U.S. GOVERNMENT PRINTING OFFICE BOARD OF CONTRACT APPEALS WASHINGTON, D.C. 20401 In the Matter of ) ) The Appeal of ) ) MCDONALD & EUDY PRINTERS, INC. ) Docket No. GPO BCA 06-91 Program 814-M ) Purchase Order 73022 ) Print Order 20336 ) DECISION AND ORDER By letter dated October 9, 1990, McDonald & Eudy Printers, Inc. (Appellant or Contractor), 4509 Beech Road, Temple Hills, Maryland 20748, filed a timely appeal from the September 12, 1990, final decision of Contracting Officer James R. White, of the U.S. Government Printing Office's (Respondent or GPO or Government) Printing Procurement Department, Washington, DC 20401, rejecting the publications delivered under its contract identified as Program 814-M, Purchase Order 73022, Print Order 20336, because they did not meet the standards for a Quality Level III job (R4 File, Tab L).1 Remarking in his final decision that even if the products had been accepted initially, the Government would have asked for a reprinting of the cover and two text pages, in order to correct a mistake in the specified ink color for the cover and an error in the Government-furnished material, the Contracting Officer offered to pay the Contractor $1,823.93 for that work (R4 File, Tab L). For the reasons which follow, the decision of the Contracting Officer is hereby AFFIRMED, and the claim is ALLOWED to the extent of $1,823.93. In all other respects, the appeal is DENIED.2 I. FINDINGS OF FACT 1. On December 5, 1989, the Respondent solicited bids for a multiple-award "requirements" contract, covering the period from February 1, 1990 through January 31, 1991, to produce and distribute three categories of various self and separate cover books and pamphlets, as requisitioned from GPO by other Government departments and agencies (R4 File, Tab A, pp. 1, 7). 2. Among other specifications, the Invitation for Bids (IFB) contained the following provisions, in pertinent part: SECTION 1-GENERAL TERMS AND CONDITIONS Any contract which results from this [IFB] will be subject to the applicable articles of GPO Contract Terms (Pub. 310.2, effective December 1, 1987, Revised 9-88) [hereinafter GPO Contract Terms], and Quality Assurance Through Attributes Program, Revised September 1986 (GPO Pub. 310.1) [hereinafter QATAP]. * * * * * * * * * * QUALITY ASSURANCE LEVELS AND STANDARDS: The following levels and standards shall apply to these specifications: Approx. Approx. Product Quality 45% Total 55% Total Levels: Orders Orders (a) Printing (Page Related) Attributes Level III Level IV (b) Finishing Attributes Level III Level IV Inspection Levels (from MIL-STD-105): (a) Non-destructive Tests-General Inspection Level I. (b) Destructive Tests-Special Inspection Level S-2. * * * * * * * * * * ORDERING: Items to be furnished under this contract shall be ordered by the issuance of print orders by the Government. . . . All print orders issued hereunder are subject to the terms and conditions of this contract. This contract shall control in the event of conflict with any print order. * * * * * * * * * * SECTION 2-SPECIFICATIONS SCOPE: These specifications cover the production of various self and separate cover books and pamphlets requiring such operations as film making, printing, binding, packing, and distribution. * * * * * * * * * * TRIM SIZES: Various trim sizes will be ordered and paid for in their respective "Format" classification as follows: Format "A" will include any trim size up to an including 5-1/2" x 8-1/2" (including album style) or a maximum unit size of 46.75 square inches. Format "B" will include any trim size over 5-1/2" x 8-1/2 up to and including 8-1/4 x 10-3/4" (including album style) or a maximum unit size of 89 square inches. Format "C" will include any trim size over 8-1/4 x 10-3/4" up to and including 8-1/2 x 11" (including album style) or a maximum unit size of 94 square inches. * * * * * * * * * * PRINTING: The major portion of the work ordered under this contract will print in black ink. However, an occasional order may require printing in color or colors other than, or in addition to black, on text, covers, and/or fold-ins. Process printing will not be required. An occasional order may require coating (after printing) the entire surface of cover pages 1 and 4 or all four covers with varnish or lacquer to prevent scratching or smearing. Match Pantone number as indicated on the print order. * * * * * * * * * * DEPARTMENTAL RANDOM COPIES (BLUE LABEL): All orders must be divided into equal sublots in accordance with the chart below. A random sample must be selected from each sublot. Do not choose copies from the same general area in each sublot. . . . . These randomly selected samples must be packed separately and must be identified by a special [G] overnment-furnished blue label, which is to be affixed to each affected container. . . . The random inspection samples constitute part of the total quantity ordered, and no additional charge will be allowed. Books Quantity Number of Ordered Sublots 500-3,200 13 3,201-10,000 20 10,001-35,000 32 35,001 and over 50 These randomly selected copies must be packed separately and identified by a special government-furnished blue label affixed to each affected container. The container and its contents shall be recorded separately on all shipping documents and sent in accordance with the distribution list. * * * * * * * * * * QUALITY ASSURANCE RANDOM COPIES: In addition to the Departmental Random Copies (Blue Label), the contractor may be required to submit quality assurance random copies to test for compliance against the specifications. The print order will indicate the number of samples required, if any. When ordered, the contractor must divide the entire order lot into equal sublots and select a copy from a different general area of each sublot. The contractor will be required to execute a statement furnished by GPO certifying that copies were selected as directed. Copies will be paid for at the running rate quoted in the contractor's bid and their cost will not be a consideration for award. See, R4 File, Tab A, pp. 2, 4, 7, 8, 11, 14, and 15. 3. The Appellant submitted an offer of $200,000.00, and was determined to be one of the successful low bidders. Thereafter, on February 1, 1990, the Respondent issued Purchase Order 73022 to the Contractor entitling it to receive work under this multiple-award "requirements" contract (R4 File, Tab B). 4. On May 18, 1990, GPO, on its own behalf, issued Print Order 20336, dated May 11, 1990, to the Appellant for the production of 7,550 copies of QATAP (R4 File, Tab C). Among other things, the Print Order specified that QATAP was a 76-page publication, with a Format "C" trim size; i.e., 8-1/2" x 11" (R4 File, Tab C). The Appellant was expected to produce a QATAP meeting Quality Level III standards, and deliver it to GPO by June 1, 1990. As for the printing instructions, the Contractor was told: Cover 1 Prints Reverse of PMS 4 Cool Gray Bleeding 3 Sides Plus PMS 285 Blue. Close Registration. Cover 4 Prints 100% Solid PMS 4 Cool Gray. Dull Varnish Covers 1 & 4 After Printing. [Original emphasis.] 5. Thereafter, on May 21, 1990, the Respondent gave the Appellant an amended Print Order 20336, dated May 11, 1990 (R4 File, Tab D). The only change was in the number of copies ordered; i.e., GPO increased its order by 10,000 copies, so that now a total of 17,550 copies of QATAP was to be delivered by the Contractor (R4 File, Tab D). However, GPO still wanted the initial quantity (7,550 copies) delivered by June 1, 1990, although the additional copies could be shipped by June 15, 1990 (R4 File, Tab E). 6. The Appellant shipped 7,550 copies of QATAP in accordance with the contract schedule. However, when GPO inspected 20 random samples from that first shipment on June 6, 1990, it discovered that the publication itself did not conform to QATAP standards (R4 File, Tab F).3 Specifically, the samples tested disclosed finishing attribute problems with respect to trim size (F-1) and missing pages (F-12) (R4 File, Tab F). Based this examination of the samples, GPO assessed 20 major defects-one (1) major defect for each sample copy-under QATAP for the trim size problem, and 3 critical defects for the missing pages (R4 File, Tab F). 