BOARD OF CONTRACT APPEALS
   U.S. GOVERNMENT PRINTING OFFICE
   WASHINGTON, DC  20401

In the Matter of           )
                           )
the Appeal of              )
                           )
STERLING PRINTING, INC.    )      Docket No. GPO BCA 20-89
Jacket No. 226-948         )
Purchase Order 81288       )


   DECISION AND ORDER

   This appeal, timely filed by Sterling Printing, Inc.
   (Appellant or Contractor), 2515 Lantrac Court, Decatur,
   Georgia 30035, is from the final decision of Contracting
   Officer William E. Flood, of the U.S. Government Printing
   Office's (Respondent or GPO or Government) Printing
   Procurement Department, Washington, DC 20401, dated April 13,
   1989, terminating the Appellant's contract identified as
   Jacket No. 226-948, Purchase Order 81288, for default for
   refusing to correct the quality defects found in its product
   to meet the requirements of the contract specifications (R4
   File, Tab N).1  On April 28, 1992, and May 6, 1992,
   respectively, a hearing was conducted by the Board for the
   purpose of developing evidence on the two issues involved in
   the case.2  At the hearing, both parties were represented by
   counsel, who, thereafter, filed timely briefs with the Board
   addressing the issues involved.3  Board Rules, Rule 23.  Based
   on the record in this case, including the evidence developed
   at the hearing and the written arguments of the parties
   contained in their posthearing briefs, the Contracting
   Officer's decision terminating the Appellant's contract for
   default is AFFIRMED.4  The Contractor's appeal of the
   Contracting Officer's decision assessing excess reprocurement
   costs is GRANTED.

   I. BACKGROUND

   A. The Default Termination

   The facts, which are essentially undisputed, are recited here
   only to the extent necessary for this decision.  This case
   arises from a contract awarded to the Appellant on January 6,
   1989, to print 10,049 copies, including 32 samples, of a
   perfect-bound two (2) color publication, consisting of 176
   pages with a separate wraparound cover, entitled, "1985
   National Survey of Fishing, Hunting, and Wildlife Associated
   Recreation," (National Survey) for the U.S. Department of
   Interior (Interior), Fish and Wildlife Service (R4 File, Tabs
   B and D).5  The contract price for this work was $25,938.00
   for the basic quantity of 10,017 copies, plus $70.84 for the
   32 sample copies, for a total of $26,008.84 (R4 File, Tab D).

   The contract specifications provided, in pertinent part:

      STOCK/PAPER: The specifications of all paper furnished must
      be in accordance with those listed herein or listed for the
      corresponding JCP Code numbers in "Government Paper
      Specification Standards No. 9"[,] dated December 1, 1981,
      as amended through May 1, 1986.

      Text: White Dull Coated Offset Book, basis size 25 x 38",
      80 lbs. per 500 sheets, equal to JCP Code A260.  All text
      paper used in each copy must be of a uniform shade.

      Cover: White Dull Coated Cover, basis size 20 x 26", 80
      lbs. per 500 sheets, equal to JCP Code L60.  All cover
      paper must have the grain parallel to the spine.

      PRINTING: Print Cover and text head-to-head in black ink
      and a match of Pantone 159 brown.

   * * * * * * * * * *

      Coating: Coat (after printing) the entire surface of covers
      1, 4, and backstrip with dull varnish.

   * * * * * * * * * *

      BINDING: Perfect-bind text and wraparound cover; trim three
      sides.6

   * * * * * * * * * *

      QUALITY ASSURANCE LEVELS AND STANDARDS:7 The following
      levels and standards shall apply to these specifications:

      Product Quality Levels:

         (a) Printing Attributes-Level III.
         (b) Finishing Attributes-Level III.

      Inspection Levels (from MIL-STD-105):

         (a) Non-destructive Tests-General
         Inspection Level I.

         (b) Destructive Tests-Special
         Inspection Level S-2.

      Specified Standards: The specified standards for the
      attributes requiring them shall be:

         Attribute           Specified Standard

      P-7. Type Quality      Furnished Camera
      and Uniformity         Copy
      P-8. Halftone Match    Furnished
      (Single and Double       Transparencies
      Impression)
      P-9. Solid and         Pantone Matching
      Screen Tint Color       System
      Match

      DEPARTMENTAL QUALITY COPIES: All orders must be divided
      into equal sublots . . . A random sample must be selected
      from each sublot.  Do not choose copies from the same
      general area in each sublot. . . . . These randomly
      selected samples must be packed separately and must be
      identified by a special [G]overnment-furnished blue label,
      which is to be affixed to each affected container. . . .
      The random inspection samples constitute part of the total
      quantity ordered, and no additional charge will be
      allowed.8

   * * * * * * * * * *

      QUALITY ASSURANCE SAMPLES: In addition to the Departmental
      Quality Copies, the contractor may be required to submit
      quality assurance samples for inspection and testing for
      compliance to the produce specifications.  The purchase
      order/specifications will indicate the number of samples
      required, if any.  When these samples are ordered, the
      contractor must divide the entire order lot into equal
      sublots and select a copy from each sublot.  Each sample is
      to be chosen from a different general area of each sublot.
      . . . These samples will be paid for at the running rate
      quoted in the contractor's bid . . .

   * * * * * * * * * *

      SCHEDULE:

   * * * * * * * * * *

      Submit proofs as soon as the contractor deems necessary in
      order to comply with the shipping schedule.  Proofs will be
      withheld 7 workdays from receipt in the GPO until they are
      made available for pickup by the contractor.

      Ship 100 copies to [Interior] destination as indicated
      under distribution to arrive at destination on or before
      February 3, 1989.

      Ship complete on or before February 10, 1989.



See, R4 File, Tab B, pp. 2-4.9

   Although the parties expected the contract to be completed by
   February 10, 1989, during the proofing stage Interior
   discovered an error in the specifications, namely with the
   duotones, which required a change in the color combination, a
   reshooting of 22 duotones, and submission of revised proofs
   before production started (R4 File, Tabs E and G).10  Tr.
   108-09.  As a consequence, the contract was modified to extend
   the shipping date to March 17, 1989, and to reimburse the
   Contractor an additional $850.00 for the extra work (R4 File,
   Tabs F and G).11

   On March 27, 1989, after the Appellant had completed delivery
   of the National Survey, GPO received a complaint from Interior
   concerning the quality of the book (R4 File, Tab H).
   Specifically, Interior contended that: (a) the Contractor had
   used the wrong paper; (b) the publication contained hickies or
   spots; (c) the register was improper register, and; (d) the
   adhesive was not durable (R4 File, Tab H).  Tr. 49-51.  In the
   latter regard, Interior expressly mentioned that the pages
   fell out of the binding when the book was opened flat (R4
   File, Tab H).12

   On receiving Interior's complaint, the Printing Procurement
   Department immediately asked GPO's Quality Control and
   Technical Department (QCTD) to test randomly selected samples
   of the "blue label" copies provided by the Contractor for the
   purpose of verifying the quality defects (R4 File, Tab I).
   Tr. 50-51.  The QCTD conducted separate tests on the paper and
   the binding, and on March 28, 1989, issued a combined report
   (R4 File, Tab I).  With respect to the paper, the QCTD found
   that the wrong paper stock was used for both the text and the
   cover, and assessed a total of 168 demerits, or 20 major
   defects, under QATAP for these faults (R4 File, Tab I).13  As
   for the durability of the perfect binding, the Respondent's
   test report states:

      Sample 1 was tested on the flex tester and assessed a
      Critical Defect.  Performed subway test on samples 2-8.
      The seven samples were assessed a Critical Defect.14

R4 File, Tab I.  Tr. 37.  For the sample size selected, this
binding defect was assessed 20 critical defects (R4 File, Tab
I).15

   In light of these QCTD reports, the Respondent determined that
   the books produced by the Appellant were rejectionable, and so
   notified the Contractor (R4 File, Tab J).16  The Appellant was
   also informed that the National Survey would have to be
   reprinted to correct the problem.  Tr. 49, 50-51, 93-94.  The
   record discloses that between March 29, 1989, and April 4,
   1989, the Contracting Officer had several telephone
   conversations with the Appellant's President, McDaniel, about
   this matter and was told, inter alia, that: (a) since the
   Government had approved the sample copies provided by the
   Appellant prior to shipment, it was unfair to reject the job
   after delivery had been completed;17 (b) glue does not adhere
   well to the glossy paper stock specified in the contract and,
   under normal usage, the pages will fall apart; (c) the
   Contractor's paper supplier furnished the correct paper; (d)
   Interior's complaint appeared to be untimely because the job
   was shipped March 17, 1989  (R4 File, Tab K).  When the
   Contracting Officer asked for a reprint date, McDaniel
   responded by stating that reprinting the job would be too
   expensive-indeed, "it maybe cheaper for [the Contracting
   Officer] to default her"-and, in any event, the Appellant
   would not reprint the job without first coming to the
   Respondent's main facility in Washington, DC, for a meeting
   with the (then) Acting Public Printer, Joseph E. Jenifer,
   among others (R4 File, Tab K).18

   On April 11, 1989, the parties met at the Respondent's
   headquarters in Washington, DC to discuss the binding problem
   and what steps could be taken to correct it.  Tr. 38, 73,
   122-123.  Present at the meeting for the Respondent were the
   Contracting Officer, Flood, and the Superintendent of GPO's
   Contract Management Branch, Harrison, while McDaniel and her
   husband, Forte, attended for the Appellant.19  Tr. 94, 127.
   Flood, Harrison, and McDaniel testified at the hearing, and
   they all agree on the substance of the discussions which took
   place at the meeting.  In that regard, noting that copies of
   the National Survey which the Appellant had delivered were
   being used by the agencies that received them,  McDaniel
   offered the Respondent two choices in order to resolve the
   matter: (a) a 15 percent discount off the contract price; or
   (b)   the Contractor would retrieve the books from the
   agencies where they had been delivered (approximately 5,000
   copies at various locations), staple the binding together, and
   redistribute them (R4 File, Tab L).  Tr. 37-38, 73-75, 104,
   187, 189.  To illustrate what she had in mind, McDaniel showed
   Flood and Harrison a copy of the National Survey which had
   been stapled from the outside.20  Tr. 41-42, 88-89, 122, 141.
   See, App. Exh. No. 21.  Both of the Appellant's options were
   rejected by the Government.  Tr. 38.  The stapling suggestion,
   in particular, was refused because that was not the product
   ordered by Interior.  Tr. 38, 42, 95.  Instead, Flood insisted
   that reprinting the job would be necessary in order to cure
   the binding defect.  Tr. 93-94, 129.  However, McDaniel
   contended that the Appellant could not afford to reprint the
   National Survey because purchasing additional paper would cost
   too much.  Tr. 78, 145-46.  Furthermore, she believed that
   reprinting might be so expensive, when compared to the minor
   costs associated with repairing the book, that the Contractor
   would be forced to close its doors.  In the alternative, it
   was suggested either by Harrison or Forte McDaniel, that
   perhaps the defect could be remedied by rebinding the book by
   tearing off the covers, trimming the spine, and then regluing
   it-a process which would slightly reduce the size of the
   publication.  Tr. 77-78, 127, 145-46, 90-92, 95.  Flood
   rejected that idea for three reasons: (a) the book was too
   small for that sort of repair; (b) retrimming would amount to
   changing the size specifications of the contract; and (c) such
   rebinding would have reduced the usefulness of the
   publication.  Tr. 95-97, 102, 105.  McDaniel also rebuffed
   this suggestion, adamantly insisting that stapling the books
   was the only cure method the Appellant could afford, and she
   would consider no other.  Tr. 91-92, 95.  Consequently,
   Harrison advised the Appellant to follow the Contracting
   Officer's instructions and reprint the National Survey, and
   then appeal its disagreement.21  Tr. 91.  According to
   Harrison, McDaniel responded by stating she would see her
   Congressman first.  Tr. 91.  The meeting ended without any
   resolution of the binding problem, and with the Respondent
   continuing to demand a reprint of the book, while the
   Contractor maintained it would only staple the publication.

   On April 12, 1989, the Contracting Officer telephoned McDaniel
   at the Appellant's office in Decatur, Georgia, and directed
   the Contractor to reprint the National Survey (R4 File, Tab
   L).  As she had during the meeting the previous day, McDaniel
   refused to reprint the book, insisting again that it would put
   the Contractor out of business (R4 File, Tab L).  Furthermore,
   by letter addressed to the Contracting Officer, dated April
   12, 1989, McDaniel confirmed the position she took on April
   11, 1989, repeating, in pertinent part:

      [At the meeting] . . . I offered several alternate plans in
      lieu of reprinting this job.

      Plan # 1

      Pick up books from Washington, D.C. office and side stitch
      on outside of cover.  this action would take approximately
      four (4) working days, after receipt in my plant, plus
      shipping time to return the books.

      Plan # 2

      Deduct 15% from the printing price, but not the
      reimbursable parcel post, of Government Bills of Lading.
      The amount to be reduced from cost of job would be
      $3,901.32.

      This job is an acceptably printed commercial job in all
      aspects.  The agency has, so called complained, the paper
      is not the proper weight.  (I shall send you a copy of the
      letter from the paper mill stating the paper to be 80# as
      specified, when I receive it.)22

      This job was perfect bound by the top book binder in
      Atlanta. . . . My secretary has called, at random, six Fish
      and Wildlife offices, in various states, and was told the
      books are fine and are being used.23

      . . . [The Appellant] cannot financially afford to reprint
      this job.  My cost on the first printing was approximately
      $29,200.00.  If we reprint, [the Appellant] must bear the
      cost of mailing and shipping.  With the cost of all
      material involved and money already invested from the first
      printing and second printing, shipping and mailing, my cost
      would be approximately $62,400.00.  My company cannot
      withstand such cost and stay in business. . . .  I contend
      the job was printed as stated in the specifications.  I
      will not reprint the job, because it is now being used by
      most of the departments to which it was sent. . . .

      Reiterating, [the Appellant] may have to file for
      bankruptcy if we are forced to reprint and ship the job.

R4 File, Tab L.  [Emphasis added.]

   Because of the Appellant's persistent refusal to reprint the
   National Survey, on April 13, 1989, the Contracting Officer
   wrote to GPO's Contract Review Board (CRB) for approval to
   terminate the contract for complete default (R4 File, Tab
   M).24  In his memorandum to the CRB, the Contracting Officer
   gave as his reason for the default request:

      The book was tested on the flextester and assessed a
      Critical Defect.  The cover and text stock also failed to
      meet specifications.

      [The Appellant] offered to correct the book with [s]taples,
      which was unacceptable to [Interior].  [Interior] insists
      upon a reprint.

      Per telephone conversation with [McDaniel] on April 12, she
      refused to reprint.  She was informed of possible default
      action.

R4 File, Tab M.  [Emphasis added.]  CRB concurrence was obtained
the following day, April 13, 1989 (R4 File, Tab M).

   On April 13, 1989, the Contracting Officer issued a Notice of
   Termination-Complete (Notice of Termination) to the Appellant
   informing it that the contract had been terminated for default
   because "of your refusal to correct the quality defects to
   meet the [requirements] of the specifications" (R4 File, Tab
   N).  The Notice of Termination also told the Contractor that
   the publication might be reprocured against its account, and
   that it would be held liable for any excess reprocurement
   costs (R4 File, Tab N).

   B. The Contract Reprocurement

   On April 18, 1989, after the contract was defaulted, the
   Respondent took steps to reprocure the job (R4 File, Tab P).25
   On April 25, 1989, Pensacola was awarded the contract at a
   price of $32,777.32 for the basic quantity of 10,017 copies,
   plus $63.29 for the 32 sample copies, for a total of
   $32,840.61 (R4 File, Tab Q).  Tr. 46.  Pensacola submitted the
   lowest bid on the reprocurement solicitation.26  Tr. 244.  The
   next day, the Respondent notified the Appellant that the
   excess reprocurement costs would be deducted from its account
   (R4 File, Tab O).27

   An examination of the reprocurement contract discloses that
   the specifications for the basic contract work-the production
   of a perfect-bound two (2) color publication, consisting of
   176 pages with a separate wraparound cover-was identical to
   the Appellant's contract (R4 File, Tab P, p. 1).  However,
   there is a marked contrast between Pensacola's book and the
   National Survey produced by the Appellant, one that is clearly
   visible to the naked eye.  Tr. 238.  Compare, App. Exh. No.
   17, with App. Exh. Nos. 20 and 22.  In that regard, the
   witnesses at the hearing who compared both publications,28
   agreed that: (a) the duotone colors were changed from
   predominantly brown to predominantly black for the repurchased
   book;29 (b) the reprocured cover had a glossy finish while the
   original one was dull; and (c) even the text paper appeared
   different.30  Tr. 43, 46-47, 80-82, 109-10, 228-29, 238-40.
   See, App. Exh. Nos. 17, 20 and 22.

   Moreover, apart from two expected minor housekeeping
   changes,31 a careful perusal and comparison of both contracts
   reveals, inter alia, the following changes and/or additions in
   the specified terms and conditions of the reprocurement
   contract:

      PROOFS:

   * * * * * * * * * *

      If any contractor's errors are serious enough in the
      opinion of the GPO to require revised proofs, the revised
      proofs are to be provided at no expense to the Government.
      No extra time can be allowed for this reproofing; such
      operations must be accomplished within the original
      production schedule allotted in the specifications.

      PRINTING:

   * * * * * * * * * *

      Press Sheet Inspection: Press sheets will be inspected at
      the contractor's plant for quality conformance.32

   * * * * * * * * * *

      QUALITY ASSURANCE LEVELS AND STANDARDS;

   * * * * * * * * * *

      Specified Standards: The specified standards for the
      attributes requiring them shall be:

         Attribute           Specified Standard

      P-7. Type Quality      O.K. Press Sheets
      and Uniformity
      P-8. Halftone Match    O.K. Press Sheets
      (Single and Double
      Impression)
      P-9. Solid and         O.K. Press Sheets
      Screen Tint Color
      Match

      Special Instructions: In the event that inspection of press
      sheets is waived by the Government, the following listed
      alternate standards (in order of precedence) shall become
      the Specified Standards:

      P-7. Camera copy, Government furnished negatives, average
      type dimension in publication.

      P-8. Camera copy, Government furnished negatives.

      P-9. Government furnished sample, color swatch, Pantone
      Matching System color, progressive proofs.

   * * * * * * * * * *

      SCHEDULE:

   * * * * * * * * * *

      Submit proofs as soon as the contractor deems necessary in
      order to comply with the shipping schedule.  Proofs must be
      submitted as complete sets.  Proofs will be withheld 7
      workdays from receipt in the GPO until they are made
      available for pickup by the contractor.

      The contractor must notify the GPO of the date and time
      press sheets will be available.  In order that proper
      arrangements can be made notification must be given at
      least 72 hours in advance of the time for inspection of the
      press sheets.  Notify the U.S. Government Printing Office,
      Contract Management Division, Quality Assurance Section
      (PPSQ), Washington, DC 20401, or telephone area code (202)
      275-3874.

      Ship 100 copies to [Interior] destination as indicated
      under distribution to arrive at destination on or before
      May 31, 1989.

      Ship complete on or before May 31, 1989.

See, R4 File, Tab P, pp. 2-5.33  In addition, Pensacola was not
required to produce a complete set of film negatives, as was the
Appellant (R4 File, Tab D; R4 File, Tab Q).

   It is undisputed that Pensacola successfully completed its
   contract and furnished copies of the National Survey which
   Interior found satisfactory and acceptable.  App. Exh. No. 17.

   II. ISSUES PRESENTED

   As indicated by the Board during the hearing (Tr. 44), this
   appeal presents two issues for its consideration:

      1. Did the Contracting Officer erroneously terminate the
      contract for default, thus converting the termination into
      one for the convenience of the Government, and if so, what
      is the amount of the Contractor's compensation for work
      performed?

      2. Even if the Contracting Officer's default action was
      justified, is the Appellant nonetheless excused from
      responsibility for the excess reprocurement costs?

   III. POSITIONS OF THE PARTIES34

   Although the Appellant insists that it printed the National
   Survey on the correct paper, it does not challenge the
   Respondent's conclusion that the perfect-binding of the
   publication it supplied to Interior was defective.  PCR, pp.
   7-8, 11; RSC, p. 4; Tr. 247-48, PCR, pp. 7-8, 11.  The
   Contractor argues, however, that the defect was relatively
   minor, and that the contract, in essence, was really
   terminated for the convenience of the Government.35  The
   Appellant advances three major contentions in support of its
   position: (1) the examination and approval of the 3 samples of
   the National Survey by Interior prior to distribution, amounts
   to acceptance of the product, thus waiving the Government's
   right to subsequently reject the books and terminate the
   contract for failure to follow specifications; (2) the
   Contractor substantially performed the terms of the contract
   and furnished a product which was useable, hence it was
   unreasonable for the Respondent to ask that the book be
   reprinted; and (3) the Appellant is excused from liability for
   excess reprocurement costs because GPO repurchased a
   materially different version of the National Survey.

