GPO BCA 8-85

January 8, 1987
Michael F. DiMario
Administrative Law Judge


   This appeal, timely filed by Geographics, Inc., 3450 Browns
   Mill Road SE., Atlanta, GA 30354 (hereinafter "Appellant"), is
   from the final decision of February 22, 1985, of Emery A.
   Dilda, Contracting Officer, U.S. Government Printing Office,
   Regional Printing & Procurement Office, Atlanta, GA 30303
   (hereinafter "Respondent" and "RPPO"), denying Appellant's
   request of February 22, 1985, for payment of $6,900 in
   reprinting charges over and above the original contract price
   of $7,165, the said reprinting being necessitated by the
   rejection of a first printing because the color photographic
   image of a Navy enlisted man had been reversed by Appellant on
   the cover of the publication. The decision of the Contracting
   Officer is affirmed and the appeal is denied for the reasons
   set forth hereinbelow.


   By Atlanta RPPO Purchase Order F1152 dated October 24, 1984,
   Appellant was awarded a certain contract identified as Jacket
   No. 544-038 in the amount of $7,165 upon the requisition of
   the Department of the Navy. The contract was for the
   production of 75,000 copies, plus one set of films of a
   certain publication entitled "DANTES Mission and Activities."
   The Purchase Order stipulated that it was being made "[i]n
   strict accordance with your [Appellant's] Quotation No. 25761
   dated 10-18-84 and our [Atlanta RPPO] specifications."

   Among other things, the specifications required the Respondent
   to furnish F.O.B. contractor's plant, a 35mm slide (not sized)
   of a certain photographic image, from which a 4-color process
   separation was to be made for the cover of the self-cover
   product. The specifications further provided that the
   Respondent "reserves the right to verify product quality by
   using the applicable procedures contained in GPO Publication
   310.1 [entitled] 'Quality Assurance Through Attributes -
   Contract Terms No. 1' and MIL-STD-105 [entitled] 'Sampling
   Procedures and Tables for Inspection by Attributes' in effect
   on the date of issuance of the invitation-for-bid." (Appeal
   File, hereinafter "R4 File," Tab B.) No further instructions
   material to this dispute were set forth in the specifications.
   After receipt of the said Purchase Order, camera ready copy,
   and artwork, Appellant proceeded to produce the product so

Upon delivery of the completed product, the Detachment Office,
Navy Publications and Printing Service, Naval Air Station,
Pensacola, FL, by letter of December 5, 1984, notified Respondent
that the product was completely rejected because the "[c]olor
photo on cover was reversed during production; the person should
face to the right. (Rating badges for Navy Enlisted Personnel are
worn on the left sleeve). Further reversing of the photo tends to
give it an out-of-focus appearance." (R4 File, Tab F.)

   Respondent in turn notified Appellant of the Navy's rejection
   and demanded that the product be reprinted at Appellant's
   expense. In response Appellant advised Respondent by letter of
   December 18, 1984, that:

  You required that no proof be submitted for your approval
  before printing this booklet leaving the matter to our
  discretion. Being printers rather than specialists in Navy
  codes, we relied on material furnished the USGPO and checked
  our proofs and initial press sheets against it. There was no
  position stat or similar indicator on your mechanical, poor
  practice if the illustration is critical, especially if you do
  not inspect proofs.

  Under these circumstances, Geo Graphics [sic] cannot be
  responsible for reprinting the booklets, which are acceptable,
  per your specifications, as is.

R4 File, Tab I.

   This response was internally discussed by the Contracting
   Officer with Mr. Darwin Hughes, Chief, Quality Assurance
   Section, U.S. Government Printing Office, Washington, DC,
   (telephone conversation of December 27, 1984) (R4 File, Tab
   J), with Hughes advising that the "[o]rder can be rejected
   based on [the] fact that contractor separated slide with
   emulsion side up and printed pamphlets with illustrations
   flopped." There is no indication in the file as to whether or
   not this exact reasoning was communicated to Appellant.
   However, by letter dated January 9, 1985, the Contracting
   Officer advised Respondent that:

   This letter will confirm your telephone conversation with Mr.
   Ergle on January 9, 1985 concerning rejection of Purchase
   Order F1152, Jacket 544-038. The pamphlets are rejected
   because the process color illustration on front cover was

   You are requested to correct this order at no additional cost
   to the Government by January 31, 1985.

   Your written explanation of this defect and the quality
   control measures implemented to guard against future
   occurrences is requested by January 25, 1985. Send your reply
   to the Atlanta Office, address as above.

R4.File, Tab K.

   Thereafter, by letter dated January 24, 1985, Appellant
   responded stating essentially what it had previously stated in
   its letter of December 18, supra, but adding that:

To reprint these correct, the price Geo Graphics [sic] will
charge is $6,900.00 delivered. The scheduled delivery date is
February 14, 1985.

R4 File, Tab L.

