Graphic Litho Company, Inc.
GPO BCA 17-85
February 23, 1988
Michael F. DiMario, Administrative Law Judge
Opinion
This appeal, timely filed by Graphic Litho Company, Inc.
(hereinafter "GLCI/Appellant"), 130 Shepard Street,
Industrial Park, Lawrence, MA 01843, is from the final
decision of Raymond MacDonald, Contracting Officer, U.S.
Government Printing Office, Denver Regional Printing
Procurement Office (hereinafter "Respondent" or
"GPO/DRPPO"), dated November 4, 1985. The appeal is denied
and the Contracting Officer's opinion is affirmed for the
reasons set forth hereinbelow.
Background
The GPO DRPPO, by letter of its Manager, John D. Chapman,
dated August 28, 1984, advised Mr. Ralph Wilbur, President,
GLCI, that GPO DRPPO contract, Jacket No. 680-799, Purchase
Order M-4967 of September 19, 1983, was being terminated for
the convenience of the Government effective that day and
that GLCI would have to properly account for its termination
inventory in conjunction with any settlement.
In written response, Appellant claimed reimbursable costs of
$13,295.92, including $10,614.47 for some 64,750 sheets of
paper stock which it had acquired on December 1, 1983, for
the terminated job. (The specifications required the
contractor to furnish white, offset map, lithographic finish
paper (Basis - 500 sheets, weight - 60 lbs, size 25" x 38")
equal to JCP Code E-30 as described in "Government Paper
Specifications Standard No. 9" dated December 1981.)
Chapman, because of concerns about the propriety of
accepting Appellant's claim in light of having received
prior inconsistent information from Appellant concerning the
size and cost of the paper, referred the matter to GPO's
Central Office for audit or investigation, as appropriate.
His referral memorandum dated November 15, 1984, chronicled
the following data:
1) Bids opened on September 20, 1983 with low bid of
$11,404.00 from Graphic Litho. They claimed that the price was
the cost of stock only and that they had made an error in bid.
Graphic Litho was permitted to adjust their bid to $30,592.00
and award was made to them on October 11, 1983.
2) U.S. Forest Service put order on "hold" on October 31, 1983
and requested return of furnished material due to need to make
changes. Graphic Litho reported having made some changes prior
to "hold."
3) In March of 1984 we deducted 25% from the payment on Jacket
681-153 which was produced by Graphic Litho on White
Lithographic Map paper equal to JCP E30. Deduction resulted
from paper not meeting specifications. When informed of the
deficiency, Ralph Wilber [sic] of Graphic Litho reproted [sic]
problems with identifying and acquiring E30 stock. The stock
involved in the matter of Jacket 680-799 is also JCP E30.
4) In July of 1984 it became clear that the order would not be
put back into product [sic] in foreseeable future so decision
was made to terminate the order for convience [sic]. When
asked by Denver RPPO for cost and sample stock, Mr. Wilber
[sic] gave a price of $12,206.64 for 64,750 sheets of 54 x 57"
stock and provided samples. The stock failed testing for E30.
5) When informed of test results, Mr. Wilber [sic] provided
his own test results and additional samples. The additional
samples past testing.
6) Notice of Termination for convience [sic] sent on August
29, 1984.
7) Letter recieved [sic] from Mr. Ralph Wilber [sic]
requesting, amoung [sic] other items, $10,614.47 for 64,750
sheets of 54 x 77" stock. The other items of cost claim that
the stock has been on hand since December 1, 1983. (The
memorandum's reference to its own exhibits have been omitted
to avoid unnecessary confusion.)
Official File, Tab M, Exhibit A.
Additionally, the memorandum noted that:
At the time of error in bid, worksheets showed a reasonable
running stock 54 x 58". Of greater concern is the fact that
Graphic Litho was unable to supply a sample, When [sic] first
asked, that passed test despite claiming to have to stock
[sic] on hand since December of the previous year. Also,
Graphic Litho claimed in May, 1984 to have problems acquiring
the E 30 stock or even understanding its stringent
requirements.
Official File, Id. at Tab M.
