GPO BCA 7-84
JACKET NO. 421-710 (878-84-2396)
July 9, 1986

MICHAEL F. DiMARIO, Administrative Law Judge


   This appeal, timely filed by Fry Communications, Inc. -
   InfoConversion Joint Venture (hereinafter "Appellant"), is
   from the final decision of R. E. Lee, Jr., Contracting
   Officer, U.S. Government Printing Office (hereinafter "GPO" or
   "Respondent"), dated September 18, 1984, reaffirming his prior
   decision of July 18, 1984, requiring that the Appellant print
   and distribute at Appellant's own expense errata sheets to
   replace certain incorrectly printed pages in the back of a
   publication entitled "Enlisted Ranks Personnel UPDATE" ordered
   by Respondent under Print Order 20,002, Purchase Order 33846,
   Jacket 421-710 of a certain contract between the parties
   otherwise identified as GPO Program 400-S (878-84-2396).
   "Enlisted Ranks Enlisted UPDATE" was to be a compilation of
   some five Army regulations. The text of certain of these
   regulations gave intended users instructions on how to fill
   out certain forms designated as "R Forms." A copy of each
   referenced "R Form" was to be printed in the back of each
   book; the intention being that they would be photocopied by
   users as necessary in conjunction with the instructions in the
   regulations. The appeal arises under Article 2-3 entitled
   "Disputes" of United States Government Printing Office
   Contract Terms No. 1 (GPO Publication 310.2 - Revised October
   1, 1980) which was incorporated into and made a part of the
   said contract by reference therein. The decision of the
   Contracting Officer is affirmed for the reasons hereinafter
   set forth.


   On February 9, 1984, Appellant, a joint venture between Fry
   Communications, Inc., Mechanicsburg, PA 17055 (hereinafter
   "Fry"), and InfoConversion, a division of Grumman Data
   Information Services, Inc., Woodbury, NY (hereinafter
   "InfoConversion"), was awarded a requirements type single
   award term contract by Respondent for data capture, printing,
   binding, and distribution of "Army Update Publications" as
   required by the Department of the Army through July 31, 1984,
   and extending one year at a time up to 1988 as funds are
   available. The procurement was undertaken by two-step formal
   advertising wherein prospective bidders were requested under
   Step One to furnish technical proposals without pricing and
   under Step Two to formally bid with price quotations. Various
   documents from this process, including the Request for
   Technical Proposals/Specifications and the Invitation for Bids
   as each was amended, Appellant's Technical Proposal, and the
   bid, itself, comprise the contract between the parties.

   Pertinent provisions of the contract's "Statement of Work" set
   (R4 File, Tab 1, page 4 of 20 dated May 4, 1983) were as

For Composition - . . . .

Approximately 600 to 3600 pages of manuscript copy will be
furnished to the contractor on a weekly basis. Each six pages of
manuscript copy will make approximately one photocomposed page.

For graphics (these must be digitized) - Reprint copy, line
illustrations, monochromatic slides, and prints. Most are line
illustrations and range in size from full page to one-eighth of a
page. (Rule 4 File, Tab 1, page 8 of 20 dated May 4, 1983)

. . . .


Composition requirements -

(1) Automatic generation of fully composed pages including
running foot and folio (hyphenation, justification, multicolumn,
and illustration digitization). (See sample copy.) Cutting and
pasting are not acceptable unless in the contractor's opinion,
art furnished is not of sufficient quality to be digitized. Copy
will be submitted for digitizing at a later date. (Rule 4 File,
Tab 1, page 8 of 20 dated May 4, 1983)

. . . .

(9) Graphics - regulations often include graphs, charts, forms,
and other types of illustrations. These must be digitized,
merged, and photocomposed along with the text. (R4 File, Tab 1,
page 9 of 20 dated May 4, 1983)

. . . .

COMPOSITION: The entirety of each category of composition (text,
tabular, and display) must be identical throughout the product(s)
ordered under these specifications.

Composition must be photocomposition. Photocomposition includes
all typesetting produced by photographically creating the
characters on sensitized film or paper.

Type Page Size: Books & pamphlets - See "Exhibits" 1 through 4.
Inserts, cards, and mailing bands, see sample. (R4 File, Tab 1,
page 10 of 20 dated May 4, 1983)

. . . .

