_______________________ DENIED: March 26, 1993 _______________________ GSBCA 11706 WILMER MANUFACTURING COMPANY, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Ruth A. Lombard, President of Wilmer Manufacturing Company, Beltsville, MD, appearing for Appellant. Wendy Nevett Bazil and Tenley A. Carp, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DEVINE, VERGILIO, and DeGRAFF. DeGRAFF, Board Judge. Appellant, Wilmer Manufacturing Company (Wilmer), appeals the decision of respondent's contracting officer terminating for default Wilmer's right to perform a contract for the supply of garbage can covers. A hearing was held on July 21, 1992.[foot #] 1 Respondent has established that its termination for default of Wilmer's right to perform was proper; therefore, the Board denies the appeal. Findings of Fact 1. On May 4, 1990, respondent, the General Services Administration (GSA), issued solicitation 7FXG-A3-90-7217-S, which requested sealed bids for the supply of garbage can stands, holders, and covers. Appeal File, Exhibit 1; Respondent's Exhibit 2. ----------- FOOTNOTE BEGINS --------- [foot #] 1 Judge Devine conducted the hearing. The case was assigned to Judge DeGraff on January 19, 1993. ----------- FOOTNOTE ENDS ----------- 2. On September 11, 1990, GSA awarded contract GS-07F- 42190 to Wilmer. The contract requires Wilmer to provide covers for fifty-five gallon metal garbage cans. Appeal File, Exhibit 1. 3. Clause A-FSS-23 of Section A of the contract incorporates by reference GSA Form 3507, GSA Supply Contract Clauses. GSA Form 3507 contains Federal Acquisition Regulation (FAR) paragraph 52.249-8, Default, which provides: (a)(1) The Government may . . . by written notice of default to the Contractor, terminate this contract in whole or in part if the Contractor fails to -- (i) Deliver the supplies or to perform the services within the time specified in this contract or any extension; (ii) Make progress, so as to endanger performance of this contract (but see subparagraph (a)(2) below); or (iii) Perform any of the other provisions of this contract (but see subparagraph (a)(2) below). (2) The Government's right to terminate this contract under subdivisions (1)(ii) and (1)(iii) above, may be exercised if the Contractor does not cure such failure within 10 days (or more if authorized in writing by the Contracting Officer) after receipt of the notice from the Contracting Officer specifying the failure. 48 CFR 52.249-8 (1984). 4. Section B of the contract contains the following terms: Cover, Receptacle, Swinging Door (For 55-Gallon Metal Drum): Shall be in accordance with Federal Specification RR-C-625C dated July 20, 1971, and Amendment 1 dated November 29, 1971. Palletization: The shipping containers shall be palletized on 48 inch length x 40 inch width, general purpose . . . wooden pallets. . . . As a minimum, the top load carrying deck shall consist of seven (7) equally spaced deck boards and the bottom load bearing deck shall consist of five (5) deck boards. The minimum acceptable dimensions for the deck boards shall be 3/4 inch in thickness and 3-1/2 inches in width. The pallet stringers shall be 1-1/2 inches in width x 3-1/2 inches in height minimum. The palletized load shall not exceed 2500 pounds in weight. Appeal File, Exhibit 1. 5. Section E of the contract contains the following terms: (a) Inspection system and inspection facilities. (1) The inspection system maintained by the Contractor under the Inspection of Supplies -- Fixed Price clause (FAR 52.246-2) of this contract shall be maintained throughout the contract period and shall comply with all requirements of Federal Standard 368. . . . . . . . (d) Quality deficiencies. . . . . (2) If . . . deficiencies in either plant quality of [sic] process controls are found, the Contractor may be issued a Quality Deficiency Notice (QDN). Upon receipt of a QDN, the Contractor shall take immediate corrective action and shall suspend shipment of the supplies covered by the QDN until such time as corrective action has been completed. The Contractor shall notify the GSA quality assurance office, within 5 workdays, of corrective action taken or to be taken to permit onsite verification by a Government representative. . . . Failure to complete corrective action in a timely manner may result in termination of this contract. (3) This contract may be terminated for default if subsequent Government inspection discloses that plant quality or process controls are not being maintained, supplies which do not meet the requirements of the specification are being shipped, or there is a failure to comply with any other requirement of this clause. Appeal File, Exhibit 1. 6. Clause F-FSS-260-A of Section F of the contract provides, "Delivery is required to be made at destination within 60 calendar days after receipt of order." Appeal File, Exhibit 1. 7. As stated above, Section B of the contract requires the garbage can covers to conform to Federal Specification RR-C-625C. Finding 4. This Federal Specification provides that the covers be formed sheet steel 0.0225 inch or greater in thickness before coating. The specification provides that the covers be coated with a baked enamel paint finish 0.001 inch or greater in thickness. The specification also provides that the painted surfaces shall be free from runs and unevenly coated areas. Respondent's Exhibit 6. 