U.S. Government Printing Office Office of General Counsel Contract Appeals Board Appeal of American Printing and Publishing, Inc. September 19, 1975 Vincent T. McCarthy, Chairman, Appeals Board Jay E. Eisen, Member Robert M. Diamond, Member Panel 74-11 This is an appeal filed on August 8, 1974, by the American Printing and Publishing, Inc., 458 East King Street, Chambersburg, Pennsylvania 17201, herein also referred to as the contractor or appellant, under the disputes clause of the contract, Article 29, United States Government Printing Office Contract Terms No. 1, Rev. July 15, 1970. I. Findings of Fact a. This case arises out of a contract (Jacket No. 545-360, Program 214-S) entered into by appellant and the United States Government Printing Office, herein also referred to as the GPO, for the production of various sizes of miscellaneous pamphlets printed in one or two colors. The contract is a requirement type of contract for indefinite quantities of pamphlets as requisitioned from the GPO by the Action Agency, 806 Connecticut Avenue NW., Washington, DC, during the term of the contract, beginning September 1, 1973, and ending August 31, 1974. b. The contract provided that approximately 50 orders will be placed over the term of the contract; that orders will be placed as noted, not necessarily at regular intervals; however, never more than five orders will be placed in any one week. It was anticipated that orders will vary from 1,000 up to 250,000 copies and that the average order will be for 25,000 copies. c. The contract required the use of specific types of paper to be used producing the orders as to quality, to include weight, thickness, opacity, brightness, pick resistance and surface. The categories of types of paper to be used are listed in the contract as follows: Per 1,000 leaves of: (a) 40-1b. White Writing (b) 120-1b. White opacified Offset Book (c) 120-1b. White Litho Coated Book (d) 100-lb. White Vellum-Finish Cover (e) l00-lb. Colored Vellum-Finish Cover (f) 160-lb. White Litho Cover d. The contractor was issued a memorandum order dated November 19, 1973, GPO Form 2511, Print Order 8, Purchase Order 52477, delivered to contractor on November 29, 1973, to manufacture 150,000 copies of a pamphlet (No. 4000.12) titled "Liberal Arts Brochure" for the Action Agency. The print order required the use of opacified offset #120 paper for the 16 pages of text. The shipping date was scheduled for January 22, 1974, with delivery F.O.B. contractor's city. The destination for delivery of the brochures was designated as the American Mailing Corporation, 440 Swann Avenue, Alexandria, Virginia. e. The contractor informed GPO by telephone, as noted in records retained by GPO, of the following: (1) January 18, 1974 - Contractor advised GPO that it could not furnish the specified paper (#120 opacified offset) because of a nationwide paper shortage. (2) January 23, 1974 - Contractor stated that he could furnish a substitute paper (#100 white offset) and it was authorized to produce 50M (fifty thousand) copies using that substitute paper. (3) January 28, 1974 - Contractor advised that he did not have #100 white offset, but possesses #20 white bond. The contractor was advised by GPO that #20 white bond would not be acceptable because of "show thru." f. The contractor, by letter dated January 28, 1974, requested to be released from the obligations imposed under the terms of the contract without a penalty because of the unavailability of #120 white opacified offset, #120 white litho-coated book paper and the No. 100 white opacified offset paper. GPO advised the contractor of its responsibilities under the binding contract, and that it was subject to the provisions of Article 18, U.S. Government Printing Office, Contract Terms No. 1, entitled Default. g. Tho contractor had issued a purchase order on December 10, 1973, to the Grant Paper Company, Philadelphia, Pennsylvania, to acquire #120 white opacified offset paper with delivery anticipated on December 17, 1973. The stock had not arrived as of February 4, 1974. On February 4, 1974, a purchase order directed to Alling and Gory, Harrisburg, Pennsylvania, resulted in the acquisition of #120 white opacified offset paper. This paper was received by the contractor on March 14, 1974. Print Order No. 8 was printed on the paper and it was shipped on April 1, 1974. h. The contract Provided in part the following: "Liquidated Damages: Should the contractor default on shipping schedules stated in these specifications, the contractor will be assessed liquidated damages against that part or parts of an order which have not been shipped to the specified destination on the specified date. . . . The amount of damages will be computed at the rate of one percent (1%) of the contract price