GPO BCA 3-84
June 6, 1985
Michael F. DiMario, Administrative Law Judge


   This appeal timely filed by Valley Printing Service ("VPS")
   pursuant to the "Disputes" clause of the contract is from the
   final decision of Michael T. Atkins, Contracting Officer,
   Seattle Regional Printing Procurement Office, ("SRPPO"), U.S.
   Government Printing Office ("GPO"), dated June 29, 1984,
   terminating the contract known as Purchase Order R-1376,
   Program 1046-S, Print Order 4000, Jacket 794-789, for default
   for "failure to reprint the 20,000 folders due to unacceptable
   printing." (Exhibit 3, page 2.)


   On March 15, 1984, Appellant, VPS, by Print Order No. 4000,
   was given an award by the SRPPO, GPO, Respondent, to produce
   some 20,000 copies of a certain brochure requisitioned from
   the SRPPO by the Fish and Wildlife Service, ("FWS"), U.S.
   Department of the Interior, Portland, Oregon (Exhibit 3, page
   4).  The award was in the estimated amount of $1,900 with
   shipping date of final product to two FWS locations by March
   30, 1984.  The print order was placed with appellant under the
   terms and conditions of
a certain requirements type contract between the appellant and
the GPO identified as Program 1046-S which had been previously
completed.  The print order required the finished product to be
produced in black ink with certain background areas in "process
blue" ink on "70# White Litho Coated Book" stock from camera copy
and negatives furnished by FWS; the original copy and negatives
to be returned to FWS upon completion.

   Program 1046-S incorporates by reference all the terms and
   conditions of "GPO Contract Terms No. 1," (GPO Pub. 310.2) and
   "Quality Assurance Through Attributes - Contract Terms," (GPO
   Pub.  310.1).  Among those terms and conditions are
   requirements for the contractor to furnish two samples of
   completed products for inspection.  Pursuant to such
   requirement, appellant furnished samples which upon
   examination by the FWS were rejected.  The reasons for the
   rejection are set forth in a letter of April 10, 1984, wherein
   reprinting at contractor expense is requested, as follows:

On Panel 4 of the inside of the leaflet all of the recreational
symbols are overdeveloped rendering this useless for proper
identification.  The map on the back of the leaflet is also
overexposed, the type frightfully overdeveloped and not legible.
The recreational symbols cannot be discerned as to what they
mean.  The boat ramp symbol in the large map should have a white
background instead of blue.  The blue ink coverage is poorly done
on Panels 1, 2, and 3.  (Exhibit 3, page 7.)

   The SRPPO then requested additional random samples for further
   examination.  These were apparently mailed to the SRPPO on or
   about May 2, 1984.  At about the same period of time the SRPPO
   apparently returned the rejected negatives to the appellant
   for its consideration.  The record is unclear on the point.
   However, the appellant by letter of Wes Rogers to Kirk
   Clapper, SRPPO, dated May 10, 1984, states:  "Using the negs
   you sent back, we made a dylux proof.  Using our normal
   exposure times this is the result.  If we had overexposed the
   plate or the dylux, the definition of the other characters
   would have been distorted." (Exhibit 3, page 8.)

   Despite this explanation, the SRPPO upon its examination of
   some 32 additional randomly selected samples of the final
   product it received, concurred with the FWS rejection, finding
   the same defects previously noted.  Accordingly, the
   appellant, by letter of the SRPPO Contracting Officer dated
   May 17, 1984, was advised of the results of the examination of
   samples, the rejection of the product, and the requirement
   that the product be reprinted.  The Contracting Officer noted
   the defects as "artwork printed indiscernable [sic].  Type
   plugged." (Exhibit 3, page 6.)

   The letter stated that the contractor was to "deliver the
   corrected copies to the original address by May 31, 1984, at
   no additional cost to the government," and to inform the SRPPO
   of "the disposition of the rejected copies."

   On June 12, 1984, the Contracting Officer, in consequence of
   the reprinted product not having been received, wrote to the
   appellant notifying it that "since you have failed to perform
   Purchase Order R-1376, Program 1046-S, Print Order 4000,
   Jacket 794-789, within the time required by the terms thereof,
   the Government Printing Office is considering
terminating said contract pursuant to the article entitled,
'Default,' United States Government Printing Office Contract
Terms No. 1." (Exhibit 3, page 5.)

   The appellant was given 6 days from receipt of the notice "to
   present, in writing, any extenuating facts bearing on the
   question." The notice also advised appellant that "your
   failure to respond within this time may be considered as an
   admission of fault or negligence."