   The Appellant's first argument relies heavily on its
   understanding of the meaning and import of Interior's desire,
   transmitted through Kinsley, to look at 3 trimmed and bound
   copies of the book before they were distributed.  App. Brf.,
   pp. 5-6; Tr. 247.  In the Contractor's view, once those 3
   samples had been reviewed and approved by Interior, and the
   Appellant was instructed to proceed,36 the Government waived
   any further right to reject the books and terminate the
   contract.37  App. Brf., pp. 6-8 (citing, Joseph Morton
   Company, Inc., ASBCA No. 19793, 78-1 BCA  13,173; Ray M. Lee
   Company, ASBCA No. 5103, 59-2 BCA  2,457); PCR, p. 8; RSC, p.
   4.

   Secondly, the Appellant claims that it substantially performed
   all the terms of the contract and furnished a useable product,
   thus termination should not be allowed in this case.  App.
   Brf., p. 8; Tr. 247-48.  Stated otherwise, the Contractor
   believes that the default was erroneous because there was a de
   facto acceptance of the product.  App. Brf., pp. 8-10 (citing,
   Wolfe Construction Company, ENGBCA Nos. 3610, 3608, 3607,
   3853, 4752, 3609, 3611, 84-3 BCA  17,701; Valley Asphalt
   Corporation, ASBCA No. 17595, 74-2 BCA  10,680; Bell & Flynn,
   Inc., ASBCA No. 11038, 66-2 BCA  5,855); PCR, pp. 7-8, 11;
   RSC, p. 4.  In that regard, the Appellant claims that the
   paper it used to print the National Survey fully met the
   contract specifications, and the binding defect was minor one
   which could have been corrected easily and inexpensively.
   PCR, p. 9-10; RSC, p. 4.  As the Contractor sees it, by
   rejecting its offer to staple the binding and insisting on a
   reprint instead, the Respondent unreasonably deprived the
   Appellant of an opportunity to cure the defect.  App. Brf.,
   pp. 9-10.  Since, the Appellant believes that it had produced
   a "totally acceptable commercial product", it contends that it
   is entitled to payment from the Government.38  PCR, pp. 8-10

   Finally, the Appellant contends that it cannot be held liable
   for excess reprocurement costs because the repurchase contract
   ordered a book which was materially different from the one it
   was asked to produce.  App. Brf., p. 11; Tr. 248.  The
   Contractor relies on the Respondent's own witnesses who
   testified during the hearing that the repurchase contract
   altered the duotone specifications, and also the finish of the
   cover paper for the reprocured National Survey was
   different.39  App. Brf., p. 11-12.  Tr. 253, 254.  Since these
   revised contract specifications were of a material nature, the
   Appellant argues that the law does not allow the Government to
   recover excess reprocurement costs.  App. Brf., pp. 12, 14
   (citing,  Theodore R. Korotie, AGBCA No. 86-245-1, 89-3 BCA 
   22,214; Luis Martinez, AGBCA Nos. 86-148-1, 86-270-1, 87-3 BCA
    20,219).  See also, Tr. 248-49.  Therefore, for these
   reasons, the Contractor asks the Board to reverse the
   Contracting Officer's default decision, direct the Respondent
   to pay the Appellant for the job, and refund the excess
   reprocurement costs assessed against its account.  App. Brf.,
   p. 15;  Complaint,  5, pp. 3-4.

   The Respondent, on the other hand, offers five (5) reasons to
   explain why the Contracting Officer was justified in
   terminating the Appellant's contract for default in this case.
   First, relying on the well-established principle which
   entitles the Government to strict compliance with its contract
   specifications, the Respondent argues that the Contractor's
   failure to deliver a conforming product was a legitimate
   reason for the Contracting Officer's decision to reject the
   books and order a reprint.  R. Brf., pp. 5-7 (citing, Cascade
   Pacific International v. United States, 773 F.2d 287 (Fed.
   Cir. 1985); American Electric Contracting Corporation v.
   United States, 579 F.2d 602 (Ct.Cl. 1978); Dependable
   Printing, Inc., GPO BCA 5-84 (September 12, 1985)).  "Strict
   compliance" means that the Government has a right to get
   exactly what it asked for in the specifications.  R. Brf., p.
   5 (citing, Rohr Industries, Inc., ENGBCA No. 4058, 82-1 BCA 
   15,732.  Here, the contract's binding specifications required
   the production of a "perfect-bound" book-a softcover
   publication where the backs of the signature pages are sawed
   off and glued onto the cover stock.  R. Brf., p. 6.  However,
   the perfect-binding on the Appellant's books were defective,
   because the pages popped away from the adhesive surface.
   Since the Appellant's binding work failed to meet contract
   specifications, the Contracting Officer had grounds to reject
   the books and order a reprint.  R. Brf., p. 7.  According to
   the Respondent, the Government is not obliged to accept
   nonconforming supplies, and only the Contracting Officer is
   authorized to decide whether a product conforms with the
   specifications.  Id. (citing, Famous Model Company, ASBCA No.
   12526, 68-1 BCA  6,902; Dependable Printing, Inc., supra, Sl.
   op. at 24.

   Second, the Respondent contends that the Appellant's offer to
   either fix the binding defect by stapling, or to accept a
   discount, was totally inadequate.  R. Brf., pp. 7-8.  GPO
   notes that under the so-called "substantial compliance"
   doctrine, a contractor has a reasonable period of time to cure
   minor defects and deliver goods which substantially conform to
   the contract specifications.  R. Brf., p. 8 (citing, Radiation
   Technology, Inc. v. United States, 177 Ct.Cl. 227, 366 F.2d
   1003, 1006 (1966)).  In this case, stapling the book, as
   suggested by the Appellant, would have, in effect, substituted
   one nonconforming binding for another; i.e., stapling is not
   "perfect-binding," as that term is understood in the industry.
   Id.  Similarly, the Appellant's discount offer was nothing
   more than an inducement to accept nonconforming work.  Id.
Consequently, the Respondent believes that in order to procure a
conforming book, the only option available to the Contracting
Officer under these circumstances was to ask for a reprint of the
National Survey.  R. Brf., p. 9 (citing, Cherry Meat Packers,
Inc., ASBCA No. 8974, 1963 BCA  3937, for the proposition that
the Government cannot be forced to accept defective products at a
reduced price).

   Third, GPO claims that the Appellant's refusal to reprint the
   National Survey, as directed by the Contracting Officer,
   constitutes a legitimate reason for default, in and of itself.
   Id.  According to the Respondent, the law requires the
   contractor to continue to follow the Contracting Officer's
   instructions regarding performance while a dispute is pending,
   and to seek relief in the form of an equitable adjustment to
   the contract.  Id. (citing, Brenner Metal Products
   Corporation, ASBCA No. 25294, 82-1 BCA  15,462; Eriez
   Construction, Inc., VACAB No. 1273, 78-2 BCA  13,547).  The
   "Disputes" clause in GPO Contract Terms, applies this same
   principle to GPO contracts such as the Appellant's.  Id.  GPO
   Contract Terms, Contract Clauses,  5(d).  Since there is
   nothing to indicate that the Contracting Officer's reprint
   request was improper or impossible to comply with, the
   Contractor's failure to follow his instructions warranted
   default of the contract.  Id. (citing, The American Press,
   Inc., GPOCAB No. 17-84 (January 4, 1991).40

   Fourth, the Respondent argues that the Interior's review of
   the 3 sample copies of the National Survey prior to delivery,
   did not constitute acceptance of the book by the Contracting
   Officer.  R. Brf., p. 10.  GPO contends that under settled
   principles, only the designated contracting officer is
   empowered to accept or reject performance.  R. Brf., p. 11
   (citing, Trevco Engineering & Bales, VACAB No. 1021, 73-2 BCA
    10,096; Wolverene Diesel Power Company, ASBCA No. 5079, 59-2
   BCA  2,327).  Under the terms of the contract, the Government
   was entitled to inspect and test the books before acceptance.
   Id. (citing, GPO Contract Terms, Contract Clauses,  14(c).
   Once GPO was alerted to the problem with the National Survey
   by Interior's complaint on March 27, 1989, after the books
   were delivered, it acted quickly to ascertain the scope of the
   defects and have the Appellant correct them.  Id.  Nothing in
   the Respondent's behavior after March 27, 1989, can be
   construed as acceptance of the shipment; indeed, the
   Contractor was expressly told that the shipment was being
   rejected.  Id.  In any event, Interior's inspection of the 3
   prior to delivery samples could not, legally, estop GPO from
   rejecting the rest of the shipment.  R. Brf., pp. 11-12
   (citing, Dee-Lite Industries, Inc., GSBCA No. 3088, 71-1 BCA 
   8,788, affirmed on hearing, 72-1 BCA  9,258; 44 Comp. Gen.
   341).  This is particularly true where the shipment contains
   latent defects.  R. Brf., p. 12 (citing, Kaminer Construction
   Corporation v. United States, 488 F.2d 980 (Ct.Cl. 1973);
   Castle Construction Company, ASBCA No. 28401, 84-1 BCA 
   17,041 (1983); W.L. Spruill & Company, ASBCA No. 14390, 71-2
   BCA  8,930).

   Finally, GPO believes that it was appropriate to assess excess
   reprocurement costs against the Appellant in this case.  Id.
The Respondent argues that in order to be excused from this
liability, the Contractor had to show that Pensacola's version of
the National Survey was materially different from the book it was
asked to produce.  Id.  However, a comparison of the two books
warrants the conclusion that they are more similar than
different.  R. Brf., pp. 12-13 (citing, Environmental Techtonics
Corporation, ASBCA No. 21204, 78-1 BCA  12,986; Marmac
Industries, Inc., ASBCA No. 12158, 72-1  9,249).  In that
regard, the Respondent observes that the paper stock
specification in both the original and reprocurement contracts
were exactly the same, and that unlike Pensacola, the Appellant
failed to use the required paper.  R. Brf., p. 13.  The
Respondent admits that for the repurchase of the National Survey,
Interior decided to have the books printed in the original
duotone scheme, not as modified for the Appellant's contract, but
it argues that this slight change does not make Pensacola's book
"materially different."  R. Brf., pp. 13-14 (citing, Guenther
Systems, Inc., ASBCA No. 16238, 73-1 BCA  9,868; Max M.
Goldhaber, ASBCA No. 8277, 65-2 BCA  5,083).  These "minor"
differences between the duotones do not change in the "concept or
fundamental operation" of the procurement.  R. Brf., p. 14
(citing, Max M. Goldhaber, supra, 65-2 BCA  5,083, at 23,955).
Thus, the two books are "similar" within the meaning of the law,
and the Appellant is liable for the reprocurement costs.
Accordingly, for all of these reasons, GPO urges the Board to
affirm the decision of the Contracting Officer.  R. Brf., p. 15.

   IV. CONCLUSIONS41

   The factual simplicity of this case cannot disguise its
   significance for the jurisprudence of the Board.  In no other
   dispute heretofore considered by the Board, have the two
   issues involved in this appeal been raised so clearly and so
   precisely.  First, this case squarely and starkly raises the
   question not reached in Shepard I; i.e., did the Contractor's
   refusal to reprint the order under the circumstances described
   amount to an abandonment or anticipatory repudiation of the
   contract?42  Second, this appeal provides the Board with an
   opportunity to set forth the standards which it will apply in
   determining challenges to a Contracting Officer's assessment
   of excess reprocurement costs when items covered by a
   defaulted contract are repurchased by the Government.
   Accordingly, the Board makes the following findings and
   conclusions of law.

      A. The Appellant, both orally and in writing, evinced its
      intention to abandon or repudiate the contract.  Therefore,
      regardless of the merits of the dispute, the Contracting
      Officer's decision to terminate the contract for default
      was justified and not in error.

   It is axiomatic that a default termination is a drastic action
   which may only be taken for good cause and on the basis of
   solid evidence.43  See, Hurt's Printing Company, Inc., supra,
   Sl. op. at 13-14; Shepard I, supra, Sl. Op. at 10; R.C.
   Swanson Printing and Typesetting Company, GPO BCA 31-90
   (February 6, 1992), Sl. op. at 25, aff'd, Richard C. Swanson,
   T/A R.C. Swanson Printing and Typesetting Company, No. 92-128C
   (U.S. Claims Court, October 2, 1992);44 Stephenson, Inc.,
   supra, Sl. op. at 20 (citing, Mary Rogers Manley d/b/a Mary
   Rogers Real Estate, HUDBCA No. 76-27, 78-2 BCA  13,519;
   Decatur Realty Sales, HUDBCA No. 75-26, 77-2 BCA  12,567).
   The burden of proving the basis for the default is on the
   Government.  See, Lisbon Contractors v. United States, 828
   F.2d 759 (Fed. Cir. 1987); Chavis and Chavis Printing, supra,
   Sl. op. at 11 (and cases cited therein); Shepard Printing,
   supra, Sl. Op. at 11; R.C. Swanson Printing and Typesetting
   Company, supra, Sl. op. at 28.  The contractor has the burden
   of proving excusability.45  Switlik Parachute Company v.
   United States, 216 Ct.Cl. 362 (1978); Davis v. United States,
   180 Ct.Cl. 20 (1967); J.F. Whalen and Company, AGBCA Nos.
   83-160-1, 83-281-1, 88-3 BCA  21,066; B. M. Harrison
   Electrosonics, Inc., ASBCA No. 7684, 1963 BCA  3,736; Hy-Cal
   Engineering Corporation, NASA BCA Nos. 871-18 and 772-7, 75-2
   BCA  11,399; Chavis and Chavis Printing, supra, Sl. op. at
   11-12 (and cases cited therein); Shepard I, supra, Sl. Op. at
   11; R.C. Swanson Printing and Typesetting Company, supra, Sl.
   op. at 28.  If the Government fails to meet its burden of
   proof, then the termination is converted into one of
   convenience and the contractor can be paid for the work
   performed.  See, GPO Contract Terms, Contract Clauses, 
   20(g).  Cf., Shepard I, supra, Sl. Op. at 11; Stephenson,
   Inc., supra, Sl. op. at 17-18; Chavis and Chavis Printing,
   supra, Sl. op. at 9.

   In this case, the Contracting Officer based his decision to
   terminate the Appellant's contract for default on the
   Contractor's "refusal to correct the quality defects to meet
   the [requirements] of the specifications" (R4 File, Tab N).
   Stated otherwise, the contract was defaulted because the
   Appellant refused to produce a perfect-bound National Survey
   by reprinting it; i.e., while the Contractor's offer to staple
   the book might have cured the binding defect, that method of
   correction was something less than the perfect-binding called
   for in the contract (R4 File, Tab M).  Apart from its belief
   that Interior's review and approval of the 3 advance copies of
   the book prior to distribution estops the Government from
   rejecting the complete order,46 the Appellant's main defense
   to the merits of the default, in effect, is that the National
   Survey it produced "substantially conformed" to the
   specifications and other terms and conditions of the
   contract.47  Indeed, most of the time at the hearing was spent
   litigating whether the so-called "substantial compliance"
   issue applied to the circumstances of this case.48  However,
   in deciding if the Contracting Officer's default termination
   was justified, the Board does not have to reach that question.
   Regardless of the merits on the "substantial compliance"
   issue, the Appellant's obstinate refusal to reprint the
   National Survey at the direction of the Contracting Officer is
   fatal to its appeal, and is ground enough to sustain the
   default.  See, A. N. Xepapas, AIA, VABCA No. 3087, 91-2 BCA 
   23,799, at 119,178 ("The merits of the controversy has no
   effect on the requirement that a contractor continue
   performance during the pendency of the dispute."  Citing,
   Detroit Designing & Engineering Company, ASBCA No. 8807, 1964
   BCA  4,214).

   The Board takes its authority from the "Disputes" clause of
   the contract.  R.C. Swanson Printing and Typesetting Company,
   GPO BCA 15-90 (March 6, 1992), Sl. op. at 27-28, 41; The
   Wessel Company, Inc., GPO BCA 08-90 (February 28, 1992), Sl.
   op. at 32-35, 46.  See, GPO Contract Terms, Contract Clauses,
    5.  Among other things, the "Disputes" clause expressly
   provides:

      Pending final decision of a dispute hereunder, the
      contractor shall proceed diligently with performance and in
      accordance with the Contracting Officer's decision."

GPO Contract Terms, Contract Clauses,  5(d).  Although the
language varies slightly, this is the same policy applied to
Executive branch contracts by the "Disputes" clause in the
Federal Acquisition Regulation (FAR).  See, FAR  52.233-1(h).49

   In order to sustain a termination for default based upon the
   above provision of the "Disputes" clause two things are
   required: (1) a clear direction by the contracting officer;
   and (2) a refusal by the contractor to proceed with
   performance.  See, Ascani Construction & Realty Company, VABCA
   Nos. 1572, 1584, 83-2 BCA  16,635.  See also, Max M.
   Stoeckert v. United States, 183 Ct.Cl. 152, 391 F.2d 639
   (1968); James W. Sprayberry Construction, IBCA No. 2130, 87-1
   BCA  19,645; G.W. Galloway Company, ASBCA No. 17436, 77-2 BCA
    12,640; Pacific Devices, Inc., ASBCA No. 19379, 76-2 BCA 
   12,179.  Where such clear and unmistakable instructions
   regarding performance are given by the contracting officer,
   and the contractor nonetheless refuses to comply, a default
   termination will be upheld on the theory that the contractor
   anticipatorily repudiated or abandoned the contract.50  See,
   e.g., Altina Trucking, PSBCA No. 3341, 93-3 BCA  26,256;
   Twigg Corporation, NASA BCA No. 62-0192, 93-1 BCA  25,318; F
   & D Construction Company, Inc., ASBCA No. 41441, 91-2 BCA 
   23,983; A. N. Xepapas, AIA, supra, 91-2 BCA  23,799; Holt
   Roofing Company, Inc., GSBCA No. 8270, 91-1 BCA  23,361; Kirk
   Casavan, AGBCA No. 76-192, 78-2 BCA  13,459.  As the Veterans
   Administration Board of Contract Appeals explained when it
   affirmed a contracting officer's default termination decision
   on anticipatory repudiation grounds:

      [T]he existence of a dispute regarding contract
      specifications does not excuse a refusal to perform.
      Charles Bainbridge, Inc., ASBCA Nos. 15843, 16204, 72-1 BCA
       9,351.  The fact that the parties are involved in a
      contract dispute does not justify abandonment of the
      contract.  Nasco Products Company, VACAB Nos. 974, 1000,
      72-2 BCA  9,556.

      . . . After the Contracting Officer gives his
      interpretation of the disputed provision of the contract,
      the Contractor must perform as directed.  If he believes
      the interpretation to be erroneous, he may appeal.  To the
      extent that the Contracting Officer's instructions
      constitute a change in the specifications or performance of
      work not required by the contract, the Contractor would be
      entitled to an equitable adjustment in the amount due
      and/or in the time required for performance.  Charles
      Wiggins d/b/a Wiggins Construction, ASBCA Nos. 4022, 4613,
      58-1 BCA  1,644.  But he may not stop work pending final
      decision on any claim for equitable adjustment.  M. Rudolph
      Preuss v. U.S., 188 Ct.Cl. 469 (1969).

A. N. Xepapas, AIA, supra, 91-2 BCA  23,799, at 119,178-79
(quoting, Eriez Construction, Inc., supra, 78-2 BCA  13,547 at
66,363).  See also, Computer Engineering Associates, VABCA No.
1596, 84-2  17,246.

   To support a default termination on the basis of anticipatory
   repudiation by the contractor, the trier of fact must find:

      a "positive, definite, unconditional, and unequivocal
      manifestation of intent . . .  on the part of the
      contractor . . . not to render the promised performance . .
      . "

United States v. DeKonty Corporation, 922 F.2d 826, 828 (Fed.
Cir. 1991) (citing, Cascade Pacific International v. United
States, supra, 773 F.2d at 293).  See also, James B. Beard, D.O.,
supra, 93-3 BCA  25,976, at 129,171; Altina Trucking, supra,
93-3 BCA  26,256, at 130,590-91.  The Government has the burden
of proving that the contractor communicated an intent not to
perform in a positive, definite, unconditional and unequivocal
manner.  James B. Beard, D.O., supra, 93-3 BCA  25,976, at
129,171 (citing, United States v. DeKonty Corporation, 922 F.2d
826).  See also, Sealtite Corporation, GSBCA Nos. 7458, 7633,
88-3 BCA  21,084, at 106,452.  That burden is usually met by
showing: (1) a definite and unequivocal statement by the
contractor that he/she refused to perform; or (2) actions which
constitute actual abandonment of performance.  See, Holt Roofing
Company, Inc., supra, 91-1 BCA  23,361 (a contractor
unequivocally repudiated a construction contract when its
principal arrived on the jobsite, ordered the subcontractor to
stop work, and stated he hoped that the Government would
terminate the contract so that he could resume a normal life).
See also, Professional Building Services and Maintenance, ASBCA
No. 42480, 91-3 BCA  24,360.  The contractor, on the other hand,
has the burden of proving that its abandonment was excusable
within the meaning of the "Default" clause or was caused by the
Government's material breach of the contract.  F & D Construction
Company, Inc. and D&D Management, Consulting and Construction
Company, Inc., ASBCA Nos. 41441-44, 91-2 BCA  23,983).  In that
regard, a contractor's poor financial condition or economic
distress will not excuse a default.  Holt Roofing Company, Inc.,
supra, 91-1 BCA  23,361, at 117,174.

