U.S. GOVERNMENT PRINTING OFFICE
BOARD OF CONTRACT APPEALS
WASHINGTON, D.C. 20401
In the Matter of )
the Appeal of )
)
FRY COMMUNICATIONS, INC. ) Docket No. GPOBCA 30-94
Program C219-S )
Purchase Order 93674 )
Print Order 80024 )
For the Appellant: Fry Communications, Inc., 800 West Church
Road, Mechanicsburg, Pennsylvania, by Jerry Rhinehart,
Appellant's representative.
For the Government: Kerry L. Miller, Esq., Associate General
Counsel, U.S. Government Printing Office.
Before BERGER, Ad Hoc Chairman.
DECISION AND ORDER
Fry Communications, Inc. (Appellant), 800 West Church Road,
Mechanicsburg, Pennsylvania, by letter dated September 6, 1994,
timely appealed the August 26, 1994, final decision of
Contracting Officer Jack Scott of the U.S. Government Printing
Office (Respondent or GPO), affirming a 25 percent reduction in
the contract price for Print Order 80024, issued under the
Appellant's Program C219-S contract, Purchase Order 93674. For
the reasons which follow, the Contracting Officer's decision is
AFFIRMED and the appeal is DENIED.
I. BACKGROUND
1. On or about May 24, 1993, the Appellant was awarded a
requirements contract for the printing of certain Department of
Energy (DOE) publications. Specific work under the contract
was to be ordered through the issuance of print orders.
2. On March 10, 1994, Print Order 80024 was issued for the
printing of 30,000 copies of DOE's 1994 Education Programs
Catalog. The Print Order required four-color process printing
for the cover of the Catalog; the cover otherwise was to be
printed in a green ink identified as PMS 3286C.1
3. When issuing the Print Order, DOE sent to the Appellant
certain Government-furnished property that included a disk, board
art, a photograph, and a laser print of the Catalog cover showing
both the green background color and the four other required
colors. Hearing Transcript (HT) 40-42 2; Gov't Exh. No. 1.
4. The Print Order specified that the Appellant was to provide
one set of blueline proofs and also to "[p]rovide cromalin proof
of cover." Rule 4 File, Tab D.3 The "Proofs" clause of the
contract specifications required the Appellant to furnish various
kinds of proofs, including, "[w]hen ordered . . . one-piece
laminated (cromalin or equal) or electrophotography color proofs
of four-color process pages. . . . The proofs should have color
control bars, tint patches and dot gain scale . . . ." The
clause also stated that the contractor "must not print prior to
receipt of an 'OK to print,'" which normally would be "a notation
on the proofs returned." Rule 4 File, Tab A.
5. Sometime after commencing work in response to the Print Order
the Appellant sent proofs to DOE, HT 14, 46-49, 52-53,
accompanied by a form captioned "Customer Proof Instructions."
HT 53; Rule 4 File, Tab G. This form was completed ("Approved as
corrected") and signed by a DOE senior printing specialist and
returned, along with the proofs, to the Appellant.4 HT 58-60.
6. Thereafter, the Appellant printed and delivered the catalogs.
The Appellant, however, did not use four-color processing on the
cover; the cover was printed entirely in the specified green ink.
Gov't Exh. No. 4.
7. The Appellant subsequently admitted that it had overlooked
the Print Order requirement for printing, HT 13, 30; Complaint,5
but disclaimed any responsibility for reprinting and refused to
agree to a price reduction because it had received an "OK to
print." Rule 4 File, Tabs I, L.
8. On August 8, 1994, the Contracting Officer, with the
concurrence of the Respondent's Contract Review Board, issued a
contract modification reducing the Appellant's invoice billing
price of $62,430.49 by 25 percent, or $15,607.63. The
Contracting Officer's subsequent final decision denying the
Appellant's "exception" to the price reduction is the basis for
this appeal.
II. DISCUSSION
It is undisputed that the Appellant did not furnish a product
that complied with the four-color process printing requirement of
the Print Order. Thus, the primary question presented by this
appeal is whether the DOE printing specialist's approval and
signature on the Appellant's "Customer Proof Instructions" form
was tantamount to a change in the specifications that authorized
the Appellant to print the catalogs without regard to the four-
color process printing requirement.
The heart of the dispute concerns exactly what the Appellant
furnished to DOE in the way of proofs. The Appellant asserts
that it furnished two kinds of proofs: bluelines, Gov't Exh. No.
