U.S. GOVERNMENT PRINTING OFFICE
BOARD OF CONTRACT APPEALS
WASHINGTON, DC 20401
In the Matter of )
)
The Appeal of )
)
WEB BUSINESS FORMS, INC. ) Docket No. GPO BCA 31-89
Jacket No. 232-662 )
Purchase Order 12887 )
DECISION AND ORDER
By letter dated August 1, 1989, Web Business Forms, Inc.
(Appellant or Contractor), 6 Shirley Avenue, Franklin
Township, New Jersey 08873, filed a timely appeal from the
June 20, 1989, final decision of Contracting Officer James L.
Leonard, of the U.S. Government Printing Office's (Respondent
or GPO or Government) Printing Procurement Department,
Washington, DC 20401, rejecting the Appellant's request for
payment in the amount of $1,188.00 for printing forms which
had been rejected under its contract identified as Purchase
Order 12887, Jacket No. 232-662. The Appellant based its
claim on the ground that GPO's instructions were bad and
incomplete information was furnished to the Contractor (R4
File, Tab M).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 March 15, 1989, the Department of Transportation (DOT)
submitted a Printing and Binding Requisition (SF-1) asking GPO
to procure 20,000 sets of an 8-1/2" x 11", six-part multi-form
entitled "Travel Authorization for Permanent Change of
Station" (PCS Forms), to be delivered to the agency by April
20, 1989 (R4 File, Tab E). Attached to the SF-1 were the 1972
specifications for the PCS Forms with handwritten notations
concerning the changes DOT wished to make; e.g., omitting the
copy designation "Accounting Office" Part 1; eliminating the
carbon paper between Parts 1 and 2, etc. The SF-1 also said
that DOT would supply the printer with three (3) pieces of
camera copy, and a construction sample which should be
followed for the purpose of aligning the margins.
2. The Appellant, one of 17 bidders for this contract, made
the lowest offer (R4 File, Tab B). On March 27, 1989, the
Respondent issued Purchase Order 12887 awarding the job to the
Appellant for the contract price of $1,100.00 (R4 File, Tab
A).4
3. As written, the Purchase Order described the form to be
produced, in pertinent part, as follows:
FINISHED PRODUCT: Single stub; carbon interleaved sets
STUB LENGTH: 8-1/2"
STUB 1/2 to 1": Internal glue or paste
DETACHED SIZE (inches): 8-1/2" x 11"
PAPER COLOR: White (All Parts)
PAPER KIND: C.W. Writing (All Parts)
SUB NO. (LATITUDE): Part 1-15-16, Parts 2, 3, 4, 5 and
6-12-13
TYPE OF CHANGE: Part 2-Major, Parts 2, 3, 4, 5 and 6-
Marginal5
COLOR OF INK: Black-Part 1 Face and Back, Parts 2, 3, 4, 5,
and 6 Back only
PRINTS HEAD TO: Head (Part 1 only)
STUB POSITION: T[op] (All Parts)
NOTE: No carbon between Parts 1 and 2.
MARGINS: Part 1 Face-1/2" (Head), 5/16" (Foot), 6/10"
(Left), 6/10" (Right); Part 2 Back-3/10" (Head), 3/10"
(Foot), 2/6" (Left), 2/6" (Right)
CARBON PAPER AND REMOVAL: Black; carbon coating must cover
8-1/2" x 10-4/6"; Dual purpose; Full sub length-2/6 inch
short at Bottom; Carbon copies must be clear, and legible
on all parts when forms are filled in by-Manual/Electric
Typewriter and Ballpoint Pen
See, R4 File, Tab A.6
4. With regard to the Government-furnished material (GFM),
the Contractor was told that it would be provided with: (a)
camera copy; (b) a revised reprint to "use as a construction
guide"; (c) one type and rule form; and (d) one reproduction
proof for the shipping container labels (R4 File, Tab A).
