BOARD OF CONTRACT APPEALS
   U.S. GOVERNMENT PRINTING OFFICE
   WASHINGTON, DC  20401

In the Matter of             )
                             )
the Appeal of                )
                             )
ASA L. SHIPMAN'S SONS, LTD.  )   Docket No. GPO BCA 06-95
Jacket No. 384-764           )
Purchase Order 99362         )

   DECISION AND ORDER

   This appeal, timely filed by Asa L. Shipman's Sons, Ltd.
   (Appellant or Contractor), 800 East 91st Street, Brooklyn, New
   York 11236, is from the final decision of Contracting Officer
   James L. Leonard, of the U.S. Government Printing Office's
   (Respondent or GPO or Government) Printing Procurement
   Department, Washington, DC 20401, dated January 26, 1995,
   terminating the Appellant's contract identified as Jacket No.
   384-764, Purchase Order 99362, for default because of the
   Appellant's inability to meet the delivery schedule (R4 File,
   Tab K).1  For the following reasons, the Contracting Officer's
   decision is hereby AFFIRMED.

   I. FINDINGS OF FACT2

   1.   On December 8, 1994, the U.S. Air Force (USAF or
   customer-agency) sent a requisition to GPO for the procurement
   of 130,000 copies of file folders entitled "Unit Personnel
   Record Group, Form Number: AF 10 (Mar 81)" (hereinafter AF
   Folders) (R4 File, Tab D).  The Invitation for Bids (IFB) for
   these AF Folders was issued by the Respondent on December 16,
   1994 (R4 File, Tab A, p. 1).  The product being procured was a
   three-leaf, cloth-reinforced, expansion-type file folder,
   equipped with two single (one on the inside front cover leaf
   and one on the inside back cover leaf) and one dual
   permanently-affixed metal fastener (R4 File, Tab A, p. 1).
   Apart from the usual design, performance and quality assurance
   specifications,3 the IFB also provided, in pertinent part:

         Any contract which results from this Invitation for Bid
         will be subject to the applicable articles of GPO
         Contract Terms (GPO Pub. 310.2, effective December 1,
         1987 (Rev.9-88)) [hereinafter GPO Contract Terms]; and
         Quality Assurance Through Attributes Program (GPO Pub.
         310.1, effective May 1979 (revised 12-92)).

   * * * * * * * * * *

         CONSTRUCTION: File folder with one inner leaf, bound on
         outside with a cloth strip approximately 64 mm (2-1/2")
         wide on the 298 mm (11-3/4") dimension to allow a total
         expansion of approximately 38 mm (1-1/2") (two equal
         expansions of approximately 19 mm (3/4") each).  This
         cloth strip must wrap around the ends, not cut flush.
         Inner leaf to have a 44 mm (1-3/4") cloth strip on each
         side of the 198 mm (11-3/4") dimension; these strips to
         be the same kind and color material as the outside strip
         and to be cut flush.  See furnished sample.

   * * * * * * * * * *

         SCHEDULE: Furnished material will be available for pick
         up at The U.S. Government Printing Office, 27 G Street,
         NW., Washington, DC 20401, on December 27, 1994.

         Ship complete to arrive at destination on or before
         January 20, 1995.

   * * * * * * * * * *

See R4 File, Tab A, pp. 1, 2, 4.  [Emphasis added.]  As indicated
above, GPO Contract Terms was incorporated by reference in the
contract.  The "Default" clause of GPO Contract Terms provides,
in pertinent part:

         20.  Default

         (a) (1) The Government may, subject to paragraphs (c)
         and (d) below, by written notice of default to the
         contractor, terminate in whole or in part if the
         contractor fails to-

            (i)  Deliver the supplies or to perform the services
            within the time specified or any extension thereof;

            (ii) Make progress, so as to endanger performance
            (but see subparagraph (a) (2) below); or

            (iii) Perform any of the other provisions.

             (2) The Government's right to terminate under
             subdivision (1) (ii) and (iii) above, may be
             exercised if the Contractor does not cure such
             failure within 10 days (or such other period as the
             Contracting Officer may determine to be reasonable
             and authorize in writing) after receipt of the
             notice from the Contracting Officer specifying the
             failure.

         (b) If the Government terminates in whole or in part, it
         may acquire, under the terms and in the manner the
         Contracting Officer considers appropriate, supplies or
         services similar to those terminated, and the contractor
         will be liable to the Government for any excess costs
         for those supplies or services.  However, the contractor
         shall continue the work not terminated.

         (c) Except for defaults of the subcontractors, at any
         tier, the contractor shall not be liable for any excess
         costs if the failure to perform arises from causes
         beyond the control and without the fault or negligence
         of the contractor.  Examples of such causes include acts
         of God or of the Public enemy, acts of the Government in
         either its sovereign or contractual capacity, fires,
         floods, epidemics, quarantine restrictions, strikes,
         freight embargoes, and unusually severe weather.  In
         each instance, the failure to perform must be beyond the
         control and without the fault or negligence of the
         contractor.


         (d) If the failure to perform is caused by the default
         of a subcontractor at any tier, and if the cause of the
         default is beyond the control of both the contractor and
         subcontractor, and without the fault or negligence of
         either, the contractor shall not be liable for any
         excess costs for failure to perform unless the
         subcontracted supplies or services were obtainable from
         other sources in sufficient time for the contractor to
         meet the required delivery schedule.

   * * * * * * * * * *

         (g) If, after termination, it is determined that the
         Contractor 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 GPO Contract Terms, Contract Clauses,  20 (Default).
[Emphasis added.]

   2.   The Respondent sent copies of the IFB to 15 potential
   contractors, but only received two responsive offers, one from
   Bluff Springs ($104,000.00) and the other from the Appellant
   ($74,100.00) (R4 File, Tabs B, C and G).  On December 27,
   1994, after confirming the Appellant's low bid, GPO issued
   Purchase Order 99362 awarding it the contract (R4 File, Tabs
   E, F and H).4

   3.   It is undisputed that the Appellant did not produce and
   deliver the AF Folders by the contract completion date of
   January 20, 1995.

   4.   On or about January 24, 1995, an employee from GPO's
   Contract Compliance Section (CCS) telephoned the Appellant's
   facility to inquire about the status of the order (R4 File,
   Tab I, p. 1).5  The Contractor's President, Richard de
   Marigny, informed the Respondent's representative that as of
   the previous day, January 23, 1995, the AF Folders had not
   been shipped (R4 File, Tab I, p. 1).  However, de Marigny also
   said that he expected to receive the necessary paper stock by
   February 10, 1995, and that the order should be shipped by end
   of February (R4 File, Tabs I, p. 1, and J).6  Furthermore,
   according to de Marigny, it was during this conversation that
   he first told GPO that the principle reason for nonperformance
   was a flu epidemic in New York City during the performance
   period.  See Appellant's Letter, dated March 15, 1995,
   annotated attachment (R4 File, Tab I, p. 1); App. Exh. Nos. 1,
   2 and 3.7  Indeed, the Appellant's evidence indicates that the
   firm's three key officers, Richard de Marigny, Gerard de
   Marigny, and Angela de Marigny, were disabled by the flu from
   on or about December 23, 1994, to January 20, 1995.  See App.
   Exh. Nos. 4, 5 and 6.8

   5.   After the above conversation, the Respondent telephoned
   the USAF to see if it would accept delivery of the AF Forms on
   February 28, 1995 (R4 File, Tab I, p. 2).  When the customer-
   agency refused, GPO made the decision to default the contract
   (R4 File, Tab I, p. 2).9
   6.   On January 25, 1995, the Contracting Officer sought the
   concurrence of the Respondent's Contract Review Board (CRB) to
   terminate the contract for default (R4 File, Tab J).10
   Termination was requested "due to the contractor's inability
   to perform the requirements of the contract"(R4 File, Tab J).
   The Contracting Officer also noted that he had considered the
   relevant factors in the PPR before seeking approval to default
   the contract (R4 File, Tab J).11  The Contracting Officer
   received the CRB's approval on January 26, 1995 (R4 File, Tab
   R).
   7.   Accordingly, by letter dated January 26, 1995, expressly
   titled "Notice of Termination-Complete" (Notice), the
   Contracting Officer terminated the Appellant's contract for
   default because of its inability to comply with the "Schedule"
   specification; i.e., ship the order to the USAF on or before
   January 20, 1995 (R4 File, Tab K).  The Notice also informed
   the Appellant that it was potentially liable for any excess
   reprocurement costs (R4 File, Tab K).  That same day, the
   Contracting Officer sent a memorandum to the FMS asking it to
   recover the amount of excess costs upon reprocurement of the
   order.12  See Res. Brf., Attachment 1-E.

   8.   The Respondent took immediate steps to reprocure the
   work.  The record shows that rather than issuing a repurchase
   solicitation, the Contracting Officer contacted Bluff Springs,
   the only other responsive offeror on the initial IFB, and on
   February 1, 1995, less than a week after the default, awarded
   it the reprocurement contract (Jacket No. 390-419, Purchase
   Order 99517) at its original bid price of $104,000.00.  See
   Res. Brf., Attachments 1-F and 1-H.  The terms and conditions
   of the repurchase were essentially identical to that the
   terminated contract.  The only change noted from the original
   IFB was in the "Schedule" clause, where, as would be expected,
   new "material pick up" and "ship complete" dates-February 1,
   1995, and February 27, 1995, respectively-were necessary.  See
   Res. Brf., Attachment 1-I.  Also on February 1, 1995, the
   Contracting Officer sent another memorandum to the FMS
   informing it that the defaulted contract had been reprocured,
   the Appellant had been so notified, and directing it to
   recover excess costs from the Contractor.  See Res. Brf.,
   Attachment 1-G.  Bluff Springs completed the work and received
   final payment by electronic funds transfer on March 20, 1995.
   See Res. Brf., Attachments 1-A and 1-C.  As for the excess
   reprocurement costs of $29,900.00,13 the record discloses that
   the FMS recovered those funds from payments due the Appellant
   on five other contracts between February 8, 1995, and April 3,
   1995.14  See Res. Brf., Attachment 1-B.  See also RPTC, p. 7,
   fn. 3 (citing PPR, Chap. VIII, Sec. 3,  4).

   9.   By letter dated February 2, 1995, the Appellant timely
   appealed the Contracting Officer's default decision (R4 File,
   Tab L).

   II. ISSUES PRESENTED

   At the close of the presubmission conference, the Board
   identified two questions as being presented by the facts in
   this case, namely:

         1.   Has the Appellant shown that its failure to perform
         was due to the effects of a flu epidemic in New York
         City at the time set for contract performance?  Stated
         otherwise, was the flu epidemic, an event arising from
         causes beyond the control and without the fault or
         negligence of the Contractor, the principal cause of its
         nonperformance?

