U.S. Government Printing Office Contract Appeals Board Vincent T. McCarthy, Chairman Drew Spalding, Member Thomas Magnetti, Member Panel 78-3 Appeal of Kaufman DeDell Printing Inc. November 6, 1979 Preliminary Statement This is a timely appeal entered by the appellant, Kaufman DeDell Printing, Inc., 812 North State Street, P.O. Box 186, Syracuse, NY 13208, after a decision of the Contracting Officer terminating for default the Print Order 3166, of Program 472-M. The dispute centers around non-delivery of the requisitioned items. The Government maintains that the contractor had not delivered by the specified date and the contractor contends that the delays which it encountered were beyond its control. The decision which follows is based upon the written submissions of the Contracting Officer and the appellant. No supplement to the record was permitted after June 20, 1978, and a request for hearing was deemed to have been waived at that time. Findings of Fact On October 21, 1977, pursuant to the usual contracting procedures, the appellant's offer to supply the requirements of GSA's Print Order 3166 was accepted by the GPO. This print order called for the production of 450,020 copies of an 8" x 10 1/2" form on white 25 percent rag bond paper with a specified shipping date of November 18, 1977 (See Exhibits 1 and 2 of the Appeal File - hereafter AF). The print order and other necessary materials to complete the printing operation were mailed to the appellant on October 21, 1977. On this same date the contractor accepted the offer with the specified shipment date of November 18, 1977. After the shipping date had passed, the GPO experienced difficulty in determining why delivery had not been made. See Exhibit 4 of the AF, consisting of a number of a handwritten notations prepared by subordinates of the Contracting Officer. These notations represent a series of attempts to contact Gary J. DeDell, Vice President of the appellant company in order to determine the progress of Print Order 3166. The first attempts were made on November 23, 1977. Messages were left and no response was received. Another effort to contact Mr. DeDell was made on November 28, 1977, again Mr. DeDell did not return the call. As a result of these failures to get any information from Mr. DeDell and because the material had not yet been received by the ordering agency (GSA), a Show Cause Notice was telegraphed to the appellant on December 1, 1977. In this notice the Contracting Officer indicated that because of the appellant's failure to perform the requirements of Print Order 3166 of Program 472-M the GPO was considering terminating the contract in accordance with Article 18, United States Government Printing Office Contract Terms No. 1. The appellant was granted 10 days in which to present in writing any facts bearing on the lateness of delivery. In response to the Show Cause Notice, a letter dated December 15, 1977 was sent to the Contracting Officer, Mr. Roman Goltz by Mr. DeDell in which he acknowledged receipt of the telegram as of December 5, 1977. This letter, which was received in the GPO on December 27, 1977, contended that shipment of Print Order 3166 was held up because no Government bills of lading were received. It also states: "On Print Order 3166, we received the print order some 3 weeks after it was typed up. With less than 3 weeks to print the job we experienced difficulty in getting the 4,500 lbs. of bond paper required. We were told that a making order could not be ready from the mill until Christmas time. We so advised GPO in a letter dated the 2nd of November. 1 This letter was sent to the Contracting Officer, R.S. Schlauch. We never received an answer to this letter date (We asked for an extension or a cancellation.) Several weeks later GPO informed us that Mr. Schlauch was not the contracting officer; however, the letter was still not answered. We expect arrival of the paper within 10 days, as we have presumed to have ordered it." (AF, Exhibit 7.) A response to this letter was not provided by the Contracting Officer because the procedure to terminate Print Order 3166 for default had begun. On January 3, 1978, the Contracting Officer sent a letter to the appellant in which he indicated because of the appellant's failure to produce the print orders in a timely fashion on this particular program contract, the GPO would invoke the "Exception" clause of the contract 2 until "you have established an adequate and proven production control system to meet delivery schedules." (AF, Exhibit 9.) The GPO did not, however, terminate the contract at this time. Exhibit 4 indicates that the bills of lading were received by the appellant company on December 15, 1977. On January 6, 1978, representatives of the GPO called Mr. DeDell to inquire whether he had the bills of lading and the shipping instructions