U.S. Government Printing Office
Contract Appeals Board

Vincent T. McCarthy, Chairman
Jay E. Eisen, Member
Samuel Soopper, Member (dissent)
Panel 77-9

Appeal of Queens Lithographing Corporation
Contract  No.  K1980, Jacket No. 772-415
March 30, 1979

This timely appeal of Queens Lithographing Corporation (Appellant
and Queens) 52-35 Barnett Avenue, Long Island City, New York,
comes before the Board following a decision of the Contracting
Officer on July 8, 1977, holding the appellant responsible and
financially liable for failure to incorporate copy revisions
required by the customer agency, the United States Air Force,
before proceeding with the printing.  The appellant was required,
at no cost to the Government, based on a compromise, to retrieve,
reprint a corrected telephone number, repackage, and redistribute
approximately 3,000,000 book covers purchased under the captioned
contract. The appellant contends that it was not at fault, but
proceeded with the corrections and seeks reimbursement of the
costs of said corrections.  The decision of the Board is based
upon information contained in the Appeal File, the transcript of
a hearing, and posthearing submissions of both parties. Michael
P. Graff, Esq. of Becker Goldstein, and Graff, 36 West 44th
Street, New York, New York 10036 appeared for Queens and James C.
Lane, Jr., Esq. counsel for the Government.  The hearing convened
during the period May 2, 3, 4, 1978.  Submissions of post hearing
briefs were submitted on or about November 1, 1978.


In response to a solicitation issued by the Dallas Regional
Procurement Office (DRPPO), United States Government Printing
Office (GPO), Queens submitted a bid on January 17, 1977, of
$114,620.00 to produce, 3,000,300 book covers plus or minus
25,000 for the Department of the Air Force (AF).  Queens' bid was
accepted by the Government on January 21, 1977, and award was
made by the issuance of Purchase Order No. K1980 on the same
date.  The use of the book covers, produced specifically for the
U.S. Air Force Recruiting Service, Directorate of Advertising,
was for recruiting purposes.  It is a well-prepared slick paper
type colorful brochure to sell the Air Force to high school
graduates.  It includes a toll-free telephone number for
informational inquiries concerning the Air Force.  The brochure
is designed as a sturdy book cover, apparently for use by high
school students.


1.  The specifications provided in GPO Jacket Number 772-415 in
pertinent part are as follows:

"Return of Material.  Furnished Camera Copy must be returned to

. . .

Randolph AFB, Texas 78148"

X  Mail the first 6 SAMPLE COPIES completed to U.S. Government
Procurement Office, U.S. Federal Bldg, Room 3b7, 1100 Commerce
Street, Dallas, Texas 75242"


One 30 x 20" artboard containing black in white copy, trim marks,
a red key line for the 4 color background illustration, one
acetate overlay for position only of 4 color illustration
dropout, and one tissue overlay denoting color treatment, and a
blue key line for the varnishing area."

One 30 x 20" artboard containing an original painting for the
background (Art B).  Contractor to create a 20-7/8 x 8 1/2
background image to print as a 4 color illustration.  Shoot copy
same size and utilize only the portion as indicated on the

2.  The specifications set forth as to proofs the following in
pertinent part:

"Proofs:  Submit 3 sets of full color proofs (varnished) and 2
progressive proof books, proofed on the paper and in the colors
to be used in this printing, together with all furnished
materials, for approval before printing . . ." (Emphasis added.)

The shipment was to be completed by March 16, 1977.

3.  On January 24, 1977, the mechanical overlay including camera
copy for the book covers was received by Queens at their Long
Island City, New York, N.Y. plant (TR. I-85).  On February 4,
1977, DRPPO received the proofs, accompanied by the mechanical
and artwork and transmitted it to the Air Force at Randolph
Field, San Antonio, Texas, the same date without comment or a
transmittal communication (TR. I-18, 23).

4.  On February 8, 1977, the Reproduction Branch, Recruiting
Service Advertising, U.S. Air Force, San Antonio, Texas, received
the package forwarded by DRPPO, containing the mechanical, the
proofs, and the art work with respect to jacket 772-415 (TR.
III-7).  The Air Force reviewed the material and observed that a
WATS telephone number on the copy submitted to Queens was in
error and had to be changed.  The Air Force decided to make
another alteration, the major result of which was to transpose
copy or printed matter from right to left of the art work and
vice versa.  (TR. III-18, 164, 206)

