U.S. GOVERNMENT PRINTING OFFICE BOARD OF CONTRACT APPEALS WASHINGTON, D.C. 20401 In the Matter of ) ) The Appeal of ) ) UNIVEX INTERNATIONAL ) Docket No. GPO BCA 23-90 Jacket No. 606-648 ) Purchase Order B-9708 ) DECISION AND ORDER By letter dated June 14, 1990, Univex International (Appellant or Contractor), 7325 Imperial Drive, Waco, Texas 76712, filed a timely appeal from the March 16, 1990, final decision of Contracting Officer Annamarie T. Mierson of the U.S. Government Printing Office's (Respondent or GPO or Government) Philadelphia Regional Printing Procurement Office (PRPPO), Southampton Office Park, Suite A-190, 928 Jaymore Road, Southampton, Pennsylvania 18966, terminating the Appellant's contract identified as Jacket No. 606-648, Purchase Order B-9708, for default because of the Appellant's failure to print an acceptable product meeting the requirements for a Quality Level IV job as specified in GPO's Quality Assurance Through Attributes Program, GPO Publication 310.1 (QATAP), which was incorporated by reference in the contract (R4 File, Tabs A and U).1 For the reasons which follow, the decision of the Contracting Officer defaulting the contract is hereby AFFIRMED, and that portion of the appeal is DENIED.2 However, insofar as the Contractor challenges the extent of its liability, if any, for excess reprocurement costs, that matter is REMANDED to the Contracting Officer for the submission of additional evidence. I. FINDINGS OF FACT3 1. On August 23, 1989, the Respondent awarded a contract (Purchase Order B-9708, Jacket No. 606-648) to the Appellant for the production of 605 copies of a 698-page loose-leaf book with covers, and one complete set of films, for the Department of the Navy (Navy) at a contract price of $14,418.00 (R4 File, Tabs A and B).4 Among other things, the contract specifications required: (a) the text of the book was to be printed in black ink on white latex- saturated paper (JCP O-40) trimmed to 5" x 8"; (b) the publication was to have 24 die-cut laminated tabbed dividers on white index paper (JCP K-10) trimmed to 5-3/4" x 8-1/2"; (c) the book was to have light blue tenite covers on both front and back, also trimmed to 5-3/4" x 8-1/2", with a die-cut a window on the front cover; and (d) in addition to trimming on four sides, the Contractor was to drill three round holes, and collate the two pieces of cover (R4 File, Tab A). The Purchase Order also indicates that apart from mailing labels, the Government was to furnish the Contractor with 8-1/2" x 11" camera copy for the text and 8-1/2" x 14" copy for the dividers, which would be available for pick-up by August 25, 1989 (R4 File, Tab A). However, the Appellant was told that in order to fit the textual material on a 5" x 8" page, the camera copy would have to be reduced by 65 percent and 61 percent, respectively (R4 File, Tab A). The specifications also provided that each book was to be shrink-wrapped, and delivery was to be completed by September 12, 1989 (R4 File, Tab A).5 As previously indicated, the job had to meet the Quality Level IV standards of QATAP.6 2. The record discloses that the Appellant's paper supplier, Olmsted-Kirk Paper Company, initially ordered the necessary paper stock from Georgia-Pacific Company, but was subsequently notified by the manufacturer that the grade of paper required for the contract was no longer going to be produced (R4 File, Tabs C, D and E). Although the paper was eventually purchased from an alternate source, Appleton Paper Company, because of the delay the stock was not delivered to the Contractor until September 29, 1989 (R4 File, Tab E). Consequently, the Appellant was unable to meet the original delivery date, and October 25, 1989, was established as a new shipping date (R4 File, Tab F).7 See Mierson Declaration, ¶ 5. 3. The Contractor failed to deliver the books by October 25, 1989. See Mierson Declaration, ¶ 6. Consequently, on November 2, 1989, the Respondent sent a "Show Cause Notice" to the Appellant, informing it, inter alia, that: (a) GPO was considering terminating the contract for default; (b) before a final decision was rendered, it would be necessary to determine if the failure to perform arose out of causes beyond the Appellant's control and without its fault or negligence; and (c) it was being afforded an opportunity to present, in writing, any extenuating facts bearing on the matter to the Contracting Officer within five (5) days after receipt of the notice (R4 File, Tab G). See Mierson Declaration, ¶ 6. The following day, the Appellant telephoned the PRPPO and spoke to Compliance Officer Dougherty. The Contractor informed Dougherty that it could not meet the October 25, 1989, delivery date, and asked for GPO's "help to get . . . out of it." See R4 File, Tab H; Mierson Declaration, ¶ 6. After consulting with the Navy's representative, Lisa Gallagher, the Contractor was given an extension until November 8, 1989, to ship the complete order (R4 File, Tab H). Mierson Declaration, ¶ 6. By letter dated November 6, 1989, the Appellant confirmed the new delivery date, and stated that it "presume[d] this letter will cover the show cause letter . . ." (R4 File, Tab I). Although the Appellant gave the completed books to its shipper on November 8, 1989, as a "hot rush" shipment, for some reason not disclosed in the record the Navy did not receive them until November 27, 1989 (R4 File, Tab K). See Mierson Declaration, ¶ 6.8 4. After delivery, the Navy selected a random sample of the books and inspected them. See Dougherty Declaration, ¶ 3. By "Notice of Quality Defects (Notice)" dated December 20, 1989, the Navy informed GPO that the books were unacceptable because they contained numerous printing and finishing defects, and were improperly packaged. See Dougherty Declaration, ¶ 3; Attachment 1. While noting that the defects varied with each book, the Navy said that its inspection disclosed the following defects: (a) printing which faded from light to dark across the page; (b) image areas that bled off the page; (c) shadowed images; (d) images that had been drilled through; (e) smudges; (f) "chocolate" marks on pages; (g) marks on all pages caused by not letting the ink dry; (h) missing pages; (i) upside down pages; (j) wrong paper stock; and (k) shrink-wrap torn to the extent that the books were intermingled. Id. Because of these defects, the Navy concluded that the books did not meet specifications and were unusable, and it asked for a reprinting of the entire order. Id. 5. The Notice was accompanied by three random samples of the book for GPO's inspection. See Dougherty Declaration, ¶ 3; Attachment 1. On receiving the Navy's complaint, Dougherty personally examined the samples provided, and also concluded that the job was rejectable under QATAP standards. See Dougherty Declaration, ¶ 4. In his view, "the major defects were poor type quality and uniformity as well as missing information. . . . ," and the problem with the image was "consistent with that which results when produced on a press which has a dented blanket." Id. Accordingly, on January 8, 1990, Dougherty telephoned the Appellant and spoke to Don Franklin.9 Id. In their conversation, Dougherty informed Franklin of the results of his inspection, and asked the Contractor to think about reprinting the job (R4 File, Tab L). See Dougherty Declaration, ¶ 4. 6. By letter dated January 17, 1990, Franklin wrote to Dougherty and, in effect, challenged his inspection findings (R4 File, Tab M). See Dougherty Declaration, ¶ 5. Specifically, the Appellant said, in pertinent part: After our telephone conversation . . ., I have [sic] called some of our ink and equipment vendors to discuss the problem of the alleged variation of thickness of ink placed on the sheets. I was assured by three different people that the only way to accurately read a denseometer [sic] is on a solid block of ink. There is no way to take an accurate reading on type only. If the type on the art varies from light to dark, then the thickness of the letters on the negative would also vary. This would cause the letters to appear lighter or darker on the sheet. Reducing the original art to 65% the density of the original copy would be very critical. If we had known this was going to be a critical point of this job we would have asked for the art to be re-set [sic]. See R4 File, Tab M. 7. Because the above letter did not suggest a reprint date, on January 23, 1990, the Compliance Officer wrote to Franklin and directed the Contractor to reprint the job and ship the new books no later than February 16, 1990 (R4 File, Tab N). See Dougherty Declaration, ¶ 5; Mierson Declaration, ¶ 7. As stated in his letter, Dougherty told Franklin that a reprint was necessary because: Examination of the product your firm has produced for the order referenced above reveals the following defects based on Quality Assurance Through Attributes Program standards: P-7-Type Quality and Uniformity. Density of the image varies to the extent of an average demerit level of 22.34. F-17-Information missing. Information is missing from different pages on various books. Both defects are major. Based on these test results, this product is rejected and must be reprinted in strict accordance with the specifications at no additional cost to the Government. See R4 File, Tab N. In addition to establishing a reprint date, Dougherty advised the Appellant that failure to complete the reprint on time could result in the contract being defaulted (R4 File, Tab N). See GPO Contract Terms, Contract Clauses, ¶ 20 (Default). 8. The Contractor did not reprint and deliver the books to the Navy by February 16, 1990, as directed by the Respondent. See Dougherty Declaration, ¶ 6; Mierson Declaration, ¶ 8. Accordingly, on February 21, 1990, the Respondent sent a second "Show Cause Notice" to the Appellant, directing it to respond within five days (or by February 26, 1990), or risk default of its contract (R4 File, Tab O). See Dougherty Declaration, ¶ 6; Mierson Declaration, ¶ 8. 