BOARD OF CONTRACT APPEALS
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON, DC 20401
In the Matter of )
)
the Appeal of )
HARMONY PRINTING & ) Docket No. GPOBCA 05-96
DEVELOPMENT COMPANY )
Jacket No. 639-963 )
Purchase Order F-0868 )
For the Appellant: Harmony Printing & Development Company,
Liberty, Missouri, by Frederic G. Antoun, Jr., Attorney at Law,
Chambersburg, Pennsylvania.
For the Government: Drew Spalding, Esq., Deputy General Counsel,
U.S. Government Printing Office.
Before BERGER, Ad Hoc Chairman.
DECISION AND ORDER
Harmony Printing and Development Company (Appellant), 1200 East
210 Highway, Liberty, Missouri, timely appealed the February 20,
1996 final decision of Contracting Officer Gary C. Bush of the
U.S. Government Printing Office (GPO or Respondent) requiring the
Appellant to reprint at no cost to the Government some 500,000
40-page pamphlets under its contract identified as Jacket
639-963, Purchase Order F 0868. For the reasons which follow,
the Contracting Officer's decision is AFFIRMED and the appeal is
DENIED.
I. BACKGROUND
1. The contract, calling for the printing of a pamphlet
entitled "Caring for Someone with AIDS at Home" for the Centers
for Disease Control (CDC), was awarded to Harmony on or about
November 2, 1995. The specifications provided that GPO would
furnish the copy and fonts to be used in the form of electronic
media on a SyQuest cartridge. Rule 4 File, Tab B.1
2. Upon receipt of the cartridge, the Appellant discovered that
one of the fonts used for the text of the publication was not
included on the cartridge. The Appellant, without discussing the
matter with GPO, substituted a font it already had installed on
its system. Stipulation of Facts,2 ¶¶ 4, 5.
3. As required by the specifications, the Appellant furnished a
set of blueline proofs. The proofs were approved with certain
noted corrections attributable to contractor error. Rule 4 File,
Tab D. The Appellant printed the pamphlets in accordance with
the approved proofs.
4. After delivery of the pamphlets, CDC discovered two errors
in the text: on pages 15 and 18, where the text was supposed to
read "1/4 cup of bleach," the letter "G" appeared in place of the
fraction. Those errors appeared in the blueline proofs, but had
not been marked for correction. Stipulation, ¶ 8.
5. The Contracting Officer directed the Appellant to reprint
the pamphlets, and the Appellant did so. The Appellant
subsequently filed this appeal, seeking reimbursement for its
reprinting costs.
II. DISCUSSION3
The Appellant asserts that it is not responsible for the error
because it was given an "OK to print" after the Government
reviewed the proofs and noted the corrections it wanted made.
According to the Appellant, the Government assumed the
responsibility for any errors in the pamphlets once it approved
the proofs and authorized printing based on them. The Respondent
takes the opposite position, arguing that it should not be held
responsible here because the Appellant unilaterally substituted a
font different from the one that should have been on the SyQuest
cartridge4 and never brought that fact to the Government's
attention, and because blueline proofs are used to review
positioning, layout, and bleeds, but not for proofreading the
text.
Thus, this appeal presents a single issue: Does the Government's
approval of the furnished proofs under the circumstances here
insulate the Appellant from responsibility for furnishing
defective pamphlets when those pamphlets "exactly matched"
(Stipulation of Facts, ¶ 10) the approved proof?
As the Board has recently noted, the approval of proofs and the
ensuing "OK to print" authorization play a crucial role in the
performance of contracts for printing services. IPI Graphics,
GPOBCA 04-96 (April 9, 1998), slip op. at 6, 1998 WL ______.
Under GPO's contract language, without that approval and
authorization a contractor is not free to proceed with the final
printing job. Id. at 5. (The Appellant's contract, in the
specification section captioned "PROOFS", states that "Contractor
must not print prior to receiving an 'OK' to print.") GPO
imposes this requirement because it reserves the right to make
changes to its requirements after it receives proofs, see The
George Marr Co., GPOBCA 31-94 (April 23, 1996), slip op. at
48-51, 1996 WL 273662; McDonald & Eudy Printers, Inc., GPOBCA
25-92 (April 11, 1994), slip op. at 23, 1994 WL 275093, and
because it uses the "OK to print" on a proof as a quality
assurance device to "set 'the standard by which the quality of
performance will be measured.'" Fry Communications, Inc., GPOBCA
30-94 (March 30, 1998), slip op. at 5, 1998 WL ______ (quoting
The George Marr Co., supra, at 45).
