BOARD OF CONTRACT APPEALS
U.S. GOVERNMENT PRINTING OFFICE


In the matter of               )
                               )
the Appeal of                  )
                               )
BADGER SCREEN PRINT            )         Docket No. GPOBCA 13-98
Jacket No. 559-973             )
Purchase Order K-1205          )

For the Appellant:  John D. Dunn, Esq., P. Bruce Badger, Esq.,
Fabian & Clendenin, Salt Lake City, Utah.

For the Respondent:  Roy E. Potter, Esq., Associate General
Counsel, U.S. Government Printing Office.

Before MILLER, Administrative Judge.

DECISION

This appeal arises out of a contract between the U.S. Government
Printing Office (GPO) and Appellant, Badger Screen Print
(Badger), for the acquisition of silk-screened T-shirts.
Appellant seeks to recover $40,557 for additional costs it
incurred in meeting the Government's allegedly ambiguous color
specification.  For the reasons which follow, the Contracting
Officer's final decision is AFFIRMED and the appeal is DENIED.

   FINDINGS OF FACT

1.   On May 5, 1997, the GPO's Dallas Regional Printing
Procurement Office (RPPO) issued an Invitation for Bids (IFB) for
Jacket 559-973, a contract for 103,992 promotional T-shirts for
the U.S. Air Force.  Rule 4 File, Tab A at 1.

2.   The IFB contained a detailed description of the composition
and appearance of the basic T-shirt that was to be furnished. In
addition, the successful contractor was required to screen print
artwork on both the front and back of the shirt.  Rule 4 File,
Tab A at 1, 2, 7-9.
3.   The IFB advised potential bidders that they would be
required to furnish T-shirts described as: "YELLOW TO MATCH
PANTONE 136C YELLOW."  (Emphasis in original). Rule 4 File, Tab A
at 1.
4.   Appellant submitted a bid of $311,976 in response to the
IFB, which was the lowest of the four bids received.  Rule 4
File, Tabs B, C.  After receiving Badger's written confirmation
of its bid, the Contracting Officer awarded the contract to
Appellant.  Rule 4 File, Tabs D, E.
5.   The contract required Appellant to submit prior-to-
production samples to the Government that were to be "printed on
the T-shirts and in the inks that will be used for the complete
production and the samples must be in exact accordance with these
specifications."  Rule 4 File, Tab A at 2.  Appellant submitted
sample T-shirts of a significantly lighter shade of yellow than
that called for in the specifications.  See, Notice of Appeal,
Exhibit E.  The color of the samples matched Pantone 113C.
Compare Notice of Appeal, Exhibit E with PANTONE INC., COLOR
FORMULA GUIDE 1997-1998 (11th prtg. 1995).
6.   By letter dated June 5, 1997, the Contracting Officer
rejected Appellant's prior-to-production samples because of
certain printing defects and because the "shirt color does not
match PMS 136."  Rule 4 File, Tab F.  Appellant was ordered to
submit an additional set of samples by June 20, 1997.  In
addition, the Contracting Officer issued a Cure Notice to
Appellant advising that the company's failure to submit
acceptable prior-to-production samples was a condition that was
endangering performance of the contract.  Rule 4 File, Tab G.

7.   Appellant thereafter submitted a second set of prior-to-
production samples to the Government.  In an undated letter
accompanying the samples, Appellant's Vice President, John T.
Badger wrote:
We feel that the yellow Fruit Of The Loom shirt previously
sampled fit with the description listed in the contract.  This
set of proofs are done with the Hanes gold color shirt.
We do not know which shirt will be acceptable.  The Hanes gold
costs significantly more than the Fruit Of The Loom.  Should the
Air Force decide on the Hanes shirt, the additional cost is
$40,557.00, and a modification to this effect should be issued
covering the additional cost.

