Docket No. GPO BCA 4-87
March 31, 1989

Administrative Law Judge


      This appeal, timely filed by Automated Datatron, Inc.
      (Appellant), 4318 Gallatin Street, Hyattsville, MD  20781,
      dated January 27, 1987, is from the final decision of Jack
      Scott, Contracting Officer (CO), U.S. Government Printing
      Office, Washington, DC  20401 (Respondent), dated October
      24, 1986, completely terminating contract Purchase Order
      70091, Program C90-S, Jacket No. 91-058, for default
      because of Appellant's "continuing failure to comply with
      the delivery and Quality Assurance requirements of Program
      C90-S."   The appeal is denied and the decision of the CO
      is affirmed for the reasons set forth hereinbelow.


      Appellant was competitively awarded the Program C90-S
      single-award term contract by Purchase Order 70091 dated
      September 9, 1986, to produce such microfiche copies of the
      Congressional Record as Congress might requisition from
      Respondent from time to time during the term October 1,
      1986, to September 30, 1987.  The contract in the amount of
      $59,350.50 was made in strict accordance with Appellant's
      quotation of August 28, 1986, and Respondent's
      specifications.  (Rule 4 File, hereinafter "R4 File," Tabs
      B and C.)

      On October 6, 1986, the CO sent Appellant a letter stating
      that an examination of microfiche samples produced by
      Appellant under Print Order 60000 reflected the defects
      shown on an inspection report attached thereto and that
      based on such defects, the work had been determined to be
      rejectable and would require remanufacturing by Appellant
      in strict accordance with the specifications and at no
      additional cost to the Government. (Thirty-six such
      complaint letters, including the referenced letter, were
      sent to the Appellant from October 6, 1986, through
      December 9, 1986, on various print orders numbering 60000
      through 60024.)  (R4 File, Tab F.)

      By letter dated October 9, 1986, referencing the Test Run
      and Print Orders 60000 and 60001, the CO notified Appellant
      that he considered Appellant's failure to comply with the
      quality attributes and delivery schedule of the
      specifications to be a condition that was endangering the
      performance of the contract in accordance with its terms.
      The notice gave the Appellant 10 days from its receipt to
      advise Respondent of the measures it had taken or was then
      taking to cure such condition.  The notice also advised
      Appellant that unless such condition had been cured, the
      Government might terminate the contract for default
      pursuant to the contract's "Default" clause.  (R4 File, Tab

     In response to the cure notice, Appellant's T.D. Marlatt,
     Vice President, by letter dated October 24, 1986,
     referencing both the instant program and the substantially
     identical C151-S program respecting the production of
     Federal Register microfiche, advised the CO that:

      We have adhered to your October 22nd advice by
      concentrating our efforts on the C151-S Program.  A
      dedicated team of workers has been trained to complete each
      step in the conversion of the Federal Register to

      Under this procedure specialists in document preparation,
      camera operation, silver duplication, diazo duplication and
      quality assurance have been designated to perform the
      appropriate production functions in an assembly line
      fashion from its arrival until each Print Order is

      We have given priority to the current day's Federal
      Register work in order to meet the nine hour turnaround
      requirements and subsequent mailing deadlines.  This
      special team also completed the backlog of Print Orders
      that had been rejected by GPO quality assurance personnel.

      As of this date all material for the Federal Register has
      been delivered to GPO.  Mailings are being made as the
      third generation microfiche are accepted by GPO quality

      By the close of business today we expect to complete
      delivery of all Congressional Record material to GPO.
      Mailings are being made as described above.  Should any
      Print Orders remain outstanding I will advise you of their
      status on Monday, October 27.  We are told by the Office of
      Congressional Printing Management that it will have no
      further material from the 99th Congress for conversion.

      I would like to again express our concern regarding the
      revised specifications for the length of microfiche.
      Although we have procured expensive and complex equipment
      which can cut the fiche within the .75 milimeter [sic]
      tolerance, we feel that parallax errors inherent in even
      the best optical measuring devices exceed .75mm.  In
      support [of] this opinion, we have experienced the
      rejection of microfiche from six Print orders submitted to
      GPO within the past two days.  The fiche in question had
      been carefully measured with instruments similar to those
      used by GPO.

