BOARD OF CONTRACT APPEALS

U.S. GOVERNMENT PRINTING OFFICE

In the matter of )

)

the Appeal of )

)

**BADGER SCREEN PRINT** ) Docket No. **GPOBCA 13‑98**

Jacket No. 559‑973 )

Purchase Order K‑1205 )

**For the Appellant:** John D. Dunn, Esq., P. Bruce Badger, Esq., Fabian
& Clendenin, Salt Lake City, Utah.

**For the Respondent:** Roy E. Potter, Esq., Associate General Counsel,
U.S. Government Printing Office.

Before **MILLER**, Administrative Judge.

**[DECISION]{.underline}**

This appeal arises out of a contract between the U.S. Government
Printing Office (GPO) and Appellant, Badger Screen Print (Badger), for
the acquisition of silk‑screened T‑shirts. Appellant seeks to recover
\$40,557 for additional costs it incurred in meeting the Government's
allegedly ambiguous color specification. For the reasons which follow,
the Contracting Officer's final decision is **AFFIRMED** and the appeal
is **DENIED**.

**FINDINGS OF FACT**

1\. On May 5, 1997, the GPO's Dallas Regional Printing Procurement
Office (RPPO) issued an Invitation for Bids (IFB) for Jacket 559‑973, a
contract for 103,992 promotional T‑shirts for the U.S. Air Force. Rule 4
File, Tab A at 1.

2\. The IFB contained a detailed description of the composition and
appearance of the basic T‑shirt that was to be furnished. In addition,
the successful contractor was required to screen print artwork on both
the front and back of the shirt. Rule 4 File, Tab A at 1, 2, 7‑9.

3\. The IFB advised potential bidders that they would be required to
furnish T‑shirts described as: "YELLOW TO MATCH PANTONE 136C YELLOW."
(Emphasis in original). Rule 4 File, Tab A at 1.

4\. Appellant submitted a bid of \$311,976 in response to the IFB, which
was the lowest of the four bids received. Rule 4 File, Tabs B, C. After
receiving Badger's written confirmation of its bid, the Contracting
Officer awarded the contract to Appellant. Rule 4 File, Tabs D, E.

5\. The contract required Appellant to submit prior‑to‑production
samples to the Government that were to be "printed on the T‑shirts and
in the inks that will be used for the complete production and the
samples must be in exact accordance with these specifications." Rule 4
File, Tab A at 2. Appellant submitted sample T‑shirts of a significantly
lighter shade of yellow than that called for in the specifications.
*See*, Notice of Appeal, Exhibit E. The color of the samples matched
Pantone 113C. *Compare* Notice of Appeal, Exhibit E *with* [Pantone
Inc., Color Formula Guide 1997-1998]{.smallcaps} (11th prtg. 1995).

6\. By letter dated June 5, 1997, the Contracting Officer rejected
Appellant's prior‑to‑production samples because of certain printing
defects and because the "shirt color does not match PMS 136." Rule 4
File, Tab F. Appellant was ordered to submit an additional set of
samples by June 20, 1997. In addition, the Contracting Officer issued a
Cure Notice to Appellant advising that the company's failure to submit
acceptable prior‑to‑production samples was a condition that was
endangering performance of the contract. Rule 4 File, Tab G.

7\. Appellant thereafter submitted a second set of prior‑to‑production
samples to the Government. In an undated letter accompanying the
samples, Appellant's Vice President, John T. Badger wrote:

> We feel that the yellow Fruit Of The Loom shirt previously sampled fit
> with the description listed in the contract. This set of proofs are
> done with the Hanes gold color shirt.
>
> We do not know which shirt will be acceptable. The Hanes gold costs
> significantly more than the Fruit Of The Loom. Should the Air Force
> decide on the Hanes shirt, the additional cost is \$40,557.00, and a
> modification to this effect should be issued covering the additional
> cost.
>
> Rule 4 File, Tab H.