Rule 4 File, Tab H.
8.   After reviewing the second set of samples, the Contracting
Officer informed Appellant that the samples would be acceptable,
provided Badger corrected some minor printing deficiencies.
Appellant was directed to:
[e]nsure the deficiencies listed above are corrected and the
facric [sic] color of the second set of prior of [sic] production
samples is matched, then proceed with production.

With reference to your undated letter concerning the fabric
color; the fabric color on the first set of prior to production
samples did not match the color required by our specifications
but the color of the fabric on the second set did.  Our original
invitation for bids required a fabric color to match Pantone 136C
Yellow.  You did not indicate any problem matching the specified
color in your bid.

Rule 4 File, Tab I.

9.   On October 2, 1997, Appellant requested a contract
modification and additional compensation of $22,566.68 due to
what it described as "an error in the contract specifications."
Appellant explained:

As specified in the contract, we bid on a "YELLOW" shirt that was
closest to PMS 136.  After submitting our prior to production
samples, we were informed that your customer wanted a "GOLD"
shirt.  The "GOLD" shirt represents a higher cost than that of
the "YELLOW" shirt.  We supplied and completed the contract with
the "GOLD" shirt as per your customer's request.

Rule 4 File, Tab L.

10.   The Contracting Officer rejected this request in a letter
dated October 6, 1997.  Rule 4 File, Tab M.
11.   Thereafter, Appellant's attorney wrote the Contracting
Officer regarding Appellant's request for additional compensation
for what he described as "a modification of [Charger's] bid
because the specifications referred to yellow, rather than the
more expensive gold T-shirts that were delivered."  Appellant's
representative further explained:
On May 5, 1997, Badger was furnished with a specification sheet
that it relied on in formulating and presenting its bid.  That
specification sheet called for approximately 100,000 T-shirts in
a "yellow to match pantone 136C yellow."  Badger based its
successful bid on the costs of yellow T-shirts that were closest
in color to the "pantone 136C yellow."  When Badger submitted
sample T-shirts, your office informed Badger that the
specification was intended to refer to gold rather than yellow,
but that the yellow T-shirts actually looked better, and they
would send them for final approval.  Subsequently, however,
Badger was informed that the required color was to be "gold."
Badger immediately requested a modification to the contract for
an additional $40,557.00 because its raw costs for the T-shirts
as well as its production costs were greater for gold shirts.
The request was ignored and a demand was made to Badger to either
deliver the gold shirts or be found in default.  Your office has
not formally addressed this request.

(Emphasis in original.) Rule 4 File, Tab N.

12.   In a final decision dated January 22, 1998, the Contracting
Officer again rejected Appellant's claim for additional
compensation.  Rule 4 File, Tab O.

13.   Thereafter, Appellant filed a timely notice of appeal with
the GPO Board of Contract Appeals.  Rule 4 File, Tab Q.

   DISCUSSION

In support of the Contracting Officer's decision to reject the
first prior-to-production T-shirt samples supplied by Appellant,
Respondent submits a declaration from a Printing Specialist in
the GPO's Quality Assurance Section.  The Printing Specialist
concluded, after examining the original sample T-shirt and
comparing it to the Pantone 136C standard, that the T-shirt did
not match the contract's color specification. Declaration of John
D. Kennedy.  Appellant does not challenge this conclusion.  Nor
should it, as a visual comparison of the sample T-shirt with the
Pantone 136C standard leads to the conclusion that the color of
the sample T-shirt provided by Badger bears little resemblance to
the color specified in the contract.
While the sample provided by Appellant clearly did not match
Pantone 136C, Appellant asserts that this failure was excusable
based on two interrelated theories.  First, Appellant argues that
there is an ambiguity in the contract's color specification such
that requiring it to furnish the "gold" shirt instead of a
"yellow" shirt resulted in a compensable constructive change.
Next, it argues that it was impossible to provide a "yellow" T-
shirt matching Pantone 136C because no domestic source
manufactures a "yellow" shirt that matches Pantone 136C.  While
the "gold" shirt Badger ultimately provided matched Pantone 136C,
it cost more than the "yellow" shirt Appellant intended to
provide when it formulated its bid.
The Board concludes that nether theory is persuasive.