Page Formats:

The Government requires full-page photocomposition for all pages
produced. (R4 File, Tab 1, page 10 of 20 dated May 4, 1983)

. . . .


Two sets of page proofs.

When requested, one set of page proofs on updated pages only.

The proofs must have all elements in their proper position.

The contractor will be responsible for performing all necessary
proofreading to insure that the proofs are in conformity with the
copy submitted. All proofs must be collated in sets, numbered
sequentially, and have a one inch clear margin on all sides. . .
. (Emphasis added)

If any contractor's errors are serious enough in the opinion of
the GPO to require revised proofs, the revised proofs are to be
provided at no expense to the Government. No extra time can be
allowed for this reproofing; such operations must be accomplished
within the original production schedule allotted in the

The contractor must not print prior to receipt of an "OK to
print." (R4 File, Tab 1, page 11 of 20 dated May 4, 1983)

. . . .


Head 5/16", bind 5/8".

Some pages will have special margins. (R4 File, Tab 1, page 13 of
20 dated May 4, 1983) (Emphasis added)

. . . .


. . . .

Return manuscript copy and artwork with one set of proofs to the
department at the address listed on the print order and one set
to the address under Schedule.

. . . .

SCHEDULE: Adherence to this  schedule must be maintained.
Contractor must not start production of any job prior to receipt
of the individual print order.

Proofs - Furnished material and proofs must be picked up from the
Adjutant General, Hoffman Building 1, 2461 Eisenhower Ave., Room
1020, Alexandria, VA 22331. At contractor's option, furnished
material will be mailed f.o.b. contractor's plant. Time consumed
in mailing will be deducted from the production schedule.

The following schedule begins the workday after notification of
the availability of print order and furnished material. The
numbers under the column headed "WD After" represent the number
of workdays allowed to complete that certain part of the schedule
after completion of the preceding part.

   WD After
*Contractor submit page proofs   5
Contractor pickup page proofs   10

*The contractor will be required to deliver approximately 500
output pages per week, 100 pages per day for balance.

Page proof of Updated Pages:
Contractor submit page proofs   2
Department gives OK to print   1

(R4 File, Tab 1, page 16 of 20 dated May 4, 1983) (Emphasis

Exhibit 4, identified by sublegend as "Army Update Publications:
Format for Reproducible Inclosures (R-Forms). (Same for 2, 3 or 4
column text formats)"

[Illustration of page format]

(R4 File, Tab 1, page 20 of 20 dated May 4, 1983)

   Pertinent provisions of Part Two Invitation for Bids (R4 File,
   Tab 1, page 1 of 18 dated January 9, 1984) were as follows:

ORDERING: Items to be furnished under this contract shall be
ordered by the issuance of print orders by the Government. Orders
may be issued under this contract from date of award through
December 31, 1988. All print orders issued hereunder are subject
to the terms and conditions of this contract. This contract shall
control in the event of conflict with any print order. When
mailed, a print order shall be "issued" for purposes of this
contract at the time the Government deposits the
order in the mail. (R4 File, Tab 1, page 4 of 18 dated January 9,
1984) (Emphasis added)


. . . .

Printer's Error: Any error which has been caused by the failure
of the contractor to follow the manuscript copy literally. (R4
File, Tab 1, page 5 of 18 dated January 9, 1984) (Emphasis added)

   In addition to the contract itself, Respondent by letter of
   April 17, 1984, furnished Appellant the following style sheet:

[Illustration of style sheet]

(R4 File, Tab 7B)

   Thereafter, on June 1, 1984, the Government began furnishing
   Appellant its requirements pursuant to the terms of the
   contract. Accordingly, on June 1, 1984, the Government
   supplied Appellant with manuscript copy for the Army update
   publication entitled "Enlisted Ranks Personnel UPDATE." (R4
   File, Tab 7) (The record is not clear concerning whether or
   not any order accompanied this copy.) Apparently, Appellant
   was to digitize this material and later merge it with graphics
   which it would subsequently receive from Respondent's customer
   agency, the Department of the Army.

