FRY COMMUNICATIONS, INC. - INFOCONVERSION JOINT VENTURE GPO BCA 7-84 PRINT ORDER 20,002 JACKET NO. 421-710 (878-84-2396) PURCHASE ORDER 33846 July 9, 1986 MICHAEL F. DiMARIO, Administrative Law Judge Opinion This appeal, timely filed by Fry Communications, Inc. - InfoConversion Joint Venture (hereinafter "Appellant"), is from the final decision of R. E. Lee, Jr., Contracting Officer, U.S. Government Printing Office (hereinafter "GPO" or "Respondent"), dated September 18, 1984, reaffirming his prior decision of July 18, 1984, requiring that the Appellant print and distribute at Appellant's own expense errata sheets to replace certain incorrectly printed pages in the back of a publication entitled "Enlisted Ranks Personnel UPDATE" ordered by Respondent under Print Order 20,002, Purchase Order 33846, Jacket 421-710 of a certain contract between the parties otherwise identified as GPO Program 400-S (878-84-2396). "Enlisted Ranks Enlisted UPDATE" was to be a compilation of some five Army regulations. The text of certain of these regulations gave intended users instructions on how to fill out certain forms designated as "R Forms." A copy of each referenced "R Form" was to be printed in the back of each book; the intention being that they would be photocopied by users as necessary in conjunction with the instructions in the regulations. The appeal arises under Article 2-3 entitled "Disputes" of United States Government Printing Office Contract Terms No. 1 (GPO Publication 310.2 - Revised October 1, 1980) which was incorporated into and made a part of the said contract by reference therein. The decision of the Contracting Officer is affirmed for the reasons hereinafter set forth. Background On February 9, 1984, Appellant, a joint venture between Fry Communications, Inc., Mechanicsburg, PA 17055 (hereinafter "Fry"), and InfoConversion, a division of Grumman Data Information Services, Inc., Woodbury, NY (hereinafter "InfoConversion"), was awarded a requirements type single award term contract by Respondent for data capture, printing, binding, and distribution of "Army Update Publications" as required by the Department of the Army through July 31, 1984, and extending one year at a time up to 1988 as funds are available. The procurement was undertaken by two-step formal advertising wherein prospective bidders were requested under Step One to furnish technical proposals without pricing and under Step Two to formally bid with price quotations. Various documents from this process, including the Request for Technical Proposals/Specifications and the Invitation for Bids as each was amended, Appellant's Technical Proposal, and the bid, itself, comprise the contract between the parties. Pertinent provisions of the contract's "Statement of Work" set forth under "GENERAL TERMS, CONDITIONS, AND SPECIFICATIONS" (R4 File, Tab 1, page 4 of 20 dated May 4, 1983) were as follows: GOVERNMENT TO FURNISH For Composition - . . . . Approximately 600 to 3600 pages of manuscript copy will be furnished to the contractor on a weekly basis. Each six pages of manuscript copy will make approximately one photocomposed page. For graphics (these must be digitized) - Reprint copy, line illustrations, monochromatic slides, and prints. Most are line illustrations and range in size from full page to one-eighth of a page. (Rule 4 File, Tab 1, page 8 of 20 dated May 4, 1983) . . . . CONTRACTOR TO FURNISH: Composition requirements - (1) Automatic generation of fully composed pages including running foot and folio (hyphenation, justification, multicolumn, and illustration digitization). (See sample copy.) Cutting and pasting are not acceptable unless in the contractor's opinion, art furnished is not of sufficient quality to be digitized. Copy will be submitted for digitizing at a later date. (Rule 4 File, Tab 1, page 8 of 20 dated May 4, 1983) . . . . (9) Graphics - regulations often include graphs, charts, forms, and other types of illustrations. These must be digitized, merged, and photocomposed along with the text. (R4 File, Tab 1, page 9 of 20 dated May 4, 1983) . . . . COMPOSITION: The entirety of each category of composition (text, tabular, and display) must be identical throughout the product(s) ordered under these specifications. Composition must be photocomposition. Photocomposition includes all typesetting produced by photographically creating the characters on sensitized film or paper. Type Page Size: Books & pamphlets - See "Exhibits" 1 through 4. Inserts, cards, and mailing bands, see sample. (R4 File, Tab 1, page 10 of 20 dated May 4, 1983) . . . . Page Formats: The Government requires full-page photocomposition for all pages produced. (R4 File, Tab 1, page 10 of 20 dated May 4, 