   There followed the Contracting Officer's notice of final
   decision, supra, which in pertinent part stated:

The determination to reject the order is final. The 35mm slide
furnished by the Government was to have been printed in the
normal viewing position, i.e., as the subject appeared to the
photographer. The slide was furnished mounted in a holder, as
supplied by the developer, in the proper orientation, i.e. with
the subject facing to the right. The instructions written on the
face of the slide holder further obviate the expected viewing
direction and therefore there was no need for you to exercise any
discretion in the orientation of the image.

R4 File, Tab M.

   Subsequently, Appellant by notice of appeal dated March 29,
   1985, advised this office that:

   Geo Graphics [sic] does appeal this "final" decision for the
   following reasons.

   Once again we state that there was not a stat in position on
   the base mechanical nor even a pencil sketch to indicate the
   position of the subject. The transparency was not mounted in a
   holder but inserted into a plastic hinged container. It could
   have been easily removed for inspections, etc. by anyone and
   replaced in a "flopped" position. There were not any
   instructions on the sleeve except for crop marks which could
   be used in a "flopped" or "non-flopped" position and still
   maintain the desired size and portion of the subject to be

   It is common practice in the graphic arts that subjects do not
   face off of the page but face toward the gutter. Therefore,
   without instructions, stat or pencil sketch, Geo Graphics
   [sic] exercised the discretion of common practice and faced
   the subject toward the gutter.

   We maintain our contention that our not being specialist in
   Navy codes, uniforms, etc., and if the position is critical
   the government should have given explicit instructions as to
   position in writing, a position stat, a pencil sketch or
   require a proof for approval.

   Geo Graphics [sic] fulfilled this order in good faith to the
   best of our ability with the material and instructions
   furnished. Therefore, in view of these circumstances, we
   respectfully submit that this was an error on the part of the
   Government and that Geo Graphics [sic] should be paid for the
   second printing in the amount of $6,900.00.

Official File, Tab 1.

   Appellant did not file a formal complaint, however, its notice
   of appeal was deemed by this Board to meet the requirements of
   such pleading. Accordingly, Respondent was directed to supply
   its Answer to the allegations contained therein.

   The salient feature of Respondent's Answer is its claim that:

   It is undisputed that a photograph, even in slide format, has
   only one correct orientation. In the case of a slide, the
   correct viewing orientation is with the emulsion (dull) side
   down. An inspection by the GPO's Quality Control Section
   revealed that appellant had performed the color separation
   process on the slide with the emulsion side up, thereby
   "flopping" the image. Exhibit J. A contractor has no
   discretion to reverse illustrations and must print a
   photograph in its normal viewing orientation, unless directed
   to do otherwise by the contract specifications. It is clear
   that the appellant's claim of "discretion" is a post hoc
   rationalization to explain its gross misfeasance.

Official File, Tab 5.

   The appeal is before this Board for decision in this format.


   The single question presented by this appeal is whether or not
   the Appellant should be held responsible for the reverse
   positioning of the photographic image. The Appellant argues
   that it should not because:

(1) "The transparency . . . could have been easily removed for
inspection, etc. by anyone and replaced in a 'flopped' position",
i.e., that the so-called flopping was inadvertent and possibly
caused by Respondent or its agent; (2) that the Appellant used
its own discretion and deliberately flopped the picture as a
matter of trade practice; and (3) that ". . . if the position is
critical the government should have given explicit instructions
as to position in writing, a position stat, a pencil sketch or
require a proof for approval." Respondent, on the other hand,
argues that Appellant should be held responsible (1) because
there is only one correct orientation for a slide, i.e., emulsion
side down, and (2) Appellant's argument is a mere "post-hoc
rationalization to explain its gross misfeasance." (Official
File, Tab 5, p. 3) On these points the Board finds itself in
agreement with the Respondent. Appellant's arguments are facially
contradictory to each other since the "flopping" cannot be both
inadvertent and deliberate. Moreover, there is general agreement
in contract law that when an agreement is silent respecting
technical details such as the orientation of a photographic image
as here, there is an implied agreement that the usual and
customary trade practices shall be applied. Gholson Byars &
Holmes Construction Co. v. United States, 173 Ct.Cl. 374, 351
F.2d 987 (1965). See also W. G. Cornell Co. v. United States, 179
Ct.Cl. 651, 376 F.2d 299 (1967). This is especially true when the
agreement, as here, is between two parties in the same trade or
business. Accordingly, it is the holding of the Board that
Appellant did not have the discretion to deliberately orient the
image in a manner other than that which is usual and customary in
the printing trade. This having been said, the question remains
as to what usual and customary trade practice controls the
correct orientation of a slide? To determine this the Board
consulted the text Mastering Graphics by Jan V. White, R.R.
Bowker Company, New York and London 1983. There under the caption
"How can you tell that the picture is the right way 'round?" on
p. 122 it states:

   Transparencies can easily be printed flopped left to right by
   mistake. Furthermore, when you have the transparency itself,
   it is often hard to tell which is front and which is back.
   Here are a few pointers --which are not 100% infallible!

