BOARD OF CONTRACT APPEALS
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON, DC 20401
In the Matter of )
)
the Appeal of )
)
BRACELAND BROTHERS, INC. ) Docket No GPO BCA 01-93
Program C423-S )
Purchase Order 91772 )
Print Order 60037 )
For the Appellant: Braceland Brothers, Inc., Philadelphia,
Pennsylvania, by Frederic G. Antoun, Jr., Esq., Attorney At Law,
Chambersburg, Pennsylvania.
For the Government: Roy E. Potter, Esq., Assistant General
Counsel, U.S. Government Printing Office.
Before FOSS, Administrative Judge.
DECISION AND ORDER
I. STATEMENT OF THE CASE
By Notice of Appeal, dated January 11, 1993, Braceland Brothers,
Inc. (Appellant or Contractor), 7625 Suffolk Avenue,
Philadelphia, Pennsylvania 19153, filed a timely appeal of the
final decision of Contracting Officer Jack Scott, dated November
5, 1992, of the U.S. Government Printing Office's (Respondent or
GPO or Government), Printing Procurement Department (PPD),
Washington, DC 20401, denying the Appellant's equitable
adjustment claim of $17,150.00 for the costs incurred in
reprinting 40,000 copies of a publication for the Social Security
Administration (SSA or customer agency) under its contract
identified as Program C423-S, Purchase Order 91772, Print Order
60037 (R4 File, Tabs A, B, and C).1 See Board Rules, Rules 1(a)
and 2. An evidentiary hearing was held by the Board on August 4,
1993, at which both parties were represented by counsel, who,
thereafter, filed timely briefs on the issues involved.2 Board
Rules, Rules 17 through 24, 26 and 27. For the following
reasons, the Contracting Officer's final decision is hereby
AFFIRMED, and the appeal is DENIED.
II. BACKGROUND
The relevant facts are essentially uncontroverted, and are set
forth here as presented in the R4 File, the RPTC, and the hearing
record.3
1. On August 26, 1991, the Respondent issued an Invitation for
Bid (IFB) for Program C423-S, a single-award "requirements" term
contract, involving the production of self-cover and separate-
cover pamphlets and books for the SSA (R4 File, Tab A, at 1, 6).
The contract was to cover the period beginning October 1, 1991,
and ending September 30, 1992 (R4 File, Tab A, at 1). Among the
IFB's specifications were the following pertinent provisions:
SECTION 1.-GENERAL TERMS AND CONDITIONS
Any contract which results from this Invitation for Bid will be
subject to the applicable articles of GPO Contract Terms (GPO
Pub. 310.2, effective December 1, 1987 (Rev. 9-88) [hereinafter
GPO Contract Terms] and Quality Assurance Through Attributes
Program (GPO Pub. 310.1, effective May 1989 (revised November
1989) [hereinafter QATAP].
* * * * * * * * * *
QUALITY ASSURANCE LEVELS AND STANDARDS: The following levels and
standards shall apply to these specifications:
Product Quality Levels:
(a) Printing (page related) Attributes-Level IV.
(b) Finishing (item related) Attributes-Level IV.
* * * * * * * * * *
ASSIGNMENT OF JACKETS, PURCHASE AND PRINT ORDERS: A GPO jacket
number will be assigned and a purchase order issues to the
contractor to cover work performed. The purchase order will be
supplemented by an individual "Print Order" for each job placed
with the contractor. The print order, when issued, will indicate
the quantity to be produced and any other information pertinent
to the particular order.
* * * * * * * * * *
ORDERING: Items to be furnished under the contract shall be
ordered by the issuance of print orders by the Government.
Orders may be issued under the contract from October 1, 1991
through September 30, 1992. All print orders issued hereunder
are subject to the terms and conditions of the contract. The
contract shall control in the event of conflict with any print
order. A print order shall be "issued" for purposes of the
contract, when it is either deposited in the U.S. Postal Service
mail or otherwise furnished to the contractor in conformance with
the schedule.4
REQUIREMENTS: This is a requirements contract for the items and
for the period specified herein. Shipment/delivery of items or
performance of work shall be made only as authorized by orders
issued in accordance with the clause entitled "Ordering". The
quantities of items specified herein are estimates only, and are
not purchased hereby. Except as may be otherwise provided in
this contract, if the Government's requirements for the items set
forth herein do not result in orders in the amounts or quantities
described as "estimated", it shall not constitute the basis for
an equitable adjustment under this contract.
* * * * * * * * * *
Subject to any limitations elsewhere in this contract, the
contractor shall furnish to the Government all items set forth
herein which are called for by print orders issued in accordance
with the "Ordering" clause of this contract.
SECTION 2.-SPECIFICATIONS
* * * * * * * * * *
FREQUENCY OF ORDERS: Approximately 70 orders per year.
QUANTITY: Approximately 200 to 98,000 copies per order.
Approximately 80 percent of orders will be for 8,000 copies or
less.
NUMBER OF PAGES: Approximately 4 to 2,280 pages per order.
Approximately 80 percent of orders will be for 400 pages or less.
* * * * * * * * * *
GOVERNMENT TO FURNISH:
Camera copy consisting of line art and photoprints to be
reproduced at various focuses.
Film negatives.
* * * * * * * * * *
CONTRACTOR TO FURNISH: All materials and operations, other than
those listed under "Government to Furnish," necessary to produce
the product(s) in accordance with these specifications.
FILMS: The contractor must make all films required. All
halftones are to be 133-line screen or finer. Films may be
opaqued on either the emulsion or non-emulsion side.
The films delivered to the Government must be the final films
used for printing. They must be suitable for making press plates
for subsequent reprinting without any retouching, opaquing,
surprinting or any other hand or camera work.
* * * * * * * * * *
See R4 File, Tab A, at 2-3, 5-7.
2. Also, GPO Contract Terms, incorporated by reference in the
IFB, contains, in pertinent part, the following relevant clauses:
7. Government Furnished Property (GFP).
The contractor is required to examine the furnished property
immediately upon receipt. If at that time there is disagreement
with the description or the requirements as presented in the
specifications (or print order/GPO Form 2511), and prior to the
performance of any work, the contractor shall contact the U.S.
Government Printing Office, Central Office Printing Procurement
Division, Washington, DC 20401, or the originating Regional
Printing Procurement Office, and contest the description.
(Failure to examine the GFP/specifications and bring any
discrepancies to the attention of the Contracting Officer will
not relieve the contractor of responsibility to perform.) The
Contracting Officer will then investigate and make a
determination which will be final. If the decision is reached
that the original description is proper, the contractor will be
required to proceed with the work. Failure to agree to the
description shall be a dispute within the meaning of article 5
"Disputes." If the decision is reached that the description is
erroneous, the Contracting Officer will proceed in one the
following manners:
* * * * * * * * * *
(b) in the case of a print order placed through a term contract,
an equitable adjustment will be negotiated and a supplemental
agreement issued. . . .
* * * * * * * * * *
10. Return of Government Property.
(a) GPO-furnished production media such as positives, negatives,
artwork, camera copy, and similar articles (including unused
[Government Bills of Lading] furnished for use in the completion
of the contract) shall be returned immediate upon completion of
the contract, without demand by the Government, at the
contractor's expense unless specifically provided otherwise in
the specifications or by the Contracting Officer.
* * * * * * * * * *
14. Inspection and Tests.
* * * * * * * * * *
(c) The Government has the right to inspect and test all
supplies5 called for, to the extent practicable, at all places
and times, including the period of manufacture, and in any event
before acceptance. The Government shall perform inspections and
tests in a manner that will not unduly delay performance and
assumes no contractual obligation to perform any inspection and
test for the benefit of the contractor unless specifically set
forth elsewhere.
* * * * * * * * * *
(f) The Government has the right either to reject or to require
correction of nonconforming supplies. Supplies are nonconforming
when they are defective in material or workmanship or are
otherwise not in conformity with requirements. The Government
may reject nonconforming supplies with or without disposition
instructions.
* * * * * * * * * *
See GPO Contract Terms, Contract Clauses, ¶¶ 7, 10, 14.
3. On September 23, 1991, the Respondent issued Purchase Order
91772 awarding the Program C423-S contract to the Appellant for
the term indicated (R4 File, Tab B).
4. On June 15, 1992, the customer agency issued Print Order
60037 to the Contractor for the production and delivery of 40,000
copies of "SSA PUB. 64-039 (5/92)," a 124-page publication
(including blanks) entitled "Disability Evaluation Under Social
Security" (hereinafter Disability Book) (R4 File, Tab C). See
RPTC, at 2. See also Tr. 6, 28-29, 45, 94; Jt. Exh. No. 3.
Among other things, the Print Order stated that the Government-
furnished material (GFM) for the job consisted of 29 pieces of
camera copy, 91 negatives, and a sample of the previous
publication (R4 File, Tab C). See RPTC, at 3. See also Tr. 8,
31. Furthermore, the Appellant was expected to produce and ship
the Disability Book by June 22, 1992, and the estimated contract
price was $17,150.00 (R4 File, Tab C). See RPTC, at 2. Tr. 13.
5. The record discloses that when it received the Print Order,
the Appellant, following its usual business practice, created a
"job jacket" (Jacket No. 10267, dated June 16, 1992). See Tr.
29, 32-34, 38; App. Exh. No. 1. Furthermore, the record shows
that when the Contractor received the GFM, one of its production
planners, Bill Ewing, examined it to make sure that all the
necessary material was there to complete the work, and noted on
the job jacket that there were 30 pieces of camera copy and 89
negatives.6 See Tr. 6-7, 23, 30-31, 35, 43, 84, 86, 94; App.
