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

Appeal of Bonnar-Vawter, Incorporated
October 24, 1974

Jay E. Eisen, Assistant Counsel
Essie A. Ablove, Assistant Counsel
Vincent T. McCarthy, General Counsel
Panel 74-3

This is an appeal filed by Bonnar-Vawter, Incorporated, Keene,
New Hampshire, herein also referred to as the contractor, on
April 8, 1974 (Exhibit U), under the disputes clause of the
contract, Program 374-M, Print Order 7, Article 29, U.S. GPO
Contract Terms No. 1. The Office of General Counsel is the Public
Printer's representative for the determination of appeals under
the disputes clause.

I. FINDINGS OF FACT

(a) This case arises out of a contract entered into by the
appellant Bonnar-Vawter, Incorporated, and the U.S. Government
Printing Office, herein also referred to as the GPO, for the
production of marginally punched continuous carbon interleaved
forms DD 1348-1, in two, four, and six part sets.

(b) The contract, designated as Program 374-M is a multiple award
requirements type contract awarded as a result of formal
advertising in February 1973. The period of the contract is for
12 months beginning April 1, 1973 and ending March 31, 1974. The
contract provides that each print order offered thereunder be
abstracted individually to determine the lowest contract as to
price in sequence. The Government by the terms of the contract is
obligated to offer each print order, initially to the low
contractor thus determined, to the next low contractor in
sequence, until the individual print order has been accepted. The
only basis upon which the contractor has a right to refuse a
printing order requirement is his inability to meet the
Government's delivery requirements.

(c) Print Order No. 7 (Exhibit E), was a requirement of the
Department of the Air Force for the production of 8,838,200 four-
part forms, with the first shipment of 1,000,000 forms to be
delivered by September 21, 1973, 3,919,000 due by October 15,
1973 and the balance by October 30, 1973.

(d) The prices submitted for the requirements of Print Order No.
7 were abstracted and the sequence established as follows:

(1) Moore Business Forms, Fredericksburg, Va   $49,500.78
(2) Moore Business Forms, Honesdale, Pa.   $51,082.77
(3) Bonnar-Vawter, Inc., Rockland, Maine   $60,133.61
(4) Uforma, Inc., Roseville, Michigan    $67,198.21
(5) McGregor Printing Corp., Union Springs, AL.   $68,312.10
(6) McGregor Printing Corp., York, Ala.   $68,764.36
(Exhibit G)

(e) None of the contractors listed above were able to comply with
the Government's delivery schedule. At the time the offers were
initially made, the contractors who were unable to meet the
schedule were requested to submit the earliest dates that they
would be able to make the deliveries. The schedule submitted by
Bonnar-Vawter, through its recognized agent, Mr. Carl D. Ford was
the most favorable alternate schedule received and was acceptable
to the ordering agency, the Department of the Air Force (Exhibit
H). Thereafter, the print order was again offered in the sequence
with a revised shipping schedule until accepted by Bonnar-Vawter
(Exhibits M and N). The Print Order No. 7, Purchase Order No.
11300, was forwarded to the contractor on July 19, 1973, with
deliveries required as follows:

January 28, 1974   1,000,000 Forms
February 19, 1974   3,919,000 Forms
March 7, 1974   3,919,000 Forms

(Exhibits E and L)

(f) The Government Printing Office received no further
communication from Bonnar-Vawter, Incorporated until contacted by
Mr. J. P. LeGory about the middle of October 1973, at which time
the contractor requested that the contract be rescinded. The
Government Printing Office received a copy of a letter, with
enclosures, submitted by the contractor, which was dated October
4, 1973, and directed to Mr. J. P. LeGory, Federal Marketing
Corporation, Falls Church, Virginia. Mr. LeGory was a duly
authorized agent and represented the contractor in dealing with
the GPO (Exhibit I). The appellant asserted in said letter that
the "main inability to perform . . . is our total inability to
secure the paper which is necessary to produce this order.
Enclosed with this letter are copies of three letters from
suppliers who have placed us on the requirement of cash with
order for any and all purchases." The contractor, in addition,
asserted that its former agent, Mr. Carl D. Ford, located in
Arlington, Virginia, violated the corporation's instructions
regarding its ability to make delivery of the contract
requirements in 7 months, rather than a period of 11 months.
(Exhibits J1, J2, J3)

