Panel 81-8
Neal H. Fine, Chairman
Robert W. Armentrout
Charles D. Collison

Appeal of Excell Products
Jacket no. 637-703
November 3, 1982

I.  This decision concerns an appeal filed on June 2, 1981, by Excell Products, P.O. Box 847,
Nicoma Park, Oklahoma 73066 in regard to the March 9, 1981, decision of the Manager of the Hampton
Regional Printing Procurement Office that the decals procured in accordance with Jacket 637-703,
Purchase Order E-1771, did not meet the government's specifications.

II. Issue Presented.

The issue presented is whether the final decision issued on March 9, 1981, by the Regional
Procurement Manager that the product was rejected because it did not meet the specifications and
was determined to be unusable was in accordance with the terms of the contract.

III. Findings of Fact.

1.  On September 4, 1980, a contract identified as Purchase No. E-1771, Jacket No. 637-703 was let
to Excell Products by the GPO.  The contract was for the printing of approximately 500,000 three-
inch circular die-cut out decals for the Department of the Army.

2.  The contract was issued in accordance with a bid dated September 2, 1980, by Excell Products
for the net amount of $12,669.99.  The date of shipment as per the terms of the contract was
October 21, 1980.

3.  The specifications for the contract specifically provided:

A-1 hi-quality printing and die-cutting is required.  Ink coverage is to be full and uniform
throughout the entire press run.  Image is to be sharp and free from halos on outside of image,
press slurs or hickeys.  The image is to be centered in the die-cut with equal margins all around.
The products received that are other than A-1 quality will be subject to rejection.

4.  The specifications provided:

The bidder agrees that any contract resulting from the bid is offered shall be subject to all terms
and conditions of the U. S.  Government Printing Office Contract Terms No. 1, revised August 1979
(GPO Pub. 310.2), Appeal File Exhibit 2.

The Purchase Order dated September 4, 1980, provided, " . . . In strict accordance with your
telephone quotation dated September 2, 1980, and our specifications," Appeal File Exhibit 7.  The
Purchase Order further provided:

The Public Printer reserves the right to reject all or any portion of consignments which are not in
accordance with specifications.

5.  In the specifications for the contract GPO agreed to furnish the following to the contractor:

1 piece of black and white camera copy to be shot at approximately 130%.  Contractor will be
required to separate the red, yellow, and blue by masking or opaquing.  Contractor to make three
line reproducibles in the 1-25 square inch group.  One sample of a previous printing to use as a
guide plus color, swatches, or red, yellow, and blue inks.

The specifications also provided, in regard to binding, the following requirements:  After
printing, laminate the product with .001 inch thick clear, transparent, and polished vinyl or
polyester or .002 inch cellulose acetate.  Coat the back of the decal with water insoluble,
permanent type, and pressure sensitive adhesive.  Mount unsuitable backing sheet-slit back for easy
removal and die-cut out decal and backing sheet in a three-inch circle.

6.  On October 30, 1980, the Manager of the Regional Printing Procurement Office wrote to Excell
Products concerning late delivery of the decals in issue.  The GPO stated in the letter that
because of the Department's needs that the alternate shipping date of November 3, 1980, would be
accepted, Appeal Exhibit 9.

7.  On December 3, 1980, Excell Products received a letter confirming a telephone conversation on
November 26, 1980, concerning GPO Jacket 637-703, Appeal File Exhibit 12.  The letter stated that
the order for the decals was being rejected for the following reasons:

1.  Poor color registration.

2.  Poor quality die-cutting.

3.  Uneven margins.

4. Other imperfections such as blistering, hickies, and poor ink coverage have also occurred
throughout the finished product.

The letter from the Manager noted the original specifications under press work and stated:

We are returning the same material as originally furnished with the initial order.  The sample from
a previous printing is furnished as a general guide to registration, die-cutting, and finishing.

This order is to be produced and delivered in complete accordance with the original specification
and to be delivered on or before January 15, 1981, at no additional cost to the government.

As agreed in the telephone conversation, the original consignment will be destroyed except for
approximately 1,000 randomly selected copies which will be held at the GPO, Appeal File Exhibit 12

8.  A memorandum dated February 4, 1981, from the Printing Specialist, Fort Monroe, VA in regard to
GPO Jacket 637-703 states that on November 7, 1980, the decals from Excell Products were received
and upon inspection the following defects were found:

1. Poor registration of the sword.  This defect was very visible to the ordinary eye.

2.  The sword was surrounded by a dark image which created a halo effect.  The image was very
visible to the ordinary eye.

