U.S. GOVERNMENT PRINTING OFFICE BOARD OF CONTRACT APPEALS Appeal of GRAPHIC LITHO Jacket No. 681-153 GPO BCA 21-84 February 4, 1985 MICHAEL F. DiMARIO, Administrative Law Judge OPINION DECISION This appeal on the record, timely filed by Graphic Litho (GL), a printing firm under contract with the United States Government.Printing Office (GPO), arises under the "Disputes" clause of the contract. The appeal is to the rejection of GL's final product as not being in conformance with certain specifications and the subsequent 25 percent reduction in purchase price taken by GPO pursuant to a contract option for acceptance of nonconforming products. The Board, after due consideration of the contract terms and facts available to it in the record, denies the appeal. FINDINGS OF FACT Appellant, Graphic Litho (GL), Lawrence, Massachusetts, was awarded a contract, Purchase Order M5084, Jacket No. 681-153, by Respondent, United States Government Printing Office's (GPO) Denver, Colorado Regional Printing & Procurement Office (DRPPO), on December 21, 1983, in the amount of $11,947 (Exhibit 1-4). The contract, which by reference incorporated the specifications accompanying the Invitation for Bids, the telephone bid, and written certification thereof, "GPO Contract Terms No. 1 (GPO Pub. 310.2), GPO Quality Assurance Through Attributes Contract Terms" (GPO Pub. 310.1, May 1979, revised 6/1/81), MIL-STD-105, and "Government Paper Specification Standard, No. 9" dated Dec. 1981, called for the appellant to produce some 28,000 maps for the U.S. Department of Interior, Bureau of Land Management (BLM), Oregon State Office, Portland, Oregon pursuant to the requisition of BLM's Denver Service Center (Requisition No. 3-16819I-LM) (Exhibits 1-1, 2, 3, & 4). All the maps were to be on paper furnished by the contractor in accordance with the following paper specification: "White Offset map, lithographic finish equal to JCP Code E-30, BASIS - 500 sheets, size 25 x 38, Weight - 60." Equal to JCP Code E-30 is by asterisk referenced in the specifications to "Government Paper Specification Standard, No. 9 dated Dec. 1981." (Exhibit 1-1, page 1.) Nineteen thousand of the maps - four thousand 1:500,000 scale and fifteen thousand 1:1,000,000 scale - were to be folded to approximately 8 1/2 x 11 inches "with . . . a suitable number of vertical accordion folds and angle folds." The remaining 9,000 maps were to be rolled in units of not more than 100 and placed in mailing tubes (Exhibit 1-1, page 1). The finished products so produced were to be delivered complete F.O.B. destination on or before January 30, 1984 (Exhibit 1-1, page 1). In addition, the first six maps of each item completed and one set of the contract specifications were to be considered inspection samples and were to be furnished DRPPO for inspection and testing in accordance with GPO Pub. 310.2 (GPO Contract Terms No. 1). (Exhibit 1-1, page 4.) The contract was made expressly subject to "the terms and conditions (as applicable to the products ordered) of GPO Pub. 310.1, (Exhibit 1-1, page 1) . "Quality Assurance Through Attributes - Contract Terms," and MIL-STD-105, "Sampling Procedures and Tables for Inspection by Attributes," in effect on the date of issuance of the invitation for bid (Exhibit 1-1, page 3). Moreover, the Government reserved the right to verify product quality by using the applicable procedures contained in GPO Pub. 310.1 and MIL-STD-105 (Exhibit 1-1, page 3). The specifications referenced Pub. 310.1 for Acceptable Quality Level (AQL) (Exhibit 1-1, page 3): Pub. 310.1, paragraph 1-6. Acceptable Quality Levels (AQLs) - The AQLs are the maximum number of defects per 100 copies that the Government will accept at the contract price. Unless otherwise specified, the AQLs are 1.0 for critical defects and 6.5 for total defects. "Items which fail to meet the quality requirements of these specifications shall be processed pursuant to paragraph four, "Rejection" of GPO Pub. 310.1." Apparently, the job was delivered by the contractor to the DRPPO in conformance with the established Inspection and Testing delivery schedule, since the DRPPO Quality Assurance Printing Specialist by transmittal of February 6, 1984, requested the Superintendent, GPO Regional.Printing Procurement Department, Washington, DC to: "Please have attached maps tested for compliance to specifications for WHITE, OFFSET MAP, LITHOGRAPHIC FINISH basis 25 x 38 sub 60, equal to JCP E-30." (Exhibit 1-5, page 1.) On February 8, 1984, the Superintendent RPPD requested that the GPO Quality Control & Technical Department test the paper for conformance with the contract specifications which he forwarded together with the samples (Exhibit 1-5, page 2). GPO Pub. 310.1, paragraph 4-3 states: "4-3. Paper Attribute - The Government will evaluate the paper attribute by inspecting and testing paper characteristics in individual copies of publications. The paper characteristics will be tested in accordance with the current edition of "Government Paper Specification Standards, Part 2 - 'Testing Standards'", which is published by the Joint Committee on Printing. When each copy is inspected, each applicable paper characteristic that deviates from specifications will be assessed demerits in accordance with the demerit table for that characteristic. For each individual copy, the sum of demerits for all applicable paper characteristics will be classified as follows: Tolerance Table for the Paper Attribute Sum of Demerits Classification of Defect Less than 31 None 31 to 72 Major More than 72 Critical" On February 13, 1984, the Paper and Physical Testing Division, Quality Control & Technical Department, GPO, issued its inspection report to the RPPD (Exhibit 1-6). The paper was found not to be equal to specifications in that it failed the requisite tests for fold, smoothness, and general appearance as follows: SUPPLIER, SAMPLE SPECIFICATIONS TEST RESULTS DIFFERENCE OR BIDDER NUMBER, ETC Items 1 & 2 JCP E-30, 60# Item 1 - Fold 35 each direction cross = 24 -31.4% (36) wire felt wire felt - Smoothness 140 - 80 Sheffield 180 170 +28.6% +21.4%(36) - General Appearance Match Std. Sample Color is fair-FMC II DE =3.2(12)1/ Item 2 cross machine cross machine - Fold 35 each direction 7 18 -80% -48.6% (36) wire felt wire felt - Smoothness 140 - 80 Sheffield 235 230 +67.9% +64.3% (36) - General Appearance Match Std. Sample Color is fair- FMC II DE =4.6(12)1/ INTERPRETATION EQUAL TO SPECIFICATIONS. Jacket NOT EQUAL TO SPECIFICATIONS. See above for dtails. PQI = 16 on each item. 2/ The numbers in parenthesis in the right hand column are demerits assessed.in accordance with the demerit table for paper attributes. GPO 310.1 (page 39 et seq.) is set forth in pertinent part as follows: 1/ FMC II is a symbol used by the testing laboratory to indicate the mathematical formula used in computing DE or Delta E which is the color difference between the standard sample and sample provided by the contractor. 2/ PQI is a symbol used by the laboratory to indicate Product Quality Index, as required by Part IV of the Government Paper Specification Standards, supra. It is derived by subtracting the total number of demerits (in this case 84) from 100; thus, the PQI of 16.) "QUALITY ASSURANCE THROUGH ATTRIBUTES PROGRAM PAPER ATTRIBUTE 4. Bursting Strength: Deficiency: Demerit Table Less than 10 pct 4 10-25 pct 12 More than 25 pct 36 Example: Spec (30) x 25 pct=7.5; 30-7.5=22.5; Less than 22.5 Bursting Strength=36 demerits. 7. Finish (Smoothness): a. "Precision Requirements" all stocks when so designated. Deficiency: Demerit Table Less than 5 pct 4 5-10 pct 12 More than 10 pct 36 b. "Regular Requirements" all stock when so designated or if no designation in solicitation. Deficiency: Same as 4 above. Example: Spec (50-125) x 25 pct; 50 x 25 pct=12.5; 125 x 25 pct= 31.25; 50-12.5=37.5; 125+31.25=156.25. Less than 37.5 or more than 156.25=36 demerits. 8. Folding Endurance--Same as 4 above." Thus, each item tested had a total of 84 demerits. As a result of the tests the paper used by the contractor was deemed to be critically defective by the DRPPO (Exhibit 1-7). A "critical defect" is defined in paragraph 1-3, GPO 310.1 as: " . . . a serious deviation from specifications. Critical defects are designated in the tolerance tables for . . . paper attribute [sic]." On March 14, 1984, the contractor was telephonically notified of the extent of the deficiency and the 25 percent reduction . He voiced his objection to the extent of the reduction (Exhibit 1-7). On March 15 the contracting officer confirmed the telephone notification in writing stating the 25 percent reduction of the adjusted purchase order price as $3,090.75, and formally advised the contractor of his right to protest the action pursuant to GPO Publication 310.2, Section 2-3, "U.S.:Government Printing Office Contract Terms No. 1." The contracting officer, as enclosures to the letter, furnished the contractor GPO Form 913-M, contract modification, decreasing Purchase Order M5084 by the above stated dollar amount and setting forth the Government's willingness to accept the defective maps at the stated 25 percent discount. Also enclosed were a copy of the paper test results and GPO Publication 310.1 and 310.2 (Exhibit 1-8). By letter dated March 16, 1984, the BLM Printing Specialist set forth the specification for the paper required by its requisition, supra and requested that a paper test of the product, apparently not having been informed that such test had already