UNITED STATES GOVERNMENT PRINTING OFFICE BOARD OF CONTRACT APPEALS Panel 80-8 Neal Fine, Chairman C. Peel, Jr., Member Charles T. Ray, Member Appeal of Nekoosa Press, Incorporated February 27, 1981 I. This decision concerns an appeal filed on July 23, 1980, by Nekoosa Press, Incorporated, 313 Market Street, Nekoosa, Wisconsin 54457, in regard to June 25, 1980 decision of Mr. Thomas P. Brannon, Manager, GPO Atlanta Printing Procurement Office concerning Jacket 647-454, Purchase Order F-3922. This decision is rendered pursuant to the provisions of GPO Instruction 110.1A, Board of Contract Appeals Rules of Practice and Procedure. II. Issues Presented The first issue presented is whether the United States Government Printing Office, hereinafter referred to as GPO, properly terminated for default its contract with Nekoosa Press, Incorporated hereinafter, the contractor, in regard to Purchase Order F-3922, Jacket 647-454. The second issue is whether the GPO properly held the contractor liable for any excess costs incurred as a result of the default. III. Finding of Fact 1. On April 3, 1980 the GPO solicited bids on GPO Jacket 647-454. The contract was awarded to Nekoosa on April 22, 1980, in accordance with its Quotation Number 05426 and the GPO specifications. The contract concerned the printing and manufacturing of 300,020 expansion type file folders equipped with two permanently affixed metal fasteners. The GPO agreed to pay the contractor $37,500 for the performance of this work. The work was to be delivered in accordance with the shipping instructions on or before June 15, 1980. 2. The contract specifically provided that the contractor was subject to all terms and conditions of U.S. Government Printing Office Contract Terms No. 1 revised August 1979, and Quality Assurance Through Attributes dated May 1979 (GPO Pub. 310.1). 1/ 3. The record indicates that on May 20, 1980, the Contracting Officer wrote to the contractor requesting a detailed production schedule which included the date upon which the paper for this job would be delivered. 2/ The response to this request indicated that the paper was scheduled to arrive on or about May 31, 1980, and that shipment would be on or about July 1, 1980. 3/ 4. A memorandum dated June 11, 1980 from the Atlanta Regional Procurement Office indicates Mr. Wingo of Nekoosa informed the GPO on June 11, 1980 that because the paper for this order had not yet arrived production had not been initiated. 4/ 5. On June 12, 1980 the contractor was informed by telephone and telegram that the GPO considered the performance of the contract as endangered and that it would terminate the contract for default unless the paper was delivered and the unfinished folders delivered to the finishing company within ten (10) days. 5/ 6. On June 23, 1980 the GPO received a letter from Mr. Wingo of Nekoosa Press informing them that he was experiencing difficulty in obtaining paper supplies because suppliers would not provide paper without prior confirmation by the GPO that the paper met specifications. The appellant also at this time requested an extension of time to complete the contract. 6/ 7. On June 25, 1980 the contractor was notified by Mr. Brannon, Manager of the GPO Atlanta Printing Procurement Office that the contract, identified as Purchase Order F-3922, Jacket 647-454, was being terminated for default on the grounds that the failure to obtain the paper made it impossible to meet the shipping date of June 30, 1980. The contractor was informed of his rights under the Disputes Provisions of the contract. 7/ 8. On July 23, 1980, the GPO received a letter from the contractor appealing on all counts the decision of default. 8/ 9. The GPO informed the contractor on August 14, 1980, that it had thirty (30) days to submit any supplemental material and information which it deemed relevant to the appeal, and that it could have the appeal decided on the basis of only written documentation or at an informal hearing and written documentation. 10. On October 31, 1980, the GPO Administration, of Board of Contract Appeals selected the undersigned panel to decide the appeal based solely on the written documentation since no response was received from the contractor to the letter of August 14, 1980. 11. On January 7, 1981, the appellant was notified by letter that the Appeal Panel had scheduled an informal hearing on January 22, 1981. 12. The panel convened a hearing on January 22, 1981. The GPO was represented by James Lane, Esq. The appellant did not attend the hearing. IV. Findings of Law and Conclusions The matter at hand concerns a contract entered into between Nekoosa Press, Inc. and the United States Government Printing Office. The term "contract" has been defined in many ways by legal scholars and in judicial opinions over a long period of time. The most popular description of a contract is a promise or set of promises which the law will enforce. The specific mark of a contract is the creation of a right, not to a thing, but to another man's conduct in the future. 9/ This definition aptly fits the facts and circumstances raised by this appeal. The appellant was awarded a contract on April 22, 1980, which required that he produce 300,020 folders which were to be shipped by June 15, 1980. In consideration for this promise to perform, the GPO agreed to pay Nekoosa the sum of $37,500. Article 2 of GPO Contract Terms No. 1 specifically provides that any change in the contract terms shall be made in writing. The Board finds that no change in the terms of the contract was made. The appeal stems from the Government's actions pursuant to Article 17, Default, of the contract. This article provides that the Government may terminate the contract ". . . if the contractor fails to perform any of the other provisions of the contract, or so fails to make progress as to endanger performance of the contract in accordance with its terms, and in either of these two circumstances does not cure such failure within a period of 10 days . . . after receipt of notice from the Contracting Office specifying such failure." The facts presented to this Panel of the Board of Contract Appeals clearly and irrefutably prove that the contractor did not perform in accordance with terms of the contract and that the Government acted properly in terminating the contract pursuant to Article 17. The Appellant contended in his letter of appeal that his failure to perform is mitigated by two factors. First, the Appellant contends that GPO wrongfully failed to