U.S. Government Printing Office Contract Appeals Board Vincent T. McCarthy, Chairman Jay E. Eisen, Member Samuel Soopper, Member (dissent) Panel 77-9 Appeal of Queens Lithographing Corporation Contract No. K1980, Jacket No. 772-415 March 30, 1979 This timely appeal of Queens Lithographing Corporation (Appellant and Queens) 52-35 Barnett Avenue, Long Island City, New York, comes before the Board following a decision of the Contracting Officer on July 8, 1977, holding the appellant responsible and financially liable for failure to incorporate copy revisions required by the customer agency, the United States Air Force, before proceeding with the printing. The appellant was required, at no cost to the Government, based on a compromise, to retrieve, reprint a corrected telephone number, repackage, and redistribute approximately 3,000,000 book covers purchased under the captioned contract. The appellant contends that it was not at fault, but proceeded with the corrections and seeks reimbursement of the costs of said corrections. The decision of the Board is based upon information contained in the Appeal File, the transcript of a hearing, and posthearing submissions of both parties. Michael P. Graff, Esq. of Becker Goldstein, and Graff, 36 West 44th Street, New York, New York 10036 appeared for Queens and James C. Lane, Jr., Esq. counsel for the Government. The hearing convened during the period May 2, 3, 4, 1978. Submissions of post hearing briefs were submitted on or about November 1, 1978. INTRODUCTION In response to a solicitation issued by the Dallas Regional Procurement Office (DRPPO), United States Government Printing Office (GPO), Queens submitted a bid on January 17, 1977, of $114,620.00 to produce, 3,000,300 book covers plus or minus 25,000 for the Department of the Air Force (AF). Queens' bid was accepted by the Government on January 21, 1977, and award was made by the issuance of Purchase Order No. K1980 on the same date. The use of the book covers, produced specifically for the U.S. Air Force Recruiting Service, Directorate of Advertising, was for recruiting purposes. It is a well-prepared slick paper type colorful brochure to sell the Air Force to high school graduates. It includes a toll-free telephone number for informational inquiries concerning the Air Force. The brochure is designed as a sturdy book cover, apparently for use by high school students. FINDINGS OF FACT 1. The specifications provided in GPO Jacket Number 772-415 in pertinent part are as follows: "Return of Material. Furnished Camera Copy must be returned to DEPARTMENT (SEE PAGE 6)" . . . X SHIP ONE COMPLETE SET OF OFFSET PLUS CAMERA COPY USAFRS/RSAPD Randolph AFB, Texas 78148" X Mail the first 6 SAMPLE COPIES completed to U.S. Government Procurement Office, U.S. Federal Bldg, Room 3b7, 1100 Commerce Street, Dallas, Texas 75242" "GPO will furnish GBL CONTRACTOR'S PLANT: One 30 x 20" artboard containing black in white copy, trim marks, a red key line for the 4 color background illustration, one acetate overlay for position only of 4 color illustration dropout, and one tissue overlay denoting color treatment, and a blue key line for the varnishing area." One 30 x 20" artboard containing an original painting for the background (Art B). Contractor to create a 20-7/8 x 8 1/2 background image to print as a 4 color illustration. Shoot copy same size and utilize only the portion as indicated on the mechanical." 2. The specifications set forth as to proofs the following in pertinent part: "Proofs: Submit 3 sets of full color proofs (varnished) and 2 progressive proof books, proofed on the paper and in the colors to be used in this printing, together with all furnished materials, for approval before printing . . ." (Emphasis added.) The shipment was to be completed by March 16, 1977. 3. On January 24, 1977, the mechanical overlay including camera copy for the book covers was received by Queens at their Long Island City, New York, N.Y. plant (TR. I-85). On February 4, 1977, DRPPO received the proofs, accompanied by the mechanical and artwork and transmitted it to the Air Force at Randolph Field, San Antonio, Texas, the same date without comment or a transmittal communication (TR. I-18, 23). 4. On February 8, 1977, the Reproduction Branch, Recruiting Service Advertising, U.S. Air Force, San Antonio, Texas, received the package forwarded by DRPPO, containing the mechanical, the proofs, and the art work with respect to jacket 772-415 (TR. III-7). The Air Force reviewed the material and observed that a WATS telephone number on the copy submitted to Queens was in error and had to be changed. The Air Force decided to make another alteration, the major result of which was to transpose copy or printed matter from right to left of the art work and vice versa. (TR. III-18, 164, 206) 5. The alterations as to the copy were made on the artboard and encircled with red ink on the tissue overlay; in addition the phrase "shoot and strip-in new copy. Carl L. Seta USAF" was inscribed on the overlay on each side (Bd. Ex. 5) The writing on the overlay was made by Carl L. Seta on February 11, 1977, (TR. III-18, 