8\. After reviewing the second set of samples, the Contracting Officer
informed Appellant that the samples would be acceptable, provided Badger
corrected some minor printing deficiencies. Appellant was directed to:

> \[e\]nsure the deficiencies listed above are corrected and the facric
> \[sic\] color of the second set of prior of \[sic\] production samples
> is matched, then proceed with production.
>
> With reference to your undated letter concerning the fabric color; the
> fabric color on the first set of prior to production samples did not
> match the color required by our specifications but the color of the
> fabric on the second set did. Our original invitation for bids
> required a fabric color to match Pantone 136C Yellow. You did not
> indicate any problem matching the specified color in your bid.

Rule 4 File, Tab I.

9\. On October 2, 1997, Appellant requested a contract modification and
additional compensation of \$22,566.68 due to what it described as "an
error in the contract specifications." Appellant explained:

> As specified in the contract, we bid on a "YELLOW" shirt that was
> closest to PMS 136. After submitting our prior to production samples,
> we were informed that your customer wanted a "GOLD" shirt. The "GOLD"
> shirt represents a higher cost than that of the "YELLOW" shirt. We
> supplied and completed the contract with the "GOLD" shirt as per your
> customer's request.

Rule 4 File, Tab L.

10\. The Contracting Officer rejected this request in a letter dated
October 6, 1997. Rule 4 File, Tab M.

11\. Thereafter, Appellant's attorney wrote the Contracting Officer
regarding Appellant's request for additional compensation for what he
described as "a modification of \[Charger's\] bid because the
specifications referred to yellow, rather than the more expensive gold
T‑shirts that were delivered." Appellant's representative further
explained:

> On May 5, 1997, Badger was furnished with a specification sheet that
> it relied on in formulating and presenting its bid. That specification
> sheet called for approximately 100,000 T‑shirts in a **"yellow to
> match pantone 136C yellow**." Badger based its successful bid on the
> costs of yellow T‑shirts that were closest in color to the "pantone
> 136C yellow." When Badger submitted sample T‑shirts, your office
> informed Badger that the specification was intended to refer to gold
> rather than yellow, but that the yellow T‑shirts actually looked
> better, and they would send them for final approval. Subsequently,
> however, Badger was informed that the required color was to be "gold."
> Badger immediately requested a modification to the contract for an
> additional \$40,557.00 because its raw costs for the T‑shirts as well
> as its production costs were greater for gold shirts. The request was
> ignored and a demand was made to Badger to either deliver the gold
> shirts or be found in default. Your office has not formally addressed
> this request.

(Emphasis in original.) Rule 4 File, Tab N.

12\. In a final decision dated January 22, 1998, the Contracting Officer
again rejected Appellant's claim for additional compensation. Rule 4
File, Tab O.

13\. Thereafter, Appellant filed a timely notice of appeal with the GPO
Board of Contract Appeals. Rule 4 File, Tab Q.

**DISCUSSION**

In support of the Contracting Officer's decision to reject the first
prior‑to‑production T‑shirt samples supplied by Appellant, Respondent
submits a declaration from a Printing Specialist in the GPO's Quality
Assurance Section. The Printing Specialist concluded, after examining
the original sample T‑shirt and comparing it to the Pantone 136C
standard, that the T‑shirt did not match the contract's color
specification. Declaration of John D. Kennedy. Appellant does not
challenge this conclusion. Nor should it, as a visual comparison of the
sample T‑shirt with the Pantone 136C standard leads to the conclusion
that the color of the sample T‑shirt provided by Badger bears little
resemblance to the color specified in the contract.

While the sample provided by Appellant clearly did not match Pantone
136C, Appellant asserts that this failure was excusable based on two
interrelated theories. First, Appellant argues that there is an
ambiguity in the contract's color specification such that requiring it
to furnish the "gold" shirt instead of a "yellow" shirt resulted in a
compensable constructive change. Next, it argues that it was impossible
to provide a "yellow" T‑shirt matching Pantone 136C because no domestic
source manufactures a "yellow" shirt that matches Pantone 136C. While
the "gold" shirt Badger ultimately provided matched Pantone 136C, it
cost more than the "yellow" shirt Appellant intended to provide when it
formulated its bid.

