GEOGRAPHICS, INC.
GPO BCA 8-85
January 8, 1987
Michael F. DiMario
Administrative Law Judge
Opinion
This appeal, timely filed by Geographics, Inc., 3450 Browns
Mill Road SE., Atlanta, GA 30354 (hereinafter "Appellant"), is
from the final decision of February 22, 1985, of Emery A.
Dilda, Contracting Officer, U.S. Government Printing Office,
Regional Printing & Procurement Office, Atlanta, GA 30303
(hereinafter "Respondent" and "RPPO"), denying Appellant's
request of February 22, 1985, for payment of $6,900 in
reprinting charges over and above the original contract price
of $7,165, the said reprinting being necessitated by the
rejection of a first printing because the color photographic
image of a Navy enlisted man had been reversed by Appellant on
the cover of the publication. The decision of the Contracting
Officer is affirmed and the appeal is denied for the reasons
set forth hereinbelow.
Background
By Atlanta RPPO Purchase Order F1152 dated October 24, 1984,
Appellant was awarded a certain contract identified as Jacket
No. 544-038 in the amount of $7,165 upon the requisition of
the Department of the Navy. The contract was for the
production of 75,000 copies, plus one set of films of a
certain publication entitled "DANTES Mission and Activities."
The Purchase Order stipulated that it was being made "[i]n
strict accordance with your [Appellant's] Quotation No. 25761
dated 10-18-84 and our [Atlanta RPPO] specifications."
Among other things, the specifications required the Respondent
to furnish F.O.B. contractor's plant, a 35mm slide (not sized)
of a certain photographic image, from which a 4-color process
separation was to be made for the cover of the self-cover
product. The specifications further provided that the
Respondent "reserves the right to verify product quality by
using the applicable procedures contained in GPO Publication
310.1 [entitled] 'Quality Assurance Through Attributes -
Contract Terms No. 1' and MIL-STD-105 [entitled] 'Sampling
Procedures and Tables for Inspection by Attributes' in effect
on the date of issuance of the invitation-for-bid." (Appeal
File, hereinafter "R4 File," Tab B.) No further instructions
material to this dispute were set forth in the specifications.
After receipt of the said Purchase Order, camera ready copy,
and artwork, Appellant proceeded to produce the product so
ordered.
Upon delivery of the completed product, the Detachment Office,
Navy Publications and Printing Service, Naval Air Station,
Pensacola, FL, by letter of December 5, 1984, notified Respondent
that the product was completely rejected because the "[c]olor
photo on cover was reversed during production; the person should
face to the right. (Rating badges for Navy Enlisted Personnel are
worn on the left sleeve). Further reversing of the photo tends to
give it an out-of-focus appearance." (R4 File, Tab F.)
Respondent in turn notified Appellant of the Navy's rejection
and demanded that the product be reprinted at Appellant's
expense. In response Appellant advised Respondent by letter of
December 18, 1984, that:
You required that no proof be submitted for your approval
before printing this booklet leaving the matter to our
discretion. Being printers rather than specialists in Navy
codes, we relied on material furnished the USGPO and checked
our proofs and initial press sheets against it. There was no
position stat or similar indicator on your mechanical, poor
practice if the illustration is critical, especially if you do
not inspect proofs.
Under these circumstances, Geo Graphics [sic] cannot be
responsible for reprinting the booklets, which are acceptable,
per your specifications, as is.
R4 File, Tab I.
This response was internally discussed by the Contracting
Officer with Mr. Darwin Hughes, Chief, Quality Assurance
Section, U.S. Government Printing Office, Washington, DC,
(telephone conversation of December 27, 1984) (R4 File, Tab
J), with Hughes advising that the "[o]rder can be rejected
based on [the] fact that contractor separated slide with
emulsion side up and printed pamphlets with illustrations
flopped." There is no indication in the file as to whether or
not this exact reasoning was communicated to Appellant.
However, by letter dated January 9, 1985, the Contracting
Officer advised Respondent that:
This letter will confirm your telephone conversation with Mr.
Ergle on January 9, 1985 concerning rejection of Purchase
Order F1152, Jacket 544-038. The pamphlets are rejected
because the process color illustration on front cover was
flopped.
You are requested to correct this order at no additional cost
to the Government by January 31, 1985.
Your written explanation of this defect and the quality
control measures implemented to guard against future
occurrences is requested by January 25, 1985. Send your reply
to the Atlanta Office, address as above.
R4.File, Tab K.
Thereafter, by letter dated January 24, 1985, Appellant
responded stating essentially what it had previously stated in
its letter of December 18, supra, but adding that:
To reprint these correct, the price Geo Graphics [sic] will
charge is $6,900.00 delivered. The scheduled delivery date is
February 14, 1985.