This GFM would be available to the Appellant by March 29, 1989
(R4 File, Tab A). The record indicates that the day after the
Contractor received the GFM, it telephoned the Respondent's
Departmental Account Representative Division (DARD) of the
Customer Service Department, for an explanation of some
markings on the camera copy and to resolve a grammatical error
with regard to the Part 3 designator (R4 File, Tab G, p. 4).7
5. The Appellant printed the PCS Forms and delivered them to
DOT by the contract due date, April 20, 1989. Three weeks
later, on May 10, 1989, the Respondent received a report from
DOT that the quality of the PCS Forms delivered by the
Contractor did not meet the contract specifications and could
not be utilized (R4 File, Tab E). As DOT saw it, the problem
was caused by the Appellant's shooting the construction sample
and printing from that, rather than using the camera copy
which it had been provided for that purpose (R4 File, Tab E).
Accordingly, DOT told GPO that it wanted the entire order
reprinted (R4 File, Tab E).
6. The Respondent immediately notified the Appellant of DOT's
complaint and asked that the revised camera copy, which the
Government had furnished for use as a construction sample, be
returned, since the Contractor had neglected to do so when the
job was completed (R4 File, Tab C). See also, Draft Report,
p. 26.8 The Appellant complied with this request, and also
sent a "Read & Reply" message to the Respondent indicating
that the PCS Forms had been produced in accordance with the
specifications and the construction sample (R4 File, Tab D).
7. On May 22, 1989, the Respondent telephoned the Appellant
to discuss reprinting the job (R4 File, Tab F).9 The
Contractor balked at the direction to reprint, contending that
the Appellant was not at fault (R4 File, Tab F). Stating that
it would call back after reviewing "all pertinent
documentation," the Appellant telephoned GPO that same day
affirming its position that the Government must have been at
fault for any error in the printed product (R4 File, Tab F).
However, during this conversation, the Contractor also
acknowledged that it used the construction sample as camera
copy for Parts 2-6 of the PCS Form (R4 File, Tab F).
8. On May 23, 1989, Senneff met with the Contracting Officer
and showed him DOT's complaint (Notice of Quality Defects, GPO
Form 1815, dated May 10, 1989)), the contract specifications,
the camera copy, and the construction sample (R4 File, Tab G,
p. 2). After looking at this material, the Contracting
Officer concluded that the camera copy was clearly
"folioed",10 the construction sample was properly identified
as such, and the contract specifications left no doubt that
the GFM included camera copy and a sample to be used "for
construction only" (R4 File, Tab G, p. 2). As a result of
their meeting, Senneff said that she would telephone the
Appellant and schedule a reprint date (R4 File, Tab G, p.
2).11
9. On May 23, 1989, Senneff telephoned the Appellant and
spoke to Vartughian, about having the PCS Forms reprinted (R4
File, Tab G, p. 3). After some discussion, Vartughian asked
Senneff to send him the camera copy, negatives and the
construction sample for review, so he could see where the
mistake occurred (R4 File, Tab G, p. 3). Senneff replied that
she would send the material immediately, and Vartughian
responded that he would call back the next day with a reprint
date and disposition instructions (R4 File, Tab G, p. 3).
Their conversation was confirmed by Senneff in a letter to the
Contractor that same day, which also stated that reprinting
was required because the original shipment had been rejected
for the following defect: "Failure to follow specification and
camera copy. . . ." (R4 File, Tab H).
10. During their conversation, Vartughian mentioned that he
had talked to three DARD employees-Ras Beard, Pat Morrissey
and James Willard-on March 30, 1989, about the circled folios
on the GFM, and said that they told him to print the PCS Forms
as he did (R4 File, Tab G, p. 3). Since there was nothing in
the file documenting that discussion, Senneff spoke to the
three employees identified by Vartughian (R4 File, Tab G, p.
