B-162819, DEC. 22, 1967

B-162819: Dec 22, 1967

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HARRISON: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 23. THE CONTRACTOR WAS REQUIRED TO SUBSTITUTE (STRIPPING ACCEPTABLE) FORM NUMBERS. YOU FURTHER STATE THAT THE CONTRACTOR CONSIDERED THAT THERE WAS A CONFLICT BETWEEN THE WRITTEN SPECIFICATIONS AND THE SAMPLE SUPPLIED AND THAT WHEN IT REQUESTED CLARIFICATION. THAT THERE WAS NO PROVISION IN THE SCHEDULE FOR TIME NEEDED FOR APPROVAL OF SAMPLES OR PROOFS. THE SPECIFICATIONS PROVIDED IN PERTINENT PART AS FOLLOWS: "MATERIALS FURNISHED: THE GPO WILL FURNISH F.O.B. THE CONTRACTOR WILL BE REQUIRED TO REVERSE THE POSITIVE X-RAY AREA BACK TO A NEGATIVE (NORMAL CONTINUOUS-TONE X-RAY FILM). THE CONTRACTOR FOLLOWED ITS OWN INTERPRETATION OF THE SPECIFICATIONS AND SAMPLE AND PRODUCED A JOB WHERE THE X-RAY AREA OF THE FILMS WAS NOT REVERSED AS REQUIRED AND.

B-162819, DEC. 22, 1967

TO MR. HARRISON:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 23, 1967, AS SUPPLEMENTED BY LETTER OF DECEMBER 11, 1967, FORWARDING FOR OUR CONSIDERATION THE CLAIM OF CREATIVE ARTS STUDIO, INC., FOR $5,160, REPRESENTING THE COST OF MATERIALS INVOLVED IN PERFORMING CORRECTIVE WORK UNDER A CONTRACT AWARDED TO IT ON MARCH 23, 1966, BY THE GOVERNMENT PRINTING OFFICE (GPO).

IN YOUR LETTER YOU STATE THAT THE CONTRACT CALLED FOR THE MANUFACTURE OF 2,295 DUPLICATE SETS OF SIX X-RAY FILM NEGATIVES TO BE BOUND IN BOOKS. THE GPO FURNISHED THE CONTRACTOR SIX PIECES OF FILM AS CAMERA COPY. FROM EACH OF THE SIX FILMS, THE CONTRACTOR WAS REQUIRED TO SUBSTITUTE (STRIPPING ACCEPTABLE) FORM NUMBERS, AND REVERSE THE POSITIVE FILM TO A NEGATIVE (NORMAL CONTINUOUS X-RAY FILM) AND COMBINE INTO A 1-PIECE FILM. YOU ALSO STATE THAT THE CPO SUPPLIED THE CONTRACTOR WITH ONE PIECE OF FILM FROM A PREVIOUS DUPLICATING ORDER TO BE USED AS A GUIDE.

YOU FURTHER STATE THAT THE CONTRACTOR CONSIDERED THAT THERE WAS A CONFLICT BETWEEN THE WRITTEN SPECIFICATIONS AND THE SAMPLE SUPPLIED AND THAT WHEN IT REQUESTED CLARIFICATION, THE GPO ADVISED IT THAT THE CONTRACT DID NOT REQUIRE REVIEW AND APPROVAL OF PROOFS OR SAMPLES PRIOR TO PRODUCTION OF THE FILMS, AND THAT THERE WAS NO PROVISION IN THE SCHEDULE FOR TIME NEEDED FOR APPROVAL OF SAMPLES OR PROOFS. THE SPECIFICATIONS PROVIDED IN PERTINENT PART AS FOLLOWS: "MATERIALS FURNISHED: THE GPO WILL FURNISH F.O.B. CONTRACTOR'S PLANT: "1. SIX PIECES OF FILM APPROXIMATELY 9 -1/2 X 12 INCHES, IDENTIFIED WITH PAGE NUMBERS 6 THRU 11. EACH FILM CONSISTS OF A POSITIVE FILM AREA (AN X RAY FILM, WHICH HAS BEEN REVERSED) APPROXIMATELY 5-1/2 X 9 INCHES, STRIPPED INTO THE CENTER PORTION OF A FILM NEGATIVE. THE FILM NEGATIVE CONTAINS A FORM NUMBER IN THE UPPER RIGHT AREA, ONE LINE (TITLE, READING FROM BOTTOM TO TOP) IN RIGHT SIDE AREA, AND A FIGURE (PAGE NUMBER) CENTERED BELOW THE X-RAY IMAGE. "2. SIX PIECES BLACK-ON WHITE, SAME-SIZE, CAMERA COPY (TYPEWRITTEN FORM NUMBERS) IMAGE AREA OF EACH APPROXIMATELY 1-1/4 X 1/4 INCHES; THESE FORM NUMBERS TO BE SUBSTITUTED FOR THE FORM NUMBERS NOW ON THE FURNISHED NEGATIVES. "3. ONE PIECE OF FILM FROM A PREVIOUS DUPLICATING ORDER, TO BE USED AS A GUIDE FOR TYPE OF PRODUCT DESIRED. "SUMMARY: FOR EACH OF THE SIX FURNISHED FILMS, THE CONTRACTOR WILL BE REQUIRED TO REVERSE THE POSITIVE X-RAY AREA BACK TO A NEGATIVE (NORMAL CONTINUOUS-TONE X-RAY FILM), AND TO SUBSTITUTE THE NEW FORM NUMBER FOR THE OLD AND TO COMBINE INTO A ONE-PIECE FILM (STRIPPING ACCEPTABLE). THIS CORRECTED FILM TO BE USED TO MAKE THE DUPLICATES (2,275 EACH OF SIX DIFFERENT FILMS - PAGES 6 THRU 11). SEE HEREIN BEFORE UNDER - FILM MATERIAL- AND -DENSITY .'