As a result, the matter was investigated by the GPO
Inspector General's Office. The focus of the investigation
was apparently on the question of whether Appellant had in
fact acquired the paper in time to meet the adjusted
shipping date of November 10, 1983. The IG's report dated
September 4, 1985, summarized the investigation, thusly:
This investigation was initiated upon the receipt of
information provided to the Office of the Inspector General on
November 20, 1984, by Mr. Raymond MacDonald, Assistant
Manager, Denver Regional Printing and Procurement Office
(DRPPO). Mr. MacDonald requested that this office determine if
the Graphic Litho Company, Inc. (GLCI), Lawrence,
Massachusetts, had paper stock on hand to produce Jacket
Number 680-799 in a timely manner. According to Mr. MacDonald,
the information was needed in order to fairly compensate GLCI
for materials purchased for the above contract which was later
terminated for the convenience of the Government. The DRPPO
had attempted to resolve this matter, but has received what it
considered to be possible false information from GLCI in
response to its requests for information.
The pertinent and significant facts in this case are as
follows: (1) GLCI was awarded Jacket Number 680-799 under
Purchase Order Number M4967, dated September 19, 1983; (2)
contract specifications for this Jacket Number stipulated a
shipment date of October 20, 1983, contingent upon receipt of
Government-Furnished-Property (GFP) by the contractor on
September 26, 1983; (3) contract specifications for Jacket
Number 680-799 on October 13, 1983, thereby adjusting the ship
date for that contract to November 10, 1983; (5) GLCI notified
the DRPPO by correspondence dated October 24, 1983, that it
was experiencing difficulty locating JCP-30 paper or its
equivalent; (6) on November 2, 1983, GLCI returned the GFP for
Jacket Number 680-799 at the DRPPO's request for
"corrections": (7) GLCI took delivery of paper stock for
Jacket Number 680-799 on November 21, 1983 and what appears to
be November 23, 1983,: (8) GLCI received Notice of Termination
for Jacket Number 680-799 by letter dated August 28, 1984 from
the DRPPO; and (9) GLCI received written notice dated November
29, 1984, from the DRPPO directing GLCI to maintain and not
dispose of the paper stock for Jacket Number 680-799 until the
present dispute is resolved.
The DRPPO contended that the Government is liable for GLCI's
costs related to Jacket Number 680-799 only if GLCI had paper
stock on hand in time to produce the contract by the adjusted
ship date of November 10, 1983. GLCI's position is that it did
not receive notification of the adjusted ship date subsequent
to returning the GFP for Jacket Number 680-799, which was
subsequently confirmed by the DRPPO and, consequently, cannot
be held to the November 10, 1983, ship date for purposes of
resolving this dispute. [The Summary's reference to the
reports own exhibits have been omitted to avoid unnecessary
confusion.]
Rule 4 File, hereinafter "R4 File", Tab 23.
Additionally, the report states that during the course of
the investigation "Mr. Chapman requested that [the IG]
attempt to determine if the 54" x 57," 'South Shore Wht
[sic] Wove', paper ordered by GLCI [Graphic Litho Company,
Inc.] Invoice Numbers M06468 and M06712 was JCP-E30 quality
paper." (R4 File, Tab 23, page 8.) The IG's Office, in an
effort to answer the question, contacted Mr. Bruce A.
McCulloch, Market Manager, Merchant Paper, HPCI (Hammermill
Paper Company, Inc. - the paper manufacturer). McCulloch
reportedly stated that the paper in question was "roughly
equivalent" to JCP-E30 paper but that [d]ue to the stringent
requirements for JCP-E30, not every sample of the above
paper would pass testing for JCP-E30."
Subsequently, by final decision letter of November 4, 1985,
Raymond MacDonald, Contracting Officer, GPO DRPPO, advised
Wilbur that the GPO DRPPO had:
[E]valuated your settlement proposal for the costs incurred by
your firm . . . .