4). As indicated previously,12 Beard said he had discussed
the marking on the back of the camera copy with the Appellant,
and confirmed the placement of the backside numbers below the
circle folio for the face. Willard, for his part, authorized
a minor grammatical change in the Part 3 designator. See,
note 4 supra. Morrissey told Senneff that as a trainee, he
really did not participate in any discussions with the
Contractor (R4 File, Tab G, p. 4). After talking to these
employees, Senneff called Vartughian and told him that she had
looked into the matter, and that no one from GPO had ever
authorized the Appellant to print the PCS Forms from the
construction sample (R4 File, Tab G, p. 3).
11. On May 23, 1989, Senneff returned the camera copy to the
Appellant (R4 File, Tab O). Two days later, Vartughian
telephoned Senneff and arranged June 12, 1989, as the date for
delivery of the reprinted PCS Forms to the DOT's new warehouse
in Landover, Maryland (R4 File, Tabs G, p. 3, and I). He also
said that the Contractor was reprinting "under protest", and
would seek a final decision from the Contracting Officer (R4
File, Tab G, p. 3). In the interim, it seems that on May 24,
1989, Vartughian had telephoned the Contracting Officer, who
told the Appellant that since the camera copy was marked
correctly, it was a mistake to use the construction sample as
camera copy (R4 File, Tab J). The Contracting Officer later
confirmed this conversation in a letter to the Appellant dated
May 26, 1989 (R4 File, Tab K).
12. On May 26, 1989, Senneff sent the remaining GFM to the
Appellant. See, Senneff Declaration, ¶ 2. In that regard,
the Contractor received: (a) copies of the previously-printed
sample sheets marked "Construction Sample Only"; (b) the
original of an 8-1/2" x 11" sheet of paper with a handwritten
notation across the top which read, "Designators Print at
Bottom of Base c/c. See Dummy"; and (c) two pages of "glossy"
to used as camera ready copy. Id., ¶¶ 2.a,b (citing, R4 File,
Tabs N and O).13
13. By letter dated June 5, 1989, the Appellant wrote to the
Contracting Officer stating that while it was reprinting the
order, it disagreed with the Respondent's position that the
Contractor was at fault, and believed instead that the error
which caused the problem with the initial shipment of PCS
Forms was "a direct result [of] bad instructions and
incomplete information furnished to our company by GPO. . . ."
(R4 File, Tab L). Accordingly, the Contractor asked the
Contracting Officer for a final decision so that it could
pursue its appeal rights under GPO Contract Terms (R4 File,
Tab L).
14. By letter dated June 20, 1989, the Contracting Officer
furnished his final decision to the Appellant (R4 File, Tab
M). In his letter, the Contracting Officer reasoned as
follows:
The reprinting of this product was required by your failure
to follow specifications. The specifications stated that
the Government would furnish "camera copy and a revised
reprint copy to be used as a construction guide."
Unfortunately, your company used the construction guide as
camera copy. Contract Terms (GPO Pub. 310.2) states: "The
contractor is required to examine the furnished property
immediately upon receipt. If at that time there is a
disagreement with the description or the requirements as
presented in the specification, and prior to the
performance of any work, the contractor shall contact the
U.S. Government Printing Office."
The facts in this matter have been reexamined and the
original decision will remain as previously stated.
See, R4 File, Tab M, p. 1. [Original emphasis.]
15. By letter dated August 1, 1989, the Contractor timely
appealed the Contracting Officer's final decision to the
Board.
ISSUE PRESENTED
Was the Respondent at fault for the defects found in the
Appellant's initial shipment of PCS Forms, thus entitling
the Contractor to payment in the amount of $1,188.00, or
was the problem with that order the result of the
Appellant's own errors, justifying rejection of the
delivery by the Government?
POSITION OF THE PARTIES14
This case is before the Board because the Appellant,
acknowledging that its initial printing of PCS Forms was
incorrect, seeks to shift the blame for the error to the
Respondent. The Appellant's position was succinctly stated in
its letter to the Contracting Officer, dated June 5, 1989,
when it said that the mistake was caused by "bad instructions
and incomplete information furnished to our company by GPO."
