October 6, 1978 CONTRACT APPEALS BOARD U. S. GOVERNMENT PRINTING OFFICE CONTRACT APPEAL OF PIKES PEAK LITHOGRAPHING COMPANY - C.A. 77-7 Findings of Fact Pikes Peak Lithographing Company (appellant) has appealed a decision by the contracting officer, Mr. James L. Odlin, that it reprint an order of maps at its own expense and seeks an equitable adjustment to cover the cost of this work.1 On August 12, 1976, the Government Printing Office (GPO) awarded appellant Jacket No. 697-606 for the printing of the Custer National Forest Visitor's Map, at the price of $7,725 (Govt. Ex. 1). The maps were to be printed in accordance with detailed specifications which had been issued to all bidders. Offset presswork was required, with black ink only and a 4-color process. Specifications, Jacket No. 697-606, at 1 of 6, 3 of 6 (Govt. Ex. 2). The specifications emphasized that the colors had to register properly with the black plate, Specifications at 1 of 6, 5 of 6, and gave detailed instructions regarding the strengths of the various colors, Specifications, at 5 of 6. They required that "[t]he final maps [were to] be first-class prints in every particular." Specifications, at 5 of 6. The specifications also instructed the contractor to "[n]otify the Government Printing Office 48 hours in advance of press time so that inspection may be made, if disired [sic], by a representative of the Government." Specifications, at 6 of 6. In accordance with this provision, on October 20, 1976, two Government representatives visited appellant's plant at Colorado Springs, Colorado. The representatives, Mr. Lawrence V. Janes and Mr. Wolfgang Buttenmiller, were both employed by the United States Department of Agriculture Forest Service, the agency which had requisitioned the maps. Mr. Janes and Mr. Buttenmiller conferred with Scott L. McLeod, appellant's vice president, and Charles E. Slusser, the company's preparation foreman. Because of the crucial importance of what transpired at this inspection, we quote at length from the statements which have been filed by the individuals involved. Mr. Scott McLeod's recollection of the incident is contained in an affidavit dated September 26, 1977. He states, in pertinent part: "5. In mid-October, 1976, press proofs were run of the Maps using the standard procedure Pikes Peak has employed on its two- color presses for all of its government printing jobs involving four-color maps with red/black road designations. This normal procedure is to run the red/ black ink colors first and the blue/yellow ink colors second. This procedure insures proper alignment of the red and black on the roads. "6. On October 20, 1976, Mr. Lawrence V. Janes and Mr. Wolfgang Buttenmiller from the United States Forest Service appeared at Pikes Peak to inspect the press proofs. . . The two main concerns expressed by Mr. Janes when he inspected the press proofs were first, to fit more exactly the red and yellow registration on the lettering and second, to maintain a very strong yellow color in the yellow areas. These instructions are indicated in several of his notations on the press proofs. Mr. Janes was aware that Pikes Peak uses a two-color press and was told that it would be necessary to use a different printing order to comply with his instructions. Specifically, Mr. Janes was told that the color combinations on the runs would have to be changed to a red/yellow run and then a blue/black run. Anyone familiar with the two- color mechanical printing process used by Pikes Peak would know that such a change in the printing order would cause inevitable misalignment of the red and black due to differential stretch of the paper. I also believe that anyone familiar with the mechanical printing process would know that the very strong yellow requested by Mr. Janes would overload the yellow ink and cause scumming. The overloading of yellow ink was responsible for the variation in the green colors of the Maps. Mr. Janes was advised that the final run of the maps would begin the next day, October 21, 1976 and was told that he could stay and inspect the Maps coming off the final run. I felt this inspection was most advisable due to the variation in our standard procedures which Mr. Janes had instructed Pikes Peak to use. At no time did I, or anyone else employed by Pikes Peak, advise Mr. Janes that there would be 'no problems' with printing the Maps per his instructions, since those instructions were contrary to Pikes Peak's standard procedure developed in over 30 years of printing maps, and Mr. Janes was informed of this. "7. The final run of Maps were [sic] shipped to the Forest Service on November 1 and 5, 1976." Affidavit of Scott L. McLeod at 1-2. Mr. Charles E. Slusser's affidavit corroborates Mr. McLeod on all particulars.2 Messrs. Janes and Buttenmiller submitted affidavits to the Board in response to those submitted by appellant's witnesses. Mr. Janes, in an affidavit dated April 17, 1978, gives his version of the inspection at appellant's plant: "Paragraph 6. Mr. Wolfgang Buttenmiller and I inspected the Custer-Beartooth 1/2-inch map pressproofs at the