U.S. Government Printing Office
Contract Appeals Board

Vincent T. McCarthy, Chairman
Drew Spalding, Member
Thomas Magnetti, Member
Panel 78-3

Appeal of Kaufman DeDell Printing Inc.
November 6, 1979

Preliminary Statement

This is a timely appeal entered by the appellant, Kaufman DeDell
Printing, Inc., 812 North State Street, P.O. Box 186, Syracuse,
NY 13208, after a decision of the Contracting Officer terminating
for default the Print Order 3166, of Program 472-M.  The dispute
centers around non-delivery of the requisitioned items.  The
Government maintains that the contractor had not delivered by the
specified date and the contractor contends that the delays which
it encountered were beyond its control.

The decision which follows is based upon the written submissions
of the Contracting Officer and the appellant.  No supplement to
the record was permitted after June 20, 1978, and a request for
hearing was deemed to have been waived at that time.

Findings of Fact

On October 21, 1977, pursuant to the usual contracting
procedures, the appellant's offer to supply the requirements of
GSA's Print Order 3166 was accepted by the GPO.  This print order
called for the production of 450,020 copies of an 8" x 10 1/2"
form on white 25 percent rag bond paper with a specified shipping
date of November 18, 1977 (See Exhibits 1 and 2 of the Appeal
File - hereafter AF).  The print order and other necessary
materials to complete the printing operation were mailed to the
appellant on October 21, 1977.  On this same date the contractor
accepted the offer with the specified shipment date of November
18, 1977.

After the shipping date had passed, the GPO experienced
difficulty in determining why delivery had not been made. See
Exhibit 4 of the AF, consisting of a number of a handwritten
notations prepared by subordinates of the Contracting Officer.
These notations represent a series of attempts to contact Gary J.
DeDell, Vice President of the appellant company in order to
determine the progress of Print Order 3166.  The first attempts
were made on November 23, 1977.  Messages were left and no
response was received.  Another effort to contact Mr. DeDell was
made on November 28, 1977, again Mr. DeDell did not return the
call.  As a result of these failures to get any information from
Mr. DeDell and because the material had not yet been received by
the ordering agency (GSA), a Show Cause Notice was telegraphed to
the appellant on December 1, 1977.  In this notice the
Contracting Officer indicated that because of the appellant's
failure to perform the requirements of Print Order 3166 of
Program 472-M the GPO was considering terminating the contract in
accordance with Article 18, United States Government Printing
Office Contract Terms No. 1.  The appellant was granted 10 days
in which to present in writing any facts bearing on the lateness
of delivery.

In response to the Show Cause Notice, a letter dated December 15,
1977 was sent to the Contracting Officer, Mr. Roman Goltz by Mr.
DeDell in which he acknowledged receipt of the telegram as of
December 5, 1977.  This letter, which was received in the GPO on
December 27, 1977, contended that shipment of Print Order 3166
was held up because no Government bills of lading were received.
It also states:

"On Print Order 3166, we received the print order some 3 weeks
after it was typed up.  With less than 3 weeks to print the job
we experienced difficulty in getting the 4,500 lbs. of bond paper
required.  We were told that a making order could not be ready
from the mill until Christmas time.  We so advised GPO in a
letter dated the 2nd of November. 1  This letter was sent to the
Contracting Officer, R.S. Schlauch.  We never received an answer
to this letter date (We asked for an extension or a
cancellation.) Several weeks later GPO informed us that Mr.
Schlauch was not the contracting officer; however, the letter was
still not answered.  We expect arrival of the paper within 10
days, as we have presumed to have ordered it." (AF, Exhibit 7.)

A response to this letter was not provided by the Contracting
Officer because the procedure to terminate Print Order 3166 for
default had begun.  On January 3, 1978, the Contracting Officer
sent a letter to the appellant in which he indicated because of
the appellant's failure to produce the print orders in a timely
fashion on this particular program contract, the GPO would invoke
the "Exception" clause of the contract 2 until "you have
established an adequate and proven production control system to
meet delivery schedules." (AF, Exhibit 9.) The GPO did not,
however, terminate the contract at this time.