See, R4 File, Tab L. As amplified in its appeal letter to the
Board, dated August 1, 1989, the nub of the problem, according
to the Contractor, was that while the Respondent provided two
pieces of camera copy (art boards) for the face of Part 1
(Travel Authorization) and the back of Part 1 (Travel
Order),15 respectively, it was not advised that the latter was
also to be used as the camera copy for Parts 2 through 6 of
the PCS Form; i.e., that particular art board was to be
reproduced six times not just once. See, Letter from the
Appellant to the Board, dated August 5, 1989, p. 1. See also,
Draft Report, p. 20. Consequently, the Appellant erroneously
printed Parts 2 through 6 from the construction sample (a
prior printed form) furnished with the GFM. See, R4 File, Tab
J. See also, Draft Report, pp. 19-20, 24, 25-26, 27. Since
the Respondent failed to issue the proper instructions, the
Appellant believes that it is entitled to reimbursement in the
amount of $1,188.00 for the first printing of the PCS Forms.
The Respondent, on the other hand, argues that any confusion
experienced by the Appellant is its own fault and not the
Government's. R. Brf., p. 8. Specifically, GPO contends that
the contract terms were unambiguous and the GFM clearly
indicated how the PCS Forms were to be printed. R. Brf., pp.
4-5. Consequently, the Government believes that when the
specifications and the GFM are considered in toto, it is
apparent that the same camera copy was to be used for the back
of Part 1 and the face of Parts 2 through 6 of the PCS Forms.
R. Brf., p. 5. Therefore, if the Appellant had properly read
the specifications prior to printing the PCS Forms, the error
would not have occurred. R. Brf., p. 4. On the other hand,
if the problem stemmed either from the fact that the
Contractor failed to receive all of the GFM it was entitled
to, or simply did not understand the instructions and
specifications, then under GPO Contract Terms, it had a duty
to contact the Contracting Officer prior to printing the PCS
Forms for a clarification.16 R. Brf., pp. 7-8 (citing, GPO
Contract Terms, Contract Clauses, ¶ 7 (Government Furnished
Property)). See also, Draft Report, pp. 14, 22, 26-27.
Accordingly, the Respondent blames the Appellant's own
negligence for the misprinting of the original PCS Forms, and
requests a judgment in its favor for that reason. R. Brf., p.
8.
DECISION17
The Board has carefully considered the record in this case,
especially the discussions which took place during the
prehearing conference held on April 19, 1990, as detailed in
the Draft Report.18 Those discussions indicate quite clearly
the existence of a major dispute with respect to the GFM
provided to the Appellant to perform the work, including what
exactly had the Contractor been given to use for printing the
PCS Forms.19 Draft Report, p. 26. 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, Contract Clauses, ¶ 7 (Government
Furnished Property). A contractor's duty to notify GPO under the
circumstances described in the above clause is an affirmative
one. Custom Printing Company, GPO BCA 10-87 (May 10, 1988), Sl.
op. 12.
The thrust of the Appellant's case is its view that the GFM
provided by the Government, as well as the Respondent's
augmenting instructions, were either poor or incomplete; i.e.,
they did not clearly indicated what the Contractor was
expected to do. Where, as here, a contractor attacks the GFM
as either inadequate or unsuitable, it has the burden of
proving that it notified the Respondent of its problems in
accordance with GPO Contract Terms; i.e., "prior to the
performance of any work." Printing Unlimited, GPO BCA 21-90
(November 30, 1993), Sl. op. at 13; Custom Printing Company,
supra, Sl. op. 12. Accord, 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)).
Contrary to the view held by the Appellant, the Board
concludes from the evidence of record that the Contractor
received all of the GFM which was to be provided under the
contract. The record is also clear that the Appellant did not
understand the specifications with respect to formatting the
forms. Therefore, under the terms of its contract with GPO,
the Contractor was supposed to contact the Respondent for
instructions on how to proceed, "prior to the performance of
any work." See, GPO Contract Terms, Contract Clauses, ¶ 7
(Government Furnished Property).