The Board concludes that nether theory is persuasive.

[Contract Ambiguity]{.underline}

Appellant claims the contract's color specification was ambiguous
because the word "yellow" preceded the term "Pantone 136C" thereby
modifying "Pantone 136C". Under Appellant's theory, the practical effect
of the disputed specification is to call for the color "yellow closest
to Pantone 136C." Appellant argues, but submits no proof in support of
the contention, that "yellow" is a fabric color reference with a
commonly understood meaning within the T‑shirt industry. However,
Appellant does not further describe what the industry meaning of
"yellow" is.

Resolution of a claim of ambiguity is controlled by established
principles of contract interpretation which this Board previously has
discussed at some length. *See*, *e.g.*, *Custom Printing Co.*, GPOBCA
No. 28‑94 (March 12, 1997), slip op. at 30‑35, 1997 GPOBCA LEXIS 2, 1997
WL 128720; *MPE Business Forms, Inc.*, GPOBCA No. 10‑95 (August 16,
1996), slip op. at 42‑48, 1996 GPOBCA LEXIS 31, 1996 WL 812877; *The
George Marr Co.*, GPOBCA No. 31‑94 (April 23, 1996), slip op. at 41‑44,
1996 GPOBCA LEXIS 43, 1996 WL 273662. In brief, when two contracting
parties have different interpretations of the same contract language,
that disagreement, while not automatically signaling the existence of an
ambiguity, *International Business Investments, Inc. v. United States*,
17 Cl. Ct. 122 (1989), *aff'd without op.*, 895 F.2d 1421 (Fed. Cir.
1990); *Qualitype, Inc.*, GPOBCA No. 21‑95 (April 21, 1998), slip op. at
4, 1998 GPOBCA LEXIS 4, 1998 WL 350484, *recon. denied*, GPOBCA No.
21‑95 (June 24, 1998), slip op., 1998 GPOBCA LEXIS 19, 1998 WL 350480;
*United Computer Supplies, Joint Venture*, GPOBCA No. 26‑94 (January 23,
1998), slip op. at 14, 1998 GPOBCA LEXIS 6, 1998 WL 148845, *aff'd.,*
*United Computer Supplies, Inc./Cole Computer Forms/McCall's Printing
Express, Joint Venture v. United States*, No. 98‑142C (April 2, 1999),
1999 WL 216833 (Fed. Cl.), does raise the possibility that the language
is ambiguous. *RD Printing Assocs., Inc.*, GPOBCA No. 23‑94 (February
24, 1998), slip op. at 6, 1998 GPOBCA LEXIS 5, 1998 WL 148997; *B & B*
*Reproductions*, GPOBCA No. 09‑89 (June 30, 1995), slip op. at 22, 1995
GPOBCA LEXIS 16, 1995 WL 488477.

To be ambiguous the disputed language must be susceptible to more than
one reasonable interpretation. *The George Marr Co.*, *supra*, at 41.
Determining whether contract language is susceptible to two or more
reasonable interpretations and thus latently ambiguous requires a
careful reading not only of the disputed language but of the contract as
a whole so that all of its provisions are given effect. *Qualitype,
Inc.*, *supra*, at 5; *MPE Business Forms, Inc.*, *supra* at 45‑46. If
the contract is ambiguous, that is, if a reasonably prudent contractor
could interpret the contract in a manner different from the drafter's
reasonable interpretation, the language will be construed against the
drafter if the contractor can show that it relied on its interpretation
in formulating its offer. *Randolph Eng'g Co. v. United States*, 367
F.2d 425 (Ct. Cl. 1966); *Midwest Bank Note Co.*, GPOBCA No. 13‑95 (June
22, 1998), slip op. at 10, 1998 GPOBCA LEXIS 15, 1998 WL 350489; *Custom
Printing Co.*, *supra*, at 31, quoting *MPE Business Forms, Inc.*,
*supra*, at 43‑44.