19, 21, 22). Mr. Carl L. Seta caused an exact reproduction of the mechanical overlay to be made. (Gov't Exhibit A; TR. III-20, 23, 29) 6. On February 14, 1977, the proof, artwork and mechanical overlay were received at DRPPO, from the Air Force Recruiting Service (ATC), Randolph Field, Texas. The package was received by Mr. Howard E. Reichley, a printing specialist. In addition, he acknowledged receipt of a letter of transmittal, dated February 11, 1977, prepared by Carl L. Seta, and signed by Mr. R. L. Allen, which stated in pertinent part the following: "1. Proofs have been reviewed and are considered to be acceptable with a comment. Shoot and strip-in new copy as indicated on mechanical overlay". (Gov't. Ex. C) Mr. Reichley noted changes in the copy arrangement as pasted on the areas indicated, right and left. The area to the right side made reference to a WATS telephone number (800-447-4700) and the left side in part relates in part to the fine opportunities in the Air Force (TR. III-164). (Gov't Ex. I; Bd. Ex. 5); TR. III-160, 163, 176, 183, 192) Mr. Reichley outlined a third area on the overlay, the GPO imprint encircled with red ink and inserted the phrase "set/strip new copy" (TR. III-164). He made duplicate reproductions of the specific areas of the mechanical with the overlay in position and retained it for the Contracting Officer's file. (Bd. Ex. 3, 4; TR. III-168, 208, 211) He then telephoned Mr. Alan Wertlieb, General Manager, Queens Lithographing Corporation in New York on the same date (2/14/77) and notified him of the Air Force copy changes on the mechanical indicated in red ink on the tissue overlay requiring that the two areas of type be changed and transposed; in addition, to set and strip-in the GPO imprint. (TR. III-205, 206, 208, 221, 223) 7. On February 15, 1977, the proofs, art work mechanical, overlay and a copy of the Air Force letter of transmittal, dated February 11, 1977, was personally forwarded to appellant by Mr. Reichley. (TR. III-168, 198). They were received by Queens on February 17, 1977, and handled by Mr. Alan Wertlieb. He did not read the camera copy (TR. I-134) nor did he make a duplicate reproductive copy of the mechanical overlay. (TR. I-106, 107, 108, 109; TR. II-29, 231, 233) He testified that an author's alteration is generally made on the proof, but that it is not unusual for it to be on an overlay and mechanical. (TR. I-132) 8. Queens completed production of the book covers at its Rutgers plant located at Indianapolis, Indiana, sometime during the early part of March 1977 and forwarded samples to DRPPO and the mechanical overlay and samples to the Air Force. (TR. II-14, 15, 152) The production book covers included the GPO logo line but not the revised copy. The WATS telephone number was not corrected (TR. II-44, 156, 157). Mr. Reichley at DRPPO received the sample book covers on March 18, 1977, and his inspection revealed upon comparison with his retained copies of the mechanical overlay and the sample completed book cover that Queens had failed to incorporate the authors alterations made by the Air Force. (TR. I-40,42; TR. III-168, 169, 170) 9. Queens was notified of the discrepancy by Mr. Reichley on March 18, 1977 and stated that the product was not usable. The Air Force received samples of the book cover and mechanical overlay on March 22, 1977. Mr. Carl Seta examined the samples and observed that the Air Force revisions had not been incorporated into the final product (TR. III-36, 38). Mr. Seta notified DRPPO by telephone on March 22, 1977, of the discrepancy and indicated that the book covers were unusable for the purpose for which they were intended, namely recruiting, and that the job be rejected (TR. III-232, 233). 10. The appellant requested that a meeting be held in Dallas with its representatives and those of the Air Force aud GPO. At a meeting on April 1, 1977, the Contracting Officer asserted that the revisions were clearly indicated on the mechanical overlay and should have been made by Queens. He requested that the job be reprinted by Queens at no additional cost to the Government. Since the Air Force schedule did not allow for reprinting, Queens proposed that an effort be made to activate the invalid WATS telephone number. Queens agreed to pay for that service for a period of two years. The second alternative was to overprint the existing book covers by blocking out the invalid WATS number and inserting the correct one. During subsequent meetings on April 7 and 12, 1977, having determined that activation of the invalid WATS number was not attainable, Queens proposed and the Government approved, a design for the overprinting of the book covers. Appellant agreed to retrieve all previously delivered book.covers, overprint them in the agreed upon revision of the WATS number and reship them in accordance with the specifications (TR. I-55, 56, 57, 58; II-158, 166, 168) 11. By letter dated April 14, 1977, the Contracting Officer confirmed the proposal submitted by Queens to overprint the book covers in such a manner as to block out the incorrect toll free WATS telephone number and substitute the