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.