U.S. GOVERNMENT PRINTING OFFICE BOARD OF CONTRACT APPEALS WASHINGTON, DC 20401 STUART M. FOSS Administrative Judge The Appeal of B. P. PRINTING AND OFFICE SUPPLIES Docket No. GPO BCA 22-91 Jacket No. 535-394 Purchase Order F-7121 February 5, 1993 DECISION AND ORDER By letter dated November 12, 1991, B. P. Printing and Office Supplies, 5050 Jimmy Carter Boulevard, Norcross, Georgia 30093 (Appellant or Contractor), filed a timely appeal from the August 13, 1991, final decision of Contracting Officer John M. Edridge, of the U.S. Government Printing Office's (Respondent or GPO or Government) Regional Printing Procurement Office, Atlanta, Georgia 30318-2542 (ARPPO), terminating the Appellant's contract identified as Jacket No. 535-394, Purchase Order F-7121, for default for failure to "fulfill the requirements of the contract;" i.e., produce a product which met the contract specifications (R4 File, Tab F). 1/ For the reasons which follow, the decision of the Contracting Officer is hereby AFFIRMED, and the appeal is DENIED.2/ SUMMARY FINDINGS OF FACT 3/ 1. On July 2, 1991, the Respondent issued Purchase Order F-7121 to the Appellant for the production of 42,000 labels/name tags (R4 File, Tab A). 4/ The name tags had been requisitioned by the customer agency-the Department of the Air Force (Air Force)-for use in the Air Force's Reserve Officers Training Program (AFROTC) (R4 File, Tab C). The Purchase Order indicates that the labels were to be shipped to the Air Force's Field Printing Plant located at Gunter Air Force Base, Alabama 36114-5597, by July 29, 1991 (R4 File, Tab A). The contract price for this work was $950.00 (R4 File, Tab A). 2. The labels were to be made from Government-furnished material which the Contractor was to pick up on July 3, 1991 (R4 File, Tab A). As stated in the Purchase Order, the labels were also to be trimmed 4" x 2_" and had to conform to the following specification: Form printing type & line matter in Blue ink. Pressure sensitive, removable adhesive, suitable backer, easy removable feature. Labels will be used on clothing and must not leave any residue when removed therefrom (R4 File, Tab A). 3. The specifications also required the Contractor to produce the labels on 50-60 pound White Litho Coated label paper (R4 File, Tab A). 5/ 4. The Appellant completed the contract on time and shipped the labels to the Air Force in four boxes (R4 File, Tab B). However, on August 1, 1991, Air Force personnel inspected samples from each of the four boxes and discovered that the labels had several quality defects (R4 File, Tab B). Specifically, the Air Force inspection revealed problems with the trimming of some labels, smeared or two-tone ink on others, and an illegible ROTC emblem on still other labels (R4 File, Tab B). 5. On August 6, 1991, Charles H. Wallace, Chief, Production Control, Air University Field Printing Plant, furnished 750 random samples of defective labels to the ARPPO with the comment: "This is as bad as any I have ever seen. Request complete rerun." (R4 File, Tab C). 6. An examination of these samples by the Contracting Officer at the time, Gary C. Bush, led to his decision that the Appellant's performance was unacceptable. 6/ Therefore, on August 13, 1991, Bush obtained the approval of GPO's Contract Review Board (CRB) to terminate the contract (R4 File, Tabs D and E). 7. After the CRB approved the proposed termination action, on the same date-August 13, 1991-a Notice of Termination- Complete (Notice of Termination), signed by Contracting Officer Edridge, who replaced Bush, was issued to the Appellant informing it that its contract had been terminated for complete default because it had failed to fulfill the requirements of the contract (R4 File, Tab F). The reasons given in the Notice of Termination for the default termination were: The order was trimmed 3 sizes (4 x 2-1/2", 4 x 2-3/8", and 4 x 2-5/16"). A loss of information is found throughout (printing running off the edges of the labels). Ink coverage is not consistent. Offset and extraneous marks are found throughout the order. The backers are not easily removed (R4 File, Tab F.) 7/ ISSUES PRESENTED The Board must consider three issues in this case, namely: 1. Was the Appellant entitled to an opportunity to cure its failure to provide conforming labels before the Contracting Officer could terminate the contract for default? 2. Did the Contracting Officer follow appropriate inspection techniques when he used his examination of 750 labels supplied by the Air Force as the basis for his decision to terminate the contract for default? 3. Was the Contracting Officer in error in terminating the Appellant's contract identified as Jacket No. 535-394, Purchase Order F-7121, for default under the circumstances of this case? 8/ POSITIONS OF THE PARTIES The Appellant does not challenge the Respondent's judgment that the labels it supplied to the Air Force were of poor quality. However, the Contractor argues that the termination of its contract for default was unjustified because: (1) the Government-furnished sample used to "guide production," was not consistent with the contract specifications; 9/ (2) an examination of 750 defective labels was too small a sample on which to base rejection of the entire supply of 42,000 labels; (3) the sample itself was improperly selected; and (4) it was entitled to an opportunity tocorrect the defects found by the Government before the contract was terminated by reprinting the order. RPTC, at pp. 4-5. See also, A.Brf., at pp. 2-3; A.R.Brf., at pp. 1-2. The Respondent, on the other hand, believes that the Appellant's contract was properly terminated for default because of serious quality defects, including defective adhesive paper backing, noncompliance with specified trim size and poor printing running off the edges of the labels. RPTC, at pp. 4, 6. See also, R.Brf., at pp. 2-3. The Respondent also contends that while the paper used by the Appellant had suitable adhesive, the paper backer was not "split" and could not be easily removed as required by the contract specifications. 