BOARD OF CONTRACT APPEALS U.S. GOVERNMENT PRINTING OFFICE WASHINGTON, DC 20401 In the Matter of ) ) the Appeal of ) ) STERLING PRINTING, INC. ) Docket No. GPO BCA 20-89 Jacket No. 226-948 ) Purchase Order 81288 ) DECISION AND ORDER This appeal, timely filed by Sterling Printing, Inc. (Appellant or Contractor), 2515 Lantrac Court, Decatur, Georgia 30035, is from the final decision of Contracting Officer William E. Flood, of the U.S. Government Printing Office's (Respondent or GPO or Government) Printing Procurement Department, Washington, DC 20401, dated April 13, 1989, terminating the Appellant's contract identified as Jacket No. 226-948, Purchase Order 81288, for default for refusing to correct the quality defects found in its product to meet the requirements of the contract specifications (R4 File, Tab N).1 On April 28, 1992, and May 6, 1992, respectively, a hearing was conducted by the Board for the purpose of developing evidence on the two issues involved in the case.2 At the hearing, both parties were represented by counsel, who, thereafter, filed timely briefs with the Board addressing the issues involved.3 Board Rules, Rule 23. Based on the record in this case, including the evidence developed at the hearing and the written arguments of the parties contained in their posthearing briefs, the Contracting Officer's decision terminating the Appellant's contract for default is AFFIRMED.4 The Contractor's appeal of the Contracting Officer's decision assessing excess reprocurement costs is GRANTED. I. BACKGROUND A. The Default Termination The facts, which are essentially undisputed, are recited here only to the extent necessary for this decision. This case arises from a contract awarded to the Appellant on January 6, 1989, to print 10,049 copies, including 32 samples, of a perfect-bound two (2) color publication, consisting of 176 pages with a separate wraparound cover, entitled, "1985 National Survey of Fishing, Hunting, and Wildlife Associated Recreation," (National Survey) for the U.S. Department of Interior (Interior), Fish and Wildlife Service (R4 File, Tabs B and D).5 The contract price for this work was $25,938.00 for the basic quantity of 10,017 copies, plus $70.84 for the 32 sample copies, for a total of $26,008.84 (R4 File, Tab D). The contract specifications provided, in pertinent part: STOCK/PAPER: The specifications of all paper furnished must be in accordance with those listed herein or listed for the corresponding JCP Code numbers in "Government Paper Specification Standards No. 9"[,] dated December 1, 1981, as amended through May 1, 1986. Text: White Dull Coated Offset Book, basis size 25 x 38", 80 lbs. per 500 sheets, equal to JCP Code A260. All text paper used in each copy must be of a uniform shade. Cover: White Dull Coated Cover, basis size 20 x 26", 80 lbs. per 500 sheets, equal to JCP Code L60. All cover paper must have the grain parallel to the spine. PRINTING: Print Cover and text head-to-head in black ink and a match of Pantone 159 brown. * * * * * * * * * * Coating: Coat (after printing) the entire surface of covers 1, 4, and backstrip with dull varnish. * * * * * * * * * * BINDING: Perfect-bind text and wraparound cover; trim three sides.6 * * * * * * * * * * QUALITY ASSURANCE LEVELS AND STANDARDS:7 The following levels and standards shall apply to these specifications: Product Quality Levels: (a) Printing Attributes-Level III. (b) Finishing Attributes-Level III. Inspection Levels (from MIL-STD-105): (a) Non-destructive Tests-General Inspection Level I. (b) Destructive Tests-Special Inspection Level S-2. Specified Standards: The specified standards for the attributes requiring them shall be: Attribute Specified Standard P-7. Type Quality Furnished Camera and Uniformity Copy P-8. Halftone Match Furnished (Single and Double Transparencies Impression) P-9. Solid and Pantone Matching Screen Tint Color System Match DEPARTMENTAL QUALITY COPIES: All orders must be divided into equal sublots . . . A random sample must be selected from each sublot. Do not choose copies from the same general area in each sublot. . . . . These randomly selected samples must be packed separately and must be identified by a special [G]overnment-furnished blue label, which is to be affixed to each affected container. . . . The random inspection samples constitute part of the total quantity ordered, and no additional charge will be allowed.8 * * * * * * * * * * QUALITY ASSURANCE SAMPLES: In addition to the Departmental Quality Copies, the contractor may be required to submit quality assurance samples for inspection and testing for compliance to the produce specifications. The purchase order/specifications will indicate the number of samples required, if any. When these samples are ordered, the contractor must divide the entire order lot into equal sublots and select a copy from each sublot. Each sample is to be chosen from a different general area of each sublot. . . . These samples will be paid for at the running rate quoted in the contractor's bid . . . * * * * * * * * * * SCHEDULE: * * * * * * * * * * Submit proofs as soon as the contractor deems necessary in order to comply with the shipping schedule. Proofs will be withheld 7 workdays from receipt in the GPO until they are made available for pickup by the contractor. Ship 100 copies to [Interior] destination as indicated under distribution to arrive at destination on or before February 3, 1989. Ship complete on or before February 10, 1989. See, R4 File, Tab B, pp. 2-4.9 Although the parties expected the contract to be completed by February 10, 1989, during the proofing stage Interior discovered an error in the specifications, namely with the duotones, which required a change in the color combination, a reshooting of 22 duotones, and submission of revised proofs before production started (R4 File, Tabs E and G).10 Tr. 108-09. As a consequence, the contract was modified to extend the shipping date to March 17, 1989, and to reimburse the Contractor an additional $850.00 for the extra work (R4 File, Tabs F and G).11 On March 27, 1989, after the Appellant had completed delivery of the National Survey, GPO received a complaint from Interior concerning the quality of the book (R4 File, Tab H). Specifically, Interior contended that: (a) the Contractor had used the wrong paper; (b) the publication contained hickies or spots; (c) the register was improper register, and; (d) the adhesive was not durable (R4 File, Tab H). Tr. 49-51. In the latter regard, Interior expressly mentioned that the pages fell out of the binding when the book was opened flat (R4 File, Tab H).12 On receiving Interior's complaint, the Printing Procurement Department immediately asked GPO's Quality Control and Technical Department (QCTD) to test randomly selected samples of the "blue label" copies provided by the Contractor for the purpose of verifying the quality defects (R4 File, Tab I). Tr. 50-51. The QCTD conducted separate tests on the paper and the binding, and on March 28, 1989, issued a combined report (R4 File, Tab I). With respect to the paper, the QCTD found that the wrong paper stock was used for both the text and the cover, and assessed a total of 168 demerits, or 20 major defects, under QATAP for these faults (R4 File, Tab I).13 As for the durability of the perfect binding, the Respondent's test report states: Sample 1 was tested on the flex tester and assessed a Critical Defect. Performed subway test on samples 2-8. The seven samples were assessed a Critical Defect.14 R4 File, Tab I. Tr. 37. For the sample size selected, this binding defect was assessed 20 critical defects (R4 File, Tab I).15 In light of these QCTD reports, the Respondent determined that the books produced by the Appellant were rejectionable, and so notified the Contractor (R4 File, Tab J).16 The Appellant was also informed that the National Survey would have to be reprinted to correct the problem. Tr. 49, 50-51, 93-94. The record discloses that between March 29, 1989, and April 4, 1989, the Contracting Officer had several telephone conversations with the Appellant's President, McDaniel, about this matter and was told, inter alia, that: (a) since the Government had approved the sample copies provided by the Appellant prior to shipment, it was unfair to reject the job after delivery had been completed;17 (b) glue does not adhere well to the glossy paper stock specified in the contract and, under normal usage, the pages will fall apart; (c) the Contractor's paper supplier furnished the correct paper; (d) Interior's complaint appeared to be untimely because the job was shipped March 17, 1989 (R4 File, Tab K). When the Contracting Officer asked for a reprint date, McDaniel responded by stating that reprinting the job would be too expensive-indeed, "it maybe cheaper for [the Contracting Officer] to default her"-and, in any event, the Appellant would not reprint the job without first coming to the Respondent's main facility in Washington, DC, for a meeting with the (then) Acting Public Printer, Joseph E. Jenifer, among others (R4 File, Tab K).18 On April 11, 1989, the parties met at the Respondent's headquarters in Washington, DC to discuss the binding problem and what steps could be taken to correct it. Tr. 38, 73, 122-123. Present at the meeting for the Respondent were the Contracting Officer, Flood, and the Superintendent of GPO's Contract Management Branch, Harrison, while McDaniel and her husband, Forte, attended for the Appellant.19 Tr. 94, 127. Flood, Harrison, and McDaniel testified at the hearing, and they all agree on the substance of the discussions which took place at the meeting. In that regard, noting that copies of the National Survey which the Appellant had delivered were being used by the agencies that received them, McDaniel offered the Respondent two choices in order to resolve the matter: (a) a 15 percent discount off the contract price; or (b) the Contractor would retrieve the books from the agencies where they had been delivered (approximately 5,000 copies at various locations), staple the binding together, and redistribute them (R4 File, Tab L). Tr. 37-38, 73-75, 104, 187, 189. To illustrate what she had in mind, McDaniel showed Flood and Harrison a copy of the National Survey which had been stapled from the outside.20 Tr. 41-42, 88-89, 122, 141. See, App. Exh. No. 21. Both of the Appellant's options were rejected by the Government. Tr. 38. The stapling suggestion, in particular, was refused because that was not the product ordered by Interior. Tr. 38, 42, 95. Instead, Flood insisted that reprinting the job would be necessary in order to cure the binding defect. Tr. 93-94, 129. However, McDaniel contended that the Appellant could not afford to reprint the National Survey because purchasing additional paper would cost too much. Tr. 78, 145-46. Furthermore, she believed that reprinting might be so expensive, when compared to the minor costs associated with repairing the book, that the Contractor would be forced to close its doors. In the alternative, it was suggested either by Harrison or Forte McDaniel, that perhaps the defect could be remedied by rebinding the book by tearing off the covers, trimming the spine, and then regluing it-a process which would slightly reduce the size of the publication. Tr. 77-78, 127, 145-46, 90-92, 95. Flood rejected that idea for three reasons: (a) the book was too small for that sort of repair; (b) retrimming would amount to changing the size specifications of the contract; and (c) such rebinding would have reduced the usefulness of the publication. Tr. 95-97, 102, 105. McDaniel also rebuffed this suggestion, adamantly insisting that stapling the books was the only cure method the Appellant could afford, and she would consider no other. Tr. 91-92, 95. Consequently, Harrison advised the Appellant to follow the Contracting Officer's instructions and reprint the National Survey, and then appeal its disagreement.21 Tr. 91. According to Harrison, McDaniel responded by stating she would see her Congressman first. Tr. 91. The meeting ended without any resolution of the binding problem, and with the Respondent continuing to demand a reprint of the book, while the Contractor maintained it would only staple the publication. On April 12, 1989, the Contracting Officer telephoned McDaniel at the Appellant's office in Decatur, Georgia, and directed the Contractor to reprint the National Survey (R4 File, Tab L). As she had during the meeting the previous day, McDaniel refused to reprint the book, insisting again that it would put the Contractor out of business (R4 File, Tab L). Furthermore, by letter addressed to the Contracting Officer, dated April 12, 1989, McDaniel confirmed the position she took on April 11, 1989, repeating, in pertinent part: [At the meeting] . . . I offered several alternate plans in lieu of reprinting this job. Plan # 1 Pick up books from Washington, D.C. office and side stitch on outside of cover. this action would take approximately four (4) working days, after receipt in my plant, plus shipping time to return the books. Plan # 2 Deduct 15% from the printing price, but not the reimbursable parcel post, of Government Bills of Lading. The amount to be reduced from cost of job would be $3,901.32. This job is an acceptably printed commercial job in all aspects. The agency has, so called complained, the paper is not the proper weight. (I shall send you a copy of the letter from the paper mill stating the paper to be 80# as specified, when I receive it.)22 This job was perfect bound by the top book binder in Atlanta. . . . My secretary has called, at random, six Fish and Wildlife offices, in various states, and was told the books are fine and are being used.23 . . . [The Appellant] cannot financially afford to reprint this job. My cost on the first printing was approximately $29,200.00. If we reprint, [the Appellant] must bear the cost of mailing and shipping. With the cost of all material involved and money already invested from the first printing and second printing, shipping and mailing, my cost would be approximately $62,400.00. My company cannot withstand such cost and stay in business. . . . I contend the job was printed as stated in the specifications. I will not reprint the job, because it is now being used by most of the departments to which it was sent. . . . Reiterating, [the Appellant] may have to file for bankruptcy if we are forced to reprint and ship the job. R4 File, Tab L. [Emphasis added.] Because of the Appellant's persistent refusal to reprint the National Survey, on April 13, 1989, the Contracting Officer wrote to GPO's Contract Review Board (CRB) for approval to terminate the contract for complete default (R4 File, Tab M).24 In his memorandum to the CRB, the Contracting Officer gave as his reason for the default request: The book was tested on the flextester and assessed a Critical Defect. The cover and text stock also failed to meet specifications. [The Appellant] offered to correct the book with [s]taples, which was unacceptable to [Interior]. [Interior] insists upon a reprint. Per telephone conversation with [McDaniel] on April 12, she refused to reprint. She was informed of possible default action. R4 File, Tab M. [Emphasis added.] CRB concurrence was obtained the following day, April 13, 1989 (R4 File, Tab M). On April 13, 1989, the Contracting Officer issued a Notice of Termination-Complete (Notice of Termination) to the Appellant informing it that the contract had been terminated for default because "of your refusal to correct the quality defects to meet the [requirements] of the specifications" (R4 File, Tab N). The Notice of Termination also told the Contractor that the publication might be reprocured against its account, and that it would be held liable for any excess reprocurement costs (R4 File, Tab N). B. The Contract Reprocurement On April 18, 1989, after the contract was defaulted, the Respondent took steps to reprocure the job (R4 File, Tab P).25 On April 25, 1989, Pensacola was awarded the contract at a price of $32,777.32 for the basic quantity of 10,017 copies, plus $63.29 for the 32 sample copies, for a total of $32,840.61 (R4 File, Tab Q). Tr. 46. Pensacola submitted the lowest bid on the reprocurement solicitation.26 Tr. 244. The next day, the Respondent notified the Appellant that the excess reprocurement costs would be deducted from its account (R4 File, Tab O).27 An examination of the reprocurement contract discloses that the specifications for the basic contract work-the production of a perfect-bound two (2) color publication, consisting of 176 pages with a separate wraparound cover-was identical to the Appellant's contract (R4 File, Tab P, p. 1). However, there is a marked contrast between Pensacola's book and the National Survey produced by the Appellant, one that is clearly visible to the naked eye. Tr. 238. Compare, App. Exh. No. 17, with App. Exh. Nos. 20 and 22. In that regard, the witnesses at the hearing who compared both publications,28 agreed that: (a) the duotone colors were changed from predominantly brown to predominantly black for the repurchased book;29 (b) the reprocured cover had a glossy finish while the original one was dull; and (c) even the text paper appeared different.30 Tr. 43, 46-47, 80-82, 109-10, 228-29, 238-40. See, App. Exh. Nos. 17, 20 and 22. Moreover, apart from two expected minor housekeeping changes,31 a careful perusal and comparison of both contracts reveals, inter alia, the following changes and/or additions in the specified terms and conditions of the reprocurement contract: PROOFS: * * * * * * * * * * If any contractor's errors are serious enough in the opinion of the GPO to require revised proofs, the revised proofs are to be provided at no expense to the Government. No extra time can be allowed for this reproofing; such operations must be accomplished within the original production schedule allotted in the specifications. PRINTING: * * * * * * * * * * Press Sheet Inspection: Press sheets will be inspected at the contractor's plant for quality conformance.32 * * * * * * * * * * QUALITY ASSURANCE LEVELS AND STANDARDS; * * * * * * * * * * Specified Standards: The specified standards for the attributes requiring them shall be: Attribute Specified Standard P-7. Type Quality O.K. Press Sheets and Uniformity P-8. Halftone Match O.K. Press Sheets (Single and Double Impression) P-9. Solid and O.K. Press Sheets Screen Tint Color Match Special Instructions: In the event that inspection of press sheets is waived by the Government, the following listed alternate standards (in order of precedence) shall become the Specified Standards: P-7. Camera copy, Government furnished negatives, average type dimension in publication. P-8. Camera copy, Government furnished negatives. P-9. Government furnished sample, color swatch, Pantone Matching System color, progressive proofs. * * * * * * * * * * SCHEDULE: * * * * * * * * * * Submit proofs as soon as the contractor deems necessary in order to comply with the shipping schedule. Proofs must be submitted as complete sets. Proofs will be withheld 7 workdays from receipt in the GPO until they are made available for pickup by the contractor. The contractor must notify the GPO of the date and time press sheets will be available. In order that proper arrangements can be made notification must be given at least 72 hours in advance of the time for inspection of the press sheets. Notify the U.S. Government Printing Office, Contract Management Division, Quality Assurance Section (PPSQ), Washington, DC 20401, or telephone area code (202) 275-3874. Ship 100 copies to [Interior] destination as indicated under distribution to arrive at destination on or before May 31, 1989. Ship complete on or before May 31, 1989. See, R4 File, Tab P, pp. 2-5.33 In addition, Pensacola was not required to produce a complete set of film negatives, as was the Appellant (R4 File, Tab D; R4 File, Tab Q). It is undisputed that Pensacola successfully completed its contract and furnished copies of the National Survey which Interior found satisfactory and acceptable. App. Exh. No. 17. II. ISSUES PRESENTED As indicated by the Board during the hearing (Tr. 44), this appeal presents two issues for its consideration: 1. Did the Contracting Officer erroneously terminate the contract for default, thus converting the termination into one for the convenience of the Government, and if so, what is the amount of the Contractor's compensation for work performed? 