U.S. Government Printing Office
Contract Appeals Board

Appeal of Buffalo Polycolor Corporation
July 31, 1978

Vincent T. McCarthy, Chairman
Jay E. Eisen, Member
Drew Spalding, Member
Panel 76-2

This is an appeal filed by the Buffalo Polycolor Corporation
(hereinafter referred to as Appellant), 1144 Military Road,
Buffalo, New York 14217, under the "Disputes" clause, Article 29,
U.S. Government Printing Office (hereafter the GPO) Contract
Terms No. 1, as revised July 15, 1970, At issue is the assessment
of liquidated damages in the amount of $4,896 because of delay in
final delivery of the printed material.

Findings of Fact

1. Appellant was awarded a contract (Jacket 578-363) on July 7,
1975, for the production of 100,100 Air Force recruiting
brochures at a fixed price of $28,800.  Print Order No. 50861 was
issued on July 9, 1975.  Incorporated as part of the contract
were GPO Contract Terms No. 1, approved July 1, 1943 (Revised
7-15-70), and GPO Form 2459D, Special Terms and Conditions
(Revised 11-1-73).

2.   The contract contained the following production schedule:

"Furnished materials to be received by the contractor on or
before July 14, 1975.

"Submit proofs as soon as possible.  See under 'PROOF'.

"Notify GPO 5 working days in advance of in-plant press sheet
inspection.

"Complete shipment on or before August 25, 1975."
(Specifications, p. 6.)

The relevant language under PROOFS reads:

"Submit the proofs as soon as possible to allow for the
possibility of necessary corrections.  These proofs are scheduled
to be back at the contractor's plant within 15 working days after
receipt at the GPO. . . ." (Specifications, p. 2.)

3. The materials to be furnished by the GPO were received by
Appellant on July 14, 1975, in accordance with the contract
schedule.  Sixteen working days thereafter, press proofs were
sent to the GPO arriving on August 5, 1975.  These proofs were
"OK'd" for printing and returned to Appellant on September 12,
1975, which was 26 work days after receipt by the GPO and
approximately 3 work weeks after the original date specified by
the contract for completed shipment.

4. On August 28, 1975, 2 days after the GPO should have returned
the "OK'd" proofs to the Appellant (assuming the GPO had complied
with the 15 working day limit set out under the "PROOFS" section
quoted above in No. 2), Appellant sent a telegram to the GPO
Contracting Officer which read:

"Proofs not returned per schedule.

"Advise rescheduled delivery date."

5. Appellant's Operations Manager subsequently mailed a letter to
the GPO, dated September 23, 1975, which contained the following:

"In view of the late return of press proofs for Jacket #578-363
it is necessary to reschedule delivery.

"Proofs sent to you Via Air-Freight of August 4, 1975 (and signed
for at the Government Printing Office on August 5, 1975) were not
returned to us until September 12, 1975.  We are now ready for
press and are anticipating arrival of your inspector on September
22, 1975 [sic], so that we can commence production.

"Delivery will be completed October 3, 1975."

6. The Contracting Officer sent a letter to Appellant, dated
October 2, 1975, stating that the shipping date had been advanced
on a day-for-day basis as a result of the GPO's delay in the
returning the "OK'd" proofs beyond that permitted by the
Specifications.  The Appellant was advised that the new delivery
date was September 11, 1975.  The Contracting Officer stated
further:

". . . The submission of proofs for this order was so late it
precluded the possibility of shipping as scheduled."

The Appellant maintains that its Operations Manager, Mr. James
Sievenpiper, telephoned the GPO on October 6, 1975, with regard
to this letter of the Contracting Officer.  According to
Appellant, a representative of the GPO (person unidentified)
informed Appellant that "September" was a typing error and should
have read "October."  (Reference:  Appellant's letter of December
19, 1975.)

7. Final delivery of the brochures was made on October 9, 1975.
As the advanced delivery date established by the Contracting
Officer was September 11, 1975, liquidated damages were deducted
from Appellant's invoice amounting to a reduction in the original
contract price of 17 percent or $4,896.

8. Appellant asked for review of this decision in a letter to the
Contracting Officer, dated December 19, 1975.  On December 31,
1975, the Contracting Officer issued his final decision
reaffirming the decision to assess liquidated damages.

This letter stated in part:

". . . Since your firm did not furnish proofs until August 5,
1975, the scheduled date for the return of proofs was August 26,
1975 (15 working days), making this order already one day late."

9. Appellant filed a timely appeal to this decision by letter
dated January 28, 1976.  This was supplemented by information
contained in a letter submitted to the Board, of June 4, 1976.

Discussion

The record clearly reveals that the Government was delinquent in
returning the "OK'd" proofs to Appellant.  However, for the
purposes of this appeal this was not the critical delay, because
the Appellant was granted a day-for-day extension for this
lateness.  The delay which created this dispute was on the part
of the Appellant and was in the very beginning of the contract
term when it failed to deliver the proofs to the Government "as
soon as possible."

A careful reading of the contract schedule shows that the
Appellant had a total of 30 working days in which to produce the
completed brochures, and during 15 of those 30 days the
Government was entitled to hold and review the proofs.  In order
to accommodate this schedule, the proofs had to be delivered to
the GPO far sooner than the 16 working days it took the
Appellant.  (See Finding No. 3.)

