U.S. Government Printing Office
Office of General Counsel
Contract Appeals Board

Appeal of American Printing and Publishing, Inc.
September 19, 1975

Vincent T. McCarthy, Chairman, Appeals Board
Jay E. Eisen, Member
Robert M. Diamond, Member
Panel 74-11

This is an appeal filed on August 8, 1974, by the American
Printing and Publishing, Inc., 458 East King Street,
Chambersburg, Pennsylvania 17201, herein also referred to as the
contractor or appellant, under the disputes clause of the
contract, Article 29, United States Government Printing Office
Contract Terms No. 1, Rev. July 15, 1970.

I. Findings of Fact

a. This case arises out of a contract (Jacket No. 545-360,
Program 214-S) entered into by appellant and the United States
Government Printing Office, herein also referred to as the GPO,
for the production of various sizes of miscellaneous pamphlets
printed in one or two colors.  The contract is a requirement type
of contract for indefinite quantities of pamphlets as
requisitioned from the GPO by the Action Agency, 806 Connecticut
Avenue NW., Washington, DC, during the term of the contract,
beginning September 1, 1973, and ending August 31, 1974.

b. The contract provided that approximately 50 orders will be
placed over the term of the contract; that orders will be placed
as noted, not necessarily at regular intervals; however, never
more than five orders will be placed in any one week.  It was
anticipated that orders will vary from 1,000 up to 250,000 copies
and that the average order will be for 25,000 copies.

c. The contract required the use of specific types of paper to be
used producing the orders as to quality, to include weight,
thickness, opacity, brightness, pick resistance and surface.  The
categories of types of paper to be used are listed in the
contract as follows:

Per 1,000 leaves of:

(a)  40-1b. White Writing
(b)  120-1b. White opacified Offset Book
(c)  120-1b. White Litho Coated Book
(d)  100-lb. White Vellum-Finish Cover
(e)  l00-lb. Colored Vellum-Finish Cover
(f)  160-lb. White Litho Cover

d. The contractor was issued a memorandum order dated November
19, 1973, GPO Form 2511, Print Order 8, Purchase Order 52477,
delivered to contractor on November 29, 1973, to manufacture
150,000 copies of a pamphlet (No. 4000.12) titled "Liberal Arts
Brochure" for the Action Agency.  The print order required the
use of opacified offset #120 paper for the 16 pages of text.  The
shipping date was scheduled for January 22, 1974, with delivery
F.O.B. contractor's city.  The destination for delivery of the
brochures was designated as the American Mailing Corporation, 440
Swann Avenue, Alexandria, Virginia.

e. The contractor informed GPO by telephone, as noted in records
retained by GPO, of the following:

(1) January 18, 1974 - Contractor advised GPO that it could not
furnish the specified paper (#120 opacified offset) because of a
nationwide paper shortage.

(2) January 23, 1974 - Contractor stated that he could furnish a
substitute paper (#100 white offset) and it was authorized to
produce 50M (fifty thousand) copies using that substitute paper.

(3) January 28, 1974 - Contractor advised that he did not have
#100 white offset, but possesses #20 white bond.  The contractor
was advised by GPO that #20 white bond would not be acceptable
because of "show thru."

f. The contractor, by letter dated January 28, 1974, requested to
be released from the obligations imposed under the terms of the
contract without a penalty because of the unavailability of #120
white opacified offset, #120 white litho-coated book paper and
the No. 100 white opacified offset paper.  GPO advised the
contractor of its responsibilities under the binding contract,
and that it was subject to the provisions of Article 18, U.S.
Government Printing Office, Contract Terms No. 1, entitled
Default.

g. Tho contractor had issued a purchase order on December 10,
1973, to  the Grant Paper Company, Philadelphia, Pennsylvania, to
acquire  #120 white opacified offset paper with delivery
anticipated on  December 17, 1973.  The stock had not arrived as
of February 4, 1974.   On February 4, 1974, a purchase order
directed to Alling and Gory,  Harrisburg, Pennsylvania, resulted
in the acquisition of #120 white  opacified offset paper.  This
paper was received by the contractor on  March 14, 1974.  Print
Order No. 8 was printed on the paper and it  was shipped on April
1, 1974.

h. The contract Provided in part the following:

