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.