U.S. GOVERNMENT PRINTING OFFICE BOARD OF CONTRACT APPEALS The Appeal of JOMAR ENTERPRISES, INC. Docket No. GPO BCA 13-86 May 25, 1989 MICHAEL F. DiMARIO Administrative Law Judge SUMMARY OPINION AND ORDER DISMISSING APPEAL FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED BACKGROUND On April 10, 1986, Jomar Enterprises, Inc., 4015 Forrest Road, Columbus, GA 31908-7008 (Appellant), was awarded a $2,300 contract by the Denver Regional Printing Procurement Office (DRPPO/Respondent), Purchase Order M-7452, Jacket No. 671-184, to produce a total of 18,050 copies in 5 sizes of a certain die cut, pressure sensitive label requisitioned by the Department of the Air Force, to be shipped complete FOB destination to Colorado Springs, CO, by June 10, 1986. (Rule 4 File, hereinafter "R4 File," Tab 1.) On June 17, 1986, Appellant was issued a notice advising that the Government was considering terminating the contract for default and requesting that the contractor show cause in writing respecting why it had failed to ship the product in accordance with the schedule. (R4 File, Tab 2.) Appellant's President, Mary J. Cavallaro, responded by letter dated June 23, 1986, alleging that several weeks previously she had talked to an unidentified man in the DRPPO about difficulties which Appellant was encountering in obtaining the necessary materials to produce the job on time. She was allegedly told she would have to complete the job although the only work which had then been completed was the artwork. She also alleged that since that time, Appellant had also encountered equipment problems. She requested a 2-week extension in shipment date. (R4 File, Tab 3.) As a result, the ship date was adjusted by letter dated July 1, 1986, to July 14, 1986. The letter advised that the default proceedings would be withheld provided the new delivery date was met; but that such withholding of action should not be construed as an extension of the original ship date; and that for compliance record purposes, Appellant would still be considered late in its performance. Moreover, the letter expressly stated that the delay in default proceedings was not a waiver of the Government's rights and remedies under the terms of the contract. (R4 File, Tab 4.) In late July, the Air Force received the order from the Appellant and upon inspection found it to be of poor printing quality and that the Appellant had failed to die cut the product as specified in the purchase order. Accordingly, the Air Force recommended rejection. The DRPPO inspected the samples and agreed but was unable to contact the contractor by telephone. They did, however, send a second "show cause" notice to Appellant dated July 31, 1986, advising Appellant of the specific defects and the rejection. The notice also advised Appellant that on July 29 and 30, 1986, telephone messages had been left which were not returned regarding the order; the order was over l-month late when delivered; the Appellant failed to return the Government furnished materials or dies ordered; and as a result, the Government was considering terminating the contract for default without offering Appellant an opportunity to reprint, but would hold such action in abeyance for 7 days from Appellant's receipt of the notice in order to afford Appellant the opportunity to present in writing any extenuating facts. Appellant was cautioned that a failure to respond to the letter might be considered an admission of fault or negligence. (R4 File, Tab 5.) Cavallaro, by letter dated August 18, 1986, stated that the failure to perform in a timely manner was due to circumstances purportedly beyond Appellant's control, i.e., machine failure and merchandise not being delivered on time, and that it was not until after the award of the contract that her firm realized the great difficulty which would be encountered with machines and materials. As a result, the pressure sensitive labels were cut using materials which the firm had available and were being hand printed one by one because of difficulties concerning register and ink densities. Thus, the labels would not be uniform. However, extra labels were being printed in order to make up for any that did not meet specifications. Appellant also realized that the only Government materials which it received, one label, had been returned to the Department of the Air Force on August 7, 1986. (R4 File, Tab 6.) That same day, the CO sent Appellant a "termination complete" letter for "failure to produce the labels to specifications regarding register and die cutting.", and failure "to respond to our 'Show Cause' Notice of July 31 regarding a proposal for your correcting the rejected order." (R4 File, Tab 8.) By letter dated August 26, 1986, Appellant noted its appeal referencing both the decision to terminate and the July 18, 1986, "show cause" letter. The notice of appeal reiterates the same points previously made by Appellant, adding no new information. (Official File, Tab A.) By letter dated December 18, 1986, Appellant advised that it wished to submit its case for decision upon the written record. Again, the very same information was reiterated by the Appellant without significant expansion. (Official File, Tab G.) By letter dated August 27, 1986, the Contracting Officer (CO) responded to Cavallaro's August 18th letter in pertinent part as follows: Your letter makes the point that you had not started performance when you contacted our office regarding difficulties in producing the product. However, your letter of June 23 states that, at the time of your inquiry, ". . . I had completed . . . the artwork for the proof." We relied, and continue to rely, upon that statement. Further we note that you had provided this office with proofs in early May; an act which clearly demonstrates activity on your part. and for those reasons, did not reconsider its decision to terminate the contract for default. (R4 File, Tab 7.) On December 30, 1986, a "general denial" on behalf of the Government was entered as an answer to Appellant's complaint in accordance with GPO Instruction 110.12 entitled "Board of Contract Appeals Rules of Practice and Procedure" dated September 17, 1984; Appellant being advised of the same by letter of that same date. DECISION Assuming for the sake of argument that all of Appellant's assertions are true, it is the opinion of this Board that they are irrelevant since they fail to state a claim against the Government upon which relief may be granted. Accordingly, the appeal is dismissed and the decision of the CO is affirmed. IT IS SO ORDERED.