The Board's prior decisions make eminently clear that a
contractor printing in advance of proof approval and receiving
the required "OK to print" must bear the consequences of so
proceeding. See IPI Graphics, supra, at 6; Fry Communications,
Inc., supra, at 9; Swanson Printing Co., GPOBCA 27-94, 27A-94
(November 18, 1996), slip op. at 25, 1996 WL 812958; The George
Marr Co., supra, at 54; McDonald & Eudy Printers, Inc., supra, at
21-22; Serigraphic Arts, Inc., GPOCAB5 22-79 (May 8, 1980), slip
op. at 7-8, 1980 WL 81264. This is so not only when there is a
contractor production error but also when the error is the
Government's (see McDonald & Eudy Printers, Inc., supra
(incorrect camera copy furnished to the contractor) or when the
Government simply changes its mind about what it wants. See IPI
Graphics, supra (agency revised how it wanted lines in a graph to
appear) and Serigraphic Arts, Inc., supra (agency changed its
color requirements after receiving proofs). The consequences in
such cases may be an order to reprint rejected work or otherwise
correct the work at the contractor's expense, see IPI Graphics,
supra, and McDonald & Eudy Printers, Inc., supra, a contract
price reduction, see Fry Communications, Inc., supra, or not
getting paid at all for the unauthorized work. See Swanson
Printing Co., supra. Thus, there is no question that GPO's
printing contracts clearly place the risk of proceeding
prematurely squarely on the contractor.
In the typical case, the risk initially placed on the contractor
will shift once proofs are approved and an "OK to print"
authorization is issued. Since the "OK to print" authorizes the
contractor to proceed in accordance with the approved proofs, it
is the Government, and not the contractor, that necessarily will
bear the risk of an error in the proofs. Thus, if the
Government, after authorizing the contractor to proceed,
discovers an error in the approved proofs or changes its mind
about what it wants, the Government cannot refuse to pay for what
the contractor produced and will have to reimburse the contractor
for any reprint or other corrective action ordered.
Not every case, however, is the typical case. In some situations
the facts and circumstances do not permit the conclusion that the
risk has shifted to the Government notwithstanding that there has
been a proof or pre-production approval and an authorization to
proceed. For example, in Graphic Litho, GPOBCA 21-84 (February
4, 1985), slip op., 1985 WL 154850, there was a press sheet
inspection followed by an "OK to print." GPO subsequently found
the paper on which the finished product was printed to be
inconsistent with specifications and assessed a price reduction.
In holding that GPO was not precluded from taking that action,
the Board held that the function and authority of the press sheet
inspector was limited to making a visual inspection and did not
extend to determining compliance with detailed contract
specifications and with the acceptability of the paper stock. In
Fry Communications, Inc., supra, the contractor was given
blueline proof approval but the Board held that the appellant
could not consider that approval to be the equivalent of an "OK
to print" because the appellant had not furnished another
required proof ( a cromalin or equal) needed to assess color. In
IPI Graphics, supra, a case with some similarities to the present
appeal, CDC again was the customer agency, again the copy
furnished was on a SyQuest cartridge, and again something was
missing from the cartridge. There the similarities end-upon
examining the blueline proofs, CDC discovered the error (missing
graphics for page 9) and directed the contractor to fix the
problem based on a furnished "dummy." Using a proof report form,
CDC directed the contractor to "[r]evise as indicated and
proceed" but also to "fax a copy of page 9, for proofing only
with graphics." The contractor then corrected page 9, faxed a
copy of the corrected page as instructed, and printed the job.
CDC subsequently decided that it wanted the graph lines to be
vertical instead of horizontal as they were on the "dummy." The
Board held that the contractor was responsible for reprinting
with corrected graphics because the "revise ... and proceed"
language, while normally an "OK to print" authorization, in this
case was subject to the further requirement of submitting a
proof, by fax, of page 9 and obtaining approval of that proof
before printing.
