U.S. GOVERNMENT PRINTING OFFICE
BOARD OF CONTRACT APPEALS
STUART M. FOSS, Administrative Law Judge
Appeal of EDITORS PRESS INCORPORATED
Docket No. GPO BCA 03-90
Jacket No. 220-476
Purchase Order 81647
September 4, 1991
DECISION AND ORDER
This appeal, timely filed by Editors Press Incorporated, 6200 Editors Park Drive, Hyattsville,
Maryland, 20782 (hereinafter the Contractor or Appellant), is from the final decision, dated
October 25, 1989, of contracting Officer, Mr. Jack G. Marken of the U.S. Government Printing
Office, Washington, DC (hereinafter the Respondent or GPO), with regard to its contract identified
as Jacket No. 220-476, denying the Appellant's claim of $23,508.60 for additional costs incurred by
the Contractor when it temporarily shut down its press pending an answer to whether certain brown
spots discovered in the paper stock were acceptable. 1 For the reasons which follow, the decision
of the Contracting Officer is hereby Affirmed. 2
BACKGROUND
The relevant facts in this appeal are essentially undisputed, and are recited here only to the
extent necessary to decide the issue presented. This dispute arises from a contract between the
Appellant and GPO for the procurement of "1990 Census of the United States - Long Form
Questionnaire Mailing Packages," (Census Form) based on the Contractor's bid of $7,884,911.00 (R4
File, Tab A, p. 1, and Tab B). The contract has been completely and satisfactorily performed, and
the Contractor has received the contract price for the work. This appeal, instead, involves a
secondary dispute between the parties regarding an additional request for payment submitted by the
Appellant for costs incurred while its press was idle pending confirmation from GPO that the paper
stock on which the Census Form was to be printed would be suitable for FOSDIC use.
As indicated in the contract, the scope of the specifications covered the printing, binding,
assembly, and manufacturing of five (5) items to create a conventional mailing package with
separate outgoing and return envelopes, as well as the printing of three (3) additional items to
support their distribution (R4 File, Tab A, p. 1). The predominant production
function was presswork (R4 File, Tab A, p. 2). The specifications also contained detailed
provisions regarding paper stock, printing and manufacture, and testing of samples of paper
stock/manufactured product prior to and during production, and after delivery of the manufactured
product (R4 File, Tab A). Further, the contract was governed by the applicable articles of GPO
Contract Terms, Publication 310.2, effective December 1, 1987 (hereinafter Contract Terms), and
Quality Assurance Through Attributes Program, GPO Publication 310.1, Revised September 1, 1986 (R4
File, Tab A, p. 1).
Under the terms of the contract the Appellant was required to supply (plus or minus 1 percent of
each item) 19,006,050 copies of the Census Form (Form No. D-2), a 20-page self-cover pamphlet with
an extension on the front leaf, an equal number of instruction guides, motivational inserts,
outgoing envelopes (Form D-7 (BR) and D-7 (UL)), and return envelopes, as well as 350,000
Postmaster/Station Manager instructions and 280,000 shipping labels (Forms D-741 and D-741A) (R4
File, Tab A). Of particular importance in this appeal is the fact that the completed Census Form
was to be read on an optical scanning machine. Accordingly, detailed provisions were set forth
concerning the quality of paper stocks to be used, GPO's inspection of paper samples, and the
Contractor's ultimate responsibility to ensure that the Census Forms would be produced on paper
compatible with computerized imaging and equipment.
In that regard, the contract terms told the Appellant, in pertinent part, that:
1. [The Census Form (item 1)] . . . "is for use on a Film Optical Sensing Device for Input to
Computers (FOSDIC) optical scanning machine" (R4 File, Tab A, Scope Clause, p. 1).
2. Prior to the commencement of the production for items 1, 4, and 5 [Census Form, outgoing
envelope and return envelope] only of the specifications, the Contractor shall submit samples of
paper from each shipment of paper delivered to his plant. . . . Samples will be tested in
accordance with the TAPPI T-400 standard. . . . Samples will be inspected and tested by the
Government Printing Office and must comply with the specifications as to kind and quality of
materials (R4 File, Tab A, Paper Samples Clause, p. 7). 3
3. After approval of the paper and construction samples and prior to the commencement of
production of the contract quantity, the Contractor is to submit not less than 1,000,050 printed
prior to production samples of the mailing packages . . . in accordance with the shipping schedule.