5.  The alterations as to the copy were made on the artboard and
encircled with red ink on the tissue overlay; in addition the
phrase "shoot and strip-in new copy. Carl L. Seta USAF" was
inscribed on the overlay on each side (Bd. Ex. 5) The writing on
the overlay was made by Carl L. Seta on February 11, 1977, (TR.
III-18, 19, 21, 22).  Mr. Carl L. Seta caused an exact
reproduction of the mechanical overlay to be made. (Gov't Exhibit
A; TR. III-20, 23, 29)

6.  On February 14, 1977, the proof, artwork and mechanical
overlay were received at DRPPO, from the Air Force Recruiting
Service (ATC), Randolph Field, Texas.  The package was received
by Mr. Howard E. Reichley, a printing specialist.  In addition,
he acknowledged receipt of a letter of transmittal, dated
February 11, 1977, prepared by Carl L. Seta, and signed by Mr. R.
L. Allen, which stated in pertinent part the following:

"1.  Proofs have been reviewed and are considered to be
acceptable with a comment.  Shoot and strip-in new copy as
indicated on mechanical overlay". (Gov't. Ex. C)

Mr. Reichley noted changes in the copy arrangement as pasted on
the areas indicated, right and left.  The area to the right side
made reference to a WATS telephone number (800-447-4700) and the
left side in part relates in part to the fine opportunities in
the Air Force (TR. III-164). (Gov't Ex. I; Bd. Ex. 5); TR.
III-160, 163, 176, 183, 192)

Mr. Reichley outlined a third area on the overlay, the GPO
imprint encircled with red ink and inserted the phrase "set/strip
new copy" (TR. III-164).

He made duplicate reproductions of the specific areas of the
mechanical with the overlay in position and retained it for the
Contracting Officer's file. (Bd. Ex. 3, 4; TR. III-168, 208, 211)
He then telephoned Mr. Alan Wertlieb, General Manager, Queens
Lithographing Corporation in New York on the same date (2/14/77)
and notified him of the Air Force copy changes on the mechanical
indicated in red ink on the tissue overlay requiring that the two
areas of type be changed and transposed; in addition, to set and
strip-in the GPO imprint. (TR. III-205, 206, 208, 221, 223)

7.  On February 15, 1977, the proofs, art work mechanical,
overlay and a copy of the Air Force letter of transmittal, dated
February 11, 1977, was personally forwarded to appellant by Mr.
Reichley. (TR. III-168, 198).  They were received by Queens on
February 17, 1977, and handled by Mr. Alan Wertlieb.  He did not
read the camera copy (TR. I-134) nor did he make a duplicate
reproductive copy of the mechanical overlay.  (TR. I-106, 107,
108, 109; TR. II-29, 231, 233)  He testified that an author's
alteration is generally made on the proof, but that it is not
unusual for it to be on an overlay and mechanical.  (TR. I-132)

8.  Queens completed production of the book covers at its Rutgers
plant located at Indianapolis, Indiana, sometime during the early
part of March 1977 and forwarded samples to DRPPO and the
mechanical overlay and samples to the Air Force. (TR. II-14, 15,
152)  The production book covers included the GPO logo line but
not the revised copy.  The WATS telephone number was not
corrected (TR. II-44, 156, 157).  Mr. Reichley at DRPPO received
the sample book covers on March 18, 1977, and his inspection
revealed upon comparison with his retained copies of the
mechanical overlay and the sample completed book cover that
Queens had failed to incorporate the authors alterations made by
the Air Force. (TR. I-40,42; TR. III-168, 169, 170)

9.  Queens was notified of the discrepancy by Mr. Reichley on
March 18, 1977 and stated that the product was not usable.  The
Air Force received samples of the book cover and mechanical
overlay on March 22, 1977.  Mr. Carl Seta examined the samples
and observed that the Air Force revisions had not been
incorporated into the final product (TR. III-36, 38).  Mr. Seta
notified DRPPO by telephone on March 22, 1977, of the discrepancy
and indicated that the book covers were
unusable for the purpose for which they were intended, namely
recruiting, and that the job be rejected (TR. III-232, 233).