7. By letter dated June 7, 1990, the Respondent informed the Appellant of the inspection results, and told the Contractor that the order was being rejected because of the two quality assurance problems (R4 File, Tab G). Furthermore, the Appellant was instructed to reprint the order "at no additional cost to the Government in strict accordance with the specifications." (R4 File, Tab G). However, the Appellant was asked to make the following changes, which were unrelated to the defects found, in reprinting the publication: The product will be printed in PMS-8 Cool Gray instead of PMS-4 Cool Gray. Page 3, Table of Contents, last line (Appendix C-Problem Index) will be corrected to read page 51 instead of 50.4 (R4 File, Tab G). 8. Following receipt of the Respondent's instructions, the Appellant made the required changes and delivered the reprinted publication (R4 File, Tab I). Thereafter, by letter dated June 27, 1990, the Appellant formally objected to GPO's rejection of the initial shipment, stating in pertinent part: . . . [W]ith regard to the above print order which revealed defects under the following attributes: F-1: Trim Size F-12: Missing Pages 1. F-1: Trim size is the fault of Bindery Personnel at McDonald & Eudy who failed to maintain 8-1/2 x 11 trim size per specifications. 2. F-12: Missing pages is the fault of Bindery Personnel at McDonald & Eudy who failed in the loss of a 4-page signature while gathering and stitching. Extenuating circumstances which McDonald & Eudy feels should be taken into consideration by G.P.O. are: 1. Quality Control Samples were taken from the original order for 7,550, and not from the entire 17,500 which were requested at a later date. . . . 2. All copies of the product were retrieved by McDonald & Eudy in order for Quality Control Personnel to examine for [the] defects listed above. Examination and random sampling of the entire quantity by Quality Control Personnel at McDonald & Eudy resulted in the following determinations: A. (F-1: Trim Size): All books appear to be under- trimmed 1/8" under specifications. B. (F-12: Missing Pages): All books examined did not reflect missing pages.5 3. McDonald & Eudy strongly feels that the order should not be determined rejectionable, and is a usable product. Further, McDonald & Eudy feels the GUIDE FOR EQUITABLE REDUCTIONS should be taken into consideration and is willing to negotiate a fair and equitable reduction. 4. Regarding reprinting the product with changes to the original specifications . . . McDonald & Eudy feels that these changes made by G.P.O. are determining factors which resulted in the rejection and reprinting of the entire product.6 R4 File, Tab H, pp. 1-2. [Emphasis added.] 9. The record also discloses that the Appellant telephoned the Respondent about this matter before reprinting QATAP (R4 File, Tab I). Apparently, the main purpose for the Contractor's call was to register its complaint that the 20 samples inspected were not randomly selected, and were only drawn from the first shipment of 7,550 copies (R4 File, Tab I). Therefore, on July 27, 1990, the Appellant selected another random sample of 32 copies and sent them to GPO for examination (R4 File, Tab I).7 Of those 32 samples, 20 were found to be under-trimmed by more than 1/8" and rejectable (R4 File, Tabs I and J).8 Consequently, GPO once again assessed 20 major defects for the trim size problem (R4 File, Tab J). 10. On August 30, 1990, the Contracting Officer telephoned the Appellant and informed it of the results of the second inspection (R4 File, Tab K). He also instructed the Contractor to destroy the rejected publications (R4 File, Tab K). During this telephone conversation, the Appellant again stated that it had shipped a usable product (R4 File, Tab K). While the Contracting Officer did not agree, he offered to settle the matter by paying the Contractor $1,823.93 for reprinting the cover and two text pages of the rejected order (R4 File, Tab K). The Appellant rejected this settlement proposal (R4 File, Tab K). 11. Accordingly, at the request of the Appellant, the Contracting Officer issued a final decision on September 11, 1990, affirming his rejection of the first delivery of QATAPs because of the trim size problem, disallowing the claim for reimbursement, and renewing his offer to settle the dispute for $1,823.93 (R4 File, Tab L). Addressing the Appellant's belief that rejection was not warranted because the publications were still usable, the Contracting Officer stated, in pertinent part: An examination of thirty-two (32) samples randomly selected by your company from the total order quantity of 17,550 pamphlets revealed that twenty (20) copies did not meet the specified dimensions including all allowable tolerances for Acceptable Quality Level III. In the aforementioned letter, you stated that an independent examination of samples by employees of your firm confirmed this finding. Since the products did not meet the minimum dimension requirements, your exception to the rejection is denied. All rejected copies may be disposed of at your discretion. See, R4 File, Tab L, p. 1. 12. Thereafter, by Notice of Appeal dated October 9, 1990, the Contractor appealed the Contracting Officer's final decision to the Board. II. ISSUES PRESENTED This appeal presents two issues for the Board's consideration: 1. Did the Government erroneously reject the first printing of QATAPs because of defects it discovered during its inspection of random samples of the publication, thus entitling the Appellant to payment for that delivery? Or, stated otherwise did the Contractor deliver a usable product which substantially complied with the trim specifications for QATAP so that the Contracting Officer's rejection of the shipment amounted to an abuse of his discretion? 2. Did the Contracting Officer act in bad faith when he rejected the first shipment of QATAPs and insisted on a reprinting of the entire publication, rather than negotiate an appropriate reduced price with the Appellant and accept the delivery? III. POSITIONS OF THE PARTIES9 Although the Appellant made the changes required by the Respondent and delivered an acceptable reprinted publication, it takes exception to the rejection of the initial shipment on the ground that those copies of QATAP "substantially conformed" to the original contract specifications. RPC, pp. 3, 5. The Appellant contends that the trim size of the rejected books "appear to be" within tolerances for Quality Level III work, but even so any difference with the required trim size is only slightly greater than the allowable deviation. Complaint, ¶¶ 6, 7; RPC, p. 5. In the Contractor's view, the discrepancy is so minor that total rejection of the original shipment was unjustified. Id. Moreover, the Appellant says that despite this defect, the publication was still "usable" and should have been accepted by GPO, at a suitable discount. RPC, pp. 3, 5. Indeed, the Contractor asserts that any other agency but GPO would have accepted the publication under those conditions. RPC, p. 5. Finally, the Appellant believes that the real reason the Respondent rejected the initial shipment was its wish to avoid additional costs for correcting the color and text errors in the original specifications, and not because of the minor defects found by GPO when samples of the QATAPs were inspected. Complaint, ¶¶ 8, 9; RPC, pp. 3-4. Accordingly, the Contractor asks the Board to allow its claim for $11,137.98 for the rejected publications. Complaint, Prayer for Relief; RPC, p. 4. The Respondent, on the other hand, argues that the defects disclosed by the inspection of the initial shipment of QATAPs entitled the Contracting Officer to reject publications and have the entire order reprinted. RPC, p. 4 (citing, GPO Contract Terms, Contract Clauses, ¶ 14(f) (Inspections and Tests)). Consequently, contrary to the Appellant, GPO contends that the Government cannot be compelled to pay for and accept the rejected QATAPs under any circumstances. RPC, pp. 4-5; R. Brf., p. 3. The Respondent relies on the "black letter" principle of public contract law which states that the Government is entitled to enforce strict compliance with its specifications.10 R.Brf., p. 3 (citing, Jefferson Construction Company v. United States, 151 Ct.Cl. 75 (1960); Red Circle Corporation v. United States, 185 Ct.Cl. 1, 8 (1968); American Electric Contracting Corporation v. United States, 579 F.2d 602 (Ct.Cl. 1978); Dependable Printing, Inc., GPO BCA 5-84 (1985)). As the Respondent notes, the "strict compliance" doctrine has been applied in numerous cases by the Board and its predecessor ad hoc panels.11 R.Brf., p. 4 (citing, Copigraph, Inc., GPO BCA 20-86; Fry Communications, Inc., GPO BCA 1-87; Vogard Printing Corporation, GPOCAB 7-84). Under this rule, the procuring