         2.   Is the Appellant liable for the excess
         reprocurement costs incurred by the Government under the
         circumstances of this case, and if so, to what extent?

See RPTC, pp. 7-8.

   III. POSITIONS OF THE PARTIES

   The Appellant concedes its nonperformance in this case.  See
   App. Brf., p. 1; RPTC, pp. 5, 7.  However, it believes that
   its failure to produce and deliver the 130,000 copies of the
   AF Folders was a direct result of a flu epidemic in New York
   during the time set for performance, which incapacitated the
   five employees comprising its entire administrative,
   managerial, and supervisory staff, and shut down production
   from December 30, 1994, to January 20, 1995.15  See App. Brf.,
   p. 1; RPTC, p. 5, 6.  The Appellant observes that the
   contract's "Default" clause specifically identifies this type
   of medical emergency as a cause "beyond the control and
   without the fault or negligence" of the Contractor, which
   would provide a defense to the default action.  See App. Brf.,
   p. 1; RPTC, pp. 5, 6 (citing, GPO Contract Terms, Contract
   Clauses,  20(c)).  Accordingly, the Contractor submits that
   the Contracting Officer's default decision is in error, and it
   is entitled to reimbursement of the excess reprocurement costs
   already deducted from its account.16  See App. Brf., p. 2;
   RPTC, p. 7.     The Respondent, on the other hand, maintains
   that the contract was properly terminated for default because
   of the Appellant's failure to meet the prescribed delivery
   schedule.  See Res. Brf., pp. 2-3; RPTC, p. 5.  Since the
   Contractor admits that it did not deliver the AF Forms on
   January 20, 1995, as specified in the contract, GPO says that
   it had an immediate right to default the Contractor once the
   delivery date passed.  See Res. Brf., p. 2 (citing, Riggs
   Engineering Co., ASBCA No. 26509, 82-2 BCA  15,955; M.H.
   Colvin & Co., GSBCA No. 5209, 79-2 BCA  13,981; National Farm
   Equipment Co., GSBCA No. 4921, 78-1 BCA  13,195).  With
   regard to the Appellant's contention that its nonperformance
   was excused by the flu epidemic, the Government, relying on
   our opinion in R.C. Swanson Printing and Typesetting Co., GPO
   BCA 31-90 (February 6, 1992), Slip op. at 25, 1992 WL 487874,
   aff'd, Civil Action No. 92-128C (U.S. Claims Court, October 2,
   1992),17 where the Board enunciated the standard of proof
   required of contractors seeking to excuse a default based on
   untimely performance,18 argues that such a defense does not
   lie in this case.  See Res. Brf., 3-7; RPTC, p. 5.  First, the
   Respondent says that the Appellant's proffered excuse is not
   believable because the only medical evidence submitted by the
   Contractor relates to the three members of the de Marigny
   family, not all five key employees claimed to have been
   incapacitated by the flu, and besides GPO's records show that
   Richard de Marigny was actively conducting business for his
   firm during the time of claimed incapacitation.  See Res.
   Brf., p. 4; Attachments 2, 3; R4 File, Tabs E and I;
   Complaint, p. 2.  Second, GPO states that the Contractor
   cannot prove that nonperformance was attributable to the flu
   epidemic because the record shows that it still did not have
   the paper stock necessary to produce the AF Forms by the
   contract delivery date.  See Res. Brf., p. 5 (citing, Lee K.
   Geiger Construction Co., GSBCA Nos. 2152, 2164, 67-1 BCA 
   6189; American Construction Co., Inc., GSBCA No. 1055, 65-1
   BCA  4581, reconsid. denied, 65-2 BCA  4964).  Third, the
   Government asserts that there is no evidence from the
   Appellant showing that it took reasonable precautions to avoid
   the foreseeable impact of the flu and minimize its effect;
   i.e., the record is silent regarding the number of production
   workers, if any, who were incapacitated, or whether the
   Contractor sought temporary replacements to avoid a shutdown,
   or if it attempted to notify GPO that production was
   jeopardized by the flu epidemic.  See Res. Brf., pp. 5-6
   (citing, Ace Electronics Associates, Inc., ASBCA Nos. 11496,
   11781, 67-2 BCA  6456).  To the contrary, the record shows
   that on December 27, 1994, when he was supposedly debilitated
   by the flu, Richard de Marigny reviewed and confirmed the
   Appellant's bid (R4 File, Tab E).  Finally, the Respondent
   states that the Contractor has not established a precise
   period of time that the flu allegedly impeded performance.
   See Res. Brf., pp. 6-7.  Indeed, GPO questions the veracity of
   the Appellant's claim that an outbreak of the flu caused a
   cessation of production at its plant from December 30, 1994,
   to January 20, 1995, see App. Brf., p. 1; Complaint, p. 3,
   because it directly conflicts with a "Show Cause" response,
   dated May 2, 1995, from the Contractor to the Respondent's
   Atlanta Regional Printing Procurement Office (ARPPO),
   explaining that its delay in shipping the product on time was
   because the flu epidemic which "inmobilized [sic] our plant
   from mid-January 1995 for a period of five weeks."  See Res.
   Brf., p. 7; Attachment 4 .19  [Emphasis added.]  Accordingly,
   the Government asserts that the default decision was not in
   error, and the Contracting Officer's action should be
   affirmed.  See Res. Brf., p. 7; RPTC, p. 6.
   IV. DISCUSSION

   This appeal asks the Board to decide whether or not the
   Appellant has shown sufficient grounds to excuse its admitted
   failure to perform the contract, and if not, what is the
   extent of its liability for excess reprocurement costs, if
   any?  At the outset, therefore, it is worthwhile to repeat
   some of the legal principles which apply to these issues.

   First, GPO's "Default" clause provides that a contracting
   officer may, upon written notice of default to the contractor,
   terminate a contract, in whole or in part, if the contractor
   fails, inter alia, to "deliver the supplies or perform the
   required services within the time specified or any extension
   which may have been granted."  See GPO Contract Terms,
   Contract Clauses,  20(a)(1)(i).  Further, where defaulted
   work must be reprocured, the contractor will be held
   responsible for excess procurement costs and possible
   liquidated damages.  GPO Contract Terms, Contract Clauses, 
   20(b), 22(d).  However, the contractor is excused from paying
   such reprocurement costs or damages if the failure to perform
   or to deliver on time results from causes beyond its control
   and without its fault or negligence.20  GPO Contract Terms,
   Contract Clauses,  20(c), 22(e), 23.  Such causes include,
   but are not limited to, acts of God or of the public enemy,
   acts of the Government in either its sovereign or contractual
   capacity, fires, floods, epidemics, quarantine restrictions,
   strikes, freight embargoes, and unusually severe weather-but
   in each case, the failure to perform must be beyond the
   control and without the fault or negligence of the contractor.
   GPO Contract Terms, Contract Clauses,  20(c).  See Univex
   International, supra, Slip op. 17; K.C. Printing Co., GPO BCA
   02-91 (February 22, 1995), Slip op. at 9; Printing Unlimited,
   GPO BCA No. 21-90 (November 30, 1993), Slip op. at 16, 1993 WL
   516844; Chavis and Chavis Printing, GPO BCA 20-90 (February 6,
   1991), Slip. op. at 11, 1991 WL 439270.  Where the failure to
   perform is caused by the default of a supplier or
   subcontractor, the cause of the default must be beyond the
   control of both the contractor and subcontractor, and without
   the fault or negligence of either, in order for the contractor
   not to be liable for any excess costs for failure to perform,
   unless the subcontracted supplies or services could have been
   secured from other sources in sufficient time to meet the
   required delivery schedule.  GPO Contract Terms, Contract
   Clauses,  20(d).  See Univex International, supra, Slip op.
   17; K.C. Printing Co., supra, Slip op. at 10; Chavis and
   Chavis Printing, supra, Slip op. at 11.

   Second, a default termination is a drastic action which may
   only be taken for good cause and on the basis of solid
   evidence.21  See Univex International, supra, Slip op. 17;
   K.C. Printing Co., supra, Slip op. at 10; Shepard Printing,
   supra, Slip op. at 10-11; R.C. Swanson Printing and
   Typesetting Co., supra, Slip op. at 25; Stephenson, Inc.,
   supra, Slip op. at 20 (citing, 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).
   Consequently, the Government has the burden of proving the
   basis for the default, while the contractor has the burden of
   showing that its failure to perform was excusable.  See Univex
   International, supra, Slip op. 18; K.C. Printing Co., supra,
   Slip op. at 10; Shepard Printing, supra, Slip op. at 11; R.C.
   Swanson Printing and Typesetting Co., supra, Slip op. at 28;
   Chavis and Chavis Printing, supra, Slip op. at 11.  Accord,
   Lisbon Contractors v. United States, 828 F.2d 759 (Fed. Cir.
   1987)); Switlik Parachute Co. v. United States, 216 Ct. Cl.
   362 (1978); J.F. Whalen and Co., AGBCA Nos. 83-160-1,
   83-281-1, 88-3 BCA  21,066; B. M. Harrison Electrosonics,
   Inc., ASBCA No. 7684, 1963 BCA  3,736.  If the Government
   fails to meet its burden of proof, then the termination is
   converted into one of convenience and the contractor is
   allowed to recover for the work performed.  GPO Contract
   Terms, Contract Clauses,  20(g).  Cf. Univex International,
   supra, Slip op. 18; K.C. Printing Co., supra, Slip op. at 11;
   Stephenson, Inc., supra, Slip op. at 17-18; Chavis and Chavis
   Printing, supra, Slip op. at 9.

   Third, where the default termination is based on untimely
   performance, as in this case, the contractor's burden of proof
   is four-fold: (1) to prove affirmatively that the delay was
   caused by or arose out of a situation which was beyond the
   contractor's control and that it was not at fault or
   negligent; (2) to show that performance would have been timely
   but for the occurrence of the event which is claimed to excuse
   the delay; (3) to show that it took every reasonable
   precaution to avoid foreseeable causes for delay and to
   minimize their effect; and (4) to establish a precise period
   of time that performance was delayed by the causes alleged.
   See Univex International, supra, Slip op. 18-19; K.C. Printing
   Co., supra, Slip op. at 11; R.C. Swanson Printing and
   Typesetting Co., supra, Slip op. at 28-29; Chavis and Chavis
   Printing, supra, Slip op. at 12.  This burden must be carried
   by substantial evidence22-unsupported reasons by way of
   explanation are not enough-and the contractor must also show
   that the delay in contract performance was due to
   unforeseeable causes beyond its control and without any
   contributory negligence on its part.  See K.C. Printing Co.,
   supra, Slip op. at 11; Chavis and Chavis Printing, supra, Slip
   op. at 12-13 (and cases cited therein).