10.  The appellant requested that a meeting be held in Dallas
with its representatives and those of the Air Force aud GPO.  At
a meeting on April 1, 1977, the Contracting Officer asserted that
the revisions were clearly indicated on the mechanical overlay
and should have been made by Queens.  He requested that the job
be reprinted by Queens at no additional cost to the Government.
Since the Air Force schedule did not allow for reprinting, Queens
proposed that an effort be made to activate the invalid WATS
telephone number.  Queens agreed to pay for that service for a
period of two years.  The second alternative was to overprint the
existing book covers by blocking out the invalid WATS number and
inserting the correct one.  During subsequent meetings on April 7
and 12, 1977, having determined that activation of the invalid
WATS number was not attainable, Queens proposed and the
Government approved, a design for the overprinting of the book
covers.  Appellant agreed to retrieve all previously delivered
book.covers, overprint them in the agreed upon revision of the
WATS number and reship them in accordance with the specifications
(TR. I-55, 56, 57, 58; II-158, 166, 168)

11.  By letter dated April 14, 1977, the Contracting Officer
confirmed the proposal submitted by Queens to overprint the book
covers in such a manner as to block out the incorrect toll free
WATS telephone number and substitute the correct number. (Bd. Ex.
1; R4 P18; TR. I-61).  Queens, by letter, April 22, 1977, denied
liability as to fault, but indicated that it was proceeding with
the overprint as agreed upon and will deliver pursuant to the
schedule indicated by the Government (Bd. Ex. 1; R4 P20; TR.
I-60, 64; II-174, 175)

12.  By letter dated July 8, 1977, the Contracting Officer denied
appellant's request for reimbursement, whereupon Queens initiated
its appeal on August 2, 1977.  (Bd. Ex. 1; R4 P22, 23; TR.
II-222, 223)


The issue raised by this appeal involves a determination as to
whether the appellant or the Government was responsible for the
error in the printing of the book covers.  The appellants claim
that the only author's alteration that appeared on the mechanical
overlay when it was returned to Queens by the Dallas RPPO on
February 14, 1978, was to set and strip-in a GPO imprint line.

The Government contends that Air Force personnel had circled two
areas of the tissue overlay in red ink and had annotated them
with the phrase "shoot and strip-in new copy".  The revision
related to the transposition of copy relative to the art work and
a correct WATS toll free telephone number.

A considerable amount of testimony, together with documentary
exhibits, was elicited during the course of a lengthy hearing.
The posture of the evidence as developed indicated a meaningful
conflict in the testimony, and therefore there is a credibility
issue in this appeal.  The appellant contends that the Dallas
RPPO did not order the making of author's alterations that
included transposing the copy and correcting the WATS toll free
telephone number.  The testimony of Mr. Howard Reichley, GPO
Printing Specialist and Mr. Carl L. Seta, Reproduction Branch of
the Air Force at Randolph Field, Texas, and Messrs. Alan
Wertlieb, Vincent Patarino, Robert Ursillo, employees of the
appellant, is diametrically opposite and contradictory so as to
seem irreconcilable.

The appellant asserts that Mr. Carl Seta's (of the Air Force in
San Antonio) testimony is unworthy of belief and that the
testimony of his long time friend and associate, Mr. Howard E.
Reichley, DRPPO (Dallas) is tainted by the closeness of their
relationship.  The evidence reflects that Mr. Carl Seta, after
copy changes were made on the artboard, marked in red ink on the
tissue overlay over the copy as positioned on the artboard, added
the phrase on each side "shoot and strip-in new copy" on the
overlay.  He testified he then forwarded the proofs and
mechanical accompanied by a covering letter which he prepared,
dated February 11, 1977, which stated in part:  "Shoot and strip-
in new copy as indicated on mechanical overlay" to Mr. Reichley,
DRPPO.  Mr. Reichley testified that he noted the changes and
annotations made by Mr. Seta on the overlay. Mr. Reichley
outlined a third area on the overlay the GPO imprint line, with
red ink and inserted the phrase "Set/strip new copy".  Mr.
Reichley then made Xerox reproductions of the copy areas of the
mechanical with the overlay in position and filed them in the
contract file. He telephoned Mr. Wertlieb on February 14, 1977,
and advised him of the changes made.

Mr. Alan Wertlieb, testified that upon receipt of the mechanical
overlay and the accompanying letter, he inspected the mechanical
overlay and noted only one revision, the red box in the lower
right corner as relating to the GPO imprint. Mr. Patarino and
Robert Ursillo, concurred in their testimony that upon their view
of the overlay, they noted only one revision referring to the GPO

At this point we are challenged by a credibility issue.  The
evidence as adduced reflects that Mr. Reichley, Xeroxed the
pertinent areas of the mechanical with the overlay in position;
it was accepted into evidence.  Queens, upon receipt of the
mechanical did not prepare a duplicate copy of the overlay.  The
Xerox copies prepared by the Government, clearly revealed the
discrepancy between the product intended and that which was
actually produced.  Queens contended that the mechanical was
doctored by the Air Force after production was completed.  Such
serious allegations must be founded on clear and convincing
proof.  There is no evidence at all to support claimant's
allegations.  See Nichols & Co. v. United States, 156 Ct. Cl.
358, cert. denied, 371 U.S. 911.  The testimony clearly reflects
that the discrepancy was discovered by Mr. Reichley on samples
submitted by Queens in Dallas, Texas and reported to both Queens
and the Air Force on March 18, 1977, prior to the subsequent
receipt of the mechanical overlay, camera copy, and samples by
the Air Force on March 21, 1977.  We must therefore reject
appellant's unsupported allegation in regard to the changes being
made by the AF after production was completed.  The appellant
failed to meet the burden of proof to support this allegation.