agency has complete discretion to reject nonconforming supplies or accept them at a discount. Id. (citing, Famous Model Company, Inc., ASBCA No. 12525, 68-1 BCA ¶ 6,902). This means that the agency cannot be compelled to accept nonconforming supplies at a discount, even if the discrepancies are relatively minor or the defective articles perform as specified. Id. (citing, Herley Industries, Inc., ASBCA Nos. 15378, 15840, 72-2 BCA ¶ 9,749, mot. for reconsid. denied, 73-1 BCA ¶ 9,922; Cherry Meat Packers, Inc., ASBCA No. 8974, 1963 BCA ¶ 3,937; Arrow Lacquer Corporation, ASBCA No. 4667, 58-2 BCA ¶ 2003). The Respondent believes that not only was the Contracting Officer allowed to reject the nonconforming QATAPs in this case, but since the book in question is the "bible" of GPO's quality assurance program, he was right to do so because a less than perfect Quality Level III job would have proved embarrassing to the agency. R. Brf., pp. 4-5. Finally, the Respondent argues that the Appellant's assertion that GPO rejected the first delivery of QATAPs in order to make corrections at no cost to the Government, really accuses the Contracting Officer of acting in bad faith. R. Brf., p. 5. GPO observes that in order to support this allegation, the Appellant must prove that the Contracting Officer specifically intended to injure the Contractor. Id. (citing, American General Leasing v. United States, 218 Ct.Cl. 367, 374-75, 587 F.2d 54, 59 (1979); Kalvar Corporation, Inc. v. United States, 211 Ct.Cl. 192, 199, 543 F.2d 1298, 1302 (1976); Librach v. United States, 147 Ct.Cl. 605, 612-14 (1959)). In that regard, the law presumes that public officials act conscientiously and in good faith in the discharge of their duties.12 Id. (citing, Contract Custom Drapery Service v. United States, 6 Cl.Ct. 811,817 (1984)). It takes "well-nigh irrefragable" proof of bad faith to overcome that presumption.13 Id. (citing, Union Pacific Railroad Company v. United States, 847 F.2d 1567, 1571 (Fed. Cir. 1988); Sanders v. United States, 801 F.2d 1328, 1331 (Fed. Cir. 1986); American General Leasing v. United States, supra, 218 Ct.Cl. at 374). The Respondent contends that no such evidence exists in this case. R. Brf., pp. 5-6. Accordingly, for all of these reasons, the Respondent urges the Board to affirm the final decision. R. Brf., p. 6. IV. CONCLUSIONS14 The two questions presented in this appeal are not unique or novel in the annals of the Board. The Board and the former ad hoc panels have considered the same or similar issues in numerous cases in the past; indeed, QATAP questions are among the most common issues presented to the Board for resolution. As a consequence, the principal issue in this case could be decided on the basis of GPO precedent alone. Having thoroughly examined those prior decisions, and consistent with them, the Board makes the following findings of fact and conclusions of law: A. The Respondent wanted and ordered copies of QATAP with a specified trim size. The Appellant admits that all of the books in the initial shipment were under-trimmed by 1/8". Therefore, the Respondent had a contract right to reject the first printing of QATAP, and have the publication reprinted at no cost to the Government. Whether or not the initial product was usable because the under-trim was minor, as contended by the Contractor, is irrelevant. The first issue presented by this appeal is whether or not the Appellant ought to bear the costs of reprinting and redelivery of a printed product produced by it after rejection of the original product for failure to meet specifications because it was under-trimmed.15 Cf., French/Bray, Inc., GPO BCA 18-85 (October 23, 1986), Sl. op. at 10. The answer to that question can be found in the relevant provisions of GPO Contract Terms and QATAP, or in other words, in the very terms and conditions of the contract itself. First, GPO Contract Terms provides, in pertinent part: 14. Inspection and Tests. * * * * * * * * * * (b) The contractor shall provide and maintain an inspection system acceptable to the GPO covering supplies under the contract and shall tender to the Government for acceptance only supplies that have been inspected in accordance with the inspection system and have been found by the contractor to be in conformity with contract requirements. . . .16 (c) The Government has the right to inspect and test all supplies called for, to the extent practicable, at all places and times, including the period of manufacture, and in any event before acceptance. The Government shall perform inspections and tests in a manner that will not unduly delay performance and assumes no contractual obligation to perform any inspection and test for the benefit of the contractor unless specifically set forth elsewhere. * * * * * * * * * * (f) The Government has the right either to reject or to require correction of nonconforming supplies. Supplies are nonconforming when they are defective in material or workmanship or are otherwise not in conformity with requirements. The Government may reject nonconforming supplies with or without disposition instructions. * * * * * * * * * * (j) The Government shall accept or reject supplies as promptly as practicable after delivery, unless otherwise provided. Government failure to inspect and accept or reject the supplies shall not relieve the contractor from responsibility, nor impose liability on the Government, for nonconforming supplies. (k) Inspections and tests by the Government do not relieve the contractor of responsibility for defects or other failures to meet requirements before acceptance. GPO Contract Terms, Contract Clauses, ¶ 14 (Inspection and Tests). [Emphasis added.] For all intents and purposes, the above-quoted language forms part of the standard inspection clause found in most Government contracts. Cf., Mid-American Business Forms Corporation, GPO BCA 8-87 (December 30, 1988), Sl. op. at 18. As the Board has indicated on numerous occasions, such clauses are premised on the fundamental rule that the Government is entitled to strictly enforce compliance with its specifications. See, e.g., Shepard (1993), supra, Sl. Op. at 19-20 (citing, Mega Construction Company, Inc. v. United States, 25 Cl.Ct. 735, 741 (1992); Wholesale Tire and Supply Company, Ltd., ASBCA No. 42502, 92-2 BCA ¶ 24,960); Stephenson, Inc., supra, Sl. op. at 20-21 (citing, Rose Printing Company, GPO BCA 2-87 (June 9, 1989), Sl. op. at 6; Fry Communications, Inc., supra, Sl. op. at 5; Mid-American Business Forms Corporation, supra, Sl. op. at 18-19); Copigraph, Inc., supra, Sl. op. at 2 (citing, S.S. Silberblatt, Inc. v. United States, 193 Ct.Cl. 269, 433 F.2d 1314 (1970)); Land & Land Printers, Inc., GPO BCA 5-86 (July 22, 1988), Sl. op. at 7. The principles of law which apply in this case, enunciated by the Board, in detail, in Automated Datatron, where it said, in pertinent part: 1. The Government is generally entitled to require strict compliance with its contract specifications, including those of fixed-price supply contracts, Jefferson Construction Co. v. United States, 151 Ct.Cl. 75 (1960); Red Circle Corporation v. United States, 185 Ct.Cl. 1, 8 (1968); American Electric Contracting Corp. v. United States, 579 F.2d 602, 608 (Ct.Cl. 1978); Dependable Printing Company, Inc., GPO BCA 5-84 (1985), and can enforce this right at any time prior to final acceptance, Maizel Laboratories, Inc., ASBCA [No.] 8597, 1963 BCA ¶ 3898, stated at 19,351. Strict compliance is especially appropriate where the specifications are clear, unambiguous, and objectively ascertainable by the contractor, Herley Industries, Inc., [ASBCA Nos. 15378, 15840], 72-2 BCA ¶ 9,749, mot. for reconsid. denied, 73-1 BCA ¶ 9,922; Arrow Lacquer Corporation, [ASBCA No. 4667], 58-2 BCA ¶ 2,002. . . . Specifications are designed to elicit and define the essential qualities necessary in the procurement of a product. Strict compliance or conformance with specifications or contract requirements means that the Government has a right to get exactly what it asked for in the solicitation for contractual performance. Nichols & Co. v. United States, 156 Ct.Cl. 358 (1962), cert denied, 371 U.S. 959 (1963); Rohr Industries, Inc., [ENGBCA No. 4058], 82-1 BCA ¶ 15,732. Thus, a contractor must comply with the Government's requirements and cannot substitute its views for those of the Government, Maxwell Dynomometer Co. v. United States, 386 F.2d 855 (Ct.Cl. 1967), even if the substitution would result in a superior product. Nichols & Co. v. United States, supra. Likewise, a contractor's view that a particular specification's high tolerance was not needed is irrelevant, even if the view is proven correct and the specification in question is found to add nothing to the value of the product involved. Gramercy Machine Corp. v. United States, 228 Ct.Cl. 825 (1981), [affirming] 74-1 BCA ¶ 10,611. 