U.S. GOVERNMENT PRINTING OFFICE
BOARD OF CONTRACT APPEALS
STUART M. FOSS, Administrative Law Judge
Appeal of CHAVIS AND CHAVIS PRINTING
Docket No. GPO BCA 20-90
February 6, 1991
DECISION AND ORDER
This appeal, timely filed by Chavis and Chavis Printing, Route 1,
Box 317-F, Bamberg, South Carolina 29003 (hereinafter Appellant),
is from the final decision of Contracting Officer Francis P.
Dillon, of the U.S. Government Printing Office's (hereinafter
Respondent or GPO) Regional Printing Procurement Office, New York
(NYRPPO), dated May 25, 1990, terminating the Appellant's
contract identified as Purchase Order C-1896, Jacket No. 713-359,
for default for failing to comply with the terms of the contract.
1 For the reasons which follow, the decision of the Contracting
Officer is hereby AFFIRMED. 2
BACKGROUND
The relevant facts in this appeal are not in dispute. The
contract in question was awarded to the Appellant by the NYRPPO
on March 20, 1990, by means of Purchase Order C-1896, which
covered two separate printing jobs (or Jackets), only one of
which is involved in this protest -- Jacket No. 713-359 (Rule 4
File, Tab A) (hereinafter R4 File). 3 The contract
specifications for Jacket No. 713-359 required the Appellant to
print 73 copies of an 868 page book with a trim size of 11 x 17,
and deliver them to Army Field Printing Plant (AFPP) at Fort
Monmouth, New Jersey, no later than 3:00 p.m. on March 31, 1990.
4 The contract also required the Appellant to drill the pages
with 3 holes, collate the pages and shrink-wrap the completed job
for shipment to the AFPP.
The Appellant failed to deliver the books covered by Jacket No.
713-359 by March 31, 1990. On April 17, 1990, after an
unsuccessful attempt to reach the Appellant by telephone, Israel
Cargin, the NYRPPO's Compliance Officer, issued a "Show Cause
Notice" informing the Appellant that the contract would be
terminated for default unless it could present extenuating facts
which would excuse the delay (R4 File, Tab B). 5 The "Show Cause
Notice" specifically advised the Appellant that the GPO was
seeking to determine if the ". . . failure to perform arose out
of causes beyond your control and without fault or negligence on
your part." [Emphasis added.]
According to the record, about the same time that the "Show Cause
Notice" was issued, the Appellant contacted the Contracting
Officer, telling him that while it was late in making delivery,
it would ship the books by April 25, 1990 (R4 File, Tabs L and
M). In a second telephone call made shortly thereafter, the
Appellant asked for financial assistance, but the request was
denied by the Contracting Officer (R4 File, Tab L). Further
telephone calls were made to the Appellant by the Contracting
Officer on April 20, 1990, and April 23, 1990, respectively, and
on each occasion he was assured that the books would be shipped
on April 25, 1990 (R4 File, Tab L). However, on April 25, 1990,
when the Contracting Officer attempted to find out if the
shipment had been made, he discovered that the Appellant's
telephone had been disconnected (R4 File, Tabs L and M). The
Contracting Officer immediately called the Assistant Manager of
GPO's Satellite Printing Procurement Office in
Charleston, South Carolina (CSPPO), and asked him to have the
Appellant contact the NYRPPO (R4 File, M). In response to this
request, the Appellant subsequently called the Contracting
Officer and told him that a partial shipment had been made (R4
File, Tab M).
In the interim, by letter dated April 22, 1990, the Appellant
answered the "Show Cause Notice," acknowledging the delay and
offering several reasons by way of explanation, including: (1)
insufficient manpower or staff; (2) late delivery of equipment
and supplies; and (3) lack of power and water at its plant for
several days (R4 File, Tab C). With respect to its equipment
problems, the record shows that in order to work on the contract
the Appellant had to buy a drill press and rent "printers" and a
copier (the Appellant's copier was broken), and this machinery
was also delivered late. Indeed, the Appellant admitted that it
did not receive the drill press until sometime in April; i.e.,
after the delivery date called for in the contract (March 31,
1990).