The law recognizes in considering the credibility of witnesses
and the weight to be given to their testimony, the slanting
effect of the witnesses toward the parties or the self interest
of the witnesses in the outcome of the case.  Partiality and
relationships may be considered as relating to their credibility.
The Board, in this case, observed their manner of testifying such
as tone and demeanor, intelligence and knowledge of the
circumstances and disinterested relation to the matter in

The bias and self serving interest of Queens' witnesses,
according to their testimony, were weighed in considering their
credibility.  It is noted that Mr. Alan Wertlieb, was General
Manager of Commercial Printing and had been employed by Queens
for about twenty years.  He left Queens for another printing
plant under amiable terms sometime in February 1977.

In addition to Mr. Wertlieb's testimony, that of Mr. Vincent
Patarino, Production Manager, Rutgers plant, and also Mr. Robert
Ursillo, Production Manager, Rutgers plant, was weighed
concerning the facts and circumstances surrounding their handling
and processing of the mechanical overlay received by Queens on
February 17, 1977.  (TR. I-83-134, II-3-23, 60; TR.
I-152-164-177).  The bias and self serving interest of Queens'
witnesses who handled the mechanical overlay as loyal employees,
and the former General Manager may be considered on credibility,
but the position of the credibility of Government witnesses is
reinforced by the unchallenged evidence of the fact that a Xerox
copy of the areas of the mechanical was made prior to its receipt
by Queens; it clearly shows the author's alterations introduced
in the camera copy and the tissue overlay by the Air Force.

It is therefore considered that the responsibility for the
negligence and failure of Queens to incorporate the author's
alterations, at least as to the WATS number, in the book covers
must fall upon the appellant.

The next issue raised by appellant is that even if the author's
alterations were indicated on the overlay, but not on the proof,
Queens should not be held responsible in view of the testimony of
Mr. McKinley M. Luther, an expert witness called by appellant.
Although not a practical printer, he testified that he did
extensive research in determining the industry-wide customs and
usage applicable to printing and lithography.  He referred to a
compendium of the trade customs as provided in appellant's
Exhibit 6; II-76.

Exhibit 6 is titled "Agreements Between Printers and Customers"
and is published by the National Association of Printers and
Lithographers (NAPL), 570 Seventh Avenue, New York, N. Y. 10018,
1977 edition. He testified in line with what is presented in
paragraph 8 under "Trade Customs of the Printing and Lithographic
Industries" of the above-cited publication which reads as

". . .8. Proofs   Proofs shall be submitted with original copy.
Corrections are to be made on 'master set', returned marked
"O.K." or "O.K. with corrections" and signed by customer.  If
revised proofs are desired, request must be made when proofs are
returned.  Printer regrets any errors that may occur through
production undetected, but cannot be held responsible for errors
if the work is printed per customer's O.K. or if changes are
communicated verbally.  Printer shall not be responsible for
errors if the customer has not ordered or has refused to accept
proofs or has failed to return proofs with indication of changes
or has instructed printer to proceed without submission to
proofs. . . ."

He contends that the printer is not responsible for errors if the
customer has not communicated requested changes in the customary
and usual way.  He concluded that the practice prevailing in the
trade calls for corrections to be made on a master set of proofs,
returned "O.K.'ed with corrections" signed by the customer.  The
witness's opinion was in line with his version of the trade
custom, in response to a hypothetical question based on the facts
in the case as understood by appellant's counsel.  However, Mr.
Luther, in response to cross-examination and examination by
members of the panel stated that where camera ready copy is
positioned on the mechanical overlay by the customer and
accompanied by written instructions by the customer to shoot and
strip new copy, he would follow the instructions as written.  TR.
II-135, 136, 137.  He would recheck the proof since the original
proof was made from the mechanical overlay to ascertain whether
any changes were made in the camera copy. In the event his
inspection and study revealed new copy on the mechanical overlay
on the baseboard; and if he was in doubt as to the intent of the
instructions, this at least would have alerted him to telephone
the customer for an explanation concerning, what was required
(TR. II-138, 139, 140, 142).  It could therefore be concluded
based on the testimony of Mr. Luther, that there are other manner
and means, exclusive of what he testified were the industry-wide
customs and usages, as to incorporating author's alterations as
inscribed on camera copy, particularly when prepared and
furnished by the customer.

