U.S. GOVERNMENT PRINTING OFFICE BOARD OF CONTRACT APPEALS WASHINGTON, DC 20401 In the Matter of ) ) the Appeal of ) ) PRINTING UNLIMITED ) Docket No. GPO BCA 21-90 Jacket No. 732-140 ) Purchase Order F-7206 ) DECISION AND ORDER This appeal, timely filed by Printing Unlimited (hereinafter Appellant or Contractor), 24 North East 46th Street, Oklahoma City, Oklahoma 73105, is from the final decision of Contracting Officer John M. Edridge of the U.S. Government Printing Office's (hereinafter Respondent or GPO or Government) Atlanta Regional Printing Procurement Office, Suite 1800, 401 West Peachtree Street, NW., Atlanta, Georgia 30365-3001 (ARPPO), dated March 8, 1990, terminating the Appellant's contract identified as Jacket No. 732-140, Purchase Order F-7206, for default for failing to meet the contract specifications; i.e., produce acceptable proofs (R4 File, Tab G).1 For the reasons which follow, the decision of the Contracting Officer is hereby AFFIRMED.2 SUMMARY FINDINGS OF FACT3 1. On December 20, 1989, the Respondent issued Purchase Order F-7206 to the Appellant to produce and deliver 581 copies of a book to the U.S. Department of the Interior, Geological Survey (Geological Survey) for a contract price of $3,234.00 (R4 File, Tab A).4 Each copy of the book consisted of 146 pages and a cover. The Government was required to furnish the Appellant with camera copy and negatives, from which the Contractor was to make 57 offset line film negatives in the 66-100 square inch group, and 16 such negatives of 187 square inches each (Rule 4 File, Tabs A and N). The contract also called for the Appellant to submit two (2) advance copies of the book by January 5, 1990, and to complete delivery by January 22, 1990 (R4 File, Tab A). 2. In accordance with the contract, on January 5, 1990, the Appellant sent advance copies of the book to the Geological Survey for approval. The books were inspected by Geological Survey personnel and found to be defective (R4 File, Tab B). Specifically, the copies of the books showed an inconsistent quality of printing (primarily in the illustrations) and they were unacceptable to the customer-agency (R4 File, Tab C). 3. Carol Moss of the Geological Survey telephoned the ARPPO concerning the problems with the advance copies (R4 File, Tab B). When he received the Geological Survey's report, the ARPPO's Gary Bush: (a) asked the customer-agency to put its complaint in writing; and (b) telephoned the Contractor to inform it of the complaint (R4 File, Tab B).5 Bush also instructed the Appellant to stop production, but was told that the job had already been printed and collated, although it was not yet bound (R4 File, Tab B). 4. The Geological Survey submitted its written complaint to the ARPPO on January 19, 1990 (R4 File, Tabs B and C). When the formal complaint was received, Bush immediately telephoned the Contractor and asked that it send an original copy and a second proof to the ARPPO for examination (R4 File, Tabs B and F). 5. The Appellant submitted the requested material on January 22, 1990. On inspection of the second proof, Bush found defects similar to the first one (R4 File, Tab B). Accordingly, on January 25, 1990, three days after the contract delivery date, he telephoned the Contractor and informed it that the second proof was also unacceptable (R4 File, Tabs B and F). 6. On February 9, 1990, Bush called the Appellant to check on its progress in correcting the defects (R4 File, Tab B). In response, the Contractor informed him that a third proof was being forwarded to the ARPPO for review (R4 File, Tab F). 7. On February 28, 1990, the third set of proofs were received by the ARPPO (R4 File, Tabs B and D). When these proofs were inspected, they were also rejected by the ARPPO, and the Contractor was immediately informed of that fact (R4 File, Tabs B and D). 8. On March 5, 1990, Bush spoke to the Robert J. Stonesifer, who represented the Appellant, about this matter. Bush was told that the Contractor ". . . had done all [it] could do to produce this order" (R4 File, Tab E). In reply, Bush said that he would have ". . . to do something with this order," since the job had been due on January 22, 1990 (R4 File, Tab E). Bush then spoke to the Contracting Officer. The Contracting Officer believed that the Appellant had been given enough time to print the job, and he decided to default the contract (R4 File, Tab E). 9. On March 7, 1990, the Contracting Officer wrote to GPO's CRB for concurrence in terminating the contract for default (R4 File, Tab F). See, GPO Printing Procurement Regulation, GPO Publication 305.3 (revised September 1, 1988), Chap. I, Sect. 10, ¶ 4.b.(i). The Contracting Officer's memorandum informed the CRB that despite three opportunities to do so, the Appellant had been unable to provide acceptable proofs of the books. Specifically, the memorandum highlighted two problems: (a) the loss of information on all proofs; and (b) some areas were so blurred as to make them unreadable (R4 File, Tab F). The Contracting Officer also stated that the GFM was, in his opinion, of good quality (R4 File, Tab F). Since he believed that the contract specifications had not been satisfied, the Contracting Officer concluded that the Appellant was in default, and that the contract should be terminated (R4 File, Tab F). 