Docket No. GPO BCA 14-89
July 13, 1990

Administrative Law Judge


   This appeal, timely filed by Tamms Lithography, Inc., P. 0.
   Box 284, Cedarburg, WI 53012 (hereinafter Appellant), is from
   the final decision of James A. Davidson, Contracting Officer
   (C.O.), Los Angeles Regional Printing Procurement Office, U.S.
   Government Printing Office (GPO), Washington, DC 20401
   (hereinafter Respondent), dated March 22, 1989, terminating
   its contract with Appellant identified as Purchase Order
   N-1262, Program 2909S, Jacket 679-155, for default for failure
   to meet delivery requirements.  The decision of the
   Contracting Officer is affirmed for the reasons set forth


   The referenced contract required that Appellant produce all
   specified printing requirements as might be ordered by the
   Department of the Army from time to time during the term
   September 1, 1988, to August 31, 1989, each such order to be
   initiated by the issuance of a "print order" from the
   Department of the Army to the Appellant.  The specifications
   reflected the anticipated frequency of orders during the term
   to be four per year.  The specifications further stated that
   the following work schedule was to be adhered to for each
   print order, beginning the work day after notification of the
   availability of the print order and Government-furnished
   materials; i.e., camera copy, distribution list, blue labels,
   selection certificates, etc.:

Contractor must pickup material and print order within 1 workday
after notification.
Contractor must deliver proofs within 5 workdays.
Contractor must pickup edited proofs within 3 workdays.
Contractor must complete distribution within 10 workdays.

(Tab A, Rule 4 File)

   Pursuant to such terms, the contractor was issued Print Order
   80000 (Tab D, Rule 4 File) on October 19, 1988, with an
   established delivery date of November 15, 1988.  The
   contractor did not adhere to the scheduled delivery date nor
   to a promised delivery date of December 2, 1988.
   Nevertheless, the Army issued Print Order 80001 to Appellant
   on December 9, 1988, (Tab F, Rule 4 File) specifying delivery
   of the second requirement by December 30, 1988. .However, when
   Print Order 80000 was received, it was found to be deficient
   in certain technical respects for which a 15 percent discount
   was taken by the Government.  (Tab H, Rule 4 File)
   Additionally, Appellant was advised by cure notice, dated
   December 16, 1988, that its failure to perform on .Print Order
   80000 within the schedule of the specifications was a
   condition that was endangering performance on the contract in
   accordance with its terms.  (Tab I, Rule 4 File) Appellant was
   given 5 days from its receipt of such notice to advise of the
   measures it was taking to cure such condition with advice that
   if the condition was not cured by December 30, 1988, the
   Government might terminate the contract for default pursuant
   to the terms of the contract.  Appellant did not timely
   respond to the notice.

   Appellant did not adhere to the scheduled requirements for
   Print Order 80001.  (Tabs J, K, L, M, and N, Rule 4 File)
   Accordingly, Appellant was issued a second cure notice on
   December 28, 1988, stating that such failure to perform was
   also a condition endangering performance and affording
   Appellant the same opportunity to respond to the cure notice
   within 5 days of its receipt with the caveat that unless such
   condition was cured the Government might terminate the
   contract for default pursuant to its terms.  (Tab 0, Rule 4

   On January 12, 1989, Appellant, Erwin Tamms, telephonically
   discussed the matter with the C.O., at which time Tamms was
   advised that the Government would not accept another late
   issue and that if Appellant was late on the next issue, the
   Government would default the contract. (Tab P, Rule 4 File)
   Appellant responded to both the Print Order 80000 and the
   Print Order 80001 cure notices by letter, dated January 21,
   1989.  (Tab Y, Rule 4 File) [Such response was not furnished
   to the Board for its consideration.]

   Appellant was issued Print Order 80002 on February 14, 1989,
   with a delivery date of March 10, 1989.  (Tab S, Rule 4 File)
   Appellant again fell behind in meeting the scheduled
   requirements and was issued a third cure notice on February
   23, 1989, advising that such condition was endangering the
   performance of the contract in accordance with its terms.
   (Tab V, Rule 4 File) The cure notice again afforded the
   Appellant the opportunity to present in writing advice of the
   measures it had adopted to cure such condition subject to the
   caveat that unless such condition was cured the Government
   might terminate the contract for default pursuant to its

   Respondent was notified by the Army on March 13, 1989, that
   100 copies of Print Order 80002 were received on March 10,
   1989, but that the remainder of the order (450 copies) was
   late.  (Tab X, Rule 4 File) On March 14, 1989, no other copies
   having been received, Respondent's contracting personnel
   sought the concurrence of Respondent's Contract Review Board
   for the termination of the contractor for default.
   Concurrence was given on March 21, 1989, (Tab Y, Rule 4 File)
   and the contract terminated that day with the Appellant
   advised of this action by "Notice of Termination Complete,"
   dated March 22, 1989.  (Tab Z, Rule 4 File)

   By letter dated May 1, 1989, Appellant filed its notice of
   appeal.  An examination of Appellant's notice of appeal
   reflects in its third and fourth paragraphs that Appellant
   takes exception to the frequency with which the three print
   orders had been issued.  It anticipated at the time of its bid
   that the specified frequency of "approximately four orders per
   year" meant "quarterly," whereas it had received three orders
   before the end of the "second quarter." This purportedly
   complicated its capability to fit such orders into its
   schedule, thus the delay.