10/ RPTC, at p. 6. See also, R.Brf., at p. 4. Moreover, the Respondent argues that the Government-furnished sample was not intended to "guide production," as contended by the Appellant, but rather was given to the Contractor merely to show the "margins" on the labels. 11/ RPTC, at p. 6. See also, R.Brf., at p. 3. Hence, relying on "black letter" public contract law that the Government is entitled to strict compliance with its specifications, the Respondent submits it was justified in terminating the Appellant's contract for default in this case. R.Brf., at p. 3-4 (citing, Cascade Pacific International v. United States, 773 F.2d 287 (Fed.Cir. 1987); American Electric Contracting Corporation v. United States, 579 F.2d 602 (Ct.Cl. 1978); Dependable Printing, Inc., GPO BCA 5-84 (September 12, 1985)). SUMMARY CONCLUSIONS 12/ Since the ultimate question which the Board must decide is whether or not the Appellant's contract was erroneously terminated for default under the circumstances of this case, certain legal principles should be kept in mind at the outset. First, a default termination is a drastic action which may only be taken for good cause and on the basis of solid evidence. 13/ See, e.g., R.C. Swanson Printing and Typesetting Company, GPO BCA 31-90 (February 6, 1992), Sl. op. at 25, aff'd, Richard C. Swanson, T/A R.C. Swanson Printing and Typesetting Company, No. 92-128C (U.S. Claims Court, October 2, 1992); 14/ 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). Second, 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, whereas the contractor has the burden of proving excusability. Switlik Parachute Company v. United States, 216 Ct.Cl. 362 (1978); Davis v. United States, 180 Ct.Cl. 20 (1967); J.F. Whalen and Company, AGBCA Nos. 83-160-1, 83-281-1, 88-3 BCA ¶ 21,066; B. M. Harrison Electrosonics, Inc., ASBCA No. 7684, 1963 BCA ¶ 3,736; Hy- Cal Engineering Corporation, NASA BCA Nos. 871-18 and 772-7, 75-2 BCA ¶ 11,399; Chavis and Chavis Printing, supra, Sl. op. at 11-12 (and cases cited therein); R.C. Swanson Printing and Typesetting Company, supra, Sl. op. at 28. If the Government fails to meet its burden of proof, then the termination is converted into one of convenience and the contractor is allowed to recover for the work performed. See, GPO Contract Terms, Default, ¶ 20(g). Cf., Stephenson, Inc., supra, Sl. op. at 17-18; Chavis and Chavis Printing, supra, Sl. op. at 9. Third, 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. 15/ See, GPO Contract Terms, Default, ¶ 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 or material. Boque Electric Manufacturing Company, ASBCA No. 25184, 86-2 BCA ¶ 18,925. 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., GPO BCA 1-87 (June 1, 1989), Sl. op. at 5 (citing, Bailfield Industries, Division A-T-O, Inc., ASBCA No. 18057, 77-1 BCA ¶ 12,348). Applying these principles to the facts in the record, the Board reaches the following conclusions: A. Under the circumstances here, the Contracting Officer's failure to provide the Appellant with an opportunity to provide conforming labels before terminating the contract for default, was not a fatal procedural error. 1. It is clear that the Contracting Officer's decision to default the Appellant for failure "to fulfill the requirements of the contract" is a termination based on the Contractor's failure to "[d]eliver the supplies or to perform the services within the time specified or any extension, thereof;. . .". GPO Contract Terms, Default, ¶ 20.(a)(1)(i). Such clauses have uniformly been held to apply not only to late deliveries of the contracted goods, Stephenson, Inc., supra, Sl. op. at 19 (citing, Chavis and Chavis Printing, supra, Sl. op. at 12-15; Jomar Enterprises, Inc., GPO BCA 13-86 (May 25, 1989), Sl. op. at 3-5), but also to the timely delivery of nonconforming supplies. 16/ Id. (citing, KOPA Kopier Produckte, ASBCA No. 29,471, 85-3 BCA ¶ 18,367; Meyer Labs, Inc., ASBCA No. 18,347, 77-1 BCA ¶ 12,539. 2. As a general rule, no "cure notice" is required where a contract is to be terminated because of the contractor's failure to timely deliver or perform. Stephenson, Inc., supra, Sl. op. at 19-20 (citing, Kit Pack Company, Inc., supra, 89-3 BCA ¶ 22,151; Norm Hodges and Associates, Inc., GPOCAB 2-82, Sl. op. at 3 (1982); Sales Aids, Inc., GPOCAB 14-80, Sl. op. at 6 (1981)). 17/ However, the law provides a limited exception to this principle when it appears that a contractor has timely shipped nonconforming goods which deviate from the specifications in only minor respects. This so-called "substantial compliance" rule affords defaulting contractors an opportunity to correct minor defects in shipments to the Government. See, Radiation Technology, Inc. v. United States, 177 Ct.Cl. 227, 366 F.2d 1003 (1966). 3. In the lead case on this question, Radiation Technology, Inc., the Court held that a ". . . contractor is entitled to a reasonable period in which to cure a nonconformity provided that the supplies shipped are in substantial conformity with the contract specifications." 