Docket No. GPO BCA 23-87
Purchase Order B-0338, Jacket No. 708-104
January 3, 1990



   This appeal, timely filed by Questar Printing, Inc., 5825
   South Western Avenue, Chicago, IL 60636 (Appellant), is from
   the November 2, 1987, final decision of James T.  Reingruber,
   Contracting Officer (CO), Philadelphia Regional Printing
   Procurement Office (PRPPO), United States Government Printing
   Office (Respondent), completely terminating Respondent's
   contract with Appellant, Purchase Order B-0338, Jacket No.
   708-104, for default because Appellant had "failed to produce
   the first phase of proofs specified within the contract, and .
   . . [had] repeatdly [sic] informed [Respondent] about shipping
   the proofs, when proofs were actually never sent or produced."
   (Official File,. Tab 2) The appeal is denied and the decision
   of the CO affirmed for the reasons set forth hereinbelow.


   On September 21, 1987, Respondent, pursuant to Requisition No.
   7-00246 of the Department of Energy, issued an Invitation for
   Bid (IFB) for the composition and printing of some 1,110
   copies of a certain publication titled "Annual Report PPPL-
   Q-44" to be shipped complete to the Princeton Plasma Physics
   Laboratory (PPPL), Princeton, NJ, by November 20, 1987.  (Rule
   4 File, hereinafter "R4 File," Tab A) The IFB advised
   potential bidders that the material to be furnished the
   successful bidder by the Government, included a reprint sample
   book (previous for style), 353 pages of manuscript copy, 20
   tables, and 151 total figures,and would be on display at
   Respondent's offices in Southampton, PA, during stated workday
   hours before the day of bid opening which was set by the IFB
   for September 29, 1987.  The solicitation emphatically warned
   in boldface print that:  "EXAMINATION OF THE COPY BY THE
   (R4 File, Tab C, page 1 of 7) The IFB specifications gave
   bidders two composition options.  Option #1 was for the
   electronic transmission of text; Option #2 was for composition
   from the manuscript copy itself.  Under Option #1 the IFB in
   pertinent part stated:

Contractor may pick up NBI, System 64, word processing diskette
(8 x 8, Level 8.1, Double sided, double density, full feature) or
establish a time with PPPL
Network Operations for the transmission of text over phone lines
[contact Marilyn Hondorp (609-683-2656)] . . ., format
communicated text into proper fonts, etc., provide galley proofs;
do mechanicals and layouts; provide page proofs and color proof
of cover, provide blueline; print, bind and deliver completed job
to PPPL."

(R4 File, Tab C, page 3 of 7)

   The IFB was sent to a bid list of 20 potential bidders and
   also posted in GPO offices to encourage additional bids.
   Appellant requested an IFB as a result of the posting.

   Bids were opened on September 29, 1987, with three responsive
   bids being received.  Appellant's bid at $14,709.52 was the
   lowest.  The following day Respondent's Hytha M. Benton
   telephonically spoke to Appellant's Sales Manager, Eric
   Janowicz, and asked that he confirm Appellant's bid, which he
   did.  Benton in her notes on the conversation stated that she
   "[E]xplained to him that this was a display bid, which he did
   not review, said he [sic] take it anyway." She also noted that
   she talked with "Tom" [not further identified] who said that
   she should award the contract to Appellant.  The Purchase
   Order was issued that same day in strict accordance with
   Appellant's quotation and Respondent's specifications.

   Appellant received the order on Friday, October 2, 1987, and
   on Monday, October 5, 1987, called Hondorp DOE, to arrange for
   electronic transmission of text pursuant to composition Option

Per Hondorp's notes of the conversation, Appellant advised her
that it did not have an NBI, but did have a Verityper 5810 and
wanted to run a test of communication compatibility.  The notes
further stated "Questar is requesting information that does not
seem necessary, and they commented they do not know how they will
handle the Greek symbols." (R4 File, Tab Q)