   Although Twigg Corporation, supra, arose in the context of a
   construction not a supply contract, as here, the facts are
   analogous.  In that case, the contractor received a contract
   from the National Aeronautics and Space Administration (NASA)
   for the construction of two-level concrete mezzanine in a
   building at the Goddard Space Flight Center.  Within 10 months
   NASA observed substantial cracking in the concrete on one of
   the levels.  When NASA conducted tests on the material it
   discovered that the concrete did not meet the specified
   strength of 3,000 psi.  As a consequence, the agency rejected
   the work as nonconforming and directed the contractor to
   replace, or otherwise correct, the two levels of concrete
   without charge to the Government.  After several months of
   letters and meetings, during which time the contractor
   maintained that the concrete cracking was due to a defective
   design, the parties were unable to agree on a replacement
   plan.  NASA wanted the contractor to replace both mezzanine
   levels, while the contractor said it would only replace the
   single slab of defective concrete.  Finally, in response to
   written directions from NASA instructing the replacement of
   both mezzanine levels, the contractor wrote back, saying, in
   pertinent part:

      We will remove any and all defective concrete work with the
      mezzanine slabs . . . We have tested and submitted to you
      the results of these tests to the top slab.  These tests
      show that this top slab is not defective and will not be
      removed. . . . We will remove all defective material but
      that is all. . . . We are waiting to hear when we may start
      this repair.



Twigg Corporation, supra, 93-1 BCA  25,318, at 126,156.
[Emphasis added.]  Because of the contractor's written refusal to
correct the job as directed, NASA terminated the contract for
default.

   In upholding NASA's default termination decision, the agency
   appeals board reasoned, in pertinent part:

      When there is a positive, definite, unconditional, and
      unequivocal manifestation of intent not to perform, by
      words or conduct, the Contracting Officer may terminate the
      contract for default on the ground of anticipatory
      repudiation.  [Citation omitted.]  Appellant's words in its
      letter were that it would not replace the top slab because
      it had tested the top slab and did not find it defective.
      An anticipatory repudiation must be clear and absolute.
      [Citations omitted.] Appellant argues that . . .  the words
      of its letter referring to a removal of "all defective
      concrete work with the mezzanine slabs" were not a
      repudiation of the Contract.  We disagree.  Appellant's
      statements were clear that it would not replace work that
      it did not consider defective, and that it did not consider
      the top slab defective.  We find nothing in the record that
      reveals a contrary intention.

   * * * * * * * * * *

      A contractor's failure to proceed as directed pending
      resolution of its dispute with the Government has been
      equated with anticipatory breach of the contract by
      repudiation that gives the Government the right to
      summarily terminate the contract for default.  [Citations
      omitted.]  In this case, we consider it significant that
      Appellant failed to comply with the Government's directives
      for replacement work for over seven months while it claimed
      that the concrete cracking was due to a defective design.
      Appellant does not assert, and we cannot infer, that the
      Contractor was proceeding diligently with performance of
      the Contract and compliance with directives of the
      Contracting Officer as the Disputes Clauses requires.  We
      have concluded that Respondent has established on the
      record evidence an anticipatory repudiation that was ground
      for the default termination.

Twigg Corporation, supra, 93-1 BCA  25,318, at 126,157-58.
[Emphasis added.]

   As was the case in Twigg Corporation, the Board believes that
   the facts here amply support a finding that the Appellant
   repudiated its contract with the Government.  In the Board's
   view, the Contractor's refusal to follow the Contracting
   Officer's explicit directions to reprint the National Survey
   was "positive, definite, unconditional, and unequivocal" and
   manifested an "intent not to perform" the contract.  United
   States v. DeKonty Corporation, supra, 922 F.2d at 828; James
   B. Beard, D.O., supra, 93-3 BCA  25,976, at 129,171; Altina
   Trucking, supra, 93-3 BCA  26,256, at 130,590-91; Twigg
   Corporation, supra, 93-1 BCA  25,318, at 126,157.  Not only
   did McDaniel orally refuse the Contracting Officer's numerous
   reprint requests, but her letter of April 12, 1989, is
   particularly damaging to the Appellant's case.  In words which
   were incapable of being misunderstood, McDaniel's made it very
   clear that the Appellant would not reprint the National
   Survey, as directed, because: (1) the book was being used by
   he departments which received it; (2) the job was printed in
   accordance with the contract specifications; and (3) the
   financial cost of reprinting would be too steep and might
   force the Contractor into bankruptcy (R4 File, Tab L).
   Indeed, McDaniel's remark that "it maybe cheaper for [the
   Contracting Officer] to default her" (R4 File, Tab K), is also
   indicative of the Contractor's "positive, definite,
   unconditional, and unequivocal" opposition to the very idea of
   reprinting the book in this case.  Cf., Holt Roofing Company,
   Inc., supra, 91-1 BCA  23,361, at 117,173.  Furthermore, the
   Board is constrained to observe that one of principal reasons
   given by the Appellant for not reprinting the books, namely,
   that it would cost too much (R4 File, Tabs K and L), is not a
   ground for refusing to proceed.  Id., at 117,174 ("A
   contractor's poor financial condition does not excuse a
   default.").
When the record is considered as a whole, the Appellant's oral
and written statements evince a clear intent not to reprint the
National Survey for the reasons given.  There is nothing to show
that the Contractor ever considered modifying that position once
it was taken.  Consequently, on the basis of this record, the
Board has no trouble in concluding that the Contractor clearly
and absolutely repudiated the contract.  Twigg Corporation,
supra, 93-1 BCA  25,318, at 126,157 (citing, West States
Management Services, Inc., ASBCA Nos. 40212, 41438, 92-1 BCA 
24,714; National Union Fire Insurance Company, ASBCA No. 34744,
90-1 BCA  22,266, aff'd, 907 F.2d 157 (Fed. Cir. 1990); Therm-
Air Manufacturing Company, Inc., NASA BCA Nos. 180-2, 1280-21,
82-2 BCA  15,881).

   Finally, an anticipatory repudiation also occurs when a
   contractor fails to proceed as directed pending resolution of
   its dispute with the Government.51  Twigg Corporation, supra,
   93-1 BCA  25,318, at 126,157.  See also, A. N. Xepapas, AIA,
   supra, 91-2 BCA  23,799, at 119,179.  The record shows that
   the Appellant steadfastly offered to correct the binding
   defect by stapling the copies of the National Survey.
   However, there is nothing in the record to indicate any
   willingness on the part of the Appellant to comply with the
   Contracting Officer's directives to reprint the book; instead,
   all the evidence is to the contrary.  Indeed, it is
   significant that once the Appellant's offer to staple the
   books was rejected and the Respondent's representatives
   clearly explained the proper procedure to follow in this
   dispute-i.e., reprint the National Survey, and then file a
   claim for the extra work, which, if denied, could be appealed
   to the Board-the Appellant ignored that advice.  This Board,
   as well as the ad hoc appeals panels which preceded it, have
   held on numerous occasions that under the GPO "Disputes"
   clause, a contractor is obligated to follow the contracting
   officer's directives regardless of the merits of the
   controversy.  See, e.g., International Lithographing, GPO BCA
   1-88 (December 29, 1989); Colorgraphics Corporation, GPO BCA
   16-87 (March 31, 1989); Custom Printing Company, GPO BCA 10-87
   (May 10, 1988).  See also, e.g., Knepper Press, GPOCAB Nos.
   2-84 and 3-84 (October 2, 1984); Business Forms Service, Inc.,
   GPOCAB 9-81 (October 20, 1981); Merchant Service Company, GPO
   Contract Nos. 373 and 374 [No GPOCAB Docket Number] (February
   11, 1980).  In such cases, a contractor who then prevails on
   the merits, would be:

      . . . entitled to the full contract price for the reprint,
      assuming its acceptance, and an equitably adjusted
      discounted price for the quantity of publications used by
      the Government from the first printing.

International Lithographing, supra, Sl. op. at 25.  Accordingly,
the Board finds and concludes that the record establishes that
the Appellant repudiated is obligations under the contract.
Therefore, the Contracting Officer was warranted in terminating
the contract because of the Appellant's default.52

      B. While the Respondent has shown that it was justified in
      terminating the Appellant's contract for default, it has
      not sustained its burden of proof with regard to excess
      reprocurement costs.



   In most previous cases considered by the Board and the ad hoc
   appeals panels, the default termination decision also disposed
   of the issue concerning excess reprocurement costs.  See,
   e.g., Hurt's Printing Company, Inc., supra, Sl. op. at 30;
   Graphics Image, Inc., GPO BCA 13-92 (August 31, 1992), Sl. op.
   at 28; Tamms Lithography, Inc., GPO BCA 14-89 (July 13, 1990).
   Sl. op. at 9; Valley Printing Service, GPO BCA 3-84 (June 6,
   1985), Sl. op. at 12; Vogard Printing Corporation, GPOCAB 7-84
   (January 7, 1986), Sl. op. at 7; Knepper Press, supra, Sl. op.
   at 4; Technical Publishing Services, Inc., GPO CAB 1-81
   (January 20, 1982), Sl. op. at 6.  A review of these prior
   decisions indicates that the contractor usually only appealed
   the underlying reasons for the default termination, and the
   excess reprocurement cost issue was subsumed in the overall
   arguments on the merits of the default.53  But see, e.g.,
   Himark Printing Company, GPOCAB No. 1-84 (March 16, 1984);
   Nekoosa Press, Inc., Program 538-S, Jacket No. 311-450 [No
   GPOCAB Docket Number] (January 5, 1981) (litigation of excess
   reprocurement cost issue only).  In Custom Printing Company, a
   GPO ad hoc panel dismissed a contracting officer's objection
   to the panel's consideration of the excess cost issue because
   the defaulting contractor had not sought a separate final
   decision on the assessment, explaining:

      We believe that this fact situation falls in line with that
      of Conncor, Inc., GSBCA No. 4654, 77-1 BCA  12,225.  There
      the appellant unsuccessfully appealed the default
      termination, and it had not timely filed a subsequent
      appeal to the assessment of excess costs.  Disregarding
      this, the Board concluded that the subject was properly
      before it for adjudication.  Also see, El-Tronics, Inc.,
      ASBCA No. 5457, 61-1 BCA  2,961 (1961); Si-Lite, Inc.,
      GSBCA No. 2,442, 68-1 BCA  7,032.  In accord with this
      line of so-called reverse "Fulford doctrine" cases, see,
      Fulford Manufacturing Company, ASBCA Nos. 2143, 2144, 6 CCF
       61,815 (1955), Pantronics, Inc., ASBCA No. 20982, 78-2
      BCA  13,285, at p. 64,984 (appeal of excess costs
      assessment "opens-up" questions of validity of default
      termination), we hold that the matter of excess costs has
      also been appealed here and is properly before us for
      decision of the propriety of the assessment.

See, Custom Printing Company, GPOCAB 2-79 (December 19, 1979),
Sl. op. at 14.54  Thus, the usual practice when a defaulted
contractor appeals from the termination decision is for the Board
to look at the excess reprocurement cost issue as well, provided
that question is ripe for consideration; i.e, such costs have
been assessed.55  This case represents one of the few times in
the combined history of the Board and the ad hoc appeals panels,
in which the parties have spent a substantial amount of time
addressing the excess reprocurement cost issue, both during
litigation and in their post-hearing briefs.  See, e.g., Timsco,
Inc., GPOCAB 78-10 (July 24, 1979).  Accordingly, the Board
believes that it is appropriate, in the context of this appeal,
to set forth in detail the criteria which it will apply in
determining challenges to a contracting officer's assessment of
excess costs.

   At the outset, it must be mentioned that the authority vested
   in GPO's contracting officers to levy excess reprocurement
   costs is rooted in contract, not in statute.  In that regard,
   the standard "Default" clause in GPO contracts provides, in
   pertinent part:

      If the Government terminates in whole or in part, it may
      acquire, under the terms and in the manner the Contracting
      Officer considers appropriate, supplies or services similar
      to those terminated, and the contractor will be liable to
      the Government for any excess costs for those supplies or
      services. . . .

GPO Contract Terms, Contract Clauses,  20(b).56  Furthermore, in
exercising their repurchase authority, GPO contracting officers
are instructed that:

      Where the supplies or services are still required after
      termination and the contractor is liable for excess costs,
      repurchase of supplies or services which are similar to
      those called for in the contract shall be made against the
      contractor's account as soon as possible after termination.
      The repurchase shall be made at a price reasonable as can
      be obtained considering the quality required and the time
      within which the supplies or services are required.

PPR, Chap. XIV, Sec. 1,  3.f.(1).  [Emphasis added.]

   By its terms, the "Default" clause excuses defaulting
   contractors from liability for excess reprocurement costs if
   they or their subcontractors failed to perform because of
   events beyond their control and without their fault or
   negligence.  GPO Contract Terms, Contract Clauses, 
   20(c),(d).  See, e.g., Printing Unlimited, GPO BCA 21-90
   (November 30, 1993), Sl. op. at 16; B. P. Printing and Office
   Supplies, GPO BCA 22-91 (February 5, 1993), Sl. op. at 10;
   R.C. Swanson Printing and Typesetting Company, Sl. op. at 27,
   fn. 16; Chavis and Chavis Printing, supra, Sl. op. at 11;
   Vogard Printing Corporation, supra, Sl. op. at 7-8.  However,
   as implied in the above-quoted paragraph of the PPR, a
   contractor will also be protected from the assessment of
   excess reprocurement costs if the Government fails to meet its
   responsibilities in cases of default.  Whether the
   Government's repurchase was improper, and if so, what is the
   amount of reasonable excess costs under the circumstances, are
   questions of fact.  Cable Systems and Assembly Company, ASBCA
   No. 17844, 73-2 BCA  10,172 at 47,892.

   The assessment of excess reprocurement costs is considered a
   Government claim.57  See, John L. Hartsoe, AGBCA No. 88-116-1,
   93-2 BCA  25,614, at 127,501; B & M Construction, Inc., AGBCA
   No. 90-165-1,93-1 BCA  25,431, at 126,667; William A. Hulett,
   AGBCA Nos. 91-230-3, 92-133-3, 92-196-3, 93-1 BCA  25,389, at
   126,460;   Theodore R. Korotie, supra, 89-3 BCA  22,214, at
   111,728.  See also, ATC Decal Company, GPOCAB 3-81 (July 14,
   1981), Sl. op. at 8.  Consequently, the Government has the
   burden of demonstrating the propriety of the repurchase and
   proving its entitlement to the amount of excess costs it
   claims.  See, John L. Hartsoe, supra,  93-2 BCA  25,614, at
   127,501 (citing, Jesse W. Wayne, AGBCA No. 410, 75-2 BCA 
   11,394); William A. Hulett, supra, 93-1 BCA  25,389, at
   126,460; Rhocon Constructors, AGBCA No. 86-125-1, 91-1 BCA 
   23,308, at 116,894; The Flooring Company, GSBCA No. 8297, 89-3
   BCA  22,167, at 111,548 (citing, Mattatuck Manufacturing
   Company, GSBCA No. 4847, 80-1 BCA  14,349); Ace
   Reforestation, Inc., AGBCA No. 84-272-1, 83-2 BCA  20,218, at
   102,400 (citing, Elton E. Widdifield, et al., AGBCA No.
   81-115-1 A-B, 83-2 BCA  16,639).  As voiced by the Federal
   Circuit, the rule which is applied when the Government seeks
   recovery of excess reprocurement costs is that they:

      . . . may be imposed only when the Government meets its
      burden of persuasion that the following conditions (factual
      determinations) are met: (1) the reprocured supplies are
      the same as or similar to those involved in the
      termination; (2) the Government actually incurred excess
      costs; and (3) the Government acted reasonably to minimize
      the excess costs resulting from the default.  [Citations
      omitted.]  The first condition is demonstrated by comparing
      the item reprocured with the item specified in the original
      contract.  [Citation omitted.]  The second condition
      requires the Government to show what it spent in
      reprocurement.  [Citation omitted.]  The third condition
      requires that the Government act with a reasonable time of
      the default, use the most efficient method of
      reprocurement, obtain a reasonable price, and mitigate its
      losses. [Citation omitted.]  [Emphasis added.]

Cascade Pacific International v. United States, supra, 773 F.2d
at 293-94.58  See also, Puroflow Corporation, ASBCA No. 36058,
93-3 BCA  26,191, at 130,392 (citing, AAR Allen Aircraft
Corporation, ASBCA No. 32702, 88-2 BCA  20, 581); B & M
Construction, Inc., supra, 93-1 BCA  25,431, at 126,667-68;
Interstate Forestry, Inc., AGBCA No. 89-114-1, 91-1 BCA  23,660.
Subsequent contract appeals litigation has refined this test so
that it now has five basic elements; i.e., the Government bears
the burden of proving that: (1) the reprocurement contract was
performed under substantially the same terms and conditions as
the original contract; (2) it acted within a reasonable time
following default to repurchase the supplies; (3) it employed a
reprocurement method which would maximize competition under the
circumstances; (4) it obtained the lowest reasonable price; and
(5) the work has been completed and final payment made so that
the excess costs assessment is based upon liability for a sum
certain.  See, e.g, B & M Construction, Inc., supra, 93-1 BCA 
25,431, at 126,667-68 (citing, Cascade Pacific International v.
United States, supra, 773 F.2d at 293); William A. Hulett, supra,
93-1 BCA  25,389, at 126,459 (citing, Delphi Industries, Inc.,
AGBCA No. 76-160-4 A & B, 84-1 BCA  17,053); Zan Machine
Company, supra, 91-3 BCA  24,085, at 120,542 (citing, Birken
Manufacturing Company, ASBCA No. 32590, 90-2 BCA  22,845, at
114,716); Mid-America Painters, Inc., ENG BCA No. 5703, 91-1 BCA
 23,367, at 117,232-33 (citing, Birken Manufacturing Company,
supra); Theodore R. Korotie, supra, 89-3 BCA  22,214, at 111,728
(citing, John T. Penrod, AGBCA No. 79-169-4, 80-2 BCA  14,789);
Sequal, Inc., ASBCA No. 30838, 88-1 BCA  20,382, at 103,067
(citing, Match Maker Textiles, Inc., ASBCA No. 22382 and 23414,
80-1 BCA  14,335); Boston Pneumatics, Inc., ASBCA Nos., 26188,
26190, 26825, 26984, 27605, 27606, 87-1 BCA  19,395, at 98,084.
Furthermore, it is also well established that the Government
claim must be supported by evidence in the record as to each
element of the claim.  Rhocon Constructors, supra, 91-1 BCA 
23,308, at 116,894 (citing, Delphi Industries, Inc., supra).
Failure to satisfy even one criterion may result in a reduction
of the excess costs claimed.59  See, e.g., Associated Cleaning,
Inc., GSBCA No. 8320, 8361, 91-1 BCA  23,360; Birken
Manufacturing Company, supra, 90-2 BCA  22,845; Action Group II,
Inc., ASBCA No. 30855, 87-1 BCA  19,375; M.S.I. Corporation,
VABCA No. 599, 67-2 BCA  6,643.  Other forums will deny the
claim altogether if the Government the fails to prove a single
element.60  See, e.g., Consolidated Airborne Systems, Inc. v.
United States, 172 Ct. Cl. 588, 348 F.2d 941 (1965);   See also,
e.g., Pyramid Packing, Inc., supra, 92-2 BCA  24,831; Rhocon
Constructors, supra, 91-1 BCA  23,308; American Technology
Resources, ASBCA No. 38232, 89-3 BCA  22,239; AGH Industries,
ASBCA Nos. 27960, 31150, 89-2 BCA  21,637; Scalf Engineering Co.
and Pike County Construction Co., A Joint Venture, IBCA No. 2328,
89-3 BCA  21,950; Luis Martinez, supra, 87-3 BCA  20,219;
Glenn's Heating, supra, 87-1 BCA  19,355.  Applying the
standards necessary to sustain a Government claim for excess
costs to this case, the Board is forced to conclude that while
two elements of the test are satisfied, the Respondent's evidence
falls short in three critical areas; i.e., there is insufficient
proof that the reprocurement method chosen maximized competition,
that the reprocurement contract price was reasonable under the
circumstances, and that final payment had been made.

