U.S. GOVERNMENT PRINTING OFFICE
BOARD OF CONTRACT APPEALS
WASHINGTON, D.C. 20401
In the Matter of )
)
The Appeal of )
)
HURT'S PRINTING COMPANY, INC. ) Docket No. GPO BCA 27-92
Jacket No. 323-591 )
Purchase Order 20269 )
DECISION AND ORDER
By letter dated August 12, 1992, Hurt's Printing Company, Inc.
(Appellant or Contractor), 1915 Southeastern Avenue,
Indianapolis, Indiana 46201, filed a timely appeal from the
July 24, 1992, final decision of Contracting Officer Dan
Clurman, of the U.S. Government Printing Office's (Respondent
or GPO or Government) Printing Procurement Department (PPD),
Washington, DC 20401, terminating the Appellant's contract
identified as Jacket No. 323-591, Purchase Order 20269, for
default because of the Appellant's "inability to produce [the]
job according to the specifications" (R4 File, Tab A).1 For
the reasons which follow, the decision of the Contracting
Officer is hereby AFFIRMED, and the appeal is DENIED.2
FINDINGS OF FACT3
1. On June 12, 1992, the Respondent issued Purchase Order
20269, Jacket No. 323-591, to the Appellant for the production
of 25,000 "Joint Service Commemoration Medal Certificates"
(Medal Certificates) (R4 File, Tab B). The Medal Certificates
had been requisitioned by the U.S. Department of Defense,
Defense Logistics Agency (DLA) (R4 File, Tab B). Apart from
the text which was to be in black ink, the Purchase Order
indicated that the ribbon depicted on the Medal Certificates
was to be printed in green (PMS 349) and blue (PMS 292) ink,
and the entire product had to meet the quality standards for
Quality Level III (R4 File, Tab B).4
2. Production of the Medal Certificates required the
Appellant to perform printing, stamping and embossing tasks
(R4 File, Tab B, Attachment 2). On June 12, 1992, along with
the issuance of the Purchase Order, the Government furnished
the Contractor with: (a) a film negative for the base black
image; (b) a reprint copy to be used to create the artwork for
the 2-color ribbon; and (c) a style sample (R4 File, Tab B,
Attachment 1, and Tab J). The style sample consisted of two
Joint Service Commemoration Medals, a lapel pin, and a hanger
ring for each medal, together in a presentation case.
According to the contract, the Appellant was to create the
necessary brass dies and to submit not less than 25 "Prior to
Production" samples to the Government for approval by June 16,
1992 (R4 File, Tab B, Attachment 2, and Tab F). The contract
was to be completed by June 26, 1992, with the delivery of the
25,000 Medal Certificates to the DLA's Cameron Station
facility located at Building 6, Door 21, 5010 Duke Street,
Alexandria, Virginia 22304-6100 (R4 File, Tab B). The
contract price for this work was $5,463.00 (R4 File, Tab B).
3. The Appellant failed to furnish the required "Prior to
Production" samples by June 16, 1992. When Charles H. Homer,
an employee in the PPD's Contract Compliance Section,
telephoned the Appellant's Office Manager/Customer Service
Representative, Ray Jordan, on June 24, 1992, to find out why
the samples were delayed, he was told that the Appellant had
experienced some "trouble" with the die subcontractor, but
that the Contractor would immediately ship the "Prior to
Production" samples so that they would arrive the next day-
June 25, 1992 (R4 File, Tab H).5
4. Since the contract terms provided the Government with
three (3) workdays to approve or disapprove the sample, Homer
was concerned that the Appellant could not meet the contract
completion date-June 26, 1992-and he recommended that a "Cure
Notice" be issued to the Contractor (R4 File, Tab B,
Attachment 2, and Tab H). Accordingly, that same day-June 24,
1992-a "Cure Notice" was sent, by telegram, to the Appellant,
which stated that the failure to provide the samples in a
timely manner was a "condition . . . endangering performance
of the contract . . .", and that it had five (5) days to
inform the Respondent, in writing, of the "measures adopted
which have cured such condition[.]" (R4 File, Tab H).6 In
response to the "Cure Notice," the Appellant wrote to the
Contracting Officer on June 26, 1992, and explained, in
pertinent part:
In regard to our prior-to-production samples being late our
die maker (Universal Die Company) was two days late than
originally [sic] promised to us. After receiving these
dies we discovered one of the dies was made incorrectly and
had to be remade, therefore[,] this added two more days to
our already late schedule. The cause of this problem was
more difficult to control because of another firm making
the die and not performing on their [sic] commitment to us.
* * * * * * * * * *
The problem now has been cured and the remainder of the job
will be completed in a timely manner.
See, Letter from David Hurt, the Appellant's President to the
Respondent's Contracting Officer, dated June 26, 1992 (Hurt
Letter). [Emphasis added.]7
5. When the "Prior to Production" samples were examined
after they were received, it was discovered that the green and
blue ribbon, and the star cluster in the hanger ring, failed
to conform to the contract specifications (R4 File, Tab I).
Specifically, the inspection revealed that the ribbon was flat
and not rounded, as shown in the style sample provided to the
Appellant, and more space was needed between the stars, which
were too close together (R4 File, Tab I). Accordingly, the
Respondent rejected the "Prior to Production" samples,
informed the Appellant of the defects found, and, because it
had to remake the hanging medal and ribbon dies, the
Contractor was asked to provide a second set of samples (R4
File, Tab F).8 Although the Respondent asked for the revised
samples by July 9, 1992, they were not received until July 13,
1992 (R4 File, Tabs F and J).9
6. When the second set of "Prior to Production" samples were
inspected, they, too, were found to be defective, essentially
for the same reasons (R4 File, Tab J). Specifically, an
examination of the revised samples disclosed that while the
ribbon was now rounded, the colors were washed out, and the
spacing between the stars was still inadequate (R4 File, Tab
J). Furthermore, the inspection revealed a new defect-the
Department of Defense (DoD) seal on the bottom of the second
set of samples was too high (R4 File, Tab J). Therefore, the
revised samples were also rejected by the Respondent (R4 File,
Tab F).
7. Because the Appellant was having difficulty producing dies
which would provide satisfactory "Prior to Production"
samples, the Respondent asked the Contractor to return the
Government-furnished material to see if the cause of the
problem was in the material itself (R4 File, Tab F). However,
an examination of the Government-furnished material disclosed
no defect (R4 File, Tab F).