2. Inspection is the Government's primary means of ensuring that it receives what it bargained for. 2 B. Nash & J. Cibinic, Federal Procurement Law, 1552 (1980). However, inspection is not meant to replace the contractor's required quality controls. [Footnote omitted.] The right to inspect is clearly for the benefit of the Government and creates no Government duty to inspect. Kaminer Construction Corp. v. United States, 488 F.2d 980 (Ct.Cl. 1973); Penguin Industries, Inc. v. United States, 530 F.2d 934 (Ct.Cl. 1976). [Footnote omitted.] . . . 3. Strict compliance can be enforced either by rejecting the defective product or, if for reasons of economy or urgency acceptance [it] is in the Government's best interest, by requiring a price reduction for nonconforming work. The Government is not required to accept nonconforming supplies, and the right to refuse the product is the prerogative of the procuring agency. Famous Model Co., ASBCA No. 12526, 68-1 BCA ¶ 6,902. Therefore, a contractor has no contractual right to force the Government to accept defective products at a reduced price, even if the defects are relatively minor, Cherry Meat Packers, Inc., ASBCA No. 8974, 1963 BCA ¶ 3,937, notwithstanding the fact that on occasion a Board of Contract Appeals might hold, as a matter of its delegated administrative discretion was too minor to warrant spending significant additional funds by the Government for its correction. Bruce-Anderson Co., Inc., [ASBCA Nos. 28125, 28126, 28127, 83-2 BCA ¶ [16,892] at 84,057. See also John McShain, Inc. v. United States, 412 F.2d 1281 (Ct.Cl. 1969). Automated Datatron, Inc., supra, Sl. op. at 2-5. The sine qua non of "strict compliance" is a finding by, the Contracting Officer that the delivered product does not conform to the specifications.17 See, Dependable Printing Company, supra, Sl. op. at 24; Excell Products, GPOCAB 8-81 (November 3, 1982), Sl. op. at 7-8; Gem Business Forms, Inc., GPOCAB 5-81 (August 29, 1981), Sl. op. at 4-5; Stevens Graphic, Inc., GPOCAB 4-81 (March 22, 1982), Sl. op. at 7. Indeed, the Contracting Officer's discretion to decide whether a product is conforming or nonconforming is inherent in his/her administration of the contract. Vogard Printing Corporation, supra, Sl. op. at 6 (citing, Thomas W. Yoder Company, Inc., VACAB No. 997, 74-1 BCA ¶ 10,424 (1974)); Excell Products, supra, Sl. op. at 7-8; Gem Business Forms, Inc., supra, Sl. op. at 4-5. In the absence of any claim by a contractor that the contract is ambiguous or imprecise, or that the Contracting Officer acted arbitrarily or capriciously, the Board will not disturb the finding that the delivered supplies failed to conform to contract specifications.18 See, Mid-American Business Forms Corporation, supra, Sl. op. at 19; The Standard Register Company, GPO BCA 4-86 (October 28, 1987), Sl. op. at 15; Product of Information Systems, GPO BCA 7-85 (November 25, 1986), Sl. op. at 8-9: Excell Products, supra, Sl. op. at 8. In this case, there is no claim or evidence that the contract terms were ambiguous or imprecise. See, Dependable Printing Company, supra, Sl. op. at 24. Instead, as discussed infra, the Appellant seems to be implying that somehow the Contracting Officer's insistence on strict adherence to the contract was arbitrary or capricious. Cf., Excell Products, supra, Sl. op. at 7-8, Gem Business Forms, Inc., supra, Sl. op. at 4-5. Generally, where the Government insists on strict compliance, it bears the initial "burden of persuasion" to show that the work it rejects does, in fact, deviate from the specifications. See, e.g., International Lithographing, GPO BCA 1-88 (December 29, 1989), Sl. op. at 20 (citing, Fillip Metal Cabinet Company, GSBCA No. 7,695, 87-2 BCA ¶ 19,822 (1987); Ramar Company, ASBCA No. 16060, 72-2 BCA ¶ 9644; Pams Products, Inc., ASBCA No. 15,847, 72-1 BCA ¶ 9,401 (1972); Hardeman-Monier-Hutcherson, ASBCA No. 11785, 67-1 BCA ¶ 6210); Mid-American Business Forms Corporation, supra, Sl. op. at 18-19; Stabbe Senter Press, supra, Sl. op. at 48-49. See also, ABM/Ansley Business Materials, GSBCA No. 9367, 93-1 BCA ¶ 25,246, at 127,747 (citing, Mutual Maintenance Company, GSBCA 7496, 85-2 BCA ¶ 18,098). The Government usually meets this burden by advising the contractor of the results of the inspection it has conducted. The burden then shifts to the contractor to prove that the Government's findings are invalid for one reason or another. See, e.g., International Lithographing, supra, Sl. op. at 21 (citing, Universal Steel Stripping Co., ASBCA No. 13,686, 69-2 BCA ¶ 7,799 (1969); C. W. Roen Construction Co., DOTCAB Nos. 75-43, 75-43A, 76-2 BCA ¶ 12,215 (1976); Continental Chemical Corp., GSBCA No. 4483, 76-2 BCA ¶ 11,948 (1976)). See also, Riverport Industries, Inc., ASBCA Nos. 28089, 28090, 28091, 29577, 86-2 BCA ¶ 18,835, at 94,920, mot. for reconsid. denied, 86-3 BCA ¶ 19,050. Under the QATAP, finishing attributes, such as trim size, are measured by inspecting individual copies of publications, and classifying each deviation from specifications as either a critical defect or major defect, in accordance with the tolerance table for that attribute.19 See, QATAP, p. 3 (Finishing Attributes). In that regard, QATAP tells us that a major defect must be assessed on a Quality Level III job if the trim size deviation is "greater than 1/8["] (3.2 mm)." Id., p. 28 (F-1. Trim Size). The Respondent's evidence, which includes copies of the two relevant inspection reports, shows that the trim deviation in the samples it inspected was more than 1/8", or greater than the allowable tolerance (R4 File, Tabs I and J). Consequently, it was incumbent on the Appellant to present evidence that the Government's findings were erroneous. See, e.g., International Lithographing, supra, Sl. op. at 21. However, the Contractor's merely says that its own inspection of the rejected books disclosed that they were "under-trimmed 1/8" under specifications[.]" (Complaint, ¶ 4; R4 File, Tab H; RPC, p. 5). Although the implication in this response is that the under-trimming was not greater than 1/8", there is no documentation to support it. Therefore, on this record, the Appellant's case that the under-trimmed books were still within allowable tolerances is essentially an unverified assertion. Argumentation alone will not sustain the Contractor's burden of proof.20 Cf., Hurt's Printing Company, Inc., supra, Sl. op. at 29 (citing, Reese Manufacturing, Inc., ASBCA No. 35144, 88-1 BCA ¶ 20,358). It is well settled that unsubstantiated assertions are not sufficient proof to permit recovery. Cf., Banta Company, supra, Sl. op. at 52; Fry Communications, Inc./InfoConversion Joint Venture, GPO BCA No. 9-85, Decision on Remand (August 5, 1991), Sl. op. at 33, fn. 31, (citing, Fry Communications, Inc./InfoConversion Joint Venture v. United States, 22 Cl.Ct. 497, 510 (1991)); Stephenson, Inc., supra, Sl. op. at 57. See also, Singleton Contracting Corporation, GSBCA No. 8548, 90-2 BCA ¶ 22,748; Tri-State Services of Texas, Inc., ASBCA No. 38019, 89-3 BCA ¶ 22,064)); Gemini Services, Inc., ASBCA No. 30247, 86-1 BCA ¶ 18,736. The Appellant offers two reasons why it is still entitled to payment despite the failure of its initial shipment to pass an acceptance inspection; i.e., (1) the product it delivered "substantially conformed" to the contract specifications (RPC, p. 5), and (2) even though the first QATAPs were under- trimmed, they were still usable (Complaint, ¶ 7; R4 File, Tab H, p. 2, ¶ 3).21 The Board has carefully considered both of these contentions, and believes they are without merit. The "substantial compliance" or "substantial conformity" rule is a limited exception, created by law, to the doctrine which entitles the Government to strict compliance with its specifications. See, Sterling Printing, Inc., supra, Sl. op. 35-36, fn. 48; Hurt's Printing Company, Inc., supra, Sl. op. at 17; Shepard (1993), supra, Sl. Op. at 20. The rule, which is confined to situations where a contractor has timely shipped nonconforming goods which deviate from the specifications in only minor respects, affords defaulting contractors an opportunity to correct