UNITED STATES GOVERNMENT PRINTING OFFICE CONTRACT APPEALS BOARD Appeal of Business Forms Service, Inc. Appeal dated June 2, 1981 Decision dated October 20, 1981 Panel 9-81 THOMAS O. MAGNETTI, Chairman JOHN W. SAPP, Member CHARLES L. RITCHEY, JR., Member PRELIMINARY STATEMENT This is a decision on a timely appeal filed by Business Forms Service, Inc. (hereafter referred to as the contractor). The contractor in its appeal disputes the final decision of the Contracting Officer to terminate the contractor for default and to hold it responsible for the excess costs of reprocurement. The appeal is taken in accordance with Article 2-3 (the "Disputes" clause) of the Government Printing Office (GPO) Contract Terms No. 1, GPO Publication 310.2, revised October 1, 1980. Exhibit 12 of the Appeal File (hereafter the A.F.). GPO Contract Terms No. 1 was incorporated by reference into the specifications of the contract. Exhibits 1 and 2, A.F. The specifications were incorporated by reference into the Purchase Order. Exhibit 5, A.F. The contract required the contractor to produce a 28 page, self-covered, saddle-wired publication in two colors. The final decision of the Contracting Officer held that the contractor failed to produce the publication as specified in the contract. The jurisdiction of the GPO Board of Contract Appeals over this appeal was established pursuant to GPO Instruction 110.10A, titled "Board of Contract Appeals Rules of Practice and Procedure", and GPO Contract.Terms No. 1, Article 2-3, supra. In accordance with appropriate contract appeal procedures, its decision is based upon the written record which consists of the documents and exhibits that constitute the Appeal File. STATEMENT OF FACTS On April 7, 1981, in accordance with the standard GPO contract award procedures, Purchase Order 18142 for the procurement of the publication entitled "Camping in the National Park System (1981 Edition)" was awarded to the contractor. Exhibit 5, A.F. This award was based upon a competitive telephonic bid placed by the contractor on that same day. Exhibit 4, A.F. According to the contract specifications, the contractor was required to print 55,941 copies of the publication:. Exhibits 1 and 2, A.F. Each pamphlet had to be 28 pages, self-covered, saddle-wired in two colors. The size of this document was to be 8" x 9-1/4", soft folded to 4" x 9-1/4". The GPO was to furnish one set of offset negatives in 2-up companion page style. The contractor was to furnish all other materials and services. The contractor was to receive negatives by April 9, 1981, and submit advance samples on or before April 30, 1981. The GPO then had 8 days to notify the contractor of its approval of the advance samples. Once approval was received from the GPO, the contractor would have 3 work days to print and ship the documents. After receipt of the negatives, the contractor telephonically contacted the GPO on April 9, 1981, complaining that the negatives were inconsistent with the specifications. Exhibit 7, A.F. During this conversation the contractor admitted that its bid was in error because it had been based on a trim size of 4" x 9-1/2". Exhibits 7, 9, and 16, A.F. This call was followed by letter from the contractor dated April 14, 1981. Exhibit 8, A.F. In this letter the contractor claimed that it was unable to fulfill the order because the copy 1/ and the sample did not match the specifications. Specifically the contractor stated that: "[the] specifications call for a 28 page, self-cover, 8" x 9-1/4" soft folded to 4" x 9-1/4" stitched two times on the 9-1/4" side. The copy and sample show a 28 page, self-cover, 16" x 9-1/4" soft-folded to 8" x 9-1/4, stitched 2 times on the 9-1/4" side with an additional fold to 4" x 9-1/4 after trimming three sides." In addition, the contractor asserted that it did not have the capability of providing the additional soft fold required after the pamphlet was collated and stitched. The contractor returned all the material previously furnished by the Government with this letter. In response to the contractor's repudiation of the contract, the GPO notified the contractor by letter dated April 23, 1981, that it was terminating the contract for default. Exhibit 10, A.F. The stated reason for this action was the contractor's "failure to produce the requirement as specified." The contractor was further warned that it would be responsible for any excess costs of reprocurement that may arise. The right to default contractors in cases such as this is derived from Article 2-18, titled "Default." See, GPO Contract Terms No. 1, supra. 1/ According to the records of the Contracting Officer, the contractor received both the negatives and the camera copy. Exhibit 6, A.F. It should be noted that the contractor was advised by letter dated April 24, 1981, that it would be responsible for the excess cost involved in the reprocurement of the contract. Those costs amounted to $452 and were incurred when the GPO reprocured the contract from the second lowest bidder on the original solicitation. The contractor appealed the Contracting Officer's final decision by letter to the Public Printer dated June 2, 1981. Exhibit 13, A.F. The contractor challenged this decision to default and consequent assessment of reprocurement costs because the sample it received differed from the specifications on which it based its bid. The contractor also contended that it did not understand the GPO's use of the term of art "soft fold" and that it should not be penalized for any difference in meaning of this term that might exist between the GPO and the contractor. In accordance with GPO Instruction 110.10A, this appeal is being decided on material contained in the Appeal File. Included in this file is a memorandum from the Contracting Officer relating to availability of the camera copy and samples and the method used in obtaining the reprocurement contract. Panel's Exhibit A, A.F. Accompanying this memorandum was an informal estimate relating to.the cost of reprocuring the contract. Although the Board examined the camera copy in its determination of the validity of the contractor's claim, it could not be included within the Appeal File as a separate exhibit as it was necessary to return it to the Contracting Officer for proper disposition. It should also be noted that it was the negatives of this camera copy that