that duty, see, e.g., Spectrum Leasing Corporation, GSBCA Nos. 7,347, 7,379, 7,425-27, 90-3 BCA ¶ 22,984; Ballenger Corporation, DOTCAB No. 74-32, 84-1 BCA ¶ 16,973, mod. on other grounds, 84-2 BCA ¶ 17,277; Hardie-Tynes Manufacturing Co., ASBCA No. 20,582, 76-2 BCA ¶ 11,972, as will unreasonable delays in both giving approvals called for in the contract, and in accepting the contractor's products. See, e.g., Hoel-Steffen Construction Co. v. United States, 231 Ct. Cl. 128, 684 F.2d 843 (1982); Vogt Brothers Manufacturing Co. v. United States, 160 Ct. Cl. 687 (1963); The Kehm Corporation v. United States, supra, 93 F.Supp. 620. 42/ Furthermore, agencies will breach their implied duty to cooperate if they unreasonably disapprove suggestions for alternate methods of performance, Albert C. Rondinelli, ASBCA No. 9,900, 65-1 BCA ¶ 4,674, or, in waiver situations, if they fail to inspect late deliveries, refuse to allow the contractor to explain the use of delivered equipment, and deny the contractor a reasonable opportunity to correct minor defects. Nanofast, Inc., supra, 69-1 BCA ¶ 7,566. As expressed by the Armed Services Board of Contract Appeals in Nanofast: . . . [T]here is an implied affirmative obligation on the part of the Government that it will do whatever is necessary on its part to enable the contractor to perform. [Citations omitted.] In this case, the Government had an implied obligation . . . to give the contractor a reasonable opportunity to correct any deficiencies and deviations of a correctable nature found by the Government in the course of its testing and inspection which could be corrected within a reasonable time. So far as can be determined from the record, the equipment delivered by appellant complied with the contract requirements, except for some minor deviations of an easily correctable nature, which appellant was ready, able and willing to correct. . . . The contractor's failure after 20 January 1967 to bring the equipment into full compliance with the applicable specifications before the contract was terminated is excused by the Government's refusal to enter into any discussions with appellant and give it an opportunity to make any necessary corrections. 69-1 BCA ¶ 7,566 at 35,049-50. 43/ The Appellant does not contend that the Respondent failed to meet its contractual responsibilities prior to September 30, 1987 -- the production and delivery stage of the contract -- nor is there support in the record for such a finding. 44/ Furthermore, notwithstanding the Appellant's claim that it was ready, willing and able to reprint correct copies of WILDLIFE AMERICA in ample time for the USPS' October sales promotion, the record indicates that it did not make such an offer until November -- too late for the USPS' marketing program -- preferring until then to concentrate on finding a way to make acceptable repairs. 45/ Therefore, any breach of the implied duty to cooperate in this case would have to be based, as in Nanofast, on a perceived obligation on the part of the Respondent to give the contractor an opportunity to correct the defective books within a reasonable time. However, in the Board's opinion, the Nanofast rule is clearly inapposite to the circumstances involved in this appeal. The Nanofast doctrine applies to situations where a contractor timely delivers supplies with minor defects and is denied a reasonable opportunity to correct them. In this case, however, the record is replete with evidence that the Appellant was, in fact, given a chance to repair the defects in WILDLIFE AMERICA, but was unable to do so within a reasonable time. As the Board has already stated, it is self-evident that between September 30, 1987, and December 17, 1987, the Respondent's focus was on ascertaining if there was any way the defective books could be conformed to the contract specifications so that the USPS would accept them. Toward that end, it is uncontroverted that: (1) the Respondent not only endorsed the Appellant's chosen method of correcting the defect in the books -- tipping in the missing pages -- but even made suggestions to the Appellant for improving the quality of the repair job with that technique by making the tip in closer to the binding; (2) on two occasions during this period, the Respondent monitored the Appellant's progress by asking for samples of the corrected books for the purpose of making an independent evaluation regarding the quality of the repairs; (3) when the tipped in product proved to be unacceptable, it was the Respondent who suggested an alternate repair method to the Appellant, namely, tearing apart the book and recovering it after the missing pages had been inserted; 46/ (4) as late as December 4, 1987, the Appellant was contacted by the Contracting Officer who was seeking samples of corrected books which had been repaired in accordance with this alternate method; and (5) on at least three occasions, both on its own initiative (October 19, 1987 and October 21, 1987) and at the Appellant's behest (December 8, 1987), the Respondent asked the USPS to consider accepting the repaired books at a discount, even though it knew beforehand of the USPS' position rejecting a patched product for its Christmas sales program. There is nothing in the record to indicate that the Respondent's conduct was anything less than sincere or was calculated to frustrate the Appellant's performance. In the Board's view, all of the steps taken by the Respondent are indicia of an attempt to cooperate with the Appellant in an effort to fulfill its obligations under the contract. Consequently, the Board believes that the Appellant was afforded a fair and reasonable opportunity to repair the defect in its shipment, and the Respondent is not responsible for the fact that the Appellant's efforts failed to bear fruit. Furthermore, there is no comfort for the Appellant in the Nanofast rule because it applies only where the defects are "minor deviations of an easily correctable nature." A "minor" deviation in this context would be a defect which is "lesser in size, amount, number, extent, importance or rank." [Emphasis added.] Webster's New World Dictionary (1988), p. 864. Thus, if the doctrine was involved here the critical issue would be whether the defect in this case -- missing pages -- can be considered "minor" within the meaning of Nanofast. The answer to that question is readily apparent from the 1981 QATAP, which is made part of the Appellant's contract by reference. QATAP is a program which "establishes attributes for quality and . . . defines tolerances for those attributes for five quality levels of printing." 1981 QATAP, Determination of Product Quality, 2.a. The program rates those attributes against allowable tolerances, and classifies deviations as either "major" or "critical" defects -- the only two categories established -- in accordance with the applicable tolerance table. Id. A "critical defect," for the purpose of QATAP, "is a serious deviation from specifications." 1981 QATAP, Definitions, 1-3, p. 1. Similarly, a "major defect is a deviation from specifications which is less serious than a critical defect." 47/ Id., 1-4, p. 1. From its placement in the QATAP, "missing pages" is considered a "finishing attribute." 1981 QATAP, Finishing Attributes, F-12, p. 38. Contractor performance in this area is determined by inspecting individual copies of publications and classifying deviations from the specifications for each finishing attribute as either a critical or major defect in accordance with the tolerance table for that attribute. 48/ 1981 QATAP, Determination of Product Quality, 4-2. An examination of the "Tolerance Tables for Miscellaneous Finishing Attributes," for "missing pages" discloses that deviations from all five PQL's are considered "critical defects;" i.e., defects of the most serious nature. 1981 QATAP, Finishing Attributes, F-12, p. 38. The reason for such a strict classification with respect to "missing pages" is clear -- by rating this deviation as a "critical defect," and by making the QATAP part of each contract awarded by GPO, the drafters believed that they could best achieve the goals of ensuring the completeness of Government information and protecting the Government's interest in receiving the product quality it specified. See, Stabbe Senter Press, supra, Sl. op. at 51-52 (missing recipe cards). Therefore, any defense here based on the Nanofast doctrine would have to be rejected for no other reason than the fact that the QATAP considers books delivered with missing pages to have "critical defects," not "minor deviations." 