Exh. No. 1. Although the Appellant's GFM count differed from the
Print Order's, the record indicates that the Contractor never
contacted either GPO or the SSA to question the discrepancy (R4
File, Tab H).7 See Tr. 44.
6. It is undisputed that the Contractor produced and shipped
the Disability Book to the SSA by June 22, 1992, the contact due
date. See RPTC, at 2. See also Tr. 7, 15. As required by the
contract, the Appellant returned the GFM to the customer agency
after completing the work. See Tr. 7-9, 47-48. See also GPO
Contract Terms, Contract Clauses, ¶ 10(a).
7. About two months later, on or about August 10, 1992, the SSA
informed GPO that it had inspected the Disability Book, and found
it unacceptable because it contained a quality defect under QATAP
printing attribute P-5 (R4 File, Tabs D and F). See Tr. 7,
46-47; Jt. Exh. No. 3. Specifically, the customer agency
complained:
Page 9 and 97 duplicated. Contractor appears to have used page
97 to create page 9. Negatives and camera copy were furnished.
Pagination on camera copy has been altered and trimmed. Camera
copy for page 9 was not returned to SSA.
See R4 File, Tab D.8 The SSA also told the Respondent that, as a
consequence, the Disability Book was rejectable and had to be
reprinted (R4 File, Tabs D and F). GPO's own inspection of a
random sample of the publication verified the customer agency's
complaint (R4 File, Tab E).
8. The record indicates that after the SSA notified the
Respondent of the page defect, several PPD employees, including
Contracting Officer Scott, Chief of Program Section C in the Term
Contracts Division, and two employees in the Quality Assurance
Section of PPD's Contract Management Branch, Namon (Tony)
Seaborn, a quality inspection technician, and John Nowalk, a
printing specialist,9 telephoned the Appellant to discuss the
problem (R4 File, Tab F). See Tr. 7, 11, 28, 46-47, 53. The
record also shows that in the conversations which occurred on
August 14, 1992, and August 17, 1992, respectively, the
Contractor took the position that the error was not its fault,
but rather the mistake was SSA's-indeed, possibly an act of
"sabotage;" i.e., the customer agency itself made the camera copy
for page 9 which duplicated page 97 and included it in the GFM
(R4 File, Tab F). See Tr. 12-13, 53, 84, 115, 117-18, 121. See
also RPTC, at 3. For its part, the Government adamantly
maintained that it sent a negative of page 9 to the Appellant
because there were no changes, which was lost or destroyed,
either inadvertently or negligently, by the Contractor, who then
created a new page 9 from the camera copy for page 97 (R4 File,
Tab F).10 See Tr. 119-20, 150-51; Res. Exh. No. 2.11 See also
RPTC, at 3.
9. By letter dated August 21, 1992, the Contracting Officer
formally notified the Contractor that its shipment of the
Disability Book was rejectable, which required its reprinting at
no additional cost to the Government, and that by mutual
agreement the reprints were to be delivered by August 29, 1992
(R4 File, Tab G).12 See Tr. 47. The parties also agreed to the
destruction of the rejected copies (R4 File, Tabs F and G).
10. It is undisputed that the Appellant reprinted and
delivered the Disability Book with a
correct page 9,13 as instructed by the Contracting Officer, and
that the publication was accepted and paid for by the Government.
See Tr. 12-13, 17. However, in the interim, also by letter dated
the August 21, 1992, Jones wrote to the Contracting Officer
claiming, in effect, an equitable adjustment for the additional
costs incurred in reprinting and delivering the Disability Book
(R4 File, Tab H).14 In that regard, the Appellant supported its
claim, in pertinent part, with the following rationale:
. . . The agency is rejecting the order based on incorrect
information which appears on page 9 of the book. The content of
page 9 is the same as for page 97. It is the agencies [sic]
contention that we made the error by creating page 9 from a piece
of camera copy supplied for page 97, when we should have used a
negative that was supplied for page 9. This is impossible. If
we were supplied a negative for page 9 with the correct copy, and
we did have another that was incorrect, we would have realized it
when we stripped the job and realized there were two negatives
for page 9. Some one [sic] would have had to question this and
call the customer. [The] [f]act of the matter is we did not
receive a negative for page 9, but we received a piece of camera
copy. What has happened to this piece of camera copy is a
mystery. Our best guess it disappeared once the camera copy and
negatives were returned to the agency and this problem surfaced.
There are a couple of reasons how we know we received camera copy
for page 9 as opposed to a negative. First, our job jacket
instructions to the camera department specify that 30 camera copy
and 89 negatives were to be system stripped for the text portion
of the book. The package we received from the agency through the
GPO only had 29 camera copy. If we had 30 camera copy when we
originally produced the job, where is the missing piece of copy?
We realize our records conflict with the information on the print
order, the [Print Order] states that 29 copy were supplied and we
say there were 30. However, we don't call when there is such a
minor discrepancy as this since it is very common place. If
you'll note the figures on the [Print Order] don't seem to add
[up] in any event. It states 29 camera copy, 89 negatives
supplied to produce a 124 page book with 6 blanks and 2 covers
printing. In reality there are only 5 blanks in the book,
requiring a total of 119 negatives for the text and two for the
covers. This is what our records showed, 89 negatives and 30
copy totaling 119 pieces for the text.
Secondly and more significantly, the negatives for page 9 and 97
are not identical, but should be if the same piece of copy were
used to produce both. When you overlay the copy for page 97 over
the negative it matches but when you overlay the negative used to
print page 9 the copy does not align with the negative. Also,
the word "trisomy" has a broken "y" on the copy for page 97 and
the negative for 97 but does not appear on the negative for page
9. There are other spots and holes in the negatives which do not
match between the two pages, proving that the negative for page 9
was not made from same piece of copy as page 97 but there was
another piece of copy.
See R4 File, Tab H, at 1-2.15
11. The record indicates that on November 2, 1992, the parties
discussed the Contractor's claim on the telephone (R4 File, Tab
K). Thereafter, on November 5, 1992, Contracting Officer Scott
issued his final decision rejecting the Appellant's equitable
adjustment claim for lack of proof (R4 File, Tab K). See Tr. 15.
See also RPTC, at 4. The Contracting Officer explained, in
pertinent part:
As is stated in Mr. Jones letter of August 21, 1992, it is your
contention that page 9 was printed in error because the Agency
furnished you with the wrong camera copy for this page, and you
made negatives and printed the job from the Government Furnished
Material. In addition, you contend that the furnished material
indicated on the print order was in error, because your internal
job log indicates you received 30 pieces of camera copy and 89
negatives for this order.
However, the Agency contends that the print order was correct,
and that you were supplied with 29 pieces of camera copy and 91
negatives, as indicated. One of these furnished negatives was
for page 9. The Agency concluded that your must have used the
furnished piece of camera copy for page 97 to create page 9.
After the first printing had been determined rejectable, all
camera copy and negatives were returned to you for use in the
reprinting. As we agreed, after the reprinting had been
completed, you were to return all of the camera copy and
negatives to me for a second evaluation, to try and determine if
your claim was valid. The camera copy was received at GPO on
October 14, 1992. The negatives were not included. Mr. Jones
was contacted about the missing negatives and he stated that the
negatives were returned to the Agency.16 The Agency was
contacted, and on October 14, 1992[,] they stated that the
negatives had been disposed of and were no longer available.
Because I do not have the negatives to evaluate, you have not met
your burden of proving that your claim is valid. Given this lack
of evidence, I must assume that the print order was correct and
the error on the first printing was solely the fault of Braceland
Brothers, Inc. Therefore, your claim for an equitable adjustment
is denied.
See R4 File, Tab K, at 1-2.17
12. By letter dated January 11, 1993, the Appellant timely
appealed the Contracting Officer's final decision to the Board.
III. ISSUE PRESENTED
Although the Board identified three subquestions at the
prehearing conference on June 30, 1993,18 in reality the sole
issue in this appeal is:
Has the Appellant proven that it is entitled to an equitable
adjustment for reprinting the Disability Book? Stated otherwise,
has the Contractor shown that the SSA supplied it with erroneous
camera copy for page 9 of the original printing, and that the
incorrect page 9 was not created at its plant from the camera
copy for page 97?
IV. POSITIONS OF THE PARTIES
A. The Appellant
As the above statement of the issue makes clear, the fact that
the original printing of the Disability Book contained an
erroneous page 9 is not in dispute in this appeal. Instead, the
parties disagree about who is to blame for the mistake. In that
regard, the Appellant has maintained from the outset that the
fault was the Government's because the SSA supplied it with
camera copy for page 9 that duplicated page 97.19 See RPTC, at
4; App. Brf., at 3. The Contractor believes that it is
significant that the GFM count on its job jacket for the original
printing shows the receipt of 30 pieces of camera copy, while the
GFM for the reprint contained only 29 pieces of camera copy. See
RPTC, at 3; App. Brf., at 3. The Appellant says that not
surprisingly the missing piece of camera copy was the erroneous
page 9, and suspects that the SSA purposely destroyed the camera
copy once it became aware of the problem after the first printing
of the Disability Book had been completed, and the GFM returned
by the Contractor.20 See RPTC, at 5; App. Brf., at 3. Indeed,
the Appellant also argues that in light of the customer agency's
destruction of the relevant camera copy, it was unfair and
improper for the Contracting Officer to decide that the
Contractor had failed to establish an evidentiary basis for its
claim. See RPTC, at 5.