The Contracting Officer made two other attempts to contact the
Appellant during this period (on April 27, 1990, and April 30,
1990, respectively), only to discover that the Appellant's
telephone was still disconnected. Therefore, on May 2, 1990, the
Contracting Officer asked the Assistant Manager of the CSPPO to
visit the Appellant's plant and ascertain the status of the work.
The following day, the Assistant Manager, CSPPO, telephoned the
Compliance Officer at the NYRPPO and confirmed that a partial
shipment had been made on Jacket No. 713-359 (R4 File, Tab F).
He also informed the Compliance Officer that the Appellant's
telephone service would be restored on May 3, 1990 (R4 File, Tab
M).
On May 4, 1990, the Compliance Officer telephoned the Appellant
to notify it that it was in default and that it would only be
allowed to complete the work if shipment could be made by May 8,
1990 (R4 File, Tabs G and M). The Appellant assured the
Compliance Officer that the remainder of Jacket 713-359 would be
shipped by that date (R4 File, Tabs G and M).
In the meantime, the partial shipment had arrived at its
destination. On inspection, the books were discovered to be
undrilled, incomplete and not shrink-wrapped. 6 When asked why
the partial shipment arrived in this condition, the Appellant
claimed that it was told to ship the work that had been completed
"as is;" i.e., the Appellant understood that completed and
uncompleted work, "printed or otherwise," was to be shipped.
See, Prehearing Report at 4. The Compliance Officer, on the
other hand, told the Board that the Appellant was instructed to
ship everything that had been "completed" to that point. Id.
Furthermore, the Contracting Officer said that the NYRPPO "would
never accept a job (in all forms of completion and incompletion)
without some kind of negotiation beforehand. If we were going to
negotiate a partial termination and give (the Appellant) credit
for the work (it) did, that would be a different story. This was
not the case in this instance." See, Prehearing Report at 5.
In any event, the Appellant was notified, first by telephone, and
then in a formal "Rejection Notice," dated May 10, 1990, that the
partial shipment was defective, and that it was being rejected
because the contract specifications were not followed (R4 File,
Tabs H and I). The "Rejection Notice" offered the Appellant an
opportunity to "cure" these defects at its own expense, and to
deliver a satisfactory product to the AFPP by May 18, 1990.
Further, the "Rejection Notice" demanded a written explanation of
the reasons for the defects and a description of the quality
control measures which would be implemented to guard against
future occurrences of poor performance. Nothing in the record
indicates that the Appellant responded to the "Rejection Notice,"
either in writing or by telephone.
On May 22, 1990, the Compliance Officer issued a second "Show
Cause Notice" with respect to Jacket No. 713-359, inviting the
Appellant, once again, to present extenuating facts which might
excuse the failure to perform in accordance with the contract's
terms (R4 File, Tab M). Instead of responding to the "Show Cause
Notice," the Appellant filed an appeal with the Board (R4 File,
Tab N). Thereafter, by letter dated May 25, 1990, the
Contracting Officer notified the Appellant that its contract
relating to Jacket No. 713-359 was terminated for default (R4
File, Tab O).
POSITIONS OF THE PARTIES
The Appellant admits that it did not fulfill all of the
specifications necessary to complete the work on Jacket No.
713-359, but nonetheless claims that it is entitled to
compensation for all of the work which was accomplished. 7 As
for its failure to ship the books on time, the Appellant offers
the following reasons: (1) the supplies and paper which it had
ordered were delivered late; (2) it had to buy a drill press
which was not delivered until April; (3) because its copier was
broken, it had to rent printers and copiers which were also
delivered late; (4) there was a power failure; and (5) there was
a shortage of staff to do the work. 8 In addition, the Appellant
tells us that it had done a number of small jobs for the
Government in recent years without experiencing any problems, but
this was its first large printing order.
The Respondent argues that its default termination of Jacket No.
713-359 was justified. In that regard, the Respondent believes
that a default was appropriate in this case because the
Appellant: (1) missed the original shipping dates; (2) made a
partial shipment which consisted of work not in compliance with
the terms of the contract; (3) was given an additional
opportunity to cure the defects; and (4) failed to do so in a
timely manner. According to the Respondent, under the clauses
governing GPO contracts, the reasons given by the Appellant to
explain the product defects and the shipping delay are not within
the classes of acceptable reasons which would excuse a failure to
perform. Rather, to the Respondent the Appellant's reasons are
essentially failures of subcontractors and suppliers, which might
give rise to a cause of action against them, but which would not
otherwise prevent the Government from defaulting the Appellant.