49/ In summary, the Board believes that there is absolutely no evidence in this record to support the Appellant's contention that the Respondent breached its implied duty to cooperate under the circumstances herein. Certainly, the Appellant has not alleged a failure by the Respondent to meet its responsibilities prior to September 30, 1987, when the Appellant was expected to complete performance under the contract by delivering the books, nor would the record support such a finding. Similarly, there is no substance to the Appellant's claim that it was deprived it of an opportunity to satisfy the contract by reprinting correct copies of WILDLIFE AMERICA by the Respondent's misleading conduct concerning repairs or discounts; instead, the record shows that the Appellant did not offer to reprint the book until November, much too late for the USPS' Christmas marketing program. Furthermore, contrary to the Appellant, the Board believes that the two months required to reach a decision regarding termination of the contract was not due to any indecisiveness by the Respondent, but rather, was a product of the delays inherent in a tripartite communication process, as well as the Respondent's desire to give the Appellant a fair and reasonable opportunity to repair the serious defect in the book. Moreover, the Board finds compelling the record evidence showing that despite its awareness of the USPS' position excluding a repaired product from its Christmas sales program, the Respondent nonetheless repeatedly tried to persuade the USPS to accept the books with tipped in pages at a discount. Considering this record as a whole, the Board finds that between September 30, 1987, and December 17, 1987, the Respondent fully cooperated with the Appellant in its attempt to make the books acceptable to the USPS and to fulfill its obligations under the contract. 50/ See, e.g., Ben C. Gerwick, Inc. v. United States, supra, 285 F.2d 432 (1961); Tolis Cain Corporation, supra, 76-2 BCA ¶ 11,954. Accordingly, for all of these reasons, the Board concludes that there is no merit to the Appellant's claim that the Respondent breached its implied duty to cooperate with it to complete performance under the contract. 3. Substantial Compliance The Appellant's third defense to the Respondent's termination action is the so-called "substantial compliance" rule, which like the Nanofast doctrine, also affords defaulting contractors an opportunity to correct minor defects in shipments to the Government. In that regard, although the Government's right to terminate accrues, inter alia, upon the contractor's timely delivery of nonconforming goods, see, e.g., Northeastern Manufacturing and Sales, supra, 89-3 BCA ¶ 22,093; Applied Devices Corporation, ASBCA No. 23,945, 86-3 BCA ¶ 19,089, it is also true that even if the supplies are defective termination may not be warranted. Nanofast, Inc., supra, 69-1 BCA ¶ 7,566, at 35,051. In fact, under certain circumstances where a contractor delivers nonconforming goods immediate termination will not be proper. See, e.g. Astro Dynamics, Inc., ASBCA No. 28,381. 88-3 BCA ¶ 20,832. In the lead case on this issue, Radiation Technology, Inc. v. United States, supra, 366 F.2d 1003 (1966), the Claims Court was asked to decide whether the Government could properly terminate a contract for eight defective high voltage systems, which the contractor had delivered on time, without granting the contractor an opportunity to repair them. 366 F.2d at 1004. Both parties agreed that the resolution of the dispute depended on the meaning given to the term "delivery" in the default clause. 51/ In that regard, the Government defended its action by arguing that "delivery" meant delivery of conforming goods, i.e., delivery of nonconforming supplies is equivalent to no delivery at all. 366 F.2d at 1005. The contractor, on the other hand, contended that "delivery" merely referred to a physical transfer of goods, and that under the contract the shipment of a nonconforming product automatically entitled it to ten more days within which to deliver conforming equipment. Id. The Court rejected both positions as too "extreme." 52/ Instead, the Court elected to define the default clause's use of term "delivery" as the equivalent of a shipment which is in substantial compliance with contract specifications. Id. Turning to the central issue in the dispute -- whether a contractor who has delivered nonconforming supplies is entitled to additional time after the expiration of the specified or agreed on delivery date to cure the product defects -- the Court applied the rule of reason, and held that: Under the view which we espouse, the contractor is entitled to a reasonable period in which to cure a nonconformity provided that the supplies shipped are in substantial conformity with the contract specifications. 366 F.2d at 1005-06. 53/ However, the Court made clear that the right to cure was not unlimited, but had certain defined boundaries: In order to meet this requirement, it is incumbent at the outset that the contractor demonstrate that he had reasonable grounds to be believe that his delivery would conform to contract requirements. Shipment alone is not an adequate badge of proof. Further, the right to cure assumes that the defects complained of are minor in nature and extent and are susceptible to correction within a reasonable period of time. Where extensive repair or readjustment is necessary in order to produce a fully operable product, substantial performance cannot be found and summary termination would be warranted. Other relevant considerations bearing upon the question of compliance involve the usability of the items, the nature of the product involved (whether it involves complex precision instruments as opposed to a routine production item), and the urgency of the Government's demand. The greater such urgency the greater the requirement that performance approach the overall level of strict conformity. [Emphasis added.] 366 F.2d at 1006. 54/ A contractor who ships nonconforming goods is only protected by the Radiation Technology rule to the extent he/she can satisfy all elements of the test. Thus, the contractor must show that: (1) a timely delivery of goods was made; (2) he/she reasonably believed, in good faith, that the supplies conformed to the contract when shipped and that they would be acceptable; and (3) the defects are minor in nature and capable of correction within a reasonable period of time. 55/ In the Board's opinion, the Radiation Technology doctrine is inapplicable to the circumstances of this case. The Appellant has clearly satisfied the first element of the Radiation Technology doctrine; i.e., there is no question but that a timely shipment of the books was made. Similarly, the Board finds that when the books were delivered, the Appellant reasonably believed, in good faith, that they conformed to the contract specifications and that they would be accepted; indeed, because both the error and the shipment had been made by its bindery subcontractor, the Appellant remained unaware that the books were defective until it was so informed by the USPS on October 7, 1987, a week after the delivery date. 56/ SHR, p. 2; PHT, p. 9. However, the Board has already concluded that because the defect in this case involved missing pages it was not minor in nature -- such deviations are defined as "critical defects" in the 1981 QATAP. Furthermore, the Board is not persuaded that the defect in question was susceptible to correction within a reasonable period of time, as evinced by the fact that the Appellant's repeated attempts, over a two-month period, to repair the books by tipping in the missing pages could not produce an acceptable product. Therefore, essentially for the same reason that the Nanofast rule does not apply to this appeal, the Board concludes that the Radiation Technology doctrine is equally unavailable to the Appellant; i.e., the defective books did not substantially comply with the contract specifications and could not be modified to conform to those requirements within a reasonable period of time. See, e.g., Environmental Tectonics Corporation, supra, 87-1 BCA ¶ 19,382; KOPA Kopier Produckte, supra, 85-3 BCA ¶ 18,367; Renwin Metal Products, Inc., ASBCA No. 15413, 72-1 BCA ¶ 9,233, mot. for reconsideration denied, 72-1 BCA ¶ 9,329. The Board's conclusion in this regard is buttressed by two other considerations mentioned by the Claims Court