Docket No. VABCA-7212GPO

Department of Veterans Affairs Board of Contract Appeals


March 28, 2005


Donald W. O'Brien, Jr., Esq., Woods, Oviatt, Gilman, LLP, Rochester,
New York, for the Appellant, Evolution Impressions, Inc.

Roy Potter, Esq., Washington, D.C., for Respondent, the United States
Government Printing Office.



This appeal, filed by the Appellant, Evolution Impressions, Inc.
(EII), on April 7, 2004, originally was docketed by the Government
Printing Office Board of Contract Appeals (GPOBCA) as GPOBCA No.
04-04. The Public Printer subsequently decided to discontinue the
GPOBCA and, by Interagency Agreement dated June 7, 2004, designated
this Board, the Department of Veterans Affairs Board of Contract
Appeals (VABCA), to hear appeals of final decisions by United States
Government Printing Office (GPO) Contracting Officers (COs). The
GPOBCA, by letter dated June 30, 2004, notified the EII that the
appeal was transferred to the VABCA. The VABCA, in turn, issued a
Notice of Docketing for the appeal on July 29, 2004. The VABCA
assigned the appeal Docket No. VABCA-7212GPO.


The instant appeal involves a claim for additional work under Purchase
Order P3670 issued by the GPO to EII for printing services for the
National Aeronautics and Space Administration (NASA). Initially, by
letter to the Board dated August 16, 2004, EII opted to have the
appeal processed on an expedited basis under the VABCA Rule 12.3,
Accelerated Procedure. By Order dated August 26, 2004, the Board
established a schedule consistent with its Rule 12.3. Subsequently,
however, EII sought to extend the schedule and confirmed the
withdrawal of its Rule 12.3 election.

Both parties agreed that the appeal would be decided on the record and
without a hearing, pursuant to VABCA Rule 11. The parties also agreed
that no discovery would be conducted. The record consists of EII's
Complaint, the GPO's Answer, and an Appeal File submitted by the GPO
pursuant to VABCA Rule 4 (the individual documents within the Appeal
File to be cited herein as "R4, tab     "). EII elected not to submit
a supplement to the Appeal File. The parties, by agreement and
pursuant to the Board's revised schedule, were each to submit
simultaneous main and reply briefs. Main briefs were submitted by both
parties. Only the GPO chose to file a reply brief.


Purchase Order P3670, Jacket 785-198 (the "Purchase Order") was issued
to EII, a printing company based in Rochester, New York, by the GPO
San Francisco Regional Printing Procurement Office, Benicia,
California, on September 10, 2002 in the amount of $ 6,290.00. The
Purchase Order called for the printing of 1,670 copies of a book for
NASA, a customer agency of the GPO. The book, entitled "MEMOIRS OF AN
AERONAUTICAL ENGINEER," consisted of 178 pages and a cover. The
Purchase Order indicated that Government-furnished materials,
including inter alia a CD-R disc, would be available for contractor
pickup as of September 10, 2002, and that the completed books were to
be delivered to several specified destinations on a distribution list
by October 15, 2002. (R4, tab 2)

The Purchase Order specified the submission of proofs in advance of
final delivery of books. Proofs were to be furnished to NASA at the
NASA/AMES Research Center at Moffett Field, CA by September 17, 2002.
The Purchase Order allowed for one of two types of production - either
"film and plates" or CTP ("computer-to-plate"). (R4, tab 2, page 2;
Answer, P7) For CTP production, the Purchase Order required the
submission of "one set of booked digital page proofs SHOWING HALFTONE
DOTS (Kodak Approval, Polaroid PoloProof, Screen TrueRite, or equal) .
. . ." (R4, tab 2, page 2) Proofs were to be "withheld not more than 3
workday(s) from receipt by the Government to notice of availability
for pickup by the contractor or by the contractor's agent using a
self-addressed airbill furnished by the contractor." In this regard,
the Purchase Order states: "Contractor must not print prior to receipt
of 'OK to Print.'" (R4, tab 2, page 2) Apparently, NASA - to whom
proofs were to be submitted - was to have 3 workdays to examine the
proofs and was to provide EII with a written approval ("OK to Print")
before EII was permitted to proceed with printing.

