U.S. GOVERNMENT PRINTING OFFICE
BOARD OF CONTRACT APPEALS
WASHINGTON, DC 20401
In the Matter of )
)
the Appeal of )
)
PRINTING UNLIMITED ) Docket No. GPO BCA 21-90
Jacket No. 732-140 )
Purchase Order F-7206 )
DECISION AND ORDER
This appeal, timely filed by Printing Unlimited (hereinafter
Appellant or Contractor), 24 North East 46th Street, Oklahoma
City, Oklahoma 73105, is from the final decision of
Contracting Officer John M. Edridge of the U.S. Government
Printing Office's (hereinafter Respondent or GPO or
Government) Atlanta Regional Printing Procurement Office,
Suite 1800, 401 West Peachtree Street, NW., Atlanta, Georgia
30365-3001 (ARPPO), dated March 8, 1990, terminating the
Appellant's contract identified as Jacket No. 732-140,
Purchase Order F-7206, for default for failing to meet the
contract specifications; i.e., produce acceptable proofs (R4
File, Tab G).1 For the reasons which follow, the decision of
the Contracting Officer is hereby AFFIRMED.2
SUMMARY FINDINGS OF FACT3
1. On December 20, 1989, the Respondent issued Purchase
Order F-7206 to the Appellant to produce and deliver 581
copies of a book to the U.S. Department of the Interior,
Geological Survey (Geological Survey) for a contract price of
$3,234.00 (R4 File, Tab A).4 Each copy of the book consisted
of 146 pages and a cover. The Government was required to
furnish the Appellant with camera copy and negatives, from
which the Contractor was to make 57 offset line film negatives
in the 66-100 square inch group, and 16 such negatives of 187
square inches each (Rule 4 File, Tabs A and N). The contract
also called for the Appellant to submit two (2) advance copies
of the book by January 5, 1990, and to complete delivery by
January 22, 1990 (R4 File, Tab A).
2. In accordance with the contract, on January 5, 1990, the
Appellant sent advance copies of the book to the Geological
Survey for approval. The books were inspected by Geological
Survey personnel and found to be defective (R4 File, Tab B).
Specifically, the copies of the books showed an inconsistent
quality of printing (primarily in the illustrations) and they
were unacceptable to the customer-agency (R4 File, Tab C).
3. Carol Moss of the Geological Survey telephoned the ARPPO
concerning the problems with the advance copies (R4 File, Tab
B). When he received the Geological Survey's report, the
ARPPO's Gary Bush: (a) asked the customer-agency to put its
complaint in writing; and (b) telephoned the Contractor to
inform it of the complaint (R4 File, Tab B).5 Bush also
instructed the Appellant to stop production, but was told that
the job had already been printed and collated, although it was
not yet bound (R4 File, Tab B).
4. The Geological Survey submitted its written complaint to
the ARPPO on January 19, 1990 (R4 File, Tabs B and C). When
the formal complaint was received, Bush immediately telephoned
the Contractor and asked that it send an original copy and a
second proof to the ARPPO for examination (R4 File, Tabs B and
F).
5. The Appellant submitted the requested material on January
22, 1990. On inspection of the second proof, Bush found
defects similar to the first one (R4 File, Tab B).
Accordingly, on January 25, 1990, three days after the
contract delivery date, he telephoned the Contractor and
informed it that the second proof was also unacceptable (R4
File, Tabs B and F).
6. On February 9, 1990, Bush called the Appellant to check
on its progress in correcting the defects (R4 File, Tab B).
In response, the Contractor informed him that a third proof
was being forwarded to the ARPPO for review (R4 File, Tab F).
7. On February 28, 1990, the third set of proofs were
received by the ARPPO (R4 File, Tabs B and D). When these
proofs were inspected, they were also rejected by the ARPPO,
and the Contractor was immediately informed of that fact (R4
File, Tabs B and D).
8. On March 5, 1990, Bush spoke to the Robert J. Stonesifer,
who represented the Appellant, about this matter. Bush was
told that the Contractor ". . . had done all [it] could do to
produce this order" (R4 File, Tab E). In reply, Bush said
that he would have ". . . to do something with this order,"
since the job had been due on January 22, 1990 (R4 File, Tab
E). Bush then spoke to the Contracting Officer. The
Contracting Officer believed that the Appellant had been given
enough time to print the job, and he decided to default the
contract (R4 File, Tab E).
9. On March 7, 1990, the Contracting Officer wrote to GPO's
CRB for concurrence in terminating the contract for default
(R4 File, Tab F). See, GPO Printing Procurement Regulation,
GPO Publication 305.3 (revised September 1, 1988), Chap. I,
Sect. 10, ¶ 4.b.(i). The Contracting Officer's memorandum
informed the CRB that despite three opportunities to do so,
the Appellant had been unable to provide acceptable proofs of
the books. Specifically, the memorandum highlighted two
problems: (a) the loss of information on all proofs; and (b)
some areas were so blurred as to make them unreadable (R4
File, Tab F). The Contracting Officer also stated that the
GFM was, in his opinion, of good quality (R4 File, Tab F).