10. On March 8, 1990, the CRB gave its permission to terminate the contract (R4 File, Tab F). Accordingly, that same day the Contracting Officer issued a "Notice of Termination-Complete" (Notice of Termination) to the Appellant, informing it that its contract had been terminated for default (R4 File, Tab G).6 11. On March 14, 1990, after he had received a copy of the Notice of Termination, Stonesifer wrote to the Contracting Officer to register the Appellant's protest of the termination action (R4 File, Tab Q). In effect, the Appellant charged that the decision to terminate was wrong because the GFM was of such poor quality that it was practically impossible to produce acceptable proofs (R4 File, Tab Q). In that regard, the Contractor stated, in pertinent part: 1. The camera copy was poorly prepared on the foldins and various other line illustration pages. The lines outlining the coast and county lines are extremely fine and light while the pasted down press-on type, lines, bullets and numbers are several layers thick compounded by the fact that the emulsion is on the top of the clear material. The numbers also look like they were done on a laser printer of a low DPI. This causes extreme focus problems. When we shot to hold the fine lines the paste-on characters would fill in. When we shot to open the paste-on type we would lose the fine lines. . . . 2. Please note the 4 negatives of the foldins and the other negatives that were supplied to us. They are poorly done eventhough [sic] the camera copy they were done from was apparently better than the camera copy supplied to us. The numbers were much larger and were backed with white so they would not interfere with the lines around them. . . . In the Appellant's opinion, the camera copy it received was "unusually [sic] difficult," and therefore, it asked that it be granted the opportunity to complete the contract "as marked on the advance copy," since ". . . we do not think that without extraordinary methods it can be done any better under the circumstances[.]" (R4 File, Tab Q). 12. By Notice of Appeal, dated June 7, 1990, the Contractor appealed the Contracting Officer's termination decision to the Board. Board Rules, Rules 1(a) and 2. ISSUES PRESENTED As indicated during the prehearing telephone conference, this case presents two issues for the consideration of the Board: 1. Whether the Appellant, prior to performance, including production of the two advance copies of the book, notified the Contracting Officer of any problems or deficiencies with the Government-furnished material; and if so, did the Contracting Officer determine that the material conformed to the contract specifications? and 2. Did the Contracting Officer erroneously default the contract, thus converting the termination into one for the convenience of the Government, and entitling the Appellant to compensation for work performed, and if so, in what amount? POSITIONS OF THE PARTIES No written brief was filed by the Appellant. However, the record clearly shows that the Contractor's defense is predicated on its belief that the GFM-i.e., camera copy and negatives-was of such a poor quality that it was unable to produce better quality proofs in spite of its best efforts. PCR, pp. 3-4. In that regard, the Appellant argues that instead of furnishing "camera copy and negatives," as required by the contract, the Government sent the Contractor "negatives and numerous mylar overlays, which, when placed on top of other copy, formed the image which was to be on any individual page." See, Complaint, ¶ 2. PCR, p. 4. The Contractor also contends that the "mylar materials furnished by the Government were of extremely poor quality, were smeared with paste, tape and dirt, and contained, on different levels of mylar, or on the same sheet, varying densities of black images." See, Complaint, ¶ 3. PCR, p. 4. See also, R4 File, Tab Q. Moreover, the Appellant says that it encountered problems creating good negatives due to the distortion which occurs when shooting through layers of mylar.7 See, Complaint, ¶ 4. PCR, pp. 4-5. Therefore, the Appellant now believes that it is entitled to compensation in the amount of $2,246.00 for the work performed producing the proofs under the contract. PCR, pp. 4, 5. The Respondent, on the other hand, believes that the GFM was of good quality, and capable of producing an acceptable product. PCR, p. 4. In that regard, GPO observes that the Geological Survey used the GFM to produce a proof on its in- house copy machine which was much sharper than the three proofs supplied by the Appellant. PCR, p. 6. Furthermore, in its written brief, the Respondent argues that the Appellant has not met its burden of proof of showing that the GFM was defective, since the only evidence offered by the Contractor is its self-serving and conclusory statements. See, Respondent's Brief, dated October 8, 1993, p. 3 (citing, Hudson Garment Company, Inc., ASBCA No. 4847, 60-2 BCA ¶ 2,827; Royal Electric, Inc., ASBCA No. 3340, 62 BCA ¶ 3,571) (R. Brf.). In the Respondent's opinion, a mere "cursory examination of the original camera copy," is sufficient to show that the GFM was suitable.8 R. Brf., p. 3. Indeed, the reprocurement contractor was able to use the same materials to produce a book which met the quality standards of the contract (R4 File, Tab M). R. Brf., pp. 3-4. The Respondent also contends that