9. The Appellant did not answer the "Show Cause Notice" within five days. However, on February 28, 1990, another representative of the Appellant, Douglas Miller, telephoned Dougherty and stated that the Contractor could not reprint the books because it was unable to retrieve the rejected publications from the Navy. See Dougherty Declaration, ¶ 6; Mierson Declaration, ¶ 9. As Miller explained in a letter he sent to Dougherty later that day: We have not yet seen examples of the stated defects. As outlined to us, they are alleged in the printed contents only and not the plastic binder covers and plastic tab Index Dividers, which are part of the set and also manufactured by us. We have attempted to pick up and return the completed books, 51 cartons, 1348 lbs., via Yellow Motor Freight, but cannot get them from the agency. If these are released to us, we will correct any defeciencies [sic] in a timely manner. See R4 File, Tab P. See also, Dougherty Declaration, ¶ 7; R4 File, Tab W. 10. Since Dougherty had discussed retrieval of the initial shipment with the Navy as part of the rejection process, he telephoned Gallagher and inquired whether, in fact, there had been any attempt to pick-up the materials. See Dougherty Declaration, ¶ 7; Mierson Declaration, ¶ 9. Gallagher checked and then told Dougherty that there was no record of such a try by anyone.10 See Dougherty Declaration, ¶ 7; Mierson Declaration, ¶ 9. She also talked with the Data Manager, Stock Control Clerk, and Receipt Control Clerk at the base, who stated that no one had come for the rejected materials (R4 File, Tabs Q and W).11 Id. In addition, the record discloses that the Appellant never contacted the PRPPO at any time about problems it might be having in retrieving the books, or to arrange for the pick-up of the rejected product. See Dougherty Declaration, ¶ 8; Mierson Declaration, ¶ 9. 11. On March 1, 1990, the Contracting Officer sought the approval of the Respondent's Contract Review Board (CRB) to terminate the contract for default (R4 File, Tab R).12 See Mierson Declaration, ¶ 10. Termination was requested because of the Appellant's "failure to reprint a rejected product" (R4 File, Tab R). CRB approval was received by the PRPPO on March 5, 1990 (R4 File, Tab R). 12. Before defaulting the contract, however, the Contracting Officer sought a second inspection of the books from GPO's QAS. See Mierson Declaration, ¶ 10. That QAS reexamination, which was conducted on March 8, 1990, confirmed that the books were rejectable, specifically for printing attribute, P-7, Type Quality and Uniformity (R4 File, Tab T).13 See MacAfee Declaration, ¶ 4; Mierson Declaration, ¶ 10. 13. Accordingly, by letter dated March 16, 1990, expressly titled "Notice of Termination," the Contracting Officer terminated the Appellant's contract for default because of its "failure to print an acceptable product [according to QATAP specifications]." See R4 File, Tab U. See also Mierson Declaration, ¶ 10. The Contracting Officer based her decision on several factors, including those listed in the relevant chapter of the PPR.14 See Mierson Declaration, ¶ 11. Specifically, she terminated the contract because: I did not believe that the contractor had adequately responded to our show cause notice within the time required, had performed any action to reprint the order within the time required, or taken any other significant steps to perform the contract in accordance with the specifications. See Mierson Declaration, ¶ 11. 14. The "Notice of Termination" also informed the Appellant that it was potentially liable for any excess reprocurement costs (R4 File, Tab U). In fact, after the contract was defaulted, the Respondent immediately resolicited the job under the same small purchase procedures, and terms and conditions, including the time allotted for performance, as the original contract. See Mierson Declaration, ¶ 13. Two offers were received-one from GMC ($24,372.00) and another from Quadra Graphics ($20,514.00). See Mierson Declaration, ¶ 13; Attachment 2. Since Quadra Graphics was the low bidder, on April 3, 1990, less than three weeks after the termination of the Appellant's contract, that company was awarded the repurchase. See Mierson Declaration, ¶ 13; Attachment 3. 15. By letter dated June 14, 1990, the Appellant timely appealed the Contracting Officer's default termination decision (R4 File, Tab V). Among other things, the Contractor's appeal letter stated, in pertinent part: The furnished artwork was incorrect. It was necessary for us to make corrections. . . . We were refused samples of the job illustrating the alleged defects. We noticed [to] you on February 28, 1990 that your complaint concerned a fraction of the complete job and in no way could have been the entirety since the binders and indexes were never faulted, but rather only the portion of the order that was produced from your incorrect artwork. Two attempts were made by us through Yellow Freight to pick up this material for return to us to effect inspection and possible replacement. Both times our carrier was refused, even after notification to your office February 28, 1990. See R4 File, Tab V. With regard to the inability of its carrier to pick-up the rejected material from the Navy, the Appellant subsequently submitted to the Board, pursuant to Rule 4(b) of the Board Rules, a letter from Irven Atkinson, Branch Manager, Yellow Freight System, Waco, Texas, to the Contractor, dated August 15, 1990, which said: This is a letter following up our earlier phone conversations regarding a pickup that you had requested we make in Philadelphia, Pa. You initially called me on February 23 and asked that Yellow Freight schedule a pickup in Philadelphia with the [Receiving] Officer, Navy Publishing & Forms Center, 5801 Tabor Ave[.], Philadelphia, P[A] 19120. After our conversation I called our city dispatcher in Philadelphia and gave him the same information. He informed me that he would make arrangements to have the freight picked up on February 23rd or the 26th. On Monday the 26th, the city dispatcher called me back and said he could not make the pickup without additional information as to where the freight could be located. He said he would need more information or someones [sic] name at the facility so they could contact them for pickup. You called me back later that day and gave me this additional info; M/F Stock Replenishment, NAVAIR STOCK. After you gave me this info, I called the city dispatcher back and passed it on to him. On February 28th the dispatcher called me back and said they had gone back to the facility and that no one could locate this shipment. On that same day I called you and advised you of the same. I am sorry for any inconvenience this might have caused, but we did try to make the pickup on 2 separate occasions. See App. Exh. A. II. ISSUES PRESENTED At the close of the prehearing conference held on April 16, 1993, the Board identified three questions as being presented by the facts in this case. See RPTC, p. 6. Those issues can be succinctly stated as follows: 1. Was it error for the Contracting Officer to default the Appellant's contract for nondelivery of the reprinted books, and reprocure them from another source, without providing the Contractor with an opportunity to cure the defects? Stated otherwise, was the default action somehow procedurally defective? 2. Was the Appellant's failure to retrieve the rejected product from the Navy prior to, and for the purpose of, reprinting the publication, due to causes beyond its control and without its fault or negligence, so that it should be excused from liability for excess reprocurement costs? See GPO Contract Terms, Contract Clauses, ¶ 20(c) (Default). Stated otherwise, can it be said that the reason for the Contractor's inability to retrieve the rejected product was the Respondent's lack of cooperation in a making arrangements for the pick-up? 3. Assuming that the Appellant is responsible for excess reprocurement costs, is it entitled to have its liability reduced by an amount equivalent to the cost of the plastic binding covers and tab dividers- the parts of the book which allegedly conformed to the contract specifications? Stated otherwise, what is the extent of the Contractor's excess cost liability in this case? III. POSITION OF THE PARTIES The Appellant asserts that while it was willing to reprint the books, the Government failed to cooperate with it toward that end. Specifically, the Contractor believes that the Respondent's refusal to supply examples of the alleged defects to the Appellant, or otherwise offer it assistance in isolating the source of problem, deprived it of any meaningful opportunity to fix the defective product. See RPTC, p. 5; Complaint. Furthermore, the Appellant contends that GPO never offered or gave it proper instructions for picking up the rejected books from the Navy, and as a consequence, they could not be retrieved for correction and redelivery.15 See RPTC, p. 5; Complaint. This was a major obstacle to reprinting the books because the Contractor wished to use the conforming binder covers and rings, and the clear plastic die-cut laminated index tab dividers, for the new copies. See Complaint. In other words, the Appellant wanted to minimize its potential losses by saving the good components and limiting the cure process to just reprinting the defective text pages, which would then be recollated, along with the nondefective index dividers, into the binders. Moreover, the Contractor thought that the reprint date established by the Respondent was coercive and unrealistic because GPO knew that it would by difficult for the Appellant to obtain the special paper stock needed for the text pages in time. See Complaint. Finally, the Appellant states that by repurchasing the defaulted book in its entirety, without making an attempt to use the conforming binders and index dividers, GPO failed to mitigate the Contractor's damages-a requirement where the Government seeks excess reprocurement costs. See RPTC, p. 5; Complaint. Accordingly, for these reasons, the Contractor submits that the default termination is in error, and should be reversed. The Respondent, on the other hand, believes that the Appellant's contract was properly terminated because the books it delivered failed to conform to the QATAP standards in all respects, including the printed text.16 See RPTC, pp. 4-5. Although the Appellant