Interestingly, the record evidence indicates that the
Appellant did, in fact, recognize problems with the GFM "prior
to the performance of any work." In that regard, the R4 File
shows that the day after receiving the GFM, the Contractor
telephoned the Respondent's DARD for an explanation of some
camera copy markings and to resolve a grammatical error with
regard to the Part 3 designator (R4 File, Tab G, p. 4).20
However, there is nothing in the record to show that Appellant
brought the specific defects it now relies on to the
Respondent's attention. What this case boils down to is a
situation where the Contractor, who was uncertain about the
contract specifications and the GFM, failed to ask the right
questions of the Respondent. The Government cannot be held
liable for the Appellant's failure to make a complete inquiry.
Printing Unlimited, supra, Sl. op. at 14; Custom Printing
Company, supra, Sl. op. 13.
Without any positive proof in this record to show that the
Contractor fully 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", the evidentiary
cupboard regarding the notification issue is bare. What is
left are mere assertions by the Appellant that the GFM and the
Respondent's instructions, were "bad" and "incomplete" (R4
File, Tab L). Such unsubstantiated assertions standing alone
do not constitute proof. 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, supra, 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, when the Board considers the record as a
whole, it concludes that the Appellant has failed to sustain
its burden of proof. Printing Unlimited, supra, Sl. op. at
15; Custom Printing Company, supra, Sl. op. 13.
ORDER
The Board finds and concludes that by printing the initial
order of PCS Forms without a full understanding of the
specifications and the GFM, and without seeking a complete
clarification from the Respondent "prior to the performance
of any work", in accordance with GPO Contract Terms,
Contract Clauses, ¶ 7 (Government Furnished Property), the
Appellant assumed the risk of the error which resulted in a
rejection of the initial shipment of forms, and thus bears
the cost of its own mistake. THEREFORE, the decision of the
Contracting officer is AFFIRMED, and the appeal is DENIED.
It is so Ordered.
July 22, 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 November 29, 1989. 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 the R4 File,
with an appropriate Tab letter also indicated. The R4 File
consists of 15 documents identified as Tabs A through O.
2 By letter dated January 5, 1990, the Appellant advised the
Board that it had elected to have its appeal decided on the
record without a hearing. Board Rules, Rules 8 and 11.
3 The factual description of this case is based on the: (a)
the Appellant's Notice of Appeal, dated August 1, 1989; (b)
R4 File; (c) the Appellant's Letter, dated January 5, 1990,
requesting that the Board decide the case on the basis of the
written record pursuant to Rule 11 of the Board Rules; (d)
the Respondent's Answer, dated February 16, 1990; (e) the
Respondent's Notice of Filing, dated May 4, 1990, including
the attached Declaration of Rosemary Senneff (Senneff
Declaration); (f) the Appellant's Letter, dated May 14, 1990,
enclosing a sample form and original art work; (g) the
Appellant's Letter, dated May 15, 1990, stating that the
original copy that was used as camera copy had been returned
to the Quality Assurance Section at GPO's request; and (h)
the Report of Telephone Status Conference, dated August 13,
1992 (RTSC). In addition, at the status conference, which
was held on July 22, 1992, the Board informed the parties
that the former Administrative Judge had prepared a draft
Prehearing Telephone Conference Report, dated April 23, 1990
(Draft Report), of the meeting he held on April 19, 1990, but
had not issued it to them because an agency reorganization
soon afterward resulted in his reassignment to another senior
position within GPO. Since the Board believed that the Draft
Report should be included as part of the appeal record, it
told the parties that they would be provided a copy for their
comments and/or corrections. RTSC, pp. 1, 3. Although the
Board sent each party a copy of the Draft Report on August
14, 1992, neither of them submitted comments and/or
corrections for the Board's consideration. Consequently, the
Board included the Draft Report in the record as originally
written. See, Order Establishing A Briefing Schedule and
Setting a Date for Settling the Record, dated September 16,
1992, p. 2. The facts, which are essentially undisputed, are
recited here only to the extent necessary for this decision.
