U.S. GOVERNMENT PRINTING OFFICE BOARD OF CONTRACT APPEALS THE APPEAL OF INTERNATIONAL LITHOGRAPHING DOCKET NO. GPO BCA 1-88 December 29, 1989 MICHAEL F. DI MARIO ADMINISTRATIVE LAW JUDGE OPINION This appeal, timely filed by International Lithographing, 11631 Caroline Road, Philadelphia, PA 19154 (Appellant), is from the January 15, 1988, "final decision" of Richard W. Wildbrett, Contracting Officer (CO), Dallas Regional Printing Procurement Office (DRPPO), United States Government Printing Office (GPO or Respondent), terminating Print Orders 60000, 60001, and 60002, Purchase Order K-2868, Jacket No. 761-146, Program 2721-S, for default on the basis of Appellant's alleged "inability to perform within the schedule of the contract." (Rule 4 File, hereinafter "R4 File," Tab A) The decision of the CO is affirmed and the appeal denied for the reasons set forth hereinbelow. BACKGROUND The DRPPO, upon requisition of the United States Air Force Recruiting Service (Air Training Command), advertised and competitively awarded Appellant, as low bidder, a single award, "requirements" type contract to produce certain 4-color process, multi-panel, recruitment "Fact Folders" as might be required from time-to-time during the term commencing with the date of award of the contract and ending June 30, 1988. The contract adopted by reference "all terms and conditions of U.S. Government Printing Office Contract Terms No. 1, Rev. October 1980 (GPO Pub. 310.2); Quality Assurance Through Attributes Program, Rev. June 1981 (GPO Pub. 310.1) . . . ." (R4 Tab G page 1 of 17) Each requirement was to be initiated by issuance of a print order specifying thework to be performed. Camera Copy in the form of pasted-up "mechanicals," art work and a folding dummy were to be furnished by the Government. All other materials and operations "necessary to produce the products in accordance with the specifications" were to be furnished by the Appellant. (R4 Tab G page 6 of 17) Quality Assurance Through Attributes "Product Quality Levels" to be attained were specified as Level II for both printing and finishing attributes with the exception of registration attributes which were specified as Level I. (R4 Tab G page 2 of 17) In order to assure compliance with these quality standards, the specifications further provided that "the printed products produced in accordance with these specifications will be statistically sampled and inspected for quality using quality attributes contained in GPO Pub. 310.1 (Rev. 6-1-81) and an applicable sampling plan from MIL-STD-105D, Sampling Procedures and Tables for Inspection by Attributes. Accordingly, the contractor must furnish the Dallas Regional Printing Procurement Office with a sampling of 50 copies selected in accordance with the specified sampling plan stated on page 10 for DEPARTMENTAL QUALITY SAMPLES." 1/ (R4 Tab G page 10 of 17) The sampling plan for "DEPARTMENTAL QUALITY SAMPLES" provided that: All orders must be divided into equal sublots in accordance with the chart shown below. A random sample must be selected from each sublot. Do not choose copies from the same general area in each sublot. Quantity Ordered Number of Sublots 500 - 3,200 13 3,201 - 10,000 20 10,001 - 35,000 32 35,001 and over 50 These randomly selected samples must be packed separately and must be identified by a special Government-furnished blue label, which is to be affixed to each affected container. These random sample copies must be recorded separately on all shipping documents and sent in accordance with the distribution list to USAFRS/RSAMP, Randolph AFB, TX 78150-5421, as part of the advance copies. The random inspection samples constitute a part of the total quantity ordered, and no additional charge will be allowed. In addition, a copy of the PRINT ORDER/SPECIFICATION along with the signed selection certificate, which will be furnished, must be included with the samples. (R4 Tab G page 10 of 17) "Inspection Levels (from MIL-STD-105)" were specified as "General Inspection Level I" for "Non-destructive Tests" and "Special Inspection Level S-2" for "Destructive Tests." (R4 Tab G page 2 of 17) On July 9, 1987, Respondent issued the first three print orders to Appellant numbered 60000, 60001, and 60002 for pamphlets respectively titled "GS-87-032 Education and Training Direct Mail Folder," "GS-87-033 Benefits Direct Mail Folder," and "GS-87-034 Senior Direct Mail Folder." Each order required the Appellant to produce 1,500,587, 11 x 8-1/2" folders, at an estimated price of $66,355.92. The specified shipping date for each order was September 11, 1987. (R4 Tab F) Appellant picked up the furnished materials, produced, and then distributed the copies, including inspection samples and certifications, as directed by the specifications. One million five hundred thousand (1,500,000) copies were shipped to PSA, an Air Force mailing contractor in Baltimore, Maryland. The job was shipped sometime in September 1987, and thereafter Appellant's Rich Rodriguez received a letter from the CO dated September 15, 1987, (Hearing Transcript, hereinafter TR, page 22). The letter in pertinent part stated: We have a complaint from Randolph