Additionally, the Appellant alleges that a visual comparison of
printed pages 9 and 97 in the original printing of the Disability
Book clearly shows that the two pages are sufficiently different
so that they could not have been derived from the same camera
copy. See RPTC, at 5; App. Brf., at 3. In that regard, the
Contractor observes that page 9, unlike page 97, has better type
quality and unbroken letters in the words "anencephaly" and
"trisomy."21 See App. Brf., at 3. Furthermore, the Appellant
claims that although both parties' expert witnesses agree that
page 97 was created from the SSA's camera copy, they offered
different reasons for the quality differences between that page
and page 9. Id. Thus, the Contractor says that while its
witness asserted "some certainty" that based on his experience
"it was impossible to fill in voids or missing areas of a letter
on camera copy when producing a negative from that camera copy,"
the explanation advanced by the Respondent's expert essentially
boiled down to "dust contamination during the negative-making
process from the glass which holds the copy in place." Id.
However, the Appellant notes that the camera method used on this
job-the opti-copy system-does not use glass.22 Id.
Finally, the Contractor rejects the Respondent's idea that it
should have examined all of the camera copy and negatives in the
GFM before printing the Disability Book. See RPTC, at 4-5.
Indeed, the Appellant argues that such an issue is not even
before the Board. Id. In its view, the contract merely required
that it produce the publication from the GFM supplied by the SSA,
and thus, the Government is wholly responsible for any printing
error caused by the wrong camera copy. See RPTC, at 5.
Accordingly, for these reasons, the Appellant alleges that
because of the SSA's error in the GFM, it had to print the same
job twice, and therefore, it is entitled to an equitable
adjustment equal to the purchase price, less $100.00, which
represents the savings realized by work it previously performed
on the initial printing, or $17.050.00.23 See RPTC, at 4; App.
Brf., at. 4.
B. The Respondent
The Respondent, for its part, offers two reasons why the
Contracting Officer's decision should be sustained in this case.
First, the Government alleges that the Appellant has failed to
prove that the reason for an erroneous 9 in the original printing
of the Disability Book was a mistake in the GFM supplied by the
SSA. See RPTC, at 3; Res. Brf., at 3. Rather, GPO insists that
the Print Order correctly showed the GFM sent to the Contractor,
and that it included a film negative for page 9, which should
have been used to print that page.24 See RPTC, at 3. Under
applicable principles, the Appellant has the burden of proving
that, in fact, the Print Order was in error, and that the GFM it
received was unsuitable for its intended use. See Res Brf., at 3
(citing Hudson Garment Co., Inc., ASBCA No. 4847, 60-2 BCA ¶
2827; Royal Electric, Inc., ASBCA No. 3340, 62 BCA ¶ 3571). In
that regard, the Respondent says that the Contractor's
"suitability" argument is based on its claim that it received 30
pieces of camera copy, and not the 29 pieces called for in the
Print Order, the extra piece being marked page 9. See Res. Brf.,
at 4. Since negatives were made from all of the camera copy
supplied by the SSA, the Contractor states that the erroneous
page 9 was simply included in that mix. Id. However, the
Government, relying on Schwenk's testimony, contends that the
"more likely scenario" is that the Appellant mistakenly used the
camera copy for page 97 of the Disability Book to create the
camera copy for page 9, and then made the negative.25 See RPTC,
at 3-4; Res. Brf., at 4-5 (citing Tr. 57, 181; Res. Exh. Nos.
4-6). Thus, GPO believes that the error occurred when the camera
copy was grouped to shoot negatives and something, such as an
overlapping piece of camera copy, covered the number 7 on the
camera copy for 97.26 See Res. Brf., at 4 (citing Tr. 150).
Consequently, the Respondent asserts that it was a mistake in the
manufacturing process, rather a defect in the GFM, which resulted
in the incorrect page 9, and required a reprinting of the
Disability Book. See RPTC, at 4. Indeed, while candidly
acknowledging that the precise cause for the page 9 error might
never be known, GPO also believes that the fact of not knowing
only demonstrates that the Contractor failed to meet its burden
of proof.27 See Res. Brf., at 5.
Secondly, the Respondent argues that the Appellant's failure to
comply with the "Government Furnished Property" clause of the
contract is also a reason to deny the equitable adjustment claim.
See Res. Brf., at 4 (citing GPO Contract Terms, Contract
Clauses,¶ 7). Essentially, GPO contends that if the Contractor
received 30 pieces of camera copy when the Print Order indicated
29 pieces were being supplied, then there was an obvious
discrepancy in the GFM. Id. (citing App. Exh. No. 1). See also
R4 File, Tab C. The Government states that since the Appellant
was aware of the differences in the camera copy numbers before it
started production, the terms of the contract required it to
notify GPO so that the error could either be resolved or
explained. See Res. Brf., at 3. However, the Contractor did not
do so, but rather assumed its count was correct and proceeded to
print the Disability Book without bringing the discrepancy to the
Contracting Officer's attention. Id. Therefore, because settled
principles tell us that a contractor who knows, or should know,
before performance that the GFM is defective, cannot recover on a
claim based on that alleged defect, the Respondent believes that
the Appellant has forfeited any right to an equitable adjustment
in this case.28 See Res. Brf., at 4 (citing Kilgore, Inc., ASBCA
No.. 1387 (1953)).
Accordingly, for these reasons, GPO submits that the Contractor's
equitable adjustment claim is without merit, and thus the
Contracting Officer's decision should be upheld, and the appeal
denied. See RPTC, at 4; Res. Brf., at 5.
V. DECISION29
The Appellant tells us that "[t]his case presents no complex
legal issues or questions of law." See App. Brf., at 2. The
Board agrees completely with this assessment of the record. The
controversy with respect to Print Order 60037 involves a simple
question-is the Appellant entitled to an equitable adjustment
under the circumstances; i.e., has it supported its right to
extra compensation?-the amount of the claim itself has not been
challenged by the Respondent. Furthermore, this is the sort of
issue which the Board has dealt with innumerable times before.
In past cases, the Board has detailed the fundamental principles
relating to equitable adjustments so that the parties could have
a clear understanding of the guideposts followed in resolving
their dispute. See e.g., Swanson Printing Co., supra, slip op.
at 20-24; Universal Printing Co., GPO BCA 09-90 (June 22, 1994),
slip op. at 39-42, 1994 WL 377586; Banta Co., GPO BCA 3-91
(November 15, 1993), slip op. at 25-26, 37-38, 1993 WL 526843.
No such recitation is necessary in this appeal. The reason is
quite simple. Overarching legal precepts aside, the Contracting
Officer is correct-as a purely evidentiary matter, the Appellant
has failed to establish its entitlement to an equitable
adjustment. See e.g., Swanson Printing Co., supra, slip op. at
31-32 (failure to retain required documentation); Fry
Communications, Inc./InfoConversion Joint Venture, GPO BCA 9-95
(August 5, 1991), Decision on Remand, slip op. at 35-36, 1991 WL
439272 (necessary worksheets and notes disappeared).
Reduced to its essentials, the Appellant's case consists of two
allegations: (1) the Government was responsible for the page
error in the first printing of the Disability Book because the
GFM supplied by the SSA contained a piece of camera copy for page
9 that duplicated page 97; and (2) once the problem with page 9
surfaced after the initial printing, the SSA purposely destroyed
the defective camera copy which had been returned with the GFM,
thus depriving the Contractor of the necessary evidence to prove
its claim; i.e., the customer agency, in bad faith, deliberately
"sabotaged" the Appellant. See R4 File, Tab F; Res. Brf., at 5.
The burden of proof is different for each of these contentions,
involving "preponderance of the evidence," on the one hand, and
""well-nigh irrefragable proof," on the other. However, the
Contractor has not carried its burden on either assertion.
A. The Appellant has not shown by a preponderance of the evidence
that the GFM supplied by the SSA for the initial printing of the
Disability Book mistakenly included a piece of camera copy for
page 9 that duplicated page 97, instead of a negative from the
previous printing. Furthermore, under the terms of the contract,
when the Contractor saw that there was a discrepancy between the
GFM description on the Print Order and the material received from
the customer agency, it was obligated to notify GPO prior to the
performance of any work, and it failed to do so. Accordingly,
there is no support for the Contractor's equitable adjustment
claim for extra costs in the amount of $17,050.00 under Print
Order 60037.
For the Appellant to receive an equitable adjustment in this
case, it had to establish three necessary elements; i.e.,
liability, causation, and resultant injury. See Swanson Printing
Co., supra, slip op. at 22; GraphicData, Inc., supra, slip op. at
51; Universal Printing Co., supra, slip op. at 40; Banta Co.,
supra. slip op. at 43, n. 53. Accord Delco Electronics Corp. v.
United States, 17 Cl. Ct. 302, 320 (1989); Wunderlich Contracting
Co. v. United States, 173 Ct. Cl. 180, 199, 351 F.2d 956, 968
(1965); JGB Enterprises, Inc., ASBCA No. 49493, 96-2 BCA ¶
28,498, at 142,309; West End Welding & Fabricating, Inc., ASBCA
Nos. 40423, 41120, 41213, 48307, 96-1 BCA ¶ 28,151, at 140,531;
McDonnell Douglas Services, Inc., ASBCA No. 45556, 95-1 BCA ¶
27,333, at 136,230 (citing Wilner Construction co. v. United
States, 24 F.3d 1397, 1401 (Fed. Cir. 1994)). See generally John
Cibinic, Jr. and Ralph C. Nash, Jr., Administration of Government
Contracts 3d ed., (The George Washington University, 1995), at
699-700 (hereinafter Cibinic & Nash, Administration).