2, and a "match print," App. Exh. No. 2, HT 14, which it says is
a laminated proof that is equal to or the same thing as a
cromalin proof. HT 73, 78, 80, 82. It further asserts that both
were returned to it with the "OK to print" authorization, HT 84,
without any indication of a correction needed to the cover, HT
91, and that this gave it the right to proceed with the final
printing job in accordance with the approved proofs. The
Respondent's position is that DOE never received a cromalin
proof, never received the match print, and never approved
anything with respect to color. HT 53, 59, 75-77; Respondent's
Brief 6 at 10-11. In this regard, the DOE printing specialist
testified that when she received the proof package from the
Appellant and saw that it contained only blueline proofs, she
expected the cromalin proof to arrive later because there was
still "plenty of time" before the delivery schedule date, in her
experience printers sometimes send bluelines and cromalins
separately, and the Appellant might have been sending bluelines
for the text and a cromalin for the cover later "since it was a
four-color process." HT 59-60, 76. She further testified that
her signature and approval on the Appellant's Customer Proof
Instructions form went only to the bluelines that she saw and
that were identified on the Customer Proof Instructions form,7
and not to the cromalin that she was still expecting to receive,
HT 59, 69-70, but that "the next thing that happened was the job
actually arrived way ahead of schedule." HT 60.
The Appellant cannot prevail here. First, as a matter of law,
the DOE printing specialist's approval of whatever proofs she saw
could not have had the effect of changing the specifications.
Approval of pre-production proofs and "OK to print"
authorizations are not intended to be vehicles for making changes
to specifications; rather, they are related to quality assurance
concerns, and in effect set "the standard by which the quality of
performance will be measured." The George Marr Co., GPOBCA 31-94
(April 23, 1996), slip op. at 45, 1996 WL 273662. Under the
contract, if a specification is to be changed, it is to be done
through a written change order under the "Changes" clause, which
allows the contracting officer to make unilateral changes, within
the general scope of the contract, to drawings, designs, and
specifications. GPO Contract Terms, Solicitation Provisions,
Supplemental Specifications, and Contract Clauses, GPO Pub.
310.2, effective December 1, 1987 (Rev. 9-88), Contract Clauses,
¶ 4.
Although there are circumstances where a formal change order is
not issued but the Government will be held to have constructively
changed the specifications, see News Printing Co., Inc., GPOBCA
13-94 (February 20, 1998), slip op. at 14, 1998 WL ______
(constructive change resulted from issuance of print order), or
to be estopped from insisting on adherence to the original
specification requirements, see Automated Datatron, Inc., GPOBCA
25-87 (April 12, 1989), slip op., 1989 WL 384974, the act or acts
giving rise to the constructive change or the estoppel must be
those of someone with actual or implied authority to make a
change to the contract. News Printing Co., Inc., supra, at 8;
Automated Datatron, Inc., supra, at 8. GPO's customer agencies
have the authority to issue binding print orders under "direct-
deal" contracts and to transmit copy and proofs, Handbook, Sec.
IV, ¶ 2; all other authority, however, remains with the GPO
contracting officer. Id. That means customer agency personnel
have no authority to change contract specifications or the print
orders themselves, once issued. News Printing Co., Inc., supra,
at 13; United Computer Supplies, Joint Venture, GPOBCA 26-94
(January 23, 1998), slip op. at 3, 1998 WL ______; Swanson
Printing Co., GPOBCA 27-94 and 27-94A (November 18, 1996), slip
op. at 4, n.9, 34, 1996 WL 812958, and cases cited therein.
Thus, regardless of what proofs were approved by DOE's printing
specialist, since the specialist had no authority to change the
Print Order, the approval could not have had the effect of
changing the Print Order's printing requirement or estopping the
Respondent from enforcing that requirement. See United Computer
Supplies, Joint Venture, supra, at 16, 18.
Second, the Board finds unpersuasive the Appellant's position
that it furnished a cromalin or equal proof and received an "OK
to print" on the basis of furnishing such a proof. The parties
do not agree on whether the Appellant actually furnished the
laminated match print claimed to be the cromalin equal. The DOE
printing specialist denies having seen it, and two other DOE
employees who saw the Appellant's proofs, in declarations
accompanying Respondent's Brief, also assert that only bluelines
were submitted, while the Appellant's customer service employee
who handled this order testified that she not only sent the match
print to DOE but also received it back along with the bluelines
and Customer Proof Instructions form. She further testified that
she remembered the match print being returned because the picture
on the cover featured the image of a young girl who resembled the
daughter of a coworker who asked if she could have the proof for
that reason. HT 84. The Board notes, as it did during the
hearing, that the blueline of the cover and the match print are
both in blue and are essentially the same except for the glossy
finish of the match print. HT 82. Thus, it is entirely possible
that the match print was in the package sent to DOE and simply
not recognized for what it was intended to be. On the other
hand, it is also possible that what the Appellant's witness's
coworker saw was the blueline and not the match print since the
picture on both the blueline and the match print is the same.
The Board does not find it necessary to resolve this factual
dispute, however, because even if it assumes that the match print
in fact was sent to and received and returned by DOE, the Board
does not view the match print as the equivalent to the proof
required by the contract.