8. Since the Appellant was unable to meet the DLA's needs,
on July 23, 1992, the Contracting Officer sought the approval
of the Respondent's Contract Review Board (CRB) to terminate
the contract for complete default (R4 File, Tab F).10
Termination was requested because of the Appellant's
"inability to deliver satisfactory [P]rior to [P]roduction
samples" (R4 File, Tab F). By July 24, 1992, all of the
members of the CRB had concurred in the action proposed by the
Contracting Officer (R4 File, Tab F).
9. On July 24, 1992, the Contracting Officer issued a
Notice of Termination-Complete (Notice of Termination) to the
Appellant informing it that the contract had been terminated
for default because of the Contractor's "inability to produce
this job according to the specifications" (R4 File, Tab A).
However, it is clear that the specific reason for the
cancellation of the contract was the Appellant's inability to
provide satisfactory "Prior to Production" samples (R4 File,
Tab F).11
10. The Notice of Termination also informed the Appellant
that it would be responsible for any excess reprocurement
costs, if the Government decided to reprocure the Medal
Certificates from another contractor (R4 File, Tab A). In
fact, after the contract was defaulted, the Respondent took
immediate steps to reprocure the job (R4 File, Tabs C, D, and
E). Thus, on August 6, 1992, the Contracting Officer notified
the Appellant that the contract had been reawarded at a
contract price of $5,878.70, and that it was liable for the
excess reprocurement costs (R4 File, Tab D).12 The
Contracting Officer also wrote to GPO's Financial Management
Service the same day, authorizing the recovery of the excess
reprocurement costs-$415.70-from the Appellant's account (R4
File, Tab C).
ISSUES PRESENTED
As indicated by the Board at the close of the presubmission
conference held on September 11, 1993, three questions are
presented by the facts in this case:
1. Did the "Prior to Production" samples submitted by the
Appellant conform to the contract specifications?
2. Did the Respondent's failure and/or refusal to inspect
the artwork, at the request of the Contractor, before the
"Prior to Production" samples were prepared and submitted
for approval, amount to a breach of the Government's duty
to cooperate in the performance of the contract?
3. Did the Contracting Officer erroneously terminate the
contract for default, thus converting the termination into
one for the convenience of the Government, and if so, what
is the amount of the Contractor's compensation for work
performed?
See, Report of a Presubmission Telephone Conference, dated
November 17, 1993, pp. 5-6 (PTCR).
POSITION OF THE PARTIES
The central premise in the Appellant's defense against the
Respondent's default termination action is its two-fold belief
that: (1) the defects found by the Respondent in the "Prior to
Production" samples were minor and/or insignificant; and (2)
the discrepancies could have been corrected if the Government
had cooperated with the Contractor in the production of
acceptable materials. PTCR, p. 4. See also, Appellant's
Brief, dated December 17, 1993, p. 1, ¶ 3 (App. Brf.). In
arguing that the defects in the samples were minor, the
Contract seems to rely heavily a statement allegedly made by a
"GPO representative" during discussions concerning the revised
set of "Prior to Production" samples, that: ". . . I don't
think the spacing of the stars is a major factor." See,
Affidavit of Ray Jordan, dated December 3, 1993 (Jordan
Affidavit).13 However, the crux of the Appellant's position
is found in its contention that GPO's refusal to inspect, at
the Contractor's request, the artwork created from the actual
ribbons and medallions furnished by the Government before the
"Prior to Production" samples were made, amounts to a breach
of the Respondent's duty to cooperate with the Contractor in
the performance of the contract. PTCR, p. 4; App. Brf., p. 1,
¶ 1.14 Accordingly, the Appellant believes that the
termination of its contract for default was in error, and that
it is entitled to reimbursement from the Government in the
amount of $1,608.70, consisting of the costs it incurred in
preparing the "Prior to Production" samples, and a refund of
the excess reprocurement charges.15 PTCR, pp. 4-5.
The Respondent, on the other hand, asserts that the contract
was properly defaulted because of the Appellant's inability to
furnish acceptable "Prior to Production" samples within the
specified period, and that the Government is entitled to
recovery of the excess reprocurement costs. PTCR, pp. 3-4.
In that regard, the Respondent argues that the defects in the
"Prior to Production" samples were not minor, but rather
constituted major dissatisfactions with Contractor's work.
PTCR, p. 5. See also, Respondent's Brief, dated December 20,
1993, pp. 2-3 (R. Brf.).
As proof of this contention, GPO relies heavily on the visual
appearance of both "Prior to Production" samples submitted by the
Appellant when compared to the Government-furnished material, as
well as the difficulty experienced by the Contractor in its
unsuccessful effort to correct the problems found by the
Respondent. Id. See, R4 File, Tabs B, I and J. The Respondent
also contends that since the contract terms did not provide for
any inspection of the Appellant's artwork before the submission
of the "Prior to Production" samples, for GPO to do so would have
been beyond the scope of the contract-indeed, it would have been
tantamount to a change in the specifications-and thus the
Government cannot be penalized for its failure to conduct such an
examination, at the Contractor's request, in this proceeding.
PTCR, p. 5; R. Brf., pp. 3-4. Rather, it was the Appellant who
failed to live up to its responsibilities under the contract by
not examining the contract specifications and the Government-
furnished material before starting the job, and raising any
concerns it may have had about the work or the material with the
Contracting Officer before it began preparing the samples. R.
Brf., pp. 4-5 (citing, GPO Contract Terms, Contract Clauses, ¶
7). Finally, the Respondent claims that it did not breach its
duty to cooperate with the Appellant because it gave the
Contractor ample opportunity, after the original contract due
date, to produce satisfactory "Prior to Production" samples, and
only terminated the contract when the Appellant demonstrated that
it could not perform. PTCR, p. 5. Therefore, GPO believes that
the Contracting Officer's default action was correct in this
case, and should be affirmed.16 PTCR, p. 3-4.
CONCLUSIONS17
Since the ultimate question which the Board must decide is
whether or not the Appellant's contract was erroneously
terminated for default, certain legal principles should be
kept in mind at the outset. First, a default termination is a
drastic action which may only be taken for good cause and on
the basis of solid evidence.18 See, Shepard Printing, supra,
Sl. Op. at 10; R.C. Swanson Printing and Typesetting Company,
GPO BCA 31-90 (February 6, 1992), Sl. op. at 25, aff'd,
Richard C. Swanson, T/A R.C. Swanson Printing and Typesetting
Company, No. 92-128C (U.S. Claims Court, October 2, 1992);19
Stephenson, Inc., supra, 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).