in Radiation Technology -- the usability of the items and the urgency of the Government's need. First, in agreement with the USPS, the Contracting Officer found that not only were the books, as originally received, inferior and unsalable, but tipping in the missing pages did not improve the product. This decision was wholly within the discretion of the Contracting Officer, and the Board will not substitute its judgment for his. Cf., Stabbe Senter Press, supra, Sl. op. at 53. Second, the Contracting Officer accepted the USPS' position that its Christmas marketing plan, which called for the sale and shipment of the books to begin in mid-October 1987, 57/ precluded allowing the Appellant to reprint the books to correct the defect because of the adverse impact the delay would have had on the delivery schedule. In that regard, the Board believes that the urgency of the USPS' marketing needs is amply demonstrated in the record, and it is appropriate to hold the Appellant to a level of performance approaching strict conformity in this case. Radiation Technology, Inc. v. United States, supra, 366 F.2d at 1006. Accordingly, for all of these reasons the Board rejects the Appellant's claim that the Contracting Officer was in error to terminate the contract without affording the Appellant an opportunity to repair the defect in WILDLIFE AMERICA. 4. Bad Faith The Appellant's final claim amounts to an allegation that in order to cancel a large order of poor sellers, the USPS conspired with the Respondent to terminate the contract for the case bound version of WILDLIFE AMERICA. In effect, the argument advanced by the Appellant is that the Respondent's decision to cancel the contract was made in bad faith so that the USPS could escape a bad bargain. The Appellant's contention is not supported by the record in this case. The Appellant's allegation is identical to the claim made by the contractor in The Standard Register Company, GPO BCA No. 4-86 (October 28, 1987). Addressing the issue of bad faith in that case, the Board stated, in pertinent part: . . . the Appellant, . . . , alleges that the termination was the result of the purported bad faith of the Library of Congress personnel who wanted glue in the margins of the product rather than crimping. While the Appellant is entitled to present evidence of bad faith on the part of the Government, National Factors, Inc. v. United States, 492 F.2d 1393, 1385-86 (Ct. Cl. 1974); see also, Allied Materials & Equipment Co., Inc. v. United States, 569 F.2d 562, 565 (Ct. Cl. 1978), such evidence must show a specific intent to injure the Appellant in order for it to be considered by this Board or a court of law, Kalvar Corporation v. United States, 543 F.2d 1298, 1302 (Ct. Cl. 1976), cert. denied, 434 U.S. 830 (1977), since there is an inherent presumption that public officials act in good faith. Knotts v. United States, 121 F.Supp. 630, 631 (Ct. Cl. 1954). Moreover, in the case at hand, there would have to have been proven that employees of each of the two separate agencies of Government acted in concert to achieve such specific result. No such proof has been given. Indeed, no proof has been given at all. Rather, [the] Appellant has offered a bold assertion to this Board which cannot be acted upon. [Emphasis added.] Id., Sl. op. at 12-13. Because of the strong presumption that Government officials properly and honestly carry out their functions, an allegation of bad faith must be established by "well-nigh irrefragable" proof. See, e.g., Cotyvan Company, ASBCA No. 24,599, 89-3 BCA ¶ 22,129, at 11,356; Bruce Anderson Company, Inc., ASBCA Nos. 29,412, 32,247, 89-2 BCA ¶ 21,872, at 110,027. "Irrefragable" proof simply means evidence which is incapable of being refuted; i.e., indisputable evidence. Webster's New World Dictionary (1988), p. 714. In the Board's view, no such "irrefragable" proof of the Respondent's bad faith exists in this record. In the Board's opinion, the Appellant's reliance on the evidence of poor sales and financial performance with regard to the hard cover copies of WILDLIFE AMERICA, is more than offset by the fact that the books it supplied to the USPS were defective, as the Appellant admits, and this was the reason given by the Contracting Officer for defaulting the contract; i.e., the Appellant was unable to deliver "an acceptable product within the schedule limitations" (R4 File, Tab J). Clearly, if the Appellant had delivered conforming books to the USPS on the contract due date, the agency would have been contractually bound to accept them; indeed, all indications in the record are that the USPS was ready to place the books in its sales inventory at that time. Furthermore, the Board believes that the very fact that the USPS placed a procurement order for WILDLIFE AMERICA with the Respondent shows that its original requirement was genuine. See, PHT, p. 12. Moreover, it seems to the Board that if financial considerations drove the USPS to seek cancellation of the contract, as suggested by the Appellant, the agency would not have waited until the fiscal year expired before raising the matter with GPO. See, PHT, p. 14. The Appellant has offered no evidence or explanation which would persuade the Board otherwise. On the other hand, the USPS has consistently maintained throughout these proceedings that it asked the Respondent to terminate the contract because it was unwilling to offer a patched or repaired book to its potential customers at the premium price set for it. Furthermore, the Appellant's offer to reprint the books came too late for the USPS' Christmas sales delivery schedule. Consequently, the USPS ceased all promotional activity with respect to WILDLIFE AMERICA. The judgment that the books were no longer useful for the purposes intended because of the Appellant's performance failures, was a business decision made by management officials of the USPS within the scope of their discretion, which the Contracting Officer accepted. The Board is unable and unwilling to substitute its opinion for theirs on the basis of this record. Cf., Stabbe Senter Press, supra, Sl. op. at 53. Finally, there is absolutely nothing in the record which would show that the employees of two separate Government entities -- GPO and the USPS -- set out to harm the Appellant or that they acted in concert to achieve that specific result. On the basis of the evidence, therefore, the Appellant's allegation of bad faith is merely an unsupported assertion which is insufficient to meet its required burden of proof. See, e.g., Fry Communications, Inc. / InfoConversion Joint Venture, GPO BCA No. 9-85 (decision on remand) (August 5, 1971), Sl. op. at 33, n. 31 (citing, Tri-State Services of Texas, Inc., ASBCA No. 38,019, 89-3 BCA ¶ 22,064); The Standard Register Company, supra, Sl. op. at 12-13. See also, Singleton Contracting Corporation, GSBCA No. 8,548, 90-2 BCA ¶ 22,748; Gemini Services, Inc., ASBCA No. 30,247, 86-1 BCA ¶ 18,736. Accordingly, the Board finds that the Appellant's claim that the Respondent acted in bad faith in terminating its contract for WILDLIFE AMERICA, is without merit. DECISION Based on the foregoing discussion, the Board concludes that the Contracting Officer appropriately exercised his discretion in partially terminating the Appellant's contract for the printing and binding of WILDLIFE AMERICA, for default. The Board finds that although the Appellant delivered the books in question by the contract due date, they were substantially defective. In the Board's judgment, the 78 calendar days taken by the Respondent between the date of actual default and the date of termination was a reasonable period of forbearance under the circumstances to consider what steps were in the best interest of the Government, and did not waive the Respondent's right to cancel the contract. Furthermore, the Board finds that the Respondent did not breach its implied duty to cooperate with the Appellant to complete performance under the contract by depriving the Appellant of an opportunity to either reprint WILDLIFE AMERICA or to correct the defects in the original shipment because: (1) the Appellant's reprint offer was made too late for the USPS' marketing program; (2) the Respondent did, in fact, give the Appellant a fair and reasonable opportunity to repair the serious defect in the book; and (3) the defect was "critical," not minor, and incapable of being corrected within a reasonable period of time. Similarly, because the defect in the books was serious and a satisfactory correction could not be made within a reasonable period of time, the Board finds that the so-called "substantial compliance" rule is also inapplicable in this case. Finally, the Board finds that there is no evidence to support the Appellant's claim of bad faith by the Respondent and the USPS in the termination of the contract. Accordingly, considering the record as a whole, the appeal is denied and the decision of the Contracting Officer is affirmed. It is so Ordered. _______________ 1. Purchase Order 66028 included two Jacket Numbers -- Jacket Nos. 185-894 and 185-895. Jacket No. 185-895, required the printing and delivery of 70,000 copies each of a pamphlet, envelope and label for the U.S. Postal Service (USPS) by August 2S, 1987 (Rule 4 File, Tabs B and D) (hereinafter R4 File). With the acceptance of the pamphlets on September 3, 1987, the Appellant completed its successful performance of that part of the contract and it is not involved in this appeal. 