Since he believed that the contract specifications had not
been satisfied, the Contracting Officer concluded that the
Appellant was in default, and that the contract should be
terminated (R4 File, Tab F).
10. On March 8, 1990, the CRB gave its permission to
terminate the contract (R4 File, Tab F). Accordingly, that
same day the Contracting Officer issued a "Notice of
Termination-Complete" (Notice of Termination) to the
Appellant, informing it that its contract had been terminated
for default (R4 File, Tab G).6
11. On March 14, 1990, after he had received a copy of
the Notice of Termination, Stonesifer wrote to the Contracting
Officer to register the Appellant's protest of the termination
action (R4 File, Tab Q). In effect, the Appellant charged
that the decision to terminate was wrong because the GFM was
of such poor quality that it was practically impossible to
produce acceptable proofs (R4 File, Tab Q). In that regard,
the Contractor stated, in pertinent part:
1. The camera copy was poorly prepared on the foldins and
various other line illustration pages. The lines outlining
the coast and county lines are extremely fine and light
while the pasted down press-on type, lines, bullets and
numbers are several layers thick compounded by the fact
that the emulsion is on the top of the clear material. The
numbers also look like they were done on a laser printer of
a low DPI. This causes extreme focus problems. When we
shot to hold the fine lines the paste-on characters would
fill in. When we shot to open the paste-on type we would
lose the fine lines. . . .
2. Please note the 4 negatives of the foldins and the
other negatives that were supplied to us. They are poorly
done eventhough [sic] the camera copy they were done from
was apparently better than the camera copy supplied to us.
The numbers were much larger and were backed with white so
they would not interfere with the lines around them. . . .
In the Appellant's opinion, the camera copy it received was
"unusually [sic] difficult," and therefore, it asked that it be
granted the opportunity to complete the contract "as marked on
the advance copy," since ". . . we do not think that without
extraordinary methods it can be done any better under the
circumstances[.]" (R4 File, Tab Q).
12. By Notice of Appeal, dated June 7, 1990, the
Contractor appealed the Contracting Officer's termination
decision to the Board. Board Rules, Rules 1(a) and 2.
ISSUES PRESENTED
As indicated during the prehearing telephone conference, this
case presents two issues for the consideration of the Board:
1. Whether the Appellant, prior to performance, including
production of the two advance copies of the book, notified
the Contracting Officer of any problems or deficiencies
with the Government-furnished material; and if so, did the
Contracting Officer determine that the material conformed
to the contract specifications? and
2. Did the Contracting Officer erroneously default the
contract, thus converting the termination into one for the
convenience of the Government, and entitling the Appellant
to compensation for work performed, and if so, in what
amount?
POSITIONS OF THE PARTIES
No written brief was filed by the Appellant. However, the
record clearly shows that the Contractor's defense is
predicated on its belief that the GFM-i.e., camera copy and
negatives-was of such a poor quality that it was unable to
produce better quality proofs in spite of its best efforts.
PCR, pp. 3-4. In that regard, the Appellant argues that
instead of furnishing "camera copy and negatives," as required
by the contract, the Government sent the Contractor "negatives
and numerous mylar overlays, which, when placed on top of
other copy, formed the image which was to be on any individual
page." See, Complaint, ¶ 2. PCR, p. 4. The Contractor also
contends that the "mylar materials furnished by the Government
were of extremely poor quality, were smeared with paste, tape
and dirt, and contained, on different levels of mylar, or on
the same sheet, varying densities of black images." See,
Complaint, ¶ 3. PCR, p. 4. See also, R4 File, Tab Q.
Moreover, the Appellant says that it encountered problems
creating good negatives due to the distortion which occurs
when shooting through layers of mylar.7 See, Complaint, ¶ 4.
PCR, pp. 4-5. Therefore, the Appellant now believes that it
is entitled to compensation in the amount of $2,246.00 for the
work performed producing the proofs under the contract. PCR,
pp. 4, 5.
The Respondent, on the other hand, believes that the GFM was
of good quality, and capable of producing an acceptable
product. PCR, p. 4. In that regard, GPO observes that the
Geological Survey used the GFM to produce a proof on its in-
house copy machine which was much sharper than the three
proofs supplied by the Appellant. PCR, p. 6. Furthermore, in
its written brief, the Respondent argues that the Appellant
has not met its burden of proof of showing that the GFM was
defective, since the only evidence offered by the Contractor
is its self-serving and conclusory statements. See,
Respondent's Brief, dated October 8, 1993, p. 3 (citing,
Hudson Garment Company, Inc., ASBCA No. 4847, 60-2 BCA ¶
2,827; Royal Electric, Inc., ASBCA No. 3340, 62 BCA ¶ 3,571)
(R. Brf.). In the Respondent's opinion, a mere "cursory
examination of the original camera copy," is sufficient to
show that the GFM was suitable.8 R. Brf., p. 3. Indeed, the
reprocurement contractor was able to use the same materials to
produce a book which met the quality standards of the contract
(R4 File, Tab M). R. Brf., pp. 3-4. The Respondent also
contends that even if the GFM was defective, it is too late
for the Appellant to raise that as an excuse now because it
had an affirmative duty to notify the Government of that fact
before performance on the contract began. R. Brf., p. 4
(citing, Custom Printing Company, GPO BCA 10-87 (May 10,
1988); Southern Athletic Company, Inc., ASBCA No. 9258, 65-1
BCA ¶ 4,649; Sidran Sportswear Company, Inc., ASBCA No. 9557,
65-1 BCA ¶ 4,632; Kilgore, Inc., ASBCA No. 1387 (1953)).