In terms of quality of printing, the Purchase Order specified a
Quality Level II per the GPO standard entitled "Quality Assurance
Through Attributes" as set forth in GPO PUB 310.1 that was in effect
on the date of the Purchase Order. R4, tab 2, page 2.
The GPO standard for Quality Level II is stated as follows:

Level II

Descriptive Terms - Better quality, prestige quality, library quality.

Fidelity of Reproduction - Close fidelity to furnished reproducibles
is required.

Quality of Materials and Workmanship - These products typically
involve high quality materials, reproducibles, production methods, and

Typical Physical Description - Overall appearance is of primary
importance. Products in this level generally have singlecolor or
multicolor subject matter. Finishing must be held to high standards of
accuracy, durability, and appearance.

Examples of Tolerances - One row of dots for multicolor halftone
registration (see attribute P-4); one broken character per page for
type quality (see P-7); and three-thirtyseconds of an inch for trim
size (see F-1). See note regarding tolerance examples in Level I.

Examples - Yearbooks, recruiting materials, and illustrated
professional papers.

(Complaint, P6 and Exhibit C; Answer P6)
The Purchase Order incorporated standard GPO Contract Terms (GPO Pub.
310.2), as were in effect on the date of the Purchase Order. (R4, tab
2, page 2) The GPO Contract Terms included the following two
provisions, the pertinent portions of which are set out below:
1. Contractual Responsibility.

Awards by GPO for printing, binding, and related services are the sole
responsibility of GPO and not of its customer agencies. Modifications
shall have no force or effect unless addressed before the fact to and
subsequently confirmed in writing by the Contracting Officer. Failure
to comply with this clause may be cause for nonpayment of additional
costs incurred or rejection of the order.
4. Changes.

(a) The Contracting Officer may at any time, by written order, and
without notice to the sureties, if any, make changes within the
general scope of this contract in any one or more of the following:

(1) Drawings, designs, or specifications when the supplies to be
furnished are to be specially manufactured for the Government in
accordance with the drawings, designs, or specifications.
(2) Method of shipment or packing.
(3) Place of delivery.

(b) If any such change causes an increase or decrease in the cost of,
or the time required for, performance of any part of the work, whether
or not changed by the order, the Contracting Officer shall make an
equitable adjustment in the contract price, the delivery schedule, or
both, and shall modify the contract.

(c) The contractor must submit any "proposal for adjustment"
(hereafter referred to as proposal) under the clause within 30 days
from the date of receipt of the written order. However, if the
Contracting Officer decides that the facts justify it, the Contracting
Officer may receive and act upon a proposal submitted anytime before
final payment.

(d) * * *

(e) * * *

(R4, tab 7)
EII made timely delivery of the specified proofs to NASA, i.e., on or
before September 17, 2002. (Complaint and Answer, P8)
By letter dated September 23, 2002, Richard Anderson, a Printing
Specialist with NASA, advised EII that NASA had made certain
alterations to its book. First, it advised, it corrected "editorial
errors" on two pages, the "inside front cover and page 8." For those
two pages, the letter directs: "Use initial CD returned herewith to
output new (updated) film and show second proof for these pages."
(Complaint, Exhibit F; R4, tab 4 (emphasis in original))

Second, the letter indicates, NASA had noted that "photos on most of
the text pages appear to be reproducing too dark." To deal with this
issue, the letter states, "we have selected 9 of the most troublesome
pages for a test; we have re-worked the photos on these pages and have
included our proofs." With respect to these 9 re-worked pages, NASA,
in the letter directs: "Use new (second) CD furnished herewith to
supply a second set of proofs for these pages only: pp. 28, 32, 57,
65, 66, 76, 80, 83 and 105." (R4, tab 4 (emphasis in original))

It appears that, at some point between its receipt of the September
23, 2002 letter and October 4, 2002, EII ran a second set of proofs
for the 11 pages addressed by the NASA September 23, 2002 letter and
submitted them to NASA for approval. In this regard, a letter to EII
from NASA's Mr. Anderson, dated October 4, 2002, states:

Returned herewith as OK are second proofs you supplied for the
following pages: inside front cover, 8, 28, 32, 57, 65, 66, 76, 80, 83
and 105.