3.  Poor die-cutting was extremely evident.  Some decals were cut into the red ring which surrounds
the ROTC emblem, Appeal File Exhibit 18.

9.  A January 23, 1981, letter from Excell Products to the Manager of the Hampton Regional Printing
Procurement Office took exception to the rejection of the decal shipment.  Excell Products stated
that the company had used an ink manufacturer to match the color swatches and that:

It was not our fault that the color your customers selected for the decal was not opaque enough to
cover the yellow.

Excell Products further asserted in the letter that they had matched the color swatches in the
specifications.  In regard to the poor quality in die-cutting, margins, and other imperfections,
Excell contended that the samples returned were a very small percentage of the Order and thus the
imperfections by themselves were not sufficient reason to reject the entire order.

10.  The final decision letter of the Manager of the Hampton Regional Procurement Office was sent
to Excell products on March 9, 1981.  The letter set forth in detail the chronology of events and
reasons for the rejection of the decal order.

11.  Excell Products submitted a letter dated June 2, 1981, and received June 5, 1981 by the
Hampton Regional Printing Procurement Office appealing the decision rejecting the order.

IV.  On September 3, 1981, the Chairman of the Board of Contract Appeals Panel sent a certified
letter to Excell Products which was received on September 10, 1981, requesting within 15 days of
their receipt further information concerning their appeal.  The Board of Contract Appeals Panel
never received a response to this request.

V. Findings of Law.

The matter at hand concerns a contract entered into between Excell Products Incorporated and the
United States Government Printing Office.  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.

In the matter at hand, the government and Excell entered into a specific contract for the
furnishing of 500,000 decals to be used by the Department of Army's ROTC program.  The contract
contained precise specifications as to the product required by the government.  It specifically
stated in regard to press work that:

All around products received that are other than A-1 quality will be subject to rejection.

The bid submitted on September 2, 1980, by the Appellant contained language in two places which
indicated that the contractor had agreed to furnish all of the items upon which prices as quoted in
exact accordance with the specifications unless exceptions were specifically noted.  It further
provided that the Public Printer reserved the right to reject all or any portion of the consignment
which are not in accordance with the specification.  The Purchase Order dated September 4, 1980,
also specifically provided that it was in:

strict accordance with your telephone quotation and our specifications.

The case law is clear that the government is entitled to enforce strict compliance with the
specifications found in its contracts, H.L.C. and Associates Construction Company v. United States,
176 Ct. Cl. 285, 367 F.2d 586, 589 (1966), American Electric Container Corp. v. United States, 579
F.2d 602 (1978).  Further it has been held, that the determination of whether a product conforms
with the contract specifications must rest with the Contracting Officer and is within his
discretion in the administration of the contract, Thomas W. Yoder Co., VACAB 997, 74-1 BCA 10,424
(1974).  No claim has been raised by the Appellant in this matter that the specifications contained
in the contract were either ambiguous and imprecise so as to not indicate what the contractor had
to do in order to produce a decal which conformed with the contract's requirements.  Rather, the
essence of this appeal is whether the decision of the Hampton Regional Printing Procurement Office
was arbitrary or capricious.

In the matter at hand, the evidence shows that the decals were delivered by Excell Products to the
Department of Army.  The Army notified the GPO that these products were unacceptable.  Defects
noted by the Army were the same as those ascertained by the Regional Procurement Office.  The
Appeal File contains several decals which were illustrative samples of the defects found
unacceptable by the Department of the Army and the Regional Procurement Office.

This Board has found no evidence that the decision of the Hampton Regional Procurement Printing
Office, in the circumstances, was either arbitrary or capricious.  Accordingly, it does not have
the authority to substitute its judgment for that of the Contracting Officer in determining whether
or not the decals manufactured by the Appellant complied with the requirements of the contract and
set forth in the specifications, ATC Decal Company, Contract Appeals Board 3-81 (1981).

VI.  Conclusions.

Since it is clearly established that the government is entitled to enforce a strict compliance with
the specifications and standards set forth in its contracts, it is the decision of this Panel that
the decision of the Regional Procurement Office was proper.

Accordingly, in view of the facts and evidence established by the Record and the case law on this
issue, the appeal is denied in its entirety.