DISCUSSION
The sole issue before the Board is whether or not the Contracting
Officer was in error in terminating the Appellant's contract
under Jacket No. 713-359 for default. If so, then the
termination is converted into one of convenience and the
Appellant would be allowed to recover for the work performed.
See, Contract Terms, ¶¶ 19.(c),(d),(e), 20.(g). See, e.g.,
Bonnar-Vawter, GPOCAB [No Docket Number], at 5 (1975) (citing,
Racon Electric Company, ASBCA, 1962 BCA ¶ 3,528 (October 3,
1962). 9 In the judgment of the Board, the Appellant has
admitted to facts which justified the cancellation of its Jacket
No. 713-359 contract for at least two reasons, either one of
which would have been sufficient to support the action -- an
unexcused failure to deliver the books on time and a failure to
fully perform in accordance with the contract specifications with
respect to the partial shipment.
1. Untimely Delivery
The Board derives its powers solely from the "Default" clause of
the contract. See, e.g., Ascot Tag and Label Company, Inc., GPO
BCA 14-85, at 23 (August 7, 1987); Peake Printers, Inc., GPO BCA
12-85, at 6 (November 12, 1986). Under the "Default" clause the
Contracting Officer may, by written notice of default to the
contractor, terminate a contract, in whole or in part, if the
contractor fails to: (1) deliver the supplies or perform the
required services within the time specified or any extension
which may have been granted; (2) make progress on the work, so as
to endanger performance of the contract; or (3) perform any of
the other provisions of the contract. Contract Terms, ¶¶ 20.(a)
(1)(i), (ii),(iii). Further, where a contract is terminated for
default and the work must be reprocured, the contractor will be
held responsible for excess procurement costs and possible
liquidated damages. Id., 20.(b), 22.(d). However, the
contractor is excused from paying such reprocurement costs or
damages if the failure to perform or to deliver on time results
from causes beyond the control and without the fault or
negligence of the contractor. Id., ¶¶ 20.(c), 22.(e), 23. Such
causes include, but are not limited to, acts of God or of the
public enemy, acts of the Government in either its sovereign or
contractual capacity, fires, floods, epidemics, quarantine
restrictions, strikes, freight embargoes, and unusually severe
weather -- but in each case, the failure to perform must be
beyond the control and without the fault or negligence of the
contractor. Id., 20.(c). Where the failure to perform is caused
by the default of a supplier or subcontractor, the cause of the
default must be beyond the control of both the contractor and
subcontractor, and without the fault or negligence of either, in
order for the contractor not to be liable for any excess costs
for failure to perform, unless the subcontracted supplies or
services could have been secured from other sources in sufficient
time to meet the required delivery schedule. Id., ¶ 20.(d).
The Government's initial burden in default cases is to show that
the contractor has failed, in some respect, to perform on the
contract. See, e.g., Vogard Printing Corporation, GPOCAB 7-84,
at 5 (January 7, 1986) (citing, Caskel Forge, Inc., ASBCA No.
6205, 61-1 BCA ¶ 2,891; National Aviation Electronics, Inc.,
ASBCA No. 18256, 74-2 BCA ¶ 10,677). Because, the findings and
determinations of contracting officers are, as a rule, considered
prima facie correct, once the default has been established the
contractor must then demonstrate that the default was excusable.
See, e.g., Remco Business Systems, Inc., GPOCAB [No Docket
Number], at 2-3 (October 5, 1977) (citing, Norm Evans
Construction Company, AGBCA (1975), 75-1 BCA ¶ 11,229); Mill
River Press Lithographers, Printers, GPOCAB [No Docket Number],
at 4 (August 12, 1977) (citing, Beco, Inc., ASBCA, 1964 BCA ¶
4,403; Highway Products, Inc., ASBCA, 69-2 BCA ¶ 8,064); Vogard
Printing Corporation, supra (citing, B. M. Harrison
Electrosonics, Inc., ASBCA No. 7684, 1963 BCA ¶ 3,736; Hy-Cal
Engineering Corporation, NASA BCA Nos. 871-18 and 772-7, 75-2 BCA
¶ 11,399).