Each sample shall be printed and constructed as specified and must be of the size, kind, and
quality, including computerized imaging that the Contractor will furnish for the production run.
50 samples will be tested for conformance of the material(s). . . . 1,000,000 packages will be
tested [by GPO] for usage on the specialized equipment and/or for construction and are to be
shipped to the Bureau of the Census, . . .The Government will approve, conditionally approve, or
disapprove paper and construction samples
within 15 workdays (changed to 10 days), respectively, and the prior to production samples within
45 workdays of the receipt thereof. Approval or conditional approval shall not relieve the
Contractor from complying with the specifications and all other terms and conditions of the
contract. . . .
"Manufacture of the final product prior to approval of the sample submitted is at the Contractor's
risk (R4 File, Tab A, Prior to Production Samples Clause, pp. 8-9).
4. The specifications of all stock furnished must be in accordance with those listed herein for
the corresponding JCP Code numbers in the "Government Paper Specification Standards No. 9" dated
December 1, 1981, as amended through May 1, 1986. . . .
Item 1 - White Opacified Book in accordance with the following specifications:
Stock: 100 percent bleached chemical wood pulp. Reclaimed fiber, in any percentage, is permitted,
provided that the requirements of this standard are met.
**********
Opacity: Average, not less than...percent.... 91
Metric equivalent...(mN)............ 90
**********
Cleanliness (dirt count): Average, each side,
not to exceed....(parts per million)......... 20
Color: Paper shall be white, be a uniform shade, and have a brightness of 78 to 83 percent. No
fluorescent (optical) brighteners shall be added to the pulp of paper during manufacture which will
result in more than 3 PMU (phosphor meter unit) per square inch on the red fluorescent setting.
Fluorescence, due to residual white water, broke, or natural fibers, is permissible; provided the
increase in reflectance, . . . does not exceed 1.0 percent.
**********
Testing: Shall be conducted in accordance with standards in Part 2, Government Paper
Specifications Standards, Vol. 9. Precision requirements of the Acceptance Criteria, Part 4 of the
Government Paper Specifications Standards shall apply except for brightness. Any deviation from
specification in brightness is critically defective.
NOTE: Contractor must ensure that the paper used will be compatible with computerized imaging and
equipment. Incompatibility causes ink bleed through and/or "out of specification" bar codes (R4
File, Tab A, Stock Clause, pp. 9-10).
**********
Additional Printing/Imaging Quality Requirements for Item 1.
**********
5. Black spots on the form shall not be larger than .10 sq. mm in size, closer than .14 inch (3.6
mm) surrounding the indexes or in the marking circles, and shall not be larger than .20 square
millimeters in size anywhere on the form (R4 File, Tab A, p. 13).
The record shows that in accordance with the specifications above, in April 1989, the Appellant
submitted samples of the paper stock to GPO for testing, and the paper was found to be within the
contractual standards and acceptable for use for the Census Forms (R4 File, Tab C).
On May 3, 1989, an inspection team composed of GPO and Census Bureau employees went to the
Appellant's plant for a press inspection (R4 File, Tab D). Before their arrival, the Appellant's
own quality control personnel had noticed a series of randomly located brown spots in the paper
stock during the prior-to-production run of the Census Form job; some of the spots were of
noticeable size (R4 File, Tab K).
The Appellant showed the press sheets to the members of the government inspection team, and John
Sagner, GPO's representative, apparently expressed some concern that if the specks ever fell too
close to a FOSDIC circle the form could be unacceptable (R4 File, Tab D). The Appellant shared
this same concern and advised Sagner that they had contacted the paper mill by telephone, and that
the mill's representative would come to the plant the next day to check out the matter (R4 File,
Tabs K and O). In that regard, it seems that Sagner believed the specks to be "dirt spots" in the
paper (R4 File, Tabs I and O). However, after Sagner telephoned his supervisor, Larry McHugh, to
inform him of the problem, he (Sagner) advised the Contractor that:
We were not there to evaluate the paper but to OK the color and the QC [quality control]
operations. That it was up to Editors to decide what to do about the paper (R4 File, Tabs L and
O).