   On October 6, 1987, Hondorp called Benton and advised her of
   the problem.  Benton indicated that she would contact
   Appellant.  (R4 File, Tab Q) Benton, in-turn, referred the
   matter to Lillian Davis, Respondent's Compliance Officer.
   Davis spoke to Appellant's Michele McGee and Eric Janowicz on
   October 7, 1987.  They advised Davis that DOE was trying to
   transmit text electronically but that compatibility with
   Appellant's system was questionable, and thus they wanted the
   agency "to reprogram with some type of symbols." Davis was
   asked to "call Marilyn Hondorp [DOE] ASAP." (R4 File, Tab G)

   After contacting Hondorp, Davis made the following entries in
   her notes:

   10/7/87-This printer is not qualified to do this job.  Pre-
   award survey from Chicago shows he does not have proper
   Eric said he can do the job by different method with no extra
   money.  Per Eric.  10/8/87
   Told contractor, he will be monitored, no extra money no
   matter which way he does it & he will be defaulted if he does
   not produce job on 11/20/87.

(R4 File, Tab G)

   Davis noted additional pertinent telephone conversations as

   10/8 Eric from Questar is demanding to have program altered.
   DOE cannot do this, he was told that there would be no
   10/9 According to Marilyn Hondrop [sic] they are calling
   continuously trying to make DOE change the format & symbols.
   I have checked preaward survey & they are not equipped to do
   10/9 Received message from Michele at Questar.  Eric told
   Questar that there is [sic] not going to be any changes and he
   said he will make a decision on this within an hour.
   10/14 Marilyn Hondorp called & said that Questar called that
   they [do want] diskette because they are talking to NBI.  L.
   Table from the MFCTR [manufacturer] of computer or from MNFCTR
   [manufacturer] of software - Mike O'Henry [sic] [Appellant's
   employee, Mike Henry] - everywhere where there are symbols.
   Conference call between Mike O'Henry, [sic] Questar,  Marilyn
   Hondrop, [sic] DOE. and Lillian Davis, GPO.
   Mr. Henry said he will adapt to DOE's system as all they need
   is to identify the symbols.  Marilyn is going to DHL [DHL is
   an overnight delivery service] all symbols chart to Mike Henry
   on 10/9/87.
   First proofs due 10/16/87.
   Proofs never received on the 16th.  Called on 10/19 & Eric
   said that he do [sic] his best to got [sic] proofs ASAP.  I
   told him his best is not enough.

(R4 File, Tab G, sheets 1 - 3)

   Called Eric on 10/14/87.  Proofs should be in here tomorrow or
   show cause.

10/20 Mr. Janowicz never responded to my call.  Cure notice
10/20/87.  Response to cure notice 10/27/87.  No proofs.

(R4 File, Tab H)

   11/4 Called Tom & me several times.  Told him to send back
   copy by 11/9 or it will be picked up.
   11/5 Received letter from Eric & Val [Krumplis] at Questar.
   11/5 Marilyn Hondorp received call from Val and tried to
   appeal to her about letting them do the job.  She told Val
   that the agency has had it & Val hung up.  Then called back &
   tried to appeal again.

(R4 File, Tab G, sheet 3)

The "Cure Notice" dated October 20, 1987, stated:

You are notified that the Government Printing Office considers
your failure to furnish proofs in a timely manner on Purchase
Order B-0338, Jacket 708-104, for the Department of Energy a
condition that is endangering performance of the contract in
accordance with its terms.  Therefore, you are hereby afforded
the opportunity to present in writing, within five (5) days from
receipt hereof, the measures adopted which have cured such
condition.  Unless such condition has been cured, the Government
may terminate the contract for default pursuant to the article
entitled "Default", United States Government Printing Office
Contract Terms No. 1.

(R4 File, Tab I)

   By letter of October 26, 1987, Janowicz replied stating:

   On September 3, 1986, we purchased telecommunication hardware
   & software from varityper for $3,806.24.  At the time of
   installation we were told that by using varityper's
   compatability [sic] worksheet we could set up our typesetter
   to communicate text from any computer in the world.  We have
   been able to use this hardware & software successfully on
   every attempt since installation.

   This is the basis of us bidding on this particular jacket.