If the default termination is based on untimely performance, the
contractor's burden is four-fold: (1) to prove affirmatively that
the delay was caused by or arose out of a situation which was
beyond the contractor's control and it was not at fault or
negligent; (2) to show that performance would have been timely
but for the occurrence of the event which is claimed to excuse
the delay; (3) to show that it took every reasonable precaution
to avoid foreseeable causes for delay and to minimize their
effect; and (4) to establish a precise period of time that
performance was delayed by the causes alleged. See. e.g., Loose
Leaf Devices Company, GPOCAB [No Docket Number], at 4-5 (1977)
(citing, Ace Electronics Associates, Inc., ASBCA 13899, 69-2 BCA
¶ 7,922 (1969)); Allegheny Plastics, Inc., GPOCAB [No Docket
Number], at 5 (1975); Scanforms, Incorporated, GPOCAB [No Docket
Number], at 3 (September 24, 1975); American Printing and
Publishing, Inc., GPOCAB [No Docket Number], at 3-4 (September
19, 1975) (citing, Lee K. Geiger Construction Company, GSBCA,
67-1 BCA ¶ 6,189; American Construction Company, Inc., GSBCA,
65-2 BCA ¶ 4,964). This burden must be carried by substantial
evidence -- unsupported reasons by way of explanation are not
enough -- and the contractor must also show that the delay in
contract performance was due to unforeseeable causes beyond its
control and without any contributory negligence on its part.
See, e.g., Kaufman DeDell Printing, Inc., GPOCAB [No Docket
Number], at 5 (November 6, 1979) (citing, Empire State Tree
Service, VACAB, 71-1 BCA ¶ 40,498); Bonnar-Vawter, Incorporated,
GPOCAB, supra, at 5-6 (citing, H. C. Thode, Inc., ASBCA, 74-1 BCA
¶ 10,418); Loose Leaf Devices Company, GPOCAB, supra, at 7
(citing, Aargus Poly Bag, GSBCA, 1976 BCA ¶ 11,927 (1976)).
As indicated above, the Appellant admits that it did not meet the
contract delivery date in this case. However, it offers the late
deliveries of its vendors of supplies, paper, and machinery, as
well as a power failure and a shortage of staff to do the work,
as excuses for its failure to complete the contract on time. The
Board agrees with the Respondent that none of these reasons fall
within the range of acceptable occurrences or events which would
excuse the Appellant's failure to perform. See, e.g., Jomar
Enterprises, Inc., GPO BCA 13-86, at 3-5 (May 25, 1989).
Furthermore, the Appellant offers no evidence which would
demonstrate that the failure of its suppliers to perform was due
to their negligence or reasons beyond their control. See, e.g.,
Loose Leaf Devices Company, supra, at 7 (citing, Williamsburg
Drapery Co. v. United States, 177 Ct. Cl. 776, 799, 369 F.2d 729
(1966)).
It is accepted that a contractor has an obligation to reasonably
assure itself of the availability of necessary supplies and
machinery prior to making a contract commitment with the
Government. See, e.g., Scanforms, Incorporated, supra, at 4
(citing, Woodhull Construction Company, ASBCA, 57-1 BCA ¶ 1,260;
First Dominion Corporation (1967), GSBCA, 69-1 BCA ¶ 7,488);
American Printing and Publishing, Inc., supra, at 4; Allegheny
Plastics, Inc., supra, at 5-7 (citing, Vereinigte Osterreichische
Eisen and Stahlwerke Aktiengesellschaft, IBCA, 1962 BCA ¶ 3,503).
Indeed, as a general rule the unexplained breakdown of machinery
is not excusable per se; in fact, the difficulty attending the
performance of a contract is not an excusable cause of delay.
Id., at 7 (citing, Carnegie Steel Company v. United States, 240
U.S. 156 (1916)). The reason for these rules is simple --
implicit in a contractor's promise to perform is its assurance
that it has the ability to perform; i.e., that there is available
machinery and replacement parts so that performance will not be
delayed due to machinery breakdown. Id. As explained by one of
GPO's ad hoc boards:
Every contractor impliedly represents, when he makes his bid,
that he can accomplish what he sets out to do, within the time
upon which there was an agreement; and by such implied
representation, he is not, in the eyes of the law, entitled to
maintain a mental reservation, to the effect, that he can perform
within the time required provided the material suppliers lives
[sic] up to their commitment and he can obtain the paper stock in
time to maintain the required schedule. [Citation omitted.] The
failure of the paper supplier to make timely delivery of the
necessary stock does not excuse the contractor from resulting
delays in contract completion. [Citation omitted.]