The Appellant argues that it has "long been standard practice in
both the printing industry and at the GPO to charge the customer,
as the reviewer of the final proof, with the failure to correct
errors." While the Appellant's position may reflect the general
rule, as the cases discussed above establish, not every aspect of
a printing job is encompassed by a proof or pre-production
approval, and not every proof approval can be considered an
authorization to proceed. In other words, the cases indicate
that there is no absolute rule and that whether proof approval
and an "OK to print" will shield a contractor from the
consequences of producing a defective product will depend on the
facts and circumstances of each case.
The starting point for any discussion of the facts and
circumstances here is the contract itself, as it is the contract
that establishes the respective rights and obligations of the
Appellant and the Respondent. As indicated above, the "Proofs"
section of the specifications requires the Respondent to provide
the specified proof (bluelines in this case) to the Government
and to await an "OK to print." This clearly places the
responsibility for printing in advance of proof approval and the
"OK to print" on the Contractor. Implicit in that clause is
that once the "OK to print" is given the Contractor is free to
proceed and the Government generally will be responsible for
errors discovered and changes made after printing has begun.
Thus, while the contract places a significant initial risk on the
Contractor, the contract also envisions that the risk will shift
to the Government during the course of performance. This
shifting allocation of risk recognizes both the Government's
interest in ensuring that it receives what it wants and the
Contractor's need for a final indicator of what it is expected to
produce and of the quality standard to which it will be held.
Given the purpose of proof approval and issuance of "OK to print"
authorizations-ensuring compliance with contract specifications
and appropriate quality levels-the initial risk placed on the
contractor is obviously intended to shift to the Government when
the Government makes a knowing judgment regarding the
acceptability of the proofs. In other words, where the
Government knows or should know of aspects of the job that should
be checked or verified and this can be done by examining the
proofs, the Government's obligation is to take those aspects into
account when reviewing proofs, and whether it does so or not, its
approval of the proofs will operate to shift the risk to the
Government if a problem with any of those aspects is subsequently
discovered. On the other hand, where the Government has no
reason to know of the need to review a particular aspect of the
job and the Government would not be expected to discover any
problem concerning that aspect during its routine examination of
the proofs, the Government's approval of the proofs cannot fairly
and reasonably be regarded as knowing approval of what the
contractor did. Under those
circumstances, in the Board's view, the contract does not
envision that proof approval will shift the risk to the
Government if there is a later problem concerning that job
aspect.
The dispute here centers around what is commonly viewed as a
typographical error. Under GPO's modern printing contracts,
typesetting frequently is not a requirement6-as the Appellant
points out, the copy is furnished to the contractor in camera
ready form or in the form of negatives or electronic media.
Thus, the Government has no reason to proofread for typographical
errors when the contractor returns proofs-that proofing
presumably is done before the copy is furnished to the
contractor. (The Contracting Officer states that here CDC did
proof the copy before loading the data onto the SyQuest
cartridge.) Because the Government does not envision proofing
for typographical errors, the proofs it requires are instead used
for other purposes.7 As the Respondent explains in this case,
blueline proofs are used to review positioning, layout, and
bleeds. See Fry Communications, Inc., supra, at 7, and The GATF
Encyclopedia of Graphic Communications 89 (bluelines are used to
evaluate pagination and location of page elements, such as text,
photos, and other illustrations). Bluelines, says the Respondent,
are simply not intended to detect the error that was made here.
While that may be so, the issue cannot be resolved simply by
looking at the purpose of blueline proofs. For example, in a
situation where, unknown to both the Government and the
contractor, the camera ready copy, negatives, or electronic media
furnished by the Government contain typographical errors which
remain undetected after review of blueline proofs, the ultimate
responsibility for those errors in the final product would remain
with the Government as the contractor, not knowing of the errors
(and with no obligation to detect a typographical error in the
furnished data that the Government was supposed to have found and
corrected before ever providing the data to the contractor) and
having waited for an "OK to print" before proceeding, would have
done all it was required to do under the contract. Thus, in that
circumstance, and even though the Government was unaware of the
error, the fact that the Government does not use bluelines to
find typographical errors would not absolve the Government of the
ultimate responsibility for the error.