(Complaint, Exhibit D; R4, tab 6)

That letter goes on to relate that NASA in the interim had "re-worked"
the photographs on 121 more pages of the book:

We have re-worked photos (which appeared too dark on proofs) for these
pages: outside front cover, iii, 1, 3, 7, 9, 10, 12, 14, 15, 16, 19,
21, 23, 24, 26, 29, 34, 37, 39, 40, 50, 51, 52, 53, 54, 55, 56, 58,
59, 60, 61, 62, 63, 64, 67, 68, 69, 70, 71, 72, 73, 74, 75, 77, 78,
79, 81, 82, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97,
98, 99, 100, 101, 102, 103, 104, 106, 107, 108, 109, 110, 111, 112,
113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126,
127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140,
141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154
and 155.

(Complaint, Exhibit D; R4, tab 6)

The letter then directs EII as to how it was to proceed with
completion of its work, indicating that further submission of proofs
would not be needed by NASA prior to EII commencing with printing:

Use CD's furnished herewith to output new (updated) film for these 121
pages only. Then proceed to print and bind. (We will not need to see
any additional proofs before printing.)

(Complaint, Exhibit D; R4, tab 6 (emphasis in original))

The record is not clear as to precisely what was done by EII to
complete its performance and when. Nevertheless, by letter to the GPO
dated February 4, 2003, EII submitted a proposal for a modification to
the Purchase Order in the total amount of $ 4,934.50, to cover the
additional costs allegedly incurred by EII as a result of the above-
described alterations made by NASA. In that letter, EII also requested
a "new 'at destination date' of November 7, 2002." (Complaint, Exhibit
E) Although the GPO, in its Answer, does not comment on when EII
actually delivered the finished products under the Purchase Order, the
Answer, referring to the February 4, 2003 letter, states that the
letter "is the best evidence of its contents" and does not contend
that delivery had not been made as of November 7, 2002, or in any way
assert whether or not delivery was timely. (Answer, P11)
EII's February 4, 2003 letter, apparently for the first time,
indicated to the GPO that EII, in addition to complying with NASA's
directions, had elected to run a new set of proofs for the 121 pages
within the book that NASA had re-worked to correct for darkened photos
and that were described in NASA's letter to EII of October 4, 2002
(R4, tab 6).

More specifically, among the cost items enumerated in EII's February
4, 2003 letter, and constituting $ 2,895.00 of the $ 4,934.50 total
being proposed, were the following two cost items:

7) Run 31 new Approval proofs @ $ 75.00
 $ 2,325.00
8) QC new Approval proofs 6.0 hrs
 $ 570.00

(Complaint, Exhibit E)

The Appeal File contains a GPO Form 714 (3-78) purporting to record a
series of telephone contacts regarding the Ell February 4, 2003 letter
and modification proposal. The individual creating that document
(whose initials appear to be "RCL") presumably was GPO's Richard C.
Lee, to whom the EII February 4, 2003 letter had been addressed and to
whom subsequent EII correspondence relating to the Purchase Order was
addressed. The document indicated that Mr. Lee engaged in at least one
three-way conversation on February 7, 2003, a conversation among
himself, Sue Cudgel, EII's Customer Service Manager who appears to
have authored the EII February 4, 2003 letter, and NASA's "Dick
Anderson" (presumably the same Richard Anderson who had authored the
September 23, 2002 and October 4, 2002 letters from NASA to EII). The
GPO Form relates, as to that three-way conversation:

2/7 Dick says that they [NASA] did not request any add'l proofs beyond
the 11 pages cited in NASA's 10/4/02 memo. (Note the specific
parenthetical reference/instruction at the end of 10/4 memo as written
confirmation of NASA's intent.)