2. The contract is governed by GPO Contract Terms No. 1. GPO Publication 310.2 (Rev. October 1980) (198O Contract Terms), Quality Assurance Through Attributes Program. GPO Publication 310.1 (Rev. June 1981) (1981 QATAP), and Department of Labor Wage and Hour (DoL WH) Publication 1313, which are incorporated by reference (Rule 4 File, Tab B, p. 1). 3. Flood was not the original Contracting officer for Jacket No. 185-894, but he was assigned responsibility for the contract on July 27, 1987, less than a week after it was awarded to the Appellant (R4 File. Tab D). The record discloses that on November 23, 1987, nearly four months after his designation as contracting officer, Flood received the Appellant's contract file (R4 File, Tab H). This was about the same time that he became actively involved in the contract compliance process flowing from the Appellant's default. See, Status Hearing Report (May 8, 1990), p. 8 (SHR). 4. The record indicates that the Appellant was also the printing contractor for both the case bound and soft cover versions of WILDLIFE AMERICA under a previous contract with the Respondent -- Jacket No. I74-606 (R4 File. Tab B, Printing and Binding Requisition and attached memorandum, dated June 12, 1987, p. 2). Indeed, the Appellant had successfully completed Jacket No. 174-606 only a month before it was awarded the contract at issue here. See, Preliminary Hearing Transcript (November 28, 1988), P. 11 (PHT). 5. The 18,000 defective books shipped by the Appellant represented 90 percent of the amount ordered under the contract (20,000 books). 6. The Board's case file contains a poor copy of the letter in question; much of the text is indistinct, including the anticipated revenue figure used by Morison. The Board's "best guess" is that the anticipated revenue figure is $600,000, but it could just as well be $500,000 -- the copy of the letter in the file prevents the Board from saying with certainty which figure was used by Morison. Moreover, it should be noted that the record contains a third anticipated revenue figure for the hard bound version of WILDLIFE AMERICA -- $499,000 -- which was the figure the USPS gave GPO in response to a later inquiry, and which the contracting officer used in seeking the concurrence of the Contract Review Board (CRB) to terminate the Appellant's contract for default (R4 File, Tab I). In the Board's judgment, however, the exact anticipated revenue figure is not determinative; suffice it to say that the USPS expected a considerable income from the projected sales of these books. 7. The missing signature consisted of the first two and last two pages of the publication, including the table of contents. Apparently, the missing signature was actually the cover of the softbound version of WILDLIFE AMERICA and was to have been included in the hardbound edition. See, SHR, p. 2. Furthermore, the record indicates that the error was made by the Appellant's bindery subcontractor. Id. However, it is well-settled that a contractor is liable for the performance failures of its subcontractors unless it can show that those shortcomings occurred without the negligence of the contractor or subcontractor, or for reasons beyond the control of either of them. See, e.g., Chavis and Chavis Printing, GPO BCA 20-90 (February 6, 1991), Sl. op. at 13 (and cases cited therein); Rose Printing Company, GPO BCA 2-87 (June 9, 1989), Sl. op. at 6; J.M.T. Machine Co., Inc., ASBCA Nos. 23,928, 24,298, 24,536, 85-l BCA ¶ 17,820; Charles H. Siever, ASBCA No. 24,814, 83-1 BCA ¶ 16,242; International Electronics Corp. v. United States, 227 Ct. Cl. 208, 646 F.2d 496 (1981). See also, 1980 Contract Terms. ¶ 2-18(c). This record is devoid of any such evidence. 8. The Board recognizes that the USPS' reason for wanting to cancel the contract -- waiting for new books to be printed (since it would not accept a patched or repaired product) would preclude it from meeting its delivery commitments -- might imply a request to GPO to terminate the contract for convenience. However, the Board observes that the books shipped by the Appellant were, in fact, defective, and the USPS did requisition them. See, PHT. p. 12. In any event, the decision on whether to terminate a contract, and how to terminate it (whether by default or for convenience), are matters wholly within the discretion of the Contracting Officer and not the customer-agency, see, 1980 Contract Terms. ¶¶ 2-17(a), 2-18(b), (d), just as he/she is the only person authorized to alter or modify the contract. See, 1980 Contract Terms. ¶ 2-2. See also, e.g., Castillo Printing Company, GPO BCA 10-90 (May 8, 1991), Sl. op. at 44-45 (and cases cited therein). 9. The Notice of Quality Defects indicates that the matter was referred to GPO's Printing Procurement Department (PPD) on October 14, 1987, with the date of resolution shown as December 17, 1987 (when the contract was terminated for default) (R4 File, Tab E). This two-month time gap forms the heart of the dispute between the parties. 10. The record indicates that the Appellant had delivered the repaired books to the USPS by October 9, 1987, nearly a week earlier. See, Appellant's Exhibit No. 3 (App. Exh. No.). Furthermore, the record discloses that tipping in missing pages is a common industry repair technique. PHT, p. 10. 11. Neither the Respondent nor the USPS had requested these samples. However, since the accompanying letter was addressed to Flemion, it seems clear that these repairs were accomplished in response to his inquiry of October 19, 1987. App. Exh. No. 3. 12. At the Status Hearing conducted by the Board on April 3, 1990, the contracting officer stated that both attempts at repairing WILDLIFE AMERICA by tipping in the missing pages were unsatisfactory because of the poor quality of glue used by the Appellant. See, SHR, p. 5. 13. The USPS' marketing plan for WILDLIFE AMERICA is attached to the Response to Appellant's First Set of Interrogatories (May 23, 1988), and included a consignment arrangement with the Hallmark chain of stores; the plan contemplated the Executive Gift Set being available in mid-October. See, Memorandum from Cathy Caggiano to Mr. Davison and Mr. Morison, dated August 12, 1987, p. 2. 14. In summary, on three separate occasions between September 30, 1987, and December 17, 1987, the Appellant sent sample copies of WILDLIFE AMERICA repaired with tipped in pages to the Respondent; i.e., on October 15, 1987 (to Flemion), November 5, 1987 (to Flemion), and November 19, 1987 (to Brzozowski). App. Exh. Nos. 1, 2. and 4. When the second set of corrected books was delivered, Flemion had retired and they were received by Ms. Diane Smith, a GPO employee who is not further identified in the record. App. Exh. No. 4. At the Status Hearing, the Appellant introduced into evidence two versions of its repair work- identified respectively as the Appellant's first and second tipped in samples-which were made part of this record. App. Exh. Nos. 5 and 6. An examination of the Appellant's exhibits by Flood, who was present at the hearing, disclosed that he had not seen one of them. SHR, pp. 3, 5. From the discussion which followed it was apparent that although the Appellant had submitted two versions of repaired copies to the Respondent, Flood had only seen the one received by Brzozowski (the second sample), whereas the version requested by Flemion (the first sample) had been lost. Id., pp. 6, 8-9. According to the record, the Appellant actually sent two versions of its repair work to Flemion, with the missing pages in the second one (November 5, 1987) being tipped in closer to the spine. App. Exh. Nos. 3 and 4. On reflection, therefore, it seems that the Respondent has misplaced both the October 15, 1987, and the November 5, 1987 copies of the Appellant's repair work. Moreover, since the Appellant made only two attempts to correct WILDLIFE AMERICA with tipped in pages, then the one sent to Brzozowski on November 19, 1987 (and seen by Flood), must have been a duplicate of the lost November 5, 1987, version. 