(g) In a letter to GPO, dated January 8, 1974, the contractor
reported its acknowledgment of Purchase Order No. 11300, dated
June 27, 1973. In pertinent part it stated the following:

"Our initial shipment of 1,000,000 forms will be made, as
ordered, on or before January 28th, 1974.

"Although we have had numerous discussions as to our ability to
make this delivery, I can now inform you that materials have been
received and we are in production." (Exhibit N)

This was consistent with the schedule of the shipment and
quantities of the forms as provided in Print Order No. 7 dated
June 27, 1973. (Exhibit E)

(h) The contractor, by letter dated February 18, 1974, informed
the GPO of its inability to make the February 1974 and March 1974
deliveries as scheduled, since the quantities of paper and carbon
required were beyond its normal allocations for these materials.

The contractor asserted, because of current shortages of paper .
it would not be able to make its next shipment prior to August 1,
1974. (Exhibit P)

(i) The proposed revised shipping schedule offered by the
contractor was unacceptable to the Government. The contractor was
notified by mailgram dated March 1, 1974, that its failure to
comply with the schedule requirements was the basis for
terminating the contract for default, in accordance with Article
18, GPO Contract Terms No. 1. (Exhibit Q)

(j) The contractor responded by telegram dated March 11, 1974, as
follows:

"We have canvassed entire paper industry in United States and
Canada, and cannot locate paper meeting specifications. . . .

Accordingly, we believe that this contract should be terminated
for the convenience of the Government, without penalty to Bonnar-
Vawter." (Exhibit R)

A letter to GPO dated March 12, 1974 made similar assertions.
(Exhibit S)

(k) In a letter from GPO to the contractor dated March 21, 1974,
the contractor was notified in writing of its failure to furnish
any evidence that the material required to produce the order was
not obtainable during the 7 months that had elapsed since the
time of acceptance. The contractor was also notified by the
contracting officer of GPO that:

". . . since you have failed to make delivery of the  supplies
within the time specified in the contract, your right to proceed
further with performance of the contract is terminated for
default." (Exhibit T)

(l) By letter to the Public Printer dated April 18, 1974, the
contractor appealed under the disputes clause of the referenced
contract. (Exhibit U)

In a letter from GPO to the contractor dated May 7, 1974, it
acknowledged the receipt of contractor's appeal and advised it of
its right to submit any additional evidence in support thereof.
(Exhibit U1)

(m) The appeal letter of Bonnar-Vawter, Incorporated, dated June
7, 1974, addressed to the General Counsel of GPO, reiterated that
the initial production of the forms which were shipped January
28, 1974, completely exhausted their allocations of the necessary
paper and carbon. It stated that paper suppliers do not permit
customers to save up allocations, and "[i]f not used in the month
which they are operable, they are forfeited." It also contained
the following:

". . . we quoted eleven month delivery; against our instructions
our agent Mr. Carl Ford . . . changed this quotation to seven
months. We were completely unable to deliver within seven months
due to worldwide  shortages of paper, pulp and energy. We
terminated our contract . . . when it expired, in November of
1973.

"Since that time we have attempted to perform to this  contract,
and on January 28th, 1974 we shipped . . .  (988,400) of the
forms as specified, . . .

"This shipment completely exhausted our allocations of  the
necessary paper and carbon for this form, and  consequently,
although willing, we are totally unable to  perform further, due
to circumstances completely  beyond our control."

