B-124838, SEP. 29, 1955

B-124838: Sep 29, 1955

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INC.: REFERENCE IS MADE TO YOUR LETTER OF JUNE 30. YOU WERE FURNISHED THE REQUIRED NUMBER OF SHEETS OF PAPER. YOU NOTIFIED THE CONTRACTING OFFICER THAT YOU WERE EXPERIENCING A GREAT DEAL OF DIFFICULTY IN THE PRINTING AND GUMMING OF THE PAPER FURNISHED. YOU ALLEGED THAT THE SHEETS OF PAPER WERE IN MANY INSTANCES DIFFERENT IN SIZE AND THAT A PART OF THE SHEETS WERE GRAIN LONG AND THE BALANCE OF THE SHEETS WERE GRAIN SHORT. YOU ALLEGED THAT SOME OF THE SHEETS HAD A HEAVIER BODY THAN OTHERS AND OTHERS WERE BRITTLE AND HARD TO HANDLE. THE CONTRACTING OFFICER ADVISED YOU THAT THE CONTRACT DID NOT REQUIRE THE GRAIN OF THE PAPER TO RUN IN ANY ONE PARTICULAR DIRECTION AND THAT THE WEIGHT AND CALIPER WERE WITHIN THE TOLERANCE ALLOWABLE.

B-124838, SEP. 29, 1955

TO A. A. WIENER AND SON, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 30, 1955, REQUESTING REVIEW OF SETTLEMENT DATED JUNE 24, 1955, WHICH DISALLOWED YOUR CLAIMS FOR $250, REPRESENTING ADDITIONAL COSTS INCURRED BY YOU IN THE COMPLETION OF YOUR CONTRACT, AND FOR $157.24 AS LIQUIDATED DAMAGES ASSESSED BY THE UNITED STATES GOVERNMENT PRINTING OFFICE IN CONNECTION WITH YOUR PERFORMANCE OF PURCHASE ORDER NO. 7259.

YOUR CLAIMS APPEAR TO BE BASED UPON THE CONTENTION THAT THE PAPER STOCK YOU RECEIVED FROM THE UNITED STATES GOVERNMENT PRINTING OFFICE DID NOT MEASURE UP TO THE SPECIFICATIONS. YOU STATE THAT YOUR PRINTER EXPERIENCED DIFFICULTIES IN RUNNING THE SHEETS THROUGH THE MACHINES, WHICH RESULTED IN THE LOSS TO YOU OF COUNTLESS MACHINE HOURS AND OVERTIME WORK AND CAUSED DELAY IN DELIVERIES AND THE IMPOSITION OF LIQUIDATED DAMAGES.

UNDER THE TERMS OF THE CONTRACT THE GOVERNMENT AGREED TO FURNISH YOU WITH 35,533 SHEETS OF YELLOW WRITING PAPER ON WHICH TO PRINT THE JOB, AND 138 CORRUGATED CONTAINERS TO BE USED IN SHIPPING THE COMPLETED WORK. YOU AGREED TO PRINT AND GUM 275,000 SELF-MAILING FORMS,"APPLICATION FOR SICKNESS BENEFITS AND STATEMENT OF SICKNESS," IN ACCORDANCE WITH THE SPECIFICATIONS AND TO SHIP THE SAME FOR $2,499.75. THE RECORD SHOWS THAT ON DECEMBER 1, 1954, YOU WERE FURNISHED THE REQUIRED NUMBER OF SHEETS OF PAPER.

BY LETTER DATED DECEMBER 13, 1954, YOU NOTIFIED THE CONTRACTING OFFICER THAT YOU WERE EXPERIENCING A GREAT DEAL OF DIFFICULTY IN THE PRINTING AND GUMMING OF THE PAPER FURNISHED. YOU ALLEGED THAT THE SHEETS OF PAPER WERE IN MANY INSTANCES DIFFERENT IN SIZE AND THAT A PART OF THE SHEETS WERE GRAIN LONG AND THE BALANCE OF THE SHEETS WERE GRAIN SHORT, WHICH CAUSED YOU TROUBLE AND EXTRA TIME IN THE GUMMING. ALSO, YOU ALLEGED THAT SOME OF THE SHEETS HAD A HEAVIER BODY THAN OTHERS AND OTHERS WERE BRITTLE AND HARD TO HANDLE. DUE TO THESE DIFFICULTIES YOU REQUESTED ADDITIONAL PAYMENTS UNDER THE CONTRACT AND THAT THE COMPLETION DATE BE EXTENDED.