366 F.2d at 1005-06. [Emphasis added.] As enunciated by the Court, in order for the "substantial compliance" doctrine to apply to a particular shipment of nonconforming goods, the contractor must show that: (1) a timely delivery of goods was made; (2) he/she reasonably believed, in good faith, that the supplies conformed to the contract when shipped and that they would be acceptable; and (3) the defects are minor in nature and capable of correction within a reasonable period of time. 366 F.2d at 1006. 18/ A contractor who ships nonconforming goods is only protected by the Radiation Technology rule to the extent he/she can satisfy all elements of the test.19/ 4. In the Board's opinion, the "substantial compliance" doctrine is inapplicable to the circumstances of this case. The Appellant has clearly satisfied the first element of the rule; i.e., there is no question but that a timely shipment of the labels was made. Similarly, the Board finds that when the labels were delivered, the Appellant reasonably believed, in good faith, that they conformed to the contract specifications and that they would be accepted. However, the Board has examined the samples of the labels included in the appeal file, and has concluded, in agreement with the Respondent, that the defects in this case are not minor in nature (R4 File, Tab I). 5. As indicated previously, the quality assurance specification in the Appellant's contract provides that: "[p]rinting and binding shall be held to a high standard of imposition; makeready, press running; clear, sharp printing; and good quality in every respect." 20/ GPO Contract Terms, Supplemental Specifications, ¶ 1(b)(1). In the Board's judgment, the deviations found-inconsistent trim size, loss of information, offset and extraneous marks, smeared ink, faded or too light ink application-are "major" or "critical" defects. 21/ Furthermore, the nature, variety and extent of the problems with the samples it examined, persuades the Board that the defects were not susceptible to correction within a reasonable period of time. Therefore, the Board concludes that the "substantial compliance" doctrine of Radiation Technology is unavailable to the Appellant; i.e., the labels which were delivered did not substantially comply with the contract specifications and the defects could not be corrected to conform to those requirements within a reasonable period of time. Cf., Stephenson, Inc., supra, Sl. op. at 52-53 (citing, Environmental Tectonics Corporation, supra, 87-1 BCA ¶ 19,382; KOPA Kopier Produckte, supra, 85-3 BCA ¶ 18,367; Renwin Metal Products, Inc., ASBCA No. 15413, 72-1 BCA ¶ 9,233, mot. for reconsideration denied, 72-1 BCA ¶ 9,329). 6. A "cure notice" is ordinarily not required when a contract is terminated for a contractor's failure to timely deliver or perform. Because the Board has concluded that the "substantial compliance" doctrine-which would authorize such a "cure" period by operation of law-does not apply here, the Appellant's contention that it was entitled to correct the defective labels by reprinting the order before the contract was defaulted, is without merit. In the circumstances in this case, the Respondent was under no legal obligation to provide the Contractor with an opportunity to correct the defects in question. Accordingly, the Respondent's failure to allow the Appellant a chance to supply labels which conformed to the specifications prior to terminating the contract for default, was not a fatal procedural error. 7. On the other hand, GPO's printing procurement regulation, like the procurement rules of other Federal agencies, recommends the issuance of a show cause letter, "where practicable," prior to the default termination of a contract for failure to make timely deliveries or perform services within the time required by the contract. GPO Printing Procurement Regulation, GPO P-305.3 (September 1, 1988), Ch. XIV., § 1, ¶ 3(c)(1) (PPR). Cf., Lewis B. Udis v. United States, 7 Cl. Ct. 379, 385-86 (1985). An examination of the appeal record discloses that the Respondent did not issue a show cause letter in this case. However, considering the fact that the contract due date had already passed by the time the Contracting Officer sought CRB concurrence to terminate the contract, and his opinion that the Appellant could not successfully reprint the rejected labels (R4 File, Tab E), it seems to the Board that the Contracting Officer simply made the determination that it was impracticable to issue such a show cause letter under the circumstances herein. That decision was within the discretion of the Contracting Officer. Since the Appellant has not objected to absence of a show cause letter in this case (insisting instead that it had a right to reprint the order and cure the defective shipment of labels), the Board will not disturb the Contracting Officer's judgment. 22/ Cf., Stabbe Senter Press, GPO BCA 13-85 and 19-85 (May 12, 1989), Sl. op. at 53. B. The inspection sample used by the Contracting Officer as the basis for his decision to terminate on the contract was neither too small nor improperly selected. 1. The Appellant also challenges the Respondent's reliance on its inspection of 750 labels sent to it by the Air Force as the basis for its decision to reject the entire shipment and cancel the contract. In the Appellant's view, the sample in question was too small to justify the rejection of an order of 42,000 labels, and moreover, was improperly selected. The Board disagrees. 