   Immediately after receiving materials on this jacket our
   typesetter Michele contacted Marilyn with the intention of
   establishing compatibility.  At this time a test was
made transmitting 7 bit ASCII (because this is the most popular
format for text transmission), it was found that Greek/Math
characters and special symbols were not received (due to
Princeton's computer stripping out these symbols) and further
work had to be done to improve compatibility.  Due to a
misunderstanding between Michele & Marilyn compatibility was not
established.  Three days later Mike Henry, our production
manager, contacted Marilyn and agreed to investigate problems
with computer compatibility.

   After conversation between Mike Henry and Lillian from G.P.O.
   Philadelphia, it was stated by Lillian that the agency at
   Princetown [sic] University was not responsible for
   cooperation with us and we had to work thru their computer
   company, "NBI" to solve any technical problems.

   Mike Henry contacted NBI offices in Washington, D.C., Boulder,
   Colorado, and Chicago, Illinois, searching for a solution.
   After talking with a NBI technical representative (Paula), who
   was very helpful and referred us to telecommunication
   specialist named Art Meredith.  After several hours of trouble
   shooting it was established that the problem was due to
   transmitting a 7 bit ASCII.  An attempt was made to transmit
   in 8 bit ASCII and it was found that it was not compatible
   with our equipment.  An alternate solution must be found.

   It was determined at this time that our best alternative was
   to work on converting NBI disk to varityper format.  After
   converting the disc it was found to require many hours of hand
   editing to eliminate coding used by NBI computer.  However,
   this would be a workable solution.  Michele started to work
   typesetting from the edited disc on October 22, 1987.  At this
   time we have 30 pages of text completed.

   In determining our performance please take into consideration
   the following:

   1.) At the time of bidding using our record. of successful
   telecommunications and information given by varityper, we were
   positive that successful telecommunication from NBI computer
   was possible.

   2.) It was not stated in the specifications that 8 bit ASCII
   was required.

   3.) The fact that the agency was not responsible for
   cooperation with us created an obstacle and unnecessary

   4.) We have absorbed all the extra costs to get this
   typesetting completed and we feel that we can submit galley
   proofs by/or on Friday, October 30, 1987.

   5.) All galleys completed will be sent to you upon request
   before Friday.

(R4 File, Tab J)

   Based upon the reply the CO sought the concurrence of
   Respondent's Contract Review Board (CRB) to terminate the
   contract based upon a theory of anticipatory breach since
   "Using [Appellant's] promised date of 10-30-87 for first phase
   of proofs, revised proof schedule would be as follows:
   1.  First phase to GPO by October 30, 1987.
   2.  Second phase to GPO by November 10, 1987.
   3.  Third phase to GPO by November 20, 1987."; thus making
   "on-time delivery of final product by the specified ship date
   impossible." (R4 File, Tab K)

   On November 2, 1987, Davis was telephonically notified that
   CRB concurrence was unanimous.  (R4 File, Tab K)

   Thereafter, the CO issued his "final decision" letter, supra.
   (R4 File, Tab L)

   Appellant then called the CO claiming the termination was not
   justified.  (R4 File, Tab N) This was followed that same date,
   November 4,  1987,  with a letter to the CO stating
   Appellant's position.

   In turn, the CO, by letter of November 5, 1987, furnished
   Appellant's letter to this Board as a notice of appeal.  (R4
   File, Tab P)

   Thereafter, the Board, by letter dated November 20, 1987,
   notified Appellant that the appeal was docketed and provided
   Appellant with a copy of this Board's Rules of Practice and
   Procedure.  The letter directed specific attention to Rule
   6.(a) which requires that a "complaint" setting forth the
   express basis for its claim be filed with the Board within 30
   days after receipt of docketing letter.

   Appellant failed to comply with the Rule 6.(a) requirement.
   As a result, on January 11, 1988, Respondent, through its
   legal counsel, filed a "Motion to Dismiss or in the
   Alternative for a More Definite Statement." On January 12,
   1988, in response to the motion, the Board issued an order
   directing Appellant to file a more definite statement of its
   complaint on or before January 28, 1988.

   Appellant replied by letter dated January 18, 1988, in
   pertinent part as follows:

Points of complaint:

1) Specifications on Jacket #708-104 OPTION 1, part one; "or
establish time with PPPL network operations for the transmission
of text over phone lines." This statement
allowed us phone telecommunicating but gave no facts about
compatibility.  We could not have known compatibility problems
even if we had looked at display.

