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

Appeal of Loose Leaf Devices Company
June 27, 1977

Vincent T. McCarthy, Chairman
Samuel Soopper, Member
Drew Spalding, Member
Panel 77-2

Findings of Fact

1. The Government Printing Office contracted with Loose Leaf
Devices Company, by its President, Mr. George F. Fowler, Jr.,
hereinafter referred to as appellant or contractor, of St. Louis,
Missouri, for the manufacturer of 5,000 binders for the U.S.
Attorneys' Manual, Government Purchase Order No. 81730, Jacket
No. 223-232.

2. The specifications were issued November 19, 1976, and included
the following provisions:

"In accepting this contract the contractor specifically agrees to
all the provisions of GPO Form 198, U.S. Government Printing
Office Contract Terms No. 1, approved July 1, 1943 (Rev. 7-15-70)
and GPO Form 2459D, Special Terms and Conditions (Rev. 11-1-73)
which are hereby made an integral part of this contract except
where in conflict with these specifications.  A copy of GPO Form
2459D will be furnished to the successful bidder.

"GPO TO FURNISH:  A sample binder for materials and general
constructions, plus one piece of camera copy, 8 x 9-1/4'', to be
reproduced same size.

"MATERIALS SPECIFICATIONS:

Supported vinyl   Black, leatherette grain, supported virgin
vinyl - 15.2-oz. vinyl, 4.1-oz. cotton backing; surface coating
11-oz. virgin vinyl (basis one lineal yard - 54" wide).

"SCHEDULE:  Copy will be furnished by December 13, 1976.  Ship
complete on or before January 11, 1977."

3. The contractor submitted a bid dated November 29, 1976, in the
net amount of $10,750.  The contracting officer approved the bid
on December 7, 1976.  The purchase order is dated December 9,
1976.  The contractor received notice of the award on December
15, 1976.

4. On December 16, 1976, the contractor, by its President, George
F. Fowler, Jr., placed an order with Gane Brothers and Lane,
Incorporated, a material supplier located in St. Louis, Missouri,
for the necessary amount of virgin vinyl required by the
contract.

5. On January 10, 1977, Mr. Fowler spoke with Mr. Paul Barlow,
Printing Specialist, Printing Procurement Department, Government
Printing Office and informed him of the impossibility of
completing the contract by the scheduled date, due to the fact
that the vinyl had not been received from the supplier.  Mr.
Barlow, having found insufficient excuse for the delay, mentioned
the liquidated damages provision of the contract.

6. The contractor sent a letter to Mr. Barlow dated January 18,
1977, the body of the letter being as follows:

"I am enclosing a letter from our material supplier for our
contract for 5,000 binders for the U.S. Attorneys' Manual,
Purchase Order No. 81730.

"Mr. Gann from Gane Brothers & Lane has explained the severe
weather conditions which have caused a delay in the production of
the material for production of these binders.  General Tire in
Toledo, Ohio, has had to close its plant on several occasions and
lose valuable production time due to power loss and weather
conditions which prevented employees from reporting for work.
This is certainly not our fault.  We would, therefore, like to
ask for an extension on this purchase order to February 11, 1977.
We feel certain we can complete in time with this new date.

"We will begin production as soon as the material is received in
our plant.  We have the other items necessary to produce these
binders, such as the metals and board.

"We will advise you as soon as the material is received in our
plant and will start production immediately.  Please let me hear
from you as soon as possible about a request for an extension on
this job.  Thank you very much."

7. The letter from the material supplier referred to in Mr.
Fowler's letter above, was from Ed Gann of Gane Brothers & Lane,
Incorporated.  The body of the letter, dated January 17, 1977,
stated:

"Your order for 1,000 yards of special Tolex Supported Vinyl was
scheduled to be shipped from General Tire & Rubber Co. in Toledo,
Ohio on January 14.  It has now been rescheduled for shipment on
January 21.  The main reason for the rescheduling is the severe
weather conditions in that area causing loss of production time.

"We will try to do whatever possible to make sure shipment does
leave on the 21st of January."

