UNITED STATES GOVERNMENT PRINTING OFFICE CONTRACT APPEALS BOARD Appeal of Technical Publishing Services, Inc. Decision dated January 20, 1982 Panel 81-1 THOMAS O. MAGNETTI, Chairman R. BRUCE HOLSTEIN, Member CHARLES D. COLLISON, Member PRELIMINARY STATEMENT This is a decision on a timely appeal filed by Technical Publishing Service, Inc. (hereafter referred to as the contractor). The contractor disputes the final decision of the Contracting Officer to terminate the contractor for default and to hold it responsible for the excess costs of reprocurement. This appeal is taken in accordance with Article 3 (the "Disputes" clause) of the Government Printing Office (the GPO) Contract Terms No. 1, GPO Publication 310.2, revised August 1, 1979. Contract Terms No. 1 was incorporated by reference into the specifications of the contract. Exhibit 14 of the Appeal File (hereafter the A.F.) The specifications were incorporated by reference into the Purchase Order. Exhibit 12, A.F. The contract (Program 1715-S) required the contractor to produce various looseleaf and side-stitched books and pamphlets. The final decision of the Contracting Officer held that the contractor failed to comply with the shipping schedules as specified in the contract. The jurisdiction of the GPO Contract Appeals Board over this appeal was established pursuant to GPO Instruction 110.10, entitled "Board of Contract Appeals Rules of Practice and Procedure", and Contract Terms No. 1, supra. This decision of the Contract Appeals Board is based solely upon the record which consists of the documents and exhibits within the Appeal File. STATEMENT OF FACTS On July 1, 1980, in accordance with standard GPO contract award procedures, Purchase Order K4499 of the contract, Program 1715-S, for the procurement of the Department of Navy publication entitled "Pocket Checklist and Guide" was awarded to the contractor. Exhibit 12, A.F. The award was based upon a bid submitted by the contractor. Exhibit 13, A.F. According to the specifications, the contractor was required to print looseleaf and side-stitched books and pamphlets, in accordance with various print orders that were to be issued over the term of the contract. The contractor was alerted that the print orders may vary in their requirements. On page 10 of the contract specifications, the contractor was notified that it would have to adhere strictly to the performance schedule established in each print order. Exhibit 14, A.F. On September 24, 1980, the contractor was informed by show cause notice that it had failed to comply with the shipping schedule on each of the nine print orders that had been issued in the previous three months. Exhibit 9, A.F. A list of the delinquent orders and the delinquent orders themselves are contained in Exhibit 10, A.F. It was stated in the notice that because of this failure to perform the contract within the time limits set out therein, the Government was considering terminating the contract for default. The contractor was given 10 days to respond. Exhibit 9, A.F. By letter dated October 20, 1980, the contractor provided various excuses for its late deliveries of orders. The contractor alleged that the problems experienced by it were caused by events beyond its control and through no fault or negligence on its part. Exhibits 8 and D, A.F. In response, the Contracting Officer stated that the contractor's excuse for its failure to comply with the shipping schedule failed to provide substantive reason or justification for the continued and extensive late deliveries. Exhibit 7, A.F. Furthermore, in a letter dated November 3, 1980, the Contracting Officer specifically responded to the contractor. Exhibit 6, A.F. This correspondence was followed by a Notice of Termination of the contract. The reason for the default was the contractor's continued failure to comply with the shipping schedules. Exhibit 3, A.F. The contractor was also warned that it would be liable for any excess costs that may arise due after reprocurement. The contract was reprocured from OKT Colson, the second lowest bidder in the original procurement, Exhibits 2, A and E. The excess costs of reprocurement from this company amounted to $6,712.73. The contractor appealed the Contracting Officer's final decision by letter to the Public Printer. Exhibit 1, A.F. The contractor challenged this decision to default and subsequent assessment of reprocurement costs, alleging that these actions were unreasonable. On January 22, 1981, the GPO notified the contractor that this appeal was to be handled in accordance with GPO Instruction 110.10, supra. On September 4, 1981, the contractor requested an informal hearing which was then scheduled for December 10, 1981. The contractor was notified of this hearing date by letters from the Administrator, GPO Contract Appeals Board and the Chairman of the GPO Contract Appeals Panel dated October 6 and 15, 1981, respectively. The contractor acquiesced to that date. The hearing was convened at 9:00 a.m. on December 10, 1981, however, neither the contractor nor any of its representatives were present, with no excuse forthcoming explaining the absence. As in any case of the unexcused absence of one of the parties, the Panel proceeded with the hearing and the contractor's case was considered to be submitted on the written record. This procedure is in accordance with Paragraph 13(d) of the aforementioned GPO Instruction 110.10. DISCUSSION The first issue presented by this appeal for resolution is whether the Government properly terminated this contract for default in accordance with the terms of the contract. In cases of default, the Government has the initial burden of showing that the contractor had defaulted in its performance of the contract. Caskel Forge Inc., ASBCA No. 6205, 61-1 BCA ¶ 2,891; National Aviation Electronics, Inc., ASBCA No 18256, 74-2 BCA ¶ 10,677. Once the default has been established, the contractor then.has the burden of demonstrating that the default was excusable. B.M. Harrison Electrosonics, Inc., ASBCA No. 7684, 1963 BCA ¶ 3,736; Hy-Cal