even if the GFM was defective, it is too late for the Appellant to raise that as an excuse now because it had an affirmative duty to notify the Government of that fact before performance on the contract began. R. Brf., p. 4 (citing, Custom Printing Company, GPO BCA 10-87 (May 10, 1988); Southern Athletic Company, Inc., ASBCA No. 9258, 65-1 BCA ¶ 4,649; Sidran Sportswear Company, Inc., ASBCA No. 9557, 65-1 BCA ¶ 4,632; Kilgore, Inc., ASBCA No. 1387 (1953)). Finally, relying on the "black letter" principal of law which entitles the Government to strict compliance with its contract specifications, GPO believes that the contract was properly terminated in this case.9 R. Brf., p. 5 (citing, American Electric Contracting Corporation v. United States, 579 F.2d 602, 608 (Ct.Cl. 1978); Red Circle Corporation v. United States, 185 Ct.Cl. 1, 8 (1968); Jefferson Construction Company v. United States, 151 Ct.Cl. 75 (1960); Fry Communications, Inc., GPO BCA 1-87 (June 1, 1989); Copigraph, Inc., GPO BCA 20-86 (May 25, 1989); Vogard Printing, GPO BCA 7-84 (January 7, 1986); Dependable Printing Company, Inc., GPO BCA 5-84 (September 12, 1985)). Accordingly, the Respondent urges the Board to affirm the Contracting Officer's default action and dismiss the appeal. R,. Brf., p. 6. SUMMARY CONCLUSIONS10 A. The Appellant has failed to show that it notified the Contracting Officer, prior to performance, of any problems or deficiencies with the Government-furnished material. 1. The essence of the Appellant's attack on the default termination is that the Respondent breached its duty to supply GFM which was suitable for the use intended, namely, the preparation and production of quality proofs and books. PCR, pp. 3-4. 2. The GPO contract clause pertaining to GFM which is relevant to this appeal, provides, in pertinent part: 7. Government Furnished Property (GFP) The contractor is required to examine the furnished property immediately upon receipt. If at that time there is disagreement with the description or the requirements as presented in the specification (or print order/GPO Form 2511), and prior to the performance of any work, the contractor shall contact the U.S. Government Printing Office, Central Office Printing Procurement Division, Washington, DC 20401, or the originating Regional Printing Procurement Office, and contest the description. (Failure to examine the GFP/specification and bring any discrepancies to the attention of the Contracting Officer will not relieve the contractor of responsibility to perform.) The Contracting Officer will then investigate and make a determination which will be final. If the decision is reached that the original description is proper, the contractor will be required to proceed with the work. Failure to agree to the description shall be a dispute within the meaning of article 5 "Disputes." . . . See, GPO Contract Terms, Solicitation Provisions, Supplemental Specifications, and Contract Clauses, GPO Publication 310.2, Effective December 1, 1987 (Rev. 9-88), Contract Clauses, § 7 (GPO Contract Terms). 3. The Appellant alleges that when, as required by GPO Contract Terms, Contract Clauses, § 7, it brought the poor quality of the GFM to the attention of the Contracting Officer, it was informed that they were originals which could not be replaced, and was advised to do the best it could with the GFM. See, Complaint, ¶ 5; PCR, pp. 4-5. The Respondent has denied this allegation.11 See, Answer, ¶ 5. Consequently, the Appellant had the burden of proving that it notified the Respondent of its problems with the GFM in accordance with GPO Contract Terms; i.e., "prior to the performance of any work." Custom Printing Company, supra, Sl. op. 12. Therefore, as previously noted, the Board asked the Appellant to submit evidence in support of its allegation that it had brought the deficiencies with the GFM to the attention of the Contracting Officer at the outset. PCR, p. 6. See, notes 1 and 7 supra. 4. The only evidence provided by the Appellant in response to the Board's request is its letter of March 14, 1990, addressed to the Contracting Officer, which detailed the problems experienced by the Contractor with the GFM, and explained why it had difficulty producing acceptable proofs (R4 File, Tab Q). However, this letter was clearly written and sent after the Appellant had received the Notice of Termination, and was in response to it (R4 File, Tabs G and Q). Furthermore, the Appellant has not submitted any evidence which would controvert the Contracting Officer's statement at the prehearing telephone conference that he had no record of having received the letter. PCR, p. 5. Cf., B. P. Printing and Office Supplies, GPO BCA 14-91 (August 10, 1992), Sl. op. at 27-28 (where the Government claimed that certain supplies had not been delivered under the contract, the contractor was responsible for providing adequate proof of shipment). Moreover, the Board has carefully combed the record in this case and can find no evidence, either in Bush's telephone notes or in the other documents contained in the R4 File, that the Appellant, at any time prior to March 14, 1990, expressly told the Respondent about its problems with the GFM. 5. In short, there is not a scintilla of positive proof in this record to show that the Contractor met its responsibilities under GPO Contract Terms to notify the Respondent of the alleged defects with the GFM "prior to the performance of any work." GPO Contract Terms, Contract Clauses, § 7. Except for the Appellant's unsupported self- serving allegations and statements that the notification requirements were indeed complied with, the evidentiary cupboard is bare. Such unsubstantiated assertions standing alone do not constitute proof. Cf., R.C. Swanson Printing and Typesetting Company, GPO BCA 31-90 (February 6, 1992), Sl. op. at 45-46; Fry Communications, Inc./InfoConversion Joint Venture, GPO BCA 9-85 (August 5, 1991), Decision on Remand, Sl. 