4 In addition to the 20,000 sets of forms, the contract also
ordered one complete set of film negatives from the Appellant
(R4 File, Tab A).
5 There were no changes to Part 1 of the PCS Form.
Furthermore, as defined by the parties at the prehearing
conference on April 19, 1990, a major change is one that
exceeds 3 inches on a page, while a marginal change is just
one line. See, Draft Report, p. 23.
6 The Purchase Order also indicated that the contract would
be covered by the relevant provisions of GPO Contract Terms,
Solicitation Provisions, Supplemental Specifications and
Contract Clauses, GPO Publication 310.2, Effective December
1, 1987 (Rev. 9-88) (GPO Contract Terms) (R4 File, Tab A).
7 According to the note in the appeal file, Ras Beard, and
employee of the DARD, answered the Appellant's question
concerning the marking on the back of the camera copy, and
confirmed that the backside numbers were to be placed "below
the circle folio for the face." As for the Part 3
designator, which originally read "Employee-Attached to
Initial Travel Voucher", another employee, James Willard,
apparently agreed with the Contractor that the "ed" at the
end of the word "Attached" was grammatically incorrect, and
since those two letters did not appear on the construction
sample, authorized the Appellant to print Part 3 without
them; i.e., the designator for Part 3 should appear as
"Employee-Attach to Initial Travel Voucher". See, R4 File,
Tabs G, N and O (Designator Sheet).
8 At the prehearing conference, Counsel for the Appellant,
Mark Stanton, Esq., stated that the Contractor had failed to
return not only the camera copy, but the construction sample
and "two other pieces on artboard" as well, and they were all
sent back to GPO's Quality Assurance staff on May 10, 1989.
Draft Report, p. 26. However, it is not clear from the
record whether Spurgeon Johnson or Ras Beard telephoned the
Appellant, although they were both employees of the
Respondent's Customer Service Department (R4 File, Tabs C and
D). Id.
9 The record discloses that the telephone call was made by
"J. Bucher". Reference to the GPO telephone directory for
the relevant time period, leads the Board to believe that "J.
Bucher" was probably Jacqueline A. Bucher, a DARD employee.
Furthermore, the record makes several early references to "Ed
Vortage" as a representative of the Appellant (R4 File, Tabs
F and H). However, it seems clear that "Ed Vortage" was
really a corruption of the name "Ed Vartughian," who is the
Appellant's President, a mistake mostly due to an initial
misreading of his signature (R4 File, Tab D). The
misidentification of the Appellant's representative was
corrected by Rosemary Senneff, a Printing Specialist in GPO's
Quality Assurance Section, who was ultimately assigned to
handle this matter for the Respondent (R4 File, Tabs F and G,
p. 3). See, Senneff Declaration, ¶ 1.
10 A "folio" is simply a page number. See, Pocket Pal,
International Paper Company, Memphis, Tennessee (14th ed.,
1989), p. 193.
11 The Contracting Officer also expressed his opinion that
DOT could have made matters clearer by drawing a large "X"
across the construction sample, but since the camera copy was
correct, it should have been followed by the Contractor. In
response, Senneff asked if she should so mark the
construction sample before returning it to the Appellant, but
the Contracting Officer told her that doing so was
unnecessary (R4 File, Tab G, p. 2).
12 See, note 7 supra.
13 In her affidavit, Senneff states that the notation "Copies
of 3 pieces of c/c [camera copy] ret'd [returned] to K
[contractor] on 5/23. Copies show circle for folios[.]"
which appears at the bottom of the first page in Tab O of the
R4 File, was added later and did not appear on the sheet sent
to the Contractor. See, Senneff Declaration, ¶ 2.b.
