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

Appeal of: Delaware Lithograph Company, Inc.
December 29, 1974
Panel 74-12
Paul R. Boucher, Member

This is an appeal filed by the Delaware Lithograph Company, Inc. Muncie, Indiana, hereinafter also
referred to as the Contractor, on September 18, 1974, under the Disputes Clause of the contract for
Program 202-M, Print Orders 869, 1148, 1154, Article 29, U.S. Government Printing Office Contract
Terms No. 1.

I. Findings of Fact

a. This appeal arises out of a contract entered into by the appellant, Delaware Lithograph and the
U.S. Government Printing Office, hereinafter referred to as the Government Printing Office, for the
production of materials for the Department of the Army and the Superintendent of Documents under
Print Orders 869, 1148 and 1154.

1. Print Order 869 (Exhibit 1) was a requirement of the Department of the Army for the production
of 13,100 copies of Army Regulation 190-4 at an estimated cost of $1,308.59.  This order was placed
on October 4, 1973 and was assigned a shipping date of November 27, 1973.

2. Print Order 1148 (Exhibit 2) was a requirement of the Superintendent of Documents for the
production of 3,000 copies of an Index to classification at an estimated cost of $3,423.12.  This
order was assigned a shipping date of January 8, 1974.

3. Print Order 1154 (Exhibit 3( was a requirement of the Department of the Army for the production
of 18,400 copies of a training manual at an estimated cost of $1,980.80.  This order was placed on
December 7, 1973 and was assigned a shipping date of January 25, 1974.

b. The Contractor failed to meet the shipping schedule for all three Print Orders.  Exhibit 4 is a
January 28, 1974 letter from the contractor in response to several inquiries made by the Government
Printing Office in which the Contractor attributes difficulties in procuring sufficient paper.  He
goes on to state, however, that he has received sufficient supplies of paper to complete all orders
and promises shipment at the rate of two to four orders per day.

c. In March 1974, Print Orders 869, 1148 and 1154 remained unexecuted and further inquiries by the
Government Printing Office of the Contractor resulted in Exhibit 5; a Contractor letter which
states that his March allotment of paper would be needed to complete the orders.

d. On March 22, 1974, a show cause mail-o-gram (Exhibit 6) was sent to the Contractor.  Exhibit 7
is the Contractor's letter response in which he reasserts his ability to complete all orders
utilizing his March allotments of paper.

e. On July 17, 1974, the Department of the Army notified GPO that it had never received the
material under production by the Contractor pursuant to Print Order 1154.  The Contractor was
contacted for proof of shipment and status of job and replied that Print Order 1154 was not in his
plant and declined to furnish any additional information.  Inquiry with Financial Management
disclosed that in addition to Print Order 1154, Print Orders 869 and 1148 had not yet been billed
for by the Contractor.  The Contractor was again contacted for data on these orders and asserted
that he had no Central Office GPO jobs left in his plant but again declined to furnish additional
data.  The Contractor was advised that unless he provided proof of shipment, default action would
be instituted.  Subsequent to this discussion, it was ascertained that Print Orders 869 and 1148
had also not been received by the ordering agencies.

f. By letter dated September 3, 1974 (Exhibit 8), the Contractor was notified that he had been
declared in default of contract pursuant to Article 18(a)(i) of the U.S. Government Printing Office
Contract Terms No. 1.

g. By letters dated September 10, 1974 (Exhibits 9, 10 and 11), the Contractor was notified of the
reaward of the defaulted Print Orders and that the total amount of the excess costs for this
reprocurement would be deducted from his account with.the GPO; which amount had been computed at
$1,610.07.

h. Exhibit 12 is the Contractor's letter dated September 18, 1974 by which he notified the Public
Printer of his intent to appeal our finding of default.  His sole ground for appeal as asserted by
this letter is the difficulty encountered by his company in procuring adequate supplies of paper
for the completion of these orders.

i. Exhibit 13 is the letter of the Contract Appeals Board to the Contractor in which he is provided
with a further opportunity to present additional evidence in our review and consideration of his
appeal.

j. Exhibit 14 is the Contractor's letter of November 4, 1974, acknowledging receipt of the General
Counsel's letter and in which the Contractor again places sole reliance upon his difficulties in
procuring adequate quantities of paper to complete the orders.