1983) . . . . PROOFS: Two sets of page proofs. When requested, one set of page proofs on updated pages only. The proofs must have all elements in their proper position. The contractor will be responsible for performing all necessary proofreading to insure that the proofs are in conformity with the copy submitted. All proofs must be collated in sets, numbered sequentially, and have a one inch clear margin on all sides. . . . (Emphasis added) If any contractor's errors are serious enough in the opinion of the GPO to require revised proofs, the revised proofs are to be provided at no expense to the Government. No extra time can be allowed for this reproofing; such operations must be accomplished within the original production schedule allotted in the specifications. The contractor must not print prior to receipt of an "OK to print." (R4 File, Tab 1, page 11 of 20 dated May 4, 1983) . . . . MARGINS: Head 5/16", bind 5/8". Some pages will have special margins. (R4 File, Tab 1, page 13 of 20 dated May 4, 1983) (Emphasis added) . . . . DISTRIBUTION: . . . . Return manuscript copy and artwork with one set of proofs to the department at the address listed on the print order and one set to the address under Schedule. . . . . SCHEDULE: Adherence to this schedule must be maintained. Contractor must not start production of any job prior to receipt of the individual print order. Proofs - Furnished material and proofs must be picked up from the Adjutant General, Hoffman Building 1, 2461 Eisenhower Ave., Room 1020, Alexandria, VA 22331. At contractor's option, furnished material will be mailed f.o.b. contractor's plant. Time consumed in mailing will be deducted from the production schedule. The following schedule begins the workday after notification of the availability of print order and furnished material. The numbers under the column headed "WD After" represent the number of workdays allowed to complete that certain part of the schedule after completion of the preceding part. WD After *Contractor submit page proofs 5 Contractor pickup page proofs 10 *The contractor will be required to deliver approximately 500 output pages per week, 100 pages per day for balance. Page proof of Updated Pages: Contractor submit page proofs 2 Department gives OK to print 1 (R4 File, Tab 1, page 16 of 20 dated May 4, 1983) (Emphasis added) Exhibit 4, identified by sublegend as "Army Update Publications: Format for Reproducible Inclosures (R-Forms). (Same for 2, 3 or 4 column text formats)" [Illustration of page format] (R4 File, Tab 1, page 20 of 20 dated May 4, 1983) Pertinent provisions of Part Two Invitation for Bids (R4 File, Tab 1, page 1 of 18 dated January 9, 1984) were as follows: ORDERING: Items to be furnished under this contract shall be ordered by the issuance of print orders by the Government. Orders may be issued under this contract from date of award through December 31, 1988. All print orders issued hereunder are subject to the terms and conditions of this contract. This contract shall control in the event of conflict with any print order. When mailed, a print order shall be "issued" for purposes of this contract at the time the Government deposits the order in the mail. (R4 File, Tab 1, page 4 of 18 dated January 9, 1984) (Emphasis added) DEFINITIONS . . . . Printer's Error: Any error which has been caused by the failure of the contractor to follow the manuscript copy literally. (R4 File, Tab 1, page 5 of 18 dated January 9, 1984) (Emphasis added) In addition to the contract itself, Respondent by letter of April 17, 1984, furnished Appellant the following style sheet: [Illustration of style sheet] (R4 File, Tab 7B) Thereafter, on June 1, 1984, the Government began furnishing Appellant its requirements pursuant to the terms of the contract. Accordingly, on June 1, 1984, the Government supplied Appellant with manuscript copy for the Army update publication entitled "Enlisted Ranks Personnel UPDATE." (R4 File, Tab 7) (The record is not clear concerning whether or not any order accompanied this copy.) Apparently, Appellant was to digitize this material and later merge it with graphics which it would subsequently receive from Respondent's customer agency, the Department of the Army. On June 26, 1984, at 10 a.m., Mr. Paul Jeffries of the Department of the Army, telephonically notified InfoConversion's Production Supervisor, Janet Whitcomb, that the graphics.were available for pick up. (Official File, Tab 21, page 23) The record and testimony show that the Appellant picked up the material on June 26, 1984, the same day it was called. Accompanying the graphics was a Print Order 5069 dated June 22, 1984, for the Enlisted Ranks Book calling for the digitization of "19 R Forms in back of