approve or reject a paper sample which was submitted on or about May 9, 1980. Second, the Appellant contends that he was not able to obtain paper from any supplier without prior approval from the GPO that the paper met its requirements. The law does not support the contentions of the Appellant. It has been held that 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. It is a well settled principle of contract law that a contractor who claims that its late performance and delivery is excusable has the burden of proving the same under the terms of the contract. It must prove affirmatively that the failure to achieve timely performance was caused by or caused out of a situation beyond its control and without its fault or negligence. Lee K. Geiger Construction Company, GSBCA, 67-1 BCA 6189. In the case of Federal Roofing and Painting Inc., Eng. BCA, 68-1 BCA 6912, the Board held that the appellant had an obligation to determine the availability, prices and delivery dates of materials needed for the contract. The appellant's contention that GPO wrongfully did not approve or reject the paper sample submitted on or about May 9th is without merit. Paragraph 5 in GPO Publication 310.1, Quality Assurance Through Attributes, which was part of the contract, specifically provides that the responsibility for inspection of materials to insure their conformance with contract specifications rests with the contractor. The contract did not provide in any manner that the GPO would perform any testing services for the contractor. The right of GPO to inspect and conduct tests does not release the contractor from his responsibility. The language in this portion of the contract is clear and unambiguous. The contractor cannot fault the GPO for not performing an act which it did not agree to perform. The GPO obligated itself to supply one sample folder for copy and construction purposes. It provided detailed specifications of the type of paper which was needed to produce the folders. No language can be found in the contract which implicitly or explicitly provided that the contractor could avail itself of the services of GPO to test paper samples which the contractor supplied. The contractor's unilateral decision to submit a paper sample for testing did not serve to change the express terms of the contract. No evidence exists in the record which would indicate that the GPO ever agreed to perform this service. Accordingly, the Panel finds this assertion of the appellant to be without merit. The second basis of the appeal is that the contractor alleges an inability to procure the necessary paper. The contractor asserts in his letter of appeal that he was unable to obtain paper from any supplier without prior approval from the customer. In support of this assertion the contractor submitted a letter dated July 2, 1980, from Consolidated Papers, Inc. which stated that it would not supply paper until the GPO had given specific approval of its product. The letter also stated that the paper would not be supplied until the contractor submitted a satisfactory letter of credit from a bank. While the contract provides in Article 17(c) that the contractor will not be liable for excess costs if the failure to perform arises out of causes beyond the control and without fault or negligence of the contractor, the case law on this issue uniformly requires the shortage of supplies to be abnormal and unforeseeable, American Emblem Co., Inc., NDBCA No. 38, 1 CCF 9 (1943). Mere difficulty in obtaining or unavailability in the usual course of business does not constitute impossibility of performance so as to excuse default in the absence of a clear showing that such conditions were so abnormal, extraordinary or unusual that they could not have been foreseen or anticipated at the time of making the contract, Thermo Nuclear Wire Industries, ASBCA, 61-1 BCA 2889. The law clearly holds that the burden of proof is on the contractor to demonstrate that failure to obtain the proper supplies was due to causes beyond the contractor's control, Beco, Inc., ASBCA, 1964 BCA 4493. The contractor in this matter has clearly not met the burden of proof required by the law. His inability to procure paper was not caused by conditions beyond his control. The contract provides that the testing of supplies is the contractor's responsibility. The only evidence supplied by the contractor to support his allegation of inability to procure supplies is a letter dated July 2, 1980. This letter is clearly an after-the- fact attempt to justify the contractor's failure to perform. First, it is dated July 2, 1980, a date which is after the date when the contractor was supposed to have completed and shipped the folders. No evidence was submitted as proffered in the letter of appeal of any other supplier's refusal to provide paper. Secondly, the supplier conditioned his providing of paper on receipt of a letter of credit from the contractor. These two conditions of one supplier do not fall within the list of excusable causes in the contract such as fires, flood, epidemics, strikes, freight embargoes, acts of God or acts of the Government. This single piece of evidence hardly provides a basis for this Panel of the Board of Contract Appeals or any Board to rule that the contractor's default was excusable. A contract is a serious matter. Each side promises to do something. The appellant in this matter promised to produce by June 15, 300,020 folders. The GPO promised to pay $37,500. The evidence without any question establishes that the contractor did not perform any portion of the acts necessary to complete the contract. The Government obviously had no recourse but to terminate the contract and attempt to reprocure the desired items. The right of the Government to pass on the excess costs which it incurred is clearly set forth in the contract. The appellant knew of this right and now cannot claim that it is wrong or unfair. When a contract is made each side must live up to its promises or suffer the agreed upon consequences. No evidence exists to indicate to this Panel that the Government has exceeded its contractual rights. Accordingly, for the reasons set forth this Panel denies the appeal of Nekoosa Press and finds that the actions of the Printing Procurement Manager and the GPO were correct. _______________ 1/ Index Exhibit 1 2/ Index Exhibit 4 3/ Index Exhibit 5 4/ Index Exhibit 6 5/ Index Exhibit 6 6/ Index Exhibit 7 7/ Index Exhibit 9 8/ Index Exhibit 10 9/ Wald's Pollock, Contracts (3d. Ed.) pp. 1, 2