   Finally, a default termination is a discretionary act which
   can be challenged on an abuse of discretion standard.  See
   Univex International, supra, Slip op. 19; K.C. Printing Co.,
   supra, Slip op. at 12; Graphics Image, Inc., supra, Slip op.
   at 24-28; Shepard Printing, supra, Slip op. at 12.  Accord,
   Darwin Construction Co., Inc. v. United States, 811 F.2d 593
   (Fed. Cir. 1987); Quality Environment Systems v. United
   States, 7 Cl. Ct. 428 (1985); Jamco Constructors, Inc., VABCA
   Nos. 3271, 3516T, 94-1 BCA  26,405, reconsid. denied, 94-2
   BCA  26,792; Walsky Construction Co., ASBCA No. 41541, 94-1
   BCA  26.264, reconsid. denied, 94-2 BCA  26,698.  The
   contractor has the burden of proving abuse of discretion.  See
   K.C. Printing Co., supra, Slip op. at 12; Shepard Printing,
   supra, Slip op. at 12.  Accord, Kit Pack Co., Inc., ASBCA No.
   33135, 89-3 BCA  22,151; Lafayette Coal Co., ASBCA No. 32174,
   89-3 BCA  21,963.

   Applying these principles to the facts in the record, the
   Board reaches the following conclusions:

         A. The Appellant has not shown that the principal cause
         of its failure to perform was the effects of a flu
         epidemic in New York City at the time set for contract
         performance.

   1.   The Appellant admits that it did not produce and deliver
   the Government's order of 130,000 copies of the AF Folders by
   January 20, 1995.  The Contractor's failure to deliver the AF
   Folders when due gave the Respondent the right to terminate
   the contract for default under paragraph (a)(1)(i) of the
   "Default" clause.  See GPO Contract Terms, Contract Clauses, 
   20(a)(1)(i).  Accordingly, unless the Appellant can establish
   by a preponderance of the evidence that its failure to deliver
   was excusable, GPO properly terminated the contract for
   default.  See Univex International, supra, Slip op. 18; K.C.
   Printing Co., supra, Slip op. at 10; Chavis and Chavis
   Printing, supra, Slip op. at 11.  In that regard, the
   Contractor contends that the delivery delay was excused
   because of a flu epidemic which incapacitated its key staff,
   and resulted in no production from December 30, 1994, to
   January 20, 1995.  The Board disagrees.

   2.   Although listed in the "Default" clause as one of several
   causes of excusable delay, such enumeration does not make the
   occurrence of an epidemic an excusable cause per se.  See
   Crawford Development and Manufacturing Co., ASBCA No. 17565,
   74-2 BCA  10,600, at 50,624; Ace Electronics Associates,
   Inc., supra, 67-2 BCA at 29,955.  In Ace Electronics, which
   appears to be the lead case for the rule regarding epidemics
   as an excuse for nonperformance, the Armed Services Board
   Contract Appeals (ASBCA) stated, in pertinent part:

         Illness occasioned by the onset of a flu epidemic is in
         general an excusable cause for delay provided that it
         can be shown that performance was in fact delayed by
         reason of such epidemic.  It is incumbent upon appellant
         to establish not only the existence of an excusable
         cause for delay but also that such cause actually
         contributed materially to such delay as well as the
         actual extent of the delay so caused.  [Citations
         omitted.]

See, 67-2 BCA at 29,955.  [Emphasis added.]  See also The Tommy
Nobis Center, Inc., GSBCA Nos. 8988-TD, 9420-TD, 89-3 BCA 
22,112, at 111,225 (no showing that the flu epidemic was of long
duration, or that it had an adverse effect on the volume of
production); Crawford Development and Manufacturing Co., supra,
74-2 BCA at 50,624 (no showing that a flu epidemic involved a
sufficient number of the contractor's employees to cause
delay).23  The essence of the "Ace Electronics" test is the
requirement that a defaulted contractor prove that an epidemic
was the sole cause, not merely a contributing cause, of the
performance delay.  See John Cibinic, Jr. & Ralph C. Nash, Jr.,
Administration of Government Contracts 3d ed., (The George
Washington University, 1995), p. 567 (hereinafter Cibinic &
Nash).

   3.   In this case, the Appellant has demonstrated that there
   was a flu epidemic in the New York City area during the time
   established for performance of the contract.  However, the
   Contractor has not satisfied the second part of the "Ace
   Electronics" test, namely, showing that the flu epidemic was a
   materially contributing cause of the nonperformance, as well
   as the actual extent of the delay in performance caused by the
   epidemic.  Although the Appellant claims that the flu epidemic
   forced a shut down of the company's production from December
   30, 1994, to January 20, 1995, it has presented no evidence,
   as required in the lead case, which would show, inter alia:
   (a) the precise duration of the epidemic; (b) what personnel,
   apart from the three members of the de Marigny family, were
   affected by the flu and the periods during which they were
   absent because of the disease; (c) whether such absences in
   fact caused the delay in performance and if so the extent of
   such delay; and (d) what efforts were made during such
   absences by the use of overtime or other measures to keep the
   work going.  See Ace Electronics Associates, Inc., supra, 67-2
   BCA at 29,955.  Because the Contractor has not supplied any
   factual details to support its contention that the production
   of the AF Folders was delayed by the flu epidemic, relief on
   that basis must be denied for failure of proof.

   4.   The only position advanced by the Appellant based on the
   flu epidemic was that no work could be performed on the
   contract because its entire administrative, managerial, and
   supervisory staff, consisting of the three de Marigny's and
   two other key employees, were disabled from about December 23,
   1994, to January 20, 1995.  This so-called "key personnel"
   argument fails as a matter of law for two reasons.  First, the
   Contractor is a corporation,24 and it is a "black letter"
   principle that where, as here, a contract has been awarded to
   a corporate entity, the illness of a key person within the
   organization does not excuse the corporation's failure to
   perform its obligations, even though the corporation may be a
   small business.  See e.g., Brill Brothers, Inc., ASBCA No.
   42573, 94-1 BCA  26,352; M.W. Microwave Corp., supra; Press
   Automation Systems, Inc., ASBCA Nos. 29902, 30357, 88-1 BCA 
   20,273; Marmac Industries, Inc., ASBCA Nos. 23590,24029,
   24502, 24503, 84-1 BCA  17,098; Electro-Magnetics, Inc.,
   ASBCA No. 19830, 75-2 BCA  11,503; Universal Steel Strapping
   Co., GSBCA No. 3049, 70-1 BCA  8190.  The rule's rationale
   was explained by the ASBCA in M.W. Microwave Corp.:

         . . . [W]e have held that where the contract is awarded
         to a corporate entity, the illness of a key person
         within the organization does not excuse the
         corporation's failure to perform its obligations, even
         though the corporation may be a small business.  E.g.,
         Press Automation Systems, Inc., ASBCA Nos. 29902, 30357,
         88-1 BCA  20,273; Yankee Telecommunication
         Laboratories, Inc., ASBCA Nos. 25240, 25534, 26308, 85-1
         BCA  17, 786; Electro-Magnetics, Inc., ASBCA No. 19830,
         75-2 BCA  11,503.  In this context, the Government's
         expectation is that the corporation, as opposed to any
         particular individual, is responsible for performing the
         work.  The corporation assumes the responsibility for
         insuring that there is adequate manpower available.  As
         part of this responsibility, the corporation also
         assumes the risk of non-performance due to the illness
         of a key employee.  In other words, because of its
         responsibility for insuring adequate manpower, the
         illness of the key employee is generally not said to be
         "beyond the control and without the fault or negligence"
         of the contractor.

See 93-3 BCA at 129,377-78.25  The principle reflects one of the
distinguishing features between a corporation and some other form
of business organization, such as a sole proprietorship or a
partnership.  A corporation is viewed as having a continuing
life; thus the loss of key personnel does not necessarily cause
the corporation to cease, but rather, in most cases, it continues
to carry on its business.  See Electro-Magnetics, Inc., supra,
75-2 BCA at 54,891.  Second, insofar as the Appellant's "key
personnel" argument is concerned, nothing in the contract
specifically designated any of the five employees named by the
Appellant for the performance of any production tasks, much less
assigned them personal responsibility for overall performance of
the contract.  See e.g., Jonatech, Inc., ASBCA No. 46088, 94-3
BCA  27,248;  M.W. Microwave Corp., supra; Ace Electronics
Associates, Inc., supra.  Accordingly, there is no merit
whatsoever to the Contractor's "key personnel" excuse.

   5.   Moreover, the Appellant cannot escape the consequences of
   its admission that even without the flu epidemic during the
   performance period, the AF Folders could not have been
   delivered by January 20, 1995, because it did not have the
   necessary paper on hand to manufacture the product.  See
   Complaint, pp. 5, 6; Notice of Appeal, pp. 3, 4.  In that
   regard, the Contractor's own evidence tells us that the
   required paper stock was not expected to arrive at its plant
   until approximately February 10, 1995-some three weeks after
   the contract due date and two weeks after the contract was
   terminated.  See Appellant's Letter, dated March 15, 1995, p.
   2, annotated attachment (R4 File, Tab I, p. 1) Notice of
   Appeal, p. 5.  Although the Contractor says that it ordered
   the paper stock in a timely manner, it also flatly states that
   "[t]he

resulting difficulties in our receiving the paper shipment can be
attributed solely to the paper mill, regardless of the flu
epidemic."  See Complaint, p. 6, Notice of Appeal, p. 4.