Finally, relying on the "black letter" principal of law which
entitles the Government to strict compliance with its contract
specifications, GPO believes that the contract was properly
terminated in this case.9 R. Brf., p. 5 (citing, American
Electric Contracting Corporation v. United States, 579 F.2d
602, 608 (Ct.Cl. 1978); Red Circle Corporation v. United
States, 185 Ct.Cl. 1, 8 (1968); Jefferson Construction Company
v. United States, 151 Ct.Cl. 75 (1960); Fry Communications,
Inc., GPO BCA 1-87 (June 1, 1989); Copigraph, Inc., GPO BCA
20-86 (May 25, 1989); Vogard Printing, GPO BCA 7-84 (January
7, 1986); Dependable Printing Company, Inc., GPO BCA 5-84
(September 12, 1985)). Accordingly, the Respondent urges the
Board to affirm the Contracting Officer's default action and
dismiss the appeal. R,. Brf., p. 6.
SUMMARY CONCLUSIONS10
A. The Appellant has failed to show that it notified the
Contracting Officer, prior to performance, of any problems
or deficiencies with the Government-furnished material.
1. The essence of the Appellant's attack on the default
termination is that the Respondent breached its duty to supply
GFM which was suitable for the use intended, namely, the
preparation and production of quality proofs and books. PCR,
pp. 3-4.
2. The GPO contract clause pertaining to GFM which is
relevant to this appeal, provides, in pertinent part:
7. Government Furnished Property (GFP)
The contractor is required to examine the furnished
property immediately upon receipt. If at that time there
is disagreement with the description or the requirements as
presented in the specification (or print order/GPO Form
2511), and prior to the performance of any work, the
contractor shall contact the U.S. Government Printing
Office, Central Office Printing Procurement Division,
Washington, DC 20401, or the originating Regional Printing
Procurement Office, and contest the description. (Failure
to examine the GFP/specification and bring any
discrepancies to the attention of the Contracting Officer
will not relieve the contractor of responsibility to
perform.) The Contracting Officer will then investigate
and make a determination which will be final. If the
decision is reached that the original description is
proper, the contractor will be required to proceed with the
work. Failure to agree to the description shall be a
dispute within the meaning of article 5 "Disputes." . . .
See, GPO Contract Terms, Solicitation Provisions, Supplemental
Specifications, and Contract Clauses, GPO Publication 310.2,
Effective December 1, 1987 (Rev. 9-88), Contract Clauses, § 7
(GPO Contract Terms).
3. The Appellant alleges that when, as required by GPO
Contract Terms, Contract Clauses, § 7, it brought the poor
quality of the GFM to the attention of the Contracting
Officer, it was informed that they were originals which could
not be replaced, and was advised to do the best it could with
the GFM. See, Complaint, ¶ 5; PCR, pp. 4-5. The Respondent
has denied this allegation.11 See, Answer, ¶ 5.
Consequently, the Appellant had the burden of proving that it
notified the Respondent of its problems with the GFM in
accordance with GPO Contract Terms; i.e., "prior to the
performance of any work." Custom Printing Company, supra,
Sl. op. 12. Therefore, as previously noted, the Board asked
the Appellant to submit evidence in support of its allegation
that it had brought the deficiencies with the GFM to the
attention of the Contracting Officer at the outset. PCR, p.
6. See, notes 1 and 7 supra.
4. The only evidence provided by the Appellant in response
to the Board's request is its letter of March 14, 1990,
addressed to the Contracting Officer, which detailed the
problems experienced by the Contractor with the GFM, and
explained why it had difficulty producing acceptable proofs
(R4 File, Tab Q). However, this letter was clearly written
and sent after the Appellant had received the Notice of
Termination, and was in response to it (R4 File, Tabs G and
Q). Furthermore, the Appellant has not submitted any evidence
which would controvert the Contracting Officer's statement at
the prehearing telephone conference that he had no record of
having received the letter. PCR, p. 5. Cf., B. P. Printing
and Office Supplies, GPO BCA 14-91 (August 10, 1992), Sl. op.
at 27-28 (where the Government claimed that certain supplies
had not been delivered under the contract, the contractor was
responsible for providing adequate proof of shipment).
Moreover, the Board has carefully combed the record in this
case and can find no evidence, either in Bush's telephone
notes or in the other documents contained in the R4 File, that
the Appellant, at any time prior to March 14, 1990, expressly
told the Respondent about its problems with the GFM.