   On June 26, 1984, at 10 a.m., Mr. Paul Jeffries of the
   Department of the Army, telephonically notified
   InfoConversion's Production Supervisor, Janet Whitcomb, that
   the graphics.were available for pick up. (Official File, Tab
   21, page 23) The record and testimony show that the Appellant
   picked up the material on June 26, 1984, the same day it was
   called. Accompanying the graphics was a Print Order 5069 dated
   June 22, 1984, for the Enlisted Ranks Book calling for the
   digitization of "19 R Forms in back of book [and] 19 footers
   in back of book." The Order was also marked "[p]roofs [r]
   equired. Return Original and/or Negs. To: HQDA (DAAG-PAZ-R)
   Attn: Mr. Jeffries, Hoffman Bldg. 1, Room 1034, Alexandria, VA
   22331 Phone (202)325-6116. For additional information contact
   Mr. Paul Jeffries (202) 325-6116." The copy for each "R Form"
   had taped to it a preprinted instruction tag checked in the
   block reading "[r]eproducible [f]orm (-R Form) [d]igitize this
   art and position on page per established specifications." (R4
   File, Exhibit 7) According to Respondent's witness, Kathy
   Phillips, the tags were taped on the bottom of each piece of
   copy with the binding edge to the left so that "R Forms" which
   were to be reproduced as broad pages, i.e., with the image
   placed horizontally rather than vertically, would be readily

Appellant's witness, Janet Whitcomb, on the other hand claims
that the tags were placed on the copy in various locations and
thus had no apparent meaning respecting image placement. The
Print Order also reflected a ship/delivery date of July 3, 1984.
Thus, the Appellant was allowed precisely 5 contractually agreed
to work days to accomplish the digitization and furnish the
proofs to the Department of the Army. The work was apparently
accomplished within the 5-day time frame. However, when the Army
received the proofs on July 3, 1984, it discovered that these
were of the footers only and not the "R Forms" themselves. (R4
File, Tab 4) The Army, however, deemed it important to give the
"OK to print" by July 5, 1984, because that was the date of
issuance which the publication was to bear. As a result, the
Army, by telephone conversation between Jeffries and Whitcomb,
then knowingly waived its right to receive the proofs of the "R
Forms" and gave the "OK to print." That same day Whitcomb
transmitted the camera ready "R Form" artwork to Fry
Communications. (Official Record, Tab 21, page 25 and Appellant's
Exhibit 1) In conformance with this, the Army, by Print Order
20,002 dated July 2, 1984, then ordered the printing of some
57,813 copies of the 384-page publication in trim size 8 3/8 x 10
7/8 inches. The Print Order required the production to be in
accordance "with the purchase order and specifications
indicated." (Rule 4 File, Tab 2) This quantity was later
increased to 67,813 by Modification No. 0003 dated July 10, 1984.
(R4 File, Tab 2)

   Appellant completed the printing and shipped the publication
   from its Mechanicsburg, PA plant on July 11, 1984. Upon
   receipt by the Department of the Army on July 12, it was
   determined that "R Forms" over 44 x 61 picas were reduced in
   size to less than 100 percent of the original copy furnished
   by the Government and some were printed in a vertical
   configuration rather than in a broad configuration as desired
   by the Government rendering them unusable in the opinion of
   the Army. (R4 File, Tab 4)

   The Department then elected to use errata sheets to correct
   the "R Form" defect, with the proviso that all the costs
   associated with the reprinting were to be borne by Appellant
   because of contractor error. Appellant however, denied that
   the errors were of their making asserting instead that they
   were the result of unclear general contract specifications
   drafted by Respondent; conflicting instructions on the
   previously furnished style sheet; a lack of clear instructions
   accompanying Respondent's furnished copy for each "R Form;"
   and insufficient time being allowed by Respondent from the
   time of delivery of the print order and materials for
   digitization and the stated desired date for delivery of the
   completed publication to accommodate adequate customer agency
   review of page proofs, resulting in a waiver of such right of
   review by the customer agency which, if conducted, would have
   in the opinion of Appellant identified the error before the
   camera copy was forwarded to the printer (Fry). Appellant
   further asserted that it acted as a reasonable printing
   contractor with respect to making its judgments respecting the
   reductions and positioning of the "R Forms." Appellant thus
   requested that the Respondent reconsider its decision.
   Thereafter, a final decision was rendered by the Contracting
   Officer on September 18, 1984, reaffirming his previous
   findings. It is from such decision that Appellant by letter of
   December 14, 1984, timely appealed. Subsequent thereto, both a
   Prehearing Conference and Hearing were held. At the outset of
   the Hearing Appellant formally dropped its appeal of Print
Order 20,005. Thus, the Board has before it at this juncture only
Print Order 20,002 involving some 19 "R Forms."


