U.S. GOVERNMENT PRINTING OFFICE BOARD OF CONTRACT APPEALS WASHINGTON, D.C. 20401 In the Matter of ) ) The Appeal of ) ) HURT'S PRINTING COMPANY, INC. ) Docket No. GPO BCA 27-92 Jacket No. 323-591 ) Purchase Order 20269 ) DECISION AND ORDER By letter dated August 12, 1992, Hurt's Printing Company, Inc. (Appellant or Contractor), 1915 Southeastern Avenue, Indianapolis, Indiana 46201, filed a timely appeal from the July 24, 1992, final decision of Contracting Officer Dan Clurman, of the U.S. Government Printing Office's (Respondent or GPO or Government) Printing Procurement Department (PPD), Washington, DC 20401, terminating the Appellant's contract identified as Jacket No. 323-591, Purchase Order 20269, for default because of the Appellant's "inability to produce [the] job according to the specifications" (R4 File, Tab A).1 For the reasons which follow, the decision of the Contracting Officer is hereby AFFIRMED, and the appeal is DENIED.2 FINDINGS OF FACT3 1. On June 12, 1992, the Respondent issued Purchase Order 20269, Jacket No. 323-591, to the Appellant for the production of 25,000 "Joint Service Commemoration Medal Certificates" (Medal Certificates) (R4 File, Tab B). The Medal Certificates had been requisitioned by the U.S. Department of Defense, Defense Logistics Agency (DLA) (R4 File, Tab B). Apart from the text which was to be in black ink, the Purchase Order indicated that the ribbon depicted on the Medal Certificates was to be printed in green (PMS 349) and blue (PMS 292) ink, and the entire product had to meet the quality standards for Quality Level III (R4 File, Tab B).4 2. Production of the Medal Certificates required the Appellant to perform printing, stamping and embossing tasks (R4 File, Tab B, Attachment 2). On June 12, 1992, along with the issuance of the Purchase Order, the Government furnished the Contractor with: (a) a film negative for the base black image; (b) a reprint copy to be used to create the artwork for the 2-color ribbon; and (c) a style sample (R4 File, Tab B, Attachment 1, and Tab J). The style sample consisted of two Joint Service Commemoration Medals, a lapel pin, and a hanger ring for each medal, together in a presentation case. According to the contract, the Appellant was to create the necessary brass dies and to submit not less than 25 "Prior to Production" samples to the Government for approval by June 16, 1992 (R4 File, Tab B, Attachment 2, and Tab F). The contract was to be completed by June 26, 1992, with the delivery of the 25,000 Medal Certificates to the DLA's Cameron Station facility located at Building 6, Door 21, 5010 Duke Street, Alexandria, Virginia 22304-6100 (R4 File, Tab B). The contract price for this work was $5,463.00 (R4 File, Tab B). 3. The Appellant failed to furnish the required "Prior to Production" samples by June 16, 1992. When Charles H. Homer, an employee in the PPD's Contract Compliance Section, telephoned the Appellant's Office Manager/Customer Service Representative, Ray Jordan, on June 24, 1992, to find out why the samples were delayed, he was told that the Appellant had experienced some "trouble" with the die subcontractor, but that the Contractor would immediately ship the "Prior to Production" samples so that they would arrive the next day- June 25, 1992 (R4 File, Tab H).5 4. Since the contract terms provided the Government with three (3) workdays to approve or disapprove the sample, Homer was concerned that the Appellant could not meet the contract completion date-June 26, 1992-and he recommended that a "Cure Notice" be issued to the Contractor (R4 File, Tab B, Attachment 2, and Tab H). Accordingly, that same day-June 24, 1992-a "Cure Notice" was sent, by telegram, to the Appellant, which stated that the failure to provide the samples in a timely manner was a "condition . . . endangering performance of the contract . . .", and that it had five (5) days to inform the Respondent, in writing, of the "measures adopted which have cured such condition[.]" (R4 File, Tab H).6 In response to the "Cure Notice," the Appellant wrote to the Contracting Officer on June 26, 1992, and explained, in pertinent part: In regard to our prior-to-production samples being late our die maker (Universal Die Company) was two days late than originally [sic] promised to us. After receiving these dies we discovered one of the dies was made incorrectly and had to be remade, therefore[,] this added two more days to our already late schedule. The cause of this problem was more difficult to control because of another firm making the die and not performing on their [sic] commitment to us. * * * * * * * * * * The problem now has been cured and the remainder of the job will be completed in a timely manner. See, Letter from David Hurt, the Appellant's President to the Respondent's Contracting Officer, dated June 26, 1992 (Hurt Letter). [Emphasis added.]7 5. When the "Prior to Production" samples were examined after they were received, it was discovered that the green and blue ribbon, and the star cluster in the hanger ring, failed to conform to the contract specifications (R4 File, Tab I). Specifically, the inspection revealed that the ribbon was flat and not rounded, as shown in the style sample provided to the Appellant, and more space was needed between the stars, which were too close together (R4 File, Tab I). Accordingly, the Respondent rejected the "Prior to Production" samples, informed the Appellant of the defects found, and, because it had to remake the hanging medal and ribbon dies, the Contractor was asked to provide a second set of samples (R4 File, Tab F).8 Although the Respondent asked for the revised samples by July 9, 1992, they were not received until July 13, 1992 (R4 File, Tabs F and J).9 6. When the second set of "Prior to Production" samples were inspected, they, too, were found to be defective, essentially for the same reasons (R4 File, Tab J). Specifically, an examination of the revised samples disclosed that while the ribbon was now rounded, the colors were washed out, and the spacing between the stars was still inadequate (R4 File, Tab J). Furthermore, the inspection revealed a new defect-the Department of Defense (DoD) seal on the bottom of the second set of samples was too high (R4 File, Tab J). Therefore, the revised samples were also rejected by the Respondent (R4 File, Tab F). 