15. The Appellant was also notified that in the event of reprocurement of the product, it would be liable for any excess costs (R4 File. Tab J). However, the publication was canceled and no reprocurement costs were incurred. Therefore, that issue is not involved in this appeal. See, 1980 Contract Terms. ¶ 2-18(b). 16. The Respondent urges the Board not to consider the Appellant's argument that it would have been possible for it to reprint WILDLIFE AMERICA and still make the delivery schedule. In the Respondent's opinion, the Appellant's position is based on unproven data regarding its production capacity, which is not a part of the stipulated record, and there is no evidence that the Appellant ever offered to reprint this publication; instead, the Appellant insisted on making a tipped in correction, even after the USPS rejected such a repair. APPF. Tab 35, p. 4, n. 3. contrary to the Respondent's view of the record, the Board believes that the Appellant did, in fact, raise the possibility of reprinting the book, both with the USPS sometime around November 25, 1987, and with the contracting officer, albeit not until December 4, 1987. See, R4 File. Tab G ("Based on this information, I am sure you can understand why we [USPS] cannot use the book if the printing contractor is allowed to reprint due to the errors made in the initial production."), Tab H ("Side sew books (6) by Wednesday -- if not acceptable, will agency accept reprint? -- Paula/WF 3:55"). The Appellant's proposal to reprint the book was transmitted to the USPS, which rejected it because the offer was made too late for the customer-agency's marketing program. See, R4 File. Tab I ("The Department insists that the product was to be used as a Christmas promotion, which would generate as much as $499,000 in revenue, and reprinting to correct the defect would cause a delay which might hinder it's [sic] marketability."). However, in light of the Board's conclusion, infra, with respect to the central issue in this appeal -- i.e., whether or not GPO waived its right to terminate the contract in this case for default -- it is unnecessary for the Board to rule on the Respondent's evidentiary objections. See, e.g., W.M.Z. Manufacturing Company, Inc., ASBCA No. 28410, 84-3 BCA ¶ 17,569, at p. 87,554. 17. The Respondent is probably correct that "[m]ost waiver cases involve situations where the contractor is in default for failure to meet the delivery schedule and the Government does nothing to terminate the contract, thereby allowing the contractor to continue performance and incur costs." APPF. Tab 35, p. 5 (citing, Scandia Manufacturing Co., ASBCA No. 20,888, 76-2 BCA ¶ 11,949)). However, the Government can lose its right to terminate a contract for default in other situations as well. See. e.g., Husky Industries, Inc., GSBCA No. 5,478, 80-1 BCA ¶ 14,299 (where performance under a non-severable definite quantity contract was virtually complete, and the government had already paid for and used the portion of the goods already shipped, it was improper to terminate the remainder of the contract for failing to make progress); Baifield Industries, Division of A-T- O, ASBCA Nos. 14,582, 14,583, 72-2 BCA ¶ 9,676 (the Government could not reject defective supplies accepted prior to the default termination on the ground that acceptance was conditional pending Government conducted performance tests; the government's only remedy was to require correction of the defects). Compare, e.g., Artisan Electronics Corporation v. United States, 205 Ct. Cl. 126, 499 F.2d 606 (1974) (where the deliveries are in increments, the entire contract, rather than just the deliveries on which the contractor is in default, can be terminated); Novelty Products Company, ASBCA No. 21,077, 78-1 BCA ¶ 12,989 (even if the government waived its right to terminate for the contractor's late delivery of the first increment, there was no waiver of the delivery dates for subsequent installments and the Government retained the right to terminate the contract for default upon the contractor's failure to deliver any of the later increments). 18. In reaching its decision, the Board has considered all of the documents listed on the parties Joint Record List (JRL), which was submitted to the Board on April 20, 1990. APPF, Tab 31. The Board accepted the JRL by order, dated May 3, 1990. APPF, Tab 32. As shown in the JRL, by agreement of the parties, the record in this case consists of: (1) the Pleadings (Appellant's complaint; Respondent's Answer; Appellant's First Set of Interrogatories; Appellant's Motion to compel Discovery; Response to Appellant's Motion to compel Discovery; Appellant's Reply to Response to Appellant's Motion to Compel Discovery; Respondent's Supplemental Response to Appellant's First Set of Interrogatories; Respondent's letter of May 16, 1989, transmitting USPS response to Interrogatory 3a of Appellant's First Set of Interrogatories; Appellant's Response to Respondent's Supplemental Response to Appellant's First Set of Interrogatories; Respondent's letter of June 28, 1989, responding to Appellant's Response to Respondent's Supplemental Response to Appellant's First Set of Interrogatories; Appellant's Second Set of Interrogatories and Requests for Production of Documents; Response to Appellant's Second Set of Interrogatories and Requests for Production of Documents; Motion to Compel Discovery to Appellant's Second Set of Interrogatories and Requests for Production of Documents); (2) the Rule 4 File (Tabs A-L); (3) Appellant's supplementation of the Rule 4 File (App. Exh. Nos. 1 to 4); (4) Transcript of November 28. 1988, preliminary hearing: (5) Board Summary of April 3, 1990. Status Hearing: and (6) two Appellant exhibits. repaired books with tipped in pages, received into evidence on April 3, 1990 (App. Exh. Nos. 5 and 6). 19. Among other GPO rules and regulations, the Appellant's contract was governed by the terms and conditions set forth in 1980 Contract Terms (R4 File. Tab B, p. 1). See, note 2 supra. Shortly before this appeal was filed with the Board, 1980 Contract Terms was superseded by GPO Contract Terms. GPO Publication 310.2, effective December 1, 1987 (Rev. 9-88) (1988 Contract Terms). An examination of the "Default" clause in the two regulations discloses that they differ somewhat with respect to the language applicable to a contractor who successfully challenges the default termination of a GPO contracting officer. The current "Default" provisions simply state, in pertinent part: "If, after termination, it is determined that the contract was not in default, or that the default was excusable, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the Government." See, 1988 Contract Terms. ¶ 20(g). In contrast, the "Default" clause which govern. the Appellant's contract provides, in pertinent part: "If, after notice of termination of the contract under the provisions of this article, it is determined for any reason that the contractor was not in default ..., or that the default was excusable ..., the rights and obligations of the parties shall, if the contract contains a clause providing for termination for convenience of the Government, be the same as if the notice of termination had been issued pursuant to such article. If, after notice of termination of the contract under the provisions of this article it is determined for any reason that the contractor was not in default ..., and if the contract does not contain a clause providing for termination for convenience of the Government, the contract shall be equitably adjusted to compensate for such termination and the contract modified accordingly." [Emphasis added.] See, 1980 Contract Terms. ¶ 2-18(e). In other words, whereas the current "Default" clause automatically converts an erroneous default termination in to a termination for convenience, the 1980 "Default" provisions would allow such a conversion only if the contract itself expressly provided for such a result; otherwise, a successful Appellant's remedy is limited to an equitable adjustment and a contract modification. In practical effect, this is a distinction without a difference. While the Appellant's contract contains no specific clause which would automatically convert an erroneous default termination into one for the convenience of the Government, as in 1988 Contract Terms. ¶ 20(g), nonetheless there is a termination for convenience provision in 1980 Contract Terms. See, 1980 Contract Terms. ¶ 2-17. Since all of 1980 Contract Terms is incorporated by reference in the Appellant's contract, the remedy requested by the Appellant -- vacation of the default termination and conversion of the Contracting Officer's decision into one of convenience for the Government -- could be granted by the Board. APPF, Tab 34, pp. 1, 8. 