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

Appeal of Barrington Color Offset, Inc.
September 19, 1975

Vincent T. McCarthy, Chairman,
Ray E. Eisen, Member
Robert M. Diamond, Member
Panel 74-7

This is an appeal filed on June 3, 1974 by Barrington Color
Offset, Incorporated,
3 Esterbrook Drive, Cherry Hill, New Jersey, 08003, herein also
referred to as the contractor, under the disputes clause of the
contract, Jacket No. 534-042, Purchase Order 57890, Article 29,
U. S. Government Printing Office Contract Terms No. 1, Rev. July
15, 1970.

I. Findings of Fact

a. This case arises out of the above described contract entered
into on March 25, 1974, by the appellant, Barrington Color
Offset, lnc., and the U. S. Government Printing Office, herein
referred to as the GPO, for the production of 250,000 bumper
stickers.

b. The contract, a fixed price agreement for the procurement of
the supplies awarded at a cost of $7,728.00, is a requirement of
the Army National Guard, Advertising Support Center, Edgewood
Arsenal, Maryland for the production of the following:

250,000 pressure sensitive stickers printing in red, blue, and
black ink on white flexible vinyl, titled "We've Got Hot Wheels;"
size, 13 1/4" x 3-1/2".

c. The specifications as to the quality of the stock required the
following:

"Stock: Print on White Flexible Vinyl, approx. .004" thick, equal
to Fasson's Fascal 1500 'Easy Off' vinyl."

d. The schedule called for delivery of all copies F.O.B.,
contractor's city to the addressees listed in the contract, on or
before April 29, 1974.

e. The contractor communicated by telephone on April 5, 1974, and
although not required, requested GPO to test samples of stock
that it proposed to use in fulfilling the order. The Paper
Division of the GPO Quality Control and Technical Department
tested the material and concluded that the quality of the stock
did not meet the standards required by the specifications. The
contractor was notified by telephone on April 12, 1974 of the
results of the tests, that the material tested did not meet the
standards required by the specifications.

f. The contractor informed GPO on April 26, 1974, of its
inability to obtain the necessary material in time to meet the
schedule. The contractor on May 10, 1974 advised GPO that it had
located a sufficient amount of the material to produce
approximately twenty-five per cent of the order with delivery
scheduled in six weeks therefrom and the balance of the order to
be made and delivered on or before August 2, 1974. The contractor
was informed that its proposed schedule was unacceptable and that
the Government will terminate the contract by default for the
contractor's failure to perform any of the provisions of the
contract.

g. By written termination notice dated May 13, 1974, the
contractor was notified by the contracting officer that the
contract is terminated for its failure to deliver the bumper
stickers in accordance with the specifications. The action was
taken pursuant to Article 18, GPO contract Terms No. 1, which is
an integral part of the contract.

h. GPO in accordance with the provisions of Article 18(b), GPO
contract terms No. 1 readvertised to procure supplies similar to
those so specified in the terminated contract. The appellant
contractor bid on this readvertised requirement and was the low
bidder. Its bid in the amount of $8,400 was accepted and Jacket
Number 534-042, Purchase Order was issued to the contractor on
June 11, 1974, with a required shipping date of July 12, 1974.

i. The contractor was notified by letter on June 25, 1974, that
the total amount of excess costs resulting from the reprocurement
would be deducted from its account.

II. Opinion

The issue in this case involves the propriety of a termination
for default issued as a result of the failure of the contractor
to make timely delivery of the specified type of bumper stickers
for the Army National Guard to be used for recruitment purposes.
Barrington Color Offset, Inc. did not make timely delivery
because it failed to obtain a type of material, "White flexible
vinyl, approximately .004" thick, equal to Fasson's Fascal 1500
'Easy Off' Vinyl" which was an essential component in the
manufacture of the bumper stickers.

The appellant's difficulties in performance commenced early when
the contractor contacted its supplier with respect to obtaining
the material as set forth in the specifications and was advised
by the supplier that they could not deliver this exact material
but could deliver material of equal quality. Despite this
information, the contractor submitted its bid and was awarded the
contract contemplating to use the material of "equal quality."
Thereafter, the appellant in his self serving statement relates
that upon reviewing the purchase order, ". . . we recognized the
error and immediately called and explained the material situation
to James Markley at the Government Printing Office."

By the very nature of this contract, the contractor was required
to perform exactly in accordance with the details of the
specifications. lt was appellant's obligation under the contract
to plan for its performance prior to submitting its bid to assure
itself as to the availability of the essential material prior to
obligating itself to deliver. Highway Products, Inc. ASBCA, 69-2
BCA  8064. The contractor appeared to realize there was a
possibility that the "material of equal quality" would not meet
the requirements of the contract. It submitted the material for
testing by GPO. The contractor suggests that his difficulty was
the result of an error and it should not be penalized. It is
recognized that the unavailability of supplies did not excuse the
default of the contractor under the contract accepted subsequent
to its discovery that there was a shortage or unavailability of
the material for its pending contract. Beco, Inc. ASBCA 1964 BCA
 4493.

It is concluded, therefore, that the cause of the failure to
perform was the failure of the contractor to assure itself of the
availability of proper material prior to obligating itself under
the contract. The burden of proof is on the contractor to
demonstrate that its failure to perform was due to causes beyond
his control and without its fault or negligence. Article 18(c),
GPO contract Terms No. 1.

The appellant has not met his burden respecting excusability.

III. Decision

In view of the foregoing the appeal is denied.