7. Because the Appellant was having difficulty producing dies which would provide satisfactory "Prior to Production" samples, the Respondent asked the Contractor to return the Government-furnished material to see if the cause of the problem was in the material itself (R4 File, Tab F). However, an examination of the Government-furnished material disclosed no defect (R4 File, Tab F). 8. Since the Appellant was unable to meet the DLA's needs, on July 23, 1992, the Contracting Officer sought the approval of the Respondent's Contract Review Board (CRB) to terminate the contract for complete default (R4 File, Tab F).10 Termination was requested because of the Appellant's "inability to deliver satisfactory [P]rior to [P]roduction samples" (R4 File, Tab F). By July 24, 1992, all of the members of the CRB had concurred in the action proposed by the Contracting Officer (R4 File, Tab F). 9. On July 24, 1992, 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 the Contractor's "inability to produce this job according to the specifications" (R4 File, Tab A). However, it is clear that the specific reason for the cancellation of the contract was the Appellant's inability to provide satisfactory "Prior to Production" samples (R4 File, Tab F).11 10. The Notice of Termination also informed the Appellant that it would be responsible for any excess reprocurement costs, if the Government decided to reprocure the Medal Certificates from another contractor (R4 File, Tab A). In fact, after the contract was defaulted, the Respondent took immediate steps to reprocure the job (R4 File, Tabs C, D, and E). Thus, on August 6, 1992, the Contracting Officer notified the Appellant that the contract had been reawarded at a contract price of $5,878.70, and that it was liable for the excess reprocurement costs (R4 File, Tab D).12 The Contracting Officer also wrote to GPO's Financial Management Service the same day, authorizing the recovery of the excess reprocurement costs-$415.70-from the Appellant's account (R4 File, Tab C). ISSUES PRESENTED As indicated by the Board at the close of the presubmission conference held on September 11, 1993, three questions are presented by the facts in this case: 1. Did the "Prior to Production" samples submitted by the Appellant conform to the contract specifications? 2. Did the Respondent's failure and/or refusal to inspect the artwork, at the request of the Contractor, before the "Prior to Production" samples were prepared and submitted for approval, amount to a breach of the Government's duty to cooperate in the performance of the contract? 3. 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? See, Report of a Presubmission Telephone Conference, dated November 17, 1993, pp. 5-6 (PTCR). POSITION OF THE PARTIES The central premise in the Appellant's defense against the Respondent's default termination action is its two-fold belief that: (1) the defects found by the Respondent in the "Prior to Production" samples were minor and/or insignificant; and (2) the discrepancies could have been corrected if the Government had cooperated with the Contractor in the production of acceptable materials. PTCR, p. 4. See also, Appellant's Brief, dated December 17, 1993, p. 1, ¶ 3 (App. Brf.). In arguing that the defects in the samples were minor, the Contract seems to rely heavily a statement allegedly made by a "GPO representative" during discussions concerning the revised set of "Prior to Production" samples, that: ". . . I don't think the spacing of the stars is a major factor." See, Affidavit of Ray Jordan, dated December 3, 1993 (Jordan Affidavit).13 However, the crux of the Appellant's position is found in its contention that GPO's refusal to inspect, at the Contractor's request, the artwork created from the actual ribbons and medallions furnished by the Government before the "Prior to Production" samples were made, amounts to a breach of the Respondent's duty to cooperate with the Contractor in the performance of the contract. PTCR, p. 4; App. Brf., p. 1, ¶ 1.14 Accordingly, the Appellant believes that the termination of its contract for default was in error, and that it is entitled to reimbursement from the Government in the amount of $1,608.70, consisting of the costs it incurred in preparing the "Prior to Production" samples, and a refund of the excess reprocurement charges.15 PTCR, pp. 4-5. The Respondent, on the other hand, asserts that the contract was properly defaulted because of the Appellant's inability to furnish acceptable "Prior to Production" samples within the specified period, and that the Government is entitled to recovery of the excess reprocurement costs. PTCR, pp. 3-4. In that regard, the Respondent argues that the defects in the "Prior to Production" samples were not minor, but rather constituted major dissatisfactions with Contractor's work. PTCR, p. 5. See also, Respondent's Brief, dated December 20, 1993, pp. 2-3 (R. Brf.). As proof of this contention, GPO relies heavily on the visual appearance of both "Prior to Production" samples submitted by the Appellant when compared to the Government-furnished material, as well as the difficulty experienced by the Contractor in its unsuccessful effort to correct the problems found by the Respondent. Id. See, R4 File, Tabs B, I and J. The Respondent also contends that since the contract terms did not provide for any inspection of the Appellant's artwork before the submission of the "Prior to Production" samples, for GPO to do so would have been beyond the scope of the contract-indeed, it would have been tantamount to a change in the specifications-and thus the Government cannot be penalized for its failure to conduct such an examination, at the Contractor's request, in this proceeding. PTCR, p. 5; R. Brf., pp. 3-4. Rather, it was the Appellant who failed to live up to its responsibilities under the contract by not examining the contract specifications and the Government- furnished material before starting the job, and raising any concerns it may have had about the work or the material with the Contracting Officer before it began preparing the samples. R. Brf., pp. 4-5 (citing, GPO Contract Terms, Contract Clauses, ¶ 7). Finally, the Respondent claims that it did not breach its duty to cooperate with the Appellant because it gave the Contractor ample opportunity, after the original contract due date, to produce satisfactory "Prior to Production" samples, and only terminated the contract when the Appellant demonstrated that it could not perform. PTCR, p. 5. Therefore, GPO believes that the Contracting Officer's default action was correct in this case, and should be affirmed.16 PTCR, p. 3-4. CONCLUSIONS17 Since the ultimate question which the Board must decide is whether or not the Appellant's contract was erroneously terminated for default, certain legal principles should be kept in mind at the outset. First, a default termination is a drastic action which may only be taken for good cause and on the basis of solid evidence.18 See, Shepard Printing, 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);19 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). Second, 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, GPO BCA 20-90 (February 6, 1991), 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. 