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.