2. Under the Respondent's printing regulation, inspection and testing of procured products is accomplished in accordance with the "Inspection and Tests" article of GPO Contract Terms. PPR, Ch. XIII., § 1, ¶ 4(g). See, GPO Contract Terms, Inspection and Tests, § 14. This article provides, in pertinent part: (c) The Government has the right to inspect and test all supplies called for, to the extent practicable, at all places and times, including the period of manufacture, and in any event before acceptance. The Government shall perform inspections and tests in a manner that will not unduly delay performance and assumes no contractual obligation to perform any inspection and test for the benefit of the contractor unless specifically set forth elsewhere. 23/ * * * * * * * * * * (f) The Government has the right either to reject or require correction of nonconforming supplies. Supplies are nonconforming when they are defective in material or workmanship or are otherwise not in conformity with requirements. The Government may reject nonconforming supplies with or without disposition instructions. GPO Contract Terms, Inspection and Tests, §§ 14(c), (f). 3. With respect to the gathering of inspection samples, the Respondent's printing regulation merely states that: "[t]he various methods by which samples may be obtained and specifics as to how they are to be drawn are contained in the QATAP Technical Manual." PPR, Ch. XIII., § 1, ¶ 4(g)(1). In that regard, the QATAP Technical Manual provides, in pertinent part: The purpose of sampling inspection is to use the results of the inspection of the sample to estimate the quality of the lot. * * * * * * * * * * In order to accomplish the above purpose, the sample must be representative of the lot. The fundamental rule in sampling for GPO acceptance inspection is that the sample items must be selected at random without regard to their quality. [Emphasis added.] QATAP Technical Manual, GPO Publication 355.1, March 1989, Principles of Sampling, p. 4 (hereinafter QATAP Manual). As amplified in GPO Technical Report No. 27, July 1, 1988, Subject: Acceptance Sampling (Report No. 27): Acceptance sampling . . . involves the use of statistics, applied to the results of the inspection of a sample of items from the lot to determine whether the entire lot conforms to quality specifications. GPO Technical Report No. 27, July 1, 1988, Acceptance Sampling, p. 3 (hereinafter Report No. 27). Consequently, the method for selecting the sample to insure that it is as representative as possible of the lot, and the size of the sample itself are key to the proper functioning of the Respondent's quality assurance system. 24/ Id. 4. The method favored by GPO for insuring that a sample is representative of the entire lot is to select the sample items in such a manner that each item of the lot has an equal likelihood of being chosen; i.e., a random sample. Report No. 27, supra, Insuring that the Sample is Representative of the Lot, p. 3. However, the Appellant contends in this case that the sample of 750 labels which the Air Force sent to the Contracting Officer for inspection was not a random sample as envisioned by the QATAP Manual and Report No. 27. Rather, according to the Contractor, the Air Force only "selected" defective labels for its sample and included some discarded name tags used to fill the package in the shipment. 25/ A.Brf., at pp. 3-4; A.R.Brf., at pp. 1-2. 5. One acceptable method for randomizing mentioned in the QATAP Manual is to select a number of items from each carton of a multi-carton shipment. QATAP Manual, supra, p. 6. It is clear that the sample labels in this case were selected by the Air Force using the "per carton" method (R4 File, Tab B). 26/ Consequently, the Board is satisfied that an appropriate method for randomizing was used in this case; that the sample was properly selected by the Government; and that the sample is representative of the lot. 27/ 6. As for the Appellant's contention that 750 labels was too small a sample to justify the rejection of an order of 42,000 labels, the Board simply observes that the QATAP Manual gives examples of the proper number of samples for lots of 50,000 which are considerably less than 750-i.e., 200-a fact which is also recognized by the Appellant. QATAP Manual, supra, pp. 5, 6. See, A.R.Brf., at pp. 1-2. Accordingly, the Board concludes that the size of the sample in this case-750 labels-was statistically valid, and large enough for the Government to rely on the results of its inspection to estimate the overall quality of the shipment. The Appellant's alternative suggestion that the entire shipment of 42,000 labels should have been inspected in this case is patently without merit. 28/ RPTC, at p. 5. C. The Contracting Officer's termination of the Appellant's contract for default under the circumstances of this case, was not in error. 1. As a general rule, the Government is entitled to strict compliance with its specifications. See, e.g, Rose Printing Company, GPO BCA 2-87 (June 9, 1989), Sl. op. at 6 (and cases cited therein); Fry Communications, Inc., GPO BCA 1-87 (June 1, 1989), Sl. op. at 5; Mid-America Business Forms Corporation, GPO BCA 8-87 (December 30, 1988), Sl. op. at 18-19. See also, Mega Construction Company, Inc. v. United States, 25 Cl.Ct. 735, 741 (1992); Wholesale Tire and Supply Company, Ltd., ASBCA No. 42502, 92-2 BCA ¶ 24,960. Relying on this principle, the Respondent believes that the Contracting Officer was justified in terminating the Appellant's contract for default in this case. R.Brf., at p. 3-4. 