said that it had offered to correct any deficiencies "in a timely manner" and for this purpose had attempted to retrieve the books, the Navy has "categorically denied" that any one representing the Contractor contacted it about removing the rejected material from stock. See RPTC, p. 5. As for the Contractor's claim that GPO failed to mitigate its damages by utilizing the conforming binders and index dividers on the reprinted book, the Government says that it would have been too impractical and too expensive for it to expend considerable time and effort to decollate all 605 copies, extract 24 tabs from each book, and then reverse the process. See Mierson Declaration, ¶ 14. Even though this was what the Appellant probably would have done if it had reprinted the product, the cost of performing these manual tasks would have exceeded the cost of the relatively inexpensive binders and tabs, and hence was not a practical option for the Government. Id. Finally, the Contracting Officer based her decision to terminate the contract, in part, on the relevant factors listed in the PPR. See Mierson Declaration, ¶ 11. Accordingly, for these reasons, GPO asserts that the default decision was not in error, and the Contracting Officer's action should be affirmed. IV. DISCUSSION In this appeal, the Board is asked to decide whether or not the Appellant's contract was erroneously defaulted, and if the termination was proper, is the Contractor nonetheless excused from liability for excess reprocurement costs? At the outset, therefore, it is worthwhile to repeat the legal principles which apply to these issues. First, GPO's "Default" clause provides that a contracting officer may, upon written notice of default to the contractor, terminate a contract, in whole or in part, if the contractor fails to: (1) deliver the supplies or perform the required services within the time specified or any extension which may have been granted; (2) make progress on the work, so as to endanger performance of the contract; or (3) perform any of the other provisions of the contract. See GPO Contract Terms, Contract Clauses, ¶ 20(a)(1)(i),(ii),(iii). Further, where a contract is terminated for default and the work must be reprocured, the contractor will be held responsible for excess procurement costs and possible liquidated damages. GPO Contract Terms, Contract Clauses, ¶¶ 20(b), 22(d). However, the contractor is excused from paying such reprocurement costs or damages if the failure to perform or to deliver on time results from causes beyond its control and without its fault or negligence.17 GPO Contract Terms, Contract Clauses, ¶¶ 20(c), 22(e), 23. Such causes include, but are not limited to, acts of God or of the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather-but in each case, the failure to perform must be beyond the control and without the fault or negligence of the contractor. GPO Contract Terms, Contract Clauses, ¶ 20(c). See K.C. Printing Co., GPO BCA 02-91 (February 22, 1995), Slip op. at 9; Printing Unlimited, GPO BCA No. 21-90 (November 30, 1993), Slip op. at 16, 1993 WL 516844; Chavis and Chavis Printing, GPO BCA 20-90 (February 6, 1991), Slip. op. at 11, 1991 WL 439270. Where the failure to perform is caused by the default of a supplier or subcontractor, the cause of the default must be beyond the control of both the contractor and subcontractor, and without the fault or negligence of either, in order for the contractor not to be liable for any excess costs for failure to perform, unless the subcontracted supplies or services could have been secured from other sources in sufficient time to meet the required delivery schedule. GPO Contract Terms, Contract Clauses, ¶ 20(d). See K.C. Printing Co., supra, Slip op. at 10; Chavis and Chavis Printing, supra, Slip op. at 11. Second, a default termination is a drastic action which may only be taken for good cause and on the basis of solid evidence.18 See K.C. Printing Co., supra, Slip op. at 10; Shepard Printing, supra, Slip op. at 10-11; R.C. Swanson Printing and Typesetting Co., GPO BCA 31-90 (February 6, 1992), Slip op. at 25, 1992 WL 487874, aff'd, Civil Action No. 92-128C (U.S. Claims Court, October 2, 1992);19 Stephenson, Inc., supra, Slip op. at 20 (citing, Mary Rogers Manley d/b/a Mary Rogers Real Estate, HUDBCA No. 76-27, 78-2 BCA ¶ 13,519; Decatur Realty Sales, HUDBCA No. 75-26, 77-2 BCA ¶ 12,567). Consequently, the Government has the burden of proving the basis for the default, while the contractor has the burden of showing that its failure to perform was excusable. See K.C. Printing Co., supra, Slip op. at 10; Shepard Printing, supra, Slip op. at 11; R.C. Swanson Printing and Typesetting Co., supra, Slip op. at 28; Chavis and Chavis Printing, supra, Slip op. at 11. Accord, Lisbon Contractors v. United States, 828 F.2d 759 (Fed. Cir. 1987)); Switlik Parachute Co. v. United States, 216 Ct. Cl. 362 (1978); J.F. Whalen and Co., AGBCA Nos. 83-160-1, 83-281-1, 88-3 BCA ¶ 21,066; B. M. Harrison Electrosonics, Inc., ASBCA No. 7684, 1963 BCA ¶ 3,736. If the Government fails to meet its burden of proof, then the termination is converted into one of convenience and the contractor is allowed to recover for the work performed. GPO Contract Terms, Contract Clauses, ¶ 20(g). Cf. K.C. Printing Co., supra, Slip op. at 11; Stephenson, Inc., supra, Slip op. at 17-18; Chavis and Chavis Printing, supra, Slip op. at 9. Third, where the default termination is based on untimely performance, as in this case the failure to deliver the corrected books by the established reprint date, the contractor's burden of proof is four-fold: (1) to prove affirmatively that the delay was caused by or arose out of a situation which was beyond the contractor's control and that it was not at fault or negligent; (2) to show that performance would have been timely but for the occurrence of the event which is claimed to excuse the delay; (3) to show that it took every reasonable precaution to avoid foreseeable causes for delay and to minimize their effect; and (4) to establish a precise period of time that performance was delayed by the causes alleged. See K.C. Printing Co., supra, Slip op. at 11; Chavis and Chavis Printing, supra, Slip op. at 12 (and cases cited therein). This burden must be carried by substantial evidence-unsupported reasons by way of explanation are not enough-and the contractor must also show that the delay in contract performance was due to unforeseeable causes beyond its control and without any contributory negligence on its part. See K.C. Printing Co., supra, Slip op. at 11; Chavis and Chavis Printing, supra, Slip op. at 12-13 (and cases cited therein). Finally, a default termination is a discretionary act which can be challenged on an abuse of discretion standard. See K.C. Printing Co., supra, Slip op. at 12; Graphics Image, Inc., supra, Slip op. at 24-28; Shepard Printing, supra, Slip op. at 12. Accord, Darwin Construction Co., Inc. v. United States, 811 F.2d 593 (Fed. Cir. 1987); Quality Environment Systems v. United States, 7 Cl. Ct. 428 (1985); Jamco Constructors, Inc., VABCA Nos. 3271, 3516T, 94-1 BCA ¶ 26,405, reconsid. denied, 94-2 BCA ¶ 26,792; Walsky Construction Co., ASBCA No. 41541, 94-1 BCA ¶ 26.264, reconsid. denied, 94-2 BCA ¶ 26,698. The burden is on the contractor to prove abuse of discretion. See K.C. Printing Co., supra, Slip op. at 12; Shepard Printing, supra, Slip op. at 12. Accord, Kit Pack Co., Inc., ASBCA No. 33135, 89-3 BCA ¶ 22,151; Lafayette Coal Co., ASBCA No. 32174, 89-3 BCA ¶ 21,963. Applying these principles to the facts in the record, the Board reaches the following conclusions: A. Although not required to, the Contracting Officer did provide the Appellant with an opportunity to cure the defects before defaulting the contract; i.e., by directing it to reprint the books. When the Contractor failed to deliver the corrected books by the established delivery date for the reprints, the Contracting Officer could, without more, default the Appellant's contract, and reprocure the product from another source. In short, the default action is not procedurally defective. 1. When the Contracting Officer terminated the contract for a "failure to print an acceptable product [according to QATAP specifications]" (R4 File, Tab U), she was clearly defaulting the Appellant for a failure to "[d]eliver the supplies or to perform the services within the time specified or any extension, thereof;. . .". GPO Contract Terms, Contract Clauses, ¶ 20(a)(1)(i).20 The Contracting Officer expressly said so in her affidavit. See Mierson Declaration, ¶ 11 ("I did not believe that the contractor . . . had performed any action to reprint the order within the time required, . . .".). The Appellant does not dispute the Contracting Officer's finding in that regard. Rather, the Contractor contends that the Contracting Officer's termination action was procedurally defective because she failed to issue a "Cure Notice" or otherwise afford it an opportunity to correct the performance problem before the contract was defaulted. See RPTC, p. 5; Complaint. The Appellant is mistaken. As a general rule, no "cure notice" is required where a contract is to be terminated because of the contractor's failure to timely deliver or perform. See K.C. Printing Co., supra, Slip op. at 13; B. P. Printing and Office Supplies, GPO BCA 22-91 (February 5, 1993), Slip op. at 12; Shepard Printing, supra, Slip op. at 13; Stephenson, Inc., supra, Slip op. at 19-20. Accord, Chambers-Thompson Moving and Storage, Inc., ASBCA No. 43260, 93-3 BCA ¶ 26,033, at 129,408; Sonico, Inc., ASBCA Nos. 31110, 34269, 89-2 BCA ¶ 21,611. 