U. S. Government Printing Office Office of the General Counsel Board of Contract Appeals Appeal of Kaufman DeDell Printing, Inc. April 29, 1976 Vincent T. McCarthy, Chairman Jay E. Eisen, Member Robert M. Diamond, Member Panel 75-11 This is an appeal filed on November 21, 1975, by Kaufman DeDell Printing, Inc., 812 North State Street, Syracuse, New York, 13208, herein also referred to as the Contractor, under the disputes clause of the contract, Article 29, U. S. Government Printing Office, Contract Terms No. 1, Rev. July 15, 1970. The Office of the General Counsel is the Public Printer's representative for the determination of appeals under the disputes clause. This appeal relates to the action of the contracting officer in terminating the contract, Program 270-S for default by reason of the contractor's failure to deliver an acceptable product on the first of twelve print orders and for failure to make progress on the other eleven print orders. Findings of Fact 1. This appeal arises out of a contract entered into by Kaufman DeDell Printing Inc., and the U.S. Government Printing Office, herein referred to as the GPO, for the production and delivery of self cover forms titled "Questionnaires for Military Occupational Data Bank" for the Department of the Army. 2. The contract, designated as Program 270-S, Jacket Number 211-457, is a requirements type contract executed on May 29, 1975, for the period, June 1, 1975 to May 31, 1976. 3. The specifications require the production of about 160 types of questionnaires, consisting of from 16 to 66 leaves. The maximum total quantity of questionnaires to be produced and delivered amounts to 126,000, at an estimated cost of $130, 747.20. The contract provides that the Department of the Army will place approximately 7 to 15 orders per month until the completion date of the program. 4. The specifications require that the questionnaires be accurately trimmed on four sides, and require such operations as setting type and printing the forms for scanning on the optical Character Reader CDC 915. The importance of accuracy and careful. work is emphasized throughout the specifications. The contract specifications provide, inter alia : "Refer to Section 5 of the U.S.A. Standard Character Set for Optical Character Recognition (X3.17 - 1966) for the Print Characteristics required for the pages to be processed on Control Data Corporation's Optical Character Reader 915. "Alinement and Margins: Alinement and margins are extremely critical and must remain constant on all pages. See Exhibits "F" and "G" for measurements. Refer to Exhibit "G" for exact location of Page Identification Code and Answer Boxes. [Exhibits ."F" and "G" represent samples.] "Proofs: The contractor will be required to furnish two complete press proofs of each questionnaire to the following address, to be approved before gathering and completing production on each order: HQDA (DAPC-PMR-O) 2461 Eisenhower Avenue Alexandria, Virginia 22331 Proofs will be withheld 10 working days. NOTE: Contractor will not print prior to his receipt of a 'OK to Print.'" 5. Print Order 142 E/1 was transmitted to the contractor on August 1, 1975, for completion and delivery to the Department of the Army on October 1, 1975. The listing of subsequent print orders on Program 270-S as issued to the contractor by the Department of the Army, including the dates of issue and schedule and deliveries for completion, are stated as follows: Schedule No. of Print Date of for completion No. Pages Order Issue and delivery Books Each 142E/2 8/1/75 10/31/75 1610 92 142E/3 8/21/75 10/31/75 1030 94 142E/4 8/21/75 10/31/75 985 132 142E/5 8/21/75 10/31/75 490 100 142E/6 8/21/75 10/31/75 170 92 142E/7 8/21/75 10/31/75 890 110 142E/8 8/21/75 10/31/75 515 114 142E/9 9/10/75 11/14/75 815 114 142E/10 9/10/75 11/14/75 1000 102 142E/ll 9/10/75 11/14/75 290 98 142E/12 9/10/75 11/14/75 1000 100 6. The proof submitted by the contractor for the initial print order was received by the ordering agency on September 18, 1975. The proof was found to be substantially deficient in not meeting the requirements set forth in the specifications. The contractor was advised to submit a second proof free of errors. The second proof was received by the agency on September 29, 1975. Similar types of deficiencies to those on the initial proof were obvious on the second set of proofs. The deficiencies on the first and second set of proofs were readily apparent since they prevented the questionnaires from being scannable on the CDC 915 Page Reader, a contractual requirement. Subsequent to the contracting officer forwarding to Kaufman DeDell, a show cause or "cure notice" on October 20, 1975, the contractor submitted a third set of proofs to the agency. They were not acceptable. In essence, the three press proofs (3 copies of the booklet) were not fit for scannability on the CDC 915 Page Reader. In addition, the sequential numbers were printed on magnetic rather than OCR font and were not identical on each page of the booklet as required. 7. The contractor requested a meeting at GPO on October 17, 1975, to discuss the problems connected with the production of the proofs. The representatives of the Department of the Army and GPO who were in attendance at the meeting were notified by the contractor on October 16, 1975, of its' inability to keep the appointment. 