French/Bray, Inc.

GPO BCA 18-85
October 23, 1986
Michael F. DiMario, Administrative Law Judge


   This appeal was timely filed by French/Bray, Inc. (hereinafter
   "Appellant"), 6731 Baymeadow Drive, P.O. Box 698, Glen Burnie,
   MD 21061, by notice of appeal letter dated November 26, 1985.
   The appeal is from the final decision of Jack G. Marken,
   Contracting Officer, U.S. Government Printing Office
   (hereinafter "GPO" or "Respondent"), dated September 19, 1985,
   denying Appellant's request for an increase in contract price
   to cover expenses incurred for the reprinting and redelivery
   of the product ordered by Respondent. Based upon the written
   record and evidence deduced at a prehearing conference held
   February 6, 1986, the appeal is denied and the decision of the
   Contracting Officer is affirmed for the reasons hereinafter
   set forth.


   On February 4, 1985, Respondent was competitively awarded
   contract Jacket No. 459-723 by GPO Purchase Order No. 52476,
   in the amount of $5,268 to produce some 3,500 record album
   jackets for the Library of Congress; the award being made "in
   strict accordance with . . . specifications" issued by
   Respondent on January 11, 1985, and amended January 14, 1985.
   (R4 File, Tab B)

   The specifications, among other things, required Appellant to
   "[c]oat (after printing) the entire surface of all printed
   areas with varnish or lacquer to prevent scratching and
   smearing" (R4 File, Tab B, Original Specifications, page 2 of
   4) and to "pack suitable per shipping container" (R4 File, Tab
   B, page 3 of 4). The specifications also incorporated by
   reference "all terms and conditions of U.S. Government
   Printing Office Contract Terms No. 1, Rev. Oct. 1980 (GPO Pub.
   310.2) and Quality Assurance Through Attributes Program
   (hereinafter "QATAP"), Rev. June 1981 (GPO Pub. 310.1)" with
   the proviso that "[i]n case of conflict between these
   specifications and Contract Terms No. 1 and/or Quality
   Assurance Through Attributes Program, these specifications
   will govern." GPO "Contract Terms No. 1," Article 3-1,
   specifies that "[u]nless otherwise indicated in the contract
   each shipping container must not exceed 45 pounds when fully

   The completed product was shipped by Appellant to Smith
   Lithographic Company, Rockville, MD., in accordance with
   Respondent's directions. Upon receipt Smith's Government Sales
   Manager, Tom Gruber, telephonically notified Respondent that
   the cartons on the bottom layer of three skids had been
   crushed, and that the "records do not seem to be damaged but
jackets are bent" with some covers scratched. He also reported
that all cartons were 200 pound test, weight 86 pounds, and are
size 25 x 15 inch. (R4 File, Tab K)

   As a result of this telephone call, Respondent, that same day,
   dispatched Richard Brzozowski, Printing Specialist, Quality
   Assurance Section, to conduct an inspection of the damaged
   product. (R4 File, Tab O) Brzozowski claims to have found
   pallets stacked 3 or 4 cartons high. Some cartons had been
   shrink-wrapped but he could not recall whether or not the
   cartons were also protected by bands. He randomly checked 13
   cartons and found only 1 to be damaged. However, 9 of the 13
   cartons contained scratched album covers. (Prehearing
   Conference report, page 7.) Thereafter at Brzozowski's
   request, Respondent's Quality Control and Technical Department
   (hereinafter "QCTD") tested the product and in a report dated
   April 18, 1985, found that the record jackets were "coated
   with a coating but it is not scratch resistant." The product
   was deemed by QCTD "not equal to the specifications" which
   according to the report required the product "to be coated
   with scratch resistant coating (varnish)." (R4 File, Tab K)

   This information, together with a requirement to reprint, was
   apparently telephonically conveyed to Appellant at this time.
   (R4 File, Tab I)