2. A limited exception to the general rule exists when a contractor has timely shipped nonconforming goods which deviate from the specifications in only minor respects. See, Radiation Technology, Inc. v. United States, supra. Under the so-called "substantial compliance" doctrine, a defaulting contractor is afforded an opportunity, by operation of law, to correct minor defects in shipments to the Government.21 Cf. Hurt's Printing Co., Inc., supra, Slip op. at 17, 1994 WL 275098; B. P. Printing and Office Supplies, supra, Slip op. at 12; Stephenson, Inc., supra, Slip op. at 24, 48-54. Also cf. Air, Inc., supra, 91-1 BCA at 117,112. However, the "substantial compliance" doctrine clearly does not apply here. 3. First, we are not dealing with a situation involving timely delivery of supplies which are subsequently found to be nonconforming; indeed, untimeliness has been the mark of this Contractor throughout the contract.22 Instead, the Contracting Officer only resorted to default when there was no delivery at all of the reprinted books by February 16, 1990, the date established by the Respondent in a final effort to secure a satisfactory product for the Navy (R4 File, Tab N). See GPO Contract Terms, Contract Clauses, ¶ 14(h) (Inspections and Tests) ("If the contractor fails to promptly remove, replace, or correct rejected supplies that are required to be removed or to be replaced or corrected, the Government may . . . (2) terminate for default as provided in article 20 "Default". [Emphasis added.]). 4. Second, the two defects found in the Appellant's books-variation in the density of the image and missing information-are major, not minor, discrepancies under QATAP (R4 File, Tab N).23 Under the PPR, the Contracting Officer is the only person authorized to make final determinations on whether products submitted by a contractor conform to contract specifications.24 See PPR, Chap. XIII, Sec. 1, ¶ 4.f. See Sterling Printing, Inc., GPO BCA 20-89 (March 28, 1994), Slip op. at 34-35, fn. 46, 1994 WL 275104, reconsid. denied, GPO BCA 20-89 (July 5, 1994), 1994 WL 377592, second motion for reconsid. denied, GPO BCA 20-89 (August 12, 1994); Hurt's Printing Co., Inc., supra, Slip op. at 21-22. Here, the Contracting Officer's initial conclusion that the books contained major defects was confirmed by the results of a second inspection performed by the QAS (R4 File, Tab T). See Mierson Declaration, ¶ 10; MacAfee Declaration, ¶ 4. There is no credible evidence in the record which would indicate that the Contracting Officer's judgment was somehow erroneous or flawed. Accordingly, there is no basis to disturb her decision, and the Board will let it stand. See Printing Unlimited, supra, Slip op. at 21-22; Stabbe Senter Press, GPO BCA 13-85 and 19-85 (May 12, 1989), Slip op. at 53, 1989 WL 384977. 5. Finally, the Board cannot ignore the facts in this case which show that despite the general rule, the Appellant was offered an opportunity to cure the defects by reprinting the order (R4 File, Tab N). See Hurt's Printing Co., Inc., supra, Slip op. at 21-22; Shepard Printing, supra, Slip op. at 14. Where, as here, a contractor has already been given a reasonable opportunity to correct the discrepancies in its product, it may not later be heard to say that the "substantial compliance" rule entitles it to a second chance. See Hurt's Printing Co., Inc., supra, Slip op. at 22 (citing, Electro-Neutronics, Inc., ASBCA No. 12947, 71-2 BCA ¶ 8,961); Shepard Printing, supra, Slip op. at 14. Accordingly, even if Radiation Technology applied in this case, when GPO gave the Appellant an opportunity to cure the defects by reprinting the books, it was relieved of any further responsibility under the "substantial compliance" doctrine. 6. In summary, the record evidence shows that: (a) the Appellant's original shipment of books was found to contain major defects as defined by QATAP; (b) the Respondent afforded the Contractor an opportunity to correct the problem by directing it to reprint the publication; (c) the Contractor did not reprint and ship the books by the date established by the Contracting Officer; (d) the Appellant was given a chance to explain its failure to perform by the PRPPO's issuance of a "Show Cause Notice";25 and (e) the contract was not terminated until the Contractor's "show cause" response was received and considered by the Contracting Officer. On these facts, the Board concludes that the Contracting Officer met all of her responsibilities under the law and GPO's regulations prior to defaulting the contract, and thus there is no procedural error in this case. Accordingly, the Appellant's contentions to the contrary are without merit. See K.C. Printing Co., supra, Slip op. at 14; Shepard Printing, supra, Slip op. at 14; B. P. Printing and Office Supplies, supra, Slip op. at 15; Chavis and Chavis Printing, supra, Slip op. at 13. B. The Respondent's failure to make arrangements for the Appellant to retrieve the rejected product from the Navy was not such conduct which would amount to a breach of its implied duty to cooperate with the Contractor in the performance of the contract. Thus, the Appellant has not shown that its failure to perform arose from causes beyond its control and without its fault or negligence. 1. The nub of the Appellant's position on the merits is that it should be excused from responsibility for nonperformance because: (a) the Respondent refused to supply examples of the alleged defects or otherwise offer help in isolating the source of the problem, despite the Contractor's request; and (b) GPO never gave the Appellant proper instructions for picking up the rejected books from the Navy. See RPTC, p. 5; Complaint. The Contractor argues that the Government's lack of assistance in the latter regard was a particular hinderance since it wished to reuse the original binder covers, rings and clear plastic die-cut laminated index tab dividers for the reprints. These assertions of the Appellant's amount to an allegation that the Government failed to cooperate with it in the performance of the contract. 2. A well-settled principle states that in every public contract there is an implied affirmative obligation on the part of the Government that it will do whatever is necessary to enable the contractor to perform.26 See Hurt's Printing Co., Inc., supra, Slip op. at 24; Stephenson, Inc., supra, Slip op. at 38-39 (citing Nanofast, Inc., supra; The Kehm Corp. v. United States, 119 Ct. Cl. 454, 93 F.Supp. 620 (1950); United States v. Speed, 75 U.S. (8 Wall.) 77 (1868)). Under this doctrine, the Government will be held liable for breaching its implied duty to cooperate if it wrongfully fails or refuses to take some action, within its control, which is essential for the contractor's performance. See Hurt's Printing Co., Inc., supra, Slip op. at 24; Stephenson, Inc., supra, Slip op. at 39. Where such a breach occurs, the contractor has a legal right to avoid the contract, is discharged from its duty to perform, and is relieved of the default termination and its consequences. See Malone v. United States, 849 F.2d. 1441, 1446 (Fed. Cir. 1988). In most cases applying this principle, there is a clear nexus between the Government's breaching conduct and the performance period itself. See e.g., Maitland Brothers Co. and Maitland Brothers Co. and St. Paul Fire and Marine Insurance Co., ASBCA Nos. 30,089, 30,764, 31,032, 32,071, 32,605, 34,659, 90-1 BCA ¶ 22,367; Singleton Contracting Corp., GSBCA No. 8,552, 90-1 BCA ¶ 22,298; G. W. Galloway Co., ASBCA Nos. 17,436, 17,723, 17,836, 17,911, 18,324, 77-2 BCA ¶ 12,640. Moreover, the Government's liability also depends on the reasonableness of its conduct under the circumstances, see, PBI Electrical Corp. v. United States, 17 Cl. Ct. 128 (1989); Ben C. Gerwick, Inc. v. United States, 152 Ct. Cl. 69, 285 F.2d 432 (1961); John McCabe, ASBCA No. 36958, 90-2 BCA ¶ 22,785; Tolis Cain Corp., DOTCAB No. 72-2, 76-2 BCA ¶ 11,954, and whether that conduct has harmed the contractor, see Commerce International Co. v. United States, 167 Ct. Cl. 529, 338 F.2d 81 (1964); Toombs & Co., ASBCA No. 34590, 91-1 BCA ¶ 23,403. 3. No detailed survey of the cases involving the Government's duty to cooperate with a contractor is necessary here. However, it should be noted that a violation of the duty to cooperate can occur if an agency fails to help solve a problem which has arisen during contract performance, see e.g., Hardrives, Inc., IBCA No. 2319, 94-1 BCA ¶ 26,267; James R. Lowe, Inc., ASBCA No. 42026, 92-2 BCA ¶ 24,835, reconsid. denied, 93-1 BCA ¶ 25,516; Robert R. Marquis, Inc., ASBCA No. 38438, 92-1 BCA ¶ 24,692; Pittsburgh-Des Moines Corp., EBCA No. 314-3-84, 89-2 BCA ¶ 21,525, or provide the contractor with pertinent information, see e.g., Spectrum Leasing Corp., GSBCA Nos. 7,347, 7,379, 7,425-27, 90-3 BCA ¶ 22,984; Ballenger Corp., DOTCAB No. 74-32, 84-1 BCA ¶ 16,973, modified on other grounds, 84-2 BCA ¶ 17,277; Hardie-Tynes Manufacturing Co., ASBCA No. 20,582, 76-2 BCA ¶ 11,972. On the other hand, as this Board has held, the Government has no obligation to provide assistance where the contractor could have resolved the problem on its own. See Professional Printing of Kansas, Inc., GPO BCA 02-93 (May 19, 1995), Slip op. at 81, fn. 83. Accord Moore Mill & Lumber Co., AGBCA 87-172-1, 90-3 BCA ¶ 23,111; John S. Vayanos Contracting Co., PSBCA No. 2317, 89-1 BCA ¶ 21,494. Applying these principles in this case, the Board finds no basis for holding that the Respondent breached its implied duty of cooperation with the Appellant's performance. 