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); Palmetto Enterprises, Inc., ASBCA No. 20421, 76-2 BCA ¶ 11,978; S & S Constructors, ASBCA No. 20590, 76-1 BCA ¶ 11,759; Air-A-Plane Corporation, ASBCA No. 3842, 60-1 BCA ¶ 2,547. Accordingly, the Board must conclude that the Appellant has failed to sustain its burden on this issue. B. The Contracting Officer's decision to terminate the contract for default was not erroneous because the Appellant has failed to prove that the GFM was unsuitable for the use intended. 1. The ultimate question which the Board must decide is whether or not the Contracting Officer erroneously terminated the Appellant's contract for default under the circumstances of this case? In that regard, a default termination is a drastic action which may only be taken for good cause and on the basis of solid evidence.12 See, e.g., R.C. Swanson Printing and Typesetting Company, supra, Sl. op. at 25; Stephenson, Inc., GPO BCA 02-88 (December 20, 1991), Sl. op. at 20 (citing, Mary Rogers Manley d/b/a Mary Rogers Real Estate, HUDBCA No. 76-27, 78-2 BCA ¶ 13,519; Decatur Realty Sales, HUDBCA No. 75-26, 77-2 BCA ¶ 12,567). 2. The burden of proving the basis for the default is on the Government. Lisbon Contractors v. United States, 828 F.2d 759 (Fed. Cir. 1987); Chavis and Chavis Printing, GPO BCA 20-90 (February 6, 1991), Sl. op. at 11 (and cases cited therein); R.C. Swanson Printing and Typesetting Company, supra, Sl. op. at 28. The contractor has the burden of proving excusability. Switlik Parachute Company v. United States, 216 Ct.Cl. 362 (1978); Franklin E. Penny Co. v. United States, 207 Ct.Cl. 842, 852 (1975); Davis v. United States, 180 Ct.Cl. 20 (1967); Reese Manufacturing, Inc., ASBCA No. 35144, 88-1 BCA ¶ 20,358; J.F. Whalen and Company, AGBCA Nos. 83-160-1, 83-281-1, 88-3 BCA ¶ 21,066; 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; Chavis and Chavis Printing, supra, Sl. op. at 11-12 (and cases cited therein). In the latter regard, the standard "Default" clause identifies several grounds which have the effect of excusing defaulting conduct by Government contractors, including acts of the Government in either its sovereign or contractual capacity.13 See, GPO Contract Terms, Contract Clauses, § 20(c). Government acts which may extinguish a contractor's performance obligations include defective specifications, Robert E. Moore Construction, AGBCA No. 85-262-1, 90-2 BCA ¶ 22,803, and defective Government-furnished equipment. Cf., Tar Heel Canvas Products, Inc., ASBCA No. 30341, 88-1 BCA ¶ 20,347; Bogue Electric Manufacturing Company, ASBCA No. 25184, 86-2 BCA ¶ 18,925; Bristol Electronics Corporation, ASBCA Nos. 24792, 24929, 25135 through 25150, 84-3 BCA ¶ 17,543; King's Point Manufacturing Company, Inc., ASBCA No. 21279, 83-2 BCA ¶ 16,883. However, the burden of proving Government defects falls on the contractor, who must also show that such defects were the cause of the problems in question. Editors Press Incorporated, GPO BCA 03-90 (September 4, 1991) Sl. op. at 12-13; Fry Communications, Inc., supra, Sl. op. at 5 (citing, Bailfield Industries, Division A-T-O, Inc., ASBCA No. 18057, 77-1 BCA ¶ 12,348); Metal-Tech Incorporated, ASBCA No. 14828, 72-2 BCA ¶ 9,545. 3. The gravamen of this appeal is the Appellant's contention that it was impossible to provide acceptable proofs because the GFM was inadequate for that purpose. Specifically, the Contractor complains that the Government sent it poor quality mylar materials which were smeared with paste, tape and dirt, and which contained, on different levels of mylar, or on the same sheet, varying densities of black images.14 See, Complaint, ¶ 3. PCR, p. 4. See also, R4 File, Tab Q. Furthermore, the Appellant contends that good negatives were impossible to create because of the distortion which occurs when shooting through layers of mylar. See, Complaint, ¶ 4. PCR, pp. 4-5. In effect, these allegations amount to an accusation that the Respondent has breached its implied warranty that the GFM would be suitable for its intended use. 4. The Appellant had the burden of proving that the GFM was not suitable for its intended use. Bogue Electric Manufacturing Company, supra, 86-2 BCA ¶ 18,925; Metal-Tech Incorporated, supra, 72-2 BCA ¶ 9,545 (citing, Lentino's Chauncey Clothing Company, Inc., ASBCA No. 8447, 65-1 BCA ¶ 4,646; Leader Manufacturing Company, ASBCA No. 3522, 58-2 BCA ¶ 1,899). In determining what "suitability" means, the Court of Claims has said: Therefore, it is our conclusion that suitability . . . has reference to the appropriateness of the Government- furnished property for use in the process of manufacturing the items contracted for. . . . Topkis Brothers Company v. United States, 155 Ct.Cl. 648, 658, 