Furthermore, it was incumbent on the Contractor, as the party
claiming the benefit of the adjustment, to prove each of these
elements by a preponderance of the evidence. See Swanson
Printing Co., supra, slip op. at 22; Universal Printing Co.,
supra, slip op. at 40; Fry Communications, Inc./InfoConversion
Joint Venture, GPO BCA 9-95 (August 5, 1991), Decision on Remand,
slip op. at 31, 1991 WL 439272 (Decision on Remand) (citing
Hopkins v. Price Waterhouse, 737 F.Supp. 1202, 1204, fn. 3
(D.D.C. 1990) (hereinafter Fry Communications). Accord Teledyne
McCormick Selph v. United States, 214 Ct. Cl. 672, 558 F.2d 1000
(1977); Wilbur Smith & Associates, Inc., ASBCA No. 35301, 89-3
BCA ¶ 22,025. See generally Cibinic & Nash,
Administration, at 698. This evidentiary standard was defined by
the Board in Fry Communications, where it stated:
"Preponderance of the evidence" simply means such evidence as,
when weighed against that opposed to it, is more convincing that
something is more likely so than not so. Cf., Hopkins v. Price
Waterhouse, 737 F.Supp. 1202, 1204, fn. 3 (D.D.C. 1990). That
is, to meet this standard of proof a party is required to present
evidence sufficient to persuade the trier of fact that the
proposition is more likely to be true than not true. Id., at
1206 (citing E. Devit, C. Blackmar, M. Wolff, Federal Jury
Practice and Instructions § 7-2.02 (4th ed. 1987)).
See Fry Communications, supra, slip op. at 31-32. See also
Swanson Printing Co., supra, slip op. at 22, n. 34. Accord Joyce
C. Smith v. United States, 557 F.Supp. 42, 51 (W.D.Ark. 1982)
("Preponderance of the evidence" means the greater weight of
evidence. It is the evidence, which, when weighed with that
opposed to it, has more convincing force and is more probably
true and accurate. If, upon any issue in the case, the evidence
appears to be equally balanced, or if it cannot be said upon
which side it weighs heavier, then plaintiff has not met his or
her burden of proof." [Citations omitted.]). Moreover, there is
a presumption of regularity which attaches to the official acts
of public officers, see P. Francini & Co., Inc. v. United States,
2 Cl. Ct. 7, 11 (1983), which means that, for the purposes of
this appeal, the Government's description of the GFM on the Print
Order as consisting of 29 pages of camera copy and 91 negatives,
is presumed to be accurate and correct; i.e, it reflects what the
SSA actually supplied the Appellant to produce the Disability
Book. To overcome this presumption and to prevail on its claim,
the Appellant was required to submit sufficient proof to show
that, contrary to the Print Order count, it was "more likely . .
. true than not true" that the GFM it received consisted of 30
pieces of camera copy and 89 negatives. However, the Contractor
has not done so.
The Appellant's evidence in support of its claim consists
entirely of Jones' hearing testimony, which, as previously noted,
essentially repeated his letter of August 21, 1992 (R4 File, Tab
H),30 and the job jacket it created when it received the Print
Order (App. Exh. No. 1). In substance, the Contractor's proof
amounts to little more than: (1) Jones' opinion that the visual
discrepancies between the letters "h" and "y" in the words
"anencephaly" and "trisomy," respectively, which were broken in
the camera copy for page 97 of the first printing of the
Disability Book, but were clear and crisp in the negative for
page 9, see Tr. 69-72, 74-78, 79, 80, 82, 96-97; Jt. Exh. Nos. 1
and 2, demonstrated conclusively that the negative could not have
been made from the camera copy, see Tr. 74-75, 77-78, 114-15;
and (2) his assertion, in effect, that the Appellant's records
showing the receipt of 30 pieces of camera copy, not 29, could
not possibly be wrong, see Tr. 43, 48, 50, 57, 84-86, 94; App.
Exh. No. 1. In the Board's view, this proof is insufficient to
defeat the Respondent's countervailing evidence tending to show
that: (1) there were "more similarities than differences" between
the negative used for page 9 and the camera copy for page 97 in
the first printing of the Disability Book;31 and (2) something
commonplace in the production process, like dust or dirt on the
photocopier which made the camera copy, or on the film during
platemaking, especially if the camera copy for page 9 was
photographed first, could have caused the visual differences
between the letters "h" and "y" on the negative and the camera
copy, see Tr. 156, 171-72, 174-75, 177-78. Indeed, the fact that
the Appellant and GPO agree that "overlapping" was responsible
for creating the negative for page 9 from the camera copy for
page 97, and only differ with respect to the place where the
error occurred,32 just tells the Board that both parties are, to
some extent, confusing speculation with proof. The point is,
however, that the presumption of regularity, which favors the
Government in this case, cannot be overcome by inferences or
speculation. See Gregory Lumber Co., Inc. v. United States, 11
Cl. Ct. 489, 501 (1986), aff'd, 831 F.2d 305 (Fed. Cir. 1987),
cert. denied, 484 U.S. 1061, 108 S.Ct. 1016, 98 L.Ed.2d 982
(1988); rehearing denied, 485 U.S. 1015, 108 S.Ct. 1490, 99
L.Ed.2d 717 (1988). See also Contract Custom Drapery Service v.
United States, 6 Cl. Ct. 811, 817 (1984); American General
Leasing v. United States, 218 Ct. Cl. 367, 587 F.2d 53, 59 (Ct.
Cl. 1978); Knotts v. United States, 121 F.Supp. 630, 631 (Ct. Cl.
1954); Keno and Sons Construction Co., ENG BCA No. 5837, 95-2 BCA
¶ 27,687, at 138,053 (Government claim). Likewise, suspicions
and innuendo are no substitute for hard facts, and are
insufficient to amount to proof by a preponderance of the
evidence. See CACI, Inc.-Federal v. United States, 719 F.2d
1567, 1582 (Fed. Cir. 1983); Zenovia Bryant v. St. Helena Parish
School Board, et al., 561 F.Supp. 239, 245 (M.D. La. 1983). In
so many words, the presumption of regularity attaching to the
Print Order's description of the GFM had to be offset by factual
evidence from the Appellant explaining to the Board's
satisfaction why its job jacket was correct, as alleged, and the
Print Order was wrong. Such proof from the Contractor is not in
the record. Consequently, the Board finds it necessary to repeat
what it said in dismissing the identical assertion made by the
contractor in Custom Printing Co., namely:
The single disputed fact in the case is whether or not Appellant
was furnished the correct camera copy for the original printing.
Appellant argues that it must have received defective copy from
[Respondent], because its own procedures for handling copy were
so exacting it could not have caused the error. We are not
[persuaded] by this argument.
See Custom Printing Co., GPO BCA 10-87 (May 10, 1988), slip op.
at 12, 1988 WL 363328. Stated otherwise, since the Respondent's
explanation about what happened to cause the error is just as
plausible as the Appellant's, the evidence of record is "equally
balanced," and thus, it can not be said that the Contractor has
sustained its burden of proof by a preponderance of the evidence.
See Swanson Printing Co., supra, slip op. at 22, n. 34; Fry
Communications, supra, slip op. at 31-32. Accord Joyce C. Smith
v. United States, supra, 557 F.Supp. at 51; Keno and Sons
Construction Co., supra, 95-2 BCA at 138,052-53.
On the other hand, there was clearly a mistake committed here,
and it was made by the Appellant. In that regard, the Contractor
had the burden of proving that the GFM was not suitable for its
intended purpose in this case; i.e., that the GFM was
inappropriate for use in the process of manufacturing the
Disability Book. See Web Business Forms, Inc., GPO BCA 31-89
(July 22, 1994), slip op. at 13-14, 1995 WL 488523; Printing
Unlimited, GPO BCA 21-90 (November 30, 1993), slip op. at 18,
1993 WL 516844; Custom Printing Co., supra, slip op. at 13.
Accord Topkis Brothers Co. v. United States, 155 Ct. Cl. 648, 297
F.2d 536 (1961); Thompson Ramo Wooldridge, Inc. v. United States,
175 Ct. Cl. 527, 361 F.2d 222 (1966); Bogue Electric
Manufacturing Co., ASBCA No. 25184, 86-2 BCA ¶ 18,925; Space Age
Engineering, Inc., ASBCA Nos. 25761, 25982, 26020, 26381, 28346,
86-1 BCA ¶ 18,611; C.M. Moore Division, K.S.H., Inc., PSBCA No.
1131, 85-2 BCA ¶ 18,110. As a rule, if a contractor can show
that the GFM it receives is defective and not suitable (in this
case, because it included an erroneous piece of camera copy),
then compensation for its extra work would be warranted. Cf.
Printing Unlimited, supra, slip op. at 20-21 (claim denied where
the Board's own inspection of the GFM indicated that the mylar
materials were clean and clear enough to produce readable proofs
with a reasonable amount of effort from the contractor); Custom
Printing Co., supra, slip op. at 12-13 (no proof that the
contractor was furnished defective camera copy for the original
printing). Also cf. AAA Engineering & Drafting, Inc., ASBCA No.