The record shows that the Appellant's representatives Edwina Littleford and Don Frederickson, then
left the room, but Frederickson returned shortly thereafter and asked Sagner to interpret the
contractual specification regarding dirt count; i.e., 20 parts per million (ppm). Sagner responded
that he " . . . had no idea since that was not my
field of expertise" (R4 File, Tab O). On receiving Sagner's reply, Frederickson conferred with
Littleford and the Appellant's Vice President of Manufacturing, Terry Heyer. At the conclusion of
this discussion, around 9:30 a.m., the Appellant told the members of the government inspection team
that rather than waste the paper, it was going to shutdown the press until the paper problem was
resolved (R4 File, Tabs D, E, F, I, K, and M). 5
The record is not clear whether the Appellant requested GPO to retest the paper to be used on the
production run. 6 Nonetheless, the record shows that on May 4, 1989, GPO's Quality Control and
Technical Department tested additional samples of paper stock, and the results showed that the
paper was well within the specification standard for cleanliness (dirt count) (Test Report No.
245301, dated May 5, 1989, R4 File, Tab G). 7 Accordingly, GPO Printing Specialist, Ron Cully,
telephoned the Appellant's office at approximately 1 p.m. on Friday, May 5,
1989, and informed the Contractor that the paper retest proved the paper was acceptable and to
proceed on the basis (R4 File, Tabs I, K, and M). The following Monday, May 8, 1989, the
Contractor made new plates and continued press production of the Census Form packages. On May 8,
1989, the Appellant wrote to Mr. Cully requesting a Contract Modification in the amount of
$23,508.60 to cover the time the press was idle while GPO retested the paper stock, as well as the
cost of a new set of plates and makeready time to restart the production process. 8
On July 26, 1989, and October 13, 1989, respectively, the Contractor renewed its request for a
Contract Modification (R4 File, Tabs K and M). However, by letter, dated October 25, 1989, the
Contracting Officer denied the Appellant's claim to additional compensation (R4 File, Tab N). The
Contracting Officer gave two reasons for his decision: (1) the Appellant failed to present any
evidence that the Government caused the delay, without which there is no basis for Government
liability; and (2) the decision to shut down the press was a unilateral one made solely by the
Appellant. This appeal to the Board followed.
POSITIONS OF THE PARTIES
It is undisputed that the decision to shut down the press was a unilateral one made by the
Appellant (R4 File, Tab K). The only questions are whether the Appellant's action was justified
under the circumstances, and whether it is entitled to be reimbursed by GPO for the time its press
was idle, the makeready time required when the Census Form job was restarted, and the cost of new
plates. The Appellant's claim before the Board is predicated on the fact that the contract
specifications did not mention the type of brown bark spots which led to the decision to shut down
the press. Appeal, p. 2. As the Appellant explains, under Contract Terms, which is incorporated
by reference in the Invitation for Bid (IFB), "[b]idders are expected to the examine
specifications." . . . See, Contract Terms, Solicitation Provisions, Art. 1(a), p. 1. The
Appellant states that when it followed this instruction, it discovered that there was no
specification covering the size of spots in the paper. Appeal, p. 2. The Appellant argues that
such specks are not uncommon in the type of paper specified; therefore, because "spots" were
clearly an undesirable element in terms of FOSDIC readability, the failure to include a
specification covering the size of such spots was clearly a "critical omission." Id.