"Liquidated Damages:  Should the contractor default on shipping
schedules stated in these specifications, the contractor will be
assessed liquidated damages against that part or parts of an
order which have not been shipped to the specified destination on
the specified date. . . . The amount of damages will be computed
at the rate of one percent (1%) of the contract price of the
quantity not shipped in accordance with specifications for each
working day the contractor is in default of the shipping
schedule(s):  Provided, . . . except the total damages assessed
against the contractor shall in no case exceed fifty percent
(50%) of the total value of the entire order. . . "

As a result of delays in performance, and pursuant to the terms
of the contract, the contracting officer assessed liquidated
damages against the contractor.  Damages were computed at the
rate of 1 percent of the contract price of the quantity not
shipped according to specifications for each working day the
contractor was in default of the shipping schedule.  The amount
of Print Order No. 8, Program 214-S is $6,977.00.  Liquidated
damages at the rate of $69.77 per day for a period of 46 days
amounts to $3,209.42.

i. The contracting officer on July 19, 1974, denied the
contractor's  request for relief from liquidated damages for
Program 214-S, Print  Order No. 8, Purchase Order No. 52477.  The
contractor submitted its  appeal to the Public Printer by letter
dated August 8, 1974.

II.  Opinion

Under the clear language of Article 17, Delay in Deliveries,
United States Government Printing Office Contract Terms No. 1, a
delay to be excusable, must arise from unforeseeable causes
beyond the control and without the fault or negligence of the
contractor including, but not restricted to, acts of God, or the
public energy, acts of the Government, fires, floods, epidemics,
quarantine restrictions, strikes, freight embargoes, and
unusually severe weather.

It is well established that a contractor who claims that his late
performance and delivery is excusable has the burden of
establishing the same under the contract.  The contractor must
prove affirmatively that the failure to achieve timely
performance was caused by or arose out of a situation which was
beyond his control and he was not at
fault or negligent.  In addition, the contractor must show that
he could have performed on time save for the occurrence of the
event he claims as an excusable delay (Lee K. Geiger Construction
Company, GSBCA, 67-1 BCA  6189, American Construction Company,
Inc., GSBCA, 65-2 BCA  4964).

Bearing these precepts in mind, let us now consider the
appellant's allegations as to why its lateness should be
considered excusable and the support for such allegations.

The appellant alleges as its excusable cause of delay its
difficulties in obtaining the appropriate required paper stock
which the specifications required for printing the pamphlets.
The contractor was aware that the term of this requirements type
contract began on Sept. 1, 1973, and ended on August 30, 1974.
He was therefore alerted as to the need to obtain commitments
from suppliers for the type and kind of paper needed to complete
the requirements of the contract.  On November 29, 1973, the
contractor was issued Print Order No. 8 under Program 214-S to
produce 150,000 pamphlets with the text printed on #120 opacified
offset.  The contractor issued a purchase order on December 10,
1973, to his regular supplier to acquire the paper, but was
unsuccessful in obtaining the paper.  He submitted a purchase
order to another supplier on February 4, 1974, and received the
paper on March 14, 1974.

The facts show that the contractor did not have any firm
commitment from any paper suppliers on or before the date of the
issuance of Print Order No. 8.  A contractor impliedly represents
when he makes his bid that he can accomplish what he sets out to
do within the time upon which there was an agreement.  (Woodhull
Construction Company, ASBCA, 57-1 BCA  1260.)  Thus from the
fact that the contractor has entered into the contract, it is
fair to presume that it lies within its power to perform the
contract within the time allotted.  To prepare itself, the
contractor, as a matter of necessity, must ascertain the
availability of the required paper for the work contemplated.

The contract was awarded on September 1, 1973.  It specifies in
detail the various categories of paper required and necessary to
produce the print orders forthcoming during the term of the
contract.  For all that appears in the affidavits and
correspondence submitted by the appellant, no firm orders for
#120 white opacified paper were placed until December 10, 1973
and February 4, 1974.  The appellant had an obligation to
determine the availability, prices, and delivery dates of
materials needed for the contract.  (Federal Roofing and
Painting, Inc., Eng. 68-1 BCA  6912.) The burden rests upon the
contractor to place himself in a position to perform.

We therefore hold that the appellant has failed to provide
substantial evidence that the delay in completion of the print
order was due to unforeseeable causes, without the fault of the
contractor.

III.  Decision

 In view of the foregoing the appeal is denied.