such defects. See, Radiation Technology, Inc. v. United States, supra, 366 F.2d 1005-06. In order for the doctrine to apply to a particular shipment of nonconforming goods, the contractor must show that: (1) a timely delivery of goods was made; (2) he/she reasonably believed, in good faith, that the supplies conformed to the contract when shipped and that they would be acceptable; (3) the defects are minor in nature; and (4) they are capable of correction within a reasonable period of time.22 Id., 366 F.2d at 1006. See also, Industrial Data Link Corporation, ASBCA No. 31570, 91-1 BCA ¶ 23,382, AT 117,340; Accutherm, Inc., ASBCA No. 24140, 80-2 BCA ¶ 14,748; Kessel Kitchen Equipment Company, Inc., ASBCA No. 21080, 77-2 BCA ¶ 12,565. The Radiation Technology rule only protects contractors who can satisfy all elements of the test. See, Sterling Printing, Inc., supra, Sl. op. 35-36, fn. 48; Hurt's Printing Company, Inc., supra, Sl. op. at 17. See generally, Cibinic and Nash, pp. 680-84. In the Board's view, the Appellant's reliance on the "substantial compliance" rule in the context of this case, is clearly misplaced for two reasons. First, the doctrine is generally found as a defense in, and is usually confined to, default termination cases. See, e.g., Franklin E. Penny Co. v. United States, 524 F.2d 668, 677 (Ct.Cl. 1975) (". . . the purpose of the substantial performance doctrine is to avoid the harshness of a forfeiture, . . .").23 See also, Sterling Printing, Inc., supra, Sl. op. 35-36, fn. 48; Hurt's Printing Company, Inc., supra, Sl. op. at 17; Shepard (1993), supra, Sl. op. at 19-24; Stephenson, Inc., supra, Sl. op. at 48-54; Timsco, Inc., GPOCAB 10-78 (July 24, 1979), Sl. op. at 10. However, this matter was appealed to the Board because the Contracting Officer disallowed the Appellant's monetary claim for reimbursement for the rejected QATAPs, which makes this case an equitable adjustment dispute. The Appellant's contract was not defaulted; indeed, with the Government's acceptance of the reprinted publications, it has been fully performed. Consequently, the condition precedent for the application of the rule is simply not present in this case. Second, even in cases where the "substantial conformity" doctrine is applied, it does no more than afford defaulting contractors an opportunity to correct minor deviations from the contract specifications. Cf., Radiation Technology, Inc. v. United States, supra, 366 F.2d 1005-06; Hurt's Printing Company, Inc., supra, Sl. op. at 17; Shepard (1993), supra, Sl. op. at 20; B. P. Printing and Office Supplies, GPO BCA 22-91 (February 5, 1993), Sl. op. at 12; ATC Decal Company, GPOCAB 3-81 (July 14, 1981), Sl. op. at 7. Offering the defaulting contractor a chance to cure the defects by reprinting the publication will satisfy the requirements of the rule. Cf., Sterling Printing, Inc., supra, Sl. op. 35, fn. 47; Shepard (1993), supra, Sl. op. at 14; Mid-American Business Forms Corporation, supra, Sl. op. at 20; ATC Decal Company, supra, Sl. op. at 7. Thus, the Appellant has already received the remedy which it would have gotten by force of law, and there is no basis for invoking the doctrine in this case. Cf., Shepard (1993), supra, Sl. op. at 14, 23 (citing, Electro-Neutronics, Inc., ASBCA No. 12947, 71-2 BCA ¶ 8,961). Of more weight is the Appellant's argument that even though the first QATAPs were under-trimmed, they were still usable, and the Contractor should be paid for them. As a factual matter, it must be noted that the Contracting Officer instructed the Contractor to destroy all defective copies of the publication, so the Respondent never actually used them (R4 File, Tabs K and L). Cf., International Lithographing, supra, Sl. op. at 25. Also cf., Process Technology International, Inc., ASBCA No. 41650, 93-3 BCA ¶ 25,962; G. Scofield and Sons (Rural) Pty., Ltd., ASBCA No. 24290, 85-1 BCA ¶ 17,843; Marshall Construction Corporation of South Carolina, ASBCA Nos. 26948, 27103, 84-1 BCA ¶ 17,031, at 84,815; Service Management Corporation, EBCA No. 289-5-83 (OTA), 84-2 BCA ¶ 17,319; Kipco Machine Tool, Inc., ASBCA No. 26448, 83-2 BCA ¶ 16,661. However, the Appellant believes that while the books were not the correct size, the trimming was nonetheless within QATAP tolerances, and it was error for the Contracting Officer to reject the shipment altogether; i.e., he should have accepted the publications at a discount. See, R4 File, Tab H, p. 2, ¶ 3; RPC, p. 5. In effect, the Appellant's argument amounts to a claim that the Contracting Officer abused his discretion in his application of QATAP under the facts of this case. The Board disagrees. Under the inspection clause of GPO Contract Terms and QATAP, both of which are incorporated by reference in the disputed contract, three options are available to GPO when, as here, nonconforming publications are delivered: (1) have the defective publications corrected; (2) have them reprinted or otherwise replaced; or (3) accept the publications with an equitable reduction in the contract price.24 See, QATAP, p. 2 (Determining Acceptability); GPO Contract Terms, Contract Clauses, ¶ 14(f) (Inspection and Tests). Which course of action should be chosen under the circumstances is the prerogative of the Contracting Officer, and no one else's. Automated Datatron, Inc., supra, Sl. op. at 4-5 (citing, Famous Model Co., supra, 68-1 BCA ¶ 6,902; Cherry Meat Packers, Inc., supra, 1963 BCA ¶ 3,937); Media Press Lithographers, [No Panel Number] Jacket Nos. 667-095, 667-097, 667-098, 667-099. 667-100 (December 30, 1979), Sl. op. at 6-7 (citing, Farwell Company v. United States, 148 F.Supp. 947, 137 Ct.Cl. 831, 832 (1957); Ideal Restaurant Supply, Inc., supra, 67-1 BCA ¶ 6237); Henry C. Beck Company, VACAB No. 523, 66-1 BCA ¶ 5323. Despite the broad powers given GPO Contracting Officers, the Board has the authority to review their administration of QATAP, and overrule those discretionary actions which are clearly erroneous. See, e.g., Shepard (1993), supra, Sl. op. at 18-19; Total Reproductions, Inc., GPO BCA 16-88 (February 2, 1990), Sl. op. at 17-19. See also, D. G. Machinery and Gage Company, NASA BCA No. 92, 65-1 BCA ¶ 4,771. However, it is also well established that the findings and determinations of contracting officers are considered prima facie correct, and the contractor bears the burden of proof on appeal to show wherein the decision is in error. Remco Business Systems, Inc., [No Panel Number] Jacket No. 237-286 (October 5, 1977), Sl. op. at 2-3 (citing, Norm Evans Construction Company, AGBCA No. 341, 75-1 BCA ¶ 11,229; D. G. Machinery and Gauge Company, supra, 65-1 BCA ¶ 4,771). If the record, on its face, is neither unbelievable nor erroneous, the Board must accept it as being correct. Id., Sl. op. at 3. In this case, the Appellant has not shown, nor does the record contain, any evidence which would support a finding that the Contracting Officer's exercise of discretion was unreasonable, arbitrary, capricious, or so grossly erroneous, as to be suspect. See, McDonald & Eudy Printers, Inc., GPO BCA 9-88 (March 8, 1990), Sl. op. at 11-12 (Respondent's Answer adopted by the Board, and cases cited therein); Remco Business Systems, Inc., supra, Sl. op. at 3. What this case boils down to is the Respondent wanted the copies of QATAP to be a specific trim size, and the Appellant, by its own admission, delivered a publication which was under- trimmed. Since the publication was not what GPO had asked for, the Government did not have to accept it. See, e.g., Shepard (1993), supra, Sl. Op. at 19-20; Stephenson, Inc., supra, Sl. op. at 20-21 Rose Printing Company, supra, Sl. op. at 6; Automated Datatron, Inc., supra, Sl. op. at 2; Mid-American Business Forms Corporation, supra, Sl. op. at 18-19); Copigraph, Inc., supra, Sl. op. at 2. The Appellant does not claim that the contract's trim requirement could not be met; indeed, the reprinted QATAPs satisfied the specifications. Instead, the Contractor contends that a 1/8" variance did not affect the usability of the first copies it delivered. However, the fact that the defective QATAPs may have been usable does not excuse the Contractor's failure to meet achievable contract requirements. See, H. Hertzberg & Son, Inc., GSBCA No. 4144, 76-2 BCA ¶ 12,011. See also, Union Chemical Company, GSBCA No. 7392, 85-3 BCA ¶ 18,489; Newark Boneless Meat Products, Inc., ASBCA No. 22132, 78-2 BCA ¶ 13,229. The Government was not obligated to grant deviations from contract requirements, and the