Furthermore, Contract Terms provides that "[b]idders shall include anticipated items of cost for
production . . . in their bids." Contract Terms, Solicitation Provisions, Art. 1(c), p. 1. The
Appellant claims that because the IFB did not contain any specifications concerning paper spots, it
could not reasonably anticipate the costs associated with
determining their significance. Appeal, p. 2. Finally, the Appellant relies on the "Risk of Loss"
provisions in Contract Terms for the proposition that since it knew "spot size" was important to
the use of the FOSDIC system, and because spots of a certain size were clearly prohibited by the
quality control plan, it would have been negligent in continuing to print the job on spotted paper,
unless or until it had obtained approval to do so. Id. (See, Contract Terms, Contract Clauses, 9,
p. 14 ("The contractor shall be liable for loss, damage or destruction of Government property
caused by his/her negligence.")). Accordingly, the Appellant believes that the actual costs it
incurred with respect to stopping the press and restarting it once such approval was given, should
be reimbursed by the Respondent.
The Respondent, on the other hand, takes a simpler view of the matter. As the Respondent notes,
samples of the paper stock which the Appellant proposed to use on the Census Form job were tested
by GPO, and the Appellant was told that the paper was equal to the specifications. When the
Appellant's inspectors discovered the presence of brown spots, some of noticeable size, on the
paper during the pre-production run on May 3, 1989, it was the Appellant who was uncertain whether
they would render the printed product unreadable by the FOSDIC system. Further, it was the
Appellant, not GPO's on-site press representative, who made the decision to shut down the press
until it could be assured that the paper spots would not interfere with the
product's usability. Since the decision to shut down the presses was unilaterally made by the
Appellant and not authorized by GPO, the Appellant must bear the cost associated with its action;
i.e., in the absence of evidence that the Respondent caused the Appellant to shut down its press,
there is no basis for holding it responsible for these costs. See, Respondent's Informal Brief,
dated June 3, 1991.
DECISION
As indicated above, the crux of the Appellant's position is that the Respondent's failure to
include a provision on the type and size of paper spots involved in this appeal in the contract
specifications constituted a "critical omission" in the IFB; i.e., the FOSDIC system required
quality control over "spot size" on the paper stock used, thus it would have been negligence for
the Appellant not to shut down its press under these circumstances until it had obtained approval
to proceed with the job. It is unclear from the Appellant's position, however, whether it is
arguing that the specifications were defective or were merely ambiguous. In the Board's view,
either proposition is without merit.
As a general rule, it is well settled Government contract law that the burden of proving defects in
the Government's specifications falls on the contractor, who must also show that such defects were
the cause of the
problems in question. Fry Communications, Inc., GPO BCA 1-87 (June 1, 1989), Sl. op. at 5 (citing,
Bailfield Industries, Division A-T-O, Inc., ASBCA No. 18057, 77-1 BCA ¶ 12,348). 9 Applying this
principle here, the Appellant must show that the Respondent's failure to include a specification
regarding the size of the brown bark spots in the paper stock rendered the IFB defective, and that
the defect was the cause of the problem in question. In the Board's view, the Appellant here has
failed to carry its burden.
The contract in this case was governed by detailed specifications covering, inter alia, the quality
of paper stock and materials, and testing procedures both for the paper and for the printed
product. Nonetheless, the Appellant believes that the IFB specifications were wanting because,
unlike the provisions concerning the size of "black spots" (R4 File, Tab A, at p. 13), the IFB did
not provide guidance with respect to the size of other (brown) "spots" which could be read by the
FOSDIC system; i.e., the Appellant argues, in effect, that the IFB should have included
specifications regarding the size of the brown spots which were as specific as those for "black
spots." To the Board, however, this contention seems to be "mixing apples and oranges" because the
standards for "black spots" in the
IFB relates to the printing and computer imaging aspects of the contract, and not the quality of
the paper stock. Instead, the Board believes that the Appellant had more than enough guidance with
respect to the matter of acceptable size for spots in the paper stock from: (1) the paper stock
specification for cleanliness (dirt count) (R4 File, Tab A, p. 9); (2) the requirement that prior
to production, the Contractor had to submit samples from each shipment of paper delivered to his
plant to GPO for testing and approval with regard to compliance with the specifications as to kind
and quality of materials (R4 File, Tab A, p. 7); (3) the fact that the paper test standards were
specifically spelled out in the IFB (R4 File, Tab A, p. 10); and (4) the Contractor's overall
responsibility to ensure that the paper used was compatible with computerized imaging and equipment
(R4 File, Tab A, p. 10). In the Board's judgment, these provisions were sufficiently precise so
that once the paper stock had been tested and approved by GPO, it was not necessary for the
Appellant to require any further clarification in the paper specifications about the acceptable
size of spots in the paper. Thus, the Appellant has not shown, to the satisfaction of the Board,
that the lack of a specification regarding the size of the brown bark spots in the paper stock
rendered the IFB defective. Indeed, when the Board considers that the Appellant subsequently
completed production of acceptable Census Form packages using the same paper stock about which it
was in doubt, after GPO had conducted another test which confirmed that the paper met the
contractual standards, it must concluded that the
Appellant has also failed to prove that the "missing specification" -- i.e., the alleged "defect"
-- was the cause of the problem in question; in fact, the Board fails to see any problem at all.