The Print Order required the Appellant to submit two types of
proofs: bluelines, and a cromalin.8 The DOE printing specialist
testified that bluelines are used for positioning and to ensure
that the pictures (there were more than 130 in the Catalog) and
their captions matched, HT 55, while the cromalin is used as a
"proofing mechanism when you are doing four-color process
printing," HT 54, enabling the agency to tell "whether the four-
color process was indeed done" and also to reflect "the
background PMS." HT 56. The Appellant admits that had it not
overlooked the requirement for printing, on the match print it
prepared there "would have been a four-color picture in the
center . . . instead of being in blue," and that the blueline
"would have had a four-slice seal on the photograph stating that
that was four-color . . . ." HT 83. The Appellant explains that
since it overlooked the four-color requirement, it prepared the
match print in response to the requirement of which it was aware,
the PMS 3268 ink color. However, it further explains that the
match print was in blue, instead of the green color corresponding
to PMS 3268, because, given the multitude of PMS colors, the
blue was "as close as we could come to the green" when making a
match print. HT 81. Thus, what the Appellant claims to have
furnished to satisfy the cromalin or equal requirement showed
neither the four-color process nor the specified PMS ink color.
The Appellant's witness testified that the purpose of a cromalin
or match print is to "show the clarity of a material that is
being printed, registration, position," HT 86-87, but denied that
it is used to check color. HT 87, 88. That, of course, is not
consistent with its admission that had it not overlooked the
printing requirement the match print would have had a four-color
picture in the center. It is also not consistent with the
requirements of the Print Order which, by imposing a requirement
for the cromalin proof as well as the bluelines, obviously sought
something in the way of proofs that went beyond what the
bluelines would show. In this connection, the Board noted during
the hearing, without meaningful contradiction by the Appellant,
that the match print essentially was a laminated copy of the
Appellant's blueline. HT 83. It is not readily apparent how
clarity, registration, and position are more clearly shown by the
Appellant's match print than by the blueline. Moreover, given
that bluelines do not show color, the Board has little doubt that
the purpose of the cromalin or equal requirement was to ensure
that the Respondent and its customer agency obtained appropriate
color indicia9 from the Appellant before an "OK to print" was
provided, regardless of whether it was imposed in connection with
four-color process printing, as DOE's printing specialist
believes, or, as the Appellant purports to have believed, solely
in connection with the PMS ink color designations. Indeed, the
"Proofs" clause requirement that the cromalin or equal proofs
have "color control bars, tint patches and dot gain scale" leave
little room for any other interpretation.
In short, the Board does not view the Appellant's match print as
the equal of what the contract required in the way of a cromalin
or equal proof and on this record finds no basis for the
Appellant to have reasonably believed that the match print could
satisfy the requirement. Accordingly, the Appellant, having
failed to furnish a required cromalin or equal proof, could not
under the terms of its contract consider the printing
specialist's approval of the bluelines to be the equivalent of an
"OK to print." The Appellant therefore must bear the
consequences of proceeding before obtaining proper authorization
to do so. The George Marr Co., supra, at 54; McDonald & Eudy
Printers, Inc., GPOBCA 25-92 (April 11, 1994), slip op. at 21-22,
1994 WL 275093.
In light of the Appellant's failure to deliver a product
conforming to the printing required, the Contracting Officer
elected to discount by 25 percent the Appellant's invoice price.
Rule 4 File, Tab K. The Contracting Officer testified that he
arrived at that figure by applying the provisions of the
Respondent's Quality Assurance Through Attributes Program
(QATAP), HT 97, see GPO Contract Terms, Quality Assurance Through
Attributes Program, GPO Pub. 310.1, effective May 1979 (revised
December 1992) (hereafter QATAP Manual), which were incorporated
into the contract by reference. Rule 4 File, Tab A. The Board
has discussed the QATAP at length, see, e.g., Custom Printing
Co., GPOBCA 28-94 (March 12, 1997), slip op., 1997 WL 128720; The
George Marr Co., supra; Professional Printing of Kansas, Inc.,
GPOBCA 2-93 (May 19, 1995), slip op., 1995 WL 488488, and need
not do so again here. Suffice it to say that the QATAP is a
quality assurance program that provides for the use of objective
measurements to determine whether printed products are defective
and, if so, whether they should be rejected or whether the
contract price should be discounted and by how much. Printing
Procurement Regulation, Chap. XIII, Sec. 1, ¶ 3.a.