5. In short, there is not a scintilla of positive proof in
this record to show that the Contractor met its
responsibilities under GPO Contract Terms to notify the
Respondent of the alleged defects with the GFM "prior to the
performance of any work." GPO Contract Terms, Contract
Clauses, § 7. Except for the Appellant's unsupported self-
serving allegations and statements that the notification
requirements were indeed complied with, the evidentiary
cupboard is bare. Such unsubstantiated assertions standing
alone do not constitute proof. Cf., R.C. Swanson Printing and
Typesetting Company, GPO BCA 31-90 (February 6, 1992), Sl. op.
at 45-46; Fry Communications, Inc./InfoConversion Joint
Venture, GPO BCA 9-85 (August 5, 1991), Decision on Remand,
Sl. op. at 33, fn. 31, 40 (citing, Singleton Contracting
Corporation, GSBCA No. 8548, 90-2 BCA ¶ 22,748; Tri-State
Services of Texas, Inc., ASBCA No. 38010, 89-3 BCA ¶ 22,064;
Gemini Services, Inc., ASBCA No. 30247, 86-1 BCA ¶ 18,736);
Palmetto Enterprises, Inc., ASBCA No. 20421, 76-2 BCA ¶
11,978; S & S Constructors, ASBCA No. 20590, 76-1 BCA ¶
11,759; Air-A-Plane Corporation, ASBCA No. 3842, 60-1 BCA ¶
2,547. Accordingly, the Board must conclude that the
Appellant has failed to sustain its burden on this issue.
B. The Contracting Officer's decision to terminate the
contract for default was not erroneous because the
Appellant has failed to prove that the GFM was unsuitable
for the use intended.
1. The ultimate question which the Board must decide is
whether or not the Contracting Officer erroneously terminated
the Appellant's contract for default under the circumstances
of this case? In that regard, a default termination is a
drastic action which may only be taken for good cause and on
the basis of solid evidence.12 See, e.g., R.C. Swanson
Printing and Typesetting Company, supra, Sl. op. at 25;
Stephenson, Inc., GPO BCA 02-88 (December 20, 1991), 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).
2. The burden of proving the basis for the default is on the
Government. Lisbon Contractors v. United States, 828 F.2d 759
(Fed. Cir. 1987); Chavis and Chavis Printing, GPO BCA 20-90
(February 6, 1991), Sl. op. at 11 (and cases cited therein);
R.C. Swanson Printing and Typesetting Company, supra, Sl. op.
at 28. The contractor has the burden of proving excusability.
Switlik Parachute Company v. United States, 216 Ct.Cl. 362
(1978); Franklin E. Penny Co. v. United States, 207 Ct.Cl.
842, 852 (1975); Davis v. United States, 180 Ct.Cl. 20 (1967);
Reese Manufacturing, Inc., ASBCA No. 35144, 88-1 BCA ¶ 20,358;
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). In the latter regard, the standard "Default" clause
identifies several grounds which have the effect of excusing
defaulting conduct by Government contractors, including acts
of the Government in either its sovereign or contractual
capacity.13 See, GPO Contract Terms, Contract Clauses, §
20(c). Government acts which may extinguish a contractor's
performance obligations include defective specifications,
Robert E. Moore Construction, AGBCA No. 85-262-1, 90-2 BCA ¶
22,803, and defective Government-furnished equipment. Cf.,
Tar Heel Canvas Products, Inc., ASBCA No. 30341, 88-1 BCA ¶
20,347; Bogue Electric Manufacturing Company, ASBCA No. 25184,
86-2 BCA ¶ 18,925; Bristol Electronics Corporation, ASBCA Nos.
24792, 24929, 25135 through 25150, 84-3 BCA ¶ 17,543; King's
Point Manufacturing Company, Inc., ASBCA No. 21279, 83-2 BCA ¶
16,883. However, the burden of proving Government defects
falls on the contractor, who must also show that such defects
were the cause of the problems in question. Editors Press
Incorporated, GPO BCA 03-90 (September 4, 1991) Sl. op. at
12-13; Fry Communications, Inc., supra, Sl. op. at 5 (citing,
Bailfield Industries, Division A-T-O, Inc., ASBCA No. 18057,
77-1 BCA ¶ 12,348); Metal-Tech Incorporated, ASBCA No. 14828,
72-2 BCA ¶ 9,545.
3. The gravamen of this appeal is the Appellant's contention
that it was impossible to provide acceptable proofs because
the GFM was inadequate for that purpose. Specifically, the
Contractor complains that the Government sent it poor quality
mylar materials which were smeared with paste, tape and dirt,
and which contained, on different levels of mylar, or on the
same sheet, varying densities of black images.14 See,
Complaint, ¶ 3. PCR, p. 4. See also, R4 File, Tab Q.
Furthermore, the Appellant contends that good negatives were
impossible to create because of the distortion which occurs
when shooting through layers of mylar. See, Complaint, ¶ 4.
PCR, pp. 4-5. In effect, these allegations amount to an
accusation that the Respondent has breached its implied
warranty that the GFM would be suitable for its intended use.
4. The Appellant had the burden of proving that the GFM was
not suitable for its intended use. Bogue Electric
Manufacturing Company, supra, 86-2 BCA ¶ 18,925; Metal-Tech
Incorporated, supra, 72-2 BCA ¶ 9,545 (citing, Lentino's
Chauncey Clothing Company, Inc., ASBCA No. 8447, 65-1 BCA ¶
4,646; Leader Manufacturing Company, ASBCA No. 3522, 58-2 BCA
¶ 1,899). In determining what "suitability" means, the Court
of Claims has said:
Therefore, it is our conclusion that suitability . . . has
reference to the appropriateness of the Government-
furnished property for use in the process of manufacturing
the items contracted for. . . .