This letter further stated:

". . . that an unfavorable decision on our appeal will  cause
substantial harm to our company, possibly   impairing our ability
to continue operations. Cessation  of operations would cause
considerable economic hardship in the three communities in which
our   operations are presently located. . . ." (Exhibit U2)

Attached to the appeal letter was a copy of a letter to a Colonel
E. T. Nance from Mr. Eric White of the Canadian Department of
Industry, Trade and Commerce which stated that reclassification
actions on form bond paper by the United States Customs Service
during 1973 further restricted the import of form bond paper from
Canada and particularly from the E. B. Eddy Company and Domtar,
Ltd. (Exhibit U2)

II. QUESTION PRESENTED

The question presented is whether the contractor was in default
or whether contractor's 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, October
3, 1962, 1962 BCA  3528

The contractor stated that its inability to make delivery of the
forms as per schedule was because of the unavailability of the
appropriate paper stock. It is recognized that a tight supply and
demand condition was prevalent in the paper industry in the
United States and Canada during the last year and continuing
during the year 1974 to the present.

However, the evidence of record does not support the relief
sought by appellant. Indeed, appellant has offered nothing of
consequence in the way of proof to bring it within those contract
provisions which would relieve it of any excess costs. All that
the contractor offers is a series of unsupported self-serving
statements, such as the following:

"We have canvassed entire paper industry in United States and
Canada, and cannot locate paper meeting specifications. This
survey has been confirmed by independent consulting organization.
In addition, carbon paper deliveries and allocations limit
availability of suitable carbon paper." (Exhibit R)

In the Rimmco  case, ASBCA No. 14386, May 14, 1970, 70-1 BCA 
8290, the contractor offered evidence of $50.00 worth of long
distance calls to potential suppliers. ASBCA upheld termination
for default because such evidence did not prove the general
unavailability of copper tubing.

The contractor submitted a copy of a letter issued by the
Canadian Department of Industry, Trade and Commerce, which stated
that reclassification actions on form bond paper by the United
States Custom Service during the year 1973 further restricted the
import of form bond paper from Canada and contributed to its
short supply. The letter does not sustain the appellant's burden.
This does not bring the contractor within the contract provision
which would excuse the contractor from default action. Eastern
Realty & Construction Co. ASBCA No. 8066, January 18, 1963, 1963
BCA  3636; Hirsch, United Auto. Eng. Co., ASBCA No. 5662, August
8, 1960, 60-2 BCA  2758. The contractor's appeal letter with
attachment was virtually the only documentation submitted in
support of its position. It was a self serving statement. H. C.
Thode Inc., ASBCA No. 18177, 18294, December 28, 1973, 74-1 BCA 
10, 418.

The next reason stated in its appeal is that its Washington, D.C.
agent, Carl D. Ford, violated the corporation's instruction by
quoting delivery of the material within 7 months, rather than
in.ll months.

However, even after raising the issue of the agent's violation of
instructions, the contractor acted on the commitment of its agent
by performing the first increment of the contract and making
delivery on January 28, 1974. This agent had been authorized to
act as agent of the company over a substantial period of time.

The appellant states its belief that an unfavorable decision on
this appeal may impair its ability to continue operations and
that cessation of operations would cause considerable economic
hardship by affecting employment in the three areas in which its
plants are located. Such statement is not a basis for excusable
default under the contract.

Subject to some exceptions, the legal principles governing
contracts to which the Government is a party are substantially
the same as those which apply to contracts between private
persons. When the United States "comes down from its position of
sovereignty and enters the domain of commerce, it submits itself
to the same laws that govern individuals there." Cooke v. United
States, 91 U.S. 389, 398 (1875). See F. Trowbridge vom Baur,
"Fifty years of Government Contract Law: The Evolution of the
Government's Power to Contract," 29 Federal Bar Journal 308
(1970).

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; that the
contracting officer acted reasonably in terminating the contract
for default; that the appeal is denied.

The amount of excess procurement costs, if any, has not been
considered in this appeal since it was not before the Contract
Appeals Board.