Exhibit 4 indicates that the bills of lading were received by the
appellant company on December 15, 1977.  On January 6, 1978,
representatives of the GPO called Mr. DeDell to inquire whether
he had the bills of lading and the shipping instructions for
Print Order 3166.  Mr. DeDell responded that he did have the
instructions and the bills of lading.  The appellant was then
requested to ship the order and send copies of the bills of
lading to the GPO by Wednesday, January 11, 1978.  At this time,
the GPO suspended activity on the Show Cause Notice and the
default action which was initiated on December 1, 1977.  However,
an additional Show Cause Notice was telegraphed to the appellant
on January 9, 1978, in which the Contracting Office requested the
appellant to:

"Present documentation of shipment and any other facts bearing on
the question to the Contracting Officer, Mr. R. E. Goltz, within
five (5) days after receipt of this notice.  Your failure to
present documentation of shipment within this time may be
considered as an admission that none exist [sic]." (AF, Exhibit
10.)

Following the transmission of this letter, a number of additional
attempts were made by GPO employees to ascertain from appellant
the exact status of Print Order 3166.  The chronology of
telephone calls as evidenced by Exhibit 4 indicates that on both
January 13 and January 17, several attempts were made to speak
directly with Mr. DeDell.  On each occasion he was either not
available and did not subsequently return the calls.

On January 18, 1978, action was again initiated within the GPO to
terminate Print Order 3166 for default.  Because of appellant's
failure to complete delivery, the Contract Review Board approved
this action and the termination was effected by a telegram to the
appellant dated January 18, 1978.  The action was taken in
accordance with Article 18 of the U.S. GPO Contract Terms No. 1,
which was specifically incorporated as part of the contract in
paragraph 1.2 (AF, Exhibit 1).  The next day, January 19, 1978,
the Contracting Officer indicated by letter that the action to
invoke the "Exception" clause was taken because of failure to
deliver and that the inability to obtain adequate material as had
been described in Mr. DeDell's letters (Exhibits 6 and 7, dated
November 2,1977 and December 15, 1977) was not an excusable
reason for any delay under the contract. (See Exhibit 15 of the
AF)

In a letter dated January 27, 1978, the Contracting Officer
further justified the government's actions.  (See Exhibit 18 of
AF.)  Prior to taking.the action of termination for default on
January 18, 1978, the GPO was telephonically informed by GSA that
the items to be produced under Print Order 3166 had not arrived
at their warehouse.

Discussion

It is the decision of this Appeals Board that the contract (Print
Order 3166) was properly terminated in accordance with the
procedures set forth in the contract.  Therefore, the
contractor's appeal from the agency's termination is denied.

The appellant's position is that delay and subsequent
nonperformance should be excused under the contract because the
GPO was notified in November of 1977 by letter (Exhibit 6) of its
inability to obtain the proper material. 3  Both Articles 17 and
18 of the GPO Contract Terms No. 1, incorporated by reference
into the Multiple Award Term Contract used in this contract (see
Sec. 1.2 of Exhibit 1), envision excusable delay and
nonperformance on the part of prime contractor or subcontractors
if such actions are occasioned by unforeseeable causes beyond the
control and without the fault or negligence of the contractor or
subcontractor.  It is also required that the Contracting Officer
be notified within 10 days from the beginning of such delay. 4

This relief is provided to a contractor when delivery or
performance becomes either impossible or commercially
impracticable. 5  In the instant case, it is unclear from the
documents presented by the appellant exactly which defense the
appellant is using to justify its claim of excusable delay.  This
is because there has been no sufficient explanation as to the
nature or existence of any unforeseen circumstances.  If the
contractor could prove that his delay was justified, his delay in
performance might be excused.  Transatlantic Financing
Corporation v. United States, 363 F.2d 312, 315 (C.A.D.C. 1966).
In either an impossibility of performance claim or a commercial
impracticability claim, the burden of proof is clearly on the
contractor.  This is because only the contractor is in the
position to know such facts as would show that its performance
was made impossible by supervening unforeseen circumstances or to
know of conditions precedent to the contractor's duty to perform
when such conditions had not occurred and were peculiarly within
the knowledge of the contractor.  Corbin on Contracts,  749 and
751, Vol. 3A, pgs. 467 and 475 (1960 Edition).  In Ocean Air
Tradeways, Inc. v. Arkay Realty Corp., 480 F.2d 1112 (9th Cir.,
1973), the court, in its discussion of impossibility of
performance, said at 1117 that:  "The burden of proving such a
defense was on Ocean Air (the party alleging that it could not
perform the contract)." In the area of Government contracts it
was held in the decision Federal Contractors, Inc.,  ASBCA No.
14336, 71-1 BCA,  18724 at 40,516 that:

".. . . the appellant [the defaulted contractor] has the burden
of proving that its default arose out of causes beyond its
control and without its fault or negligence."

