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

Appeal of the Edward Hine Company
August 1, 1977

Vincent T. McCarthy, Chairman
Jay E. Eisen, Member
Drew Spalding, Member
Panel 77-4

This is an appeal from a Contracting Officer's decision assessing liquidated damages in the amount
of $1680.14 based on lateness of seven days in the shipment of the ordered pamphlets.  The
Appellant was afforded an opportunity by letter dated March 23, 1977, to offer additional evidence
in support of his appeal.  He failed to submit any evidence to the date hereof, and consequently
the appeal is being decided on the existing record.

Facts

Appellant, Edward Hine Company, 201 Morton Street, Peoria, Illinois, was awarded a contract (Jacket
750-350) by the Chicago Regional Printing Procurement Office, Government Printing Office for
production of a pamphlet titled, "U.S. Army Community Aide Handbook" published by the Department of
the Army.  The quantity consisting of 269,000 pamphlets, 24 pages each, were to be delivered on or
before December 17, 1976.  The Government Printing Office, pursuant to the contract, agreed to
furnish camera copy by November 30, 1976.  The Government was late in delivering the copy and it
was not furnished to the contractor until December 13, 1976.  The delivery date was extended for
each day the copy was late in arriving at Appellant's plant.  The revised schedule required the
contractor to ship the material by January 3, 1977.

The appellant was late in delivering the shipment which was made on January 17, 1977.  The
contractor was granted three days grace, as provided in the contract.  The Contractor did not
request an adjustment of schedule and therefore was required to meet the adjusted shipping date.

The contract clause governing the assessment and payment of liquidated damages is found in GPO Form
2459D, "Special Terms and Conditions" which is an integral part of the specifications.  It provides
in part the following:

"Liquidated Damages: Should the contractor default on shipping schedules stated in the
specifications, the contractor will be assessed liquidated damages against that part or parts of an
order which have not been shipped to the specified destination on the specified date. . . .

. . .

"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.  (Emphasis added.)

"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.

"In the event an adjustment of schedule has been requested by the contractor and is approved by the
Government Printing Office and ordering agency, the contractor will be required to meet the
adjusted shipping date and will be considered to be delinquent if he fails to do so.  In such
instances no relief from liquidated damages will be allowed.

"The term 'working days' as used herein is defined as Monday through Friday of each week, exclusive
of the days on which the following are observed: New Year's Day, Washington's Birthday, Memorial
Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving, and Christmas."

The appellant's position is that the delay in delivery was caused by additional holidays granted
their employees during the Christmas and New Year's period.  Their employees are entitled to two
more year-end holidays as provided in their collective bargaining agreement with a labor
organization.  In addition, some of their employees take extra time off during the Christmas
season.  The Contractor was shorthanded and this resulted in the late delivery of the material.

Opinion

The Appellant Contractor did not deliver the pamphlets to the U.S. Army on the date as extended,
January 3, 1977, nor did it request a further extension of the schedule within 10 calendar days
from the beginning of a delay in delivery by notifying the Contracting Officer of the causes of the
delay.  Liquidated damages were assessed as provided in the contract for the late delivery and the
computation of the amount due was properly made in accordance with the contract formula.  The
Appellant challenges neither the amount assessed nor the method of computation.  It merely asserts
that a combination of the Christmas - New Year's holidays plus two additional holidays and some
employees taking extra time off, affected its timely delivery of the printed material.  These are
not excusable causes for Appellant's delay.

The Contractor did not provide any evidence that lateness in delivery for which the excuses were
offered were the result of conditions beyond its control or occurred without its fault or
negligence.  A contractor who seeks to be relieved of the assessment of liquidated damages must
demonstrate that it falls within the relief granting provisions of the contract.  Article 17, GPO
Contract Terms No. 1 provides in part:

"Penalties . . . 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 . . . ."

The record before the Board is lacking in such proof.  The Contractor's assertion in its appeal
letter does not demonstrate that it falls within the relief-granting provisions of the contract.
Col-Mark, Inc., ASBCA, 68 BCA  7296; Sellars Oil Burner Service, Inc., GSBCA, 1964 BCA  4244;
Stelma, Inc.,  ASBCA, 69-1 BCA  7752.

Accordingly, the appeal is denied.