THE CONTRACTOR FOLLOWED ITS OWN INTERPRETATION OF THE SPECIFICATIONS AND SAMPLE AND PRODUCED A JOB WHERE THE X-RAY AREA OF THE FILMS WAS NOT REVERSED AS REQUIRED AND, THEREFORE, IT CONVEYED TO THE VIEWER THE OPPOSITE OF WHAT SHOULD HAVE BEEN SEEN. THE FILMS WERE DELIVERED TO THE CUSTOMER AGENCY, THE DEPARTMENT OF THE NAVY, ON APRIL 26, 1966, AND ON AUGUST 4, 1966, THE NAVY ADVISED THE GPO THAT THE PRODUCT WAS UNACCEPTABLE. YOU STATE THAT THE DELAY IN REJECTION WAS DUE TO THE FACT THAT THE ERROR WAS NOT APPARENT UNTIL THE ULTIMATE USERS ATTEMPTED TO CORRELATE THE ACCOMPANYING TEXT WITH THE NEGATIVES. THE CONTRACTOR HAS AGREED TO REMAKE THE NEGATIVES WITHOUT ANY CHARGE FOR LABOR OR EQUIPMENT BUT IT REQUESTS REIMBURSEMENT FOR THE COST OF THE MATERIALS INVOLVED. THE CONTRACTOR CONTENDS THAT THE GOVERNMENT SHOULD BEAR THE COST BECAUSE THE SPECIFICATIONS WERE NOT CLEAR, THE GPO DID NOT ANSWER ITS QUESTIONS REGARDING THE SPECIFICATIONS, AND BECAUSE THERE WAS AN UNREASONABLE DELAY IN REJECTING THE PRODUCT.

THE CONTRACTING OFFICER STATES, AND WE AGREE, THAT THE SPECIFICATIONS WERE NOT CLEAR IN THAT THE CONTRACTOR PROPERLY COULD INTERPRET THE SPECIFICATIONS TO REQUIRE THE FURNISHING OF A PRODUCT WHICH CONFORMED TO THE FILM FURNISHED BY GPO FROM A PREVIOUS DUPLICATING ORDER TO SERVE AS A GUIDE FOR THE PRODUCT DESIRED.

INASMUCH AS THE PRODUCT DELIVERED BY THE CONTRACTOR CONFORMED TO THE SAMPLE FURNISHED BY THE GOVERNMENT, AND SINCE THE CONTRACTOR ATTEMPTED TO OBTAIN APPROVAL OF THE PROOFS BY THE GPO BEFORE PROCEEDING WITH THE WORK, WE AGREE WITH YOUR RECOMMENDATION THAT THE COST OF THE MATERIALS FOR REMAKING THE NEGATIVES SHOULD BE BORNE BY THE GOVERNMENT.

ACCORDINGLY, YOU ARE ADVISED THAT THE CLAIM OF THE CONTRACTOR IN THE AMOUNT OF $5,160 MAY BE ALLOWED PROVIDED THE RE-WORKED NEGATIVES MEET THE NEEDS OF THE DEPARTMENT OF THE NAVY.