were furnished to the contractor. See footnote 1. Because the camera copy accurately reflected these negatives and was readily available, there was no need for the Contracting Officer to obtain the negatives from the National Park Service headquarters in Harper's Ferry, West Virginia. . Exhibit A, supra. DISCUSSION The evidence is undisputed that the contractor abandoned its performance upon receipt of the copy and sample. Exhibits 8, 9, and 16, A.F. It did so expressly, by refusing to perform the contract requirements and by returning the sample and copy to the Government. Exhibit 8, A.F. This express refusal and abandonment constitutes anticipatory repudiation of the contract. Interstate Industries, Inc., GSBCA 5252, 79-2 BCA ¶ 13,954 (1979); North American, Ltd. , ASBCA 22718, 79-2 BCA ¶ 13,894 (1979). Regardless of the stage of contract performance default termination is available as a remedy for the Government when confronted with a contractor's anticipatory repudiation. Therefore, the Government had the authority to terminate this contract for default before any performance had begun and before the due date had passed. Central Fire Truck Corp., ASBCA 12715, 71-1 BCA ¶ 8904 (1971). The contractor justified this refusal to perform by claiming that the copy and samples as submitted by the Government differed from the specification. The contractor alleged that the dimensions of the material furnished by the Government were 16" x 9-1/4", double the size of the page set out in the contract specifications (8" x 9-1/4"). Exhibits 8 and 13, A.F. In addition, the contractor claimed that it did not have the capability of producing the soft fold in the document. Ibid. Upon examination of the camera copy as submitted to the Panel by the Contracting Officer, it is clear that the individual pages were 8" x 9-1/4" as set out in the contract specifications and not the "16 x 9-1/4 size as claimed by the contractor. The negatives were furnished to the contractor in a 2-up companion page style in accordance with the contract specifications. In trade practice, this style means that two separate pages are joined together for the convenience of the contractor. Depending on the contractor's equipment, this would allow the contractor to strip the negatives of two pages at once for proper assembly and positioning instead of doing each page individually. The contractor then makes a printing plate from the negatives and proceeds to print. Therefore, although the negatives of the pages were supplied in twos, the size of each page remained only 8" x 9-1/4". The negatives for each page could have been separate when provided by the GPO, but this was would not have been in accordance with the contract. The contract required a soft fold in the middle of the pamphlet. Exhibits 1 and 2, A.F. The contractor has alleged that this directive was ambiguous in that the specifications did not set out clearly when the soft fold was to be put in the document i.e., whether it was to be done before or after stitching and trimming. It is the holding of this Board that although the contract did not specifically indicate when the contractor was to put the soft fold into the pamphlet, the provision relating to the soft fold was not ambiguous. The size of the document was to be.8" x 9-1/4", soft folded to 4" x 9-1/4"; the stitching was to be in two places along the 9-1/4" dimension. It is reasonable to assume that the stitching would occur before the soft fold since a soft fold is one that is not scored or perforated. It would be impossible to saddle stitch along the 9-1/4" side after the pamphlet was "soft" folded. This contract is not defective merely because it did not indicate specifically when the soft fold process was to take place. If the contractor were confused as to when the soft fold was to be made, it should have discussed this with the Contracting Officer before submitting its bid. Furthermore, although the contractor stated that it did not have the capability of making the additional fold after the book had been collated and stitched, the contractor has made no assertion that it had any folding capability before stitching. Exhibit 8, A.F. This evidence would have been necessary to support a contention that it understood the original contract specifications to require folding before trimming or stitching and was able to comply with this procedure. Any disagreement between the contractor and the GPO over the meaning of the specifications should have been resolved either before it bid on the contract or through the "Disputes" or "Changes" clause procedures as provided for in the contract. The rationale provided by the contractor for its abandonment of the contract does not justify or excuse its unwarranted action. Abandonment of work without justification or excuse is an appropriate grounds for termination for default. H & H Manufacturing Company, Inc., 168 Ct. Cl. 873, 879 (1964); Yukon Service, Inc. v. United States, 215 Ct. Cl. 942 (1977); --opinion of trial judge can be found in 24 C.C.H. 81822. Following a valid default termination, one of the most important of the Government's remedies is the right to assess the defaulted contractor the excess costs of reprocuring the unperformed part of, or if necessary, the entire contract from another contractor. Environmental Tectronics Corp., ASBCA 21204, 79-1 BCA ¶ 112,986 (1978); see also, Article 2-18(b), supra. In the instant case, excess costs of reprocurement were assessed against the contractor. These costs amounted to $452. It is the judgment of this Board that the Government mitigated the excess costs of the reprocurement by negotiating for the contract with the second lowest bidder on the original solicitation, Phillips Brothers, Inc. and obtaining from Phillips its original bid price. It negotiated with Phillips only after it had obtained an estimate from another vendor that was substantially above the defaulted contractor's price. Exhibit A, A.F. We hold that, given the nature of this contract, further solicitation was unnecessary. Therefore, this reprocurement procedure was logical and justifiable. Based upon the above reasoning, the decision of the Contracting Officer to terminate the contractor for default and to assess the excess costs of reprocurement against the contractor is upheld. Accordingly, the contractor's appeal is denied in its entirety.