II.  Issue Presented

Although the Contractor, in perfecting his appeal in this case, does not specifically place
reliance upon the exception clause of Article 18 of the U.S. Government Printing Office Contract
Terms No. 1, his claim of impossibility of performance due to his inability to acquire adequate
paper stock must be considered as an attempt, in effect, to bring him within the Article 18
exception.  The issue then is whether the Contractor was in default of contract or whether his
failure to perform under the contract arose out of "Causes beyond the control and without the fault
or negligence of the Contractor."  Such causes are set forth in Article 18(c), GPO Contract Terms
No. 1 which reads in pertinent part as follows:

"Such causes may include, but are not restricted to, acts of God or of the public enemy, acts of
the Government in either its sovereign or contractual capacity, fires, floods, epidemics,
quarantine restrictions, strikes, freight embargoes, and.  unusually severe weather; but in every
case the failure to perform must be beyond the control and without the fault or negligence of the
contractor."

III. Opinion

The default clause, when the evidence sustains the existence of one or more of the excusable causes
of default, relieves the Contractor of liability for excess costs or damages and results in a
termination for the convenience of the Government rather than a termination for default.  The
burden of proof is on the Contractor to demonstrate that its failure to perform was due to causes
beyond its control.  The clause makes it incumbent upon the Contractor to establish by a
preponderance of the evidence that its failure was due to causes beyond its control and without its
fault or negligence.  Racon Electric Company,  ASBCA 8020, 1962 BCA  3528, October 3, 1962.

The Contractor has grounded his appeal upon his inability to secure adequate supplies of paper
stock.  It is recognized that a tight supply and demand condition was prevalent in the paper
industry in the United States during 1973 and 1974.  The evidence of record, however, does not
support the relief sought by the appellant as it is bare of anything by way of proof which would
bring him within the contract provisions relieving him of liability to the Government for excess
costs.

Rather than provide any form of documentation in support of his claim, the Contractor, in
conclusory and self-serving statements, asserts that he was unable to obtain paper and should
therefore be relieved of his responsibility under the contract.  This claim is inconsistent on its
face with the fact that in January 1974, the Contractor notified the GPO that he then had adequate
paper stock on hand to complete and ship all Program 202-M orders at the rate of 2 - 4 orders per
day (Exhibit 4).  After his failure to ship during February 1974, when queried, the Contractor
claimed that with the receipt of his March 1974 allotment of paper, he would be in a position to
complete and ship all Program 202-M orders (Exhibit 5).  These inconsistencies suggest that, rather
than due to a paper shortage, the Contractor's failure to perform under the contract terms was
predicated upon his inability to effectively manage his operations and properly estimate what his
paper requirements would be to fulfill all his contractual obligations.  The only documentation
provided to the GPO in support of the appellant's action discloses only some apparent delay and not
impossibility in the procurement of paper stock.  Such evidence is clearly insufficient to sustain
the appellant's burden of showing by clear and convincing evidence that his inability to perform
under the contract was due to causes beyond his control and without his fault or negligence such as
would excuse the appellant from default action  Eastern Realty and Construction  Co., ASBCA No.
8066, 1963 BCA  3636, January 18, 1963; Hirsch, United Auto Eng. Co.,  ASBCA No. 5662, 60-2 BCA 
2758, August 8, 1960.

In his letter, the appellant further asserts that he concluded his participation in the 202-M
Program by merely returning the three outstanding orders to the GPO pursuant to the instructions of
unnamed persons within the GPO.  He provides no evidence in support of his claim, however, and
inquiry within the GPO failed to disclose that the appellant ever returned either the orders or the
camera copy or negatives to the GPO.  Notwithstanding this fact, such action would not, in any
event, provide any basis for relieving the appellant of his contractual obligations in the absence
of affirmative action by the Government to have the outstanding contract terminated for its
convenience (Article 16, U.S. Government Printing Office Contract Terms No. 1).

The appellant states his further belief that an unfavorable decision on this appeal could seriously
impair its ability to continue operations.  Such a statement, however, is not a basis for excusable
default under the contract.

It is concluded, therefore, that the contractor has not sustained its burden of proof; that
appellant failed to deliver the material as per schedule in the contract and that the contractor's
failure is not evidenced to be due to causes beyond its control and without its fault or
negligence; and that the contracting officer acted reasonably in terminating the contract for
default. In light of the foregoing, therefore, the appeal of Delaware Lithograph is denied