   Contract Ambiguity
Appellant claims the contract's color specification was ambiguous
because the word "yellow" preceded the term "Pantone 136C"
thereby modifying "Pantone 136C".  Under Appellant's theory, the
practical effect of the disputed specification is to call for the
color "yellow closest to Pantone 136C."  Appellant argues, but
submits no proof in support of the contention, that "yellow" is a
fabric color reference with a commonly understood meaning within
the T-shirt industry.  However, Appellant does not further
describe what the industry meaning of "yellow" is.

Resolution of a claim of ambiguity is controlled by established
principles of contract interpretation which this Board previously
has discussed at some length.  See, e.g., Custom Printing Co.,
GPOBCA No. 28-94 (March 12, 1997), slip op. at 30-35, 1997 GPOBCA
LEXIS 2, 1997 WL 128720; MPE Business Forms, Inc., GPOBCA No.
10-95 (August 16, 1996), slip op. at 42-48, 1996 GPOBCA LEXIS 31,
1996 WL 812877; The George Marr Co., GPOBCA No. 31-94 (April 23,
1996), slip op. at 41-44, 1996 GPOBCA LEXIS 43, 1996 WL 273662.
In brief, when two contracting parties have different
interpretations of the same contract language, that disagreement,
while not automatically signaling the existence of an ambiguity,
International Business Investments, Inc. v. United States, 17 Cl.
Ct. 122 (1989), aff'd without op., 895 F.2d 1421 (Fed. Cir.
1990); Qualitype, Inc., GPOBCA No. 21-95 (April 21, 1998), slip
op. at 4, 1998 GPOBCA LEXIS 4, 1998 WL 350484, recon. denied,
GPOBCA No. 21-95 (June 24, 1998), slip op., 1998 GPOBCA LEXIS 19,
1998 WL 350480; United Computer Supplies, Joint Venture, GPOBCA
No. 26-94 (January 23, 1998), slip op. at 14, 1998 GPOBCA LEXIS
6, 1998 WL 148845, aff'd., United Computer Supplies, Inc./Cole
Computer Forms/McCall's Printing Express, Joint Venture v. United
States, No. 98-142C (April 2, 1999), 1999 WL 216833 (Fed. Cl.),
does raise the possibility that the language is ambiguous.  RD
Printing Assocs., Inc., GPOBCA No. 23-94 (February 24, 1998),
slip op. at 6, 1998 GPOBCA LEXIS 5, 1998 WL 148997; B & B
Reproductions, GPOBCA No. 09-89 (June 30, 1995), slip op. at 22,
1995 GPOBCA LEXIS 16, 1995 WL 488477.
To be ambiguous the disputed language must be susceptible to more
than one reasonable interpretation.  The George Marr Co., supra,
at 41.  Determining whether contract language is susceptible to
two or more reasonable interpretations and thus latently
ambiguous requires a careful reading not only of the disputed
language but of the contract as a whole so that all of its
provisions are given effect.  Qualitype, Inc., supra, at 5;  MPE
Business Forms, Inc., supra at 45-46.  If the contract is
ambiguous, that is, if a reasonably prudent contractor could
interpret the contract in a manner different from the drafter's
reasonable interpretation, the language will be construed against
the drafter if the contractor can show that it relied on its
interpretation in formulating its offer.  Randolph Eng'g Co. v.
United States, 367 F.2d 425 (Ct. Cl. 1966);  Midwest Bank Note
Co., GPOBCA No. 13-95 (June 22, 1998), slip op. at 10, 1998
GPOBCA LEXIS 15, 1998 WL 350489;  Custom Printing Co., supra, at
31, quoting MPE Business Forms, Inc., supra, at 43-44.
Appellant claims the contract's color specification ambiguity
arose because the contract's use of the word "yellow" in
conjunction with the term "Pantone 136C" modified the color
specification in a way which resulted in a requirement to provide
T-shirts in the color "yellow closest to Pantone 136C."  The
contract's use of the designation "Pantone 136C" to describe the
desired color of the T-shirt bears some analysis as it is
important to an understanding of this matter.