297 F.2d 536, 541 (1961). [Original emphasis.] See also, Thompson Ramo Wooldridge, Inc. v. United States, 175 Ct.Cl. 527, 361 F.2d 222 (1966).15 In a subsequent decision, the Claims Court expanded its definition of suitability as follows: [I]t is not always true that suitability means only that it is possible that the end product can be manufactured by using the government furnished property regardless of how tedious, inconvenient, or expensive the process may be. Suitability must be determined by reference to the requirements of the contract as a whole and measured by the over-all use that can be made of the property in manufacturing the end product. [Citations omitted.] M. Rudolph Preuss v. United States, 188 Ct.Cl. 469, 482 (1969). See also, AAA Engineering and Drafting Company, Inc., ASBCA No. 21326, 77-1 BCA ¶ 12,454; Singer-General Precision, Inc., ASBCA No. 15372, 72-2 BCA ¶ 9,640, at 45,015 (one measure suitability is whether the use of the GFM enables the contractor to complete performance without undue additional expense and delay); Keco Industries, Inc., ASBCA No. 11468, 66-2 BCA ¶ 5,899, at 27,365-66 ("suitable for use" means a use which allows the contract to be performed without "unnecessary roadblocks" to performance in the form of extra work and cost). However, the "suitable for use" doctrine does not demand absolute 100% perfection in the GFM; i.e., some reasonable amount of effort may be required of the contractor in working with the GFM. The Cage Company of Abilene, Inc., ASBCA No. 23915, 82-1 BCA ¶ 15,776; AAA Engineering and Drafting Company, Inc., supra, 77-1 BCA ¶ 12,454. On the other hand, a contractor is not expected to "go to extraordinary lengths" to use the GFM, or to engage in efforts in trying to use the material which are more tedious, inconvenient and costly than should reasonably be anticipated. M. Rudolph Preuss v. United States, supra, 188 Ct.Cl. at 482; AAA Engineering and Drafting Company, Inc., supra, 77-1 BCA ¶ 12,454, at 60, 354. 5. In this case, for the GFM to be suitable for its intended use, the mylar materials had to be clean and clear enough to produce legible proofs; i.e., readable proofs which contained all the information provided and which were not blurred. Unless the GFM was sufficiently free from dirt and other impurities, and contained defined and distinct black images, it was not suitable. The GFM did not have to be "clear as a bell" or of such perfect quality that no effort would have to be expended by the Appellant to produce satisfactory proofs and books. Cf., AAA Engineering and Drafting Company, Inc., supra, 77-1 BCA ¶ 12,454, at 60,354. 6. The Respondent has furnished to the Board, at its request, originals of the GFM which were used for the Geological Survey book. See, note 1 supra. That material is now part of the record (R4 File, Tab N). PCR, p. 7. The Board has examined the GFM, and finds that the mylar materials which were sent to the Appellant were clean and clear enough to produce readable proofs with a reasonable amount of effort from the Contractor.16 Cf., AAA Engineering and Drafting Company, Inc., supra, 77-1 BCA ¶ 12,454, at 60,352. Thus, even though there is some minor evidence of paste, tape and dirt on the mylar overlays, the Board finds that it is not in sufficient amounts to render resulting proofs illegible. Furthermore, the Board fails to see the sort of varying densities of black images on the same sheet of mylar, or on different overlays, which would account for the loss of information and blurred areas found by the Contracting Officer. In the final analysis, while the GFM might not be absolutely 100% perfect, the Board concludes that it still comes well within any reasonable interpretation of the "suitable for use" doctrine. Cf., The Cage Company of Abilene, Inc., supra, 82-1 BCA ¶ 15,776, at 78,127; AAA Engineering and Drafting Company, Inc., supra, 77-1 BCA ¶ 12,454, at 60,352. Accordingly, the Board also concludes that the preponderance of the evidence supports the Respondent's position that the GFM was suitable for its intended use; i.e., was of an acceptable level of quality for the production of satisfactory proofs and books.17 Cf., Palmetto Enterprises, Inc., supra, 76-2 BCA ¶ 11,978, at 57,398; Metal-Tech Incorporated, supra, 72-2 BCA ¶ 9,545, at 44,460. 7. Because the Appellant has failed to demonstrate that its inability to furnish acceptable proofs was due to the fact that the GFM was defective and unsuitable for its intended use, it has not sustained its burden of proof in this case. Cf., Tar Heel Canvas Products, Inc., supra, 88-1 BCA ¶ 20,347; Bogue Electric Manufacturing Company, supra, 86-2 BCA ¶ 18,925; Bristol Electronics Corporation, supra, 84-3 BCA ¶ 17,543. Metal-Tech Incorporated, supra, 72-2 BCA ¶ 9,545. On this record, the Appellant's case is essentially a collection of unverified assertions focused largely upon its claimed inability to make satisfactory proofs from the GFM supplied by the Government. Thus, the Contractor has not provided any affidavits or other statements made under oath regarding the quality of the GFM at the time it was received, and the Board cannot accept argumentation alone as a substitute.18 Cf., Reese Manufacturing, Inc., ASBCA No. 35144, 88-1 BCA ¶ 20,358. Unsubstantiated assertions are not sufficient proof to permit recovery. Cf., R.C. Swanson