Dick says he has no record of having received the proofs (31 pages
worth) charged in [the] 2/4/03 reimbursement request from the
contractor, nor does he recall any phone conversations that would
alter NASA's stated intent expressed in the 10/4 memo.

(R4, tab 8)

Subsequently, the GPO Contracting Officer, John O'Connor, on March 11,
2003, issued Modification No. SF-117-03 to the Purchase Order (the
"Modification"), calling for the contractor to "make Author's
Alterations and submit new proofs, as requested by the Government."
The Modification increased the contract price of the Purchase Order by
a total $ 2,039.50, allowing EII to recover for all items at the
amounts EII proposed, but excluding recovery of the $ 2,895.00 claimed
for the new proofs associated with the 121 additional re-worked pages.

(R4, tab 9; Complaint, Exhibit F)

On March 21, 2003, EII's President/CEO, Thomas A. Gruber, executed the
Modification with the handwritten note "without prejudice and with all
rights reserved." R4, tab 9; Complaint, Exhibit F. In this regard, Mr.
Gruber sent a letter dated March 21, 2003 to the GPO's Mr. Lee, taking
exception to the GPO's failure to recognize and pay for the additional
proofs EII had run for the 121 re-worked pages. Although Mr. Gruber,
in that letter, acknowledges that NASA had specifically stated that it
did not need to "see any additional proofs before printing," he argues
that NASA, in that letter, did not "state that proofs are not to be
made, or that the customer accepts responsibility for the lack of
proofs as an integral part of our quality control program . . . [or
that EII was to] run the job 'blind' and [that NASA would] be
responsible for the outcome." Mr. Gruber further stresses that the
running of new proofs for the "121 changed pages" was "necessary . . .
for press side density guidance and overall quality control" and was
"reasonable, prudent, and necessary to produce a Quality Level II
order." According to Mr. Gruber's letter, he had "never, in my 30 plus
year career working with the GPO, experienced a situation like this."

The letter goes on to state:

I am baffled as to exactly how you and/or your customer envisioned how
our pressmen were to understand what the "reworked" photographs should
have looked like during printing operations to ensure a match to the
newly furnished files. How were we to know what other changes may have
been made in the files by your customer? What should the press sheet
have been compared to for accuracy and quality control during printing

The letter seeks GPO reconsideration and concludes:

It seems to me that it would be reasonable, prudent, customary, and
fair, to pay for the proofs that we remade to ensure that your
customer received exactly what they expected.

(R4, tab 12; Complaint, Exhibit G (emphasis in original))

It appears that, having received no GPO response to that March 21,
2003 letter, Mr. Gruber, by letter dated May 2, 2003, inquired of Mr.
Lee as to why the EII "charges of $ 2,895.00 for production of 31
second-round Kodak Approval proofs was not included with GPO Contract
Modification SF-117-03." R4, tab 12, EII Letter of May 2, 2003.
In an undated letter, the GPO's Mr. Lee provided the following
explanation as to why the GPO was not recognizing liability for the $
2,895.00 in additional charges:

Upon evaluation of the first-round proofs, and previous to Evolution
Impressions subsequent production of these unsolicited 31 second-round
proofs, Mr. Richard Anderson specifically states in his 10/4/02 memo
to Mr. Jim McGirr of Evolutions [sic] Impressions:

"We will not need to see any additional proofs before printing.)

[Underscores are part of the original quote.]

The charge for these extra proofs was not included in the contract
modification because this additional performance was neither required
by the contract specifications nor requested by the Government.

(R4, tab 12; Complaint, Exhibit G, Undated Letter from "Richard C.

