United States Government Printing Office
Office of the General Counsel
Board of Contract Appeals

Appeal of Western Publishing Company, Inc.
March 24, 1975

Vincent T. McCarthy, Chairman
Paul R. Boucher, Member
Jay E. Eisen, Member
Panel 74-15

This is a timely appeal filed by the Western Publishing Company,
Inc., Racine, Wisconsin, hereinafter also referred to as the
Contractor, on November 7, 1974, under the Disputes Clause of GPO
Contract Terms No. 1 governing GPO Jackets No. 499-945, 469-946
and 469-950 under Purchase Orders 02771, 02788 and 02975,
respectively.

Facts

This appeal arises out of a contract entered into between the
Government Printing Office and the Contractor for the manufacture
of photocomposing and paginated, camera-ready pages and master
file magnetic tapes from manuscript covering certain decisions
and orders of the National Labor Relations Board (NLRB).
Pursuant to the contract, the Contractor forwarded typeset page
proofs to the GPO which were rejected outright as not being free
from error.  The Contractor undertook to correct the
deficiencies, submitted corrected proofs and thereafter submitted
invoices for additional payments for expenses incurred on the
basis that the GPO rejection constituted a change in the
Technical Specifications of the contract.  The total amount
claimed in the additional invoices is $35,229.59.

On October 8, 1974, the Contracting Officer issued a final
decision denying the claim on the basis that the Contractor had
not been required to perform work beyond the scope of the
contracts nor had it furnished any evidence that any change order
had been issued by the GPO to support its claim of entitlement to
the additional funds.

By letter dated November 7, 1974 (Exhibit 1), the Contractor
details the basis upon which he relies for payment of the
additional expenses in connection with the production of the NLRB
Reports covered by the contract.  Exhibit 1 and a subsequent
letter, Exhibit 2, contain specific requests for additional time
to provide additional evidence to the Board in support of its
appeal.

By Board letter of December 23, 1974 (Exhibit 3), the Contractor
was provided with this opportunity.  The Contractor by letter
dated January 9, 1975 (Exhibit 4), declined to provide any
additional evidence and elected to ground his appeal solely upon
the points set forth in Exhibit 1.

Discussion of Appeal Issues

A review of Exhibit 1 reflects that the Contractor sets forth, in
substance, as its first basis for appeal that:

"The rejection by the GPO of the typeset page proofs of NLRB
Volumes 190, 191 and 195 constituted a change in the
specifications of the contract which resulted in the major
portion of additional costs associated with its claim."

The Contractor contends that the dispute concerning entitlement
centers around Page 3 of the Technical Specifications and the
following paragraph found thereon:

"1.  Manuscript copy, both marked and unmarked for composition.
The contractor will be responsible for coding the data he
keyboards, to conform with 'copy block' layouts.  (NLRB 'copy
block' layouts, and line samples chart indicating format,
typefaces, etc., will be furnished to the successful bidder.)"

Pursuant to the contract terms, the Contractor was provided with
NLRB Manuscript; a copy of which the Contractor furnished as
evidence in support of its appeal and which is Exhibit 5 to this
opinion.  The Contractor contends that Exhibit 5, absent the
green notations thereon, represents a sample of the Manuscript
Copy provided by the GPO in connection with this contract.  The
Contractor notes that the NLRB Circle Code "61" appears to the
left of the case title and the Board notes that the NLRB Circle
Codes "05" and "60" appear elsewhere on Exhibit 5.

Exhibit 6 is a copy of a typeset page of Exhibit 5 which the
Contractor submitted to the GPO following initial
photocomposition work.  The Contractor asserts that Exhibit 6 is
evidence of his compliance with the manuscript copy provided by
the GPO and that the rejection and subsequent changes indicated
by the green ink notations of Exhibit 5 constituted a change in
the Technical Specifications and resulted in additional
expenditures which are now the subject of this appeal.

The Contractor's assertion that it at all times complied with the
original specifications and the marked and unmarked manuscript
copy is not supported by the evidence which it has itself
submitted as proof of the validity of its claim.  The Contractor
noted that the NLRB Circle Code "61" appeared beside the case
title.  Reference to those portions of the Technical
Specifications of the contract captioned NLRB Line Samples
(Exhibit 7) reflects that Code "61", which governs the format for
the Decision and Order of the case, requires that the case title
be printed in capitals and lower case format and that the
Technical Specifications contain a sample of the format
contemplated by the NLRB by its use of Circle Code "61".

Rather than adhering to the requirements of the marked
manuscript, the Contractor forwarded to the GPO proofs in which
the Decision and Order were all capitalized (Exhibit 6).  Such a
format is clearly not consistent with the requirements of the
contract.

The Contractor does not allege that it was misled by the NLRB or
the GPO but rather claims that, prior to photocomposition, he
contacted GPO and was advised to "follow the manuscript, marked
or unmarked as already submitted to us." (Exhibit 1 at page 3)
The Contractor, however, did not follow the manuscript as
required by the contract and subsequently affirmed by the GPO
inasmuch as his composition of the Decision and Order of the
Board did not conform to the requirements of the Code "61"
designation contained on the face of the manuscript.

The Contractor further cites that the subsequent rejection of
Exhibit 6 by the GPO as not in conformance with the terms and
specifications of the contract is evidence that the original
manuscript was incompletely or inaccurately marked.  The evidence
reflects, however, that the Contractor had notice that Circle
Code "61" was to govern the format of the Decision and Order
prior to his having commenced photocomposition and that he failed
to comply with these requirements.  There can be no question but
that the Contractor was fully aware of the meaning and
significance of the Circle Codes inasmuch as he did strictly
adhere to the requirements of Codes "05" and "60" in the
remainder of his photocomposition (see Exhibit 6).  The fact that
the typewritten format of the manuscript may be in a format
different from that required by the Circle Codes does not alter
the fact that the Circle Codes govern the format.  The fact that
sample manuscripts may from time to time not conform to the end
product format desired by the NLRB is, in part, the reason for
the Circle Code editing system and the reason the contract
requires compliance with the "marked or unmarked" manuscript
copy.

The Board has concluded that with respect to the first ground for
appeal, the Contractor has failed to show that his initial proofs
were submitted free from error as required by the contract or
that the subsequent corrections made by the Contractor
constituted additional work outside the terms of the original
contract as would entitle him to any adjustment in the contract
price.

The second issue raised by the contractor relates to the GPO
estimate that the production of Volumes 190 and 191 would result
in approximately 1,000 pages per volume.  The Contractor
acknowledges the specific provisions of the contract which state
that the estimates

". . . do not constitute, nor are they to be construed as, a
guarantee of the volume of the work which may be necessary to
produce the items ordered under the specifications."

He thereafter asserts that pursuant to a verbal statement of the
Contracting Officer, the GPO repudiated the express meaning of
this contract term and became a guarantor for additional payments
for any underrun of 10% or more.  In the absence of any evidence
to support this claim or which would indicate that the GPO acted
in bad faith in establishing the 1,000 page estimate (New Orleans
Stevedoring Co., 1962 BCA  3382) or that its estimate was not
based on the best available information.at the time of
contracting (Comp. Gen. B-168619, May 11, 1970; Comp. Gen.
B-165642, February 19, 1969), there is no authority to depart
from the express terms of the contract and to grant the
"discretionary costs" claimed by the Contractor for the underrun.

Decision

The Board concludes that there is no authority for granting the
relief requested by the Contractor and must, therefore, deny the
appeal of the Contractor.