      1. The reprocurement contract awarded to Pensacola was for
      substantially the same publication, under essentially the
      same terms and conditions, as those in the Appellant's
      original contract.



   The threshold question where, as here, a contractor challenges
   the Government's assessment of excess costs, involves a
   comparison between the original contract and the reprocurement
   contract to determine if they are similar or substantially the
   same with respect to the supplies procured and the terms and
   conditions of performance.  Luis Martinez, supra, 87-3 BCA 
   20,219, at 102,406.  See, Cibinic and Nash, p. 763.  Both
   parties concentrate their evidence and their arguments in this
   area.  The Appellant, relying on the physical appearance of
   Pensacola's National Survey, as well as certain revisions to
   the contract specifications in Pensacola's contract, contends
   that the repurchase contract was "materially different" from
   the one it was awarded.  Furthermore, the Contractor implies
   that it received disparate treatment in this case because
   there is no evidence that the Respondent ever tested
   Pensacola's publication to see if it met the paper and binding
   standards.61  Meanwhile, the Respondent, focusing on the end
   product itself, claims that although Interior returned to the
   original duotone scheme for Pensacola's National Survey, this
   modification was "minor" and legally insignificant since there
   was no change in the "concept or fundamental operation" of the
   procurement; i.e., both the original and repurchase contracts
   procured 10,049 copies of the exact same perfect-bound two (2)
   color, 176-page book, with a separate wraparound cover, on a
   specified paper stock.  Thus, regardless of the "slight"
   changes in the repurchase agreement, the Government says it
   ordered the "same" or "substantially similar" book from
   Pensacola.

   It is well-established that the Government bears the initial
   burden of proving that the reprocured supplies are similar to
   the original material, and that the defaulted contractor must
   then go forward and show that the variations actually adopted
   by the contracting officer caused unreasonable increase in
   costs of an identifiable amount.  Theodore R. Korotie, supra,
   89-3 BCA  22,214, at 111,728; Ace Reforestation, Inc., supra,
   83-2 BCA  20,218, at 102,400; Solar Laboratories, Inc., ASBCA
   No. 19957, 76-2 BCA  12,115, at 58,195.  See also, Knepper
   Press, supra, Sl. op. at 4.  Obviously, one way to test for
   similarity is to compare the end item delivered on the
   reprocurement contract with the item specified in the original
   contract at the time of default, and see if they share similar
   "physical and mechanical characteristics as well as functional
   purpose."  Marmac Industries, Inc., supra, 72-1 BCA  9,249;
   Lome Electronics, Inc., ASBCA Nos. 8642, 8701, 1963 BCA 
   3,833.  See also, B & M Construction, Inc., supra, 93-1 BCA 
   25,431, at 126,668; Sequal, Inc., supra, 88-1 BCA  20,382, at
   103,067; AGH Industries, supra, 89-2 BCA  21,637, at 108,863;
   Wise Instrumentation and Control, Inc., NASA BCA Nos. 1072-12,
   673-7, 75-2 BCA  11,478, mot. for reconsid. denied, 76-1 BCA
    11,641.  On the other hand, while a contracting officer must
   repurchase similar supplies, "similar" does not mean
   "identical".62  Puroflow Corporation, supra, 93-3 BCA 
   26,191, at 130,392; Sequal, Inc., supra, 88-1 BCA  20,382, at
   103,067; AGH Industries, supra, 89-2 BCA  21,637, at 108,863.
   Thus, while minor variations in the repurchased items will not
   relieve a contractor of its liability for excess reprocurement
   costs, substantial and material differences between the end
   items in the original contract and reprocurement contract will
   completely relieve a contractor of its liability for excess
   costs.63  United States v. Axman, 234 U.S. 36 (1914);
   California Bridge & Construction Company v. United States, 50
   Ct.Cl. 40 (1915), affirmed, 245 U.S. 337 (1917); B & M
   Construction, Inc., supra, 93-1 BCA  25,431, at 126,668
   (citing, Environmental Tectonics Corporation, supra, 78-1 BCA
    12,986); AGH Industries, supra, 89-2 BCA  21,637, at
   108,863 (citing, Accutherm, Inc., ASBCA No. 25474, 83-1 BCA 
   16,307).  See generally, Cibinic and Nash, pp. 763-65.

   The end product is not the only measure of "similarity"-the
   boards and the courts also look at whether the reprocurement
   contract was performed under the same terms and conditions as
   the defaulted contract.  See, e.g., B & M Construction, Inc.,
   supra, 93-1 BCA  25,431, at 126,668 (contract changed or
   relaxed for each of three major items, i.e., the access ramp,
   the field stone headwall, and on-site disposal and storage);
   Old Dominion Security, Inc., GSBCA No. 9126, 90-2 BCA 
   22,745, at 114,164 (changes regarding posts at which guard
   service was required considered "slight-small" distinctions);
   Theodore R. Korotie, supra, 89-3 BCA  22,214, at 111,728 (the
   reprocurement contract contained a liquidated damages clause
   not in the original); Foster Refrigerator Corporation, ASBCA
   No. 34021, 89-2 BCA  21,591, at 108,722 (and changes in
   F.O.B. points did not cause a significant price increase); AGH
   Industries, supra, 89-2 BCA  21,637, at 108,863
   (reprocurement contract's changed specifications required more
   stringent testing, which would cause greater acceptance or
   rejection of one product over another and affected the
   repurchase price); Ace Reforestation, Inc., supra, 87-3 BCA 
   20,218, at 102,400 (the reprocurement contract changed the
   project description in a significant way, e.g., gave a clearer
   information about the amount of live vegetation that would be
   encountered and of the number of planters required); Luis
   Martinez, supra, 87-3 BCA  20,219, at 102,406 (relaxation of
   specifications so that defaulted contractor could have
   performed); Pulley Ambulance, VABCA Nos. 1954, 1964, 84-3 BCA
    17,655, at 88,008 (particular requirements which were the
   basis for default waived on reprocurement).  However, the
   cases make clear that in order for contract changes to be
   considered "material" they must have a pecuniary impact.  Cf.,
   Churchill Chemical Corporation, GSBCA No. 4353, 77-1 BCA 
   12,318, aff'd 221 Ct. Cl. 284, 602 F.2d 358 (1979); T.M.
   Industries, ASBCA No. 21025, 77-1 BCA  12,545; Solar
   Laboratories, Inc., supra, 76-2 BCA  12,115; Marmac
   Industries, Inc., supra, 72-1 BCA  9,249; Arjay Machine
   Company, ASBCA No. 16535, 73-2 BCA  10,179.  See generally,
   Cibinic and Nash, pp. 766-69.  In that regard, it is well-
   accepted that:

      A variation between a defaulted contract and a
      reprocurement contract is material if it causes a
      substantial increase in the price of the reprocurement
      contract.  [Citation omitted.]  Further, a change in
      specifications that increases the price of a reprocurement
      generally must be reflected by a reduction in the amount of
      excess costs for which a defaulted contractor is liable,
      [Citation omitted], although the Government does not
      necessarily forfeit all rights to excess costs.  [Citation
      omitted.]

Ace Reforestation, Inc., supra, 83-2 BCA  20,218, at 102,400-01
(citing,  Meyer Labs, Inc., ASBCA No. 19525, 87-2 BCA  19,810;
Action Group II, Inc., supra, 87-1 BCA  19,375; G. O'Connor,
AGBCA No. 75-154, 78-1 BCA  12,981).  Also cf., AGH Industries,
supra, 89-2 BCA  21,637, at 108,864 ("Moreover, the changes to
the specifications had a cost impact on the repurchase price.
While we are not persuaded by either party's computation of this
impact, we hold that the impact was significantly greater than
admitted by the Government, that it affected the repurchase
price, and that it suggests a greater lack of similarity between
the items purchased under the reprocurement contract and those
purchased under appellant's contract than would be apparent by
simple comparison of the respective items.").

   In this case, it is undisputed that when the Respondent
   repurchased the National Survey, it made some changes to the
   specifications in the contract it awarded to Pensacola.  Among
   other things, the reprocurement contract returned to the
   original duotone scheme selected by Interior; added a
   requirement for a press sheet inspection; changed the quality
   assurance levels and standards specification in light of the
   new provision for a press sheet inspection; and amended the
   "Proofs" clause to require that revised proofs be furnished at
   no expense to the Government (R4 File, Tab P, pp. 2-5, and Tab
   Q).  Furthermore, while the Appellant had to produce one
   complete set of film negatives, Pensacola did not (R4 File,
   Tab D; R4 File, Tab Q).  On the other hand, the basic
   procurement in both the Appellant's and Pensacola's contracts
   was identical-10,049 copies of the same perfect-bound two (2)
   color, 176-page book, with a separate wraparound cover, on a
   specified paper stock, with essentially the same number of
   days allowed between the pick-up of Government-furnished
   material and final delivery (Pensacola had 36 days to complete
   the repurchase contract, while the time in the original
   contract, before it was extended, gave the Appellant 35 days
   to deliver the books) ((R4 File, Tabs B and P).  Consequently,
   the onus was on the Appellant to prove its allegation that
   notwithstanding the basic similarity in both procurements, the
   changes made by the Respondent to the reprocurement contract
   rendered it "materially different" from the one it received,
   and that Pensacola's version of the National Survey was
   substantially dissimilar from the publication it was asked to
   produce.  Knepper Press, supra, Sl. op. at 4.  An essential
   element of that burden of proof was a demonstration that those
   alterations caused an unreasonable increase of a specified
   amount in the price of the repurchase.  Theodore R. Korotie,
   supra, 89-3 BCA  22,214, at 111,728; Ace Reforestation, Inc.,
   supra, 83-2 BCA  20,218, at 102,400; Solar Laboratories,
   Inc., ASBCA No. 19957, 76-2 BCA  12,115, at 58,195.  In the
   opinion of the Board, the Appellant has failed to meet its
   evidentiary burden.

   The Board has examined and compared both books, and there is
   no doubt that in terms of physical appearance, Pensacola's
   National Survey stands out in marked contrast to the
   Appellant's with respect to the duotone colors, the finish on
   the covers, and the text paper.  Compare, App. Exh. No. 17,
   with App. Exh. Nos. 20 and 22.  Cf. Printing Unlimited, GPO
   BCA 21-90 (November 30, 1993), Sl. op. at 20-21; Product of
   Information Systems, GPO BCA 7-85 (November 25, 1986), Sl. op.
   at 8.  However, from the evidence it is also true that despite
   the differences in their surface characteristics, both books
   have the same functional purpose and use.  B & M Construction,
   Inc., supra, 93-1 BCA  25,431; Zan Machine Company, supra,
   91-3 BCA  24,085; Boston Pneumatics, Inc., supra, 87-1 BCA 
   19,395; Marmac Industries, Inc., supra, 72-1 BCA  9,249; Lome
   Electronics, Inc., supra, 1963 BCA  3,833.  Besides, the law
   is clear that the Contracting Officer was only duty-bound to
   repurchase a book which was similar to the Appellant's
   National Survey, not one which was identical to it.  Puroflow
   Corporation, supra, 93-3 BCA  26,191; B & M Construction,
   Inc., supra, 93-1 BCA  25,431; Sequal, Inc., supra, 88-1 BCA
    20,382; AGH Industries, supra, 89-2 BCA  21,637, at
   108,863.

   Furthermore, while there were more changes in the terms and
   conditions of Pensacola's contract than admitted by the
   Respondent at the hearing, the Board is nonetheless persuaded
   that the variations were minor and did not alter the essential
   thrust of the reprocurement.  Zan Machine Company, supra, 91-3
   BCA  24,085; Old Dominion Security, Inc., supra, 90-2 BCA 
   22,745.  More importantly, the Appellant has not presented any
   evidence which would show that the cost of the reprocurement
   was increased because of the changes made in the repurchase
   contract; i.e., there is no proof of the pecuniary impact
   necessary to support a finding that the alterations were
   "material".  Cf., AGH Industries, supra, 89-2 BCA  21,637;
   Ace Reforestation, Inc., supra, 83-2 BCA  20,218; G.
   O'Connor, supra, 78-1 BCA  12,981;  T.M. Industries, supra,
   77-1 BCA  12,545; Solar Laboratories, Inc., supra, 76-2 BCA 
   12,115; Marmac Industries, Inc., supra, 72-1 BCA  9,249.
   Accordingly, since the Appellant has not submitted any
   evidence which would substantiate its allegation that
   Pensacola's contract was "materially different" from its
   contract, the Board finds that the Contractor has not met its
   burden of proof.

      2. The Respondent acted within a reasonable time following
      the default termination to reprocure the contract.

   The second element in the Respondent's burden of proof-that it
   acted within a reasonable time following the termination to
   reprocure the contract-is easily disposed of.  It is well-
   settled that when examining the reasonableness of the
   Government's mitigation efforts, appeals boards will examine,
   inter alia, whether the reprocurement was accomplished in a
   timely fashion. Disan Corporation, ASBCA Nos. 21297, 22221,
   79-1 BCA  16,677.  In that regard, it is generally accepted
   that:

      While the issue of timeliness of a reprocurement "is
      determined by the facts and circumstances of each case, the
      usual test is whether the contractor was charged a higher
      price due to the passage of time; the contractor bears the
      burden of proof that it was damaged by any delay."  Birken
      Manufacturing Company, ASBCA No. 32590, 90-2 BCA  22,845
      [at 114,716].

Puroflow Corporation, supra, 93-3 BCA  26,191, at 130,393.  See
also, Astro-Space Laboratories, Inc. v. United States, 200 Ct.Cl.
282, 470 F.2d 1003, 1018 (1972).  By its terms, the test is a
flexible one, but normally an acceptable time frame between
default and reprocurement is measured in days or a few months,
not years.  Compare, e.g. John L. Hartsoe, supra, 93-2 BCA 
25,614 (33 days was reasonable) and Sequal, Inc., supra, 88-1 BCA
 20,382 (3 months was reasonable) with, B & M Construction,
Inc., supra, 93-1 BCA  25,431 (a 5 month delay in a period of
high inflation was unreasonable) and AGH Industries, supra, 89-2
BCA  21,637 (a 17 month delay was unreasonable when the
Government alleged it had an urgent need for the supplies).

   The record in this case shows that the Appellant's contract
   was terminated for default on April 13, 1989 (R4 File, Tab N).
   Five days later, on April 18, 1989, the Respondent initiated a
   reprocurement of the job by issuing a new solicitation clearly
   marked "This is a repurchase!!" (R4 File, Tab P, p. 1).
   Furthermore, the face of the repurchase solicitation shows
   that there were only 3 days between the date of issuance and
   the bid opening date (from April 18, 1989 to April 21, 1989)
   (R4 File, Tab P, p. 1).  Thereafter, on April 25, 1989,
   Pensacola received the reprocurement contract (R4 File, Tab
   Q).  All told, only 12 days elapsed between the date of
   default and the award of the reprocurement contract.
   Accordingly, on this record the Board finds that the
   Respondent acted with reasonable dispatch and without undue
   delay to reprocure the National Survey contract, and thus it
   has satisfied its evidentiary burden.

      3. Although the Respondent selected a repurchase mechanism
      designed to maximize competition-the sealed bid method-
      there is insufficient evidence to show that it was
      successful.  Thus, the Board cannot say on this record that
      the Government used the most efficient method of
      reprocurement under the circumstances, or acted reasonably
      to minimize the excess costs.


   Another peg in the Government's duty to mitigate its damages
   is its responsibility to accomplish the repurchase in a
   reasonable manner.  Mid-America Painters, Inc., supra, 91-1
   BCA  23,367; Puroflow Corporation, supra, 93-3 BCA  26,191;
   Gulf Paint & Chemical Company, Inc., ENG BCA PCC-27, 80-2 BCA
    14,759; Disan Corporation, supra, 79-1 BCA  16,677.  See
   generally, Cibinic and Nash, pp. 776-79.  Like the second
   element previously discussed:

      [T]here is no hard and fast rule or formula to determine
      whether the Government failed in its duty to mitigate
      damages; the issue of whether the Government met its duty
      is a fact question, resolved by inquiry [into the]
      reasonableness of the Government's actions under the
      existing circumstances.

Birken Manufacturing Company, supra, 90-2 BCA  22,845, at
114,717. See also, Astro-Space Laboratories, Inc. v. United
States, supra, 200 Ct.Cl. 282, 470 F.2d at 1017; H & H
Manufacturing Company v. United States, 168 Ct.Cl. 873, 885
(1964); Puroflow Corporation, supra, 93-3 BCA  26,191, at
130,393.  However, it is clear from the cases while the method of
reprocurement is a discretionary matter for the contracting
officer, see, e.g., Venice Maid Company, Inc. v. United States,
639 F.2d 690, 697 (Ct.Cl. 1980), Zan Machine Company, supra, 91-3
BCA  24,085, at 120,542; Old Dominion Security, Inc., supra,
90-2 BCA  22,745, at 114,164, there is also a bias in the law in
favor of those mechanisms which will maximize competition and
secure the best or lowest reasonable price under the
circumstances.64  See, e.g., Scalf Engineering Co. and Pike
County Construction Co., A Joint Venture, supra, 89-3 BCA 
21,950, at 110,425 (citing, Techcraft Systems, VABCA Nos. 1894,
2027, 86-3 BCA  19,320); Sequal, Inc., supra, 88-1 BCA  20,382,
at 103,067.  In that regard, the standard for determining the
adequacy of a repurchase solicitation was enunciated in Century
Tool Company, where the appeals board said:

      . . . [W]e do not impose a burden upon the Contracting
      Officer to solicit every known source of supply, nor do we
      require that the reprocurement include all bidders of the
      original (defaulted) procurement.  Rather, the test is one
      of reasonableness, and the principal criterion is that a
      sufficient number of potential contractors are contacted in
      the reprocurement solicitation to assure competitive prices
      in order to discharge the Government's obligation to
      mitigate the excess costs of the defaulted contractor.

Century Tool Company, GSBCA No. 4007, 78-1 BCA  13,050, at
63,735, mot. for reconsid. denied, 78-2 BCA  13,345.  [Emphasis
added.]
The burden is on the Government to prove that the reprocurement
method it selected was conducive to obtaining full and open
competition, and that it acted reasonably to mitigate or minimize
excess costs.  Cf., Associated Cleaning, Inc., supra, 91-1 BCA 
23,360; Rhocon Constructors, supra, 91-1 BCA  23,308; Sam's
Electric Company, GSBCA Nos. 9359, 10044, 90-3 BCA  12,128;
American Technology Resources, supra, 89-3 BCA  22,239; Fancy
Industries, Inc., ASBCA No. 26578, 83-2 BCA  16,659; Welmetco,
Ltd., ASBCA Nos. 25049, 25649, 83-1 BCA  16,413.

   Despite the general rule, the law allows a contracting officer
   to limit competition for the repurchase if the situation
   demands it-e.g., the Government's need to assure a quick award
   to a firm which could begin work almost immediately-since a
   reprocurement is technically a purchase for the defaulted
   contractor's account. William A. Hulett, supra, 93-1 BCA 
   25,389, at 126,459; Old Dominion Security, Inc., supra, 90-2
   BCA  22,745, at 114,165     (citing, Camrex Reliance Paint
   Company, GSBCA No. 6870, 85-3 BCA  18,376; Century Tool
   Company, GSBCA No. 3999, 76-1 BCA  11,850); Sequal, Inc.,
   supra, 88-1 BCA  20,382, at 103,067.  Thus, appeals boards
   usually apply a "reasonable person" standard when confronted
   with a challenge to a contracting officer's reprocurement of a
   defaulted contract.  As recently explicated by one appeals
   board:

      The duty the Government owes the defaulted contractor in
      reprocuring for its account is not one of perfection, but
      one of reasonableness and prudence under the circumstances.
      [Citations omitted.]  This duty is to be carried out within
      the confines of Federal procurement statutes, regulations,
      policies and directives and the Government is not required
      to change such policies to secure a better reprocurement
      price for a defaulted contractor.  [Citation omitted.]
      Further, it is not the contracting officer's obligation to
      do everything that he or she might to secure a lower price
      for a defaulted contractor, and in the process subordinate
      the Government's own best interests.  [Citations omitted.]

