UNITED STATES GOVERNMENT PRINTING OFFICE CONTRACT APPEALS BOARD Appeal Gem Business Forms, Inc. Jacket 328-299 Appeal dated February 20, 1981 Decision dated August 29, 1981 PANEL 81-5 THOMAS O. MAGNETTI, Chairman EDWIN P. DOLAN, Member JAMES K. MEHAN, Member PRELIMINARY STATEMENT This is a decision on a timely appeal filed by Gem Business Forms, Inc. (hereafter referred to as the contractor). The appeal disputes the final decision of the Contracting Officer terminating the contractor for default. The appeal is taken in accordance with Article 2-3 (the "Disputes" clause) of the Government Printing Office (GPO) Contract Terms No. 1, GPO Publication 310.2, revised October 1, 1980. GPO Contract Terms No. 1 was incorporated by reference into the specifications for this contract. Exhibit 1 of the Appeal File (hereafter the A.F.). The contract required the contractor to produce for the General Services Administration (GSA) a specific form titled "Laboratory Report Display." The form was to contain pressure sensitive adhesive strips. The final decision of the Contracting Officer held that the contractor failed to produce the form according to the specifications within the schedule requirements of the contract. The jurisdiction of the Board of Contract Appeals was established by GPO Instruction 110.10A, titled "Board of Contract Appeals Rules of Practice and Procedure." In accordance with that Instruction, the decision is based upon the record which consists of the documents and exhibits constituting the Appeal File. STATEMENT OF FACTS On December 19, 1980, in accordance with the standard GPO award procedures, Purchase Order No. 16799 for the procurement of Standard Form 545, titled "Laboratory Report Display" was awarded to the contractor after it placed a telephonic bid on the contract. Exhibit 4, A.F. The forms were to contain two 3-15/16" x 3/8" strips of H.B. Fuller's SC 1341 permanent-type pressure-sensitive adhesive (or equal in all respects). The adhesive was to be covered with either a suitable.flexible plaster protecting material or a suitable flexible paper covering. This paper was to be prepared from non-densified 28-32 lb kraft paper that has been siliconized on one side only. Id., pg. 2. The contractor was supplied a sketch of the form on page 4 of the specifications. Delivery was to be effected on or before February 9, 1981. The form was to be produced in strict accordance with the specifications. Exhibit 4, A.F. On January 15, 1980, the contractor contacted the GPO in order to obtain guidance concerning the positioning of the adhesive strips. Exhibit 10, A.F. In the course of this conversation, the contractor was questioned concerning what material was being used to fabricate these strips. The contractor stated that the material was similar to transfer tape and was siliconized on both sides. It was then notified that these strips would probably be unacceptable and to forward.to the GPO suitable samples. See also, Exhibit B, A.F. The samples were forwarded to the GPO that same day. Exhibit 6, A.F. The forms with the strips were tested for compliance with the specifications by the GPO Quality Control and Technical Department. Exhibit 7, A.F. The test revealed that the paper used in the adhesive protecting strips was silicone-coated on both sides. This was not considered to be equal to the plastic or paper adhesive protection standards that were set forth in the contract specifications. See, Exhibit A, A.F. By letter dated January 19, 1981, the contractor was informed by the GPO that its failure to produce in accordance with the specifications of the contract was considered to be a condition endangering performance of the contract in accordance with its terms. Exhibit 8, A.F. The contractor was warned that if it "did not cure the endangering condition within 10 days the GPO might terminate the contract." The contractor provided an answer to this cure notice on January 29, 1981. Exhibit 9, A.F. In this letter, it did not deny that it had not complied with the specifications, but rather, interposed its own objections to the specifications as originally written. The grounds for this objection were that only one company (the Beekley Corp.) was capable of producing the order under the specifications and that the product that this contractor provided was superior to the one required by the contract. Because the contractor did not cure the condition which endangered performance, and the delivery date (February 9, 1981) had passed, the Government terminated the contract. The contractor was notified of this by letter dated February 11, 1981, which stated that termination for default was necessary because the contractor "failed to produce the requirement with the protective strips specified, within the schedule requirements of the contract." Exhibit 11, A.F. The contractor's appeal of this decision, dated February 20, 1981, challenged the.Contracting Officer's final decision to default the contract. Exhibit 12, A.F. The contractor contended that it provided a product which conformed to all but one of the specifications. The contractor pointed out that the protective strip with both sides