Second, the burden of proving the basis for the default is on
the Government. See, 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); Shepard Printing, supra, Sl. Op. at 11; 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);
Davis v. United States, 180 Ct.Cl. 20 (1967); 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); Shepard
Printing, supra, Sl. Op. at 11; R.C. Swanson Printing and
Typesetting Company, supra, Sl. op. at 28. If the Government
fails to meet its burden of proof, then the termination is
converted into one of convenience and the contractor is
allowed to recover for the work performed. See, GPO Contract
Terms, Contract Clauses, ¶ 20(g). Cf., Shepard Printing,
supra, Sl. Op. at 11; Stephenson, Inc., supra, Sl. op. at
17-18; Chavis and Chavis Printing, supra, Sl. op. at 9.
Finally, the standard "Default" clause identifies several
grounds which will excuse defaulting conduct by contractors,
including acts of the Government in either its sovereign or
contractual capacity.20 See, GPO Contract Terms, Contract
Clauses, ¶ 20(c). Government acts which may extinguish a
contractor's duty to perform include defective specifications,
Robert E. Moore Construction, AGBCA No. 85-262-1, 90-2 BCA ¶
22,803, and defective Government-furnished equipment or
material. Boque Electric Manufacturing Company, ASBCA No.
25184, 86-2 BCA ¶ 18,925. The burden of proving Government
defects is on the contractor, who must also show that those
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., GPO BCA 1-87 (June 1,
1989), Sl. op. at 5 (citing, Bailfield Industries, Division A-
T-O, Inc., ASBCA No. 18057, 77-1 BCA ¶ 12,348).
Applying these principles to the facts in the record, the
Board reaches the following conclusions:
A. The Appellant's "Prior to Production" samples did not
conform to the contract specifications.
1. The contract in dispute was terminated by the Contracting
Officer because, in his view, the Appellant was unable to
produce satisfactory "Prior to Production" samples from the
Government-furnished materials (R4 File, Tabs A and F). The
Appellant challenges that determination by alleging that
defects found by the Respondent in the samples were minor
and/or insignificant. PTCR, p. 4. The only evidence in the
record supporting the Contractor's contention is the affidavit
of its Office Manager/Customer Service Representative, who
stated that during his discussions with GPO's Contract
Administrator about the "Prior to Production" samples on July
2, 1992, he was told that: ". . . I don't think the spacing of
the stars is a major factor." See, Jordan Affidavit, p. 1.
As previously indicated, however, the only person authorized
to make such a determination under the Respondent's Printing
Procurement Regulation was the Contracting Officer. PPR,
Chap. XIII, Sec. 1, ¶ 4.f. See, note 11 supra.
2. As a rule, the Government is entitled to strict
compliance with its specifications.21 See, e.g, Rose
Printing Company, GPO BCA 2-87 (June 9, 1989), Sl. op. at 6
(and cases cited therein); Fry Communications, Inc., GPO BCA
1-87 (June 1, 1989), Sl. op. at 5; Mid-America Business
Forms Corporation, GPO BCA 8-87 (December 30, 1988), Sl. op.
at 18-19. See also, Mega Construction Company, Inc. v.
United States, 25 Cl.Ct. 735, 741 (1992); Wholesale Tire and
Supply Company, Ltd., ASBCA No. 42502, 92-2 BCA ¶ 24,960.
However, the law creates a limited exception to the "strict
compliance" rule for situations where a contractor has
timely shipped nonconforming goods which deviate from the
specifications in only minor respects. This so-called
"substantial compliance" principle affords defaulting
contractors an opportunity to correct minor defects in
shipments to the Government. See, Radiation Technology,
Inc. v. United States, 177 Ct.Cl. 227, 366 F.2d 1003,
1005-06 (1966). The "substantial compliance" rule applies
to timely deliveries of slightly nonconforming first
articles or pre-production items, as well as the final
product. National Aviation Electronics, Inc., ASBCA No.
18256, 74-2 BCA ¶ 10,677. See, John Cibinic, Jr. & Ralph C.
Nash, Jr., Administration of Government Contracts 2d ed.,
(The George Washington University, 1986), p. 694
(hereinafter Cibinic and Nash).
3. As the Board understands the Appellant's challenge to the
termination action, it seems to be arguing that the
"substantial compliance" rule should have been applied in this
case. In order for that doctrine to apply to a particular
shipment of nonconforming goods, the contractor must show
that: (a) a timely delivery of goods was made; (b) he/she
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.
Radiation Technology, Inc. v. United States, supra, 366 F.2d
at 1006.22 A contractor who ships nonconforming goods is only
protected by the Radiation Technology rule to the extent that
he/she can satisfy all elements of the test.23
4. In the Board's view, when the record is considered as a
whole, the "substantial compliance" doctrine does not apply to
the circumstances of this case. First, it is undisputed that
the initial set of "Prior to Production" samples were not
delivered on time; i.e., by the date established in the
contract for receipt of the samples (June 16, 1992) (R4 File,
Tab B). Instead, the first set of samples were received by
the Respondent after it had issued a "Cure Notice," on the
date set for the completion of the contract itself (June 26,
1992) (R4 File, Tabs B, H and I). Even though it meant
waiving the contract due date, the Respondent afforded the
Contractor an opportunity to correct the defects found in the
initial set of samples, and established July 9, 1992, as the
date for receipt of the revised samples. However, the record
shows that the second set of "Prior to Production" samples was
also delivered late; i.e., they were not received until July
13, 1992 (R4 File, Tabs F and J). Thus, even if the defects
in the sample were minor, as alleged by the Appellant, it has
not satisfied the first element of the rule; i.e., there is no
question but that the delivery of both the initial and second
set of "Prior to Production" samples were untimely.