correct number. (Bd. Ex. 1; R4 P18; TR. I-61). Queens, by letter, April 22, 1977, denied liability as to fault, but indicated that it was proceeding with the overprint as agreed upon and will deliver pursuant to the schedule indicated by the Government (Bd. Ex. 1; R4 P20; TR. I-60, 64; II-174, 175) 12. By letter dated July 8, 1977, the Contracting Officer denied appellant's request for reimbursement, whereupon Queens initiated its appeal on August 2, 1977. (Bd. Ex. 1; R4 P22, 23; TR. II-222, 223) Opinion The issue raised by this appeal involves a determination as to whether the appellant or the Government was responsible for the error in the printing of the book covers. The appellants claim that the only author's alteration that appeared on the mechanical overlay when it was returned to Queens by the Dallas RPPO on February 14, 1978, was to set and strip-in a GPO imprint line. The Government contends that Air Force personnel had circled two areas of the tissue overlay in red ink and had annotated them with the phrase "shoot and strip-in new copy". The revision related to the transposition of copy relative to the art work and a correct WATS toll free telephone number. A considerable amount of testimony, together with documentary exhibits, was elicited during the course of a lengthy hearing. The posture of the evidence as developed indicated a meaningful conflict in the testimony, and therefore there is a credibility issue in this appeal. The appellant contends that the Dallas RPPO did not order the making of author's alterations that included transposing the copy and correcting the WATS toll free telephone number. The testimony of Mr. Howard Reichley, GPO Printing Specialist and Mr. Carl L. Seta, Reproduction Branch of the Air Force at Randolph Field, Texas, and Messrs. Alan Wertlieb, Vincent Patarino, Robert Ursillo, employees of the appellant, is diametrically opposite and contradictory so as to seem irreconcilable. The appellant asserts that Mr. Carl Seta's (of the Air Force in San Antonio) testimony is unworthy of belief and that the testimony of his long time friend and associate, Mr. Howard E. Reichley, DRPPO (Dallas) is tainted by the closeness of their relationship. The evidence reflects that Mr. Carl Seta, after copy changes were made on the artboard, marked in red ink on the tissue overlay over the copy as positioned on the artboard, added the phrase on each side "shoot and strip-in new copy" on the overlay. He testified he then forwarded the proofs and mechanical accompanied by a covering letter which he prepared, dated February 11, 1977, which stated in part: "Shoot and strip- in new copy as indicated on mechanical overlay" to Mr. Reichley, DRPPO. Mr. Reichley testified that he noted the changes and annotations made by Mr. Seta on the overlay. Mr. Reichley outlined a third area on the overlay the GPO imprint line, with red ink and inserted the phrase "Set/strip new copy". Mr. Reichley then made Xerox reproductions of the copy areas of the mechanical with the overlay in position and filed them in the contract file. He telephoned Mr. Wertlieb on February 14, 1977, and advised him of the changes made. Mr. Alan Wertlieb, testified that upon receipt of the mechanical overlay and the accompanying letter, he inspected the mechanical overlay and noted only one revision, the red box in the lower right corner as relating to the GPO imprint. Mr. Patarino and Robert Ursillo, concurred in their testimony that upon their view of the overlay, they noted only one revision referring to the GPO imprint. At this point we are challenged by a credibility issue. The evidence as adduced reflects that Mr. Reichley, Xeroxed the pertinent areas of the mechanical with the overlay in position; it was accepted into evidence. Queens, upon receipt of the mechanical did not prepare a duplicate copy of the overlay. The Xerox copies prepared by the Government, clearly revealed the discrepancy between the product intended and that which was actually produced. Queens contended that the mechanical was doctored by the Air Force after production was completed. Such serious allegations must be founded on clear and convincing proof. There is no evidence at all to support claimant's allegations. See Nichols & Co. v. United States, 156 Ct. Cl. 358, cert. denied, 371 U.S. 911. The testimony clearly reflects that the discrepancy was discovered by Mr. Reichley on samples submitted by Queens in Dallas, Texas and reported to both Queens and the Air Force on March 18, 1977, prior to the subsequent receipt of the mechanical overlay, camera copy, and samples by the Air Force on March 21, 1977. We must therefore reject appellant's unsupported allegation in regard to the changes being made by the AF after production was completed. The appellant failed to meet the burden of proof to support this allegation. The law recognizes in considering the credibility of witnesses and the weight to be given to their testimony, the slanting effect of the witnesses toward the parties or the self interest of the witnesses in the outcome of the case. Partiality and relationships may be considered as relating to