4. First, as already discussed, before defaulting the contract, the Respondent tested the product twice in order to confirm the Navy's complaint that the books contained major defects under QATAP, notified the Appellant of the deficiencies involved (poor type quality and missing information) as well as the probable source of the problem (a press with a dented blanket), and afforded the Contractor ample opportunity to correct the defects by reprinting the books.27 See Stephenson, Inc., supra, Slip op. at 42-44 (the Board rejected the contractor's breach claim where the record showed that the defects were "critical," not "minor," and the contractor was, in fact, given a chance to repair the books, but was unable to do so within a reasonable time). Cf. Nanofast, Inc., supra, 69-1 BCA at 35,049 (a default for defects in delivered equipment was improper because there was no evidence that the Government actually tested the equipment, and moreover, the Government refused to discuss the defects with the contractor and prohibited any correction or replacement).28 The fact that the books were not delivered by February 16, 1990, the reprint date established by the Respondent, is the fault of the Appellant, whose posture throughout has been one of delay and circumvention. Instead of complying with the Government's reprint request, the Appellant first challenged the Government's inspection findings, and then conditioned curing the problem on the recovery of the rejected materials (R4 File, Tabs M, N and P). Indeed, even its indefinite promise to reprint the books "in a timely manner" was not conveyed to the Respondent until February 28, 1990, nearly two weeks after the date established for completion of performance (R4 File, Tab P). Whatever the Appellant's intention, its conduct clearly conveys the impression that even if the defects had been minor it was not prepared to cure the problem within in a reasonable time. See Stephenson, Inc., supra, Slip op. at 46-47 (the contractor's offer to reprint the defective books was made too late to meet the needs of the customer- agency). Furthermore, while the Contractor's conduct may not amount to an anticipatory breach of the contract,29 it can hardly be said that it was acting with the "diligence" required to meet its obligations under the "Disputes" clause. GPO Contract Terms, Contract Clauses, ¶ 5(d) (Disputes) ("Pending final decision a dispute hereunder, the contractor shall proceed diligently with performance in accordance with the Contracting Officer's decision."). See Sterling Printing, Inc., supra, Slip op. at 36, 44, fn. 51; Nor Cal Trade School of Offset Printing, GPO BCA 1-85 (September 12, 1986), Slip op. 8-9, 1986 WL 181455. Accord Twigg Corp, supra, 93-1 BCA at 126,157-58. Contrary to what the Appellant might believe, the duties and responsibilities set forth in a Government contract are mutual; they are not a "one-way street" flowing only from the Government to the Contractor. See Malone v. United States, supra, 849 F.2d. at 1445 (obligation of good faith and fair dealing); John S. Vayanos Contracting Co., supra, 89-1 BCA at 108,294. 5. Second, there is no merit to the Appellant's contention that GPO's failure to give it proper instructions for retrieving the rejected books from the Navy somehow also breached the Government's implied duty of cooperation. The principal reason the Contractor wanted to recover the original shipment was so that it could reuse the nondefective plastic binder covers and index tabs to reduce its reprint costs. See R4 File, Tab P; Complaint. However, such a purpose was clearly for the convenience of the Appellant and was not essential for performance of the reprint. See Hurt's Printing Co., Inc., supra, Slip op. at 24 (Government action or inaction constituting breach must be essential for the contractor to perform); Stephenson, Inc., supra, Slip op. at 39. Furthermore, while the Navy had a procedure governing the removal of material from the base,30 there is absolutely no evidence that GPO knew of that procedure, nor has the Appellant attempted to present such proof. In order to find a cooperation breach based on a failure to pass along instructions for picking up the rejected material, some evidence of knowledge of the proper procedure by the Respondent is required; anything less is pure speculation. Regardless, the Appellant's own evidence undermines its position on this issue because Yellow Freight's letter shows that the Contractor first made arrangements with its carrier to retrieve the rejected material on February 23, 1990, seven days after the reprints were required to be shipped to the Navy.31 See App. Exh. A. See also Joseph J. Bonavire Co., GSBCA No. 4819, 78-1 BCA ¶ 12,877 (default was proper because the contractor's failure to clarify the delivery instructions with his supplier resulted in the required materials being delivered to the wrong location and caused a delay which jeopardized performance). Thus, even if the Appellant had recovered the rejected books, it is clear that timely performance of the contract was no longer possible. See John S. Vayanos Contracting Co., supra, 89-1 BCA at 108,294 (no evidence that the contractor would have performed the contract on time even if it had received a requested contract modification and express ruling from the Government). 6. Finally, it has not escaped the Board's notice that the Appellant missed at least three other delivery dates prior to February 16, 1990-i.e., September 12, 1989, October 25, 1989, and November 8, 1989-and was technically in default of the contract on those occasions. Consequently, the Respondent could have exercised its right to terminate the contract at any one of those points, but it withheld such a drastic action and allowed continued performance by the Contractor. Thus, all of the evidence of record compels the conclusion that the Respondent, instead of failing to cooperate, as the Appellant alleges, "bent over backwards" to provide the Contractor with every fair and reasonable opportunity to complete the contract. See Stephenson, Inc., supra, Slip op. at 47. Cf. Freeway Ford Truck Sales, Inc., GSBCA No. 10662, 93-3 BCA ¶ 26,019; S.T. Research Corp., ASBCA No. 36000, 92-2 BCA ¶ 24,838. That the Appellant was not successful cannot be attributed to the Government. See Hurt's Printing Co., Inc., supra, Slip op. at 28; Stephenson, Inc., supra, Slip op. at 47. 7. Taking all of the evidence into consideration, the Board concludes that the Appellant has not met its burden of proof with respect to excusing its failure to make a timely shipment of the reprinted books. See K.C. Printing Co., supra, Slip op. at 18; Hurt's Printing Co., Inc., supra, Slip op. at 29; Chavis and Chavis Printing, supra, Slip op. at 15. Accord Johnson Textile and Plastics Co., ASBCA No. 25985, 84-2 BCA ¶ 17,467; Affiliated Metal Products Co., ASBCA No. 15567, 71-2 BCA ¶ 8,947. On this record, the Contractor's case is essentially a collection of unverified assertions amounting to little more than argument, which standing alone cannot substitute for proof. Cf. Reese Manufacturing, Inc., ASBCA No. 35144, 88-1 BCA ¶ 20,358. Indeed, the Board has never allowed such unsubstantiated contentions to form the basis for recovery. See B & B Reproductions, GPO BCA 09-89 (June 30, 1995), Slip op. at 39; Hurt's Printing Co., Inc., supra, Slip op. at 29; Printing Unlimited, supra, Slip op. at 12; Stephenson, Inc., supra, Slip op. at 57. Accord Singleton Contracting Corp., GSBCA No. 8548, 90-2 BCA ¶ 22,748; Tri- State Services of Texas, Inc., ASBCA No. 38019, 89-3 BCA ¶ 22,064)); Gemini Services, Inc., ASBCA No. 30247, 86-1 BCA ¶ 18,736. Accordingly, the Board concludes that under the circumstances of this case, the Contracting Officer was justified in terminating the contract for default, and her decision is affirmed. C. Although the Appellant is potentially liable for excess reprocurement costs, the Board is unable to determine the extent of that liability on the state of this record. 1. The last issue concerns the scope of the Appellant's liability for excess reprocurement costs, if any, and its claim that by reprocuring the rejected book in toto-plastic binding covers, tab dividers, and all-GPO failed to mitigate the Contractor's damages, as required by law. See RPTC, p. 5; Complaint. The Respondent believes that repurchasing the publication without recovery of the covers and tabs was entirely proper under the circumstances. See Mierson Declaration, ¶ 14. However, for the reasons which follow, the state of this record prevents the Board from resolving the parties' dispute. 2. Recently, in K.C. Printing, Co., the Board summarized the legal principles governing questions concerning excess reprocurement costs: The assessment of excess reprocurement costs is considered a Government claim. See Sterling Printing, Inc., supra, [Slip op.] at 50-51 (and cases cited therein). Consequently, the Government has the burden of demonstrating the propriety of the repurchase and proving its entitlement to the amount of excess costs it claims. Id., [Slip op.] at 51 (and cases cited therein). In doing so, the Government must satisfy five criteria to establish an entitlement to recovery against a defaulting contractor, namely, it must show that: (a) the reprocurement contract was performed under substantially the same terms and conditions as the original contract; (b) it acted within a reasonable time following default to repurchase the supplies; (c) it employed a reprocurement method which would maximize competition under the circumstances; (d) it obtained the lowest reasonable price; and (e) the work has been completed and final payment made so that the excess costs assessment is based upon liability for a sum certain. [Footnote omitted.] Id., [Slip op.] at 52-53 (and cases cited therein). Furthermore, the Government claim must be supported by evidence in the record as to each element of the claim. Id., [Slip op.] at 53 (and cases cited therein). Failure to satisfy even one criterion may result in a reduction of the excess costs claimed. Id., [Slip op.] at 53-54 (and cases cited therein). See K.C. Printing, Co., supra, Slip op. at 18-19. [Original emphasis.] Whether the Government's repurchase was improper, and if so, what is the amount of reasonable excess costs under the circumstances, are questions of fact. See K.C. Printing Co., supra, Slip op. at 19, fn. 20; Sterling Printing, Inc., supra, Slip op. at 50 (citing, Cable Systems and Assembly Company, ASBCA No. 17844, 73-2 BCA ¶ 10,172, at 47,892). 