Article 13, entitled "Inspection and Tests", of GPO Contract
Terms No. 1, incorporated by reference in the contract, provides
in pertinent part:

". . . All material or workmanship shall be subject to inspection
at all times and places by employees or representatives of the
Government.  In case any article is found to be defective in
material or workmanship or not in conformity with the requirement
of the specifications, the Government shall have the right to
reject such articles, or require their correction.  If the
contractor fails to proceed properly with the replacement or
correction thereof, the Government may, by contract or otherwise,
replace or correct such articles and charge to the contractor the
excess cost occasioned the Government thereby, or the Government
may terminate the right of the contractor to proceed as provided
in the contract and charge to the contractor the excess cost
occasioned thereby."

. . .

In addition, GPO Form 2459D, Special Terms and Conditions,
incorporated by reference provides in pertinent part the

"WORKMANSHIP:  All workmanship in connection with the article or
product manufactured under these specifications must be first
class in every respect."

Article 13 of GPO Contract Terms No. 1 set forth above authorizes
the Government to reject a defective product unqualifiedly or to
require correction of the defects.  If the Government chooses to
permit a contractor to correct the product, the contractor is
required to correct the defects and complete delivery.  He is not
entitled to additional compensation because the work he was
directed to do was clearly part of the contract requirements.
For example, see W.M. Schlosser Company. Inc., GSBCA No. 2009,
66-2 BCA  5796; and Montgomery Ross Fisher, Inc. (1970), GSBCA
No. 2849, 70-1 BCA  8127.

In this instance, where time of delivery is of the essence, and
if the correction by the contractor cannot be made within the
delivery schedule, the Contracting Officer may require delivery
of the product, if the product is useable and acceptable by the
customer agency.  The contract herein as set forth provides for
such an arrangement.  In this case, the Contracting Officer,
after conference with the parties concerned permitted Queens at a
minimum to correct the WATS telephone number.  This allowed the
Air Force to get a useable product, but not the product it
ordered.  The procedure herein mitigated the expense and
additional costs that could have accrued against the appellant
and was within the contractual provisions set forth in GPO
Contract Terms No. 1, Article 13.  The Government was under no
obligation to accept the non-conforming product.  Henry C. Beck
Co.  (1966), VACAB No. 523, 66-1 BCA  5323.

The appellant, during the proceedings and in its brief raised the
issue as to whether the Government had any right to make changes
on the mechanical overlay after the initial proofs were made.
Queens asserts that in the absence of a proper change order
issued by the Contracting Officer, the Government had no right to
reject the performance of Queens, which conformed in all respects
to the original copy of the specifications.  It is contended that
under Article 2 of U.S. GPO Contract Terms No. 1, only the
Contracting Officer has the authority to order changes in
specifications and pursuant to the terms thereof, no oral
statements of any person may be allowed to change such

As a general rule, change orders may be initiated by the
Contracting Officer, or the contractor may request that a change
order be issued.  If the contractor has been directed to perform
the contracts in such a manner as to appear outside the scope of
the contract, or in excess of its requirements, it is his
obligation to notify the Contracting Officer of such situations
so that an appropriate change order may be issued.  However, in
this instance, we have items described as author's alterations
which a printing contractor customarily performing a print job
would be expected to render.  It is within the scope of the
contract, and therefore would not require a change order.

The appellant, a printing establishment with extensive experience
in performing Government contracts is well aware that the purpose
of submitting proofs as provided in the contract, is to obtain
"approval for printing".  We must interpret as reasonable, that
this permits the Government to make author's alterations of the
type incorporated in the mechanical overlay.  In fact, the
changes were already made by the Government as indicated in the
camera copy.  The Contractor's employees failed to recognize the
comments on the tissue overlay or to read the revised copy or to
be alerted by the remarks in the Air Force letter of February 11,

The changes requested by the Government were integrated into the
contract requirements by the trade practice for which the
contractor was responsible. Creative Arts Studio, Inc. (1970),
ASBCA No. 13217, 70-1 BCA  8165.

We must therefore reject the appellants claim for compensation
for additional costs for reprinting a corrected telephone number
plus the incidental costs thereto, based on the changes article
in the contract.  Evidence showed that the trade practice was to
consider author's alterations, as fairly comprehended in the
specifications, and thus we must therefore reject the claim. R.D.
Thayer Company  (1957), ASBCA No. 3900, 57-2 BCA  1410.