AFB, TX, concerning the direct mail folders procured from your firm on Program 2721-S, Print Orders 60000, 60001, and 60002. The art boards specified a horizontal perforation of 3-9/16" and a vertical perforation of 5-7/8". The returned proofs also advised your firm of the perforation requirements. The direct mail folders received by our customer were perforated along the entire 8-1/2" vertical dimension. This order is being accepted reluctantly. Future orders may be refused if they contain similar defects. If this problem continues, a non-responsibility determination may be made against your firm. Your prompt attention to this matter will be appreciated. (TR - Appellant's Exhibit I) The letter was the firm's initial contact by Respondent concerning any problems with the orders. (TR page 23) On November 2, 1987, Mr. Carl R. Seta, Chief, Production Control Branch, Directorate of Advertising and Promotion, RSAMP, Randolph AFB, Texas, wrote a letter of complaint to the DRPPO forwarding some of the advance copies received by his office. Mr. Seta's letter in pertinent part stated that: 1. The following are discrepancies noted on each job. a. GS87-032. Severe cracking of the coated stock along the fold. Folds were not IAW mech. Panel 1 is folded 1/16" off, causing a white border to appear on the left side of the art. This art was to bleed on 3 sides and fold on the edge. Vertical perforations between panels 4 & 5 are 8-1/2" instead of 5-7/8", Register is out. b. GS87-033. Severe cracking of the coated stock along the fold. Art 1 on panel 1 wraps around fold onto panel 6. Vertical perforation between panels 4 & 5 is 8-1/2" instead of 5-7/8". Register is out. c. GS87-034. Severe cracking of the coated stock along the fold. Vertical perforation is only partial. Register is out. 2. These 3 jobs are unacceptable. The workmanship from the bindery is the worst I've ever seen. 3. We have put 1,000,000 copies of each format on hold at the Publication Distribution Center in Baltimore, pending a survey of Washington GPO personnel. The 500,000 of each format delivered to PSA in Baltimore have already been distributed. A new delivery date for all 3 jobs is November 26. (R4 Tab E) On December 10, 1987, the DRPPO's Duane Kemmet, a Printing Specialist, telephonically advised Appellant's Production Manager, Marvin Cohen, that the orders were being rejected. Kemmet's contemporaneous notes of the conversation reflect the following: Serious problem with these orders. 1. Cracked on fold - look (sic) like they may not have been scored before folding. AF told me you had used an outside bindery (sic) on some orders - maybe they did not score. 2. Ragged edges, damaged edges and/or skewed trim. 3. Margins are off-faced to follow mechanical. 4. Perforation off (P.O. 60001), should be 2-5/8" varies from 2 to 2-3/4" from sample to sample. 5. Hickies on P.O. 60002, face and back. 6. Misregistration of color. 7. Ink scum. Mr. Cohen - Why so long to complain? Will need to see samples and art. Mr. Kemmet - Dept. starting to use material. and discovered defect. Warranty is for 120 days. Mr. Cohen - Have to go to meeting will call back after meeting. (R4 Tab D) 2/ This conversation was followed by a "final decision" letter from the CO to Cohen dated December 18, 1987, advising that the DRPPO had inspected random samples from each order which: " . . . revealed that the folders were not folded according to the mechanical provided. Specifically, they were not scored prior to folding, causing the ink to crack on the fold. They have ragged edges, skewed trim size and the position of the perforation is inconsistent. Other printing defects consist of misregistration, incorrect margins, ink scumming and hickies." As a result the DRPPO was rejecting the order and Appellant was thereby being "directed to reprint these three orders at no additional expense to the Government and complete delivery within 10 workdays after receipt of this letter." Appellant was also told that it must advise the DRPPO of the disposition it desired for the rejected orders, and that such disposition would be at the Appellant's expense. The contractor was also advised that it could appeal to this Board within.90 days of receipt of the CO's letter. The letter furnished Appellant "samples, negatives, and art boards." (R4 Tab C) On January 6, 1988, Kemmet received a telephone call from a Sgt. Michael of Randolph AFB, TX, asking when the Air Force would get the reprinted orders and what disposition to make of the rejected folders. Kemmet then called Cohen who advised that his firm intended "to appeal the reprinting of these three (3) orders." Cohen alleged that he had "talked to someone in Washington" who told him Appellant did not have to reprint until the outcome of the appeal. Kemmet, in-turn, advised Cohen that the Dispute process allowed him to appeal but that he still was required to reprint. Kemmet asked Cohen if he had the name of the person in Washington. Cohen responded that he did not. 3/ Kemmet then called an unidentified person at Randolph AFB who requested that the orders be reprinted because the folders were "still unusable." (R4 Tab B) On January 15, 1988, the CO