5. Second, the "substantial compliance" rule is inapplicable
because the defects in both sets of "Prior to Production"
samples are not minor for the purposes of the doctrine. Under
the principles of Radiation Technology, whether a defect is
minor is a question of fact, based upon a consideration of:
(a) whether the items are usable; (b) the nature of the
product; (c) the urgency of the Government's needs; and (d)
the extent of repair and adjustment necessary to produce a
fully conforming product. See, Cibinic and Nash, p. 683. In
that regard, it is established under the "substantial
compliance" rule that numerous minor defects, when considered
together, can constitute a major nonconformity. Astro Science
Corporation v. United States, 200 Ct.Cl. 354, 471 F.2d 624
(1973); Environmental Tectonics Corporation, supra, 76-2 BCA ¶
12,134; Kain Cattle Company, ASBCA No. 17124, 73-1 BCA ¶
9,999. Furthermore, if the minor defect is not readily
correctable the "substantial compliance" doctrine will not
apply. Inforex, Inc., GSBCA No. 3859, 76-1 BCA ¶ 11,679;
Levelator Corporation, VACAB No. 1069, 74-2 BCA ¶ 10,763;
Nuclear Equipment Corporation, NASABCA No. 1170-18, 73-1 BCA ¶
9,815. Both of these principles defeat the Appellant's claim
to the protection of Radiation Technology here.
6. In this case, the facts clearly show that when it
inspected the first set of "Prior to Production" samples, the
Respondent found, in addition to the spacing problem with
respect to the stars in the hanger ring, that the green and
blue ribbon was flat and not rounded, as required by the
contract specifications (R4 File, Tab I). As for the revised
set of "Prior to Production" samples, GPO's examination
disclosed that not only was the star spacing problem
uncorrected, but the ribbon's colors were now washed out (R4
File, Tab J). Furthermore, there was a new defect in the
second set of samples-the DoD seal on the bottom of the Medal
Certificate was too high (R4 File, Tab J). Therefore, when
the Board considers all of these defects as a whole, it
believes that a major nonconformity existed with the "Prior to
Production" samples delivered by the Appellant. Astro Science
Corporation v. United States, supra, 471 F.2d 624 (1973);
Environmental Tectonics Corporation, supra, 76-2 BCA ¶ 12,134;
Kain Cattle Company, supra, 73-1 BCA ¶ 9,999.
7. Furthermore, assuming for the sake of argument that the
defects were only minor, the facts still warrant the
conclusion that they were not readily correctable. In that
regard, the Board believes that the Appellant's admission to
the Respondent, in its letter dated June 26, 1991, the
original contract completion date, that it was already behind
schedule because of the problem with the dies, is highly
significant. See, Hurt Letter. Moreover, when the Board also
considers that the Appellant never made a timely delivery of
the "Prior to Production" samples-either by June 16, 1992, or
July 9, 1992-it is persuaded that the Contractor could not
give the Government what it wanted within a reasonable time.
Cf., Shepard Printing, supra, Sl. op. at 22. Therefore, for
these reasons the Board concludes that the defects were not
readily correctable. Inforex, Inc., supra, 76-1 BCA ¶ 11,679;
Levelator Corporation, supra, 74-2 BCA ¶ 10,763; Nuclear
Equipment Corporation, supra, 73-1 BCA ¶ 9,815. Also see,
Echo Science Corporation, NASABCA No. 671-9, 72-2 BCA ¶ 9,755.
8. Finally, the Board cannot ignore the fact that the
Appellant was, in fact, afforded an opportunity to "cure" the
defects in its "Prior to Production" samples. Where, as here,
a contractor has already been given a reasonable opportunity
to correct the defects in its product, it may not later be
heard to say that the "substantial compliance" rule entitles
it to a second chance. Cf., Electro-Neutronics, Inc., ASBCA
No. 12947, 71-2 BCA ¶ 8,961. Accordingly, even if the
Radiation Technology rule applied in this case, when the
Respondent gave the Appellant an opportunity to furnish a
corrected second set of "Prior to Production" samples, it was
relieved of any further responsibility under the "substantial
compliance" doctrine.
9. As stated previously, under the Respondent's Printing
Procurement Regulation, the only person authorized to make a
final determination on whether the two "Prior to Production"
samples submitted by the Appellant conformed to the contract
specifications was the Contracting Officer. PPR, Chap. XIII,
Sec. 1, ¶ 4.f. Consequently, a statement made by the Contract
Administrator while the Appellant was still preparing the
revised samples, that the spacing between the stars on the
hanger ring was not a "major factor, see, Jordan Affidavit, p.
1, is not adequate to overcome the Contracting Officer's
finding, eleven (11) days later, when the second set of
samples were received by the Respondent, that they did not
meet the requirements of the contract.24 Cf., Ralph
Construction, Inc. v. United States, 4 Cl.Ct. 727, 734 (1984)
(citing, Campbell v. United States, 2 Cl.Ct. 247, 249 (1983)).
Furthermore, the record is devoid of any evidence that would
show that the Contracting Officer knew of the Contract
Administrator's statement of belief, and either approved or
ratified it. Cf., Tymshare, PSBCA No. 206, 76-2 BCA ¶ 12,218
(1976). Moreover, the Board itself has examined the
Appellant's "Prior to Production" samples, compared them with
the Government-furnished material, and finds that the defects
identified by the Contracting Officer are clearly visible.
Cf., Printing Unlimited, GPO BCA 21-90 (November 30, 1993),
Sl. op. at 20-21 (citing, AAA Engineering and Drafting
Company, Inc., ASBCA No. 21326, 77 BCA ¶ 12,454). Since the
determination that the "Prior to Production" samples failed to
meet the contract specifications was within the discretion of
the Contracting Officer, and as there is no credible evidence
in the record which would indicate that his judgment was
erroneous or flawed, the Board will not disturb his decision
and will let it stand. Cf., Stabbe Senter Press, supra, Sl.
op. at 53; Printing Unlimited, supra, Sl. op. at 21-22.
B. The Respondent did not breach its duty to cooperate with
the Appellant in the performance of the contract by
refusing to inspect the artwork, at the request of the
Contractor, before the "Prior to Production" samples were
prepared and submitted for approval.
1. The main objection raised by the Appellant is that GPO's
refusal to inspect, at its request, the artwork created from
the actual ribbons and medallions furnished by the Government,
before the "Prior to Production" samples were made, was a
breach of the Respondent's duty to cooperate with the
Contractor in the performance of the contract. PTCR, p. 4;
App. Brf., p. 1, ¶ 1.
2. The Appellant relies on a well-settled principle of
public contract law which states that in every Government
contract there is an implied affirmative obligation on the
part of the Government that it will do whatever is necessary
to enable the contractor to perform.25 Stephenson, Inc.,
supra, Sl. op. at 38-39 (citing, Nanofast, Inc., supra, 69-1
BCA ¶ 7,566; The Kehm Corporation v. United States, 119 Ct.
