U.S. GOVERNMENT PRINTING OFFICE
BOARD OF CONTRACT APPEALS
The Appeal of VALLEY PRINTING SERVICE
GPO BCA 3-84
June 6, 1985
Michael F. DiMario, Administrative Law Judge
OPINION
This appeal timely filed by Valley Printing Service ("VPS")
pursuant to the "Disputes" clause of the contract is from the
final decision of Michael T. Atkins, Contracting Officer,
Seattle Regional Printing Procurement Office, ("SRPPO"), U.S.
Government Printing Office ("GPO"), dated June 29, 1984,
terminating the contract known as Purchase Order R-1376,
Program 1046-S, Print Order 4000, Jacket 794-789, for default
for "failure to reprint the 20,000 folders due to unacceptable
printing." (Exhibit 3, page 2.)
BACKGROUND
On March 15, 1984, Appellant, VPS, by Print Order No. 4000,
was given an award by the SRPPO, GPO, Respondent, to produce
some 20,000 copies of a certain brochure requisitioned from
the SRPPO by the Fish and Wildlife Service, ("FWS"), U.S.
Department of the Interior, Portland, Oregon (Exhibit 3, page
4). The award was in the estimated amount of $1,900 with
shipping date of final product to two FWS locations by March
30, 1984. The print order was placed with appellant under the
terms and conditions of
a certain requirements type contract between the appellant and
the GPO identified as Program 1046-S which had been previously
completed. The print order required the finished product to be
produced in black ink with certain background areas in "process
blue" ink on "70# White Litho Coated Book" stock from camera copy
and negatives furnished by FWS; the original copy and negatives
to be returned to FWS upon completion.
Program 1046-S incorporates by reference all the terms and
conditions of "GPO Contract Terms No. 1," (GPO Pub. 310.2) and
"Quality Assurance Through Attributes - Contract Terms," (GPO
Pub. 310.1). Among those terms and conditions are
requirements for the contractor to furnish two samples of
completed products for inspection. Pursuant to such
requirement, appellant furnished samples which upon
examination by the FWS were rejected. The reasons for the
rejection are set forth in a letter of April 10, 1984, wherein
reprinting at contractor expense is requested, as follows:
On Panel 4 of the inside of the leaflet all of the recreational
symbols are overdeveloped rendering this useless for proper
identification. The map on the back of the leaflet is also
overexposed, the type frightfully overdeveloped and not legible.
The recreational symbols cannot be discerned as to what they
mean. The boat ramp symbol in the large map should have a white
background instead of blue. The blue ink coverage is poorly done
on Panels 1, 2, and 3. (Exhibit 3, page 7.)
The SRPPO then requested additional random samples for further
examination. These were apparently mailed to the SRPPO on or
about May 2, 1984. At about the same period of time the SRPPO
apparently returned the rejected negatives to the appellant
for its consideration. The record is unclear on the point.
However, the appellant by letter of Wes Rogers to Kirk
Clapper, SRPPO, dated May 10, 1984, states: "Using the negs
you sent back, we made a dylux proof. Using our normal
exposure times this is the result. If we had overexposed the
plate or the dylux, the definition of the other characters
would have been distorted." (Exhibit 3, page 8.)
Despite this explanation, the SRPPO upon its examination of
some 32 additional randomly selected samples of the final
product it received, concurred with the FWS rejection, finding
the same defects previously noted. Accordingly, the
appellant, by letter of the SRPPO Contracting Officer dated
May 17, 1984, was advised of the results of the examination of
samples, the rejection of the product, and the requirement
that the product be reprinted. The Contracting Officer noted
the defects as "artwork printed indiscernable [sic]. Type
plugged." (Exhibit 3, page 6.)
The letter stated that the contractor was to "deliver the
corrected copies to the original address by May 31, 1984, at
no additional cost to the government," and to inform the SRPPO
of "the disposition of the rejected copies."
On June 12, 1984, the Contracting Officer, in consequence of
the reprinted product not having been received, wrote to the
appellant notifying it that "since you have failed to perform
Purchase Order R-1376, Program 1046-S, Print Order 4000,
Jacket 794-789, within the time required by the terms thereof,
the Government Printing Office is considering
terminating said contract pursuant to the article entitled,
'Default,' United States Government Printing Office Contract
Terms No. 1." (Exhibit 3, page 5.)
The appellant was given 6 days from receipt of the notice "to
present, in writing, any extenuating facts bearing on the
question." The notice also advised appellant that "your
failure to respond within this time may be considered as an
admission of fault or negligence."