decision of whether or not to grant such an exception was within the sound discretion of the Contracting Officer. See, Kurz-Kasch, Inc., ASBCA No. 32486, 88-3 BCA ¶ 21,053. Furthermore, under the terms of the contract, the Respondent was entitled to obtain replacement of nonconforming supplies. QATAP, p. 2 (Determining Acceptability); GPO Contract Terms, Contract Clauses, ¶ 14(f) (Inspection and Tests). Cf., Andrews, Large & Whidden, Inc., and Farmville Manufacturing Co., ASBCA No. 30060, 88-2 BCA ¶ 20,542 (citing, Corporate Diesel, Inc., ASBCA No. 17134, 74-1 BCA ¶ 10,612; Sovereign Construction Co., Ltd., GSBCA No. 913, 1964 BCA ¶ 4,468). If GPO elects to allow a contractor to correct the product, either by reprinting it or otherwise, the contractor is required to correct the defects and complete delivery. In such cases, the contractor is not entitled to additional compensation because the work it was directed to do was clearly part of the contract requirements. See, Queens Lithographing Corporation, GPOCAB 9-77 (March 30, 1979), Sl. op. at 10 (citing, Montgomery Ross Fischer, Inc., GSBCA No. 2849, 70-1 BCA ¶ 8,127; W. M. Schlosser Company, Inc., GSBCA No. 2009, 66-1 BCA ¶ 5,796). Accordingly, the Board finds and concludes that under the circumstances of this case, the Respondent was entitled to enforce strict compliance with its trim specifications for QATAP. See, e.g., Stephenson, Inc., supra, Sl. op. at 20-21; Fry Communications, Inc., supra, Sl. op. at 5; Rose Printing Company, supra, Sl. op. at 6; Mid- American Business Forms Corporation, supra, Sl. op. at 18-19); Copigraph, Inc., supra, Sl. op. at 2. Thus, the Appellant's contention that the first printing of QATAPs, which it admits was under-trimmed, was nonetheless usable because the defect was minor, is irrelevant. Therefore, the Contracting Officer did not commit error when he rejected the first printing, and had the publication reprinted at no cost to the Government. B. The Contracting Officer did not act in bad faith when he rejected the first shipment of QATAPs and insisted on a reprinting of the entire publication, rather than negotiate an appropriate reduced price with the Appellant and accept the delivery. Relying on the fact that the Contracting Officer's direction to reprint the publication was accompanied by instructions to make certain changes in the color of the cover ink and correct an error in the text, the Appellant also alleges that those alterations, and not the defects found in the first shipment, is the real reason GPO rejected the QATAPs and asked for a reprint (R4 File, Tabs G, H and K). The Contractor believes that by refusing to negotiate a suitable price reduction in lieu of requiring a reprint, the Contracting Officer: 10. . . . did not display impartiality but rather was still working in the best interest of the Government, using the trim size discrepancy as the only criteria for rejection and not giving any consideration to negotiate a settlement that would have been in the best interest of all parties. 11. A contracting officer is required to make an unbiased and impartial judgment on the merits of the claim when issuing a final decision. This was not done in this case because it was in the best interest of the Government to reject this job-not because of the variance in the time size, but rather because of the wrong ink color on the cover and the typographical error on the [Table of Contents]. Complaint, ¶¶ 10, 11. In effect, the Contractor is asserting that the rejection of the first QATAPs under these circumstances was a "sham," and thus the Contracting Officer was acting in bad faith when he directed the Appellant to reprint the publication. In Sterling Printing, Inc., the Board recently addressed nearly the same complaint. There, the contractor stated that the primary reason GPO defaulted the contract was that the Department of Interior needed to make certain changes in the contract specifications because it wanted a different looking book.25 In rejecting the contractor's allegation, the Board reasoned: The Contractor's argument is, in effect, an allegation that the Respondent's decision to cancel the contract was made in bad faith so that Interior could make cosmetic changes to the National Survey. However, the Board has held on numerous occasions that because of the strong presumption that Government officials properly and honestly carry out their functions, an allegation of bad faith must be established by "well-nigh irrefragable" proof. See, e.g., Hurt's Printing Company, Inc., GPO BCA 27-92 (January 21, 1994), Sl. op. at 11, fn. 15; Shepard Printing, GPO BCA 23-92 (April 23, 1993), Sl. op. at 7-8, fn. 11 . . . ; B. P. Printing and Office Supplies, GPO BCA 14-91 (August 10, 1992), Sl. op. at 16; Stephenson, Inc., GPO BCA 02-88 (December 19, 1991), Sl. op. at 55; The Standard Register Company, GPO BCA 4-86 (October 28, 1987); Sl. op. at 12-13. Also see, Karpak Data and Design, IBCA 2944 et al., 93-1 BCA ¶ 25,360; Local Contractors, Inc., ASBCA 37108, 92-1 BCA ¶ 24,491. The key to such evidence is that there must be a showing of a specific intent on the part of the Government to injure the contractor. Kalvar Corporation v. United States, 543 F.2d 1298, 1302 (Ct.Cl. 1976), cert. denied, 434 U.S. 830 (1977); Stephenson, Inc., supra, Sl. op. at 54. In the Board's view, no such "irrefragable" proof of the Respondent's bad faith exists in this record. Certainly, there is absolutely nothing in the record which would show that the employees of two separate Government entities-GPO and Interior-set out to harm the Appellant or that they acted in concert to achieve that specific result. Id., Sl. op. at 57. Sterling Printing, Inc., supra, Sl. op. at 23, fn. 35. [Emphasis added.] See also, Spiffy Enterprises, ASBCA No. 35827, 90-1 BCA ¶ 22,385; Arnold V. Hedberg, ASBCA No. 31747, 90-1 BCA ¶ 22,577; WB & A, Inc., ASBCA No. 32524, 89-2 BCA ¶ 21,736; Le-Gals, Incorporated, NASABCA No. 1285-15, 88-2 BCA ¶ 20,703. Allegations of bad faith are easy to make but difficult to prove, because animus cannot be established by evidence of Government mistake or error; i.e., proof of specific intent to harm the contractor is needed.26 Sterling Printing, Inc., supra, Sl. op. at 23, fn. 35; Stephenson, Inc., supra, Sl. op. at 54. See also, Anderson/Donald, Inc., ASBCA No. 31213, 86-3 BCA ¶ 19,036, at 96,146. Here, there is absolutely nothing in the record which would show that the Contracting Officer set out to harm the Appellant in this case, or that his direction to reprint QATAP was designed to achieve that specific result. See, Sterling Printing, Inc., supra, Sl. op. at 23, fn. 35; Stephenson, Inc., supra, Sl. op. at 57. In the Board's opinion, the Appellant's reliance on the Respondent's direction to make two changes in the publication, is more than offset by the fact that the copies it supplied to GPO were defective, as the Contractor admits, and this was the reason given by the Contracting Officer for requiring a reprint (R4 File, Tabs G, H, I and L). Id., Sl. op. at 55. Therefore, on the basis of the evidence, the Appellant's allegation of bad faith is merely an unsupported assertion which is insufficient to meet its required burden of proof. See, e.g., Fry Communications, Inc./InfoConversion Joint Venture, supra, Sl. op. at 33, n. 31; The Standard Register Company, supra, Sl. op. at 12-13. See also, Singleton Contracting Corporation, supra, 90-2 BCA ¶ 22,748; Tri-State Services of Texas, Inc., supra, 89-3 BCA ¶ 22,064; Gemini Services, Inc., supra, 86-1 BCA ¶ 18,736. Accordingly, the Board also finds no merit in the Appellant's claim that the Contracting Officer acted in bad faith when he directed a reprinting of the rejected copies of QATAP. ORDER Considering the record as a whole, the Board finds and concludes that the Appellant has not proved that the Government erroneously rejected the initial printing of QATAP. Rather, because of the admitted defects in the first shipment, the Contracting Officer properly exercised his discretion under the contract in directing a reprint of the entire publication, at no cost to the Government. Furthermore, the Contractor has failed show by "irrefragable" proof, or any evidence whatsoever, that the Contracting Officer acted in bad faith when he rejected the first shipment of QATAPs and insisted on a reprinting, instead of accepting the delivery at a discounted price. THEREFORE, the decision of the Contracting officer disallowing the Appellant's claim for $11,137.98-the contract