8. Section 4 of Federal Specification RR-C-625C is titled "Quality Assurance Provisions." This section explains that Wilmer is required to perform certain inspections and to perform certain tests, including tests to measure the thickness of the enamel paint coating and the thickness of the base metal. This section explains, in detail, the acceptable methods for performing these tests. The thickness of the enamel paint coating could be measured by either of two methods: (a) Determine thickness using a micrometer. The difference between the measurement before the face paint is removed and the measurement after the paint is removed is the thickness of the face paint. Remove paint using methylene chloride or other organic solvent such as benzene, dry and measure thickness. (b) Measure thickness of paint using a magnetic or scratch gauge. The thickness of the base metal could be measured by one method: Dip a specimen, with the paint removed, into sulfuric acid, sp. gr. 184 (add 40 ml of c.p. H2SO4 to 950 ml of distilled water). Keep immersed until rapid evolution of hydrogen has ceased. Remove specimen and scrub or wipe off the black deposit, then wash with water and dry. Measure thickness of base metal with a micrometer. Respondent's Exhibit 6. 9. Section 4 of Federal Specification RR-C-625C also provides that Wilmer is required to conduct a test to ensure that the enamel paint adhered to the garbage can covers. Respondent's Exhibit 6. 10. As stated above, Section E of the contract requires that Wilmer's inspection system comply with Federal Standard 368 and that the inspection system be maintained throughout the course of the contract. Finding 5. 11. Federal Standard 368 is titled "Quality Control System Requirements," and contains the following terms relevant to this dispute: 1. SCOPE. This standard establishes minimum requirements for a quality control system to be provided and maintained by a contractor under Government contract for furnishing supplies or services. The contractor's quality control system shall include the methods, procedures, controls, records, and maintenance of the system to provide verification of product compliance with contract requirements. The extent of this system shall depend on the complexity of the item under contract. A written description of this system shall be prepared by the contractor and shall be available to the Government. . . . . 4. REQUIREMENTS. The contractor shall provide and maintain a documented quality control system. . . . It shall be available for review by the Government prior to the start of production and during the life of the contract. 5. DETAILED REQUIREMENTS. 5.1 The contractor shall perform all examinations and tests to substantiate conformance to specifications . . . before offering to the Government for acceptance. 5.2.1 Personnel performing quality control functions shall be identified and given sufficient well-defined responsibility, authority, and the organizational freedom to identify and evaluate quality problems, and to initiate, recommend, or provide solutions. . . . . 5.4.1 The contractor shall have all measuring and testing equipment required to perform testing for all characteristics called for in the contract. . . . 5.4.2 Measuring devices, test equipment, gages, jigs, fixtures, shall be inspected at scheduled intervals against specified, certified, or otherwise valid means to ensure continued accuracy. . . . . 5.7 Records. The contractor shall maintain quality control records in sufficient detail to establish evidence that . . . the required examinations and tests have been properly performed. . . . These records shall be available for review by the Government representative and copies of individual records shall be furnished him upon request. 5.7.1 Records shall cover receiving, inspection, calibration of test equipment, in-process inspection, and end-product inspection. The records shall include data on both conforming and nonconforming product, or services, and show inspector's or analyst's name. . . . . 5.10 Written procedures. The contractor shall maintain a current written quality control procedure. This procedure, and all changes thereto, shall be available to the Government representative. It shall describe the administration of the quality control system in use and list authorized names and titles for Government contracts. It shall include: a. An organization chart which clearly depicts the place of quality control function. b. Persons performing quality control functions, their responsibilities, and authority in dealing with the Government on contracts. c. A flow chart of production. d. Inspection stations, inspection procedures, test methods, 100 percent inspection, statistical techniques, formation of lots, lot sizes, collection of samples, sample sizes, frequency of sampling, acceptance/rejection criteria, identification of lots, segregation of lots, disposition of rejected lots, corrective action, and procedure for recording results of inspection. e. Calibration of equipment, frequency, procedures, traceability to standards and records. f. Samples of quality control forms, tags, charts, labels, and any other written matter used to control quality. Appeal File, Exhibit 11. 12. On February 26, 1991, an agency quality assurance specialist, Mr. Martin, inspected one lot of garbage can covers. Mr. Martin determined that Wilmer's shipping cartons did not meet the contract's strength requirements. In addition, his inspection disclosed that the enamel paint did not coat the covers evenly. Also, Mr. Martin determined that Wilmer had not measured the thickness of the paint and the thickness of the base metal in accordance with the provisions of Federal Specification RR-C-625C. Appeal File, Exhibit 5. 