   Respondent's work notes also reflect that Appellant would be
   "sending in letter 4-22-85." (R4 File, Tab K) The file then
   contains a letter from Appellant's Mr. Joseph P. Rupert dated
   April 17, 1985, which reflects that Appellant "believes that
   the coating used on the jacket meets all specifications as
   outlined in Quality Assurance Through Attributes" citing an
   attached "letter from Braden Sutphin Ink Company" giving the
   results of their performance of "the same tests as outlined in
   the Quality
Assurance Through Attributes" with the assertion that "Braden
Sutphin has found that the coating used passed the Sutherland Rub
Test. They also feel that any testing requirements beyond those
specified would require a coating of a significantly different

   Rupert further advised that Appellant would reprint the job
   using Klassic-Kote rather than varnish opining that
   "varnishing should never have been" specified because "[w]hen
   looking at the amount of handling in manufacturing . . . and .
   . . by the end user, varnish as a protective coating would
   never hold up." Rupert thereafter asserts that it was
   Respondent's "error in failing to realize this . . . [and
   that] [t]he cost of reprinting . . . and coating . . . should
   . . . be borne by the G.P.O. and not the contractor." The
   Braden Sutphin letter accompanying Appellant's letter is dated
   May 9, 1985, a date which is difficult to reconcile with
   either the month or day of Appellant's letter which bears no
   date of receipt. (R4 File, Tab M) Be this as it may, the file
   contains an additional letter from Appellant which is dated
   April 22, 1985, which may in fact be the earlier of
   Appellant's two letters which states: "French/Bray has found
   that all specifications were followed except for the packing
   requirements" which was characterized as "an oversight on
   French/Bray's part." (R4 File, Tab N)

   There follows a revised report by Respondent's QCTD dated May
   3, 1985, which adds to the previous report the specification
   "[r]ub resistance test according to QATAP Contract Terms P-ll"
   with test results shown as "average density = 0.063 for 4
   samples" with the "DIFFERENCE" notation of "0 demerits". This
   report was signed by "Robert W. Praskievicz for
Division Chief". (R4 File, Tab L)

   The file further contains an inspection report by Brzozowski
   dated June 12, 1985, reflecting that 8 product samples were
   tested from a lot size of 3,500 and that each of the 8 had
   "[c]onspicuous [s]ingle [p]age [d]efect, extraneous marks" or
   a total of 8 "major defects." (R4 File, Tab 0)

   There next follows at R4 File, Tab P, a letter from Darwin
   Hughes, Contracting Officer, of June 12, 1985, stating:

An examination of samples of the product your firm produced for
the Library of Congress has revealed defects under the following

1. Contract Terms No. 1, 2-10. Quality
2. Conspicuous Single Page Defect; extraneous marks
3. Contract Terms No. 1, 3-1. Packing;
(j) shipping containers Product was packed in 200 lbs. test
cartons, should have been 275 lbs. test containers and the
cartons were overpacked; 86 lbs., should have been 45 lbs.

   Based on the results of this inspection, the order has been
   determined rejectable, and will require reprinting. The
   reprinting will be accomplished at no additional cost to the
   Government in strict accordance with the specifications.

   As agreed, the rejected copies will be picked up from Smith

   As mutually agreed upon in our telephone conversation of May
   28, 1985, the reprinting and delivery of this product will be
   accomplished by June 17, 1985.

   In reference to your letter dated April 17, 1985, the
   specifications were adequate in assuring us that the product
   would be scratch and smear resistant.

