U.S. GOVERNMENT PRINTING OFFICE BOARD OF CONTRACT APPEALS Appeal of AUTOMATED DATATRON, INC. Docket No. GPO BCA 4-87 March 31, 1989 MICHAEL F. DiMARIO Administrative Law Judge OPINION This appeal, timely filed by Automated Datatron, Inc. (Appellant), 4318 Gallatin Street, Hyattsville, MD 20781, dated January 27, 1987, is from the final decision of Jack Scott, Contracting Officer (CO), U.S. Government Printing Office, Washington, DC 20401 (Respondent), dated October 24, 1986, completely terminating contract Purchase Order 70091, Program C90-S, Jacket No. 91-058, for default because of Appellant's "continuing failure to comply with the delivery and Quality Assurance requirements of Program C90-S." The appeal is denied and the decision of the CO is affirmed for the reasons set forth hereinbelow. BACKGROUND Appellant was competitively awarded the Program C90-S single-award term contract by Purchase Order 70091 dated September 9, 1986, to produce such microfiche copies of the Congressional Record as Congress might requisition from Respondent from time to time during the term October 1, 1986, to September 30, 1987. The contract in the amount of $59,350.50 was made in strict accordance with Appellant's quotation of August 28, 1986, and Respondent's specifications. (Rule 4 File, hereinafter "R4 File," Tabs B and C.) On October 6, 1986, the CO sent Appellant a letter stating that an examination of microfiche samples produced by Appellant under Print Order 60000 reflected the defects shown on an inspection report attached thereto and that based on such defects, the work had been determined to be rejectable and would require remanufacturing by Appellant in strict accordance with the specifications and at no additional cost to the Government. (Thirty-six such complaint letters, including the referenced letter, were sent to the Appellant from October 6, 1986, through December 9, 1986, on various print orders numbering 60000 through 60024.) (R4 File, Tab F.) By letter dated October 9, 1986, referencing the Test Run and Print Orders 60000 and 60001, the CO notified Appellant that he considered Appellant's failure to comply with the quality attributes and delivery schedule of the specifications to be a condition that was endangering the performance of the contract in accordance with its terms. The notice gave the Appellant 10 days from its receipt to advise Respondent of the measures it had taken or was then taking to cure such condition. The notice also advised Appellant that unless such condition had been cured, the Government might terminate the contract for default pursuant to the contract's "Default" clause. (R4 File, Tab G.) In response to the cure notice, Appellant's T.D. Marlatt, Vice President, by letter dated October 24, 1986, referencing both the instant program and the substantially identical C151-S program respecting the production of Federal Register microfiche, advised the CO that: We have adhered to your October 22nd advice by concentrating our efforts on the C151-S Program. A dedicated team of workers has been trained to complete each step in the conversion of the Federal Register to microfiche. Under this procedure specialists in document preparation, camera operation, silver duplication, diazo duplication and quality assurance have been designated to perform the appropriate production functions in an assembly line fashion from its arrival until each Print Order is completed. We have given priority to the current day's Federal Register work in order to meet the nine hour turnaround requirements and subsequent mailing deadlines. This special team also completed the backlog of Print Orders that had been rejected by GPO quality assurance personnel. As of this date all material for the Federal Register has been delivered to GPO. Mailings are being made as the third generation microfiche are accepted by GPO quality assurance. By the close of business today we expect to complete delivery of all Congressional Record material to GPO. Mailings are being made as described above. Should any Print Orders remain outstanding I will advise you of their status on Monday, October 27. We are told by the Office of Congressional Printing Management that it will have no further material from the 99th Congress for conversion. I would like to again express our concern regarding the revised specifications for the length of microfiche. Although we have procured expensive and complex equipment which can cut the fiche within the .75 milimeter [sic] tolerance, we feel that parallax errors inherent in even the best optical measuring devices exceed .75mm. In support [of] this opinion, we have experienced the rejection of microfiche from six Print orders submitted to GPO within the past two days. The fiche in question had been carefully measured with instruments similar to those used by GPO. In summary, we have secured additional precision equipment and trained a sufficient number of personnel to meet the turnaround requirements of both programs. We will report any problems and maintain close contact with your office as we continue to improve upon our production procedures. 