been conducted (Exhibit 1-10). The letter had enclosed with it a BLM undated memorandum from the Chief, Branch of Cartometrics D-417 to the BLM Printing Specialist wherein it cites the JCP Code E-30 or equal specification and states: "This specific paper has folding endurance and contains long grain wood fibers to prevent cracking at the folds. With the excessive handling and refolding of these maps in the various offices, this quality is a must. The surface is relatively smooth which promotes better ink holdout during printing with the 4-color mechanical process plus a brown color." By letter to the Public Printer, U.S. Government Printing Office, Washington, DC, dated May 21, 1984, and sent to the DRPPO in accordance with GPO regulations, appellant appealed the contracting officer's decision setting forth the following relevant points: 1. "... special emphasis should have been made in the bid jacket specification pertaining to the particular kind of paper (E30) requested due to its general unavailability, scarceness and stringent requirements for manufacture. 2. "As printers we do not have the testing facilities at our disposal to evaluate paper to such requirements . . . neither do the paper merchants and in some cases neither do the paper manufacturers . . . mills I contacted could not test for folding endurance but only for tear strength. 3. "As printers we can only evaluate paper by its general visual characteristics such as color, opacity, thickness, etc. 4. "The stock we used . . . we have used for general commercial map work without problems. 5. "The job was press inspected and no question was raised concerning the paper. 6. "It was brought to my attention that it did not meet your E30 specifications after the job was delivered. . 7. "Since that time I have attempted to locate a source for this kind of paper without success . . . I have submitted numerous samples of various manufacturers to your Washington testing office and so far all have failed. Tests are still ongoing. As further evidence of the general scarcity of this kind of paper I intend to furnish you with names of kinds of stock and test results in the near future. As of this writing I still do not know where paper to meet your E30 specifications can be obtained. 8. " . . . the jacket specification is negligent [sic] in not alerting the prospective bidder sufficiently of the stringent stock requirements . . . and the likely difficulty in obtaining it. 9. "Had we been alerted by the specifications of the special nature of this paper we would never have been able to locate the stock in time for bid opening . . . ." The letter then states that "the $3,090.75 deducted . . . was unduly severe and unreasonable . . . ." (Exhibit 1-12.) By letter July 19, 1984, the Chief, Branch of Office Services, Denver Service Center BLM, in response to a request from DRPPO to restate its paper requirement justification states: "The Bureau of Land Management requested that this entire order be printed on White Offset Map, Lithographic Finish, 60 lb., equal to JCP Paper Standard E-30. Test results furnished by GPO (per BLM's request) indicated that the order was printed on White Offset Book paper. The stock that was requested by BLM provides for high quality multicolor printing (level 111 attributes was required) and superior folding endurance. The maps are used extensively in the field by Government Agencies and the general public and require frequent unfolding and folding. The White Offset Book paper will not stand up to this type of usage without eventually separating at the folds. This imposes extreme hardships on the user in having to obtain replacement maps which may not be [readily] available and additional costs which would have to be borne by the user in obtaining any replacement maps." (Exhibit 1-15.) By letter dated August 22, 1984, the appellant elected that this appeal be "by submission of written documentation only" and submitted the following additional relevant explanation and material: " . . . a form letter (Ex. A) was sent by our firm to some 19 paper manufacturers to determine the availability of stock meeting GPO Spec. JCP E30. This was done after . . . notification . . . that the stock . . . used did not meet specifications. "Responses . . . indicated that five of these companies manufactured a sheet equal to JCP E30 . . . one company . . . required a 20,000 lb minimum order which effectively eliminated their sheet . . . for this procurement. Another company . . . did make it but were not sure the shade of white would meet specifications . . . . This.left three companies out of nineteen who answered affirmatively and were able to submit samples . . . to be tested and approved. "This whole process, from the date