Lee, Printing Specialist, U.S. Government Printing Office")
The Board surmises from EII's February 4, 2003 proposal letter and the
Modification that up to 4 text pages may be fit onto a single proof
page. In this regard, EII had proposed 3 proof pages for the 11
initially re-worked pages of text and 31 proof pages for the 121
subsequently re-worked pages. (Complaint, Exhibit E; R4, tab 9)
By letter to the GPO Contracting Officer, Mr. O'Connor, dated December
23, 2003, EII's Mr. Gruber noted that he was in the process of
examining a series of "unresolved issues" pertaining to the GPO and,
in this regard, inquired as to the proofs issue under the instant
Purchase Order, forwarded certain correspondence purportedly related
to the issue, and stated that he was seeking a "final determination"
on the issue from the Contracting Officer:

I would ask that you review the appended correspondence. I cannot
fathom how Mr. Lee expected us to produce 121 . . . brand new pages
without a proof. Please refer to my letter of March 21, 2003. The
original procurement stipulated contract quality proofing to ensure a
quality level 2 product was provided. There were no directions,
written, or verbal, that amended or in any way changed those

I am asking that you review the appended material and issue a final
determination. * * *

(R4, tab 10 (emphasis in the original))

By letter to EII dated February 24, 2004, the GPO Contracting Officer,
Mr. O'Connor, provided Ell with a Contracting Officer's final
decision, denying EII's claim for $ 2,895.00 in additional costs. In
this regard, Mr. O'Connor maintained that proofs, under the terms of
the Purchase Order, were required not for manufacturing purposes, but
rather for review by the customer, and that EII's production of proofs
in this instance was not a contract requirement, but rather something
done solely at EII's "option":

The specifications make no mention that the proofs are for
manufacturing purposes. They are clearly required for review by the
customer. After the first round of proofs you had fulfilled your
obligation under the original contract. Anything beyond that point was
a change to the contract and had to be negotiated separately. The
contract terms of Jacket 785-198 did not require you to produce any
new proofs unless specifically ordered and confirmed under a contract

You acknowledge the customer's memo of 10/4/02 which indicated that no
additional proofs were being ordered by the Government when it stated
"(We will not need to see any additional proofs before printing.)"
This makes it clear that the production of the proofs was your option
not a Government requirement.

(R4, tab 11)

Mr. O'Connor went on to explain why, in his view, dispensing with yet
additional proofs was reasonable under the circumstances:

This waiver of any additional proofing may have seemed unusual to you
but when considered in the context of all the events I think it is
reasonable. When the first complete set of proofs were furnished, the
customer in a memo to your company on 9/23/02, stated "Overall, photos
on most of the text pages appear to be reproducing too dark. We have
selected 9 of the most troublesome pages for a test; we have re-worked
the photos on these pages and included our proofs." ". . . supply a
second set of proofs for these pages only . . . ." When you furnished
a second set of proofs on the re-worked photos they were approved by
the agency. The agency then proceeded to re-work photos on 121 pages
in the same manner as they had on the 9 test pages. At that point they
obviously felt confident that they would obtain a quality product from
the furnished files. There were no other issues such as registration
or color fidelity because the job printed in black ink. There were no
additional illustrations furnished and the files had been re-worked
only to prevent them from being too dark. Your fear that you company
would somehow have automatically been blamed if the job printed
incorrectly is unfounded.

In conclusion, I believe that there was no requirement under the
contract terms for you to produce this additional set of proofs and
your request for payment for these proofs is hereby denied.

(R4, tab 11)


To recover an equitable adjustment under the Changes clause, a
claimant must prove that a Government representative, having requisite
authority to alter the terms of the contract, directed the performance
of additional work, that the contractor performed such work and did
not do so voluntarily, and that, as a result, the contractor incurred
additional costs and/or time. Caddell Construction Co., VABCA No.
5608, 03-2 BCA P32,257, citing John R. Hundley, Inc., VABCA No. 3494,
et al., 95-1 BCA P27,494 at 137,025.