It is therefore concluded that the appellant was responsible to
produce the book covers in conformance with the Contracting
Officer's request to overprint the existing book covers by
blocking out the invalid WATS number and inserting the correct
one at no expense to the Government.


The appeal is accordingly denied.

Dissenting Opinion, June 11, 1979
Samuel Soopper, Member, Contract Appeals Board

Because of a substantial disagreement with both its assessment of
the facts and, more importantly, its application of the law I am
unable to join the opinion of the majority in this case.

The crucial issue in this appeal is whether the contractor was
apprised of changes to be made in the copy when the proofs were
returned to it for final printing.  As the majority notes,
resolution of this issue depends primarily on the credibility of
the witnesses of the two parties.  Appellant's witnesses
testified that the copy changes had not been made on the
mechanical overlay they received in February 1977.  Respondent's
witnesses testified that the changes had been made prior to the
submission of the material to appellant.

The majority speaks of appellant's position in these terms:

"Queens contended that the mechanical was doctored by the Air
Force after production was completed.  Such serious allegations
must be founded on clear and convincing proof.  There is no
evidence at all to support claimant's allegations.  See Nichols &
Company v.
United States, 156 Ct. Cl. 358, cert. denied, 371 U.S. 911."

Majority Opinion at 7.  1

At the outset, I do not agree with the majority's statement as to
the burden of proof which must be sustained by appellant on this
crucial issue.  As the Government recognizes in its Recommended
Findings of Fact and Conclusions at 4, the burden of proof
appellant has in this case is that of a preponderance of the
evidence.  In addition to cases cited by the Government, see
e.g., Lamonte J. Schnur, AGBCA No.  75-115, 77-1 BCA  12,290
(1977) (claim for work performed in excess of specifications);
Federal Division, The Victoreen Instrument Co., ASBCA No. 10194,
66-1 BCA  5486 (1966) (constructive change due to defective
specifications).  I think it is erroneous to hold appellant, as
the majority does, to a higher standard of proof.  The majority's
reliance on the Nichols  case is misplaced.  That case involved a
breach of contract claim based on an allegation of fraudulent
action by the Government.  The Court of Claims held that the
evidence put forth fell short of "that clear and convincing proof
necessary to prove fraud." 156 Ct. Cl. at 364.  Breach of
contract is not an issue here, and would, at any rate, be beyond
our jurisdiction.  Allegations of fraud and falsity are beyond
our jurisdiction as well.  The Bryant Company, Inc., HUD BCA Nos.
75-29, 75-30; 77-1 BCA  12,467 (1977); Vare
Industries, Incorporated, ASBCA Nos. 10337 and 11112, 67-2 BCA 
6463 (1967); Aywon Wire & Metal Corporation, ASBCA No. 4966, 1963
BCA  3912, reconsideration denied, 1963 BCA  3996.  While these
cases involve Government claims of contractor fraud, the same
principle should apply in this situation, since such allegations
by the contractor are essentially charges of breach of contract.
Cf. Midwest Telecommunications Corporation, ASBCA No. 21541, 77-2
BCA  12,581 (1977).  However, this does not mean that we may not
resolve the factual disputes raised here.  We may do this, and
retain our jurisdiction, by simply ignoring characterizations of
the evidence unnecessary to the resolution of this case.

As the Armed Services Board of Contract Appeals pointed out in
Aywon Wire & Metal Corporation, supra:

"The Board . . . does not decide whether appellant's claim is
false or fraudulent; does not decide whether any testimony is, or
any documents prepared or used by appellant are, fictitious and
false; and makes no factual findings with respect to such
matters.  In weighing the evidence presented in support of the
claim the Board has, of course, considered the Government's
objections thereto just as it has considered appellant's
objections to evidence relied on by the Government.  The Board
observes that in weighing evidence it may
decide that certain evidence is not persuasive or is in error
without deciding-or having any need to decide-that such evidence
is false, fictitious, or fraudulent."

1963 BCA  3912 at 19,395.

While the contractor has essentially alleged here that the
evidence was doctored post-production, its claim also is and
should be articulable only in terms of which party was negligent.
In other words, appellant to prevail must prove only that the
mechanical had not been changed when it was received for
printing, without regard to what happened to at a later time.
Appellant's burden in proving this should be by a preponderance
of the evidence, like any other claim before this Board.  By only
assessing appellant's evidence in the light of a higher and more
exacting standard, the majority has placed an unfair burden on
the contractor.

