UNITED  STATES  GOVERNMENT  PRINTING  OFFICE
CONTRACT  APPEALS  BOARD

Appeal of Business Forms Service, Inc.
Appeal dated June 2, 1981
Decision dated October 20, 1981

Panel 9-81
THOMAS O. MAGNETTI, Chairman
JOHN W. SAPP, Member
CHARLES L. RITCHEY, JR., Member

PRELIMINARY STATEMENT

This is a decision on a timely appeal filed by Business Forms
Service, Inc. (hereafter referred to as the contractor).  The
contractor in its appeal disputes the final decision of the
Contracting Officer to terminate the contractor for default and
to hold it responsible for the excess costs of reprocurement.
The appeal is taken in accordance with Article 2-3 (the
"Disputes" clause) of the Government Printing Office (GPO)
Contract Terms No. 1, GPO Publication 310.2, revised October 1,
1980.  Exhibit 12 of the Appeal File (hereafter the A.F.).  GPO
Contract Terms No. 1 was incorporated by reference into the
specifications of the contract.  Exhibits 1 and 2, A.F.  The
specifications were incorporated by reference into the Purchase
Order.  Exhibit 5, A.F.  The contract required the contractor to
produce a 28 page, self-covered, saddle-wired publication in two
colors.  The final decision of the Contracting Officer held that
the contractor failed to produce the publication as specified in
the contract.

The jurisdiction of the GPO Board of Contract Appeals over this
appeal was established pursuant to GPO Instruction 110.10A,
titled "Board of Contract Appeals Rules of Practice and
Procedure", and GPO Contract.Terms No. 1, Article 2-3, supra.  In
accordance with appropriate contract appeal procedures, its
decision is based upon the written record which consists of the
documents and exhibits that constitute the Appeal File.

STATEMENT OF FACTS

On April 7, 1981, in accordance with the standard GPO contract
award procedures, Purchase Order 18142 for the procurement of the
publication  entitled "Camping in the National Park System (1981
Edition)" was awarded to the contractor.  Exhibit 5, A.F.  This
award was based upon a competitive telephonic bid placed by the
contractor on that same day.  Exhibit 4, A.F.  According to the
contract specifications, the contractor was required to print
55,941 copies of the publication:. Exhibits 1 and 2, A.F.  Each
pamphlet had to be 28 pages, self-covered, saddle-wired in two
colors.  The size of this document was to be 8" x 9-1/4", soft
folded to 4" x 9-1/4".  The GPO was to furnish one set of offset
negatives in 2-up companion page style.  The contractor was to
furnish all other materials and services.  The contractor was to
receive negatives by April 9, 1981, and submit advance samples on
or before April 30, 1981.  The GPO then had 8 days to notify the
contractor of its approval of the advance samples.  Once approval
was received from the GPO, the contractor would have 3 work days
to print and ship the documents.

After receipt of the negatives, the contractor telephonically
contacted the GPO on April 9, 1981, complaining that the
negatives were inconsistent  with the specifications.  Exhibit 7,
A.F.  During this conversation the contractor admitted that its
bid was in error because it had been based on a trim size of 4" x
9-1/2".  Exhibits 7, 9, and 16, A.F.  This call was followed by
letter from the contractor dated April 14, 1981.  Exhibit 8, A.F.

In this letter the contractor claimed that it was unable to
fulfill the order because the copy 1/ and the sample did not
match the specifications.  Specifically the contractor stated
that:

"[the] specifications call for a 28 page, self-cover, 8" x 9-1/4"
soft folded to 4" x 9-1/4" stitched two times on the 9-1/4" side.
The copy and sample show a 28 page, self-cover, 16" x 9-1/4"
soft-folded to 8" x 9-1/4, stitched 2 times on the 9-1/4" side
with an additional fold to 4" x 9-1/4 after trimming three
sides."

In addition, the contractor asserted that it did not have the
capability of providing the additional soft fold required after
the pamphlet was collated and stitched.  The contractor returned
all the material previously furnished by the Government with this
letter.

In response to the contractor's repudiation of the contract, the
GPO notified the contractor by letter dated April 23, 1981, that
it was terminating the contract for default.  Exhibit 10, A.F.
The stated reason for this action was the contractor's "failure
to produce the requirement as specified." The contractor was
further warned that it would be responsible for any excess costs
of reprocurement that may arise.  The right to default
contractors in cases such as this is derived from Article 2-18,
titled "Default." See, GPO Contract Terms No. 1, supra.

1/ According to the records of the Contracting Officer, the
contractor received both the negatives and the camera copy.
Exhibit 6, A.F.

It should be noted that the contractor was advised by letter
dated April 24, 1981, that it would be responsible for the excess
cost involved in the reprocurement of the contract.  Those costs
amounted to $452 and were incurred when the GPO reprocured the
contract from the second lowest bidder on the original
solicitation.

The contractor appealed the Contracting Officer's final decision
by letter to the Public Printer dated June 2, 1981.  Exhibit 13,
A.F.  The contractor challenged this decision to default and
consequent assessment of reprocurement costs because the sample
it received differed from the specifications on which it based
its bid.  The contractor also contended that it did not
understand the GPO's use of the term of art "soft fold" and that
it should not be penalized for any difference in meaning of this
term that might exist between the GPO and the contractor.