2. Even if the Contracting Officer's default action was justified, is the Appellant nonetheless excused from responsibility for the excess reprocurement costs? III. POSITIONS OF THE PARTIES34 Although the Appellant insists that it printed the National Survey on the correct paper, it does not challenge the Respondent's conclusion that the perfect-binding of the publication it supplied to Interior was defective. PCR, pp. 7-8, 11; RSC, p. 4; Tr. 247-48, PCR, pp. 7-8, 11. The Contractor argues, however, that the defect was relatively minor, and that the contract, in essence, was really terminated for the convenience of the Government.35 The Appellant advances three major contentions in support of its position: (1) the examination and approval of the 3 samples of the National Survey by Interior prior to distribution, amounts to acceptance of the product, thus waiving the Government's right to subsequently reject the books and terminate the contract for failure to follow specifications; (2) the Contractor substantially performed the terms of the contract and furnished a product which was useable, hence it was unreasonable for the Respondent to ask that the book be reprinted; and (3) the Appellant is excused from liability for excess reprocurement costs because GPO repurchased a materially different version of the National Survey. The Appellant's first argument relies heavily on its understanding of the meaning and import of Interior's desire, transmitted through Kinsley, to look at 3 trimmed and bound copies of the book before they were distributed. App. Brf., pp. 5-6; Tr. 247. In the Contractor's view, once those 3 samples had been reviewed and approved by Interior, and the Appellant was instructed to proceed,36 the Government waived any further right to reject the books and terminate the contract.37 App. Brf., pp. 6-8 (citing, Joseph Morton Company, Inc., ASBCA No. 19793, 78-1 BCA ¶ 13,173; Ray M. Lee Company, ASBCA No. 5103, 59-2 BCA ¶ 2,457); PCR, p. 8; RSC, p. 4. Secondly, the Appellant claims that it substantially performed all the terms of the contract and furnished a useable product, thus termination should not be allowed in this case. App. Brf., p. 8; Tr. 247-48. Stated otherwise, the Contractor believes that the default was erroneous because there was a de facto acceptance of the product. App. Brf., pp. 8-10 (citing, Wolfe Construction Company, ENGBCA Nos. 3610, 3608, 3607, 3853, 4752, 3609, 3611, 84-3 BCA ¶ 17,701; Valley Asphalt Corporation, ASBCA No. 17595, 74-2 BCA ¶ 10,680; Bell & Flynn, Inc., ASBCA No. 11038, 66-2 BCA ¶ 5,855); PCR, pp. 7-8, 11; RSC, p. 4. In that regard, the Appellant claims that the paper it used to print the National Survey fully met the contract specifications, and the binding defect was minor one which could have been corrected easily and inexpensively. PCR, p. 9-10; RSC, p. 4. As the Contractor sees it, by rejecting its offer to staple the binding and insisting on a reprint instead, the Respondent unreasonably deprived the Appellant of an opportunity to cure the defect. App. Brf., pp. 9-10. Since, the Appellant believes that it had produced a "totally acceptable commercial product", it contends that it is entitled to payment from the Government.38 PCR, pp. 8-10 Finally, the Appellant contends that it cannot be held liable for excess reprocurement costs because the repurchase contract ordered a book which was materially different from the one it was asked to produce. App. Brf., p. 11; Tr. 248. The Contractor relies on the Respondent's own witnesses who testified during the hearing that the repurchase contract altered the duotone specifications, and also the finish of the cover paper for the reprocured National Survey was different.39 App. Brf., p. 11-12. Tr. 253, 254. Since these revised contract specifications were of a material nature, the Appellant argues that the law does not allow the Government to recover excess reprocurement costs. App. Brf., pp. 12, 14 (citing, Theodore R. Korotie, AGBCA No. 86-245-1, 89-3 BCA ¶ 22,214; Luis Martinez, AGBCA Nos. 86-148-1, 86-270-1, 87-3 BCA ¶ 20,219). See also, Tr. 248-49. Therefore, for these reasons, the Contractor asks the Board to reverse the Contracting Officer's default decision, direct the Respondent to pay the Appellant for the job, and refund the excess reprocurement costs assessed against its account. App. Brf., p. 15; Complaint, ¶ 5, pp. 3-4. The Respondent, on the other hand, offers five (5) reasons to explain why the Contracting Officer was justified in terminating the Appellant's contract for default in this case. First, relying on the well-established principle which entitles the Government to strict compliance with its contract specifications, the Respondent argues that the Contractor's failure to deliver a conforming product was a legitimate reason for the Contracting Officer's decision to reject the books and order a reprint. R. Brf., pp. 5-7 (citing, Cascade Pacific International v. United States, 773 F.2d 287 (Fed. Cir. 1985); American Electric Contracting Corporation v. United States, 579 F.2d 602 (Ct.Cl. 1978); Dependable Printing, Inc., GPO BCA 5-84 (September 12, 1985)). "Strict compliance" means that the Government has a right to get exactly what it asked for in the specifications. R. Brf., p. 5 (citing, Rohr Industries, Inc., ENGBCA No. 4058, 82-1 BCA ¶ 15,732. Here, the contract's binding specifications required the production of a "perfect-bound" book-a softcover publication where the backs of the signature pages are sawed off and glued onto the cover stock. R. Brf., p. 6. However, the perfect-binding on the Appellant's books were defective, because the pages popped away from the adhesive surface. Since the Appellant's binding work failed to meet contract specifications, the Contracting Officer had grounds to reject the books and order a reprint. R. Brf., p. 7. According to the Respondent, the Government is not obliged to accept nonconforming supplies, and only the Contracting Officer is authorized to decide whether a product conforms with the specifications. Id. (citing, Famous Model Company, ASBCA No. 12526, 68-1 BCA ¶ 6,902; Dependable Printing, Inc., supra, Sl. op. at 24. Second, the Respondent contends that the Appellant's offer to either fix the binding defect by stapling, or to accept a discount, was totally inadequate. R. Brf., pp. 7-8. GPO notes that under the so-called "substantial compliance" doctrine, a contractor has a reasonable period of time to cure minor defects and deliver goods which substantially conform to the contract specifications. R. Brf., p. 8 (citing, Radiation Technology, Inc. v. United States, 177 Ct.Cl. 227, 366 F.2d 1003, 1006 (1966)). In this case, stapling the book, as suggested by the Appellant, would have, in effect, substituted one nonconforming binding for another; i.e., stapling is not "perfect-binding," as that term is understood in the industry. Id. Similarly, the Appellant's discount offer was nothing more than an inducement to accept nonconforming work. Id. Consequently, the Respondent believes that in order to procure a conforming book, the only option available to the Contracting Officer under these circumstances was to ask for a reprint of the National Survey. R. Brf., p. 9 (citing, Cherry Meat Packers, Inc., ASBCA No. 8974, 1963 BCA ¶ 3937, for the proposition that the Government cannot be forced to accept defective products at a reduced price). Third, GPO claims that the Appellant's refusal to reprint the National Survey, as directed by the Contracting Officer, constitutes a legitimate reason for default, in and of itself. Id. According to the Respondent, the law requires the contractor to continue to follow the Contracting Officer's instructions regarding performance while a dispute is pending, and to seek relief in the form of an equitable adjustment to the contract. Id. (citing, Brenner Metal Products Corporation, ASBCA No. 25294, 82-1 BCA ¶ 15,462; Eriez Construction, Inc., VACAB No. 1273, 78-2 BCA ¶ 13,547). The "Disputes" clause in GPO Contract Terms, applies this same principle to GPO contracts such as the Appellant's. Id. GPO Contract Terms, Contract Clauses, ¶ 5(d). Since there is nothing to indicate that the Contracting Officer's reprint request was improper or impossible to comply with, the Contractor's failure to follow his instructions warranted default of the contract. Id. (citing, The American Press, Inc., GPOCAB No. 17-84 (January 4, 1991).40 Fourth, the Respondent argues that the Interior's review of the 3 sample copies of the National Survey prior to delivery, did not constitute acceptance of the book by the Contracting Officer. R. Brf., p. 10. GPO contends that under settled principles, only the designated contracting officer is empowered to accept or reject performance. R. Brf., p. 11 (citing, Trevco Engineering & Bales, VACAB No. 1021, 73-2 BCA ¶ 10,096; Wolverene Diesel Power Company, ASBCA No. 5079, 59-2 BCA ¶ 2,327). Under the terms of the contract, the Government was entitled to inspect and test the books before acceptance. Id. (citing, GPO Contract Terms, Contract Clauses, ¶ 14(c). Once GPO was alerted to the problem with the National Survey by Interior's complaint on March 27, 1989, after the books were delivered, it acted quickly to ascertain the scope of the defects and have the Appellant correct them. Id. Nothing in the Respondent's behavior after March 27, 1989, can be construed as acceptance of the shipment; indeed, the Contractor was expressly told that the shipment was being rejected. Id. In any event, Interior's inspection of the 3 prior to delivery samples could not, legally, estop GPO from rejecting the rest of the shipment. R. Brf., pp. 11-12 (citing, Dee-Lite Industries, Inc., GSBCA No. 3088, 71-1 BCA ¶ 8,788, affirmed on hearing, 72-1 BCA ¶ 9,258; 44 Comp. Gen. 341). This is particularly true where the shipment contains latent defects. R. Brf., p. 12 (citing, Kaminer Construction Corporation v. United States, 488 F.2d 980 (Ct.Cl. 1973); Castle Construction Company, ASBCA No. 28401, 84-1 BCA ¶ 17,041 (1983); W.L. Spruill & Company, ASBCA No. 14390, 71-2 BCA ¶ 8,930). Finally, GPO believes that it was appropriate to assess excess reprocurement costs against the Appellant in this case. Id. The Respondent argues that in order to be excused from this liability, the Contractor had to show that Pensacola's version of the National Survey was materially different from the book it was asked to produce. Id. However, a comparison of the two books warrants the conclusion that they are more similar than different. R. Brf., pp. 12-13 (citing, Environmental Techtonics Corporation, ASBCA No. 21204, 78-1 BCA ¶ 12,986; Marmac Industries, Inc., ASBCA No. 12158, 72-1 ¶ 9,249). In that regard, the Respondent observes that the paper stock specification in both the original and reprocurement contracts were exactly the same, and that unlike Pensacola, the Appellant failed to use the required paper. R. Brf., p. 13. The Respondent admits that for the repurchase of the National Survey, Interior decided to have the books printed in the original duotone scheme, not as modified for the Appellant's contract, but it argues that this slight change does not make Pensacola's book "materially different." R. Brf., pp. 13-14 (citing, Guenther Systems, Inc., ASBCA No. 16238, 73-1 BCA ¶ 9,868; Max M. Goldhaber, ASBCA No. 8277, 65-2 BCA ¶ 5,083). These "minor" differences between the duotones do not change in the "concept or fundamental operation" of the procurement. R. Brf., p. 14 (citing, Max M. Goldhaber, supra, 65-2 BCA ¶ 5,083, at 23,955). Thus, the two books are "similar" within the meaning of the law, and the Appellant is liable for the reprocurement costs. Accordingly, for all of these reasons, GPO urges the Board to affirm the decision of the Contracting Officer. R. Brf., p. 15. IV. CONCLUSIONS41 The factual simplicity of this case cannot disguise its significance for the jurisprudence of the Board. In no other dispute heretofore considered by the Board, have the two issues involved in this appeal been raised so clearly and so precisely. First, this case squarely and starkly raises the question not reached in Shepard I; i.e., did the Contractor's refusal to reprint the order under the circumstances described amount to an abandonment or anticipatory repudiation of the contract?42 Second, this appeal provides the Board with an opportunity to set forth the standards which it will apply in determining challenges to a Contracting Officer's assessment of excess reprocurement costs when items covered by a defaulted contract are repurchased by the Government. Accordingly, the Board makes the following findings and conclusions of law. A. The Appellant, both orally and in writing, evinced its intention to abandon or repudiate the contract. Therefore, regardless of the merits of the dispute, the Contracting Officer's decision to terminate the contract for default was justified and not in error. It is axiomatic that a default termination is a drastic action which may only be taken for good cause and on the basis of solid evidence.43 See, Hurt's Printing Company, Inc., supra, Sl. op. at 13-14; Shepard I, supra, Sl. Op. at 10; R.C. Swanson Printing and Typesetting Company, GPO BCA 31-90 (February 6, 1992), Sl. op. at 25, aff'd, Richard C. Swanson, T/A R.C. Swanson Printing and Typesetting Company, No. 92-128C (U.S. Claims Court, October 2, 1992);44 Stephenson, Inc., supra, Sl. op. at 20 (citing, Mary Rogers Manley d/b/a Mary Rogers Real Estate, HUDBCA No. 76-27, 78-2 BCA ¶ 13,519; Decatur Realty Sales, HUDBCA No. 75-26, 77-2 BCA ¶ 12,567). The burden of proving the basis for the default is on the Government. See, Lisbon Contractors v. United States, 828 F.2d 759 (Fed. Cir. 1987); Chavis and Chavis Printing, supra, Sl. op. at 11 (and cases cited therein); Shepard Printing, supra, Sl. Op. at 11; R.C. Swanson Printing and Typesetting Company, supra, Sl. op. at 28. The contractor has the burden of proving excusability.45 Switlik Parachute Company v. United States, 216 Ct.Cl. 362 (1978); Davis v. United States, 180 Ct.Cl. 20 (1967); J.F. Whalen and Company, AGBCA Nos. 83-160-1, 83-281-1, 88-3 BCA ¶ 21,066; B. M. Harrison Electrosonics, Inc., ASBCA No. 7684, 1963 BCA ¶ 3,736; Hy-Cal Engineering Corporation, NASA BCA Nos. 871-18 and 772-7, 75-2 BCA ¶ 11,399; Chavis and Chavis Printing, supra, Sl. op. at 11-12 (and cases cited therein); Shepard I, supra, Sl. Op. at 11; R.C. Swanson Printing and Typesetting Company, supra, Sl. op. at 28. If the Government fails to meet its burden of proof, then the termination is converted into one of convenience and the contractor can be paid for the work performed. See, GPO Contract Terms, Contract Clauses, ¶ 20(g). Cf., Shepard I, supra, Sl. Op. at 11; Stephenson, Inc., supra, Sl. op. at 17-18; Chavis and Chavis Printing, supra, Sl. op. at 9. In this case, the Contracting Officer based his decision to terminate the Appellant's contract for default on the Contractor's "refusal to correct the quality defects to meet the [requirements] of the specifications" (R4 File, Tab N). Stated otherwise, the contract was defaulted because the Appellant refused to produce a perfect-bound National Survey by reprinting it; i.e., while the Contractor's offer to staple the book might have cured the binding defect, that method of correction was something less than the perfect-binding called for in the contract (R4 File, Tab M). Apart from its belief that Interior's review and approval of the 3 advance copies of the book prior to distribution estops the Government from rejecting the complete order,46 the Appellant's main defense to the merits of the default, in effect, is that the National Survey it produced "substantially conformed" to the specifications and other terms and conditions of the contract.47 Indeed, most of the time at the hearing was spent litigating whether the so-called "substantial compliance" issue applied to the circumstances of this case.48 However, in deciding if the Contracting Officer's default termination was justified, the Board does not have to reach that question. Regardless of the merits on the "substantial compliance" issue, the Appellant's obstinate refusal to reprint the National Survey at the direction of the Contracting Officer is fatal to its appeal, and is ground enough to sustain the default. See, A. N. Xepapas, AIA, VABCA No. 3087, 91-2 BCA ¶ 23,799, at 119,178 ("The merits of the controversy has no effect on the requirement that a contractor continue performance during the pendency of the dispute." Citing, Detroit Designing & Engineering Company, ASBCA No. 8807, 1964 BCA ¶ 4,214). The Board takes its authority from the "Disputes" clause of the contract. R.C. Swanson Printing and Typesetting Company, GPO BCA 15-90 (March 6, 1992), Sl. op. at 27-28, 41; The Wessel Company, Inc., GPO BCA 08-90 (February 28, 1992), Sl. op. at 32-35, 46. See, GPO Contract Terms, Contract Clauses, ¶ 5. Among other things, the "Disputes" clause expressly provides: Pending final decision of a dispute hereunder, the contractor shall proceed diligently with performance and in accordance with the Contracting Officer's decision." GPO Contract Terms, Contract Clauses, ¶ 5(d). Although the language varies slightly, this is the same policy applied to Executive branch contracts by the "Disputes" clause in the Federal Acquisition Regulation (FAR). See, FAR § 52.233-1(h).49 In order to sustain a termination for default based upon the above provision of the "Disputes" clause two things are required: (1) a clear direction by the contracting officer; and (2) a refusal by the contractor to proceed with performance. See, Ascani Construction & Realty Company, VABCA Nos. 1572, 1584, 83-2 BCA ¶ 16,635. See also, Max M. Stoeckert v. United States, 183 Ct.Cl. 152, 391 F.2d 639 (1968); James W. Sprayberry Construction, IBCA No. 2130, 87-1 BCA ¶ 19,645; G.W. Galloway Company, ASBCA No. 17436, 77-2 BCA ¶ 12,640; Pacific Devices, Inc., ASBCA No. 19379, 76-2 BCA ¶ 12,179. Where such clear and unmistakable instructions regarding performance are given by the contracting officer, and the contractor nonetheless refuses to comply, a default termination will be upheld on the theory that the contractor anticipatorily repudiated or abandoned the contract.50 See, e.g., Altina Trucking, PSBCA No. 3341, 93-3 BCA ¶ 26,256; Twigg Corporation, NASA BCA No. 62-0192, 93-1 BCA ¶ 25,318; F & D Construction Company, Inc., ASBCA No. 41441, 91-2 BCA ¶ 23,983; A. N. Xepapas, AIA, supra, 91-2 BCA ¶ 23,799; Holt Roofing Company, Inc., GSBCA No. 8270, 91-1 BCA ¶ 23,361; Kirk Casavan, AGBCA No. 76-192, 78-2 BCA ¶ 13,459. As the Veterans Administration Board of Contract Appeals explained when it affirmed a contracting officer's default termination decision on anticipatory repudiation grounds: [T]he existence of a dispute regarding contract specifications does not excuse a refusal to perform. Charles Bainbridge, Inc., ASBCA Nos. 15843, 16204, 72-1 BCA ¶ 9,351. The fact that the parties are involved in a contract dispute does not justify abandonment of the contract. Nasco Products Company, VACAB Nos. 974, 1000, 72-2 BCA ¶ 9,556. . . . After the Contracting Officer gives his interpretation of the disputed provision of the contract, the Contractor must perform as directed. If he believes the interpretation to be erroneous, he may appeal. To the extent that the Contracting Officer's instructions constitute a change in the specifications or performance of work not required by the contract, the Contractor would be entitled to an equitable adjustment in the amount due and/or in the time required for performance. Charles Wiggins d/b/a Wiggins Construction, ASBCA Nos. 4022, 4613, 58-1 BCA ¶ 1,644. But he may not stop work pending final decision on any claim for equitable adjustment. M. Rudolph Preuss v. U.S., 188 Ct.Cl. 469 (1969). A. N. Xepapas, AIA, supra, 91-2 BCA ¶ 23,799, at 119,178-79 (quoting, Eriez Construction, Inc., supra, 78-2 BCA ¶ 13,547 at 66,363). See also, Computer Engineering Associates, VABCA No. 1596, 84-2 ¶ 17,246. To support a default termination on the basis of anticipatory repudiation by the contractor, the trier of fact must find: a "positive, definite, unconditional, and unequivocal manifestation of intent . . . on the part of the contractor . . . not to render the promised performance . . . " United States v. DeKonty Corporation, 922 F.2d 826, 828 (Fed. Cir. 1991) (citing, Cascade Pacific International v. United States, supra, 773 F.2d at 293). See also, James B. Beard, D.O., supra, 93-3 BCA ¶ 25,976, at 129,171; Altina Trucking, supra, 93-3 BCA ¶ 26,256, at 130,590-91. The Government has the burden of proving that the contractor communicated an intent not to perform in a positive, definite, unconditional and unequivocal manner. James B. Beard, D.O., supra, 93-3 BCA ¶ 25,976, at 129,171 (citing, United States v. DeKonty Corporation, 922 F.2d 826). See also, Sealtite Corporation, GSBCA Nos. 