Panel 80-8
Neal Fine, Chairman
C. Peel, Jr., Member
Charles T. Ray, Member

Appeal of Nekoosa Press, Incorporated
February 27, 1981

I.  This decision concerns an appeal filed on July 23, 1980, by
Nekoosa Press, Incorporated, 313 Market Street, Nekoosa,
Wisconsin 54457, in regard to June 25, 1980 decision of Mr.
Thomas P. Brannon, Manager, GPO Atlanta Printing Procurement
Office concerning Jacket 647-454, Purchase Order F-3922.  This
decision is rendered pursuant to the provisions of GPO
Instruction 110.1A, Board of Contract Appeals Rules of Practice
and Procedure.

II. Issues Presented

The first issue presented is whether the United States Government
Printing Office, hereinafter referred to as GPO, properly
terminated for default its contract with Nekoosa Press,
Incorporated hereinafter, the contractor, in regard to Purchase
Order F-3922, Jacket 647-454.

The second issue is whether the GPO properly held the contractor
liable for any excess costs incurred as a result of the default.

III. Finding of Fact

1.  On April 3, 1980 the GPO solicited bids on GPO Jacket
647-454.  The contract was awarded to Nekoosa on April 22, 1980,
in accordance with its Quotation Number 05426 and the GPO

The contract concerned the printing and manufacturing of 300,020
expansion type file folders equipped with two permanently affixed
metal fasteners.

The GPO agreed to pay the contractor $37,500 for the performance
of this work.  The work was to be delivered in accordance with
the shipping instructions on or before June 15, 1980.

2.  The contract specifically provided that the contractor was
subject to all terms and conditions of U.S. Government Printing
Office Contract Terms No. 1 revised August 1979, and Quality
Assurance Through Attributes dated May 1979 (GPO Pub. 310.1). 1/

3.  The record indicates that on May 20, 1980, the Contracting
Officer wrote to the contractor requesting a detailed production
schedule which included the date upon which the paper for this
job would be delivered. 2/  The response to this request
indicated that the paper was scheduled to arrive on or about May
31, 1980, and that shipment would be on or about July 1, 1980. 3/

4.  A memorandum dated June 11, 1980 from the Atlanta Regional
Procurement Office indicates Mr. Wingo of Nekoosa informed the
GPO on June 11, 1980 that because the paper for this order had
not yet arrived production had not been initiated. 4/

5.  On June 12, 1980 the contractor was informed by telephone and
telegram that the GPO considered the performance of the contract
as endangered and that it would terminate the contract for
default unless the paper was delivered and the unfinished folders
delivered to the finishing company within ten (10) days. 5/

6.  On June 23, 1980 the GPO received a letter from Mr. Wingo of
Nekoosa Press informing them that he was experiencing difficulty
in obtaining paper supplies because suppliers would not provide
paper without prior confirmation by the GPO that the paper met
specifications.  The appellant also at this time requested an
extension of time to complete the contract. 6/

7.  On June 25, 1980 the contractor was notified by Mr. Brannon,
Manager of the GPO Atlanta Printing Procurement Office that the
contract, identified as Purchase Order F-3922, Jacket 647-454,
was being terminated for default on the grounds that the failure
to obtain the paper made it impossible to meet the shipping date
of June 30, 1980.  The contractor was informed of his rights
under the Disputes Provisions of the contract. 7/

8.  On July 23, 1980, the GPO received a letter from the
contractor appealing on all counts the decision of default. 8/

9.  The GPO informed the contractor on August 14, 1980, that it
had thirty (30) days to submit any supplemental material and
information which it deemed relevant to the appeal, and that it
could have the appeal decided on the basis of only written
documentation or at an informal hearing and written

10. On October 31, 1980, the GPO Administration, of Board of
Contract Appeals selected the undersigned panel to decide the
appeal based solely on the written documentation since no
response was received from the contractor to the letter of August
14, 1980.

11. On January 7, 1981, the appellant was notified by letter that
the Appeal Panel had scheduled an informal hearing on January 22,

12. The panel convened a hearing on January 22, 1981.  The GPO
was represented by James Lane, Esq.  The appellant did not attend
the hearing.

IV. Findings of Law and Conclusions

The matter at hand concerns a contract entered into between
Nekoosa Press, Inc. and the United States Government Printing
Office.  The term "contract" has been defined in many ways by
legal scholars and in judicial opinions over a long period of
time.  The most popular description of a contract is a promise or
set of promises which the law will enforce.  The specific mark of
a contract is the creation of a right, not to a thing, but to
another man's conduct in the future. 9/

This definition aptly fits the facts and circumstances raised by
this appeal.  The appellant was awarded a contract on April 22,
1980, which required that he produce 300,020 folders which were
to be shipped by June 15, 1980.  In consideration for this
promise to perform, the GPO agreed to pay Nekoosa the sum of
$37,500.  Article 2 of GPO Contract Terms No. 1 specifically
provides that any change in the contract terms shall be made in
writing.  The Board finds that no change in the terms of the
contract was made.

The appeal stems from the Government's actions pursuant to
Article 17, Default, of the contract.  This article provides that
the Government may terminate the contract ". . . if the
contractor fails to perform any of the other provisions of the
contract, or so fails to make progress as to endanger performance
of the contract in accordance with its terms, and in either of
these two circumstances does not cure such failure within a
period of 10 days . . . after receipt of notice from the
Contracting Office specifying such failure."

The facts presented to this Panel of the Board of Contract
Appeals clearly and irrefutably prove that the contractor did not
perform in accordance with terms of the contract and that the
Government acted properly in terminating the contract pursuant to
Article 17.