Appellant claims the contract's color specification ambiguity arose
because the contract's use of the word "yellow" in conjunction with the
term "Pantone 136C" modified the color specification in a way which
resulted in a requirement to provide T‑shirts in the color "yellow
closest to Pantone 136C." The contract's use of the designation "Pantone
136C" to describe the desired color of the T‑shirt bears some analysis
as it is important to an understanding of this matter.

Color is a sensation involving complex processes in the human eye and
brain. Visual identification depends on many factors, including the
light source used, the illuminated object itself, and variations in the
spectral response of the observer. [Fred W. Billmeyer, Jr. and Max
Saltzman, Principles of Color Technology]{.smallcaps}, 23 (1966). The
visualization of any color is relative, as there is no certainty that
two people will imagine color exactly the same way based on its name.
[Leatice Eiseman & Lawrence Herbert, The Pantone Book of
Color]{.smallcaps} 11 (1990).

That different persons perceive and describe colors in different manners
is amply demonstrated in this appeal. Appellant describes Pantone 136C
as "gold". Rule 4 File, Tab H. Respondent describes the same color as
"dark yellow" or "orange yellow." Other users of Pantone 136C have
described it as "gold" (*see*, University of Minnesota Duluth, *UMD
Publications -- UMD Visual Identity Guide* (last modified Dec. 8, 1997)
\<http://www.d.umn.edu/currents/logo/vis‑id.html\>) or "Sunflower"
(*see*, New Zealand Ministry of Commerce, New Zealand Electrical Code of
Practice § 3, Table 1: Sign Colours (last modified July 7, 1998)
\<http://www.moc.govt.nz/ocee/codes/ecp53/ecp53‑04.html\>. Appellant
describes the color of the shirt it initially supplied as "yellow." Rule
4 File, Tab H. Respondent describes it as "light or lemon yellow" and
"bright yellow." Respondent's Brief at 1, 3.

The problem of differing perceptions of color was the impetuous behind
the development of the color communication, specification and
reproduction system known as the Pantone Matching System (PMS). That
system was developed to solve problems associated with producing
accurate color matches in the graphic arts community. The PMS was
developed based on the premise that the spectrum of color is seen
differently by each individual. Pantone, Inc., *All About Color --
Corporate History* (visited Apr. 14, 1999)
\<http://www.pantone.com/aboutpantone/corphist1.htm\>. The PMS, and
similar competing systems, provide graphic artists a way of accurately
describing colors without resorting to subjective color naming systems.
The system's key component is a copyrighted publication that matches
particular colors with individual identification numbers. The company
also produces number‑coded, tear‑out color chips that can be given to
printers or other manufacturers to allow them to match a specified color
sample*. See, Pantone, Inc. v. Esselte Letraset, Ltd.*, 878 F.2d 601,
602‑3 (2d Cir. 1989); *Datafold Forms, Inc*., ASBCA No. 20771, 76‑2 BCA
¶ 12,020 at 57,658. In the graphic arts industry, the Pantone Matching
System is now the most popular and widely used color matching system.
[Mark Beach,]{.smallcaps} [Getting it Printed]{.smallcaps} (rev. ed.
1993) 28; [Marj Green, The Business Forms Handbook]{.smallcaps} (4^th^
Ed.) 63; [Richard Romano,]{.smallcaps} [The GATF Encyclopedia of Graphic
Communications]{.smallcaps} 574 (1998).

Thus, the contract's use of the term "Pantone 136C" resulted in a
requirement for a specific, standardized color, rather than general
range of colors. A fundamental principle of contract interpretation
requires the Board to give a reasonable and effective meaning to each of
the terms of a contract. RESTATEMENT OF CONTRACTS (SECOND), § 203(a);
*Fortec Constructors v. United States*, 760 F.2d 1288, 1292 (Fed. Cir.
1985). The Board will not assume that the parties' contract contains
language that means nothing at all. Another familiar principle of
contract interpretation is expressed in the words "*expressio unius est
exclusio alterius*" -- that is, when certain matters are stated in a
contract, a court will presume that the parties intended to exclude
similar matters not mentioned. *Delta Mining Corp. v. Big Rivers
Electric Corp*., 18 F.3d 1398 (7^th^ Cir. 1994) (citing *Plumbers &
Steamfitters Local No. 150 Pension Fund v. Vertex Construction Co*., 932
F.2d 1443, 1449 (11^th^ Cir. 1991)). From this, the Board concludes that
by designating Pantone 136C as the color to be provided, the parties
intended to distinguish that color from other colors in the Pantone
Matching System.

