U.S. GOVERNMENT PRINTING OFFICE
BOARD OF CONTRACT APPEALS
The Appeal of Automated Datatron, Inc.
Docket No. GPO BCA 3-87
March 31, 1989
Michael F. DiMario
Administrative Law Judge
Opinion
This appeal, timely filed by Automated Datatron, Inc.
(Appellant), 4318 Gallatin Street, Hyattsville, MD 20781,
dated January 27, 1987, is from the final decision of Jack
Scott, Contracting Officer (CO), U.S. Government Printing
Office, Washington, DC 20401 (Respondent), dated January
20, 1987, completely terminating contract Purchase Order
70019, Program C151-S, Jacket No. 181-554, for default
because of Appellant's "continuing failure to comply with
the delivery and Quality Assurance requirements." The
appeal is denied and the decision of the CO is affirmed for
the reasons set forth hereinbelow.
Background
Appellant was competitively awarded the Program C151-S
single-award term contract by Purchase Order 70019 dated
August 27, 1986, to produce such Federal Register microfiche
as might be requisitioned from Respondent by the Office of
Federal Register during the term October 1, 1986, to
September 30, 1987. The contract in the amount of
$84,324.10 was made in strict accordance with Appellant's
quotation of August 18, 1986, and Respondent's
specifications. (Rule 4 File, hereinafter "R4 File," Tab
E.)
On October 6, 1986, the CO sent Appellant a letter stating
that an examination of microfiche samples produced by
Appellant under Print Order 60000 reflected the defects
shown on an inspection report attached thereto and that
based on such defects, the work had been determined to be
rejectable and would require remanufacturing by Appellant in
strict accordance with the specifications and at no
additional cost to the Government. (Ninety-one such
complaint letters, including the referenced letter, were
sent to the Appellant from October 6, 1986, through January
22, 1987, on various print orders numbering 60000 through
60078.) (R4 File, Tab F.)
By letter dated October 9, 1986, referencing Print Orders
60000 through, and including 60003, the CO notified
Appellant that he considered Appellant's failure to comply
with the quality attributes and delivery schedule of the
specifications to be a condition that was endangering the
performance of the contract in accordance with its terms.
The notice gave the Appellant 10 days from its receipt to
advise Respondent of the measures it had taken or was then
taking to cure such condition. The notice also advised
Appellant that unless such condition had been cured, the
Government might terminate the contract for default pursuant
to the contract's "default" clause. (R4 File, Tab G.) A
second "Cure Notice" on Print Order 60002 was sent to
Appellant by the CO on November 5, 1986. (R4 File, Tab H.)
In response to the second cure notice, Appellant's T.D.
Marlatt, Vice President, by letter dated November 14, 1986,
advised the CO that:
Sample copies for the Print Order were initially rejected
because the length of the first and second generation
microfiche were not within specifications (147.25-148.0mm).
The second submission was rejected again for length.
The next sample provided GPO was rejected for loss of data
on the second and third generation.
Subsequently the 3rd generation samples were accepted on
October 23rd and the second generation submission accepted
on the 24th. Distribution copies were prepared when the 3rd
generation was accepted.
Techniques have been established which now make it possible
for ADI to evaluate microfiche dimensions, and other
attributes, in essentially the same manner as GPO quality
assurance personnel. Repeated submissions of samples are
thus avoided.
R4 File, Tab I.
A "Cure Notice" respecting Print Orders 60028, 60029, and
60039 was sent to Appellant by the CO on November 26, 1986.
(R4 File, Tab J.) In response to this "Cure Notice"
Marlatt, on December 5, 1986, wrote the CO that:
During the past 45 days, we have expanded and reorganized
the micrographics quality assurance section, installing
equipment of the same type employed by GPO to verify
specifications of microfiche manufactured under Program
C151-S.
. . . .
Sent managers, supervisors and quality control personnel to
train with GPO quality control personnel.
Use these individuals to provide additional training to all
personnel who work on this project.
Establish priorities to assure that pick-up, filming and
subsequent actions required by the contract will not be
delayed by other production.
Researched problems which cause rejections and determined
means to eliminate the cause of the deficiency. As an
example, we have recently seen that excessive cleaning of
the first and second generation microfiche after inspection
introduces minute scratches which then go undetected as the
microfiche is dispatched to GPO for examination.
Developed closer coordination with GPO quality control
personnel to expedite corrections when these are necessary.
In summary, we have reorganized our quality assurance
section to enhance not only its performance but to improve
training, highlight problem areas quickly, and provide
solutions to meeting the requirements of this contract.
Rule 4 File, Tab K.
