GEOGRAPHICS, INC. GPO BCA 8-85 January 8, 1987 Michael F. DiMario Administrative Law Judge Opinion This appeal, timely filed by Geographics, Inc., 3450 Browns Mill Road SE., Atlanta, GA 30354 (hereinafter "Appellant"), is from the final decision of February 22, 1985, of Emery A. Dilda, Contracting Officer, U.S. Government Printing Office, Regional Printing & Procurement Office, Atlanta, GA 30303 (hereinafter "Respondent" and "RPPO"), denying Appellant's request of February 22, 1985, for payment of $6,900 in reprinting charges over and above the original contract price of $7,165, the said reprinting being necessitated by the rejection of a first printing because the color photographic image of a Navy enlisted man had been reversed by Appellant on the cover of the publication. The decision of the Contracting Officer is affirmed and the appeal is denied for the reasons set forth hereinbelow. Background By Atlanta RPPO Purchase Order F1152 dated October 24, 1984, Appellant was awarded a certain contract identified as Jacket No. 544-038 in the amount of $7,165 upon the requisition of the Department of the Navy. The contract was for the production of 75,000 copies, plus one set of films of a certain publication entitled "DANTES Mission and Activities." The Purchase Order stipulated that it was being made "[i]n strict accordance with your [Appellant's] Quotation No. 25761 dated 10-18-84 and our [Atlanta RPPO] specifications." Among other things, the specifications required the Respondent to furnish F.O.B. contractor's plant, a 35mm slide (not sized) of a certain photographic image, from which a 4-color process separation was to be made for the cover of the self-cover product. The specifications further provided that the Respondent "reserves the right to verify product quality by using the applicable procedures contained in GPO Publication 310.1 [entitled] 'Quality Assurance Through Attributes - Contract Terms No. 1' and MIL-STD-105 [entitled] 'Sampling Procedures and Tables for Inspection by Attributes' in effect on the date of issuance of the invitation-for-bid." (Appeal File, hereinafter "R4 File," Tab B.) No further instructions material to this dispute were set forth in the specifications. After receipt of the said Purchase Order, camera ready copy, and artwork, Appellant proceeded to produce the product so ordered. Upon delivery of the completed product, the Detachment Office, Navy Publications and Printing Service, Naval Air Station, Pensacola, FL, by letter of December 5, 1984, notified Respondent that the product was completely rejected because the "[c]olor photo on cover was reversed during production; the person should face to the right. (Rating badges for Navy Enlisted Personnel are worn on the left sleeve). Further reversing of the photo tends to give it an out-of-focus appearance." (R4 File, Tab F.) Respondent in turn notified Appellant of the Navy's rejection and demanded that the product be reprinted at Appellant's expense. In response Appellant advised Respondent by letter of December 18, 1984, that: You required that no proof be submitted for your approval before printing this booklet leaving the matter to our discretion. Being printers rather than specialists in Navy codes, we relied on material furnished the USGPO and checked our proofs and initial press sheets against it. There was no position stat or similar indicator on your mechanical, poor practice if the illustration is critical, especially if you do not inspect proofs. Under these circumstances, Geo Graphics [sic] cannot be responsible for reprinting the booklets, which are acceptable, per your specifications, as is. R4 File, Tab I. This response was internally discussed by the Contracting Officer with Mr. Darwin Hughes, Chief, Quality Assurance Section, U.S. Government Printing Office, Washington, DC, (telephone conversation of December 27, 1984) (R4 File, Tab J), with Hughes advising that the "[o]rder can be rejected based on [the] fact that contractor separated slide with emulsion side up and printed pamphlets with illustrations flopped." There is no indication in the file as to whether or not this exact reasoning was communicated to Appellant. However, by letter dated January 9, 1985, the Contracting Officer advised Respondent that: This letter will confirm your telephone conversation with Mr. Ergle on January 9, 1985 concerning rejection of Purchase Order F1152, Jacket 544-038. The pamphlets are rejected because the process color illustration on front cover was flopped. You are requested to correct this order at no additional cost to the Government by January 31, 1985. Your written explanation of this defect and the quality control measures implemented to guard against future occurrences is requested by January 25, 1985. Send your reply to the Atlanta Office, address as above. R4.File, Tab K. Thereafter, by letter dated January 24, 1985, Appellant responded stating essentially what it had previously stated in its letter of December 18, supra, but adding that: To reprint these correct, the price Geo Graphics [sic] will charge is $6,900.00 delivered. The scheduled delivery date is February 14, 1985. R4 File, Tab L. There followed the Contracting Officer's notice of final decision, supra, which in pertinent part stated: The determination to reject the order is final. The 35mm slide furnished by the Government was to have been printed in the normal viewing position, i.e., as the subject appeared to the photographer. The slide was furnished mounted in a holder, as supplied by the developer, in