BOARD OF CONTRACT APPEALS
U.S. GOVERNMENT PRINTING OFFICE
In the Matter of )
)
the Appeal of )
)
NATIONAL (WHOLESALE) LABEL ) Docket No. GPOBCA 16-99
)
Jacket 736-431 )
Purchase Order F-9474 )
For the Appellant: Robert A. Steiner, President, National (Wholesale)
Label, Klamath Falls, Oregon.
For the Government: Roy E. Potter, Esq., Associate General Counsel,
U.S. Government Printing Office.
Before KERRY L. MILLER, Administrative Judge.
DECISION
National (Wholesale) Label, (NWL) appeals the Contracting Officer's
final decision rejecting a shipment of bar-coded labels produced by
NWL. Appellant argues that the contract specifications were vague
and that defective Government equipment caused the rejection, or in
the alternative, that any defects could have been corrected by the
Government. For the reasons that follow, Appellannt's appeal is
denied.
FINDINGS OF FACT
1. On May 19, 1999, the U.S. Government Printing Office (GPO)
Atlanta Regional Printing Procurement Office (RPPO) awarded a small
purchase contract1 to Appellant for the acquisition of 180,000 bar-
coded labels for the U.S. Department of Veterans Affairs (VA), VA
Medical Center, Nashville, Tennessee. Rule 4 File, Tabs A, B. The
labels were to be affixed to plastic and glass blood collection
tubes used at the medical center. Rule 4 File, Tab B.
2. Under the terms of the contract:
Each label prints a Code 39 barcode and the corresponding eye readable
number - Prefix must be a "+". Number each label from 0000001 thru 0000300
- use each number twice.
Id. In bar coding, information is represented by lines of various widths
arranged in a specific way. Although there are more than 50 different bar
code languages or symbologies, Code 39 refers to a bar code symbology
containing of 43 characters. Each character is constructed using 9
elements, consisting of 5 bars and 4 spaces. Of these elements, 6 are
always narrow and three are always wide. NATIONAL BUSINESS FORMS
ASSOCIATION, THE BUSINESS FORMS HANDBOOK 117 (Marj Green & Brian M. Jarvis
eds. 4th ed., 1990). Code 39 is the standard bar code for the U.S.
Government and was first designed and used by the Department of Defense in
1975. GRAPHIC ARTS TECHNICAL FOUNDATION, THE GATF ENCYCLOPEDIA OF GRAPHIC
COMMUNICATIONS 56 (Richard M. Romano et al. eds., 1998).
3. NWL produced and delivered the labels to the VA Medical
Center in Nashville. However, on June 7, 1999, the VA contacted
GPO to complain that the labels "won't scan." The VA reported that
when they scanned the labels the symbols "-/k" were read instead of
the prefix "+" that was required by the specifications and printed
on the labels. Rule 4 File, Tabs B, C, D.
4. An inspection by the GPO's Quality Assurance Section
confirmed the VA's findings. The Quality Assurance Section also
found that when scanned the labels produced by Appellant read
symbols different from the eye-readable symbols. Rule 4 File, Tab
F.
5. Appellant then provided three different sample labels for
the Government to test and approve. In transmitting the samples,
Appellant's President noted there were "three different ways to set
up the labels." Rule 4 File, Tab H. Appellant did not specify
what those three ways were, or how the three samples differed from
the labels delivered originally. The VA tested the samples and
found that two of the three labels successfully scanned on VA's
equipment. Rule 4 File, Tab J.
6. Thereafter on July 13, 1999, the Contracting Officer issued
a final decision formally rejecting the initial delivery of labels
and requiring Appellant to reprint the entire order. Rule 4 File,
Tab K.
7.On August 4, 1999, the Board received a timely notice of
appeal from NWL seeking to be reimbursed $1,585.95 for expenses
incurred in reprinting the rejected labels.
DISCUSSION
Appellant acknowledges that the bar-coded labels it delivered to
the Government read a number when scanned that did not correspond
to the eye-readable number printed on the labels. However,
Appellant argues that the scanning difficulties were caused by
defective Government equipment and that Government's contract
specifications were too "generic" to enable it to know what would
be acceptable to the VA. Appellant further argues that the
Government failed to correct the problem by reprogramming its
barcode readers to scan Appellant's labels correctly. After
considering the record as a whole, the Board concludes Appellant's
arguments fail for lack of evidence.