13. At the hearing, Mr. Martin testified that he and Wilmer's president discussed the uneven enamel paint coverage that he observed on February 26, 1991, and that Wilmer's president agreed that the paint was unacceptable. Transcript at 149-50. Wilmer's president stated, at the hearing, that she agreed with Mr. Martin that the paint was unacceptable. Id. at 151. 14. Based upon his February 26, 1991 inspection, Mr. Martin sent a quality deficiency notice to Wilmer. This notice states that Wilmer's quality control system was not adequate to prevent shipment of nonconforming material; that samples which were inspected did not meet the specification's requirements; that Wilmer's inspection reports were not signed and dated; that Wilmer's shipping cartons did not meet the contract's strength requirements; and that there was no evidence that Wilmer was measuring the thickness of the paint and of the base metal in accordance with the contract's requirements. The notice states that "failure to take acceptable corrective action on time may result in termination of your right to proceed with this contract. . . . Please provide a written response of correction [sic] action taken or to be taken . . . within 5 workdays after receiving this notice." Appeal File, Exhibit 5. 15. When Wilmer did not provide GSA with a written response to the quality deficiency notice, GSA representatives made several attempts to contact Wilmer to discuss the notice. Appeal File, Exhibits 6, 7. After receiving no response from Wilmer, on March 13, 1991, GSA's supervisory contract specialist sent a message to Wilmer via telefax. The message states that GSA would proceed to terminate Wilmer's right to perform if Wilmer failed to respond to the quality deficiency notice. Id., Exhibit 8. 16. On March 13, 1991, in a memorandum to the contracting officer, Mr. Martin noted that Wilmer had no quality control inspectors, no current written quality control procedure, and no calibration records for its scale. He also noted that inspection reports were not signed and did not include test results. In addition, Mr. Martin noted that Wilmer had not performed the paint or base metal thickness tests required by the contract. Appeal File, Exhibit 9. 17. On March 15, 1991, Wilmer telefaxed to GSA a response to GSA's quality deficiency notice. Wilmer stated that it had ordered shipping cartons which would comply with the contract's requirements. Wilmer noted that, in previous contracts, Wilmer had been required only to provide a certificate of compliance from the base metal supplier and had not been required to perform any tests to determine base metal thickness. Finally, Wilmer stated that its inspection forms had been utilized during its performance of previous contracts. Appeal File, Exhibit 10. 18. On March 28, 1991, the administrative contracting officer wrote to Wilmer. The letter states that Wilmer had failed to deliver one lot of garbage can covers by the due date of February 27, 1991. The letter also states that Wilmer failed to identify quality control personnel, to define inspection stations, to provide calibration records for scales, to sign inspection reports, to include test results in its inspection records, and to perform paint thickness and base metal thickness tests. The letter notifies Wilmer that these conditions were endangering contract performance and must be corrected by April 19, 1991. The letter also notifies Wilmer that failure to effect corrections could result in termination for default of Wilmer's right to perform. Appeal File, Exhibit 11. 19. In a letter to GSA dated April 12, 1991, Wilmer responded to GSA's letter dated March 28, 1991.[foot #] 2 Wilmer's letter states that it had received shipping cartons which met the contract's requirements and that it had corrected the thickness of the paint. Wilmer explained that it measured the thickness of the base metal at the time the metal was received from Wilmer's supplier. Although Wilmer identified its quality control personnel as either Ruth or Meryl Lombard, Wilmer stated that other, unidentified persons might also serve as quality control persons from time to time. The other comments contained in Wilmer's letter do not clearly address the other deficiencies noted in either the quality deficiency notice or the letter dated March 28, 1991, from the administrative contracting officer. Appeal File, Exhibit 13. 20. On April 24, 1991, GSA notified Wilmer that Wilmer's letter dated April 12, 1991, did not address all of the concerns expressed in the administrative contracting officer's letter of March 28, 1991, and that, as a result, Wilmer's right to perform the contract would be terminated for default. Appeal File, Exhibit 14. 21. In a letter to GSA dated April 25, 1991, Wilmer states that it believed that its quality control procedures were adequate, given that the garbage can covers were not complicated to manufacture. Wilmer also states that product inspection was performed continuously during the manufacturing process, that calibration records for the scale were "not applicable," and that inspection reports were usually signed or initialled. Wilmer also asks what type of test results GSA expected to see in Wilmer's inspection reports. Appeal File, Exhibit 15. 