United States Government Printing Office
Contract Appeals Board

Appeal of Bay Ridge Press
Decision dated January 12, 1983

Panel 4-82
Thomas O. Magnetti

James A. Hickey

Morris J. Mervis

Preliminary Statement

   This is a decision on an appeal filed by Bay Ridge Press, Inc.
   (hereinafter referred to as the contractor).  The contract at
   issue (Program 1272-S) required the contractor to print and
   bind appeal briefs as needed by the U.S. Department of
   Justice.  Because of the requirements of Title 44 of the U.S.
   Code, the contract was between the U.S.  Government Printing
   Office (GPO) and the contractor.  The GPO Contracting Officer
   terminated the contract for default because of the
   contractor's alleged inability to meet the delivery dates,
   alleged poor performance and its alleged refusal to accept
   work under the contract.  The contractor disputes this final
   decision and appeals the action in accordance with Article 2-3
   (the Disputes clause) of GPO Contract Terms, No. 1.  Exhibit
   2, Appeal File.

   The jurisdiction of the GPO Contract Appeals Board over this
   appeal is established pursuant to GPO Instruction 110.10B,
   entitled "Board of Contract Appeals Rules of Practice and
   Procedure" and to Contract Terms No. 1, supra.  This decision
   of the Board is based solely on the record which consists of
   the twenty-two exhibits within the Appeal File.

Statement of Facts

   On August 20, 1981, in accordance with standard GPO award
   procedures, Purchase Order C-5136 covering Program 1272-S was
   awarded to the contractor.  Exhibit 4.  Prior to the award,
   because of the contractor's perceived lack of the necessary
   manpower and equipment, agency officials were not convinced
   that this contractor could perform the contract.  Exhibit 12.
   To allay these fears, the contractor submitted a proposal
   indicating the steps he would take to ensure timely and
   satisfactory performance if awarded the contract.  Exhibit 3.

   Under the contract, the contractor was to print, bind and
   deliver legal briefs, records and other legal material as
   required by the U.S.  Department of Justice.  Exhibit 1.  The
   term of the contract ran from September 1, 1981 to August 31,
   1982.  Exhibit 4.  According to the specifications, the
   production and delivery of each set of appeal briefs were to
   strictly adhere to the schedule established in the contract.
   Exhibit 1, p.6.  Because this was a "requirements" type
   contract, the contractor contracted to produce all the needs
   of the Government as covered by the specifications. Id, p.8.

   On September 24, 1981, John Martin of the U.S. Attorney's
   Office telephoned the GPO N.Y. RPPO, informing the GPO that he
   was dissatisfied with the services provided by the contractor.
   Exhibit 12.  By letter dated September 30, 1981, the U.S.
   Attorney's Office described in detail its complaints.  Exhibit
   7.  According to the ordering agency, the manuscript of the
   brief to be submitted in the case United States v.  Ellis  was
   delivered to the contractor on September 16, 1981. The
   contractor was supposed to deliver the page proofs for the
   brief by 5:00 p.m. on September 18, 1981.  They were not
   delivered until 7:45 that evening and there were errors in the
   printing and proofreading.  The page proofs were corrected and
   were delivered back to the contractor on the next day (Sept.
   19). The contractor was to deliver the finished product by
   close of business on September 21, 1981 but did so on the
   following day (Sept. 22).  After the document was filed with
   the U.S. Court of Appeals, it was discovered that not only
   were there numerous printing errors, but that four pages of
   text were missing (pp. 3-4, 17-18).  Id., Exhibit 18.

   According to the Government, the ordering agency experienced
   even greater difficulty obtaining proper performance on a
   brief that was submitted in the case United States v. Desmond
   Mackin.  Exhibits 7, 12.  This brief was due to be filed on
   September 18, 1981, and the manuscript copy was delivered to
   the contractor between September 16th and the 18th.  Although
   the contractor assured the government that the page proofs
   would be delivered that day (Sept. 18), they were not
   delivered until 1:15 a.m. the next day (Sept. 19).  Corrected
   copies of the proof were given to the contractor on September
   21, 1981 and the contractor was informed that the brief had to
   be filed that day.  The contractor apparently promised to have
   the work ready for filing.  The contractor finally delivered
   the brief at noon on September 22, 1981.  However, because
   there were numerous printing errors, e.g. misplaced footnotes,
   that brief was not filed but was corrected and returned to the
   contractor for reprinting.  See Exhibit 19.

   The complaint letter related how three employees of the U.S.
   Attorney's Office visited the contractor on September 23,
   1981.  They informed the contractor of the necessity to meet
   the delivery schedule and of the need for accurate
   proofreading and printing.  The corrected copy of the Mackin
   brief, which the contractor had promised to deliver later that
   evening (Sept. 23), was delivered the following day (Sept.
   24).  But this supposedly corrected version of the brief
   contained numerous errors that had not been present in the
   previous set of page proofs.  When these latest errors were
   brought to the attention of the contractor by the U.S.
   Attorney's Office, the contractor allegedly refused to make
   the corrections.  Exhibit 7.  Apparently the contractor
   relented, and these errors were corrected by the next day
   (September 25, 1981).  This series of delays caused by the
   contractor's poor performance forced the U.S. Attorney's
   Office to file this brief on September 25, 1981, several days
   after the court-appointed date. Id.  After reciting the above-
   described litany of complaints, Mr. Pomerantz described in
   this letter the disruption caused in the U.S. Attorney's
   Office by the contractor's substandard work.  Id.

