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.