U.S. GOVERNMENT PRINTING OFFICE
BOARD OF CONTRACT APPEALS
The Appeal of JOMAR ENTERPRISES, INC.
Docket No. GPO BCA 13-86
May 25, 1989
MICHAEL F. DiMARIO
Administrative Law Judge
SUMMARY OPINION AND ORDER
DISMISSING APPEAL FOR FAILURE TO STATE A CLAIM
UPON WHICH RELIEF MAY BE GRANTED
BACKGROUND
On April 10, 1986, Jomar Enterprises, Inc., 4015 Forrest
Road, Columbus, GA 31908-7008 (Appellant), was awarded a
$2,300 contract by the Denver Regional Printing
Procurement Office (DRPPO/Respondent), Purchase Order
M-7452, Jacket No. 671-184, to produce a total of 18,050
copies in 5 sizes of a certain die cut, pressure
sensitive label requisitioned by the Department of the
Air Force, to be shipped complete FOB destination to
Colorado Springs, CO, by June 10, 1986. (Rule 4 File,
hereinafter "R4 File," Tab 1.)
On June 17, 1986, Appellant was issued a notice advising
that the Government was considering terminating the
contract for default and requesting that the contractor
show cause in writing respecting why it had failed to
ship the product in accordance with the schedule. (R4
File, Tab 2.) Appellant's President, Mary J. Cavallaro,
responded by letter dated June 23, 1986, alleging that
several weeks previously she had talked to an
unidentified man in the DRPPO about difficulties which
Appellant was encountering in obtaining the necessary
materials to produce the job on time. She was allegedly
told she would have to complete the job although the only
work which had then been completed was the artwork. She
also alleged that since that time, Appellant had also
encountered equipment problems. She requested a 2-week
extension in shipment date. (R4 File, Tab 3.) As a
result, the ship date was adjusted by letter dated July
1, 1986, to July 14, 1986. The letter advised that the
default proceedings would be withheld provided the new
delivery date was met; but that such withholding of
action should not be construed as an extension of the
original ship date; and that for compliance record
purposes, Appellant would still be considered late in its
performance. Moreover, the letter expressly stated that
the delay in default proceedings was not a waiver of the
Government's rights and remedies under the terms of the
contract. (R4 File, Tab 4.)
In late July, the Air Force received the order from the
Appellant and upon inspection found it to be of poor
printing quality and that the Appellant had failed to die
cut the product as specified in the purchase order.
Accordingly, the Air Force recommended rejection. The
DRPPO inspected the samples and agreed but was unable to
contact the contractor by telephone. They did, however,
send a second "show cause" notice to Appellant dated July
31, 1986, advising Appellant of the specific defects and
the rejection. The notice also advised Appellant that on
July 29 and 30, 1986, telephone messages had been left
which were not returned regarding the order; the order
was over l-month late when delivered; the Appellant
failed to return the Government furnished materials or
dies ordered; and as a result, the Government was
considering terminating the contract for default without
offering Appellant an opportunity to reprint, but would
hold such action in abeyance for 7 days from Appellant's
receipt of the notice in order to afford Appellant the
opportunity to present in writing any extenuating facts.
Appellant was cautioned that a failure to respond to the
letter might be considered an admission of fault or
negligence. (R4 File, Tab 5.)
Cavallaro, by letter dated August 18, 1986, stated that
the failure to perform in a timely manner was due to
circumstances purportedly beyond Appellant's control,
i.e., machine failure and merchandise not being delivered
on time, and that it was not until after the award of the
contract that her firm realized the great difficulty
which would be encountered with machines and materials.
As a result, the pressure sensitive labels were cut using
materials which the firm had available and were being
hand printed one by one because of difficulties
concerning register and ink densities. Thus, the labels
would not be uniform. However, extra labels were being
printed in order to make up for any that did not meet
specifications. Appellant also realized that the only
Government materials which it received, one label, had
been returned to the Department of the Air Force on
August 7, 1986. (R4 File, Tab 6.)
That same day, the CO sent Appellant a "termination
complete" letter for "failure to produce the labels to
specifications regarding register and die cutting.", and
failure "to respond to our 'Show Cause' Notice of July 31
regarding a proposal for your correcting the rejected
order." (R4 File, Tab 8.)
By letter dated August 26, 1986, Appellant noted its
appeal referencing both the decision to terminate and the
July 18, 1986, "show cause" letter. The notice of appeal
reiterates the same points previously made by Appellant,
adding no new information. (Official File, Tab A.) By
letter dated December 18, 1986, Appellant advised that it
wished to submit its case for decision upon the written
record. Again, the very same information was reiterated
by the Appellant without significant expansion.
(Official File, Tab G.)
By letter dated August 27, 1986, the Contracting Officer
(CO) responded to Cavallaro's August 18th letter in
pertinent part as follows:
Your letter makes the point that you had not started
performance when you contacted our office regarding
difficulties in producing the product. However, your letter
of June 23 states that, at the time of your inquiry, ". . .
I had completed . . . the artwork for the proof." We
relied, and continue to rely, upon that statement. Further
we note that you had provided this office with proofs in
early May; an act which clearly demonstrates activity on
your part.
and for those reasons, did not reconsider its decision to
terminate the contract for default. (R4 File, Tab 7.)
On December 30, 1986, a "general denial" on behalf of the
Government was entered as an answer to Appellant's
complaint in accordance with GPO Instruction 110.12
entitled "Board of Contract Appeals Rules of Practice and
Procedure" dated September 17, 1984; Appellant being
advised of the same by letter of that same date.
DECISION
Assuming for the sake of argument that all of Appellant's
assertions are true, it is the opinion of this Board that
they are irrelevant since they fail to state a claim
against the Government upon which relief may be granted.
Accordingly, the appeal is dismissed and the decision of
the CO is affirmed.
IT IS SO ORDERED.