U. S. Government Printing Office
Office of the General Counsel
Board of Contract Appeals
Appeal of Kaufman DeDell Printing, Inc.
April 29, 1976
Vincent T. McCarthy, Chairman
Jay E. Eisen, Member
Robert M. Diamond, Member
Panel 75-11
This is an appeal filed on November 21, 1975, by Kaufman DeDell
Printing, Inc., 812 North State Street, Syracuse, New York,
13208, herein also referred to as the Contractor, under the
disputes clause of the contract, Article 29, U. S. Government
Printing Office, Contract Terms No. 1, Rev. July 15, 1970. The
Office of the General Counsel is the Public Printer's
representative for the determination of appeals under the
disputes clause. This appeal relates to the action of the
contracting officer in terminating the contract, Program 270-S
for default by reason of the contractor's failure to deliver an
acceptable product on the first of twelve print orders and for
failure to make progress on the other eleven print orders.
Findings of Fact
1. This appeal arises out of a contract entered into by Kaufman
DeDell Printing Inc., and the U.S. Government Printing Office,
herein referred to as the GPO, for the production and delivery of
self cover forms titled "Questionnaires for Military Occupational
Data Bank" for the Department of the Army.
2. The contract, designated as Program 270-S, Jacket Number
211-457, is a requirements type contract executed on May 29,
1975, for the period, June 1, 1975 to May 31, 1976.
3. The specifications require the production of about 160 types
of questionnaires, consisting of from 16 to 66 leaves. The
maximum total quantity of questionnaires to be produced and
delivered amounts to 126,000, at an estimated cost of $130,
747.20. The contract provides that the Department of the Army
will place approximately 7 to 15 orders per month until the
completion date of the program.
4. The specifications require that the questionnaires be
accurately trimmed on four sides, and require such operations as
setting type and printing the forms for scanning on the optical
Character Reader CDC 915. The importance of accuracy and
careful. work is emphasized throughout the specifications.
The contract specifications provide, inter alia :
"Refer to Section 5 of the U.S.A. Standard Character Set for
Optical Character Recognition (X3.17 - 1966) for the Print
Characteristics required for the pages to be processed on Control
Data Corporation's Optical Character Reader 915.
"Alinement and Margins: Alinement and margins are extremely
critical and must remain constant on all pages. See Exhibits "F"
and "G" for measurements. Refer to Exhibit "G" for exact
location of Page Identification Code and Answer Boxes. [Exhibits
."F" and "G" represent samples.]
"Proofs: The contractor will be required to furnish two complete
press proofs of each questionnaire to the following address, to
be approved before gathering and completing production on each
order:
HQDA (DAPC-PMR-O)
2461 Eisenhower Avenue
Alexandria, Virginia 22331
Proofs will be withheld 10 working days.
NOTE: Contractor will not print prior to his receipt of a 'OK to
Print.'"
5. Print Order 142 E/1 was transmitted to the contractor on
August 1, 1975, for completion and delivery to the Department of
the Army on October 1, 1975. The listing of subsequent print
orders on Program 270-S as issued to the contractor by the
Department of the Army, including the dates of issue and schedule
and deliveries for completion, are stated as follows:
Schedule No. of
Print Date of for completion No. Pages
Order Issue and delivery Books Each
142E/2 8/1/75 10/31/75 1610 92
142E/3 8/21/75 10/31/75 1030 94
142E/4 8/21/75 10/31/75 985 132
142E/5 8/21/75 10/31/75 490 100
142E/6 8/21/75 10/31/75 170 92
142E/7 8/21/75 10/31/75 890 110
142E/8 8/21/75 10/31/75 515 114
142E/9 9/10/75 11/14/75 815 114
142E/10 9/10/75 11/14/75 1000 102
142E/ll 9/10/75 11/14/75 290 98
142E/12 9/10/75 11/14/75 1000 100
6. The proof submitted by the contractor for the initial print
order was received by the ordering agency on September 18, 1975.
The proof was found to be substantially deficient in not meeting
the requirements set forth in the specifications. The contractor
was advised to submit a second proof free of errors. The second
proof was received by the agency on September 29, 1975. Similar
types of deficiencies to those on the initial proof were obvious
on the second set of proofs. The deficiencies on the first and
second set of proofs were readily apparent since they prevented
the questionnaires from being scannable on the CDC 915 Page
Reader, a contractual requirement. Subsequent to the contracting
officer forwarding to Kaufman DeDell, a show cause or "cure
notice" on October 20, 1975, the contractor submitted a third set
of proofs to the agency. They were not acceptable. In essence,
the three press proofs (3 copies of the booklet) were not fit for
scannability on the CDC 915 Page Reader. In addition, the
sequential numbers were printed on magnetic rather than OCR font
and were not identical on each page of the booklet as required.
