Appeal of Technical Publishing Services, Inc.
Decision dated January 20, 1982

Panel 81-1


This is a decision on a timely appeal filed by Technical
Publishing Service, Inc. (hereafter referred to as the
contractor).  The contractor disputes the final decision of the
Contracting Officer to terminate the contractor for default and
to hold it responsible for the excess costs of reprocurement.
This appeal is taken in accordance with Article 3 (the "Disputes"
clause) of the Government Printing Office (the GPO) Contract
Terms No. 1, GPO Publication 310.2, revised August 1, 1979.
Contract Terms No. 1 was incorporated by reference into the
specifications of the contract.  Exhibit 14 of the Appeal File
(hereafter the A.F.) The specifications were incorporated by
reference into the Purchase Order.  Exhibit 12, A.F.  The
contract (Program 1715-S) required the contractor to produce
various looseleaf and side-stitched books and pamphlets.  The
final decision of the Contracting Officer held that the
contractor failed to comply with the shipping schedules as
specified in the contract.

The jurisdiction of the GPO Contract Appeals Board over this
appeal was established pursuant to GPO Instruction 110.10,
entitled "Board of Contract Appeals Rules of Practice and
Procedure", and Contract Terms No. 1, supra.  This decision of
the Contract Appeals Board is based solely upon the record which
consists of the documents and exhibits within the Appeal File.


On July 1, 1980, in accordance with standard GPO contract award
procedures, Purchase Order K4499 of the contract, Program 1715-S,
for the procurement of the Department of Navy publication
entitled "Pocket Checklist and Guide" was awarded to the
contractor.  Exhibit 12, A.F.  The award was based upon a bid
submitted by the contractor.  Exhibit 13, A.F.  According to the
specifications, the contractor was required to print looseleaf
and side-stitched books and pamphlets, in accordance with various
print orders that were to be issued over the term of the
contract.  The contractor was alerted that the print orders may
vary in their requirements.  On page 10 of the contract
specifications, the contractor was notified that it would have to
adhere strictly to the performance schedule established in each
print order.  Exhibit 14, A.F.

On September 24, 1980, the contractor was informed by show cause
notice that it had failed to comply with the shipping schedule on
each of the nine print orders that had been issued in the
previous three months.  Exhibit 9, A.F.  A list of the delinquent
orders and the delinquent orders themselves are contained in
Exhibit 10, A.F.  It was stated in the notice that because of
this failure to perform the contract within the time limits set
out therein, the Government was considering terminating the
contract for default.  The contractor was given 10 days to
respond. Exhibit 9, A.F.

By letter dated October 20, 1980, the contractor provided various
excuses for its late deliveries of orders.  The contractor
alleged that the problems experienced by it were caused by events
beyond its control and through no fault or negligence on its
part.  Exhibits 8 and D, A.F.  In response, the Contracting
Officer stated that the contractor's excuse for its failure to
comply with the shipping schedule failed to provide substantive
reason or justification for the continued and extensive late
deliveries.  Exhibit 7, A.F.  Furthermore, in a letter dated
November 3, 1980, the Contracting Officer specifically responded
to the contractor.  Exhibit 6, A.F.  This correspondence was
followed by a Notice of Termination of the contract.  The reason
for the default was the contractor's continued failure to comply
with the shipping schedules.  Exhibit 3, A.F.  The contractor was
also warned that it would be liable for any excess costs that may
arise due after reprocurement.

The contract was reprocured from OKT Colson, the second lowest
bidder in the original procurement, Exhibits 2, A and E.  The
excess costs of reprocurement from this company amounted to

The contractor appealed the Contracting Officer's final decision
by letter to the Public Printer.  Exhibit 1, A.F.  The contractor
challenged this decision to default and subsequent assessment of
reprocurement costs, alleging that these actions were
unreasonable.  On January 22, 1981, the GPO notified the
contractor that this appeal was to be handled in accordance with
GPO Instruction 110.10, supra.

On September 4, 1981, the contractor requested an informal
hearing which was then scheduled for December 10, 1981.  The
contractor was notified of this hearing date by letters from the
Administrator, GPO Contract Appeals Board and the Chairman of the
GPO Contract Appeals Panel dated October 6 and 15, 1981,
respectively.  The contractor acquiesced to that date.  The
hearing was convened at 9:00 a.m. on December 10, 1981, however,
neither the contractor nor any of its representatives were
present, with no excuse forthcoming explaining the absence.  As
in any case of the unexcused absence of one of the parties, the
Panel proceeded with the hearing and the contractor's case was
considered to be submitted on the written record.  This procedure
is in accordance with Paragraph 13(d) of the aforementioned GPO
Instruction 110.10.


The first issue presented by this appeal for resolution is
whether the Government properly terminated this contract for
default in accordance with the terms of the contract.