office of the Pikes Peak Lithographers in Colorado Springs. In looking over the pressproofs, I noticed that the colors (mainly, the green and yellow) had light and dark areas--as Scott McLeod stated, 'strong' yellow. This was what we wanted to eliminate, so I picked some areas that were in between in density and asked that they hold to this shade throughout the map. Also, the red was out of the black road casing. Scott McLeod states in the Affidavit that in asking for better registration, they had to change the color printing order. I stated verbally and on the pressproofs that the black and red plates were out of registration. I wasn't concerned about the methods they used, all I wanted was for the job to be done correctly. My job is to inspect the maps for conformance with the required specifications. "I felt that since I had indicated on the pressproofs my recommendations, there was no need for me to stay for the final run. Scott McLeod had stated that the company had been in business for about 30 years; and since he had also indicated that he anticipated no problems in making the corrections, I had no reason to believe otherwise. Again I state, Scott McLeod said that he anticipated no problems in the printing." Affidavit of Lawrence V. Janes at 1-2. Mr. Buttenmiller's affidavit essentially confirms Mr. Janes' statement. Mr. Janes had also discussed the inspection tour in a prior memorandum, dated December 7, 1976 (Govt. Ex. 7). He makes one point there that is not reflected in his affidavit: "I took along the color proofs that we had made up for a comparison. Our color proofs reflected perfect registration of all plates. In reviewing their press proofs, I noted that the registration wasn't too bad, and we could live with them as they were; however, I noted a few corrections that could be made that would make the registration better." The maps were shipped by appellant and received at the Forest Service's warehouse in Missoula, Montana, on November 10, 1976. On November 11, 1976, a Forest Service printing specialist notified the GPO Regional Printing Procurement Office in Seattle, Washington, that there were problems with the finished maps which could not be overlooked. (Govt. Ex. 5.) James 0. Odlin, Manager of the Seattle office, was the contracting officer in charge of the administration of this jacket. On November 15, 1976, the Forest Service, pursuant to a request by the GPO, submitted randomly selected samples of the maps to the contracting officer. In an accompanying letter, K. L. Winn, the Forest Service's Director of Administrative Services at Missoula, stated that the samples were a fair representation of the shipment as a whole. He went on to state: "The most conspicuous problem was the lack of registration with red (roads, highways, trail numbers, and road and highway numbers). This color never seems to fall into registration close enough to be acceptable. There were many other problems which occurred all too frequently throughout the map. The colors were inconsistent, some have bled through, the red is so light in areas that it is very hard to distinguish road and trail numbers. . . . "We have press proofs copies from the contractor which were acceptable with a few minor adjustments for better registration that were to be made. The contractor agreed to make these adjustments at that time. Upon receiving the finished product, we found they were much worse than the unadjusted press proofs. "Because of the unacceptability of these maps, we recommend that they be rejected." Letter from K. L. Winn to James Odlin, November 15, 1976 (Govt. Ex. 5).3 Mr. Odlin subsequently called Mr. McLeod concerning these problems. At Mr. McLeod's request, Mr. Odlin forwarded samples of the job. (Govt. Ex. 18.) On November 24, 1976, Mr. Odlin again talked with Mr. McLeod, who stated that he did not feel the quality of the job warranted rejection. He indicated, however, that appellant might consider a reduction in price. (Govt. Ex. 18.) On December 1, 1976, Mr. Winn once more wrote to Mr. Odlin concerning what was to be done with the maps. Mr. Winn objected vehemently to a reduction in payment to appellant rather than total rejection of the job: "The maps are out of register to the extent that public repercussions can be easily contemplated. The public has the right to depend on the accuracy of these maps. We could be faced with more than just embarrassment should there be injuries as the result of public reliance on map information which is totally inaccurate. "Again, we strongly object to any degree of acceptance and as the using agency, recommend the job be rejected. Adequate maps, fully meeting specifications, are still urgently needed. 