Topkis Brothers Company v. United States, 155 Ct.Cl. 648, 658,
297 F.2d 536, 541 (1961). [Original emphasis.] See also,
Thompson Ramo Wooldridge, Inc. v. United States, 175 Ct.Cl. 527,
361 F.2d 222 (1966).15 In a subsequent decision, the Claims
Court expanded its definition of suitability as follows:
[I]t is not always true that suitability means only that it
is possible that the end product can be manufactured by
using the government furnished property regardless of how
tedious, inconvenient, or expensive the process may be.
Suitability must be determined by reference to the
requirements of the contract as a whole and measured by the
over-all use that can be made of the property in
manufacturing the end product. [Citations omitted.]
M. Rudolph Preuss v. United States, 188 Ct.Cl. 469, 482 (1969).
See also, AAA Engineering and Drafting Company, Inc., ASBCA No.
21326, 77-1 BCA ¶ 12,454; Singer-General Precision, Inc., ASBCA
No. 15372, 72-2 BCA ¶ 9,640, at 45,015 (one measure suitability
is whether the use of the GFM enables the contractor to complete
performance without undue additional expense and delay); Keco
Industries, Inc., ASBCA No. 11468, 66-2 BCA ¶ 5,899, at 27,365-66
("suitable for use" means a use which allows the contract to be
performed without "unnecessary roadblocks" to performance in the
form of extra work and cost). However, the "suitable for use"
doctrine does not demand absolute 100% perfection in the GFM;
i.e., some reasonable amount of effort may be required of the
contractor in working with the GFM. The Cage Company of Abilene,
Inc., ASBCA No. 23915, 82-1 BCA ¶ 15,776; AAA Engineering and
Drafting Company, Inc., supra, 77-1 BCA ¶ 12,454. On the other
hand, a contractor is not expected to "go to extraordinary
lengths" to use the GFM, or to engage in efforts in trying to use
the material which are more tedious, inconvenient and costly than
should reasonably be anticipated. M. Rudolph Preuss v. United
States, supra, 188 Ct.Cl. at 482; AAA Engineering and Drafting
Company, Inc., supra, 77-1 BCA ¶ 12,454, at 60, 354.
5. In this case, for the GFM to be suitable for its intended
use, the mylar materials had to be clean and clear enough to
produce legible proofs; i.e., readable proofs which contained
all the information provided and which were not blurred.
Unless the GFM was sufficiently free from dirt and other
impurities, and contained defined and distinct black images,
it was not suitable. The GFM did not have to be "clear as a
bell" or of such perfect quality that no effort would have to
be expended by the Appellant to produce satisfactory proofs
and books. Cf., AAA Engineering and Drafting Company, Inc.,
supra, 77-1 BCA ¶ 12,454, at 60,354.
6. The Respondent has furnished to the Board, at its
request, originals of the GFM which were used for the
Geological Survey book. See, note 1 supra. That material is
now part of the record (R4 File, Tab N). PCR, p. 7. The
Board has examined the GFM, and finds that the mylar materials
which were sent to the Appellant were clean and clear enough
to produce readable proofs with a reasonable amount of effort
from the Contractor.16 Cf., AAA Engineering and Drafting
Company, Inc., supra, 77-1 BCA ¶ 12,454, at 60,352. Thus,
even though there is some minor evidence of paste, tape and
dirt on the mylar overlays, the Board finds that it is not in
sufficient amounts to render resulting proofs illegible.
Furthermore, the Board fails to see the sort of varying
densities of black images on the same sheet of mylar, or on
different overlays, which would account for the loss of
information and blurred areas found by the Contracting
Officer. In the final analysis, while the GFM might not be
absolutely 100% perfect, the Board concludes that it still
comes well within any reasonable interpretation of the
"suitable for use" doctrine. Cf., The Cage Company of
Abilene, Inc., supra, 82-1 BCA ¶ 15,776, at 78,127; AAA
Engineering and Drafting Company, Inc., supra, 77-1 BCA ¶
12,454, at 60,352. Accordingly, the Board also concludes that
the preponderance of the evidence supports the Respondent's
position that the GFM was suitable for its intended use; i.e.,
was of an acceptable level of quality for the production of
satisfactory proofs and books.17 Cf., Palmetto Enterprises,
Inc., supra, 76-2 BCA ¶ 11,978, at 57,398; Metal-Tech
Incorporated, supra, 72-2 BCA ¶ 9,545, at 44,460.
7. Because the Appellant has failed to demonstrate that its
inability to furnish acceptable proofs was due to the fact
that the GFM was defective and unsuitable for its intended
use, it has not sustained its burden of proof in this case.