wrote two (2) separate letters to Cohen. One, was captioned "Termination Notice." The other referenced such notice in its text. The "Termination Notice" advised Appellant that the three print orders where "Terminated for Default because of your firm's inability to perform within the schedule of the contract." It also advised that "the "same or similar items, may be reprocured against your firm's account, on such terms and in such manner as the Contracting Officer deems appropriate. In that event, your firm shall be held liable to the Government for excess costs. The Government reserves all rights and remedies provided by law and under the contract in addition to charging excess costs." The letter stated that this was as a "final decision," again with advice to Appellant of its right to appeal such decision to this Board under the "Disputes" clause of the contract. Thereafter, on January 12, 1988, the Board received and docketed an appeal letter from Cohen dated January 7, 1988, which had attached to it, and in pertinent part addressed, the CO's first "final decision" letter respecting rejection of the three print orders but not the second final decision letter respecting Appellant's alleged "inability to perform within the schedule of the contract." The letter in pertinent part stated: We take exception to the decision of the contracting officer for the following reasons: A - An inspection of 50 random samples was used as the basis for rejection of each of the three print orders. We do not believe that this is a realistic sampling in view of the fact that each order was for 1,500,000 pieces. Further, the entire order was not shipped to one location but to two making a fifty piece sampling less that indicative of the overall job. B - I have been informed by the Dallas Office that approximately 100,000 to 200,000 pieces have been mailed and/or otherwise utilized. If in fact the order is rejectable, why was this not determined prior to utilization and mailing? C - Other deficiencies cited in the letter of rejection were that: 1) The folders were not scored prior to folding causing cracking 2) Ragged edges and skewed trim size 3) Misregistration 4) Incorrect margin and position of perforation 5) Ink scumming and hickies D - In answer to those complaints let the following be known: 1) Cracking and scoring: this job was scored prior to folding. No specific method of scoring was required by the specifications, therefore the job was scored on the folder in the bindery. Further, absence of cracking was not cited in the specifications as being a pre- requisite of the job. Cracking is a normal result of ink coverage going over a fold, especially on heavyweight papers and should have been considered at the time of design, along with a request for letterpress scoring and/or other precautions against cracking. 2) Ragged edges and skewed trim size are not indicative of the entire job and should not be used as a basis for rejection. These defects do not appear throughout the samples furnished to us. 3) Misregistration is another criteria which cannot be applied to the entire job as the entire job is not out of register. Some registration variation will be found on a job of this magnitude due to the nature of high-speed printing. In no way can the slight variation cause this job to be considered rejectable. 4) We will concede that there are variations in the margin and perforation positions but these in no way would prevent the piece from being used for its intended purpose. 5) Ink scumming and hickies are again minor defects that will randomly appear in any printing job of this magnitude. The samples furnished to us by the Dallas Office show random hickies and scumming but these defects are not prevalent, nor do they appear on each sample. In light of this, these criteria cannot be used as a means of rejection since it is obvious that the defect did not persist throughout the job. There are certain circumstances that should be brought to the attention of the Board concerning this matter. Firstly, my conversations with Mr. Kemmet of the Dallas Office at the inception of the problem brought to light the fact that the quality control samples submitted by our staff were far superior to those chosen at random and in no way rejectable, again making the random samples suspect. Secondly, I was informed that either Dallas GPO or some other source had advised the Air Force that a portion of this job was produced at a bindery that we had sub-contracted rather than completed in our in-plant bindery. This information.had been volunteered to the Dallas Office at some earlier date during another discussion on this contract. I was informed that the Air Force requested an inspection based on this fact. To the best of my knowledge, it is certainly permissible for our firm to use an outside independent bindery. However, I am concerned that unfounded fears and prejudices based on this point have affected the objectivity of the sampling. Thirdly, it was made known to me that the Air Force fears that these printed pieces will fall apart when mailed and the intended recipients will not receive the mailing thereby blunting the Air