1e hope you can arrange for printing and delivery at an early date." Letter from K. L. Winn to James Odlin, December 1, 1976 (Govt. Ex. 6). On December 8, 1976, Forest Service representatives visited the GPO Seattle office for an inspection of random samples of the maps. Mr. Odlin reported finding "a very erratic registration on the red run and a great variation in the yellow run. Also in the samples there was some offset and scumming involved." Memorandum from James L. Odlin to Contract review Board, March 2, 1977 (Govt. Ex. 18). This inspection prompted Mr. Odlin to write to appellant on December 10, 1976, detailing these findings. He concluded: "We regret that under the circumstances we have no alternative but to reject the entire shipment and to request that the maps be reprinted at no further cost to the Government. The negatives, samples, and any other materials required will be returned to you as soon as we hear from you. As the Agency is badly in need of these maps, we would appreciate the earliest possible delivery date that you could manage." Letter from James L. Odlin to Pikes Peak Lithographing Company, December 10, 1976 (Govt. Ex. 8). On December 15, 1976, Mr. McLeod and Mr. Odlin spoke on the telephone about the maps. The only account in the record of this conversation is found in the contracting officer's memorandum to the Contract Review Board on March 2, 1977 (Govt. Ex. 18): "December 15th Mr. McCloud [sic] called to say that he was surprised that we would reject the job even though he admitted that the quality was not the best. He stated that they had never had any complaints before and that the maps were acceptable by commercial standards. I asked him how he could account for the wide variations in the yellow run. He stated that the forest service representitive [sic] (See letter dated December 7, 1976) had requested that the yellow run be stronger in order to maintain the green forest areas. He further stated that in order to do this it was necessary to 'load' the ink on to keep it dark and that it was hard to hold the color which accounted for the faded out yellows. I couldn't quite get their reasoning there over using a stronger yellow ink to begin with. I also asked him about the high percentage of bad sheets (i.e., scum, offset, bad register, etc.) and he stated that when the folder operator saw that they were going to run short he used the press set-up sheets to fill out the order. "I asked him if this was a usual practice and he said that he didn't believe so but that in this case they didn't feel that the sheets were all that bad. Apparently these marginal quality maps are dispersed throughout the shipment. He asked if the Forest Service could not sort through these maps and I replied that they did not have the personnel nor the space to do so and that it was not their (Forest Service) responsibility to sort through the maps. I suggested that Pikes Peak arrange with the Forest Service for a competent person to be sent from Pikes Peak to go through and salvage what could be and then rerun the balance. The alternative was to rerun the entire job for delivery at the earliest possible date. Mr. McCloud [sic] said he could discuss it and send me a letter." Mr. McLeod's response was sent to Mr. Odlin on December 25, 1976. After noting that this rejection was the first of a Government contract in appellant's 28-year history, Mr. McLeod stated that appellant's position was that it had followed Forest Service's instructions made at the time of inspection, that a press inspection would have avoided these difficulties, and that the maps which had been produced and shipped were "commercially acceptable". Letter from Scott R. McLeod to James L. Odlin, December 25, 1976 at 2 (Govt. Ex. 9). He concluded by stating that appellant would not be responsible for reprinting the maps without payment for work already done. The receipt of this letter on December 28, 1976, prompted the contracting officer to contact the Forest Service to ask whether it was certain that the unacceptable maps were not just a small percentage of the whole shipment. (Govt. Ex. 18.) The Forest Service complied with this request by conducting another inspection of a "1+ percent sampling taken from each of the 56 boxes of maps." Letter from K. L. Winn to James Odlin, January 10, 1977 (Govt. Ex. 10). This inspection confirmed the Forest Service's opinion of problems with the registration and color on the maps. The inspected samples of the maps were forwarded to the contracting officer (Govt. Ex. 10). These were received by the contracting officer on January 19, 1977. A review by the contracting officer confirmed the Forest Service's opinion of the problems with both registration and color. (Govt. Ex. 18.) On February 10, 1977, appellant was sent a show cause notice stating that the maps received on Jacket 697-606 were "totally unacceptable to the Government because of lack register of the road fills, consistency in color on the yellow and the red, scumming, and some offsetting." Letter from John Tipton, Acting Manager, GPO Regional Printing Procurement Office to Appellant, February 10, 1977 (Govt. Ex. 11). The letter threatened default if appellant did not notify the GPO within 10 days of receipt of the notice proposing a schedule for shipping an acceptable product. The contracting officer notified the Forest Service of this action. (Govt. Ex. 12.) Appellant responded to the show cause notice through counsel on February 23, 1977, in the form of an appeal