On December 23, 1986, the CO again sent Appellant a "Cure
Notice" on Print Orders 60040, 60042, 60043, 60046, 60048,
60049, 60051-60055, 60058, and 60059. (R4 File, Tab L.) In
response to this "Cure Notice," Marlatt, by letter dated
December 30, 1986, stated:
The major factor involved in the delay in complying with the
distribution schedule is our inability to secure sufficient
Government furnished envelopes in a timely manner. It is
necessary to notify GPO representatives weekly that
envelopes are required for future distribution. The time
delay between notification and the availability of envelopes
for pickup, however, has caused more than 50 percent of the
scheduled shipments to be held up from one to ten days after
GPO Quality Assurance release.
With respect to your quality assurance concerns, we have
previously emphasized the difficulty encountered in meeting
the new microfiche length tolerances; [sic] which provide
only .75 millimeter margin for error. The vendors have
recently informed us that they will not be able to modify the
TDC cameras to guarantee our ability to meet these
requirements.
Camera manufacturers state the pulldown between microfiche
frequently will vary enough to generate a cumulative
difference in the position of the cut mark on adjacent
microfiche. This makes it impossible to depend upon either
an automatic cutter or manual cutting utilizing a template
registered upon the cut mark to maintain each microfiche
within this .75 range.
Parallax in eye position makes it very difficult to detect
minute variations exceeding the less than one millimeter
range, further complicating the matter.
R4 File, Tab M.
Thereafter, by letter of January 20, 1987, the CO advised
Marlatt of the termination. (R4 File, Tab N.) By letter
dated January 27, 1987, Appellant noted its appeal as
follows:
Automated Datatron, Incorporated (ADI) hereby appeals the
Contracting Officers decision to terminate the referenced
contracts for "Default". While agreeing that rejections of
microfiche occurred, resulting in shipping delays for both
contracts, ADI believes the reason for termination should be
for "Convenience of the Government".
This appeal is based upon the fact that despite diligent
effort, and at considerable additional expense, the
contractor was unable to procure equipment that consistently
creates microfiche which meet the extremely tight
specifications stipulated in the contracts. This problem
has been identified to the vendors of camera and duplicator
equipment. Their position is that the tolerances,
particularly for length, exceed the capability of current
equipment on a continuous basis. We advised the Government
Printing Office of the problems encountered several times.
Our most recent letter requesting that the remainder of the
contract be cancelled for "Convenience of the Government" is
attached at Appendix A. 1/
In summary, we believe that the new specifications for
Programs (151 and 90) are excessively restrictive for
currently available equipment. No other GPO, or other
Government contracts, to our knowledge, contain these same
specifications. Therefore, if these specifications for this
particular job are necessary for the convenience of the
Government, the cancellations should be for that same
reason, rather than default.
Official File, Tab 1.
By letter dated February 3, 1987, this Board notified
Appellant and Respondent that the appeal had been docketed,
provided Appellant with a copy of the Board's Rules of
Practice and Procedure, advised Respondent of its duty to
assemble and furnish to this Board and Appellant a copy of
all documents pertinent to the appeal (the R4 File), and
advised Appellant that, within 30 days after receipt of such
documents, it should transmit to the Board and Respondent
any documents not contained therein which it considers to be
relevant to the appeal. The Appellant was also advised of
the requirement for filing a complaint and for making an
election respecting the desire for a hearing.
Respondent complied with the R4 File requirement on March
10, 1987. The file contained all of the documents
referenced above, plus a copy of the specifications (Tab B),
the original bidders list (Tab C), the abstract and
confirmation of
1/ Tab A, referenced by Appellant, is its letter of December 30,
1986, supra.
bid prices (Tab D), a record of quality problems and late
deliveries kept by GPO's Quality Assurance Section (Tab F), and a
memorandum of February 17, 1987, with attachments referenced
therein (Tab K) from Robert M. Saholsky, Industrial Engineer,
Quality Systems Division, Quality Control and Technical
Department, GPO, to Printing Specialist, Term Contract Division,
Printing Procurement Department, GPO, respecting microfiche
length. The memorandum stated:
In the establishment of microfiche standards for the U.S.
Government Printing Office (GPO), the GPO has attempted to
adhere to the recognized national standards for microfiche
created by the American National Standards Institute and the
Association for Information and Image Management
(ANSI/AIIM).
The ANSI/AIIM Committees that prepare and approve these
microfiche standards are comprised of the most knowledgeable
authorities in the field of micrographics from both private
industry and the federal government.
The most current standard for microfiche length is ANSI/AIIM
MS5-1985, approved as a national standard on May 13, 1985.
MS5-1985 requires a microfiche length of 148 millimeters
with a tolerance of plus zero millimeters and minus .75
millimeters (see attached MS5-1985). MS5-1985 represents a
tightening of the previous microfiche length standard
MS5-1975, (see attached MS5-1975), requiring a microfiche
length of 148 millimeters with a tolerance of plus zero
millimeters and minus 1.00 millimeters. The tightening of
this standard is the result of improvements in micrographics
equipment and technology over the last 12 years.