price of the rejected publication-is AFFIRMED, and the appeal seeking that amount as reimbursement for the rejected QATAPs is DENIED.27 On the other hand, the Board believes that the Contractor is entitled to some compensation for reprinting the corrected covers and two text pages of QATAP, as instructed by the Contracting Officer (R4 File, Tabs G). GPO Contract Terms, Contract Clauses, ¶ 4(b) (Changes). In the absence of any evidence from the Appellant, the Board finds that the amount offered by the Contracting Officer for the cost of the work-$1,823.93-is fair and reasonable under the circumstances (R4 File, Tabs K and L). Cf., R.C. Swanson Printing and Typesetting Company, Decision on Motion for Reconsideration and Order, GPO BCA 15-90 (December 20, 1993), Sl. op. at 14; Banta Company, supra, Sl. op. at 61. The Contracting Officer reaffirmed that figure in his final decision of September 11, 1990 (R4 File, Tab L). The Respondent has never withdrawn its offer. See, R. Brf., p. 3. Accordingly, the Government's offer is properly before the Board for disposition. Board Rules, Preface to Rules, ¶ I (Jurisdiction for Considering Appeals); GPO Contract Terms, Contract Clauses, ¶ 5(b) (Disputes). THEREFORE, the Board REMANDS the case to the Contracting Officer with instructions to pay the Contractor in accordance with this opinion. R.C. Swanson Printing and Typesetting Company, supra, Sl. op. at 15; Banta Company, supra, Sl. op. at 62; RD Printing Associates, Inc., GPO BCA 02-92 (December 16, 1992), Sl. op. at 37; General Business Forms, Inc., GPO BCA 2-84 (December 3, 1985), Sl. op. at 23. It is so Ordered. May 6, 1994 STUART M. FOSS Administrative Judge _______________ 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 10, 1991. GPO Instruction 110.12, Subject: Board of Contract Appeals Rules of Practice and Procedure, dated September 17, 1984, Rule 4(a) (Board Rules). It will be referred to hereinafter as R4 File, with an appropriate Tab letter also indicated. The R4 File consists of twelve (12) documents identified as Tabs A through L. 2 By letter dated March 29, 1991, the Appellant advised the Board that it had selected the optional Accelerated Procedure to process its appeal. Board Rules, Rules 12.1(b) and 12.3. However, this seems to have been a "star-crossed" case from the beginning. For example, the Contractor's Notice of Appeal was dated October 9, 1990, and was mailed to the Board well within 90 days of the Contracting Officer's decision, as required by the Board Rules. Board Rules, Rule 1(a). However, the appeal letter, which was received and signed for by one of the Respondent's employees on October 11, 1990, was misdirected by the mail room to another GPO office and never arrived at the Board. The Board only became aware of the lost Notice of Appeal when the Contractor subsequently telephoned the Board's office to inquire about the status of the case. Consequently, the appeal was not docketed by the Board until March 14, 1991, after it had received another copy of the Notice of Appeal and satisfactory proof of mailing from the Appellant, or more than six (6) months after the issuance of the final decision. See, e.g., Micrographic Technology, Inc., ASBCA No. 25577, 81-2 BCA ¶ 15,357; Astro Industries, Inc., ASBCA No. 19082, 74-2 BCA ¶ 10,921; C & B Construction Company, ENGBCA No. 3317, 73-2 BCA ¶ 10,163. Thereafter, because of other inadvertent delays the record in this case was not closed until March 1, 1993. Accordingly, notwithstanding the Appellant's election of the optional Accelerated Procedure, for all practical purposes this matter has been processed under the Board's regular procedure for handling cases submitted on the record without a hearing. Board Rules, Rule 11. 3 Under the terms of the contract, 20 random copies was the proper number of "blue label" samples for a shipment of 7,550 publications (R4 File, Tab A, p. 14). Therefore, it seems to the Board that the "lot size" figure-17,550-shown on the "Inspection Report" (GPO Form 916) of June 6, 1990, is in error (R4 File, Tab F). That figure represents the entire ordered quantity, not the first delivery of 7,550 copies. Following discussions between the parties, on August 6, 1990, the Respondent conducted a second inspection of 32 QATAPs-the appropriate number of samples for an order of 17,550 copies- which had been randomly selected by the Appellant (R4 File, Tabs I and J). See, note 7 infra. 4 The changes were necessary to correct a mistake in the color of the ink for the covers and a typographical error in the text (R4 File, Tab L). In that regard, the standard GPO "Changes" clause provides, in pertinent part: "(a) The Contracting Officer may at any time, by written order, . . . , make changes within the general scope of this contract in . . . (1) Drawings, designs, or specifications when the supplies to be furnished are to be specially manufactured for the Government in accordance with the drawings, designs, or specifications. . . .(b) If any such change causes an increase or decrease in the cost of, or the time required for, performance of any part of the work, whether or not changed by the order, the Contracting Officer shall make an equitable adjustment in the contract price, the delivery schedule, or both, and shall modify the contract." GPO Contract Terms, Contract Clauses, ¶¶ 4(a),(b) (Changes). 5 According to the appeal record, the Contracting Officer admits that the "missing page" defect was an isolated problem, and it clearly does not have any significance in the context of this case (R4 File, Tab I). See also, Report of Presubmission Conference, dated February 17, 1993, pp. 5-6 (hereinafter cited as RPC). 6 Accordingly, the Contractor denied accountability, and submitted a claim for additional costs amounting to a total of $657.00, for making the page change and for the press inspection on the reprinted cover (R4 File, Tab H). Furthermore, the Appellant also filed a claim with GPO for $11,137.98, seeking reimbursement for the first printing of QATAP which was rejected by the Respondent. Complaint, p. 2 (Prayer for Relief). See also, RPC, p. 4. 7 Under the terms of the contract, the proper number of "blue label" samples for the entire order of 17,550 QATAPs was 32 randomly selected copies (R4 File, Tab A, p. 14). 8 In addition, the record shows that even though the 12 remaining samples were not rejected, they also were under- trimmed by almost an 1/8" below specifications (R4 File, Tab I). 9 Only the Respondent submitted a written brief in this appeal. See, Respondent's Brief, dated March 1, 1993 (hereinafter R. Brf.). The Board's understanding of the positions of the parties is based on the Appellant's Complaint, dated October 9, 1990, the Respondent's Answer, dated May 22, 1991, the discussions at the presubmission conference on December 8, 1992, as reflected in the Report of Presubmission Conference, and the Respondent's brief. 10 As indicated by the Respondent, a principle purpose of the "strict compliance" rule is to ensure that the integrity of the competitive bidding system will not be compromised. R. Brf., p. 3 (citing, Ideal Restaurant Supply Company, VACAB No. 570, 67-1 BCA ¶ 6,237). Furthermore, the Board has said that the use of QATAP is the primary means by which GPO protects "the Government's interest by assuring that it received the quality product it specified." See, Stabbe Senter Press, GPO BCA 13-85 and 19-85 (May 12, 1989), Sl. op. 52; Automated Datatron, GPO BCA 25-87 and 26-87 (April 12, 1989), Sl. op. at 3. 11 The Board was created by the Public Printer in 1984. GPO Instruction 110.10C, Subject: Establishment of the Board of Contract Appeals, dated September 17, 1984 (hereinafter GPO Instruction 110.10C). Prior to that time, appeals from decisions of GPO Contracting Officers were considered by ad hoc panels of its predecessor, the GPO Contract Appeals Board (GPOCAB). The Board has consistently taken the position that it is a different entity from the GPOCAB. See, e.g., Sterling Printing, Inc., GPO BCA 20-89 (March 28, 1994), Sl. op. 29, fn. 40; Shepard Printing, GPO BCA 37-92 (January 28, 1994), Sl. op. at 11, fn. 10; The Wessel Company, Inc., GPO BCA 8-90 (February 28, 1992), Sl. op. at 25, fn. 25. Nonetheless, it has also been the Board's policy to follow the holdings of the ad hoc panels where applicable and appropriate, but the Board differentiates between its decisions and the opinions of those panels by citing the latter as GPOCAB. See, e.g., Stephenson, Inc., GPO BCA 02-88 (December 20, 1991), Sl. op. at 18, fn. 20; Chavis and Chavis Printing, GPO BCA 20-90 (February 6, 1991), Sl. op. at 9, fn. 9. 