for Print Order 3166. Mr. DeDell responded that he did have the instructions and the bills of lading. The appellant was then requested to ship the order and send copies of the bills of lading to the GPO by Wednesday, January 11, 1978. At this time, the GPO suspended activity on the Show Cause Notice and the default action which was initiated on December 1, 1977. However, an additional Show Cause Notice was telegraphed to the appellant on January 9, 1978, in which the Contracting Office requested the appellant to: "Present documentation of shipment and any other facts bearing on the question to the Contracting Officer, Mr. R. E. Goltz, within five (5) days after receipt of this notice. Your failure to present documentation of shipment within this time may be considered as an admission that none exist [sic]." (AF, Exhibit 10.) Following the transmission of this letter, a number of additional attempts were made by GPO employees to ascertain from appellant the exact status of Print Order 3166. The chronology of telephone calls as evidenced by Exhibit 4 indicates that on both January 13 and January 17, several attempts were made to speak directly with Mr. DeDell. On each occasion he was either not available and did not subsequently return the calls. On January 18, 1978, action was again initiated within the GPO to terminate Print Order 3166 for default. Because of appellant's failure to complete delivery, the Contract Review Board approved this action and the termination was effected by a telegram to the appellant dated January 18, 1978. The action was taken in accordance with Article 18 of the U.S. GPO Contract Terms No. 1, which was specifically incorporated as part of the contract in paragraph 1.2 (AF, Exhibit 1). The next day, January 19, 1978, the Contracting Officer indicated by letter that the action to invoke the "Exception" clause was taken because of failure to deliver and that the inability to obtain adequate material as had been described in Mr. DeDell's letters (Exhibits 6 and 7, dated November 2,1977 and December 15, 1977) was not an excusable reason for any delay under the contract. (See Exhibit 15 of the AF) In a letter dated January 27, 1978, the Contracting Officer further justified the government's actions. (See Exhibit 18 of AF.) Prior to taking.the action of termination for default on January 18, 1978, the GPO was telephonically informed by GSA that the items to be produced under Print Order 3166 had not arrived at their warehouse. Discussion It is the decision of this Appeals Board that the contract (Print Order 3166) was properly terminated in accordance with the procedures set forth in the contract. Therefore, the contractor's appeal from the agency's termination is denied. The appellant's position is that delay and subsequent nonperformance should be excused under the contract because the GPO was notified in November of 1977 by letter (Exhibit 6) of its inability to obtain the proper material. 3 Both Articles 17 and 18 of the GPO Contract Terms No. 1, incorporated by reference into the Multiple Award Term Contract used in this contract (see Sec. 1.2 of Exhibit 1), envision excusable delay and nonperformance on the part of prime contractor or subcontractors if such actions are occasioned by unforeseeable causes beyond the control and without the fault or negligence of the contractor or subcontractor. It is also required that the Contracting Officer be notified within 10 days from the beginning of such delay. 4 This relief is provided to a contractor when delivery or performance becomes either impossible or commercially impracticable. 5 In the instant case, it is unclear from the documents presented by the appellant exactly which defense the appellant is using to justify its claim of excusable delay. This is because there has been no sufficient explanation as to the nature or existence of any unforeseen circumstances. If the contractor could prove that his delay was justified, his delay in performance might be excused. Transatlantic Financing Corporation v. United States, 363 F.2d 312, 315 (C.A.D.C. 1966). In either an impossibility of performance claim or a commercial impracticability claim, the burden of proof is clearly on the contractor. This is because only the contractor is in the position to know such facts as would show that its performance was made impossible by supervening unforeseen circumstances or to know of conditions precedent to the contractor's duty to perform when such conditions had not occurred and were peculiarly within the knowledge of the contractor. Corbin on Contracts, §§ 749 and 751, Vol. 3A, pgs. 467 and 475 (1960 Edition). In Ocean Air Tradeways, Inc. v. Arkay Realty Corp., 480 F.2d 1112 (9th Cir., 1973), the court, in its discussion of impossibility of performance, said at 1117 that: "The burden of proving such a defense was on