Cl. 454, 93 F.Supp. 620 (1950); United States v. Speed, 75
U.S. (8 Wall.) 77 (1868)). Under this doctrine, the
Government will be held liable for breaching its implied duty
to cooperate if it wrongfully fails or refuses to take some
action, within its control, which is essential for the
contractor to perform.26 Stephenson, Inc., supra, Sl. op. at
39. In most cases applying this principle to excuse a
contractor's default, there is a clear nexus between the
Government's breaching conduct and the performance period
itself. See, e.g., Maitland Brothers Company and Maitland
Brothers Company and St. Paul Fire and Marine Insurance
Company, ASBCA Nos. 30,089, 30,764, 31,032, 32,071, 32,605,
34,659, 90-1 BCA ¶ 22,367; Singleton Contracting Corporation,
GSBCA No. 8,552, 90-1 BCA ¶ 22,298; G. W. Galloway Company,
ASBCA Nos. 17,436, 17,723, 17,836, 17,911, 18,324, 77-2 BCA ¶
12,640. Furthermore, whether the Government is liable depends
on the reasonableness of its conduct under the circumstances.
See, e.g., Ben C. Gerwick, Inc. v. United States, 152 Ct. Cl.
69, 285 F.2d 432 (1961); Tolis Cain Corporation, DOTCAB No.
72-2, 76-2 BCA ¶ 11,954.
3. It is unnecessary for the Board to engage in a detailed
survey of the cases involving the Government's duty to
cooperate with a contractor for the purpose of this decision.
However, it should be noted that agencies will breach their
implied duty to cooperate if they unreasonably disapprove
suggestions for alternate methods of performance, Albert C.
Rondinelli, ASBCA No. 9,900, 65-1 BCA ¶ 4,674, or if they deny
the contractor a reasonable opportunity to correct minor
defects in timely deliveries. Nanofast, Inc., supra, 69-1 BCA
¶ 7,566.
4. As the Board understands the Appellant's claim, the
alleged breach of the implied duty to cooperate occurred
because the Respondent had an affirmative obligation to
inspect the artwork developed from the Government furnished
material before the actual "Prior to Production" samples were
manufactured. However, in the Board's opinion, the Appellant
has misconstrued the Respondent's responsibilities and duties
in this case.
5. Under the Respondent's printing regulation, inspection
and testing of procured products is accomplished in accordance
with the "Inspection and Tests" article of GPO Contract Terms.
PPR, Chap. XIII., § 1, ¶ 4(g). See, GPO Contract Terms,
Contract Clauses, ¶ 14. This article provides, in pertinent
part:
(c) The Government has the right to inspect and test all
supplies called for, to the extent practicable, at all
places and times, including the period of manufacture, and
in any event before acceptance. The Government shall
perform inspections and tests in a manner that will not
unduly delay performance and assumes no contractual
obligation to perform any inspection and test for the
benefit of the contractor unless specifically set forth
elsewhere.
GPO Contract Terms, Inspection and Tests, §§ 14(c), (f). It is
well-settled that inspections and tests are for the benefit of
the Government. Editors Press, supra, Sl. op. at 18 (citing,
Custom Printing, GPO BCA 10-87 (May 10, 1988), Sl. op. at 14; Red
Circle Corporation v. United States, 185 Ct. Cl. 1, 398 F.2d 836
(1968)). See generally, Cibinic and Nash, pp. 568-83. Absent a
provision in the contract itself, the Government has no duty to
conduct tests or inspections for the benefit of a contractor.
Editors Press, supra, Sl. op. at 18; Custom Printing, supra, Sl.
op. at 13.
6. An examination of the contract discloses no inspection
duty on the part of the Respondent other than to examine the
"Prior to Production" samples (R4 File, Tab B, Attachment 2).
Indeed, under the express terms of the contract, GPO had no
obligation to provide the Appellant with an opportunity to
submit a revised set of such samples, i.e., that "second
chance" was wholly within GPO's discretion.27 Thus, the
Respondent would have been acting within its rights under the
contract if it had defaulted the Appellant based on the
rejection of the first samples.28 Stephenson, Inc., supra,
Sl. op. at 21. However, it is undisputed that not only did
the Appellant receive a second opportunity to provide
conforming "Prior to Production" samples,29 but when it became
apparent that the Contractor was experiencing difficulty
producing satisfactory dies, the Respondent, on its own, asked
for the return of the Government-furnished material to see if
the cause of the problem was in the material itself (R4 File,
Tab F). When the Respondent's pro-active response to the
Contractor's problems is considered in light of the fact that
only two weeks was allowed for performance under the original
terms of the contract, the Board believes that inspecting the
artwork in advance of the samples would have been
superfluous.30 Hence, the Board concludes that, under these
circumstances, it was not unreasonable for GPO to reject the
Contractor's suggestion that the artwork be examined before
the "Prior to Production" samples were produced. Cf., Albert
C. Rondinelli, supra, 65-1 BCA ¶ 4,674. Consequently, the
Board believes that there is absolutely no evidence in this
record to support the Appellant's contention that the
Respondent breached its implied duty to cooperate under the
circumstances herein. Stephenson, Inc., supra, Sl. op. at 47.
Rather, the Board finds that the Respondent fully cooperated
with the Appellant in its attempt to make provide acceptable
"Prior to Production" samples and to fulfill its obligations
under the contract. See, e.g., Ben C. Gerwick, Inc. v. United
States, supra, 285 F.2d 432 (1961); Tolis Cain Corporation,
supra, 76-2 BCA ¶ 11,954. Accordingly, for all of these
reasons, the Board concludes that there is no merit to the
Appellant's claim that the Respondent breached its implied
duty to cooperate with it to complete performance under the
contract.31
C. Under the circumstances of this case, the Contracting
Officer's decision to terminate the contract for default
was not in error.
1. The Appellant has failed to demonstrate that the defects
found by the Respondent in the "Prior to Production" samples
were minor and/or insignificant, or that the discrepancies
could have been corrected if the Government had cooperated
with the Contractor. Consequently, it has not sustained its
burden of proof in this case. Thus, on this record, the
Appellant's case is essentially a collection of unverified
assertions, and the Board cannot accept argumentation alone as
a substitute. Cf., Reese Manufacturing, Inc., ASBCA No.