R4 File, Tab L.
There followed the Contracting Officer's notice of final
decision, supra, which in pertinent part stated:
The determination to reject the order is final. The 35mm slide
furnished by the Government was to have been printed in the
normal viewing position, i.e., as the subject appeared to the
photographer. The slide was furnished mounted in a holder, as
supplied by the developer, in the proper orientation, i.e. with
the subject facing to the right. The instructions written on the
face of the slide holder further obviate the expected viewing
direction and therefore there was no need for you to exercise any
discretion in the orientation of the image.
R4 File, Tab M.
Subsequently, Appellant by notice of appeal dated March 29,
1985, advised this office that:
Geo Graphics [sic] does appeal this "final" decision for the
following reasons.
Once again we state that there was not a stat in position on
the base mechanical nor even a pencil sketch to indicate the
position of the subject. The transparency was not mounted in a
holder but inserted into a plastic hinged container. It could
have been easily removed for inspections, etc. by anyone and
replaced in a "flopped" position. There were not any
instructions on the sleeve except for crop marks which could
be used in a "flopped" or "non-flopped" position and still
maintain the desired size and portion of the subject to be
printed.
It is common practice in the graphic arts that subjects do not
face off of the page but face toward the gutter. Therefore,
without instructions, stat or pencil sketch, Geo Graphics
[sic] exercised the discretion of common practice and faced
the subject toward the gutter.
We maintain our contention that our not being specialist in
Navy codes, uniforms, etc., and if the position is critical
the government should have given explicit instructions as to
position in writing, a position stat, a pencil sketch or
require a proof for approval.
Geo Graphics [sic] fulfilled this order in good faith to the
best of our ability with the material and instructions
furnished. Therefore, in view of these circumstances, we
respectfully submit that this was an error on the part of the
Government and that Geo Graphics [sic] should be paid for the
second printing in the amount of $6,900.00.
Official File, Tab 1.
Appellant did not file a formal complaint, however, its notice
of appeal was deemed by this Board to meet the requirements of
such pleading. Accordingly, Respondent was directed to supply
its Answer to the allegations contained therein.
The salient feature of Respondent's Answer is its claim that:
It is undisputed that a photograph, even in slide format, has
only one correct orientation. In the case of a slide, the
correct viewing orientation is with the emulsion (dull) side
down. An inspection by the GPO's Quality Control Section
revealed that appellant had performed the color separation
process on the slide with the emulsion side up, thereby
"flopping" the image. Exhibit J. A contractor has no
discretion to reverse illustrations and must print a
photograph in its normal viewing orientation, unless directed
to do otherwise by the contract specifications. It is clear
that the appellant's claim of "discretion" is a post hoc
rationalization to explain its gross misfeasance.
Official File, Tab 5.
The appeal is before this Board for decision in this format.
Discussion
The single question presented by this appeal is whether or not
the Appellant should be held responsible for the reverse
positioning of the photographic image. The Appellant argues
that it should not because:
(1) "The transparency . . . could have been easily removed for
inspection, etc. by anyone and replaced in a 'flopped' position",
i.e., that the so-called flopping was inadvertent and possibly
caused by Respondent or its agent; (2) that the Appellant used
its own discretion and deliberately flopped the picture as a
matter of trade practice; and (3) that ". . . if the position is
critical the government should have given explicit instructions
as to position in writing, a position stat, a pencil sketch or
require a proof for approval." Respondent, on the other hand,
argues that Appellant should be held responsible (1) because
there is only one correct orientation for a slide, i.e., emulsion
side down, and (2) Appellant's argument is a mere "post-hoc
rationalization to explain its gross misfeasance." (Official
File, Tab 5, p. 3) On these points the Board finds itself in
agreement with the Respondent. Appellant's arguments are facially
contradictory to each other since the "flopping" cannot be both
inadvertent and deliberate. Moreover, there is general agreement
in contract law that when an agreement is silent respecting
technical details such as the orientation of a photographic image
as here, there is an implied agreement that the usual and
customary trade practices shall be applied. Gholson Byars &
Holmes Construction Co. v. United States, 173 Ct.Cl. 374, 351
F.2d 987 (1965). See also W. G. Cornell Co. v. United States, 179
Ct.Cl. 651, 376 F.2d 299 (1967). This is especially true when the
agreement, as here, is between two parties in the same trade or
business. Accordingly, it is the holding of the Board that
Appellant did not have the discretion to deliberately orient the
image in a manner other than that which is usual and customary in
the printing trade. This having been said, the question remains
as to what usual and customary trade practice controls the
correct orientation of a slide? To determine this the Board
consulted the text Mastering Graphics by Jan V. White, R.R.