The Appellant contended in his letter of appeal that his failure
to perform is mitigated by two factors.  First, the Appellant
contends that GPO wrongfully failed to approve or reject a paper
sample which was submitted on or about May 9, 1980.  Second, the
Appellant contends that he was not able to obtain paper from any
supplier without prior approval from the GPO that the paper met
its requirements.

The law does not support the contentions of the Appellant.  It
has been held that a contractor impliedly represents when he
makes his bid that he can accomplish what he sets out to do
within the time upon which there was an agreement.  Woodhull
Construction Company, ASBCA, 57-1 BCA 1260.  It is a well settled
principle of contract law that a contractor who claims that its
late performance and delivery is excusable has the burden of
proving the same under the terms of the contract.  It must prove
affirmatively that the failure to achieve timely performance was
caused by or caused out of a situation beyond its control and
without its fault or negligence.  Lee K. Geiger Construction
Company, GSBCA, 67-1 BCA 6189.

In the case of Federal Roofing and Painting Inc., Eng. BCA,  68-1
BCA 6912, the Board held that the appellant had an obligation to
determine the availability, prices and delivery dates of
materials needed for the contract.

The appellant's contention that GPO wrongfully did not approve or
reject the paper sample submitted on or about May 9th is without
merit.  Paragraph 5 in GPO Publication 310.1, Quality Assurance
Through Attributes, which was part of the contract, specifically
provides that the responsibility for inspection of materials to
insure their conformance with contract specifications rests with
the contractor.  The contract did not provide in any manner that
the GPO would perform any testing services for the contractor.
The right of GPO to inspect and conduct tests does not release
the contractor from his responsibility.

The language in this portion of the contract is clear and
unambiguous.  The contractor cannot fault the GPO for not
performing an act which it did not agree to perform.  The GPO
obligated itself to supply one sample folder for copy and
construction purposes.  It provided detailed specifications of
the type of paper which was needed to produce the folders.  No
language can be found in the contract which implicitly or
explicitly provided that the contractor could avail itself of the
services of GPO to test paper samples which the contractor
supplied.  The contractor's unilateral decision to submit a paper
sample for testing did not serve to change the express terms of
the contract.  No evidence exists in the record which would
indicate that the GPO ever agreed to perform this service.
Accordingly, the Panel finds this assertion of the appellant to
be without merit.

The second basis of the appeal is that the contractor alleges an
inability to procure the necessary paper.  The contractor asserts
in his letter of appeal that he was unable to obtain paper from
any supplier without prior approval from the customer.  In
support of this assertion the contractor submitted a letter dated
July 2, 1980, from Consolidated Papers, Inc. which stated that it
would not supply paper until the GPO had given specific approval
of its product.  The letter also stated that the paper would not
be supplied until the contractor submitted a satisfactory letter
of credit from a bank.

While the contract provides in Article 17(c) that the contractor
will not be liable for excess costs if the failure to perform
arises out of causes beyond the control and without fault or
negligence of the contractor, the case law on this issue
uniformly requires the shortage of supplies to be abnormal and
unforeseeable, American Emblem Co., Inc.,  NDBCA No. 38, 1 CCF 9
(1943).  Mere difficulty in obtaining or unavailability in the
usual course of business does not constitute impossibility of
performance so as to excuse default in the absence of a clear
showing that such conditions were so abnormal, extraordinary or
unusual that they could not have been foreseen or anticipated at
the time of making the contract, Thermo Nuclear Wire Industries,
ASBCA, 61-1 BCA 2889.  The law clearly holds that the burden of
proof is on the contractor to demonstrate that failure to obtain
the proper supplies was due to causes beyond the contractor's
control, Beco, Inc., ASBCA, 1964 BCA 4493.

The contractor in this matter has clearly not met the burden of
proof required by the law.  His inability to procure paper was
not caused by conditions beyond his control.  The contract
provides that the testing of supplies is the contractor's
responsibility.  The only evidence supplied by the contractor to
support his allegation of inability to procure supplies is a
letter dated July 2, 1980.  This letter is clearly an after-the-
fact attempt to justify the contractor's failure to perform.
First, it is dated July 2, 1980, a date which is after the date
when the contractor was supposed to have completed and shipped
the folders.  No evidence was submitted as proffered in the
letter of appeal of any other supplier's refusal to provide
paper.  Secondly, the supplier conditioned his providing of paper
on receipt of a letter of credit from the contractor.

These two conditions of one supplier do not fall within the list
of excusable causes in the contract such as fires, flood,
epidemics, strikes, freight embargoes, acts of God or acts of the

This single piece of evidence hardly provides a basis for this
Panel of the Board of Contract Appeals or any Board to rule that
the contractor's default was excusable.

A contract is a serious matter.  Each side promises to do
something.  The appellant in this matter promised to produce by
June 15, 300,020 folders.  The GPO promised to pay $37,500.  The
evidence without any question establishes that the contractor did
not perform any portion of the acts necessary to complete the
contract.  The Government obviously had no recourse but to
terminate the contract and attempt to reprocure the desired
items.  The right of the Government to pass on the excess costs
which it incurred is clearly set forth in the contract.  The
appellant knew of this right and now cannot claim that it is
wrong or unfair.  When a contract is made each side must live up
to its promises or suffer the agreed upon consequences.  No
evidence exists to indicate to this Panel that the Government has
exceeded its contractual rights.

Accordingly, for the reasons set forth this Panel denies the
appeal of Nekoosa Press and finds that the actions of the
Printing Procurement Manager and the GPO were correct.


1/ Index Exhibit 1
2/ Index Exhibit 4
3/ Index Exhibit 5
4/ Index Exhibit 6
5/ Index Exhibit 6
6/ Index Exhibit 7
7/ Index Exhibit 9
8/ Index Exhibit 10
9/ Wald's Pollock, Contracts (3d. Ed.) pp. 1, 2