Land & Land Printers, Inc. GPO BCA 5-86 July 22, 1988 Michael F. DiMario Administrative Law Judge Opinion This appeal, timely filed by Land & Land Printers, Inc., P.O. Box 1921, Baton Rouge, LA 70821 (Appellant) is from the final decision of Richard W. Wildbrett, Contracting Officer (CO), Dallas Regional Printing and Procurement Office (DRPPO), U.S. Government Printing Office (GPO/Respondent), dated February 24, 1986, imposing a 15 percent discount ($1,275.30) in the total price to be paid Appellant for the manufacture of certain pamphlets requisitioned from GPO by the Department of the Army, because "the paper stock failed to comply with the specifications." The appeal is denied and the decision of the CO affirmed for the reason set forth hereinbelow. Background Upon Requisition No. 5-00206 through 5-00213 of the Department of the Army, Ft. Sill, OK, the DRPPO, by Purchase Order K-2073 of November 13, 1985, competitively awarded Appellant a GPO DRPPO contract identified as Jackets 573-922 through 928 and 573-944 in the total amount of $8,502. The contract was for the printing, binding, packaging, and delivery of some 8 different pamphlets. The text of each pamphlet was to be printed upon 50 lb. White Offset Book stock (Basis: 500 sheets 25 x 38") equal to Joint Committee on Printing (JCP) Code JCP A60 in conformance with the "Government Paper Specifications Standard, No. 9" dated December 1981. The cover stock, also to be in conformance with the said Government Paper Specification Standard, was to be 65 lb. Red Vellum (Basis: 500 sheets 20 x 26") equal to JCP Code L20. After receipt of the completed product, the Army notified the DRPPO that it believed the product to be defective. The DRPPO in turn requested inspection and testing by GPO Quality Control and Technical Department. The tests confirmed that neither the text paper nor the cover stock met the requirements of the Government Paper Specification Standard. The Army was notified that the contractor could be required to reprint at its own expense. However, having completed distribution of the pamphlets to its field activity because of an urgent need, the Army urged acceptance of the pamphlets at a discounted price notwithstanding the defects. The CO, applying the suggested discount provisions of the "Quality Assurance Through Attributes Program (QATAP)", GPO Publication 310.1 dated May 1979, which were incorporated into the contract by reference, determined the appropriate discount to be 15 percent and sought concurrence for such discounted acceptance from the GPO Contract Review Board. The Board unanimously concurred. The Appellant was then notified of the CO's decision (Official File, Tab 3), whereupon the Appellant, by letter of May 5, 1986, noted its appeal with this Board. That letter in pertinent part states: 1. We will not protest the testing of the 50# offset. The mill that supplied this paper ran tests on the paper that we printed and confirmed that it was 45# stock instead of 50# as it was labeled. This was their error and we had no reason to question the labeling on the skids that we printed. 2. We protest the demerits issued on the red vellum cover, not so much on the grounds of the testing, but on the grounds that this was the only available cover as indicated by the attached letter from A to Z Paper Co., our supplier. Before bidding on this job, we had checked with every paper house in our area and found that no paper mill was making a 65# red vellum. A to Z offered the cover that we used as a substitute since it had the same general appearance as the previously discontinued stock. Our bid was based on their getting this from the mill, so we did not attempt to substitute a cheaper stock after the bid was awarded to us. We believe that the primary objection by Ft. Sill was a result of the error on the 50# offset book and not because of the cover stock. After finding out about the 45# paper, we can agree with their objection to this. But we feel that the substitution of the red cover does not warrant the demerits issued and should not, therefore, be charged against us. Official File, Tab 1. Thereafter, by memorandum of May 14, 1986, the CO filed his statement of the case with this Board together with his formal "Determination and Findings" dated May 15, 1986, denying recision of the 15 percent cost adjustment. The memorandum repeats some of the above facts and in addition states: The 15% cost adjustment was determined in accordance with item 4-3, "Paper Attribute" and Appendix B, "Discount Table for Major Defects", GPO Pub. 310.1. Specifications required 13 publications from each jacket be randomly selected, packed separately and identified with a special Government furnished blue label. Additionally, a Selection Certificate, GPO Form 917, was also provided for each jacket, which the contractor was required to complete. Having determined that all 13 publications for each jacket had a major defect, Appendix "B", GPO Pub. 310.1 was used to calculate the percentage of discount. 13 samples inspected for each Jacket resulted in 13 major defects per jacket which equals a 15% cost adjustment. The letter of appeal from Land and Land Printers, Inc. does not dispute the action taken as a result of the deficient text stock. Their appeal is based on the assertion that 65 lb red vellum cover stock equal to JCP L20 was not available. Inquiries made at the direction of the Contracting Officer indicate two papermills currently are making this type of paper: Coat of Arms cover by George A. Whiting Paper Co. and Re-Entry Red by Wausau. Official File, at Tab 4, sheet 2. No further communication was received from Appellant, although it was duly notified of the docketing of its Notice of Appeal and its duty to file a Complaint with the Board within 30 days of receipt of notice of such docketing. The Notice of Appeal was nevertheless deemed by this Board to meet the requirements of a Complaint. Respondent was so notified by letter of July 9, 1986, in order that it might file its answers to Appellant's averments. No such Answer having been timely filed, the Board on August 13, 1986, entered a "general denial" on behalf of the Respondent pursuant to Rule 6.(b) of GPO Instruction 110.1 2 dated September 17, 1984, thus putting the matter into controversy and so notified Appellant. The matter is now before the Board for decision on the record in this format. Discussion Appellant's single claim, supra, is that because of the nonavailability of the specified cover stock in its local area at the time of its bid, it was justified in substituting stock which was available and that in such circumstance "the substitution . . . does not warrant the demerits issued and should not, therefore, be charged against us." The Board does not agree. As a finding of fact, the Board concludes from the evidence that the specified cover stock was commercially available, albeit not necessarily in Appellant's immediate locale or through its usual suppliers, since there were 14 responsive bids and no bid protests respecting nonavailability. (R4 File, Tab XI.) This finding is buttressed by Respondent's statement that its after the fact inquiry revealed current availability from two manufacturers. (Official File, at Tab 4, sheet 2.) Moreover, even if this were not the case, Appellant's claim could not be deemed meritorious since Appellant, by its own admission, knew of the local nonavailability before placing its bid. In such circumstance, we believe Appellant, as a matter of prudence, should have questioned the validity of the specification rather than tender its bid. Having chosen the latter course of action, the Appellant cannot now rightly complain since it assumed the risk of the product being rejected as it was. See Whittaker Corp., Power Services Div., ASBCA 14191, 79-1 BCA ¶ 13805 (1979). It has long been held that the Government is generally entitled to strictly enforce its specifications (S.S. Silberblatt, Inc. v. United States, 433 F.2d 1314 (1970)), and a "contractor is not entitled to substitute or deviate therefrom even though the articles may have met the performance characteristics specified." Herley Industries, Inc., ASBCA 15378, 72-2 BCA ¶ 9749 (1972). Accordingly, in a case very similar to the one at bar, the Armed Services Board of Contract Appeals upheld a CO's rejection of contractor substituted paint which was only slightly different than the specified color, even though it was to be used as an undercoat. Arrow Lacquer Corp., ASBCA 4667, 58-2 BCA ¶ 2003 (1958). Based upon these findings, the appeal is denied and the decision of the CO is affirmed.