In accordance with GPO Instruction 110.10A, this appeal is being
decided on material contained in the Appeal File.  Included in
this file is a memorandum from the Contracting Officer relating
to availability of the camera copy and samples and the method
used in obtaining the reprocurement contract.  Panel's Exhibit A,
A.F.  Accompanying this memorandum was an informal estimate
relating to.the cost of reprocuring the contract.  Although the
Board examined the camera copy in its determination of the
validity of the contractor's claim, it could not be included
within the Appeal File as a separate exhibit as it was necessary
to return it to the Contracting Officer for proper disposition.
It should also be noted that it was the negatives of this camera
copy that were furnished to the contractor.  See footnote 1.
Because the camera copy accurately reflected these negatives and
was readily available, there was no need for the Contracting
Officer to obtain the negatives from the National Park Service
headquarters in Harper's Ferry, West Virginia. . Exhibit A,
supra.

DISCUSSION

The evidence is undisputed that the contractor abandoned its
performance upon receipt of the copy and sample.  Exhibits 8, 9,
and 16, A.F.  It did so expressly, by refusing to perform the
contract requirements and by returning the sample and copy to the
Government.  Exhibit 8, A.F.  This express refusal and
abandonment constitutes anticipatory repudiation of the contract.
Interstate Industries, Inc., GSBCA 5252, 79-2 BCA  13,954
(1979); North American, Ltd. , ASBCA 22718, 79-2 BCA  13,894
(1979).  Regardless of the stage of contract performance default
termination is available as a remedy for the Government when
confronted with a contractor's anticipatory repudiation.
Therefore, the Government had the authority to terminate this
contract for default before any performance had begun and before
the due date had passed.  Central Fire Truck Corp., ASBCA 12715,
71-1 BCA  8904 (1971).

The contractor justified this refusal to perform by claiming that
the copy and samples as submitted by the Government differed from
the specification.  The contractor alleged that the dimensions of
the material furnished by the Government were 16" x 9-1/4",
double the size of the page set out in the contract
specifications (8" x 9-1/4").  Exhibits 8 and 13, A.F.  In
addition,  the contractor claimed that it did not have the
capability of producing the soft fold in the document.  Ibid.

Upon examination of the camera copy as submitted to the Panel by
the Contracting Officer, it is clear that the individual pages
were 8" x 9-1/4" as set out in the contract specifications and
not the "16 x 9-1/4 size as claimed by the contractor.  The
negatives were furnished to the contractor in a 2-up companion
page style in accordance with the contract specifications.  In
trade practice, this style means that two separate pages are
joined together for the convenience of the contractor.  Depending
on the contractor's equipment, this would allow the contractor to
strip the negatives of two pages at once for proper assembly and
positioning instead of doing each page individually.  The
contractor then makes a printing plate from the negatives and
proceeds to print.  Therefore, although the negatives of the
pages were supplied in twos, the size of each page remained only
8" x 9-1/4".  The negatives for each page could have been
separate when provided by the GPO, but this was would not have
been in accordance with the contract.

The contract required a soft fold in the middle of the pamphlet.
Exhibits 1 and 2, A.F.  The contractor has alleged that this
directive was ambiguous in that the specifications did not set
out clearly when the soft fold was to be put in the document
i.e., whether it was to be done before or after stitching and
trimming.  It is the holding of this Board that although the
contract did not specifically indicate when the contractor was to
put the soft fold into the pamphlet, the provision relating to
the soft fold was not ambiguous.  The size of the document was to
be.8" x 9-1/4", soft folded to 4" x 9-1/4"; the stitching was to
be in two places along the 9-1/4"  dimension.  It is reasonable
to assume that the stitching would occur before the soft fold
since a soft fold is one that is not scored or perforated.  It
would be impossible to saddle stitch along the 9-1/4" side after
the pamphlet was "soft" folded.  This contract is not defective
merely because it did not indicate specifically when the soft
fold process was to take place.

If the contractor were confused as to when the soft fold was to
be made, it should have discussed this with the Contracting
Officer before submitting its bid.  Furthermore, although the
contractor stated that it did not have the capability of making
the additional fold after the book had been collated and
stitched, the contractor has made no assertion that it had any
folding capability before stitching.  Exhibit 8, A.F.  This
evidence would have been necessary to support a contention that
it understood the original contract specifications to require
folding before trimming or stitching and was able to comply with
this procedure.

Any disagreement between the contractor and the GPO over the
meaning of the specifications should have been resolved either
before it bid on the contract or through the "Disputes" or
"Changes" clause procedures as provided for in the contract.  The
rationale provided by the contractor for its abandonment of the
contract does not justify or excuse its unwarranted action.
Abandonment of work without justification or excuse is an
appropriate grounds for termination for default.  H & H
Manufacturing Company, Inc., 168 Ct. Cl.  873, 879 (1964); Yukon
Service, Inc. v. United States, 215 Ct. Cl. 942 (1977); --opinion
of trial judge can be found in 24 C.C.H. 81822.

Following a valid default termination, one of the most important
of the Government's remedies is the right to assess the defaulted
contractor the excess costs of reprocuring the unperformed part
of, or if necessary, the entire contract from another contractor.
Environmental Tectronics Corp., ASBCA 21204, 79-1 BCA  112,986
(1978); see also, Article 2-18(b), supra.

In the instant case, excess costs of reprocurement were assessed
against the contractor.  These costs amounted to $452.  It is the
judgment of this Board that the Government mitigated the excess
costs of the reprocurement by negotiating for the contract with
the second lowest bidder on the original solicitation, Phillips
Brothers, Inc. and obtaining from Phillips its original bid
price.  It negotiated with Phillips only after it had obtained an
estimate from another vendor that was substantially above the
defaulted contractor's price.  Exhibit A, A.F.  We hold that,
given the nature of this contract, further solicitation was
unnecessary.  Therefore, this reprocurement procedure was logical
and justifiable.

Based upon the above reasoning, the decision of the Contracting
Officer to terminate the contractor for default and to assess the
excess costs of reprocurement against the contractor is upheld.
Accordingly, the contractor's appeal is denied in its entirety.