to the Public Printer (Govt. Ex. 20). At the same time, by letter to the contracting officer, appellant agreed to proceed with performance in accordance with Article 29 of GPO Contract Terms No. 1, an integral part of this contract. (Govt. Ex. 17.) The contracting officer responded by letter of March 16, 1977, confirming that appellant would proceed as ordered and supplying details concerning the reprinting. He reiterated that appellant, in lieu of reprinting all the maps, had an alternative: "[A]t your option you may sort the maps you originally shipped, pick out the defective copies, and reprint the required amount to complete the total quantity." Letter from James Odlin to Scott McLeod, March 16, 1977 (Govt. Ex. 14). Mr. Odlin also called Mr. McLeod on the telephone on March 25, 1977, requesting that appellant respond in writing whether they would reprint the maps or not. (Govt. Ex. 16.) Appellant was further informed that it would be held in default if it were not to reprint, but that an appeal under the "Disputes" clause was open to it. (Govt. Ex. 16.) Appellant responded to both the March 16, 1977 letter and the March 29, 1977 telephone conversation through counsel by letter of March 30, 1977. (Govt. Ex. 21.) Appellant reiterated its position that the maps were acceptable and that any defects had been caused by the instructions of the Forest Service representatives, but agreed to undertake the reprinting sought by the contracting officer. Appellant further advised that Mr. McLeod would meet with Forest Service officials to inspect the maps and determine whether any of those already shipped could be used, which would reduce the quantity that had to be reprinted. (Govt. Ex. 21.) On April 1, 1977, Mr. McLeod went to Missoula, Montana, to meet with Forest Service representatives and to inspect the maps. Mr. McLeod selected what he believed to be a representative sample of the entire shipment of the maps, from the various cartons stored at the warehouse. Affidavit of Scott McLeod at 3.4 Mr. McLeod asserted to the Forest Service employees that at least 80 percent of the maps were acceptable (Govt. Ex. 22). While no one from the Forest Service participated in Mr. McLeod's selection process, the Forest Service apparently maintained its position that the entire job was unacceptable. (Govt. Exs. 23 and 26.) However, the contracting officer later noted that the Forest Service had confirmed "30% not usable". Memorandum from Contracting Officer to Contract Review Board, March 2, 1977, at 2 (Govt. Ex. 18).5 Appellant subsequently reran the entire order of maps which were found to be acceptable by the Forest Service. Affidavit of Scott McLeod at page 3-4; Letter from James L. Hamilton, Acting Director, Administrative Services, Forest Service to Contracting Officer, July 27, 1977 (Govt. Ex. 29.) Further findings of fact are made in the course of the decision. Decision Constructive Change Argument Appellant makes several arguments in support of its position. While not acknowledging that the maps produced were defective, or defective in sufficient quantity to require rejection, appellant contends that any defects in the map were caused by its compliance with the instructions of the Government representatives during the October 1976 inspection. Appellants and the Government agree that the problems found by the Government representatives were in the registration and the lack of consistency of the colors. However, this is all they agree on. Appellant's position, as evidenced by the affidavits of Messrs. McLeod and Slusser, quoted previously, is that when the Government representatives instructed appellant to improve the registration and color, they were told that this would necessitate changing the printing order on the run which "would cause . . . inevitable misalignment of the red and black due to differential stretch of the paper." Affidavit of Scott McLeod at 2. They were also warned, the contractor alleges, that the increased strength of yellow "requested by Mr. Janes would overload yellow ink and cause scumming." Id. The contractor concludes that these problems were responsible for the variation in the colors in the final maps. The affidavits submitted indicate not only that the Government representatives were clearly informed of these problems, but that anybody familiar with the printing process used by Pikes Peak, presumably including Government technical inspectors, should have been aware of them without having to be told. Mr. Janes, in his affidavit, denies that he ordered appellant to use any particular method to achieve the desired result: "I wasn't concerned about the methods they used, all I wanted was for the job to be done correctly. My job is to inspect the maps for conformance with the required specifications." Affidavit of Lawrence V. Janes at 1. Mr. Janes emphasizes that Mr. McLeod "indicated that he anticipated no problems in making the corrections . . . ." Affidavit of Lawrence V. Janes at 2. Mr. Buttenmiller corroborates this impression. Affidavit of Wolfgang Buttenmiller at 2. Both sides agree that the finished products