Engineering Corp., NASA Nos. 871-18 and 772-7, 75-2 BCA ¶ 11,399; see also Article 17(c), supra. The Government justified its termination for default on the grounds that the deliveries on various print orders were delinquent. The Government possesses the contractual right to terminate the unperformed portion of the contract for any late deliveries. Article 17(a)(l), Contract Terms No. 1 which provides this contractual right reads in part as follows: "Article 17. Default "(a) The Government may, subject to the provisions of paragraph (c) of this article, by written notice of default to the contractor, terminate the whole or any part of the contract in any one of the following circumstances: (1) If the contractor fails to make delivery of the supplies or to perform the services within the time specified herein or any extension thereof; . . ." In the instant case, the burden of proof placed upon the Government to demonstrate that the contractor had defaulted on the contract is easily met. The contractor continually failed to submit the publications in a timely fashion. Exhibits 3 and ll,A.F. The record, therefore, makes out a prima facie case of a failure to perform. General Equipment Company, ASBCA No. 6415, 1964 BCA ¶ 4166. While the Government did accept many late deliveries of orders, there was no waiver of the right to terminate or no bar to the Government's insistence of strict compliance with the delivery dates for later shipments. P.J. Hydraulics, Inc., ASBCA No 16310, 72-2 BCA ¶ 9524. Each delivery was a separate and severable obligation, the delinquent shipment of which allowed the Government to terminate on each occasion of delinquency. LAPP Insulator Company, Inc., ASBCA No. 13303, 70-1 BCA ¶ 8219; see also, Elcee Printing, GPO BCA No. 5-79, March 4, 1980. Faced with the probability that future print orders would not be shipped in a timely fashion, it was within the discretion of the Contracting Officer to terminate the contract and he did properly do so. Exhibits 3 and A, A.F. Having established that the Government possessed the right to terminate the contract for non-delivery of goods and exercised that right in the proper manner, the burden shifts to the contractor to prove that the delay was excusable. The contractor seeks to excuse its actions by alleging that any delay was justified because of climatic conditions and equipment failure. Exhibits 5, 8 and D, A.F. The contractor has not supported these claims by anything other than its own letters. These alone are insufficient proof to support the contractor's claims that its delay was excusable. In Empire State Tree Service, VACAB No. 949, 71-1 BCA ¶ 8716, pg. 40,498, the Board disallowed the contractor's contention that performance should be excused because unusually severe weather prevented completion of the contract. In finding that the record did not establish that the weather conditions were other than those normally expected when the contract was made, the Board stated in that case: ". . . mere statements in claim letters, unsupported by corroborative evidence of probative value, are not sufficient proof of essential facts which are in dispute." (Pg. 40,500.) This situation is analogous to the case at bar. If the appellant had proven it was impossible to perform within the specified time limits, then the delay might be judged excusable. However, the contractor's documents contain only self-serving and uncorroborated assertions. This falls short of sustaining the burden of proof imposed upon it by law. See also, Federal Contractors, Inc., ASBCA No. 14336, 71-1 BCA ¶ 8723, at pg. 40,516, and Margold Electric Company, Inc., ASBCA Nos. 15984, 15985, 72-2 BCA ¶ 9,646 at 45,041. The contractor has also alleged that it was impossible to perform the contract within the time constraints because of the breakdown of its 45" Challenge cutter. Exhibits 5, 8, and D, A.F. However the breakdown of this equipment is not such a reason as could be considered beyond the contractor's control or without its fault. The contractor is obligated to have on hand the equipment needed to produce the publications that it had contracted to deliver. Failure to have the necessary facilities or means is not such cause as would excuse untimely delivery under this contract. Rex System Corp., ASBCA No. 11,327, 66-1 BCA ¶ 5597; Universal Steel Strapping Co., ASBCA No. 10673, 65-2 BCA ¶ 5066. Moreover, there was no evidence presented by the contractor demonstrating that it attempted to obtain other equipment while its cutter was being repaired. Therefore, this claim can not sustain the burden of proof necessary to allow a defense of excuse. The second issue to be resolved in this decision is whether the assessment of the excess costs of reprocurement was proper in this case. Following a valid default termination, one of the most important of the Government's contractual remedies is the right to assess the defaulted contractor the excess costs of reprocuring the unperformed part of, or if necessary, the entire contract from another contractor. Environmental Tectronics Corp., ASBCA 21204, 78-1 BCA ¶ 12,986; see also, Article 17(b). In the case at bar, the Government did assess against the contractor for the excess costs of reprocurement. It is the judgment of this Board that this assessment was proper in that the Government mitigated the excess costs of reprocurment by negotiating for the contract with the lowest bidder from the original solicitation. Exhibits A and E, A.F. This negotiation was reasonable because of the necessity of obtaining these documents without incurring further delay by readvertising the solicitation. Exhibit A, A.F. We hold that given, the nature of this contract, further solicitation was unnecessary. Therefore, this reprocurement procedure was logical and justifiable. DECISION Based upon the above reasoning, the decision of the Contracting Officer to terminate the contractor for default and to assess costs of reprocurement against the contractor is upheld. Accordingly, the contractor's appeal is denied in its entirety.