2) Agency could not answer compatability [sic] questionaire
[sic].  See enclosed copy of questionaire [sic].  They only
answered five questions.

3) Greek symbol code sheet was received by us only on October 12,
1987, this should have gone out with the job.  We lost 12 days
trying to figure out what was missing and finally had to insist
on greek code sheet because we could not transmit without it.

4) We were also forbidden to talk to agency on October 8, 1987 by
compliance officer Lillian Davis.  How can we transmit on our
own, or receive without cooperation.

5) We never got a chance to speak to our contracting officer
Annamarie T. Mierson.  Lillian Davis dominated everything.  When
we insisted on speaking to Mr.  Reingruber, Lillian Davis told us
that she is speaking for him.

6) Throughout the whole process Lillian Davis was very emotional
and rude to us and could not understand any technical problems we
were faced with.  Her answers to us were always that the old
printer of 5 years never had a problem but we must be

7) We would like to have our invoice paid for $6,056.11.  This is
our cost so far on the job.  Also enclosed with invoice is
computer worksheet to show we have set the type.

8) We have been telecommunicating G.P.O.  Army Recruiter Journal
and have been doing a good job so we are not inexperienced in
setting up telecommunicating.

The appeal comes now before the Board in this form for decision
upon the written record.


   There is no significant dispute between the parties concerning
   the facts of this case.  The single issue presented is whether
   under the facts the CO should have terminated the contract for
   the reasons stated.  The issue turns upon a single legal
   question whether the language of Option #1 of the contract
   required the Government to transmit its copy to Appellant in
   an electronic format compatible with Appellant's equipment.
   The question turns on whether the first clause of Option #1,
   stating that the "Contractor may pick up NBI, System 64, word
   processing diskette" should be read into the second clause "or
   establish a time . . . for transmission of text over phone
   lines . . . ."

   Protocols of legal interpretation require that contracts be
   examined in a light most favorable to the non-drafting party,
   and, if deemed ambiguous, be construed against the interest of
   the drafting party.  Moreover, the same protocols require that
   "plain meaning" be given to provisions in contracts which are
   clear and unambiguous.  Additionally, in this case, since the
   language is contained in an IFB, it is important that its
   construction be based not upon what the drafter claims was
   intended nor upon what the Appellant in post award dispute
   alleges it understood, but rather what a reasonable printer
   having knowledge of the use of electronic word processing
   equipment would have understood the language to mean in the
   preparation of its contract bid.

   Applying these principles to our interpretation of the
   language in question we conclude that the language is clear
   and unambiguous and that the plain language requires the first
   clause be read into the second clause for the following

   First, the contract speaks of two, and only two, numbered
   options.  It seems clear to us from the use of numbers to
   designate the options had the drafter intended three
   completely independent options, he or she would have done so
   by numbering the third option as such.

   Second, the caption "Option #1 - Electronic Transmission of
   Text" conveys the thought that all the words of the sentence
   which follows thereafter under the caption will relate to the
   concept of electronic transmission of text.  Splitting the
   operative sentence of the option into two independent clauses,
   as Appellant would have us do to give efficacy to its
   argument, would result in the first clause respecting the
   pick-up of the "diskettes" being inconsistent with the

   Third, we deem the sentence in question to be a "complex
   sentence" as such term is used in the study of English
   language grammar, with the first clause being the "independent
   clause" and the second clause being the "subordinate clause"
   which cannot stand alone since it does not express a complete
   thought.  To give the second clause meaning it must be read
   together with the first
clause.  If the sentence were intended to be a "compound
sentence," each clause would have to be "independent" from one
another; i.e., be able to stand alone in expressing a complete
thought.  Moreover, if such were the case, the "or" would be
preceded by a comma.

   From this, we conclude that the Government was not compelled
   to communicate in an electronic format compatible with
   Appellant's equipment, but rather to communicate
   electronically using an NBI System 64, as it did.  Thus, we
   see no merit in the appeal, the Government clearly having
   attempted to accommodate the Appellant in every way before
   default.  Accordingly,

   The decision of the CO is Affirmed and the appeal denied.

   It is so Ordered.