   However, as stated above, before receiving this complaint
   letter, the GPO N.Y. RPPO was telephonically contacted on
   September 24, 1981, by the U.S Attorney's Office and was
   informed of their dissatisfaction with the contractor's
   performance.  Exhibit 12.  The GPO then contacted the
   contractor by telephone about the numerous errors in his work.
   Id.  The contractor's response was considered unsatisfactory
   in that the GPO was told that the Government would have to
   live with a few mistakes . . . .Id.

   Faced with this response, the GPO issued a cure notice to the
   contractor dated September 28, 1981.  Exhibit 6.  The notice,
   received on October 1, 1981, warned the contractor that the
   GPO considered its failure to meet required delivery dates,
   poor proofreading and inconsistent printing quality to be
   conditions which endangered performance of the contract.  The
   contractor was directed that these conditions had to be cured
   within 5 days after receipt of the notice or face possible
   termination for default.

   The Government contends that no response to the cure notice
   was forthcoming.  Exhibit 8.  Moreover, on October 13, 1981,
   GPO employees made an inspection of the contractor's plant.
   Id.  According to the Manager of the RPPO who went on the
   inspection, the contractor had failed to purchase an
   additional Meihle Vertical Press as had been promised in the
   contractor's initial proposal.  See Exhibits 3, 12.
   Dissatisfied with the plant's operation, they questioned the
   contractor (Mr. John Hart) concerning the steps that had been
   taken to ensure timely delivery and adequate performance.  The
   Government characterized his response as unsatisfactory.
   Exhibits 8, 12.

   The Government issued a notice of termination on October 15,
   1981, declaring the contract terminated for default because of
   the contractor's poor performance, its inability to meet
   requested delivery dates and its refusal of work.  Exhibit 9.
   The contractor appealed this action, alleging that it was not
   given an opportunity to cure its previous poor performance.
   Exhibit 11.  The contractor further argued that it had been
   late on only 2 of 14 print orders and that no work had ever
   been refused.  The contractor asked, as relief, that the
   contract be terminated for convenience.  Id.


   Under the Default article of Contract Terms No. 1, the
   Government has the right to terminate a contract if the
   contractor fails to make delivery within the time specified or
   any extension thereof.  Termination for reasons other than
   late delivery, such as failure to perform any of the other
   provisions of the contract or failure to make progress so as
   to endanger performance of the contract, must be preceded by a
   prescribed period wherein the contractor can cure the failure.
   Exhibit 2, p.13, Article 2-18(a)(l) and (2).  The Board must
   determine from the record whether these mandatory provisions
   have been complied with in such a way as to make the
   Government's termination sustainable.

   Here the Government issued a cure notice to the contractor on
   September 28, 1981.  Exhibit 6.  In that notice the Government
   cited.poor proofreading, inconsistent printing quality and the
   inability to meet requested delivery dates as conditions that
   endangered performance of the contract in accordance with its
   terms.  The contractor was given 5 days to cure these
   deficiencies.  When no satisfactory response was forthcoming,
   the Government terminated the contract.

   The first issue to be resolved is whether the contractor's
   performance was such that it led the Contracting Officer to
   believe that timely performance was endangered.  Our review of
   the Contracting Officer's action is limited to a determination
   that there was a reasonable basis for his belief that there
   existed a lack of progress and that contract completion was
   endangered by it.  RFI Shield-Rooms, ASBCA Nos. 17374, 17991,
   77-2 BCA ¶ 12,714.  We hold that there was a rational basis
   for the Contracting Officer to conclude that the contractor's
   inadequate performance on the Mackin  and Ellis  briefs
   constituted conditions which endangered performance.  The very
   fact that the Ellis  brief was submitted by the contractor to
   the Government missing four pages (pp.3-4, 17-18) and with
   textual matter interspersed in a footnote gives rise to the
   conclusion that the contractor was not performing
   satisfactorily.  Exhibit 18, p.19.  The contractor never
   presented any suitable excuse for the presence of these
   errors.  A review of the two Mackin  briefs also lends
   credence to the proposition that there was poor proofreading
   and inadequate printing quality on the part of the contractor.
   See Exhibits 19 and 19a.  Such deficiencies endangered proper
   and timely performance on the contract, therefore justifying
   the issuance of a cure notice.