Finally, the Board is not troubled by the inclusion of the word "yellow"
with the Pantone designation, as Pantone 136C is unquestionably a shade
of the color yellow. *See*, Notice of Appeal, Exhibit E. The color
yellow is defined as "a color whose hue resembles that of ripe lemons or
sunflowers or is that of the portion of the spectrum lying between green
and orange." [Merriam Webster's Collegiate Dictionary]{.smallcaps} 1371
(10th ed. 1996).

In short, when the Appellant's contract is read as a whole, there is
only one way to reasonably interpret the color specification, and that
is that the Government was seeking a specific color, designated as
Pantone 136C, and no other color. Under Appellant's interpretation, the
specific and objective Pantone 136C color designation would be replaced
by the general, subjective designation of "yellow closest to Pantone
136C." Accordingly, the Board concludes that there is no ambiguity, that
the Appellant's interpretation of the contract is unreasonable, and that
the Respondent's interpretation is correct.

[Impossibility/ Commercial Impracticability]{.underline}

Appellant also contends that it was impossible for it to comply fully
with the color specification because no domestic manufacturer could
supply a "yellow" T‑shirt that matched Pantone 136C.

The Board sees nothing in the facts here that would raise a legitimate
issue of \"commercial impracticability.\" To come within the limited
doctrine of impossibility, which encompasses commercial
impracticability, one must show actual impossibility or that performance
could be achieved only at excessive and unreasonable cost. A showing of
simple economic hardship is not sufficient. *See, Jennie‑O Foods, Inc.
v. United States,* 217 Ct. Cl. 314, 328‑29, 580 F.2d 400, 409 (1978);
*American Combustion, Inc.,* ASBCA No. 43712, 94‑3 BCA ¶ 26,961 at
134,243. *See also, Natus Corporation v. United States,* 178 Ct. Cl. 1,
371 F.2d 450 (1967); *Whitlock Corporation v. United States,* 141 Ct.
Cl. 758, 159 F.Supp. 602, *cert. denied,* 358 U.S. 815 (1958).

The burden of proving impracticability lies with the contractor, who
must also show that its difficulties were not attributable to its own
subjective fault. *See, Intercontinental Manufacturing Company, Inc. v.
United States,* 4 Cl. Ct. 591, 598‑600 (1984); *GLR Constructors,* ENG
BCA No. 6021, 94‑3 BCA ¶ 27,216, at 135,653; *Crown Welding, Inc.,*
ASBCA No. 36107, 89‑1 BCA ¶ 21,332, at 107,571; *HLI Lordship
Industries, Inc.,* VABCA No. 1785, 86‑3 BCA ¶ 19,182, at 97,026.
*Accord, JR Composition,* GPO BCA 8‑86 (May 19, 1989), Sl. op. at 1,
1989 GPOBCA LEXIS 54, 1989 WL 384978 (*citing, Koppers Company v. United
States,* 186 Ct. Cl. 142 (1968)). In the instant appeal, Appellant has
submitted no such proof.

Moreover, a contractor can disprove its own claim of commercial
impracticability by showing that to some extent it can successfully
perform as expected under the contract. *See, GLR Constructors, supra,*
94‑3 BCA at 135,653; *American Combustion, Inc., supra,* 94‑3 BCA at
134,243. Here, the evidence indicates that the Appellant was able to
provide a silk‑screened T‑shirt that matched Pantone 136C. That it
describes the matching shirt as "gold" rather than "yellow" is of no
legal significance. Therefore, there is no basis for finding that a
situation of commercial impracticability existed in this case.