In other circumstances, however, such as where a contractor,
under a contract where the Government furnishes all copy in
electronic or other form and no typesetting is required, takes it
upon itself to change the copy, either to correct an error it
discovers or for some other reason, the answer necessarily will
be different. The Government, not anticipating a copy change,
would have no reason to review the bluelines to try to determine
the acceptability of the copy change unless the contractor
notifies the Government that a change has been made. In the
absence of that notification, the Government's approval of the
bluelines would extend to the matters normally considered during
blueline review, but obviously would not reflect a knowing
approval of the copy change.
That is the situation here. The Government furnished the copy
for the pamphlets in electronic form, on a SyQuest cartridge; no
typesetting was required. The Appellant detected an error-a
missing font-in what was furnished to it. The Appellant then
substituted its own font for what was missing. In so doing,
however, it remained silent, failing to advise the Government of
the error or of the action taken to correct it. The Government
therefore did not know and had no reason to know that the copy
might have changed. By remaining silent, the Appellant deprived
the Government of the opportunity to verify that what the
Appellant did was acceptable-while bluelines may not
normally be used for reviewing lines of type, had the Government
been placed on notice of what had occurred it could have used the
blueline proofs to review what the Appellant had done.8
Moreover, the Appellant had a separate and distinct contractual
obligation to notify the Respondent when it discovered the error
on the SyQuest cartridge. The contract's "Government Furnished
Property (GFM)" clause, GPO Contract Terms, Solicitation
Provisions, Supplemental Specifications, and Contract Clauses,
GPO Pub. 310-2 (Rev. 9-88), Contract Clauses, ¶ 7, requires the
contractor to examine the GFM and notify the Respondent, prior to
performing any work, if there are defects or other problems. See
Braceland Brothers, Inc., GPOBCA 01-93 (August 8, 1997), slip op.
at 28, 1997 WL 772400, and cases cited therein. The Appellant
gave no such notice to the Respondent.
Under the circumstances, the Board holds that the approval of the
blueline proofs in this case did not transfer to the Government
the risk of defects in the final product attributable to the
Appellant's substitution of its own font before producing the
pamphlets. Accordingly, the Contracting Officer's final decision
is AFFIRMED and the appeal is DENIED.
It is so ordered.
July 6, 1998 Ronald Berger
Ad Hoc Chairman
GPO Board of Contract Appeals
_______________
1 The Contracting Officer's appeal file, assembled pursuant to
Rule 4 of the Board's Rules of Practice and Procedure, was
delivered to the Board on April 26, 1996. It is referred to as
the Rule 4 File, with an appropriate Tab letter also indicated.
The Rule 4 File consists of 13 tabs identified as Tab A through
Tab M.
2 The parties entered into a joint Stipulation of Facts
(hereafter Stipulation).
3This decision is based on the Complaint, the Answer, the Rule 4
File, the Appellant's Brief, and the Respondent's Reply Brief
with accompanying Declarations of the Contracting Officer and of
GPO Digital Information Specialist Scott A. Stovall.
4 Mr. Stovall in his Declaration describes the cartridge as "a
high capacity floppy disk in a cartridge designed by the
manufacturer to run on their proprietary external drive."
5 Prior to the creation of the Board in 1984, ad hoc panels heard
and decided disputes between GPO and its contractors. The Board
cites the decisions of these ad hoc panels as GPOCAB. See Rose
Printing Inc., GPOBCA 32-95 (December 16, 1996), slip op. at 27,
n.28, 1996 WL 812880.
6 For a contract where some typesetting was required, see
Qualitype, Inc., GPOBCA 21-95 (April 21, 1998), slip. op., 1998
WL ______, recon. denied, June 24, 1998, 1998 WL ______.
7 The Respondent in its brief explains that if this had been a
typesetting contract and the Government wanted to review output
for typographical errors it would have required galley proofs.
8 Alternatively, had the Appellant notified the Respondent of
the missing font before the Appellant took any other action, the
Government may have simply provided a replacement cartridge.