      In summary, we have secured additional precision equipment
      and trained a sufficient number of personnel to meet the
      turnaround requirements of both programs.  We will report
      any problems and maintain close contact with your office as
      we continue to improve upon our production procedures.  1/

R4 File, Tab H.

      Thereafter, by letter of October 24, 1986, the CO advised
      Marlatt of the termination.  (R4 File, Tab I.)  By letter
      dated January 27, 1987, Appellant noted its appeal as

      Automated Datatron, Incorporated (ADI) hereby appeals the
      Contracting Officers decision to terminate the referenced
      contracts for "Default".   While agreeing that rejections
      of microfiche occurred, resulting in shipping delays for
      both contracts, ADI believes the reason for termination
      should be for "Convenience of the Government".

1/  Appellant's appeal in Docket No. GPO BCA 3-87 is from the
Contracting Officer's final decision in the Program C151-S

     This appeal is based upon the fact that despite diligent
     effort, and at considerable additional expense, the
     contractor was unable to procure equipment that consistently
     creates microfiche which meet the extremely tight
     specifications stipulated in the contracts.  This problem
     has been identified to the vendors of camera and duplicator
     equipment.  Their position is that the tolerances,
     particularly for length, exceed the capability of current
     equipment on a continuous basis.  We advised the Government
     Printing Office of the problems encountered several times.
     Our most recent letter requesting that the remainder of the
     contract be cancelled for "Convenience of the Government" is
     attached at Appendix A.  2/

      In summary, we believe that the new specifications for
      Programs (151 and 90) are excessively restrictive for
      currently available equipment.  No other GPO, or other
      Government contracts, to our knowledge, contain these same
      specifications.  Therefore, if these specifications for
      this particular job are necessary for the convenience of
      the Government, the cancellations should be for that same
      reason, rather than default.

Official File, Tab 1.

      By letter dated February 6, 1987, this Board notified
      Appellant and Respondent that the appeal had been docketed,
      provided Appellant with a copy of the Board's Rules of
      Practice and Procedure, advised Respondent of its duty to
      assemble and furnish to this Board and Appellant a copy of
      all documents pertinent to the appeal (the R4 File), and
      advised Appellant that, within 30 days after receipt of
      such documents, it should transmit to the Board and
      Respondent any documents not contained therein which it
      considers to be relevant to the appeal.  The Appellant was
      also advised of the requirement for filing a

2/  Tab A, referenced by Appellant, is its letter of December 30,
1980, supra.

complaint and for making an election respecting the desire for a

     Respondent complied with the R4 File requirement on March
     10, 1987.  The file contained all of the documents
     referenced above, plus a copy of the specifications (Tab B),
     the original bidders list (Tab C), the abstract and
     confirmation of bid prices (Tab D), a record of quality
     problems and late deliveries kept by GPO's Quality Assurance
     Section (Tab F), and a memorandum of February 17, 1987, with
     attachments referenced therein (Tab K) from Robert M.
     Saholsky, Industrial Engineer, Quality Systems Division,
     Quality Control and Technical Department, GPO, to Printing
     Specialist, Term Contract Division, Printing Procurement
     Department, GPO, respecting microfiche length.  The
     memorandum stated:

      In the establishment of microfiche standards for the U.S.
      Government Printing Office (GPO), the GPO has attempted to
      adhere to the recognized national standards for microfiche
      created by the American National Standards Institute and
      the Association for Information and Image Management

      The ANSI/AIIM Committees that prepare and approve these
      microfiche standards are comprised of the most
      knowledgeable authorities in the field of micrographics
      from both private industry and the federal government.

      The most current standard for microfiche length is
      ANSI/AIIM MS5-1985, approved as a national standard on May
      13, 1985.  MS5-1985 requires a microfiche length of 148
      millimeters with a tolerance of plus zero millimeters and
      minus .75 millimeters (see attached MS5-1985).  MS5-1985
      represents a tightening of the previous microfiche length
      standard MS5-1975, (see attached MS5-1975), requiring a
      microfiche length of 148 millimeters with a tolerance of
      plus zero millimeters and minus 1.00 millimeters.  The

of this standard is the result of improvements in micrographics
equipment and technology over the last 12 years.