   The remaining two substantive paragraphs of the letter deal
   only with Print Order 80002.  The first alleges that March
   15th was the date by which Appellant was to have completed its
   mailing.  Appellant arrives at the March 15th date by applying
   the schedule set out in the specifications, supra, as follows:

Page nine of the specs. states that the contractor will deliver
proofs within 5 workdays.  Program 2909S Print Order 80002 was
dated 2/14/89.  The five days would begin on the workday after
notification that date should be 2/16/89.  Monday, the 20th of
February, was a Holiday.  We sent the proof via UPS overnight on
the 23rd.  The proof was returned 3/1 which should mean that 3/2
would be the start of 10 workdays for completion.  March 15th
then should be the completion date.

   The second alleges that Appellant, in fact, had completed the
   mailing on March 13th, having sent 100 advance copies via "UPS
   overnight" on March 10th and the remaining 450 copies the same
   day via "UPS ground."

   Subsequently, by letter dated June 12, 1989, the Board advised
   Appellant that the appeal was received and docketed on June 8,
   1989, and that Appellant had 30 days from receipt of the
   Board's docketing letter to file a complaint with the Board in
   accordance with Rule 6.(a) of the Board's Rules of Practice
   and Procedure, a copy of which was furnished to Appellant as
   an enclosure to the said letter.

   Thereafter, by letter dated July 12, 1989, Appellant advised
   that it wished to submit the case on the record, that it still
   had not been told why the job was considered late, and that it
   had sent the original of a certain enclosed letter but had not
   received the courtesy of a reply. l

   No further information has been filed with the Board.

   A general denial was entered on behalf of the Government
   pursuant to Rule 6.(b), no answer having been received.

   The matter is before the Board in this form for its decision
   on the record.

   1 Examination of the enclosed letter showed it to be dated
   June 24, 1989, and addressed to "USGPO, 15000 Aviation Blvd.
   Room 2W26, Lawndale, CA 90261, Attention:  Verbe Sutton,
   Contracting Officer." The letter, in substance, protested
   Respondent's "nonresponsibility determination in regard to
   Program 2909S on the basis of greater prices" and asks Sutton
   to "reconsider our bid." As such, it does not appear to be
   responsive to the Board's Rule 6.(a) requirement or relevant
   to this appeal.


   The first issue presented is whether the default termination
   should be vacated or modified based upon Appellant's assertion
   that it failed to meet the contract schedule requirements
   because it had anticipated that the orders would be received
   quarterly.  Having examined the contract terms and the facts,
   we conclude that the mere assertion presents no basis for
   either action.  The contract's plain language states that it
   "is a requirements contract for the items and for the period
   specified herein. . . . The quantities of items specified
   herein are estimates only, . . ." (Page 3 of 12, Tab A, Rule 4
   File) "Subject to any limitations elsewhere in this contract,
   the contractor shall furnish to the Government all items set
   forth herein which are called for by print orders issued in
   accordance with the 'ORDERING' clause of this contract.  Given
   such language the "Frequency of Orders" provision of
   "approximately four orders per year" (Page 4 of 12, Tab A,
   Rule 4 File) cannot be construed as "quarterly" without
   distorting the clear meaning of the contract.  "Quarterly" and
   four times per year are plainly not synonymous terms since the
   Government could order more or less than one order in any one
   quarter and still be within the approximate or estimated
   annual quantity.  Moreover, the fact that Appellant was
   delinquent on the very first order militates against a
   conclusion that but for such anticipation Appellant would have
   performed within the schedule of the contract.

   The second issue presented is whether or not Appellant's
   delivery of the products required by Print Order 80002 was
   within the schedule requirements of the contract.  Appellant
   argues that the scheduled completion date was March 15th,
   1989.  The C.O. and the Army, on the other hand, apparently
   believed the scheduled date to be March 10, 1989.  (Tab X,
   Rule 4 File) Neither date was apparently correct.  First, the
   March 10, 1989, date appears on the Print Order as the
   scheduled delivery date.  The ordering provisions set forth on
   page 3 of the Specifications, however, provide that "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." Thus, the March
   10th date is not controlling unless it, in fact, is the date
   arrived at by applying the schedule requirements of the
   contract.  Examining those requirements as Appellant has done,
   we find that the schedule begins on "the work day after
   notification of the availability of the print order and
   Government-furnished materials." The record does not show the
   date of such notification.  Appellant claims, in effect, that
   the date was February 15, 1989, the day after the print order
   was issued.  He therefore concludes that the schedule began on
   February 16, 1989.  We disagree.  The only available record to
   the Board is the print order issued February 14, 1989.  From
   this we must conclude, absent a showing to the contrary, that
   notification occurred the same day.  This being the case, by
   applying the schedule formula we conclude that the full order
   was due by March 14, 1989, one day earlier than asserted by
   Appellant and four days later than believed by the Department
   of the Army.  That being the case, it is clear from the record
   that Appellant did not meet the delivery schedule, the C.O.
   having stated to the GPO Contract Review Board that "as of
   March 14, 1989, no other copies have been received." (Tab Y,
   Rule 4 File)

   Accordingly, we find no basis for concluding that the
   Contracting Officer's determination to "terminate the
   remainder of the contract for Default with all reprocurement
   costs" to Appellant "[b]ecause they have failed to meet our
   schedule requirements . . ." was erroneous in light of the
   fact that the contract provision that "Adherence to this
   schedule must be maintained." (Page 9 of 12, Tab A, Rule 4
   File), the cure notices, various telephone calls, and the
   January 12, 1989, conversation between the C.O. and Erwin
   Tamms made it clear that time was of the essence.  Therefore,
   we affirm his decision and deny the appeal.

   It is so Ordered.