It was perhaps the standard used that led the majority to
disregard substantial evidence in the contractor's favor on this
issue.  While appellant's witnesses had no physical evidence to
corroborate their assertion that they reviewed the tissue overlay
and found none of Mr. Seta's instructions upon it, logical
inference does provide support for their position.  Appellant's
employees definitely did use the tissue overlay in order to add
the GPO imprint.  TR. I-112; TR.
II-22; Govt. Ex. 5.  If appellant's employees - and quite a few
employees were involved - noticed and acted on Mr. Reichley's
instructions on the overlay, why would they ignore those of Mr.
Seta?  This is especially intriguing since Mr. Seta's
instructions are significantly larger and more obvious to anybody
making even a quick perusal of the tissue overlay. 2
Furthermore, if Mr. Reichley did inform Mr. Wertlieb of all of
the changes in question, why would he not have accomplished them?
Even assuming that the instructions were to be found on the
overlay as the Government contends, one can only assume that the
phone call between the two men was a good deal less informative
than the Government would lead us to believe.

The majority does not discuss these points, but relies on Mr.
Seta's Xerox corroboration, presumed witness bias, as well as the
tone and demeanor of the witnesses while testifying.  Majority
Opinion at 7-8.

Assessment of tone and demeanor are necessarily subjective, and
if the majority's conclusions as to witness credibility differ
from mine on this basis, I have no argument.  The other points,
however, deserve some comment.

Regarding the Xerox, which seems to provide the foundation for
what the majority terms the "doctoring" charge, the testimony was
not quite so strong as a reading of the majority opinion would
lead one to believe.  Mr. Seta did testify that the Xerox showing
his copy correction on the tissue overlay was made prior to the
proofs being returned to the appellant in February.  However, Mr.
Seta was somewhat vague as to specific details of what occurred
at that time, which was quite understandable in light of the
substantial time that had passed.  See TR. III-17-18.  He
testified that standard practice was to make a Xerox of the
changes, but he could not recollect making the copy himself in
this case.  Very likely it would have been made by somebody else
in the office.  TR. III-18-21.  Furthermore, he acknowledged that
there was nothing in writing to corroborate when this copy may
have been made.  TR. III-22.

Of even greater concern is the majority's discussion of witness
bias.  I agree that employment by a party is a relationship
likely to produce partiality, and that this may be weighed in
assessing witness credibility.  McCormick, Evidence, 40 (Cleary
Ed. 1972).  However, the majority not only overemphasizes the
concept, but also misapplies it to the facts of this case.  At
the operative time period about
which the witnesses testified, all of the witnesses but one were
employed by one of the parties:  the Government's witnesses by
the Government, and appellant's witnesses by appellant. 3  At the
time of the hearing, Alan Wertlieb was no longer employed by
appellant, but had left to work at another printing plant for
unspecified reasons.  Howard E. Reichley was retired at the time
of the hearing, though he testified that he was seeking a job as
a printing specialist with the Air Force at Randolph Air Force
Base, the customer agency on this contract.  TR. III-199-200.
Additionally, Mr. Reichley and Mr. Seta had previously worked
together.  TR. III-5-6.  This is the only evidence adduced by
either side concerning bias of the witnesses.  In my opinion,
this is of little probative value, in that the presumed bias of
both side's witnesses essentially cancels out.  One might,
though, say that appellant is a little stronger in this area,
since Mr. Reichley was seeking a job with the Air Force, while
there was no evidence that Mr. Wertlieb was seeking reemployment
with appellant.  However, the majority without explanation takes
the opposite view.  While it makes no mention of Mr. Reichley's
situation, it concludes that "[t]he bias and self serving
interest of Queens' witnesses who handled the mechanical overlay
as loyal employees and the former General Manager may be
considered on credibility . . . ."
Majority Opinion at 8.  I take this somewhat cryptic comment to
mean that the majority did consider this to appellant's
detriment.  No such consideration was made the Government's
witnesses, apparently because of the "unchallenged evidence" of
Mr. Reichley's Xerox. Id.   I do not think the two are related,
and question whether the Xeroxed evidence is unchallenged, as
noted above.

I am forced to conclude that the contractor was prejudiced by the
majority's erroneous use and undue stress on presumed bias of
appellant's witnesses.

Appellant also alleged that it should not be held responsible for
the author's alterations in question even had they been indicated
on the overlay. I feel that the majority failed to confront
evidence supportive of appellant on this point as well.