Printing and Typesetting Company, supra, Sl. op. at 45-46; Fry Communications, Inc./InfoConversion Joint Venture, supra, Decision on Remand, Sl. op. at 33, fn. 31, 40; Palmetto Enterprises, Inc., supra, 76-2 BCA ¶ 11,978; S & S Constructors, supra, 76-1 BCA ¶ 11,759; Air-A-Plane Corporation, supra, 60-1 BCA ¶ 2,547. Therefore, the Board is unable to say that the Contracting Officer's decision to terminate the Appellant's contract under the circumstances described herein is clearly erroneous. Cf., B. P. Printing and Office Supplies, supra, Sl. op. at 28 (citing, Chavis and Chavis Printing, supra, Sl. op. at 18). Accordingly, the Board affirms the Contracting Officer's decision to default the contract because of the Contractor's failure to perform under the contract specifications, namely, to provide acceptable proofs. ORDER The Board finds and concludes that the Appellant has not proved that: (1) it notified the Contracting Officer, prior to performance, of any problems or deficiencies with the GFM; or (2) the GFM was unsuitable for its intended use. THEREFORE, the decision of the Contracting officer is AFFIRMED, and the appeal is DENIED. It is so Ordered. November 30, 1993 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 July 5, 1990. GPO Instruction 110.12, Subject: Board of Contract Appeals Rules of Practice and Procedure, dated September 17, 1984 (Board Rules), Rule 4. It will be referred to hereafter as the R4 File, with an appropriate Tab letter also indicated. As originally submitted, the R4 File consisted of ten (10) documents identified as Tab A through Tab J. However, at the prehearing telephone conference held on August 20, 1993, the Board directed the parties to supplement the record with certain additional documentary evidence. See, Report of Prehearing Telephone Conference, dated September 8, 1993, pp. 6-7 (PCR). Specifically, the Board asked the Appellant to submit evidence in support of its allegation that it had brought the deficiencies with the Government-furnished material (GFM) to the attention of the Contracting Officer at the outset, and began performance only after the Contracting Officer determined that no discrepancies existed. Id. The Appellant was also told to furnish evidence in support of its claim for compensation of $2,246.00. PCR, p. 7. The Respondent, on the other hand, was instructed to send to the Board: (a) a copy of the book covered by the contract; (b) the originals of the camera copy, film negatives, and any other materials; (c) originals of the three proofs submitted by the Appellant and found unacceptable; (d) the applicable contract specifications in both the contract in dispute and the reprocurement contract; and (e) the proof furnished by the reprocurement contractor which was found to be acceptable. Id. By facsimile transmission on August 20, 1993, Counsel for the Appellant sent the Board a copy of a letter dated March 14, 1990 (the date on the letter is March 14, 1980, but this is an obvious typographical error) from the Contractor to the Contracting Officer, explaining the problems found by the Contractor with the GFM, and stating its willingness to produce the books at the same (lower) level of quality as the proofs which resulted from those materials. See, Letter from Robert J. Stonesifer, Printing Unlimited to John Edridge, Government Printing Office, dated March 14, 1990. This letter has been made part of the R4 File and labeled Tab Q. On October 8, 1993, the Board received five documents from the Counsel for GPO-a copy of the reprocurement contract, the reprocurement contractor's proofs, a copy of the reprocured product, camera copy and negatives, and an evaluation of the reprocurement proofs. These documents have been made part of the R4 File and labeled Tabs K, L, M, N, and P. When Counsel for GPO submitted these documents he noted that the Contractor's proofs were "not presently available", but were expected by October 13, 1993, and he reserved Tab O of the R4 File for that purpose. On October 13, 1993, Counsel for GPO furnished the Board with the proofs submitted by the Appellant. The Board settled the record on October 8, 1993. PCR, p. 8. Board Rules, Rule 13. As of that date, the Appellant had not supplied the Board with any evidence in support of its claim for recovery of $2,246.00. 2 Shortly after the Contractor had noted an appeal in this case, it informed the Board that it wished to proceed under the optional Small Claims (Expedited) Procedure. Board Rules, Rules 12.1(a), (c) and 12.2. See, Appellant's Election to Proceed Under Small Claims Procedure, dated June 12, 1990. Since its claim-$2,246.00-does not exceed the $10,000.00 limit prescribed under the Small Claims (Expedited) Procedure in Board Rules 12.1(a), the matter is appropriate for resolution under that procedure. Board Rules, Rule 12.1(d). It should be noted that when the appeal was filed the Board was in transition, and for some reason not apparent in the record, the case was not processed for more than two years. Furthermore, during that time neither party made inquiries about the status of the appeal or otherwise showed an interest in pursuing the matter. Consequently, when the Board discovered this appeal among its overage cases, it contacted Counsel for the Appellant and was informed that the Contractor still wished to proceed under the Small Claims (Expedited) Procedure. See, Letter from Frederic G. Antoun, Jr. to Ved P. Gulati, GPO Board of Contract Appeals, dated December 1, 1992. Accordingly, the Board asked for and received pleadings from both parties. Board Rules, Rules 6(a) and 6(b). The Appellant also asked for a hearing on its appeal. Board Rules, Rules 8 and 17 through 25. However, at the prehearing telephone conference on August 20, 1993, the parties agreed that a hearing was unnecessary and that the issues could be resolved on the basis of the appeal record without a hearing. Board Rules, Rule 11. PCR, p. 7. 