B-153382, FEB. 17, 1964

B-153382, FEB. 17, 1964

TO PUBLIC PRINTER, U.S. GOVERNMENT PRINTING OFFICE:

BY LETTER DATED JANUARY 28, 1964, WITH ENCLOSURES, YOU REQUESTED OUR DECISION AS TO WHETHER PAYMENT OF $2,835.10 MAY BE MADE TO THE BRANDAU CRAIG DICKERSON COMPANY, NASHVILLE, TENNESSEE, FOR REPRINTING AN ORDER FOR 400,000 FORMS ENTITLED "STOLEN MONEY ORDER FORMS--- WARNING NOTICE," IN THE CIRCUMSTANCES DESCRIBED.

THE GOVERNMENT PRINTING OFFICE ON AUGUST 26, 1963, PLACED ORDER NO. 43189 WITH BRANDAU CRAIG DICKERSON COMPANY FOR 400,000 FORMS DESCRIBED ABOVE FOR A TOTAL COST OF $2,760. THE SPECIFICATIONS PROVIDED THAT THE FORMS WERE TO BE PRINTED ON EACH SIDE WITH A REGULAR OR SLIT-TYPE PERFORATION EVERY 3 1/2 INCHES ACROSS THE 5 1/2 INCH DIMENSION FOR EASY SEPARATION, (PERFORATION MAY BE PRINTED OR BLIND). ALSO, THE CONTRACTOR WAS REQUIRED TO FURNISH THE PAPER NECESSARY FOR PRINTING THE JOB AND TO MAKE SHIPMENT F.O.B. DESTINATION. SHIPMENT WAS DUE TO BE MADE ON SEPTEMBER 13, 1963.

SHIPMENT WAS MADE AS PROMISED ON SEPTEMBER 13, 1963, AND THE CONTRACTOR WAS PAID THE AGREED UPON CONTRACT PRICE OF $2,760, ON OCTOBER 18, 1963. THEREAFTER, ON DECEMBER 6, 1963, THE ORDERING AGENCY, THE POST OFFICE DEPARTMENT, NOTIFIED THE GOVERNMENT PRINTING OFFICE THAT THE 400,000 COPIES OF THE FORMS RECEIVED BY THEM HAD PINHOLE PERFORATIONS; THAT THIS FORM IS TO BE OVERPRINTED ON MIMEOGRAPH EQUIPMENT; THAT FIELD INSTALLATIONS WERE EXPERIENCING CONSIDERABLE DIFFICULTY IN OVERPRINTING THE FORMS IN THAT PAPER SPECKS FROM THE PINHOLE PERFORATION PICK UP ON THE INKED MIMEOGRAPH STENCIL OBLITERATING THE IMAGE AND KNOCKING HOLES IN THE STENCIL. IN VIEW OF THE FOREGOING, THE POST OFFICE DEPARTMENT REQUESTED THE GOVERNMENT PRINTING OFFICE TO HAVE REQUIRED 400,000 COPIES OF THE FORMS SO THAT THE POST OFFICE DEPARTMENT COULD HAVE DELIVERY BY DECEMBER 16, 1963.

IT IS REPORTED THAT AFTER NEGOTIATION WITH YOUR OFFICE, THE CONTRACTOR AGREED TO REPRINT THE JOB BUT ADVISED THAT HE DID NOT ACCEPT THE RESPONSIBILITY FOR THE IMPROPER PERFORATION BECAUSE THE SPECIFICATIONS INVOLVED DID NOT ELIMINATE THE USE OF THE "PINHOLE" PERFORATION AS THE"REGULAR" PERFORATION COULD BE CONSTRUED AS ALLOWING A "PINHOLE" PERFORATION.

YOU STATE THAT IT WAS THE OPINION OF YOUR OFFICE AT THE TIME THE JOB WAS REJECTED THAT BRANDAU CRAIG DICKERSON HAD NOT FOLLOWED THE SPECIFICATIONS IN THE PERFORATION OF THE JOB, IN THAT YOUR INTERPRETATION WAS BASED ON YOUR USE OF THE WORD "REGULAR" IN THE GOVERNMENT PRINTING OFFICE AS MEANING A SLIT-TYPE RATHER THAN A PINHOLE PERFORATION. HOWEVER,YOU NOW ACKNOWLEDGE, BASED ON A REVIEW OF YOUR SPECIFICATIONS AND YOUR INQUIRIES AMONG COMPANIES REGULARLY ENGAGED IN THE PRINTING TRADE, THAT YOUR SPECIFICATIONS WERE AMBIGUOUS AS STATED AND THAT YOU SHOULD HAVE MADE IT CLEAR IN THE SPECIFICATIONS THAT A SLIT-TYPE PERFORATION WAS REQUIRED IN VIEW OF THE NATURE OF THE USE OF THE FORMS INVOLVED. ON SUCH BASIS, YOU URGE THAT THE BRANDAU CRAIG DICKERSON COMPANY IS ENTITLED TO THE FULL COST OF $2,835.10 FOR THE REPLACEMENT SHIPMENT ORDERED BY YOU.

GENERALLY, IN SPEAKING OF A WORD OR EXPRESSION PECULIAR TO A PARTICULAR TRADE OR PROFESSION, PROOF IS NOT ADMISSIBLE TO SHOW A CUSTOM OR USAGE THAT CONTRADICTS LANGUAGE IN A CONTRACT, EITHER EXPRESSLY OR BY NECESSARY IMPLICATION. AN EXCEPTION TO THIS GENERAL RULE EXISTS, HOWEVER, WHEN THE MEANING OF THE LANGUAGE IN A CONTRACT IS NOT ASCERTAINABLE UNLESS OUTSIDE EVIDENCE OF CUSTOM AND USAGE IS FURNISHED TO EXPLAIN THE MEANING AND INTENTION OF THE PARTIES. THEREFORE, WHILE ,PERFORATION" HAS BEEN DEFINED JUDICIALLY TO BE A HOLD MADE BY PIERCING, PUNCHING, OR BORING, AND IMPLIES SOME PHYSICAL ACT DONE UPON MATERIAL IN WHICH THE PERFORATION EXISTS (METER CO. V SCHWARTZ, 156 F.SUPP. 893, 894, WORDS AND PHRASES--- PERFORATION), NO SUCH DEFINITION WAS APPLIED JUDICIALLY WITH RESPECT TO THE ADJECTIVES "REGULAR," "PINHOLE," OR "SLIT-TYPE," USED TO MODIFY PERFORATION AS USED IN THE SPECIFICATIONS WHICH WERE FOLLOWED BY THE CONTRACTOR IN PERFORATING THE FORMS IN QUESTION. IN FACT, THE CONTRACTOR USED THE MORE EXPENSIVE "PINHOLE" PERFORATION METHOD TO HIS FINANCIAL DETRIMENT AND IN CONFORMANCE WITH TRADE USAGE.

ACCORDINGLY, SINCE YOU REPORT THAT THE SPECIFICATIONS WERE AMBIGUOUS AND THAT THE INTERPRETATION PLACED ON THEM BY THE CONTRACTOR WAS REASONABLE OUR OFFICE WILL NOT OBJECT TO PAYMENT TO THE BRANDAU CRAIG DICKERSON COMPANY FOR THE REPLACEMENT SHIPMENT, AS RECOMMENDED BY YOU.