Ocean Air (the party alleging that it could not perform the contract)." In the area of Government contracts it was held in the decision Federal Contractors, Inc., ASBCA No. 14336, 71-1 BCA, ¶ 18724 at 40,516 that: ".. . . the appellant [the defaulted contractor] has the burden of proving that its default arose out of causes beyond its control and without its fault or negligence." The only evidence in the way of excuse that has been presented to this Board is the letter (Exhibit 6) allegedly sent to the GPO dated November 7, 1977. In this letter, appellant merely states that it was experiencing difficulty in obtaining the proper paper for Print Order 3166 and cannot get such paper until Christmas 1977. We cannot discern from this letter whether the contractor unsuccessfully attempted to obtain paper from any other sources or whether only his original supplier could not produce the required material. The letter alone is insufficient proof to support the contractor's claim that his delay was excusable. In Empire State Tree Service, VACAB No. 949, 71-1 BCA ¶ 8716, pg. 40,498, the Board disallowed the contractor's contention that performance should be excused because unusually severe weather prevented completion of the contract. In finding that the record did not establish that the weather conditions were other than those normally expected when the contract was made, the Board stated in that case: ". . . mere statements in claim letters, unsupported by corroborative evidence of probative value, are not sufficient proof of essential facts which are in dispute." (Pg. 40,500.) This situation is analogous to the case at bar. If the appellant had proven it was impossible to obtain the paper within the specified time limits, then the delay might be judged excusable. However, the letter contains only self-serving and uncorroborated assertions. This falls short of sustaining the burden of proof imposed upon it by law. See also, Federal Contractors, Inc., supra, at pg. 40,516, and Margold Electric Company, Inc., ASBCA No. 15984, 72-2 BCA ¶ 19,646 at 45,041. As a result of appellant's failure to sustain its burden of proof, the claim is hereby denied in its entirety. _______________ 1 Exhibit 6 (AF) is a letter dated November 2, 1977, from Gary J. DeDell, Vice President of the appellant company to Mr. R. S. Schlauch. According to the appellant's appeal letter dated January 20, 1978, Mr. Schlauch was the addressee because he had signed the print order. However, the Board notes that the copy of the print order included with the appeal letter does not have Mr. Schlauch's signature on it. Despite this Board's difficulty in understanding why Mr. Schlauch was the addressee, we quote the letter in full: 'We are having difficulty getting 25% Rag Bond for print order 3166 under Program 472. The mill informs us that it would be near Christmas before same is ready for us. Can you tell us what your wishes are: to give us an extension or to cancel same? "We received said P.O. on the 24th of October, and have been trying to get the.Bond since then. We cannot find 11" rolls available before the date. "Please advise. Thank you." (AF, Exhibit 6.) The narrative supplied by the Contracting Officer indicates that this letter was not received at the GPO until December 27, 1977. It was enclosed with a letter directed to Mr. Roman Goltz, Contracting Officer, dated December 15, 1977. 2 The Exception Clause (See Exhibit 1, § 1.17-1) is designed to permit the GPO to withhold further offers from any contractor who has not complied with the shipping or delivery schedule in a contract until the contractor is judged by the Government to have established adequate production controls and inspection procedures to fulfill any contractual requirement. 3 The contractor also claims that delay in delivery was caused by the receipt of Government Bills of Lading one month after the original shipping date. However, Section 2.16(c) of the Multiple Award Term Contract (Exhibit 1 of AF) does not relieve a contractor of any responsibility in meeting scheduled shipping dates because of any delay in the Government furnishing such information. 4 Even if this Board were to hold that the appellant's letter (Exhibit 6) was a valid notification of the delay the appellant was experiencing, it would not fulfill the other requirements of Article 17 of Contract Terms No. 1. Article 17 provides that such notice should contain justification for any delay occasioned by unforeseen causes beyond the control and without the fault or negligence of the contractor. The justification present in appellant's letter is not sufficient as it serves as a mere statement of fact without any accompanying justification. 5 The distinction between these two theories is explained in Transatlantic Financing Corporation v. United States, 363 F.2d 312 (C.A.D.C. 1966).