Scanforms, Incorporated, supra, at 4. In short, it is the
contractor's responsibility to have labor, plant, equipment,
finances and material adequate for contract performance.
Allegheny Plastics Inc., supra, at 7 (citing, Fulton Shipyard,
IBCA, 71-1 BCA ¶ 8,616).
In the Board's judgment, the Appellant's reliance on the delays
of its vendors of supplies, paper and machinery to excuse its own
failure to ship the books on time, afford it no protection under
the law. The Appellant had an obligation under the contract to
plan for its performance, including, prior to submitting its bid
and binding itself to the delivery terms of the contract,
assuring that essential materials and machinery would be
available. In the absence of any evidence from the Appellant
that the late receipt of supplies and machinery was due to
negligence on the part of its suppliers, the Board must conclude
that the untimely shipment under Jacket No. 713-359 was
attributable to the Appellant's own failure to properly plan for
its performance. The burden of proof was on the Appellant to
demonstrate that its failure to perform was due to causes beyond
its control and without its fault or negligence. However, as the
Board sees it, the cause of the Appellant's delay was not
unforeseeable and beyond its control and without its fault or
negligence. Accordingly, the Appellant has not met its burden of
proof with respect to excusing its failure to make a timely
shipment under Jacket No. 713-359.
2. Failure to Comply with Specifications
In addition to requiring receipt of the shipment under Jacket No.
713-359 at the AFPP by March 31, 1990, the contract also mandated
that, among other things, the books had to be drilled with 3
standard holes 1/4 inch in diameter, centered on the left side,
and shrink-wrapped in sets. It is undisputed in the record that
the late partial shipment made by the Appellant consisted of
books which, contrary to these contract specifications, were
undrilled and not shrink-wrapped. Indeed, while the record
indicates that the Appellant received its drill press in April
before it made its partial shipment, it offers no explanation
why, nonetheless, it shipped undrilled books. Because of these
defects, the Respondent rejected the shipment. Although the
Appellant was offered a reasonable opportunity to "cure" the
defects, it never did so.
As previously noted, the general rule is that the Government is
entitled to strictly enforce compliance with its specifications.
See, e.g, Rose Printing Company, GPO BCA 2-87, at 6 (June 9,
1989) (and cases cited therein); Fry Communications, Inc., GPO
BCA 1-87, at 5 (June 1, 1989); International Lithographing, GPO
BCA 1-88, supra, n. 6; Mid-America Business Forms Corporation,
GPO BCA 8-87, supra, n. 6. However, 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, supra, n. 6, at 20 (citing, Fillip Metal Cabinet Company,
GSBCA, 87-2 BCA ¶ 19,822 (1987); Hardeman-Monier-Hutcherson,
ASBCA, 67-1 BCA ¶ 6,210 (1967); Ramar Co., ASBCA, 72-2 BCA ¶
9,644 (1972); Pams Products, Inc., ASBCA, 72-1 BCA ¶ 9,401
(1972)). 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, GPO BCA 1-88, supra, n.
6, at 21 (citing, Universal Steel Stripping Co., ASBCA, 69-2 BCA
¶ 7,799 (1969); C. W. Roen Construction Co., DOTCAB, 76-2 BCA ¶
12,215 (1976); Continental Chemical Corp., GSBCA, 76-2 BCA ¶
11,948 (1976)).
Here, the Respondent met its "burden of persuasion" when the
Compliance Officer told the Appellant, first by telephone, and
then in a formal "Rejection Notice" on May 10, 1990, the specific
reasons the partial shipment was being refused. The burden at
that point shifted to the Appellant to prove that the Compliance
Officer's findings were wrong. Instead of controverting the
Respondent's evidence, the Appellant admits to these
deficiencies. Rather, for its defense the Appellant relies on
its understanding of shipping instructions it was given by the
Compliance Officer. According to the record, the Compliance
Officer told the Appellant to ship all the work which had been
"completed" to that point. The Appellant interpreted these
directions to mean that it should ship work that had been
"completed as is."
