U.S. Government Printing Office Office of General Counsel Contract Appeals Board Appeal of Transkrit Corporation June 26, 1975 Vincent T. McCarthy, Chairman Jay E. Eisen, Member Robert M. Diamond, Member Panel 75-3 This is an appeal filed by Transkrit Corporation, P.O. Box 12, Hunter Lane, Elmsford, New York.10523, herein also referred to as the contractor, on April 11, 1974. under the disputes clause of the contract, paragraph 2.27, GPO Form 1026, Rev. 6/1/74, Contract for Marginally Punched Continuous Forms, for the 6-month period, June 1 through November 30, 1974. The General Counsel has been designated to determine appeals under the disputes clause. I. Findings of Fact (a) This case arises out of a contract entered into by the appellant, Transkrit Corporation, and the U.S. Government Printing Office, herein referred to as the GPO, for the production of 500,000 sets of marginally punched continuous forms in compliance with the description provided in the specifications. (b) The contract, designated as GPO Jacket No. 548-447, Purchase Order 30650, is a fixed price agreement for the procurement of the form for use by the Department of the Air Force, pursuant to their Requisition No. 1088-Z. The title of the form is designated as "Statement of Recipient of Annuities, Pensions, etc." (self-mailer), Form No. TD-W-2P. (c) The contract was awarded on July 30, 1974 to appellant, in acceptance of their bid in the amount of $13,270. The manuscript copy was delivered to the contractor by U.S. certified mail on July 29, 1974 and the receipt acknowledged by the contractor on August 1, 1974. (d) Delivery was to be made on or before October 2, 1974. F.O.B. contractor's city. The terms of the contract as stated in the specifications required that the contractor send 3 sets of proofs, and copy to the following: U.S. Government Printing Office Central Office Printing Procurement Division Washington, D.C. 20404 Attention: Special Handling Section Room A843 The contractor was directed to comply with the following: "Contractor must not print prior to his receipt of "O.K. to Print." (e) The contractor asserts that it mailed the proofs and original copy via first class mail to the GPO on August 12, 1974, using their standard proof transmittal form letter. The addresses [sic] was designated as follows: U.S. Government Printing Office Washington, D.C. Jacket No. 548-447 This same address appears on the contractor's job ticket No. 29270 submitted as additional evidence and marked as Exhibit 3. The Procurement Division, GPO, has no record of, or evidence acknowledging the receipt of the required proofs. The contractor was notified by telephone on several occasions, during the period August 1974 through October 15, 1974 of the non-receipt of the proofs and requested to submit the required proofs to avoid further delay in production. (f) The contractor submitted the required proofs on October 17, 1974, which were received at the Procurement Division, GPO on October 22, 1974. The contractor failed to include the required manuscript copy. A duplicate manuscript copy was used to proofread the proofs. They were returned to contractor marked ."O.K. to Print" on November 6, 1974, meeting the specified 15 workday hold time. (g) The actual delivery date of the completed forms to the Department of the Air Force occurred on January 2, 1975. (b) The contract provided in part under the schedule the following: "The shipping schedule(s) established herein must be maintained. See 'Liquidated Damages' in GPO Form 1026." As a result of delays in performance and pursuant to the terms of the contract, the contracting officer assessed liquidated damages against the contractor. Damages were computed at the rate of 1 percent of the contract price of the quantity not shipped according to specifications for each working day the contractor was in default of the shipping schedule. That is at the rate of $132.70 per day covering a period of 54 days default of the shipping schedule. However, the total damages.assessed represents the maximum allowable under the terms of the.contract, that is, not in excess of 50 percent of the total value of the entire order. Thus, liquidated damages amounts to a total of $6,635. II. Opinion The liquidated damages clause of the contract, page 6, provides in pertinent part the following: "2.19 LIQUIDATED DAMAGES (a) Should the contractor default on shipping schedule agreed to and specified in the purchase order, the contractor will be assessed liquidated damages against that part or parts of an order which have not been shipped to the specified destination on the specified date. . . . The amount of damages will be computed at the rate of one percent of the contract price of the quantity not shipped in accordance with specifications for each working day the contractor is in default