of . . . our letter to the date of approval by GPO, took approximately six weeks. . . . a positive response of only 15.7 percent of the companies polled . . . . However, . . . our inquiries [that] took place prior to the above survey . . . indicated that no dealer or merchant knew of any paper that met the GPO Spec. JCP E30. Approximately 12 dealers were contacted by phone . . . . This negative response led to our subsequently sending . . . letters to manufacturers." The letter goes on to restate in substance the same relevant points set forth in appellant's letter of May 21, 1984. In further support of appellant's contention and recommendation that: "[s]uch stock is not readily available and a cautionary note to this effect should be included as a part of the paper requirement description on the Jacket IFB . . .," the appellant enclosed an IFB issued by the U.S. Geological Survey which appellant asserts: " . . . provided for possible difficulty . . . in obtaining stock by: 1. listing . . . possible sources 2. requesting samples to be submitted with bid to be tested 3. allowing bidder to submit further samples if the first samples failed." (Exhibit 3.) By letter of November 16, 1984, to this Board, the appellant further set forth its complaint as follows: Complaint "Our complaint and argument is set forth in my letters of May 21 and August 22. The basis of my complaint is the following: 1. The paper specified by GPO for J681-153 was not available under ordinary commercial circumstances and the Jacket specifications should have alerted the printer to this fact. 2. The penalty was too severe and arbitrary. The value of the product which was accepted and used by the Government was not diminished by 25% ($3090.00) due to failure to use stock which met (JCP E30). The difference in cost between JCP E30 and the stock used would have been 5c per pound at most which would amount to a net difference in cost of $300.00 for the approximately 6000 lb. of paper involved. 3. The job including the paper it was printed on was approved by an agency representative at our premises on January 26 and 27. (see attachment Ex. F & G). We believe the agency representative should have verified the stock specifications at that time. If he had identified the problem then, our exposure to damage by running the job on the wrong paper would have been eliminated. At least the paper could then have been used for another job." (Exhibit 6.) The appeal comes to the Board in this form. ISSUES PRESENTED 1) Whether a successful bidder whose final work product has been rejected as being nonconforming to a critical express contract specification may in mitigation of the rejection object to the specification because it did not include a statement warning of the limited extent of commercial availability of supply, when by the bidder's own admission, it made no inquiry or investigation of such availability prior to its bid or subsequent performance. 2) To what extent, if any, is the Government, as a consequence of its "OK to print" after press sheet inspection, bound to accept a nonconforming paper product supplied by a vendor performing printing services. 3) Was the Government's imposition of a 25 percent purchase price reduction for the nonconforming product justifiable under the facts of the case and the terms of the contract. DISCUSSION The specification for paper required to be supplied by the appellant was detailed and clear in its terms to the extent that it called for a particular type, basis size and weight, color, and need to be equal to a certain Government paper specification standard identified cryptically as "Equal to JCP Code E-30" with additional reference to the publication detailing the specification. (The referenced specification was established in 1977. The publication containing it was published in 1981.) It is the belief of the Board that such specification, especially in its encryption, was more than adequate to put any reasonably prudent prospective bidder on notice that the needs of the Government could only be met by supplying conforming paper. Such needs were not arbitrarily or capriciously arrived at by the Government. Rather, they were set forth because the resulting paper had a particular fiber makeup and surface texture. These characteristics were required because of the need to have a high quality, durable folded map product which would withstand frequent unfolding and refolding over long periods of time by both Governmental and general public users. As to the question of commercial availability of the specified paper stock, we believe the inquiries made by the appellant of distributors and manufacturers after the rejection of its final product are inquiries it should have made before it submitted