Color is a sensation involving complex processes in the human eye
and brain.  Visual identification depends on many factors,
including the light source used, the illuminated object itself,
and variations in the spectral response of the observer.  FRED W.
BILLMEYER, JR. AND MAX SALTZMAN, PRINCIPLES OF COLOR TECHNOLOGY,
23 (1966). The visualization of any color is relative, as there
is no certainty that two people will imagine color exactly the
same way based on its name.  LEATICE EISEMAN & LAWRENCE HERBERT,
THE PANTONE BOOK OF COLOR 11 (1990).
That different persons perceive and describe colors in different
manners is amply demonstrated in this appeal.  Appellant
describes Pantone 136C as "gold".  Rule 4 File, Tab H.
Respondent describes the same color as "dark yellow" or "orange
yellow."  Other users of Pantone 136C have described it as "gold"
(see, University of Minnesota Duluth, UMD Publications - UMD
Visual Identity Guide (last modified Dec. 8, 1997)
http://www.d.umn.edu/currents/logo/vis-id.html) or "Sunflower"
(see, New Zealand Ministry of Commerce, New Zealand Electrical
Code of Practice  3, Table 1: Sign Colours (last modified July
7, 1998) http://www.moc.govt.nz/ocee/codes/ecp53/ecp53-04.html.
Appellant describes the color of the shirt it initially supplied
as "yellow."  Rule 4 File, Tab H.  Respondent describes it as
"light or lemon yellow" and "bright yellow."  Respondent's Brief
at 1, 3.

The problem of differing perceptions of color was the impetuous
behind the development of the color communication, specification
and reproduction system known as the Pantone Matching System
(PMS).  That system was developed to solve problems associated
with producing accurate color matches in the graphic arts
community.  The PMS was developed based on the premise that the
spectrum of color is seen differently by each individual.
Pantone, Inc., All About Color - Corporate History (visited Apr.
14, 1999) http://www.pantone.com/aboutpantone/corphist1.htm.
The PMS, and similar competing systems, provide graphic artists a
way of accurately describing colors without resorting to
subjective color naming systems.  The system's key component is a
copyrighted publication that matches particular colors with
individual identification numbers.  The company also produces
number-coded, tear-out color chips that can be given to printers
or other manufacturers to allow them to match a specified color
sample.  See, Pantone, Inc. v. Esselte Letraset, Ltd., 878 F.2d
601, 602-3 (2d Cir. 1989); Datafold Forms, Inc., ASBCA No. 20771,
76-2 BCA  12,020 at 57,658.   In the graphic arts industry, the
Pantone Matching System is now the most popular and widely used
color matching system.  MARK BEACH, GETTING IT PRINTED (rev. ed.
1993) 28; MARJ GREEN, THE BUSINESS FORMS HANDBOOK (4th Ed.) 63;
RICHARD ROMANO, THE GATF ENCYCLOPEDIA OF GRAPHIC COMMUNICATIONS
574 (1998).
Thus, the contract's use of the term "Pantone 136C" resulted in a
requirement for a specific, standardized color, rather than
general range of colors.  A fundamental principle of contract
interpretation requires the Board to give a reasonable and
effective meaning to each of the terms of a contract.
RESTATEMENT OF CONTRACTS (SECOND),  203(a); Fortec Constructors
v. United States, 760 F.2d 1288, 1292 (Fed. Cir. 1985).  The
Board will not assume that the parties' contract contains
language that means nothing at all.  Another familiar principle
of contract interpretation is expressed in the words "expressio
unius est exclusio alterius" - that is, when certain matters are
stated in a contract, a court will presume that the parties
intended to exclude similar matters not mentioned.  Delta Mining
Corp. v. Big Rivers Electric Corp., 18 F.3d 1398 (7th Cir. 1994)
(citing Plumbers & Steamfitters Local No. 150 Pension Fund v.
Vertex Construction Co., 932 F.2d 1443, 1449 (11th Cir. 1991)).
From this, the Board concludes that by designating Pantone 136C
as the color to be provided, the parties intended to distinguish
that color from other colors in the Pantone Matching System.