The Contracting Officer testified that because the inside of the
Catalog cover page described the cover page photograph in terms
of the "different colors in the beakers of liquid that this girl
is mixing," the absence of those colors from the Catalog printed
by the Appellant was a "loss of information" because "[w]ithout
the color it loses all its meaning." HT 98. The QATAP Manual
identifies Finishing Attribute F-17 as "Loss of Information,"
defines it as "any omission of or damage to the printed image
which impairs the transmission of the intended information," and
describes it as a "Critical" defect. QATAP Manual 44. The
Contracting Officer stated that 200 copies of the Catalog were
sampled, that they all had this same defect, and that the
discount table in the QATAP Manual provides for a 25 percent
discount for a critical defect in those circumstances. HT
100-101.10
The Board finds the Contracting Officer's approach to be
reasonable. While loss of information typically will involve
missing words, see Stabbe Senter Press, GPOBCA 13-85 and 19-85
(May 12, 1989), slip op., 1989 WL 384977; International
Lithographing, GPOCAB 15-84 (March 22, 1985), slip op., 1985 WL
154875, the absence of intended visual color images can also be
an informational loss where the color is intended to convey some
knowledge or understanding. Here that is clearly the case-the
inside cover of the Catalog describes the cover photograph as
"Red Drop, Green Drop, an introduction to the chemistry and
physics of water " and goes on to identify a fifth grade student
in a physical sciences study center. That statement is
essentially meaningless in the absence of the appropriate colors
in the photograph, and the photograph itself conveys considerably
less when printed in the same background color as the remainder
of the cover page than if it contained the distinct colors
intended to represent the different liquids in the beakers in
front of the student. The Board therefore finds no basis to
disagree with the Contracting Officer's decision that the
Appellant's printed product was defective under Attribute F-17.
Since the Contracting Officer also correctly calculated the
discount amount from the discount table in the QATAP Manual
(Appendix A), the Board finds the 25 percent reduction to be
reasonable.
III. ORDER
For the foregoing reasons, the Contracting Officer's final
decision is AFFIRMED and the appeal is DENIED.
It is so Ordered.
March 30, 1998 Ronald Berger
Ad Hoc Chairman
GPO Board of Contract Appeals
_______________
1In this case that meant that a picture in the center of the
cover was to be printed in various colors while the basic cover
itself was to be in the specified green color. PMS refers to the
Pantone Matching System, which is a system of inks,
specifications, and color guides used for specifying and
reproducing colors.
2 A hearing was held in this matter on March 28, 1995. The
transcript of the hearing will hereafter be referred to as HT
with appropriate page citations. Exhibits introduced into
evidence at the hearing are identified as either App. Exh. or
Gov't Exh. followed by the appropriate number.
3 The Contracting Officer's appeal file, assembled pursuant to
Rule 4 of the Board's Rules of Practice and Procedure, was
delivered to the Board on October 14, 1994. It will be referred
to as the Rule 4 File, with an appropriate Tab letter also
indicated. The Rule 4 File consists of 13 tabs identified as Tab
A through Tab M.
4 These direct contacts between the Appellant and DOE reflected
the fact that this was a "direct-deal" contract, under which
customer agencies are authorized to issue print orders directly
to a GPO contractor. HT 96; see GPO Agency Procedural Handbook,
GPO Pub. 305.1 (rev. January 1992) (hereafter Handbook), Sec. IV.
5 The Board considers the Appellant's letter of October 12, 1994,
as the Complaint in this case.
6 Although the parties were given an opportunity to file a post-
hearing brief, HT 112-14, only the Respondent did so.
7 In a box captioned "Press Run" located at the top of the form
there appears the handwritten notation "1 thru 12." Rule 4 File,
Tab G. This appears to correspond to the bluelines which consist
of the cover and the different sections of the Catalog which are
marked R-2 through R-12. Gov't Exh. No. 2.
8 Although the Print Order referred only to a cromalin proof, the
contract was less restrictive and allowed a cromalin or equal.
The Respondent does not challenge the Appellant's right to submit
a proof equal to a cromalin.
9 A review of prior cases of the Board and its predecessor panels
(the decisions of which the Board cites as GPOCAB, see Rose
Printing, Inc., GPOBCA 32-95 (December 16, 1996), slip op. at 27
n.28, 1996 WL 812880) indicates that a requirement for cromalin
or equivalent proofs typically is imposed in connection with a
color requirement, usually when four-color process printing is
called for, and is used to evaluate color at the proof stage.
See, e.g., Artisan Printing Inc., GPOBCA 15-93 (February 6,
1998), slip op., 1998 WL ______; The Wessell Co., Inc., GPOBCA
8-90 (February 28, 1992), slip op., 1992 WL 487877; Bay
Printing, Inc., GPOBCA 16-85 (January 30, 1987), slip op., 1987
WL 228975; F.C.L. Graphics, Inc., GPOCAB 13-79 (January 25,
1980), slip op., 1980 WL 119661.
10 He further testified that he also considered the cover to be
defective in terms of Printing Attribute P-9, Solid or Screen
Tints Color Match. HT 101.