   The next factual issue to be resolved is whether the
   contractor effected a cure of those conditions which the
   Contracting Officer considered as endangering performance.
   After issuance of a cure notice, the Government is entitled to
   adequate assurances from the contractor that performance will
   continue in accordance with the contract specifications.  A
   contractor's failure to provide such assurances justifies a
   termination for default.  However, when a contractor acts to
   demonstrate that contract performance is satisfactory, the
   Government's grounds for default no longer exist.  Lorch
   Electronics Corporation, ASBCA Nos. 21496, 21749, 78-1 BCA¶

   Based upon the facts as documented by the record, this Board
   holds that the Government has failed to prove that the
   endangering conditions were not cured by the contractor.
   According to Exhibit 5, the Government issued Print Order 704
   on September 25, 1981 with a delivery date of October 1, 1981.
   Although the Government contends that the contractor was late
   in delivering work under this print order, it does not
   demonstrate how late the delivery was or when the brief was
   delivered.  See Exhibit 16.  The Government's mere allegation
   of lateness is not enough to overcome the evidence presented
   by the contractor.  The contractor disputes this allegation of
   lateness in delivering work under this print order in its
   letter of December 8, 1982, wherein it is stated that the work
   was timely.  Exhibit 10.  Attached to this letter is a receipt
   for this work dated October 1, 1981.  The Board rules that
   there is no conclusive evidence that this work was late.
   Also, the Government has not demonstrated that this work was

   More importantly, after the cure notice was issued the
   contractor received two other print orders under this
   contract, Nos. 705 and 706.  Exhibit 5.  There is no
   indication in the record that the contractor's work on these
   print orders was either late or substandard.  This would
   indicate that during the five day cure notice period, the
   contractor was performing satisfactorily on the contract.  The
   obvious conclusion is that those conditions that endangered
   performance prior to issuance of the cure notice were
   rectified during this period of time.

   The notice of termination set out two other reasons for
   termination of the contract; the contractor's inability to
   meet requested delivery dates and its alleged refusal of work.
   Exhibit 9.  It is the finding of this Board that the
   Government has failed to prove either of these claims.  The
   schedule established in the contract specifications gave the
   contractor five days to work on orders of 64 pages or less.
   As the number of pages increased, more time was provided.
   Exhibit 1, p. 7.  There is little indication that Government
   officials from the U.S.  Attorney's Office complied with that
   schedule when they placed work with the contractor.  Under the
   specifications the contractor was directed to work in
   conjunction with the U.S. Attorney's Office in matters
   relating to proofs and arranging details of schedule.
   However, the parties were cautioned that these arrangements
   could not conflict with or alter the terms of the written
   contract.  Exhibit 1, p. 2.

   The manuscript copy for the Ellis  brief was delivered to the
   contractor between September 16 and 18, 1981.  The contractor
   was instructed to have the final page proofs delivered by
   September 18, 1981, as the brief had to be filed on that day.
   Exhibit 7.  There were no provisions in the contract for this
   kind of delivery schedule.  The work was finally delivered by
   the contractor on September 22, 1981, within the five days set
   out in the specifications.  According to the Government, the
   manuscript copy for the Mackin  brief was also sent to the
   contractor between September 16 and 18, 1981.  It also had to
   be filed on the 18th.  A presentable copy of the brief was not
   delivered by the contractor until September 25, 1981.  Id.
   However, since September 25 is five working days after
   September 18, 1981, it would be difficult for the Government
   to prove late delivery.  The record indicates that the U.S.
   Attorney's Office attempted to vary the terms of the contract
   by requesting delivery on briefs earlier than set out in the
   contract.  Id.  There was no authority for this because the
   Government Printing Office did not provide written
   authorization for the change.  Exhibit 1, p.2.  Since these
   altered schedules were not in accordance with the contract
   terms, the contractor can not be penalized for complying with
   the contract.

   It should also be noted that the record indicates that there
   were no complaints concerning the contractor's delivery on
   Print Orders 705 and 706.  The implication is that delivery
   was timely.  As this work was done after the cure notice was
   issued and all of the work under previous print orders was
   accepted, there was no outstanding delinquent work at the time
   of the termination.  This would indicate that failure to make
   delivery schedules was an inappropriate reason to terminate
   the contract for default.  Gibraltar Fabrics, Inc., ASBCA
   15709, 73-1 BCA 9905.

   The allegation that the contractor refused work must also be
   rejected.  The Government asserts that the contractor refused
   to make necessary corrections on the Mackin  brief on
   September 24, 1981, and that this was the refusal of work.
   However, the record indicates that the contractor did make the
   corrections on the brief, albeit later than the U.S.
   Attorney's Office would have liked.  Exhibit 7.


   Based on the foregoing reasons, the Board concludes that the
   contractor's failure to make progress was cured when it
   successfully delivered on Print Orders 704, 705 and 706.
   There were no other grounds for finding the contractor in
   default.  Accordingly, the termination for default was
   improper and must be converted to a termination for
   convenience.  The matter is remanded to the Contracting
   Officer to follow these instructions in accordance with
   Articles 2-17 and 2-18(e), Contract Terms No. 1.  Exhibit 2.
   In the event that negotiations regarding the contractor's
   recovery should prove unsatisfactory to the contractor, it has
   the right to appeal the matter to the Board pursuant to the
   aforementioned "Disputes" clause.