8. The weather in the midwestern part of the United States during
January 1977 was severe and resulted in substantial commercial
disruption.

9. On January 25, 1977, the contracting officer sent a
termination notice stating that, in accordance with Article 18 of
U.S. GPO Contract Terms No. 1, the contract was ''terminated for
default by reason of your failure to make delivery within the
time specified."

10. The contract was subsequently rebid and awarded to DVC
Industries, Bayshore, New York, on February 4, 1977, for $11,200.
Shipment was scheduled for March.  The contractor was notified of
the reprocurement in a letter dated February 4, 1977, from R. E.
Lee, Jr., Assistant Superintendent, Central Office Printing
Procurement Department of the Government Printing Office.

Opinion

The contractor appealed to this Board under the "disputes" clause
of the contract seeking relief from the contracting officer's
finding that it was in default due to failure to make delivery
within the specified time.  After careful consideration of the
contractor's arguments and the record as submitted by both
parties, we deny the appeal.

1. Excusable Delay

The appellant concedes that the contract was not performed in a
timely manner, but contends that all of the delay resulted from
factors not within his control and was thus excusable under the
contract terms.  If the delay was excusable, it would, of course,
be improper to default the contractor because of it.  The
applicable contract provisions are found in United States
Government Printing Office Contract Terms No. 1, which was an
integral part of the contract.  Article 18 provides that
termination for default is proper:

"If the contractor fails to make delivery of the supplies or to
perform the services within the time specified herein or any
extension thereof."

Article 18(c), which deals with excusable delay, provides in
pertinent part:

"(c) Except with respect to defaults of subcontractors the
contractor shall not be liable for any excess costs if the
failure to perform the contract arises out of causes beyond the
control and without the fault or negligence of the contractor.
Such causes may include, but are not restricted to . . . acts of
the Government in either its sovereign or contractual capacity .
. . 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.  If the failure to perform is
caused by the default of a subcontractor, and if such default
arises out of causes beyond the control of both the contractor
and subcontractor, and without the fault or negligence of either
of them, the contractor shall not be liable for any excess costs
for failure to perform, unless the supplies or services to be
furnished by the subcontractor were obtainable from other sources
in sufficient time to permit the contractor to meet the required
delivery schedule."

The appellant seeks to bring himself under the aegis of this
section by the claim that the delay in shipping was unforeseeable
and not contributed to by its negligence.  Rather, it contends,
it was caused by the delay of the Government in its late award of
the contract, by unusually severe weather conditions in the
Midwest during the time for performance, and due to delays of
supplier brought about by the same causes.

This Board accepts the standard promulgated by the Armed Services
Board of Contract Appeals for this type of case:

"It is well established that appellant must establish by a
preponderance of the evidence that it was excusably delayed by
causes beyond its control and without its fault or negligence.

Appellant must do more than make a bare assertion concerning the
causes for its delay.  A contractor must establish that its
performance was in fact delayed by the causes alleged, must show
that it took every reasonable precaution to avoid foreseeable
causes for delay and to minimize their effect, and must establish
a precise period of time that such causes actually delay
performance.  Ace Electronics Associates, Inc., ASBCA 13899, 69-2
BCA  7922 (1969) at 36845 (Citations omitted)

The record in this case clearly does not establish that appellant
has met this standard.  The delay here seems primarily to be due
to the fact that appellant was unable in a timely fashion to
procure material that was necessary to fulfill its obligations
under the contract.  It is widely held in the field of Federal
procurement law that the contractor has an obligation to
reasonably assure himself of the availability of necessary
supplies prior to making a contract commitment with the
Government.  Aargus Poly Bag, GSBCA 4314, 4315, 1976 BCA  11927
(1976) at 57182; Highway Products, Inc., ASBCA 14212, 69-2 BCA 
8064 (1969).  There is no showing by the appellant here that any
effort was made to ascertain the situation vis-a-vis the
necessary vinyl until the order was actually placed with his
supplier on December 16.  This was true despite the admission by
George Fowler, appellant's President, contained in his affidavit
dated March 8, 1977 (Appellant's Exhibit B):

"[t]hat the special requirement for a surface coating of 11-oz.
virgin vinyl is a requirement that, to the best of his knowledge
and belief concerning the bookbinding industry, would require a
special order to be placed with a factory which manufactures
vinyl coating products.  He knows of no company such as Loose
Leaf Devices which would have such a special coating material in
stock."