were inferior to the press proofs inspected in October. Furthermore, it is appellant's contention, essentially uncontradicted, that the eventual reprint of the maps, found acceptable by the Government, was done in the manner originally intended without the improvements ordered by Mr. Janes and Mr. Buttenmiller.6 Without using the term (and without citing cases on this point), appellant essentially is arguing that any defects in the original shipment of maps were due to a constructive change ordered by the Government representatives during the inspection, which requires an equitable adjustment to cover the additional costs incurred by the contractor. The constructive change doctrine is easily defined: "[W]here . . . the contracting officer, without issuing a formal change order, requires the contractor to perform work or to utilize materials which the contractor regards as being beyond the requirements of the pertinent specifications or drawings, the contractor may elect to treat the contracting officer's directive as a constructive change order and prosecute a claim for an equitable adjustment under the 'changes' provision of the contract." Ets-Hokin Corporation v. United States, 190 Ct. Cl. 668, 674-75, 420 F.2d 716, 720 (1970) (citation of numerous authorities omitted). The legal basis for a constructive change under this contract should be mentioned. While the operative clauses in GPO Contract Terms No. 1 are somewhat at variance with the standard clause, See 41 CFR ¶ 1-7.102-2 (1976), we think that the same concept applies. Though Article 2 on its face limits changes to those made with advance written authorization by the contracting officer, the courts have not permitted the requirement of a writing in such clauses to lead to unjust results.7 It is true that Article 2 is perhaps more emphatic in its insistence on a writing than its FPR counterpart. However, Article 24 of Terms No. 1 clearly indicates that the contract contemplates constructive changes as well. It provides that variations from the specifications not meeting the definition of change orders may be submitted as claims by the contractor. While the article indicates that such a claim should be processed through the General Accounting Office,8 we see no reason why one cannot be treated as a dispute by the contractor and the Government and thus be decided by the Board. See generally General Dynamics Corporation v. United States, 558 F.2d 985 (Ct. Cl. 1977). We must also consider whether the Government's representatives were authorized to make what amounted to contractual changes, since the contracting officer was not involved in the transaction. A recent statement by the Court of Claims, in a somewhat different context, sheds light on this issue: "To be taken into account the oral assurances by federal personnel on which [a private individual] relies must not have been spoken beyond the authority of those who spoke them. See Richards & Associates v. United States, 177 Ct. Cl. 1037, 1051 (1966). But this authority need not be express; it may be implied from the scope of the work delegated to the official or employee, as well as the level and nature of his activities. See, e.g., Centre Mfg. Co. v. United States, 392 F.2d 229, 236, 183 Ct. Cl. 115, 127-28 (1968) (plurality opinion)." Julius Goldman's Egg City v. United States. 556 F.2d 1096, 1103 (Ct. Cl. 1977). We believe that these technical representatives had at least implied authority to make representations concerning technical issues. It is not uncommon for a technical representative to bind the Government by statements to contractors concerning matters within their area of expertise. E.g., Max Drill, Inc. v. United States, 192 Ct. Cl. 608, 427 F.2d 1233 (1970); Martin Glisson, ASBCA 15748, 17549, 71-2 BCA ¶ 9017 (1971); See generally Newman, Constructive Changes, 9 Nat. Cont. Mgt. J. 44, 55-56, reprinted at 13 Y.P.A. 1137, 150-51 (1976). Under these circumstances, at least, under these operative contract terms, the Forest Service's inspectors had authority to bind the contracting officer by their representations on technical matters. Mr. Janes' December 7 memorandum does indicate that the press proofs, at least as far as the registration was concerned (the memorandum is less clear with respect to color density), met the contract specifications. Requiring a higher level of workmanship than that called for by the specifications is clearly a constructive change. See, e.g., Ets-Hokin v. United States, supra. It does not, however, follow that appellant is entitled to the equitable adjustment it is seeking for the cost of rerunning all of the maps. An equitable adjustment is allowed only for costs incurred due to the contractual change. Appellant here incurred the costs of changing the proofs to accommodate Mr. Janes' instructions, certainly. The instructions were not, however, the proximate cause of the map defects. These resulted, as Mr. McLeod indicates, from problems with the printing process. The responsibility for the mechanical defects would be the contractor's, unless the Government representatives were fully