A. Appellant Has Not Met Its Burden of Proof
Under the law of Government procurement the Government is entitled
to strictly enforce its contracts, S.S. Silberblatt. Inc. v. United
States, 433 F.2d 1314 (Ct. Cl. 1970), even where a variance from
specifications is very minor. Arrow Lacquer Corp., ASBCA No. 4667,
58-2 BCA ¶ 2003 (1958); Ram Constr. Inc., ASBCA No. 22370, 79-1 BCA
¶ 13646 (1979); Coronado Paint Co., GSBCA No. 4784, 4836, 80-1 BCA
¶ 14,415 (1980). However, in doing so, the Government bears the
initial "burden of persuasion" to show that the rejected work does,
in fact, deviate from the specifications. Fillip Metal Cabinet
Company, GSBCA No. 7695, 87-2 BCA ¶ 19,822 (1987); Hardeman-Monier-
Hutcherson, ASBCA No. 11785, 67-1 BCA ¶ 6,210 (1967). The burden
then shifts to the contractor to prove either that the Government's
findings are invalid, or that the rejection should be excused.
Universal Steel Stripping Co., ASBCA No. 13686, 69-2, BCA ¶ 7,799
(1969); C.W.ROEN Construction Co., DOTCAB No. 75-43, 76-2 BCA ¶
12,215 (1976).
In the instant case, the Government has met its burden of proving
that Appellant's product did not meet contract specifications.
Indeed, Appellant acknowledges that the bar-coded labels it
delivered to the Government read a number when scanned that did not
correspond to the eye-readable number printed on the labels.
Appellant's Brief at 1. The Contracting Officer's decision to
reject the labels was bolstered by two inspection reports. Rule 4
File, Tabs D, F. The burden at that point shifted to Appellant to
prove that the findings were wrong, or not entitled to enforcement.
Appellant alleges that the Government had undisclosed problems with
its equipment that caused the scanning problem; that the
Government's specifications were so vague as to be unenforceable,
and finally, that notwithstanding the defects in the labels, the
Government could have corrected them with little difficulty.
Allegations are not converted into facts by their mere assertion,
but must be supported by proof in the record. Circle, Inc., ENG
BCA No. 6048, 95-1 BCA ¶ 27,568. Appellant shoulders the burden of
proving these allegations.
1.Undisclosed Government Equipment Problems
In its Complaint before the Board, Appellant alleges it "learned
that a letter existed that reported a similar problem with the
previous barcode label order at the Department of Veteran Affairs
Medical Center." Complaint ¶15. Appellant claimed the problem was
"a known and recurring error in the user's bar code reader."
Appellant's Brief at 1. Appellant did not produce the letter, or
identify the source of the allegation. Appellant concludes that
the previous "similar problem" was caused by defective Government
equipment and that the same defective Government equipment also
caused the problem the Government experienced with Appellant's
labels. Unfortunately, Appellant does not further describe the
nature of the "similar problem" or provide evidence regarding the
cause of the earlier problem. Given this lack of evidence, the
Board is unable to divine a causal connection between the two
problems.
Such vague allegations in a pleading do not rise to the level of
proof needed to overturn the Contracting Officer's final decision.
Assuming arguendo that the alleged letter detailing a "similar
problem" actually exists, there is nothing in the record to lead
the Board to the conclusion that the two problems, Appellant's and
the earlier contract's, were the same, or arose from the same
cause, or that Appellant's labels would have scanned properly had
the earlier "similar problem" been disclosed.
Statements contained in briefs do not rise to the level of evidence and
therefore are not given any probative value. Bayou Culvert Manufacturing,
Inc., AGBCA No. 400, 76-1 BCA ¶ 11796. The Board finds no persuasive
reason to adopt the inferences urged upon us by the Appellant, due to a
lack of any specific evidence on this point. Given the lack of evidence in
the record on this issue, the Board is not persuaded that the failure of
Appellant's product is in any way attributable to an undisclosed Government
equipment problem.