its bid. Even a merely cursory inquiry by appellant would have revealed the extent to which appellant's usual suppliers could meet this need and at what cost, a necessary bit of information in formulating a responsive and responsible bid. Indeed, appellant could have inquired of respondent in an attempt to ascertain the names of potential vendors of the required stock had it chosen.to do so. The appellant's letter of May 21, 1984, however, shows that such undertaking was never contemplated by the appellant, wherein it states that "as printers we can only evaluate paper by its general visual characteristics such as color, opacity, thickness, etc. The stock we used on this particular jacket we have used for general commercial map work without problems." The question of commercial availability was discussed by the Armed Services Board of Contract Appeals in the appeal of Kepner Plastics Fabricators, Inc., ASBCA, No. 23857, May 7, 1982, 82-1 BCA ¶ 15,792. In that case the contract had an express "standard product" clause, which stated: "Except where modified herein, it is intended that the equipment and its component parts shall be a regular commercial product of the manufacturer or his suppliers" (Page 78,223). Part of the specification was for barrier material to be "constructed of a nonporous,- flexible material with a breaking strength not less than 450 lb. per inch of width." The barrier material was subject to being tested under express testing procedures. The contractor wrote to its fabric supplier to notify it that the contractor was the low bidder on the solicitation and requested a 30-day delivery on 400 yards of fabric to be used for the first test. Subsequently, the supplier notified the contractor that there was no commercially available fabric on the market meeting the specifications. After checking another supplier with similar results, the contractor notified the Government engineering representative of the situation. The representative stated that he was aware of the problem and referred the contractor to another level Government engineering representative. After also being apprised of the difficulties the latter representative told the contractor he would get back to him. Some time later, not having heard from the engineering representative, the contractor wrote to the Government setting forth the problem and its efforts of prior notification. To avoid further delay it asked the Government to modify the specification for testing and also to extend the time of performance because of the inherent delays. After writing the letter the contractor contacted 10 other fabric suppliers again with negative results. Moreover, this was the first time the Government had used the specification in question. Also, there was evidence that in an earlier contract with another contractor similar problems had been encountered with part of the specifications. In that instance the Government waived part of the requirements. With these facts now known to the Government, the contractor furnished the Government officer in charge of contracts certain literature from one of the suppliers it had contacted recommending that the test procedures be changed. The Government then reviewed test results of 11 fabrics and concluded that the specifications in question were impossible to meet with commercially available fabrics. The Government then proceeded to grant appellants' earlier request for test modifications and time extension, the latter being given without monetary consideration from the appellant because of the extensive amount of time it took to resolve the contractor's request. The contractor signed the modifications to the specifications but in so doing insisted they be "without prejudice to any future equitable adjustments to the contract or for additional time resulting from (the contractors) efforts to comply with the test specification." The Government objected to this provision, and as a result, the contractor deleted the provision, but in so doing made it clear that it " . . . expects that it will not be foreclosed from pursuing whatever rights it might have under the amended contract." Other actions followed, including discussion of the fabric test specification at a convention of fabric manufacturers which the Government attended. The result of.all this was that another revision of the test specification was established by the Government but it was not applied to the contract at hand. Subsequent to the completion of the contract, the contractor filed a claim for equitable adjustment which the Government denied on the basis of the contractors " . . . failure to obtain a fabric that complied with the contract specifications . . . ." The contractor appealed to the ASBCA. The Government