   6.   As previously indicated, where, as here, a contractor
   seeks refuge in the performance failure of its supplier or
   subcontractor to excuse its own lack of performance, it must
   show that the cause of the default was beyond the control of
   both the contractor and subcontractor, and without the fault
   or negligence of either of them.  GPO Contract Terms, Contract
   Clauses,  20(d).  See Univex International, supra, Slip op.
   17; K.C. Printing Co., supra, Slip op. at 10; Chavis and
   Chavis Printing, supra, Slip op. at 11.  Stated otherwise, the
   failure of a supplier to deliver the supplies to the
   contractor on time is not an excuse for the contractor's
   default unless the supplier's failure was beyond the
   supplier's control and without its fault or negligence.  See
   Yankee Telecommunication Laboratories, Inc., supra; Marmac
   Industries, Inc., supra; Crawford Development and
   Manufacturing Co., supra.  See also Hogan Mechanical, Inc.,
   ASBCA No. 21612, 78-1 BCA  13,164.  In this case, the
   Appellant has made no attempt to show that the cause of its
   paper mill's delay was also a flu epidemic or some other
   legitimate excuse within the meaning of the "Default" cause.
   Thus, the record is devoid of any evidence that the reason for
   the supplier's failure to deliver the paper stock to the
   Contractor in time for performance was beyond the mill's
   control and without its fault or negligence.  All that appears
   in the record is the Appellant's bald assertion that the paper
   supply problem "can be attributed solely to the paper mill."
   However, as the Board has said on numerous occasions, such
   unverified assertions-which amount to little more than
   argument-standing alone, cannot substitute for proof, see
   Univex International, supra, Slip op. at 31 (citing, Reese
   Manufacturing, Inc., ASBCA No. 35144, 88-1 BCA  20,358), or
   form the basis for recovery, see B & B Reproductions, supra,
   Slip op. at 39; Hurt's Printing Co., Inc., supra, Slip op. at
   29; Printing Unlimited, supra, Slip op. at 12; Stephenson,
   Inc., supra, Slip op. at 57.  Accord Singleton Contracting
   Corp., GSBCA No. 8548, 90-2 BCA  22,748; Tri-State Services
   of Texas, Inc., ASBCA No. 38019, 89-3 BCA  22,064)); Gemini
   Services, Inc., ASBCA No. 30247, 86-1 BCA  18,736.

   7.   In many respects, this appeal is similar to the situation
   in Crawford Development and Manufacturing Co.  In that case,
   the ASBCA affirmed the default of a contract for the
   production of fuse parts because the contractor failed to
   deliver a first article on time and to make scheduled
   deliveries, and in the process dismissed the contractor's
   allegations, inter alia, that its performance delay was caused
   by subcontractor's poor machining and a flu epidemic.  In so
   ruling, the ASBCA held that the subcontractor's failure did
   not constitute an excuse for the delay because the absence of
   fault or negligence on the part of the subcontractor was not
   shown, and moreover, the defaulted contractor also failed to
   prove that the flu epidemic caused the delays, especially in
   light of the fact that the flu coincided with the
   subcontractor problems.  See Crawford Development and
   Manufacturing Co., supra, 74-2 BCA at 50,622-24.  The ASBCA's
   reasoning is particularly persuasive when measured against the
   facts of this case:

         The appellant's first contention that it was excused by
         reason of its supplier's failure to deliver satisfactory
         broaches misconstrues the applicable rule.26  Proper
         application of the rule requires the appellant to
         establish that the performance failure of its supplier
         resulted from causes beyond the control, and without the
         fault or negligence of both the appellant and its first-
         tier subcontractor, a fact patently absent from the
         record.  See Thurmont Construction Co., Inc., ASBCA No.
         13473, 69-1 BCA  7604.

         Appellant's second ground for relief is based upon the
         occurrence of a flu epidemic which allegedly affected
         its key employees.  Although listed in the Default
         clause as one of several causes of excusable delay, such
         enumeration does not make the occurrence of an epidemic
         an excusable cause per se.  It was incumbent upon the
         appellant to establish not only the existence of this
         excusable cause of delay but also that it actually
         contributed materially to the performance delay.

         Significant with respect to this alleged delay is the
         fact that the flu-caused absence of key employees
         occurred during the same period of time that the
         appellant was unable to produce assemblies because it
         has not received satisfactory broaches from its
         supplier.  It also is worthy of note that with the
         exception of one week and two employees the illness of
         the several key employees did not overlap.  The average
         absence per employee was approximately 2-3 days.  The
         four week delay attributed to this cause hardly explains
         the appellant's failure to perform during the period 6
         February though 10 May 1972.  We are not convinced that
         the flu epidemic contributed materially to the
         appellant's performance delay.  See Ace Electronics
         Associates, Inc., ASBCA Nos. 11496, 11781, 67-2 BCA 
         6456.

See Crawford Development and Manufacturing Co., supra, 74-2 BCA
at 50,624.  [Emphasis added.]  See also Yankee Telecommunication
Laboratories, Inc., supra, 85-1 BCA at 88,873 ("Furthermore,
appellant was at fault in not having obtained binding commitments
from its suppliers of essential components . . . and therefore
cannot eschew responsibility for the lack of those components
when needed."  Citing B & H Construction Co., Inc., ASBCA Nos.
24558, 24578, 80-2 BCA  14,568,).27

    8.   Considering the record as a whole, the Board concludes
    that the Appellant has not met its burden of proof with
    respect to excusing its failure to deliver the AF Folders in
    accordance with the terms of the contract.  See Univex
    International, supra, Slip op. 31; K.C. Printing Co., supra,
    Slip op. at 18; Hurt's Printing Co., Inc., supra, Slip op. at
    19; Chavis and Chavis Printing, supra, Slip op. at 11.
    Therefore, the Board also concludes that under the
    circumstances of this case, the Contracting Officer's
    termination of the contract for default was not in error, and
    his decision is affirmed.

         B. The Respondent has sustained is burden of proof with
         regard to the Appellant's liability for excess
         reprocurement costs.

   1.   The last issue concerns the scope of the Appellant's
   liability, if any, for excess reprocurement costs.28  In that
   regard, the legal principles governing questions concerning
   excess reprocurement costs can be summarized as follows:

         The assessment of excess reprocurement costs is
         considered a Government claim.  See Sterling Printing,
         Inc., supra, [Slip op.] at 50-51 (and cases cited
         therein).  Consequently, the Government has the burden
         of demonstrating the propriety of the repurchase and
         proving its entitlement to the amount of excess costs it
         claims.  Id., [Slip op.] at 51 (and cases cited
         therein).  In doing so, the Government must satisfy five
         criteria to establish an entitlement to recovery against
         a defaulting contractor, namely, it must show that: (a)
         the reprocurement contract was performed under
         substantially the same terms and conditions as the
         original contract; (b) it acted within a reasonable time
         following default to repurchase the supplies; (c) it
         employed a reprocurement method which would maximize
         competition under the circumstances; (d) it obtained the
         lowest reasonable price; and (e) the work has been
         completed and final payment made so that the excess
         costs assessment is based upon liability for a sum
         certain.  [Footnote omitted.]  Id., [Slip op.] at 52-53
         (and cases cited therein).  Furthermore, the Government
         claim must be supported by evidence in the record as to
         each element of the claim.  Id., [Slip op.] at 53 (and
         cases cited therein).  Failure to satisfy even one
         criterion may result in a reduction of the excess costs
         claimed.  Id., [Slip op.] at 53-54 (and cases cited
         therein).

See Univex International, supra, Slip op. at 32-33; K.C.
Printing, Co., supra, Slip op. at 18-19.  [Original emphasis.]
Whether the Government's repurchase was improper, and if so, what
is the amount of reasonable excess costs under the circumstances,
are questions of fact.  See Univex International, supra, Slip op.
at 33; K.C. Printing Co., supra, Slip op. at 19, fn. 20; Sterling
Printing, Inc., supra, Slip op. at 50 (citing, Cable Systems and
Assembly Co., ASBCA No. 17844, 73-2 BCA  10,172, at 47,892).
Measuring the repurchase action in this case against the above
standards, the Board concludes that the Respondent has satisfied
all of the elements necessary to sustain an entitlement to excess
reprocurement costs.

   2.   First, the Board's own comparison of the original and
   reprocurement contracts leaves no question but that the
   reprocurement contractor, Bluff Springs, was asked to produce
   and deliver the identical AF Folders, in the same quantity and
   under essentially the same terms and conditions, as those in
   the Appellant's original contract-the only change, as would be
   expected, was in the "Schedule" clause where new "material
   pick up" and "ship complete" dates were established.  Compare
   R4 File, Tab A with Res. Brf., Attachments 1-I.  The Appellant
   does not allege otherwise.  Accordingly, the Board concludes
   that the Respondent has met the first condition entitling it
   to excess reprocurement costs, namely, that the reprocurement
   contract purchased the same or similar items, and was
   performed under substantially the same terms and conditions as
   the original contract.  See K.C. Printing, Co., supra, Slip
   op. at 19; Sterling Printing, Inc., supra, Slip op. at 62-63.
   Accord Futura Systems, Inc., ENG BCA Nos. 6037, 6057, 6099,
   95-2 BCA  27,654; B & M Construction, Inc., AGBCA No.
   90-165-1, 93-1 BCA  25,431; Zan Machine Co., ASBCA No. 39462,
   91-3 BCA  24,085; Boston Pneumatics, Inc., ASBCA Nos. 26188,
   26190, 26825, 26984, 27605, 27606, 87-1 BCA  19,395.

   3.   Second, the Board has no trouble in concluding that the
   reprocurement was accomplished in a timely fashion.  See K.C.
   Printing, Co., supra, Slip op. at 20; Sterling Printing, Inc.,
   supra, Slip op. at 63.  The Appellant's contract was
   terminated for default on January 26, 1995 (R4 File, Tab K).
   The reprocurement contract was awarded to Bluff Springs on
   February 1, 1995, less than a week after the default.  See
   Res. Brf., Attachments 1-F and 1-H.   Accordingly, the record
   clearly shows that the Respondent acted with reasonable
   dispatch and without undue delay to reprocure the AF Folders,
   and thus it has satisfied its evidentiary burden.  See K.C.
   Printing, Co., supra, Slip op. at 20; Sterling Printing, Inc.,
   supra, Slip op. at 64-65.  Accord Astro-Space Laboratories,
   Inc. v. United States, 200 Ct.Cl. 282, 470 F.2d 1003 (1972);
   Puroflow Corp., ASBCA No. 36058, 93-3 BCA  26,191; John L.
   Hartsoe, AGBCA No. 88-116-1, 93-2 BCA  25,614; Sequal, Inc.,
   ASBCA No. 30838, 88-1 BCA  20,382; Disan Corp., ASBCA Nos.
   21297, 22221, 79-1 BCA  16,677.