2. Vague and Generic Specifications
Appellant alleged in its notice of appeal that the GPO's
solicitation for the purchase was "generic in description, and not
at all specific in the requirements of the agency." Notice of
Appeal, July 30, 1999. Appellant does not specify what
requirements should have been included in the specifications that
would have enabled Appellant to produce labels that would scan
properly. The Board notes that Appellant was required by the
contract to produce bar-coded labels each having a "corresponding
eye readable number." Thus the number read by the barcode scanner
should match the eye readable number printed on the label. The
Board finds no ambiguity in this portion of the specifications. It
was precisely this failure of the barcode number to match the eye
readable number that prompted the Government to reject Appellant's
labels.
Appellant further alleges that its initial delivery of labels met the
contract's generic specifications and thus should have been accepted by the
Government, notwithstanding the problems the Government experienced when
scanning Appellant's labels.
In support of its conclusion that the initial delivery of labels
met the contract's specifications Appellant offers its own opinion
and a letter from its subcontractor written after the instant
appeal was filed. Appellant's subcontractor states:
You inquired as to how we created the program for running a specific recent
job. As I mentioned to you in our conversation, we prepared the consecutive
number file from samples provided by you. It was our understanding that
these samples were received by you from, and as a part of, a government
contract. It is our opinion that the file created by us and the labels
produced by you were done so to specifications provided by your government
contract in the way of actual label samples submitted.
Letter dated October 21, 1999, from Robert Perry, Barcode Solutions &
Supplies, Inc. to Robert Steiner, National (Wholesale) Label.
Appellant's proof on these allegations consists entirely of self-
serving statements. In Bayou Culvert Manufacturing, Inc., AGBCA
No. 400, 76-1 BCA ¶ 11796, the Agriculture Board held that "mere
allegations alone, without proof, are insufficient bases for
allowing a claim against the Government or for setting aside the
decision of a contracting officer. There must be probative
evidence to support such self-serving allegations." Id. at 56,304.
Similarly, allegations are not converted into facts by their
vigorous assertion. Harvex Trading Company, ASBCA Nos. 38279,
41611, 41699, 92-3 BCA ¶ 25,027 at 124,756, citing, Southern
California Engineering Co., Inc., ASBCA No. 43329, 92-2 BCA ¶
24,957.
Appellant has failed to meet its burden of proof, having provided only its
generalized, conclusory and unsupported opinions and assertions. Such
assertions are unpersuasive and will not be considered as evidence. See,
AGH Industries, Inc., ASBCA Nos. 27960, 31150, 89-2 BCA ¶ 21,637.
Appellant's unsupported self-serving allegations and statements that the
contract specifications were complied with, standing alone, do not
constitute proof. Printing Unlimited, GPOBCA No. 21-90, 1993 GPOBCA LEXIS
28, 1993 WL 516844 (November 30, 1993); cf., R.C. Swanson Printing and
Typesetting Company, GPOBCA No. 31-90, 1992 GPOBCA LEXIS 17, 1992 WL 487874
(February 6, 1992), slip op. at 45-46; Fry Communications,
Inc./InfoConversion Joint Venture, GPOBCA No. 9-85, 1991 GPOBCA LEXIS 18,
1991 WL 439272 (August 5, 1991), Decision on Remand, slip op. at 33, fn.
31, 40 (citing, Singleton Contracting Corporation, GSBCA No. 8548, 90-2 BCA
¶ 22,748; Tri-State Services of Texas, Inc., ASBCA No. 38010, 89-3 BCA ¶
22,064; Gemini Services, Inc., ASBCA No. 30247, 86-1 BCA ¶ 18,736.
Accordingly, the Board must conclude that the Appellant has failed to
sustain its burden of proof on this issue.
B. The Government Is Not Obligated to Cure Appellant's Defects
NWL argues that even if the Government could not read the labels produced
by Appellant on the Government's scanners, the Government should have
reprogrammed its scanners to enable it to do so. Appellant claims that
Government users could simply scan a label printed in the scanner's
operating manual to reset the equipment to enable the user to scan
Appellant's labels. Appellant has cited no precedent for the proposition
that the Government is obligated to change its methods of operation in
order to make an otherwise defective product function.