of the quantity not shipped in accordance with specifications for each working day the contractor is in default of the shipping schedule(s): Provided, . . . except the total damages assessed against the contractor shall in no case exceed fifty percent (50%) of the total value of the entire order. . . " As a result of delays in performance, and pursuant to the terms of the contract, the contracting officer assessed liquidated damages against the contractor. Damages were computed at the rate of 1 percent of the contract price of the quantity not shipped according to specifications for each working day the contractor was in default of the shipping schedule. The amount of Print Order No. 8, Program 214-S is $6,977.00. Liquidated damages at the rate of $69.77 per day for a period of 46 days amounts to $3,209.42. i. The contracting officer on July 19, 1974, denied the contractor's request for relief from liquidated damages for Program 214-S, Print Order No. 8, Purchase Order No. 52477. The contractor submitted its appeal to the Public Printer by letter dated August 8, 1974. II. Opinion Under the clear language of Article 17, Delay in Deliveries, United States Government Printing Office Contract Terms No. 1, a delay to be excusable, must arise from unforeseeable causes beyond the control and without the fault or negligence of the contractor including, but not restricted to, acts of God, or the public energy, acts of the Government, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather. It is well established that a contractor who claims that his late performance and delivery is excusable has the burden of establishing the same under the contract. The contractor must prove affirmatively that the failure to achieve timely performance was caused by or arose out of a situation which was beyond his control and he was not at fault or negligent. In addition, the contractor must show that he could have performed on time save for the occurrence of the event he claims as an excusable delay (Lee K. Geiger Construction Company, GSBCA, 67-1 BCA ¶ 6189, American Construction Company, Inc., GSBCA, 65-2 BCA ¶ 4964). Bearing these precepts in mind, let us now consider the appellant's allegations as to why its lateness should be considered excusable and the support for such allegations. The appellant alleges as its excusable cause of delay its difficulties in obtaining the appropriate required paper stock which the specifications required for printing the pamphlets. The contractor was aware that the term of this requirements type contract began on Sept. 1, 1973, and ended on August 30, 1974. He was therefore alerted as to the need to obtain commitments from suppliers for the type and kind of paper needed to complete the requirements of the contract. On November 29, 1973, the contractor was issued Print Order No. 8 under Program 214-S to produce 150,000 pamphlets with the text printed on #120 opacified offset. The contractor issued a purchase order on December 10, 1973, to his regular supplier to acquire the paper, but was unsuccessful in obtaining the paper. He submitted a purchase order to another supplier on February 4, 1974, and received the paper on March 14, 1974. The facts show that the contractor did not have any firm commitment from any paper suppliers on or before the date of the issuance of Print Order No. 8. A contractor impliedly represents when he makes his bid that he can accomplish what he sets out to do within the time upon which there was an agreement. (Woodhull Construction Company, ASBCA, 57-1 BCA ¶ 1260.) Thus from the fact that the contractor has entered into the contract, it is fair to presume that it lies within its power to perform the contract within the time allotted. To prepare itself, the contractor, as a matter of necessity, must ascertain the availability of the required paper for the work contemplated. The contract was awarded on September 1, 1973. It specifies in detail the various categories of paper required and necessary to produce the print orders forthcoming during the term of the contract. For all that appears in the affidavits and correspondence submitted by the appellant, no firm orders for #120 white opacified paper were placed until December 10, 1973 and February 4, 1974. The appellant had an obligation to determine the availability, prices, and delivery dates of materials needed for the contract. (Federal Roofing and Painting, Inc., Eng. 68-1 BCA ¶ 6912.) The burden rests upon the contractor to place himself in a position to perform. We therefore hold that the appellant has failed to provide substantial evidence that the delay in completion of the print order was due to unforeseeable causes, without the fault of the contractor. III. Decision In view of the foregoing the appeal is denied.