3. However, before the Board will apply these rules to the specific facts of a particular case, it must be satisfied that the controversy is justiciable. As explained in Sterling Printing, Inc., the Board's lead case on the matter of excess costs: Thus, the usual practice when a defaulted contractor appeals from the termination decision is for the Board to look at the excess reprocurement cost issue as well, provided that question is ripe for consideration; i.e., such costs have been assessed. See Sterling Printing, Inc., supra, Slip op. at 48. [Original emphasis.] Typically, evidence of assessment in the appeal record consists of something in writing, either a memorandum or a letter, from the Contracting Officer to GPO's Financial Management Service (FMS) asking it to recover the amount of excess costs, see e.g., K.C. Printing, Co., supra, Slip op. at 3, 5, or to the defaulted contractor notifying it that excess reprocurement costs would be deducted from its account, see e.g., Sterling Printing, Inc., supra, Slip op. at 17-18.32 4. An examination of the record here discloses no such proof of assessment. The only evidence presented by the Respondent in the case file which pertains to the reprocurement is: (a) a statement from the Contracting Officer that she immediately resolicited the job under the same terms, conditions and small purchase procedures, as the original contract; (b) the bid abstract for the repurchase showing offers from GMC and Quadra Graphics; and (c) a copy of the reprocurement purchase order. See Mierson Declaration, ¶ 13; Attachments 2 and 3. There is nothing in the record to indicate that the FMS was informed of the default and asked to recover the amount of excess reprocurement costs, or that the Contractor was notified it that such excess costs would be deducted from its account. Indeed, the record is even devoid of any affirmative evidence showing that the Appellant was notified that the contract had been reawarded, and that it was liable for the excess reprocurement costs. Although the Contractor's allusion to such costs in its Complaint, where they are referred to as a "fine,"33 leads the Board to suspect this was so, "it cannot substitute that presumption for the hard evidence which the Government was required to produce in this litigation." See Sterling Printing, Inc., supra, Slip op. at 82. Without proof that excess reprocurement costs were assessed, and in what amount, that issue is not "ripe for consideration." Id., Slip op. at 48. Therefore, the Board will remand the case to the Contracting Officer for the submission of further evidence on the question of excess costs in accordance with the Order below.34 See R.C. Swanson Printing and Typesetting Company, supra, Slip op. at 52-53, fn. 28. ORDER Considering the record as a whole, the Board finds and concludes: (1) the Appellant was offered an opportunity to cure the defects before the contract was terminated and the default was not procedurally defective; and (b) the Respondent did not breach its implied duty to cooperate with the Contractor in the performance of the contract in this case. Thus, the Appellant has not shown that its failure to perform arose from causes beyond its control and without its fault or negligence. THEREFORE, the Contracting Officer's decision terminating the Appellant's contract for default is hereby AFFIRMED, and the appeal is DENIED. With respect to the issue of excess reprocurement costs, the Board is unable to determine the extent of the Appellant's liability on the state of this record. THEREFORE, the appeal is REMANDED to the Contracting Officer for the submission of additional evidence on that question, including, inter alia, proof that such costs were assessed against the Appellant. FURTHERMORE, the Contracting Officer shall submit such proof to the Board within 30 days from the date of receipt of this Decision and Order. It is so Ordered. July 31, 1995 STUART M. FOSS Administrative Judge _______________ 1 The Contracting Officer's appeal file, assembled pursuant to Rule 4 of the Board's Rules of Practice and Procedure, was submitted to the Board on July 18, 1990. GPO Instruction 110.12, Subject: Board of Contract Appeals Rules of Practice and Procedure, dated September 17, 1984, Rule 4(a) (Board Rules). It will be referred to herein as the R4 File, with an appropriate Tab letter also indicated. The R4 File contains 23 documents identified as Tab A through Tab W. 2 By letter dated July 24, 1990, the Appellant advised the Board that it had selected the optional Accelerated Procedure, and desired a hearing on its appeal. Board Rules, Rules 8, 12.1(b), 12.3, and 17 though 25. However, numerous delays have characterized this case from the beginning. For example, although the Board docketed the Contractor's appeal letter on June 15, 1990, an agency reorganization soon afterward resulted in the reassignment of the Board's only Administrative Judge to another senior position within GPO, and a change in the composition of the Board. Consequently, for administrative reasons the matter was held in abeyance for nearly two years. Furthermore, there were four postponements in the dates set by the Board for a prehearing telephone conference before one was finally conducted on April 16, 1993. See Report of Prehearing Telephone Conference, dated June 4, 1993, p. 1 (RPTC). During the conference, the Appellant withdrew its Accelerated Procedure election because it was no longer feasible to resolve the dispute within the time limits established for that optional procedure under the Board Rules. See RPTC, p. 2, fn. 1. Moreover, while the Board scheduled this matter for a hearing, as requested by the Contractor, because the prehearing conference disclosed material disputes of fact, see RPTC, p. 6, the parties subsequently filed a joint motion, which the Board granted, asking it to decide the appeal without a hearing on the basis of the existing record and any supplemental affidavits, documents, and briefs which they might file. See Order Granting Joint Motion For Submission Without a Hearing, dated July 16, 1993. Accordingly, even though the Appellant initially elected the optional Accelerated Procedure, this matter has been processed under the Board's regular procedure for handling cases submitted on the record without a hearing. Board Rules, Rule 11. See, Universal Printing Co., GPO BCA 09-90 (June 22, 1994), Slip op. at 2, fn. 3, 1994 WL 377586; McDonald & Eudy Printers, Inc., GPO BCA 06-91 (May 6, 1994), Slip op. at 1, fn. 2, 1994 WL 377581. 3 The record on which this decision is based consists of: (a) the Appellant's Notice of Appeal, dated June 14, 1990; (b) the R4 File; (c) the Appellant's Complaint, dated July 24, 1990; (d) the Appellant's letter, dated August 15, 1991, submitting additional information in accordance with Rule 4(b) of the Board Rules, namely correspondence from Yellow Freight System, Inc. to the Contractor, dated August 15, 1990 (hereinafter App. Exh. A); (e) the Respondent's Answer, dated August 27, 1990; (f) the Report of Prehearing Telephone Conference, dated June 4, 1993; (f) the Appellant's letter, dated June 15, 1993, clarifying a statement made at the prehearing conference; and (g) the Respondent's letter, dated July 12, 1993, enclosing declarations from Contracting Officer Mierson, the PRPPO Compliance Officer, Arthur Dougherty, and Printing Specialist Jeff D. MacAfee of GPO's central office Quality Assurance Section (QAS) (hereinafter referred to as the Mierson, Dougherty, and MacAfee Declarations, respectively). Board Rules, Rule 13(a). The facts, which are essentially undisputed, are recited here only to the extent necessary for this decision. 4 The record discloses that the Appellant was one of five (5) contractors submitting bids on the contract (R4 File, Tab B). The second low offeror was Quadra Graphics with a bid of $16,736.00 (R4 File, Tab B). 5 The record shows that the Contractor was to ship 411 copies to the Navy in Philadelphia, and 192 copies to 41 different Navy addresses (R4 File, Tab A). The remaining two copies were samples which were to be sent to the Navy in Warminster, Pennsylvania, along with the original negatives (R4 File, Tab A). 6 In addition to QATAP, the contract was also governed by applicable articles of GPO Contract Terms, Solicitation Provisions, Supplemental Specifications, and Contract Clauses, GPO Publication 310.2, effective December 1, 1987 (Rev. 9-88) (GPO Contract Terms) (R4 File, Tab A). 7 The Government agreed to the new delivery date as part of a bilateral resolution of another problem involving the contract. As indicated, the Purchase Order called for reductions in the differing camera copy provided to the Contractor of 65 percent and 61 percent, respectively (R4 File, Tab A). However, the record shows that the Appellant received some copy marked with instructions for a 75 percent reduction instead, which it discovered could not be accommodated on the page (a further reduction to 65 percent was required to fit the sheet perfectly) (R4 File, Tabs D and E). See Mierson Declaration, ¶ 5. To offset its failure to meet the contract due date caused by the delay in the receipt of the paper stock, and by way of consideration to establish a new delivery date, the Appellant offered to produce the new films at its own expense (R4 File, Tab D). The Government accepted this offer. See Mierson Declaration, ¶ 5. 8 The record also shows that on or about November 20, 1989, nearly two weeks after the revised delivery date had passed, the Navy asked the PRPPO to find out what had happened to the shipment (R4 File, Tab J). Accordingly, the Compliance Officer called the Appellant, who placed a tracer with its shipper, and reported back that the books were in Philadelphia and should be delivered on November 21, 1989 (R4 File, Tab J). Despite the fact that the Appellant missed all three due dates established under the contract in this case (September 12, 1989, October 25, 1989, and November 8, 1989), the Respondent, in effect, waived its right to default the Contractor on those occasions, which could have been done without a "Cure Notice." See Shepard Printing, GPO BCA 23-92 (April 29, 1993), Slip op. at 13, 1993 WL 526848; Stephenson, Inc., GPO BCA 2-88 (December 20, 1991), Slip op. at 19-20, 1991 WL 439274; GPO Contract Terms, Contract Clauses, ¶ 20(a) (2). 9 The Appellant recalls this conversation as taking place on January 9, 1990 (R4 File, Tab M). 10 The record indicates that the Navy facility in question is a tightly secured area, and any persons attempting to gain entry are required to sign-in at the guard posts. See Mierson Declaration, ¶ 9. 