The Appellant's second premise -- that the specifications were ambiguous -- is equally unavailing.
Generally, contractual language is ambiguous if it will sustain different reasonable
interpretations. Fry Communications, Inc./ InfoConversion Joint Venture v. United States, No.
174-89C (Cl. Ct. Feb. 5, 1991), Sl. op. at 11 (citing, Edward R. Marden Corporation v. United
States, 803 F.2d 701, 705 (Fed. Cir. 1986); Sun Shipbuilding & Drydock Co. v. United States, 183
Ct. Cl. 358, 372 (1968)); Castillo Printing Company, GPO BCA 10-90 (May 8, 1991), Sl. op. at 26-28;
General Business Forms, Inc., GPO BCA 2-84 (December 3, 1985), Sl. op. at 16-21. Consequently, the
crucial issue in such cases is whether a contractor's interpretation of the specifications is
within the zone of reasonableness, not whether the Government's interpretation is somehow "better."
Fry Communications, Inc./ InfoConversion Joint Venture v. United States, supra, Sl. op. at 15
(citing, WPC Enterprises, Inc. v. United States, 163 Ct. Cl. 1, 6 (1963)). In other words, a
contractor does not bear the burden of interpreting a contract correctly, only of interpreting it
reasonably. General Business Forms, Inc., supra, Sl. op. at 19 (citing, Max Drill, Inc. v. United
States, 192 Ct. Cl. 608, 627 (1970)).
However, to say that an ambiguity exists does not end the inquiry, because a trier of fact must
also determine, inter alia, whether the ambiguity is latent or patent. If the ambiguity is latent,
the doctrine of contra proferentem allows the adoption of the contractor's reasonable
interpretation of an IFB drafted by the Government. Fry Communications, Inc./ InfoConversion Joint
Venture v. United States, supra, Sl. op. at 11. On the other hand, a patent ambiguity operates as
an exception to the contra proferentem doctrine by creating a duty in the contractor to seek a
clarification of the contractual language from the contracting officer before it submits its bid.
Id., Sl. op. at 11-12 (citing, George E. Newsom v. United States, 230 Ct. Cl. 301, 303 (1982)); WPC
Enterprises, Inc. v. United States, supra, 163 Ct. Cl. at 7; General Business Forms, Inc., supra,
Sl. op. at 17 (citing, Enrico Roman, Inc. v. United States, 2 Cl. Ct. 104, 106 (1983)). 10 A
patent ambiguity exists where the IFB contains a gross discrepancy, an obvious error in drafting,
or a glaring gap, as seen through the eyes of a "reasonable man" on an ad hoc basis. Fry
Communications, Inc./ InfoConversion Joint Venture v. United States, supra, Sl. op. at 12 (citing,
Max Drill, Inc. v. United States, supra, 192 Ct. Cl. at 626; WPC Enterprises, Inc. v. United
States, supra, 163 Ct. Cl. at 6).