coated with bleached kraft silicone that it was willing to supply was used in over 8,000 hospitals and clinics throughout the United States and reiterated that use of a protective covering with only one side silicone-coated would have made this a sole-source procurement. DISCUSSION in determining the rights of the Government, this Board notes that the Government is entitled to enforce strict compliance with the specifications found in its contracts. American Electric Contracting Corp. v. United States, 579 F.2d 602, 608 (1978); H.L.C. & Associates Construction Co. v. United States, 176 Ct. Cl. 285, 367 F.2d 586, 589 (1966); Decatur Realty Sales, HUD BCA No. 75-26, 77-2 BCA ¶ 12,567. The determination of whether a product conforms with the contract specifications must rest with the Contracting Officer, as this determination is within his/her discretion in administering a contract. Thomas W. Yoder Co., VACAB 997, 74-1 BCA ¶ 10,424 (1974). Where the specifications contain an imprecise statement of the contract requirements, the standard for rejection of the contractor's work becomes more subjective. However, this appeal has raised no claim that the specifications were ambiguous or imprecise so as not to indicate what the contractor had to do in order to produce a conforming protective strip. Rather, the contract specifications set out what the contractor had to do to be in compliance with the contract. In the instant case, the evidence clearly demonstrated that the product produced by the contractor did not conform with the contract specifications. The specifications require that the adhesive strip be covered with either plastic material or a flexible paper covering prepared from paper that had been siliconized on one side only. (Emphasis added.) Exhibit 1, A.F. Proof of this defect was illustrated in a sample of the work itself. Exhibit A, A..F. The protective strip, as supplied by the contractor was silicone-coated on both sides. The contractor, in his appeal letter, did not dispute this evidence. It recognized that the contract called for paper siliconized on one side and that it produced an adhesive strip siliconized on both sides. Exhibit 12; see also, Exhibit 9, A.F. The contractor alleged that its product was used throughout the health industry. But trade practice does not override an unambiguous contract provision such as the one in this contract. W.R.B. Corp. v. United States, 183 Ct. Cl. 409 (1968). Therefore, the Board holds that the contractor tendered a product which did not comply with the specifications within the time allotted by the contract, and the Contracting Officer was well within his discretionary powers to terminate the contractor for default. The contractor contends that the specifications were written to favor "one company in the entire graphic arts industry", and it should be allowed to substitute its product for the product outlined in the specifications. Exhibit 9, A.F. In answer to this, it should be mentioned that the contractor knew or should have known of the specification requirements before it submitted its bid. The contractor should have been aware of the availability of the proper paper adhesive strip and should have notified the Contracting Officer of the impossibility of performance of the contract as it was written before the submission of its bid. However there is no record of the contractor bringing its objections to the attention of the Contracting Officer until it responded to the cure notice. Id. Since it submitted its bid with knowledge of the silicone requirements and the state of the industry, it can not now attempt to evade those responsibilities by stating that it could not produce the contract as written. The Board has been provided with an explanation from GSA concerning the development of the specification standards for the Laboratory Report Display form. Exhibit C, A.F. The rationale for the use of adhesive strips siliconized on just one side evolved after complaints were received by GSA that forms using strips siliconized on both sides were troublesome to use because the top silicone surface was difficult to grasp. Moreover the specifications for these adhesive strips were developed not only to produce a more useful form but to maximize competition. A prospective contractor had two alternative methods for producing this strip and would be in compliance with the contract. It could use a plastic material to protect the adhesive or use a paper covering that was siliconized on one side only. Although the contractor contends that the specification was written for the one company who could produce in accordance with it, the latter alternative was added to expand the competitive range of possible bidders. Id. The bare allegations contained the contractors appeal letter concerning the availability of this siliconized material lack probative value and cannot be used as a basis for granting relief. E.G. & G, Inc., ASBCA No. 14051, 71-1 BCA ¶ 18,867. DECISION Based upon the above reasoning, the decision of the Contracting Officer to terminate the contractor for default is upheld. Accordingly, the contractor's appeal is hereby denied in its entirety.