U.S. Government Printing Office
Office of General Counsel
Contract Appeals Board
Appeal of Transkrit Corporation
June 26, 1975
Vincent T. McCarthy, Chairman
Jay E. Eisen, Member
Robert M. Diamond, Member
Panel 75-3
This is an appeal filed by Transkrit Corporation, P.O. Box 12,
Hunter Lane, Elmsford, New York.10523, herein also referred to as
the contractor, on April 11, 1974. under the disputes clause of
the contract, paragraph 2.27, GPO Form 1026, Rev. 6/1/74,
Contract for Marginally Punched Continuous Forms, for the 6-month
period, June 1 through November 30, 1974. The General Counsel
has been designated to determine appeals under the disputes
clause.
I. Findings of Fact
(a) This case arises out of a contract entered into by the
appellant, Transkrit Corporation, and the U.S. Government
Printing Office, herein referred to as the GPO, for the
production of 500,000 sets of marginally punched continuous forms
in compliance with the description provided in the
specifications.
(b) The contract, designated as GPO Jacket No. 548-447, Purchase
Order 30650, is a fixed price agreement for the procurement of
the form for use by the Department of the Air Force, pursuant to
their Requisition No. 1088-Z. The title of the form is
designated as "Statement of Recipient of Annuities, Pensions,
etc." (self-mailer), Form No. TD-W-2P.
(c) The contract was awarded on July 30, 1974 to appellant, in
acceptance of their bid in the amount of $13,270. The manuscript
copy was delivered to the contractor by U.S. certified mail on
July 29, 1974 and the receipt acknowledged by the contractor on
August 1, 1974.
(d) Delivery was to be made on or before October 2, 1974. F.O.B.
contractor's city. The terms of the contract as stated in the
specifications required that the contractor send 3 sets of
proofs, and copy to the following:
U.S. Government Printing Office
Central Office Printing Procurement Division
Washington, D.C. 20404
Attention: Special Handling Section
Room A843
The contractor was directed to comply with the following:
"Contractor must not print prior to his receipt of "O.K. to
Print."
(e) The contractor asserts that it mailed the proofs and original
copy via first class mail to the GPO on August 12, 1974, using
their standard proof transmittal form letter. The addresses
[sic] was designated as follows:
U.S. Government Printing Office
Washington, D.C.
Jacket No. 548-447
This same address appears on the contractor's job ticket No.
29270 submitted as additional evidence and marked as Exhibit 3.
The Procurement Division, GPO, has no record of, or evidence
acknowledging the receipt of the required proofs. The contractor
was notified by telephone on several occasions, during the period
August 1974 through October 15, 1974 of the non-receipt of the
proofs and requested to submit the required proofs to avoid
further delay in production.
(f) The contractor submitted the required proofs on October 17,
1974, which were received at the Procurement Division, GPO on
October 22, 1974. The contractor failed to include the required
manuscript copy. A duplicate manuscript copy was used to
proofread the proofs. They were returned to contractor marked
."O.K. to Print" on November 6, 1974, meeting the specified 15
workday hold time.
(g) The actual delivery date of the completed forms to the
Department of the Air Force occurred on January 2, 1975.
(b) The contract provided in part under the schedule the
following:
"The shipping schedule(s) established herein must be maintained.
See 'Liquidated Damages' in GPO Form 1026."
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. That is at the rate of
$132.70 per day covering a period of 54 days default of the
shipping schedule. However, the total damages.assessed
represents the maximum allowable under the terms of the.contract,
that is, not in excess of 50 percent of the total value of the
entire order. Thus, liquidated damages amounts to a total of
$6,635.
II. Opinion
The liquidated damages clause of the contract, page 6, provides
in pertinent part the following:
"2.19 LIQUIDATED DAMAGES
(a) Should the contractor default on shipping schedule agreed to
and specified in the purchase order, 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 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): . .
. except the total damages assessed against the contractor shall
in no case exceed fifty percent of the total value of the entire
order. . . .
(b) Damages shall not be applied against the contractor for
delays in shipment occasioned by 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
enemy, acts of the Government, fires, floods, epidemics,
quarantine restrictions, strikes, freight embargoes, unusually
severe weather, and delays of a subcontractor due to such causes
. . . Provided, That the contractor shall, within 10 calendar
days from the beginning of such delay, notify the ordering agency
in writing of the cause of the delay: Provided further, That such
notice to the contracting officer shall contain the justification
for such delay."
lt 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 Co., Inc., GSBCA, 65-2 BCA ¶
4964).
Bearing these precepts in mind, let us now consider the
appellants allegations as to why its lateness should be
considered excusable and the support for such allegations.
The contractor alleged that it sent the required proofs and the
original copy of the manuscript to the Government Printing Office
on August 12, 1974, via first class mail; that the Department of
the Air Force had located the original copy but did not find the
proofs. In addition, the contractor submitted copies of time
sheets indicating its employees worked on the GPO job, Jacket No.
548-447 on August 8, 1974, and a copy of a job ticket showing a
notation that three sets of proofs were mailed out on August 12,
1974. The GPO and the Department of the Air Force through their
officials has denied that they ever received the proofs in
question. The Air Force admitted retaining a set of duplicate
manuscript copy, which is normal procedure by GPO ordering
agencies.
The contractor further alleged,that the proofs were sent by means
of first class mail and contained in a standard proof transmittal
type letter form, thus no copies [sic] of a transmittal letter is
available for verification. The transmittal letter form was
improperly addressed, in that it did not conform to the
requirement as provided in the specification. Subsequent to
August 12, 1975, the contractor was notified several times by
telephone that the GPO had not received the required proofs and
manuscript copy. The contractor was requested to forward a
duplicate set of proofs to avoid any further delay in the
production of the ordered forms, but the contractor further
extended the delay by not shipping the required proofs until
October 15, 1974.
The April 11, 1975 affidavit of Mr. Sidney Hoffman, an official
of Transkrit Corporation, does not outweigh the evidence for the
GPO, which tends to show that the proofs were not delivered to
the Special Handling Section, located in Room A843, Printing
Procurement Division, Central Office, Government Printing Office
as required by the contract. No record is available indicating
its receipt at the Washington, D.C. 20404 designated address.
The cause of the delay falls on the contractor. The contractor
apparently, for reasons of his own, did not plan to commence
performance promptly as evidenced by its failure to submit the
duplicate proofs until October 15, 1974. Aries Enterprises,
Inc., GSBCA, 68-1 BCA ¶ 6830. From the fact that the contractor
had entered into this contract, it is fair to presume that it had
ascertained it was within its power to perform the contract
within the time allotted. The burden rests upon its shoulders to
place itself in a position to perform. It was the responsibility
of the contractor to insure the prompt and safe delivery of the
required proofs to the GPO. The use of certified mailing with a
signed return receipt requested would have perhaps reduced the
contractor's risk of loss or misdirection of the mailing matter.
The mere fact that a cause of delay is unforeseeable does not
excuse the delay. The cause must, in addition be beyond the
control of the contractor and without his fault or negligence.
In the instant case, the appellant had full control over the
situation to the extent of avoiding the delay. The delay in no
way was caused by Government personnel.
In view of the foregoing, the appeal is denied.