Notwithstanding the above‑cited defects in Appellant's argument, in
cases where contractors have encountered higher than expected costs, the
courts and boards have imposed stringent standards for recovery. In the
instant appeal, the contractor claims an increase in cost of performance
of approximately 13 per cent over the original bid price. This alone is
insufficient to sustain a claim of commercial impracticability. Relief
will not be granted unless the costs of performing the work are so much
greater than anticipated as to render performance commercial senseless.
*See*, *Soletanche Rodio Nicholson (JV)*, ENGBCA No. 5796, 94‑1 BCA ¶
26,472; *SMC Info. Sys., Inc*., GSBCA No. 9371, 93‑1 BCA ¶ 25,485;
*Ocean Salvage, Inc*., ENGBCA No. 3485, 76‑1 BCA ¶ 11,905. A modest
price increase, like the one sustained by Appellant, will not, by
itself, establish commercial impracticability. *Transatlantic Financing
Corp. v. United States*, 363 F.2d 312 (D.C. Cir. 1966) (14% increase in
cost not sufficient to constitute impracticability); *Naughton Energy,
Inc*., ASBCA No. 33044, 88‑2 BCA ¶ 20,800 (contractor assumed risk of
59% price increase); *Gene Peters*, PSBCA No. 999, 83‑2 BCA ¶ 16,694 (no
relief granted for rental rate 15% above fair market value).

[Domestic Content Requirement]{.underline}

Appellant also claims that no *domestic* manufacturer makes a "yellow"
T‑shirt that matches Pantone 136C. The Board has been unable to find any
contract provision that required Appellant to provide domestically
manufactured T‑shirts. The only contract provision that touches on this
issue is a Buy America clause that is incorporated by reference. *See*,
Rule 4 File, Tab A at 1. That clause provides:

> \(b\) The contractor agrees that, unless otherwise provided under the
> "certifications" on the bid, there will be delivered under the
> contract only domestic source end products, except those‑
>
> \(1\) For use outside the United States;
>
> \(2\) That the Government determines are not mined, produced, or
> manufactured in the United States in sufficient and reasonably
> available commercial quantities of a satisfactory quality;
>
> \(3\) For which the agency determines that domestic preference would
> be inconsistent with the public interest; or
>
> \(4\) For which the agency determines the cost to be unreasonable.

GPO Contract Terms, ¶ 36, GPO Publication 310.2 (Rev. 9-88). This
contract provision implements the Buy American Act, 41 U.S.C. §§ 10a,
*et seq*. Under the terms of that statute, the use of foreign articles
in the performance of U.S. Government contracts is discouraged by giving
a statutory preference to

domestic articles. However, the use of foreign articles is not
prohibited by either the Act, or GPO Contract Terms.

The domestic goods preference is administered through a system of bid
evaluation factors that are used to determine if the price of an offered
domestic product is "unreasonable." A Contracting Officer determines
price reasonableness by adjusting each bid offering foreign products by
adding a factor of 6% to the bid for evaluation purposes. However, if
the low acceptable domestic bid is from a small business or from a
bidder located in a labor surplus area, a factor of 12% is added to the
bid. *See*, Printing Procurement Regulation (PPR), GPO Publication 305.3
(Rev. 5‑99) Ch. I, § 9.2(c)(1)(i). If the foreign bid remains low after
application of the evaluation factor, then the cost of the domestic bid
is considered to be unreasonable, and award is made to the low bid
offering foreign products.

Thus, neither the contract specifications, nor the Buy America clause
incorporated by reference, restrict potential contractors from
submitting bids based on supplying T‑shirts of foreign manufacture. This
further erodes Appellant's arguments, as there is no showing that a
foreign manufacturer could not have supplied a T‑shirt matching Pantone
136C.

[Duty of Contractor Prior to Bidding]{.underline}

Appellant's argument that it was impossible to provide a "yellow"
domestically manufactured T‑shirt matching Pantone 136C raises a further
concern. Assuming *arguendo* that Appellant believed it was impossible
to meet the color specification, it is unclear why Appellant would have
submitted a bid in response to the solicitation for Jacket 559‑973. An
IFB is, among other things, an invitation to submit an offer. The
submission of a signed bid in response to an IFB is an irrevocable offer
to perform the contract. This offer, upon acceptance by the Government,
becomes a binding contract. [Paul Shnitzer, Government Contract
Bidding]{.smallcaps} at 5‑2 (3rd ed. 1992).