Cf., Tar Heel Canvas Products, Inc., supra, 88-1 BCA ¶ 20,347;
Bogue Electric Manufacturing Company, supra, 86-2 BCA ¶
18,925; Bristol Electronics Corporation, supra, 84-3 BCA ¶
17,543. Metal-Tech Incorporated, supra, 72-2 BCA ¶ 9,545. On
this record, the Appellant's case is essentially a collection
of unverified assertions focused largely upon its claimed
inability to make satisfactory proofs from the GFM supplied by
the Government. Thus, the Contractor has not provided any
affidavits or other statements made under oath regarding the
quality of the GFM at the time it was received, and the Board
cannot accept argumentation alone as a substitute.18 Cf.,
Reese Manufacturing, Inc., ASBCA No. 35144, 88-1 BCA ¶ 20,358.
Unsubstantiated assertions are not sufficient proof to permit
recovery. Cf., R.C. Swanson Printing and Typesetting Company,
supra, Sl. op. at 45-46; Fry Communications,
Inc./InfoConversion Joint Venture, supra, Decision on Remand,
Sl. op. at 33, fn. 31, 40; Palmetto Enterprises, Inc., supra,
76-2 BCA ¶ 11,978; S & S Constructors, supra, 76-1 BCA ¶
11,759; Air-A-Plane Corporation, supra, 60-1 BCA ¶ 2,547.
Therefore, the Board is unable to say that the Contracting
Officer's decision to terminate the Appellant's contract under
the circumstances described herein is clearly erroneous. Cf.,
B. P. Printing and Office Supplies, supra, Sl. op. at 28
(citing, Chavis and Chavis Printing, supra, Sl. op. at 18).
Accordingly, the Board affirms the Contracting Officer's
decision to default the contract because of the Contractor's
failure to perform under the contract specifications, namely,
to provide acceptable proofs.
ORDER
The Board finds and concludes that the Appellant has not
proved that: (1) it notified the Contracting Officer, prior
to performance, of any problems or deficiencies with the
GFM; or (2) the GFM was unsuitable for its intended use.
THEREFORE, the decision of the Contracting officer is
AFFIRMED, and the appeal is DENIED.
It is so Ordered.
November 30, 1993 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 5, 1990. 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 hereafter as the R4 File, with an
appropriate Tab letter also indicated. As originally
submitted, the R4 File consisted of ten (10) documents
identified as Tab A through Tab J. However, at the
prehearing telephone conference held on August 20, 1993, the
Board directed the parties to supplement the record with
certain additional documentary evidence. See, Report of
Prehearing Telephone Conference, dated September 8, 1993, pp.
6-7 (PCR). Specifically, the Board asked the Appellant to
submit evidence in support of its allegation that it had
brought the deficiencies with the Government-furnished
material (GFM) to the attention of the Contracting Officer at
the outset, and began performance only after the Contracting
Officer determined that no discrepancies existed. Id. The
Appellant was also told to furnish evidence in support of its
claim for compensation of $2,246.00. PCR, p. 7. The
Respondent, on the other hand, was instructed to send to the
Board: (a) a copy of the book covered by the contract; (b)
the originals of the camera copy, film negatives, and any
other materials; (c) originals of the three proofs submitted
by the Appellant and found unacceptable; (d) the applicable
contract specifications in both the contract in dispute and
the reprocurement contract; and (e) the proof furnished by
the reprocurement contractor which was found to be
acceptable. Id. By facsimile transmission on August 20,
1993, Counsel for the Appellant sent the Board a copy of a
letter dated March 14, 1990 (the date on the letter is March
14, 1980, but this is an obvious typographical error) from
the Contractor to the Contracting Officer, explaining the
problems found by the Contractor with the GFM, and stating
its willingness to produce the books at the same (lower)
level of quality as the proofs which resulted from those
materials. See, Letter from Robert J. Stonesifer, Printing
Unlimited to John Edridge, Government Printing Office, dated
March 14, 1990. This letter has been made part of the R4
File and labeled Tab Q. On October 8, 1993, the Board
received five documents from the Counsel for GPO-a copy of
the reprocurement contract, the reprocurement contractor's
proofs, a copy of the reprocured product, camera copy and
negatives, and an evaluation of the reprocurement proofs.
These documents have been made part of the R4 File and
labeled Tabs K, L, M, N, and P. When Counsel for GPO
submitted these documents he noted that the Contractor's
proofs were "not presently available", but were expected by
October 13, 1993, and he reserved Tab O of the R4 File for
that purpose. On October 13, 1993, Counsel for GPO furnished
the Board with the proofs submitted by the Appellant. The
Board settled the record on October 8, 1993. PCR, p. 8.
Board Rules, Rule 13. As of that date, the Appellant had not
supplied the Board with any evidence in support of its claim
for recovery of $2,246.00.
2 Shortly after the Contractor had noted an appeal in this
case, it informed the Board that it wished to proceed under
the optional Small Claims (Expedited) Procedure. Board
Rules, Rules 12.1(a), (c) and 12.2. See, Appellant's
Election to Proceed Under Small Claims Procedure, dated June
12, 1990. Since its claim-$2,246.00-does not exceed the
$10,000.00 limit prescribed under the Small Claims
(Expedited) Procedure in Board Rules 12.1(a), the matter is
appropriate for resolution under that procedure. Board
Rules, Rule 12.1(d). It should be noted that when the appeal
was filed the Board was in transition, and for some reason
not apparent in the record, the case was not processed for
more than two years. Furthermore, during that time neither
party made inquiries about the status of the appeal or
otherwise showed an interest in pursuing the matter.