24872, 85-2 BCA ¶ 17,970, at 90,101 (despite a contractor's claim
to the contrary, there was no indication that the Government
failed to furnish the amount of reproducible copy needed to
perform a technical order-writing contract); Space Age
Engineering, Inc., supra, 86-1 BCA at 93,464 (no evidence that
the Government's computer printouts were unsuitable for use).
However, this is not true where a contractor fails to give timely
notice of the defect to the Government and thus deprives the
Contracting Officer of a chance to rectify the problem. See Web
Business Forms, Inc., supra, slip op. at 13. Accord Landscape
Pavers, Ltd., ASBCA No. 47773, 96-2 BCA ¶ 28,441, at 142,090 (no
recovery for relocation of valves because the contractor failed
to notify the project engineer once the problem was discovered
and await his direction); Service Engineering Co., ASBCA No.
42139, 96-1 BCA ¶ 28,012, at 139,883-84 (the repair of GFM was
not compensable because the contractor did not inspect the
equipment upon receipt and therefore could not prove that it was
defective when the Government turned it over); Logicon, Inc.,
ASBCA No. 39683, 90-2 BCA ¶ 22,786, at 114,444 (contractor not
entitled to an equitable adjustment for the cost of dissembling
and inspecting GFM because the contract required inspection and
notice to the contracting officer if the equipment was not
suitable for its intend use. Citing Structural Systems
Technology, Inc., ASBCA No. 36950, 89-2 BCA ¶ 21,693). See also
JGB Enterprises, Inc., supra, 96-2 BCA at 142,309 (a contractor
was not entitled to an equitable adjustment for its efforts to
correct admittedly defective specifications, because it undertook
these efforts without giving the Government notice or seeking
Government approval of its actions; i.e., the contractor was, in
effect, a volunteer).
In the Board's view, the Appellant cannot escape the
consequences of its admission that although the GFM count in its
own records differed from the information on the Print Order, it
did not bother to call GPO's attention to the difference because,
in its opinion, the discrepancy was "commonplace" and too minor.
See R4 File, Tab H; Tr. 44. As previously indicated, the
contract contains GPO's standard "Government Furnished Property"
clause, which among other things, required the Contractor ". . .
to examine the furnished property immediately upon receipt[,]"
and notify the Contracting Officer "prior to performance" of any
"disagreement with the description or the requirements as
presented in the specifications (or print order/GPO Form 2511), .
. .". See GPO Contract Terms, Contract Clauses, ¶ 7. A
contractor's duty to notify GPO under the circumstances described
in the above clause is an affirmative one. See Web Business
Forms, Inc., supra, slip op. at 13; Custom Printing Co., supra,
slip op. at 12. Consequently, where, as here, a contractor
claims that the GFM is either inadequate or unsuitable, it has
the burden of proving that it notified the Respondent of its
problems in accordance with the terms of "Government Furnished
Property" clause; i.e., "prior to the performance of any work."
See Web Business Forms, Inc., supra, slip op. at 13-14; Printing
Unlimited, supra, slip op. at 13; Custom Printing Co., supra,
slip op. 12. Regardless of the Appellant's reasons, it candidly
admits that even though its inspection of the GFM disclosed a
discrepancy between the number of pieces of camera copy and
negatives described on the Print Order and the number it says it
received, it never contacted either GPO or the SSA "prior to
performance" for instructions on how to proceed, as required by
the contract. Therefore, the Respondent cannot be held liable
for the Contractor's failure to comply with the terms of their
agreement. See Web Business Forms, Inc., supra, slip op. at 15;
Printing Unlimited, supra, slip op. at 14; Custom Printing Co.,
supra, slip op. 13. Accord Landscape Pavers, Ltd., supra, 96-2
BCA at 142,090; Logicon, Inc., supra, 90-2 BCA at 114,444.
In the final analysis, the Appellant's attempt to shift
responsibility for its performance failures to the Government is
unavailing. On this record, the Contractor's position with
respect to the allegedly defective GFM is essentially nothing
more than a res ipsa loquitur argument, which is no substitute
for hard proof and is not favored by contract appeals boards, in
any event. See Professional Printing of Kansas, Inc., GPO BCA
2-93 (May 19, 1995), slip op. at 62, 1995 WL 488488; Vanier
Graphics, Inc., GPO BCA 12-92 (May 17, 1994), slip op. at 40-41,
n. 32, 1994 WL 275102. Accord Cannon Structures, Inc., AGBCA No.
90-207-1, 93-3 BCA ¶ 26,059, at 129,541; ABM/Ansley Business
Materials v. General Services Administration, GSBCA No. 9367,
93-1 BCA ¶ 25,246, at 125,749-50; Santa Barbara Research Center,
ASBCA 27831, 88-3 BCA ¶ 21,098, at 106,516. Perhaps the
Respondent is correct when it says that the precise reason for
the erroneous page 9 in the original printing of the Disability
Book may always remain a mystery. See Res. Brf., at 5. However,
the Board has stated that where the parties' dispute concerns the
GFM supplied to the contractor, or some aspect of the
manufacturing process:
The question is purely technical in nature and, pursuant to the
terms of the contract concerning the rights of inspection, is
reserved to the Government to determine. The exercise of such
authority by the Government is usually made by the [Contracting
Officer], . . . and will not be overturned by the Board except
upon clear and convincing evidence that it was fraudulently made
or that the discretion was clearly erroneous or exercised in an
arbitrary or capricious way.
See The Printery, Inc., GPO BCA 14-87 (July 7, 1989), slip op. at
3-4, 1989 WL 384983. See also P. Francini & Co., Inc. v. United
States, supra, 2 Cl. Ct. at 11 (". . . [T]he prevailing view
among courts [is] that determinations in procurement matters
should ordinarily be left to the discretion of administrative
officials exercising procurement authority, and that the proper
scope of judicial review over administrative determinations in
the procurement field is relatively narrow. Court decisions have
indicated that judicial review in such cases should be limited to
determining whether the administrative action under attack (1)
lacked any rational basis . . . or (2) involved a clear and
prejudicial violation of an applicable statute or regulation . .
. [Citations omitted.]).
Accordingly, considering the record as a whole, the Board
concludes that the Appellant has failed to sustain its burden of
proof on the defective GFM issue, and thus its equitable
adjustment claim of $17,050.00 under Print Order 60037 is
unsupported. See Web Business Forms, Inc., supra, slip op. at
15; Printing Unlimited, supra, slip op. at 15; Custom Printing
Co., supra, slip op. 13.
B. The Appellant has not established any legal basis for
application of the "spoliation" doctrine in this case. That is,
the Contractor has not shown that the SSA purposely destroyed the
allegedly defective camera copy after the page 9 problem
surfaced, thereby depriving the Contractor of the evidence it
needed to prove its claim, or that the customer agency, either
alone or in concert with the Contracting Officer, otherwise
acted in bad faith.
The Appellant's second contention, that the most critical piece
of evidence in this case-the camera copy for the erroneous page 9
supplied by the SSA for the first printing of the Disability
Book-was deliberately destroyed by the customer agency after it
became aware of its mistake, is easily disposed of.33 The
Appellant accuses the SSA of "sabotage," see R4 File, Tab F, but
what it is alluding to, in legal parlance, is "spoliation," an
offshoot of the "bad faith" doctrine. "Spoliation," which is
akin to obstruction of justice, refers to the intentional
destruction of evidence, which, if established, allows a fact
finder to draw an inference that evidence destroyed was
unfavorable to the p arty responsible for its destruction. See
BLACK'S LAW DICTIONARY 1401 (6th ed. 1990) (hereinafter
BLACK'S).34 The contours of the doctrine were recently described
by the Federal Circuit in Hardwick Brothers Co. v. United States:
It is a well-established doctrine that a party's destruction or
"spoliation" of evidence can give rise to an inference that the
destroyed evidence would have been damaging to that party's case.
31A C.J.S. Evidence § 152 (1964). The rationale is a presumption
that a party does not withhold information from a tribunal which
is beneficial to its case. Consequently, courts may draw an
inference where it can be shown that the destroyed evidence was
critical or controlling on an issue of liability and the evidence
was destroyed in bad faith. Eaton Corp. v. Appliance Valves
Corp., 790 F.2d 874, 878 (Fed. Cir. 1986) (an inference on an
issue of liability not made by the court where destroyed
documents were produced earlier in discovery and plaintiff was
unable to demonstrate the probative value of the destroyed
evidence). In short, courts will not draw this negative
inference if the evidence was unintentionally or even negligently
destroyed or the destruction can be otherwise satisfactorily
explained. INA Aviation Corp. v. United States, 468 F.Supp. 695,
700 (E.D.N.Y.), aff'd, 610 F.2d 806(2d Cir. 1979) (trial court
properly granted summary judgment dismissing a wrongful death
action under the Federal Tort Claims Act where the government
destroyed weather logs in accordance with established
administrative procedure).
A showing of bad faith is also an element of this doctrine.
Eaton Corp., 790 F.2d at 878. What constitutes bad faith depends
on the circumstances. Coats v. Johnson & Johnson, 756 F.2d 524,
551 (7th Cir. 1985). For example, the Fifth Circuit has held
that mere negligence does not meet the requisite bad faith
requirement for purposes of raising an adverse inference. Vick
v. Texas Employment Comm., 514 F.2d 734, 737 (5th Cir. 1975). In
Vick, the plaintiff filed a Title VII sexual discrimination
action against the Texas State Employment Commission ("TEC").