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 Printing, 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 is allowed to recover for the work performed. See, GPO Contract Terms, Contract Clauses, ¶ 20(g). Cf., Shepard Printing, supra, Sl. Op. at 11; Stephenson, Inc., supra, Sl. op. at 17-18; Chavis and Chavis Printing, supra, Sl. op. at 9. Finally, 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.20 See, GPO Contract Terms, Contract Clauses, ¶ 20(c). Government acts which may extinguish a contractor's duty to perform include defective specifications, Robert E. Moore Construction, AGBCA No. 85-262-1, 90-2 BCA ¶ 22,803, and defective Government-furnished equipment or material. Boque Electric Manufacturing Company, ASBCA No. 25184, 86-2 BCA ¶ 18,925. The burden of proving Government defects is on the contractor, who must also show that those defects were the cause of the problems in question. Editors Press Incorporated, GPO BCA 03-90 (September 4, 1991) Sl. op. at 12-13; Fry Communications, Inc., GPO BCA 1-87 (June 1, 1989), Sl. op. at 5 (citing, Bailfield Industries, Division A- T-O, Inc., ASBCA No. 18057, 77-1 BCA ¶ 12,348). Applying these principles to the facts in the record, the Board reaches the following conclusions: A. The Appellant's "Prior to Production" samples did not conform to the contract specifications. 1. The contract in dispute was terminated by the Contracting Officer because, in his view, the Appellant was unable to produce satisfactory "Prior to Production" samples from the Government-furnished materials (R4 File, Tabs A and F). The Appellant challenges that determination by alleging that defects found by the Respondent in the samples were minor and/or insignificant. PTCR, p. 4. The only evidence in the record supporting the Contractor's contention is the affidavit of its Office Manager/Customer Service Representative, who stated that during his discussions with GPO's Contract Administrator about the "Prior to Production" samples on July 2, 1992, he was told that: ". . . I don't think the spacing of the stars is a major factor." See, Jordan Affidavit, p. 1. As previously indicated, however, the only person authorized to make such a determination under the Respondent's Printing Procurement Regulation was the Contracting Officer. PPR, Chap. XIII, Sec. 1, ¶ 4.f. See, note 11 supra. 2. As a rule, the Government is entitled to strict compliance with its specifications.21 See, e.g, Rose Printing Company, GPO BCA 2-87 (June 9, 1989), Sl. op. at 6 (and cases cited therein); Fry Communications, Inc., GPO BCA 1-87 (June 1, 1989), Sl. op. at 5; Mid-America Business Forms Corporation, GPO BCA 8-87 (December 30, 1988), Sl. op. at 18-19. See also, Mega Construction Company, Inc. v. United States, 25 Cl.Ct. 735, 741 (1992); Wholesale Tire and Supply Company, Ltd., ASBCA No. 42502, 92-2 BCA ¶ 24,960. However, the law creates a limited exception to the "strict compliance" rule for situations where a contractor has timely shipped nonconforming goods which deviate from the specifications in only minor respects. This so-called "substantial compliance" principle affords defaulting contractors an opportunity to correct minor defects in shipments to the Government. See, Radiation Technology, Inc. v. United States, 177 Ct.Cl. 227, 366 F.2d 1003, 1005-06 (1966). The "substantial compliance" rule applies to timely deliveries of slightly nonconforming first articles or pre-production items, as well as the final product. National Aviation Electronics, Inc., ASBCA No. 18256, 74-2 BCA ¶ 10,677. See, John Cibinic, Jr. & Ralph C. Nash, Jr., Administration of Government Contracts 2d ed., (The George Washington University, 1986), p. 694 (hereinafter Cibinic and Nash). 3. As the Board understands the Appellant's challenge to the termination action, it seems to be arguing that the "substantial compliance" rule should have been applied in this case. 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. Radiation Technology, Inc. v. United States, supra, 366 F.2d at 1006.22 A contractor who ships nonconforming goods is only protected by the Radiation Technology rule to the extent that he/she can satisfy all elements of the test.23 4. In the Board's view, when the record is considered as a whole, the "substantial compliance" doctrine does not apply to the circumstances of this case. First, it is undisputed that the initial set of "Prior to Production" samples were not delivered on time; i.e., by the date established in the contract for receipt of the samples (June 16, 1992) (R4 File, Tab B). Instead, the first set of samples were received by the Respondent after it had issued a "Cure Notice," on the date set for the completion of the contract itself (June 26, 1992) (R4 File, Tabs B, H and I). Even though it meant waiving the contract due date, the Respondent afforded the Contractor an opportunity to correct the defects found in the initial set of samples, and established July 9, 1992, as the date for receipt of the revised samples. However, the record shows that the second set of "Prior to Production" samples was also delivered late; i.e., they were not received until July 13, 1992 (R4 File, Tabs F and J). Thus, even if the defects in the sample were minor, as alleged by the Appellant, it has not satisfied the first element of the rule; i.e., there is no question but that the delivery of both the initial and second set of "Prior to Production" samples were untimely. 