20. The Board was established by the Public Printer in 1984. GPO Instruction 110.10c, Subject: Establishment of the Board of Contract Appeals, dated September 17, 1984. Prior to the Board's creation, appeals from decisions of GPO Contracting Officers were considered by ad hoc Contract Appeals Boards (the decisions of these ad hoc boards are hereinafter cited as GPOCAB). While the decisions of these ad hoc boards are not legally binding on the Board, it is the Board's policy to follow them where applicable and appropriate. See, e.g., Chavis and Chavis Printing, supra, Sl. op. at 9, n. 9. 21. The rationale for this dual application of the default clause is simple. As explained by Cibinic and Nash: "While these clauses explicitly make untimely performance the basis for the default action, it is important to recognize that nearly every Government contract spells out the contractor's required performance in terms of the nature of the product or service which is to be delivered or performed as well as the time by which these performance efforts are to be completed. Thus, in order for the contractor to render 'timely performance,' two basic requirements must be satisfied. The product, service or construction work must conform to the required design/performance characteristics, and the product must be delivered or the work completed by the specified due date." [Emphasis added.] John Cibinic, Jr. & Ralph C. Nash, Jr., Administration of Government Contracts 2d ed., (The George Washington University, 1986), p. 677 (hereinafter Cibinic and Nash). 22. Similarly, the omission of a "show cause notice" by the Government is not a procedural defect to a termination based on the contractor's failure to make timely deliveries or perform timely services. See, e.g., Kict Pack Company, Inc., ASBCA No. 33,15, 89-3 BCA ¶ 22,151, at 111,486-87 (citing, H. N. Bailey & Associates, ASBCA No. 21,300, 77-2 BCA ¶ 12,681, at 61,553). On the other hand, use of a show cause notice is required when practicable. Lewis B. Udis v. United States, 7 Cl. Ct. 379, 385-86 (1985). In that regard, the procurement regulation in effect when the Appellant was awarded the contract in question, like the procurement rules in other Federal agencies, recommended the issuance of a show cause letter, "where practicable," prior to the default termination of a contract for failure to make timely deliveries or perform services within the time required by the contract. GPO Printing Procurement Regulation. GPO P305.3 / December 1980 / PP, ch. VII, § 1, ¶ 3(c)(l). The record contains no evidence of any show cause letter being issued by the Respondent in this case, and the Board assumes that, in fact, no such letter was sent to the Appellant. On the basis of the record, it seems to the Board that the Contracting Officer simply made the determination that it was impracticable to issue such a show cause letter under the circumstances herein. Because this decision was within the discretion of the Contracting Officer, and since the Appellant has not challenged that determination, the Board will not disturb the Contracting Officer's judgment. cf., Stabbe Senter Press, GPO BCA 13-85 and 19-85 (May 12, 1989), Sl. op. at 53. 23. Default terminations -- as a species of forfeiture -- are strictly construed. See, D. Joseph DeVito v. United States, 188 Ct. C1. 979, 413 F.2d 1147, 1153 (1969). See also, Murphy, et al. v. United States, 164 Ct. Cl. 332 (1964); J. D. Hedin Construction Co. v. United States, 187 Ct.Cl. 45, 408 F.2d 424 (1969). 24. Generally, where the Government insists on strict compliance, it bears the initial "burden of persuasion" to show that the work it rejects does, in fact, deviate from the specifications. See, e.g., International Lithographing, GPO BCA 1-88 (December 29, 1989), Sl. op. at 20 (citing, Fillip Metal Cabinet Company, GSBCA No. 7,695, 87-2 BCA ¶ 19,822 (1987); Hardeman-Monier-Hutcherson, ASBCA No. 11,785, 67-I BCA ¶ 6,210 (1967); Ramar Co., ASBCA No. 9,644, 72-2 BCA ¶ 9,644 (1972); Pams Product., Inc., ASBCA No. 15,847, 72-1 BCA ¶ 9,401 (1972)). The Government usually meets this burden by advising the contractor of the results of the inspection it has conducted. The burden then shifts to the contractor to prove that the Government's findings are invalid for one reason or another. Id., Sl. op. at 21 (citing, Universal Steel Stripping Co., ASBCA No. 13,686, 69-2 BCA ¶ 7,799 (1969); C. W. Roen Construction Co., DOTCAB Nos. 75-43, 75-43A, 76-2 BCA ¶ 12,215 (1976); Continental Chemical Corp., GSBCA No. 4,483, 76-2 BCA ¶ 11,948 (1976)). However, the need for such proof is obviated in this case by the Appellant's concession that the 18,000 books in question were defective. See, e.g., Chavis and Chavis Printing, supra, Sl. op. at 9, 13. 25. See, Cibinic and Nash. n. 21 supra, at p. 677. As the Court of Claims observed in DeVito, "[t]he Government is habitually lenient in granting reasonable extensions of time for contract performance, for it is more interested in production than in litigation." D. Joseph DeVito v. United States, supra, 413 F.2d at 1153. . 26. It has been observed that there is no clear demarcation between reasonable forbearance and waiver. See, Westinghouse Electric Corporation, ASBCA No. 20306, 76-1 BCA ¶ 11,883 (1976). Consequently, when this flexible test is applied, the result can be rather lengthy Government forbearance periods before the actual default termination is effected. See, e.g., Kit Pack Company, Inc., supra, 89-3 BCA ¶ 22,151 (27 days); Harold Burgmayer Real Estate, Inc., HUDBCA No. 8S-3404C5. 88-3 BCA ¶ 21,063 (89 days); Centroid, Inc., ASBCA No. 29,463, 86-1 BCA ¶ 18,644 (74 days); KOPA Kopier Produckte, supra, 85-3 BCA ¶ 18,367 (5 weeks); W.M.Z. Manufacturing Company, Inc., supra, 84-3 BCA ¶ 17,569 (66 days); ACI-FILCO Corporation, supra, 83-1 BCA ¶ 16,151 (5 months); H. N. Bailey & Associates, ASBCA No. 21,300, 77-2 BCA ¶ 12,681 (33 days); General Products Corporation, ASBCA No. 16,658, 72-2 BCA ¶ 9,629 (40 days). Indeed, in one case discovered by the Board, the Armed Services Board of Contract Appeals upheld a default termination effectuated more than 3 years after the contractor actually defaulted on the contract. See, EL-ABD Engineering, ASBCA No. 32,023, 88-2 BCA ¶ 20,555. 27. This 78-day period is the total number of calendar days from September 30, 1987 (the date of actual default) to December 17, 1987 (the date of termination). However, there were only 54 work days over that time span. In that regard, the Board takes judicial notice of the fact that three Federal holidays occurred during this time frame Columbus Day (Monday, October 12, 1987); Veteran's Day (Wednesday, November 11, 1987); and Thanksgiving Day (Thursday, November 26, 1987). The record also shows that the Respondent was not made aware of the Appellant's nonconforming shipment until October 9, 1987. The record does not explain why the USPS waited nearly 10 calendar days to notify the Respondent that the Appellant had shipped nonconforming books, and that the contract was in default as of September 30, 1987. If this 10-day gap is taken into consideration, then the actual claimed forbearance period in this matter is only 68 calendar days (or 46 work days). 28. In Government contract law, the principle of waiver is more accurately referred to as estoppel. It is a significant issue in supply contracts, since a contractor who continues performance while in default frequently incurs costs which will not be recovered if the Government later properly terminates for default. See, Harold Burgmayer Real Estate, Inc., supra, 88-3 BCA ¶ 21,063 (citing, Acme Process Equipment Co. v. United States, 171 Ct. Cl. 324, 347 F.2d 509 (1965), rev'd on other grounds, 385 U.S. 138 (1966)). also cf., EL-ABD Engineering, supra, 88-2 BCA ¶ 20,555, at 103,917 (citing, G & G Industries, Inc., ASBCA No. 26,111, 84-1 BCA ¶ 16,999). Printing contracts awarded by GPO, such as the one here, are considered supply contracts. The principle does not apply to situations where the work performed after the due date is not wasted, because the contractor cannot be deemed to have changed its position to its detriment. See, Olsen Plumbing and Heating Co., ASBCA Nos. 17,965, 18,411, 75-1 BCA ¶ 11,203 (and cases cited therein). 