in its answer averred that the contractor had failed to meet its affirmative burden of proof to establish that the fabric was not commercially available when the contract award was made. Moreover, it alleged that the modified specification agreed to by the contractor was an accord and satisfaction. The ASBCA agreed with the Government with respect to the burden upon the contractor but ruled that it had indeed been met and that there was no accord and satisfaction had through the modification. The facts in Kepner are clearly distinguishable from the facts we are considering although they touch upon all the same elements, since the contractor's efforts, while put forth after it had bid, were nevertheless before it had attempted performance. For this reason we believe the facts we are considering comport more with Continental Heller Corporation, ASBCA No. 23551, 80-1 BCA ¶ 14,334 (Mar. 11, 1980). There the Armed Services Board of Contract Appeals in considering an analogous argument by an appellant who did not adequately explore the marketplace before performance in pertinent part at page 70,718 et seq stated: "It is clear that the specification was a composite type. That is, it had the attributes of both a performance and a design specification. It was, however, predominantly a performance specification. It called for a package type vacuum evaporator capable of accomplishing certain results. It was up to appellant to find such an apparatus and it was free to choose any make or model which would do what the Government wanted it to do. The fact that only a simple rectangle was used on the drawing is of no significance. No reasonable bidder could have believed that the Government was only calling for a rectangle. The drawing was scaled and it is clear that the designer was showing the approximate width and length of a vacuum evaporator by using the rectangle. "Morrill may not have been able to locate a package unit vacuum evaporator but the record shows that it made only the most meager effort to do so before bidding. As we said before, it relied upon others to do its work for it and that proved in this instance, to have been an unwise decision. The fact is that package type vacuum evaporators meeting the performance requirements of the contract were available in the marketplace before, during and after the bid period. Locating them took some doing which the Government did for Morrill. Their was no promise, expressed or implied, in the contract documents that suppliers of the needed equipment would be available locally. Morrill did not perform an adequate investigation before it bid. "We have had occasion to discuss the effect of such a failure. In Jim O'Connor, Inc., ASBCA No. 22165, 78-1 BCA ¶ 13,160 at p. 64,303 we said: 'Appellant had the responsibility to investigate sources of supply and delivery terms prior to submitting its bid. This was not done. The delay experienced was of appellant's own making and there is no legal basis upon which the consequences of faulty planning and inadequate investigation can be shifted to the Government.' (See also Brinegar & Fuller, Inc., ASBCA No. 22110, 80-1 BCA ¶ 14,334 (28 Feb 80)). "Morrill also argues that it was misled by the specification and drawings into believing that some very simply inexpensive item was being sought and that it was readily available. Morrill may have been misled but that is not determinative. Morrill's subjective problems are of no import. The question is whether a reasonable bidder conversant with the surrounding circumstances would have been misled. We are not persuaded that such would have been the case. Since we have found that the specifications and drawings were not defective and that nothing in the use of the term 'package type vacuum evaporator' could reasonably have led a reasonable bidder to believe that an inexpensive evaporator unit was readily available, there was nothing of a misleading nature involved. The fact is, there were package type vacuum evaporators available in the marketplace and they were certainly readily available although they may have had to be fabricated/assembled after placement of an order. Inexpensive is a relative term. Wastesaver touted its product as being inexpensive. When Morrill thought it could get an evaporator for $5,000 and had to pay about $22,000 for one it is easily seen why it would not believe the Wastesaver was inexpensive. But, of course, that sort of comparison is not determinative. There was nothing in the specifications and drawings which said anything about the cost of the evaporator. The cost would depend upon what make and model were chosen to meet the contract requirements." The appellant next seems to argue that somehow a statement in the specifications of