35144, 88-1 BCA ¶ 20,358. Indeed, it is settled that
unsubstantiated assertions are not sufficient proof to permit
recovery. Cf., Banta Company, supra, Sl. op. at 52; Fry
Communications, Inc./InfoConversion Joint Venture, GPO BCA No.
9-85, Decision on Remand (August 5, 1991), Sl. op. at 33, fn.
31, (citing, Fry Communications, Inc./InfoConversion Joint
Venture v. United States, 22 Cl.Ct. 497, 510 (1991));
Stephenson, Inc., supra, Sl. op. at 57. See also, Singleton
Contracting Corporation, GSBCA No. 8548, 90-2 BCA ¶ 22,748;
Tri-State Services of Texas, Inc., ASBCA No. 38019, 89-3 BCA ¶
22,064)); Gemini Services, Inc., ASBCA No. 30247, 86-1 BCA ¶
18,736.
2. 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, GPO BCA
22-91 (February 5, 1993), 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 Appellant's inability to provide
acceptable "Prior to Production" samples (R4 File, Tab F).32
ORDER
The Board finds and concludes that the Appellant has not
proved that: (1) the defects found by the Respondent in the
"Prior to Production" samples were minor and/or
insignificant; or (2) a breach of the Government's implied
duty to cooperate with the Contractor occurred in this case.
THEREFORE, the decision of the Contracting officer is
AFFIRMED, and the appeal is DENIED.
It is so Ordered.
January 21, 1994 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 September 24, 1992. GPO
Instruction 110.12, Subject: Board of Contract Appeals Rules
of Practice and Procedure, dated September 17, 1984, Rule
4(a) (Board Rules). It will be referred to hereinafter as R4
File, with an appropriate Tab letter also indicated. The R4
File consists of ten (10) documents identified as Tab A
through Tab J.
2 By letter dated October 22, 1992, the Appellant advised the
Board that it had selected the optional Accelerated Procedure
to process its appeal. Board Rules, Rules 12.1(b) and 12.3.
Board Docket File, Tab 5.
3 Decisions under the Accelerated Procedure are normally
brief and contain only summary findings of fact and
conclusions. Board Rules, Rule 12.3(b). In this case,
however, the Board believes that the nature of the
controversy entitles the parties to a fuller explanation of
the facts, issues, and reasons for the Board's decision than
would be found in a typical Accelerated Procedure case. See,
RD Printing Associates, Inc., GPO BCA 02-92 (December 16,
1992), Sl. op. at 2, fn. 3. The Board also notes that this
decision, unlike its opinions under the Small Claims
(Expedited) Procedure, may be cited as precedent in future
appeals. Cf., Graphics Image, Inc., GPO BCA 13-92 (August
31, 1992), Sl. op. at 2, fn. 3; Board Rules, Rule 12.2(d).
4 As indicated on the Purchase Order and in its attachments,
the contract was governed by applicable articles of GPO
Contract Terms, GPO Publication 310.2, effective December 1,
1987 (Rev. 9-88) (GPO Contract Terms), and GPO's Quality
Assurance Through Attributes Program, GPO Publication 310.1,
Revised September 1986 (QATAP), which were incorporated by
reference (R4 File, Tab B).
5 In fact, the "Prior-to Production" samples were not
received by the DLA until June 26, 1992 (R4 File, Tab I).
6 Ordinarily, a contract may not be defaulted for a
contractor's failure to make progress, so as to endanger
performance, unless and until the Contracting Officer has
served a ten (10) day "Cure Notice" on the contractor
affording it an opportunity to cure the failure. See,
Printing Procurement Regulation, GPO Publication 305.3
(September 1, 1988), Chap. XIV, Sec. 1, ¶ 3.c.(2) (PPR); GPO
Contract Terms, Contract Clauses, ¶ 20.(a)(2). However, a
ten (10) day "Cure Notice" is not an absolute, because, apart
from the cited provision of GPO Contract Terms, the
Respondent's implementing regulations also state: "If the
Contracting Officer determines that a shorter period is
reasonable, and sufficient time remains in the contract
delivery schedule, such shorter period may be authorized,
provided the determination is supported and documented in the
contract file. If the time remaining in the contract
delivery schedule is not sufficient to permit a realistic
"cure" period, the "Cure Notice" shall not be issued." PPR,
Chap. XIV, Sec. 1, ¶ 3.c.(2). [Emphasis added.] Ten (10)
days to cure the problem was out of the question here because
the Contractor only had three (3) days (counting the "Cure
Notice" date-June 24, 1992) to complete the contract (by June
26, 1992), and the contract terms allowed the Government a
three (3) workday approval period for the "Prior to
Production" samples (R4 File, Tab B, Attachment 2).
Therefore, the Contracting Officer would have been within
justified in not issuing any "Cure Notice" whatsoever under
these circumstances, since insufficient time remained to
permit a realistic "cure" period. Graphics Image, Inc.,
supra, Sl. op. at 16. The decision concerning whether or not
a shorter cure period is reasonable, realistic, and warranted
in light of the contract delivery schedule, is discretionary
with the Contracting Officer. Id. (citing, Stephenson, Inc.,
GPO BCA 02-88 (December 20, 1991), Sl. op. at 19-20, fn. 22
("show cause notice")). If that decision is consistent with
the rules in the PPR, it will not be disturbed by the Board.
Graphics Image, Inc., supra, Sl. op. at 17 (citing, Stabbe
Senter Press, GPO BCA 13-85 and 19-85 (May 12, 1989), Sl. op.
at 53).
7 For some reason, not apparent in the record, this letter
was not included in the R4 File. Instead, is was sent to the
Board on October 22, 1992, as an attachment to the
Appellant's Complaint (Attachment D). In addition to this
letter, the Appellant also attached: (a) a copy of a
memorandum for the file prepared by Jordan, dated June 16,
1992, stating that he spoke to Nancy Ferraiuolo, GPO's
Contract Administrator for this contract, and offered to
provide proofs in lieu of "Prior to Production" samples, but
was told that only the samples were required; i.e., the
proofs were refused (Attachment B); and (b) notes from the
Appellant's Job Production Log, dated June 20, 1992, June 24,
1992, and June 25, 1992, describing the problems with dies
prepared by Universal Die Company, and steps taken by the
Contractor, once the corrected dies were returned by the
subcontractor, to prepare the samples and send them to the
Respondent (Attachment C).