The dictionary defines the word "complete" as "having all
necessary or normal parts, elements, or steps; whole; lacking
nothing essential." WEBSTER'S II NEW RIVERSIDE UNIVERSITY
DICTIONARY, at 290 (1984). In the context of this appeal,
instructions to ship "completed" work should have told the
Appellant to ship books which were "lacking in nothing essential;
i.e., finished in accordance with the contract specifications,
including being drilled, collated, and shrink-wrapped. The Board
believes it is patently unreasonable to construe instructions to
ship "completed" work as authority to ship work "as is" or not in
compliance with the contract specifications. Therefore,
considering the record as a whole, the Board concludes that the
Appellant has not carried its burden of proving that the
Compliance Officer's findings in this regard were clearly
erroneous.
Admittedly, this was the Appellant's first major printing job for
the Government, and hence it may have been somewhat
inexperienced. However, in the Board's view, a contractor's
inexperience is no excuse for its failure to perform. As the
Board has observed in other circumstances:
It is the duty of the Government to treat all bidders fairly.
Indeed, the very nature of advertised competitive procurements
mandates such action in order that commercial providers of goods
and services will be encouraged to compete for the public's
business. This requirement places a heavy burden upon
contracting officials to strictly adhere to the exact letter of
contract language once award has been made. To do otherwise
would be patently unfair to the unsuccessful bidders and would
discourage future participation in Government solicitations. The
downside of this is that an innocent bidder, as here, who might
not fully comprehend the provisions of the solicitation will
receive the award as low bidder and be economically injured as a
result. Absent Government fault contributing to the commission
of such error, there is no means of negating such an unfortunate
consequence.
Graphicdata, Inc., GPO BCA 28-88, at 9 (February 9, 1990).
CONCLUSION
Considering the record before it as a whole, the Board is unable
to say that the Contracting Officer's decision to terminate the
contract for Jacket No. 713-359 for default under the
circumstances described is clearly erroneous. Therefore, the
Board affirms his decision and denies the appeal. 10
It is so Ordered.
_______________
1. The contract specifications for Purchase Order C-1896
included a second, separate order for books (65 copies of a 534
page book), which was covered by Jacket No. 713-360. Jacket No.
713-360 was terminated by the Contracting Officer on May 16,
1990, also for failure to comply with the terms of the contract.
By letter dated May 24, 1990, the Appellant filed an appeal with
the Board protesting the termination of both Jacket Nos. 713-359
and 713-360. However, during the prehearing telephone conference
conducted by the Board on November 13, 1990, the Appellant
admitted that no work had been accomplished on Jacket No.
713-360, and withdrew its claim with respect to it. Therefore,
the only issue before the Board is whether or not the contracting
officer's termination of Purchase Order C-1896, Jacket No.
713-359 was erroneous.
2. The termination letters issued by the contracting officer on
May 16, 1990, and May 25, 1990, mistakenly referred to the Jacket
numbers in Purchase order C-1896, and Jacket No. 713-960 and
Jacket No. 713-959 respectively. It is clear to the Board that
the misidentification of the Jacket numbers in Purchase order
C-1896 was an inadvertent clerical error, and is without material
significance in the context of this case, particularly since the
Appellant correctly identified the Jacket numbers in its appeal
letter of May 24, 1990.
3. See note 1 supra.
4. The books were to be printed from Government-supplied camera
ready copy to be furnished to the Appellant by March 20, 1990.
There is nothing in the record before the Board to indicate any
failure by the Government to meet its responsibilities under the
contract.
5. This "Show Cause Notice" also addressed the Appellant's
failure to deliver the books covered by Jacket No. 713-360. In
short, the Appellant had made no delivery under the contract
whatsoever when the "Show Cause Notice" was issued.