the proper orientation, i.e. with the subject facing to the right. The instructions written on the face of the slide holder further obviate the expected viewing direction and therefore there was no need for you to exercise any discretion in the orientation of the image. R4 File, Tab M. Subsequently, Appellant by notice of appeal dated March 29, 1985, advised this office that: Geo Graphics [sic] does appeal this "final" decision for the following reasons. Once again we state that there was not a stat in position on the base mechanical nor even a pencil sketch to indicate the position of the subject. The transparency was not mounted in a holder but inserted into a plastic hinged container. It could have been easily removed for inspections, etc. by anyone and replaced in a "flopped" position. There were not any instructions on the sleeve except for crop marks which could be used in a "flopped" or "non-flopped" position and still maintain the desired size and portion of the subject to be printed. It is common practice in the graphic arts that subjects do not face off of the page but face toward the gutter. Therefore, without instructions, stat or pencil sketch, Geo Graphics [sic] exercised the discretion of common practice and faced the subject toward the gutter. We maintain our contention that our not being specialist in Navy codes, uniforms, etc., and if the position is critical the government should have given explicit instructions as to position in writing, a position stat, a pencil sketch or require a proof for approval. Geo Graphics [sic] fulfilled this order in good faith to the best of our ability with the material and instructions furnished. Therefore, in view of these circumstances, we respectfully submit that this was an error on the part of the Government and that Geo Graphics [sic] should be paid for the second printing in the amount of $6,900.00. Official File, Tab 1. Appellant did not file a formal complaint, however, its notice of appeal was deemed by this Board to meet the requirements of such pleading. Accordingly, Respondent was directed to supply its Answer to the allegations contained therein. The salient feature of Respondent's Answer is its claim that: It is undisputed that a photograph, even in slide format, has only one correct orientation. In the case of a slide, the correct viewing orientation is with the emulsion (dull) side down. An inspection by the GPO's Quality Control Section revealed that appellant had performed the color separation process on the slide with the emulsion side up, thereby "flopping" the image. Exhibit J. A contractor has no discretion to reverse illustrations and must print a photograph in its normal viewing orientation, unless directed to do otherwise by the contract specifications. It is clear that the appellant's claim of "discretion" is a post hoc rationalization to explain its gross misfeasance. Official File, Tab 5. The appeal is before this Board for decision in this format. Discussion The single question presented by this appeal is whether or not the Appellant should be held responsible for the reverse positioning of the photographic image. The Appellant argues that it should not because: (1) "The transparency . . . could have been easily removed for inspection, etc. by anyone and replaced in a 'flopped' position", i.e., that the so-called flopping was inadvertent and possibly caused by Respondent or its agent; (2) that the Appellant used its own discretion and deliberately flopped the picture as a matter of trade practice; and (3) that ". . . if the position is critical the government should have given explicit instructions as to position in writing, a position stat, a pencil sketch or require a proof for approval." Respondent, on the other hand, argues that Appellant should be held responsible (1) because there is only one correct orientation for a slide, i.e., emulsion side down, and (2) Appellant's argument is a mere "post-hoc rationalization to explain its gross misfeasance." (Official File, Tab 5, p. 3) On these points the Board finds itself in agreement with the Respondent. Appellant's arguments are facially contradictory to each other since the "flopping" cannot be both inadvertent and deliberate. Moreover, there is general agreement in contract law that when an agreement is silent respecting technical details such as the orientation of a photographic image as here, there is an implied agreement that the usual and customary trade practices shall be applied. Gholson Byars & Holmes Construction Co. v. United States, 173 Ct.Cl. 374, 351 F.2d 987 (1965). See also W. G. Cornell Co. v. United States, 179 Ct.Cl. 651, 376 F.2d 299 (1967). This is especially true when the agreement, as here, is between two parties in the same trade or business. Accordingly, it is the holding of the Board that Appellant did not have the discretion to deliberately orient the image in a manner other than that which is usual and customary in the printing trade. This having been said, the question remains as to what usual and customary trade practice controls the correct orientation of a slide? To determine this the Board consulted the text Mastering Graphics by Jan V. White, R.R. Bowker Company, New York and London 1983. There under the caption "How can you tell that the picture is the right way 'round?" on p. 122 it states: Transparencies can easily be printed flopped left to right by mistake. Furthermore, when you have the transparency itself, it is often hard to tell which is front and which is back. Here are a few pointers --which are not 100% infallible! By common sense Does lettering on street signs or book spines read backward in the picture? If so, flop left to right --unless the signs happen to be in Arabic. Is the man's jacket breast pocket on his right? Then it's wrong if he's only wearing a T-shirt, then you are in trouble. Check the part in his hair. Most men part their hair on the left. Buttons help: men button clothes left over right; women do it right over left, for some peculiar reason. You have to put yourself in the subject's place to figure that one out. Steering wheels on cars are on the left (except in Great Britain), and they are mostly driven on the right-hand side of the road (except in scenes of accidents). There must be other obvious signs, but let's get technical. By emulsion The negative gives you two clues. First, the shiny side should be toward you, the dull, emulsion side should be toward the paper, away from you. Second, if you are seeing the film the right way, you'll be able to read the trademark and the numbers in the margins of the film material itself. Your contact sheet will also show these markings legibly, assuming you have a contact sheet available to check your prints against. The same principle applies for color prints as for black and white. If you're working with color slides, the shiny side of the slide should be toward you, the dull side with the emulsion on it away from you. Dullness is often hard to identify, but if you turn the transparency at a slight angle to the light, you can clearly see contour like ridges on the edges of the color areas. They are caused by the different combinations of layers of emulsion. The side with the contours should face away from you. By notches in sheet film The first thing to check for is whether there is any kind of wording on the edge. If you can read it, then you are looking at it the right way around. The second thing to check for are the notches. Sheet film (anything 4" x 5" and up) has actual notches cut from the top left-hand corner. They are there for practical reasons: to help the photographer insert the film into the camera correctly, to help the lab technician print it correctly in the dark, and to distinguish one type of film from another by the patterning of the notches themselves. It doesn't matter whether the piece of film has been used as a vertical or a horizontal. You must turn it around until the notches appear at the top on the left-hand side. If you cannot achieve that goal, flop the picture, and it will work. Alas, you cannot depend on this 100%, because duplicate transparencies are often made emulsion side to emulsion side to achieve optimal quality -- and so the notches end up on the wrong side of the dupe. How can you tell? You can only guess and hope. You have.a 50/50 chance of being right, which is pretty good odds, especially if you say the magic words ("To hell with it"). A vital point to remember about flopped pictures comes at the stage of production when the printer submits proofs of the pages prior to printing. These are called blues when they are printed in blue or vandykes when they are printed in brown (there is a color called vandyke brown after the Dutch painter Van Dyck) or brownlines, or by various other locally used names. It is very easy for the page assembler (the stripper or compositor) to flop the negative by accident and strip it in flopped left to right. Then, if a man's pocket turns out to be on the right side, which is wrong, mark the cut (old-fashioned term for "picture") with this sign [illustr.], which means flop left to right. (It also means turn upside down, but never mind, you will also write "Flop left to right" in words alongside, and it will be understood.) The clear sense of White's statement is that there is no discretion as to which is the proper side but rather that it is sometimes difficult to discern the proper side, and extreme caution must be exercised since results are not always certain. Respondent's failure to give explicit instructions, indicate position stats, or provide a pencil sketch does not negate the fact that Appellant did not have the discretion to reverse the slide. On the other hand, White on p. 87 speaks to the practice of facing a photographic image toward the gutter with substantially less certitude respecting its general application than is necessary to give rise to the conclusion that it is a "customary and usual" practice of the trade of such a kind as to be implied in contract. This is clearly shown by the fact that immediately after stating and illustrating that "people ought to face inward into the spread" he shows a contradictory example, i.e., a person facing outwardly, off the page and onto the next page, which he coupled with the statement that "[t]he direction of people's gazes ought to be exploited." Respecting Appellant's final claim that at a minimum there was duplicity in Respondent for the error inasmuch as it did not avail itself of the right of inspection contemplated by the contract, suffice it to say that the courts have clearly established that such provisions are for the protection of the Government and not for the contractor. Kaminer Construction Co. v. United States, 203 Ct.Cl. 182, 488 F.2d 980 (1973), and that the waiver of such right cannot shift the burden of the error to the Government as Appellant would have this Board do. United States v. Franklin Steel Products, Inc., 482 F.2d 400 (9th Cir. 1973). Accordingly, this Board affirms the decision of the Contracting Officer and denies the appeal.