3 In accordance with the Board rules concerning the Small Claims (Expedited) Procedure, the Board's decision contains only summary findings of fact and conclusions. Board Rules, Rule 12.2(c). Furthermore, the decision in this case shall have no value as precedent in future appeals considered by the Board. Board Rules, Rule 12.2(d). See, Graphics Image, Inc., GPO BCA 13-92 (August 31, 1992), Sl. op. at 2, fn. 3. 4 The book in question was actually a report entitled "Geohydrology and Simulated Effects of Withdrawals on the Miocene Aquifer System in the Mississippi Gulf Coast Area" (R4 File, Tab C). 5 The Respondent's telephone memoranda in the file are signed with the initial "B" (R4 File, Tabs B and E). From the Contracting Officer's memorandum to GPO's Contract Review Board (CRB), dated March 7, 1990, the Board assumes that "B" is Gary Bush, who was the Contract Compliance Officer on this contract (R4 File, Tab F). 6 The default notice also told the Appellant it could be liable for any excess reprocurement costs on the items terminated (R4 File, Tab G). On March 26, 1990, the contract was reprocured from Litho Press (R4 File, Tab K). However, since the books were reprocured at a lower cost than the original contract price, the Appellant was advised that it was not liable for any excess reprocurement costs (R4 File, Tab H). 7 The Appellant alleges that when it discovered that it could not produce a negative which it felt was acceptable, and was concerned that the books produced from the GFM would not meet the Quality Level III standards required for the job, it brought the matter to the attention of the Contracting Officer. See, Complaint, ¶ 5. PCR, p 5. According to the Appellant, the Contracting Officer advised that the GFM were originals which could not be replaced, and he told the Contractor to do the best it could with the materials provided by the Government. Id. Consequently, before adjourning the conference, the Board asked the Appellant to submit evidence in support of its allegation that it had brought the deficiencies with the GFM to the attention of the Contracting Officer at the outset. PCR, p. 6. See, note 1 supra. 8 Thus the Respondent states that if the Appellant's advance copies of the book and its two later proofs are compared with the camera copy it received, the degradation in image quality from the GFM will be obvious. R. Brf., p. 3. 9 As indicated by the Respondent, one purpose of this rule is to protect the integrity of the bidding system and ensure that it is not compromised. R. Brf., p. 5 (citing, Ideal Restaurant Supply Company, VACAB No. 570, 67-1 BCA ¶ 6,237). 10 The record on which the Board's decision is based consists of: (1) the Notice of Appeal, dated June 7, 1990; (2) the R4 File (Tabs A-Q); (3) the Appellant's Complaint, dated December 1, 1992; (4) the Respondent's Answer, dated January 4, 1993; (5) the Report of Prehearing Telephone Conference, dated September 8, 1993; and (6) the Respondent's Brief, dated October 8, 1993. 11 Indeed, but for the fact that the Appellant itself introduced the GFM "notification" issue into this appeal, the Board would not have entertained the Respondent's contention that the claim should be dismissed because the Contractor failed to meet its responsibilities under GPO Contract Terms, Contract Clauses, § 7. R. Brf., pp. 4-5. In that regard, the Board Rules require that an Answer, inter alia, must ". . . set forth any affirmative defenses . . . ". Board Rules, Rule 6(b). The Appellant's lack of compliance with the notice requirements of the GFM clause as a ground for denying its claim, is such an affirmative defense. Thus, the Respondent's failure to raise the notice defense in its pleading would normally constitute a waiver of that defense. Cf., Michael, Inc., ASBCA No. 35653, 92-1 BCA ¶ 24,412, at 121,862-63 (the board rejected the Government's argument, made for the first time in its posthearing brief, that the contractor's failure to comply with the notice requirements of the GFM clause precluded an equitable adjustment for defective GFM). Also cf., General Exhibits, Inc., AGBCA No. 81-260-1, 84-1 BCA ¶ 17,071 at 85,019; Apparel Corporation of America, ASBCA No. 16064, 73-2 BCA ¶ 10,276. 12 Default terminations-as a species of forfeiture-are strictly construed. See, D. Joseph DeVito v. United States, 188 Ct.Cl. 979, 413 F.2d 1147, 1153 (1969). See also, Murphy, et al. v. United States, 164 Ct.Cl. 332 (1964); J. D. Hedin Construction Co. v. United States, 187 Ct.Cl. 45, 408 F.2d 424 (1969). 