In cases of default, the Government has the initial burden of
showing that the contractor had defaulted in its performance of
the contract.  Caskel Forge Inc., ASBCA No. 6205, 61-1 BCA 
2,891; National Aviation Electronics, Inc., ASBCA No 18256, 74-2
BCA  10,677.  Once the default has been established, the
contractor then.has the burden of demonstrating that the default
was excusable.  B.M. Harrison Electrosonics, Inc., ASBCA No.
7684, 1963 BCA  3,736; Hy-Cal Engineering Corp., NASA Nos.
871-18 and 772-7, 75-2 BCA  11,399; see also Article 17(c),

The Government justified its termination for default on the
grounds that the deliveries on various print orders were
delinquent.  The Government possesses the contractual right to
terminate the unperformed portion of the contract for any late
deliveries.  Article 17(a)(l), Contract Terms No. 1 which
provides this contractual right reads in part as follows:

"Article 17.  Default
"(a) The Government may, subject to the provisions of paragraph
(c) of this article, by written notice of default to the
contractor, terminate the whole or any part of the contract in
any one of the following circumstances:

(1) If the contractor fails to make delivery of the supplies or
to perform the services within the time specified herein or any
extension thereof; . . ."

In the instant case, the burden of proof placed upon the
Government to demonstrate that the contractor had defaulted on
the contract is easily met.  The contractor continually failed to
submit the publications in a timely fashion.  Exhibits 3 and
ll,A.F.  The record, therefore, makes out a prima facie case of a
failure to perform.  General Equipment Company, ASBCA No. 6415,
1964 BCA  4166.

While the Government did accept many late deliveries of orders,
there was no waiver of the right to terminate or no bar to the
Government's insistence of strict compliance with the delivery
dates for later shipments.  P.J. Hydraulics, Inc., ASBCA No
16310, 72-2 BCA  9524.  Each delivery was a separate and
severable obligation, the delinquent shipment of which allowed
the Government to terminate on each occasion of delinquency.
LAPP Insulator Company, Inc., ASBCA No. 13303, 70-1 BCA  8219;
see also, Elcee Printing, GPO BCA No. 5-79, March 4, 1980.

Faced with the probability that future print orders would not be
shipped in a timely fashion, it was within the discretion of the
Contracting Officer to terminate the contract and he did properly
do so.  Exhibits 3 and A, A.F.

Having established that the Government possessed the right to
terminate the contract for non-delivery of goods and exercised
that right in the proper manner, the burden shifts to the
contractor to prove that the delay was excusable.  The contractor
seeks to excuse its actions by alleging that any delay was
justified because of climatic conditions and equipment failure.
Exhibits 5, 8 and D, A.F.  The contractor has not supported these
claims by anything other than its own letters.  These alone are
insufficient proof to support the contractor's claims that its
delay was excusable.  In Empire State Tree Service, VACAB No.
949, 71-1 BCA  8716, pg. 40,498, the Board disallowed the
contractor's contention that performance should be excused
because unusually severe weather prevented completion of the
contract.  In finding that the record did not establish that the
weather conditions were other than those normally expected when
the contract was made, the Board stated in that case:

". . . mere statements in claim letters, unsupported by
corroborative evidence of probative value, are not sufficient
proof of essential facts which are in dispute." (Pg. 40,500.)

This situation is analogous to the case at bar.  If the appellant
had proven it was impossible to perform within the specified time
limits, then the delay might be judged excusable.  However, the
contractor's documents contain only self-serving and
uncorroborated assertions.  This falls short of sustaining the
burden of proof imposed upon it by law.  See also, Federal
Contractors, Inc., ASBCA No. 14336, 71-1 BCA  8723, at pg.
40,516, and Margold Electric Company, Inc., ASBCA Nos. 15984,
15985, 72-2 BCA  9,646 at 45,041.

The contractor has also alleged that it was impossible to perform
the contract within the time constraints because of the breakdown
of its 45" Challenge cutter.  Exhibits 5, 8, and D, A.F.  However
the breakdown of this equipment is not such a reason as could be
considered beyond the contractor's control or without its fault.
The contractor is obligated to have on hand the equipment needed
to produce the publications that it had contracted to deliver.
Failure to have the necessary facilities or means is not such
cause as would excuse untimely delivery under this contract.  Rex
System Corp., ASBCA No. 11,327, 66-1 BCA  5597; Universal Steel
Strapping Co., ASBCA No. 10673, 65-2 BCA  5066.  Moreover, there
was no evidence presented by the contractor demonstrating that it
attempted to obtain other equipment while its cutter was being
repaired.  Therefore, this claim can not sustain the burden of
proof necessary to allow a defense of excuse.

The second issue to be resolved in this decision is whether the
assessment of the excess costs of reprocurement was proper in
this case.

Following a valid default termination, one of the most important
of the Government's contractual remedies is the right to assess
the defaulted contractor the excess costs of reprocuring the
unperformed part of, or if necessary, the entire contract from
another contractor.  Environmental Tectronics Corp., ASBCA 21204,
78-1 BCA  12,986; see also, Article 17(b).

In the case at bar, the Government did assess against the
contractor for the excess costs of reprocurement.  It is the
judgment of this Board that this assessment was proper in that
the Government mitigated the excess costs of reprocurment by
negotiating for the contract with the lowest bidder from the
original solicitation.  Exhibits A and E, A.F.  This negotiation
was reasonable because of the necessity of obtaining these
documents without incurring further delay by readvertising the
solicitation.  Exhibit A, A.F.  We hold that given, the nature of
this contract, further solicitation was unnecessary.  Therefore,
this reprocurement procedure was logical and justifiable.


Based upon the above reasoning, the decision of the Contracting
Officer to terminate the contractor for default and to assess
costs of reprocurement against the contractor is upheld.
Accordingly, the contractor's appeal is denied in its entirety.