2. Where, as here, a default termination is based on the contractor's failure to supply conforming goods, the Government must show initially that the work it rejects does, in fact, deviate from the specifications in order to avail itself of the "strict compliance" doctrine. See, e.g., International Lithographing, GPO BCA 1-88 (December 29, 1989), Sl. op. at 20 (citing, Fillip Metal Cabinet Company, GSBCA No. 7,695, 87-2 BCA ¶ 19,822 (1987); Hardeman-Monier-Hutcherson, ASBCA No. 11,785, 67-1 BCA ¶ 6,210 (1967); Ramar Co., ASBCA No. 9,644, 72-2 BCA ¶ 9,644 (1972); Pams Products, Inc., ASBCA No. 15,847, 72-1 BCA ¶ 9,401 (1972)). The Government usually meets this burden by advising the contractor of the results of the inspection it has conducted. The burden then shifts to the contractor to prove that the Government's findings are invalid for one reason or another. Id., Sl. op. at 21 (citing, Universal Steel Stripping Co., ASBCA No. 13,686, 69-2 BCA ¶ 7,799 (1969); C. W. Roen Construction Co., DOTCAB Nos. 75-43, 75-43A, 76-2 BCA ¶ 12,215 (1976); Continental Chemical Corp., GSBCA No. 4,483, 76-2 BCA ¶ 11,948 (1976)). The Respondent's need to provide such proof in this case is obviated by the Appellant's concession that the labels it supplied to the Air Force were of poor quality. A.R.Brf., at p. 1. See, e.g., Chavis and Chavis Printing, supra, Sl. op. at 9, 13. 3. Nonetheless, the Appellant challenges the termination action with one final arrow from its quiver, namely, its argument that the default decision was erroneous because the Government-furnished sample used to "guide production" was not consistent with the contract specifications. RPTC, at pp. 4-5. See also, A.Brf., at pp. 2-3; A.R.Brf., at pp. 1-2. Cf., DCX, Inc., ASBCA No. 37669, 92-2 BCA ¶ 25,125; International Foods Retort Company, ASBCA No. 34954, 92-2 BCA ¶ 24,994; Boque Electric Manufacturing Company, supra, 86-2 BCA ¶ 18,925. As indicated above, 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, supra, Sl. op. at 12-13; Fry Communications, Inc., supra, Sl. op. at 5. In the Board's view, the Appellant has not met its burden of proof in this case. That is, other than a difference in the weight of the paper, the Appellant has not shown in what respect, if any, the Government-furnished sample deviated from the contract specifications, and there is no other evidence in the record which would support a finding that the sample did not generally conform to the specifications. 29/ Furthermore, assuming arguendo, that the Government-furnished sample was not in accord with the specifications, the Appellant has not presented any evidence that would show a causal relationship between a nonconforming sample and the wide range of defects in the labels shipped to the Air Force. In the absence of such evidence, the Appellant's contention that the Government- furnished sample was inconsistent with the contract specifications is merely an unsupported assertion which is insufficient to meet its required burden of proof. See, e.g., Fry Communications, Inc./InfoConversion Joint Venture, GPO BCA No. 9-85 (decision on remand) (August 5, 1991), Sl. op. at 33, n. 31 (citing, Tri-State Services of Texas, Inc., ASBCA No. 38019, 89-3 BCA ¶ 22,064)); Stephenson, Inc., supra, Sl. op. at 57. See also, Singleton Contracting Corporation, GSBCA No. 8548, 90-2 BCA ¶22,748; Gemini Services, Inc., ASBCA No. 30247, 86-1 BCA ¶ 18,736. 4. In summary, the Board finds that the contract in this case was terminated for default because of serious quality defects in the labels produced and shipped by the Appellant, including defective adhesive paper backing, noncompliance with specified trim size, inconsistent ink coverage, and poor printing running off the edges of the labels (R4 File, Tab F1). Furthermore, in the Board's judgment, the nature and extent of the defects found justified the action taken by the Respondent here. Accordingly, the Board concludes that the Appellant was in default when its contract was terminated by the Respondent, and hence, the Contracting Officer's action was not in error, but rather was an appropriate exercise of discretion in this case. Chavis and Chavis Printing, supra, Sl. op. at 16-19 (and cases cited therein). DECISION In light of the foregoing analysis, the Board finds and concludes that: (a) the Contracting Officer's failure to provide the Appellant with a cure period in which to supply conforming labels before terminating the contract for default, was not a fatal procedural error; (b) the inspection sample on which the decision to terminate on the contract was based was neither too small nor improperly selected; and (c) the Contracting Officer's termination of the Appellant's contract for default under the circumstances of this case, was not in error. THEREFORE, considering the record as a whole, the Board AFFIRMS the Contracting Officer's decision and DENIES the appeal. It is so Ordered. _______________ 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 January 27, 1992. GPO Instruction 110.12, Subject: Board of Contract Appeals Rules of Practice and Procedure, dated September 17, 1984, Rule 4(a) (Board Rules). It will be referred to hereinafter as R4 File, with an appropriate Tab letter also indicated. The R4 File consists of nine documents identified as Tab A through Tab I. 2/ During the presubmission telephone conference on this appeal on April 21, 1992, the Appellant orally elected to utilize the Board's optional Small Claims (Expedited) Procedure. Board Rules, Rules 12.1(a) and 12.2. See, Report of Presubmission Telephone Conference (May 20, 1992), p. 2 (RPTC). The Board instructed the Appellant to confirm its election in writing, in accordance with Rule 12.1(c). Id. Board Rules, Rule 12.1(c). The Appellant's written notice of election was received by the Board on June 24, 1992. 