   4.   Third, the Board believes that the Contracting Officer
   chose a reasonable method to repurchase the AF Folders.  See
   K.C. Printing, Co., supra, Slip op. at 20-23.  Cf. Sterling
   Printing, Inc., supra, Slip op. at 73.  As a rule, a
   contracting officer has very broad discretionary powers in
   reprocuring items on a defaulted contract, and the choice of
   which procurement method to use is one of them.  See Sterling
   Printing, Inc., supra, Slip op. at 17, fn. 25 (citing, Astro-
   Space Laboratories, Inc. v. United States, supra; Old Dominion
   Security, Inc., GSBCA No. 9126, 90-2 BCA  22,745; Columbia
   Loose Leaf Corp., GSBCA Nos. 5805(5067)-REIN, 5806(5230)-REIN,
   82-1 BCA  15,464).  See also e.g., Venice Maid Co., Inc. v.
   United States, 639 F.2d 690 (Ct.Cl. 1980); Zan Machine Co.,
   supra.  Although, in reprocuring a defaulted contract, the
   Government has an obligation to mitigate the defaulted
   contractor's excess cost liability by selecting a method that
   will maximize competition and obtain the best or lowest
   reasonable price under the circumstances, see e.g., Scalf
   Engineering Co. and Pike County Construction Co., A Joint
   Venture, IBCA No. 2328, 89-3 BCA  21,950, at 110,425 (citing,
   Techcraft Systems, VABCA Nos. 1894, 2027, 86-3 BCA  19,320)
   (hereinafter Scalf Engineering Co.); Sequal, Inc., supra, 88-1
   BCA  20,382, at 103,067; Century Tool Co., GSBCA No. 4007,
   78-1 BCA  13,050, reconsid. denied, 78-2 BCA  13,345, the
   law also allows a contracting officer to limit competition for
   the repurchase if the situation demands it-e.g., the
   Government's need to assure a quick award to a firm which
   could begin work almost immediately-since a reprocurement is
   technically a purchase for the defaulted contractor's account,
   see Sterling Printing, Inc., supra, Slip op. at 67.  Accord
   e.g., William A. Hulett, AGBCA Nos. 91-230-3, 92-133-3,
   92-196-3, 93-1 BCA  25,389; Old Dominion Security, Inc.,
   GSBCA No. 9126, 90-2 BCA  22,745; Century Tool Co., GSBCA No.
   3999, 76-1 BCA  11,850; Sequal, Inc., supra, 88-1 BCA 
   20,382.29  The test used in determining the adequacy of a
   repurchase solicitation is one of reasonableness, and the
   burden is on the Government to prove that it acted reasonably
   in selecting the reprocurement method and in mitigating excess
   costs.30  See K.C. Printing, Co., supra, Slip op. at 21
   (citing Sam's Electric Co., GSBCA Nos. 9359, 10044, 90-3 BCA 
   12,128; Fancy Industries, Inc., ASBCA No. 26578, 83-2 BCA 
   16,659).  See also Sterling Printing, Inc., supra, Slip op. at
   67.  However, the Government's obligation to mitigate costs
   "is not one of perfection, but one of reasonableness and
   prudence under the circumstances."  See Barrett Refining
   Corp., ASBCA Nos. 36590, 37093, 91-1 BCA  23,566, at 118,145.
   See also Mid-America Painters, Inc., ENG BCA No. 5703, 91-1
   BCA  23,367, at 117,232 ("On the other hand, the Corps is not
   required to make extraordinary efforts to ferret out the
   single best situation which will absolutely minimize the
   [defaulting] party' damages.  All that is required is that the
   [Corps] act reasonably and promptly given the circumstances.'"
   Citing Ketchikan Pulp Co. v. United States, 20 Cl. Ct. 164
   (1990)).31  Soliciting the firms which bid on the original
   procurement is one commonly used reprocurement method.32  See
   K.C. Printing, Co., supra, Slip op. at 22 (citing American
   Marine Upholstery Co. v. United States, 170 Ct.Cl. 564, 345
   F,2d 577 (1965); Mid-America Painters, Inc., supra).  See also
   Sterling Printing, Inc., supra, Slip op. at 69.  Furthermore,
   while the contracting officer is not required to contact
   second low bidder on the original procurement when attempting
   to repurchase the defaulted supplies,33 nonetheless such a
   mitigation step is considered presumptively reasonable, even
   if the reprocurement price itself seems unreasonable.  See
   K.C. Printing, Co., supra, Slip op. at 22 (citing Mid-America
   Painters, Inc., supra); Sterling Printing, Inc., supra, Slip
   op. at 69-70 (citing Zoda v. United States, 148 Ct. Cl. 49,
   180 F.Supp. 419 (1960); United Microwave Co., ASBCA No. 7947,
   1963 BCA  3,701).  Cf. American Photographic Industries,
   Inc., ASBCA Nos. 29272, 29832, 90-1 BCA  22,491, reconsid.
   denied, 90-2 BCA  22,728 (the Government failed to mitigate
   damages because it did not contact the second low bidder on
   the original contract).  That is precisely the reprocurement
   method chosen by the Contracting Officer in this case.  Here,
   where the Respondent's solicitation of 15 potential
   contractors only resulted in two responsive offers, the
   Appellant's and Bluff Springs', see R4 File, Tabs B, C and G,
   the Contracting Officer elected to award the reprocurement
   contract to Bluff Springs at its original bid price of
   $104,000.00, see Res. Brf., Attachments 1-F and 1-H.  By
   repurchasing the AF Folders from the second lowest bidder at
   its original offer, the Contracting Officer was acting
   consistent with established GPO policy which has been found
   reasonable in other cases.  See Business Forms Service, Inc.,
   GPOCAB 9-81 (October 20, 1981), Slip op. at 9, 1991 WL 95444;
   ATC Decal Company, GPOCAB 3-81 (July 14, 1981), Slip op. at
   8-9; Technical Publishing Services, Inc., GPOCAB 1-81 (January
   20, 1982), Slip op. at 6, 1982 WL 122519.34  See also K.C.
   Printing, Co., supra, Slip op. at 4 (although the defaulted
   contractor's excess reprocurement liability was based on the
   price of the fourth lowest bidder on the original contract, it
   was the next lowest responsible offeror); Valley Forms, Inc.,
   GPO BCA 1-84 (January 15, 1986), Slip op. at 13, 1986 WL
   181464 (even though the Government's excess cost claim was
   denied on other grounds, the Board stated that ordinarily the
   proper measure of such costs would be the difference between
   the price the Government would have paid the first bidder if
   it had been able to perform and the price the Government
   actually paid to the bidder next receiving the procurement
   award).  Since only two companies had provided responsive bids
   on the original contract, the Board has no reason to believe
   that further solicitation of other firms would have resulted
   in lower prices in this case.  See ATC Decal Company, supra,
   Slip op. at 8-9 (citing San Antonio Construction Co., Inc.,
   ASBCA No. 8110, 1964 BCA  4479).  Therefore, given the nature
   of this contract and the necessity of obtaining the AF Folders
   without further delay, in the Board's opinion readvertising
   was not required. See Business Forms Service, Inc., supra,
   Slip op. at 9; Technical Publishing Services, Inc., supra,
   Slip op. at 6.  Consequently, even though the repurchase was
   made at a price approximately 39 percent higher than the
   original contract, the Board is satisfied that the
   reprocurement method chosen by the Respondent in this case was
   reasonable and appropriate under the circumstances.35  See
   K.C. Printing, Co., supra, Slip op. at 22-23; Business Forms
   Service, Inc., supra, Slip op. at 9; ATC Decal Company, supra,
   Slip op. at 9; Technical Publishing Services, Inc., supra,
   Slip op. at 6.  See also Futura Systems, Inc., supra (the
   Government's reprocurement award to the second low original
   bidder at its original bid price, which was 39 percent higher
   than the original contract price, was reasonable because the
   defaulted contractor had intentionally underbid the contract);
   Mid-America Painters, Inc., supra (the Government acted
   reasonably in taking the second low bid in the original
   solicitation despite the fact that the reprocurement price was
   174 percent above the original contract).  Accordingly, the
   Board believes that the Respondent has met its burden with
   respect to the third criterion necessary to establish an
   entitlement to recovery of excess reprocurement costs against
   a defaulting contractor.  See K.C. Printing, Co., supra, Slip
   op. at 23.  Cf. Sterling Printing, Inc., supra, Slip op. at
   73.

   5.   Fourth, mitigation of damages also requires the
   Government to show that it obtained the lowest reasonable
   reprocurement price.36  See, e.g., Sequal, Inc., supra; Fancy
   Industries, Inc., supra.  However, the mere fact that there is
   a significant price increase in the reprocurement does not
   render it unreasonable in the face of Government due care and
   diligence.37  See, Foster Refrigerator Corp., ASBCA No. 34021,
   89-2 BCA  21,591; Boston Pneumatics, Inc., supra; Fancy
   Industries, Inc., supra.  Thus, while it is true that Bluff
   Springs reprocurement bid price of $104,000.00 was
   approximately 39 percent more than the Appellant's original
   offer of $74,100.00, in light of the fact the Respondent, by
   promptly awarding the repurchase to the next low bidder on the
   original contract at the bidder's original price, used a
   reasonable and appropriate reprocurement method, this
   "mathematical discrepancy, standing alone, does not compromise
   the adequacy of the Respondent's reprocurement efforts."  See
   Futura Systems, Inc., supra, 95-2 BCA at 137,873.  Besides,
   the Contracting Officer's obligation was to obtain the best or
   lowest reasonable price for the Government under
   circumstances, see, e.g., Scalf Engineering Co., supra;
   Sequal, Inc., supra, not the defaulted Contractor,  see,
   Barrett Refining Corp., supra.  The Board is fully satisfied
   that the Contracting Officer secured the lowest reasonable
   reprocurement price in this case, and that the Government has
   met its responsibility to mitigate its damages.  See K.C.
   Printing, Co., supra, Slip op. at 25; Sterling Printing, Inc.,
   supra, Slip op. at 84-85.  Accord, Mid-America Painters, Inc.,
   supra; Birken Manufacturing Company, supra; Sequal, Inc.,
   supra; Fancy Industries, Inc., supra; Zero-Temp, Inc., ASBCA
   No. 215, 78-1 BCA  13,212.  Accordingly, the Board finds that
   the Respondent has carried its burden of proof of showing that
   the excess reprocurement costs assessed reasonably minimized
   the liability of the Appellant.  See K.C. Printing, Co.,
   supra, Slip op. at 25.  Cf. Sterling Printing, Inc., supra,
   Slip op. at 77.