5. Second, the "substantial compliance" rule is inapplicable because the defects in both sets of "Prior to Production" samples are not minor for the purposes of the doctrine. Under the principles of Radiation Technology, whether a defect is minor is a question of fact, based upon a consideration of: (a) whether the items are usable; (b) the nature of the product; (c) the urgency of the Government's needs; and (d) the extent of repair and adjustment necessary to produce a fully conforming product. See, Cibinic and Nash, p. 683. In that regard, it is established under the "substantial compliance" rule that numerous minor defects, when considered together, can constitute a major nonconformity. Astro Science Corporation v. United States, 200 Ct.Cl. 354, 471 F.2d 624 (1973); Environmental Tectonics Corporation, supra, 76-2 BCA ¶ 12,134; Kain Cattle Company, ASBCA No. 17124, 73-1 BCA ¶ 9,999. Furthermore, if the minor defect is not readily correctable the "substantial compliance" doctrine will not apply. Inforex, Inc., GSBCA No. 3859, 76-1 BCA ¶ 11,679; Levelator Corporation, VACAB No. 1069, 74-2 BCA ¶ 10,763; Nuclear Equipment Corporation, NASABCA No. 1170-18, 73-1 BCA ¶ 9,815. Both of these principles defeat the Appellant's claim to the protection of Radiation Technology here. 6. In this case, the facts clearly show that when it inspected the first set of "Prior to Production" samples, the Respondent found, in addition to the spacing problem with respect to the stars in the hanger ring, that the green and blue ribbon was flat and not rounded, as required by the contract specifications (R4 File, Tab I). As for the revised set of "Prior to Production" samples, GPO's examination disclosed that not only was the star spacing problem uncorrected, but the ribbon's colors were now washed out (R4 File, Tab J). Furthermore, there was a new defect in the second set of samples-the DoD seal on the bottom of the Medal Certificate was too high (R4 File, Tab J). Therefore, when the Board considers all of these defects as a whole, it believes that a major nonconformity existed with the "Prior to Production" samples delivered by the Appellant. Astro Science Corporation v. United States, supra, 471 F.2d 624 (1973); Environmental Tectonics Corporation, supra, 76-2 BCA ¶ 12,134; Kain Cattle Company, supra, 73-1 BCA ¶ 9,999. 7. Furthermore, assuming for the sake of argument that the defects were only minor, the facts still warrant the conclusion that they were not readily correctable. In that regard, the Board believes that the Appellant's admission to the Respondent, in its letter dated June 26, 1991, the original contract completion date, that it was already behind schedule because of the problem with the dies, is highly significant. See, Hurt Letter. Moreover, when the Board also considers that the Appellant never made a timely delivery of the "Prior to Production" samples-either by June 16, 1992, or July 9, 1992-it is persuaded that the Contractor could not give the Government what it wanted within a reasonable time. Cf., Shepard Printing, supra, Sl. op. at 22. Therefore, for these reasons the Board concludes that the defects were not readily correctable. Inforex, Inc., supra, 76-1 BCA ¶ 11,679; Levelator Corporation, supra, 74-2 BCA ¶ 10,763; Nuclear Equipment Corporation, supra, 73-1 BCA ¶ 9,815. Also see, Echo Science Corporation, NASABCA No. 671-9, 72-2 BCA ¶ 9,755. 8. Finally, the Board cannot ignore the fact that the Appellant was, in fact, afforded an opportunity to "cure" the defects in its "Prior to Production" samples. Where, as here, a contractor has already been given a reasonable opportunity to correct the defects in its product, it may not later be heard to say that the "substantial compliance" rule entitles it to a second chance. Cf., Electro-Neutronics, Inc., ASBCA No. 12947, 71-2 BCA ¶ 8,961. Accordingly, even if the Radiation Technology rule applied in this case, when the Respondent gave the Appellant an opportunity to furnish a corrected second set of "Prior to Production" samples, it was relieved of any further responsibility under the "substantial compliance" doctrine. 9. As stated previously, under the Respondent's Printing Procurement Regulation, the only person authorized to make a final determination on whether the two "Prior to Production" samples submitted by the Appellant conformed to the contract specifications was the Contracting Officer. PPR, Chap. XIII, Sec. 1, ¶ 4.f. Consequently, a statement made by the Contract Administrator while the Appellant was still preparing the revised samples, that the spacing between the stars on the hanger ring was not a "major factor, see, Jordan Affidavit, p. 1, is not adequate to overcome the Contracting Officer's finding, eleven (11) days later, when the second set of samples were received by the Respondent, that they did not meet the requirements of the contract.24 Cf., Ralph Construction, Inc. v. United States, 4 Cl.Ct. 727, 734 (1984) (citing, Campbell v. United States, 2 Cl.Ct. 247, 249 (1983)). Furthermore, the record is devoid of any evidence that would show that the Contracting Officer knew of the Contract Administrator's statement of belief, and either approved or ratified it. Cf., Tymshare, PSBCA No. 206, 76-2 BCA ¶ 12,218 (1976). Moreover, the Board itself has examined the Appellant's "Prior to Production" samples, compared them with the Government-furnished material, and finds that the defects identified by the Contracting Officer are clearly visible. Cf., Printing Unlimited, GPO BCA 21-90 (November 30, 1993), Sl. op. at 20-21 (citing, AAA Engineering and Drafting Company, Inc., ASBCA No. 21326, 77 BCA ¶ 12,454). Since the determination that the "Prior to Production" samples failed to meet the contract specifications was within the discretion of the Contracting Officer, and as there is no credible evidence in the record which would indicate that his judgment was erroneous or flawed, the Board will not disturb his decision and will let it stand. Cf., Stabbe Senter Press, supra, Sl. op. at 53; Printing Unlimited, supra, Sl. op. at 21-22. B. The Respondent did not breach its duty to cooperate with the Appellant in the performance of the contract by refusing to inspect the artwork, at the request of the Contractor, before the "Prior to Production" samples were prepared and submitted for approval. 