   The following reasons we feel attributed to the failure of
   this product:

1. Improper application of varnish.
2. Improper handling during the manufacture of the product.
3. Packed improperly.

   Appellant's response of June 17, 1985, advises that "[t]he
   reprinting is complete" and again asserts that:

   A product of this nature with the amount of handling involved
   in manufacturing, (die cutting, folding and gluing by hand,
   inserting of records by hand, and packing of cartons), varnish
   as specified has proved to be unacceptable. In referring back
   to Contract Terms No. 1, 2-10 "The requirements indicated in
   the specifications represent minimum acceptable . . ." the
   G.P.O.'s test and the varnish manufacturers test of the
   varnish as outlined in Quality Assurance Through Attributes
   has shown that the varnish used on the record jacket passed
   the Sutherland Rub Test. These test's [sic] seem to be
   outlined to aid the contractor in making sure that the product
   will meet the minimum acceptable quality level as outlined by
   the G.P.O.. The Sutherland Rub Test performed to Government
   standards proves that the varnish on this product meets
   minimum acceptable quality. We find that even though the
   product meets the requirement as outlined in Quality Assurance
   Through Attributes, the coating as specified (varnish) does
   not hold up to all the wear and tear a product of this nature
   receives. Varnish should never have been offered as an option.
   This error on the G.P.O.'s part was the result of the product
   being unacceptable.

   The reprinting of this product using Klassic Kote should
   withstand the handling a product of this nature will receive.
   The cost of reprinting should not be borne by French/Bray, but
   by the Government Printing Office.

   French/Bray will be billing Jacket 459-723 for both the first
   and second printing, which we feel should be paid in full by
   the G.P.O..

R4 File, Tab Q

   By letter of August 26, 1985, Rupert summarized the above
   events and asserted that:

As of this date no additional correspondence has been received by
French/Bray from the G.P.O. regarding the subject. Having
received nothing in writing, it leads French/Bray to believe that
the Government is in agreement with the statements concerning the
cause for reprinting and who should bear the cost of the
reprinting. Please cut a Contract Modification to reflect the

Unpacking Records From Rejected Product   $   749.00
Reprinting 3500 Copies "Wonderful Inventions"   $   5,000.00
Klassic Kote Instead of Varnish   $   722.00
Ship Completed Products to Rockville, Md   $    58.00

Total Cost to Government   $   6,529.00

R4 File, Tab S

   In response, Marken, the Contracting Officer, issued his final
   decision letter dated September 19, 1985, denying Appellant's
   request for a contract price increase and asserting that:

   It has been determined that the order as originally delivered
   contained defects as outlined in GPO letter dated June 12,
   1985. These deficiencies were attributed to improper
   procedures used by the contractor, i.e., application of
   varnish, handling of product during manufacturing, and

   The original specifications were reviewed for ambiguities and
   were found to be explicit in its statement of objectives in
   regard to quality and packing. Your letter of August 26, 1985
   offers no new evidence to dispute these points.

R4 File, Tab T

   Thereafter, by letter of November 26, 1985, Appellant filed
   its notice of appeal based upon its contention "that varnish
   as specified was and is an unacceptable coating for a product
   of this nature." (R4 File, Tab U)

   By letter of January 20, 1986, Appellant advised that it had
   no other documents which it desired to file with the Board and
   that a hearing was desired under the small claims procedure.
   In turn, the prehearing conference was scheduled and held on
   February 6, 1986.

   At the conference, Appellant's representative asserted that
   its representative had raised the issue of the suitability of
   the specified coating with one of Respondent's representatives
   after award of the contract but before performance. Testimony,
   including direct- and cross-examination of witnesses failed to
   corroborate this allegation. Moreover, Respondent asserted
   that if the Appellant had such concern, it had an inherent
   duty to question the specification before bidding on the
   contract so that any modification of the solicitation, if
   necessary, could be made and fairly presented to all
   prospective bidders. Moreover, Respondent claimed that in
   writing a performance related specification, the Respondent
   anticipated that Appellant would use production, packaging,
   and shipping methods which would protect the product from
   casual damage during manufacture and shipment.