the extent of commercial availability of the specified stock would have caused it to be more careful in its bid preparation. In support of this contention it relies upon the fact that another Government agency, Geological Survey, in a subsequent bid solicitation requiring the use of the same encoded paper stock, contained such statement. We fail to see the relevancy of such argument in light of the fact that the use of an encrypted designation at once alerts an unfamiliar party to the need to be at least as careful to ascertain its meaning as does a statement of commercial availability. Moreover, such tightly drafted specification flies in the face of using "stock . . . we have used for general commercial map work without problems." While the legal doctrine of impossibility has been modified in recent times to a more enlightened commercially obtainable standard (U.C.C. Sect. 2-615(a) ), the appellant is wont to rely upon such doctrine in the case at hand, since the fact remains that upon reasonable inquiry the required paper was available albeit from a limited range of suppliers. As a final note on this issue, the appellant argues that the respondent was in someway "negligent" in not informing him of the limited extent of commercial availability of the stock. Negligence is liability in tort while warranty is generally associated with contract liability. Italia Societa Per Azioni di Navigazione v. Oregon Stevedoring Co., 310 F.2d 481 (9th Cir. 1962), rev. 376 U.S. 315, 845 Ct. 748, on remand 336 F.2d 124, cert. denied 379 U.S. 973, 855 Ct. 668. The purported nonfeasance upon which the claim of negligence is founded arose, if at all, at the time of the sending of the bid solicitation to appellant. As such, it is not a matter of contract, per se, but is a matter relating to the contract over which this BOARD has jurisdiction under the "Disputes Clause." Therefore, an analysis of the question is in order. The four basic elements of a traditional negligence action are: 1) Duty, that is, appellant must be protected under some rule of law against respondent's conduct. 2) Breach, that is, respondent's conduct must have violated its duty. 3) Causal relationship, that is, appellant's injury must be the result of respondent's conduct. 4) Damage, that is, appellant must have suffered a loss. Ward v. Hobart Mfg. Co., 450 F.2d 1176 (5th Cir. 1971). Spurlin v. General Motors Corp., 528 F.2d 612 (5th Cir. 1976). Certainly, it can be argued that in the instant case there was a duty upon the part of respondent which it owed to the appellant as a potential bidder to describe fully the product for which it was then soliciting bids in order that the necessary mutuality of assent or so-called "meeting of minds" inherent in contracts could be had. The respondent complied with such duty in its exacting paper specification. But was there such a duty to provide information as to commercial availability? There may well have been if, in fact, the commercial availability was extremely limited and if in fact respondent had knowledge of that limitation at the time of its solicitation. The burden of proving both of these contentions is placed upon the party seeking relief. Even after there is a showing of such facts and knowledge, to establish a duty it would have to be shown that respondent also had knowledge that the defendant could not obtain the information of nonavailability from any other reasonable source before a duty would arise on the part of the respondent. None of the proofs necessary to carrying the burden with respect to the question of whether there was a duty has been shown. Absent the establishment of a duty, there cannot be a breach, and without a breach no causation can be shown, and without causation there can be no resultant injury to be compensated. Ignoring that point for the moment, let's assume for the sake of argument that such duty were in fact established and that by not including the information in the solicitation there was indeed a breach of the duty. The appellant would next have to prove that the purported nonfeasance (i.e., the failure to provide information that the commercial availability was extremely limited) was in fact the proximate cause of the injury of which appellant complains. The burden of proof is again upon the appellant. Again, we believe that the record supports a conclusion that the burden has not been met. Indeed, it appears that the proximate cause of the injury to appellant is its failure to adhere to the express specifications for paper as we believe a reasonably prudent person in like circumstance would ordinarily be expected to do. Finding difficulties in meeting such specifications, we believe a reasonably prudent person would have at least raised questions