1. The main objection raised by the Appellant is that GPO's refusal to inspect, at its request, the artwork created from the actual ribbons and medallions furnished by the Government, before the "Prior to Production" samples were made, was a breach of the Respondent's duty to cooperate with the Contractor in the performance of the contract. PTCR, p. 4; App. Brf., p. 1, ¶ 1. 2. The Appellant relies on a well-settled principle of public contract law which states that in every Government contract there is an implied affirmative obligation on the part of the Government that it will do whatever is necessary to enable the contractor to perform.25 Stephenson, Inc., supra, Sl. op. at 38-39 (citing, Nanofast, Inc., supra, 69-1 BCA ¶ 7,566; The Kehm Corporation v. United States, 119 Ct. Cl. 454, 93 F.Supp. 620 (1950); United States v. Speed, 75 U.S. (8 Wall.) 77 (1868)). Under this doctrine, the Government will be held liable for breaching its implied duty to cooperate if it wrongfully fails or refuses to take some action, within its control, which is essential for the contractor to perform.26 Stephenson, Inc., supra, Sl. op. at 39. In most cases applying this principle to excuse a contractor's default, there is a clear nexus between the Government's breaching conduct and the performance period itself. See, e.g., Maitland Brothers Company and Maitland Brothers Company and St. Paul Fire and Marine Insurance Company, ASBCA Nos. 30,089, 30,764, 31,032, 32,071, 32,605, 34,659, 90-1 BCA ¶ 22,367; Singleton Contracting Corporation, GSBCA No. 8,552, 90-1 BCA ¶ 22,298; G. W. Galloway Company, ASBCA Nos. 17,436, 17,723, 17,836, 17,911, 18,324, 77-2 BCA ¶ 12,640. Furthermore, whether the Government is liable depends on the reasonableness of its conduct under the circumstances. See, e.g., Ben C. Gerwick, Inc. v. United States, 152 Ct. Cl. 69, 285 F.2d 432 (1961); Tolis Cain Corporation, DOTCAB No. 72-2, 76-2 BCA ¶ 11,954. 3. It is unnecessary for the Board to engage in a detailed survey of the cases involving the Government's duty to cooperate with a contractor for the purpose of this decision. However, it should be noted that agencies will breach their implied duty to cooperate if they unreasonably disapprove suggestions for alternate methods of performance, Albert C. Rondinelli, ASBCA No. 9,900, 65-1 BCA ¶ 4,674, or if they deny the contractor a reasonable opportunity to correct minor defects in timely deliveries. Nanofast, Inc., supra, 69-1 BCA ¶ 7,566. 4. As the Board understands the Appellant's claim, the alleged breach of the implied duty to cooperate occurred because the Respondent had an affirmative obligation to inspect the artwork developed from the Government furnished material before the actual "Prior to Production" samples were manufactured. However, in the Board's opinion, the Appellant has misconstrued the Respondent's responsibilities and duties in this case. 5. Under the Respondent's printing regulation, inspection and testing of procured products is accomplished in accordance with the "Inspection and Tests" article of GPO Contract Terms. PPR, Chap. XIII., § 1, ¶ 4(g). See, GPO Contract Terms, Contract Clauses, ¶ 14. This article provides, in pertinent part: (c) The Government has the right to inspect and test all supplies called for, to the extent practicable, at all places and times, including the period of manufacture, and in any event before acceptance. The Government shall perform inspections and tests in a manner that will not unduly delay performance and assumes no contractual obligation to perform any inspection and test for the benefit of the contractor unless specifically set forth elsewhere. GPO Contract Terms, Inspection and Tests, §§ 14(c), (f). It is well-settled that inspections and tests are for the benefit of the Government. Editors Press, supra, Sl. op. at 18 (citing, Custom Printing, GPO BCA 10-87 (May 10, 1988), Sl. op. at 14; Red Circle Corporation v. United States, 185 Ct. Cl. 1, 398 F.2d 836 (1968)). See generally, Cibinic and Nash, pp. 568-83. Absent a provision in the contract itself, the Government has no duty to conduct tests or inspections for the benefit of a contractor. Editors Press, supra, Sl. op. at 18; Custom Printing, supra, Sl. op. at 13. 6. An examination of the contract discloses no inspection duty on the part of the Respondent other than to examine the "Prior to Production" samples (R4 File, Tab B, Attachment 2). Indeed, under the express terms of the contract, GPO had no obligation to provide the Appellant with an opportunity to submit a revised set of such samples, i.e., that "second chance" was wholly within GPO's discretion.27 Thus, the Respondent would have been acting within its rights under the contract if it had defaulted the Appellant based on the rejection of the first samples.28 Stephenson, Inc., supra, Sl. op. at 21. However, it is undisputed that not only did the Appellant receive a second opportunity to provide conforming "Prior to Production" samples,29 but when it became apparent that the Contractor was experiencing difficulty producing satisfactory dies, the Respondent, on its own, asked for the return of the Government-furnished material to see if the cause of the problem was in the material itself (R4 File, Tab F). When the Respondent's pro-active response to the Contractor's problems is considered in light of the fact that only two weeks was allowed for performance under the original terms of the contract, the Board believes that inspecting the artwork in advance of the samples would have been superfluous.30 Hence, the Board concludes that, under these circumstances, it was not unreasonable for GPO to reject the Contractor's suggestion that the artwork be examined before the "Prior to Production" samples were produced. Cf., Albert C. Rondinelli, supra, 65-1 BCA ¶ 4,674. Consequently, the Board believes that there is absolutely no evidence in this record to support the Appellant's contention that the Respondent breached its implied duty to cooperate under the circumstances herein. Stephenson, Inc., supra, Sl. op. at 47. Rather, the Board finds that the Respondent fully cooperated with the Appellant in its attempt to make provide acceptable "Prior to Production" samples and to fulfill its obligations under the contract. See, e.g., Ben C. Gerwick, Inc. v. United States, supra, 285 F.2d 432 (1961); Tolis Cain Corporation, supra, 76-2 BCA ¶ 11,954. Accordingly, for all of these reasons, the Board concludes that there is no merit to the Appellant's claim that the Respondent breached its implied duty to cooperate with it to complete performance under the contract.31 C. Under the circumstances of this case, the Contracting Officer's decision to terminate the contract for default was not in error. 