8 In that regard, the contract expressly provides, in
pertinent part, that "[i]f the samples are disapproved by the
Government, the Government, at its option, may require the
contractor to submit additional samples for inspection and
test, in the time and under the terms and conditions
specified in the notice of rejection. Such additional
samples shall be furnished, and necessary changes made, at no
additional cost to the Government and with no extension in
the shipping schedule. . . ." (R4 File, Tab B, Attachment 2).
[Emphasis added.]
9 In the meantime, on July 2, 1992, the Respondent sent the
Appellant, by telegram, a "Show Cause Notice", which stated
that because the Contractor had failed to perform according
to the contract schedule, the Government was considering
defaulting the contract, and affording the Appellant an
opportunity to explain any extenuating circumstances, in
writing, within five (5) days from the receipt of the notice
(R4 File, Tab G). The record does not contain any response
from the Appellant to this "Show Cause Notice." Furthermore,
it seems that GPO took no action with respect to the
Contractor's failure to respond, but instead waited for
receipt of the second set of "Prior to Production" samples.
10 Under the PPR, the Contracting Officer must submit a
proposal to terminate a contract for default to the CRB for
its review and concurrence. PPR, Chap. I, Sec. 10, ¶
4.b.(i). See, Graphics Image, Inc., supra, Sl. op. at 9, fn.
10.
11 In that regard, the Purchase Order itself expressly
states, in pertinent part, that "[i]n the event the samples
are disapproved by the Government, the contractor shall be
deemed to have failed to make delivery within the meaning of
the default clause in which event this contract shall be
subject to termination for default, . . ." (R4 File, Tab B,
Attachment 2).
12 The reprocurement contractor was Quality Printing Service
of Bismarck, North Dakota (R4 File, Tab C).
13 The Board is compelled to observe that Jordan identifies
two GPO agents-Nancy Ferraiuolo and Larry Hamm-in his
affidavit as the persons with whom he was dealing on the
matter of correcting the "Prior to Production" samples. From
the affidavit, it seems that the statement concerning minor
significance of the spacing of the stars, was made by
Ferraiuolo on or about July 2, 1992. However, it should be
noted that Ferraiuolo is identified in the record as the GPO
Contract Administrator assigned to the disputed contract (R4
File, Tab B). Under the Respondent's Printing Procurement
Regulation, the only person authorized to make final
determinations on whether products submitted by a contractor
conform to contract specifications is the Contracting
Officer. PPR, Chap. XIII, Sec. 1, ¶ 4.f.
14 The Appellant also believes that by refusing to look at
the artwork under these circumstances, the Government failed
to follow standard industry practice, and "entrapped" the
Contractor into entering the contract. The doctrine of
"entrapment" is peculiar to criminal law. See, e.g., United
States v. Berry, 661 F.2d 618 (7th Cir. 1981). It is rarely
found, and even then usually only by analogy, in
administrative proceedings. See, e.g., Transportation
Enterprises, Inc. v. National Labor Relations Board, 630 F.2d
421 (5th Cir. 1980) (The court held that where the National
Labor Relations Board first rules that it has no jurisdiction
over an employer and then reverses itself, it can not find
the employer guilty of an unfair labor practice for conduct
engaged in after the initial ruling, on which the employer
relied). There is nothing in the evidence here which would
support such an "entrapment" defense. Indeed, the Appellant
really seems to be saying that it made a mistake by bidding
on the contract without all of the facts. However, such
errors in business judgment do not warrant any relief. See,
e.g., Aydin Corporation v. United States, 229 Ct.Cl. 309,
669 F.2d 681 (1982); American Ship Building Company v. United
States, 228 Ct.Cl. 220, 654 F.2d 75 (1981). See generally,
John Cibinic, Jr. and Ralph C. Nash, Jr., Formation of
Government Contracts 2d ed., (The George Washington
University, 1986), p. 481-82.
15 In its brief, the Appellant, for the first time, alleged
that the Respondent engaged in bad faith by drafting
specifications based on a knowledge of pre-existing dies that
produced acceptable artwork, and not procuring those dies for
the Contractor. App. Brf., p. 1, ¶ 2. The thrust of this
argument is that GPO purposely wrote the specifications to
give the previous contractor an unfair advantage in the
bidding process. Aside from the fact that the existence of
such ready-made dies is nothing but pure speculation on the
Appellant's part, the Board has held on numerous occasions
that because of the strong presumption that Government
officials properly and honestly carry out their functions, an
allegation of bad faith must be established by "well-nigh
irrefragable" proof. See, e.g., Shepard Printing, GPO BCA
23-92 (April 29, 1993), Sl. op. at 7, fn. 11; B. P. Printing
and Office Supplies, GPO BCA 14-91 (August 10, 1992), Sl. op.
at 16; Stephenson, Inc., GPO BCA 02-88 (December 19, 1991),
Sl. op. at 55; The Standard Register Company, GPO BCA 4-86
(October 28, 1987); Sl. op. at 12-13. Also see, Karpak Data
and Design, IBCA 2944 et al., 93-1 BCA ¶ 25,360; Local
Contractors, Inc., ASBCA 37108, 92-1 BCA ¶ 24,491. The key
to such evidence is that there must be a showing of a
specific intent on the part of the Government to injure the
contractor. Kalvar Corporation v. United States, 543 F.2d
1298, 1302 (Ct.Cl. 1976), cert. denied, 434 U.S. 830 (1977);
Stephenson, Inc., supra, Sl. op. at 54. In the Board's view,
no such "irrefragable" proof of the Respondent's bad faith
exists in this record. Certainly, there is absolutely
nothing in the record which would show that the Government,
or the previous contractor for that matter, set out to harm
the Appellant or that both of them acted in concert to
achieve that specific result. Id., Sl. op. at 57.
16 In addition, the Respondent's Answer and Brief contend
that the Contracting Officer's decision to default the
contract was also based on the Appellant's repeated tardiness
in delivering its product. See, Answer, dated August 6,
1993, p. 5; R. Brf., p. 5. To the Board's mind, however,
this argument is unsupported in the record and has no
substance. That is, there is nothing in the appeal file,
including the Contracting Officer's memorandum to the CRB and
the Notice of Termination, which would warrant the conclusion
that the default was based on anything other than the
Appellant's inability to produce satisfactory "Prior to
Production" samples of the Medal Certificate. See, R4 File,
Tabs A and F. Furthermore, GPO failed to mention its
"tardiness" argument at the presubmission telephone
conference. Since all the evidence of record tells us that
the Contracting Officer solely relied on the poor quality of
the Appellant's "Prior to Production" samples in defaulting
the contract, the Board believes that this "tardiness" claim
is nothing more than a "make weight" argument, and it is
summarily rejected. Cf., Banta Company, GPO BCA 03-91
(November 15, 1993), Sl. op. at 28-29, fn. 39.
