Land & Land Printers, Inc.
GPO BCA 5-86
July 22, 1988
Michael F. DiMario
Administrative Law Judge
Opinion
This appeal, timely filed by Land & Land Printers, Inc.,
P.O. Box 1921, Baton Rouge, LA 70821 (Appellant) is from
the final decision of Richard W. Wildbrett, Contracting
Officer (CO), Dallas Regional Printing and Procurement
Office (DRPPO), U.S. Government Printing Office
(GPO/Respondent), dated February 24, 1986, imposing a 15
percent discount ($1,275.30) in the total price to be paid
Appellant for the manufacture of certain pamphlets
requisitioned from GPO by the Department of the Army,
because "the paper stock failed to comply with the
specifications." The appeal is denied and the decision of
the CO affirmed for the reason set forth hereinbelow.
Background
Upon Requisition No. 5-00206 through 5-00213 of the
Department of the Army, Ft. Sill, OK, the DRPPO, by Purchase
Order K-2073 of November 13, 1985, competitively awarded
Appellant a GPO DRPPO contract identified as Jackets 573-922
through 928 and 573-944 in the total amount of $8,502. The
contract was for the printing, binding, packaging, and
delivery of some 8 different pamphlets. The text of each
pamphlet was to be printed upon 50 lb. White Offset Book
stock (Basis: 500 sheets 25 x 38") equal to Joint Committee
on Printing (JCP) Code JCP A60 in conformance with the
"Government Paper Specifications Standard, No. 9" dated
December 1981. The cover stock, also to be in conformance
with the said Government Paper Specification Standard, was
to be 65 lb. Red Vellum (Basis: 500 sheets 20 x 26") equal
to JCP Code L20.
After receipt of the completed product, the Army notified
the DRPPO that it believed the product to be defective. The
DRPPO in turn requested inspection and testing by GPO
Quality Control and Technical Department. The tests
confirmed that neither the text paper nor the cover stock
met the requirements of the Government Paper Specification
Standard. The Army was notified that the contractor could be
required to reprint at its own expense. However, having
completed distribution of the pamphlets to its field
activity because of an urgent need, the Army urged
acceptance of the pamphlets at a discounted price
notwithstanding the defects. The CO, applying the suggested
discount provisions of the "Quality Assurance Through
Attributes Program (QATAP)", GPO Publication 310.1 dated May
1979, which were incorporated into the contract by
reference, determined the appropriate discount to be 15
percent and sought concurrence for such discounted
acceptance from the GPO Contract Review Board.
The Board unanimously concurred. The Appellant was then notified
of the CO's decision (Official File, Tab 3), whereupon the
Appellant, by letter of May 5, 1986, noted its appeal with this
Board. That letter in pertinent part states:
1. We will not protest the testing of the 50# offset. The mill
that supplied this paper ran tests on the paper that we
printed and confirmed that it was 45# stock instead of 50# as
it was labeled. This was their error and we had no reason to
question the labeling on the skids that we printed.
2. We protest the demerits issued on the red vellum cover, not
so much on the grounds of the testing, but on the grounds that
this was the only available cover as indicated by the attached
letter from A to Z Paper Co., our supplier.
Before bidding on this job, we had checked with every paper
house in our area and found that no paper mill was making a
65# red vellum. A to Z offered the cover that we used as a
substitute since it had the same general appearance as the
previously discontinued stock. Our bid was based on their
getting this from the mill, so we did not attempt to
substitute a cheaper stock after the bid was awarded to us.
We believe that the primary objection by Ft. Sill was a result
of the error on the 50# offset book and not because of the
cover stock. After finding out about the 45# paper, we can
agree with their objection to this. But we feel that the
substitution of the red cover does not warrant the demerits
issued and should not, therefore, be charged against us.
Official File, Tab 1.