On June 22, 1984, the Contracting Officer wrote to the GPO
Contract Review Board (CRB), outlining the facts of the case
known to it through that date, including the fact of the
appellant's failure to respond to the notice and of
unsuccessful attempts to contact appellant by telephone. The
Contracting Officer requested CRB concurrence to terminate
Jacket 794-789 for default (Exhibit 3, page 3). Following the
CRB concurrence, the Contracting Officer by letter dated June
29, 1984, notified the appellant that the contract "is hereby
terminated for default because of your failure to reprint the
20,000 folders due to unacceptable printing." (Exhibit 3, page
2.)
The notice "also advised that the same or similar items
terminated may be reprocured against your firm's account, on
such terms and in such manner as the contracting officer deems
appropriate. In that event, your firm shall be held liable to
the Government."1/
The notice advised the appellant of his right to "appeal
within 90 days from receipt of this decision."
By letter dated July 10, 1984, appellant filed Notice of
Appeal and requested copies of the Contracting Officer's
"written decision of default [and] any information you have
which outlines the appeal process." (Exhibit 1.) On July 18,
1984, the Contracting Officer telephonically informed
appellant of the appeal procedure. By letter of September 12,
1984, the appellant perfected its appeal stating its reasons
therefore substantially as follows:
Until March 31, 1984, we were the holders of contract #1046-
S . . ..
During the time the contract was in effect we printed a
number of brochures . . . . Occasionally they submitted
maps produced on a 'fogged' or 'frosted' mylar base that we
were to shoot and strip into position on their forms.
Because the maps were on this 'fogged' or 'frosted' finish
mylar, the type had a tendency to flair and become diffused.
The degree of diffusion seemed to coincide with the boldness
of the original type and how much the original was enlarged
or reduced. In response to this problem I several times
suggested to the order person at Fish & Wildlife that he
request a dylux proof of those jobs and then decide for
himself what was or was not acceptable. The order person
did not seem to understand what a dylux proof was, despite
the fact that he ordered all the printing and that there was
a provision for dylux proofs in the contract.
Because of his position, I notified GPO-Seattle on several
occasions of the potential problem. Dave Goldberg of GPO
understood the obvious need for proofs on some of the jobs
and said that he would strongly recommend dylux proofs to
the Fish & Wildlife order person on any orders of this
nature.
. . . [T]he job in question . . . we proceeded to produce .
. . according to their specifications. . . . [T]hey did not
request a dylux and did not request extra camera work . . .
.
. . . GPO . . . said . . . we shot a poor negative . . . and
had to reprint . . . . Our position was since the map was on
the frosted finish mylar . . . taped to a semi[-]
transparent base sheet it was obvious why they had a problem
with plugged and ['halowed'] type. . . . [T]wo independent
litho prep houses . . . [we] asked . . . to try and shoot a
negative that correctly reproduced the map without
distorting the other portions . . . . Their negatives show
that it was not possible to shoot a better negative than we
did. . . . .
. . . [W]e . . . acted properly . . . .
1. We notified GPO and Fish and Wildlife in advance of the
potential problem.
2. We suggested dylux proofs to allow the ordering agency to
inspect prior to printing. GPO confirmed that this would be
advisable.
3. . . . [W]e should not be held responsible for poor camera
ready copy.
4. . . . [W]e strictly followed their production specifications.
(Exhibit 2.)
The letter did not contain a request for a hearing and no such
election was made within the time prescribed by Board Rule.
Accordingly, the appeal is for decision on the written record
pursuant to Rule 8.
The camera ready copy, photographs, artwork, and copies of the
rejected final product were furnished to the Board by the
SRPPO together with copies of the reprocured final product
(Exhibit 6).
The appeal comes to the Board in this form.
DISCUSSION
The only question presented by this appeal is whether or not
the Government bears any responsibility with respect to the
appellant's failure to produce a product which meets the
requirements of the specifications inasmuch as the appellant
claims that: (1) The respondent had been put on notice with
respect to certain prior print orders from the FWS under this
program that the copy furnished the appellant was of poor
quality and therefore susceptible to poor reproduction; and
(2) the respondent under provisions of the program contract
could have required the appellant to furnish dylux proofs of
the job before giving an "O.K. to print," which such
procedural production step the appellant itself had
recommended to both the FWS and the respondent on several
occasions.
At the outset of its review, the Board visually examined the
final product produced by the appellant and the final product
produced under the reprocurement against the "copy" furnished.
From this visual examination it was clear that the reprocured
product duplicated the detail in graphics, artwork, and
photography of the original "copy", whereas the final product
furnished by appellant was deficient in much of the necessary
detail, especially with respect to the inking of explanatory
symbols. (The product is meant to be a visitors' guide
pamphlet to certain recreational facilities available to the
public, such as horseback riding and boating, as well as
handicap features of the park.)