their credibility. The Board, in this case, observed their manner of testifying such as tone and demeanor, intelligence and knowledge of the circumstances and disinterested relation to the matter in question. The bias and self serving interest of Queens' witnesses, according to their testimony, were weighed in considering their credibility. It is noted that Mr. Alan Wertlieb, was General Manager of Commercial Printing and had been employed by Queens for about twenty years. He left Queens for another printing plant under amiable terms sometime in February 1977. In addition to Mr. Wertlieb's testimony, that of Mr. Vincent Patarino, Production Manager, Rutgers plant, and also Mr. Robert Ursillo, Production Manager, Rutgers plant, was weighed concerning the facts and circumstances surrounding their handling and processing of the mechanical overlay received by Queens on February 17, 1977. (TR. I-83-134, II-3-23, 60; TR. I-152-164-177). The bias and self serving interest of Queens' witnesses who handled the mechanical overlay as loyal employees, and the former General Manager may be considered on credibility, but the position of the credibility of Government witnesses is reinforced by the unchallenged evidence of the fact that a Xerox copy of the areas of the mechanical was made prior to its receipt by Queens; it clearly shows the author's alterations introduced in the camera copy and the tissue overlay by the Air Force. It is therefore considered that the responsibility for the negligence and failure of Queens to incorporate the author's alterations, at least as to the WATS number, in the book covers must fall upon the appellant. The next issue raised by appellant is that even if the author's alterations were indicated on the overlay, but not on the proof, Queens should not be held responsible in view of the testimony of Mr. McKinley M. Luther, an expert witness called by appellant. Although not a practical printer, he testified that he did extensive research in determining the industry-wide customs and usage applicable to printing and lithography. He referred to a compendium of the trade customs as provided in appellant's Exhibit 6; II-76. Exhibit 6 is titled "Agreements Between Printers and Customers" and is published by the National Association of Printers and Lithographers (NAPL), 570 Seventh Avenue, New York, N. Y. 10018, 1977 edition. He testified in line with what is presented in paragraph 8 under "Trade Customs of the Printing and Lithographic Industries" of the above-cited publication which reads as follows: ". . .8. Proofs Proofs shall be submitted with original copy. Corrections are to be made on 'master set', returned marked "O.K." or "O.K. with corrections" and signed by customer. If revised proofs are desired, request must be made when proofs are returned. Printer regrets any errors that may occur through production undetected, but cannot be held responsible for errors if the work is printed per customer's O.K. or if changes are communicated verbally. Printer shall not be responsible for errors if the customer has not ordered or has refused to accept proofs or has failed to return proofs with indication of changes or has instructed printer to proceed without submission to proofs. . . ." He contends that the printer is not responsible for errors if the customer has not communicated requested changes in the customary and usual way. He concluded that the practice prevailing in the trade calls for corrections to be made on a master set of proofs, returned "O.K.'ed with corrections" signed by the customer. The witness's opinion was in line with his version of the trade custom, in response to a hypothetical question based on the facts in the case as understood by appellant's counsel. However, Mr. Luther, in response to cross-examination and examination by members of the panel stated that where camera ready copy is positioned on the mechanical overlay by the customer and accompanied by written instructions by the customer to shoot and strip new copy, he would follow the instructions as written. TR. II-135, 136, 137. He would recheck the proof since the original proof was made from the mechanical overlay to ascertain whether any changes were made in the camera copy. In the event his inspection and study revealed new copy on the mechanical overlay on the baseboard; and if he was in doubt as to the intent of the instructions, this at least would have alerted him to telephone the customer for an explanation concerning, what was required (TR. II-138, 139, 140, 142). It could therefore be concluded based on the testimony of Mr. Luther, that there are other manner and means, exclusive of what he testified were the industry-wide customs and usages, as to incorporating author's alterations as inscribed on camera copy, particularly when prepared and furnished by the customer. Article 13, entitled "Inspection and Tests", of GPO Contract Terms No. 1, incorporated by reference in the contract, provides in pertinent part: ". . . All material or workmanship shall be subject to inspection at all times and places by employees or representatives of the Government. In