Assuming arguendo the Government could reprogram its scanners in the way
Appellant describes, Appellant does not explain how the end users could
distinguish2 between its labels and labels produced by other vendors.
Thus, when attempting to scan a blood collection tube bearing a bar-code
label, a VA Hospital user would not know whether to program the scanner to
read one of Appellant's labels or to revert to the original programming to
read a label produced by another vendor.
Notwithstanding the practical difficulties inherent in Appellant's
reprogramming proposal, Appellant's argument on this point suffers
from the same lack of proof that hobbles its other defenses. It
has produced no scanner manual for the Board's consideration,
claiming that personnel at the scanner's manufacturer were
uncooperative. The Board notes that Appellant was afforded a
period of 90 days to conduct discovery from the Government. See
Acknowledgment and Scheduling Order (Aug. 4, 1999); GPOBCA Rules
14, 15, GPO Instruction 110.12. The record does not reflect
whether the Appellant served any discovery requests on the
Government during this time.
Assuming arguendo that a reprogramming of the Government's equipment would
have enabled the Government to scan Appellant's labels, Appellant seeks to
reverse the burden Government contract law normally places on a contractor
who has delivered defective goods. In most Government contracts, it is the
contractor who bears the burden of correcting defective goods. Indeed, the
instant contract's Inspection clause authorizes the Contracting Officer to
order a contractor to replace or correct rejected supplies. Should the
contractor fail to do so the Government has the option of terminating the
contract or correcting the defects itself and charging the cost of
correction to the contractor. See, Contract Clause 14, GPO Contract Terms,
GPO Publication 310.2 (Rev. 5-99). The contract's Warranty clause imposes
similar obligations on the contractor to correct defective goods. See;
Contract Clause 15, GPO Contract Terms.
Similarly, under the so-called "substantial compliance" doctrine, a
defaulting contractor is afforded an opportunity, by operation of
law, to correct minor defects in shipments to the Government.
Hurt's Printing Co., Inc., GPOBCA No. 27-92, 1994 GPOBCA LEXIS 34,
1994 WL 275098 (Jan. 21, 1994) slip op. at 17; B. P. Printing and
Office Supplies, GPOBCA No. 22-91, 1993 GPOBCA LEXIS 21, 1993 WL
311371 (Feb. 5, 1993), slip op. at 12; Stephenson, Inc., GPOBCA No.
2-88, 1991 GPOBCA LEXIS 14, 1991 WL 439274 (Dec. 20, 1991), slip
op. at 24, 48-54, Cf. Uniform Commercial Code § 2-508(1) ("Where
any tender or delivery by the seller is rejected because non-
conforming and the time for performance has not yet expired, the
seller may seasonably notify the buyer of his intention to cure and
may then within the contract time make a conforming delivery.").
For the "substantial compliance rule to apply to a particular
shipment of nonconforming goods, the contractor must show that: (a)
a timely delivery of goods was made; (b) the contractor reasonably
believed, in good faith, that the supplies conformed to the
contract when shipped and that they would be acceptable; and (c)
the defects are minor in nature and capable of correction within a
reasonable period of time. See Radiation Technology, Inc. v.
United States, 366 F.2d 1003 (Ct. Cl. 1966). The only burden
Radiation Technology places on the Government is to allow the
contractor a reasonable time to correct the defects.
Appellant's position that the Government should modify its
procedures and equipment is inconsistent with Government contract
law precedent and the terms of the instant contract, both of which
charge the contractor with the responsibility for correcting
defective goods. Accordingly the Board finds that Appellant's
arguments regarding the Government's obligation to reprogram its
scanners are unpersuasive.
CONCLUSION
For the foregoing reasons, Appellant's appeal is denied.
March 6, 2003
KERRY L. MILLER
Administrative Judge
1 The contract was awarded under the competitive procedures outlined in Ch.
VII, Sec. 4, GPO Printing Procurement Regulation, GPO Publication 305.3
(Rev. 10-90).
2 The label specimens contained in the initial solicitation were compared
with both the rejected and accepted labels produced by Appellant. All
labels were virtually identical to the naked eye. See Rule 4 File Tabs B,
L, and M.