   6.   Finally, in order to establish a right to excess
   reprocurement costs, the Government must demonstrate that the
   repurchased work has been completed, and final payment made to
   the reprocurement contractor so that the excess costs
   assessment is based upon liability for a sum certain.  See
   Whitlock Corp. v. United States, 141 Ct.Cl. 758, 159 F.Supp.
   602 (1958), cert. denied, 358 U.S. 815 (1958).  See also e.g.,
   John L. Hartsoe, supra; Lafayette Coal Company, ASBCA Nos.
   32174, 33311, 87-3 BCA  20,116.  Where the Government fails
   to offer evidence that a reprocurement contract was awarded,
   performed, or paid for, the assessment of excess costs against
   a defaulted contractor will be denied.  See Sterling Printing,
   Inc., supra, Slip op. at 85.  Accord, Patty Armfield, AGBCA
   Nos. 91-185-1, 92-141-1, 92-143-1, 93-1 BCA  25,235; Pyramid
   Packing, Inc., AGBCA No. 86-128-1, 92-2 BCA  24,831; Scalf
   Engineering Co., supra.  Here, the relevant documentation
   presented by the Respondent consists of the reprocurement
   specifications (Res. Brf., Attachment 1-I), the reprocurement
   purchase order (Res Brf., Attachment 1-H), a memorandum to the
   FMS directing it to recover excess reprocurement costs from
   the Contractor (Res. Brf., Attachment 1-G), an affidavit from
   the Assistant Comptroller, FMS, stating that excess
   reprocurement costs were assessed against the Appellant (Res.
   Brf., Attachment I-A), and a computer printout showing that
   Bluff Springs received final payment for the completed work by
   electronic funds transfer on March 20, 1995 (Res. Brf.,
   Attachment 1-C).  Accordingly, the Board finds that the
   Respondent has carried its burden of proof with respect to the
   last element necessary to establish its entitlement to excess
   reprocurement costs.  See K.C. Printing, Co., supra, Slip op.
   at 26.  Cf. Sterling Printing, Inc., supra, Slip op. at 83.
   Also cf. Patty Armfield, supra; Pyramid Packing, Inc., supra;
   Scalf Engineering Co., supra.

      ORDER

   Considering the record as a whole, the Board finds and
   concludes that: (1) the Appellant has not shown that the flu
   epidemic in New York City during the time set for contract
   performance was the principal cause of its failure to perform;
   and (2) the Respondent has sustained is burden of proof with
   regard to the Appellant's liability for excess reprocurement
   costs.  THEREFORE, the Contracting Officer's decisions
   terminating the Appellant's contract for default and assessing
   excess reprocurement costs are hereby AFFIRMED, and the appeal
   is DENIED.

It is so Ordered.

August 29, 1995                        STUART M. FOSS
                                 Administrative Judge