of the shipping schedule(s): . . . except the total damages assessed against the contractor shall in no case exceed fifty percent of the total value of the entire order. . . . (b) Damages shall not be applied against the contractor for delays in shipment occasioned by unforeseeable causes beyond the control and without the fault or negligence of the contractor, including, but not restricted to, acts of God or the public enemy, acts of the Government, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, unusually severe weather, and delays of a subcontractor due to such causes . . . Provided, That the contractor shall, within 10 calendar days from the beginning of such delay, notify the ordering agency in writing of the cause of the delay: Provided further, That such notice to the contracting officer shall contain the justification for such delay." lt is well established that a contractor who claims that his late performance and delivery is excusable has the burden of establishing the same under the contract. The contractor must prove affirmatively that the failure to achieve timely performance was caused by or arose out of a situation which was beyond his control and he was not at fault or negligent. In addition, the contractor must show that he could have performed on time save for the occurrence of the event he claims as an excusable delay. Lee K. Geiger Construction Company, GSBCA, 67-1 BCA ¶ 6189; American Construction Co., Inc., GSBCA, 65-2 BCA ¶ 4964). Bearing these precepts in mind, let us now consider the appellants allegations as to why its lateness should be considered excusable and the support for such allegations. The contractor alleged that it sent the required proofs and the original copy of the manuscript to the Government Printing Office on August 12, 1974, via first class mail; that the Department of the Air Force had located the original copy but did not find the proofs. In addition, the contractor submitted copies of time sheets indicating its employees worked on the GPO job, Jacket No. 548-447 on August 8, 1974, and a copy of a job ticket showing a notation that three sets of proofs were mailed out on August 12, 1974. The GPO and the Department of the Air Force through their officials has denied that they ever received the proofs in question. The Air Force admitted retaining a set of duplicate manuscript copy, which is normal procedure by GPO ordering agencies. The contractor further alleged,that the proofs were sent by means of first class mail and contained in a standard proof transmittal type letter form, thus no copies [sic] of a transmittal letter is available for verification. The transmittal letter form was improperly addressed, in that it did not conform to the requirement as provided in the specification. Subsequent to August 12, 1975, the contractor was notified several times by telephone that the GPO had not received the required proofs and manuscript copy. The contractor was requested to forward a duplicate set of proofs to avoid any further delay in the production of the ordered forms, but the contractor further extended the delay by not shipping the required proofs until October 15, 1974. The April 11, 1975 affidavit of Mr. Sidney Hoffman, an official of Transkrit Corporation, does not outweigh the evidence for the GPO, which tends to show that the proofs were not delivered to the Special Handling Section, located in Room A843, Printing Procurement Division, Central Office, Government Printing Office as required by the contract. No record is available indicating its receipt at the Washington, D.C. 20404 designated address. The cause of the delay falls on the contractor. The contractor apparently, for reasons of his own, did not plan to commence performance promptly as evidenced by its failure to submit the duplicate proofs until October 15, 1974. Aries Enterprises, Inc., GSBCA, 68-1 BCA ¶ 6830. From the fact that the contractor had entered into this contract, it is fair to presume that it had ascertained it was within its power to perform the contract within the time allotted. The burden rests upon its shoulders to place itself in a position to perform. It was the responsibility of the contractor to insure the prompt and safe delivery of the required proofs to the GPO. The use of certified mailing with a signed return receipt requested would have perhaps reduced the contractor's risk of loss or misdirection of the mailing matter. The mere fact that a cause of delay is unforeseeable does not excuse the delay. The cause must, in addition be beyond the control of the contractor and without his fault or negligence. In the instant case, the appellant had full control over the situation to the extent of avoiding the delay. The delay in no way was caused by Government personnel. In view of the foregoing, the appeal is denied.