Barrett Refining Corporation, supra, 91-1 BCA  23,566, at
118,145.  See also, Mid-America Painters, Inc., supra, 91-1 BCA 
23,367, at 117,232 ("On the other hand, the Corps 'is not
required to make extraordinary efforts to ferret out the single
best situation which will absolutely minimize the [defaulting]
party' damages.  All that is required is that the [Corps] act
reasonably and promptly given the circumstances.'"  Ketchikan
Pulp Co. v. United States, [20 Cl.Ct. 164 (1990)]).

   A search of the cases indicates that while such procedures are
   not required on reprocurement, see, Old Dominion Security,
   Inc., supra, 90-2 BCA  22,745, the Government normally uses
   sealed bid advertising to repurchase defaulted supplies and
   services.65
See, e.g., H & H Manufacturing Company v. United States, supra,
168 Ct.Cl. 873; Lester Brothers, Inc. v. United States, 151
Ct.Cl. 536 (1960); Star Food Processing, Inc., ASBCA Nos. 34161,
34163, 34164, 34165, 35544, 35545, 35546, 35547, 90-1 BCA 
22,390; Fancy Industries, Inc., supra, 83-2 BCA  16,659, at
82,842; Erickson Enterprises, AGBCA 77-168, 79-1 BCA  13,628;
Knepper Press, supra, Sl. op. at 4.  See generally, Cibinic &
Nash, pp. 776-77.  Furthermore, it is not uncommon for the
Government to solicit those firms which bid on the original
procurement.  See, e.g., American Marine Upholstery Company v.
United States, 170 Ct.Cl. 564, 345 F,2d 577 (1965); Mid-America
Painters, Inc., supra, 91-1 BCA  23,367.  See generally, Cibinic
and Nash, pp. 778-79.  In fact, if the Government fails to make a
reasonable effort at contacting the original bidders, the result
may result in a denial or reduction of the excess cost
assessment.66  See, e.g., Associated Cleaning, Inc., supra, 91-1
BCA  23,360; Old Dominion Security, Inc., supra, 90-2 BCA 
22,745; Barrett Chemical Company, Inc., supra, 77-2 BCA  12,625.
Although there is no requirement for the contracting officer to
contact the second low bidder on the original procurement when
he/she attempts to repurchase the defaulted supplies, see, e.g.,
Zoda v. United States, 148 Ct.Cl. 49, 180 F.Supp. 419 (1960);
United Microwave Company, ASBCA No. 7947, 1963 BCA  3,701;
Valley Forms, Inc., GPO BCA 1-84 (January 15, 1986), nonetheless
such a mitigation step is considered presumptively reasonable,
even if the reprocurement price itself seems unreasonable.  See,
e.g., Mid-America Painters, Inc., supra, 91-1 BCA  23,367 (the
Government acted reasonably in taking the second low bid in the
original solicitation despite the fact that the reprocurement was
174 percent above the original contract, because that price was
well below the next bidder's price on the original procurement
and was 1/3 of the price offered by bidders on the high end of
the scale for the bids received); American Photographic
Industries, Inc., supra, 90-1 BCA  22,491 (the Government failed
to mitigate damages because it did not contact the second low
bidder for the original contract).  See also,Business Forms
Service, Inc., supra, Sl. op. at 9; ATC Decal Company, supra, Sl.
op. at 8-9; Technical Publishing Services, Inc., supra, Sl. op.
at 6 (negotiation with the lowest bidder from the original
solicitation).  But see, Marine Engine Specialties Corporation,
ASBCA No. 20521, 76-1 BCA  11,891 (the Government failed to
mitigate its excess costs by awarding the reprocurement contract
to the second low bidder on the original solicitation without
making an effort to contract three other contractors who had
submitted offers on the defaulted contract, where the repurchase
unit price was 25 percent greater than that of the original
contract).

   Looking at the record in this case, the Board finds only the
   barest evidence concerning the mechanics of the reprocurement.
In that regard, the record merely consists of: (1) a copy of the
repurchase solicitation (R4 File, Tab P); (2) a copy of the
reprocurement purchase order (R4 File, Tab Q); (3) a copy of the
Respondent's letter informing the Appellant of the reprocurement
and the amount of excess costs that would be deducted from its
account (R4 File, Tab O); and (4) the Contracting Officer's
testimony that the Respondent followed its customary formal
advertising procedures and awarded the repurchase contract to
Pensacola as the lowest bidder on the reprocurement (Tr. 244).
Unlike the evidence on the original solicitation, copies of the
repurchase bid list and abstract, and the winning contractor's
bid, are missing from the reprocurement record.  See, R4 File,
Tabs A and C.  Similarly, there is no testimony concerning the
number of bidders who responded to the repurchase solicitation
and the amount of their bids.  Consequently, the record in this
case raises more questions than it answers about the repurchase.

   Thus, for example, although we know that Pensacola was also a
   bidder on the original contract, the record does not tell us
   how many of the other 13 bidders in the initial group either
   received a copy of the repurchase solicitation or were
   contacted by the Respondent during the reprocurement process.
   We also know that Harmony, with an offer of $28,450.00, was
   the second lowest bidder on the original contract, but there
   is nothing to tell us if the Respondent tried to contact this
   company for the purposes of the reprocurement.67  See, e.g.,
   Mid-America Painters, Inc., supra, 91-1 BCA  23,367; American
   Photographic Industries, Inc., supra, 90-1 BCA  22,491;
   Sequal, Inc., supra, 88-1 BCA  20,382.  In addition, there is
   no information concerning the number of contractors besides
   Pensacola-new or old-who submitted repurchase offers, or if
   Pensacola was the only bidder.  Assuming that Pensacola was
   just one of several reprocurement bidders, the record is
   devoid of any evidence concerning the range of the offers;
   i.e., if Pensacola submitted the lowest bid, what was the
   highest?68  None of the answers to these questions will be
   found in the record.

   The Board has no doubt that the Contracting Officer, by
   choosing the sealed bid method to reprocure the defaulted
   contract, was making a good faith attempt to mitigate excess
   costs by trying to maximize competition.  But "good faith" is
   not the test.  As indicated previously, the test for measuring
   the adequacy of a repurchase solicitation is whether "a
   sufficient number of potential contractors are contacted in
   the reprocurement solicitation to assure competitive prices .
   . .".  Century Tool Company, supra, 78-1 BCA  13,050, at
   63,735.  As a rule, the use of formal advertising could be
   expected to result in enough competition to be considered a
   reasonable method of reprocurement.  However, there is not
   enough evidence in the record to suggest that was the case
   here.

   Basically, the Respondent's problem in this case is that the
   record concerning the mechanics of the reprocurement is
   incomplete.  Thus, on the evidence before it, the Board cannot
   say on this record that "it is reasonable to believe that
   further solicitation of other firms would not have resulted in
   lower prices and therefore would have been unnecessary."  Cf.,
   Technical Publishing Services, Inc., supra, Sl. op. p. 6; ATC
   Decal Company, supra, Sl. op. at 8-9.  In the final analysis,
   GPO had the burden of showing that it selected a method of
   reprocurement which maximized competition.  Given the state of
   this record, the Board finds that the Respondent failed to
   carry its burden of proof.  Cf., Associated Cleaning, Inc.,
   supra, 91-1 BCA  23,360; American Technology Resources,
   supra, 89-3 BCA  22,239.

      4. The same lack of evidence which prevents the Board from
      saying that, on this record, the Government used the most
      efficient repurchase method under the circumstances, or
      acted reasonably to minimize the excess costs, also
      precludes a finding that Pensacola's reprocurement price
      was reasonable.


   As the final part of its trinity of proof regarding the
   mitigation of damages, the Government must establish that it
   obtained the lowest reasonable reprocurement price.  See,
   e.g., Sequal, Inc., supra, 88-1 BCA  20,382; Fancy
   Industries, Inc., supra, 83-2 BCA  16,659.  In fulfilling the
   obligation to secure the best price for the Government, a
   contracting officer must follow the same standard of
   reasonableness and prudence under the circumstances which
   he/she exercised in the timing and selecting of the method of
   reprocurement.  Barrett Refining Corporation, supra, 91-1 BCA
    23,566, at 118,145; Mid-America Painters, Inc., supra, 91-1
   BCA  23,367, at 117,232.  See also, William A. Hulett, supra,
   93-1 BCA  25,389, at 126,459 ("A [Contracting Officer], in
   reprocuring, is acting on behalf of the original contractor
   and must, therefore, not unnecessarily do or not do things
   which result in an increased cost to the defaulted
   contractor.").  The mere fact that there is a significant
   price increase in the reprocurement does not render it
   unreasonable in the face of Government due care and diligence.
   See, Boston Pneumatics, Inc., supra, 87-1 BCA  19,395, at
   98,085 (citing, Churchill Chemical Corporation v. United
   States, supra, 221 Ct.Cl. 284, 602 F.2d 358).  See also, Fancy
   Industries, Inc., supra, 83-2 BCA  16,659; Foster
   Refrigerator Corporation, supra, 89-2 BCA  21,591; Knepper
   Press, supra.  However, in the absence of negotiations or some
   other explanation for the increase in the price of repurchased
   supplies, most appeals boards will reduce the amount of
   recoverable excess costs.  See, e.g., Puroflow Corporation,
   supra, 93-3 BCA  26,191, at 130,393; Sequal, Inc., supra,
   88-1 BCA  20,382, at 103,067; Solar Laboratories, Inc.,
   supra, 76-2 BCA  12,115, at 58,196.

   As indicated above, in most situations the key to a finding
   that the reprocurement price is reasonable is a repurchase
   solicitation mechanism which draws a sufficient number of
   potential contractors to assure adequate price competition.
   Birken Manufacturing Company, supra, 90-2 BCA  22,845, at
   114,717; Sequal, Inc., supra, 88-1 BCA  20,382, at 103,067;
   Century Tool Company, supra, 78-1 BCA  13,050, at 63,735.
   Although it has been said that "[competitive reprocurement]
   offers firm evidence that the price was reasonable, . . . .",
   Astro-Space Laboratories, Inc. v. United States, supra, 200
   Ct.Cl. 282, 470 F.2d at 1018, the Board is unaware of any case
   which holds that mere formal advertising, without more, is
   reasonable per se.  Indeed, the law is clear that the mere
   selection of the low bid, either on a reprocurement or the
   original contract, in and of itself, does not establish a
   reasonable price for the purposes of the mitigation rule.
   Marine Engine Specialties Corporation, supra, 76-1 BCA 
   11,891.  Thus, as one appeals board has stated:

      As for a reasonable price, a [contracting officer] cannot
      "blindly accept" a reprocurement contractor's price and be
      said to have acted in a reasonable and prudent manner.
      [Citing, Wise Instrumentation and Control, Inc., supra,
      75-2 BCA  11,478.]

B & M Construction, Inc., supra, 93-1 BCA  25,431, at 126,669
(the appeals board rejected the contracting officer's
calculations of excess costs because he used the reprocurement
contractor's prices as the starting point for calculating excess
costs without any determination as to reasonableness).
Similarly, there can be no reasonable repurchase price which does
not take into account work already performed by the defaulted
contractor that benefits a reprocurement contractor to some
extent, and gives credit to the defaulted contractor by
subtracting the price of that work from the calculation of excess
costs.69  William A. Hulett, supra, 93-1 BCA  25,389, at
126,459-60.

   The Board has already found that the evidence of competition
   in this case is weak.  Furthermore, the Contracting Officer's
   own testimony tells us that he awarded the reprocurement
   contract to Pensacola simply on the basis of its low bid.  Tr.
   244.  There is no evidence of any additional inquiry on his
   part, even though Pensacola's price for the reprocurement
   contract ($32,840.61), while lower than its initial offer, was
   almost 27 percent higher than Appellant's winning bid on the
   original contract ($25,938.00), and 14 percent higher than the
   second low bidder's-Harmony-offer on the original contract
   ($28,450.00) (R4 File, Tabs A and Q).  Cf., Valley Forms,
   Inc., supra, Sl. op. at 12.  The failure to make such an
   inquiry, standing alone, would be enough to warrant rejection
   of the Respondent's excess cost assessment in this case.  B &
   M Construction, Inc., supra, 93-1 BCA  25,431; Marine Engine
   Specialties Corporation, supra, 76-1 BCA  11,891; Wise
   Instrumentation and Control, Inc., supra, 75-2 BCA  11,478.
Thus, on the record before it, the Board cannot say that the
Respondent obtained the lowest reasonable repurchase price.
Sequal, Inc., supra, 88-1 BCA  20,382; Fancy Industries, Inc.,
supra, 83-2 BCA  16,659.  Accordingly, the Board finds that the
Respondent failed to carry its burden of proof of showing that
its excess reprocurement cost assessment was correct, cf., The
Flooring Company, supra, 89-3 BCA  22,167, at 111,548, or that
it mitigated its damages in this case.  Puroflow Corporation,
supra, 93-3 BCA  26,191, at 130,393; B & M Construction, Inc.,
supra, 93-1 BCA  25,431, at 126,669.



      5. The Respondent has failed to prove that final payment
      was made to Pensacola so that the excess costs assessment
      against the Appellant is based upon liability for a sum
      certain.

   The last element in the Government's burden of proof, it must
   demonstrate that the repurchased work has been completed, and
   final payment made to the reprocurement contractor so that the
   excess costs assessment is based upon liability for a sum
   certain. Whitlock Corporation v. United States, supra, 141
   Ct.Cl. 758, 159 F.Supp. 602 (1958), cert. denied, 358 U.S. 815
   (1958).  See also, e.g., John L. Hartsoe, supra, 93-2 BCA 
   25,614; Star Food Processing, Inc., supra, 90-1 BCA  22,390;
   Lafayette Coal Company, ASBCA Nos. 32174, 33311, 87-3 BCA 
   20,116; Fancy Industries, Inc., supra, 83-2 BCA  16,659;
   Hunt's Janitor Service, ASBCA No. 27719, 83-1 BCA  16,455.
   See generally, Cibinic and Nash, p. 790.  Where the Government
   fails to offer evidence that a reprocurement contract was
   awarded, performed, or paid for, the assessment of excess
   costs against a defaulted contractor will be denied.70  See,
   e.g., Patty Armfield, AGBCA No. 91-185-1, 93-1 BCA  25,235;
   Pyramid Packing, Inc., AGBCA No. 86-128-1, 92-2 BCA  24,831;
   Scalf Engineering Co. and Pike County Construction Co., A
   Joint Venture, supra, 89-3 BCA  21,950.  The evidentiary
   standard for this criterion, as described in Scalf Engineering
   Co. and Pike County Construction Co., A Joint Venture, is as
   follows:

      . . . [W]here the Government asserts excess reprocurement
      costs, it must demonstrate that the procurement action is
      completed, and the reprocurement contractor paid.
      [Citations omitted.]

      . . . Based on an extensive review of the evidence, we are
      unable to conclude that the Government has met these
      requirements.  Specifically, it has failed to show that it
      actually made payment to the reprocurement contractor of
      the excess costs it now seeks to assess against appellant.
      In both the contracting officer's final decision, and the
      attached memorandum detailing OSMRE's excess costs, there
      is no evidence that such costs were finally paid, only that
      they are referred to in various documents as "incurred"
      (AF-1, Sec. III.M; Sec. X).  Nowhere in Part II of the
      appeal file which contains the documents pertaining to the
      reprocurement contract with Fleetwood Johnson, is there any
      evidence which demonstrates that OSMRE made payment for the
      reprocurement work.  There is no certified payment voucher,
      or other documentation which establishes that OSMRE
      actually made payment for the amounts it claims to have
      incurred on reprocurement.

      Without such evidence the Government's counterclaim lacks
      merit.  Essential facts upon which its excess costs claim
      must be based are not in evidence.  For these reasons, the
      Government's counterclaim for excess reprocurement costs is
      denied.

Id., at 110,425.  [Emphasis added.]

   A GPO contracting officer's administrative responsibilities in
   a situation where excess reprocurement costs are to be
   assessed against a defaulted contractor, are outlined in the
   Respondent's printing procurement regulation; i.e., he/she
   must:

         . . . (i) advise the Financial Management Service,
         Voucher Examination Branch (Stop FMCE) that such a
         repurchase has been made;

         (ii) provide the jacket number, the purchase order
         number and contractor's name for both the terminated and
         new contracts; and,

         (iii) request that excess costs be computed and the
         Contracting Officer advised.

      When advised by the Voucher Examination Branch, the
      Contracting Officer shall make a written demand (with a
      copy to the Voucher Examination Branch) on the defaulted
      contractor for the total amount of such excess including
      increases or decreases in other costs such as
      transportation and discounts.  If the contractor fails to
      make payment, the Voucher Examination Branch shall take
      appropriate action to collect the amount due.

PPR, Chap. XIV, Sec. 1,  3.f.(3).  Furthermore, the "Payments on
Purchase Order" clause in GPO Contract Terms, which is also
incorporated by reference in Pensacola's repurchase contract (R4
File, Tab P), provides, in pertinent part, as follows:

      (a) Payment will be made to the contractor upon submission
      of a proper voucher (Standard Form 1034, Public Voucher for
      Purchases and Services Other than Personal), in accordance
      with GPO Form 199, "Billing Instructions."  Vouchers should
      be mailed to the U.S. Government Printing Office,
      Examination and Certification-Stop: FMCE, Washington, DC
      20401.

         (1) Any of the forms listed below, properly filled out,
         signed, and dated will be accepted as evidence of
         shipment: . . . [List of forms omitted.]

         (2) The following forms, filled out, signed, and dated
         will be accepted as evidence of delivery: . . . [List of
         forms omitted.]

         (3) Evidence of return of plates, patterns, negatives,
         excess stock, and other articles supplied by GPO shall
         be in the form of delivery receipts, signed by a
         representative of the Government.  U.S. Postal Service
         receipts, Government bill of lading memorandum copies,
         or copies of commercial carrier airway bills or freight
         bills will be acceptable as proof of shipment.

         (4) One complete copy of the specified product (except
         classified documents).

         (5) A copy of the print order or purchase order as
         applicable.

      (b) Checks tendered by GPO in payment of any invoice
      submitted by the contractor, whether equal to or less than
      the amount invoiced, are tendered as final payment.
      Acceptance of payment of any check so tendered shall
      operate as a bar to the assertion of any exceptions by the
      contractor to the amount paid by GPO unless the contractor
      notifies the Contracting Officer in writing within 60
      calendar days of the date of such check.  Such notice shall
      specify the exceptions taken to the sum tendered, and the
      reasons therefor.

See, GPO Contract Terms, Contract Clauses,  24.  Cf., B. P.
Printing and Office Supplies, supra, Sl. op. at 26-27.

   There is no doubt about the reprocurement contract being
   completed-a copy of Pensacola's National Survey is in the
   record as an Appellant's exhibit (App. Exh. No. 17).  Cf.,
   Timsco, Inc., supra, Sl. op. at 12 (contracting officer
   testified as Appellant's witness).  On the other hand, the
   record in this case is a virtual desert when it comes to
   evidence of GPO's final payment to Pensacola.  Of the
   repurchase documentation required by the regulations and GPO
   Contract Terms, only the Contracting Officer's written notice
   to the Appellant of the assessment of excess costs and the
   reprocurement purchase order are in evidence (R4 File, Tabs O
   and Q).  None of the other necessary financial documentation
   is in the record, nor was there testimony on this issue at the
   hearing.  Cf., Timsco, Inc., supra, Sl. op. at 12 (proof of
   payment of excess costs found in the testimony of the
   contracting officer that he certified the reprocurement
   contractor's invoice and that GPO paid the bill, and in
   supporting documentary evidence; e.g., a copy of the purchase
   order that was forwarded to the disbursing office for
   payment).  Specifically, the Respondent has not shown the
   Board: (1) any required backup memoranda which the Contracting
   Officer may have sent GPO's Voucher Examination Branch; (2) a
   copy of Pensacola's payment voucher or invoice for the
   reprocured work; and/or (3) a copy of the canceled check by
   which GPO paid Pensacola.  Although it is reasonable for the
   Board to assume that the Government probably did make final
   payment to Pensacola on completion of the reprocurement
   contract, it cannot substitute that presumption for the hard
   evidence which the Government was required to produce in this
   litigation.

   Applying the law to this case, in the absence of Pensacola's
   payment voucher or invoice and/or the Respondent's canceled
   check, or such other evidence which would establish that
   payment was actually made to Pensacola in the amount claimed
   to have been incurred on repurchase, there is no merit to
   GPO's claim for excess costs because essential facts upon
   which the claim must be based are not in evidence.  Scalf
   Engineering Co. and Pike County Construction Co., A Joint
   Venture, supra, at 110,425.  Accordingly, the Board finds that
   the Respondent has not proved that final payment made to the
   reprocurement contractor so that the excess costs assessment
   is based upon liability for a sum certain.  Patty Armfield,
   supra, 93-1 BCA  25,235; Pyramid Packing, Inc., supra, 92-2
   BCA  24,831; Scalf Engineering Co. and Pike County
   Construction Co., A Joint Venture, supra, 89-3 BCA  21,950.