case any article is found to be defective in material or workmanship or not in conformity with the requirement of the specifications, the Government shall have the right to reject such articles, or require their correction. If the contractor fails to proceed properly with the replacement or correction thereof, the Government may, by contract or otherwise, replace or correct such articles and charge to the contractor the excess cost occasioned the Government thereby, or the Government may terminate the right of the contractor to proceed as provided in the contract and charge to the contractor the excess cost occasioned thereby." . . . In addition, GPO Form 2459D, Special Terms and Conditions, incorporated by reference provides in pertinent part the following: "WORKMANSHIP: All workmanship in connection with the article or product manufactured under these specifications must be first class in every respect." Article 13 of GPO Contract Terms No. 1 set forth above authorizes the Government to reject a defective product unqualifiedly or to require correction of the defects. If the Government chooses to permit a contractor to correct the product, the contractor is required to correct the defects and complete delivery. He is not entitled to additional compensation because the work he was directed to do was clearly part of the contract requirements. For example, see W.M. Schlosser Company. Inc., GSBCA No. 2009, 66-2 BCA ¶ 5796; and Montgomery Ross Fisher, Inc. (1970), GSBCA No. 2849, 70-1 BCA ¶ 8127. In this instance, where time of delivery is of the essence, and if the correction by the contractor cannot be made within the delivery schedule, the Contracting Officer may require delivery of the product, if the product is useable and acceptable by the customer agency. The contract herein as set forth provides for such an arrangement. In this case, the Contracting Officer, after conference with the parties concerned permitted Queens at a minimum to correct the WATS telephone number. This allowed the Air Force to get a useable product, but not the product it ordered. The procedure herein mitigated the expense and additional costs that could have accrued against the appellant and was within the contractual provisions set forth in GPO Contract Terms No. 1, Article 13. The Government was under no obligation to accept the non-conforming product. Henry C. Beck Co. (1966), VACAB No. 523, 66-1 BCA ¶ 5323. The appellant, during the proceedings and in its brief raised the issue as to whether the Government had any right to make changes on the mechanical overlay after the initial proofs were made. Queens asserts that in the absence of a proper change order issued by the Contracting Officer, the Government had no right to reject the performance of Queens, which conformed in all respects to the original copy of the specifications. It is contended that under Article 2 of U.S. GPO Contract Terms No. 1, only the Contracting Officer has the authority to order changes in specifications and pursuant to the terms thereof, no oral statements of any person may be allowed to change such specifications. As a general rule, change orders may be initiated by the Contracting Officer, or the contractor may request that a change order be issued. If the contractor has been directed to perform the contracts in such a manner as to appear outside the scope of the contract, or in excess of its requirements, it is his obligation to notify the Contracting Officer of such situations so that an appropriate change order may be issued. However, in this instance, we have items described as author's alterations which a printing contractor customarily performing a print job would be expected to render. It is within the scope of the contract, and therefore would not require a change order. The appellant, a printing establishment with extensive experience in performing Government contracts is well aware that the purpose of submitting proofs as provided in the contract, is to obtain "approval for printing". We must interpret as reasonable, that this permits the Government to make author's alterations of the type incorporated in the mechanical overlay. In fact, the changes were already made by the Government as indicated in the camera copy. The Contractor's employees failed to recognize the comments on the tissue overlay or to read the revised copy or to be alerted by the remarks in the Air Force letter of February 11, 1977. The changes requested by the Government were integrated into the contract requirements by the trade practice for which the contractor was responsible. Creative Arts Studio, Inc. (1970), ASBCA No. 13217, 70-1 BCA ¶ 8165. We must therefore reject the appellants claim for compensation for additional costs for reprinting a corrected telephone number plus the incidental costs thereto, based on the changes article in the contract. Evidence showed that the trade practice was to consider author's alterations, as fairly comprehended in the specifications, and thus we must therefore reject the claim. R.D. Thayer Company (1957), ASBCA No. 3900, 57-2 BCA ¶ 1410. It is therefore concluded that the appellant