   The questions presented by this appeal are: (1) Whether or not
   the Appellant was required by the terms and conditions of the
   contract to reproduce the "R Forms" at 100 percent of the
   image size of the original copy received by it from
   Respondent; (2) Whether or not the Appellant was adequately
   notified that certain "R Forms" were to be printed as broad
   pages so that the top sides of such forms would run along the
   binding edge of each book, requiring each printed book to be
   turned 90 degrees in order to "read" the "R Form" correctly;
   and (3) Whether or not the Government, because of purported
   internal delays, materially contributed to the printing errors
   in question.


   In Opalack v. United States, 5 Cl.Ct. 349 (1984), the United
   States Claims Court, at page 359, tells us that:

[6-8] Ordinarily, when interpreting a contract, the plain meaning
of the contract is binding upon the court unless the contract by
its very terms is inherently ambiguous. 19/ A contract is
ambiguous if it is subject to more than one reasonable
interpretation. 20/ But it is not appropriate to strain the
language of the contract to create an ambiguity. 21/

In light of this guidance, the Board is of the opinion that a
reasonable printer in like circumstances to those in this appeal,
examining the language "[v]arious same size, reproducible copy
for forms (not filled-in examples) . . . centered in this area on
recto pages only, no running foot, blind folios" from Exhibit 4
of the "Statement of Work," supra, page 6, in the context of
other restrictive contract provisions, would have drawn the
conclusion that it was not authorized to photocompose material in
any size other than the size of the original copy received by it.
It is the Board's belief that while the language "various same
size" does not itself expressly state that the product is to be
produced at 100 percent of copy size, it most certainly strongly
implies that no reduction is to be taken. If no reduction is to
be undertaken, it follows ergo that the product must be produced
at 100 percent of original copy size. Moreover, if the Appellant
had expressly argued (which it has not) that the "various same
size" language was ambiguous in light of the copy being larger
than the "standard margin" page format disregarding the "special
margins" provision of the contract, most certainly the ambiguity
would have to be deemed patent and not latent (WPC Enterprises,
Inc. v. United States, 323 F.2d 874, 163 Ct.Cl. 1 (1963); Max
Drill, Inc. v. United States, 427 F.2d 1233, 193 Ct.Cl. 608
(1970)), thus throwing the burden upon the Appellant to have
inquired of the Government before proceeding further as to what
was intended to be meant by such provisions. This is especially
so, given the contract terms, supra, cited by Respondent
requiring the contractor to make such inquiry.

   Additionally, it is the Board's opinion that the waiver of the
   provision for proofs did not alter the responsibility of the
   contractor to haveperformed in accordance with the contract
   terms. Such provision was clearly intended to be for the
   protection of the Government not the contractor so that here
   when time was of the essence for the Government to adhere
   strictly to the established schedule, and Appellant having
   failed to include the "R Form" proofs by the July 3rd date, it
   was perfectly reasonable for the Government to waive such
   protection without giving up any rights to strictly enforce
   those provisions of the specifications defining the product it
   sought to have manufactured. Such waiver can in no way be
   construed to have a causal relationship to the error in size
   reduction albeit that but for the waiver the error would have
   been discovered before printing.

   Respecting the question of whether or not there was adequate
   notice given to Appellant that certain "R Forms" were to be
   reproduced as broad images, the Board is of the opinion that
   "Statement of Work," Exhibit 4, the size of the "R Form" copy
   itself, the Style Sheet instruction, and the instruction taped
   on the copy, whether as contended by the Government or as
   contended by Appellant, were patently ambiguous one with
   another and should have caused the printer to inquire as to
   what was the desired configuration of such forms before
   printing them as was done.

   Lastly, it is the Board's opinion that the Appellant has
   offered no evidence whatsoever to support its contention that
   internal delay in the Government contributed to the error
   itself. Moreover, the record and testimony show that the
   Appellant was afforded precisely the time for digitization of
   the "R Forms" to which it was contractually entitled.


   The Board believes that no other conclusions but the foregoing
   are reasonable, all testimony and evidence duly considered.
   Accordingly, the Board affirms the opinion of the Contracting
   Officer and denies the appeal.