7458, 7633, 88-3 BCA ¶ 21,084, at 106,452. That burden is usually met by showing: (1) a definite and unequivocal statement by the contractor that he/she refused to perform; or (2) actions which constitute actual abandonment of performance. See, Holt Roofing Company, Inc., supra, 91-1 BCA ¶ 23,361 (a contractor unequivocally repudiated a construction contract when its principal arrived on the jobsite, ordered the subcontractor to stop work, and stated he hoped that the Government would terminate the contract so that he could resume a normal life). See also, Professional Building Services and Maintenance, ASBCA No. 42480, 91-3 BCA ¶ 24,360. The contractor, on the other hand, has the burden of proving that its abandonment was excusable within the meaning of the "Default" clause or was caused by the Government's material breach of the contract. F & D Construction Company, Inc. and D&D Management, Consulting and Construction Company, Inc., ASBCA Nos. 41441-44, 91-2 BCA ¶ 23,983). In that regard, a contractor's poor financial condition or economic distress will not excuse a default. Holt Roofing Company, Inc., supra, 91-1 BCA ¶ 23,361, at 117,174. Although Twigg Corporation, supra, arose in the context of a construction not a supply contract, as here, the facts are analogous. In that case, the contractor received a contract from the National Aeronautics and Space Administration (NASA) for the construction of two-level concrete mezzanine in a building at the Goddard Space Flight Center. Within 10 months NASA observed substantial cracking in the concrete on one of the levels. When NASA conducted tests on the material it discovered that the concrete did not meet the specified strength of 3,000 psi. As a consequence, the agency rejected the work as nonconforming and directed the contractor to replace, or otherwise correct, the two levels of concrete without charge to the Government. After several months of letters and meetings, during which time the contractor maintained that the concrete cracking was due to a defective design, the parties were unable to agree on a replacement plan. NASA wanted the contractor to replace both mezzanine levels, while the contractor said it would only replace the single slab of defective concrete. Finally, in response to written directions from NASA instructing the replacement of both mezzanine levels, the contractor wrote back, saying, in pertinent part: We will remove any and all defective concrete work with the mezzanine slabs . . . We have tested and submitted to you the results of these tests to the top slab. These tests show that this top slab is not defective and will not be removed. . . . We will remove all defective material but that is all. . . . We are waiting to hear when we may start this repair. Twigg Corporation, supra, 93-1 BCA ¶ 25,318, at 126,156. [Emphasis added.] Because of the contractor's written refusal to correct the job as directed, NASA terminated the contract for default. In upholding NASA's default termination decision, the agency appeals board reasoned, in pertinent part: When there is a positive, definite, unconditional, and unequivocal manifestation of intent not to perform, by words or conduct, the Contracting Officer may terminate the contract for default on the ground of anticipatory repudiation. [Citation omitted.] Appellant's words in its letter were that it would not replace the top slab because it had tested the top slab and did not find it defective. An anticipatory repudiation must be clear and absolute. [Citations omitted.] Appellant argues that . . . the words of its letter referring to a removal of "all defective concrete work with the mezzanine slabs" were not a repudiation of the Contract. We disagree. Appellant's statements were clear that it would not replace work that it did not consider defective, and that it did not consider the top slab defective. We find nothing in the record that reveals a contrary intention. * * * * * * * * * * A contractor's failure to proceed as directed pending resolution of its dispute with the Government has been equated with anticipatory breach of the contract by repudiation that gives the Government the right to summarily terminate the contract for default. [Citations omitted.] In this case, we consider it significant that Appellant failed to comply with the Government's directives for replacement work for over seven months while it claimed that the concrete cracking was due to a defective design. Appellant does not assert, and we cannot infer, that the Contractor was proceeding diligently with performance of the Contract and compliance with directives of the Contracting Officer as the Disputes Clauses requires. We have concluded that Respondent has established on the record evidence an anticipatory repudiation that was ground for the default termination. Twigg Corporation, supra, 93-1 BCA ¶ 25,318, at 126,157-58. [Emphasis added.] As was the case in Twigg Corporation, the Board believes that the facts here amply support a finding that the Appellant repudiated its contract with the Government. In the Board's view, the Contractor's refusal to follow the Contracting Officer's explicit directions to reprint the National Survey was "positive, definite, unconditional, and unequivocal" and manifested an "intent not to perform" the contract. United States v. DeKonty Corporation, supra, 922 F.2d at 828; James B. Beard, D.O., supra, 93-3 BCA ¶ 25,976, at 129,171; Altina Trucking, supra, 93-3 BCA ¶ 26,256, at 130,590-91; Twigg Corporation, supra, 93-1 BCA ¶ 25,318, at 126,157. Not only did McDaniel orally refuse the Contracting Officer's numerous reprint requests, but her letter of April 12, 1989, is particularly damaging to the Appellant's case. In words which were incapable of being misunderstood, McDaniel's made it very clear that the Appellant would not reprint the National Survey, as directed, because: (1) the book was being used by he departments which received it; (2) the job was printed in accordance with the contract specifications; and (3) the financial cost of reprinting would be too steep and might force the Contractor into bankruptcy (R4 File, Tab L). Indeed, McDaniel's remark that "it maybe cheaper for [the Contracting Officer] to default her" (R4 File, Tab K), is also indicative of the Contractor's "positive, definite, unconditional, and unequivocal" opposition to the very idea of reprinting the book in this case. Cf., Holt Roofing Company, Inc., supra, 91-1 BCA ¶ 23,361, at 117,173. Furthermore, the Board is constrained to observe that one of principal reasons given by the Appellant for not reprinting the books, namely, that it would cost too much (R4 File, Tabs K and L), is not a ground for refusing to proceed. Id., at 117,174 ("A contractor's poor financial condition does not excuse a default."). When the record is considered as a whole, the Appellant's oral and written statements evince a clear intent not to reprint the National Survey for the reasons given. There is nothing to show that the Contractor ever considered modifying that position once it was taken. Consequently, on the basis of this record, the Board has no trouble in concluding that the Contractor clearly and absolutely repudiated the contract. Twigg Corporation, supra, 93-1 BCA ¶ 25,318, at 126,157 (citing, West States Management Services, Inc., ASBCA Nos. 40212, 41438, 92-1 BCA ¶ 24,714; National Union Fire Insurance Company, ASBCA No. 34744, 90-1 BCA ¶ 22,266, aff'd, 907 F.2d 157 (Fed. Cir. 1990); Therm- Air Manufacturing Company, Inc., NASA BCA Nos. 180-2, 1280-21, 82-2 BCA ¶ 15,881). Finally, an anticipatory repudiation also occurs when a contractor fails to proceed as directed pending resolution of its dispute with the Government.51 Twigg Corporation, supra, 93-1 BCA ¶ 25,318, at 126,157. See also, A. N. Xepapas, AIA, supra, 91-2 BCA ¶ 23,799, at 119,179. The record shows that the Appellant steadfastly offered to correct the binding defect by stapling the copies of the National Survey. However, there is nothing in the record to indicate any willingness on the part of the Appellant to comply with the Contracting Officer's directives to reprint the book; instead, all the evidence is to the contrary. Indeed, it is significant that once the Appellant's offer to staple the books was rejected and the Respondent's representatives clearly explained the proper procedure to follow in this dispute-i.e., reprint the National Survey, and then file a claim for the extra work, which, if denied, could be appealed to the Board-the Appellant ignored that advice. This Board, as well as the ad hoc appeals panels which preceded it, have held on numerous occasions that under the GPO "Disputes" clause, a contractor is obligated to follow the contracting officer's directives regardless of the merits of the controversy. See, e.g., International Lithographing, GPO BCA 1-88 (December 29, 1989); Colorgraphics Corporation, GPO BCA 16-87 (March 31, 1989); Custom Printing Company, GPO BCA 10-87 (May 10, 1988). See also, e.g., Knepper Press, GPOCAB Nos. 2-84 and 3-84 (October 2, 1984); Business Forms Service, Inc., GPOCAB 9-81 (October 20, 1981); Merchant Service Company, GPO Contract Nos. 373 and 374 [No GPOCAB Docket Number] (February 11, 1980). In such cases, a contractor who then prevails on the merits, would be: . . . 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. International Lithographing, supra, Sl. op. at 25. Accordingly, the Board finds and concludes that the record establishes that the Appellant repudiated is obligations under the contract. Therefore, the Contracting Officer was warranted in terminating the contract because of the Appellant's default.52 B. While the Respondent has shown that it was justified in terminating the Appellant's contract for default, it has not sustained its burden of proof with regard to excess reprocurement costs. In most previous cases considered by the Board and the ad hoc appeals panels, the default termination decision also disposed of the issue concerning excess reprocurement costs. See, e.g., Hurt's Printing Company, Inc., supra, Sl. op. at 30; Graphics Image, Inc., GPO BCA 13-92 (August 31, 1992), Sl. op. at 28; Tamms Lithography, Inc., GPO BCA 14-89 (July 13, 1990). Sl. op. at 9; Valley Printing Service, GPO BCA 3-84 (June 6, 1985), Sl. op. at 12; Vogard Printing Corporation, GPOCAB 7-84 (January 7, 1986), Sl. op. at 7; Knepper Press, supra, Sl. op. at 4; Technical Publishing Services, Inc., GPO CAB 1-81 (January 20, 1982), Sl. op. at 6. A review of these prior decisions indicates that the contractor usually only appealed the underlying reasons for the default termination, and the excess reprocurement cost issue was subsumed in the overall arguments on the merits of the default.53 But see, e.g., Himark Printing Company, GPOCAB No. 1-84 (March 16, 1984); Nekoosa Press, Inc., Program 538-S, Jacket No. 311-450 [No GPOCAB Docket Number] (January 5, 1981) (litigation of excess reprocurement cost issue only). In Custom Printing Company, a GPO ad hoc panel dismissed a contracting officer's objection to the panel's consideration of the excess cost issue because the defaulting contractor had not sought a separate final decision on the assessment, explaining: We believe that this fact situation falls in line with that of Conncor, Inc., GSBCA No. 4654, 77-1 BCA ¶ 12,225. There the appellant unsuccessfully appealed the default termination, and it had not timely filed a subsequent appeal to the assessment of excess costs. Disregarding this, the Board concluded that the subject was properly before it for adjudication. Also see, El-Tronics, Inc., ASBCA No. 5457, 61-1 BCA ¶ 2,961 (1961); Si-Lite, Inc., GSBCA No. 2,442, 68-1 BCA ¶ 7,032. In accord with this line of so-called reverse "Fulford doctrine" cases, see, Fulford Manufacturing Company, ASBCA Nos. 2143, 2144, 6 CCF ¶ 61,815 (1955), Pantronics, Inc., ASBCA No. 20982, 78-2 BCA ¶ 13,285, at p. 64,984 (appeal of excess costs assessment "opens-up" questions of validity of default termination), we hold that the matter of excess costs has also been appealed here and is properly before us for decision of the propriety of the assessment. See, Custom Printing Company, GPOCAB 2-79 (December 19, 1979), Sl. op. at 14.54 Thus, the usual practice when a defaulted contractor appeals from the termination decision is for the Board to look at the excess reprocurement cost issue as well, provided that question is ripe for consideration; i.e, such costs have been assessed.55 This case represents one of the few times in the combined history of the Board and the ad hoc appeals panels, in which the parties have spent a substantial amount of time addressing the excess reprocurement cost issue, both during litigation and in their post-hearing briefs. See, e.g., Timsco, Inc., GPOCAB 78-10 (July 24, 1979). Accordingly, the Board believes that it is appropriate, in the context of this appeal, to set forth in detail the criteria which it will apply in determining challenges to a contracting officer's assessment of excess costs. At the outset, it must be mentioned that the authority vested in GPO's contracting officers to levy excess reprocurement costs is rooted in contract, not in statute. In that regard, the standard "Default" clause in GPO contracts provides, in pertinent part: If the Government terminates in whole or in part, it may acquire, under the terms and in the manner the Contracting Officer considers appropriate, supplies or services similar to those terminated, and the contractor will be liable to the Government for any excess costs for those supplies or services. . . . GPO Contract Terms, Contract Clauses, ¶ 20(b).56 Furthermore, in exercising their repurchase authority, GPO contracting officers are instructed that: Where the supplies or services are still required after termination and the contractor is liable for excess costs, repurchase of supplies or services which are similar to those called for in the contract shall be made against the contractor's account as soon as possible after termination. The repurchase shall be made at a price reasonable as can be obtained considering the quality required and the time within which the supplies or services are required. PPR, Chap. XIV, Sec. 1, ¶ 3.f.(1). [Emphasis added.] By its terms, the "Default" clause excuses defaulting contractors from liability for excess reprocurement costs if they or their subcontractors failed to perform because of events beyond their control and without their fault or negligence. GPO Contract Terms, Contract Clauses, ¶¶ 20(c),(d). See, e.g., Printing Unlimited, GPO BCA 21-90 (November 30, 1993), Sl. op. at 16; B. P. Printing and Office Supplies, GPO BCA 22-91 (February 5, 1993), Sl. op. at 10; R.C. Swanson Printing and Typesetting Company, Sl. op. at 27, fn. 16; Chavis and Chavis Printing, supra, Sl. op. at 11; Vogard Printing Corporation, supra, Sl. op. at 7-8. However, as implied in the above-quoted paragraph of the PPR, a contractor will also be protected from the assessment of excess reprocurement costs if the Government fails to meet its responsibilities in cases of default. Whether the Government's repurchase was improper, and if so, what is the amount of reasonable excess costs under the circumstances, are questions of fact. Cable Systems and Assembly Company, ASBCA No. 17844, 73-2 BCA ¶ 10,172 at 47,892. The assessment of excess reprocurement costs is considered a Government claim.57 See, John L. Hartsoe, AGBCA No. 88-116-1, 93-2 BCA ¶ 25,614, at 127,501; B & M Construction, Inc., AGBCA No. 90-165-1,93-1 BCA ¶ 25,431, at 126,667; William A. Hulett, AGBCA Nos. 91-230-3, 92-133-3, 92-196-3, 93-1 BCA ¶ 25,389, at 126,460; Theodore R. Korotie, supra, 89-3 BCA ¶ 22,214, at 111,728. See also, ATC Decal Company, GPOCAB 3-81 (July 14, 1981), Sl. op. at 8. Consequently, the Government has the burden of demonstrating the propriety of the repurchase and proving its entitlement to the amount of excess costs it claims. See, John L. Hartsoe, supra, 93-2 BCA ¶ 25,614, at 127,501 (citing, Jesse W. Wayne, AGBCA No. 410, 75-2 BCA ¶ 11,394); William A. Hulett, supra, 93-1 BCA ¶ 25,389, at 126,460; Rhocon Constructors, AGBCA No. 86-125-1, 91-1 BCA ¶ 23,308, at 116,894; The Flooring Company, GSBCA No. 8297, 89-3 BCA ¶ 22,167, at 111,548 (citing, Mattatuck Manufacturing Company, GSBCA No. 4847, 80-1 BCA ¶ 14,349); Ace Reforestation, Inc., AGBCA No. 84-272-1, 83-2 BCA ¶ 20,218, at 102,400 (citing, Elton E. Widdifield, et al., AGBCA No. 81-115-1 A-B, 83-2 BCA ¶ 16,639). As voiced by the Federal Circuit, the rule which is applied when the Government seeks recovery of excess reprocurement costs is that they: . . . may be imposed only when the Government meets its burden of persuasion that the following conditions (factual determinations) are met: (1) the reprocured supplies are the same as or similar to those involved in the termination; (2) the Government actually incurred excess costs; and (3) the Government acted reasonably to minimize the excess costs resulting from the default. [Citations omitted.] The first condition is demonstrated by comparing the item reprocured with the item specified in the original contract. [Citation omitted.] The second condition requires the Government to show what it spent in reprocurement. [Citation omitted.] The third condition requires that the Government act with a reasonable time of the default, use the most efficient method of reprocurement, obtain a reasonable price, and mitigate its losses. [Citation omitted.] [Emphasis added.] Cascade Pacific International v. United States, supra, 773 F.2d at 293-94.58 See also, Puroflow Corporation, ASBCA No. 36058, 93-3 BCA ¶ 26,191, at 130,392 (citing, AAR Allen Aircraft Corporation, ASBCA No. 32702, 88-2 BCA ¶ 20, 581); B & M Construction, Inc., supra, 93-1 BCA ¶ 25,431, at 126,667-68; Interstate Forestry, Inc., AGBCA No. 89-114-1, 91-1 BCA ¶ 23,660. Subsequent contract appeals litigation has refined this test so that it now has five basic elements; i.e., the Government bears the burden of proving that: (1) the reprocurement contract was performed under substantially the same terms and conditions as the original contract; (2) it acted within a reasonable time following default to repurchase the supplies; (3) it employed a reprocurement method which would maximize competition under the circumstances; (4) it obtained the lowest reasonable price; and (5) the work has been completed and final payment made so that the excess costs assessment is based upon liability for a sum certain. See, e.g, B & M Construction, Inc., supra, 93-1 BCA ¶ 25,431, at 126,667-68 (citing, Cascade Pacific International v. United States, supra, 773 F.2d at 293); William A. Hulett, supra, 93-1 BCA ¶ 25,389, at 126,459 (citing, Delphi Industries, Inc., AGBCA No. 76-160-4 A & B, 84-1 BCA ¶ 17,053); Zan Machine Company, supra, 91-3 BCA ¶ 24,085, at 120,542 (citing, Birken Manufacturing Company, ASBCA No. 32590, 90-2 BCA ¶ 22,845, at 114,716); Mid-America Painters, Inc., ENG BCA No. 5703, 91-1 BCA ¶ 23,367, at 117,232-33 (citing, Birken Manufacturing Company, supra); Theodore R. Korotie, supra, 89-3 BCA ¶ 22,214, at 111,728 (citing, John T. Penrod, AGBCA No. 79-169-4, 80-2 BCA ¶ 14,789); Sequal, Inc., ASBCA No. 30838, 88-1 BCA ¶ 20,382, at 103,067 (citing, Match Maker Textiles, Inc., ASBCA No. 22382 and 23414, 80-1 BCA ¶ 14,335); Boston Pneumatics, Inc., ASBCA Nos., 26188, 26190, 26825, 26984, 27605, 27606, 87-1 BCA ¶ 19,395, at 98,084. Furthermore, it is also well established that the Government claim must be supported by evidence in the record as to each element of the claim. Rhocon Constructors, supra, 91-1 BCA ¶ 23,308, at 116,894 (citing, Delphi Industries, Inc., supra). Failure to satisfy even one criterion may result in a reduction of the excess costs claimed.59 See, e.g., Associated Cleaning, Inc., GSBCA No. 8320, 8361, 91-1 BCA ¶ 23,360; Birken Manufacturing Company, supra, 90-2 BCA ¶ 22,845; Action Group II, Inc., ASBCA No. 30855, 87-1 BCA ¶ 19,375; M.S.I. Corporation, VABCA No. 599, 67-2 BCA ¶ 6,643. Other forums will deny the claim altogether if the Government the fails to prove a single element.60 See, e.g., Consolidated Airborne Systems, Inc. v. United States, 172 Ct. Cl. 588, 348 F.2d 941 (1965); See also, e.g., Pyramid Packing, Inc., supra, 92-2 BCA ¶ 24,831; Rhocon Constructors, supra, 91-1 BCA ¶ 23,308; American Technology Resources, ASBCA No. 38232, 89-3 BCA ¶ 22,239; AGH Industries, ASBCA Nos. 27960, 31150, 89-2 BCA ¶ 21,637; Scalf Engineering Co. and Pike County Construction Co., A Joint Venture, IBCA No. 2328, 89-3 BCA ¶ 21,950; Luis Martinez, supra, 87-3 BCA ¶ 20,219; Glenn's Heating, supra, 87-1 BCA ¶ 19,355. Applying the standards necessary to