29. As subsequently interpreted, DeVito's "time is of the essence" rule means that asserted facts regarding urgency are legally irrelevant; i.e., there is simply no necessity that there be an urgency to a delivery date requirement for time to be of the essence. See, e.g., Control Mechanisms, Inc., ASBCA No. 27,180, 84-2 BCA ¶ 17,330. A view contrary to DeVito was expressed in the Trial Judge's opinion adopted by the claims court in Franklin E. Penney Co. v. United States, 207 Ct. Cl. 842, 524 F.2d 668 (1975). In Penney, the Court observed, as dicta, that a contract can be substantially performed and therefore not subject to default when delivery is slightly late, but only when time is not of the essence; i.e., whether time is of the essence depends upon the nature of the contract and the particular circumstances of the case. However, both before and after Penney, the court stated that time is of the essence in all Government supply contracts containing a delivery date unless the Government has waived it. See, e.g., D. Joseph DeVito v. United States, supra, 413 F.2d 1147 (Ct. C1. 1969); Simmons Precision Products, Inc. v. United States, 646 F.2d 886 (Ct. Cl. 1976). Therefore, the Board believes that the essential elements of the Penney doctrine -- i.e., the nature of the contract and the particular circumstances of the case -- are just additional factors to be considered in deciding whether a waiver has occurred, and that DeVito expresses the law with regard to time being of the essence in any contract containing fixed dates for performance. 30. As indicated in note 26 supra, the point at which the period of forbearance ends and a waiver occurs varies greatly. Normally, a waiver will be found where the Government takes some action which gives the contractor the impression that the original delivery date no longer applies. For example, the Government may accept late deliveries. See, e.g., Patten Company, Inc., ASBCA No. 35,319, 89-3 BCA ¶ 21,957; Aargus Poly Bag, GSBCA No. 4,3I4, 76-2 BCA ¶ 11,927; Prestex, Inc., ASBCA Nos. 21,284, 21,372, 21,453, 21,467, 23,184, 81-1 BCA ¶ 14,882 (partial deliveries), issue change orders. See, e.g., Klein v. United States, 285 F.2d 778 (Ct. Cl. 1961); Maurey Instrument Corporation, ASBCA Nos. 11,644, 12,065, 67-2 BCA ¶ 6,480, approve waivers requested by the contractor. See, e.g., Baifield Industries, Division of A-T-O, Inc., supra, 72-2 BCA ¶ 9,676, ask the contractor to correct deficiencies or suggest corrective actions itself. See, e.g., Multi Electric Manufacturing, Inc., ASBCA No. 30,055, 85-1 BCA ¶ 17,878; Baifield Industries, Division of A-T-O, Inc., supra, 72-2 BCA ¶ 9,676, or perform acceptance inspections on the items after the delivery date. Associates-Aircraft-Tool Manufacturing, Inc., ASBCA No. 7,255, 1963 BCA ¶ 3,799; Multi Electric Manufacturing Inc., supra, 85-1 BCA ¶ 17,878. On the other hand, in some circumstances Government inaction can amount to a waiver of its right to terminate a contract for default. See, e.g., Prestex, Inc., supra, 81-1 BCA ¶ 14,882 (the fact that the contracting officer was silent for more than 60 days after a show cause letter was sent to the contractor, while he knew that the contractor was continuing to perform and expend monies in an effort to comply, was evidence of an intent to continue with the contract). See also, e.g., Amercom Division, Litton Systems, Inc., ASBCA No. 19,687, 77-1 BCA ¶ 12,329, affirmed, 77-2 BCA ¶ 12,554; Westinghouse EleCtric Corporation, ASBCA No. 20,306, 76-1 BCA ¶ 11,883 (1976). However, an agreement by the Government to test a sample of a product will not, in and of itself. act to waive the delivery date and foreclose termination of the contract for default. See, e.g., Fancy Industries, Inc., ASBCA No. 26,578, 83-2 BCA ¶ 16,659 (prior to the delivery date); H. N. Bailey & Associates v. United States, supra, 449 F.2d at 384-85 (after the delivery date has passed). 31. While the Board agrees with the Appellant that the frequency of contacts between the parties is a relevant factor in determining the reasonableness of the Respondent's delay, it does not believe, as the Appellant apparently does, that the factor is of controlling significance. Rather, whether such contacts were frequent or infrequent is just one factor which must be considered by the Board, and it is not entitled to any greater weight than any other factor. 32. See note 12 supra. 33. As indicated in note 14 supra, the Board believes that the repaired version of WILDLIFE AMERICA which the Appellant sent to Brzozowski on November 19, 1987 was a duplicate of the unsolicited (and lost) November 5, 1987, corrections, and not a completely reconstructed version. This second repair job was also unacceptable. 34. See note 4 supra. 35. See note 26 supra. 36. For the purpose of this discussion, the Board has disregarded the proposal that the USPS accept the defective books at a discounted price. As the Respondent correctly points out, the Government cannot be compelled to accept defective products at a reduced price, even if the defects are relatively minor. See, e.g., Famous Model Co, Inc., supra, 68-1 BCA ¶ 6,902 (1968); Cherry Meat Packers, Inc., supra, 1963 BCA ¶ 3937. More importantly, since the proposal referred to books already produced, no "continued performance" would have been involved. Therefore, the offer concerning a discount is irrelevant to the discussion of the DeVito rule. 37. At the Status Hearing, the Board specifically asked the Appellant if tipping in the missing pages was its method of correcting the defect. SHR. pp. 3-4. In response, the Appellant indicated that this repair technique was the result of a mutual decision made by its employees and the Respondent's Quality Control (QC) personnel. Id., p. 4. In the Board's view, however, a better interpretation of the record, based on the chronology of events, is that the Appellant itself made the initial determination to repair the books by tipping in the missing pages (a common repair technique in the industry) prior to October 14, 1987, when the Respondent was first alerted to the defect in the books and the method chosen to repair the error. Thereafter, the Respondent's employees monitored the Appellant's repair efforts and made suggestions for improvement. 38. This is not to say that the contracting officer was uninterested in the effort being expended by the Appellant to correct the bindery subcontractor's error. Rather, as the record indicates, the contracting officer was more interested in having the Appellant repair the book in accordance with Brzozowski's instructions, which would have meant a total reconstruction of the product (or by any other method which would hide the corrections) because, in his view, the "[j]ob need[ed] to be perfect" (R4 File, Tab H). 39. This case is also materially different from DeVito because the court's rejection of the default termination in that case was heavily influenced by the fact that at no time during the 48-day period between the contractor's failure to deliver and his receipt of the formal notice of termination, did he have any inkling that the contracting officer was thinking in terms of termination for default. See, Frank A. Pellicca v. United States, supra, 525 F.2d at 1043. Here, of course, the Appellant was expressly told by the contracting Officer on December 4, 1987, that default was under consideration but that he was trying to avoid it. 40. See, Cibinic and Nash. note 21 supra, at pp. 221-22, 223-25. There is also an implied negative obligation on the part of the Government that it will not do that which will interfere with the contractor in the performance of the contract. i.e., at pp. 222-23. See, e.g., Nanofast, Inc., ASBCA No. 12,545, 69-1 BCA ¶ 7,566 (citing, George A Fuller Company, A Corporation v. United States, 108 Ct. Cl. 70, 69 F.Supp. 409 (1947); Fern E. Chalendar d/b/a Chalendar Construction Company of Springfield, Missouri v. United States, 127 Ct. Cl. 557; Restatement. Contracts, §§ 295 and 315). Both implied duties are part of every Government contract. George A Fuller Company, A Corporation v. United States supra, 69 F.Supp. 409. 