Before trial, in accordance with its established regulations
concerning inactive matters, TEC destroyed records concerning the
plaintiff. The Fifth Circuit held that TEC's destruction was
mere negligence and not tantamount to bad faith. Thus, it said
that no adverse inference against TEC was justified. In view of
the holding in Vick, it is clear that more than mere negligence
is required to give rise to the element of bad faith. See also
INA Aviation, 468 F.Supp. at 700; Coates, 756 F.2d at 551
(destruction of relevant disciplinary letters by manager of labor
relations did not meet the requisite bad faith requirement for
purposes of raising an adverse inference where the manager was
unaware of the pending litigation).
See Hardwick Brothers Co. v. United States, 36 Fed. Cl. 347,
416-17 (1996).
The above excerpt from the court's opinion tells us that the
party claiming the benefit of the "spoliation" doctrine must
prove two elements: (1) that critical or controlling evidence on
issue of liability was destroyed by a party;35 and (2) the
destruction was in bad faith. As the Board has said on numerous
occasions, an allegation of bad faith must be established by
"well-nigh irrefragable proof" because there is a strong
presumption that Government officials properly and honestly carry
out their functions.36 See e.g. Rose Printing, Inc., supra, slip
op. at 25; Big Red Enterprises, GPO BCA 07-93 (August 10, 1996),
slip op. at 36-37, 1996 GPOBCA LEXIS 26; MPE Business Forms,
Inc., GPO BCA 10-95 (August 16, 1996), slip op. at 27-28, n. 34,
1996 GPOBCA LEXIS 31; New South Press & Assoc., Inc., GPO BCA
14-92 (January 31, 1996), slip op. at 36, 1996 WL 112555; Asa L.
Shipman's Sons, Ltd., GPO BCA 06-95 (August 29, 1995), slip op.
at 12, n. 16, 1995 WL 818784, reconsid. denied, 1996 WL _____
(February 13, 1996); Professional Printing of Kansas, Inc.,
supra, slip op. at 43, n. 58; Universal Printing Co., supra, slip
op. at 24, n. 24; B. P. Printing and Office Supplies, GPO BCA
14-91 (August 10, 1992), slip op. at 16, 1992 WL 382917;
Stephenson, Inc., supra, slip op. at 54; The Standard Register
Co., GPO BCA 4-86 (October 28, 1987), slip op. at 12-13, 1987 WL
228972. Accord Claude R. Smith v. United States, 34 Fed. Cl.
313, 321-22 (1995); Brill Brothers, Inc., ASBCA No. 42573, 94-1
BCA ¶ 26,352; Karpak Data and Design, IBCA No. 2944, 93-1 BCA ¶
25,360; Local Contractors, Inc., ASBCA No. 37108, 92-1 BCA ¶
24,491. The key to such evidence is a showing of specific intent
on the part of the Government to injure the contractor. See Rose
Printing, Inc., supra, slip op. at 26; Big Red Enterprises,
supra, slip op. at 37; MPE Business Forms, Inc., supra, slip op.
at 27-28, n. 34; New South Press & Assoc., Inc., supra, slip op.
at 36, n. 52; Stephenson, Inc., supra, slip op. at 54. Accord
Claude R. Smith v. United States, supra, 34 Fed. Cl. at 322;
Kalvar Corp. v. United States, 211 Ct. Cl. 192, 199, 543 F.2d
1298, 1302 (1976), cert. denied, 434 U.S. 830, 98 S.Ct. 112, 54
L.Ed.2d. 89.
Assuming arguendo, that the Appellant was furnished an erroneous
piece of camera copy for page 9 of the Disability Book-which must
be considered a possibility in light of the statement that the
"[c]amera copy for page 9 was not returned to SSA" on the
customer agency's "Notice of Quality Defects," dated August 10,
1992 (R4 File, Tab D)-and that the camera copy was critical or
controlling evidence on the issue of liability, the fact of the
matter is the "spoliation" doctrine does not apply in this case.
First, to the extent that Hardwick Brothers Co. refers to the
destruction of evidence by a party, the simple fact is the SSA is
not a party to this dispute; i.e., only the Appellant and GPO
were the parties to the contract in question. See GPO Contract
Terms, Contract Clauses, ¶ 1 (Contractual Responsibility).37 See
also Swanson Printing Co., supra, slip op. at 33-34; GraphicData,
Inc., supra, slip op. at 60-61; B & B Reproductions, supra, slip
op. at 37-38 (citing PPR, Chap. I, Sec. 2 (Definition of
"Contracting Officer), Sec. 3, ¶ 2(d) (Procurement Authority-
Contracting Officers); RD Printing Associates, Inc., GPO BCA 2-92
(December 16, 1992), slip op. at 10, n. 11, 1992 WL 516088.
Second, even if the camera copy was destroyed by the customer
agency, there is no "irrefragable proof" that the destruction was
in bad faith. At most, the evidence, such as it is, leads only
to the conclusion that the destruction would have been
inadvertent, negligent, or perhaps in the ordinary course of
business, none of which are grounds for application of the
"spoliation" doctrine. See Hardwick Brothers Co. v. United
States, supra, 36 Fed. Cl. at 416-17; Coates v. Johnson &
Johnson, supra, 756 F.2d at 551. And certainly, there is
absolutely no evidence which would show that GPO by itself, or in
concert with the SSA, specifically set out to harm the Appellant.
See Rose Printing, Inc., supra, slip op. at 26; Big Red
Enterprises, supra, slip op. at 37; Asa L. Shipman's Sons, Ltd.,
supra, slip op. at 12, fn 16; Stephenson, Inc., supra, slip op.
at 57. Indeed, such a conclusion would be farcical in face of
the Respondent's offer to take a second look at the Appellant's
claim, and the Contractor's failure to follow the Contracting
Officer's instructions to return the negatives to GPO for that
purpose, but
sending them to the SSA instead (R4 File, Tab K, at 1).
Accordingly, for these reasons, the Board concludes that the
Appellant's "spoliation" claim is without merit, and should be
dismissed.
ORDER
Considering the record as a whole, the Board finds and concludes
that: (1) the Appellant has not met its burden of proof with
respect to showing that the GFM supplied by the SSA for the
initial printing of the Disability Book erroneously included a
piece of camera copy for page 9 that duplicated page 97, instead
of a negative from the previous printing; (2) under the terms of
the contract, the Contractor was obligated to notify GPO, prior
to the performance of any work on the Disability Book, of any
discrepancy between the GFM description on the Print Order and
the material received from the customer agency, and it failed to
do so; and (3) the Appellant has not established any legal basis
for application of the "spoliation" doctrine in this case, or
otherwise shown the SSA, either alone or in concert with the
Respondent, acted in bad faith. THEREFORE, the Contracting
Officer's final decision rejecting the Appellant's equitable
adjustment claim in the amount of $17,050.00 for reprinting the
Disability Book is hereby AFFIRMED, and the appeal is DENIED.
It is so Ordered.
August 8, 1997 STUART M. FOSS
Administrative Judge
_______________
1 The Contracting Officer's appeal file was assembled pursuant to
Rule 4 of the Board's Rules of Practice and Procedure, and
delivered to the Board on February 16, 1993. See GPO Instruction
110.12, Subject: Board of Contract Appeals Rules of Practice and
Procedure, dated September 17, 1984, Rule 4(a) (Board Rules). It
will be referred to hereafter as the R4 File, with an appropriate
tab letter also indicated. The R4 File contains eleven (11)
documents, identified as Tabs A-K. See Report of Prehearing
Telephone Conference, dated July 9, 1993, at 2 (hereinafter
RPTC). Furthermore, additional documentary evidence was
introduced by the parties at the hearing in this matter. The
Appellant's exhibits, the Respondent's exhibits, and the parties'
joint exhibits shall be cited as "App. Exh. No.," "Res. Exh.
No.," and "Jt. Exh. No.," respectively, followed by an
appropriate number.
2 The Appellant's brief, entitled "Post-Hearing Memorandum," was
submitted to the Board on October 4, 1993, and will be referred
to hereinafter as "App. Brf.," with an appropriate page citation
thereafter. The Respondent's brief, entitled "Response of GPO to
Appellant's Post-Hearing Reply Memorandum," was filed with the
Board on October 26, 1993, and will be cited as "Res. Brf.," with
an appropriate page number thereafter.
3 The court reporter's hearing transcript shall be referred to
hereinafter as "Tr.," followed by a colon and an appropriate page
number.
4 The contract anticipated that orders for work could be issued
to the contractor directly by the SSA. Under GPO's regulations,
this sort of arrangement is called a "direct-deal term contract."
See Printing Procurement Regulation, GPO Publication 305.3 (Rev.
10-90), Chap. XII, Sec. 1, ¶ 2 (hereinafter PPR). As defined in
the regulations, a "direct-deal term contract" is one which: ". .
. allow[s] the customer agency to place print orders (GPO Form
2511) directly with contractors rather than routing them through
the GPO for placement." See GPO Agency Procedural Handbook, GPO
Publication 305.1, dated March 1987, Sec. IV, ¶ 1, at 8
(hereinafter GPO Handbook). The purpose of this method of
contract administration is: ". . . to ensure that agency printing
needs are met in the most effective and efficient manner
possible." Id. It should be noted, however, that an agency's
direct-deal authority: ". . . extends only to the placement of
print orders and to the transmission of copy and proofs. . . .