Certainly, considering the appellant's knowledge of potential
problems with the procurement of this particular material, it
cannot be heard to say that merely placing an order the day after
notification of the award of the contract shows "that it took
every reasonable precaution to avoid foreseeable causes for delay
and to minimize their effect." Ace Electronics Associates, Inc.,
supra.

The contention that acts of the Government and severe weather
conditions were the causes for the delay are likewise invalid
since these factors are not established as the proximate cause of
the delay.

The primary piece of evidence concerning delay caused by severe
weather, aside from bare assertions in the appellant's pleadings
and affidavits (Exhibits A and B), is the letter from Gane
Brothers to appellant dated January 17, 1977, reproduced above.
The letter states that the order was originally slated for
shipment on January 14, but has been rescheduled as a result of
the weather conditions to January 21.  Even if the original
shipment schedule referred to in the letter had been adhered to,
the shipment of the material would have occurred after January
11, 1977, the date the finished product was due to be shipped to
Washington.  Nor can the Government's alleged delay in awarding
the contract be considered determinative in causing the delay of
performance.  Since no time for acceptance of the contract by the
Government is specified in the written instrument, the award must
be made within a reasonable time.  National Movers Company, Inc.,
v. United States, 181 Ct. Cl. 419, 386 F.2d 999 (1967).  (We do
not understand the appellant to be contending that no contract
was formed.) We are not convinced that a period of approximately
28 days for completion of this contract was "unreasonable".
Again, we have no more than the bare assertion that time of award
unavoidably delayed the shipment beyond the scheduled date,
rather than the contractor's own negligence in failing to have
suppliers lined up in advance.  Moreover, we note the procedure
required by the contract in this situation:

"[T]he contractor shall, within 10 calendar days from the
beginning of such delay, notify the contracting officer in
writing of the cause of the delay." (Emphasis added.) U.S.
Government Printing Office Contract Terms No.. 1, Article 17.

It is undisputed that the contractor did not complain in writing
to the contracting officer of unavoidable delays until January
18, .1977, well after the 10-day period which would have been
triggered by the delayed award.  We are also  unimpressed by the
suggestion that the lack of a specified time in.which the award
should be made was somehow a "mistake" to be equitably corrected.
Even if this Board had the power to grant such relief, see
Astronetic Research, Inc., NASA 40, 1963 BCA  3794 (1963),
failure to specify a time for acceptance cannot be considered a
mistake requiring contract reformation, since the law will supply
the contract term, see National Movers Company, Inc. v. United
States, supra.

We therefore hold that the appellant has failed to meet its
burden of providing substantial evidence that the delay in the
contract performance was due to unforeseeable causes beyond its
control and without any contributory negligence on its part.
Aargus Poly Bag, supra; Acme Paving Company, Inc., AGBCA 253,
73-2 BCA  10092 (1973), 47401-02.  By failing to assure itself
in adequate time of the availability of necessary supplies, the
contractor "assumes the risk of future non-availability . . . ."
Aargus Poly Bag, supra, at 57182.  Therefore, its delay in
performance was not excusable.

2. Supplier Delay

Appellant additionally claims that the delay was the fault of his
subcontractor and therefore should be excused as being beyond his
control.  Assuming arguendo that Gane Brothers & Lane qualify as
a subcontractor under the contract terms, See U.S. Government
Printing Office Contract Terms No. 1, Article 3, there is no
showing that the failure to meet the shipment date in the
specifications was due to excusable delay of the suppliers as
opposed to the contractor's own negligence as discussed above.
If, on the other hand, it is claimed that the subcontractor's
negligence actually caused the delay, it will not benefit the
appellant.  Article 18(c) only excuses subcontractor's delay
which is caused by such factors as severe weather and acts of the
Government if there has been no negligence on the part of either
the contractor or subcontractor.  The Court of Claims has
construed the effect of a similar contract clause:

"Therefore, if the contractor defaults because of a supplier
default, it is required to show that the supplier was not
negligent in order to come within the termination for convenience
provision. . . .  Although this requirement can put a well-nigh
impossible burden on a contractor, the burden was not met in this
case."  Williamsburg Drapery Co., v. United States, 177 Ct. Cl.
776, 799, 369 F. 2d 729 (1966); George Mason Construction Co.,
Inc., GSBCA 3863, 73-2 BCA  10257 (1973).

Thus, a claim of subcontractor negligence is not a defense to the
termination for default.

3. The Contracting Officer's Alleged Capriciousness

The appellant takes exception to the contracting officer's
determination that the contract should have been terminated for
default as an arbitrary and capricious decision without the
support of substantial evidence.  Appellant's basis for this is
partially due to a misreading of the contract provisions.  He
perceives a duty on the part of the contracting officer to make a
finding that supplies were obtainable from other sources in
sufficient time to meet the required delivery schedule "pursuant
to Article 17." What Article 17 in fact says is that "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 . .
. and delays of a subcontractor due to such causes unless  the
contracting officer shall determine that the services, materials,
or supplies to be furnished under the subcontract were obtainable
from other sources in sufficient time to permit the contractor to
meet the required delivery schedule." (Emphasis added.) Thus,
such a determination is only necessary when the contracting
officer has found the delay to have resulted from excusable
causes.  Here, however, the delay was found to be unexcused.  Nor
are we willing to say, on the record we have before us, that the
contracting officer abused his discretion in defaulting the
appellant for the delay in the circumstances we have described.
(We note that the relevant provisions of Articles 17 and 18 are
substantially the same.)

4. Time of the Essence and Waiver

Appellant's last major point is that the Government was tardy in
issuing termination notice and that "[t]his delay on the part of
the contracting officer indicates a waiver of the delivery date
of January 11, 1977, since time was not of the essence as
indicated by the contracting officer's own delay." Appellant's
Statement of Points on Appeal at 3.  Appellant also contends that
alleged delay in the awarding of the contract to another bidder
supports this theory.

The short answer to this contention is that "[t]ime is of the
essence in any contract containing fixed dates for performance.''
DeVito v. United States, 188 Ct. Cl. 979, 991, 413 F. 2d 1147
(1969).  In order for a waiver to occur, the Government must
indicate that a late delivery is acceptable, and the contractor
must reasonably rely on this in continuing performance.  Artisan
Electronics Corp. v. United States, 205 Ct. Cl. 126, 132-33, 499
F.2d 606 (1974); DeVito v. United States, supra.  The record
before us shows that this was clearly not the case.  On January
10, when Mr. Barlow was informed of the delay by phone, he
responded that liquidated damages would be assessed.  This could
not be construed as an indication that the Government was no
longer concerned with maintaining the schedule of delivery.  The
contractor's letter confirming the delay was not sent until
January 18.  It requests an extension until February 11, 1977,
asserting that production will begin as soon as the necessary
materials are received from the supplier.  However, the letter
also states:  "We will advise you as soon as the material is
received in our plant and will start production immediately.
Please let me hear from you as soon as possible about our request
for an extension on this job."  This does not indicate that
appellant understood at that time that late delivery would be
acceptable.  The next communication between the parties was
apparently the notice of termination sent out by the GPO on
January 25, 1977.  There is no showing that anything occurred
which might have created such an understanding between January 18
and January 25.  Thus, we feel that appellant has not met his
burden of showing the Government waived the time of delivery
specified by the contract.  (The appellant raises no issue of
delegation of authority, and we are satisfied that Mr. Barlow's
actions were duly authorized by the contracting officer, Mr.
Goltz.  See Government's Exhibit 10.)

We have examined the other points made by the appellant and have
found them to be without merit.

Decision

In view of the foregoing, we hold that the termination for
default was proper under the circumstances.  The appeal is
denied.