   Since the Respondent was obligated to provide evidence in
   support of each element of its claim for excess reprocurement
   costs, Rhocon Constructors, supra, 91-1 BCA  23,308, the only
   question left to decide in light of the Respondent's failure
   to prove its case is whether the Board should reduce the claim
   or deny it altogether.  As previously indicated, the various
   forums are split on that issue.  See, e.g., Associated
   Cleaning, Inc., supra, 91-1 BCA  23,360 (reduce recovery);
   Birken Manufacturing Company, supra, 90-2 BCA  22,845 (reduce
   recovery); Action Group II, Inc., supra, 87-1 BCA  19,375
   (reduce recovery); Pyramid Packing, Inc., supra, 92-2 BCA 
   24,831 (deny recovery); Rhocon Constructors, supra, 91-1 BCA 
   23,308 (deny recovery); Scalf Engineering Co. and Pike County
   Construction Co., A Joint Venture, supra, 89-3 BCA  21,950
   (deny recovery).  The Board has never expressly taken a firm
   position on the matter, but in at least one case it has
   implied that it would reduce excess costs if the record
   provides a fair basis for recalculating them, rather than
   eliminate recovery of such costs entirely.71  Valley Forms,
   Inc. supra, Sl. op. at 13.

   Generally, excess reprocurement costs are figured on the basis
   of the reasonable reprocurement price less the original
   contract price. See, The Flooring Company, supra, 89-3 BCA 
   22,167, at 111,548 (citing, Cascade Pacific International v.
   United States, supra, 773 F.2d 187.  Where, as here, there is
   not enough evidence to determine if the winning reprocurement
   bid was reasonable, the most common method used for
   recalculating excess costs is simply to take the difference
   between the original contract price and the second low bid on
   the original contract.  See, e.g., Mid-America Painters, Inc.,
   supra, 91-1 BCA  23,367; Birken Manufacturing Company, supra,
   90-2 BCA  22,845; Sequal, Inc., supra, 88-1 BCA  20,382;
   Zero-Temp, Inc., ASBCA No. 215, 78-1 BCA  13,212;
   Environmental Tectonics Corporation, supra, 78-1 BCA  12,986;
   Solar Laboratories, Inc., supra, 76-2 BCA  12,115; Marine
   Engine Specialties Corp., supra, 76-2 BCA  12,034.  See
   generally, Cibinic and Nash, pp. 783-84.  Under this formula,
   the Respondent would be entitled to recover excess costs in
   the amount of $2,512.00-the difference between the Appellant's
   winning bid ($25,938.00), and Harmony's second low offer on
   the original contract ($28,450.00) (R4 File, Tabs A).
   However, the problem for the Board in this case stems not from
   the Respondent's failure to demonstrate adequate competition
   on the reprocurement and thus prove the reasonableness of the
   repurchase price, or the lack of evidence concerning payment
   of a sum certain to Pensacola.  Rather, the difficulty comes
   from the fact that there is nothing at all in the record
   showing a final payment to Pensacola.  The Board has said that
   it will not fill a gap in the evidence with its own
   assumptions, no matter how reasonable or sensible they may be.
   Therefore, in this case, based on the evidence of record, the
   Respondent's claim for excess reprocurement is denied in its
   entirety.  B & M Construction, Inc., supra, 93-1 BCA  25,431;
   Pyramid Packing, Inc., supra, 92-2 BCA  24,831; Associated
   Cleaning, Inc., supra, 91-1 BCA  23,360; Rhocon Constructors,
   supra, 91-1 BCA  23,308; Scalf Engineering Co. and Pike
   County Construction Co., A Joint Venture, supra, 89-3 BCA 
   21,950; AGH Industries, supra, 89-2 BCA  21,637.

   Although the Appellant has prevailed on the excess
   reprocurement cost issue, the Board wishes to make clear that
   it has little sympathy for a contractor who repudiates a
   contract and abandons performance.  Nevertheless, the Board
   has found that the Respondent has failed to prove that the
   reprocurement method selected maximized competition, that the
   reprocurement contract price was reasonable under the
   circumstances, and that final payment had been made to
   Pensacola.  The Board concludes that these factors alone are
   sufficient to support denial of the Government's claim for
   excess costs.  Cf., B & M Construction, Inc., supra, 93-1 BCA
    25,431, at 126,669.  Finally, it may seem anomalous that the
   Appellant is allowed to escape the consequences of its breach
   of contract in this case.  However, the law appears to be
   well-established, and the Board has a duty to apply it.  Cf.,
   C. Howdy Smith, supra, 92-2 BCA  24,884, at 124,107.

   ORDER

   Considering the record as a whole, the Board finds and
   concludes that the Respondent has proved that the Appellant,
   both orally and in writing, evinced a "positive, definite,
   unconditional, and unequivocal manifestation of intent" not to
   reprint the National Survey, as instructed by the Contracting
   Officer, and thus abandoned or repudiated the contract.
   Accordingly, the Contracting Officer's decision to terminate
   the contract for default was justified and not in error.
   THEREFORE, the decision of the Contracting officer is
   AFFIRMED, and the appeal is DENIED.

   On the issue of excess costs, the Respondent has demonstrated
   that the reprocurement contract was substantially the same as
   the original contract, and that it acted within a reasonable
   time following default to repurchase the supplies.  However,
   the Respondent failed to prove the reasonableness of the
   method chosen to repurchase the contract and the reprocurement
   price, nor did it show that final payment was made to the
   reprocurement contractor.  Accordingly, on this record the
   Respondent has not established its entitlement to excess
   reprocurement costs.  THEREFORE, the
Contractor's appeal of the Respondent's decision assessing excess
costs is GRANTED, and the case is REMANDED to the Contracting
Officer with instructions to refund the amount of such excess
costs which were deducted from the Appellant's account.72  Cf.,
Banta Company, supra, Sl. op. at 62; RD Printing Associates,
Inc., supra, Sl. op. at 37.

It is so Ordered.

March 28, 1994                     STUART M. FOSS
                           Administrative Judge
_______________

    1 The Contracting Officer's appeal file, assembled pursuant
    to Rule 4 of the Board's Rules of Practice and Procedure, was
    delivered to the Board on July 31, 1989.  GPO Instruction
    110.12, Subject: Board of Contract Appeals Rules of Practice
    and Procedure, dated September 17, 1984 (Board Rules), Rule
    4.  It will be referred to hereinafter as R4 File, with an
    appropriate Tab letter also indicated.  As originally
    submitted, the R4 File consisted of fifteen (15) documents
    identified as Tab A through Tab O.
    2 The court reporter's transcript shall be referred to
    hereinafter as "Tr." with an appropriate page number
    thereafter.  Since the Appellant's responsibility for excess
    reprocurement costs was at issue, at the hearing on April 28,
    1992, the Board directed the Respondent to furnish both the
    contract specifications and the purchase order for the
    reprocurement (Tr. 187).  The specifications and the purchase
    order were added to the R4 File as Tabs P and Q, respectively
    (Tr. 189, 237).  As a technical matter, after the close of
    the hearing on May 6, 1992, the Appellant made a motion to
    conform the pleadings to the evidence.  See, Appellant's
    Motion for the Pleadings to Conform to the Evidence, dated
    May 15, 1992.  The Appellant's motion is GRANTED.  Board
    Rules, Rule 7(b).
    3 The Respondent's brief will be referred to hereinafter as
    "R. Brf.", with an appropriate page citation thereafter.  The
    Appellant's brief will be cited as "App. Brf.," with an
    appropriate page number thereafter.  Furthermore, at the
    hearing in this appeal both parties introduced documentary
    evidence.  The Appellant's exhibits will be referred to
    hereinafter as "App. Exh. No.," with an appropriate number
    thereafter.  The Respondent's exhibits will be referred to
    hereinafter as "R. Exh. No.," with an appropriate number
    thereafter.
    4 When the Board ordered a hearing in this case, two appeals
    were pending involving the parties-the instant matter and
    another default termination dispute which had been docketed
    by the Board as GPO BCA 17-89.  Both were scheduled for trial
    on May 6, 1992.  However, at the hearing the parties settled
    GPO BCA 17-89, and that appeal has been dismissed (Tr.
    251-52).  See, Sterling Printing, Inc., Order Dismissing
    Appeal, dated June 30, 1992.
    5 The National Survey is referred to as the "National Hunting
    and Fishing Survey National Report" in both the Invitation
    for Bids, and Purchase Order 81288, which awarded the
    contract to the Appellant (R4 File, Tabs B and D).
    6 Perfect-binding is a variation of side-stitching which is
    widely used on paperback books.  However, instead of being
    stitched, the pages of a perfect bound book are held together
    by a flexible adhesive.  Under this process, after the
    signatures are collated, the backs are ground off, leaving a
    rough surface.  The adhesive is applied and a special lining
    is put over the backbone, the cover is glued into place.  If
    done correctly, the adhesive should keep its strength and
    resiliency for a long period of time.  See, Pocket Pal,
    International Paper Company, Memphis, Tennessee (14th ed.,
    1989), p. 152.  See also, Tr. 174-75.
    7 GPO's Quality Assurance Through Attributes Program, GPO
    Publication 310.1, effective May 1979 (revised September
    1986) (QATAP), was incorporated in the contract by reference
    (R4 File, Tab B, p. 1).
    8 These departmental quality copies shall be referred to
    hereinafter as "blue label" samples or copies.
    9 In addition to these specifications, the contract was also
    governed by applicable articles of GPO Contract Terms, GPO
    Publication 310.2, effective December 1, 1987 (Rev. 9-88)
    (GPO Contract Terms) (R4 File, Tab B, p. 1).
    10 As originally specified, the duotones were to be 90
    percent black and 10 percent brown.  Tr. 108-09.  The change
    requested by Interior reversed that color combination; i.e.,
    to 90 percent brown and 10 percent black.  Tr. 109.  See,
    App. Exh. No. 3.
    11 It is undisputed that prior to distribution of the
    complete order, Interior asked Don Kinsley, GPO's Contract
    Administrator, to secure 3 advance copies of the book from
    the Contractor for the customer-agency's review and approval
    (R4 File, Tab E).  Tr. 32-35, 52, 62, 110, 113, 143.
    Interior wanted to assure itself before the National Survey
    was mailed that the publication conformed to the
    specifications in terms of duotones, color match, paper, type
    of binding and format.  Tr. 35, 52, 113, 117, 143.  In
    response to the customer-agency's request, the Contractor
    took 3 books from its production run, and sent them, through
    Kinsley, to Interior.  Tr. 62, 65.  Apparently, the
    Contractor had products rejected by GPO's central offices in
    the past, and it, too, wanted to be sure that the National
    Survey conformed to the contract.  Tr. 113-14.  When Interior
    made its request, the remainder of the job had not been bound
    by the Appellant's binding subcontractor-Paperfold Binderies,
    Inc (Paperfold).  Tr. 113-14.  It is uncontested that once
    Interior had reviewed the 3 samples, it told Kinsley that the
    books were "O.K.", and he conveyed that message to the
    Appellant with instructions to complete the job.  Tr. 33,
    62-63, 115.  See, App. Exh. No. 5.  However, Kinsley did not
    alert the Contractor to any problems with the paper or
    binding at this time because those attributes were not
    inspected until distribution was completed and Interior had
    filed its complaint with the Respondent.  Tr. 34.  After
    receiving Kinsley's message, the Appellant sent the remaining
    books to the bindery, where they were bound and then returned
    to the Appellant for distribution.  Tr. 115, 117, 119.  In
    that regard, 100 copies of the bound books were sent to
    Interior first.  Tr. 115, 117.  It is clear from the record
    that the Contractor did not ask its subcontractor to test the
    binding of the books before returning them for mailing.  Tr.
    194.
    12 The record indicates that after Interior's complaint was
    received, the Contracting Officer personally conducted flex
    tests on approximately 6 of the Appellant's books at the
    customer-agency's warehouse, and in each instance the pages
    "popped out."  Tr. 50.
    13 At the hearing, the issue of whether or not the
    Appellant's paper stock conformed to specifications was
    extensively litigated.  The Appellant called John Lind,
    Senior Research Chemist at the Graphics Art Technical
    Foundation (GATF) in Pittsburgh, Pennsylvania, who testified
    that he tested the text paper of the National Survey at the
    request of the Contractor, and that it met the standards of
    JCP A260 for opacity, gloss and color.  Tr. 17-18, 24, 30.
    See, GATF Report, App. Exh. No. 12.  However, he was unable
    to test the cover stock because it was printed or soiled.
    Id.  Similarly, Lois McDaniel, the Appellant's President,
    testified that she asked her supplier, Beekman Paper Company
    (Beekman), to test the paper and received a report which
    showed that the paper stock substantially complied with the
    specifications.  Tr. 131, 133-34.  See, Beekman Report, App.
    Exh. No. 9.  The Respondent, on the other hand, called Sylvia
    Subt, Chief of the Paper Division, who testified that the
    text paper failed to meet the requirements of the JCP A260
    standard for 80-pound paper in three respects-low opacity, a
    high gloss and color match.  Tr. 205.  See, GPO Paper Report,
    R4 File, Tab I.  Similarly, she stated the cover paper was
    tested against the JCP L60 standard and did not measure up to
    the specifications because the stock had a high basis weight,
    and the gloss was low on one side.  Tr. 206.  Overall, she
    concluded that the paper stock supplied by Beekman did not
    meet the contract specifications.  Tr. 206, 212, 224.
    Indeed, Ms. Subt stated that Beekman's own tests showed that
    the paper supplied was substandard; e.g., the specifications
    required a minimum opacity reading of 95, but the paper stock
    used for the contract only measured 92.6 in GPO's laboratory
    and 93 in Beekman's.  Tr. 207, 210.  See, GPO Paper Report,
    R4 File, Tab I; Beekman Report, App. Exh. No. 9.  Moreover,
    she believed that the GPO and GATF got different test results
    because the same methodologies and equipment measurements
    were not used; e.g., the nanometer setting for GPO's
    spectrodensitometer was 572 while GATF's was 540, and the
    "black body" calibration on their instruments was .5 and .6,
    respectively.  Tr. 213, 214-16, 226.
    14 QATAP defines "perfect-bound book durability" as "the
    durability of the adhesive binding under tests that simulate
    normal usage of the book during its expected useful life."
    See, QATAP, F-5. Perfect-Bound Book Durability, p. 34.  In
    testing the durability of the adhesive binding, 4 tests are
    to be used: (a) the "subway test;" (b) the "page pull test;"
    (c) the "page flex test;" and (d) the "adhesive temperature
    stability test."  Id.  Under the "subway test," the book is
    opened completely and the covers are brought back-to-back.
    Id.  In the absence of a machine such as a flex tester, this
    method, which resembles newspaper reading in a crowded
    subway, is the standard industry test for measuring the
    sufficiency of binding strength.  Tr. 171-73.  The "page pull
    test" measures the pounds of pull per inch of backbone
    required separate the page from the adhesive line.  See,
    QATAP, F-5. Perfect-Bound Book Durability, p. 34.  The "page
    flex test" uses a machine to continuously open and close a
    book at a particular page (at a minimum of three places in a
    book) with 2.5 pounds of pull, until the page separates from
    the adhesive line or 126 flexes are reached.  Id.   Tr.
    170-72, 181, 184.  As described by Charles E. Enterline,
    Superintendent of the Respondent's Binding Division, who was
    called as an expert witness during the hearing: "[T]he book
    is put in a bird wing [gull wing] position on the machine, .
    . . a clip that is attached to the top part of the book and
    the machine is started and the book moves back and forth . .
    . and at some point, when the binding becomes stressed
    enough, the page may come out or it may not come out.  If the
    binding is well done the page will stay in.  I've seen pages
    stay in books for a thousand, two thousand flexes and then of
    course there are pages that come out of the book after maybe
    two or three flexes.  The book comes apart, the page
    releases." Tr. 170-71.  The "adhesive temperature test"
    merely tests the binding by one of the three other methods,
    after the book has been treated at certain temperatures for a
    specified number of hours.  See, QATAP, F-5. Perfect-Bound
    Book Durability, p. 34.  In no instance should an individual
    book be used for more than one of the tests.  Id.
    15 Unlike the paper stock issue, the Appellant has not
    questioned the Respondent's finding that the perfect-binding
    of the books it printed was poorly done.  Indeed, at the
    hearing, Enterline applied the "subway test" to two of the
    Appellant's books, and in each instance the pages came out.
    Tr. 173, 181, 184.  See, R. Exh. No. 1-F (this exhibit was
    randomly selected from a box of "blue label" samples ranging
    from R. Exh. Nos. 1-A to 1-P); App. Exh. No. 22 (which had
    been introduced by the Appellant as an example of its book in
    which all the pages were well-seated.  Tr. 54-55.).  On the
    other hand, when he performed the same test on a copy of the
    National Survey printed by the reprocurement contractor,
    Pensacola Engraving Company (Pensacola), Enterline found that
    although the pages loosened when the spine broke, they did
    not release from the book; in fact, he could hold the book by
    one page and suspend it above the witness table.  Tr. 178-79,
    180, 184.  Similarly, even Lind testified that although he
    had only been asked to test the paper stock and not the
    binding, the pages of the books sent to him by the Appellant
    for testing pulled away from the spine easier than in other
    perfect-bound books he has examined.  Tr. 26.  Instead, the
    evidence introduced at the hearing on the binding durability
    issue tended to focus on the reasons for this defect and the
    ways to correct it.  Thus, Enterline testified that his
    examination of the Contractor's books disclosed that no glue
    had been forced into the backbone-the key to adhesive binding
    process.  Tr. 174-75.  In his opinion, the problem had one of
    two causes: (a) the glue applicator drum on the binding
    machine was improperly set; or (b) the glue itself was not
    hot enough.  Tr. 174-76.  He also thought that an incorrect
    glue wheel setting was the most likely reason, and that if
    the operator had used the proper precautions and tested at
    least one book before running the rest through the binder the
    problem could have been avoided.  Tr. 176.  Like Enterline,
    Howard Harrison, the Superintendent of GPO's Contract
    Management Branch, believed that the main cause of the pages
    falling out was mechanical, but he ascribed the problem to an
    improper setting of the scoring blade on the binder; i.e.,
    the blade did not cut deep enough to provide a sufficient
    surface to hold the glue.  Tr. 90.  The Appellant's
    President, McDaniel, was inclined to agree with Harrison's
    view of the cause of the defect.  Tr. 147-48.  In any event,
    she was certain it was not the glue itself.  Tr. 129, 147.
    See, R4 File, Tab L; App. Exh. No. 10.  As for repairing the
    binding defect, the witnesses mentioned several ways short of
    reprinting the book by which this could be accomplished,
    including trimming and regluing and stitching or stapling (in
    the binding process, the terms "stitches" and "staples" are
    synonymous).  Tr. 90-92, 95-97, 141-42, 181-82.  See, App.
    Exh. Nos. 20 and 21.
    16 Although GPO's official notification is dated March 31,
    1989, it is clear from the record that the Contractor was
    informed a few days earlier by telephone (R4 File, Tabs J and
    K).  According to McDaniel, who was "aghast" when told that
    the job was being rejected, the Government's main concern
    with her product was that "the pages were falling out."  Tr.
    117-18.  See also, R4 File, Tab K; App. Exh. No. 8 (the
    transcribed portion of a telephone conversation between
    McDaniel and Harrison on April 7, 1989, in which he stated
    that: ". . . [Interior] said [the] job must be reprinted
    because the pages were falling out.  They didn't care about
    the paper . . . [and the] printed job is fine.  They don't
    have no complaint on the printed job.  It's that the pages
    are falling out. . . So that's where their problem is."
    Apparently, Harrison was conveying information which had been
    given to him by Bruce Scaggs, GPO's Chief of Staff.  Tr. 71.
    The tape on which this conversation was recorded was
    introduced by the Government as R. Exh. No. 2).  The record
    also discloses that when she was informed that the problem
    involved the perfect-binding, McDaniel contacted Ray Friend
    at Paperfold to ask about the adhesive they had used, and was
    told that it was only the best "hot metal" glue.  Tr. 129,
    147.  See, R4 File, Tab L; App. Exh. No. 10.
    17 See, note 11 supra.
    18 On several occasions, McDaniel also told the Contracting
    Officer that she was going to raise the matter with her
    Congressman (R4 File, Tabs K and L).
    19 Before coming to Washington, DC, for the meeting, McDaniel
    had asked her daughter, Katie, to telephone a number of
    recipients of the National Survey and ask if they had any
    problems with the book.  Tr. 123-24.  According to the
    hearing record, 6 agencies responded that their copies were
    fine, while 2 of them indicated that there were problems with
    the binding; i.e., the pages were separating from the book.
    Tr. 123-24, 186-88, 192.  See also, R. Exh. No. 2.
    20 According to McDaniel, this copy of the National Survey
    was prepared expressly for the purposes of the meeting to
    show how the pages could be held together.  Tr. 122-23.  App.
    Exh. No. 21.  At the hearing, the Appellant introduced
    another copy of the book with the staples inside the cover.
    App. Exh. No. 20.  This type of repair was made by the
    Appellant after the April 11, 1989, meeting in case GPO asked
    to see some other way of correcting the binding defect.  Tr.
    142.  The Respondent did not make such a request, and hence,
    it never saw the book with the inside stapling prior to the
    hearing.  Tr. 142.