All other authority rests with GPO's Contracting Officers." See
GPO Handbook, Sec. IV, ¶ 2, at 9. [Emphasis added.] See also
Swanson Printing Co., GPO BCA 27-94 and 27A-94 (November 18,
1996), slip op. at 4, n. 9, 1996 WL _____; Graphicdata, Inc., GPO
BCA 35-94 (June 14, 1996), slip op. at 60-61, n. 54, 1996
GPOLEXIS 28; B & B Reproductions, GPO BCA 09-89 (June 30, 1995),
slip op. at 3, n. 5, 1995 WL 488447; McDonald & Eudy Printers,
Inc., GPO BCA 40-92 (January 31, 1994), slip op. at 3, n. 4, 1994
WL 275096; Shepard Printing, GPO BCA 37-92 (January 28, 1994),
slip op. at 2, n. 4, 1994 WL 275077.
5 The clause defines "supplies" as including, inter alia, "raw
materials, components, intermediate assemblies, end products, and
supplies by lot." See GPO Contract Terms, Contract Clauses, ¶
14(a).
6 The record testimony regarding the camera copy and negatives
refers only to the GFM for the text of the Disability Book, and
not the covers. See Tr. 43, 94. The camera copy in question was
assembled by the SSA from a mix of previously printed pages,
Xerox copies of such pages, and some laser output pages. See Tr.
61-62, 87, 131, 182-83; Res. Exh. No. 1; Jt. Exh. No. 2. The
record also indicates that camera copy was provided only for
pages which were changed from the previous printing of the
Disability Book, while negatives were supplied for unchanged
pages. See Tr. 88-90, 120-21; Res. Exh. No. 1. Furthermore, at
the hearing, Ronald A. Jones, the Appellant's Director of Quality
Improvement, testified that the usual procedure is to check the
GFM against the sequence sheet accompanying the Print Order to
make sure that the pages and blanks are assembled in the correct
order because sometimes the camera copy and negatives are not.
See Tr. 27, 43-44, 66, 118-19. See also Tr. 6, 20 (testimony of
Lawrence J. Huff, the Contractor's sales chief). There is
nothing in the record to indicate that the GFM in this case was
handled any differently.
7 Jones testified that in the event of GFM problems, such as a
differences between the number of pieces of camera copy and
negatives indicated on the Print Order and the number received,
as here, or damaged material, the production planner assigned to
the job is the person who normally calls GPO or the customer
agency to verify the count and resolve any problems. See Tr. 44.
He also testified that in this case, the Appellant searched
Ewing's personal notes and ". . . there wasn't any notation that
the Government was called or the agency was called." Id.
8 Given the nature of its complaint, the SSA's categorizing the
defect under printing attribute P-5 appears to be an innocent
error. That attribute deals with defects in text and
illustration image position. See QATAP, at 11. Rather, as GPO
personnel immediately recognized, the real problem concerned a
finishing attribute defect either for wrong pagination (F-16) or
loss of information (F-17) (R4 File, Tabs E , F and K). Id., at
44. See also RPTC, at 2. Either one of these defects is
considered critical under QATAP. See QATAP, at 44.
9 Although not spelled out in the record, Scott's, Seaborn's, and
Nowalk's job titles and office locations are "capable of accurate
and ready determination by resort to sources whose accuracy
cannot be questioned," in this case GPO Telephone Directory, GPO
Pub. 865.2 (December 1989), and GPO Telephone Directory, GPO Pub.
865.2 (August 1994), and thus judicial notice by the Board is
appropriate. FED. R. EVID. 201(b)(2). See Questar Printing,
Inc., GPO BCA 19-94 (June 12, 1997), slip op. at 20, n. 33, 1997
WL _____ ; Graphics Image, Inc., GPO BCA 13-92 (August 31, 1992),
slip op. at 15-16, n. 17, 1992 WL 487875. Accord Powerline Oil
Co., EBCA Nos. 278, 280-83, 290, 296, 300-05, 307, 321, 91-2 BCA
¶ 23,789, at 119,146 (citing American Indians Residing on
Maricopa-Ak Chin Reservation v. United States, 667 F.2d 980, 999
(Ct. Cl. 1981), cert. denied, 456 U.S. 989 (1982)).
10 Robert Schwenk, Superintendent of the Electronic
Photocomposition Division, testified as the Respondent's expert
witness at the hearing. Among other reasons, Schwenk thought
that the erroneous page 9 had been created from the camera copy
for page 97 by the process of "overlapping," which occurs in the
photocomposition process for reasons of economy. Tr. 150-51,
162. See also R4 File, Tab F. As he explained after examining
the negative for page 9 and the camera copy for page 97 (Jt. Exh.
Nos. 1 and 2) of the original printing of the Disability Book: ".
. . [T]here are a lot of things that happen when you [shoot] line
art or any kind of art on camera to make a piece of film, you
never shoot one because is too time consuming to shoot them one
at a time, so you gang them up. When you gang them up you have a
stack, you lay the stack down in a sequence and you also overlap
these to save film. Film is a very expensive product in this
business. The first thing that you look at on this negative is
there is a crop mark up here that is partly cutoff, but it has
not been [effaced], so it obviously has been covered by
something. At the same time you look, the seven is missing from
the bottom. So it has been covered by something. More than
likely it was covered when this overlapping piece of camera copy
was laid down. [¶] The second reason for overlapping these is the
cameraman doesn't have to pick them up one at a time. He now
just scopes them together, takes the top row and lays it on top
of the bottom and he is done with them. So it is a common
practice to overlap camera copy. So when they photograph this
piece of film, on this ganged up section, this and this seven at
the bottom were [obliterated] by the overlapping piece of camera
copy." See Tr. 150-51. Indeed, Schwenk thought that other
identifiers confirmed his opinion, especially the fact that the
text on both the negative and the piece of camera copy was
skewed. See Tr. 151-52.
11 Res. Exh. No. 2 is the camera copy if page 9 which the
Appellant received for the reprint. See Tr. 89-90. It seems
clear that Res. Exh. No. 2 is a page from a previous printing of
the Disability Book, and that there are no changes in the text.
See Tr. 90-91.
12 The record indicates that a day earlier, August 20, 1992, the
Contractor had telephoned GPO and had agreed to reprint the
Disability Book, suggesting August 27, 1992 as the new delivery
date (R4 File, Tab F). The record also shows that the Contractor
only made a partial shipment on August 27, 1992, with delivery of
the balance being promised for September 8, 1992 (R4 File, Tabs I
and J). In fact, the reprinted job was not shipped complete
until September 10, 1992 (R4 File, Tab J). See Tr. 13-14.
13 For the reprint the Government sent the Appellant new camera
copy for page 9. Tr. 46, 52, 54; Res. Exh. No. 2. See note 11
supra.
14 At the hearing, Jones testified that the reprinting of the
Disability Book cost about $30.00 less than the original printing
because the Appellant did not have to remake all of the
negatives. See Tr. 83-84. However, in its "Post-Hearing
Memorandum" the Appellant revised its savings estimate to
$100.00. See App. Brf, at 3. Thus, the total amount of the
Contractor's claim before the Board is $17,050.00.
15 Jones' testimony at the hearing essentially tracked his letter
of August 21, 1992. Thus, on the witness stand he insisted that
the Appellant received a separate piece of camera copy for page 9
of the original printing, and not a negative, as the Respondent
contends. See Tr. 50, 57, 84-86. Jones thought that no other
conclusion could be drawn from the fact that while 30 pieces of
camera copy were included in the GFM for the original printing of
the Disability Book, only 29 pieces were sent to the Contractor
for the reprint. See Tr. 43, 48, 84, 86, 94. Although Jones
recognized that the Appellant's records differed from the Print
Order, he said that because the discrepancy was so minor the
Contractor did not bring it to the Government's attention. See
Tr. 44. Jones also stated that because the Disability Book
consisted of 124 pages of text, 5 blank pages, and 2 covers, a
total of 119 negatives were required to produce the book, but the
number of pieces of camera copy (29) and the negatives (89)
indicated on the Print Order when added together fell short of
that total, whereas the number shown on the Appellant's job
jacket (30 pieces of camera copy and 89 negatives) added up
precisely to the number of negatives needed. See Tr. 45-46, 48.
Furthermore, Jones denied that the Appellant had created page 9
in the original printing from the camera copy for page 97, and
said that he found no evidence from his own investigation that
one of the Contractor's employees had in fact done so. See Tr.
78, 84-86. When asked to compare the negative of page 9 in the
first printing of the Disability Book (Jt. Exh. No. 1) with the
original camera copy for page 97 (Jt. Exh. No. 2), Jones noted
that they were not identical, particularly with regard to the
letter "h" in the word "anencephaly," and the "y" in the word
"trisomy," which were broken in the camera copy, but not in the
negative. See Tr. 69-72, 76, 79, 80, 82, 96-97. Jones asserted
that if the camera copy had been used to make the negative, then
the same character imperfections would have appeared on both
pages 9 and 97 in the first printing of the Disability Book, but
only page 97 had those broken letters. See Tr. 74-75, 77-78,
114-15. Indeed, on cross-examination, Jones was asked to examine
enlargements of certain portions of Jt. Exh Nos. 1 and 2, see
Res. Exh. Nos. 4, 5, 6, and 7, and while he admitted the various
characters and numbers were not identical, especially the L-
shaped "crop mark" on Res. Exh. No. 6, and that a latent image of
page 98 appeared on the backside of camera copy for page 97, he
said that he could draw no firm conclusions, one way or the
other, that the negatives were made from the camera copy. See
Tr. 100-111, 113. In summary, Jones said that while his
comparison revealed "more similarities than differences" between
the text copy on pages 9 and 97 of the original printing of the
Disability Book, he was still convinced that the "[camera] copy
[for page 97] was not used to make the negative [of page 9][,]"
primarily because of the differences between the letters "h" and
"y" in the words "anencephaly" and "trisomy," respectively, on
those pages. See Tr. 114-15.