13 While the excusable events listed in the "Default" clause, all of which must be beyond the control and without the fault or negligence of the contractor, are set forth in the context of relieving the contractor from responsibility for excess reprocurement costs, it is well-settled that the same occurrences operate to extend the time available for performance and makes termination prior to that time improper. See, e.g., FKC Engineering Company, ASBCA No. 14856, 70-1 BCA ¶ 8,312. 14 The Appellant also complains that by furnishing "negatives and numerous mylar overlays, which, when pieced on top of other copy, formed the image which was to be on any individual page," the Government, in effect, breached its duty to provide "camera copy and negatives," as required by the contract (R4 File, Tab A).. See, Complaint, ¶ 2. PCR, p. 4. However, like the other complaints the Contractor expresses regarding the GFM, this matter was never raised with the Contracting Officer until March 14, 1990 (R4 File, Tab Q, ¶ 4). This allegation concerns the format of the GFM itself, a matter so patent that the deviation from the contract would be obvious the moment the Contractor received the materials. Cf., R.C. Swanson Printing and Typesetting Company, supra, Sl. op. at 41, fn. 22. Also cf., See Kings Electronics Company, Inc. v. United States, 169 Ct.Cl. 433, 438-39, 341 F.2d 632, 636 (1965). Reese Manufacturing, Inc., supra, 88-1 BCA ¶ 20,358, at 102,947. 3. ILC Steinthal, Inc., ASBCA No. 19857, 77-2 BCA ¶ 12,736, at 61,906. Therefore, if the Appellant was truly concerned about the fact that the Government provided mylar overlays instead of camera copy, knowing that it only had one month to complete the contract (from December 20, 1989 to January 22, 1990), the Board would reasonably have expected the Contractor to raise the matter immediately with the Contracting Officer as a "disagreement with the description or the requirements as presented in the specification . . .". GPO Contract Terms, Contract Clauses, § 7. Cf., Kings Electronics Company, Inc. v. United States, supra, 169 Ct.Cl. at 438-39, 341 F.2d at 636. Its failure to do so at that time waives such an objection to the format of the GFM. 15 Whether or not the GFM is actually "suitable for use," as defined by the Claims Court, is a question of fact to be determined on the basis of the unique circumstances of each case. Topkis Brothers Company v. United States, supra, 155 Ct.Cl. at 658, 297 F.2d at 541. 16 In making this finding, the Board rejects the Respondent's argument that: "[t]he reprocurement contractor used the same GFM Appellant found defective and produced a product which met the applicable Quality Level." R. Brf., pp. 3-4. See, R4 File, Tab M. In the Board's view, the fact that the GFM was successfully used to complete the contract by someone else is irrelevant to the issue of its suitability insofar the Appellant is concerned. Cf., Singer-General Precision, Inc., supra, 72-2 BCA ¶ 9,640, at 45,015. 17 The Board observes that the third (and last) proof submitted by the Respondent was received by the Government on February 28, 1990, more than a month after the delivery date established by the contract for the finished product (January 22, 1990). Although the Board has not been asked to decide the question, it notes for the record its belief that there was more than a reasonable period of forbearance, under the circumstances, to allow the Contractor an opportunity to produce acceptable proofs in this case. Cf., Stephenson, Inc., supra, Sl. op. at 22-23. It is well-settled that the Government does not waive its right to terminate a defaulted contract because it fails to do so immediately when the right to terminate accrues. Cf., Stephenson, Inc., supra, Sl. op. at 22 (citing, Frank A. Pelliccia v. United States, 208 Ct. Cl. 278, 525 F.2d 1035 (Ct. Cl. 1975)). Instead, a contracting officer has a reasonable period of time to investigate the facts and to determine what course of action would be in the best interest of the Government as the non- defaulting party. During this forbearance period the Government may terminate the contract at any time, without prior notice. See, Raytheon Service Co., ASBCA No. 14,746, 70-2 BCA ¶ 8,390; Lapp Insulator Co., ASBCA No. 13,303, 70-1 BCA ¶ 8,219, mot. for reconsid. denied 70-2 BCA ¶ 8,471. Under the law, the extent of a reasonable forbearance period depends on the facts and circumstances of each individual case. See, e.g., H. N. Bailey & Associates v. United States, 196 Ct. Cl. 156, 449 F.2d 387 (1971); Methonics, Incorporated v. United States, 210 Ct. Cl. 685 (1976). In the Board's judgment, the extra time given by the Respondent after January 22, 1990, when the Appellant was in actual default, until March 8, 1990, when the contract was terminated, was a period of reasonable forbearance and did not constitute a waiver of the Government's right to default the contract. Cf., King's Point Manufacturing Company, Inc., supra, 83-2 BCA ¶ 16,883. 18 As previously indicated, the Appellant was unable to satisfy the Board's request that it provide evidence to show that it had brought the deficiencies with the GFM to the attention of the Contracting Officer at the outset. Instead, the only evidence provided by the Contractor with such details was its letter of March 14, 1990, which was written after the contract was terminated (R4 File, Tab Q). There is no other evidence in the record to show that the Appellant communicated with the Contracting Officer, either orally or in writing, about its problems with the GFM before then.