1/ R4 File, Tab H. Thereafter, by letter of October 24, 1986, the CO advised Marlatt of the termination. (R4 File, Tab I.) By letter dated January 27, 1987, Appellant noted its appeal as follows: Automated Datatron, Incorporated (ADI) hereby appeals the Contracting Officers decision to terminate the referenced contracts for "Default". While agreeing that rejections of microfiche occurred, resulting in shipping delays for both contracts, ADI believes the reason for termination should be for "Convenience of the Government". 1/ Appellant's appeal in Docket No. GPO BCA 3-87 is from the Contracting Officer's final decision in the Program C151-S contract. This appeal is based upon the fact that despite diligent effort, and at considerable additional expense, the contractor was unable to procure equipment that consistently creates microfiche which meet the extremely tight specifications stipulated in the contracts. This problem has been identified to the vendors of camera and duplicator equipment. Their position is that the tolerances, particularly for length, exceed the capability of current equipment on a continuous basis. We advised the Government Printing Office of the problems encountered several times. Our most recent letter requesting that the remainder of the contract be cancelled for "Convenience of the Government" is attached at Appendix A. 2/ In summary, we believe that the new specifications for Programs (151 and 90) are excessively restrictive for currently available equipment. No other GPO, or other Government contracts, to our knowledge, contain these same specifications. Therefore, if these specifications for this particular job are necessary for the convenience of the Government, the cancellations should be for that same reason, rather than default. Official File, Tab 1. By letter dated February 6, 1987, this Board notified Appellant and Respondent that the appeal had been docketed, provided Appellant with a copy of the Board's Rules of Practice and Procedure, advised Respondent of its duty to assemble and furnish to this Board and Appellant a copy of all documents pertinent to the appeal (the R4 File), and advised Appellant that, within 30 days after receipt of such documents, it should transmit to the Board and Respondent any documents not contained therein which it considers to be relevant to the appeal. The Appellant was also advised of the requirement for filing a 2/ Tab A, referenced by Appellant, is its letter of December 30, 1980, supra. complaint and for making an election respecting the desire for a hearing. Respondent complied with the R4 File requirement on March 10, 1987. The file contained all of the documents referenced above, plus a copy of the specifications (Tab B), the original bidders list (Tab C), the abstract and confirmation of bid prices (Tab D), a record of quality problems and late deliveries kept by GPO's Quality Assurance Section (Tab F), and a memorandum of February 17, 1987, with attachments referenced therein (Tab K) from Robert M. Saholsky, Industrial Engineer, Quality Systems Division, Quality Control and Technical Department, GPO, to Printing Specialist, Term Contract Division, Printing Procurement Department, GPO, respecting microfiche length. The memorandum stated: In the establishment of microfiche standards for the U.S. Government Printing Office (GPO), the GPO has attempted to adhere to the recognized national standards for microfiche created by the American National Standards Institute and the Association for Information and Image Management (ANSI/AIIM). The ANSI/AIIM Committees that prepare and approve these microfiche standards are comprised of the most knowledgeable authorities in the field of micrographics from both private industry and the federal government. The most current standard for microfiche length is ANSI/AIIM MS5-1985, approved as a national standard on May 13, 1985. MS5-1985 requires a microfiche length of 148 millimeters with a tolerance of plus zero millimeters and minus .75 millimeters (see attached MS5-1985). MS5-1985 represents a tightening of the previous microfiche length standard MS5-1975, (see attached MS5-1975), requiring a microfiche length of 148 millimeters with a tolerance of plus zero millimeters and minus 1.00 millimeters. The tightening of this standard is the result of improvements in micrographics equipment and technology over the last 12 years. Considering the possible