      Considering the possible difficulty in attaining this
      microfiche length standard on a consistent production
      basis, Mr. Ray Gulick (Documents Technical Support Group,
      Superintendent of Documents) and myself contacted the
      Engineering Division of Consolidated Micrographics, Inc.
      and the Southeastern Regional Manager of the Photomatrix
      Corporation.  Consolidated Micrographics and Photomatrix
      Corporation are large manufacturers of microfiche

      Both Consolidated Micrographics and the Photomatrix
      Corporation confirmed the fact that a microfiche length
      standard of 147.25 millimeters to 148.00 millimeters is
      warranted and can easily be achieved on a consistent
      production basis.

      It is therefore, recommended that the Government Printing
      Office ultimately adhere to the ANSI/AIIM standards,
      including the ANSI/AIIM standard for microfiche length.

      By letter dated April 16, 1987, the Board, having received
      no answer to Appellant's complaint from the Respondent,
      advised Appellant that it had entered a general denial on
      behalf of the Government pursuant to Rule 6.(b) of the
      Board's Rules of Practice and Procedure.  On April 22,
      1987, the Board received a letter from Marlatt dated April
      9, 1987, which stated:

      Automated Datatron, Inc. (ADI) wishes the Board to note the

      Both of the referenced files contain GPO Memoranda stating
      that Consolidated Micrographics, Inc. confirmed that "a
      micrographic length standard of 147.25 millimeters to
      148.00 millimeters is warranted and can easily be achieved
      on a consistent production basis."

      ADI has received information from Consolidated
      Micrographics that only its most recently manufactured
      machines can be modified to meet this standard.

      We will forward written confirmation of this information
      when it is received from Consolidated micrographics.

Official File, Tab 7.

      No further correspondence was received from either party.
      Accordingly, the record was administratively closed in
      accordance with the Board's Rules and comes on for decision
      on the written record in this manner, Appellant having
      failed to exercise its right to a hearing.


      The appeal raises the question of whether the
      specification's provision respecting the length of
      microfiche is excessively restrictive.  The question is
      substantially the same as that raised by Appellant in
      Docket No. GPO BCA 3-87 decided this date upon identical
      specification language and similar facts.  In the instant
      case, as in Docket No. GPO BCA 3-87, the Appellant has
      offered no evidence whatsoever to support the primary
      assertion of its complaint that "the new specifications are
      excessively restrictive for currently available equipment."
      Moreover, the Board's examination of the record convinces
      it that such assertion is clearly erroneous for the
      following reasons:

     (1)  The solicitation advised:  "BIDDERS PLEASE NOTE:  "This
     contract has been extensively revised; therefore, all
     bidders are cautioned to familiarize themselves with all
     provisions of this contract before bidding."  (R4 File, Tab
     B, page 1 of the specifications.)

      (2)  The specifications state the size of the microfiche to
      be 148 by 105 millimeters and that the microfiche "shall
      conform to the microfiche Format 24/98, as specified in
      'ANSI/AIM MS5-1985, American National Standard for
      Micrographics - Microfiche'," and that the microfiche
      conform to the quality assurance for microfiche provisions
      set forth in Section 3 of the specifications.

     (3)  Among the provisions of Section 3 is a quality
     attribute for length which states the nominal standard for
     such attribute as 148 millimeters as per table 5 of "ANSI PH
     1.51-1983 American National Standard 'Dimensions for
     Micrographic Sheet and Roll Films.'"; with tolerances for
     such standard to be as per Defect Classification Table
     included in such specifications as follows:

Defect Classification

less than 147.25 mm (5.797")                  critical
greater than 148.0 mm (5.827")              critical

Rule 4 File, Tab B, specifications, page 9 of 21.

      (4)  The Government based its inclusion of such provision
      upon a highly regarded, universally accepted standard.  (R4
      File, Tab K.)

     (5)  There is no evidence of any protest of these
     specifications by Appellant or any other vendor to whom the
     solicitation was sent.  The bidder's list reflects that
     Respondent received 4 responsive bids to the solicitation,
     including Appellant's bid.  (R4 File, Tab C.)

      (6)  Performance records indicate that while Appellant had
      great difficulty in meeting the specifications respecting
      length, acceptance was achieved after correction in certain
      instances, thus confirming that while the specifications
      were difficult to meet, performance was not impossible.
      (R4 File, Tab J.)

     Given such findings, the Board, as in Docket No. GPO BCA
     3-87, denies the appeal in its entirety and affirms the CO's