Forces recruiting campaign. This unproven and unsubstantiated supposition weighed heavily on the decision to reject and for all intent and purposes is totally without merit. In summation, our firm requests to file an appeal on the decision of the Contracting Officer for the following reasons: A - The random sampling taken does not truly reflect the nature of our work and the true appearance and character of the final printed order. We believe that there is sufficient doubt that it was a true sampling. B - Those deficiencies cited in the sampling are not ones which prevent the printed pieces to be used for their intended purpose. C - The fact that a large quantity of the pieces were mailed ' would tend to substantiate my comments in paragraph "B" above. D - The decision to reject was prejudiced by unfounded fears and assumptions. E - We will agree that this job is less than perfect but again the deficiencies are not ones which affect the intended purpose. F - We believe a viable and reasonable solution can be found to this problem in lieu of rejection. In light of all the above, we hereby file an appeal. By letter dated January 14, 1988, this Board advised the parties of the docketing of the appeal as being one "from the final decision of the Contracting Officer dated December 18, 1987." Appellant was furnished a copy of the Board's Rules of Practice and Procedure with advice that Rule 6.(a) of such rules required the filing of a complaint within 30 days of Appellant's receipt of the docketing letter. Appellant did not respond to such requirement. Accordingly, the Board reviewed the original submission, deemed it to meet the requirements of a complaint under the rules and so notified Respondent's counsel by letter dated March 23, 1988. Respondent did not "answer" the complaint within the time specified in the rules; therefore, the Board issued a letter to Appellant stating that a "general denial" had been entered into the record by the Board on behalf of the Government pursuant to the provisions of Rule 6.(b) of the Board's Rules of Practice and Procedure and that such entry by operation of the Rules "denies," and thus puts in issue, each and every substantive allegation of (its) complaint without need for further answer by Respondent. Subsequently by letter dated May 5, 1988, the Board received a representation letter from Frederic G. Antoun, Jr., Esq., Appellant's counsel, stating in pertinent part that: "I am writing to confirm my client's (sic) understanding (and mine) that because an appeal from the final decision of the Contracting Officer dated December 18, 1987, rejecting the orders and ordering a reprint was filed, no appeal of a subsequent Termination Notice dated January 15, 1988, on the same print orders is required, as the validity of the grounds for the termination will be resolved in the above appeal." By a later communication Antoun requested that a hearing be scheduled. As a consequence, a telephonic prehearing conference was scheduled and held on December 20, 1988. At that time Antoun alleged that his client had not been given the specifics of the inspection upon which rejection was based; that a sample size of 50 pamphlets, given the size of each order, was statistically inadequate; that the Government had offered no proof that the samples were selected in accordance with the contract terms; that there was no proof the inspection was carried out in accordance with the contract terms; that the use of more than 50 percent of such pamphlets by the Government was proof of their suitability for the use intended, and that independent testimony would show that the defects alleged were either erroneous or insufficient to support rejection under the Quality Assurance Through Attributes Program. Government counsel, on the other hand, argued that termination of the contract was for the reason of Appellant's refusal to reprint during the pendency of its appeal as required by GPO Contract Terms No. 1, supra. 4/ Government counsel agreed to send Mr. Antoun copies of the selection certificates whereby Appellant attests to the fact that the samples were selected in accordance with the sampling plan specified in the contract, a copy of the work papers of the GPO employee who inspected the sample copies, and an update from the Air Force on the number of copies remaining in the warehouse. By letter dated January 17, 1989, Respondent's counsel forwarded the copies of the signed selection certificates, inspection work papers, and an Air Force memorandum from Carl Seta dated January 5, 1989, showing that the Air Force had on hand at its Publications Distribution Center 664,800 copies from print order 60000; 1,350,200 copies from print order 60001; and 354,400 copies from print order 60002. (The three (3) documents were made a part of the Rule 4 file and appear at Tabs H-J, respectively.) A formal hearing was convened by the Board on February 16, 1989, at its offices in Washington, DC. At that time, Government counsel, at the request of the Board, stated its opinion that the threshold issue in dispute was "whether or not the Contracting Officer's decision that the materials produced by International