11 The record shows that the Navy has a specific procedure which must be followed before materials can be removed from the facility. In this case, the correct procedure was: (a) the Contractor notifies GPO when it is ready to pick-up the books from the Navy; (b) GPO then telephones its Navy contact to make arrangements for the pick-up; (c) the Navy contact in turn telephones the activity Data Manager; (d) the Data Manager sends a letter to Stock Control requesting a release of the books from stock; (e) the Stock Control Clerk notifies Receipt Control Clerk that the Appellant would be picking up the rejected order and to have it ready; and (f) the Contractor picks up the rejected books from the Receipt Control Clerk. See R4 File, Tab W. These steps were never followed. Id. 12 Under the Respondent's printing procurement regulation, the Contracting Officer must submit a proposal to terminate a contract for default to the CRB for its review and concurrence. See, Printing Procurement Regulation, GPO Publication 305.3 (September 1, 1988), Chap. I, Sec. 10, ¶ 4.b.(i) (PPR). See also, Hurt's Printing Co., Inc., GPO BCA 27-91 (January 24, 1994), Slip op. at 7, fn. 10, 1994 WL 275098; Graphics Image, Inc., GPO BCA 13-92 (August 31, 1992), Slip. op. at 9, fn. 10, 1992 WL 487875. 13 The inspection was conducted by MacAfee, who stated that he proceeded as follows: "Prior to starting the inspection, I consulted MIL-STD-105D (Military Standard Sampling Procedures and Tables for Inspection by Attributes). According to MIL- STD-105D, since the size of the printing was 605 [copies], I would have to inspect from a sample size of 16. From the 16 copies sent by the Philadelphia Regional Office, I randomly pulled books and began measuring the type and quality with a Print Contrast Meter (PCM). I would take three measurements with the PCM, mark the results on the page, and average the three results. [Citation omitted.] I also had the original camera copy which had been furnished by the Government to the contractor. Under MIL-STD-105D, only five defects are required to reject the product. After finding five defects, I discontinued [the] inspection and concluded that the product was rejectable under QATAP for attribute, P-7, Type Quality and Uniformity. [Citation omitted.]" See MacAfee Declaration, ¶ 4. 14 In that regard, the PPR lists eight factors which "[t]he Contracting Officer shall consider" in determining whether to terminate a contract for default: (i) the provisions of the contract and applicable laws and regulations; (ii) the specific failure of the contractor and the excuses, if any, made by the contractor for such failure; (iii) the availability of the supplies or services from other sources; (iv) the urgency of the need for the supplies or services and the period of time which would be required to obtain sources as compared with the time in which delivery could be obtained from the delinquent contractor; (v) the effect of a termination for default upon the contractor's capability as a supplier under other contracts; (vi) the effect of a termination for default on the ability of the contractor to liquidate progress payments; (vii) the availability of funds to finance repurchase costs which may prove uncollectible from the defaulted contractor, and the availability of funds to finance termination costs if the default is determined to be excusable; and (viii) any other pertinent facts and circumstances. See PPR, Chap. XIV, Sec. 1, ¶ 3.c.(3). See also Shepard Printing, supra, Slip op. at 26, fn. 31; Graphics Image, Inc., supra, Slip. op. at 26, fn. 31. The PPR essential repeats the requirements contained in the Federal Acquisition Regulation (FAR). See FAR § 49.402-3(f) (1)-(7). 15 At the prehearing conference, the Appellant stated that it did not know what happened to the books after their rejection by the Government. See RPTC, p. 5. In that regard, on August 15, 1990, when App. Exh. A was submitted to the Board, the rejected product was apparently still being stored by the Navy. Gallagher's memorandum of June 28, 1990, says that the Navy would continue to hold the rejected stock until the default is resolved (R4 File, Tab W). However, the Contracting Officer states in her declaration: "I subsequently learned that the [Navy] retained the materials for 6 months, and when the contractor did not pick them up after that time period, the [Navy] discarded the materials because of lack of storage space." See Mierson Declaration, ¶ 12. Therefore, since the Contractor was defaulted on March 16, 1990, the Navy probably kept the rejected books until they were disposed of sometime in September 1990. 16 During the prehearing conference, Counsel for GPO construed the Appellant's stated understanding in its letter of February 28, 1990, that the books were rejected based on "printed contents only and not the plastic binder covers and plastic tab Index Dividers which are part of the set and also manufactured by us," see R4 File, Tab P, as not saying the that the product was improperly rejected by the Respondent. See RPTC, p. 4. After reviewing the prehearing conference report, Counsel for the Appellant noted his disagreement with that conclusion. See Letter from Frederic G. Antoun, Jr., Esq. to Hon. Stuart M. Foss, GPO Board of Contract Appeals, dated June 15, 1993. In his view, the Contractor's February 28, 1990, statement "does not constitute an admission that the printed contents were rejectable." Id., p. 1. Instead, he thought the Appellant was merely accepting as true and accurate GPO's own statements about the defects in the books until it had a chance to confirm them, after which it would correct any deficiencies "in a timely manner." Id. Since the Respondent failed to provide the Contractor with samples of the defects, and as the original order could not be picked up, whether or not the product was actually rejectable was still open to question. Id., p. 2. 17 While the excusable events listed in the "Default" clause, all of which must be beyond the control and without the fault or negligence of the contractor, are set forth in the context of relieving the contractor from responsibility for excess reprocurement costs, it is well-settled that the same occurrences extend the time available for performance and make termination prior to that time improper. See e.g., FKC Engineering Co., ASBCA No. 14856, 70-1 BCA ¶ 8,312. 18 Default terminations-as a species of forfeiture-are strictly construed. See D. Joseph DeVito v. United States, 188 Ct. Cl. 979, 413 F.2d 1147, 1153 (1969). See also Murphy, et al. v. United States, 164 Ct. Cl. 332 (1964); J. D. Hedin Construction Co. v. United States, 187 Ct. Cl. 45, 408 F.2d 424 (1969); Foremost Mechanical Systems, Inc., GSBCA Nos. 12335, 12384, 95-1 BCA ¶ 27,382. 19 The United States Claims Court was renamed the United States Court of Federal Claims on October 29, 1992, pursuant to Title IX of the Federal Courts Administration Act of 1992, Pub. L. No. 102-572, 106 Stat. 4506 (1992). 20 Clauses such as ¶ 20(a)(1)(i) have uniformly been held to apply not only to late deliveries of the contracted goods, Stephenson, Inc., supra, Slip op. at 19 (citing, Chavis and Chavis Printing, supra, Slip op. at 12-15; Jomar Enterprises, Inc., GPO BCA 13-86 (May 25, 1989), Slip op. at 3-5), but also to the timely delivery of nonconforming supplies. Id. (citing, KOPA Kopier Produckte, ASBCA No. 29,471, 85-3 BCA ¶ 18,367; Meyer Labs, Inc., ASBCA No. 18,347, 77-1 BCA ¶ 12,539). See also, Delta Industries, Inc., DOT BCA No. 2601, 94-1 BCA ¶ 26, 318; Industrial Data Link Corp., ASBCA No. 315, 91-1 BCA ¶ 23,382. The rationale for this dual application of the default clause is simple. As explained in a leading text on the subject of public contracts: "While these clauses explicitly make untimely performance the basis for the default action, it is important to recognize that nearly every Government contract spells out the contractor's required performance in terms of the nature of the product or service which is to be delivered or performed as well as the time by which this performance is to be completed. Thus, in order for the contractor to render `timely performance,' two basic requirements must be satisfied: (1) the product, service or construction work must conform to the required design/performance specifications, and (2) the product must be delivered or the work completed by the specified due date. Citing, Radiation Technology, Inc. v. United States, 177 Ct. Cl. 227, 366 F.2d 1003 (1966); Nash Metalware Co., GSBCA No. 11951, 94-2 BCA ¶ 26,780; Air, Inc., GSBCA No. 8847, 91-1 BCA ¶ 23,352." [Emphasis added.] John Cibinic, Jr. & Ralph C. Nash, Jr., Administration of Government Contracts 3d ed., (The George Washington University, 1995), p. 908 (hereinafter Cibinic & Nash). 21 For the "substantial compliance" rule to apply to a particular shipment of nonconforming goods, the contractor must show that: (a) a timely delivery of goods was made; (b) he/she reasonably believed, in good faith, that the supplies conformed to the contract when shipped and that they would be acceptable; and (c) the defects are minor in nature and capable of correction within a reasonable period of time. Radiation Technology, Inc. v. United States, supra. See generally Cibinic & Nash, pp. 912-17. The Radiation Technology doctrine is clearly an encroachment on the Government's right to terminate. However, it is also apparent that the rule merely stays for a reasonable period the Government's right to terminate, and not its right to insist on 100 percent conforming goods; i.e., the doctrine concerns time, not the supplies themselves. Furthermore, the "substantial compliance" rule is used to prevent surprise rejections by the buyer after a contractor's timely shipment in situations where performance departs in only minor respects from that which has been promised. See Stephenson, Inc., supra, Slip op. at 50-51, fn. 54 (citing Environmental Tectonics Corp., ASBCA No. 20340, 76-2 BCA ¶ 12,134). A contractor who ships nonconforming goods is only protected by the Radiation Technology rule to the extent that he/she can satisfy all elements of the test. In most cases involving the "substantial compliance" doctrine, the timeliness of the contractor's shipment is generally not an issue. Rather, the dispute usually involves the resolution of questions of "reasonable belief" and the seriousness of the defects. Absent such a "reasonable belief" by the contractor and proof that only minor defects are involved, the supplier is not entitled to the protection of the "substantial compliance" principle. See Stephenson, Inc., supra, Slip op. at 51, fn. 55 (citing Norwood Precision Products, Textron, Inc., ASBCA Nos. 38095, 38196, 90-3 BCA ¶ 23,200; Introl Corp., ASBCA No. 27,610, 85-2 BCA ¶ 18,044 at 90,578; Environmental Tectonics Corp., supra, 76-2 BCA ¶ 12,134). 