   On June 22, 1984, the Contracting Officer wrote to the GPO
   Contract Review Board (CRB), outlining the facts of the case
   known to it through that date, including the fact of the
   appellant's failure to respond to the notice and of
   unsuccessful attempts to contact appellant by telephone.  The
   Contracting Officer requested CRB concurrence to terminate
   Jacket 794-789 for default (Exhibit 3, page 3).  Following the
   CRB concurrence, the Contracting Officer by letter dated June
   29, 1984, notified the appellant that the contract "is hereby
   terminated for default because of your failure to reprint the
   20,000 folders due to unacceptable printing." (Exhibit 3, page

   The notice "also advised that the same or similar items
   terminated may be reprocured against your firm's account, on
   such terms and in such manner as the contracting officer deems
   appropriate.  In that event, your firm shall be held liable to
   the Government."1/

   The notice advised the appellant of his right to "appeal
   within 90 days from receipt of this decision."

   By letter dated July 10, 1984, appellant filed Notice of
   Appeal and requested copies of the Contracting Officer's
   "written decision of default [and] any information you have
   which outlines the appeal process." (Exhibit 1.)  On July 18,
   1984, the Contracting Officer telephonically informed
   appellant of the appeal procedure.  By letter of September 12,
   1984, the appellant perfected its appeal stating its reasons
   therefore substantially as follows:

     Until March 31, 1984, we were the holders of contract #1046-
     S . . ..
     During the time the contract was in effect we printed a
     number of brochures . . . .  Occasionally they submitted
     maps produced on a 'fogged' or 'frosted' mylar base that we
     were to shoot and strip into position on their forms.
     Because the maps were on this 'fogged' or 'frosted' finish
     mylar, the type had a tendency to flair and become diffused.
     The degree of diffusion seemed to coincide with the boldness
     of the original type and how much the original was enlarged
     or reduced.  In response to this problem I several times
     suggested to the order person at Fish & Wildlife that he
     request a dylux proof of those jobs and then decide for
     himself what was or was not acceptable.  The order person
     did not seem to understand what a dylux proof was, despite
     the fact that he ordered all the printing and that there was
     a provision for dylux proofs in the contract.
     Because of his position, I notified GPO-Seattle on several
     occasions of the potential problem.  Dave Goldberg of GPO
     understood the obvious need for proofs on some of the jobs
     and said that he would strongly recommend dylux proofs to
     the Fish & Wildlife order person on any orders of this
     . . . [T]he job in question . . . we proceeded to produce .
     . . according to their specifications. . . . [T]hey did not
     request a dylux and did not request extra camera work . . .
     . . . GPO . . . said . . . we shot a poor negative . . . and
     had to reprint . . . . Our position was since the map was on
     the frosted finish mylar . . . taped to a semi[-]
     transparent base sheet it was obvious why they had a problem
     with plugged and ['halowed'] type. . . . [T]wo independent
     litho prep houses . . . [we] asked . . . to try and shoot a
     negative that correctly reproduced the map without
     distorting the other portions . . . . Their negatives show
     that it was not possible to shoot a better negative than we
     did.  . . . .
     . . . [W]e . . . acted properly . . . .
     1. We notified GPO and Fish and Wildlife in advance of the
     potential problem.

2. We suggested dylux proofs to allow the ordering agency to
inspect prior to printing.  GPO confirmed that this would be
3. . . . [W]e should not be held responsible for poor camera
ready copy.
4. . . . [W]e strictly followed their production specifications.
(Exhibit 2.)

   The letter did not contain a request for a hearing and no such
   election was made within the time prescribed by Board Rule.
   Accordingly, the appeal is for decision on the written record
   pursuant to Rule 8.

   The camera ready copy, photographs, artwork, and copies of the
   rejected final product were furnished to the Board by the
   SRPPO together with copies of the reprocured final product
   (Exhibit 6).

   The appeal comes to the Board in this form.


   The only question presented by this appeal is whether or not
   the Government bears any responsibility with respect to the
   appellant's failure to produce a product which meets the
   requirements of the specifications inasmuch as the appellant
   claims that:  (1) The respondent had been put on notice with
   respect to certain prior print orders from the FWS under this
   program that the copy furnished the appellant was of poor
   quality and therefore susceptible to poor reproduction; and
   (2) the respondent under provisions of the program contract
   could have required the appellant to furnish dylux proofs of
   the job before giving an "O.K. to print," which such
   procedural production step the appellant itself had
   recommended to both the FWS and the respondent on several

   At the outset of its review, the Board visually examined the
   final product produced by the appellant and the final product
   produced under the reprocurement against the "copy" furnished.
   From this visual examination it was clear that the reprocured
   product duplicated the detail in graphics, artwork, and
   photography of the original "copy", whereas the final product
   furnished by appellant was deficient in much of the necessary
   detail, especially with respect to the inking of explanatory
   symbols.  (The product is meant to be a visitors' guide
   pamphlet to certain recreational facilities available to the
   public, such as horseback riding and boating, as well as
   handicap features of the park.)