Lithograph were not of Level II quality, and are therefore not in compliance with the requirements of the contract, was arbitrary and capricious." (TR page 7). Counsel for Appellant agreed with this characterization but nevertheless stated it somewhat differently; i.e., "whether the initial decision of the Contracting Officer rejecting the three (3) print orders was appropriate." (TR page 9). The parties, although not stating it as such, were in substantial agreement that the second issue is whether or not Appellant, under the facts and circumstances of the case, was justified in refusing to reprint the three (3) print orders notwithstanding the provisions of the Disputes clause ' requiring the contractor to "proceed diligently with the performance of the contract and in accordance with the Contracting Officer's decision." (Footnote 4, supra) Testimony on behalf of Appellant was given by Marvin Cohen, supra, and C. Clint Bolte of American Business Consultants, Chambersburg, PA, called as an expert witness respecting the quality of the disputed printing. Testimony on behalf of the Government was given by Seta, Kemmet, and Wildbrett, supra. The testimony has been independently reported in a verbatim transcript of the proceedings. The matter comes now before the Board in this fashion for decision. DISCUSSION Under the law of Government contracts the Government is entitled to strictly enforce its contracts, S.S. Silberblatt. Inc. v. United States, 433 F.2d 1314 (Ct. Cl. 1970), even where a variance from specifications is very minor. Arrow Lacquer Corp., ASBCA No. 4667, 58-2 BCA ¶ 2003 (1958); Ram Constr..Inc., ASBCA No. 22370, 79-1 BCA ¶ 13646 (1979); Coronado Paint Co., GSBCA No. 4784, 4836, 80-1 BCA ¶ 14,415 (1980). However, in doing so, it bears the initial "burden of persuasion" to show that the work it rejects does, in fact, deviate from the specifications. Fillip Metal Cabinet Company, GSBCA No. 7695, 87-2 BCA ¶ 19,822 (1987); Hardeman-Monier-Hutcherson, ASBCA 11785, 67-1 BCA ¶ 6,210 (1967); Ramar Co., ASBCA 16060, 72-2 BCA ¶ 9,644 (1972); Pams Products, Inc., ASBCA 15847, 72-1 BCA ¶ 9,401 (1972). The Government usually meets this burden by advising the contractor of the results of tests it has conducted. The burden then shifts to the contractor to prove that the Government's findings are invalid for one reason or another. Universal Steel Stripping Co., ASBCA No. 13686, 69-2, BCA ¶ 7,799 (1969); C.W.ROEN Construction Co., DOTCAB 75-43, 76-2 BCA ¶ 12,215 (1976); Continental Chemical Corp., GSBCA 4483, 76-2 BCA ¶ 11,948 (1976). In the instant case, it is apparent from the facts that the Government met its "burden of persuasion" when the CO issued his first "final decision" letter, supra, wherein he specified the inspection findings upon which rejection was based. The burden at that point shifted to Appellant to prove that the findings were wrong, which Appellant, by its efforts on appeal, has attempted to do. Thus, the threshold issue for this Board to decide is not whether the CO's decision was "appropriate", as stated by Appellant, or "arbitrary and capricious", as stated by Respondent, but rather whether, as a question of fact, the Appellant has proven the results of Respondent's inspection to be erroneous. Appellant attempts to meet this demand in several ways. One, by alleging, that the sample size used for the inspection was a statistically invalid basis for rejection given the quantity of folders produced. Two, by proffering the testimony of Cohen that no irregularities were experienced during production of the print orders and that the first communication to Appellant mentioned only problems with the perforations. (TR pages 22, 23). Three, by proffering the opinion testimony of Bolte, a paid expert witness, whom it periodically engages as a consultant in its regularly conducted business activities, that three product samples from the instant print orders (TR Exhibits 7, 8 & 9), previously introduced into evidence as business records through Cohen, were of a "commercially acceptable" quality and "at least as good" as a number of other product samples (TR Exhibits 10-14), also introduced into evidence through Cohen, which Appellant had retained from print orders reportedly accepted by Respondent. (TR pages 90-120). Four, by asserting that it is self-evident from the documented use of an extraordinarily large quantity of rejected folders by the Air Force Recruiting Service, that the product was fit for its intended use. (Pleadings, supra and TR pages 141 and 142). Fifth, by the testimony of Seta upon cross-examination that the "blue label" samples which he examined in making his initial judgment that the product was rejectable, and which he furnished to Kemmet for further examination, were, in fact, obtained by him from the Publications Distribution Center (PDC) in Baltimore, Maryland, Appellant having failed to furnish the advance "blue label" copies required by the contract (TR page 136) and to correctly conclude from this that there is no evidence that such copies were selected in a statistically valid manner. (TR page 137). Six, by cross-examining Kemmet to prove that he made his decision