U.S. GOVERNMENT PRINTING OFFICE
BOARD OF CONTRACT APPEALS
The Appeal of ROSE PRINTING COMPANY
Docket No. GPO BCA 2-87
June 9, 1989
MICHAEL F. DiMARIO
Administrative Law Judge
OPINION
This appeal, timely filed by Rose Printing Company, 4382
Mt. Carmel-Tobasco Road, Cincinnati, OH 45244
(Appellant), is from the October 2, 1986, "final
decision" of Linwood Imlay, Contracting Officer (CO),
United States Government Printing Office
(GPO/Respondent), terminating GPO's contract with
Appellant identified as Purchase Order 82412, Program
B-369-S, Jacket No. 491-676, for "default" because of
Appellant's "inability to furnish 9 point typefaces as
per contract specifications." The appeal is denied and
the decision of the CO is affirmed for the reasons set
forth hereinbelow.
BACKGROUND
On April 21, 1986, Respondent, upon the requisition of
the Department of the Navy, issued an Invitation for Bids
(IFB) for the production of certain pamphlets entitled
"Navy Club and Recreation Currents (NAVPERS 15173)," as
might be required by the Navy from time to time during
the term July 1, 1986, to June 30, 1987. The IFB, among
other things, specified:
Typefaces and Sizes: The contractor is required to furnish
the following:
Century Schoolbook Light, Medium Italic, Bold and Bold
Italic: 6 through 24 point.
Helvetica Light Italic: 6 through 12 point.
Helvetica Light, medium, Medium Italic, Bold and Bold
Italic: 6 through 24 point.
While the above typefaces are preferred, suitable alternates
of comparable weight, face, and size will be considered. If
an alternate typeface is proposed, each bidder shall list in
the bid the name of the alternate typeface(s) and composing
machine to be used.
Helvetica typeface weights must match the typeface weights
on the attached "Helvetica Type Specimens" sheet.
The GPO reserves the right to require samples and to judge
the suitability of any alternate typeface offered in order
to make an award which is deemed to be in the best interest
of the Government.
In addition, the successful bidder must provide the ordering
agency with specimens or a complete listing of typefaces and
sizes which are available for use under this contract.
Rule 4 File, hereinafter "R4 File," Tab B.
The specified "attached 'Helvetica Type Specimens' sheet"
illustrates 8, 10, 12, 14, 18, and 24 point Helvetica,
Helvetica medium, Helvetica light, Italic, Italic medium,
and Italic legal; and 10, 12, 18, and 24 point for
Helvetica Bold type sizes. (R4 File, Tab B, attachment.)
The IFB was sent to some 33 prospective bidders and its
availability was also advertised in the "Commerce
Business Daily." Appellant, although not among the 33,
saw the advertisement and on May 3, 1986, wrote
Respondent requesting "the necessary application forms,
abstract and a sample copy of the above programs." All
requested materials, except the sample copy, were
apparently furnished (Official File, Tab 1), and
Appellant tendered its bid on May 12, 1986. (R4 File,
Tab E.) The bid was the lowest of 7 received and bore no
proposed use of an alternative typeface.
Appellant was telephonically requested to review and
confirm its bid on May 29, 1986, and did so by letter of
that same date. (R4 File, Tab F.) The contract was
thereafter awarded to Appellant on June 11, 1986, in
strict accordance with its bid quotation of $6,076.90 and
GPO's specifications. (R4 File, Tab G.)
On August 20, 1986, GPO's Mrs. A. Nadine Collins
telephoned Appellant and asked whether or not it would be
able to provide 9 point type size with the caveat that no
other type size would be accepted. (R4 File, Tab K.)
Appellant apparently could not but instead, by letter of
August 21, 1986, furnished a booklet of type specimens
"available with its sub-contractor" and a sample copy of
"Navy Chaplain Bulletins" it had previously produced,
expressing the hope that "the types and their points
could be resolved from the attached booklet and that
whould [sic] meet the criterion laid in the composition
section of [the] program." (R4 File, Tab H.)These
samples were apparently unacceptable. Appellant being so
advised by Collins on August 30, 1986. (Official File,
Tab 5, supplement to appeal letter dated March 16, 1987.)
Nevertheless, Appellant, by letters of that same date and
September 19, 1986, continued its attempt to convince the
CO to accept an alternative type size to the 9 point size
requested by the Navy. (R4 File, Tabs J & K.)
The CO was unrelenting and on October 2, 1986, terminated
the Print Order 40001 and the balance of the contract in
its entirety. Appellant then appealed to this Board
claiming that it should not be held liable for default or
excess costs because:
1. "[T]he . . . program calls for a wide variety of
typefaces if in case any one particular typeface is not
available, and it is mandated in the program in the form of
"6 through 24 and 6 through 1. In addition . . . the
program also mandates "SUITABLE ALTERNATES OF COMPARABLE
WEIGHT, FACE AND SIZE.";
2. "[N]o sooner the question of typefaces of certain points
was raised, Appellant . . . sent a copy of the specimen of
typefaces . . . requesting the use of alternate typefaces
but of no avail.";
3. "Recently, Appellant . . . completing five . . . issues
of . . . "NAVY CHAPLAINS BULLETIN" under Program 5353, . . .
Hampton Regional Printing Procurement Office . . . under . .
. similar situation, the ordering agency and the contractor
reached an agreement suitable to both of them.";
4. "In all its typesetting and layout, Appellant . . .
depended on its sub-contractor, and default of the program
B369-S arose out of causes beyond its control.";
Official File, Tab 1, Complaint dated December 30, 1986.