sustain a Government claim for excess costs to this case, the Board is forced to conclude that while two elements of the test are satisfied, the Respondent's evidence falls short in three critical areas; i.e., there is insufficient proof that the reprocurement method chosen maximized competition, that the reprocurement contract price was reasonable under the circumstances, and that final payment had been made. 1. The reprocurement contract awarded to Pensacola was for substantially the same publication, under essentially the same terms and conditions, as those in the Appellant's original contract. The threshold question where, as here, a contractor challenges the Government's assessment of excess costs, involves a comparison between the original contract and the reprocurement contract to determine if they are similar or substantially the same with respect to the supplies procured and the terms and conditions of performance. Luis Martinez, supra, 87-3 BCA ¶ 20,219, at 102,406. See, Cibinic and Nash, p. 763. Both parties concentrate their evidence and their arguments in this area. The Appellant, relying on the physical appearance of Pensacola's National Survey, as well as certain revisions to the contract specifications in Pensacola's contract, contends that the repurchase contract was "materially different" from the one it was awarded. Furthermore, the Contractor implies that it received disparate treatment in this case because there is no evidence that the Respondent ever tested Pensacola's publication to see if it met the paper and binding standards.61 Meanwhile, the Respondent, focusing on the end product itself, claims that although Interior returned to the original duotone scheme for Pensacola's National Survey, this modification was "minor" and legally insignificant since there was no change in the "concept or fundamental operation" of the procurement; i.e., both the original and repurchase contracts procured 10,049 copies of the exact same perfect-bound two (2) color, 176-page book, with a separate wraparound cover, on a specified paper stock. Thus, regardless of the "slight" changes in the repurchase agreement, the Government says it ordered the "same" or "substantially similar" book from Pensacola. It is well-established that the Government bears the initial burden of proving that the reprocured supplies are similar to the original material, and that the defaulted contractor must then go forward and show that the variations actually adopted by the contracting officer caused unreasonable increase in costs of an identifiable amount. Theodore R. Korotie, supra, 89-3 BCA ¶ 22,214, at 111,728; Ace Reforestation, Inc., supra, 83-2 BCA ¶ 20,218, at 102,400; Solar Laboratories, Inc., ASBCA No. 19957, 76-2 BCA ¶ 12,115, at 58,195. See also, Knepper Press, supra, Sl. op. at 4. Obviously, one way to test for similarity is to compare the end item delivered on the reprocurement contract with the item specified in the original contract at the time of default, and see if they share similar "physical and mechanical characteristics as well as functional purpose." Marmac Industries, Inc., supra, 72-1 BCA ¶ 9,249; Lome Electronics, Inc., ASBCA Nos. 8642, 8701, 1963 BCA ¶ 3,833. See also, B & M Construction, Inc., supra, 93-1 BCA ¶ 25,431, at 126,668; Sequal, Inc., supra, 88-1 BCA ¶ 20,382, at 103,067; AGH Industries, supra, 89-2 BCA ¶ 21,637, at 108,863; Wise Instrumentation and Control, Inc., NASA BCA Nos. 1072-12, 673-7, 75-2 BCA ¶ 11,478, mot. for reconsid. denied, 76-1 BCA ¶ 11,641. On the other hand, while a contracting officer must repurchase similar supplies, "similar" does not mean "identical".62 Puroflow Corporation, supra, 93-3 BCA ¶ 26,191, at 130,392; Sequal, Inc., supra, 88-1 BCA ¶ 20,382, at 103,067; AGH Industries, supra, 89-2 BCA ¶ 21,637, at 108,863. Thus, while minor variations in the repurchased items will not relieve a contractor of its liability for excess reprocurement costs, substantial and material differences between the end items in the original contract and reprocurement contract will completely relieve a contractor of its liability for excess costs.63 United States v. Axman, 234 U.S. 36 (1914); California Bridge & Construction Company v. United States, 50 Ct.Cl. 40 (1915), affirmed, 245 U.S. 337 (1917); B & M Construction, Inc., supra, 93-1 BCA ¶ 25,431, at 126,668 (citing, Environmental Tectonics Corporation, supra, 78-1 BCA ¶ 12,986); AGH Industries, supra, 89-2 BCA ¶ 21,637, at 108,863 (citing, Accutherm, Inc., ASBCA No. 25474, 83-1 BCA ¶ 16,307). See generally, Cibinic and Nash, pp. 763-65. The end product is not the only measure of "similarity"-the boards and the courts also look at whether the reprocurement contract was performed under the same terms and conditions as the defaulted contract. See, e.g., B & M Construction, Inc., supra, 93-1 BCA ¶ 25,431, at 126,668 (contract changed or relaxed for each of three major items, i.e., the access ramp, the field stone headwall, and on-site disposal and storage); Old Dominion Security, Inc., GSBCA No. 9126, 90-2 BCA ¶ 22,745, at 114,164 (changes regarding posts at which guard service was required considered "slight-small" distinctions); Theodore R. Korotie, supra, 89-3 BCA ¶ 22,214, at 111,728 (the reprocurement contract contained a liquidated damages clause not in the original); Foster Refrigerator Corporation, ASBCA No. 34021, 89-2 BCA ¶ 21,591, at 108,722 (and changes in F.O.B. points did not cause a significant price increase); AGH Industries, supra, 89-2 BCA ¶ 21,637, at 108,863 (reprocurement contract's changed specifications required more stringent testing, which would cause greater acceptance or rejection of one product over another and affected the repurchase price); Ace Reforestation, Inc., supra, 87-3 BCA ¶ 20,218, at 102,400 (the reprocurement contract changed the project description in a significant way, e.g., gave a clearer information about the amount of live vegetation that would be encountered and of the number of planters required); Luis Martinez, supra, 87-3 BCA ¶ 20,219, at 102,406 (relaxation of specifications so that defaulted contractor could have performed); Pulley Ambulance, VABCA Nos. 1954, 1964, 84-3 BCA ¶ 17,655, at 88,008 (particular requirements which were the basis for default waived on reprocurement). However, the cases make clear that in order for contract changes to be considered "material" they must have a pecuniary impact. Cf., Churchill Chemical Corporation, GSBCA No. 4353, 77-1 BCA ¶ 12,318, aff'd 221 Ct. Cl. 284, 602 F.2d 358 (1979); T.M. Industries, ASBCA No. 21025, 77-1 BCA ¶ 12,545; Solar Laboratories, Inc., supra, 76-2 BCA ¶ 12,115; Marmac Industries, Inc., supra, 72-1 BCA ¶ 9,249; Arjay Machine Company, ASBCA No. 16535, 73-2 BCA ¶ 10,179. See generally, Cibinic and Nash, pp. 766-69. In that regard, it is well- accepted that: A variation between a defaulted contract and a reprocurement contract is material if it causes a substantial increase in the price of the reprocurement contract. [Citation omitted.] Further, a change in specifications that increases the price of a reprocurement generally must be reflected by a reduction in the amount of excess costs for which a defaulted contractor is liable, [Citation omitted], although the Government does not necessarily forfeit all rights to excess costs. [Citation omitted.] Ace Reforestation, Inc., supra, 83-2 BCA ¶ 20,218, at 102,400-01 (citing, Meyer Labs, Inc., ASBCA No. 19525, 87-2 BCA ¶ 19,810; Action Group II, Inc., supra, 87-1 BCA ¶ 19,375; G. O'Connor, AGBCA No. 75-154, 78-1 BCA ¶ 12,981). Also cf., AGH Industries, supra, 89-2 BCA ¶ 21,637, at 108,864 ("Moreover, the changes to the specifications had a cost impact on the repurchase price. While we are not persuaded by either party's computation of this impact, we hold that the impact was significantly greater than admitted by the Government, that it affected the repurchase price, and that it suggests a greater lack of similarity between the items purchased under the reprocurement contract and those purchased under appellant's contract than would be apparent by simple comparison of the respective items."). In this case, it is undisputed that when the Respondent repurchased the National Survey, it made some changes to the specifications in the contract it awarded to Pensacola. Among other things, the reprocurement contract returned to the original duotone scheme selected by Interior; added a requirement for a press sheet inspection; changed the quality assurance levels and standards specification in light of the new provision for a press sheet inspection; and amended the "Proofs" clause to require that revised proofs be furnished at no expense to the Government (R4 File, Tab P, pp. 2-5, and Tab Q). Furthermore, while the Appellant had to produce one complete set of film negatives, Pensacola did not (R4 File, Tab D; R4 File, Tab Q). On the other hand, the basic procurement in both the Appellant's and Pensacola's contracts was identical-10,049 copies of the same perfect-bound two (2) color, 176-page book, with a separate wraparound cover, on a specified paper stock, with essentially the same number of days allowed between the pick-up of Government-furnished material and final delivery (Pensacola had 36 days to complete the repurchase contract, while the time in the original contract, before it was extended, gave the Appellant 35 days to deliver the books) ((R4 File, Tabs B and P). Consequently, the onus was on the Appellant to prove its allegation that notwithstanding the basic similarity in both procurements, the changes made by the Respondent to the reprocurement contract rendered it "materially different" from the one it received, and that Pensacola's version of the National Survey was substantially dissimilar from the publication it was asked to produce. Knepper Press, supra, Sl. op. at 4. An essential element of that burden of proof was a demonstration that those alterations caused an unreasonable increase of a specified amount in the price of the repurchase. Theodore R. Korotie, supra, 89-3 BCA ¶ 22,214, at 111,728; Ace Reforestation, Inc., supra, 83-2 BCA ¶ 20,218, at 102,400; Solar Laboratories, Inc., ASBCA No. 19957, 76-2 BCA ¶ 12,115, at 58,195. In the opinion of the Board, the Appellant has failed to meet its evidentiary burden. The Board has examined and compared both books, and there is no doubt that in terms of physical appearance, Pensacola's National Survey stands out in marked contrast to the Appellant's with respect to the duotone colors, the finish on the covers, and the text paper. Compare, App. Exh. No. 17, with App. Exh. Nos. 20 and 22. Cf. Printing Unlimited, GPO BCA 21-90 (November 30, 1993), Sl. op. at 20-21; Product of Information Systems, GPO BCA 7-85 (November 25, 1986), Sl. op. at 8. However, from the evidence it is also true that despite the differences in their surface characteristics, both books have the same functional purpose and use. B & M Construction, Inc., supra, 93-1 BCA ¶ 25,431; Zan Machine Company, supra, 91-3 BCA ¶ 24,085; Boston Pneumatics, Inc., supra, 87-1 BCA ¶ 19,395; Marmac Industries, Inc., supra, 72-1 BCA ¶ 9,249; Lome Electronics, Inc., supra, 1963 BCA ¶ 3,833. Besides, the law is clear that the Contracting Officer was only duty-bound to repurchase a book which was similar to the Appellant's National Survey, not one which was identical to it. Puroflow Corporation, supra, 93-3 BCA ¶ 26,191; B & M Construction, Inc., supra, 93-1 BCA ¶ 25,431; Sequal, Inc., supra, 88-1 BCA ¶ 20,382; AGH Industries, supra, 89-2 BCA ¶ 21,637, at 108,863. Furthermore, while there were more changes in the terms and conditions of Pensacola's contract than admitted by the Respondent at the hearing, the Board is nonetheless persuaded that the variations were minor and did not alter the essential thrust of the reprocurement. Zan Machine Company, supra, 91-3 BCA ¶ 24,085; Old Dominion Security, Inc., supra, 90-2 BCA ¶ 22,745. More importantly, the Appellant has not presented any evidence which would show that the cost of the reprocurement was increased because of the changes made in the repurchase contract; i.e., there is no proof of the pecuniary impact necessary to support a finding that the alterations were "material". Cf., AGH Industries, supra, 89-2 BCA ¶ 21,637; Ace Reforestation, Inc., supra, 83-2 BCA ¶ 20,218; G. O'Connor, supra, 78-1 BCA ¶ 12,981; T.M. Industries, supra, 77-1 BCA ¶ 12,545; Solar Laboratories, Inc., supra, 76-2 BCA ¶ 12,115; Marmac Industries, Inc., supra, 72-1 BCA ¶ 9,249. Accordingly, since the Appellant has not submitted any evidence which would substantiate its allegation that Pensacola's contract was "materially different" from its contract, the Board finds that the Contractor has not met its burden of proof. 2. The Respondent acted within a reasonable time following the default termination to reprocure the contract. The second element in the Respondent's burden of proof-that it acted within a reasonable time following the termination to reprocure the contract-is easily disposed of. It is well- settled that when examining the reasonableness of the Government's mitigation efforts, appeals boards will examine, inter alia, whether the reprocurement was accomplished in a timely fashion. Disan Corporation, ASBCA Nos. 21297, 22221, 79-1 BCA ¶ 16,677. In that regard, it is generally accepted that: While the issue of timeliness of a reprocurement "is determined by the facts and circumstances of each case, the usual test is whether the contractor was charged a higher price due to the passage of time; the contractor bears the burden of proof that it was damaged by any delay." Birken Manufacturing Company, ASBCA No. 32590, 90-2 BCA ¶ 22,845 [at 114,716]. Puroflow Corporation, supra, 93-3 BCA ¶ 26,191, at 130,393. See also, Astro-Space Laboratories, Inc. v. United States, 200 Ct.Cl. 282, 470 F.2d 1003, 1018 (1972). By its terms, the test is a flexible one, but normally an acceptable time frame between default and reprocurement is measured in days or a few months, not years. Compare, e.g. John L. Hartsoe, supra, 93-2 BCA ¶ 25,614 (33 days was reasonable) and Sequal, Inc., supra, 88-1 BCA ¶ 20,382 (3 months was reasonable) with, B & M Construction, Inc., supra, 93-1 BCA ¶ 25,431 (a 5 month delay in a period of high inflation was unreasonable) and AGH Industries, supra, 89-2 BCA ¶ 21,637 (a 17 month delay was unreasonable when the Government alleged it had an urgent need for the supplies). The record in this case shows that the Appellant's contract was terminated for default on April 13, 1989 (R4 File, Tab N). Five days later, on April 18, 1989, the Respondent initiated a reprocurement of the job by issuing a new solicitation clearly marked "This is a repurchase!!" (R4 File, Tab P, p. 1). Furthermore, the face of the repurchase solicitation shows that there were only 3 days between the date of issuance and the bid opening date (from April 18, 1989 to April 21, 1989) (R4 File, Tab P, p. 1). Thereafter, on April 25, 1989, Pensacola received the reprocurement contract (R4 File, Tab Q). All told, only 12 days elapsed between the date of default and the award of the reprocurement contract. Accordingly, on this record the Board finds that the Respondent acted with reasonable dispatch and without undue delay to reprocure the National Survey contract, and thus it has satisfied its evidentiary burden. 3. Although the Respondent selected a repurchase mechanism designed to maximize competition-the sealed bid method- there is insufficient evidence to show that it was successful. Thus, the Board cannot say on this record that the Government used the most efficient method of reprocurement under the circumstances, or acted reasonably to minimize the excess costs. Another peg in the Government's duty to mitigate its damages is its responsibility to accomplish the repurchase in a reasonable manner. Mid-America Painters, Inc., supra, 91-1 BCA ¶ 23,367; Puroflow Corporation, supra, 93-3 BCA ¶ 26,191; Gulf Paint & Chemical Company, Inc., ENG BCA PCC-27, 80-2 BCA ¶ 14,759; Disan Corporation, supra, 79-1 BCA ¶ 16,677. See generally, Cibinic and Nash, pp. 776-79. Like the second element previously discussed: [T]here is no hard and fast rule or formula to determine whether the Government failed in its duty to mitigate damages; the issue of whether the Government met its duty is a fact question, resolved by inquiry [into the] reasonableness of the Government's actions under the existing circumstances. Birken Manufacturing Company, supra, 90-2 BCA ¶ 22,845, at 114,717. See also, Astro-Space Laboratories, Inc. v. United States, supra, 200 Ct.Cl. 282, 470 F.2d at 1017; H & H Manufacturing Company v. United States, 168 Ct.Cl. 873, 885 (1964); Puroflow Corporation, supra, 93-3 BCA ¶ 26,191, at 130,393. However, it is clear from the cases while the method of reprocurement is a discretionary matter for the contracting officer, see, e.g., Venice Maid Company, Inc. v. United States, 639 F.2d 690, 697 (Ct.Cl. 1980), Zan Machine Company, supra, 91-3 BCA ¶ 24,085, at 120,542; Old Dominion Security, Inc., supra, 90-2 BCA ¶ 22,745, at 114,164, there is also a bias in the law in favor of those mechanisms which will maximize competition and secure the best or lowest reasonable price under the circumstances.64 See, e.g., Scalf Engineering Co. and Pike County Construction Co., A Joint Venture, supra, 89-3 BCA ¶ 21,950, at 110,425 (citing, Techcraft Systems, VABCA Nos. 1894, 2027, 86-3 BCA ¶ 19,320); Sequal, Inc., supra, 88-1 BCA ¶ 20,382, at 103,067. In that regard, the standard for determining the adequacy of a repurchase solicitation was enunciated in Century Tool Company, where the appeals board said: . . . [W]e do not impose a burden upon the Contracting Officer to solicit every known source of supply, nor do we require that the reprocurement include all bidders of the original (defaulted) procurement. Rather, the test is one of reasonableness, and the principal criterion is that a sufficient number of potential contractors are contacted in the reprocurement solicitation to assure competitive prices in order to discharge the Government's obligation to mitigate the excess costs of the defaulted contractor. Century Tool Company, GSBCA No. 4007, 78-1 BCA ¶ 13,050, at 63,735, mot. for reconsid. denied, 78-2 BCA ¶ 13,345. [Emphasis added.] The burden is on the Government to prove that the reprocurement method it selected was conducive to obtaining full and open competition, and that it acted reasonably to mitigate or minimize excess costs. Cf., Associated Cleaning, Inc., supra, 91-1 BCA ¶ 23,360; Rhocon Constructors, supra, 91-1 BCA ¶ 23,308; Sam's Electric Company, GSBCA Nos. 9359, 10044, 90-3 BCA ¶ 12,128; American Technology Resources, supra, 89-3 BCA ¶ 22,239; Fancy Industries, Inc., ASBCA No. 26578, 83-2 BCA ¶ 16,659; Welmetco, Ltd., ASBCA Nos. 25049, 25649, 83-1 BCA ¶ 16,413. Despite the general rule, the law allows a contracting officer to limit competition for the repurchase if the situation demands it-e.g., the Government's need to assure a quick award to a firm which could begin work almost immediately-since a reprocurement is technically a purchase for the defaulted contractor's account. William A. Hulett, supra, 93-1 BCA ¶ 25,389, at 126,459; Old Dominion Security, Inc., supra, 90-2 BCA ¶ 22,745, at 114,165 (citing, Camrex Reliance Paint Company, GSBCA No. 6870, 85-3 BCA ¶ 18,376; Century Tool Company, GSBCA No. 3999, 76-1 BCA ¶ 11,850); Sequal, Inc., supra, 88-1 BCA ¶ 20,382, at 103,067. Thus, appeals boards usually apply a "reasonable person" standard when confronted with a challenge to a contracting officer's reprocurement of a defaulted contract. As recently explicated by one appeals board: The duty the Government owes the defaulted contractor in reprocuring for its account is not one of perfection, but one of reasonableness and prudence under the circumstances. [Citations omitted.] This duty is to be carried out within the confines of Federal procurement statutes, regulations, policies and directives and the Government is not required to change such policies to secure a better reprocurement price for a defaulted contractor. [Citation omitted.] Further, it is not the contracting officer's obligation to do everything that he or she might to secure a lower price for a defaulted contractor, and in the process subordinate the Government's own best interests. [Citations omitted.] Barrett Refining Corporation, supra, 91-1 BCA ¶ 23,566, at 118,145. See also, Mid-America Painters, Inc., supra, 91-1 BCA ¶ 23,367, at 117,232 ("On the other hand, the Corps 'is not required to make extraordinary efforts to ferret out the single best situation which will absolutely minimize the [defaulting] party' damages. All that is required is that the [Corps] act reasonably and promptly given the circumstances.'" Ketchikan Pulp Co. v. United States, [20 Cl.Ct. 164 (1990)]). A search of the cases indicates that while such procedures are not required on reprocurement, see, Old Dominion Security, Inc., supra, 90-2 BCA ¶ 22,745, the Government normally uses sealed bid advertising to repurchase defaulted supplies and services.65 See, e.g., H & H Manufacturing Company v. United States, supra, 168 Ct.Cl. 873; Lester Brothers, Inc. v. United States, 151 Ct.Cl. 536 (1960); Star Food Processing, Inc., ASBCA Nos. 34161, 34163, 34164, 34165, 35544, 35545, 35546, 35547, 90-1 BCA ¶ 22,390; Fancy Industries, Inc., supra, 83-2 BCA ¶ 16,659, at 82,842; Erickson Enterprises, AGBCA 77-168, 79-1 BCA ¶ 13,628; Knepper Press, supra, Sl. op. at 4. See generally, Cibinic & Nash, pp. 776-77. Furthermore, it is not uncommon for the Government to solicit those firms which bid on the original procurement. See, e.g., American Marine Upholstery Company v. United States, 170 Ct.Cl. 564, 345 F,2d 577 (1965); Mid-America Painters, Inc., supra, 91-1 BCA ¶ 23,367. See generally, Cibinic and Nash, pp. 778-79. In fact, if the Government fails to make a reasonable effort at contacting the original bidders, the result may result in a denial or reduction of the excess cost assessment.66 See, e.g., Associated Cleaning, Inc., supra, 91-1 BCA ¶ 23,360; Old Dominion Security, Inc., supra, 90-2 BCA ¶ 22,745; Barrett Chemical Company, Inc., supra, 77-2 BCA ¶ 12,625. Although there is no requirement for the contracting officer to contact the second low bidder on the original procurement when he/she attempts to repurchase the defaulted supplies, see, e.g., Zoda v. United States, 148 Ct.Cl. 49, 180 F.Supp. 419 (1960); United Microwave Company, ASBCA No. 7947, 1963 BCA ¶ 3,701; Valley Forms, Inc., GPO BCA 1-84 (January 15, 1986), nonetheless such a mitigation step is considered presumptively reasonable, even if the reprocurement price itself seems unreasonable. See, e.g., Mid-America Painters, Inc., supra, 91-1 BCA ¶ 23,367 (the Government acted reasonably in taking the second low bid in the original solicitation despite the fact that the reprocurement was 174 percent above the original contract, because that price was well below the next bidder's price on the original procurement and was 1/3 of the price offered by bidders on the high end of the scale for the bids received); American Photographic Industries, Inc., supra, 90-1 BCA ¶ 22,491 (the Government failed to mitigate damages because it did not contact the second low bidder for the original contract). See also,Business Forms Service, Inc., supra, Sl. op. at 9; ATC Decal Company, supra, Sl. op. at 8-9; Technical Publishing Services, Inc., supra, Sl. op. at 6 (negotiation with the lowest bidder from the original solicitation). But see, Marine Engine Specialties Corporation, ASBCA No. 20521, 76-1 BCA ¶ 11,891 (the Government failed to mitigate its excess costs by awarding the reprocurement contract to the second low bidder on the original solicitation without making an effort to contract three other contractors who had submitted offers on the defaulted contract, where the repurchase unit price was 25 percent greater than that of the original contract). Looking at the record in this case, the Board finds only the barest evidence concerning the mechanics of the reprocurement. In that regard, the record merely consists of: (1) a copy of the repurchase solicitation (R4 File, Tab P); (2) a copy of the reprocurement purchase order (R4 File, Tab Q); (3) a copy of the Respondent's letter informing the Appellant of the reprocurement and the amount of excess costs that would be deducted from its account (R4 File, Tab O); and (4) the Contracting Officer's testimony that the Respondent followed its customary formal advertising procedures and awarded the repurchase contract to Pensacola as the lowest bidder on the reprocurement (Tr. 244). Unlike the evidence on the original solicitation, copies of the repurchase bid list and abstract, and the winning contractor's bid, are missing from the reprocurement record. See, R4 File, Tabs A and C. Similarly, there is no testimony concerning the number of bidders who responded to the repurchase solicitation and the amount of their bids. Consequently, the record in this case raises more questions than it answers about the repurchase. Thus, for example, although we know that Pensacola was also a bidder on the original contract, the record does not tell us how many of the other 13 bidders in the initial group either received a copy of the repurchase solicitation or were contacted by the Respondent during the reprocurement process. We also know that Harmony, with an offer of $28,450.00, was the second lowest bidder on the original contract, but there is nothing to tell us if the Respondent tried to contact this company for the purposes of the reprocurement.67 See, e.g., Mid-America Painters, Inc., supra, 91-1 BCA ¶ 23,367; American Photographic Industries, Inc., supra, 90-1 BCA ¶ 22,491; Sequal, Inc., supra, 88-1 BCA ¶ 20,382. In addition, there is no information concerning the number of contractors besides Pensacola-new or old-who submitted repurchase offers, or if Pensacola was the only bidder. Assuming that Pensacola was just one of several reprocurement bidders, the record is devoid of any evidence concerning the range of the offers; i.e., if Pensacola submitted the lowest bid, what was the highest?68 None of the answers to these questions will be found in the record. The Board has no doubt that the Contracting Officer, by choosing the sealed bid method to reprocure the defaulted contract, was making a good faith attempt to mitigate excess costs by trying to maximize competition. But "good faith" is not the test. As indicated previously, the test for measuring the adequacy of a repurchase solicitation is whether "a sufficient number of potential contractors are contacted in the reprocurement solicitation to assure competitive prices . . .". Century Tool Company, supra, 78-1 BCA ¶ 13,050, at 63,735. As a rule, the use of formal advertising could be expected to result in enough competition to be considered a reasonable method of reprocurement. However, there is not enough evidence in the record to suggest that was the case here. Basically, the Respondent's problem in this case is that the record concerning the mechanics of the reprocurement is incomplete. Thus, on the evidence before it, the Board cannot say on this record that "it is reasonable to believe that further solicitation of other firms would not have resulted in lower prices and therefore would have been unnecessary." Cf., Technical Publishing Services, Inc., supra, Sl. op. p. 6; ATC Decal Company, supra, Sl. op. at 8-9. In the final analysis, GPO had the burden of showing that it selected a method of reprocurement which maximized competition. Given the state of this record, the Board finds that the Respondent failed to carry its burden of proof. Cf., Associated Cleaning, Inc., supra, 91-1 BCA ¶ 23,360; American Technology Resources, supra, 89-3 BCA ¶ 22,239. 4. The same lack of evidence which prevents the Board from saying that, on this record, the Government used the most efficient repurchase method under the circumstances, or acted reasonably to minimize the excess costs, also precludes a finding that Pensacola's reprocurement price was reasonable. As the final part of its trinity of proof regarding the mitigation of damages, the Government must establish that it obtained the lowest reasonable reprocurement price. See, e.g., Sequal, Inc., supra, 88-1 BCA ¶ 20,382; Fancy Industries, Inc., supra, 83-2 BCA ¶ 16,659. In fulfilling the obligation to secure the best price for the Government, a contracting officer must follow the same standard of reasonableness and prudence under the circumstances which he/she exercised in the timing and selecting of the method of reprocurement. Barrett Refining Corporation, supra, 91-1 BCA ¶ 23,566, at 118,145; Mid-America Painters, Inc., supra, 91-1 BCA ¶ 23,367, at 117,232. See also, William A. Hulett, supra, 93-1 BCA ¶ 25,389, at 126,459 ("A [Contracting Officer], in reprocuring, is acting on behalf of the original contractor and must, therefore, not unnecessarily do or not do things which result in an increased cost to the defaulted contractor."). The mere fact that there is a significant price increase in the reprocurement does not render it unreasonable in the face of Government due care and diligence. See, Boston Pneumatics, Inc., supra, 87-1 BCA ¶ 19,395, at 98,085 (citing, Churchill Chemical Corporation v. United States, supra, 221 Ct.Cl. 284, 602 F.2d 358). See also, Fancy Industries, Inc., supra, 83-2 BCA ¶ 16,659; Foster Refrigerator Corporation, supra, 89-2 BCA ¶ 21,591; Knepper Press, supra. However, in the absence of negotiations or some other explanation for the increase in the price of repurchased supplies, most appeals boards will reduce the amount of recoverable excess costs. See, e.g., Puroflow Corporation, supra, 93-3 BCA ¶ 26,191, at 130,393; Sequal, Inc., supra, 88-1 BCA ¶ 20,382, at 103,067; Solar Laboratories, Inc., supra, 76-2 BCA ¶ 12,115, at 58,196. As indicated above, in most situations the key to a finding that the reprocurement price is reasonable is a repurchase solicitation mechanism which draws a sufficient number of potential contractors to assure adequate price competition. Birken Manufacturing Company, supra, 90-2 BCA ¶ 22,845, at 114,717; Sequal, Inc., supra, 88-1 BCA ¶ 20,382, at 103,067; Century Tool Company, supra, 78-1 BCA ¶ 13,050, at 63,735. Although it has been said that "[competitive reprocurement] offers firm evidence that the price was reasonable, . . . .", Astro-Space Laboratories, Inc. v. United States, supra, 200 Ct.Cl. 282, 470 F.2d at 1018, the Board is unaware of any case which holds that mere formal advertising, without more, is reasonable per se. Indeed, the law is clear that the mere selection of the low bid, either on a reprocurement or the original contract, in and of itself, does not establish a reasonable price for the purposes of the mitigation rule. Marine Engine Specialties Corporation, supra, 76-1 BCA ¶ 11,891. Thus, as one appeals board has stated: As for a reasonable price, a [contracting officer] cannot "blindly accept" a reprocurement contractor's price and be said to have acted in a reasonable and prudent manner. [Citing, Wise Instrumentation and Control, Inc., supra, 75-2 BCA ¶ 11,478.] B & M Construction, Inc., supra, 93-1 BCA ¶ 25,431, at 126,669 (the appeals board rejected the contracting officer's calculations of excess costs because he used the reprocurement contractor's prices as the starting point for calculating excess costs without any determination as to reasonableness). Similarly, there can be no reasonable repurchase price which does not take into account work already performed by the defaulted contractor that benefits a reprocurement contractor to some extent, and gives credit to the defaulted contractor by subtracting the price of that work from the calculation of excess costs.69 William A. Hulett, supra, 93-1 BCA ¶ 25,389, at 126,459-60. The Board has already found that the evidence of competition in this case is weak. Furthermore, the Contracting Officer's own testimony tells us that he awarded the reprocurement contract to Pensacola simply on the basis of its low bid. Tr. 244. There is no evidence of any additional inquiry on his part, even though Pensacola's price for the reprocurement contract ($32,840.61), while lower than its initial offer, was almost 27 percent higher than Appellant's winning bid on the original contract ($25,938.00), and 14 percent higher than the second low bidder's-Harmony-offer on the original contract ($28,450.00) (R4 File, Tabs A and Q). Cf., Valley Forms, Inc., supra, Sl. op. at 12. The failure to make such an inquiry, standing alone, would be enough to warrant rejection of the Respondent's excess cost assessment in this case. B & M Construction, Inc., supra, 93-1 BCA ¶ 25,431; Marine Engine Specialties Corporation, supra, 76-1 BCA ¶ 11,891; Wise Instrumentation and Control, Inc., supra, 75-2 BCA ¶ 11,478. Thus, on the record before it, the Board cannot say that the Respondent obtained the lowest reasonable repurchase price. Sequal, Inc., supra, 88-1 BCA ¶ 20,382; Fancy Industries, Inc., supra, 83-2 BCA ¶ 16,659. Accordingly, the Board finds that the Respondent failed to carry its burden of proof of showing that its excess reprocurement cost assessment was correct, cf., The Flooring Company, supra, 89-3 BCA ¶ 22,167, at 111,548, or that it mitigated its damages in this case. Puroflow Corporation, supra, 93-3 BCA ¶ 26,191, at 130,393; B & M Construction, Inc., supra, 93-1 BCA ¶ 25,431, at 126,669. 5. The Respondent has failed to prove that final payment was made to Pensacola so that the excess costs assessment against the Appellant is based upon liability for a sum certain. The last element in the Government's burden of proof, it must demonstrate that the repurchased work has been completed, and final payment made to the reprocurement contractor so that the excess costs assessment is based upon liability for a sum certain. Whitlock Corporation v. United States, supra, 141 Ct.Cl. 758, 159 F.Supp. 602 (1958), cert. denied, 358 U.S. 815 (1958). See also, e.g., John L. Hartsoe, supra, 93-2 BCA ¶ 25,614; Star Food Processing, Inc., supra, 90-1 BCA ¶ 22,390; Lafayette Coal Company, ASBCA Nos. 32174, 33311, 87-3 BCA ¶ 20,116; Fancy Industries, Inc., supra, 83-2 BCA ¶ 16,659; Hunt's Janitor Service, ASBCA No. 27719, 83-1 BCA ¶ 16,455. See generally, Cibinic and Nash, p. 790. Where the Government fails to offer evidence that a reprocurement contract was awarded, performed, or paid for, the assessment of excess costs against a defaulted contractor will be denied.70 See, e.g., Patty Armfield, AGBCA No. 91-185-1, 93-1 BCA ¶ 25,235; Pyramid Packing, Inc., AGBCA No. 86-128-1, 92-2 BCA ¶ 24,831; Scalf Engineering Co. and Pike County Construction Co., A Joint Venture, supra, 89-3 BCA ¶ 21,950. The evidentiary standard for this criterion, as described in Scalf Engineering Co. and Pike County Construction Co., A Joint Venture, is as follows: . . . [W]here the Government asserts excess reprocurement costs, it must demonstrate that the procurement action is completed, and the reprocurement contractor paid. [Citations omitted.] . . . Based on an extensive review of the evidence, we are unable to conclude that the Government has met these requirements. Specifically, it has failed to show that it actually made payment to the reprocurement contractor of the excess costs it now seeks to assess against appellant. In both the contracting officer's final decision, and the attached memorandum detailing OSMRE's excess costs, there is no evidence that such costs were finally paid, only that they are referred to in various documents as "incurred" (AF-1, Sec. III.M; Sec. X). Nowhere in Part II of the appeal file which contains the documents pertaining to the reprocurement contract with Fleetwood Johnson, is there any evidence which demonstrates that OSMRE made payment for the reprocurement work. There is no certified payment voucher, or other documentation which establishes that OSMRE actually made payment for the amounts it claims to have incurred on reprocurement. Without such evidence the Government's counterclaim lacks merit. Essential facts upon which its excess costs claim must be based are not in evidence. For these reasons, the Government's counterclaim for excess reprocurement costs is denied. Id., at 110,425. [Emphasis added.] A GPO contracting officer's administrative responsibilities in a situation where excess reprocurement costs are to be assessed against a defaulted contractor, are outlined in the Respondent's printing procurement regulation; i.e., he/she must: . . . (i) advise the Financial Management Service, Voucher Examination Branch (Stop FMCE) that such a repurchase has been made; (ii) provide the jacket number, the purchase order number and contractor's name for both the terminated and new contracts; and, (iii) request that excess costs be computed and the Contracting Officer advised. When advised by the Voucher Examination Branch, the Contracting Officer shall make a written demand (with a copy to the Voucher Examination Branch) on the defaulted contractor for the total amount of such excess including increases or decreases in other costs such as transportation and discounts. If the contractor fails to make payment, the Voucher Examination Branch shall take appropriate action to collect the amount due. PPR, Chap. XIV, Sec. 1, ¶ 3.f.(3). Furthermore, the "Payments on Purchase Order" clause in GPO Contract Terms, which is also incorporated by reference in Pensacola's repurchase contract (R4 File, Tab P), provides, in pertinent part, as follows: (a) Payment will be made to the contractor upon submission of a proper voucher (Standard Form 1034, Public Voucher for Purchases and Services Other than Personal), in accordance with GPO Form 199, "Billing Instructions." Vouchers should be mailed to the U.S. Government Printing Office, Examination and Certification-Stop: FMCE, Washington, DC 20401. (1) Any of the forms listed below, properly filled out, signed, and dated will be accepted as evidence of shipment: . . . [List of forms omitted.] (2) The following forms, filled out, signed, and dated will be accepted as evidence of delivery: . . . [List of forms omitted.] (3) Evidence of return of plates, patterns, negatives, excess stock, and other articles supplied by GPO shall be in the form of delivery receipts, signed by a representative of the Government. U.S. Postal Service receipts, Government bill of lading memorandum copies, or copies of commercial carrier airway bills or freight bills will be acceptable as proof of shipment. (4) One complete copy of the specified product (except classified documents). (5) A copy of the print order or purchase order as applicable. (b) Checks tendered by GPO in payment of any invoice submitted by the contractor, whether equal to or less than the amount invoiced, are tendered as final payment. Acceptance of payment of any check so tendered shall operate as a bar to the assertion of any exceptions by the contractor to the amount paid by GPO unless the contractor notifies the Contracting Officer in writing within 60 calendar days of the date of such check. Such notice shall specify the exceptions taken to the sum tendered, and the reasons therefor. See, GPO Contract Terms, Contract Clauses, ¶ 24. Cf., B. P. Printing and Office Supplies, supra, Sl. op. at 26-27. There is no doubt about the reprocurement contract being completed-a copy of Pensacola's National Survey is in the record as an Appellant's exhibit (App. Exh. No. 17). Cf., Timsco, Inc., supra, Sl. op. at 12 (contracting officer testified as Appellant's witness). On the other hand, the record in this case is a virtual desert when it comes to evidence of GPO's final payment to Pensacola. Of the repurchase documentation required by the regulations and GPO Contract Terms, only the Contracting Officer's written notice to the Appellant of the assessment of excess costs and the reprocurement purchase order are in evidence (R4 File, Tabs O and Q). None of the other necessary financial documentation is in the record, nor was there testimony on this issue at the hearing. Cf., Timsco, Inc., supra, Sl. op. at 12 (proof of payment of excess costs found in the testimony of the contracting officer that he certified the reprocurement contractor's invoice and that GPO paid the bill, and in supporting documentary evidence; e.g., a copy of the purchase order that was forwarded to the disbursing office for payment). Specifically, the Respondent has not shown the Board: (1) any required backup memoranda which the Contracting Officer may have sent GPO's Voucher Examination Branch; (2) a copy of Pensacola's payment voucher or invoice for the reprocured work; and/or (3) a copy of the canceled check by which GPO paid Pensacola. Although it is reasonable for the Board to assume that the Government probably did make final payment to Pensacola on completion of the reprocurement contract, it cannot substitute that presumption for the hard evidence which the Government was required to produce in this litigation. Applying the law to this case, in the absence of Pensacola's payment voucher or invoice and/or the Respondent's canceled check, or such other evidence which would establish that payment was actually made to Pensacola in the amount claimed to have been incurred on repurchase, there is no merit to GPO's claim