to reject the products based upon Seta's findings and his own examination of the PDC "blue label" samples before he had examined the "yellow label" samples. (TR pages 165 - 169). And, seven, by the additional testimony of Cohen (who was present during Kemmet's testimony - no witnesses having been sequestered by the Board) that Kemmet, during a telephone conversation to which Cohen refers in his January 7, 1987, letter of appeal, supra, but has no contemporaneous notes to support, had purportedly stated that the "yellow label" copies were "in no way rejectable" (TR page 193); a charge which Kemmet denies (TR page 204). The Board, having carefully heard this matter and having thoroughly reviewed the transcript and evidential record, is unpersuaded by Appellant's arguments or efforts at proof: First, the statistical sample size was a matter of contract agreed to by Appellant. The Board's own examination of the specified sampling plan and sample size has shown them to be precisely those specified in MIL-STD-105D, the most widely accepted, statistically based sampling scheme for product inspection used by the United States Government. 5/ Conversely, Appellant has proffered no probative evidence whatsoever to support its contention. Second, the contractual basis upon which the quality of the delivered products is to be judged is not some undocumented, vaguely identified, so-called "commercially acceptable" standard (TR page 101), but rather the standard prescribed in the "Quality Assurance Through Attributes Program", supra. Given this, the Board finds no probative value whatsoever in the expert testimony proffered by Appellant even in its nuance allegation that the Government's enforcement of such contractually agreed to product quality standards may be uneven. Third, with respect to Appellant's more artfully crafted allegation that Kemmet based his decision to reject the product upon Seta's findings and his own examination of the PDC "blue label" samples, suffice it to say that this Board, as finder of fact, being most persuaded by the sense of veracity conveyed in Mr. Kemmet's testimony and demeanor under questioning by the Board, itself, finds that he did not. Rather, using the contractually agreed to QATAP standard, Kemmet examined the yellow label "Quality Assurance Samples" certified by Appellant as having been randomly selected in accordance with the terms of the contract, noted differences in his findings from those he had made in examining the samples furnished by Seta, and concluded from his examination that the "yellow label" samples, while better than the "blue label" samples, were nevertheless rejectable under the terms of the contract. The Board finds nothing of conviction in Cohen's additional testimony which impeaches the validity of this finding. Turning to the issue of whether Appellant, under the factual circumstances presented, was entitled to refuse to reprint the entire quantity of publications as directed by the CO, the Board finds that as a matter of contract law that it was not. The question is governed solely by the terms of Article 2-3. Disputes of U.S. Government Printing Office Contract Terms No.l, (GPO Pub. 310.2, Rev. October 1, 1980), supra. Such Article makes it clear that the Appellant was obligated to follow the CO's directive notwithstanding the fact that the total quantity of publications which the Government received and used would exceed the original quantity ordered. Had this been done, the Appellant would have been entitled to the full contract price for the reprint, assuming its acceptance, and an equitably adjusted discounted price for the quantity of publications used by the Government from the first printing. In consequence of these findings the Board hereby Affirms both "final decisions" of the CO and denies the appeal. The CO is directed to proceed diligently with the equitable adjustment of Appellant's accounts respecting any defective publications which were of necessity used by the Air Force. It is so Ordered _______________ 1/ These copies were subsequently identified in the hearing of this matter as "yellow label" copies. 2/ Mr. Cohen testified to the substantial correctness of the notes. (TR page 25) 3/ Mr. Cohen testified to the substantial correctness of the notes. (TR page 36) 4/ Article "2-3 Disputes" of GPO Contract Terms No. 1, revised October 1, 1980, in pertinent part provides that: . . . any dispute concerning a question of fact related to the contract which is not disposed of by agreement shall be decided by the Contracting Officer, who shall make his/her decision in writing and mail or otherwise furnish a copy thereof to the contractor. The decision of the Contracting Officer shall be final and conclusive unless, within 90 days from the date of receipt of such copy, the contractor mails or otherwise furnishes to the [U.S.GPO Board of Contract Appeals] a written appeal . . . . Pending final decision of a dispute hereunder, the contractor shall proceed diligently with the performance of the contract and in accordance with the ' Contracting Officer's decision. 5/ R. Nash, Jr. and J.Cibinic, Jr., FEDERAL PROCUREMENT LAW, 1980, p.1566, n.5.