difficulty in attaining this microfiche length standard on a consistent production basis, Mr. Ray Gulick (Documents Technical Support Group, Superintendent of Documents) and myself contacted the Engineering Division of Consolidated Micrographics, Inc. and the Southeastern Regional Manager of the Photomatrix Corporation. Consolidated Micrographics and Photomatrix Corporation are large manufacturers of microfiche duplicators. Both Consolidated Micrographics and the Photomatrix Corporation confirmed the fact that a microfiche length standard of 147.25 millimeters to 148.00 millimeters is warranted and can easily be achieved on a consistent production basis. It is therefore, recommended that the Government Printing Office ultimately adhere to the ANSI/AIIM standards, including the ANSI/AIIM standard for microfiche length. By letter dated April 16, 1987, the Board, having received no answer to Appellant's complaint from the Respondent, advised Appellant that it had entered a general denial on behalf of the Government pursuant to Rule 6.(b) of the Board's Rules of Practice and Procedure. On April 22, 1987, the Board received a letter from Marlatt dated April 9, 1987, which stated: Automated Datatron, Inc. (ADI) wishes the Board to note the following: Both of the referenced files contain GPO Memoranda stating that Consolidated Micrographics, Inc. confirmed that "a micrographic length standard of 147.25 millimeters to 148.00 millimeters is warranted and can easily be achieved on a consistent production basis." ADI has received information from Consolidated Micrographics that only its most recently manufactured machines can be modified to meet this standard. We will forward written confirmation of this information when it is received from Consolidated micrographics. Official File, Tab 7. No further correspondence was received from either party. Accordingly, the record was administratively closed in accordance with the Board's Rules and comes on for decision on the written record in this manner, Appellant having failed to exercise its right to a hearing. DISCUSSION The appeal raises the question of whether the specification's provision respecting the length of microfiche is excessively restrictive. The question is substantially the same as that raised by Appellant in Docket No. GPO BCA 3-87 decided this date upon identical specification language and similar facts. In the instant case, as in Docket No. GPO BCA 3-87, the Appellant has offered no evidence whatsoever to support the primary assertion of its complaint that "the new specifications are excessively restrictive for currently available equipment." Moreover, the Board's examination of the record convinces it that such assertion is clearly erroneous for the following reasons: (1) The solicitation advised: "BIDDERS PLEASE NOTE: "This contract has been extensively revised; therefore, all bidders are cautioned to familiarize themselves with all provisions of this contract before bidding." (R4 File, Tab B, page 1 of the specifications.) (2) The specifications state the size of the microfiche to be 148 by 105 millimeters and that the microfiche "shall conform to the microfiche Format 24/98, as specified in 'ANSI/AIM MS5-1985, American National Standard for Micrographics - Microfiche'," and that the microfiche conform to the quality assurance for microfiche provisions set forth in Section 3 of the specifications. (3) Among the provisions of Section 3 is a quality attribute for length which states the nominal standard for such attribute as 148 millimeters as per table 5 of "ANSI PH 1.51-1983 American National Standard 'Dimensions for Micrographic Sheet and Roll Films.'"; with tolerances for such standard to be as per Defect Classification Table included in such specifications as follows: LENGTH Defect Classification less than 147.25 mm (5.797") critical greater than 148.0 mm (5.827") critical Rule 4 File, Tab B, specifications, page 9 of 21. (4) The Government based its inclusion of such provision upon a highly regarded, universally accepted standard. (R4 File, Tab K.) (5) There is no evidence of any protest of these specifications by Appellant or any other vendor to whom the solicitation was sent. The bidder's list reflects that Respondent received 4 responsive bids to the solicitation, including Appellant's bid. (R4 File, Tab C.) (6) Performance records indicate that while Appellant had great difficulty in meeting the specifications respecting length, acceptance was achieved after correction in certain instances, thus confirming that while the specifications were difficult to meet, performance was not impossible. (R4 File, Tab J.) Given such findings, the Board, as in Docket No. GPO BCA 3-87, denies the appeal in its entirety and affirms the CO's decision. AFFIRMED.