As the Board understands the Appellant's claim, while is not alleging that the existing paper
specifications are unclear or capable of different interpretations, it does contend that the IFB
has a "critical omission" because a provision on the type and size of paper spots involved in this
appeal is lacking. The Appellant admits that it knew brown bark spots were not "uncommon" in the
type of paper specified in the IFB. Appeal, p. 2. It also acknowledges that the presence of spots
were important because the Census Forms were to be read on the FOSDIC system, and that the quality
control plan clearly prohibited the existence of certain size spots. Id. Therefore, assuming that
the missing specification was, indeed, a "critical omission," the IFB would have contained, by
definition, the sort of a "gross discrepancy, an obvious error in drafting, or a glaring gap" which
would have required the Appellant to seek a clarification from the Contracting Officer before it
submitted its bid. Fry Communications, Inc./ InfoConversion Joint Venture v. United States, supra,
Sl. op. at 11-12. In short, the Appellant's argument, on its face, alleges that a patent ambiguity
existed in the IFB, and the law is clear that the risk in such cases falls on the contractor not
the Government. Id.; Enrico Roman, Inc. v. United States, supra, 2 Cl. Ct. at 106; George E. Newsom
v. United States, supra, 230 Ct. Cl. at 303; WPC Enterprises, Inc. v. United States, supra, 163 Ct.
Cl. at 7; General Business Forms, Inc., supra, Sl. op. at 17.
Finally, relying on the provision in Contract Terms which holds the contractor liable for loss,
damage or destruction of Government property caused by his/her negligence, Contract Terms, Contract
Clauses, ¶ 9, p. 14, the Appellant argues that it was only prudent to stop printing the Census
Form job on spotted paper, until it had obtained approval to continue. Appeal, p. 2. However, the
Appellant cannot escape the fact that the paper stock had already been tested and approved by GPO.
As a general rule, such inspections and tests are for the benefit of the Government. Custom
Printing, GPO BCA 10-87 (May 10, 1988), Sl. op. at 14 (citing, Red Circle Corporation v. United
States, 185 Ct. Cl. 1 (1968)). Absent a provision in the contract itself, the Government has no
duty to conduct tests or inspections for the benefit of a contractor. Id., Sl. op. at 13. See
also, Contract Terms, Contract Clauses, 14.(c), p. 16 ("The Government . . . assumes no contractual
obligation to perform any inspection and test for the benefit of the contractor unless specifically
set forth elsewhere.").
In this particular case, the Census Form paper stock had been tested by the Respondent, found to be
within the IFB specifications, and approved for use by the Appellant. In the Board's opinion, when
the Appellant thereafter unilaterally aborted the production process until the paper was retested
and reapproved by the Respondent, it was acting solely for its benefit in order to avoid the risk
of rejection of
the final product. 11 The law is clear that if the Appellant had retested the paper stock itself,
the rechecking process would have been considered unreimbursable "voluntary" work outside the
contract. See, e.g., Calculus, Inc., ASBCA No. 37155, 89-1 BCA ¶ 21,520; Norflor Construction
Corporation, ASBCA No. 31579, 88-2 BCA ¶ 20,649; Shedd B. Smith, DOT CAB No. 1381, 83-2 BCA ¶
16,780; Control Temp, Inc., ASBCA No. 23380, 80-1 BCA ¶ 14,433. See also, Celia Translations,
Inc., GPO CAB 10-79 (February 6, 1981), Sl. op. at 7 (citing, Louise Hardwick, Administratrix, 95
Ct. Cl. 336 (1942)). The Board believes that the fact the paper stock was retested by the
Respondent (in order to reconfirm its suitability for use), should not lead to a different result;
i.e., since GPO was not obligated under the IFB to retest or reapprove the paper stock, the
Appellant cannot require the Respondent to reimburse it for the additional costs resulting from the
Appellant's unilateral shutting down of the press. Id. Accordingly, the Board must conclude that
the financial responsibility for the Appellant's surfeit of caution in this case rests with the
Appellant itself, and not with the Respondent.
CONCLUSION
The Appellant's contract for the production and supply of Census Forms has been fully and
satisfactorily performed based on the original specifications in the IFB. In that regard, the
specifications concerning the paper stock, which had been tested once and found to be acceptable,
were sufficiently precise so as to preclude the need for the Appellant to shut down its press
pending reapproval of the paper. The Appellant has not alleged or proved any legitimate ground in
this appeal to support its claim for reimbursement for the additional costs associated with the
reapproval process. Therefore, considering the record as a whole, the Board Affirms the decision
of the Contracting Officer, dated October 25, 1989, and Denies the Appellant's claim of $23,508.00.