Here, EII has failed to demonstrate, through evidence in the record,
that its production of an additional set of proofs for the 121 re-
worked pages at issue came about as a result of a request or direction
of an authorized representative of the Government. To the contrary,
even if, for the sake of argument and notwithstanding the wording of
the contract restricting such authority to the GPO Contracting Officer
(see GPO Contract Terms, P1, Contractual Responsibility, quoted in the
Findings of Fact above), Mr. Anderson, the NASA Printing Specialist
and GPO customer, were to be deemed as having had the requisite
authority to bind the Government contractually, the direction he
issued specifically called for EII not to provide NASA with additional
proofs for the 121 re-worked pages. Thus, EII cannot establish
entitlement to compensation under the contract's Changes clause.
Caddell Construction Co., VABCA No. 5608, 03-2 BCA P32,257

Likewise, there is nothing in the record that would support a finding
that either NASA or the GPO was aware of and thus consciously accepted
the benefits of the additional work EII elected to perform.
Accordingly, EII cannot avail itself of a theory of breach of an
implied-in-fact contract in order to establish entitlement to recovery
in this case. See B&B Reproductions, GPOBCA 9-89, 1995 WL 488447 (June
30, 1995) ("The Appellant would have to prove that the Government
received a benefit, and that the unauthorized goods or services were
expressly or impliedly ratified by the Contracting Officer or some
other authorized contracting official."); See also Schoenfeld
Associates, Inc., VABCA No. 2184, 87-1 BCA P 19,648, citing Russell
Corporation v. United States, 210 Ct. Cl. 596, 537 F.2d 474 (1976).

Furthermore, although EII may well be correct in its assertions
regarding what is "customary" in the printing industry regarding
proofs and its need for such proofs in this case to assure the
achievement of the specified Level II quality, it provided no evidence
in the record to support these assertions, by way of affidavit or
otherwise. See Qualitype, Inc., GPOBCA 21-95, 1998 WL 350484 (April
21, 1998) (no evidence introduced in support of allegation of prior
course of dealing). As this Board has observed, the decision by a
claimant to submit its case pursuant to Board Rule 11 does not in any
way lessen its burden of proving the necessary facts to support its
request for an equitable adjustment. Taylor & Partners, Inc., VABCA
No. 4898, 97-1 BCA P28,970.

Finally, the Board must reject the notion advanced by EII that
"fairness" dictates that EII be compensated for its additional costs
associated with the proofs in question. The spectre of "fairness"
being raised by EII appears to present an equity-based argument of
some sort. Without going into whether a federal Board of Contract
Appeals has equity jurisdiction, see Urban Litho, Inc., GPOCAB 5-80,
1980 WL 119662 (December 17, 1980) (Board has no authority to make an
"equitable decision"), it is axiomatic that, for a party to invoke
equity, its own hands must be "clean." Promac, Inc., VABCA No. 5345,
98-2 BCA P30,068, citing General Electric Company, ASBCA No. 4865,
61-1 BCA P2953, et al. Here, EII, cannot pretend to be blameless.
Rather than seeking clarification from the GPO Contracting Officer,
EII admittedly "elected" to proceed without such clarification and, in
the process, to adhere only to a portion of what was being directed -
effectively "picking and choosing" among the NASA directives. Where
the additional costs being sought constituted more than three-quarters
of the original contract price (a total claim of $ 4,934.50, in
comparison with an original contract price of $ 6,290.00), one would
well expect some prior notification from the contractor before
proceeding with the additional work. Under these circumstances, the
GPO's ratification of the NASA directive and its agreement to
compensate EII for that portion of the work NASA had actually
requested seems more than fair. EII thus has been unable to sustain
its burden of proof of entitlement under any possible theory of


For the foregoing reasons, the appeal hereby is DENIED.

March 28, 2005

Administrative Judge
Panel Chair

We Concur:

Administrative Judge

Administrative Judge