That this was a misreading of the contract and a mistake on the
part of the Appellant, was expressly acknowledged in its letter
of June 4, 1976, which states:

"1. Our operations manager erroneously interpreted paragraph 4
under proofs on the specifications as reading that we should
submit proofs within 15 working days following July 14, 1975.
See Norman Lawkowski's letter of 12/19/75."

There are two sections of this contract which pertain
specifically to delays and liquidated damages.  The first is
Section 17 of GPO Contract Terms No. 1.  The relevant portions
are:

"Article 17.  Delay in Deliveries.- Penalties and/or damages
shall not be applied against the contractor for delays in
delivery occasioned by unforeseeable causes beyond the control
and without the fault or negligence of the contractor, including,
but not restricted to, . . . acts of the Government, . . .:
Provided, That the contractor shall, within 10 calendar days from
the beginning of such delay, notify the contracting officer in
writing of the cause of the delay:  Provided further, That such
notice to the contracting officer shall contain the justification
for such delay."

The second section entitled "Liquidated Damages" appears in the
Special Terms and Conditions, GPO 2459D.  The pertinent language
reads as follows:

"In the event the order, copy ,and/or materials which are to be
furnished by the Government are not furnished as scheduled, the
shipping schedule will be extended automatically by the number of
working days the order, copy, and/or materials are withheld from
the contractor.  Further extension of adjustments of schedule may
be made if requested in writing by the contractor within 10
calendar days from the beginning of a delay in delivery,
notifying the Contracting Officer of the causes of the delay, and
approved by the Contracting Officer.

"In the event no adjustment of schedule has been requested, the
contractor will be considered to be delinquent if shipment has
not been made by the date established by the automatic extension;
however, he will be relieved of liquidated damages to the extent
of 1 day of grace for each working day the order, copy, and/or
materials are late, the period of grace for the relief of
liquidated damages in no event to exceed 3 days."  (Emphasis
added.)

Considering these provisions in terms of the instant case, the
issue is whether Appellant's telegram of August 28, 1975,
constituted a request for "further extension of adjustments of
schedule" beyond the automatic extension which resulted from the
Government's delay in returning "OK'd" proofs.  We find the
Appellant's telegram lacking in that it fails to notify the
Contracting Officer of the "causes" of the delay.

From the context of the above-quoted provisions pertaining to
liquidated damages, it is clear the term "causes" refers to some
additional factor within the control of the contractor, and not
known to the Contracting Officer.  For example, a contractor
might justify additional delay in delivery by claiming late
return of material from the GPO had upset its production schedule
requiring more time for it to set up the press run.  In this
case, however, the Appellant provided no justification for why it
would need more time than that provided by the contract's
automatic extension and, therefore, it has failed to comply with
the explicit terms of the contract.

The Board's own addition of the number of days the GPO delayed in
returning the "OK'd" proofs, to the original delivery date
(August 25), yielded a new ship date of September 11, 1975, just
as the Contracting Officer indicated in his letter of October 2,
1975.  On the other hand, there is no logical reason offered in
the record for the Contracting Officer (Presuming he was the
person the Appellant spoke with) to orally change this
calculation and make the delivery date one month later (October
1975), as the Appellant has alleged.  (See Finding No. 6.)  Our
analysis leads us to discount the Appellant's assertions with
regard to this alleged telephone conversation, and give greater
credence to the copy of the October 2, 1975, letter contained in
the appeal file as the more probative evidence of which date the
Contracting Officer established as the revised delivery date. 1

We have reviewed the Contracting Officer's assessment of
liquidated damages and find them to be in accordance with the
applicable provisions of the Special Terms and Conditions. 2

For the above reasons, the appeal is denied.

_______________

Footnotes:

1 Our analysis of this discrepancy in the record is made without
even reaching the effect of the provision in Article 2 of GPO
Contract Terms No. 1, which requires a written change to any of
the contract specifications.

2 The Board is not unmindful of a series of cases and Contract
Appeals Board decisions which hold that liquidated damages will
not be allowed where there are delays by both parties to a
contract which intertwine and which prevent the apportionment of
fault for the delay (e.g., Acme Process Equipment Company v.
United States, 171 Ct.  Cl. 324, at 346, 347 F.2d 509, 535
(1965), rev'd on other grounds, 385 U.S. 138 (1966); Appeal of
Poole & Kent Corporation - Washington, VACAB No. 1986, 75-1 BCA 
11,186, Appeal of David M. Cox, Inc., IBCA 1092-12-75, 76-2 BCA 
12,003; William Passalacqua Builders, Inc.,  GSBCA, 77-1 BCA 
12,406 at p. 60,093, motion to reconsider denied 77-2 BCA 
12,602  In this appeal, however, the delays were successive and
not concurrent and are clearly apportionable.  Moreover, the
contract specifically provides for a Government caused delay,
grants a compensating extension in the delivery date, and if this
is not enough time, expressly permits the contractor to request a
longer extension as long as it indicates the reasons in a written
request to the Contracting Officer.  As we have indicated in the
findings and discussion above, this contractor failed to do what
the contract required.