U.S. Government Printing Office Contract Appeals Board Vincent T. McCarthy, Chairman Drew Spalding, Member Samuel Soopper, Member Appeal of Gulfstream Press, Inc. C.A. 78-9 June 22, 1978 This appeal is the second chapter of the contract appeal of Gulfstream Press, Inc., C.A. 77-6, decided February 16, 1978, involving the assessment of liquidated damages for delay on Jacket No. 222-367. The findings of fact in that decision are incorporated herein by reference. In the earlier chapter, we found that the liquidated damages clause contained in the contract was valid and enforceable, and that delay due to defective supplies and appellant's failure to ask for an extension when negotiating a change order on another jacket was not excusable. However, we also stated: "Appellant maintains that it was ordered by the contracting officer at the January 11, 1977, meeting to accelerate the IRS orders at the expense of this contract. The contracting officer does not specifically deny this, but insists that each jacket must be considered separately and that he therefore 'had no choice but to impose damages on jacket 222-367.' Contracting Officer's Narrative at 4. "We feel that this does not respond fully to appellant's contention. We are certainly not able to say that under no circumstances would a schedule change by the Government on one contract result in excusable delay on another." Contract Appeal of Gulfstream Press, Inc., C.A. 77-6 at 13 (citation omitted). Due to the fact that the events at the January 11, 1977, meeting were inadequately depicted in the record, we remanded to the contracting officer for additional findings on this issue (the appeal was in all other respects denied). Subsequently, on April 5, 1978, the contracting officer issued a new final decision on this matter. Gulfstream's timely appeal from that decision is now before us. Since neither party requested a hearing, we reach our decision solely on the written record submitted by both sides. For the reasons stated below, we deny the appeal. Findings of Fact The present dispute revolves around the meeting at the Government Printing Office held on January 11, 1977, which was attended by R. E. Goltz, the Contracting Officer, and Maynard G. Tedder for the GPO, and Richard Doyle and William Stahl for appellant. All concerned agree that most of the conversation centered around delays on IRS contracts not in contention here. The basis of the disagreement is summed up in Mr. Doyle's affidavit: "The main point of the conversation was on the production of IRS Jackets 218-204 and 218-366. The instructions were to proceed with the IRS orders with all priority. When it was mentioned that this might affect other Government orders, including Jacket 222-367, we were told that the IRS jackets should take precedence over any other orders." Mr. Stahl's affidavit corroborates Mr. Doyle's recollection of events. Mr. Goltz remembers his statements on this point differently. In his affidavit, he states: "The importance and critical need of the IRS Tax Program orders was emphasized and it was brought to their attention, that the late delivery of any of these orders could affect the IRS Tax Program by causing filing delays. One order was rejected because of paper and overtime authorized by the Government for another, was cause to point out the critical need of these IRS orders. "The order for Air Force, Jacket 222-367 was also discussed, but they were not told to hold or set aside that order for the IRS work." Mr. Tedder's affidavit unfortunately does not make any reference to this issue one way or the other. Appellant's point is that if its representatives were instructed to perform other contracts ahead of this one, it must be held blameless for the resulting delay in delivery. The argument is essentially one of constructive change, since no written order changing the schedules on any of the contracts involved was issued by the contracting officer. The contracting officer, on the other hand, contends that while he stressed the critical need for the lRS orders to be completed, he never stated that the orders under Jacket 222-367 should be held or set aside to that end. He maintains that it is the contractor's responsibility to determine how and when to produce various orders in order to comply with contract schedules. In cases of this type, the appellant has the burden of persuasion and must prove its claim by a preponderance of the evidence, e.g., Mann Construction Co., Inc., AGBCA No. 444, 76-1 BCA ¶ 11,710 (1976) at 55,829; EG & G, Inc., ASBCA No. 14051, 71-1 BCA ¶ 8867 (1971) at 41,219. On the record presented, appellant has not sustained its burden of proof. We find the Government's position essentially more credible than appellant's. The contract required that any change in terms be made by the contracting officer in writing. U.S. Government Printing Office Contract Terms No. 1, Article 2 (1970), incorporated by reference in the specifications for Jacket No. 222-367 at page 1 of 6. While we will assume arguendo that a constructive change would be permissible under the terms of this contract, it does not seem likely that the contracting officer, were he to order extensive schedule changes in three major contracts, would do so without a formal written order. Even without this reasoning, we can think of no basis on which appellant's version of events is more probable than the Government's. When the evidence presented gives only a choice between two relative possibilities, the party with the burden of proof fails to sustain it. See, Mann Construction Co., Inc., supra at 55,830; Conco Engineering Works, Inc., ASBCA Nos. 12997, 13655, 71-1 BCA ¶ 8823 (1971) (on motion for reconsideration) at 41,019. 1 Appellant, therefore, is unable to prevail. Decision The appeal is denied. _______________ 1 Since Mr. Tedder's affidavit is not at all on point, we disregard it. The mere fact that this results in appellant's witnesses outnumbering the Government's on the key issue is, of course, not determinative. See, Affolter Contracting Company and F.L. Flynn (A Joint Venture), ENG BCA No. 3397, 75-1 BCA ¶ 11263 (1975) at 53,700.