Finally, the Board is not troubled by the inclusion of the word
"yellow" with the Pantone designation, as Pantone 136C is
unquestionably a shade of the color yellow. See, Notice of
Appeal, Exhibit E.  The color yellow is defined as "a color whose
hue resembles that of ripe lemons or sunflowers or is that of the
portion of the spectrum lying between green and orange."  MERRIAM
WEBSTER'S COLLEGIATE DICTIONARY 1371 (10th ed. 1996).
In short, when the Appellant's contract is read as a whole, there
is only one way to reasonably interpret the color specification,
and that is that the Government was seeking a specific color,
designated as Pantone 136C, and no other color.  Under
Appellant's interpretation, the specific and objective Pantone
136C color designation would be replaced by the general,
subjective designation of "yellow closest to Pantone 136C."
Accordingly, the Board concludes that there is no ambiguity, that
the Appellant's interpretation of the contract is unreasonable,
and that the Respondent's interpretation is correct.

   Impossibility/ Commercial Impracticability
Appellant also contends that it was impossible for it to comply
fully with the color specification because no domestic
manufacturer could supply a "yellow" T-shirt that matched Pantone
136C.
The Board sees nothing in the facts here that would raise a
legitimate issue of "commercial impracticability."  To come
within the limited doctrine of impossibility, which encompasses
commercial impracticability, one must show actual impossibility
or that performance could be achieved only at excessive and
unreasonable cost.  A showing of simple economic hardship is not
sufficient.  See, Jennie-O Foods, Inc. v. United States, 217 Ct.
Cl. 314, 328-29, 580 F.2d 400, 409 (1978); American Combustion,
Inc., ASBCA No. 43712, 94-3 BCA  26,961 at 134,243.  See also,
Natus Corporation v. United States, 178 Ct. Cl. 1, 371 F.2d 450
(1967); Whitlock Corporation v. United States, 141 Ct. Cl. 758,
159 F.Supp. 602, cert. denied, 358 U.S. 815 (1958).

The burden of proving impracticability lies with the contractor,
who must also show that its difficulties were not attributable to
its own subjective fault.  See, Intercontinental Manufacturing
Company, Inc. v. United States, 4 Cl. Ct. 591, 598-600 (1984);
GLR Constructors, ENG BCA No. 6021, 94-3 BCA  27,216, at
135,653; Crown Welding, Inc., ASBCA No. 36107, 89-1 BCA  21,332,
at 107,571; HLI Lordship Industries, Inc., VABCA No. 1785, 86-3
BCA  19,182, at 97,026.  Accord, JR Composition, GPO BCA 8-86
(May 19, 1989), Sl. op. at 1, 1989 GPOBCA LEXIS 54, 1989 WL
384978 (citing, Koppers Company v. United States, 186 Ct. Cl. 142
(1968)).  In the instant appeal, Appellant has submitted no such
proof.
Moreover, a contractor can disprove its own claim of commercial
impracticability by showing that to some extent it can
successfully perform as expected under the contract.  See, GLR
Constructors, supra, 94-3 BCA at 135,653; American Combustion,
Inc., supra, 94-3 BCA at 134,243.  Here, the evidence indicates
that the Appellant was able to provide a silk-screened T-shirt
that matched Pantone 136C.  That it describes the matching shirt
as "gold" rather than "yellow" is of no legal significance.
Therefore, there is no basis for finding that a situation of
commercial impracticability existed in this case.