17 The record on which the Board's decision is based consists
of: (1) the Appellant's letter, dated August 12, 1992, noting
an appeal from the Contracting Officer's decision; (2) the R4
File (Tabs A-J); (3) the Appellant's letter, dated October
13, 1992, setting forth the basis of its complaint and the
items and amounts involved in its counterclaim; (4) the
Appellant's Complaint letter, dated October 22, 1992, with
attachments; (5) the Respondent's Answer, dated August 6,
1993; (6) the Report of a Presubmission Telephone Conference,
dated November 19, 1993; (7) the Affidavit of Ray Jordan,
dated December 3, 1993, submitted by the Appellant; (8) the
Appellant's Brief, dated December 17, 1993; and (9) the
Respondent's Brief, dated December 20, 1993.
18 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).
19 On October 29, 1992, certain provisions of the Federal
Courts Administration Act of 1992, Pub. L. No. 102-572, 106
Stat. 4506 (1992), became effective. Pursuant to Title IX,
the United States Claims Court was renamed the United States
Court of Federal Claims.
20 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 extend the time available for performance and
make termination prior to that time improper. See, e.g., FKC
Engineering Company, ASBCA No. 14856, 70-1 BCA ¶ 8,312.
21 Indeed, this rule has always been considered absolute in
supply contracts. See, e.g., Melrose Packaging Corporation,
ASBCA No. 9045, 1964 BCA ¶ 3,769; Cherry Meat Packers, Inc.,
ASBCA No. 8974, 1963 BCA ¶ 3,937.
22 See generally, Cibinic and Nash, pp. 680-84. The
Radiation Technology doctrine is clearly an encroachment on
the Government's right to terminate. However, it is also
apparent that the rule merely stays for a reasonable period
the Government's right to terminate, and not its right to
insist on 100 percent conforming goods; i.e., the doctrine
concerns time, not the supplies themselves. Furthermore,
the "substantial compliance" rule is used to prevent
surprise rejections by the buyer after a contractor's timely
shipment in situations where performance departs in only
minor respects from that which has been promised. See,
Stephenson, Inc., supra, Sl. op. at 50-51, fn. 54 (citing,
Environmental Tectonics Corporation, ASBCA No. 20340, 76-2
BCA ¶ 12,134).
23 In most cases involving the "substantial compliance"
rule, the timeliness of the contractor's shipment is
generally not an issue. Rather, the dispute usually
involves the resolution of questions of "reasonable belief"
and the seriousness of the defects. Absent such a
"reasonable belief" by the contractor and proof that only
minor defects are involved, the supplier is not entitled to
the protection of the "substantial compliance" principle.
See, Stephenson, Inc., supra, Sl. op. at 51, fn. 55 (citing,
Introl Corporation, ASBCA No. 27,610, 85-2 BCA ¶ 18,044 at
90,578; Norwood Precision Products, Textron, Inc., ASBCA
Nos. 38095, 38196, 90-3 BCA ¶ 23,200; Environmental
Tectonics Corporation, supra, 76-2 BCA ¶ 12,134).
24 Indeed, the Board finds it difficult to believe that any
reasonable or responsible GPO Contracting Officer, or
Contract Administrator for that matter, would approve the
quality level of any product "sight unseen."
25 See, Cibinic and Nash, pp. 221-22, 223-25. There is also
an implied negative obligation on the part of the Government
that it will not do that which will interfere with the
contractor in the performance of the contract. Id., at pp.
222-23. See, e.g., Nanofast, Inc., ASBCA No. 12,545, 69-1
BCA ¶ 7,566 (citing, George A. Fuller Company, A Corporation
v. United States, 108 Ct. Cl. 70, 69 F.Supp. 409 (1947);
Fern E. Chalender d/b/a Chalender Construction Company of
Springfield, Missouri v. United States, 127 Ct. Cl. 557;
Restatement, Contracts, §§ 295 and 315). Both implied
duties are part of every Government contract. George A.
Fuller Company, A Corporation v. United States, supra, 69
F.Supp. 409.
26 See, Cibinic and Nash, p. 221.
27 See, note 8 supra.
28 See, note 11 supra.
29 The Board also notes that in "bending over backwards" to
give the Appellant every last chance to perform, the
Contracting Officer actually provided for a "cure period"
(from June 26, 1992 to July 24, 1992), which was twice as
long as the time allowed for performance under the original
terms of the contract (two weeks).
30 Indeed, the Board interprets the Appellant's offer to
provide proofs in lieu of "Prior to Production" samples as
nothing less than a request by the Contractor to modify the
contract. See, note 7 supra (citing, Complaint (Attachment
B)-Jordan memorandum for the file, dated June 16, 1992).
31 Obviously, no breach of the Government's implied duty to
cooperate with the Appellant can be found in this case on
the basis of the so-called Nanofast doctrine, because the
Contractor was afforded an opportunity to correct the
defects discovered in the first set of "Prior to Production"
samples. Cf., Stephenson, Inc., supra, Sl. op. at 42-46
(citing, Nanofast, Inc., supra, 69-1 BCA ¶ 7,566. As
indicated above, the Nanofast doctrine applies to situations
where a contractor timely delivers supplies with minor
defects and is denied a reasonable opportunity to correct
them. In this case, however, the record is replete with
evidence that the Appellant was, in fact, given a chance to
repair the defects in the "Prior to Production" samples, but
was unable to do so within a reasonable time.
32 Even if the Board was disposed to find in favor of the
Appellant, it would have no basis for awarding any monetary
recovery. At the prehearing conference, the Board directed
the Appellant to submit evidence, inter alia, of the actual
expenses it incurred in preparing the "Prior to Production"
samples. PHR, p. 6. The Contractor has failed to provide
such evidence; e.g., bills from its subcontractor, Universal
Die Company , etc. It is well-settled that a contractor has
the burden of proof in establishing the amount of its claim.
Cf., Banta Company, supra, Sl. op. at 50, fn. 62 (and cases
cited therein). Notwithstanding the Board's instructions,
the Appellant has failed to provide such evidence, and
therefore, has not sustained its burden of proof on its
claim.