8. The contracting officer notified the contractor by letter dated November 17, 1975, of the termination of the contract, Program 270-S because of default by reason of its failure to deliver an acceptable product on the first of 12 print orders and for its' failure to make progress on the other eleven print orders. 9. In connection with the appeal proceedings under the disputes clause of the contract, Article 29, Contract Terms No. 1, the appellant requested an opportunity to be heard in support of its' appeal. Accordingly, Mr. Kenneth Mitchell, Contract Manager, representing Kaufman DeDell Printing, Inc. appeared before the Contract Appeals Board on March 19, 1976. He was accompanied by Mr. Leonard J. Pyznski, Plant Foreman and Mr. Sizzimenti, of the New York Office, Small Business Administration and Mr. Harry L. Heintzelman of the Washington. D.C. SBA office. Mr. Mitchell's oral presentation was generally repetitive of the matters presented by the contractor in its earlier written appeal and supporting correspondence. He stated that conflicting verbal instructions provided by telephonic communication by GPO and the Customer agency tended to mislead them in the preparation of the required proofs. He said that the advice as to whether the lines on the forms and boxes should be heavy or thin were confusing. Thin lines according to Mr. Mitchell, will facilitate the scannability of the proofs on the Control Data Reader. However, the contractor stated that they followed the facsimile sample forms issued for purposes of type face, style and format only. The facsimile contained thick or heavy lines. Mr. Mitchell thus averred that their use of the facsimile forms tended to mislead them to their detriment and financial loss. Since Mr. Mitchell's presentation referred to factual matters within the knowledge of witnesses he was requested to submit the evidence in writing, including affidavits. He was granted a delay until April 1, 1976, to perfect his written appeal. A careful review of the appellant's written letter, dated April 1, 1976, with attachments, discloses that many of the arguments and self serving statements were repeated. Reference is made in the April 1, 1976 letter to some hearsay statements purported to have been made by Mr. T. Myatt and Mr. Dick Powell of the SDA Corporation. The SDA corporation is the contractor retained by the Department of the Army Personnel Center, Alexandria, Virginia, to scan the forms. They are quoted as stating that the Department of Army Personnel Center was notified by the SDA Corporation "of the unacceptability of both the paper (due to high reflectance) and the boxes (due to lightness) upon receipt of the first set of proofs in the middle of September. However, we were not notified of these determining factors until the end of October, 1 1/2 months later and 2 proofs later." The contractor continues by saying that the customer agency "knew the Problem and refused and failed to inform us." Opinion The appellant contractor sought to explain its difficulties, not being able to produce acceptable proofs, in its self serving statements in the appeal correspondence, such as conflicting verbal telephonic instructions issued by the Department of the Army and GPO personnel and failure to accede to the contractor's request to send personnel to their plant to provide technical assistance. The facts disclose that there were several telephone conversations between Army Publications personnel and the contractor relating to the contractor's lack of progress, and author's alterations due to the contractor copying some substantive material in error from an old questionnaire provided as sample. However, there were no changes or conflicting instructions issued by GPO and Army personnel as to the format of the questionnaires as to alinement, margins and spacing of answer boxes as depicted in the specifications and "Exhibit G". In fact, a representative from both the ordering agency and GPO visited. the contractor's plant subsequent to the award of the contract during July 1975. Their objective was to assist the contractor. The specifications do not provide any requirement for a visitation to contractor's plant by Government representatives for the purpose of rendering technical guidance to the appellant contractor. The appellant repeatedly made the point that its problems in connection with the production of the proofs were due to inadequate guidance. Despite the visitation by the Government representatives and advice rendered by telephone, the contractor was unable to produce acceptable scannable proofs. It was afforded three opportunities to do so. The specifications made it a strict requirement, and a condition precedent, for the questionnaires to be scannable on the CDC 915 Page Reader. The contractor furnished three press proofs containing 79 pages to be read on the sophisticated scanning device. A total of 46 pages.were rejected.by the CDC 915 Page Reader and 33 pages contained scanning errors, making them unacceptable. There is no room for tolerance or leeway in the alinement and margins of the leaves, and if not constant on all pages, the proofs are not acceptable for optical character reading