book [and] 19 footers in back of book." The Order was also marked "[p]roofs [r] equired. Return Original and/or Negs. To: HQDA (DAAG-PAZ-R) Attn: Mr. Jeffries, Hoffman Bldg. 1, Room 1034, Alexandria, VA 22331 Phone (202)325-6116. For additional information contact Mr. Paul Jeffries (202) 325-6116." The copy for each "R Form" had taped to it a preprinted instruction tag checked in the block reading "[r]eproducible [f]orm (-R Form) [d]igitize this art and position on page per established specifications." (R4 File, Exhibit 7) According to Respondent's witness, Kathy Phillips, the tags were taped on the bottom of each piece of copy with the binding edge to the left so that "R Forms" which were to be reproduced as broad pages, i.e., with the image placed horizontally rather than vertically, would be readily apparent. Appellant's witness, Janet Whitcomb, on the other hand claims that the tags were placed on the copy in various locations and thus had no apparent meaning respecting image placement. The Print Order also reflected a ship/delivery date of July 3, 1984. Thus, the Appellant was allowed precisely 5 contractually agreed to work days to accomplish the digitization and furnish the proofs to the Department of the Army. The work was apparently accomplished within the 5-day time frame. However, when the Army received the proofs on July 3, 1984, it discovered that these were of the footers only and not the "R Forms" themselves. (R4 File, Tab 4) The Army, however, deemed it important to give the "OK to print" by July 5, 1984, because that was the date of issuance which the publication was to bear. As a result, the Army, by telephone conversation between Jeffries and Whitcomb, then knowingly waived its right to receive the proofs of the "R Forms" and gave the "OK to print." That same day Whitcomb transmitted the camera ready "R Form" artwork to Fry Communications. (Official Record, Tab 21, page 25 and Appellant's Exhibit 1) In conformance with this, the Army, by Print Order 20,002 dated July 2, 1984, then ordered the printing of some 57,813 copies of the 384-page publication in trim size 8 3/8 x 10 7/8 inches. The Print Order required the production to be in accordance "with the purchase order and specifications indicated." (Rule 4 File, Tab 2) This quantity was later increased to 67,813 by Modification No. 0003 dated July 10, 1984. (R4 File, Tab 2) Appellant completed the printing and shipped the publication from its Mechanicsburg, PA plant on July 11, 1984. Upon receipt by the Department of the Army on July 12, it was determined that "R Forms" over 44 x 61 picas were reduced in size to less than 100 percent of the original copy furnished by the Government and some were printed in a vertical configuration rather than in a broad configuration as desired by the Government rendering them unusable in the opinion of the Army. (R4 File, Tab 4) The Department then elected to use errata sheets to correct the "R Form" defect, with the proviso that all the costs associated with the reprinting were to be borne by Appellant because of contractor error. Appellant however, denied that the errors were of their making asserting instead that they were the result of unclear general contract specifications drafted by Respondent; conflicting instructions on the previously furnished style sheet; a lack of clear instructions accompanying Respondent's furnished copy for each "R Form;" and insufficient time being allowed by Respondent from the time of delivery of the print order and materials for digitization and the stated desired date for delivery of the completed publication to accommodate adequate customer agency review of page proofs, resulting in a waiver of such right of review by the customer agency which, if conducted, would have in the opinion of Appellant identified the error before the camera copy was forwarded to the printer (Fry). Appellant further asserted that it acted as a reasonable printing contractor with respect to making its judgments respecting the reductions and positioning of the "R Forms." Appellant thus requested that the Respondent reconsider its decision. Thereafter, a final decision was rendered by the Contracting Officer on September 18, 1984, reaffirming his previous findings. It is from such decision that Appellant by letter of December 14, 1984, timely appealed. Subsequent thereto, both a Prehearing Conference and Hearing were held. At the outset of the Hearing Appellant formally dropped its appeal of Print Order 20,005. Thus, the Board has before it at this juncture only Print Order 20,002 involving some 19 "R Forms." Issues The questions presented by this appeal are: (1) Whether or not the Appellant was required by the terms and conditions of the