The only evidence in the way of excuse that has been presented to
this Board is the letter (Exhibit 6) allegedly sent to the GPO
dated November 7, 1977.  In this letter, appellant merely states
that it was experiencing difficulty in obtaining the proper paper
for Print Order 3166 and cannot get such paper until Christmas
1977.  We cannot discern from this letter whether the contractor
unsuccessfully attempted to obtain paper from any other sources
or whether only his original supplier could not produce the
required material.  The letter alone is insufficient proof to
support the contractor's claim that his delay was excusable.  In
Empire State Tree Service, VACAB No. 949, 71-1 BCA  8716, pg.
40,498, the Board disallowed the contractor's contention that
performance should be excused because unusually severe weather
prevented completion of the contract.  In finding that the record
did not establish that the weather conditions were other than
those normally expected when the contract was made, the Board
stated in that case:

". . . mere statements in claim letters, unsupported by
corroborative evidence of probative value, are not sufficient
proof of essential facts which are in dispute." (Pg. 40,500.)

This situation is analogous to the case at bar.  If the appellant
had proven it was impossible to obtain the paper within the
specified time limits, then the delay might be judged excusable.
However, the letter contains only self-serving and uncorroborated
assertions.  This falls short of sustaining the burden of proof
imposed upon it by law.  See also, Federal Contractors, Inc.,
supra,  at pg. 40,516, and Margold Electric Company, Inc., ASBCA
No. 15984, 72-2 BCA  19,646 at 45,041.

As a result of appellant's failure to sustain its burden of
proof, the claim is hereby denied in its entirety.

_______________

1  Exhibit 6 (AF) is a letter dated November 2, 1977, from Gary
J. DeDell, Vice President of the appellant company to Mr. R. S.
Schlauch.  According to the appellant's appeal letter dated
January 20, 1978, Mr. Schlauch was the addressee because he had
signed the print order.  However, the Board notes that the copy
of the print order included with the appeal letter does not have
Mr. Schlauch's signature on it.  Despite this Board's difficulty
in understanding why Mr. Schlauch was the addressee, we quote the
letter in full:

'We are having difficulty getting 25% Rag Bond for print order
3166 under Program 472.  The mill informs us that it would be
near Christmas before same is ready for us.  Can you tell us
what your wishes are:  to give us an extension or to cancel same?

"We received said P.O. on the 24th of October, and have been
trying to get the.Bond since then.  We cannot find 11" rolls
available before the date.

"Please advise.  Thank you."  (AF, Exhibit 6.)

The narrative supplied by the Contracting Officer indicates that
this letter was not received at the GPO until December 27, 1977.
It was enclosed with a letter directed to Mr. Roman Goltz,
Contracting Officer, dated December 15, 1977.

2  The Exception Clause (See Exhibit 1,  1.17-1) is designed to
permit the GPO to withhold further offers from any contractor who
has not complied with the shipping or delivery schedule in a
contract until the contractor is judged by the Government to have
established adequate production controls and inspection
procedures to fulfill any contractual requirement.

3  The contractor also claims that delay in delivery was caused
by the receipt of Government Bills of Lading one month after the
original shipping date.  However, Section 2.16(c) of the Multiple
Award Term Contract (Exhibit 1 of AF) does not relieve a
contractor of any responsibility in meeting scheduled shipping
dates because of any delay in the Government furnishing such
information.

4  Even if this Board were to hold that the appellant's letter
(Exhibit 6) was a valid notification of the delay the appellant
was experiencing, it would not fulfill the other requirements of
Article 17 of Contract Terms No. 1.  Article 17 provides that
such notice should contain justification for any delay occasioned
by unforeseen causes beyond the control and without the fault or
negligence of the contractor.  The justification present in
appellant's letter is not sufficient as it serves as a mere
statement of fact without any accompanying justification.

5  The distinction between these two theories is explained in
Transatlantic Financing Corporation v. United States, 363 F.2d
312 (C.A.D.C. 1966).