by the scanning reader. The initial proof on the first print order was replete with error. The contractor was advised that the critical dimensions were out of range and to submit a second set of proofs. The second set of proofs met with rejection by the ordering agency because they still did not fulfill the contract requirements. Subsequent to the receipt of the show cause letter by the contractor, a third set of proofs were rejected by the ordering agency because they were not acceptable to recognition for scannability on the CDC 915 Page Reader. In addition, the sequential numbers on all three proofs were printed in magnetic rather than OCR Font and were not identical on each page of the booklet as required. This deficiency contributed to the failure of the proofs acceptability to recognition for scannability by the reader equipment. Although Print Order 1 should have been ready for delivery by the contractor on October 1, 1975, the contractor submitted its third set of proofs on October 28, 1975. Seven additional print orders were due on October 31, 1975, and four more by November 14, 1975. Therefore, it is irrelevant that appellant may have corrected its errors by means of technical guidance.provided by GPO journeymen if they were sent on a second visit to its plant in Syracuse, New York. It is readily apparent that the contractor would not have been able to meet the required delivery dates had the contract not been terminated for default. The contractor failed to perform on three opportunities and GPO was not required to give it another chance. Computer Technologies, Inc., ASBCA, 70-1 BCA ¶ 8147 (1970). The fact that performance is required by way of separate print orders does not necessarily make the contract severable, and the entire contract may be terminated for default. The initial print order, due for delivery on October 1, 1975, with seven additional print orders due on October 31, 1975, were not produced and delivered as of November 17, 1975; there was no need to wait any longer. Delmar Mills, Inc., ASBCA 6138, 61-1 BCA ¶ 2910 (1961) The contractor in his Brief dated April 1, 1976, quotes from a GPO public relation publication, "How to Do Business with the GPO," but apparently fails to recognize the fact that the contractual relationship between the GPO and Kaufman DeDell, Printing Inc. is basically a business relationship, following general normal business and commercial law. It is true that the Federal Government is different from the non-Government contracting party, but despite the obvious differences, the Government is the other party to the contract. The U.S. Supreme Court has stated that when the United States "comes down from its position of sovereignty and enters the domain of commerce it submits itself to the same laws that govern individuals there " Cooke v. United States, 91 U.S., 389, 398 (1875). The written contract, including the one in this dispute, is presumed to embody the final and entire agreement of the parties. Parol evidence is accordingly not to be considered to contradict, add to, change or otherwise vary the written contract. This legal principle is clearly stated in Article 2, Contract Terms No. 1, which is incorporated by reference as part of the contract. It is noted that Mr. Mitchell takes an inconsistent position in the appeal as to whether the lines of the boxes should be thick or thin. In his verbal presentation he stressed that thin lines will facilitate the scannability of the form on the CDC 915 Page Reader, but that his people were mislead by following the facsimile sample of the form which contained heavy lines of the boxes, and was the basis for rejection by the CDC Page Reader. However, in his recent written appeal he quotes the opinion of the SDA Corporation and Control Data Corporation that the boxes were too light for scannability purposes. The appellant blames the Army for "lack of truth", instead of realizing the contractor's failure to make progress on the contract was its failure to comply with the specifications expressed in the contract. The specifications apparently were clear to the contractor since it did not raise any questions as to any ambiguities prior to bidding. If the contract did not express the true agreement it was the contractor's folly to have accepted it. A review of correspondence submitted by the appellant and the contracting officer discloses that contemporary instructions were taken into consideration to ascertain the subject matter of the contract, but there is no evidence to support the allegations of the contractor, that the contract was changed, altered or modified in any way. Although not considered in deciding this appeal, it has been reported that the contractor who was awarded the reprocurement contract is meeting the same requirements of the agreement without incident or difficulty. The evidence as adduced leads reasonably to the conclusion that the contractor failed to make satisfactory progress within the contemplation of the default clause, and that such failure was not due to causes beyond its control or without its fault or negligence. The termination for default was therefore proper. International Aerial Mapping Company, ASBCA, 1962 BCA ¶ 3626. Decision In view of the foregoing the appeal is denied.