advised of the potential impact of their directions. To decide this, we must first decide what exactly transpired at the inspection. The issue boils down to a test of credibility. At the outset, we note that the contractor seeking an equitable adjustment has the burden of persuasion and must prove its claim by a preponderance of the evidence. E.g., Mann Construction Co., Inc., supra at 55,829; EG & G, Inc., ASBCA 14051, 71-1 BCA ¶ 8867 (1971) at 41,219. Neither side requested a hearing in this matter, so that the Board is forced to resolve the conflict in testimony only by an evaluation of the record. Careful examination of the record has been sufficient to convince us that appellant has not met its burden and that we are constrained to resolve this issue in favor of the Government. The position of neither party is inherently incredible. It is significant, however, that though appellant's representatives allegedly protested vehemently when they received the instructions in question, they never bothered to contact the contracting officer about the situation. In this context, we note that appellant admits to having substantial Government procurement experience, Affidavit of Scott L. McLeod at 1, and thus would have every reason to know of this recourse. No reason is advanced why such notice was impossible or impractical. There were still approximately 10 days before the requested delivery date for this jacket, Printing and Binding Requisition, Jacket No. 697-606, June 28, 1976 (Govt. Ex. 4); appellant was therefore not pressed for time. Surely appellant had the obligation to take this dispute immediately to a higher level if it knew that the quality of the job was at stake. Even without this reasoning, there is no basis for the Board to find that appellant's version of what transpired at the inspection is more probable than the Government's. We believe that the evidence presented, therefore, gives us only a choice between two relative possibilities. In such a case, it appears that the party with the burden of proof fails to sustain it. See Mann Construction Co., Inc., supra at 55,830; Conco Engineering Works, Inc., ASBCA 12997, 13655, 71-1 BCA ¶ 8823 (1971) (on motion for reconsideration) at 41,019. We therefore find that the Government representatives ordered certain changes to be made to improve the registration and color density, but did not specify a particular method in which to accomplish this. We further find that appellant's agents assured the Government representatives that no problems were presented in these orders, or at least did not voice concern that there might be any. Having made this determination, we must also find no negligence on the part of the Government representatives in failing to stay for the press run, since they were under the impression, due to the representations or lack of representations by Mr. McLeod, that no problems were anticipated. We hold that a constructive change was ordered in the contract during the October inspection, but that appellant is only entitled to an equitable adjustment for costs incurred, if any, in accommodating the instructions of the Government representatives. Appellant is not entitled to an equitable adjustment for the costs of reprinting the maps, as we hold that the reprinting was necessitated by errors for which appellant is responsible. Substantial Performance Appellant next argues that all of the maps, or at least a substantial majority of them, complied with the contract requirements. As to the first point, appellant has not made a sufficient showing to convince us that all the maps produced under the jacket met the specifications. In support of its position, appellant puts forth the affidavit of Mr. McLeod, asserting this to be fact and submits what it maintains is a representative sample of the maps. Mr. McLeod's assertions can not overcome the contrary view of both the GPO and Forest Service employees who also conducted inspections of the maps. Furthermore, the Board does not have the capacity to evaluate these maps from the standpoint of whether they met the contract specifications without the aid of expert testimony. To the extent we have examined these maps, there appear to be problems at least with the registration that could well call for their rejection. We must then deal with appellant's substantial performance argument. This is based on the Government's early suggestion that the job should be accepted with a 15 to 20 percent reduction in payment, from which it is inferred that the Government had found 80 to 85 percent of the maps conforming (Govt. Ex. 6). It is also supported by the contracting officer's, indication that the Forest Service had found that only 30 percent of the maps were not "usable". While we do not think this paints as clear a picture as appellant suggests, See Appellant's Memorandum at 5-6, we do think this evidence indicates that a number of the maps did conform to the specifications. To analyze this situation, we start off with the proposition that "the Government is entitled to strict compliance with contract plans and specifications simply