    21 At the hearing, the Contracting Officer also testified
    that the terms of the contract's "Disputes" clause required
    the Appellant to reprint the National Survey, as requested,
    and appeal his decision afterward.  Tr. 49.  See, GPO
    Contract Terms, Contract Clauses,  5(d).
    22 Beekman Report, App. Exh. No. 9.
    23 At the hearing, McDaniel testified that, at her request,
    two agencies-the South Carolina Wildlife and Marine Resources
    Department and the Alabama Department of Conservation and
    Natural Resources-had sent the Appellant copies of the
    National Survey which they had received.  Tr. 124-25.  See,
    App. Exh. Nos. 13 and 14.  She also stated that the copies
    have been in continuous use by them since the publication was
    shipped in 1989.  Tr. 127.
    24 See, Printing Procurement Regulation, GPO Publication
    305.3, dated September 1, 1988, Chap. I, Sec. 10,  4.b.(i)
    (PPR).
    25 Although the Respondent's Printing Procurement Regulation
    provides that in a repurchase situation, the "requirements
    for advertising are not mandatory," it also states that ". .
    . the Contracting Officer should use sealed procedures except
    where negotiation is necessary."  PPR, Chap. XIV, Sec. 1, 
    3.f.(2).  In this case, the Contracting Officer followed the
    common practice in Government reprocurements and used the
    same method-sealed bidding-to reprocure the contract that was
    employed to award the contract initially (R4 File, Tabs B and
    P).  Tr. 244.  See, Fancy Industries, Inc., ASBCA No. 26578,
    83-2 BCA  16,659, at 82,842.  See also, John Cibinic, Jr. &
    Ralph C. Nash, Jr., Administration of Government Contracts 2d
    ed., (The George Washington University, 1986), p. 778
    (hereinafter Cibinic and Nash).  In any event, it is
    established that "[i]n reprocuring items on a defaulted
    contract, the contracting officer has very broad
    discretionary powers," Astro-Space Laboratories, Inc. v.
    United States, 200 Ct.Cl. 282, 308, 470 F.2d 1003, 1017
    (1972), and the choice of which procurement method to use is
    one of them.  Old Dominion Security, Inc., GSBCA No. 9126,
    90-2 BCA  22,745, at 114,164; Columbia Loose Leaf
    Corporation, GSBCA Nos. 5805(5067)-REIN, 5806(5230)-REIN,
    82-1 BCA  15,464, at 76,631 (a change in solicitation
    vehicles is not, in itself, sufficient reason to invalidate
    an agency's claim for excess reprocurement costs).  It should
    be noted, however, that the repurchase solicitation was only
    "on the street" for 3 days (from April 18, 1989, to April 21,
    1989), whereas 9 days had been allowed between the issuance
    of the original invitation for bids (December 20, 1988) and
    the bid opening date (December 29, 1988) (R4 File, Tabs B and
    Q).
    26 Pensacola had also submitted a bid in response to the
    original solicitation (R4 File, Tab A).  The Respondent
    received 13 bids at that time, and Pensacola's price
    quotation of $34,227.88 was seventh lowest (R4 File, Tab A).
    Apart from the Appellant, other contractor's submitting bids
    on the original contract which were lower than Pensacola's
    were: (a) Harmony Printing Company (Harmony)-$28,450.00
    (second lowest); (b) Edison Lithography-$30,300.00 (third
    lowest); (c) Techna-Graphics, Inc.-$32,150..00 (fourth
    lowest); (d) Artisan Printing-$32,865.00 (fifth lowest); and
    (e) Baker-Webster Printing Company-$33,874.00 (sixth lowest)
    (R4 File, Tab A).  There is nothing in the record to indicate
    how many of the original bidders either received a copy of
    the repurchase solicitation or were contacted by the
    Respondent during the reprocurement process.  Furthermore,
    for some reason not explained in the record, Pensacola's
    reprocurement bid of $32,840.61 was $1,387.27 lower than its
    bid on the initial contract ($34,227.88).  Finally, the
    Contracting Officer testified that GPO received one
    telegraphic bid to the resolicitation, but it is not clear
    whether that offer came from Pensacola or some other
    contractor.  Tr. 244.
    27 The Respondent's excess reprocurement cost
    figure-$5,976.77-is slightly in error.  R. Brf., p. 12.  The
    correct amount is $5,966.77 (the repurchase price-$32,840.61,
    minus $26,873.84, which equals the total of the original
    contract price-$26,008.84, and the contract modification
    price-$865.00).  See, R4 File, Tabs D, G and Q.  Also see,
    Report of Status Conference, dated April 23, 1992, p. 4.
    28 At McDaniel's request, Harrison sent the Appellant a copy
    of Pensacola's National Survey, and it was introduced into
    evidence at the hearing.  Tr. 80.  See, App. Exh. No. 17.  It
    seems clear that the request was honored as a matter of
    courtesy, since the Respondent was under no legal obligation
    to furnish the Contractor with a copy of the reprocured book.
    See, e.g., Boyd Tools, Inc., GSBCA No. 3469, 73-1 BCA 
    9,874, Betsy Ross Flag Company, GSBCA No. 2786, 69-1 BCA 
    7,692; Hardware Corporation, ASBCA No. 10201, 68-2 BCA 
    7,174.  In that regard, the Armed Services Board of Contract
    Appeals has observed that it was: ". . . [unaware] of any
    case holding that in order to collect excess costs from a
    defaulting seller the buyer must turn over to the seller for
    inspection a representative sample of the repurchased items,
    or permit a joint inspection, so that the seller can satisfy
    himself that the repurchased items met specifications."  Id.,
    at 32,283.
    29 That is, the duotones in the reprocured book were those in
    the original specifications, instead of the duotones as
    modified in the Appellant's contract.  Tr. 109-10.  See, note
    10 supra.
    30 The Contracting Officer for the repurchase, Jack Marken,
    GPO's Assistant Superintendent of Term Contracts, was unable
    to explain the reason for these differences.  Tr. 238-40.
    31 The reprocurement contract expressly states "This is a
    Repurchase," and changes the date on which the Government-
    furnished material would be available for pick-up (April 26,
    1989), and the delivery due date (May 31, 1989) (R4 File, Tab
    P, pp. 1, 4 and 5).  Tr. 238.  However, the time allowed
    between material pick-up and complete delivery is essentially
    the same (36 days under Pensacola's contract, and 35 days
    under the Appellant's, before it was extended an additional
    five weeks-from February 10, 1989, to March 17, 1989).
    32 This was the only substantive change in the reprocurement
    contract identified by Marken at the hearing.  Tr. 238.  It
    should be noted, however, that although the Appellant's
    contract did not contain a specification for a press sheet
    inspection, such an examination was performed, at the
    Contractor's request, by John Edridge, Assistant Manager of
    the Respondent's Regional Printing Procurement Office in
    Atlanta, Georgia.  Tr. 111.
    33 There were a few other language differences between the
    Appellant's contract and Pensacola's, but the Board regards
    them as either minor or insignificant; e.g., under the
    "Distribution" provisions, in addition to the furnished
    material and films (negatives), Pensacola had to ship one
    sample copy of the National Survey to Interior, Attention: T.
    Nebel (R4 File, Tab B, p. 4; R4 File, Tab P, p. 4).
    34 As indicated previously, both parties filed posthearing
    briefs with the Board.  See, note 3 supra.  The Appellant's
    brief was filed with the Board on June 25, 1992.   The
    Respondent  submitted a brief to the Board on August 13,
    1992.  In addition, although Counsel for GPO waived oral
    argument at the close of the hearing, Counsel for the
    Appellant made an oral summation of the Contractor's
    position.  Tr. 246-49.  Neither party filed a reply brief.
    The Board's understanding of the positions of the parties is
    based on the Appellant's Complaint, dated August 31, 1989,
    the Respondent's Answer, dated October 2, 1989, the
    Prehearing Conference Report, dated April 10, 1990
    (hereinafter PCR), the discussions at the status conference
    held on March 24, 1992, as summarized in the Report of Status
    Conference, dated April 23, 1992 (hereinafter RSC), the
    evidence presented at the hearing on April 26, 1992, and May
    6, 1992, and the formal briefs filed by the parties.
    35 At the hearing, Counsel for the Appellant, for the first
    time, advanced the argument that the primary reason for
    defaulting the contract was that Interior wanted a different
    looking book.  Tr. 45.  The Appellant's contention that the
    contract was really terminated for the convenience of the
    Government, and that the default termination was a "sham," is
    based on the scope of the changes made to the contract
    specifications when the publication was reprocured.  Tr.
    44-45.  The Contractor's argument is, in effect, an
    allegation that the Respondent's decision to cancel the
    contract was made in bad faith so that Interior could make
    cosmetic changes to the National Survey.  However, the Board
    has held on numerous occasions that because of the strong
    presumption that Government officials properly and honestly
    carry out their functions, an allegation of bad faith must be
    established by "well-nigh irrefragable" proof.  See, e.g.,
    Hurt's Printing Company, Inc., GPO BCA 27-92 (January 21,
    1994), Sl. op. at 11, fn. 15; Shepard Printing, GPO BCA 23-92
    (April 23, 1993), Sl. op. at 7-8, fn. 11 (hereinafter Shepard
    I); B. P. Printing and Office Supplies, GPO BCA 14-91 (August
    10, 1992), Sl. op. at 16; Stephenson, Inc., GPO BCA 02-88
    (December 19, 1991), Sl. op. at 55;  The Standard Register
    Company, GPO BCA 4-86 (October 28, 1987); Sl. op. at 12-13.
    Also see, Karpak Data and Design, IBCA 2944 et al., 93-1 BCA
     25,360; Local Contractors, Inc., ASBCA 37108, 92-1 BCA 
    24,491.  The key to such evidence is that there must be a
    showing of a specific intent on the part of the Government to
    injure the contractor.  Kalvar Corporation v. United States,
    543 F.2d 1298, 1302 (Ct.Cl. 1976), cert. denied, 434 U.S. 830
    (1977); Stephenson, Inc., supra, Sl. op. at 54.  In the
    Board's view, no such "irrefragable" proof of the
    Respondent's bad faith exists in this record.  Certainly,
    there is absolutely nothing in the record which would show
    that the employees of two separate Government entities-GPO
    and Interior-set out to harm the Appellant or that they acted
    in concert to achieve that specific result.  Id., Sl. op. at
    57.
    36 See, note 11 supra.  See also, App. Exh. No. 5.
    37 In its brief, the Appellant mischaracterizes the reason
    for default as a "failure to follow specifications." App.
    Brf., p. 5.  As indicated in the Notice of Termination, the
    contract was defaulted because of the Contractor's "refusal
    to correct the quality defects," and provide a conforming
    product, rather than simply failing to follow the
    specifications (R4 File, Tab N).
    38 Both the Board and the Respondent have difficulty with the
    Appellant's concept of an "acceptable commercial product" in
    the context of this appeal.  During the prehearing
    conference, the Board observed that Government standards do
    not necessarily equate to "commercial" standards.  PCR, p.
    10.  Furthermore, the Respondent contends in its brief that
    arguments about commercial acceptability are not relevant
    here because this is a Government procurement.  Res. Brf., p.
    5, fn. 5.  The Board agrees.
    39 The Appellant also notes that there is no evidence that
    the Respondent ever tested Pensacola's publication to see if
    it met the paper and binding standards.  App. Brf., p. 14.
    40 The Board was created by the Public Printer in 1984.  GPO
    Instruction 110.10C, Subject: Establishment of the Board of
    Contract Appeals, dated September 17, 1984 (hereinafter GPO
    Instruction 110.10C).  Prior to that time, appeals from
    decisions of GPO Contracting Officers were considered by ad
    hoc panels of its predecessor, the GPO Contract Appeals Board
    (GPOCAB).  The Board has consistently taken the position that
    it is a different entity from the GPOCAB.  See, e.g., Shepard
    Printing, GPO BCA 37-92 (January 28, 1994), Sl. op. at 11,
    fn. 10 (hereinafter Shepard II); The Wessel Company, Inc.,
    supra, Sl. op. at 25, fn. 25.  Nonetheless, it has also been
    the Board's policy to follow the holdings of the ad hoc
    panels where applicable and appropriate, but the Board
    differentiates between its decisions and the opinions of
    those panels by citing the latter as GPOCAB.  See, e.g.,
    Stephenson, Inc., GPO BCA 02-88 (December 20, 1991), Sl. op.
    at 18, fn. 20; Chavis and Chavis Printing, GPO BCA 20-90
    (February 6, 1991), Sl. op. at 9, fn. 9.
    41 The record on which the Board's decision is based consists
    of: (1) the Notice of Appeal, dated July 10, 1989; (2) the R4
    File (Tabs A-Q); (3) the Complaint, dated August 31, 1989;
    (4) the Respondent's Answer, dated October 2, 1989; (5) the
    Prehearing Conference Report, dated April 10, 1990; (6) the
    Report of Status Conference, dated April 23, 1992(hereinafter
    RSC); (7) the transcript of the hearing held on April 26,
    1992, and May 6, 1992, respectively; (8) the brief filed by
    the Appellant on June 25, 1992; and (9) the brief submitted
    by the Respondent on August 13, 1992.
    42 Although GPO claimed in Shepard I that the contractor's
    reprint of the product amounted to an "anticipatory
    repudiation" of the contract, the Board was unable to say, on
    the facts of that case, that the appellant's words or conduct
    manifested " . . . a positive, unconditional, and unequivocal
    declaration of fixed purpose not to perform the contract in
    any event or at any time."  See, Shepard I, supra, Sl. op. at
    9, fn. 12 (citing, Fairfield Scientific Corporation, ASBCA
    No. 21151, 78-1 BCA  13,082, at 63,908, mot. for reconsid.
    denied, 78-2 BCA  13,429, aff'd, 228 Ct.Cl. 264, 655.
    [Emphasis added.]  See also, Beeston, Inc., ASBCA No. 38969,
    91-3 BCA  24,241.  In that regard, it was not clear from the
    appeal record whether the contractor's refusal to reprint the
    publication  was based on an erroneously belief that
    customer-agency now wanted a higher quality book than
    originally specified, or that it was unable to deliver the
    reprint within the timeframe demanded by GPO; thus there was
    nothing to show that the appellant was intent on "walking
    away from the job."  Cf., M.V.I. Precision Machining, Ltd.,
    ASBCA No. 37393, 91-2 BCA  23,898; Kahaluu Construction
    Company, Inc., ASBCA No. 31187, 89-1 BCA  21,308.
    43 Default terminations-as a species of forfeiture-are
    strictly construed.  See, D. Joseph DeVito v. United States,
    188 Ct.Cl. 979, 413 F.2d 1147, 1153 (1969).  See also,
    Murphy, et al. v. United States, 164 Ct.Cl. 332 (1964); J. D.
    Hedin Construction Co. v. United States, 187 Ct.Cl. 45, 408
    F.2d 424 (1969).  Indeed, in the words of one contract
    appeals board, in exercising its right to terminate for
    default, the Government must "turn square corners in order to
    prevail."  Delfour, Inc., VABCA Nos. 2049, 2215, 2539, 2540,
    89-1 BCA  21,394, at 107,855 (citing, K & M Construction,
    ENG BCA Nos. 2998, et al., 73-2 BCA  10,034).  The board was
    quick to add, however, that this did not mean " . . . that
    the Government [needed to] display clairvoyance [or] the
    patience of Job in the management of its contracts."  Id.
    44 On October 29, 1992, certain provisions of the Federal
    Courts Administration Act of 1992, Pub. L. No. 102-572, 106
    Stat. 4506 (1992), became effective.  Pursuant to Title IX,
    the United States Claims Court was renamed the United States
    Court of Federal Claims.
    45 The standard "Default" clause identifies several grounds
    which will excuse defaulting conduct by contractors,
    including acts of the Government in either its sovereign or
    contractual capacity.  See, GPO Contract Terms, Contract
    Clauses,  20(c).  While the excusable events listed in the
    "Default" clause, all of which must be beyond the control and
    without the fault or negligence of the contractor, are set
    forth in the context of relieving the contractor from
    responsibility for excess reprocurement costs, it is well-
    settled that the same occurrences extend the time available
    for performance and make termination prior to that time
    improper.  See, e.g., FKC Engineering Company, ASBCA No.
    14856, 70-1 BCA  8,312.
    46 In any event, the Board rejects this argument of the
    Contractor as contrary to law and regulation.  See, Graphic
    Litho, GPO BCA 21-84 (February 4, 1985), Sl. op. at 19-21.
    The Respondent's Printing Procurement Regulation, expressly
    states that the only person authorized to make final
    determinations on whether products submitted by a contractor
    conform to contract specifications is the Contracting
    Officer.  PPR, Chap. XIII, Sec. 1,  4.f.  See, Hurt's
    Printing Company, Inc., supra, Sl. op. at 10, fn. 13.
    Indeed, the general view is that the Contracting Officer's
    discretion to decide whether a product is conforming or
    nonconforming is inherent in his/her administration of the
    contract.  See, Vogard Printing Corporation, GPOCAB 7-84
    (January 7, 1986), Sl. op. at 6 (citing, Thomas W. Yoder
    Company, Inc., VACAB No. 997, 74-1 BCA  10,424).
    47 Throughout these proceedings, the Appellant has maintained
    that the paper stock it used to print the National Survey, in
    particular, fully met the contract specifications.  See, note
    13 supra.  Based on the testimony at the hearing, as well as
    the documentary evidence in the record, see, R4 File, Tab I
    (GPO Paper Report); App. Exh. Nos. 9 (Beekman Report) and 12
    (GATF Report), the Board is convinced that the variations in
    the Respondent's paper from the quality standards established
    in the contract, were marginal.  Consequently, the Board also
    believes that if the only problem with the book had been the
    minor deviations in the paper stock from the specifications,
    the Contracting Officer would probably have accepted the
    books at a discount.  Cf., Graphic Litho, supra, Sl. op. at
    21-22; Dependable Printing, Inc., supra, Sl. op. at 26.  The
    reprint issue is a product of, and only concerns the binding
    defect.
    48 The "substantial compliance" or "substantial conformity"
    rule is a limited exception, created by law, to the doctrine
    which entitles the Government to strict compliance with its
    specifications.  See, Hurt's Printing Company, Inc., supra,
    Sl. op. at 17; Shepard I, supra, Sl. Op. at 19-20.  The rule,
    which is confined to situations where a contractor has timely
    shipped nonconforming goods which deviate from the
    specifications in only minor respects, affords defaulting
    contractors an opportunity to correct such defects.  See,
    Radiation Technology, Inc. v. United States, supra, 366 F.2d
    1005-06.  In order for that doctrine to apply to a particular
    shipment of nonconforming goods, the contractor must show
    that: (a) a timely delivery of goods was made; (b) he/she
    reasonably believed, in good faith, that the supplies
    conformed to the contract when shipped and that they would be
    acceptable; and (c) the defects are minor in nature and
    capable of correction within a reasonable period of time.
    Id., 366 F.2d at 1006. See generally, Cibinic and Nash, pp.
    680-84.  The Radiation Technology rule only protects
    contractors who can satisfy all elements of the test.
    49 The basic language of FAR  52.233-1(h) provides: "The
    Contractor shall proceed diligently with performance of this
    contract, pending final resolution of any request for relief,
    claim, appeal, or action arising under the contract, and
    comply with any decision of the Contracting Officer."  There
    is an alternative FAR  52.233-1 clause which adds the words
    "or relating to" to the underscored phrase.  The statutory
    underpinning for these provisions is to be found in the
    Contract Disputes Act of 1978 (CDA), 41 U.S.C.  601 et
    seq., which provides: "Nothing in this chapter shall prohibit
    executive agencies from including a clause in government
    contracts requiring that pending final decision of an appeal,
    action, or final settlement, a contractor shall proceed
    diligently with performance of the contract in accordance
    with the contracting officer's decision."  41 U.S.C. 
    605(b).
    50 This is true even if the contracting officer based the
    default decision on some other ground.  See, James B. Beard,
    D.O., ASBCA Nos. 42677, 42678, 93-3 BCA  25,976, at 129,171
    ("A contracting officer's termination decision may be
    sustained on other than the stated grounds as long as the
    alternate grounds existed at the time of termination."
    Citing, Joseph Morton Company, Inc. v. United States, [32 CCF
     73,277], 757 F.2d 1273, 1277 (Fed. Cir. 1985)).  It should
    also be noted that a cure notice is not required when a
    contract is terminated for default because of the
    contractor's repudiation.  See, James B. Beard, D.O., supra,
    93-3 BCA  25,976, at 129,172 (citing, Beeston, Inc., supra,
    91-3 BCA  24,241).  See also, Scott Aviation, ASBCA No.
    40776, 91-3 BCA  24,123); Superior Communications Services,
    Inc., ASBCA No. 38421, 89-3 BCA  22,236; Metal-Tech
    Incorporated, ASBCA No. 14828, 72-2 BCA  9,545.
    51 Under the "Disputes" clause, the contractor is required to
    follow the Contracting Officer's instructions for
    performance, "diligently," which in common parlance and the
    cases means nothing more than without undue delay.  GPO
    Contract Terms, Contract Clauses,  5(d).  In that regard,
    while dawdling or inaction by the contractor, perhaps for
    months as in Twigg Corporation, supra,, is usually the
    earmark of a "diligency" violation, the Board finds nothing
    in this record to indicate that even though the Appellant was
    only given a few weeks to comply, the passage of more time
    would have led McDaniel to change her mind.  Therefore, on
    the basis of this record, the Board cannot say that the
    Contractor was proceeding diligently with performance of the
    contract and compliance with directives of the Contracting
    Officer as the "Disputes" clause requires.
    52  This case should be distinguished from the situation in
    General Business Forms, Inc., in which the contractor's
    refusal to reprint the material covered by the contract was
    excused on the ground that there was no merit to the
    contracting officer's default decision.  General Business
    Forms, Inc., GPO BCA 2-84 (December 3, 1985), Sl. op. at 23.
    General Business Forms, Inc., simply stands for the
    proposition that if the publication is nonconforming because
    of a latent ambiguity in the contract specifications, the
    contractor is entitled to appeal to the Board without first
    reprinting the job, and a default termination based on the
    contractor's refusal to follow the contracting officer's
    directions will not be sustained.  In this case, there is no
    misunderstanding over the meaning of the contract
    specifications; i.e., both parties knew exactly what
    performance was expected from the Appellant.
    53 In that respect, the practice of the Board, and the ad hoc
    panels before it, is consistent with the Court's holding in
    Cascade Pacific International, which says that so long as a
    contractor has notice of its responsibility for excess
    reprocurement costs, a board may rule on that liability in
    conjunction with consideration of the propriety of underlying
    default termination.  Cascade Pacific International v. United
    States, supra, 773 F.2d at 293.  The Board and its
    predecessor panels have never insisted, contrary to some
    other contract appeals boards, that a defaulted contractor
    challenge the repurchase methods or cost calculations to
    litigate excess reprocurement costs . See, e.g., Picket
    Enterprises, Inc., GSBCA Nos. 9472, 9890, 10051, 10102,
    10426, 92-1 BCA  24,668; General Floorcraft, Inc., GSBCA No.
    11112, 91-2 BCA  24,026; John A. Fournier; John A. Fournier
    and Maryanne Fournier, PSBCA Nos. 2337, 2338, 2339, 2340,
    2377, 2378, 2379, 89-1 BCA  21,574.  Thus, there is no rule
    in the Board's jurisprudence holding that if a contractor
    loses on the merits of the default termination, and does not
    present evidence specifically objecting to the propriety of
    the reprocurement itself, the Government's cost assessment
    will be presumed to be correct, and will stand.  Picket
    Enterprises, Inc., supra, 92-1 BCA  24,668, at 123,095
    (citing, General Floorcraft, Inc., supra, 91-2 BCA  24,026,
    at 120,295).
    54 Apparently, the rule is different for Executive branch
    contract appeals, where, by statute, a contracting officer's
    decision is required for all contract claims by the
    Government, including claims for excess reprocurement costs
    following default.  CDA, 41 U.S.C.  605(a) ("[A]ll claims by
    the Government against a contractor relating to a contract
    shall be the subject of a decision by the contracting
    officer.").  See, Zan Machine Company, ASBCA No. 39462, 91-3
    BCA  24,085, at 120,542; Alonso & Carus Iron Works, Inc.,
    ASBCA Nos. 37967 and 38312, 90-2 BCA  22,642, at 113,573.
    55 By way of contrast, although the Board affirmed the
    contracting officer's default termination decision in R.C.
    Swanson Printing and Typesetting Company, it reserved ruling
    on the excess reprocurement cost issue for another
    proceeding.  R.C. Swanson Printing and Typesetting Company,
    Sl. op. at 52-53, fn. 28.  The reason for the Board's
    reluctance was rooted in the nature of the contract itself-a
    "requirements" contract-and its uncertainty whether all
    excess reprocurement costs had finally been assessed by the
    time the matter was ripe for decision.  Id.  In that regard,
    the Board was applying the well-settled principle that where
    a "requirements" contract is defaulted, excess reprocurement
    costs cannot be assessed and litigated before the end of the
    original contract term, and the Government will forfeit a
    premature assessment.  See, Whitlock Corporation v. United
    States, 141 Ct. Cl. 758, 159 F.Supp. 602, cert. denied, 358
    U.S. 815 (1958); C. Howdy Smith, AGBCA No. 90-154-1, 92-2 BCA
     24,884; Zan Machine Company, supra, 91-3 BCA  24,085;
    American Photographic Industries, Inc., ASBCA Nos. 29272,
    29832, 90-1 BCA  22,491, mot. for reconsid. denied 90-2 BCA
     22,728; Glenn's Heating, ASBCA No. 32723, 87-1 BCA 
    19,355.  In such cases, the practice is to decide the
    underlying default termination issue and leave the excess
    reprocurement cost question open for a further contracting
    officer's decision.  Zan Machine Company, supra, 91-3 BCA 
    24,085, at 120,542; American Photographic Industries, Inc.,
    supra, 90-1 BCA  22,491, at p. 112,894 (citing, Canadian
    Commercial Corporation, ASBCA No. 20512, 76-2 BCA  12,054);
    Glenn's Heating, supra, 87-1 BCA  19,355, at 97,899.  See
    also, Chavis and Chavis Printing, supra, Sl. op. at 19, fn.
    10 (although the Board affirmed the contracting officer's
    default termination decision, it made no ruling on the
    contractor's liability for excess reprocurement costs because
    there was nothing in the record to indicate whether the
    defaulted supplies had been repurchased, and if so, the
    amount of excess costs).
    56 This clause is practically identical to the same clause in
    the FAR concerning the default of fixed-price supply and
    service contracts.  FAR  52.249-8(b) ("If the Government
    terminates this contract in whole or in part, it may acquire,
    under the terms and in the manner the Contracting Officer
    considers appropriate, supplies or services similar to those
    terminated, and the contractor will be liable to the
    Government for any excess costs for those supplies or
    services. . . .".  [Emphasis added.]).
    57 In the Board's opinion, this is an additional reason, if
    not the main one, why a defaulting contractor is not required
    to seek a separate final decision from the contracting
    officer concerning the post-termination assessment of excess
    reprocurement costs.  See, Custom Printing Company, supra,
    Sl. op. at 14.
    58 In its decision, the court essentially synthesized the
    standards set forth by the appeals board in Environmental
    Tectonics.  See, Environmental Tectonics, supra, 78-1 BCA 
    12,986, at 63,308-10.  The Environmental Tectonics criteria
    were adopted for GPO reprocurement contracts four years
    earlier by the ad hoc panel in ATC Decal Company.  See, ATC
    Decal Company, supra, Sl. op. at 8 ("The three elements of a
    Government claim for excess reprocurement costs are
    similarity-the Government must repurchase products
    substantially similar to those that were to be provided by
    the defaulted contractor, incurrence-the Government must
    actually reprocure and thereby incur extra costs, and
    mitigation-the Government must act reasonably to minimize the
    excess costs and damages that result from the default.
    [Citation omitted.]"  [Emphasis added.]).
    59 However, even if the adjudicatory body is inclined to
    reduce rather than forgive excess costs, the record must
    still provide a proper basis for calculating them, otherwise
    the Government's recovery will be denied.  See, B & M
    Construction, Inc., supra, 93-1 BCA  25,431, at 126,670
    (citing, Matthews Company, AGBCA No. 459, 76-2 BCA  12,164,
    mot. for reconsid. denied, 77-1 BCA  12,434); Barrett
    Chemical Company, GSBCA 4544, 77-2 BCA  12,625; ASC Systems
    Corporation, DOTCAB 73-37A, 78-1 BCA  13,119, affirmed, 223
    Ct. Cl. 672 (1980).
    60 In those instances where the Government's failure of proof
    provides the defaulted contractor with a complete defense,
    recovery, if any, is limited to common law damages, which the
    Government must show were both reasonable and foreseeable at
    the time of contracting.  Francis M. Marley v. United States,
    191 Ct.Cl. 205, 221, 423 F.2d 324 (1970); Gibson Forestry,
    AGBCA No. 87-325-1, 91-2 BCA  23,874.
    61 See, note 39 supra.  In that regard, it is well-settled
    that disparate treatment of the defaulted and reprocurement
    contractors constitutes a material change.  B & M
    Construction, Inc., supra, 93-1 BCA  25,431, at 126,668.
    62 Occasionally, a broader test for determining similarity is
    applied, namely whether the changes in specifications would
    have fallen within the scope of the "Changes" clause of the
    defaulted contract.  See, e.g., Dave's Aluminum Siding, Inc.,
    ASBCA No. 34092, 90-3 BCA  23,053; Skiatron Electronics and
    Television Corporation, ASBCA No. 9564, 65-2 BCA  5098.
    However, at least one appeals board has suggested that
    variations in specifications falling within the scope of the
    "Changes" clause will not cause the reprocured items to be
    dissimilar unless they cause a functional change in the item.
    Guenther Systems, Inc., ASBCA No. 18343, 77-1 BCA  12,501.
    Since the Government has broad rights under the "Changes"
    clause, the application of this yardstick seems to be limited
    to special fact situations, and is not widely used.  See
    generally, Cibinic and Nash, pp. 765-66.
    63 As explained by Cibinic and Nash: "The rationale for this
    dichotomy is that when the changes in the reprocured item are
    substantial and make the work more "onerous," the
    reprocurement price does not serve as a valid basis for
    comparison."  See, Cibinic and Nash, p. 763 (citing, Romeo P.
    Yusi & Company, ASBCA No. 19810, 76-1 BCA  11,835; Octagon
    Process, Inc., ASBCA No. 3981, 58-1 BCA  1,773.
    64 The Government's mitigation efforts should, in appropriate
    circumstances, include advertising the reprocurement
    solicitation in the Commerce Business Daily.  See, e.g., Auto
    Skate Company, Inc., GSBCA No. 10510, 91-3 BCA  24,260;
    Continental Chemical Corporation, GSBCA 4483, 76-2 BCA 
    11,948.