Consequently, when the Board discovered this appeal among its
overage cases, it contacted Counsel for the Appellant and was
informed that the Contractor still wished to proceed under
the Small Claims (Expedited) Procedure. See, Letter from
Frederic G. Antoun, Jr. to Ved P. Gulati, GPO Board of
Contract Appeals, dated December 1, 1992. Accordingly, the
Board asked for and received pleadings from both parties.
Board Rules, Rules 6(a) and 6(b). The Appellant also asked
for a hearing on its appeal. Board Rules, Rules 8 and 17
through 25. However, at the prehearing telephone conference
on August 20, 1993, the parties agreed that a hearing was
unnecessary and that the issues could be resolved on the
basis of the appeal record without a hearing. Board Rules,
Rule 11. PCR, p. 7.
3 In accordance with the Board rules concerning the Small
Claims (Expedited) Procedure, the Board's decision contains
only summary findings of fact and conclusions. Board Rules,
Rule 12.2(c). Furthermore, the decision in this case shall
have no value as precedent in future appeals considered by
the Board. Board Rules, Rule 12.2(d). See, Graphics Image,
Inc., GPO BCA 13-92 (August 31, 1992), Sl. op. at 2, fn. 3.
4 The book in question was actually a report entitled
"Geohydrology and Simulated Effects of Withdrawals on the
Miocene Aquifer System in the Mississippi Gulf Coast Area"
(R4 File, Tab C).
5 The Respondent's telephone memoranda in the file are signed
with the initial "B" (R4 File, Tabs B and E). From the
Contracting Officer's memorandum to GPO's Contract Review
Board (CRB), dated March 7, 1990, the Board assumes that "B"
is Gary Bush, who was the Contract Compliance Officer on this
contract (R4 File, Tab F).
6 The default notice also told the Appellant it could be
liable for any excess reprocurement costs on the items
terminated (R4 File, Tab G). On March 26, 1990, the contract
was reprocured from Litho Press (R4 File, Tab K). However,
since the books were reprocured at a lower cost than the
original contract price, the Appellant was advised that it
was not liable for any excess reprocurement costs (R4 File,
Tab H).
7 The Appellant alleges that when it discovered that it could
not produce a negative which it felt was acceptable, and was
concerned that the books produced from the GFM would not meet
the Quality Level III standards required for the job, it
brought the matter to the attention of the Contracting
Officer. See, Complaint, ¶ 5. PCR, p 5. According to the
Appellant, the Contracting Officer advised that the GFM were
originals which could not be replaced, and he told the
Contractor to do the best it could with the materials
provided by the Government. Id. Consequently, before
adjourning the conference, the Board asked the Appellant to
submit evidence in support of its allegation that it had
brought the deficiencies with the GFM to the attention of the
Contracting Officer at the outset. PCR, p. 6. See, note 1
supra.
8 Thus the Respondent states that if the Appellant's advance
copies of the book and its two later proofs are compared with
the camera copy it received, the degradation in image quality
from the GFM will be obvious. R. Brf., p. 3.
9 As indicated by the Respondent, one purpose of this rule is
to protect the integrity of the bidding system and ensure
that it is not compromised. R. Brf., p. 5 (citing, Ideal
Restaurant Supply Company, VACAB No. 570, 67-1 BCA ¶ 6,237).
10 The record on which the Board's decision is based consists
of: (1) the Notice of Appeal, dated June 7, 1990; (2) the R4
File (Tabs A-Q); (3) the Appellant's Complaint, dated
December 1, 1992; (4) the Respondent's Answer, dated January
4, 1993; (5) the Report of Prehearing Telephone Conference,
dated September 8, 1993; and (6) the Respondent's Brief,
dated October 8, 1993.
11 Indeed, but for the fact that the Appellant itself
introduced the GFM "notification" issue into this appeal, the
Board would not have entertained the Respondent's contention
that the claim should be dismissed because the Contractor
failed to meet its responsibilities under GPO Contract Terms,
Contract Clauses, § 7. R. Brf., pp. 4-5. In that regard,
the Board Rules require that an Answer, inter alia, must ". .
. set forth any affirmative defenses . . . ". Board Rules,
Rule 6(b). The Appellant's lack of compliance with the
notice requirements of the GFM clause as a ground for denying
its claim, is such an affirmative defense. Thus, the
Respondent's failure to raise the notice defense in its
pleading would normally constitute a waiver of that defense.
Cf., Michael, Inc., ASBCA No. 35653, 92-1 BCA ¶ 24,412, at
121,862-63 (the board rejected the Government's argument,
made for the first time in its posthearing brief, that the
contractor's failure to comply with the notice requirements
of the GFM clause precluded an equitable adjustment for
defective GFM). Also cf., General Exhibits, Inc., AGBCA No.
81-260-1, 84-1 BCA ¶ 17,071 at 85,019; Apparel Corporation of
America, ASBCA No. 16064, 73-2 BCA ¶ 10,276.
12 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).