was responsible to produce the book covers in conformance with the Contracting Officer's request to overprint the existing book covers by blocking out the invalid WATS number and inserting the correct one at no expense to the Government. DECISION The appeal is accordingly denied. Dissenting Opinion, June 11, 1979 Samuel Soopper, Member, Contract Appeals Board Because of a substantial disagreement with both its assessment of the facts and, more importantly, its application of the law I am unable to join the opinion of the majority in this case. The crucial issue in this appeal is whether the contractor was apprised of changes to be made in the copy when the proofs were returned to it for final printing. As the majority notes, resolution of this issue depends primarily on the credibility of the witnesses of the two parties. Appellant's witnesses testified that the copy changes had not been made on the mechanical overlay they received in February 1977. Respondent's witnesses testified that the changes had been made prior to the submission of the material to appellant. The majority speaks of appellant's position in these terms: "Queens contended that the mechanical was doctored by the Air Force after production was completed. Such serious allegations must be founded on clear and convincing proof. There is no evidence at all to support claimant's allegations. See Nichols & Company v. United States, 156 Ct. Cl. 358, cert. denied, 371 U.S. 911." Majority Opinion at 7. 1 At the outset, I do not agree with the majority's statement as to the burden of proof which must be sustained by appellant on this crucial issue. As the Government recognizes in its Recommended Findings of Fact and Conclusions at 4, the burden of proof appellant has in this case is that of a preponderance of the evidence. In addition to cases cited by the Government, see e.g., Lamonte J. Schnur, AGBCA No. 75-115, 77-1 BCA ¶ 12,290 (1977) (claim for work performed in excess of specifications); Federal Division, The Victoreen Instrument Co., ASBCA No. 10194, 66-1 BCA ¶ 5486 (1966) (constructive change due to defective specifications). I think it is erroneous to hold appellant, as the majority does, to a higher standard of proof. The majority's reliance on the Nichols case is misplaced. That case involved a breach of contract claim based on an allegation of fraudulent action by the Government. The Court of Claims held that the evidence put forth fell short of "that clear and convincing proof necessary to prove fraud." 156 Ct. Cl. at 364. Breach of contract is not an issue here, and would, at any rate, be beyond our jurisdiction. Allegations of fraud and falsity are beyond our jurisdiction as well. The Bryant Company, Inc., HUD BCA Nos. 75-29, 75-30; 77-1 BCA ¶ 12,467 (1977); Vare Industries, Incorporated, ASBCA Nos. 10337 and 11112, 67-2 BCA ¶ 6463 (1967); Aywon Wire & Metal Corporation, ASBCA No. 4966, 1963 BCA ¶ 3912, reconsideration denied, 1963 BCA ¶ 3996. While these cases involve Government claims of contractor fraud, the same principle should apply in this situation, since such allegations by the contractor are essentially charges of breach of contract. Cf. Midwest Telecommunications Corporation, ASBCA No. 21541, 77-2 BCA ¶ 12,581 (1977). However, this does not mean that we may not resolve the factual disputes raised here. We may do this, and retain our jurisdiction, by simply ignoring characterizations of the evidence unnecessary to the resolution of this case. As the Armed Services Board of Contract Appeals pointed out in Aywon Wire & Metal Corporation, supra: "The Board . . . does not decide whether appellant's claim is false or fraudulent; does not decide whether any testimony is, or any documents prepared or used by appellant are, fictitious and false; and makes no factual findings with respect to such matters. In weighing the evidence presented in support of the claim the Board has, of course, considered the Government's objections thereto just as it has considered appellant's objections to evidence relied on by the Government. The Board observes that in weighing evidence it may decide that certain evidence is not persuasive or is in error without deciding-or having any need to decide-that such evidence is false, fictitious, or fraudulent." 1963 BCA ¶ 3912 at 19,395. While the contractor has essentially alleged here that the evidence was doctored post-production, its claim also is and should be articulable only in terms of which party was negligent. In other words, appellant to prevail must prove only that the mechanical had not been changed when it was received for printing, without regard to what happened to at a later time. Appellant's burden in proving this should be by a preponderance of the evidence, like any other claim before this Board. By only assessing appellant's evidence in the light of a higher and more exacting standard, the majority has placed an unfair burden on the contractor. It was perhaps the standard used that led the majority to disregard substantial evidence in the contractor's favor on this issue. While appellant's witnesses had no physical evidence to corroborate their assertion that they reviewed the tissue overlay and found none of Mr. Seta's instructions upon it, logical inference does provide support for their position. Appellant's employees definitely did use the tissue overlay in order to add the GPO imprint. TR. I-112; TR. II-22; Govt. Ex. 5. If appellant's employees - and quite a few employees were involved - noticed and acted on Mr. Reichley's instructions on the overlay, why would they ignore those of Mr. Seta? This is especially intriguing since Mr. Seta's instructions are significantly larger and more obvious to anybody making even a quick perusal of the tissue overlay. 