Considering the possible difficulty in attaining this
microfiche length standard on a consistent production basis,
Mr. Ray Gulick (Documents Technical Support Group,
Superintendent of Documents) and myself contacted the
Engineering Division of Consolidated Micrographics, Inc. and
the Southeastern Regional Manager of the Photomatrix
Corporation. Consolidated Micrographics and Photomatrix
Corporation are large manufacturers of microfiche
duplicators.
Both Consolidated Micrographics and the Photomatrix
Corporation confirmed the fact that a microfiche length
standard of 147.25 millimeters to 148.00 millimeters is
warranted and can easily be achieved on a consistent
production basis.
It is therefore, recommended that the Government Printing
Office ultimately adhere to the ANSI/AIIM standards,
including the ANSI/AIIM standard for microfiche length.
By letter dated April 16, 1987, the Board, having received
no answer to Appellant's complaint from the Respondent,
advised Appellant that it had entered a general denial on
behalf of the Government pursuant to Rule 6.(b) of the
Board's Rules of Practice and Procedure. On April 22, 1987,
the Board received a letter from Marlatt dated April 9,
1987, which stated:
Automated Datatron, Inc. (ADI) wishes the Board to note the
following:
Both of the referenced files contain GPO Memoranda stating
that Consolidated Micrographics, Inc. confirmed that "a
micrographic length standard of 147.25 millimeters to 148.00
millimeters is warranted and can easily be achieved on a
consistent production basis."
ADI has received information from Consolidated Micrographics
that only its most recently manufactured machines can be
modified to meet this standard.
We will forward written confirmation of this information
when it is received from Consolidated micrographics.
Official File, Tab 7.
No further correspondence was received from either party.
Accordingly, the record was administratively closed in
accordance
with the Board's Rules and comes on for decision on the written
record in this manner, Appellant having failed to exercise its
right to a hearing.
Discussion
The appeal raises the question of whether the
specification's provision respecting the length of
microfiche is excessively restrictive. The question is
substantially the same as that raised by Appellant in Docket
No. GPO BCA 4-87 decided this date upon identical
specification language and similar facts. In the instant
case, as in Docket No. GPO BCA 4-87, the Appellant has
offered no evidence whatsoever to support the primary
assertion of its complaint that "the new specifications .
. . are excessively restrictive for currently available
equipment." Moreover, the Board's examination of the record
convinces it that such assertion is clearly erroneous for
the following reasons:
(1) The solicitation advised: "BIDDERS PLEASE NOTE: "This
contract has been extensively revised; therefore, all
bidders are cautioned to familiarize themselves with all
provisions of this contract before bidding." (R4 File, Tab
B, page 1 of the specifications.)
(2) The specifications state the size of the microfiche to
be 148 by 105 millimeters and that the microfiche "shall
conform to the microfiche Format 24/98, as specified in
'ANSI/AIM MS5-1985, American National Standard for
Micrographics -
Microfiche'," and that the microfiche conform to the quality
assurance for microfiche provisions set forth in Section 3 of the
specifications.
(3) Among the provisions of Section 3 is a quality
attribute for length which states the nominal standard for
such attribute as 148 millimeters as per table 5 of "ANSI PH
1.51-1983 American National Standard 'Dimensions for
Micrographic Sheet and Roll Films.'"; with tolerances for
such standard to be as per Defect Classification Table
included in such specifications as follows:
LENGTH
Defect Classification
less than 147.25 mm (5.797") critical
greater than 148.0 mm (5.827") critical
Rule 4 File, Tab B, specifications, page 9 of 22.
(4) The Government based its inclusion of such provision
upon a highly regarded, universally accepted standard. (R4
File, Tab P.)
(5) There is no evidence of any protest of these
specifications by Appellant or any other vendor to whom the
solicitation was sent. The bidder's list reflects that
Respondent received 4 responsive bids to the solicitation,
including Appellant's bid. (R4 File, Tab C.)
(6) Moreover, because of the differences in the 4 bids,
Appellant was apparently asked to review and confirm its bid
for possible errors which it did affirmatively by letter
dated August 22, 1986. (R4 File, Tab D, sheet 2.)
(7) Performance records indicate that while Appellant had
great difficulty in meeting the specifications respecting
length, acceptance was achieved after correction in certain
instances, thus confirming that while the specifications
were difficult to meet, performance was not impossible. (R4
File, Tab O.)
The Board believes that given such findings, the decision of
the Contracting Officer, as in Docket No. GPO BCA 4-87, was
fully supported by the evidence and should not be disturbed.
Accordingly, the appeal is denied and the decision of the
Contracting Officer is affirmed.