3/ In accordance with the Board Rules concerning the Small Claims (Expedited) Procedure, the Board's decision and order here contains only summary findings of fact and conclusions. Board Rules, Rule 12.2(c). Furthermore, the decision and order 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 R4 File identifies the Appellant throughout as "B. P. International," located at 5050 Jimmy Carter Boulevard, Norcross, Georgia 30093. However, in its letter of November 12, 1991, appealing the Contracting Officer's final decision, the Appellant identified itself as "B. P. Printing and Office Supplies," at the same Norcross, Georgia address. The Board docketed the case using the name given by the Contractor in its notice of appeal, and thereafter all documents, orders, and the briefs filed by the parties have identified the Appellant as "B. P. Printing and Office Supplies." While "B. P. International" seems to be a different legal entity than "B. P. Printing and Office Supplies," the Board deems it unnecessary to change the official caption of this case to conform to the Purchase Order at this late date since it is clear that both enterprises share a common ownership and management. See, Report of Presubmission Telephone Conference dated May 20, 1992, at p. 2 (hereinafter RPTC). Also see, Board Rules, Preface to Rules, ¶ VI.B.2. ("Appellant" means the contractor who appeals[.]). Cf., Killgore Excavating Inc., AGBCA No. 87-397-3, 88-2 BCA ¶20,523 at 103,749-50 (On facts which showed that the original contractor, a sole proprietorship, had incorporated after execution of the contract, the agency board of contract appeals ruled that the corporate successor-in- interest had standing to pursue the appeal, notwithstanding the absence of a formal novation agreement, because the contracting officer was still dealing with the same parties in interest as had executed and performed the contract.). 5/ Apart from these specifications, Purchase Order F-7121 was also governed by applicable articles of GPO Contract Terms, GPO Publication 310.2, effective December 1, 1987 (Rev. 9-88) (GPO Contract Terms), which was incorporated by reference in the Purchase Order (R4 File), Tab A). Although it seems that GPO's Quality Assurance Through Attributes Program, GPO Publication 310.1, Revised September 1986 (QATAP), was not made part of the Appellant's contract (since the QATAP box on the Purchase Order is not checked), this does not mean that no quality controls whatsoever were placed on the Contractor. As the Respondent correctly notes, the supplemental specifications in GPO Contract Terms, provide, inter alia, that: "[p]rinting and binding shall be held to a high standard of imposition; makeready, press running; clear, sharp printing; and good quality in every respect." GPO Contract Terms, Supplemental Specifications, ¶ 1(b)(1). See, Respondent's Brief, dated July 27, 1992, at p. 3 (hereinafter R.Brf.). 6/ Tab I of the R4 File consists of samples of the labels showing the defects in printing and trimming. However, there is no indication in the record whether the samples in Tab I were taken from the 750 random samples of defective labels sent to the ARPPO by the Air Force. 7/ The Notice of Termination-Complete also informed the Appellant that the order might be reprocured against its account (R4 File, Tab F). However, as the actual cost of reprocurement was less than $950.00, no excess costs were assessed against the Contractor (R4 File, Tabs G and H). 8/ The Appellant also sought to challenge the Respondent's termination action in this case on the ground that it was based on the ARPPO's "mismanagement," "bias" and/or "discrimination" against the Contractor, and not because of any poor performance on its part. See, RPTC, at pp. 5-6. See also, Appellant's Brief, dated July 28, 1992, at pp. 1, 3 (hereinafter A.Brf.). As a consequence, the Appellant asked the Board to award it punitive damages in the amount of $3,000.00. See, Appellant's Reply Brief, dated August 15, 1992, at p. 3 (hereinafter A.R.Brf.). However, the Board has already held in a previous decision involving the same parties, that the Appellant's allegations of "discrimination" and "mismanagement" by the Respondent are beyond the Board's jurisdiction to decide. See, B. P. Printing and Office Supplies, GPO BCA 14-91 (August 10, 1992), Sl. op. at 13-17. Furthermore, the Board has no authority to award the punitive damages requested by the Appellant. Cf., R. C. Swanson Printing and Typesetting Company, GPO BCA 15-90 (March 6, 1992), Sl. op. at 41; The Wessel Company, GPO BCA 8-90 (February 28, 1992), Sl. op. at 46. 9/ Among other things, the sample label provided by the Government was on 80-pound paper, not the 50-60 pound paper called for in the specifications. RPTC, at p. 5. See also, A.Brf., at p. 2. However, the record is also clear that the "paper weight issue" played no part in the Contracting Officer's decision to terminate the contract; i.e., even though the 80- pound paper used by the Contractor did not meet the contract specifications, it was nonetheless acceptable to the Respondent. RPTC, at p. 7, fn. 3. See also, R.Brf., at p. 3. 