contract to reproduce the "R Forms" at 100 percent of the image size of the original copy received by it from Respondent; (2) Whether or not the Appellant was adequately notified that certain "R Forms" were to be printed as broad pages so that the top sides of such forms would run along the binding edge of each book, requiring each printed book to be turned 90 degrees in order to "read" the "R Form" correctly; and (3) Whether or not the Government, because of purported internal delays, materially contributed to the printing errors in question. Discussion In Opalack v. United States, 5 Cl.Ct. 349 (1984), the United States Claims Court, at page 359, tells us that: [6-8] Ordinarily, when interpreting a contract, the plain meaning of the contract is binding upon the court unless the contract by its very terms is inherently ambiguous. 19/ A contract is ambiguous if it is subject to more than one reasonable interpretation. 20/ But it is not appropriate to strain the language of the contract to create an ambiguity. 21/ In light of this guidance, the Board is of the opinion that a reasonable printer in like circumstances to those in this appeal, examining the language "[v]arious same size, reproducible copy for forms (not filled-in examples) . . . centered in this area on recto pages only, no running foot, blind folios" from Exhibit 4 of the "Statement of Work," supra, page 6, in the context of other restrictive contract provisions, would have drawn the conclusion that it was not authorized to photocompose material in any size other than the size of the original copy received by it. It is the Board's belief that while the language "various same size" does not itself expressly state that the product is to be produced at 100 percent of copy size, it most certainly strongly implies that no reduction is to be taken. If no reduction is to be undertaken, it follows ergo that the product must be produced at 100 percent of original copy size. Moreover, if the Appellant had expressly argued (which it has not) that the "various same size" language was ambiguous in light of the copy being larger than the "standard margin" page format disregarding the "special margins" provision of the contract, most certainly the ambiguity would have to be deemed patent and not latent (WPC Enterprises, Inc. v. United States, 323 F.2d 874, 163 Ct.Cl. 1 (1963); Max Drill, Inc. v. United States, 427 F.2d 1233, 193 Ct.Cl. 608 (1970)), thus throwing the burden upon the Appellant to have inquired of the Government before proceeding further as to what was intended to be meant by such provisions. This is especially so, given the contract terms, supra, cited by Respondent requiring the contractor to make such inquiry. Additionally, it is the Board's opinion that the waiver of the provision for proofs did not alter the responsibility of the contractor to haveperformed in accordance with the contract terms. Such provision was clearly intended to be for the protection of the Government not the contractor so that here when time was of the essence for the Government to adhere strictly to the established schedule, and Appellant having failed to include the "R Form" proofs by the July 3rd date, it was perfectly reasonable for the Government to waive such protection without giving up any rights to strictly enforce those provisions of the specifications defining the product it sought to have manufactured. Such waiver can in no way be construed to have a causal relationship to the error in size reduction albeit that but for the waiver the error would have been discovered before printing. Respecting the question of whether or not there was adequate notice given to Appellant that certain "R Forms" were to be reproduced as broad images, the Board is of the opinion that "Statement of Work," Exhibit 4, the size of the "R Form" copy itself, the Style Sheet instruction, and the instruction taped on the copy, whether as contended by the Government or as contended by Appellant, were patently ambiguous one with another and should have caused the printer to inquire as to what was the desired configuration of such forms before printing them as was done. Lastly, it is the Board's opinion that the Appellant has offered no evidence whatsoever to support its contention that internal delay in the Government contributed to the error itself. Moreover, the record and testimony show that the Appellant was afforded precisely the time for digitization of the "R Forms" to which it was contractually entitled. Decision The Board believes that no other conclusions but the foregoing are reasonable, all testimony and evidence duly considered. Accordingly, the Board affirms the opinion of the Contracting Officer and denies the appeal.