7. The contractor requested a meeting at GPO on October 17, 1975,
to discuss the problems connected with the production of the
proofs. The representatives of the Department of the Army and
GPO who were in attendance at the meeting were notified by the
contractor on October 16, 1975, of its' inability to keep the
appointment.
8. The contracting officer notified the contractor by letter
dated November 17, 1975, of the termination of the contract,
Program 270-S because of default by reason of its failure to
deliver an acceptable product on the first of 12 print orders and
for its' failure to make progress on the other eleven print
orders.
9. In connection with the appeal proceedings under the disputes
clause of the contract, Article 29, Contract Terms No. 1, the
appellant requested an opportunity to be heard in support of its'
appeal.
Accordingly, Mr. Kenneth Mitchell, Contract Manager, representing
Kaufman DeDell Printing, Inc. appeared before the Contract
Appeals Board on March 19, 1976. He was accompanied by Mr.
Leonard J. Pyznski, Plant Foreman and Mr. Sizzimenti, of the New
York Office, Small Business Administration and Mr. Harry L.
Heintzelman of the Washington. D.C. SBA office.
Mr. Mitchell's oral presentation was generally repetitive of the
matters presented by the contractor in its earlier written appeal
and supporting correspondence. He stated that conflicting verbal
instructions provided by telephonic communication by GPO and the
Customer agency tended to mislead them in the preparation of the
required proofs. He said that the advice as to whether the lines
on the forms and boxes should be heavy or thin were confusing.
Thin lines according to Mr. Mitchell, will facilitate the
scannability of the proofs on the Control Data Reader. However,
the contractor stated that they followed the facsimile sample
forms issued for purposes of type face, style and format only.
The facsimile contained thick or heavy lines. Mr. Mitchell thus
averred that their use of the facsimile forms tended to mislead
them to their detriment and financial loss.
Since Mr. Mitchell's presentation referred to factual matters
within the knowledge of witnesses he was requested to submit the
evidence in writing, including affidavits. He was granted a
delay until April 1, 1976, to perfect his written appeal.
A careful review of the appellant's written letter, dated April
1, 1976, with attachments, discloses that many of the arguments
and self serving statements were repeated.
Reference is made in the April 1, 1976 letter to some hearsay
statements purported to have been made by Mr. T. Myatt and Mr.
Dick Powell of the SDA Corporation. The SDA corporation is the
contractor retained by the Department of the Army Personnel
Center, Alexandria, Virginia, to scan the forms. They are quoted
as stating that the Department of Army Personnel Center was
notified by the SDA Corporation "of the unacceptability of both
the paper (due to high reflectance) and the boxes (due to
lightness) upon receipt of the first set of proofs in the middle
of September. However, we were not notified of these determining
factors until the end of October, 1 1/2 months later and 2 proofs
later." The contractor continues by saying that the customer
agency "knew the Problem and refused and failed to inform us."
Opinion
The appellant contractor sought to explain its difficulties, not
being able to produce acceptable proofs, in its self serving
statements in the appeal correspondence, such as conflicting
verbal telephonic instructions issued by the Department of the
Army and GPO personnel and failure to accede to the contractor's
request to send personnel to their plant to provide technical
assistance.
The facts disclose that there were several telephone
conversations between Army Publications personnel and the
contractor relating to the contractor's lack of progress, and
author's alterations due to the contractor copying some
substantive material in error from an old questionnaire provided
as sample. However, there were no changes or conflicting
instructions issued by GPO and Army personnel as to the format of
the questionnaires as to alinement, margins and spacing of answer
boxes as depicted in the specifications and "Exhibit G".
In fact, a representative from both the ordering agency and GPO
visited. the contractor's plant subsequent to the award of the
contract during July 1975. Their objective was to assist the
contractor. The specifications do not provide any requirement
for a visitation to contractor's plant by Government
representatives for the purpose of rendering technical guidance
to the appellant contractor. The appellant repeatedly made the
point that its problems in connection with the production of the
proofs were due to inadequate guidance. Despite the visitation
by the Government representatives and advice rendered by
telephone, the contractor was unable to produce acceptable
scannable proofs. It was afforded three opportunities to do so.
