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.