1. The Appellant has failed to demonstrate that the defects found by the Respondent in the "Prior to Production" samples were minor and/or insignificant, or that the discrepancies could have been corrected if the Government had cooperated with the Contractor. Consequently, it has not sustained its burden of proof in this case. Thus, on this record, the Appellant's case is essentially a collection of unverified assertions, and the Board cannot accept argumentation alone as a substitute. Cf., Reese Manufacturing, Inc., ASBCA No. 35144, 88-1 BCA ¶ 20,358. Indeed, it is settled that unsubstantiated assertions are not sufficient proof to permit recovery. Cf., Banta Company, supra, Sl. op. at 52; Fry Communications, Inc./InfoConversion Joint Venture, GPO BCA No. 9-85, Decision on Remand (August 5, 1991), Sl. op. at 33, fn. 31, (citing, Fry Communications, Inc./InfoConversion Joint Venture v. United States, 22 Cl.Ct. 497, 510 (1991)); Stephenson, Inc., supra, Sl. op. at 57. See also, Singleton Contracting Corporation, GSBCA No. 8548, 90-2 BCA ¶ 22,748; Tri-State Services of Texas, Inc., ASBCA No. 38019, 89-3 BCA ¶ 22,064)); Gemini Services, Inc., ASBCA No. 30247, 86-1 BCA ¶ 18,736. 2. Therefore, the Board is unable to say that the Contracting Officer's decision to terminate the Appellant's contract under the circumstances described herein is clearly erroneous. Cf., B. P. Printing and Office Supplies, GPO BCA 22-91 (February 5, 1993), Sl. op. at 28 (citing, Chavis and Chavis Printing, supra, Sl. op. at 18). Accordingly, the Board affirms the Contracting Officer's decision to default the contract because of the Appellant's inability to provide acceptable "Prior to Production" samples (R4 File, Tab F).32 ORDER The Board finds and concludes that the Appellant has not proved that: (1) the defects found by the Respondent in the "Prior to Production" samples were minor and/or insignificant; or (2) a breach of the Government's implied duty to cooperate with the Contractor occurred in this case. THEREFORE, the decision of the Contracting officer is AFFIRMED, and the appeal is DENIED. It is so Ordered. January 21, 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 September 24, 1992. GPO Instruction 110.12, Subject: Board of Contract Appeals Rules of Practice and Procedure, dated September 17, 1984, Rule 4(a) (Board Rules). It will be referred to hereinafter as R4 File, with an appropriate Tab letter also indicated. The R4 File consists of ten (10) documents identified as Tab A through Tab J. 2 By letter dated October 22, 1992, the Appellant advised the Board that it had selected the optional Accelerated Procedure to process its appeal. Board Rules, Rules 12.1(b) and 12.3. Board Docket File, Tab 5. 3 Decisions under the Accelerated Procedure are normally brief and contain only summary findings of fact and conclusions. Board Rules, Rule 12.3(b). In this case, however, the Board believes that the nature of the controversy entitles the parties to a fuller explanation of the facts, issues, and reasons for the Board's decision than would be found in a typical Accelerated Procedure case. See, RD Printing Associates, Inc., GPO BCA 02-92 (December 16, 1992), Sl. op. at 2, fn. 3. The Board also notes that this decision, unlike its opinions under the Small Claims (Expedited) Procedure, may be cited as precedent in future appeals. Cf., Graphics Image, Inc., GPO BCA 13-92 (August 31, 1992), Sl. op. at 2, fn. 3; Board Rules, Rule 12.2(d). 4 As indicated on the Purchase Order and in its attachments, the contract was governed by applicable articles of GPO Contract Terms, GPO Publication 310.2, effective December 1, 1987 (Rev. 9-88) (GPO Contract Terms), and GPO's Quality Assurance Through Attributes Program, GPO Publication 310.1, Revised September 1986 (QATAP), which were incorporated by reference (R4 File, Tab B). 5 In fact, the "Prior-to Production" samples were not received by the DLA until June 26, 1992 (R4 File, Tab I). 6 Ordinarily, a contract may not be defaulted for a contractor's failure to make progress, so as to endanger performance, unless and until the Contracting Officer has served a ten (10) day "Cure Notice" on the contractor affording it an opportunity to cure the failure. See, Printing Procurement Regulation, GPO Publication 305.3 (September 1, 1988), Chap. XIV, Sec. 1, ¶ 3.c.(2) (PPR); GPO Contract Terms, Contract Clauses, ¶ 20.(a)(2). However, a ten (10) day "Cure Notice" is not an absolute, because, apart from the cited provision of GPO Contract Terms, the Respondent's implementing regulations also state: "If the Contracting Officer determines that a shorter period is reasonable, and sufficient time remains in the contract delivery schedule, such shorter period may be authorized, provided the determination is supported and documented in the contract file. If the time remaining in the contract delivery schedule is not sufficient to permit a realistic "cure" period, the "Cure Notice" shall not be issued." PPR, Chap. XIV, Sec. 1, ¶ 3.c.(2). [Emphasis added.] Ten (10) days to cure the problem was out of the question here because the Contractor only had three (3) days (counting the "Cure Notice" date-June 24, 1992) to complete the contract (by June 26, 1992), and the contract terms allowed the Government a three (3) workday approval period for the "Prior to Production" samples (R4 File, Tab B, Attachment 2). Therefore, the Contracting Officer would have been within justified in not issuing any "Cure Notice" whatsoever under these circumstances, since insufficient time remained to permit a realistic "cure" period. Graphics Image, Inc., supra, Sl. op. at 16. The decision concerning whether or not a shorter cure period is reasonable, realistic, and warranted in light of the contract delivery schedule, is discretionary with the Contracting Officer. Id. (citing, Stephenson, Inc., GPO BCA 02-88 (December 20, 1991), Sl. op. at 19-20, fn. 22 ("show cause notice")). If that decision is consistent with the rules in the PPR, it will not be disturbed by the Board. Graphics Image, Inc., supra, Sl. op. at 17 (citing, Stabbe Senter Press, GPO BCA 13-85 and 19-85 (May 12, 1989), Sl. op. at 53). 