10/ The Appellant's answer is that its use of 80-pound paper made the need for a split backer unnecessary. RPTC, at p. 6. See also, A.Brf., at p. 2. 11/ During the prehearing telephone conference on April 21, 1992, the Appellant asserted that the Contracting Officer told it to "follow the sample completely," i.e., use it as a production sample, as was customary. RPTC, at pp. 6-7. The Contracting Officer denied advising the Contractor to follow the sample in all aspects, and insisted that the sample was provided for "margins" only. RPTC, at p. 7, fn. 3. The Board finds it unnecessary in the context of this appeal to resolve the conflicting positions between the parties concerning the purpose of the Government-furnished sample. 12/ The record on which the Board's decision is based consists of: (1) the Notice of Appeal, dated November 12, 1991; (2) the R4 File (Tabs A-I); (3) the Appellant's Complaint, dated February 3, 1992; (4) the Respondent's Answer, dated March 6, 1992; (5) the Report of Presubmission Telephone Conference, dated May 20, 1992; (6) the Appellant's Brief, dated July 28, 1992; (7) the Respondent's Brief, dated July 27, 1992; and (8) the Appellant's Reply Brief, dated August 15, 1992. In addition, during the presubmission telephone conference, the Board directed the Appellant to submit to the Board the original sample label in its possession. RPTC, at p. 8. Likewise, the Board instructed the Respondent to furnish the negatives of the sample. Id. The Respondent complied with the Board's directions on May 29, 1992, and the Appellant supplied the material requested on June 30, 1992. The negatives and sample labels furnished to the Board by the parties have also been made part of the appeal record. 13/ 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). 14/ On October 29, 1992, certain provisions of the Federal Courts Administration Act of 1992, Pub. L. No. 102-572, 106 Stat. 4506 (1992), became effective. Pursuant to Title IX, the United States Claims Court was renamed the United States Court of Federal Claims. 15/ While the excusable events listed in the "Default" clause, all of which must be beyond the control and without the fault or negligence of the contractor, are set forth in the context of relieving the contractor from responsibility for excess reprocurement costs, it is well-settled that the same occurrences extend the time available for performance and make termination prior to that time improper. See, e.g., FKC Engineering Company, ASBCA No. 14856, 70-1 BCA ¶ 8,312. 16/ The rationale for this dual application of the default clause is simple. As explained in a leading text on the subject of public contracts: "While these clauses explicitly make untimely performance the basis for the default action, it is important to recognize that nearly every Government contract spells out the contractor's required performance in terms of the nature of the product or service which is to be delivered or performed as well as the time by which these performance efforts are to be completed. Thus, in order for the contractor to render 'timely performance,' two basic requirements must be satisfied. The product, service or construction work must conform to the required design/performance characteristics, and the product must be delivered or the work completed by the specified due date." [Emphasis added.] John Cibinic, Jr. & Ralph C. Nash, Jr., Administration of Government Contracts 2d ed., (The George Washington University, 1986), p. 677 (hereinafter Cibinic and Nash). 17/ Sales Aids, Inc., was decided by one of the ad hoc Contract Appeals Boards which considered appeals from decisions of GPO Contracting Officers prior to the establishment of the Board in 1984. GPO Instruction 110.10C, Subject: Establishment of the Board of Contract Appeals, dated September 17, 1984. Decisions of these ad hoc boards are hereinafter cited as GPOCAB. While the Board is not bound by the decisions of these ad hoc boards, it is the Board's policy to follow them where applicable and appropriate. 18/ See generally, Cibinic and Nash, note 16 supra, pp. 680-84. The Radiation Technology doctrine is clearly an encroachment on the Government's right to terminate. However, it is also apparent that the rule merely stays for a reasonable period the Government's right to terminate, and not its right to insist on 100 percent conforming goods; i.e., the doctrine concerns time, not the supplies themselves. Furthermore, the "substantial compliance" rule, which is most often applied to supply contracts, is used to prevent surprise rejections by the buyer after a contractor's timely shipment in situations where performance departs in only minor respects from that which has been promised. See, Stephenson, Inc., supra, Sl. op. at 50-51, fn. 54 (citing, Environmental Tectonics Corporation, ASBCA No. 20340, 76-2 BCA ¶ 12,134. 19/ In most cases involving the "substantial compliance" rule, the timeliness of the contractor's shipment is generally not an issue. Rather, the dispute usually involves the resolution of questions of "reasonable belief" and the seriousness of the defects. Absent such a "reasonable belief" by the contractor and proof that only minor defects are involved, the supplier is not entitled to the protection of the "substantial compliance" principle. See, Stephenson, Inc., supra, Sl. op. at 51, fn. 55 (citing, Introl Corporation, ASBCA No. 27,610, 85-2 BCA ¶ 18,044 at 90,578; Norwood Precision Products, Textron, Inc., ASBCA Nos. 38095, 38196, 90-3 BCA ¶ 23,200; Environmental Tectonics Corporation, supra, 76-2 BCA ¶ 12,134. 