14 Only the Respondent submitted a written brief in this
appeal. See, Respondent's Brief, dated October 19, 1992
(hereinafter R. Brf.).
15 Apparently, the major change indicated in the contract
specifications concerned the Travel Authorization portion of
the form only. Draft Report, p. 28.
16 As the Respondent notes, during the prehearing conference
of April 19, 1990, the parties could not agree about what
materials were included in the GFM actually provided to the
Appellant. R. Brf., pp. 5-6 (citing, Draft Report, p. 25).
In a nutshell, the dispute concerned how many pieces of
camera copy were furnished to the Contractor-the Appellant
said two pieces, while the Respondent insisted that three had
been provided. Draft Report, pp. 13-14, 20-21, 25. (From
the Board's examination of Tab O of the R4 File, which the
Contractor admitted was identical to the camera copy it
received, it seemed to the Board that three pieces were in
fact provided; i.e., two sheets plus the instruction sheet.
Draft Report, pp. 20-21.) Since this factual dispute had to
be resolved in order to decide the case, the Board directed
the Respondent to furnish an affidavit from the GPO employee
who sent the GFM to the Appellant describing the materials
which were included (Senneff Declaration), while the
Contractor was asked to submit copies of the materials which
it received from the Government and samples of the original
printing. Draft Report, pp. 25, 27-28. The Respondent now
says that it has reviewed the documents the Appellant
submitted to the Board, and it believes that they do not
accurately reflect the GFM which was sent to the Contractor.
R. Brf., pp. 6-7. The Respondent also claims that the
Appellant has "steadfastly refused" to provide copies of the
requested documents. R. Brf., p. 7. Accordingly, GPO
contends that it is entitled to the benefit of a negative
inference that the contents of those documents would be
harmful to the Appellant's case. Id. (citing, Jen-Beck
Associates, VABCA Nos. 2107-10, 2113-2117, 2119-20, 2122,
2124, 2125, 2127, 2129-2135, 2186, 87-2 BCA ¶ 19,831;
Morowitz v. United States, 15 Cl.Ct. 621, 631 (1988). See
also, Fry Communications, Inc./InfoConversion Joint Venture,
GPO BCA 9-85, Decision on Remand (August 5, 1991), Sl. op. at
39-40. However, the Board has already ruled that both
parties have furnished the additional information it
requested. See, RTSC, p. 3. Therefore, such a negative
inference is not warranted in this case.
17 The record on which the Board's decision is based consists
of: (a) the Appellant's Notice of Appeal, dated August 1,
1989; (b) R4 File; (c) the Appellant's Letter, dated January
5, 1990, requesting that the Board decide the case on the
basis of the written record pursuant to Rule 11 of the Board
Rules; (d) the Respondent's Answer, dated February 16, 1990;
(e) the Respondent's Notice of Filing, dated May 4, 1990,
including the Senneff Declaration; (f) the Appellant's
Letter, dated May 14, 1990, enclosing a sample form and
original art work; (g) the Appellant's Letter, dated May 15,
1990, stating that the original copy that was used as camera
copy had been returned to the Quality Assurance Section at
GPO's request; (h) the draft Prehearing Telephone Conference
Report, dated April 23, 1990; and (i) the Report of Telephone
Status Conference, dated August 13, 1992.
18 Although the record was mostly compiled before the
undersigned was appointed GPO's Administrative Judge, see
note 3 supra, that fact is not an impediment to his
authorship of this decision. See, C&L Construction Company,
Inc., ASBCA Nos. 22993, 23040, 81-2 BCA ¶ 15,373, at 76,168
(citing, Sternberger v. United States [13 CCF ¶ 82,085], 185
Ct.Cl. 528, 401 F.2d 1012 (1968); Sundstrand Turbo v. United
States [12 CCF ¶ 81,589], 182 Ct.Cl. 31, 389 F.2d 406
(1968)).
19 See, note 16 supra.
20 See, note 7 supra.