7 For some reason, not apparent in the record, this letter was not included in the R4 File. Instead, is was sent to the Board on October 22, 1992, as an attachment to the Appellant's Complaint (Attachment D). In addition to this letter, the Appellant also attached: (a) a copy of a memorandum for the file prepared by Jordan, dated June 16, 1992, stating that he spoke to Nancy Ferraiuolo, GPO's Contract Administrator for this contract, and offered to provide proofs in lieu of "Prior to Production" samples, but was told that only the samples were required; i.e., the proofs were refused (Attachment B); and (b) notes from the Appellant's Job Production Log, dated June 20, 1992, June 24, 1992, and June 25, 1992, describing the problems with dies prepared by Universal Die Company, and steps taken by the Contractor, once the corrected dies were returned by the subcontractor, to prepare the samples and send them to the Respondent (Attachment C). 8 In that regard, the contract expressly provides, in pertinent part, that "[i]f the samples are disapproved by the Government, the Government, at its option, may require the contractor to submit additional samples for inspection and test, in the time and under the terms and conditions specified in the notice of rejection. Such additional samples shall be furnished, and necessary changes made, at no additional cost to the Government and with no extension in the shipping schedule. . . ." (R4 File, Tab B, Attachment 2). [Emphasis added.] 9 In the meantime, on July 2, 1992, the Respondent sent the Appellant, by telegram, a "Show Cause Notice", which stated that because the Contractor had failed to perform according to the contract schedule, the Government was considering defaulting the contract, and affording the Appellant an opportunity to explain any extenuating circumstances, in writing, within five (5) days from the receipt of the notice (R4 File, Tab G). The record does not contain any response from the Appellant to this "Show Cause Notice." Furthermore, it seems that GPO took no action with respect to the Contractor's failure to respond, but instead waited for receipt of the second set of "Prior to Production" samples. 10 Under the PPR, the Contracting Officer must submit a proposal to terminate a contract for default to the CRB for its review and concurrence. PPR, Chap. I, Sec. 10, ¶ 4.b.(i). See, Graphics Image, Inc., supra, Sl. op. at 9, fn. 10. 11 In that regard, the Purchase Order itself expressly states, in pertinent part, that "[i]n the event the samples are disapproved by the Government, the contractor shall be deemed to have failed to make delivery within the meaning of the default clause in which event this contract shall be subject to termination for default, . . ." (R4 File, Tab B, Attachment 2). 12 The reprocurement contractor was Quality Printing Service of Bismarck, North Dakota (R4 File, Tab C). 13 The Board is compelled to observe that Jordan identifies two GPO agents-Nancy Ferraiuolo and Larry Hamm-in his affidavit as the persons with whom he was dealing on the matter of correcting the "Prior to Production" samples. From the affidavit, it seems that the statement concerning minor significance of the spacing of the stars, was made by Ferraiuolo on or about July 2, 1992. However, it should be noted that Ferraiuolo is identified in the record as the GPO Contract Administrator assigned to the disputed contract (R4 File, Tab B). Under the Respondent's Printing Procurement Regulation, 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. 14 The Appellant also believes that by refusing to look at the artwork under these circumstances, the Government failed to follow standard industry practice, and "entrapped" the Contractor into entering the contract. The doctrine of "entrapment" is peculiar to criminal law. See, e.g., United States v. Berry, 661 F.2d 618 (7th Cir. 1981). It is rarely found, and even then usually only by analogy, in administrative proceedings. See, e.g., Transportation Enterprises, Inc. v. National Labor Relations Board, 630 F.2d 421 (5th Cir. 1980) (The court held that where the National Labor Relations Board first rules that it has no jurisdiction over an employer and then reverses itself, it can not find the employer guilty of an unfair labor practice for conduct engaged in after the initial ruling, on which the employer relied). There is nothing in the evidence here which would support such an "entrapment" defense. Indeed, the Appellant really seems to be saying that it made a mistake by bidding on the contract without all of the facts. However, such errors in business judgment do not warrant any relief. See, e.g., Aydin Corporation v. United States, 229 Ct.Cl. 309, 669 F.2d 681 (1982); American Ship Building Company v. United States, 228 Ct.Cl. 220, 654 F.2d 75 (1981). See generally, John Cibinic, Jr. and Ralph C. Nash, Jr., Formation of Government Contracts 2d ed., (The George Washington University, 1986), p. 481-82. 15 In its brief, the Appellant, for the first time, alleged that the Respondent engaged in bad faith by drafting specifications based on a knowledge of pre-existing dies that produced acceptable artwork, and not procuring those dies for the Contractor. App. Brf., p. 1, ¶ 2. The thrust of this argument is that GPO purposely wrote the specifications to give the previous contractor an unfair advantage in the bidding process. Aside from the fact that the existence of such ready-made dies is nothing but pure speculation on the Appellant's part, 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., Shepard Printing, GPO BCA 23-92 (April 29, 1993), Sl. op. at 7, fn. 11; 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 Government, or the previous contractor for that matter, set out to harm the Appellant or that both of them acted in concert to achieve that specific result. Id., Sl. op. at 57. 16 In addition, the Respondent's Answer and Brief contend that the Contracting Officer's decision to default the contract was also based on the Appellant's repeated tardiness in delivering its product. See, Answer, dated August 6, 1993, p. 5; R. Brf., p. 5. To the Board's mind, however, this argument is unsupported in the record and has no substance. That is, there is nothing in the appeal file, including the Contracting Officer's memorandum to the CRB and the Notice of Termination, which would warrant the conclusion that the default was based on anything other than the Appellant's inability to produce satisfactory "Prior to Production" samples of the Medal Certificate. See, R4 File, Tabs A and F. Furthermore, GPO failed to mention its "tardiness" argument at the presubmission telephone conference. Since all the evidence of record tells us that the Contracting Officer solely relied on the poor quality of the Appellant's "Prior to Production" samples in defaulting the contract, the Board believes that this "tardiness" claim is nothing more than a "make weight" argument, and it is summarily rejected. Cf., Banta Company, GPO BCA 03-91 (November 15, 1993), Sl. op. at 28-29, fn. 39. 