2 Furthermore, if Mr. Reichley did inform Mr. Wertlieb of all of the changes in question, why would he not have accomplished them? Even assuming that the instructions were to be found on the overlay as the Government contends, one can only assume that the phone call between the two men was a good deal less informative than the Government would lead us to believe. The majority does not discuss these points, but relies on Mr. Seta's Xerox corroboration, presumed witness bias, as well as the tone and demeanor of the witnesses while testifying. Majority Opinion at 7-8. Assessment of tone and demeanor are necessarily subjective, and if the majority's conclusions as to witness credibility differ from mine on this basis, I have no argument. The other points, however, deserve some comment. Regarding the Xerox, which seems to provide the foundation for what the majority terms the "doctoring" charge, the testimony was not quite so strong as a reading of the majority opinion would lead one to believe. Mr. Seta did testify that the Xerox showing his copy correction on the tissue overlay was made prior to the proofs being returned to the appellant in February. However, Mr. Seta was somewhat vague as to specific details of what occurred at that time, which was quite understandable in light of the substantial time that had passed. See TR. III-17-18. He testified that standard practice was to make a Xerox of the changes, but he could not recollect making the copy himself in this case. Very likely it would have been made by somebody else in the office. TR. III-18-21. Furthermore, he acknowledged that there was nothing in writing to corroborate when this copy may have been made. TR. III-22. Of even greater concern is the majority's discussion of witness bias. I agree that employment by a party is a relationship likely to produce partiality, and that this may be weighed in assessing witness credibility. McCormick, Evidence, §40 (Cleary Ed. 1972). However, the majority not only overemphasizes the concept, but also misapplies it to the facts of this case. At the operative time period about which the witnesses testified, all of the witnesses but one were employed by one of the parties: the Government's witnesses by the Government, and appellant's witnesses by appellant. 3 At the time of the hearing, Alan Wertlieb was no longer employed by appellant, but had left to work at another printing plant for unspecified reasons. Howard E. Reichley was retired at the time of the hearing, though he testified that he was seeking a job as a printing specialist with the Air Force at Randolph Air Force Base, the customer agency on this contract. TR. III-199-200. Additionally, Mr. Reichley and Mr. Seta had previously worked together. TR. III-5-6. This is the only evidence adduced by either side concerning bias of the witnesses. In my opinion, this is of little probative value, in that the presumed bias of both side's witnesses essentially cancels out. One might, though, say that appellant is a little stronger in this area, since Mr. Reichley was seeking a job with the Air Force, while there was no evidence that Mr. Wertlieb was seeking reemployment with appellant. However, the majority without explanation takes the opposite view. While it makes no mention of Mr. Reichley's situation, it concludes that "[t]he bias and self serving interest of Queens' witnesses who handled the mechanical overlay as loyal employees and the former General Manager may be considered on credibility . . . ." Majority Opinion at 8. I take this somewhat cryptic comment to mean that the majority did consider this to appellant's detriment. No such consideration was made the Government's witnesses, apparently because of the "unchallenged evidence" of Mr. Reichley's Xerox. Id. I do not think the two are related, and question whether the Xeroxed evidence is unchallenged, as noted above. I am forced to conclude that the contractor was prejudiced by the majority's erroneous use and undue stress on presumed bias of appellant's witnesses. Appellant also alleged that it should not be held responsible for the author's alterations in question even had they been indicated on the overlay. I feel that the majority failed to confront evidence supportive of appellant on this point as well. The thrust of appellant's argument here is that trade custom dictated that the author's alterations should have been indicated on the proofs, rather than the mechanical overlay. Since the contract does not speak specifically to this point, trade custom is admissible to show the intent of the parties. 