for excess costs because essential facts upon which the claim must be based are not in evidence. Scalf Engineering Co. and Pike County Construction Co., A Joint Venture, supra, at 110,425. Accordingly, the Board finds that the Respondent has not proved that final payment made to the reprocurement contractor so that the excess costs assessment is based upon liability for a sum certain. Patty Armfield, supra, 93-1 BCA ¶ 25,235; Pyramid Packing, Inc., supra, 92-2 BCA ¶ 24,831; Scalf Engineering Co. and Pike County Construction Co., A Joint Venture, supra, 89-3 BCA ¶ 21,950. Since the Respondent was obligated to provide evidence in support of each element of its claim for excess reprocurement costs, Rhocon Constructors, supra, 91-1 BCA ¶ 23,308, the only question left to decide in light of the Respondent's failure to prove its case is whether the Board should reduce the claim or deny it altogether. As previously indicated, the various forums are split on that issue. See, e.g., Associated Cleaning, Inc., supra, 91-1 BCA ¶ 23,360 (reduce recovery); Birken Manufacturing Company, supra, 90-2 BCA ¶ 22,845 (reduce recovery); Action Group II, Inc., supra, 87-1 BCA ¶ 19,375 (reduce recovery); Pyramid Packing, Inc., supra, 92-2 BCA ¶ 24,831 (deny recovery); Rhocon Constructors, supra, 91-1 BCA ¶ 23,308 (deny recovery); Scalf Engineering Co. and Pike County Construction Co., A Joint Venture, supra, 89-3 BCA ¶ 21,950 (deny recovery). The Board has never expressly taken a firm position on the matter, but in at least one case it has implied that it would reduce excess costs if the record provides a fair basis for recalculating them, rather than eliminate recovery of such costs entirely.71 Valley Forms, Inc. supra, Sl. op. at 13. Generally, excess reprocurement costs are figured on the basis of the reasonable reprocurement price less the original contract price. See, The Flooring Company, supra, 89-3 BCA ¶ 22,167, at 111,548 (citing, Cascade Pacific International v. United States, supra, 773 F.2d 187. Where, as here, there is not enough evidence to determine if the winning reprocurement bid was reasonable, the most common method used for recalculating excess costs is simply to take the difference between the original contract price and the second low bid on the original contract. See, e.g., Mid-America Painters, Inc., supra, 91-1 BCA ¶ 23,367; Birken Manufacturing Company, supra, 90-2 BCA ¶ 22,845; Sequal, Inc., supra, 88-1 BCA ¶ 20,382; Zero-Temp, Inc., ASBCA No. 215, 78-1 BCA ¶ 13,212; Environmental Tectonics Corporation, supra, 78-1 BCA ¶ 12,986; Solar Laboratories, Inc., supra, 76-2 BCA ¶ 12,115; Marine Engine Specialties Corp., supra, 76-2 BCA ¶ 12,034. See generally, Cibinic and Nash, pp. 783-84. Under this formula, the Respondent would be entitled to recover excess costs in the amount of $2,512.00-the difference between the Appellant's winning bid ($25,938.00), and Harmony's second low offer on the original contract ($28,450.00) (R4 File, Tabs A). However, the problem for the Board in this case stems not from the Respondent's failure to demonstrate adequate competition on the reprocurement and thus prove the reasonableness of the repurchase price, or the lack of evidence concerning payment of a sum certain to Pensacola. Rather, the difficulty comes from the fact that there is nothing at all in the record showing a final payment to Pensacola. The Board has said that it will not fill a gap in the evidence with its own assumptions, no matter how reasonable or sensible they may be. Therefore, in this case, based on the evidence of record, the Respondent's claim for excess reprocurement is denied in its entirety. B & M Construction, Inc., supra, 93-1 BCA ¶ 25,431; Pyramid Packing, Inc., supra, 92-2 BCA ¶ 24,831; Associated Cleaning, Inc., supra, 91-1 BCA ¶ 23,360; Rhocon Constructors, supra, 91-1 BCA ¶ 23,308; Scalf Engineering Co. and Pike County Construction Co., A Joint Venture, supra, 89-3 BCA ¶ 21,950; AGH Industries, supra, 89-2 BCA ¶ 21,637. Although the Appellant has prevailed on the excess reprocurement cost issue, the Board wishes to make clear that it has little sympathy for a contractor who repudiates a contract and abandons performance. Nevertheless, the Board has found that the Respondent has failed to prove that the reprocurement method selected maximized competition, that the reprocurement contract price was reasonable under the circumstances, and that final payment had been made to Pensacola. The Board concludes that these factors alone are sufficient to support denial of the Government's claim for excess costs. Cf., B & M Construction, Inc., supra, 93-1 BCA ¶ 25,431, at 126,669. Finally, it may seem anomalous that the Appellant is allowed to escape the consequences of its breach of contract in this case. However, the law appears to be well-established, and the Board has a duty to apply it. Cf., C. Howdy Smith, supra, 92-2 BCA ¶ 24,884, at 124,107. ORDER Considering the record as a whole, the Board finds and concludes that the Respondent has proved that the Appellant, both orally and in writing, evinced a "positive, definite, unconditional, and unequivocal manifestation of intent" not to reprint the National Survey, as instructed by the Contracting Officer, and thus abandoned or repudiated the contract. Accordingly, the Contracting Officer's decision to terminate the contract for default was justified and not in error. THEREFORE, the decision of the Contracting officer is AFFIRMED, and the appeal is DENIED. On the issue of excess costs, the Respondent has demonstrated that the reprocurement contract was substantially the same as the original contract, and that it acted within a reasonable time following default to repurchase the supplies. However, the Respondent failed to prove the reasonableness of the method chosen to repurchase the contract and the reprocurement price, nor did it show that final payment was made to the reprocurement contractor. Accordingly, on this record the Respondent has not established its entitlement to excess reprocurement costs. THEREFORE, the Contractor's appeal of the Respondent's decision assessing excess costs is GRANTED, and the case is REMANDED to the Contracting Officer with instructions to refund the amount of such excess costs which were deducted from the Appellant's account.72 Cf., Banta Company, supra, Sl. op. at 62; RD Printing Associates, Inc., supra, Sl. op. at 37. It is so Ordered. March 28, 1994 STUART M. FOSS Administrative Judge _______________ 1 The Contracting Officer's appeal file, assembled pursuant to Rule 4 of the Board's Rules of Practice and Procedure, was delivered to the Board on July 31, 1989. GPO Instruction 110.12, Subject: Board of Contract Appeals Rules of Practice and Procedure, dated September 17, 1984 (Board Rules), Rule 4. It will be referred to hereinafter as R4 File, with an appropriate Tab letter also indicated. As originally submitted, the R4 File consisted of fifteen (15) documents identified as Tab A through Tab O. 2 The court reporter's transcript shall be referred to hereinafter as "Tr." with an appropriate page number thereafter. Since the Appellant's responsibility for excess reprocurement costs was at issue, at the hearing on April 28, 1992, the Board directed the Respondent to furnish both the contract specifications and the purchase order for the reprocurement (Tr. 187). The specifications and the purchase order were added to the R4 File as Tabs P and Q, respectively (Tr. 189, 237). As a technical matter, after the close of the hearing on May 6, 1992, the Appellant made a motion to conform the pleadings to the evidence. See, Appellant's Motion for the Pleadings to Conform to the Evidence, dated May 15, 1992. The Appellant's motion is GRANTED. Board Rules, Rule 7(b). 3 The Respondent's brief will be referred to hereinafter as "R. Brf.", with an appropriate page citation thereafter. The Appellant's brief will be cited as "App. Brf.," with an appropriate page number thereafter. Furthermore, at the hearing in this appeal both parties introduced documentary evidence. The Appellant's exhibits will be referred to hereinafter as "App. Exh. No.," with an appropriate number thereafter. The Respondent's exhibits will be referred to hereinafter as "R. Exh. No.," with an appropriate number thereafter. 4 When the Board ordered a hearing in this case, two appeals were pending involving the parties-the instant matter and another default termination dispute which had been docketed by the Board as GPO BCA 17-89. Both were scheduled for trial on May 6, 1992. However, at the hearing the parties settled GPO BCA 17-89, and that appeal has been dismissed (Tr. 251-52). See, Sterling Printing, Inc., Order Dismissing Appeal, dated June 30, 1992. 5 The National Survey is referred to as the "National Hunting and Fishing Survey National Report" in both the Invitation for Bids, and Purchase Order 81288, which awarded the contract to the Appellant (R4 File, Tabs B and D). 6 Perfect-binding is a variation of side-stitching which is widely used on paperback books. However, instead of being stitched, the pages of a perfect bound book are held together by a flexible adhesive. Under this process, after the signatures are collated, the backs are ground off, leaving a rough surface. The adhesive is applied and a special lining is put over the backbone, the cover is glued into place. If done correctly, the adhesive should keep its strength and resiliency for a long period of time. See, Pocket Pal, International Paper Company, Memphis, Tennessee (14th ed., 1989), p. 152. See also, Tr. 174-75. 7 GPO's Quality Assurance Through Attributes Program, GPO Publication 310.1, effective May 1979 (revised September 1986) (QATAP), was incorporated in the contract by reference (R4 File, Tab B, p. 1). 8 These departmental quality copies shall be referred to hereinafter as "blue label" samples or copies. 9 In addition to these specifications, the contract was also governed by applicable articles of GPO Contract Terms, GPO Publication 310.2, effective December 1, 1987 (Rev. 9-88) (GPO Contract Terms) (R4 File, Tab B, p. 1). 10 As originally specified, the duotones were to be 90 percent black and 10 percent brown. Tr. 108-09. The change requested by Interior reversed that color combination; i.e., to 90 percent brown and 10 percent black. Tr. 109. See, App. Exh. No. 3. 11 It is undisputed that prior to distribution of the complete order, Interior asked Don Kinsley, GPO's Contract Administrator, to secure 3 advance copies of the book from the Contractor for the customer-agency's review and approval (R4 File, Tab E). Tr. 32-35, 52, 62, 110, 113, 143. Interior wanted to assure itself before the National Survey was mailed that the publication conformed to the specifications in terms of duotones, color match, paper, type of binding and format. Tr. 35, 52, 113, 117, 143. In response to the customer-agency's request, the Contractor took 3 books from its production run, and sent them, through Kinsley, to Interior. Tr. 62, 65. Apparently, the Contractor had products rejected by GPO's central offices in the past, and it, too, wanted to be sure that the National Survey conformed to the contract. Tr. 113-14. When Interior made its request, the remainder of the job had not been bound by the Appellant's binding subcontractor-Paperfold Binderies, Inc (Paperfold). Tr. 113-14. It is uncontested that once Interior had reviewed the 3 samples, it told Kinsley that the books were "O.K.", and he conveyed that message to the Appellant with instructions to complete the job. Tr. 33, 62-63, 115. See, App. Exh. No. 5. However, Kinsley did not alert the Contractor to any problems with the paper or binding at this time because those attributes were not inspected until distribution was completed and Interior had filed its complaint with the Respondent. Tr. 34. After receiving Kinsley's message, the Appellant sent the remaining books to the bindery, where they were bound and then returned to the Appellant for distribution. Tr. 115, 117, 119. In that regard, 100 copies of the bound books were sent to Interior first. Tr. 115, 117. It is clear from the record that the Contractor did not ask its subcontractor to test the binding of the books before returning them for mailing. Tr. 194. 12 The record indicates that after Interior's complaint was received, the Contracting Officer personally conducted flex tests on approximately 6 of the Appellant's books at the customer-agency's warehouse, and in each instance the pages "popped out." Tr. 50. 13 At the hearing, the issue of whether or not the Appellant's paper stock conformed to specifications was extensively litigated. The Appellant called John Lind, Senior Research Chemist at the Graphics Art Technical Foundation (GATF) in Pittsburgh, Pennsylvania, who testified that he tested the text paper of the National Survey at the request of the Contractor, and that it met the standards of JCP A260 for opacity, gloss and color. Tr. 17-18, 24, 30. See, GATF Report, App. Exh. No. 12. However, he was unable to test the cover stock because it was printed or soiled. Id. Similarly, Lois McDaniel, the Appellant's President, testified that she asked her supplier, Beekman Paper Company (Beekman), to test the paper and received a report which showed that the paper stock substantially complied with the specifications. Tr. 131, 133-34. See, Beekman Report, App. Exh. No. 9. The Respondent, on the other hand, called Sylvia Subt, Chief of the Paper Division, who testified that the text paper failed to meet the requirements of the JCP A260 standard for 80-pound paper in three respects-low opacity, a high gloss and color match. Tr. 205. See, GPO Paper Report, R4 File, Tab I. Similarly, she stated the cover paper was tested against the JCP L60 standard and did not measure up to the specifications because the stock had a high basis weight, and the gloss was low on one side. Tr. 206. Overall, she concluded that the paper stock supplied by Beekman did not meet the contract specifications. Tr. 206, 212, 224. Indeed, Ms. Subt stated that Beekman's own tests showed that the paper supplied was substandard; e.g., the specifications required a minimum opacity reading of 95, but the paper stock used for the contract only measured 92.6 in GPO's laboratory and 93 in Beekman's. Tr. 207, 210. See, GPO Paper Report, R4 File, Tab I; Beekman Report, App. Exh. No. 9. Moreover, she believed that the GPO and GATF got different test results because the same methodologies and equipment measurements were not used; e.g., the nanometer setting for GPO's spectrodensitometer was 572 while GATF's was 540, and the "black body" calibration on their instruments was .5 and .6, respectively. Tr. 213, 214-16, 226. 14 QATAP defines "perfect-bound book durability" as "the durability of the adhesive binding under tests that simulate normal usage of the book during its expected useful life." See, QATAP, F-5. Perfect-Bound Book Durability, p. 34. In testing the durability of the adhesive binding, 4 tests are to be used: (a) the "subway test;" (b) the "page pull test;" (c) the "page flex test;" and (d) the "adhesive temperature stability test." Id. Under the "subway test," the book is opened completely and the covers are brought back-to-back. Id. In the absence of a machine such as a flex tester, this method, which resembles newspaper reading in a crowded subway, is the standard industry test for measuring the sufficiency of binding strength. Tr. 171-73. The "page pull test" measures the pounds of pull per inch of backbone required separate the page from the adhesive line. See, QATAP, F-5. Perfect-Bound Book Durability, p. 34. The "page flex test" uses a machine to continuously open and close a book at a particular page (at a minimum of three places in a book) with 2.5 pounds of pull, until the page separates from the adhesive line or 126 flexes are reached. Id. Tr. 170-72, 181, 184. As described by Charles E. Enterline, Superintendent of the Respondent's Binding Division, who was called as an expert witness during the hearing: "[T]he book is put in a bird wing [gull wing] position on the machine, . . . a clip that is attached to the top part of the book and the machine is started and the book moves back and forth . . . and at some point, when the binding becomes stressed enough, the page may come out or it may not come out. If the binding is well done the page will stay in. I've seen pages stay in books for a thousand, two thousand flexes and then of course there are pages that come out of the book after maybe two or three flexes. The book comes apart, the page releases." Tr. 170-71. The "adhesive temperature test" merely tests the binding by one of the three other methods, after the book has been treated at certain temperatures for a specified number of hours. See, QATAP, F-5. Perfect-Bound Book Durability, p. 34. In no instance should an individual book be used for more than one of the tests. Id. 15 Unlike the paper stock issue, the Appellant has not questioned the Respondent's finding that the perfect-binding of the books it printed was poorly done. Indeed, at the hearing, Enterline applied the "subway test" to two of the Appellant's books, and in each instance the pages came out. Tr. 173, 181, 184. See, R. Exh. No. 1-F (this exhibit was randomly selected from a box of "blue label" samples ranging from R. Exh. Nos. 1-A to 1-P); App. Exh. No. 22 (which had been introduced by the Appellant as an example of its book in which all the pages were well-seated. Tr. 54-55.). On the other hand, when he performed the same test on a copy of the National Survey printed by the reprocurement contractor, Pensacola Engraving Company (Pensacola), Enterline found that although the pages loosened when the spine broke, they did not release from the book; in fact, he could hold the book by one page and suspend it above the witness table. Tr. 178-79, 180, 184. Similarly, even Lind testified that although he had only been asked to test the paper stock and not the binding, the pages of the books sent to him by the Appellant for testing pulled away from the spine easier than in other perfect-bound books he has examined. Tr. 26. Instead, the evidence introduced at the hearing on the binding durability issue tended to focus on the reasons for this defect and the ways to correct it. Thus, Enterline testified that his examination of the Contractor's books disclosed that no glue had been forced into the backbone-the key to adhesive binding process. Tr. 174-75. In his opinion, the problem had one of two causes: (a) the glue applicator drum on the binding machine was improperly set; or (b) the glue itself was not hot enough. Tr. 174-76. He also thought that an incorrect glue wheel setting was the most likely reason, and that if the operator had used the proper precautions and tested at least one book before running the rest through the binder the problem could have been avoided. Tr. 176. Like Enterline, Howard Harrison, the Superintendent of GPO's Contract Management Branch, believed that the main cause of the pages falling out was mechanical, but he ascribed the problem to an improper setting of the scoring blade on the binder; i.e., the blade did not cut deep enough to provide a sufficient surface to hold the glue. Tr. 90. The Appellant's President, McDaniel, was inclined to agree with Harrison's view of the cause of the defect. Tr. 147-48. In any event, she was certain it was not the glue itself. Tr. 129, 147. See, R4 File, Tab L; App. Exh. No. 10. As for repairing the binding defect, the witnesses mentioned several ways short of reprinting the book by which this could be accomplished, including trimming and regluing and stitching or stapling (in the binding process, the terms "stitches" and "staples" are synonymous). Tr. 90-92, 95-97, 141-42, 181-82. See, App. Exh. Nos. 20 and 21. 16 Although GPO's official notification is dated March 31, 1989, it is clear from the record that the Contractor was informed a few days earlier by telephone (R4 File, Tabs J and K). According to McDaniel, who was "aghast" when told that the job was being rejected, the Government's main concern with her product was that "the pages were falling out." Tr. 117-18. See also, R4 File, Tab K; App. Exh. No. 8 (the transcribed portion of a telephone conversation between McDaniel and Harrison on April 7, 1989, in which he stated that: ". . . [Interior] said [the] job must be reprinted because the pages were falling out. They didn't care about the paper . . . [and the] printed job is fine. They don't have no complaint on the printed job. It's that the pages are falling out. . . So that's where their problem is." Apparently, Harrison was conveying information which had been given to him by Bruce Scaggs, GPO's Chief of Staff. Tr. 71. The tape on which this conversation was recorded was introduced by the Government as R. Exh. No. 2). The record also discloses that when she was informed that the problem involved the perfect-binding, McDaniel contacted Ray Friend at Paperfold to ask about the adhesive they had used, and was told that it was only the best "hot metal" glue. Tr. 129, 147. See, R4 File, Tab L; App. Exh. No. 10. 