20/ Note 5 supra. 21/ Indeed, if the Appellant's contract was subject to QATAP, such a finding would be obvious and inescapable. QATAP, pp. 6, 15, 22, 23, 27, 44. 22/ In any event, the omission of a "show cause notice" by the Government is not generally a procedural defect to a termination based on the contractor's failure to make timely deliveries or perform timely services. Stephenson, Inc., supra, Sl. op. at 20, fn. 22. See also, Kit Pack Company, Inc., supra, 89-3 BCA ¶ 22,151, at 111,486-87 (citing, H. N. Bailey & Associates, ASBCA No. 21,300, 77-2 BCA ¶ 12,681, at 61,553). 23/ Cf., Custom Printing Company, GPO BCA 10-87 (May 10, 1988), Sl. op. at 14 (citing, Red Circle Corporation v. United States, 185 Ct.Cl. 1, 398 F.2d 836 (1968)). (The rule is that inspection provisions are for the exclusive benefit of the Government.) See generally, Cibinic and Nash, note 16 supra, pp. 568-83. 24/ The Board notes that both the QATAP Manual and Report No. 27 provide that sampling is not required, and the lot can be rejected without sampling, in cases where it is obvious from the nature of a defect that it extends throughout the lot. QATAP Manual, supra, p. 7; Report No. 27, supra, Sampling Not Required, p. 6. Some examples of this are: imposition errors, wrong paper, wrong inks, wrong color, wrong information, and an upside down page. 25/ It seems to the Board that Appellant's claim that the Air Force only "selected" defective labels for the samples it sent to the Respondent, comes close to an accusation that the Government was acting in bad faith. The Appellant's contention is not supported by the record in this case. Cf., Stephenson, Inc., supra, Sl. op. at 54-57 (citing, The Standard Register Company, GPO BCA No. 4-86 (October 28, 1987). In order to prove bad faith, the Appellant would have to present evidence showing a specific intent to injure the Appellant in order for it to be considered by this Board or a court of law, since there is an inherent presumption that public officials act in good faith. Furthermore, the Contractor in this case would have to prove that employees of each of the two separate agencies of Government-the Air Force and GPO-acted in concert to achieve such a specific result. See, The Standard Register Company, supra, Sl. op. at 12-13 (and cases cited therein). Moreover, to support a finding of bad faith, the evidence would have to amount to "well-nigh irrefragable" proof. Stephenson, Inc., supra, Sl. op. at 55 (citing, Cotyvan Company, ASBCA No. 24,599, 89-3 BCA ¶ 22,129, at 11,356; Bruce Anderson Company, Inc., ASBCA Nos. 29,412, 32,247, 89-2 BCA ¶ 21,872, at 110,027). "Irrefragable" proof simply means evidence which is incapable of being refuted; i.e., indisputable evidence. Webster's New World Dictionary (1988), p. 714. In this appeal, no such "irrefragable" proof of the Respondent's bad faith has been given or exists in the record. Indeed, no proof has been given at all. 26/ The Appellant shipped the labels produced under Purchase Order F-7121 to the Air Force in four cartons. As indicated in Tab B, the defective labels were pulled from each of the four boxes received by the Air Force. 27/ The Appellant argues that the sample labels in this case should have been selected by means of the so-called "blue label" method. A.R.Brf., at p. 1. See, QATAP Manual, supra, p. 10 (Departmental Quality Copies). The use of departmental quality copies requires commercial contractors to select random samples during production runs, which are wrapped separately and shipped in blue labeled packages or cartons with the balance of the order. The contractor is instructed to furnish a separate receipt in order to confirm delivery of the blue labeled material. Id. However, such "blue label" inspections are provided for by a contract specification which has been in effect since July 1988. See, QATAP Manual, supra, p. 11. As the Respondent correctly observes, that specification was not included in the Appellant's small purchases contract in this case. R.Brf., at p. 5. 28/ As indicated in Report No. 27, an examination of 100 percent of a shipment is not favored as an inspection technique. See, Report No. 27, supra, Acceptance Sampling, p. 2 (100 Percent Inspection). Among the disadvantages inherent in a 100 percent inspection of products are: (1) the prohibitive cost incurred, since each item must be inspected individually; (2) the fact that only certain characteristics of each item will be inspected, rather than the examination being a complete and thorough one of every item; and (3) the inspection simply separates the defective items from the good ones, and relieves the contractor of its responsibility for supplying products which meet the quality specifications under the contract. Id. 29/ As indicated previously, the only deviation shown in the record between the sample label provided by the Government and the specifications was in the weight of the paper; i.e., the sample was printed on 80-pound paper, not the 50-60 pound paper called for in the specifications. However, it is clear that the "paper weight issue" played no part in the Contracting Officer's decision to terminate the contract; i.e., the 80-pound paper used by the Contractor was acceptable to the Respondent. See, note 9 supra.