6. During the prehearing telephone conference, a dispute arose
between the parties concerning whether the partial shipment was
collated, as required by the contract specifications. The
compliance officer contended that the books were uncollated,
while the Appellant's President insisted that they were. See,
Prehearing Telephone Conference Report, at 3 (hereinafter
Prehearing Report). In light of the Appellant's other
performance deficiencies, the Board finds it unnecessary to
resolve this factual dispute in the context of this appeal
because it is not controlling of the outcome. As will be
discussed infra, the Board has consistently followed "black
letter" procurement law which holds that the Government is
entitled to strictly enforce its contracts, even where a variance
from specifications is very minor. See, e.g., International
Lithographing, GPO BCA 1-88, at 20 (January 29, 1989) (and cases
cited therein); Mid-American Business Forms Corporation, GPO BCA
8-87, at 18-19 (December 30, 1988). See also, Broyles
Typesetting Service, [No Docket Number], at 5 (December 3, 1979)
("The general and overriding principle is that the Government is
entitled to strict compliance with the specifications.").
Consequently, in the Board's judgment, where numerous
shortcomings concerning a contractor's performance are alleged,
one deficiency, more or less, among several is without
controlling significance.
7. The Appellant has submitted a voucher, dated November 7,
1990, demanding payment in the amount of $6,018.73, for all of
the printing on Jacket No. 713359, and for storage and accounting
fees. The voucher also includes a claim for interest based on an
alleged violation of the Prompt Payment Act of 1982. as amended
(PPA). 31 U.S.C. § 3901 et seq.. The Respondent argues that the
PPA does not apply to GPO. The Board has examined the PPA and
its legislative history, and agrees with the Respondent. Simply
stated, the PPA was enacted to provide incentives for the Federal
Government to pay its bills on time. H.R. REP. No. 97-461, 97th
Cong., 2d Sess. 1, reprinted in 1982 U.S. CODE CONG. & AD. NEWS
111 (H.R. REP.). Congress sought to enforce its prompt payment
policy by authorizing interest for late payments. 31 U.S.C. §
3902. However, by defining "agency" coverage in terms of the
Administrative Procedure Act (APA), 5 U.S.C. § 551, Congress
evinced a clear intent to limit the PPA to Executive Branch
Agencies. H.R. REP. at 16, reprinted in 1982 U.S. CODE CONG. &
AD. NEWS 126. Because GPO is an agency of the Legislative Branch
of the Federal Government, it does not fall within the confines
of the APA, or any other statute, such as the PPA, which uses the
APA to define its coverage. See, e.g., Gray Graphics Corporation
v. U.S. Government Printing Office, et al., Civil Action No.
82-2869, Sl. op. st 6 (D.D.C. 1982) (Small Business Act).
Accord, Ethnic Employees of the Library of Congress v. Boorstin,
751 F.2d 1405, 1416, n. 15 (D.C. Cir. 1985) (Freedom of
Information Act).
8. At the prehearing telephone conference, the Appellant claimed
that it was initially unaware that it could have received a
partial payment in advance to hire additional staff. However,
when the Appellant did ask the Respondent for such an advance,
its request was refused. The record indicates that the
Appellant's request for an advance payment was presented to the
Contracting Officer by the Compliance Officer on April 17, 1990,
and that it was denied because the shipment was already late (R4
File, Tab L). Partial payments are addressed in paragraph 25 of
GPO Contract Terms, which governs the rights and obligations of
the parties under this contract. GPO Publication 310.2,
effective December 1, 1987 (Rev. 9-88), at 23 (hereinafter
.Contract Terms.) In that regard, partial payments are
authorized if the contractor submits a proper voucher and
furnishes acceptable evidence of shipment or delivery. Since no
work under Jacket No. 713-359 had been shipped as of the date of
the request for financial assistance, there was no basis for a
partial payment to the Appellant.
9. 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. Prior to the Board's
creation, appeals from decisions of GPO Contracting officers were
considered by ad hoc Contract Appeals Boards (the decisions of
these ad hoc boards are hereinafter cited as GPOCAB). While the
decisions of these ad hoc boards are not legally binding on the
Board, it is the Board's policy to follow them where applicable
and appropriate.
10. Under the Board's ruling the Appellant could be liable for
excess reprocurement costs. However, there is nothing in the
record before the Board which would indicate whether the NYRPPO
reprocured the contract or, if it did so, the amount of excess
reprocurement costs. Therefore, the amount of excess
reprocurement costs, if any, has not been considered in this
appeal since it was not before the Board.