Because of the overwhelmingly clear visual disparity between
the quality of the products, the Board believed it necessary
to obtain statements from Mr. Daniel Hayes from the FWS, and
Mr. David S. Goldberg, of the SRPPO, as to the contentions
made by appellant with respect to the quality of the copy
furnished both appellant and the reprocurement contractor and
the purported prior notice of the need for dylux proofs.
Their comments in pertinent part follow:
Letter dated February 13, 1985, from Daniel Hayes, Regional
Publication Coordinator, United States Department of the
Interior, Fish and Wildlife Service, Portland, Oregon:
Valley Printing was most unacceptable as a vendor to this
program. The quality of our leaflets and brochures reduced
greatly under this printing contract. We were unable to acquire
satisfactory printing and unresponsiveness from Mr. Wes Rodgers
[sic] as to why it was printed improperly.
Mr. Wes Rodgers [sic], the proprietor of Valley Printing,
discussed with me on several occasions the need for dylux on
printed matter before the job was completed. We used this
method on many of our projects because of the imperfection
on their screens and half tones. On several occasions I had
a press inspection to be assured of getting what we wanted.
Our mapping section discussed new techniques and modified
their process to arrive at a working solution for quality
printing from this establishment but to no avail. There
were times when we had rush jobs and did not have time to
get a dylux produced before the final product. These
projects put us in a bind because they had to be done over
(see enclosed memo as example).
(Exhibit 10, page 3.)
Memorandum (Affidavit) dated February 19, 1985, from Mr. David S.
Goldberg, Assistant Manager, Seattle RPPO:
In regard to the dispute by Valley Printing Service on
Jacket 794-789, I have no records of conversations, nor
documentation of time and dates of such conversations due to
the fact that such queries were not in reference to any one
particular order.
Prior to the award of Jacket 794-789, I have had two or three
conversations with Wes Rogers of Valley Printing who called me to
complain of poor quality originals that were submitted with
orders on Program 1046-S. I remember telling him that GPO can
not expect any reproduction that will enhance a poor quality,
only an exact reproduction. We discussed supplying proofs to the
customer. However, Mr. Rogers stated that Fish and Wildlife
Service did not want proofs as they could not extend their
schedules.
I then called Dan Hayes at the Fish and Wildlife Service.
We talked about the quality of the copy and proofs. Dan
Hayes stated to me that the quality of the copy was good and
he did not need nor desire proofs. He stated that he did
not approve of the quality of printing from Valley Printing
Service and he wanted to submit printing orders for 1046-S
directly to GPO. These orders would be intended for
procurement off the contract.
I remember one order in particular that Mr. Hayes hand
carried to Seattle for procurement. As we opened the
package to inspect the copy, I pulled the base art out and
noticed tape placed over type and overlays falling off of
the base art. I mentioned to him that this may be part of
his quality problems but received no comment in return. Mr.
Hayes repaired the art before we left. I do not remember
which order it was as he has hand carried numerous orders to
this office, but I was informed by Michael Atkins of this
office that the camera copy, artwork and photographs that
were furnished for the rejected product and the re[-]
procurement are one and the same.
(Exhibit 10, page 2.)
Mr. Atkins,.by Affidavit of April 4, 1985, corroborated the
fact that "The camera ready copy that Valley Printing returned
to the Government is the same material that was furnished to
the contractor who produced the reprocurement." (Exhibit 12.)
While it is clear that much of what appellant contends has
been corroborated by Mr. Goldberg with respect to copy for
prior print orders, there is no showing that the copy was
defective with respect to the print order being scrutinized by
this appeal. Each print order in and of itself is a contract
having its own terms and conditions, in addition to the
contractual terms of the Program. Additionally, the copy for
each print order must necessarily be examined by the
contractor for each print order it receives, since as a
general rule, the copy will differ by content from print order
to print order depending on the subject matter of the brochure
or pamphlet being produced. Accordingly, this Board believes
that notice of defective copy on prior print orders did not
serve to put respondent on notice of any copy defect with
respect to the print order being considered by this appeal.
Moreover, based upon the fact that the same copy was furnished
both contractors and the second contractor produced a product
which clearly met specifications without the necessity of
having dylux proofs, it is the ruling of this Board that the
termination of appellant's contract for default was fully
justified and that the reprocurement costs have been properly
charged back to the appellant under terms of the contract and
pursuant to Federal procurement law.
_______________
1/ GPO Contract Terms No. 1 (GPO Pub. 310.2) establishes four
alternatives available to the GPO upon product rejection: (1)
Reprint at the contractor's expense; (2) Accept product at a
discounted price pursuant to discount formula set forth in
Quality Assurance Through Attributes - Contract Terms (GPO Pub.
310.1); (3) Reprocure product from another vendor with assessment
of excess reprocurement costs to the defaulting vendor; and (4)
Rejection without reprint, discounted price acceptance, or
reprocurement.