Thereafter, by memorandum of May 14, 1986, the CO filed his
statement of the case with this Board together with his
formal "Determination and Findings" dated May 15, 1986,
denying recision of the 15 percent cost adjustment. The
memorandum repeats some of the above facts and in addition
states:
The 15% cost adjustment was determined in accordance with item
4-3, "Paper Attribute" and Appendix B, "Discount Table for
Major Defects", GPO Pub. 310.1. Specifications required 13
publications from each jacket be randomly selected, packed
separately and identified with a special Government furnished
blue label. Additionally, a Selection Certificate, GPO Form
917, was also provided for each jacket, which the contractor
was required to complete. Having determined that all 13
publications for each jacket had a major defect, Appendix "B",
GPO Pub. 310.1 was used to calculate the percentage of
discount. 13 samples inspected for each Jacket resulted in 13
major defects per jacket which equals a 15% cost adjustment.
The letter of appeal from Land and Land Printers, Inc. does
not dispute the action taken as a result of the deficient text
stock. Their appeal is based on the assertion that 65 lb red
vellum cover stock equal to JCP L20 was not available.
Inquiries made at the direction of the Contracting Officer
indicate two papermills currently are making this type of
paper: Coat of Arms cover by George A. Whiting Paper Co. and
Re-Entry Red by Wausau.
Official File, at Tab 4, sheet 2.
No further communication was received from Appellant,
although it was duly notified of the docketing of its Notice
of Appeal and its duty to file a Complaint with the Board
within 30 days of receipt of notice of such docketing. The
Notice of Appeal was nevertheless deemed by this Board to
meet the requirements of a Complaint. Respondent was so
notified by letter of July 9, 1986, in order that it might
file its answers to Appellant's averments. No such Answer
having been timely filed, the Board on August 13, 1986,
entered a "general denial" on behalf of the Respondent
pursuant to Rule 6.(b) of GPO Instruction 110.1 2 dated
September 17, 1984, thus putting the matter into controversy
and so notified Appellant.
The matter is now before the Board for decision on the
record in this format.
Discussion
Appellant's single claim, supra, is that because of the
nonavailability of the specified cover stock in its local
area at the time of its bid, it was justified in
substituting stock which was available and that in such
circumstance "the substitution . . . does not warrant the
demerits issued and should not, therefore, be charged
against us." The Board does not agree.
As a finding of fact, the Board concludes from the evidence
that the specified cover stock was commercially available,
albeit not necessarily in Appellant's immediate locale or
through its usual suppliers, since there were 14 responsive
bids and no bid protests respecting nonavailability. (R4
File, Tab XI.) This finding is buttressed by Respondent's
statement that its after the fact inquiry revealed current
availability from two manufacturers. (Official File, at Tab
4, sheet 2.)
Moreover, even if this were not the case, Appellant's claim
could not be deemed meritorious since Appellant, by its own
admission, knew of the local nonavailability before placing
its bid. In such circumstance, we believe Appellant, as a
matter of prudence, should have questioned the validity of
the specification rather than tender its bid. Having chosen
the latter course of action, the Appellant cannot now
rightly complain since it assumed the risk of the product
being rejected as it was. See Whittaker Corp., Power
Services Div., ASBCA 14191, 79-1 BCA ¶ 13805 (1979). It has
long been held that the Government is generally entitled to
strictly enforce its specifications (S.S. Silberblatt, Inc.
v. United States, 433 F.2d 1314 (1970)), and a "contractor
is not entitled to substitute or deviate therefrom even
though the articles may have met the performance
characteristics specified." Herley Industries, Inc., ASBCA
15378, 72-2 BCA ¶ 9749 (1972). Accordingly, in a case very
similar to the one at bar, the Armed Services Board of
Contract Appeals upheld a CO's rejection of contractor
substituted paint which was only slightly different than the
specified color, even though it was to be used as an
undercoat. Arrow Lacquer Corp., ASBCA 4667, 58-2 BCA ¶ 2003
(1958).
Based upon these findings, the appeal is denied and the
decision of the CO is affirmed.