______________

    1 The Contracting Officer's appeal file, assembled pursuant
    to Rule 4 of the Board's Rules of Practice and Procedure, was
    delivered to the Board on March 9, 1995.  GPO Instruction
    110.12, Subject: Board of Contract Appeals Rules of Practice
    and Procedure, dated September 17, 1984 (Board Rules), Rule
    4(a).  It will be referred to hereafter as the R4 File, with
    an appropriate Tab letter also indicated.  The R4 File has 12
    documents identified as Tabs A through L.
    2 The record on which this decision is based consists of: (a)
    the Appellant's Notice of Appeal, dated February 2, 1995; (b)
    the R4 File; (c) the Appellant's Complaint, dated February
    24, 1995; (d) the attachments to the Complaint submitted in
    accordance with Rule 4(b) of the Board Rules,, namely, a
    transcript of a television news broadcast from Channel 12 on
    February 2, 1995, a transcript of a television news broadcast
    from Channel NY1 on February 2, 1995, a transcript of a radio
    news broadcast from WCBS-AM on January 25, 1995, and three
    medical excuse notes, all dated January 27, 1995, from Victor
    Weinstein, M.D. for Richard de Marigny, Gerard de Marigny,
    and Angela de Marigny (hereinafter App. Exh. Nos. 1 through
    6, respectively); (e) a letter from the Appellant, dated
    March 15, 1995, enclosing copies of R4 File, Tabs I and J
    with the Contractor's annotations; (f) the Respondent's
    "General Denial" to the Complaint, dated March 31, 1995; (g)
    the Report of Presubmission Telephone Conference, dated July
    7, 1995 (RPTC); (h) the Appellant's Brief, dated May 11, 1995
    (hereinafter App. Brf.); and (i) the Respondent's Brief,
    dated June 16, 1995 ((hereinafter Res. Brf.), with four
    attachments, namely (1) a multi-page attachment pertaining to
    the reprocurement process used in this case (Attachment 1,
    which consists of a declaration from Robert D, Colvin,
    Assistant Comptroller, Procurement Accounting Division,
    Financial Management Service (FMS) (hereinafter Attachment 1-
    A); a handwritten sheet containing the excess reprocurement
    cost computations and indicating the contracts and the dates
    from which the costs were recovered from the Appellant
    (hereinafter Attachment 1-B); a computerized payment history
    of the reprocurement contract (hereinafter Attachment 1-C); a
    computerized billing history of the original contract
    (hereinafter Attachment 1-D); a memorandum, dated January 26,
    1995, from the Contracting Officer to the FMS asking it to
    recover the amount of excess costs upon reprocurement of the
    order (hereinafter Attachment 1-E); a copy of Purchase Order
    99517 (the reprocurement purchase order), dated February 1,
    1995, awarding the repurchase to Bluff Springs Paper Co.,
    Ltd./Thompson (Bluff Springs) (hereinafter Attachment 1-F); a
    memorandum, dated February 1, 1995, from the Contracting
    Officer to the FMS informing it that the defaulted contract
    had been reprocured and directing it to recover excess costs
    from the Appellant (hereinafter Attachment 1-G); the bid
    abstract for the reprocurement (Jacket No. 390-419)
    (hereinafter Attachment 1-H); and a copy of the repurchase
    specifications (hereinafter Attachment 1-I); (2) a bid sheet
    from the Appellant on a contract for the U.S. Marine Corps
    (Jacket No. 634-764, dated January 9, 1995 (Attachment 2);
    (3) an offer from the Contractor on a contract for 15,000
    folders (Jacket No. 610-750), dated January 9, 1995
    (Attachment 3); and (4) a letter, dated May 2, 1995, from the
    Appellant to GPO's Atlanta Regional Printing Procurement
    Office (ARPPO), answering a "Show Cause Notice" on Jacket No.
    634-764, and explaining that the delay in shipment was due to
    an influenza (flu) epidemic in New York City (Attachment 4).
    See Board Rules, Rule 13(a).  The facts, which are
    essentially undisputed, are recited here only to the extent
    necessary for this decision.
    3 The record indicates that this was a Quality Level III job
    (R4 File, Tab A, p. 3).
    4 The record discloses that the Appellant was the previous
    contractor for the AF Forms (R4 File, Tab G).
    5 The Respondent's telephone record identifies the employee
    in question as Jerry Nash, but the Appellant claims it was
    someone named "Angela."  See R4 File, Tabs I and J;
    Appellant's Letter, dated March 15, 1995, annotated
    attachment (Tab I).  The GPO Telephone Directory shows that
    Jerry Nash is a Printing Specialist in the CCS, and an Angela
    Haythe also works there as a Procurement Clerk.  See GPO
    Telephone Directory, GPO Publication 865.2 (Effective August
    1994), p. 55.
    6 The Contractor denies the Respondent's version of this
    conversation insofar as GPO assumed that there was an implied
    commitment concerning dates for receipt of the paper and
    shipment of the final product.  See Appellant's Letter, dated
    March 15, 1995, annotated attachment (Tab I, p. 1).  The
    Appellant says that at most it merely promised to call its
    paper supplier and confirm the delivery date for the paper,
    which was done on January 25, 1995,  Id.  Furthermore, the
    Contractor states that it did not give GPO a date certain for
    the shipment of the complete order because no such date could
    be given until the paper delivery date was ascertained.  Id.
    7 App. Exh. Nos. 1, 2 and 3 are broadcast transcripts of news
    reports from television channels 12 and NY1 on February 2,
    1995, and radio station WCBS-AM on January 25, 1995.  The
    substance of these reports concerns the adverse impact the
    flu epidemic was having on New York City's blood supply
    during the Christmas holiday season.  However, the radio
    report notes that because of the flu "[a]bsenteeism in the
    corporate sector is very high, . . .".  See App. Exh. No. 3.
    See also RPTC, p. 6.
    8 App. Exh. Nos. 4, 5 and 6 are medical excuse notes, dated
    January 27, 1995, from Victor Weinstein, M.D.  App. Exh. No.
    4 says that Richard de Marigny was under the doctor's care
    for the flu and complications from December 23, 1994, to
    January 20, 1995.  App. Exh. Nos. 5 and 6 state that Gerard
    de Marigny, and Angela de Marigny, respectively, were also
    under his care for the flu from December 26, 1994, to January
    20, 1995.  See also RPTC, p. 6.
    9 The Contractor's notes regarding the R4 File, Tab I, page 2
    are essentially the same as its editorial comments with
    respect to the R4 File, Tab I, page 1.  See note 6 supra.
    Furthermore, the Appellant also summarized its version of the
    relevant events on a copy of the R4 File, Tab J.  See
    Appellant's Letter, dated March 15, 1995, annotated
    attachment (Tab J).  The Contractor wrote: "Mr. Richard de
    Marigny never spoke to Mr. Jerry Nash (Compliance) with
    reference to the subject contract.  On [January 24, 1995] a
    girl named `Angela' talked with Mr. de Marigny.  Mr. de
    Marigny explained on this phone call that due to an outbreak
    of the flu (epidemic) Shipman's had not yet performed on
    [the] subject contract.  In addition, Mr. de Marigny
    explained that Shipman's paper supplier tried to contact him
    while Shipman's was closed due to the flu affecting all key
    personnel.  Mr. de Marigny specifically said that he would
    not be able to give a definative [sic] shipping date until he
    contacted the supplier to find out the extent of the problem.
    Mr. de Marigny tried to contact Mr. Charles Washington 4
    times with the definative [sic] shipping dates, but Mr.
    Washington was unavailable.  Also, Mr. de Marigny NEVER gave
    February 28, 1995 as a shipping date to anybody, therefore
    this request and subsequent concurrence to terminate was
    based on FALSE information.  [Original emphasis.]"
    10 Under the Respondent's printing procurement regulation,
    the Contracting Officer must submit a proposal to terminate a
    contract for default to the CRB for its review and
    concurrence.  See, Printing Procurement Regulation, GPO
    Publication 305.3 (September 1, 1988), Chap. I, Sec. 10, 
    4.b.(i) (PPR).  See also, Univex International, GPO BCA 23-90
    (July 31, 1995), Slip op. at 9, fn. 12; Hurt's Printing Co.,
    Inc., GPO BCA 27-91 (January 24, 1994), Slip op. at 7, fn.
    10, 1994 WL 275098; Graphics Image, Inc., GPO BCA 13-92
    (August 31, 1992), Slip. op. at 9, fn. 10, 1992 WL 487875.
    11 In that regard, the PPR lists eight factors which "[t]he
    Contracting Officer shall consider" in determining whether to
    terminate a contract for default: (i) the provisions of the
    contract and applicable laws and regulations; (ii) the
    specific failure of the contractor and the excuses, if any,
    made by the contractor for such failure; (iii) the
    availability of the supplies or services from other sources;
    (iv) the urgency of the need for the supplies or services and
    the period of time which would be required to obtain sources
    as compared with the time in which delivery could be obtained
    from the delinquent contractor; (v) the effect of a
    termination for default upon the contractor's capability as a
    supplier under other contracts; (vi) the effect of a
    termination for default on the ability of the contractor to
    liquidate progress payments; (vii) the availability of funds
    to finance repurchase costs which may prove uncollectible
    from the defaulted contractor, and the availability of funds
    to finance termination costs if the default is determined to
    be excusable; and (viii) any other pertinent facts and
    circumstances.  See PPR, Chap. XIV, Sec. 1,  3.c.(3).  See
    also Univex International, supra, Slip op. at 10, fn. 14;
    Shepard Printing, GPO BCA 23-92 (April 29, 1993), Slip op. at
    26, fn. 31, 1993 WL 526848; Graphics Image, Inc., supra,
    Slip. op. at 26, fn. 31.  The PPR essential repeats the
    requirements contained in the Federal Acquisition Regulation
    (FAR).  See FAR  49.402-3(f)(1)-(7).
    12 The Respondent's procedure for recovering of excess
    reprocurement costs is set forth in the PPR, which states:
    "If repurchase is effected at a price in excess of the
    supplies terminated, the Contracting Officer shall: (i)
    advise the Financial Management Service, Voucher Examination
    Branch (Stop FMCE) that such a repurchase has been made; (ii)
    provide the jacket number, the purchase order number and the
    contractor's name for both the terminated and new contracts;
    and, (iii) request that excess costs be computed and the
    Contracting Officer advised.  When advised by the Voucher
    Examination Branch, the Contracting Officer shall make a
    written demand (with a copy to the Voucher Examination
    Branch) on the defaulted contractor for the total amount of
    such excess including increases or decreases in other costs
    such as transportation and discounts.  If the contractor
    fails to make payment, the Voucher Examination Branch shall
    take appropriate action to collect the amount due."  See PPR,
    Chap. XIV, Sec. 1,  3.f.(3).  See also, Univex
    International, supra, Slip op. at 34, fn. 32.
    13 The Appellant and the Respondent disagree as to the actual
    amount of excess reprocurement costs assessed.  The
    Contractor maintains that it has been charged with $29,900.00
    in excess costs, see App. Brf., p. 2; Complaint, p. 7, while
    the Government states that such costs amounted to $29,100.00,
    see Res. Brf., p. 2, RPTC, p. 6.  Since the difference
    between the parties' figures is only $800.00, or less than 3
    percent of the amount of excess costs cited by each of them,
    their disagreement is basically de minimis.  Although the
    Board notes that the Assistant Comptroller, FMS, asserts that
    the amount of excess reprocurement costs were $29,900.00,
    which raises an internal conflict in the Respondent's
    position, see Res. Brf., Attachment I-A,  3, it finds it
    unnecessary to resolve this dispute in the context of this
    decision, see B & B Reproductions, GPO BCA 09-89 (June 30,
    1995), Slip op. at 16, fn. 18.
    14 Specifically, the record reveals the following recovery
    schedule: (a) $6,236.00 from Purchase Order F-8974, Jacket
    No. 539-206 on February 8, 1995; (b) $13,953.00 from Purchase
    Order C-1196, Jacket No. 610-750 on February 9, 1995; (c)
    $6,167.60 from Purchase Order 99176, Jacket No. 382-298 on
    March 23, 1995; (d) $2,715.00 from Purchase Order F-0528,
    Jacket No. 634-764; and (e) $819.40 from Purchase Order
    99176. Jacket No. 382-298 on April 3, 1995 (second voucher).
    See Res. Brf., Attachment 1-B.
    15 Apart from Richard de Marigny, Gerard de Marigny, and
    Angela de Marigny, the Appellant claims that the flu epidemic
    also resulted in the temporary loss of Venerio Rigolini, Vice
    President of Engineering, and Artis Myers, Supervisor, to the
    firm.  See Complaint, p. 3.  No doctor's notes were submitted
    for Rigolini and Myers, although the Contractor states they
    are available upon request.  Id.
    16 At various times in this proceeding, the Appellant also
    asserted that: (a) the default action was somehow
    procedurally defective because the Contracting Officer failed
    to issue a "Show Cause Notice," affording the Contractor an
    opportunity to explain the reason for its failure to perform,
    before terminating the contract; and (b) the real reason for
    the default was the Contracting Officer's desire to "teach
    the Appellant a lesson," which amounts to an allegation of
    bad faith and an abuse of discretion.  See Complaint, p. 4;
    Appellant's Letter, dated March 15, 1995, p. 4; RPTC, pp. 5,
    6-7.  The Contractor's contention that a "Show Cause Notice"
    was required prior to default was rejected by the Board at
    the presubmission conference.  See RPTC, p. 7.  As the Board
    noted, since the default was based on the failure to deliver
    the AF Folders within the time specified in the contract,
    neither a "Show Cause Notice" or "Cure Notice" was required
    to be sent to the Contractor prior to termination.  Id.  See
    Univex International, supra, Slip op. at 21; K.C. Printing
    Co., GPO BCA 02-91 (February 22, 1995), Slip op. at 13;
    Shepard Printing, GPO BCA 23-92 (April 29, 1993), Slip op. at
    13, 1993 WL 526848; B.P. Printing and Office Supplies, GPO
    BCA 22-91 (February 5, 1993), Slip op. at 12, 1993 WL 311371;
    Stephenson, Inc., GPO BCA 2-88 (December 20, 1991, Slip op,
    at 19-20, 1991 WL 439274.  With respect to a "Show Cause
    Notice," in particular, while GPO's printing procurement
    regulation, like the procurement rules of other Federal
    agencies, recommends 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, see PPR,
    Chap. XIV, Sec. 1,  3(c)(1); cf. Lewis B. Udis v. United
    States, 7 Cl. Ct. 379, 385-86 (1985), the omission of a "show
    cause notice" by the Government is not generally a procedural
    defect to a termination based on the contractor's failure to
    make timely deliveries or perform timely services, see Univex
    International, supra, Slip op. at 24, fn. 25; Shepard