22 As indicated in note 8 supra, the Appellant missed all three contract due dates for the original shipment in this case (September 12, 1989, October 25, 1989, and November 8, 1989). Nonetheless, it was not defaulted for a failure to make a timely delivery. Even so, however, the Appellant's poor "track record" with regard to timeliness is not without its secondary consequences under the Radiation Technology rule. That is, in light of this persistent untimeliness, there is a strong inference that the Contractor could not have given the Government what it wanted within a "reasonable time." See Hurt's Printing Co., Inc., supra, Slip op. at 21; Shepard Printing, supra, Slip op. at 22. 23 Whether a defect is minor is a question of fact, based upon a consideration of: (a) whether the items are usable; (b) the nature of the product; (c) the urgency of the Government's needs; and (d) the extent of repair and adjustment necessary to produce a fully conforming product. See Cibinic & Nash, p. 915 (citing Kain Cattle Co., ASBCA No. 17124, 73-1 BCA ¶ 9,999). Numerous minor defects, when considered together, can constitute a major nonconformity. See Astro Science Corp. v. United States, 200 Ct. Cl. 354, 471 F.2d 624 (1973); Environmental Tectonics Corp., supra; Kain Cattle Co., supra. Furthermore, even if a defect is minor, if it is not readily correctable the "substantial compliance" doctrine will not apply. See Inforex, Inc., GSBCA No. 3859, 76-1 BCA ¶ 11,679; Levelator Corp., VACAB No. 1069, 74-2 BCA ¶ 10,763; Nuclear Equipment Corp., NASABCA No. 1170-18, 73-1 BCA ¶ 9,815. 24 Indeed, the general view is that the Contracting Officer's discretion to decide whether a product is conforming or nonconforming is inherent in his/her administration of the contract. See Vogard Printing, GPOCAB 7-84 (January 7, 1986) Slip op. at 6 (citing Thomas W. Yoder Co., Inc., VACAB No. 997, 74-1 BCA ¶ 10,424). It should be noted that Vogard Printing was decided by one of the ad hoc contract appeals panels which considered appeals from final decisions of GPO Contracting Officers prior to the establishment of the Board in 1984. GPO Instruction 110.10C, Subject: Establishment of the Board of Contract Appeals, dated September 17, 1984. Decisions of these ad hoc panels are cited by the Board in its decisions as "GPOCAB." While the Board is not bound by the decisions of the ad hoc panels, its policy is to follow their rulings where applicable and appropriate. See, Universal Printing Co., supra, Slip op. at 11, fn. 9; Shepard Printing, supra, Slip op. at 14, fn. 19; Stephenson, Inc., supra, Slip op. at 18, fn. 20; Chavis and Chavis Printing, supra, Slip op. at 9, fn. 9. 25 GPO's printing procurement regulation, like the procurement rules of other Federal agencies, recommends the issuance of a show cause letter, "where practicable," prior to the default termination of a contract for failure to make timely deliveries or perform services within the time required by the contract. See PPR, Chap. XIV, Sec. 1, ¶ 3(c) (1). Cf. Lewis B. Udis v. United States, 7 Cl. Ct. 379, 385-86 (1985). However, the omission of a "show cause notice" by the Government is not generally a procedural defect to a termination based on the contractor's failure to make timely deliveries or perform timely services. See Shepard Printing, supra, Slip op. at 14, fn. 20; Stephenson, Inc., supra, Slip op. at 20, fn. 22. Accord Kit Pack Co., Inc., supra, 89-3 BCA at 111,486-87 (citing H. N. Bailey & Associates, ASBCA No. 21,300, 77-2 BCA ¶ 12,681). 26 See Cibinic & Nash, pp. 295-300. There is also an implied negative obligation on the part of the Government that it will not do that which will interfere with the contractor in the performance of the contract. Id., at pp. 300-05. See e.g., Nanofast, Inc., ASBCA No. 12,545, 69-1 BCA ¶ 7,566 (citing Fern E. Chalender d/b/a Chalender Construction Co. of Springfield, Missouri v. United States, 127 Ct. Cl. 557 (1954); George A. Fuller Co. v. United States, 108 Ct. Cl. 70, 69 F.Supp. 409 (1947); Restatement, Contracts, §§ 295, 315). Both implied duties are part of every Government contract. See George A. Fuller Co. v. United States, supra. 27 Thus, the record shows that while the time for performance of the original order was 18 days (August 25, 1989, to September 12, 1989), there were 39 days between the date GPO notified the Appellant of the defects and the need to reprint the product (January 8, 1990), and the date established for shipment of the reprints (February 16, 1990); i.e., more than double the amount of time (R4 File, Tabs A, L and N). 28 The appeals board's rationale in Nanofast was based on the standard inspection clause in the Armed Services Procurement Regulation (ASPR) which gave the contractor specified rights to replace or correct nonconforming supplies. ASPR 7-103.5. Indeed, for years the ASBCA applied the cooperation rule only in cases where the Government had an affirmative obligation under the contract, such as performing inspections. See, Quality Controlled Stamping, Inc., ASBCA No. 19,074, 74-2 BCA ¶ 10,757, at 51,149 (citing, Nanofast, Inc., supra). However, an examination of more recent cases warrants the conclusion that apart from the express language of the contract, the Government's duty to cooperate can be imputed from responsibilities inherent in the contractual relationship itself. See, e.g., Spectrum Leasing Corp., supra, 90-3 BCA at 115,437. 29 An anticipatory breech occurs when there is a "positive, definite, unconditional, and unequivocal manifestion of intent . . . on the part of the contractor . . . not to render the promised performance . . .". See United States v. DeKonty Corp., 922 F.2d 826, 828 (Fed. Cir. 1991) (citing Cascade Pacific International v. United States, 773 F.2d 287, 293 (Fed. Cir. 1985)). See also Sterling Printing, Inc., supra, Slip op. at 39. Accord Altina Trucking, PSBCA No. 3341, 93-3 BCA ¶ 26,256; Twigg Corp., NASA BCA No. 62-0192, 93-1 BCA ¶ 25,318; A. N. Xepapas, AIA, VABCA No. 3087, 91-2 BCA ¶ 23,799. Such clear and affirmative proof of the Contractor's intent is not present in this case. 30 See note 11 supra. 31 Moreover, there is nothing in Yellow Freight's letter which would tend to show any wrongful interference by the Government with the carrier's attempt to pick up the rejected books. Cf. Kellner Equipment, Inc., ASBCA No. 26006, 82-2 BCA ¶ 16.077 (evidence that military policemen checked the identification of the contractor's employees before allowing them on the job site did not excuse the delay which resulted in default termination for failure to complete performance by the due date, since it is anticipated that policemen will take such action). Rather, it is clear that the carrier's failure to retrieve the rejected shipment was due to insufficient information about where the publications were located, instead of any lack of cooperation by Navy employees. See App. Exh. A. 32 The Respondent's procedure for recovering of excess reprocurement costs is set forth in the PPR, which states: "If repurchase is effected at a price in excess of the supplies terminated, the Contracting Officer shall: (i) advise the Financial Management Service, Voucher Examination Branch (Stop FMCE) that such a repurchase has been made; (ii) provide the jacket number, the purchase order number and the contractor's name for both the terminated and new contracts; and, (iii) request that excess costs be computed and the Contracting Officer advised. When advised by the Voucher Examination Branch, the Contracting Officer shall make a written demand (with a copy to the Voucher Examination Branch) on the defaulted contractor for the total amount of such excess including increases or decreases in other costs such as transportation and discounts. If the contractor fails to make payment, the Voucher Examination Branch shall take appropriate action to collect the amount due." See PPR, Chap. XIV, Sec. 1, ¶ 3.f.(3). 33 The Contractor thinks that it is responsible for the entire $20,103.72 due Quadra Graphics on the reprocurement contract (the $20,514.00 repurchase price less the 2 percent prompt payment discount, see Mierson Declaration, Attachment 2 (Payment Terms). See Complaint. However, this understanding is clearly in error. By the express terms of the "Default" clause, which merely states the existing law, a defaulted contractor is only responsible for the excess costs of the reprocured supplies or services. See GPO Contract Terms, Contract Clauses, ¶ 20(b). Thus, the maximum extent of the Contractor's liability here is $5,685.72, which represents the difference between the Appellant's bid ($14,418.00) and Quadra Graphics's repurchase offer ($20,103.72). See e.g., K.C. Printing, supra, Slip op. at 4 (excess costs computed as the difference between original bid of defaulted contractor and the offer of the fourth lowest bidder, who happened to be the next lowest responsible offeror). Also see Sterling Printing, Inc., supra, Slip op. 18, fn. 27 (liability figured as the repurchase price minus the total of the original contract price plus the price of a contract modification). As the Board observed in Sterling: "Generally, excess reprocurement costs are figured on the basis of the reasonable reprocurement price less the original contract price. [Citations omitted.] Where, as here, there is not enough evidence to determine if the winning reprocurement bid was reasonable, the most common method used for recalculating excess costs is simply to take the difference between the original contract price and the second low bid on the original contract. [Citations omitted.]" Sterling Printing, Inc., supra, Slip op. at 84. 34 In addition to proof of assessment, the record is also silent with regard to the exact steps taken by the Contracting Officer to recover excess costs, and there is nothing to show if Quadra Graphics was paid. Such evidence is essential to sustain the Government's claim for excess reprocurement costs. See K.C. Printing, Co., supra, Slip op. at 20-26.