16 The record indicates that the Appellant returned the GFM to
Nowalk at GPO on October 13, 1992. See Tr. 58-60; App. Exh. No.
2. At the hearing, Jones testified that he prepared the GFM
package for shipment, and that it included the negatives for
pages 9 and 97, and the camera copy for page 97. See Tr. 60, 87,
89; Res. Exh. No. 1. Consequently, there seems to be a
difference between Jones' testimony, and the Contracting
Officer's statement that he (Jones) had sent the negatives to the
SSA. However, in light of the Board's disposition of this
matter, it is unnecessary to resolve the discrepancy.
17 As previously noted, Schwenk, the Respondent's expert witness,
testified at the hearing that the negative for page 9 of the
original printing had been created from the camera copy for page
97 by the process of "overlapping." See note 10 supra. With
regard to the letters "h" and "y," he said that the reason why
they were broken on page 97 of the original book but filled in on
page 9 was most likely due something which occurred in the
platemaking process. See Tr. 156. As Schwenk explained: ". . .
[T]here is a small area in each of those two characters that is
blocked. So it does not show up in the print. So it was either
missing from the plate or [obliterated] on the negatives. All it
takes is a speck of dust or dirt on the piece of film in the
platemaking process, when you transfer the image from the film to
the plate, that in the clear areas can [obliterate] the
information [on] the plate. And this [is] common, [it] happens
all the time in printing." See Tr. 156; Jt. Exh. No. 3. He also
stated, by way of contrast, that if copies were made on a
photocopier, broken lines can be filled in because that is one of
the properties of xerographic toner. See 171-72, 177.
Similarly, Schwenk said that the order in which the negatives
were made could have been responsible for the differences in the
characters between pages 9 and 97 of the original printing; i.e.,
if page 9 was photographed first and then specks of dirt and dust
caused the imperfections in the "h" and "y" on page 97. See Tr.
174-75, 177-78. In the final analysis, however, from his
examination of the GFM, Schwenk concluded that the negative for
page 9 was made from the camera copy supplied for page 97. See
Tr. 157; Jt. Exh. Nos. 1 and 2. (It should be noted that there
was also some testimony by Schwenk regarding the letter "y" in
the word "hypogammaglobulinemia," in which he ascribed the
differences between the camera copy and the negative to the
properties of lithographic film. See Tr. 154; Res. Exh. No. 4.
His testimony was based on his assumption that the process camera
method was used to make the negatives. See Tr. 168-69, 180-81.
In fact, according to Jones, the Appellant used the opti-copy
process to create the negatives. See Tr. 186-87.)
18 As formulated at the hearing, the Board saw those questions
as: (a) were the camera copies and film negatives which the SSA
supplied to the Appellant accurate, complete and correct as to
number; (b) did the Appellant receive from the SSA a camera copy
or a film negative for the production of page 9 of the Disability
Book; and (c) was the first production run of the Disability Book
properly rejected by the Contracting Officer for a loss of
information [with respect to] page 9? See RPTC, at 6.
19 The Contractor suggests two likely scenarios for the error.
First, in the process of making the numerous photocopies which
were utilized to create the paste up, an SSA employee made a
photocopy of page 97, and later numbered it page 9 in a separate
process. Or, the error could have occurred when another sheet
covered the number 7 on page 97. See App. Brf., at 3.
20 The Appellant also observes that there was no "correct"
negative for page 9, and that the only negative it received for
that page for the reprint was the erroneous one it had made for
the original printing. Consequently, the Contractor had to
contact GPO and have a copy of the correct page 9 sent to it.
See App. Brf., at 3. The Respondent, on the other hand, fails to
see how the fact that the GFM for the reprint did not contain a
piece of camera copy for page 9 supports the Appellant's claim.
It states that the explanation is simple-because there were no
changes to page 9, no camera copy for that page ever existed.
See Res. Brf., at 4, n. 1 (citing Tr. 90). Thus, since the
original negative was erroneous, a page torn from a previous
edition of the Disability Book was used for the reprint. Id.;
Res. Exh. No. 2.
21 Prior to its brief, the Appellant's "quality" argument has
focused solely on the appearance of the letters "h" and "y" in
these two words, respectively. See note 15 supra. However, in
its brief, the Contractor for the first time also asserts that
"[t]he condition of the camera copy boards themselves makes it
clear to even an untrained eye that the preparation of this job
was completed in a shoddy and unworkmanlike manner. It is not
possible for the [G]overnment to argue that an error on their
part was unlikely due to the care which they took to produce this
product." See App. Brf., at 3. In the Board's view, this is a
"straw" argument. There is nothing in the appeal record to
indicate that the Respondent ever made such a claim. Indeed, as
discussed infra, GPO's case is essentially technical in nature,
and rests on two grounds: (a) the Appellant's inability to prove
that the error was due to defective GFM; and (b) the Contractor's
failure to comply with the "Government Furnished Property" clause
of GPO Contract Terms. See Res. Brf., at 3 (citing GPO Contract
Terms, Contract Clauses, ¶ 7).
22 See note 17 supra.
23 See note 14 supra.
24 The Respondent's reasoning is somewhat syllogistic: (a) camera
copy was supplied only for pages with changes; (b) negatives were
furnished for unchanged pages; (c) as acknowledged by the
Appellant, page 9 was unchanged from the previous printing; and
(d) therefore, the SSA must have sent a negative for page 9. See
Res. Brf., at 3 (citing Tr. 90-91; Res. Exh. Nos. 1 and 2).
25 For some reason, the Respondent feels compelled to defend
Schwenk's credentials as an expert in this matter, despite the
fact that the Appellant has not challenged his qualifications, or
accused Schwenk of bias even though he is a GPO employee. See
Res. Brf., at 5. Suffice it to say that the Contractor raised no
objection to Schwenk's being called as an expert witness, and
indeed, agreed that his qualifications made him "an excellent
expert witness." See Tr. 147.
26 The Respondent notes that even Jones had to admit that the
negative used for page 9 in the first printing of the Disability
Book and the camera copy for page 97 "contain more similarities
than differences." See Res. Brf., at 5 (citing Tr. 115). See
note 15 supra.
27 The Respondent flatly denies the Appellant's allegation that
the SSA purposely destroyed the negative of page 9 which the
Contractor needed to prove its case. See Res. Brf., at 4.
28 The Government asserts that the Contractor's failure to return
the film negatives to GPO after reprinting the job, and sending
them to the SSA instead, was also a critical mistake because it
prevented the Contracting Officer from taking another look at the
Disability Book to see if its claim was valid. See RPTC, at 4
(citing R4 File, Tab K).
29 The Board's decision is based on the following record: (a) the
Appellant's Notice of Appeal, dated January 11, 1993; (b) the
Appellant's Complaint, dated February 16, 1993; (c) the
Respondent's Answer, dated March 16, 1993; (d) the R4 File; (e)
the RPTC; (f) the transcript and documentary evidence presented
at the hearing on August 4, 1993; and (g) the parties posthearing
briefs.
30 See note 15 supra.
31 See notes 15 and 25 supra.
32 Thus, while the Respondent blames an unknown employee of the
Appellant's for the error, see notes 10 and 17 supra, the
Contractor points its finger at some unidentified SSA worker, see
note 19 supra.
33 Under the terms of the contract, the Appellant was required to
return the GFM to the Government as soon as it completed the
first printing. See GPO Contract Terms, Contract Clauses, ¶ 10
(Return of Government Property).
34 The actual legal maxim is contra spoliatorem omnia
praesumuntur, which translates as "everything most to his
disadvantage is to be presumed against the destroyer
(spoliator)." See BLACK'S 1401.
35 The Federal Circuit's description of the destroyed evidence as
"critical or controlling on an issue of liability," clearly
narrows the doctrine by limiting its application. Prior to
Hardwick Brothers Co., "spoliation" only required proof of
destruction and evidence of bad faith. See Eaton Corp. v.
Appliance Valves Corp., supra, 790 F.2d at 878 (citing S.C.
Johnson & Son, Inc. v. Louisville & Nashville Railroad Co., 695
F.2d 253, 258-59 (7th Cir. 1982); A.C. Becken Co. v. Gemex Corp.,
314 F.2d 838, 841 (7th Cir. 1962), cert. denied, 375 U.S. 816, 84
S.Ct. 68, 11 L.Ed.2d 51 (1963)); Coates v. Johnson & Johnson,
supra, 756 F.2d at 551.
36 "Irrefragable" proof simply means evidence which is incapable
of being refuted; i.e., indisputable evidence. See Rose
Printing, Inc., GPO BCA 32-95 (December 16, 1996), slip op. at
25, n. 26, 1996 GPOBCA LEXIS 34; Stephenson, Inc., GPO BCA 2-88
(December 20, 1991), slip op. at 54, 1991 WL 439274 (citing
WEBSTER'S NEW WORLD DICTIONARY 714 (3d coll. ed. 1988).
37 The "Contractual Responsibility" clause of GPO Contract Terms
provides: "Awards by GPO for printing, binding, and related
services are the sole responsibility of GPO and not of its
customer agencies. Modifications shall have no force or effect
unless addressed before the fact to and subsequently confirmed in
writing by the Contracting Officer. Failure to comply with this
article may be cause for nonpayment of additional costs incurred
or rejection of the order."