It is so Ordered.
_______________
1. The Appellant claims $15,847.00 for idle press time, $7,165.00 for makeready, and $496.00 for
plates and platemaking. See, Appeal of Editors Press, Incorporated, dated February 21, 1990, as
corrected by, letter to the Board from Terrence (Terry) Heyer, Vice-President, Manufacturing, dated
March 20, 1990 (hereinafter Appeal).
2. The record on which the Board's decision is based now consists of: (a) the appeal File (Rule 4
File) (hereinafter R4 File) received from the Respondent with its letter, dated February 16, 1990
(Exhibits A-O); (b) the documents filed by the Appellant under Rules 4 and 12 with its letters,
dated March 20, 1990, and April 9, 1990; (c) the Appeal, dated February 21, 1990; and (d) the
informal brief filed by the Respondent on June 3, 1991.
3. Although not involved in this dispute, the specifications also provided that the contractor was
to submit construction samples to GPO for testing (printing was not required, but the samples had
to be marked to show where images would be). While the Appellant could choose the stock to be
tested, GPO would inspect and evaluate the samples for conformance to the specifications as to
construction and binding (R4 File, Tab A, p.8)
4. The brown spots were bark chips (R4 File, Tabs E and O). Such chips are not uncommon in the
paper specified for the contract (R4 File, Tab I). The Appellant admits that the contract
specifications contemplated some paper spotting, and prohibited more than a certain number, but
focuses on the silence of the specifications with respect to their size (R4 File, Tabs K and M).
5. The record discloses that sometime during these discussions with the government inspection
team, the Appellant contacted another printing establishment, Webcraft, and was informed that they
were not having any problems (R4 File, Tab F).
6. The members of the government inspection team reported that the Appellant asked Sagner to have
GPO retest the paper stock (R4 File, Tabs D and E). The Appellant, however, has informed the Board
that it did not request any type of paper test; that was an interpretation placed on the
Appellant's concerns by the government. The Appellant states that it was only interested in
whether or not the brown bark spots in the paper could be read by the FOSDIC system, and the
specifications were silent about this sort of imperfection in the paper. Further, the Appellant
notes that GPO's subsequent retesting of the paper was for the dirt count, which was not the
Appellant's concern at all. See Letter from Terrence Heyer, Vice-President, Manufacturing to the
GPO Board of Contract Appeals, dated April 9, 1990.
7. The samples showed a dirt count of 7.2 and 3.6 ppm; the specification yardstick was 20 ppm.
8. See, n. 1 supra, for the specific breakdown of costs.
9. For the most part, the specifications in printing contracts are, by their nature, "design"
specifications as distinguished from "performance" specifications. Colorgraphics Corporation, GPO
BCA 16-87 (March 31, 1989), sl. op. at 23. That is, the specifications set forth precise
measurements, tolerances, materials, in process and finished product tests, quality control,
inspection requirements, and other specification information, rather than predict the operational
characteristics desired for the item. Id. (citing, Monitor Plastics Company, ASBCA No. 14447, 72-2
BCA ¶ 9626).
10. As the Claims Court observed in Enrico Roman, "[p]olicy considerations for this exception to
the contra proferentem rule consist of the need to protect bidders so that they are all bidding on
the same material; to discourage contractors from taking advantage of the Government; and most of
all, to prevent post-award litigation." Enrico Roman, Inc. v. United States, supra, 2 Cl. Ct. at
107. See also, George E. Newsom v. United States, supra, 230 Ct. Cl. 125 (1976).
11. Although the Appellant states that it did not request a retest of the paper samples, note 6
supra, it seems reasonable to the Board that it clearly expected GPO to perform one. Otherwise, in
light of the Appellant's expression of concern, what basis would there be for GPO to give its
approval to restart production of the Census Forms, if not on its reassurance that the paper stock
met contractual specifications?