17 See, note 11 supra. 18 On several occasions, McDaniel also told the Contracting Officer that she was going to raise the matter with her Congressman (R4 File, Tabs K and L). 19 Before coming to Washington, DC, for the meeting, McDaniel had asked her daughter, Katie, to telephone a number of recipients of the National Survey and ask if they had any problems with the book. Tr. 123-24. According to the hearing record, 6 agencies responded that their copies were fine, while 2 of them indicated that there were problems with the binding; i.e., the pages were separating from the book. Tr. 123-24, 186-88, 192. See also, R. Exh. No. 2. 20 According to McDaniel, this copy of the National Survey was prepared expressly for the purposes of the meeting to show how the pages could be held together. Tr. 122-23. App. Exh. No. 21. At the hearing, the Appellant introduced another copy of the book with the staples inside the cover. App. Exh. No. 20. This type of repair was made by the Appellant after the April 11, 1989, meeting in case GPO asked to see some other way of correcting the binding defect. Tr. 142. The Respondent did not make such a request, and hence, it never saw the book with the inside stapling prior to the hearing. Tr. 142. 21 At the hearing, the Contracting Officer also testified that the terms of the contract's "Disputes" clause required the Appellant to reprint the National Survey, as requested, and appeal his decision afterward. Tr. 49. See, GPO Contract Terms, Contract Clauses, ¶ 5(d). 22 Beekman Report, App. Exh. No. 9. 23 At the hearing, McDaniel testified that, at her request, two agencies-the South Carolina Wildlife and Marine Resources Department and the Alabama Department of Conservation and Natural Resources-had sent the Appellant copies of the National Survey which they had received. Tr. 124-25. See, App. Exh. Nos. 13 and 14. She also stated that the copies have been in continuous use by them since the publication was shipped in 1989. Tr. 127. 24 See, Printing Procurement Regulation, GPO Publication 305.3, dated September 1, 1988, Chap. I, Sec. 10, ¶ 4.b.(i) (PPR). 25 Although the Respondent's Printing Procurement Regulation provides that in a repurchase situation, the "requirements for advertising are not mandatory," it also states that ". . . the Contracting Officer should use sealed procedures except where negotiation is necessary." PPR, Chap. XIV, Sec. 1, ¶ 3.f.(2). In this case, the Contracting Officer followed the common practice in Government reprocurements and used the same method-sealed bidding-to reprocure the contract that was employed to award the contract initially (R4 File, Tabs B and P). Tr. 244. See, Fancy Industries, Inc., ASBCA No. 26578, 83-2 BCA ¶ 16,659, at 82,842. See also, John Cibinic, Jr. & Ralph C. Nash, Jr., Administration of Government Contracts 2d ed., (The George Washington University, 1986), p. 778 (hereinafter Cibinic and Nash). In any event, it is established that "[i]n reprocuring items on a defaulted contract, the contracting officer has very broad discretionary powers," Astro-Space Laboratories, Inc. v. United States, 200 Ct.Cl. 282, 308, 470 F.2d 1003, 1017 (1972), and the choice of which procurement method to use is one of them. Old Dominion Security, Inc., GSBCA No. 9126, 90-2 BCA ¶ 22,745, at 114,164; Columbia Loose Leaf Corporation, GSBCA Nos. 5805(5067)-REIN, 5806(5230)-REIN, 82-1 BCA ¶ 15,464, at 76,631 (a change in solicitation vehicles is not, in itself, sufficient reason to invalidate an agency's claim for excess reprocurement costs). It should be noted, however, that the repurchase solicitation was only "on the street" for 3 days (from April 18, 1989, to April 21, 1989), whereas 9 days had been allowed between the issuance of the original invitation for bids (December 20, 1988) and the bid opening date (December 29, 1988) (R4 File, Tabs B and Q). 26 Pensacola had also submitted a bid in response to the original solicitation (R4 File, Tab A). The Respondent received 13 bids at that time, and Pensacola's price quotation of $34,227.88 was seventh lowest (R4 File, Tab A). Apart from the Appellant, other contractor's submitting bids on the original contract which were lower than Pensacola's were: (a) Harmony Printing Company (Harmony)-$28,450.00 (second lowest); (b) Edison Lithography-$30,300.00 (third lowest); (c) Techna-Graphics, Inc.-$32,150..00 (fourth lowest); (d) Artisan Printing-$32,865.00 (fifth lowest); and (e) Baker-Webster Printing Company-$33,874.00 (sixth lowest) (R4 File, Tab A). There is nothing in the record to indicate how many of the original bidders either received a copy of the repurchase solicitation or were contacted by the Respondent during the reprocurement process. Furthermore, for some reason not explained in the record, Pensacola's reprocurement bid of $32,840.61 was $1,387.27 lower than its bid on the initial contract ($34,227.88). Finally, the Contracting Officer testified that GPO received one telegraphic bid to the resolicitation, but it is not clear whether that offer came from Pensacola or some other contractor. Tr. 244. 27 The Respondent's excess reprocurement cost figure-$5,976.77-is slightly in error. R. Brf., p. 12. The correct amount is $5,966.77 (the repurchase price-$32,840.61, minus $26,873.84, which equals the total of the original contract price-$26,008.84, and the contract modification price-$865.00). See, R4 File, Tabs D, G and Q. Also see, Report of Status Conference, dated April 23, 1992, p. 4. 28 At McDaniel's request, Harrison sent the Appellant a copy of Pensacola's National Survey, and it was introduced into evidence at the hearing. Tr. 80. See, App. Exh. No. 17. It seems clear that the request was honored as a matter of courtesy, since the Respondent was under no legal obligation to furnish the Contractor with a copy of the reprocured book. See, e.g., Boyd Tools, Inc., GSBCA No. 3469, 73-1 BCA ¶ 9,874, Betsy Ross Flag Company, GSBCA No. 2786, 69-1 BCA ¶ 7,692; Hardware Corporation, ASBCA No. 10201, 68-2 BCA ¶ 7,174. In that regard, the Armed Services Board of Contract Appeals has observed that it was: ". . . [unaware] of any case holding that in order to collect excess costs from a defaulting seller the buyer must turn over to the seller for inspection a representative sample of the repurchased items, or permit a joint inspection, so that the seller can satisfy himself that the repurchased items met specifications." Id., at 32,283. 29 That is, the duotones in the reprocured book were those in the original specifications, instead of the duotones as modified in the Appellant's contract. Tr. 109-10. See, note 10 supra. 30 The Contracting Officer for the repurchase, Jack Marken, GPO's Assistant Superintendent of Term Contracts, was unable to explain the reason for these differences. Tr. 238-40. 31 The reprocurement contract expressly states "This is a Repurchase," and changes the date on which the Government- furnished material would be available for pick-up (April 26, 1989), and the delivery due date (May 31, 1989) (R4 File, Tab P, pp. 1, 4 and 5). Tr. 238. However, the time allowed between material pick-up and complete delivery is essentially the same (36 days under Pensacola's contract, and 35 days under the Appellant's, before it was extended an additional five weeks-from February 10, 1989, to March 17, 1989). 32 This was the only substantive change in the reprocurement contract identified by Marken at the hearing. Tr. 238. It should be noted, however, that although the Appellant's contract did not contain a specification for a press sheet inspection, such an examination was performed, at the Contractor's request, by John Edridge, Assistant Manager of the Respondent's Regional Printing Procurement Office in Atlanta, Georgia. Tr. 111. 33 There were a few other language differences between the Appellant's contract and Pensacola's, but the Board regards them as either minor or insignificant; e.g., under the "Distribution" provisions, in addition to the furnished material and films (negatives), Pensacola had to ship one sample copy of the National Survey to Interior, Attention: T. Nebel (R4 File, Tab B, p. 4; R4 File, Tab P, p. 4). 34 As indicated previously, both parties filed posthearing briefs with the Board. See, note 3 supra. The Appellant's brief was filed with the Board on June 25, 1992. The Respondent submitted a brief to the Board on August 13, 1992. In addition, although Counsel for GPO waived oral argument at the close of the hearing, Counsel for the Appellant made an oral summation of the Contractor's position. Tr. 246-49. Neither party filed a reply brief. The Board's understanding of the positions of the parties is based on the Appellant's Complaint, dated August 31, 1989, the Respondent's Answer, dated October 2, 1989, the Prehearing Conference Report, dated April 10, 1990 (hereinafter PCR), the discussions at the status conference held on March 24, 1992, as summarized in the Report of Status Conference, dated April 23, 1992 (hereinafter RSC), the evidence presented at the hearing on April 26, 1992, and May 6, 1992, and the formal briefs filed by the parties. 35 At the hearing, Counsel for the Appellant, for the first time, advanced the argument that the primary reason for defaulting the contract was that Interior wanted a different looking book. Tr. 45. The Appellant's contention that the contract was really terminated for the convenience of the Government, and that the default termination was a "sham," is based on the scope of the changes made to the contract specifications when the publication was reprocured. Tr. 44-45. The Contractor's argument is, in effect, an allegation that the Respondent's decision to cancel the contract was made in bad faith so that Interior could make cosmetic changes to the National Survey. However, the Board has held on numerous occasions that because of the strong presumption that Government officials properly and honestly carry out their functions, an allegation of bad faith must be established by "well-nigh irrefragable" proof. See, e.g., Hurt's Printing Company, Inc., GPO BCA 27-92 (January 21, 1994), Sl. op. at 11, fn. 15; Shepard Printing, GPO BCA 23-92 (April 23, 1993), Sl. op. at 7-8, fn. 11 (hereinafter Shepard I); B. P. Printing and Office Supplies, GPO BCA 14-91 (August 10, 1992), Sl. op. at 16; Stephenson, Inc., GPO BCA 02-88 (December 19, 1991), Sl. op. at 55; The Standard Register Company, GPO BCA 4-86 (October 28, 1987); Sl. op. at 12-13. Also see, Karpak Data and Design, IBCA 2944 et al., 93-1 BCA ¶ 25,360; Local Contractors, Inc., ASBCA 37108, 92-1 BCA ¶ 24,491. The key to such evidence is that there must be a showing of a specific intent on the part of the Government to injure the contractor. Kalvar Corporation v. United States, 543 F.2d 1298, 1302 (Ct.Cl. 1976), cert. denied, 434 U.S. 830 (1977); Stephenson, Inc., supra, Sl. op. at 54. In the Board's view, no such "irrefragable" proof of the Respondent's bad faith exists in this record. Certainly, there is absolutely nothing in the record which would show that the employees of two separate Government entities-GPO and Interior-set out to harm the Appellant or that they acted in concert to achieve that specific result. Id., Sl. op. at 57. 36 See, note 11 supra. See also, App. Exh. No. 5. 37 In its brief, the Appellant mischaracterizes the reason for default as a "failure to follow specifications." App. Brf., p. 5. As indicated in the Notice of Termination, the contract was defaulted because of the Contractor's "refusal to correct the quality defects," and provide a conforming product, rather than simply failing to follow the specifications (R4 File, Tab N). 38 Both the Board and the Respondent have difficulty with the Appellant's concept of an "acceptable commercial product" in the context of this appeal. During the prehearing conference, the Board observed that Government standards do not necessarily equate to "commercial" standards. PCR, p. 10. Furthermore, the Respondent contends in its brief that arguments about commercial acceptability are not relevant here because this is a Government procurement. Res. Brf., p. 5, fn. 5. The Board agrees. 39 The Appellant also notes that there is no evidence that the Respondent ever tested Pensacola's publication to see if it met the paper and binding standards. App. Brf., p. 14. 40 The Board was created by the Public Printer in 1984. GPO Instruction 110.10C, Subject: Establishment of the Board of Contract Appeals, dated September 17, 1984 (hereinafter GPO Instruction 110.10C). Prior to that time, appeals from decisions of GPO Contracting Officers were considered by ad hoc panels of its predecessor, the GPO Contract Appeals Board (GPOCAB). The Board has consistently taken the position that it is a different entity from the GPOCAB. See, e.g., Shepard Printing, GPO BCA 37-92 (January 28, 1994), Sl. op. at 11, fn. 10 (hereinafter Shepard II); The Wessel Company, Inc., supra, Sl. op. at 25, fn. 25. Nonetheless, it has also been the Board's policy to follow the holdings of the ad hoc panels where applicable and appropriate, but the Board differentiates between its decisions and the opinions of those panels by citing the latter as GPOCAB. See, e.g., Stephenson, Inc., GPO BCA 02-88 (December 20, 1991), Sl. op. at 18, fn. 20; Chavis and Chavis Printing, GPO BCA 20-90 (February 6, 1991), Sl. op. at 9, fn. 9. 41 The record on which the Board's decision is based consists of: (1) the Notice of Appeal, dated July 10, 1989; (2) the R4 File (Tabs A-Q); (3) the Complaint, dated August 31, 1989; (4) the Respondent's Answer, dated October 2, 1989; (5) the Prehearing Conference Report, dated April 10, 1990; (6) the Report of Status Conference, dated April 23, 1992(hereinafter RSC); (7) the transcript of the hearing held on April 26, 1992, and May 6, 1992, respectively; (8) the brief filed by the Appellant on June 25, 1992; and (9) the brief submitted by the Respondent on August 13, 1992. 42 Although GPO claimed in Shepard I that the contractor's reprint of the product amounted to an "anticipatory repudiation" of the contract, the Board was unable to say, on the facts of that case, that the appellant's words or conduct manifested " . . . a positive, unconditional, and unequivocal declaration of fixed purpose not to perform the contract in any event or at any time." See, Shepard I, supra, Sl. op. at 9, fn. 12 (citing, Fairfield Scientific Corporation, ASBCA No. 21151, 78-1 BCA ¶ 13,082, at 63,908, mot. for reconsid. denied, 78-2 BCA ¶ 13,429, aff'd, 228 Ct.Cl. 264, 655. [Emphasis added.] See also, Beeston, Inc., ASBCA No. 38969, 91-3 BCA ¶ 24,241. In that regard, it was not clear from the appeal record whether the contractor's refusal to reprint the publication was based on an erroneously belief that customer-agency now wanted a higher quality book than originally specified, or that it was unable to deliver the reprint within the timeframe demanded by GPO; thus there was nothing to show that the appellant was intent on "walking away from the job." Cf., M.V.I. Precision Machining, Ltd., ASBCA No. 37393, 91-2 BCA ¶ 23,898; Kahaluu Construction Company, Inc., ASBCA No. 31187, 89-1 BCA ¶ 21,308. 43 Default terminations-as a species of forfeiture-are strictly construed. See, D. Joseph DeVito v. United States, 188 Ct.Cl. 979, 413 F.2d 1147, 1153 (1969). See also, Murphy, et al. v. United States, 164 Ct.Cl. 332 (1964); J. D. Hedin Construction Co. v. United States, 187 Ct.Cl. 45, 408 F.2d 424 (1969). Indeed, in the words of one contract appeals board, in exercising its right to terminate for default, the Government must "turn square corners in order to prevail." Delfour, Inc., VABCA Nos. 2049, 2215, 2539, 2540, 89-1 BCA ¶ 21,394, at 107,855 (citing, K & M Construction, ENG BCA Nos. 2998, et al., 73-2 BCA ¶ 10,034). The board was quick to add, however, that this did not mean " . . . that the Government [needed to] display clairvoyance [or] the patience of Job in the management of its contracts." Id. 44 On October 29, 1992, certain provisions of the Federal Courts Administration Act of 1992, Pub. L. No. 102-572, 106 Stat. 4506 (1992), became effective. Pursuant to Title IX, the United States Claims Court was renamed the United States Court of Federal Claims. 45 The standard "Default" clause identifies several grounds which will excuse defaulting conduct by contractors, including acts of the Government in either its sovereign or contractual capacity. See, GPO Contract Terms, Contract Clauses, ¶ 20(c). While the excusable events listed in the "Default" clause, all of which must be beyond the control and without the fault or negligence of the contractor, are set forth in the context of relieving the contractor from responsibility for excess reprocurement costs, it is well- settled that the same occurrences extend the time available for performance and make termination prior to that time improper. See, e.g., FKC Engineering Company, ASBCA No. 14856, 70-1 BCA ¶ 8,312. 46 In any event, the Board rejects this argument of the Contractor as contrary to law and regulation. See, Graphic Litho, GPO BCA 21-84 (February 4, 1985), Sl. op. at 19-21. The Respondent's Printing Procurement Regulation, expressly states that the only person authorized to make final determinations on whether products submitted by a contractor conform to contract specifications is the Contracting Officer. PPR, Chap. XIII, Sec. 1, ¶ 4.f. See, Hurt's Printing Company, Inc., supra, Sl. op. at 10, fn. 13. Indeed, the general view is that the Contracting Officer's discretion to decide whether a product is conforming or nonconforming is inherent in his/her administration of the contract. See, Vogard Printing Corporation, GPOCAB 7-84 (January 7, 1986), Sl. op. at 6 (citing, Thomas W. Yoder Company, Inc., VACAB No. 997, 74-1 BCA ¶ 10,424). 47 Throughout these proceedings, the Appellant has maintained that the paper stock it used to print the National Survey, in particular, fully met the contract specifications. See, note 13 supra. Based on the testimony at the hearing, as well as the documentary evidence in the record, see, R4 File, Tab I (GPO Paper Report); App. Exh. Nos. 9 (Beekman Report) and 12 (GATF Report), the Board is convinced that the variations in the Respondent's paper from the quality standards established in the contract, were marginal. Consequently, the Board also believes that if the only problem with the book had been the minor deviations in the paper stock from the specifications, the Contracting Officer would probably have accepted the books at a discount. Cf., Graphic Litho, supra, Sl. op. at 21-22; Dependable Printing, Inc., supra, Sl. op. at 26. The reprint issue is a product of, and only concerns the binding defect. 48 The "substantial compliance" or "substantial conformity" rule is a limited exception, created by law, to the doctrine which entitles the Government to strict compliance with its specifications. See, Hurt's Printing Company, Inc., supra, Sl. op. at 17; Shepard I, supra, Sl. Op. at 19-20. The rule, which is confined to situations where a contractor has timely shipped nonconforming goods which deviate from the specifications in only minor respects, affords defaulting contractors an opportunity to correct such defects. See, Radiation Technology, Inc. v. United States, supra, 366 F.2d 1005-06. In order for that doctrine to apply to a particular shipment of nonconforming goods, the contractor must show that: (a) a timely delivery of goods was made; (b) he/she reasonably believed, in good faith, that the supplies conformed to the contract when shipped and that they would be acceptable; and (c) the defects are minor in nature and capable of correction within a reasonable period of time. Id., 366 F.2d at 1006. See generally, Cibinic and Nash, pp. 680-84. The Radiation Technology rule only protects contractors who can satisfy all elements of the test. 49 The basic language of FAR § 52.233-1(h) provides: "The Contractor shall proceed diligently with performance of this contract, pending final resolution of any request for relief, claim, appeal, or action arising under the contract, and comply with any decision of the Contracting Officer." There is an alternative FAR § 52.233-1 clause which adds the words "or relating to" to the underscored phrase. The statutory underpinning for these provisions is to be found in the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 601 et seq., which provides: "Nothing in this chapter shall prohibit executive agencies from including a clause in government contracts requiring that pending final decision of an appeal, action, or final settlement, a contractor shall proceed diligently with performance of the contract in accordance with the contracting officer's decision." 