4 In fact, the Government acknowledged that it was customary for author's alterations to be indicated on the proof, even though it was not done in this case. TR. III-39, 132, 243-244. The majority does not address this significant fact. Nor does it mention that the contract did not contemplate that the tissue overlay would be used for such corrections. Rather, the specifications indicated that the artboard would contain "one acetate overlay for position only of 4 color illustration dropout, and one tissue overlay denoting color treatment . . . ." Majority Opinion at 2 quoting Specifications at 2 of 6. (Emphasis added.) The Government could not explain this discrepancy. TR. III-223-225. To this must be added to the Government's admission that the changes were of sufficient magnitude that a reproof would have been requested had there been sufficient time. TR. III-202, 204. Moreover, the Government waived its contractual right to pre- inspection, which would, of course, have avoided this problem. TR. I-lll. The majority discusses this issue only in relation to the testimony of appellant's expert, McKinley M. Luther, and paragraph 8 of "Trade Customs of the Printing and Lithographic Industries", introduced by appellant as Ex. 6. Both the exhibit and the expert indicated that changes on the proofs are the customary way to indicate author's alterations in the printing industry. Appellant's Ex. 6; TR. II-85-86. However, the majority concludes as follows: "However, Mr. Luther, in response to cross-examination and examination by members of the panel stated that where camera ready copy is positioned on the mechanical overlay by the customer and accompanied by written instructions by the customer to shoot and strip new copy, he would follow the instructions as written . . . He would recheck the proofs since the original proof was made from the mechanical overlay to ascertain whether any changes were made in the camera copy. In the event his inspection and study revealed new copy on the mechanical overlay on the baseboard; [sic] and that if he was in doubt as to the intent of the instructions, this at least would have alerted him to telephone the customer for an explanation concerning, [sic] what was required. . . ." Majority Opinion at 9 (citations omitted). The reference to "accompanied by written instructions" is presumably to the letter from R. L. Allen of February 11, 1977, Govt. Ex. C, which stated, in pertinent part: "Proofs have been reviewed and are considered to be acceptable with a comment. Shoot and strip-in new copy as indicated on mechanical overlay." Appellant adduced testimony that this cursory message was taken to refer to the addition of the GPO imprint line. TR. I-170; TR. II-32. Even Mr. Seta acknowledged that the letter in itself was insufficient to apprise the contractor of the changes to be made, since the individual alterations were not detailed in the letter. TR. III-130. This is certainly strong evidence that the letter's instructions were ambiguous. The majority's reliance on Mr. Luther's proposition that he would have telephoned for an explanation if he was in doubt as to the intent of the customer's instructions is also questionable in light of the evidence that Mr. Wertlieb did indeed call Mr. Reichley when he noticed that the proofs were unmarked. TR. I- lll. I think the majority's explanation for its conclusion on both of the issues discussed is insufficient. Because of its misapplication of the pertinent legal standards, and its failure to deal with significant evidence supporting appellant, I cannot join the majority's opinion and must dissent. _______________ 1 The majority also concludes that no change order was necessary for appellant to be requested to make the author's alterations in question. Majority Opinion at 10-11. While I am not at all sure that this is the case, this issue is not material. The expense to which appellant would be entitled were a change order necessary is small. TR. I-149-150. The reprinting, because of the failure to incorporate the author's alterations, is a separate issue. Whether this failure is the result of appellant's negligence is the primary issue in this appeal, and it cannot.be alleged to have been caused by lack of change order. 2 As Mr. Wertlieb indicated in testimony: "You would have to be almost blind to miss it. It is very obvious, being in red, circled around the copy. It is an obvious thing that took us quite by surprise when we first saw it." TR-I-143. See also TR. I-156-157 (testimony of Mr. Ursillo). 3 The only exception is Mr. McKinley Luther, an expert in the printing industry who testified for appellant and was at no time employed by appellant in the regular course of business. 4 See, e.g., Kenneth Reed Construction Corp. v. United States, 201 Ct. Cl. 281, 475 F.2d 583 (1973); WRB Corporation v. United States, 183 Ct. Cl. 409, 445, 454 (1968). Expert testimony and industry codes are common methods of establishing trade customs. See Davho Company, Inc., VACAB No. 1004, 73-1 BCA ¶ 9848 (1973) at 46,006.