12 The presumption that Government officials will "deal in good faith," is separate and distinguishable from another assumption, namely, that Government acts are presumed to be regular and authorized. See, United States v. Roses, Inc., 706 F.2d 1563, 1567 (Fed. Cir. 1983). 13 "Irrefragable" proof simply means evidence which is incapable of being refuted; i.e., indisputable evidence. Webster's New World Dictionary (1988), p. 714. See, Stephenson, Inc., supra, Sl. op. at 55. 14 The record on which the Board's decision is based consists of: (1) the Appellant's Notice of Appeal/Complaint, dated October 9, 1990; (2) the R4 File (Tabs A through L); (3) the Respondent's Answer, dated May 22, 1991; (4) the Report of Presubmission Conference, dated February 17, 1993, pp. 5-6; and (5) the written brief submitted by the Respondent on March 1, 1993. 15 Since the Contractor is asking the Board to allow its claim for $11,137.98 for the rejected publications, see, note 6 supra, the remedy sought in this case is essentially an equitable adjustment. Consequently, the Appellant has the affirmative burden of proving its claim by a preponderance of the evidence. See, Banta Company, GPO BCA 03-91 (November 15, 1993), Sl. op. at 50, fn. 62 (citing, Lawrence D. Krause, AGBCA No. 76-118-4, 82-2 BCA ¶ 16,129; Onetta Boat Works, Inc., ENGBCA No. 3733, 81-2 BCA ¶ 15,279; Globe Construction Co., ASBCA No. 21069, 78-2 BCA ¶ 13,337); Pikes Peak Lithographing Company, GPOCAB 7-77 (October 6, 1978), Sl. op. at 11 (citing, Mann Construction Company, Inc., AGBCA No. 444, 76-1 BCA ¶ 11,710; EG & G, Inc., ASBCA 14051, 71-1 BCA ¶ 8867, at 41,219). See also, John Cibinic, Jr. & Ralph C. Nash, Jr., Administration of Government Contracts 2d ed., (The George Washington University, 1986), p. 504 (hereinafter Cibinic and Nash). 16 In this regard, it should be remembered that an essential element of the so-called "substantial compliance" rule is that the contractor must reasonably believe, in good faith, that the delivered supplies conformed to the contract when shipped and that they would be acceptable. See, e.g., Sterling Printing, Inc., supra, Sl. op. 35, fn. 48 (citing, Radiation Technology, Inc. v. United States, 177 Ct.Cl. 227, 232, 366 F.2d 1003, 1006 (1966)); Hurt's Printing Company, Inc., GPO BCA 27-92 (January 21, 1994), Sl. op. at 17; Shepard Printing, GPO BCA 23-92 (April 29, 1993), Sl. op. at 19-20 (hereinafter Shepard (1993)). 17 The Respondent's Printing Procurement Regulation, expressly states that the only person authorized to make final determinations on whether products shipped by a contractor conform to contract specifications is the Contracting Officer. See, Printing Procurement Regulation, GPO Publication 305.3 (September 1, 1988), Chap. XIII, Sec. 1, ¶ 4.f. See also, Sterling Printing, Inc., supra, Sl. op. at 34-35, fn. 46; Hurt's Printing Company, Inc., supra, Sl. op. at 10, fn. 13. 18 In French/Bray, Inc., supra, the Board considered essentially the same QATAP and contract provisions involved in this appeal, and found "as a matter of contract interpretation, and thus of law," inter alia, that "the determination of whether or not such burden has been met lies solely with the [Government], provided that the [Government] does not render its determination arbitrarily or capriciously but rather does so objectively by adhering to the testing and sampling standards of QATAP. . . . Thus, if the [Government] shows that it has adhered to the contractual standards for testing, inspection, and determination of product quality, its determination must be upheld." French/Bray, Inc., supra, Sl. op. at 17 [Original emphasis.] See also, Geographics, Inc., GPO BCA 8-85 (January 8, 1987). 19 The QATAP defines a "major defect" as ". . . a deviation from specifications which is less serious than a critical defect." QATAP, p. 1, ¶ 1-4. Simply stated, a major defect is a deviation which normally would be noticed by the customer; e.g., excessively low type density. Id., p. ix (Definition of Defects). See, Shepard (1993), Sl. op. at 15, fn. 21. On the other hand, a "critical defect" is ". . . a serious deviation from specifications." Id., p. 1, ¶ 1-3. 20 The Appellant's statement about its own findings when it inspected the rejected books, is clearly an admission that the first printing did not meet the contract specifications. Cf., Stephenson, Inc., supra, Sl. op. at 20-21, fn. 24; Chavis and Chavis Printing, supra, Sl. op. at 9, 13; Eastwood Printing, GPO BCA 3-88 (March 8, 1990), Sl. op. at 1-2. However, in light of its vague nature, the Board cannot say with equal certainty that the Contractor's statement also amounts to an admission that the under-trimming exceeded the QATAP tolerances; indeed, the Appellant is contending just the opposite. Therefore, the Appellant's concession that the first books it delivered were nonconforming, is not enough, standing alone, to dispose of the issue. Cf., Cascade Pacific International v. United States [33 CCF ¶ 73,958], 773 F.2d 287, 292-94 (Fed. Cir. 1985); UB Corporation, GSBCA Nos. 7701-COM, 7908-COM, 7909-COM, 86-2 BCA ¶ 18,831, at 94,894. 21 A third reason-that the Respondent wanted to change the ink color on the cover of the publication and correct a typographical error in the Table of Contents-questions the motive of the Contracting Officer, and is discussed infra. See, Complaint, ¶ 8; R4 File, Tab H, p. 2, ¶ 4. 22 The Radiation Technology doctrine is clearly an encroachment on the Government's right to terminate. However, it is also apparent that the rule merely stays for a reasonable period the Government's right to terminate, and not its right to insist on 100 percent conforming goods; i.e., the doctrine concerns time, not the supplies themselves. See, Hurt's Printing Company, Inc., supra, Sl. op. at 18, fn. 22; Pikes Peak Lithographing Company, supra, Sl. op. at 13. Furthermore, the "substantial compliance" rule is used to prevent surprise rejections by the buyer after a contractor's timely shipment in situations where performance departs in only minor respects from that which has been promised. See, Stephenson, Inc., supra, Sl. op. at 50-51, fn. 54 (citing, Environmental Tectonics Corporation, ASBCA No. 20340, 76-2 BCA ¶ 12,134). 23 It should be noted that the Claims Court also emphasized that the "substantial compliance" doctrine ". . . should not be carried to the point where the nondefaulting party is compelled to accept a measure of performance fundamentally less than had been bargained for." Franklin E. Penny Co. v. United States, supra, 524 F.2d at 677. 24 The last option is meant to be exercised only in a limited number of cases, where circumstances do not allow reprinting and use "as is" in necessary. See, QATAP, p. xi (Acceptability or Rejection of the Lot). Under QATAP, if a random sample of 32 copies discloses 20 major defects, as here, the Government discount for accepting the publications would be 10 percent. Id., p. 47 (Appendix B-Discount Table for Major Defects). 25 The contractor in Sterling Printing, Inc. was saying, in effect, that the contract had really been terminated for the convenience of the Government. However, the rule is clear that an otherwise justified default termination is not rendered invalid because the Government no longer has a need for the item being purchased, even where lack of need is part of the motivation for the termination. H & R Machinists Company, ASBCA No. 39655, 90-3 BCA ¶ 22,948. 26 The theory of recovery for the contractor where the evidence is sufficient to support a finding of bad faith on the part of a contracting officer, is that the Government has breached its implied duty of good faith and fair dealing in contract performance and enforcement. See, United States v. Roses, Inc., supra, 706 F.2d at 1566; Systems Technology Associates, Inc. v. United States, 699 F.2d 1383, 1387 (Fed. Cir. 1983). See also, All-American Poly Corporation (Park Poly Bag Corporation), GSBCA No. 7104, 84-3 BCA ¶ 17,682; Nash Janitorial Service, Inc., GSBCA No. 6390, 84-1 BCA ¶ 17,135, mot. for reconsid. denied, 84-2 BCA ¶ 17,355; 6800 Corporation, GSBCA No. 5880, 83-2 BCA ¶ 16,581; Restatement (Second) of Contracts, § 205 (1979). The essence of the breach is an improper motive. See, Mutual Maintenance Co., Inc., GSBCA No. 7492, 85-2 BCA ¶ 17,944; Drain-A-Way Systems, GSBCA No. 7022, 84-1 BCA ¶ 16,929. 27 See, note 6 supra.