as a usual contract right." Polyphase Contracting Corporation, ASBCA 11787, 68-1 BCA ¶ 6759 (1968) at 31,259 (citing numerous authorities). Appellant contends, however, that Board decisions have held that the Government is not permitted to terminate or default if the contractor "has substantially performed the contract in accordance with the specifications." Appellant's Memorandum at 4. While this may be true, the cases cited by appellant involved facts very different from those present here. In Conway Electric Company, ASBCA 4570, 60-2 BCA ¶ 2782 (1960), the Board does mention in its opinion that in spite of defects in the product, the contractor had substantially complied with the contract. However, the errors there were mostly of a cosmetic nature or were such that they could be corrected easily. More important, the Board stressed that "it is impossible to say whether errors later found in [the work] were those of appellant or the Government." 60-2 BCA ¶ 2782 at 14,269. In the present case, we have already held that the errors were the responsibility of the contractor rather than Government. In Miller's Ambulance Service, VACAB 548, 67-1 BCA ¶ 6274 (1967), the Board found that there had been seven failures to deliver ambulance service out of over 400 requests for service. Not only is the approximately 99 percent success rate much higher than that inferred here, but also that case stressed that it was dealing with a service rather than a supply contract: "It should . . . be borne in mind that this is a contract for continuing services, possibly several in a day. This is opposed to a construction or material contract wherein the contract requirements are specific, definite, and certain." 67-1 BCA ¶ 6274 at 29,037. Appellant's third cited case, Shreveport Laundries, Inc., ASBCA 3037, 56-2 BCA ¶ 1008 (1956). also involved a service contract and a higher success rate than the one we are postulating here. It is also important to note that the doctrine of substantial performance, as enunciated by the Court of Claims in Radiation Technology, Inc. v. United States, 177 Ct. Cl. 227, 366 F.2d 1003 (1966), does not require the Government to accept goods not conforming to contract specifications. Rather, the doctrine provides that a "contractor is entitled to a reasonable period in which to cure a non-conformity provided that the supplies shipped are in substantial conformity with contract specifications." Radiation Technology, Inc. v. United States, 177 Ct. Cl. 227, 232, 366 F.2d 1003, 1006 (1966); See also Kessel Kitchen Equipment Co.. Inc., ASBCA 21080, 77-2 BCA ¶ 12,565 (1977). Even if we held that Pikes Peak had shipped supplies in substantial conformity with the contract, the record reveals that it was granted a reasonable period in which to cure the non-conforming product but failed to take advantage of this. In his letter of March 16, 1977, the contracting officer informed appellant that it would be required to reprint the maps, "or at your option you may sort the maps you originally shipped, pick out the defective copies, and reprint the required amount to complete the total quantity." (Govt. Ex. 14.) This offer was repeated in Mr. Odlin's letter of May 2, 1977 (Govt. Ex. 27). Appellant apparently did not take advantage of this but contended that it had supplied an acceptable product, and reran the entire shipment. We hold that appellant did not provide an acceptable product even though given an opportunity to cure defects in its original shipment of maps and is not entitled to an equitable adjustment on this basis. Waiver of Notice Appellant makes several other related arguments which we can dispose of briefly. First, appellant argues that the Government's intent, as evidenced by the conduct of its inspectors, was "that it was willing to accept the maps despite the problems about which it had been warned." Appellant's Memorandum at 9. We reject any notion that the GPO was estopped from rejecting the maps on this basis, since we have found that it had not been warned of the possible problems in making the necessary corrections. Nor did it indicate at any time that the maps met the contract terms. Appellant also contends that the Government unreasonably delayed its inspection and eventual rejection of the maps and should be found liable on that basis.9 While we agree with appellant's statement of the law, there is no showing that the Government unreasonably delayed on either count in this case. The maps were shipped in early November and received by the Forest Service on November 10, 1976. Mr. McLeod was notified by Mr. Odlin that there were problems with the maps and that rejection was a possibility by November 24, 1976, if not earlier. After consulting with the Forest Service and conducting his own inspection of random samples of the maps, Mr. Odlin wrote to appellant on December 10, 1976, stating that the entire shipment would be rejected. Thus, the initial time lapse between the receipt of the job and the first written notification of rejection was a period of approximately 5 weeks. The subsequent delay was caused by further