5. The solicitation was purportedly "ambiguous" "in that it
does not, with specificity, indicate to a reasonably prudent
bidder the required or even the desired typeface . . . .
[T]he attachment to the . . . Specifications . . . sets
forth all inclusive general parameters without specifying
the exact point size type required. The different type
sizes mentioned does not even specifically indicate 7 or 9
point type sizes.";
6. The contracting officer has offered no evidence
whatsoever . . . that the Appellant failed to provide
specified type size as mentioned in the [Invitation] for
Bid.";
7. "[T]he Appellant . . . sought . . . the help and
guidance of the Government . . . to fulfill contractual
obligations, . . . requesting . . . the use of alternate
type size . . . .";
8. "The first . . . this bidder was made aware of the
required preference for 9 point type size was during . . .
telecom . . . with . . . Nadine Collins . . . [on] 21
August, 1986, . . . . 71 calendar days after issuance of
original purchase order . . . 11 June, 1986."; and
9. "[O]n 30 August, 1986, without having resolved the
ambiguity . . . relative to the required type size as
desired but not set forth with specificity . . ., Ms.
Collins advised that . . . no alternate type size would be
considered, contrary to the implication and specific
indication in the [solicitation]."
Official File, Tab 5, Supplement to appeal dated March 16, 1987.
The appeal is before the Board in this form for decision
upon the written record.
DISCUSSION
There is no genuine dispute concerning any question of
fact. The above quoted typeface and size contract
provisions required Appellant to furnish "the ordering
agency with specimens or a complete listing of typefaces
and sizes which are available for use under this
contract." Although requested by Appellant, samples were
furnished none of the bidders under the terms of the
specifications. Thus, to comply with such request would
have given Appellant an illegal advantage in the bid
competition. It should be noted, however, that as
Exhibits A through E to the specifications, facsimile
sample pages, representative of composition requirements
which were to be ordered under the contract, were
provided with the caveat that there would be no guarantee
that the future orders would correspond exactly to these
exhibits. (R4 File, Tab B, page 4 of 13.) Additionally,
the default clause of the contract itself makes clear
that a contractor is liable for the defaults of its
subcontractor irrespective of the fact that the causes of
the default are beyond the control and without the fault
or negligence of the contractor. 1/ Moreover, as we
recently noted in the appeal of Fry Communications, Inc.,
GPO BCA 1-87, the general rule is that the Government is
entitled to strictly enforce compliance with its
specifications, S.S. Silberblatt, Inc. v. United States,
433 F.2d 1314 (1970). Thus, the Government can refuse to
acquiesce to a contractor's request that it be allowed to
use substitute materials, Polyphase Contracting Corp.,
ASBCA 11787, 68-1, BCA ΒΆ 6,759 (1967), even if such
materials are superior. Nichols & Co. v. United States,
156 Ct. Cl. 358 (1962), cert. denied, 371 U.S. 959
(1963). Accordingly, the only real issue is whether, as
a matter of contract interpretation, and thus of law, the
IFB required Appellant, as a condition of its bid, to be
able to furnish 9 point type if such were ordered during
the contract term.
Examining the IFB specification language in this regard,
we see the unequivocal statement that "[t]he contractor
is required to furnish the following:" followed by a
listing of specific patented typeface designs modified by
point sizes, i.e., "6 through 24 point"; "6 through 12
point"; and "6 through 24 point." Going to G.C. Merriam
Company, Webster's New Collegiate Dictionary,
Springfield, MA (1977), we find on 1217 that the word
"through" is a function word used, among other things, to
mean "to and including" as in Monday through Friday. Its
use in such manner clearly includes the unstated but
implied terms falling between the two end terms. From
this we conclude that the plain meaning of the
requirement was that the contractor had to be able to
furnish 9 point type in any of the specified typefaces,
except to the extent that other provisions of the
contract modified such requirement.
Looking to the exception language we find that while
suitable alternate typefaces might be allowed, the
Respondent reserved to itself the right to judge the
suitability in the best interest of the Government.
Moreover, to be considered, the proposed alternate had to
be of comparable weight, face, and size and be listed in
the bid by typeface and composing machine to be used,
which Appellant plainly failed to do. Additionally, the
only mention of the "Helvetica Type Specimens" sheet in
the text of the specifications is the above cited
requirement that "Helvetica typeface weights" match the
typeface weights of the illustrations on the sheet.
(Emphasis added.) Since it is clear from the context of
the specification that the term "weights" is used to
convey a technical concept familiar in the trade rather
than its ordinary dictionary meaning, the Board has
consulted the National Composition Association, Glossary
of Typography, Computerized Typesetting and Electronic
Publishing Terms, (1987) which on page 110 defines such
term as: "The relative thickness and/or blackness of
type characters, as in boldface, lightface, demi, or
medium." From this it is clear that the attachment was
not intended to modify the "6 through 12" and "6 through
24" provisions, supra, or create discretion in the
contractor as Appellant suggests, but rather as a guide
to be used solely to judge the thickness and/or blackness
of the type characters.
Thus, we conclude that Appellant was required by the
terms of the contract to provide the 9 point typeface as
ordered which it was unable to do. Accordingly,
DECISION
The appeal is denied and the decision of the CO is
affirmed.
IT IS SO ORDERED.
_______________
1/ Article 2-18(c) of "U.S. Government Printing Office Contract
Terms No. 1," GPO Publication 310.2, revised October 1, 1980.