    65 GPO procedures are consistent with this general practice
    in Government reprocurements.  See, note 25 supra (citing,
    PPR, Chap. XIV, Sec. 1,  3.f.(2)).
    66 In effect, the law creates a rebuttable presumption that
    the repurchase could have been completed at the price
    previously quoted by a lower bidder if an effort had been
    made to do so.  See, Dillon Total Maintenance, Inc. v. United
    States, 218 Ct.Cl. 732 (1978); American Marine Upholstery
    Company v. United States, 170 Ct.Cl. 564, 354 F.2d 577
    (1965); AAA Janitorial Services, ASBCA No. 9603, 67-1 BCA 
    6,091.  Furthermore, where the Government fails, without
    adequate explanation, to solicit the second lowest bidder on
    the defaulted contract, that bid will set the limit of
    recovery for excess reprocurement costs.  See, Birken
    Manufacturing Company, supra, 90-2 BCA  22,845, at 114,718;
    Sequal, Inc., supra, 88-1 BCA  20,382, at 103,067.  See
    also, Prestex, Inc., ASBCA Nos. 21284, 21372, 21453, 21467,
    23184, 81-1 BCA  14,882, at 73,613-14, aff'd on
    reconsideration, 81-2 BCA  15,397; Environmental Tectonics
    Corp., supra, 78-1 BCA  12,986; T.M. Industries, supra, 77-1
    BCA  12,400, aff'd on reconsideration, 77-1 BCA  12,545;
    Solar Laboratories, Inc., supra, 76-2 BCA  12,115, at
    58,196.
    67 There is also nothing in the record which would tell us if
    the Appellant was solicited on the reprocurement.  However,
    whether or not to solicit a bid from or award a contract to
    the defaulted contractor is a matter within the sound
    discretion of the Contracting Officer, leaving for Board
    consideration on appeal the question of whether such
    discretion was abused.  See, e.g., Venice Maid Company, Inc.
    v. United States, supra, 639 F.2d at 697; Astro-Space
    Laboratories, Inc. v. United States, supra, 200 Ct.Cl. 282,
    470 F.2d at 1017; Birken Manufacturing Company, supra, 90-2
    BCA  22,845, at 114,716; American Technology Resources,
    supra, 89-3 BCA  22,239, at 111,798.  See also, Tachtronic
    Instruments, Inc., ASBCA No. 24473, 81-2 BCA  15,253.
    68 By contrast, all of this information is in the record with
    regard to the original solicitation (R4 File, Tab A).  See,
    note 26 supra.  Thus, we know that GPO received 13 bids in
    response to the initial invitation, and that the Appellant
    submitted the lowest bid ($25,938.00) while the highest offer
    ($47,226.00) was submitted by Peake Printers (R4 File, Tab
    A).  Consequently, the bid range from the lowest to the
    highest offers was $21,288.00, and Pensacola's price
    quotation of $34,227.88, as the median bid (6 bids both above
    and below it), was $12,998.12 lower than Peake's, but
    $8,289.00 higher than the Appellant's (R4 File, Tab A).
    69 The record discloses that in this case, the Appellant was
    required to produce "one complete set for film negatives" (R4
    File, Tab D).  That requirement was omitted from the
    reprocurement purchase order (R4 File, Tab Q).  Furthermore,
    the Contractor had to reshoot 22 duotones for revised proofs
    before production started, and the contract was modified to
    reimburse the Contractor an additional $850.00 for that extra
    work (R4 File, Tabs E, F and G).  Tr. 108-09.  Although there
    is no evidence of record on the point, it seems to the Board
    that the reason Pensacola was not required to produce "one
    complete set for film negatives" was because the Appellant's
    film work was supplied to the reprocurement contractor as
    part of the Government-furnished material (R4 File, Tab P, p.
    1).  However, it also appears that the Appellant was given
    credit for this work by the Contracting Officer when he
    calculated the amount of excess reprocurement costs.  See,
    note 27 supra.
    70 In some cases, such as the repurchase of supplies or
    services under a defaulted "requirements" contract, a
    premature assessment of excess costs will be forfeited, but
    otherwise the matter will be returned to the contracting
    officer for a future assessment at an appropriate time in the
    future.  See, note 55 supra.
    71 See, note 59 supra.
    72 In its prayer for relief, the Appellant also asks the
    Board to award it "reasonable attorneys fees and expenses in
    having to bring this appeal."  See, Complaint,  5(c), p. 4.
    However, such a remedy is beyond the power of the Board to
    grant.  The Board is aware, of course, that since 1985 its
    counterparts in the Executive branch are authorized to award
    attorneys fees under the Equal Access to Justice Act (EAJA),
    5 U.S.C.  504, to prevailing parties in administrative
    hearings, because Congress amended that law to expressly
    include the proceedings of agency contract appeals boards
    held pursuant to the CDA within the definition of an
    "adversary adjudication."  See, 5 U.S.C.  504(b)(1)(C).
    See, e.g., Marty's Maid and Janitorial Service, GSBCA Nos.
    11980-C (10614), 11981-C (10996), 93-2 BCA  25,713; JR and
    Associates, ASBCA No. 41377, 92-3 BCA  25,121.  Prior to
    1985, CDA contract appeals boards were without jurisdiction
    to award attorneys fees and litigation costs under the EAJA.
    Fidelity Construction Company v. United States, 700 F.2d
    1379, 1385 (Fed. Cir. 1983), cert. denied, 464 U.S. 826; C.S.
    Smith Training, Inc., DOT CAB No. 1434, 84-3 BCA  17,700.
    Basically, it was the view of contract appeals boards that
    the section of the Federal Procurement Regulation (FPR) which
    related to the submission of fees and costs in termination
    for convenience cases, 41 CFR 1-15.205-42(f)(1), did not
    extend to fees involved in attempting to overturn a
    termination for default.  See, C.S. Smith Training, Inc.,
    supra, 84-3 BCA  17,700, at 88,298 (citing, A.T. Kearney,
    Inc., DOT CAB No. 1263, 83-2 BCA  16,835, motion for
    reconsid. denied, 84-1 BCA  17,052).  The Board is not a
    creature of the CDA because GPO, as a Legislative branch
    agency, is excluded from the coverage of that statute.  See,
    Tatelbaum v. United States, 749 F.2d 729 (Fed. Cir. 1984).
    See, 41 U.S.C.  607(a) (establishing agency boards of
    contract appeals within "an executive agency").  Furthermore,
    because the EAJA also excludes the Legislative branch from
    its sweep, the Board derives no powers or authority from that
    law, either.  5 U.S.C.  504(b)(2) (incorporating the
    definitions of 5 U.S.C. 551, which excludes "the Congress"
    from the definition of "agency").  Cf., Mayo v. Government
    Printing Office, 9 F.3d 1450, 1451 (9th Cir. 1993) (GPO
    excluded from coverage of the Freedom of Information Act, 5
    U.S.C.  552); International Graphics v. United States, 4
    Cl.Ct. 186, 197 (1983) (GPO not legally bound to follow the
    prescripts of OMB Circular A-76, which establishes the
    guidelines for determining whether commercial or industrial
    type work need by the Government should be contracted-out to
    the private sector or performed in-house using Government
    facilities and personnel); Gray Graphics Corporation v. U.S.
    Government Printing Office, et al., Civil Action No. 82-2869
    (D.D.C. 1982) (GPO not covered by the Small Business Act, 15
    U.S.C.  631 et seq.).  See also, Chavis and Chavis Printing,
    supra, Sl. op. at 7, fn. 7 (where the Board held that GPO was
    not subject to the Prompt Payment Act of 1982, as amended
    (PPA), 31 U.S.C.  3901 et seq., because the PPA defined its
    agency coverage in terms of 5 U.S.C.  551).  As indicated
    earlier, the Board takes its authority from the "Disputes"
    clause of the contract.  See, GPO Contract Terms, Contract
    Clauses,  5.  See also, e.g., R.C. Swanson Printing and
    Typesetting Company, supra, Sl. op. at 27-28, 41; The Wessel
    Company, Inc., supra, Sl. op. at 32-35, 46.  As such, the
    Board, its proceedings, and its powers, are ". . . closer to
    the administrative practice followed in contract appeals
    prior to the enactment of the CDA, . . .".  B. P. Printing
    and Office Supplies, supra, Sl. op. at 20.  Consequently, it
    is important to note that GPO Contract Terms, which is
    incorporated by reference in the Appellant's contract,
    requires the application of the provisions of GPO Procurement
    Directive 306.2, Subject: Contract Cost Principles and
    Procedures, dated April 1, 1988 (GPO Contract Cost
    Principles) to GPO contracts, in appropriate circumstances.
    GPO Contract Terms, Contract Clauses,  45.  See, Banta
    Company, GPO BCA 03-91 (November 15, 1993), Sl. op. 34-35.
    Among the circumstances identified in GPO's procurement
    regulations which mandate the use of GPO Contract Cost
    Principles, is the determination of costs under terminated
    contracts.  PPR, Chap. VIII, Sec. 1,  3.b.(1).  In that
    regard, GPO Contract Cost Principles expressly states, in
    pertinent part, that: "[c]osts of legal . . . services and
    directly associated costs incurred in connection with . . .
    defense against Government claims or appeals, or the
    prosecution of claims or appeals against the Government are
    unallowable [Cross reference omitted.]."  GPO Contract Cost
    Principles, p. 28,  3.41(d).  [Emphasis added.]  Thus, the
    Board has no authority to award reasonable attorneys fees and
    appeal expenses in proceedings such as this.  Cf., Cloverleaf
    Enterprises, Inc. (May 8, 1980), Sl. op. at 14 (citing, Dale
    Construction Company v. United States, 168 Ct.Cl. 692,
    denying recovery of attorneys fees for prosecuting disputes
    before administrative boards because they were not incurred
    in the performance of the contract).