inspection at appellant's request, and by negotiation between the parties concerning how to deal with the situation. We cannot hold that the 5-week delay was inherently unreasonable, especially in light of the fact that two different Government agencies at different locations were involved and that appellant was informally notified as soon as it became apparent that the maps were defective. An examination of the cases cited by appellant shows them to be inapposite. For example, in 42nd Street Fotoshop, Inc. v. United States, 137 F. Supp. 313 (S.D.N.Y. 1955), which appellant primarily relies on, the contractor delivered the goods to the Government on February 1, 1950. While a Government representative indicated possible problems with samples of the goods shortly thereafter, appellant was not notified of their rejection until June. There had been no negotiation, indeed no contact between the contracting officer and appellant between the delivery in February and June when appellant requested payment. Under these circumstances, the court held that a delay in notification of rejection of more than 5 months was unreasonable. Moreover, the Government had not even bothered to forward the materials to an expert until several months past delivery. This is simply not comparable with the case we have here, where the inspection process began immediately and the contractor was kept notified of exactly what was happening. It is also obvious that the Government never led appellant to believe that the product was acceptable, and thus did not waive its right to reject after inspection. See, e.g., Midwest Engineering & Construction Co., ASBCA 5390, 1962 BCA ¶ 3460; Nash & Cibinic Federal Procurement Law (2nd ed. 1969) at 671-672 (collecting cases).10 Conclusion In light of the foregoing, we hold that appellant is not entitled to an equitable adjustment for the reprinting of maps on Jacket No. 697-606. Appellant is entitled to an equitable adjustment for any costs incurred in making the changes indicated by the Government on the press proofs. The appeal is sustained to this extent, and in all other respects denied.11 VINCENT T. McCARTHY Chairman, Contract Appeals Board SAMUEL SOOPPER Member, Contract Appeals Board JAY E. EISEN Member, Contract Appeals Board _______________ 1The record reveals that there was technically no final decision by the contracting officer. The positions of the parties are fully crystallized, however, and no purpose would be served in sending the case back to the contracting officer for a formality. E.g., Conrad, Inc., ASBCA 14239 70-1 BCA ¶8116 (1970). 2Mr. Slusser also states that "problems with fit were inevitable, since the negatives supplied by the Government were imperfect and failed to exactly align." Affidavit of Charles E. Slusser at 2. Appellant does not develop the point beyond this mere allegation, and we thus do not find it material to the appeal. 3Mr. Winn also alludes to problems with the paper stock used and the packaging of the maps for shipment. These allegations were not given as reasons for rejection of the maps and are thus not relevant to the appeal. 4The maps pulled by Mr. McLeod were subsequently submitted to the Board in support of this appeal. 5The notation is dated March 8, and is apparently made by the contracting officer's assistant. The Forest Service continued to maintain, however, that 100% of the maps actually inspected were unusable. (Govt. Ex. 15.) 6Mr. Janes alleges that the second, satisfactory run of the maps was done on a different press than the first run. This statement is not substantiated in the record and we disregard it. 7Without extensive historical discussion, we note that the current FPR clause clearly contemplates equitable adjustments for constructive changes. Even under the prior clause, however, when there was no such explicit language, equitable adjustments were granted under like circumstances. See generally Nash & Cibinic Federal Procurement Law, 521, 534-40 (2nd. Ed. 1969). 8We suspect that this clause is not of recent vintage since it fails to take into account the diminished role of the General Accounting Office in the area of contract interpretation caused by the Supreme Court's ruling in S & E Contractors, Inc. v. United States, 406 U.S. 1 (1972). For the Comptroller General's view of this role, See 56 Comp. Gen. 340, 342-43 (1977). 9Appellant discusses the delay of notice in terms of breach of contract, which is of course beyond our jurisdiction, United States v. Utah Construction and Mining Co., 384 U.S. 394 (1966). However, we believe that this matter is essentially a dispute arising under Article 13 of U.S. GPO Contract Terms No. 1 and cognizable by the Board on that basis. 10Of course, since we have held that the Government representatives were not negligent in failing to inspect the press run, no waiver can be found from this action. 11We note that there is mention in the appeal file of possible assessment of liquidated damages against appellant. We need not decide the issue at this time. Appellant is not foreclosed from appealing from any such future assessment.