   Appellant admitted that it had not followed the shipping
   instructions but asserted that the scratching was not the
   result of improper handling but rather of the specification of
   an inappropriate coating. In rebuttal to this Respondent,
   through uncontroverted, cross-examined testimony by Mr. Darwin
   Hughes, Chief, Quality Assurance Section, GPO, asserted that
   while Appellant had applied varnish to the product, it was not
   a scratch resistant coating as specified because it had been
   improperly applied. He asserted that proper scratch resistant
   application requires that
the varnish be put on "dry". He further testified that at the
time of discovery of the defect he had had a conversation with
one of Appellant's representatives wherein it was admitted that
Appellant had used an in-line "wet" method of varnish application
rather than a dry method. Appellant did not deny this assertion
but rather argued that in its experience Respondent generally
specifies the method of varnish application in its
specifications, whereupon the Chief, Quality Assurance Section,
testified that Respondent, while not expressly stating dry or wet
application, had inherently specified the method of application
by requiring that it be scratch resistant with the inference
being that it be applied after the ink has set up; i.e., after it
is "dry".

   Testimony, as indicated supra, was also telephonically
   solicited from Robert Brzozowski with appropriate opportunity
   for cross-examination. Mr. Brzozowski, among other things,
   testified that some of the products sampled from undamaged
   cartons also bore scratch marks.

   Testimony by Robert Praskievicz, Environmental Chemist, QCTD,
   GPO, indicated that he conducted the second test of the
   sampled product, that the test included the rub resistant test
   required by the QATAP, that the density of the coating was
   0.063, and that this required the allocation of demerits to
   the product. Additionally, in the testing process, scratches
   were visually noted, but no demerits were recorded on the
   report form nor was there any indication of whether or not the
   product was equal to the specifications, because the entire
   job had not been evaluated. Mr. Praskievicz indicated that in
   his judgment the product was not scratch resistant, since
   scratch resistance implies a resistance of the product to
the loss of color or image; that he had used the standard rub
test and in his judgment the tested products did not meet the
required test. On cross-examination concerning his expertise,
after reference to the opposite conclusion of the Braden-Sutphin
report, Praskievicz testified that his expertise was in
chemistry; that the test used was not a chemical test; that he
had not previously rub tested any heavy black record covers but
had on numerous occasions, as part of his procedure, rub tested
book covers and posters.

   At the conclusion of the testimony, the parties agreed that no
   further hearing would be necessary, that the record could be
   settled, and the case decided upon the evidence as presented.
   The case is before the Board for decision in this form.


   The question presented by this appeal is whether or not the
   Appellant ought to bear the costs of reprinting and redelivery
   of a printed product produced by it after rejection of the
   original product for failure to meet specifications in that
   the products bore scratch marks. There are no factual disputes
   between the parties. The original products were printed;
   coated with "varnish"; packaged; and shipped by Appellant to
   another contractor, as directed, whereupon inspection they
   were shown to bear scratch marks.

   Appellant admits that it improperly packaged the products. The
   inspection by Respondent, however, shows that certain products
   were not damaged in shipment but nevertheless still bore some
   scratch marks, thus suggesting that the incorrect packing was
   not the principle cause
of the scratch defect for which the entire production lot was
rejected. Thus, Appellant's argument that it followed
Respondent's specifications with respect to varnishing the
product and should not be held responsible for damages
unassociated with the faulty packaging cannot be dismissed out of
hand. Accepting the fact that Appellant followed the functional
requirement of applying varnish to the product after printing,
the question that must be determined is upon which party does the
burden reside for the damaged product. Appellant asserts that it
lies with Respondent for specifying "varnish" which Appellant
alleges is not adequate for the purpose of preventing scratches.
Respondent, on the other hand, asserts that the burden lies with
Appellant whom it alleges used a technically ineffective
application procedure. To ascertain the answer we must turn to
the language of the contract itself, including the referenced
"QATAP" (GPO Publication 310.1, May 1979 as Revised June 1, 1981)
and "GPO Contract Terms No. 1" (GPO Publication 310.2 Revised
October 1, 1980).