17 The record on which the Board's decision is based consists of: (1) the Appellant's letter, dated August 12, 1992, noting an appeal from the Contracting Officer's decision; (2) the R4 File (Tabs A-J); (3) the Appellant's letter, dated October 13, 1992, setting forth the basis of its complaint and the items and amounts involved in its counterclaim; (4) the Appellant's Complaint letter, dated October 22, 1992, with attachments; (5) the Respondent's Answer, dated August 6, 1993; (6) the Report of a Presubmission Telephone Conference, dated November 19, 1993; (7) the Affidavit of Ray Jordan, dated December 3, 1993, submitted by the Appellant; (8) the Appellant's Brief, dated December 17, 1993; and (9) the Respondent's Brief, dated December 20, 1993. 18 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). 19 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. 20 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. 21 Indeed, this rule has always been considered absolute in supply contracts. See, e.g., Melrose Packaging Corporation, ASBCA No. 9045, 1964 BCA ¶ 3,769; Cherry Meat Packers, Inc., ASBCA No. 8974, 1963 BCA ¶ 3,937. 22 See generally, Cibinic and Nash, pp. 680-84. The Radiation Technology doctrine is clearly an encroachment on the Government's right to terminate. However, it is also apparent that the rule merely stays for a reasonable period the Government's right to terminate, and not its right to insist on 100 percent conforming goods; i.e., the doctrine concerns time, not the supplies themselves. Furthermore, the "substantial compliance" rule is used to prevent surprise rejections by the buyer after a contractor's timely shipment in situations where performance departs in only minor respects from that which has been promised. See, Stephenson, Inc., supra, Sl. op. at 50-51, fn. 54 (citing, Environmental Tectonics Corporation, ASBCA No. 20340, 76-2 BCA ¶ 12,134). 23 In most cases involving the "substantial compliance" rule, the timeliness of the contractor's shipment is generally not an issue. Rather, the dispute usually involves the resolution of questions of "reasonable belief" and the seriousness of the defects. Absent such a "reasonable belief" by the contractor and proof that only minor defects are involved, the supplier is not entitled to the protection of the "substantial compliance" principle. See, Stephenson, Inc., supra, Sl. op. at 51, fn. 55 (citing, Introl Corporation, ASBCA No. 27,610, 85-2 BCA ¶ 18,044 at 90,578; Norwood Precision Products, Textron, Inc., ASBCA Nos. 38095, 38196, 90-3 BCA ¶ 23,200; Environmental Tectonics Corporation, supra, 76-2 BCA ¶ 12,134). 24 Indeed, the Board finds it difficult to believe that any reasonable or responsible GPO Contracting Officer, or Contract Administrator for that matter, would approve the quality level of any product "sight unseen." 25 See, Cibinic and Nash, pp. 221-22, 223-25. There is also an implied negative obligation on the part of the Government that it will not do that which will interfere with the contractor in the performance of the contract. Id., at pp. 222-23. See, e.g., Nanofast, Inc., ASBCA No. 12,545, 69-1 BCA ¶ 7,566 (citing, George A. Fuller Company, A Corporation v. United States, 108 Ct. Cl. 70, 69 F.Supp. 409 (1947); Fern E. Chalender d/b/a Chalender Construction Company of Springfield, Missouri v. United States, 127 Ct. Cl. 557; Restatement, Contracts, §§ 295 and 315). Both implied duties are part of every Government contract. George A. Fuller Company, A Corporation v. United States, supra, 69 F.Supp. 409. 26 See, Cibinic and Nash, p. 221. 27 See, note 8 supra. 28 See, note 11 supra. 29 The Board also notes that in "bending over backwards" to give the Appellant every last chance to perform, the Contracting Officer actually provided for a "cure period" (from June 26, 1992 to July 24, 1992), which was twice as long as the time allowed for performance under the original terms of the contract (two weeks). 30 Indeed, the Board interprets the Appellant's offer to provide proofs in lieu of "Prior to Production" samples as nothing less than a request by the Contractor to modify the contract. See, note 7 supra (citing, Complaint (Attachment B)-Jordan memorandum for the file, dated June 16, 1992). 31 Obviously, no breach of the Government's implied duty to cooperate with the Appellant can be found in this case on the basis of the so-called Nanofast doctrine, because the Contractor was afforded an opportunity to correct the defects discovered in the first set of "Prior to Production" samples. Cf., Stephenson, Inc., supra, Sl. op. at 42-46 (citing, Nanofast, Inc., supra, 69-1 BCA ¶ 7,566. As indicated above, the Nanofast doctrine applies to situations where a contractor timely delivers supplies with minor defects and is denied a reasonable opportunity to correct them. In this case, however, the record is replete with evidence that the Appellant was, in fact, given a chance to repair the defects in the "Prior to Production" samples, but was unable to do so within a reasonable time. 32 Even if the Board was disposed to find in favor of the Appellant, it would have no basis for awarding any monetary recovery. At the prehearing conference, the Board directed the Appellant to submit evidence, inter alia, of the actual expenses it incurred in preparing the "Prior to Production" samples. PHR, p. 6. The Contractor has failed to provide such evidence; e.g., bills from its subcontractor, Universal Die Company , etc. It is well-settled that a contractor has the burden of proof in establishing the amount of its claim. Cf., Banta Company, supra, Sl. op. at 50, fn. 62 (and cases cited therein). Notwithstanding the Board's instructions, the Appellant has failed to provide such evidence, and therefore, has not sustained its burden of proof on its claim.