13 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 operate to extend the time available for
performance and makes termination prior to that time
improper. See, e.g., FKC Engineering Company, ASBCA No.
14856, 70-1 BCA ¶ 8,312.
14 The Appellant also complains that by furnishing "negatives
and numerous mylar overlays, which, when pieced on top of
other copy, formed the image which was to be on any
individual page," the Government, in effect, breached its
duty to provide "camera copy and negatives," as required by
the contract (R4 File, Tab A).. See, Complaint, ¶ 2. PCR,
p. 4. However, like the other complaints the Contractor
expresses regarding the GFM, this matter was never raised
with the Contracting Officer until March 14, 1990 (R4 File,
Tab Q, ¶ 4). This allegation concerns the format of the GFM
itself, a matter so patent that the deviation from the
contract would be obvious the moment the Contractor received
the materials. Cf., R.C. Swanson Printing and Typesetting
Company, supra, Sl. op. at 41, fn. 22. Also cf., See Kings
Electronics Company, Inc. v. United States, 169 Ct.Cl. 433,
438-39, 341 F.2d 632, 636 (1965). Reese Manufacturing, Inc.,
supra, 88-1 BCA ¶ 20,358, at 102,947. 3. ILC Steinthal, Inc.,
ASBCA No. 19857, 77-2 BCA ¶ 12,736, at 61,906. Therefore, if
the Appellant was truly concerned about the fact that the
Government provided mylar overlays instead of camera copy,
knowing that it only had one month to complete the contract
(from December 20, 1989 to January 22, 1990), the Board would
reasonably have expected the Contractor to raise the matter
immediately with the Contracting Officer as a "disagreement
with the description or the requirements as presented in the
specification . . .". GPO Contract Terms, Contract Clauses,
§ 7. Cf., Kings Electronics Company, Inc. v. United States,
supra, 169 Ct.Cl. at 438-39, 341 F.2d at 636. Its failure to
do so at that time waives such an objection to the format of
the GFM.
15 Whether or not the GFM is actually "suitable for use," as
defined by the Claims Court, is a question of fact to be
determined on the basis of the unique circumstances of each
case. Topkis Brothers Company v. United States, supra, 155
Ct.Cl. at 658, 297 F.2d at 541.
16 In making this finding, the Board rejects the Respondent's
argument that: "[t]he reprocurement contractor used the same
GFM Appellant found defective and produced a product which
met the applicable Quality Level." R. Brf., pp. 3-4. See,
R4 File, Tab M. In the Board's view, the fact that the GFM
was successfully used to complete the contract by someone
else is irrelevant to the issue of its suitability insofar
the Appellant is concerned. Cf., Singer-General Precision,
Inc., supra, 72-2 BCA ¶ 9,640, at 45,015.
17 The Board observes that the third (and last) proof
submitted by the Respondent was received by the Government on
February 28, 1990, more than a month after the delivery date
established by the contract for the finished product (January
22, 1990). Although the Board has not been asked to decide
the question, it notes for the record its belief that there
was more than a reasonable period of forbearance, under the
circumstances, to allow the Contractor an opportunity to
produce acceptable proofs in this case. Cf., Stephenson,
Inc., supra, Sl. op. at 22-23. It is well-settled that the
Government does not waive its right to terminate a defaulted
contract because it fails to do so immediately when the right
to terminate accrues. Cf., Stephenson, Inc., supra, Sl. op.
at 22 (citing, Frank A. Pelliccia v. United States, 208 Ct.
Cl. 278, 525 F.2d 1035 (Ct. Cl. 1975)). Instead, a
contracting officer has a reasonable period of time to
investigate the facts and to determine what course of action
would be in the best interest of the Government as the non-
defaulting party. During this forbearance period the
Government may terminate the contract at any time, without
prior notice. See, Raytheon Service Co., ASBCA No. 14,746,
70-2 BCA ¶ 8,390; Lapp Insulator Co., ASBCA No. 13,303, 70-1
BCA ¶ 8,219, mot. for reconsid. denied 70-2 BCA ¶ 8,471.
Under the law, the extent of a reasonable forbearance period
depends on the facts and circumstances of each individual
case. See, e.g., H. N. Bailey & Associates v. United States,
196 Ct. Cl. 156, 449 F.2d 387 (1971); Methonics, Incorporated
v. United States, 210 Ct. Cl. 685 (1976). In the Board's
judgment, the extra time given by the Respondent after
January 22, 1990, when the Appellant was in actual default,
until March 8, 1990, when the contract was terminated, was a
period of reasonable forbearance and did not constitute a
waiver of the Government's right to default the contract.
Cf., King's Point Manufacturing Company, Inc., supra, 83-2
BCA ¶ 16,883.
18 As previously indicated, the Appellant was unable to
satisfy the Board's request that it provide evidence to show
that it had brought the deficiencies with the GFM to the
attention of the Contracting Officer at the outset. Instead,
the only evidence provided by the Contractor with such
details was its letter of March 14, 1990, which was written
after the contract was terminated (R4 File, Tab Q). There is
no other evidence in the record to show that the Appellant
communicated with the Contracting Officer, either orally or
in writing, about its problems with the GFM before then.