Notwithstanding the above-cited defects in Appellant's argument,
in cases where contractors have encountered higher than expected
costs, the courts and boards have imposed stringent standards for
recovery.  In the instant appeal, the contractor claims an
increase in cost of performance of approximately 13 per cent over
the original bid price.  This alone is insufficient to sustain a
claim of commercial impracticability.  Relief will not be granted
unless the costs of performing the work are so much greater than
anticipated as to render performance commercial senseless.  See,
Soletanche Rodio Nicholson (JV), ENGBCA No. 5796, 94-1 BCA 
26,472; SMC Info. Sys., Inc., GSBCA No. 9371, 93-1 BCA  25,485;
Ocean Salvage, Inc., ENGBCA No. 3485, 76-1 BCA  11,905.  A
modest price increase, like the one sustained by Appellant, will
not, by itself, establish commercial impracticability.
Transatlantic Financing Corp. v. United States, 363 F.2d 312
(D.C. Cir. 1966) (14% increase in cost not sufficient to
constitute impracticability); Naughton Energy, Inc., ASBCA No.
33044, 88-2 BCA  20,800 (contractor assumed risk of 59% price
increase); Gene Peters, PSBCA No.  999, 83-2 BCA  16,694 (no
relief granted for rental rate 15% above fair market value).

   Domestic Content Requirement
Appellant also claims that no domestic manufacturer makes a
"yellow" T-shirt that matches Pantone 136C.  The Board has been
unable to find any contract provision that required Appellant to
provide domestically manufactured T-shirts.  The only contract
provision that touches on this issue is a Buy America clause that
is incorporated by reference.  See, Rule 4 File, Tab A at 1.
That clause provides:
(b) The contractor agrees that, unless otherwise provided under
the "certifications" on the bid, there will be delivered under
the contract only domestic source end products, except those-
(1) For use outside the United States;
(2) That the Government determines are not mined, produced, or
manufactured in the United States in sufficient and reasonably
available commercial quantities of a satisfactory quality;
(3) For which the agency determines that domestic preference
would be inconsistent with the public interest; or
(4) For which the agency determines the cost to be unreasonable.

GPO Contract Terms,  36, GPO Publication 310.2 (Rev. 9-88).
This contract provision implements the Buy American Act, 41
U.S.C.  10a, et seq.  Under the terms of that statute, the use
of foreign articles in the performance of U.S. Government
contracts is discouraged by giving a statutory preference to

domestic articles.  However, the use of foreign articles is not
prohibited by either the Act, or GPO Contract Terms.
The domestic goods preference is administered through a system of
bid evaluation factors that are used to determine if the price of
an offered domestic product is "unreasonable."  A Contracting
Officer determines price reasonableness by adjusting each bid
offering foreign products by adding a factor of 6% to the bid for
evaluation purposes.  However, if the low acceptable domestic bid
is from a small business or from a bidder located in a labor
surplus area, a factor of 12% is added to the bid.  See, Printing
Procurement Regulation (PPR), GPO Publication 305.3 (Rev. 5-99)
Ch. I,  9.2(c)(1)(i).  If the foreign bid remains low after
application of the evaluation factor, then the cost of the
domestic bid is considered to be unreasonable, and award is made
to the low bid offering foreign products.
Thus, neither the contract specifications, nor the Buy America
clause incorporated by reference, restrict potential contractors
from submitting bids based on supplying T-shirts of foreign
manufacture.  This further erodes Appellant's arguments, as there
is no showing that a foreign manufacturer could not have supplied
a T-shirt matching Pantone 136C.