concerning the consequences of proceeding further. The appellant did none of these things; thus, we do not believe the appellant has proven its claim of negligence. The next issue raised by this appeal is not a novel issue in Government contracts law. The thrust of appellant's argument is that it relied upon the respondent's agent who conducted a press sheet inspection, found things to be to his satisfaction, gave an "OK to print" upon which appellant relied to its detriment, and therefore the respondent should now be estopped to deny that approval since it had an opportunity through that inspection to reject the paper stock before it was run through the press. While not expressly stating so, the appellant's argument is founded upon the general legal doctrine of apparent authority; i.e., that it was entitled to rely upon the inspector's authority to approve press sheets as, subsuming in its scope, apparent authority to approve paper stock. But such authority is not available to bind the respondent. It is well established Federal procurement law that in order to bind the Government, employees who act as its agents must have actual authority. Jackson v. United States, 216 Ct. Cl. 25, 41, N. 2, 573 F2d 1189, 1197, N. 2, (1978), and proof or acknowledgment of that authority is necessary to a claim. Robert P. Lewis, Sr. v. United States, 231 Ct. Cl. 799 (1982). Moreover, the appellant must show that the Government employee upon whom it relied had actual authority to bind the Government in the specific regard in question. Alabama Rural Fire Insurance Company v. United States, 215 Ct. Cl. 442, 458-59; 572 F.2d 727, 736 (1978). No such proof, acknowledgment, or showing has been proffered by the appellant. Moreover, a careful reading of the contract makes it clear that the press sheet inspector had no actual authority with respect to acceptance of the paper nor can it be implied from his functional duties. With respect to press sheet inspections, the contract in pertinent part states only that: "To maintain the required quality of the work, a representative of the Government may inspect, at the contractor's plant, press sheets when the job is going to press . . . ." This inspection is for all intents and purposes merely visual, and therefore plainly incompetent to ascertain strict conformance to the detailed specifications of the contract. Accordingly, the Government does not rely solely upon this inspection to assure the quality of the product for which it has contracted. Rather, it includes a provision in the contract to require that "the first 6 maps ea. item completed and one set of these 'GPO specifications' be mailed to it 'attn: 'Inspection Samples' making reference to the article entitled 'Inspection and Tests in GPO Pub 310.2'." Additionally, the contract provides that: "The Government reserves the right to verify product quality by using the applicable procedures contained in GPO Pub 310.2." The procedures in the two publications taken together reserve the right in the Government to test the final product after its final delivery and to reject any such product found to be nonconforming. The inclusion in the contract of such provisions must be read to severely limit the actual or implied authority had by its press sheet inspector. As to appellant's last argument, the 25 percent reduction was of purely mechanical application once the testing laboratory ascertained the number of critical defects . Facially, the "Discount Tables for Critical Defects" (GPO Publication 310.1, Appendix A) provides for a 25 percent discount for 72 or more critical defects. Thus, respondent, having found appellant's product to have 84 such defects, was entitled under the terms of the contract to reject the product in its entirety or, at its option, to assess the requisite discount and accept the nonconforming product. But appellant argues that, given what he believes to be an appropriate cost differential between the specified and nonconforming stock, the imposition of such a reduction is unwarranted. Such argument begs the question. The loss to the Government in not getting what it bargained for is not the difference in price between the two papers not yet printed upon. Rather, it is the unknown cost inherent in the possibility that it may, at some future time have to go back to press in order to get the use it first intended in requiring the specific paper stock to be used by appellant. These future costs cannot be ascertained until actually incurred. Surely in such circumstances, the imposition of the 25 percent reduction is being applied in much the same way as a liquidated damages provision and cannot, in our view, be deemed to be excessive. CONCLUSION The appeal is denied for the aforesaid reasons.