Bowker Company, New York and London 1983. There under the caption
"How can you tell that the picture is the right way 'round?" on
p. 122 it states:
Transparencies can easily be printed flopped left to right by
mistake. Furthermore, when you have the transparency itself,
it is often hard to tell which is front and which is back.
Here are a few pointers --which are not 100% infallible!
By common sense
Does lettering on street signs or book spines read backward in
the picture? If so, flop left to right --unless the signs
happen to be in Arabic.
Is the man's jacket breast pocket on his right? Then it's
wrong if he's only wearing a T-shirt, then you are in trouble.
Check the part in his hair. Most men part their hair on the
left. Buttons help: men button clothes left over right; women
do it right over left, for some peculiar reason. You have to
put yourself in the subject's place to figure that one out.
Steering wheels on cars are on the left (except in Great
Britain), and they are mostly driven on the right-hand side of
the road (except in scenes of accidents).
There must be other obvious signs, but let's get technical.
By emulsion
The negative gives you two clues. First, the shiny side should
be toward you, the dull, emulsion side should be toward the
paper, away from you. Second, if you are seeing the film the
right way, you'll be able to read the trademark and the
numbers in the margins of the film material itself. Your
contact sheet will also show these markings legibly, assuming
you have a contact sheet available to check your prints
against. The same principle applies for color prints as for
black and white.
If you're working with color slides, the shiny side of the
slide should be toward you, the dull side with the emulsion on
it away from you. Dullness is often hard to identify, but if
you turn the transparency at a slight angle to the light, you
can clearly see contour like ridges on the edges of the color
areas. They are caused by the different combinations of layers
of emulsion. The side with the contours should face away from
you.
By notches in sheet film
The first thing to check for is whether there is any kind of
wording on the edge. If you can read it, then you are looking
at it the right way around. The second thing to check for are
the notches. Sheet film (anything 4" x 5" and up) has actual
notches cut from the top left-hand corner. They are there for
practical reasons: to help the photographer insert the film
into the camera correctly, to help the lab technician print it
correctly in the dark, and to distinguish one type of film
from another by the patterning of the notches themselves. It
doesn't matter whether the piece of film has been used as a
vertical or a horizontal. You must turn it around until the
notches appear at the top on the left-hand side. If you cannot
achieve that goal, flop the picture, and it will work. Alas,
you cannot depend on this 100%, because duplicate
transparencies are often made emulsion side to emulsion side
to achieve optimal quality -- and so the notches end up on the
wrong side of the dupe. How can you tell? You can only guess
and hope. You have.a 50/50 chance of being right, which is
pretty good odds, especially if you say the magic words ("To
hell with it").
A vital point to remember about flopped pictures comes at the
stage of production when the printer submits proofs of the
pages prior to printing. These are called blues when they are
printed in blue or vandykes when they are printed in brown
(there is a color called vandyke brown after the Dutch painter
Van Dyck) or brownlines, or by various other locally used
names. It is very easy for the page assembler (the stripper or
compositor) to flop the negative by accident and strip it in
flopped left to right. Then, if a man's pocket turns out to be
on the right side, which is wrong, mark the cut (old-fashioned
term for "picture") with this sign [illustr.], which means
flop left to right. (It also means turn upside down, but never
mind, you will also write "Flop left to right" in words
alongside, and it will be understood.)
The clear sense of White's statement is that there is no
discretion as to which is the proper side but rather that it
is sometimes difficult to discern the proper side, and extreme
caution must be exercised since results are not always
certain. Respondent's failure to give explicit instructions,
indicate position stats, or provide a pencil sketch does not
negate the fact that Appellant did not have the discretion to
reverse the slide.
On the other hand, White on p. 87 speaks to the practice of
facing a photographic image toward the gutter with
substantially less certitude respecting its general
application than is necessary to give rise to the conclusion
that it is a "customary and usual" practice of the trade of
such a kind as to be implied in contract. This is clearly
shown by the fact that immediately after stating and
illustrating that "people ought to face inward into the
spread" he shows a contradictory example, i.e., a person
facing outwardly, off the page and onto the next page, which
he coupled with the statement that "[t]he direction of
people's gazes ought to be exploited."
Respecting Appellant's final claim that at a minimum there was
duplicity in Respondent for the error inasmuch as it did not
avail itself of the right of inspection contemplated by the
contract, suffice it to say that the courts have clearly
established that such provisions are for the protection of the
Government and not for the contractor. Kaminer Construction
Co. v. United States, 203 Ct.Cl. 182, 488 F.2d 980 (1973), and
that the waiver of such right cannot shift the burden of the
error to the Government as Appellant would have this Board do.
United States v. Franklin Steel Products, Inc., 482 F.2d 400
(9th Cir. 1973).
Accordingly, this Board affirms the decision of the
Contracting Officer and denies the appeal.