Appeal of Cassidy Printing, Inc.
Appeal dated October 25, 1983
Decision dated July 2, 1984

Contract Appeals Board
Panel 10-83


   The contractor, Cassidy Printing, Inc., has appealed a final
   decision of the U.S. Government Printing Office (GPO)
   Contracting Officer.  Pursuant to that decision, the contract
   which the contractor had with the GPO was terminated for
   default.  The appeal was filed in a timely fashion and in
   accordance with the contract's "Disputes" clause.  Article
   2-3, Contract Terms No. 1, GPO Publication 310.2, revised
   October 1, 1980.  The Contract Appeals Board has been granted
   jurisdiction over this appeal by GPO Instruction 110.10B,
   entitled "Board of Contract Appeals Rules of Practice and
   Procedure" and Contract Terms No. 1, supra.  Although the
   contractor requested a hearing, no representative of the
   contractor appeared on the scheduled date of the hearing, May
   31, 1984.  As in any case of an unexcused absence of one of
   the parties, the hearing was convened and the contractor's
   case was considered as if it had been submitted on the written
   record.  Appeal of Technical Publishing Services, Inc., GPO
   CAB 1-81, January 20, 1982.  At that time, the Appeal File
   with 19 exhibits was moved into the record and testimony was
   taken from Arthur Jacobsen, Printing Specialist, Philadelphia
   Regional Printing Procurement Office.


   By Purchase Order B5309 dated August 3, 1983, the contractor
   was awarded a contract to produce a poster, in four color
   process.  According to the specifications, proofs were to be
   submitted to the Government for approval.  After approval was
   granted, the work was to be shipped by September 20, 1983.  In
   early September, the contractor submitted a set of proofs
   which were rejected on September 8, 1983, for failing to

with the specifications as they related to the quality of proofs.
The proofs were returned to the contractor with instructions to
submit proofs that would comply with the contract's proofing
requirements.  In a Show Cause Notice dated September 19, 1983,
the Contracting Officer warned the contractor that its failure to
submit acceptable proofs would cause its performance to be
untimely and that the Government was considering terminating the
contract for default.  The contractor responded that its
performance was late because its press broke down and it had
other press work to complete.  The contractor promised to deliver
suitable proofs by September 27, 1983.  However, the GPO did not
grant any extension in the delivery date. 1/ The contractor did
not deliver the proofs by the date it promised.  By letter dated
September 28, 1983, the Contracting Officer terminated the
contract for default because of the contractor's failure to meet
the scheduled shipping date. 2/ In that letter, the contractor
was informed that it would be held accountable for any excess
costs that might arise from the reprocurement of the contracted-
for items.

In its letter, appealing the default action, the contractor
provided two excuses for its failure to comply with the contract
schedule: breakdown of a press and the need to run five other
jobs before it could run the progressive proofs.


   In cases of default terminations, the Government has the
   initial burden of proving that the contractor.had failed to
   comply with the contract requirements and that the lack of
   compliance justified a default action.  Once the default has
   been established, the burden shifts to the contractor to
   demonstrate that its noncompliance arose out of causes beyond
   the control of the contractor and without its fault or
   negligence.  The default then becomes excusable.  Where it is
   concluded that the default has not been established by the
   Government or the contractor's nonperformance was excusable,
   the termination for default is converted to a termination for
   the convenience of the Government.

In the instant case, the GPO has met its burden of proving that
the contractor defaulted on the contract.  The contract required
delivery of the posters by September 20, 1983.  The contractor
did not ship in accordance with the contract schedule.  According
to the contract's "default" clause, the GPO can terminate a
contract for default if the contractor fails to make delivery of
the supplies within the time specified by the contract or any
extension thereof.  Article 2-18(a)(l), Contract Terms No. 1,
supra.  There is nothing in the record that would indicate that
the GPO waived the requirement for timely performance by
extending the delivery date.  Moreover, the GPO did not act
improperly when it rejected the proofs on September 8, 1983, for
failing to meet the proof requirements.  The quality of the
proofs were important because the proofs were the standard to be
met by the finished product.  Exhibit 2, p. 3.  The rejected
proofs were returned to the contractor.  The contractor did not
submit another set of proofs until September 28, 1983.  Since the
contractor was required by the contract to deliver a finished
product by September 20, 1984, and did not do so, the GPO could
terminate the contract for default.

Having established that the GPO was within its contractual rights
to default the contractor, the burden shifts to the contractor to
prove that its failure to comply with the contract specifications
was excusable.  The excuses proffered by the contractor do not
justify untimely performance.  Broken machinery or the need to
perform work required by other contracts are not causes beyond
the control and without the fault or negligence of the
contractor.  Failure to have the necessary facilities or means
to.perform a contract is not such cause as would excuse untimely
delivery.  Appeal of Progress Graphics, Inc., GPO CAB 6-82, May
3, 1982; Appeal of Associated Graphics Services, Inc., GPO CAB
76-12, January 12, 1981.

The contractor also argues that it should be excused because it
had to perform work under other contracts before it could perform
the work required by this contract.  The scheduling of work is an
area that must be deemed to be within the control of a
contractor.  If the contractor has scheduled work so that it is
untimely in the production of other work, the contractor cannot
argue that its nonperformance is without its fault or negligence.
Assuming arguendo  that the GPO had unreasonably delayed in
approving or disapproving the proofs which the contractor had
submitted on September 2, 1983, the contractor might argue that
it was necessary for it to take on other work while it waited for
the requisite approvals from the GPO.  However, there is nothing
in the record to indicate that the GPO did not comply with its
contractual obligations.  The specifications allow the GPO to
withhold proofs for ten working days.  The defective proofs were
delivered to the GPO on September 2, 1983.  They were returned to
the contractor on September 8, 1983.  This was well within the
time allotted to the GPO to keep the proofs.

If the contractor ignored the risk that the proofs which it
submitted in September were defective and would have to be
corrected, leaving little time to produce the final poster in a
timely fashion, it must bear the responsibility for the decision
to schedule other work ahead of the poster contract.  Therefore,
the fact that the contractor had other jobs in its plant to which
it gave a higher priority than the work to be performed under
this contract cannot excuse untimely performance.

Based upon the above reasoning, the Board affirms the decision of
the Contracting Officer to terminate the contract, known as
Purchase Order B5309, for default.  Accordingly the contractor's
appeal is denied in its entirety.


1/ The specifications which deal with the submission of proofs
state that no additional time beyond the original production
schedule established in these specifications would be allowed for
fulfilling the requirement to provide proofs.  Exhibit 2, p. 3.

2/ The contractor did send revised proofs to the GPO which were
received on September 28, 1983.  However, the GPO determined that
the submission of this material did not meet the specifications
because the contractor did not submit the Government-furnished
copy with the proofs.  Because the Government did not have the
copy, there was nothing with which to compare the proofs in order
to determine the quality of the proofs.  Testimony of Mr.