41 U.S.C. § 605(b). 50 This is true even if the contracting officer based the default decision on some other ground. See, James B. Beard, D.O., ASBCA Nos. 42677, 42678, 93-3 BCA ¶ 25,976, at 129,171 ("A contracting officer's termination decision may be sustained on other than the stated grounds as long as the alternate grounds existed at the time of termination." Citing, Joseph Morton Company, Inc. v. United States, [32 CCF ¶ 73,277], 757 F.2d 1273, 1277 (Fed. Cir. 1985)). It should also be noted that a cure notice is not required when a contract is terminated for default because of the contractor's repudiation. See, James B. Beard, D.O., supra, 93-3 BCA ¶ 25,976, at 129,172 (citing, Beeston, Inc., supra, 91-3 BCA ¶ 24,241). See also, Scott Aviation, ASBCA No. 40776, 91-3 BCA ¶ 24,123); Superior Communications Services, Inc., ASBCA No. 38421, 89-3 BCA ¶ 22,236; Metal-Tech Incorporated, ASBCA No. 14828, 72-2 BCA ¶ 9,545. 51 Under the "Disputes" clause, the contractor is required to follow the Contracting Officer's instructions for performance, "diligently," which in common parlance and the cases means nothing more than without undue delay. GPO Contract Terms, Contract Clauses, ¶ 5(d). In that regard, while dawdling or inaction by the contractor, perhaps for months as in Twigg Corporation, supra,, is usually the earmark of a "diligency" violation, the Board finds nothing in this record to indicate that even though the Appellant was only given a few weeks to comply, the passage of more time would have led McDaniel to change her mind. Therefore, on the basis of this record, the Board cannot say that the Contractor was proceeding diligently with performance of the contract and compliance with directives of the Contracting Officer as the "Disputes" clause requires. 52 This case should be distinguished from the situation in General Business Forms, Inc., in which the contractor's refusal to reprint the material covered by the contract was excused on the ground that there was no merit to the contracting officer's default decision. General Business Forms, Inc., GPO BCA 2-84 (December 3, 1985), Sl. op. at 23. General Business Forms, Inc., simply stands for the proposition that if the publication is nonconforming because of a latent ambiguity in the contract specifications, the contractor is entitled to appeal to the Board without first reprinting the job, and a default termination based on the contractor's refusal to follow the contracting officer's directions will not be sustained. In this case, there is no misunderstanding over the meaning of the contract specifications; i.e., both parties knew exactly what performance was expected from the Appellant. 53 In that respect, the practice of the Board, and the ad hoc panels before it, is consistent with the Court's holding in Cascade Pacific International, which says that so long as a contractor has notice of its responsibility for excess reprocurement costs, a board may rule on that liability in conjunction with consideration of the propriety of underlying default termination. Cascade Pacific International v. United States, supra, 773 F.2d at 293. The Board and its predecessor panels have never insisted, contrary to some other contract appeals boards, that a defaulted contractor challenge the repurchase methods or cost calculations to litigate excess reprocurement costs . See, e.g., Picket Enterprises, Inc., GSBCA Nos. 9472, 9890, 10051, 10102, 10426, 92-1 BCA ¶ 24,668; General Floorcraft, Inc., GSBCA No. 11112, 91-2 BCA ¶ 24,026; John A. Fournier; John A. Fournier and Maryanne Fournier, PSBCA Nos. 2337, 2338, 2339, 2340, 2377, 2378, 2379, 89-1 BCA ¶ 21,574. Thus, there is no rule in the Board's jurisprudence holding that if a contractor loses on the merits of the default termination, and does not present evidence specifically objecting to the propriety of the reprocurement itself, the Government's cost assessment will be presumed to be correct, and will stand. Picket Enterprises, Inc., supra, 92-1 BCA ¶ 24,668, at 123,095 (citing, General Floorcraft, Inc., supra, 91-2 BCA ¶ 24,026, at 120,295). 54 Apparently, the rule is different for Executive branch contract appeals, where, by statute, a contracting officer's decision is required for all contract claims by the Government, including claims for excess reprocurement costs following default. CDA, 41 U.S.C. § 605(a) ("[A]ll claims by the Government against a contractor relating to a contract shall be the subject of a decision by the contracting officer."). See, Zan Machine Company, ASBCA No. 39462, 91-3 BCA ¶ 24,085, at 120,542; Alonso & Carus Iron Works, Inc., ASBCA Nos. 37967 and 38312, 90-2 BCA ¶ 22,642, at 113,573. 55 By way of contrast, although the Board affirmed the contracting officer's default termination decision in R.C. Swanson Printing and Typesetting Company, it reserved ruling on the excess reprocurement cost issue for another proceeding. R.C. Swanson Printing and Typesetting Company, Sl. op. at 52-53, fn. 28. The reason for the Board's reluctance was rooted in the nature of the contract itself-a "requirements" contract-and its uncertainty whether all excess reprocurement costs had finally been assessed by the time the matter was ripe for decision. Id. In that regard, the Board was applying the well-settled principle that where a "requirements" contract is defaulted, excess reprocurement costs cannot be assessed and litigated before the end of the original contract term, and the Government will forfeit a premature assessment. See, Whitlock Corporation v. United States, 141 Ct. Cl. 758, 159 F.Supp. 602, cert. denied, 358 U.S. 815 (1958); C. Howdy Smith, AGBCA No. 90-154-1, 92-2 BCA ¶ 24,884; Zan Machine Company, supra, 91-3 BCA ¶ 24,085; American Photographic Industries, Inc., ASBCA Nos. 29272, 29832, 90-1 BCA ¶ 22,491, mot. for reconsid. denied 90-2 BCA ¶ 22,728; Glenn's Heating, ASBCA No. 32723, 87-1 BCA ¶ 19,355. In such cases, the practice is to decide the underlying default termination issue and leave the excess reprocurement cost question open for a further contracting officer's decision. Zan Machine Company, supra, 91-3 BCA ¶ 24,085, at 120,542; American Photographic Industries, Inc., supra, 90-1 BCA ¶ 22,491, at p. 112,894 (citing, Canadian Commercial Corporation, ASBCA No. 20512, 76-2 BCA ¶ 12,054); Glenn's Heating, supra, 87-1 BCA ¶ 19,355, at 97,899. See also, Chavis and Chavis Printing, supra, Sl. op. at 19, fn. 10 (although the Board affirmed the contracting officer's default termination decision, it made no ruling on the contractor's liability for excess reprocurement costs because there was nothing in the record to indicate whether the defaulted supplies had been repurchased, and if so, the amount of excess costs). 56 This clause is practically identical to the same clause in the FAR concerning the default of fixed-price supply and service contracts. FAR § 52.249-8(b) ("If the Government terminates this contract in whole or in part, it may acquire, under the terms and in the manner the Contracting Officer considers appropriate, supplies or services similar to those terminated, and the contractor will be liable to the Government for any excess costs for those supplies or services. . . .". [Emphasis added.]). 57 In the Board's opinion, this is an additional reason, if not the main one, why a defaulting contractor is not required to seek a separate final decision from the contracting officer concerning the post-termination assessment of excess reprocurement costs. See, Custom Printing Company, supra, Sl. op. at 14. 58 In its decision, the court essentially synthesized the standards set forth by the appeals board in Environmental Tectonics. See, Environmental Tectonics, supra, 78-1 BCA ¶ 12,986, at 63,308-10. The Environmental Tectonics criteria were adopted for GPO reprocurement contracts four years earlier by the ad hoc panel in ATC Decal Company. See, ATC Decal Company, supra, Sl. op. at 8 ("The three elements of a Government claim for excess reprocurement costs are similarity-the Government must repurchase products substantially similar to those that were to be provided by the defaulted contractor, incurrence-the Government must actually reprocure and thereby incur extra costs, and mitigation-the Government must act reasonably to minimize the excess costs and damages that result from the default. [Citation omitted.]" [Emphasis added.]). 59 However, even if the adjudicatory body is inclined to reduce rather than forgive excess costs, the record must still provide a proper basis for calculating them, otherwise the Government's recovery will be denied. See, B & M Construction, Inc., supra, 93-1 BCA ¶ 25,431, at 126,670 (citing, Matthews Company, AGBCA No. 459, 76-2 BCA ¶ 12,164, mot. for reconsid. denied, 77-1 BCA ¶ 12,434); Barrett Chemical Company, GSBCA 4544, 77-2 BCA ¶ 12,625; ASC Systems Corporation, DOTCAB 73-37A, 78-1 BCA ¶ 13,119, affirmed, 223 Ct. Cl. 672 (1980). 60 In those instances where the Government's failure of proof provides the defaulted contractor with a complete defense, recovery, if any, is limited to common law damages, which the Government must show were both reasonable and foreseeable at the time of contracting. Francis M. Marley v. United States, 191 Ct.Cl. 205, 221, 423 F.2d 324 (1970); Gibson Forestry, AGBCA No. 87-325-1, 91-2 BCA ¶ 23,874. 61 See, note 39 supra. In that regard, it is well-settled that disparate treatment of the defaulted and reprocurement contractors constitutes a material change. B & M Construction, Inc., supra, 93-1 BCA ¶ 25,431, at 126,668. 62 Occasionally, a broader test for determining similarity is applied, namely whether the changes in specifications would have fallen within the scope of the "Changes" clause of the defaulted contract. See, e.g., Dave's Aluminum Siding, Inc., ASBCA No. 34092, 90-3 BCA ¶ 23,053; Skiatron Electronics and Television Corporation, ASBCA No. 9564, 65-2 BCA ¶ 5098. However, at least one appeals board has suggested that variations in specifications falling within the scope of the "Changes" clause will not cause the reprocured items to be dissimilar unless they cause a functional change in the item. Guenther Systems, Inc., ASBCA No. 18343, 77-1 BCA ¶ 12,501. Since the Government has broad rights under the "Changes" clause, the application of this yardstick seems to be limited to special fact situations, and is not widely used. See generally, Cibinic and Nash, pp. 765-66. 63 As explained by Cibinic and Nash: "The rationale for this dichotomy is that when the changes in the reprocured item are substantial and make the work more "onerous," the reprocurement price does not serve as a valid basis for comparison." See, Cibinic and Nash, p. 763 (citing, Romeo P. Yusi & Company, ASBCA No. 19810, 76-1 BCA ¶ 11,835; Octagon Process, Inc., ASBCA No. 3981, 58-1 BCA ¶ 1,773. 64 The Government's mitigation efforts should, in appropriate circumstances, include advertising the reprocurement solicitation in the Commerce Business Daily. See, e.g., Auto Skate Company, Inc., GSBCA No. 10510, 91-3 BCA ¶ 24,260; Continental Chemical Corporation, GSBCA 4483, 76-2 BCA ¶ 11,948. 65 GPO procedures are consistent with this general practice in Government reprocurements. See, note 25 supra (citing, PPR, Chap. XIV, Sec. 1, ¶ 3.f.(2)). 66 In effect, the law creates a rebuttable presumption that the repurchase could have been completed at the price previously quoted by a lower bidder if an effort had been made to do so. See, Dillon Total Maintenance, Inc. v. United States, 218 Ct.Cl. 732 (1978); American Marine Upholstery Company v. United States, 170 Ct.Cl. 564, 354 F.2d 577 (1965); AAA Janitorial Services, ASBCA No. 9603, 67-1 BCA ¶ 6,091. Furthermore, where the Government fails, without adequate explanation, to solicit the second lowest bidder on the defaulted contract, that bid will set the limit of recovery for excess reprocurement costs. See, Birken Manufacturing Company, supra, 90-2 BCA ¶ 22,845, at 114,718; Sequal, Inc., supra, 88-1 BCA ¶ 20,382, at 103,067. See also, Prestex, Inc., ASBCA Nos. 21284, 21372, 21453, 21467, 23184, 81-1 BCA ¶ 14,882, at 73,613-14, aff'd on reconsideration, 81-2 BCA ¶ 15,397; Environmental Tectonics Corp., supra, 78-1 BCA ¶ 12,986; T.M. Industries, supra, 77-1 BCA ¶ 12,400, aff'd on reconsideration, 77-1 BCA ¶ 12,545; Solar Laboratories, Inc., supra, 76-2 BCA ¶ 12,115, at 58,196. 67 There is also nothing in the record which would tell us if the Appellant was solicited on the reprocurement. However, whether or not to solicit a bid from or award a contract to the defaulted contractor is a matter within the sound discretion of the Contracting Officer, leaving for Board consideration on appeal the question of whether such discretion was abused. See, e.g., Venice Maid Company, Inc. v. United States, supra, 639 F.2d at 697; Astro-Space Laboratories, Inc. v. United States, supra, 200 Ct.Cl. 282, 470 F.2d at 1017; Birken Manufacturing Company, supra, 90-2 BCA ¶ 22,845, at 114,716; American Technology Resources, supra, 89-3 BCA ¶ 22,239, at 111,798. See also, Tachtronic Instruments, Inc., ASBCA No. 24473, 81-2 BCA ¶ 15,253. 68 By contrast, all of this information is in the record with regard to the original solicitation (R4 File, Tab A). See, note 26 supra. Thus, we know that GPO received 13 bids in response to the initial invitation, and that the Appellant submitted the lowest bid ($25,938.00) while the highest offer ($47,226.00) was submitted by Peake Printers (R4 File, Tab A). Consequently, the bid range from the lowest to the highest offers was $21,288.00, and Pensacola's price quotation of $34,227.88, as the median bid (6 bids both above and below it), was $12,998.12 lower than Peake's, but $8,289.00 higher than the Appellant's (R4 File, Tab A). 69 The record discloses that in this case, the Appellant was required to produce "one complete set for film negatives" (R4 File, Tab D). That requirement was omitted from the reprocurement purchase order (R4 File, Tab Q). Furthermore, the Contractor had to reshoot 22 duotones for revised proofs before production started, and the contract was modified to reimburse the Contractor an additional $850.00 for that extra work (R4 File, Tabs E, F and G). Tr. 108-09. Although there is no evidence of record on the point, it seems to the Board that the reason Pensacola was not required to produce "one complete set for film negatives" was because the Appellant's film work was supplied to the reprocurement contractor as part of the Government-furnished material (R4 File, Tab P, p. 1). However, it also appears that the Appellant was given credit for this work by the Contracting Officer when he calculated the amount of excess reprocurement costs. See, note 27 supra. 70 In some cases, such as the repurchase of supplies or services under a defaulted "requirements" contract, a premature assessment of excess costs will be forfeited, but otherwise the matter will be returned to the contracting officer for a future assessment at an appropriate time in the future. See, note 55 supra. 71 See, note 59 supra. 72 In its prayer for relief, the Appellant also asks the Board to award it "reasonable attorneys fees and expenses in having to bring this appeal." See, Complaint, ¶ 5(c), p. 4. However, such a remedy is beyond the power of the Board to grant. The Board is aware, of course, that since 1985 its counterparts in the Executive branch are authorized to award attorneys fees under the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504, to prevailing parties in administrative hearings, because Congress amended that law to expressly include the proceedings of agency contract appeals boards held pursuant to the CDA within the definition of an "adversary adjudication." See, 5 U.S.C. § 504(b)(1)(C). See, e.g., Marty's Maid and Janitorial Service, GSBCA Nos. 11980-C (10614), 11981-C (10996), 93-2 BCA ¶ 25,713; JR and Associates, ASBCA No. 41377, 92-3 BCA ¶ 25,121. Prior to 1985, CDA contract appeals boards were without jurisdiction to award attorneys fees and litigation costs under the EAJA. Fidelity Construction Company v. United States, 700 F.2d 1379, 1385 (Fed. Cir. 1983), cert. denied, 464 U.S. 826; C.S. Smith Training, Inc., DOT CAB No. 1434, 84-3 BCA ¶ 17,700. Basically, it was the view of contract appeals boards that the section of the Federal Procurement Regulation (FPR) which related to the submission of fees and costs in termination for convenience cases, 41 CFR §1-15.205-42(f)(1), did not extend to fees involved in attempting to overturn a termination for default. See, C.S. Smith Training, Inc., supra, 84-3 BCA ¶ 17,700, at 88,298 (citing, A.T. Kearney, Inc., DOT CAB No. 1263, 83-2 BCA ¶ 16,835, motion for reconsid. denied, 84-1 BCA ¶ 17,052). The Board is not a creature of the CDA because GPO, as a Legislative branch agency, is excluded from the coverage of that statute. See, Tatelbaum v. United States, 749 F.2d 729 (Fed. Cir. 1984). See, 41 U.S.C. § 607(a) (establishing agency boards of contract appeals within "an executive agency"). Furthermore, because the EAJA also excludes the Legislative branch from its sweep, the Board derives no powers or authority from that law, either. 5 U.S.C. § 504(b)(2) (incorporating the definitions of 5 U.S.C.§ 551, which excludes "the Congress" from the definition of "agency"). Cf., Mayo v. Government Printing Office, 9 F.3d 1450, 1451 (9th Cir. 1993) (GPO excluded from coverage of the Freedom of Information Act, 5 U.S.C. § 552); International Graphics v. United States, 4 Cl.Ct. 186, 197 (1983) (GPO not legally bound to follow the prescripts of OMB Circular A-76, which establishes the guidelines for determining whether commercial or industrial type work need by the Government should be contracted-out to the private sector or performed in-house using Government facilities and personnel); Gray Graphics Corporation v. U.S. Government Printing Office, et al., Civil Action No. 82-2869 (D.D.C. 1982) (GPO not covered by the Small Business Act, 15 U.S.C. § 631 et seq.). See also, Chavis and Chavis Printing, supra, Sl. op. at 7, fn. 7 (where the Board held that GPO was not subject to the Prompt Payment Act of 1982, as amended (PPA), 31 U.S.C. § 3901 et seq., because the PPA defined its agency coverage in terms of 5 U.S.C. § 551). As indicated earlier, the Board takes its authority from the "Disputes" clause of the contract. See, GPO Contract Terms, Contract Clauses, ¶ 5. See also, e.g., R.C. Swanson Printing and Typesetting Company, supra, Sl. op. at 27-28, 41; The Wessel Company, Inc., supra, Sl. op. at 32-35, 46. As such, the Board, its proceedings, and its powers, are ". . . closer to the administrative practice followed in contract appeals prior to the enactment of the CDA, . . .". B. P. Printing and Office Supplies, supra, Sl. op. at 20. Consequently, it is important to note that GPO Contract Terms, which is incorporated by reference in the Appellant's contract, requires the application of the provisions of GPO Procurement Directive 306.2, Subject: Contract Cost Principles and Procedures, dated April 1, 1988 (GPO Contract Cost Principles) to GPO contracts, in appropriate circumstances. GPO Contract Terms, Contract Clauses, ¶ 45. See, Banta Company, GPO BCA 03-91 (November 15, 1993), Sl. op. 34-35. Among the circumstances identified in GPO's procurement regulations which mandate the use of GPO Contract Cost Principles, is the determination of costs under terminated contracts. PPR, Chap. VIII, Sec. 1, ¶ 3.b.(1). In that regard, GPO Contract Cost Principles expressly states, in pertinent part, that: "[c]osts of legal . . . services and directly associated costs incurred in connection with . . . defense against Government claims or appeals, or the prosecution of claims or appeals against the Government are unallowable [Cross reference omitted.]." GPO Contract Cost Principles, p. 28, ¶ 3.41(d). [Emphasis added.] Thus, the Board has no authority to award reasonable attorneys fees and appeal expenses in proceedings such as this. Cf., Cloverleaf Enterprises, Inc. (May 8, 1980), Sl. op. at 14 (citing, Dale Construction Company v. United States, 168 Ct.Cl. 692, denying recovery of attorneys fees for prosecuting disputes before administrative boards because they were not incurred in the performance of the contract).