   The contract specifications required Appellant to "[c]oat
   (after printing) the entire surface of all printed areas with
   varnish or lacquer to prevent scratching and smearing." (R4
   File, Tab B, page 2 of 4) This language itself gave Appellant
   the choice of selecting the coating; i.e., "varnish or
   lacquer"; moreover inherent in that choice was the choice of
   method of application necessary to attain the requirement "to
   prevent scratching and smearing." (Emphasis added) "To
   prevent" is a much higher standard than "to resist" or "to
   avoid" or "to retard" or other similar standard.

   It is the opinion of the Board that this language places the
   burden of attaining the standard upon the Appellant. However,
   the standard itself is not so absolute as to make the product
   rejectable if scratching of any sort whatsoever occurs.
   Rather, the standard is modified by the specification of
   Quality Assurance Through Attributes Product Quality Level II
   for both Printing and Finishing Attributes and Inspection
   Levels (from Mil-STD-105) of (a) Non-destructive tests -
   General Inspection Level I and (b) Destructive Tests - Special
   Inspection Level S-2, and provision thereafter requiring
   Respecting these requirements the QATAP in pertinent part

1-1. . . . .

. . . .

1-4. Major Defect - A major defect is a deviation from
specifications which is less serious than a critical defect.
Major defects are designated in the tolerance tables for printing
attributes, finishing attributes, and the paper attribute.

1-5. Total Defects - Total defects are the sum of all critical
and all major defects (e.g., 3 critical defects + 2 major defects
= 5 total defects).

1-6. Acceptable Quality Levels (AQL's) - The AQL's are the
maximum number of defects per 100 copies that the Government will
accept at the contract price. Unless otherwise specified, the
AQL's are 1.0 for critical defects and 6.5 for total defects.

. . . .

1-10. Average Demerit Levels (ADL's) - ADL's are one of the means
used to classify defects for printing attributes.

. . . .


a. QATAP establishes attributes for quality and it defines
tolerances for those attributes for five quality levels of
printing. When attributes deviate from the allowable tolerances,
the deviations will be classified as either major or critical
defects pursuant to the applicable tolerance table.

b. Attributes which are not identified as quality attributes
under QATAP (e.g., stitching position) will be evaluated in
accordance with the article entitled "Quality" in U.S. Government
Printing Office Contract Terms No. 1.

3. DETERMINING ACCEPTABILITY - Because inspection of all copies
of a publication is usually impractical, the Government will
utilize statistical sampling to determine quality. When the
Government determines that both the number of critical defects
and the number of total defects in the lot or batch do not exceed
their respective AQL's, the lot or batch will be accepted at the
contract price. MIL-STD-105D will be used to make this

   If the defects exceed either or both AQL's, the Government
   will have the option of having the lot or batch replaced,
   having the defects corrected, or accepting the lot or batch
   with an equitable reduction in the contract price. The
   discount tables contained in Appendices A & B will be used as
   a guide by the Contracting Officer to determine reductions.
   Failure to agree to such reduction of price shall be a dispute
   concerning a question of fact within the meaning of the
   article entitled "Disputes" of Contract Terms No. 1. In all
   cases it is the intent of the Government that the products
   meet the quality required in the specifications.

4. CATEGORIES OF ATTRIBUTES - Quality attributes are divided into
three categories which consist of printing attributes, finishing
attributes, and the paper attribute.

4-1. Printing Attributes - For each copy that is inspected, the
Government will evaluate each applicable printing attribute by
separately inspecting:

a. outside covers (i.e., the spine and covers 1 & 4)

. . . .

ADL's will be determined as follows:

(i) Outside covers will be inspected and evaluated as one unit.
The unit will be assessed demerits (i.e., 4, 20, 100) pursuant to
the demerit table for each printing attribute that deviates from
specifications. The demerits which are assessed constitute the
ADL for outside covers for that printing attribute for that copy.

. . . .