By common sense
   Does lettering on street signs or book spines read backward in
   the picture? If so, flop left to right --unless the signs
   happen to be in Arabic.

   Is the man's jacket breast pocket on his right? Then it's
   wrong if he's only wearing a T-shirt, then you are in trouble.
   Check the part in his hair. Most men part their hair on the
   left. Buttons help: men button clothes left over right; women
   do it right over left, for some peculiar reason. You have to
   put yourself in the subject's place to figure that one out.

   Steering wheels on cars are on the left (except in Great
   Britain), and they are mostly driven on the right-hand side of
   the road (except in scenes of accidents).

   There must be other obvious signs, but let's get technical.

By emulsion
   The negative gives you two clues. First, the shiny side should
   be toward you, the dull, emulsion side should be toward the
   paper, away from you. Second, if you are seeing the film the
   right way, you'll be able to read the trademark and the
   numbers in the margins of the film material itself. Your
   contact sheet will also show these markings legibly, assuming
   you have a contact sheet available to check your prints
   against. The same principle applies for color prints as for
   black and white.

   If you're working with color slides, the shiny side of the
   slide should be toward you, the dull side with the emulsion on
   it away from you. Dullness is often hard to identify, but if
   you turn the transparency at a slight angle to the light, you
   can clearly see contour like ridges on the edges of the color
   areas. They are caused by the different combinations of layers
   of emulsion. The side with the contours should face away from

By notches in sheet film
   The first thing to check for is whether there is any kind of
   wording on the edge. If you can read it, then you are looking
   at it the right way around. The second thing to check for are
   the notches. Sheet film (anything 4" x 5" and up) has actual
   notches cut from the top left-hand corner. They are there for
   practical reasons: to help the photographer insert the film
   into the camera correctly, to help the lab technician print it
   correctly in the dark, and to distinguish one type of film
   from another by the patterning of the notches themselves. It
   doesn't matter whether the piece of film has been used as a
   vertical or a horizontal. You must turn it around until the
   notches appear at the top on the left-hand side. If you cannot
   achieve that goal, flop the picture, and it will work. Alas,
   you cannot depend on this 100%, because duplicate
   transparencies are often made emulsion side to emulsion side
   to achieve optimal quality -- and so the notches end up on the
   wrong side of the dupe. How can you tell? You can only guess
   and hope. You have.a 50/50 chance of being right, which is
   pretty good odds, especially if you say the magic words ("To
   hell with it").

   A vital point to remember about flopped pictures comes at the
   stage of production when the printer submits proofs of the
   pages prior to printing. These are called blues when they are
   printed in blue or vandykes when they are printed in brown
   (there is a color called vandyke brown after the Dutch painter
   Van Dyck) or brownlines, or by various other locally used
   names. It is very easy for the page assembler (the stripper or
   compositor) to flop the negative by accident and strip it in
   flopped left to right. Then, if a man's pocket turns out to be
   on the right side, which is wrong, mark the cut (old-fashioned
   term for "picture") with this sign [illustr.], which means
   flop left to right. (It also means turn upside down, but never
   mind, you will also write "Flop left to right" in words
   alongside, and it will be understood.)

   The clear sense of White's statement is that there is no
   discretion as to which is the proper side but rather that it
   is sometimes difficult to discern the proper side, and extreme
   caution must be exercised since results are not always
   certain. Respondent's failure to give explicit instructions,
   indicate position stats, or provide a pencil sketch does not
   negate the fact that Appellant did not have the discretion to
   reverse the slide.

   On the other hand, White on p. 87 speaks to the practice of
   facing a photographic image toward the gutter with
   substantially less certitude respecting its general
   application than is necessary to give rise to the conclusion
   that it is a "customary and usual" practice of the trade of
   such a kind as to be implied in contract. This is clearly
   shown by the fact that immediately after stating and
   illustrating that "people ought to face inward into the
   spread" he shows a contradictory example, i.e., a person
   facing outwardly, off the page and onto the next page, which
   he coupled with the statement that "[t]he direction of
   people's gazes ought to be exploited."

   Respecting Appellant's final claim that at a minimum there was
   duplicity in Respondent for the error inasmuch as it did not
   avail itself of the right of inspection contemplated by the
   contract, suffice it to say that the courts have clearly
   established that such provisions are for the protection of the
   Government and not for the contractor. Kaminer Construction
   Co. v. United States, 203 Ct.Cl. 182, 488 F.2d 980 (1973), and
   that the waiver of such right cannot shift the burden of the
   error to the Government as Appellant would have this Board do.
   United States v. Franklin Steel Products, Inc., 482 F.2d 400
   (9th Cir. 1973).

   Accordingly, this Board affirms the decision of the
   Contracting Officer and denies the appeal.