BY LETTER DATED DECEMBER 21, 1954, THE CONTRACTING OFFICER ADVISED YOU THAT THE CONTRACT DID NOT REQUIRE THE GRAIN OF THE PAPER TO RUN IN ANY ONE PARTICULAR DIRECTION AND THAT THE WEIGHT AND CALIPER WERE WITHIN THE TOLERANCE ALLOWABLE. ALSO, HE STATED THAT SINCE THE SPECIFICATIONS UNDER WHICH YOU SUBMITTED YOUR BID DID NOT STIPULATE FINISH, CLAIPER, SIZE, OR GRAIN, THE AGENCY HAD NO AUTHORITY TO GRANT ADDITIONAL COMPENSATION OR AN EXTENSION IN THE ORIGINAL DELIVERY DATE. HOWEVER, YOU WERE ADVISED THAT BECAUSE VINYLITE MOLDS REQUIRED TO BE FURNISHED BY THE AGENCY WERE RECEIVED BY YOU TWO DAYS LATER THAN PROVIDED FOR BY THE CONTRACT, THE CONTRACT COMPLETION DATE WAS EXTENDED TO DECEMBER 24, 1954.

THE RECORD SHOWS THAT BY LETTERS DATED DECEMBER 20, 1954, AND JANUARY 14, 1955, YOU AGAIN ASKED THAT YOUR CLAIM FOR ADDITIONAL COMPENSATION AND REQUEST FOR AN EXTENSION OF TIME BE ALLOWED. BY LETTER OF JANUARY 28, 1955, THE PUBLIC PRINTER ADVISED YOU THAT THERE WAS NO AUTHORITY TO GRANT YOUR REQUEST FOR ADDITIONAL COSTS OR TIME BECAUSE NEITHER THE SPECIFICATIONS NOR YOUR PROPOSAL STATED THAT THE GRAIN OF THE PAPER STOCK MUST RUN IN A PARTICULAR DIRECTION.

ARTICLE 17 OF THE UNITED STATES GOVERNMENT PRINTING OFFICE CONTRACT TERMS NO. 1, INCORPORATED IN THE CONTRACT BY REFERENCE, PROVIDED THAT PENALTIES AND/OR DAMAGES WOULD NOT BE APPLIED AGAINST THE CONTRACTOR FOR DELAYS IN DELIVERY OCCASIONED BY UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR. ALSO, ARTICLE 30 OF THE CONTRACT TERMS PROVIDED THAT ANY DISPUTE CONCERNING QUESTIONS OF FACT ARISING UNDER THE CONTRACT WOULD BE DECIDED BY THE CONTRACTING OFFICER FOR THE GOVERNMENT, SUBJECT TO WRITTEN APPEAL BY THE CONTRACTOR WITHIN 30 CALENDAR DAYS TO THE PUBLIC PRINTER OR HIS DULY AUTHORIZED REPRESENTATIVE, WHOSE DECISION WOULD BE FINAL AND CONCLUSIVE UPON THE PARTIES.

THE QUESTION AS TO WHAT CONSTITUTES AN UNFORESEEABLE CAUSE OF DELAY IS PRIMARILY ONE OF FACT, PROPER FOR DETERMINATION BY THE CONTRACTING OFFICER AND THE HEAD OF THE DEPARTMENT CONCERNED OR HIS DULY AUTHORIZED REPRESENTATIVE. ALBINA MARINE WORKS, INC. V. UNITED STATES, 79 C.CLS. 714. INASMUCH AS BOTH THE CONTRACTING OFFICER AND THE PUBLIC PRINTER HAVE FOUND AND DETERMINED THAT YOUR DELAY UNDER THE CONTRACT WAS NOT DUE TO ANY OF THE EXCUSABLE CAUSES OF DELAY THEREIN ENUMERATED AND THAT THE ADDITIONAL COSTS INCURRED BY YOU WERE NOT DUE TO ANY FAULT OF THE GOVERNMENT, SUCH FINDINGS AND DETERMINATIONS MUST BE ACCORDED FINALITY IN THE ABSENCE OF FRAUD, CAPRICIOUSNESS OR ARBITRARINESS UPON THE PART OF THE DECIDING OFFICERS. B-W CONSTRUCTION COMPANY V. UNITED STATES, 97 C.CLS. 92; ARTHUR W. LANGEVIN V. UNITED STATES, 100 ID. 478. THERE IS NO ALLEGATION OR SHOWING OF FRAUD, CAPRICIOUSNESS OR ARBITRARINESS UPON THE PART OF THE CONTRACTING OFFICER AND PUBLIC PRINTER IN ARRIVING AT THEIR DECISION IN THIS MATTER.