    Printing, supra, Slip op. at 14, fn. 20; Stephenson, Inc.,
    supra, Slip op. at 20, fn. 22.  The Appellant's assertion
    that the termination stemmed from the Contracting Officer's
    desire to "teach the Appellant a lesson" appears to rest on a
    statement allegedly made by Charles Washington, a Printing
    Specialist in the Contracts Branch of GPO's Purchase
    Division, who apparently was assigned to work with the
    Contractor in winding up matters on the contract after it was
    defaulted.  See GPO Telephone Directory, p. 57.  Such a
    statement, even if made, is hearsay, which is defined as "a
    statement made by the out-of-court declarant which is offered
    into evidence to prove the truth of the matter asserted."
    See Taylor Air Systems, Inc., ASBCA No. 25526, 84-1 BCA 
    17,141, at 85,396.  See also FED. R. EVID. 801.  As a rule,
    credible hearsay is admissible in administrative proceedings,
    including those of this Board.  See, Vanier Graphics, GPO BCA
    12-92 (May 17, 1994), Slip op. at 36, fn. 29, 1994 WL 275102
    (hearsay evidence is admissible in administrative proceedings
    provided it is relevant and material, and otherwise reliable,
    adequate, probative, and fundamentally fair.  [Citations
    omitted.]).  Accord, Southwest Marine, Inc., DOTBCA No. 1661,
    93-3 BCA  26,168; Rocky Mountain Trading Co., GSBCA No.
    8671-P, 87-1 BCA  19,406; Johnson & Son Erector Co., ASBCA
    No. 23689, 86-2 BCA  18,931; Hof Construction, Inc., GSBCA
    No. 7012, 84-1 BCA  17,009.  However, the statement
    proffered by the Appellant in this case is the "rankest sort
    of hearsay," more in the nature of speculation, and is
    entitled to no credence whatsoever.  See Amdahl Corp. v.
    Department of Health and Human Services, GSBCA No. 11998-P,
    93-2 BCA  25,612, at 127,488.  More importantly, the Board
    has never made a finding of bad faith on such skimpy
    evidence.  In that regard, the Board has held on many
    occasions that 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., Professional
    Printing of Kansas, Inc., GPO BCA 02-93 (May 19, 1995), Slip
    op. at 43, fn. 58; Universal Printing Co., GPO BCA 09-90
    (June 22, 1994), Slip op. at 24, fn. 24, 1994 WL 377586;
    Sterling Printing, Inc., GPO BCA 20-89 (March 28, 1994), Slip
    op. at 34-35, fn. 46, 1994 WL 275104; B. P. Printing and
    Office Supplies, GPO BCA 14-91 (August 10, 1992), Slip op. at
    16, 1992 WL 382917; The Standard Register Co., GPO BCA 4-86
    (October 28, 1987), Slip op. at 12-13, 1987 WL 228972.
    Accord, Brill Brothers, Inc., ASBCA No. 42573, 94-1 BCA 
    26,352; Karpak Data and Design, IBCA No. 2944 et al., 93-1
    BCA  25,360; Local Contractors, Inc., ASBCA No. 37108, 92-1
    BCA  24,491.  The key to such evidence is that there must be
    a showing of a specific intent on the part of the Government
    to injure the contractor.  Kalvar Corp. v. United States, 543
    F.2d 1298, 1302 (Ct. Cl. 1976), cert. denied, 434 U.S. 830
    (1977).  See, Stephenson, Inc., supra, Slip op. at 54.  In
    the Board's view, no such "irrefragable" proof of bad faith
    exists in this record.
    17 The United States Claims Court was renamed the United
    States Court of Federal Claims on October 29, 1992, pursuant
    to Title IX of the Federal Courts Administration Act of 1992,
    Pub. L. No. 102-572, 106 Stat. 4506 (1992).
    18 In R.C. Swanson, the Board adopted a four-part test
    against which to measure the evidence presented by a
    contractor attempting to excuse a default for untimely
    performance.  In that regard, the contractor had to prove:
    (a) that the nonperformance was due to a situation which was
    beyond its control and it was not at fault or negligent; (b)
    that performance would have been timely but for the
    occurrence of the event which is claimed to excuse the
    nonperformance; (c) that it took every reasonable precaution
    to avoid foreseeable causes for nonperformance and to
    minimize their effect; and (d) that a precise period of time
    of nonperformance because of the causes alleged.  See R.C.
    Swanson Printing & Typesetting Co., supra, Slip op. 28-29.
    19 As indicated in note 2 supra, three attachments to the
    Respondent's brief relate to different contracts than the one
    which is the subject of this appeal; i.e., Attachments 2 and
    4 concern a contract identified as Jacket No. 634-764, while
    Attachment 3 deals with a contract awarded as Jacket No.
    610-750.  GPO's clear intent in seeking to make these
    documents part of the record is to impeach the Appellant's
    assertion that it ceased production from December 30, 1994,
    to January 20, 1995.  Indeed, the Contractor's statement to
    the ARPPO on May 2, 1995 (Attachment 4), that its plant was
    not operating from the middle of January to nearly the end of
    February, would, if introduced at hearing, make the
    Appellant's position in this case vulnerable to attack as a
    prior inconsistent statement.  See Skip Kirchdorfer, Inc.,
    ASBCA Nos. 32637, 35074, 91-1 BCA  23,380.  However, the
    Board's narrow jurisdictional mandate prevents it from
    considering matters outside the scope of the disputed
    contract.  See, Universal Printing Co., supra, Slip op. at
    26, fn. 27, Shepard Printing, supra, Slip op. at 7, fn. 11;
    B.P. Printing and Office Supplies, supra, Slip op. at 14-15.
    Accordingly, the Board has not considered Attachments 2, 3,
    and 4 to the Respondent's brief in the context of this case.
    20 While the excusable events listed in the "Default" clause,
    all of which must be beyond the control and without the fault
    or negligence of the contractor, are set forth in the context
    of relieving the contractor from responsibility for excess
    reprocurement costs, it is well-settled that the same
    occurrences extend the time available for performance and
    make termination prior to that time improper.  See e.g., FKC
    Engineering Co., ASBCA No. 14856, 70-1 BCA  8,312.
    21 Default terminations-as a species of forfeiture-are
    strictly construed.  See D. Joseph DeVito v. United States,
    188 Ct. Cl. 979, 413 F.2d 1147, 1153 (1969).  See also
    Foremost Mechanical Systems, Inc., GSBCA Nos. 12335, 12384,
    95-1 BCA  27,382; J. D. Hedin Construction Co. v. United
    States, 187 Ct. Cl. 45, 408 F.2d 424 (1969); Murphy, et al.
    v. United States, 164 Ct. Cl. 332 (1964).
    22 The standard of proof in these cases is a "preponderance
    of the evidence."  See M.W. Microwave Corp., ASBCA No. 45084,
    93-3 BCA  26,627, at 129,377.
    23 The cases tell us that essentially the same rule applies
    to contractor delays caused by illness, see e.g., Jerome
    Bailey, PSBCA No. 3638, 95-1 BCA  27,447; C. Howdy Smith,
    AGBCA No. 90-154-1, 92-2 BCA  24,884, injury, see e.g.,
    Lewis Evans, AGBCA No. 85-498-1, 86-3 BCA  19,328, or death,
    see e.g., Stanley Jewell, GSBCA No. 10348, 90-3 BCA  23,283.
    24 On August 18, 1995, the Board telephoned the State of New
    York's Department of State, Corporation Division, and was
    informed by Ms. Donna Rapisarda, Senior Clerk, Corporation
    Research, that the Appellant was incorporated under the laws
    of New York on December 11, 1974, and that according to her
    records, it is currently a business in good standing.  Since
    the Contractor's corporate status is "capable of accurate and
    ready determination by resort to sources whose accuracy
    cannot be questioned," the Board takes judicial notice of
    that fact for the purposes of this decision.  FED. R. EVID.
    201(b)(2).
    25 The ASBCA also observed that: "It is not, however, whether
    the contracting party is incorporated or not that is decisive
    insofar as excusability is concerned, as the Government seems
    to suggest.  Rather, it is whether the parties intended to
    have the particular individual do the work, although this
    expectation may be remote whenever a corporation is involved.
    See, e.g., John F. Lehnertz, AGBCA No. 77-132, 78-1 BCA 
    12,895 (owner's disabling illness did not justify failure to
    perform a tree trimming contract because the contract was
    `for nonpersonal services and there was no basis for
    concluding that the parties intended to have the [owner] do
    the work').  On the other hand, when the Government contracts
    with a sole proprietor, the expectation may be that the owner
    will personally perform the services requested.  Delay due to
    the illness of that individual may be excusable.  Herman
    White, ENG BCA No. 5109, 85-1 BCA  17,897.  See also Plus
    Technology, ASBCA No. 45353, 93-2 BCA  25,854, 10 March 1993
    (owner's terminal illness was beyond his control and without
    his fault or negligence, but no showing illness delayed
    performance).  The answer must depend on the individual
    circumstances involved."  See M.W. Microwave Corp., supra,
    93-3 BCA at 129,378.
    26 In this context, a "broach" is a tapered bit on a metal-
    cutting machine tool that is pulled or pushed through a hole
    to enlarge or shape the hole.  WEBSTER'S NEW WORLD DICTIONARY
    176 (3rd coll. ed. 1988).  See Crawford Development and
    Manufacturing Co., supra, 74-2 BCA at 50,622.
    27 This rule is nothing more than the "black letter"
    principle which requires a contractor to either have on hand
    or made arrangements for all the necessary ingredients-labor,
    plant, equipment, material and finances-adequate for contract
    performance prior to making a contract commitment with the
    Government.  See, K.C. Printing, supra, Slip op. at 15; R.C.
    Swanson Printing and Typesetting Co., supra, Slip. op. at 33;
    Chavis and Chavis Printing, supra, Slip op. at 14-15.  See
    also Yankee Telecommunication Laboratories, Inc., supra, 85-1
    BCA at 88,873.  The reason for the rule is simple-implicit in
    a contractor's promise to perform is its assurance that it
    has the ability to perform.  See, K.C. Printing, supra, Slip
    op. at 15; R.C. Swanson Printing and Typesetting Co., supra,
    Slip. op. at 34; Chavis and Chavis Printing, supra, Slip op.
    at 14.
    28 When a defaulted contractor appeals a contracting
    officer's termination decision, the usual practice is for the
    Board to look at the excess reprocurement cost issue as well,
    provided that question is ripe for consideration; i.e., such
    costs have been assessed.  See Univex International, supra,
    Slip op. at 33-34; Sterling Printing, Inc., supra, Slip op.
    at 48.
    29 As the Board has observed in past cases, GPO reprocurement
    procedures are consistent with the general practice in
    Government reprocurements.  See PPR, Chap. XIV, Sec. 1, 
    3.f.(2).  See K.C. Printing, Co., supra, Slip op. at 21, fn.
    22; Sterling Printing, Inc., supra, Slip op. at 17, fn. 25,
    at 68, fn. 65.
    30 In most cases, the Government satisfies this burden by
    showing that it used sealed bid advertising to repurchase
    defaulted supplies and services.  See e.g., H & H
    Manufacturing Co. v. United States, 168 Ct.Cl. 873 (1964);
    Lester Brothers, Inc. v. United States, 151 Ct.Cl. 536
    (1960); Star Food Processing, Inc., ASBCA Nos. 34161, 34163,
    34164, 34165, 35544, 35545, 35546, 35547, 90-1 BCA  22,390;
    Erickson Enterprises, AGBCA 77-168, 79-1 BCA  13,628.  See
    generally Cibinic & Nash, pp. 1020-23.
    31 This duty is to be carried out within the confines of
    Federal procurement statutes, regulations, policies and
    directives, and in pursuit of the Government's own best
    interests, whether or not that results in a lower price for a
    defaulted contractor.  See Barrett Refining Corp., supra,
    91-1 BCA  23,566, at 118,145.
    32 If the Government fails to make a reasonable effort at
    contacting the original bidders, the result may be a denial
    or reduction excess costs.  See K.C. Printing, Co., supra,
    Slip op. at 22, fn. 23 (citing Associated Cleaning, Inc.,
    GSBCA No. 8320, 91-1 BCA  23,360; Old Dominion Security,
    Inc., supra; Barrett Chemical Co., Inc., GSBCA No. 4544, 77-2
    BCA  12,625).  Basically, the law creates a rebuttable
    presumption that the repurchase could have been completed at
    the price previously quoted by a lower bidder if an effort
    had been made to do so.  See Dillon Total Maintenance, Inc.
    v. United States, 218 Ct. Cl. 732 (1978); AAA Janitorial
    Services, ASBCA No. 9603, 67-1 BCA  6,091.
    33 Where the Government fails, without adequate explanation,
    to solicit the second lowest bidder on the defaulted
    contract, that bid will set the limit of recovery for excess
    reprocurement costs.  See, Birken Manufacturing Co., ASBCA
    No. 32590, 90-2 BCA  22,845; Prestex, Inc., ASBCA Nos.
    21284, 21372, 21453, 21467, 23184, 81-1 BCA  14,882, aff'd,
    81-2 BCA  15,397; Environmental Tectonics Corp., ASBCA No.
    21204, 78-1 BCA  12,986; Solar Laboratories, Inc., ASBCA No.
    19957, 76-2 BCA  12,115.
    34 Business Forms Service, Inc., ATC Decal Company, and
    Technical Publishing Services, Inc. were decided by ad hoc
    contract appeals panels which considered appeals from final
    decisions of GPO Contracting Officers prior to the
    establishment of the Board in 1984.  GPO Instruction 110.10C,
    Subject: Establishment of the Board of Contract Appeals,
    dated September 17, 1984.  Decisions of these ad hoc panels
    are cited by the Board in its decisions as "GPOCAB."  While
    the Board is not bound by the decisions of the ad hoc panels,
    its policy is to follow their rulings where applicable and
    appropriate.  See, Univex International, supra, Slip op. at
    23, fn. 24; Universal Printing Co., supra, Slip op. at 11,
    fn. 9; Shepard Printing, supra, Slip op. at 14, fn. 19;
    Stephenson, Inc., supra, Slip op. at 18, fn. 20; Chavis and
    Chavis Printing, supra, Slip op. at 9, fn. 9.
    35 The Board might have reached a different conclusion if
    there had been more than two bidders on the original
    contract.  See, Marine Engine Specialties Corp., ASBCA No.
    20521, 76-1 BCA  11,891 (the Government failed to mitigate
    its excess costs by awarding the reprocurement contract to
    the second low bidder on the original solicitation without
    making an effort to contract three other contractors who had
    submitted offers on the defaulted contract, where the
    repurchase unit price was 25 percent greater than that of the
    original contract).
    36 In fulfilling the obligation to secure the best price for
    the Government, a contracting officer must follow the same
    standard of reasonableness and prudence under the
    circumstances which he/she exercised in the timing and
    selecting of the method of reprocurement.  See, William A.
    Hulett, supra; Barrett Refining Corp., supra;  Mid-America
    Painters, Inc., supra.
    37 On the other hand, in the absence of negotiations or some
    other explanation for the increase in the price of
    repurchased supplies, most appeals boards will reduce the
    amount of recoverable excess costs.  See Puroflow Corp.,
    supra; Sequal, Inc., supra.  See also Solar Laboratories,
    Inc., supra, 76-2 BCA at 58,195.