The thrust of appellant's argument here is that trade custom
dictated that the author's alterations should have been indicated
on the proofs, rather than the mechanical overlay.  Since the
contract does not speak specifically to this point, trade custom
is admissible to show the intent of the parties. 4  In fact, the
Government acknowledged that it was customary for author's
alterations to be indicated on the proof, even though it was not
done in this case. TR. III-39, 132, 243-244.  The majority does
not address this significant fact.

Nor does it mention that the contract did not contemplate that
the tissue overlay would be used for such corrections.  Rather,
the specifications indicated that the artboard would contain "one
acetate overlay for position only of 4 color illustration
dropout, and one tissue overlay denoting color treatment . . . ."
Majority Opinion at 2 quoting Specifications at 2 of 6.
(Emphasis added.) The Government could not explain this
discrepancy.  TR. III-223-225.

To this must be added to the Government's admission that the
changes were of sufficient magnitude that a reproof would have
been requested had there been sufficient time.  TR. III-202, 204.
Moreover, the Government waived its contractual right to pre-
inspection, which would, of course, have avoided this problem.
TR. I-lll.

The majority discusses this issue only in relation to the
testimony of appellant's expert, McKinley M. Luther, and
paragraph 8 of "Trade Customs of the Printing and Lithographic
Industries", introduced by appellant as Ex. 6.  Both the exhibit
and the expert indicated that changes on the proofs are the
customary way to indicate author's alterations in the printing
industry.  Appellant's Ex. 6; TR. II-85-86.  However, the
majority concludes as follows:

"However, Mr. Luther, in response to cross-examination and
examination by members of the panel stated that where camera
ready copy is positioned on the mechanical overlay by the
customer and accompanied by written instructions by the customer
to shoot and strip new copy, he would follow the instructions as
written . . . He would recheck the proofs since the original
proof was made from the mechanical overlay to ascertain whether
any changes were made in the camera copy.  In the event his
inspection and study revealed new copy on the mechanical overlay
on the baseboard; [sic] and that if he was in doubt as to the
intent of the instructions, this at least would have alerted him
to telephone the customer for an explanation concerning, [sic]
what was required.  . . ."

Majority Opinion at 9 (citations omitted).

The reference to "accompanied by written instructions" is
presumably to the letter from R. L. Allen of February 11, 1977,
Govt. Ex. C, which stated, in pertinent part:

"Proofs have been reviewed and are considered to be acceptable
with a comment.  Shoot and strip-in new copy as indicated on
mechanical overlay."

Appellant adduced testimony that this cursory message was taken
to refer to the addition of the GPO imprint line.  TR. I-170; TR.
II-32.  Even Mr. Seta acknowledged that the letter in itself was
insufficient to apprise the contractor of the changes to be made,
since the individual alterations were not detailed in the letter.
TR. III-130.  This is certainly strong evidence that the letter's
instructions were ambiguous.

The majority's reliance on Mr. Luther's proposition that he would
have telephoned for an explanation if he was in doubt as to the
intent of the customer's instructions is also questionable in
light of the evidence that Mr. Wertlieb did indeed call Mr.
Reichley when he noticed that the proofs were unmarked.  TR. I-

I think the majority's explanation for its conclusion on both of
the issues discussed is insufficient.  Because of its
misapplication of the pertinent legal standards, and its failure
to deal with significant evidence supporting appellant, I cannot
join the majority's opinion and must dissent.


1  The majority also concludes that no change order was necessary
for appellant to be requested to make the author's alterations in
question.  Majority Opinion at 10-11.  While I am not at all sure
that this is the case, this issue is not material.  The expense
to which appellant would be entitled were a change order
necessary is small.  TR. I-149-150.  The reprinting, because of
the failure to incorporate the author's alterations, is a
separate issue.  Whether this failure is the result of
appellant's negligence is the primary issue in this appeal, and
it cannot.be alleged to have been caused by lack of change order.

2  As Mr. Wertlieb indicated in testimony:

"You would have to be almost blind to miss it.  It is very
obvious, being in red, circled around the copy.  It is an obvious
thing that took us quite by surprise when we first saw it."

 TR-I-143.  See  also  TR. I-156-157 (testimony of Mr. Ursillo).

3  The only exception is Mr. McKinley Luther, an expert in the
printing industry who testified for appellant and was at no time
employed by appellant in the regular course of business.

4  See, e.g., Kenneth Reed Construction Corp. v. United States,
201 Ct.  Cl. 281, 475 F.2d 583 (1973); WRB Corporation v. United
States, 183 Ct. Cl. 409, 445, 454 (1968).  Expert testimony and
industry codes are common methods of establishing trade customs.
See Davho Company, Inc., VACAB No. 1004, 73-1 BCA  9848 (1973)
at 46,006.