Appellant submitted a sealed bid in response to the IFB for Jacket
559‑973. Rule 4 File, Tab C. That offer was accepted by the Government
and a binding contract was formed. Rule 4 File, Tab E. *Polytronic
Research, Inc.*, ASBCA No. 5918, 1962 BCA ¶ 3548. In submitting its bid,
Appellant was affirmatively representing to the Government that it could
perform Jacket 559‑973. It is well established that the Government does
not owe Appellant a duty of determining for Appellant's benefit whether
the contract award will become a profitable piece of business.
*Valveaire, Aircraft Division Abbotwares*, ASBCA No. 8322, 1964 BCA ¶
4177. According to the ASBCA:

> The responsibility is upon bidders to review the invitation for bids
> to determine whether they can make the items concerned and when an
> erroneous bid is submitted (either because of an inadequate review of
> the invitation or because of an erroneous estimate by the bidder of
> its capabilities) and as a result there is a delay or failure in
> performance, the burden falls on the contractor as it is not due to a
> cause beyond the contractor's control and without its fault or
> negligence.

*Polytronic Research, Inc.*, ASBCA No. 5918, 1962 BCA ¶ 3548 at 17,998.
In a similar case, the ASBCA held:

> Basically, the responsibility is on the bidder to ascertain what is
> called for by an invitation for bids and whether he has the technical
> and financial facilities to produce the item sought.

*Valveaire, Aircraft Division Abbotwares*, ASBCA No. 8322, 1964 BCA ¶
4177.

Stated otherwise, the law places on the contractor's shoulders the
responsibility for determining the availability of the supplies,
materials, and products necessary for performance prior to bidding.
*See*, *Interstate Coatings, Inc. v. United States,* 7 Cl. Ct. 259
(1985); *ACS Construction Co.,* ASBCA No. 33832, 87‑3 BCA ¶ 20,138,
*aff'd,* 848 F.2d 1245 (Fed. Cir. 1988); *DeLaval Turbine, Inc.,* ASBCA
No. 21797, 78‑2 BCA ¶ 13,521; *Datametrics, Inc.,* ASBCA No. 16086, 74‑2
BCA ¶ 10,742; *Therm‑Air Manufacturing Co.,* ASBCA No. 17128, 74‑2 BCA ¶
10,652. The risk is not shifted to the Government just because the
contractor experiences difficulty in that regard. *See*, *Pioneer
Enterprises, Inc.,* ASBCA No. 43739, 93‑1 BCA ¶ 25,395; *Toyad Corp.,*
ASBCA No. 26785, 85‑3 BCA ¶ 18,354. *See also, Gold Country Litho*,
GPOBCA No. 22‑93 (Sept. 30, 1996), 1996 GPOBCA LEXIS 27, 1996 WL 812956.

The Board quotes with approval a passage from *Consolidated Diesel
Corporation*, ASBCA No. 10486, 67‑2 BCA ¶ 6669, in which the ASBCA held:

> A bidder who knows or should have known that the specifications are
> impossible of performance, but bids anyway without raising any
> objection to the specifications, cannot thereafter be relieved from
> the consequences of impossibility, as in bidding with actual or
> construction \[sic\] knowledge of the impossibility, he assumes the
> risk . . . . A bidder who is on notice of an \'incipient problem\',
> but neglects to bring it to the attention of the contracting officer
> and get it solved before the bid opening, cannot expect to have the
> problem resolved in his favor.

(Citations omitted.) *Id*. at 30,952. It appears that Appellant did
precisely what this decision proscribes.

**CONCLUSION**

For the foregoing reasons, therefore, Appellant's appeal is **DENIED**.

May 13, 1999 KERRY L. MILLER

Administrative Judge