   Because of the overwhelmingly clear visual disparity between
   the quality of the products, the Board believed it necessary
   to obtain statements from Mr. Daniel Hayes from the FWS, and
   Mr. David S. Goldberg, of the SRPPO, as to the contentions
   made by appellant with respect to the quality of the copy
   furnished both appellant and the reprocurement contractor and
   the purported prior notice of the need for dylux proofs.
   Their comments in pertinent part follow:

Letter dated February 13, 1985, from Daniel Hayes, Regional
Publication Coordinator, United States Department of the
Interior, Fish and Wildlife Service, Portland, Oregon:

Valley Printing was most unacceptable as a vendor to this
program.  The quality of our leaflets and brochures reduced
greatly under this printing contract.  We were unable to acquire
satisfactory printing and unresponsiveness from Mr. Wes Rodgers
[sic] as to why it was printed improperly.
     Mr. Wes Rodgers [sic], the proprietor of Valley Printing,
     discussed with me on several occasions the need for dylux on
     printed matter before the job was completed.  We used this
     method on many of our projects because of the imperfection
     on their screens and half tones.  On several occasions I had
     a press inspection to be assured of getting what we wanted.
     Our mapping section discussed new techniques and modified
     their process to arrive at a working solution for quality
     printing from this establishment but to no avail.  There
     were times when we had rush jobs and did not have time to
     get a dylux produced before the final product.  These
     projects put us in a bind because they had to be done over
     (see enclosed memo as example).

(Exhibit 10, page 3.)

Memorandum (Affidavit) dated February 19, 1985, from Mr. David S.
Goldberg, Assistant Manager, Seattle RPPO:

     In regard to the dispute by Valley Printing Service on
     Jacket 794-789, I have no records of conversations, nor
     documentation of time and dates of such conversations due to
     the fact that such queries were not in reference to any one
     particular order.

Prior to the award of Jacket 794-789, I have had two or three
conversations with Wes Rogers of Valley Printing who called me to
complain of poor quality originals that were submitted with
orders on Program 1046-S.  I remember telling him that GPO can
not expect any reproduction that will enhance a poor quality,
only an exact reproduction.  We discussed supplying proofs to the
customer.  However, Mr. Rogers stated that Fish and Wildlife
Service did not want proofs as they could not extend their
     I then called Dan Hayes at the Fish and Wildlife Service.
     We talked about the quality of the copy and proofs.  Dan
     Hayes stated to me that the quality of the copy was good and
     he did not need nor desire proofs.  He stated that he did
     not approve of the quality of printing from Valley Printing
     Service and he wanted to submit printing orders for 1046-S
     directly to GPO.  These orders would be intended for
     procurement off the contract.
     I remember one order in particular that Mr. Hayes hand
     carried to Seattle for procurement.  As we opened the
     package to inspect the copy, I pulled the base art out and
     noticed tape placed over type and overlays falling off of
     the base art.  I mentioned to him that this may be part of
     his quality problems but received no comment in return.  Mr.
     Hayes repaired the art before we left.  I do not remember
     which order it was as he has hand carried numerous orders to
     this office, but I was informed by Michael Atkins of this
     office that the camera copy, artwork and photographs that
     were furnished for the rejected product and the re[-]
     procurement are one and the same.

(Exhibit 10, page 2.)

   Mr. Atkins,.by Affidavit of April 4, 1985, corroborated the
   fact that "The camera ready copy that Valley Printing returned
   to the Government is the same material that was furnished to
   the contractor who produced the reprocurement." (Exhibit 12.)

   While it is clear that much of what appellant contends has
   been corroborated by Mr. Goldberg with respect to copy for
   prior print orders, there is no showing that the copy was
   defective with respect to the print order being scrutinized by
   this appeal.  Each print order in and of itself is a contract
   having its own terms and conditions, in addition to the
   contractual terms of the Program.  Additionally, the copy for
   each print order must necessarily be examined by the
   contractor for each print order it receives, since as a
   general rule, the copy will differ by content from print order
   to print order depending on the subject matter of the brochure
   or pamphlet being produced.  Accordingly, this Board believes
   that notice of defective copy on prior print orders did not
   serve to put respondent on notice of any copy defect with
   respect to the print order being considered by this appeal.
   Moreover, based upon the fact that the same copy was furnished
   both contractors and the second contractor produced a product
   which clearly met specifications without the necessity of
   having dylux proofs, it is the ruling of this Board that the
   termination of appellant's contract for default was fully
   justified and that the reprocurement costs have been properly
   charged back to the appellant under terms of the contract and
   pursuant to Federal procurement law.


1/ GPO Contract Terms No. 1 (GPO Pub. 310.2) establishes four
alternatives available to the GPO upon product rejection:  (1)
Reprint at the contractor's expense; (2) Accept product at a
discounted price pursuant to discount formula set forth in
Quality Assurance Through Attributes - Contract Terms (GPO Pub.
310.1); (3) Reprocure product from another vendor with assessment
of excess reprocurement costs to the defaulting vendor; and (4)
Rejection without reprint, discounted price acceptance, or