(iii) In each copy the ADL's for each printing attribute will be
classified as follows:

Tolerance Table for Printing Attributes
ADL's   Classification of Defect
4 or less for both outside   None
    covers and text
More than 4 for either or   Major
    both outside covers and text

   Conspicuous Single Page Defects - When one or more pages have
   been assessed demerits for a printing attribute but the ADL
   does not exceed 4, a single major defect will be assessed for
   that printing attribute if one or more pages is so
   conspicuously defective that it significantly impairs the
   quality of the entire copy. Examples include a large hickey at
   the focal point of an illustration, a single page with
   extremely light (but legible) type, large ink spots, large oil
   spots, and large off-color spots in illustrations.

   4-2. Finishing Attributes - The Government will evaluate
   finishing attributes by inspecting individual copies of
   publications. When each copy is inspected, each applicable
   finishing attribute that deviates from specifications will be
   classified as either a critical or major defect in accordance
   with the tolerance table for that attribute.

. . . .

   P-ll. Rub-Resistance of Printed Image

   Definition: Rub-resistance is the resistance of the printed
   image to smearing onto similar stock when rubbed with that
   stock. There are two categories of rub-resistance:

1. Rub-Resistance of Unvarnished Image
2. Rub-Resistance of Varnished Image


1. Visual Evaluation
2. Reflection Densitometer
3. Rub Tester (Sutherland or equivalent)


1. Unvarnished Image

a. Calibrate the densitometer to the blank strip of stock.

b. Test a representative sample of the printed product on the Rub
Tester. Give a 3" x 6" (76.2 mm x 152.4 mm) printed sample 25
rubs at a pressure of 1.0 P.S.O. against a 2" x 5-1/4" (50.8 mm x
133.4 mm) blank strip of stock similar to that on which the
sample is printed.

c. Make three density readings in the area of highest density on
the blank 2" x 5-1/4" (50.8 mm x 133.4 mm) test strip. Use the
densitometer filter which indicates the maximum density for the
color of ink used in the printed sample.

d. Calculate an average density for the rub-off smear based on
the three independent density readings.

   Perform all tests at least 72 hours after the printing

2. Varnished Image

   Follow the same procedure as above with the exception that
   each sample will be given 50 rubs at a pressure of 1.0 P.S.I.
   (.70308 gm/mm2).

. . . .

Product   Demerits
Levels      4 20 100

. . . .

F-ll. Damaged Covers

Definition: Damaged covers consist of the following categories:

. . . .

4. Scratches - Scratches are blemishes which are visible under
standard viewing conditions and which do not expose any paper or
cloth fibers.


1. Visual Evaluation

. . . .


Product   Classification of Defect
Levels   Major . . . .

. . . .

   Moreover, the above-referenced article entitled "Quality" in
   "GPO Contract Terms No. 1," paragraph 2-10 states:

Where printing is involved, careful imposition; competent
makeready; careful press running; clear, sharp printing; careful
binding; and good quality in every respect are required. These
requirements are an essential part of the contract. The
requirements indicated in the specifications represent the
minimum acceptable for all printing, binding, and related
services specified under the contract.

   Given these various contract provisions it is the opinion of
   the Board that as a matter of contract interpretation, and
   thus of law, the burden of meeting the contract specification
   rests solely with Appellant while the determination of whether
   or not such burden has been met lies solely with the
   Respondent, provided that the Respondent does not render its
   determination arbitrarily or capriciously but rather does so
   objectively by adhering to the testing and sampling standards
   of the QATAP. There is no provision in the contract for a
   determination by a so-called "independent" testing laboratory
   selected by the Appellant itself. Thus, if the Respondent
   shows that it has adhered to the contractual standards for
   testing, inspection, and determination of product quality, its
   determination must be upheld. This Board finds that the
   Respondent has indisputably met all these requisite
   requirements and thus, as a matter of contract law, affirms
   the decision of the Contracting Officer and denies the appeal.


Appeal denied.