The last item, paper, is also something that we don't find we
are liable for. We base that on the fact that neither you nor
your paper supplier can verify that the stock you have on hand
is equal to our specifications. Your supplier in response to
our investigation stated that he would not guarantee the stock
supplied to Graphic Litho as paper that would meet our
specifications. He also stated the paper was not special order
to meet particular specifications. For these reasons we will
not pay for the paper purchased to produce this order.
R4 File, Tab 22.
Thereafter, the appeal was timely filed with this Board with
a request that the matter be decided on the written record.
Subsequently, the Appellant supplemented the R4 File by
submitting its own exhibits, including its Exhibit 25, a
statement dated July 1, 1986, addressed "To Whom It May
Concern" from Bruce A. McCulloch, supra, referring to the
Respondent's IG report, stating:
Please be advised in paragraph 4, page 8, I was quoted out of
context insofar as their [sic] is no recollection of a statement
on my part that the specific lot of paper in question would or
would not meet JCPE30 specifications. Hammermill South Shore
Offset (the grade in question) is not specifically guaranteed to
meet JCPE30 specifications. However, many specific runs of this
grade do, in fact, meet JCPE30 specifications.
The written record was thereafter settled on July 8, 1987.
Accordingly, the matter is now before the Board for
decision.
Issue
The principal issue raised by this appeal is whether or not
Appellant, pursuant to its termination for convenience
settlement claim, is entitled to be paid for certain
termination inventory, namely, regularly manufactured and
merchandised paper stock acquired for the specific fixed-
price supply contract in question but which neither the
Appellant nor its supplier paper mill will guarantee to meet
specified Government paper specification standards.
Discussion
The Government, as a matter of contract law, is generally
entitled to require strict compliance with its contract
specifications, including those of fixed-price supply
contracts. Jefferson Construction Co. v. United States, 151
Ct.Cl. 75 (1960); Red Circle Corp. v. United States, 185
Ct.Cl. 1, 8 (1968); American Electric Contracting Corp. v.
United States, 579 F.2d 602, 608 (1978); Dependable Printing
Company, Inc., GPO BCA 5-84 (1985). The question in the
instant case is whether such entitlement has been somehow
nullified because the Government exercised its right to
terminate such contract for its own convenience.
Examining pertinent case law, we find there is an accepted
fiction that the effect of a termination for convenience is
to convert a fixed-price contract into one for reasonable
cost reimbursement, Southland Manufacturing Corp., ASBCA
16830, 75-1 BCA ¶ 10994 (1974), so long as such costs were
in fact incurred in pursuit of performance of the contract
and do not exceed the original contract price. Derrick
Electric Co., ASBCA 21246, 77-2 BCA ¶ 12643 (1977).
Moreover, the reimbursement may include the "cost of raw
materials, . . . which do not comply in all respects with
the requirements of the specifications. . . . if they are
reasonable, allocable, and allowable." Best Lumber Sales,
ASBCA 6737, 72-2 BCA ¶ 9661 at 45908 (1972). But, costs for
common supplies useable by the contractor on other work,
will usually be disallowed pursuant to Government cost
principles. However, if the contractor can prove by a
preponderance of the evidence that it has no use for the
supplies, it will be is entitled to reimbursement,
notwithstanding common use of the supplies in industry.
American Packers, Inc., ASBCA 14275, 71-1 BCA ¶ 8846 (1971).
Based upon the case law, supra, we believe that the
Contracting Officer acted within his legitimate discretion
in denying Appellant's claim for reimbursement of its paper
costs, since the record clearly shows the paper to be a
common item for which the Government bears no liability and
for which the contractor has offered no evidence of
nonusability. Since we find no Government liability, there
is no need to examine Appellant's claimed entitlement to
interest. Appellant is, however, entitled to be paid
reasonable storage costs under the provisions of U.S.
Government Printing Office Contract Terms No. 1 (GPO
Publication 310-Revised October 1, 1980), Article 2-17(d)
(3), from the effective date of the termination until its
receipt of the Contracting Officer's "final decision" letter
denying the claim inasmuch as the Contracting Officer
directed that Appellant secure and preserve the paper
pursuant to Article 2-17(b)(9) of the said Contract Terms
No. 1.
We affirm.