The specifications made it a strict requirement, and a condition
precedent, for the questionnaires to be scannable on the CDC 915
Page Reader. The contractor furnished three press proofs
containing 79 pages to be read on the sophisticated scanning
device. A total of 46 pages.were rejected.by the CDC 915 Page
Reader and 33 pages contained scanning errors, making them
unacceptable. There is no room for tolerance or leeway in the
alinement and margins of the leaves, and if not constant on all
pages, the proofs are not acceptable for optical character
reading by the scanning reader.
The initial proof on the first print order was replete with
error. The contractor was advised that the critical dimensions
were out of range and to submit a second set of proofs. The
second set of proofs met with rejection by the ordering agency
because they still did not fulfill the contract requirements.
Subsequent to the receipt of the show cause letter by the
contractor, a third set of proofs were rejected by the ordering
agency because they were not acceptable to recognition for
scannability on the CDC 915 Page Reader. In addition, the
sequential numbers on all three proofs were printed in magnetic
rather than OCR Font and were not identical on each page of the
booklet as required. This deficiency contributed to the failure
of the proofs acceptability to recognition for scannability by
the reader equipment.
Although Print Order 1 should have been ready for delivery by the
contractor on October 1, 1975, the contractor submitted its third
set of proofs on October 28, 1975. Seven additional print orders
were due on October 31, 1975, and four more by November 14, 1975.
Therefore, it is irrelevant that appellant may have corrected its
errors by means of technical guidance.provided by GPO journeymen
if they were sent on a second visit to its plant in Syracuse, New
York. It is readily apparent that the contractor would not have
been able to meet the required delivery dates had the contract
not been terminated for default. The contractor failed to
perform on three opportunities and GPO was not required to give
it another chance. Computer Technologies, Inc., ASBCA, 70-1 BCA
¶ 8147 (1970). The fact that performance is required by way of
separate print orders does not necessarily make the contract
severable, and the entire contract may be terminated for default.
The initial print order, due for delivery on October 1, 1975,
with seven additional print orders due on October 31, 1975, were
not produced and delivered as of November 17, 1975; there was no
need to wait any longer. Delmar Mills, Inc., ASBCA 6138, 61-1
BCA ¶ 2910 (1961)
The contractor in his Brief dated April 1, 1976, quotes from a
GPO public relation publication, "How to Do Business with the
GPO," but apparently fails to recognize the fact that the
contractual relationship between the GPO and Kaufman DeDell,
Printing Inc. is basically a business relationship, following
general normal business and commercial law. It is true that the
Federal Government is different from the non-Government
contracting party, but despite the obvious differences, the
Government is the other party to the contract.
The U.S. Supreme Court has stated that when the United States
"comes down from its position of sovereignty and enters the
domain of commerce it submits itself to the same laws that govern
individuals there " Cooke v. United States, 91 U.S., 389, 398
(1875).
The written contract, including the one in this dispute, is
presumed to embody the final and entire agreement of the parties.
Parol evidence is accordingly not to be considered to contradict,
add to, change or otherwise vary the written contract. This
legal principle is clearly stated in Article 2, Contract Terms
No. 1, which is incorporated by reference as part of the
contract.
It is noted that Mr. Mitchell takes an inconsistent position in
the appeal as to whether the lines of the boxes should be thick
or thin. In his verbal presentation he stressed that thin lines
will facilitate the scannability of the form on the CDC 915 Page
Reader, but that his people were mislead by following the
facsimile sample of the form which contained heavy lines of the
boxes, and was the basis for rejection by the CDC Page Reader.
However, in his recent written appeal he quotes the opinion of
the SDA Corporation and Control Data Corporation that the boxes
were too light for scannability purposes.
The appellant blames the Army for "lack of truth", instead of
realizing the contractor's failure to make progress on the
contract was its failure to comply with the specifications
expressed in the contract. The specifications apparently were
clear to the contractor since it did not raise any questions as
to any ambiguities prior to bidding. If the contract did not
express the true agreement it was the contractor's folly to have
accepted it. A review of correspondence submitted by the
appellant and the contracting officer discloses that contemporary
instructions were taken into consideration to ascertain the
subject matter of the contract, but there is no evidence to
support the allegations of the contractor, that the contract was
changed, altered or modified in any way. Although not considered
in deciding this appeal, it has been reported that the contractor
who was awarded the reprocurement contract is meeting the same
requirements of the agreement without incident or difficulty.
The evidence as adduced leads reasonably to the conclusion that
the contractor failed to make satisfactory progress within the
contemplation of the default clause, and that such failure was
not due to causes beyond its control or without its fault or
negligence. The termination for default was therefore proper.
International Aerial Mapping Company, ASBCA, 1962 BCA ¶ 3626.
Decision
In view of the foregoing the appeal is denied.