41. See, Cibinic and Nash. note 21 supra, at p. 221. 42. In cases involving Government delays the relevant inquiry is whether the delays constitute a breach of contract. United States v. Howard P. Foley Company, 329 U.S. 64, 65 (1946); The Kehm Corporation v. United States, supra, 93 F.Supp. at 624. 43. The Board's rationale in Nanofast was based on the standard inspection Clause in the Armed Services Procurement Regulation (ASPR) which gave the contractor specified rights to replace or correct nonconforming supplies. ASPR 7-103.5. Indeed, for years the ASBCA applied the cooperation rule only in cases where the Government had an affirmative obligation under the contract, such as performing inspections. See, Quality Controlled Stamping, Inc., ASBCA No. 19,074, 74-2 BCA ¶ 10,757, at 51,149 (citing, Nanofast, Inc., supra, 69-1 BCA ¶ 7,566). However, an examination of more recent cases warrants the conclusion that apart from the express language of the contract, the Government's duty to cooperate can be imputed from responsibilities inherent in the contractual relationship itself. See, e.g., Spectrum Leasing Corporation, supra, 90-3 BCA ¶ 22,984, at 116,437. 44. Under the contract, in order for the Appellant to print WILDLIFE AMERICA the Respondent first had to furnish it with certain materials, e.g., a complete set of color separate offset films; a sample from a previous printing to be used as general guide; approved press proofs from a previous printing; one reproduction proof for shipping container labels; and a GPO Form 892 proof label (R4 File, Tab B, at p. 2). Clearly, a delay or failure on the part of the Respondent to meet this obligation would have breached its implied duty to cooperate with the Appellant to complete performance under the contract. See, e.g., George A. Fuller Company, A Corporation v. United States, supra, 69 F.Supp. 409; The Kehm Corporation v. United States, supra, 93 F.Supp. at 624; Ballenger Corporation, supra, 84-1 BCA ¶ 16,973, mod. on other grounds, 84-2 BCA ¶ 17,277. 45. See note 16 supra. 46. Thus, unlike the situation where a breach of the implied duty to cooperate will be found from an agency's unreasonable disapprovals of a contractor's proposal regarding alternate methods of performance, see, Albert C. Rondinelli, supra, 65-1 BCA ¶ 4,674, here the Respondent itself was suggesting alternatives to the contractor. 47. Another important QATAP concept is that of "Product Quality Levels (PQL's)," which specify the degree of quality required in the final product. 1981 QATAP. Definitions, ¶ 1-7, p. 1. In that regard, the QATAP contains five PQL's ranging from Level I (Best) to Level V (Functional); tolerances for attributes vary with the PQL. Id. 48. Under the terms of the contract, the Appellant was expected to perform at Level 1 (Best) with respect to "finishing attributes" (R4 File, Tab B, "Quality Assurance Levels and Standards," p. 5). 49. The Board is aware that it could be argued that the Nanofast doctrine would never apply to a GPO printing contract because any product flaw would be either a "critical" or a "major" defect under the QATAP, by definition. However, the Board believes that not every failure to meet the contract specifications is necessarily a QATAP violation. Furthermore, the Board believes that some defects defined as "major" within the QATAP could, in appropriate circumstances, be considered "minor" deviations within the meaning of the Nanofast rule. Obviously, the rule of reason must be applied, and each case considered on its own merits. The Board's conclusion here-that missing pages are a "critical defect"-is not based solely on the letter of the QATAP, but also rests on an understanding of the purposes of its drafters, as expressed in recent Board precedent. See, Stabbe Senter Press, supra, Sl. op. at 51-52. 50. In that regard, the Board finds itself in agreement with the Court of Claims which has stated that: "[it] would be setting a dangerous precedent to hold that the Government relinquished a contract right for doing what merely amounts to lending a helping hand to the contractor." Red Circle Corporation v. United States, supra, 186 Ct. Cl. at 9 (cited in Quality Controlled Stamping, Inc., supra, 74-2 BCA ¶ 10,757, at 51,149). 51. The Board notes that the default Clause involved in Radiation Technology is identical to the default Clause applicable to this appeal. See, Radiation Technology. Inc. v. United States, 366 F.2d at 1004-05; 1980 Contract Terms. ¶¶ 2-18(a),(b). 52. In the judgment of the Court, the contractor's view would preclude the Government's right to affect summary termination so long as timely delivery was made; i.e., the simple expedient of making a timely shipment would allow a contractor to escape an automatic termination, notwithstanding the distinct possibility that the shipment might be substantially defective. Radiation Technology, Inc. v. United States, supra, 366 F.2d at 1005. Similarly, the Court thought that if delivery is measured against the doctrine of strict conformity, it would invite the possibility of a surprise rejection occurring subsequent to timely shipment. When this is coupled with summary termination authority, the Court believed that it would place too much power in the hands of a contracting officer to reject the shipment and deny a contractor the opportunity to cure a nonconformity in his delivered product. Id. 53. In the court's view, "...even where time is of the essence; i.e., where performance must occur by a given date, this factor does not demand that performance be measured in terms of strict conformity. It does require that performance be timely, but assuming this, there would thereafter remain for inquiry the question as to whether performance was substantial in other respects." Radiation Technology, Inc. v. United States, supra, 366 F.2d at 1006. 54. The Radiation Technology doctrine is Clearly an encroachment on the Government's right to terminate. However, it is also apparent that the rule merely stays for a reasonable period the Government's right to terminate, and not its right to insist on 100 percent conforming goods; i.e., the doctrine concerns time, not the supplies themselves. Furthermore, like the DeVito rule regarding "waiver," the "substantial compliance" principle (or "substantial conformity" as it is sometimes called) of Radiation Technology, is most often applied to supply contracts. See, note 28 supra. It is used to prevent surprise rejections by the buyer after a contractor's timely shipment in situations where performance departs in only minor respects from that which has been promised. See, e.g., Environmental Tectonics Corporation, ASBCA No. 20340, 76-2 BCA ¶ 12,134. 55. In most cases involving the "substantial compliance" rule, the timeliness of the contractor's shipment is generally not an issue. Rather, the dispute usually involves the resolution of questions of "reasonable belief" and the seriousness of the defects. Absent such a "reasonable belief" by the contractor and proof that only minor defects are involved, the supplier is not entitled to the protection of the substantial compliance principle. See, e.g., Introl Corporation, ASBCA No. 27,610, 85-2 BCA ¶ 18,044 at 90,578 (citing, Radiation Technology, Inc. v. United States, supra, 366 F.2d 1003); Environmental Tectonics Corporation, supra, 76-2 BCA ¶ 12,134 (the Radiation Technology rule does not apply where the contractor knowingly ships goods which do not conform to the requirements of the contract). Also see, Norwood Precision Products, Textron, Inc., ASBCA Nos. 38095, 38196, 90-3 BCA ¶ 23,200 (the reason that the parts were not delivered on time was that the contractor knew they were defective; thus, even if the contractor had shipped the parts, no relief from default could have been obtained under the doctrine). 56. The general rule imputing the performance failures of subcontractors to the prime contractor, see note 7 supra (and the cases cited therein), is not relevant to this discussion. There is nothing in the record to indicate that the bindery subcontractor knew at the time it shipped WILDLIFE AMERICA to the USPS that four pages were missing from the book. Thus, the Board assumes that the subcontractor made an innocent mistake, and like the Appellant, it had a good faith reasonable belief that the books it sent to the USPS conformed to the contract specifications. 57. See note 13 supra.