   Duty of Contractor Prior to Bidding

Appellant's argument that it was impossible to provide a "yellow"
domestically manufactured T-shirt matching Pantone 136C raises a
further concern.  Assuming arguendo that Appellant believed it
was impossible to meet the color specification, it is unclear why
Appellant would have submitted a bid in response to the
solicitation for Jacket 559-973. An IFB is, among other things,
an invitation to submit an offer.  The submission of a signed bid
in response to an IFB is an irrevocable offer to perform the
contract.  This offer, upon acceptance by the Government, becomes
a binding contract.  PAUL SHNITZER, GOVERNMENT CONTRACT BIDDING
at 5-2 (3rd ed. 1992).
Appellant submitted a sealed bid in response to the IFB for
Jacket 559-973.  Rule 4 File, Tab C.  That offer was accepted by
the Government and a binding contract was formed.  Rule 4 File,
Tab E. Polytronic Research, Inc., ASBCA No. 5918, 1962 BCA 
3548.  In submitting its bid, Appellant was affirmatively
representing to the Government that it could perform Jacket
559-973.  It is well established that the Government does not owe
Appellant a duty of determining for Appellant's benefit whether
the contract award will become a profitable piece of business.
Valveaire, Aircraft Division Abbotwares, ASBCA No. 8322, 1964 BCA
 4177.  According to the ASBCA:
The responsibility is upon bidders to review the invitation for
bids to determine whether they can make the items concerned and
when an erroneous bid is submitted (either because of an
inadequate review of the invitation or because of an erroneous
estimate by the bidder of its capabilities) and as a result there
is a delay or failure in performance, the burden falls on the
contractor as it is not due to a cause beyond the contractor's
control and without its fault or negligence.

Polytronic Research, Inc., ASBCA No. 5918, 1962 BCA  3548 at
17,998.  In a similar case, the ASBCA held:
Basically, the responsibility is on the bidder to ascertain what
is called for by an invitation for bids and whether he has the
technical and financial facilities to produce the item sought.

Valveaire, Aircraft Division Abbotwares, ASBCA No. 8322, 1964 BCA
 4177.

Stated otherwise, the law places on the contractor's shoulders
the responsibility for determining the availability of the
supplies, materials, and products necessary for performance prior
to bidding.  See, Interstate Coatings, Inc. v. United States, 7
Cl. Ct. 259 (1985); ACS Construction Co., ASBCA No. 33832, 87-3
BCA  20,138, aff'd, 848 F.2d 1245 (Fed. Cir. 1988); DeLaval
Turbine, Inc., ASBCA No. 21797, 78-2 BCA  13,521; Datametrics,
Inc., ASBCA No. 16086, 74-2 BCA  10,742; Therm-Air Manufacturing
Co., ASBCA No. 17128, 74-2 BCA  10,652.  The risk is not shifted
to the Government just because the contractor experiences
difficulty in that regard. See, Pioneer Enterprises, Inc., ASBCA
No. 43739, 93-1 BCA  25,395; Toyad Corp., ASBCA No. 26785, 85-3
BCA  18,354. See also, Gold Country Litho, GPOBCA No. 22-93
(Sept. 30, 1996), 1996 GPOBCA LEXIS 27, 1996 WL 812956.
The Board quotes with approval a passage from Consolidated Diesel
Corporation, ASBCA No.  10486, 67-2 BCA  6669, in which the
ASBCA held:
A bidder who knows or should have known that the specifications
are impossible of performance, but bids anyway without raising
any objection to the specifications, cannot thereafter be
relieved from the consequences of impossibility, as in bidding
with actual or construction [sic] knowledge of the impossibility,
he assumes the risk . . . . A bidder who is on notice of an
'incipient problem', but neglects to bring it to the attention of
the contracting officer and get it solved before the bid opening,
cannot expect to have the problem resolved in his favor.

(Citations omitted.) Id. at 30,952.   It appears that Appellant
did precisely what this decision proscribes.

   CONCLUSION

For the foregoing reasons, therefore, Appellant's appeal is
DENIED.


May 13, 1999      KERRY L. MILLER
Administrative Judge