22. On June 18, 1991, GSA's administrative contracting officer sent Wilmer a cure notice. Although the cure notice states that the contract requires Wilmer to deliver garbage can covers sixty days after receipt of a purchase order, the cure notice does not state that Wilmer had failed to make timely deliveries. The cure notice states that Wilmer's quality control system was deficient in several respects: It failed to define inspection stations, to provide calibration records for its scales, to include test results in its inspection records, to provide an organizational chart, and to provide a flow chart. The cure notice states that if Wilmer failed to correct these deficiencies by July 3, 1991, GSA could terminate Wilmer's right to perform the contract. Appeal File, Exhibit 18. ----------- FOOTNOTE BEGINS --------- [foot #] 2 Although Wilmer's letter is dated April 12, 1991, it was not telefaxed to GSA until April 23, 1991, when GSA first received it. Appeal File, Exhibit 13. ----------- FOOTNOTE ENDS ----------- 23. In a letter to GSA dated June 25, 1991, Wilmer responded to GSA's cure notice.[foot #] 3 Wilmer states that, in its view, not all of the sections of Federal Standard 368A applied to Wilmer's manufacturing process. Wilmer states that its inspection station was "mobile" and moved "with each operation from raw material to complete product"; that its scale had been checked for accuracy in 1985; that its inspection forms were appropriate for the contract; and that an organizational chart was available. Also, Wilmer provides an example of the flow of work. Appeal File, Exhibit 19. 24. On July 10, 1991, Mr. Martin and Mr. Tom Tribbitt, also a quality assurance specialist, visited Wilmer's plant in order to determine whether Wilmer had complied with the cure notice. Mr. Tribbitt's conclusion was that Wilmer would never comply with the contract's requirements; that Wilmer's quality control system was non-existent; and that Wilmer's measuring instruments had not been checked for accuracy. Mr. Martin concluded that the scale had been calibrated and that Wilmer had an organization chart, a flow chart, and an inspection station. Mr. Martin also determined that Wilmer's inspection records did not include any test results. In response to one of Mr. Martin's questions concerning calibration of test equipment, Wilmer explained that the calipers used to measure paint and base metal thickness belonged to an employee of Wilmer. Mr. Martin explained that, regardless of the owner of the calipers, they were required to be calibrated. Appeal File, Exhibits 20, 21. 25. In a letter to GSA dated August 7, 1991, Wilmer states that it understood that Mr. Martin's only complaint concerning the pallets was that the stringers were less than 3-1/2 inches in height. Wilmer states that its pallet supplier certified that the pallets met the requirements of the contract. Appeal File, Exhibit 23. 26. In a letter to Wilmer dated August 9, 1991, Mr. Martin explains the deficiencies that he found during his visit on July 10, 1991. Specifically, Mr. Martin states that Wilmer's shipping pallets did not meet the requirements of the contract; that Wilmer's inspection records did not include results of tests for enamel thickness, base metal thickness, or enamel adhesion; and that Wilmer had no calibration records for the instruments used to measure base metal and enamel thickness. Appeal File, Exhibit 24. 27. On September 13, 1991, Mr. Martin notified the administrative contracting officer of Wilmer's lack of progress. He stated that Wilmer was not complying with the contract's requirements for testing base metal thickness, enamel thickness, ----------- FOOTNOTE BEGINS --------- [foot #] 3 Although Wilmer's letter is dated June 25, 1991, it was not telefaxed to GSA until July 3, 1991, when GSA first received it. Appeal File, Exhibit 19. ----------- FOOTNOTE ENDS ----------- and enamel adhesion; for providing pallets of certain dimensions; or for calibrating test equipment and maintaining calibration records. Appeal File, Exhibit 25. 28. On September 16, 1991, Mr. Martin notified Wilmer that GSA was exercising its contractual right to inspect garbage can covers before Wilmer shipped any of the covers. Mr. Martin's notice states that shipments could not be made until he had inspected, and also stated that Wilmer should notify GSA seven days before covers were ready for inspection. Appeal File, Exhibit 25. 29. On September 25, 1991, the administrative contracting officer sent Wilmer another cure notice. The notice states that Wilmer had failed to deliver two lots of garbage can covers within sixty days from the date that Wilmer received the purchase orders for the two lots. The notice states that the covers were supposed to have been delivered by July 13, 1991. The notice required Wilmer to present acceptable covers for inspection by October 25, 1991. Appeal File, Exhibit 26. 30. The second cure notice also states that Wilmer failed to test the thickness of the paint, the thickness of the enamel, or enamel adhesion as required by the contract; that the pallets did not conform to the contract's specifications; and that Wilmer failed to maintain quality control records in accordance with Federal Standard 368A. The cure notice provides that GSA would terminate Wilmer's right to perform the contract for default unless the conditions were cured not later than October 25, 1991. Appeal File, Exhibit 26. 31. In a letter to GSA dated October 18, 1991, Wilmer responded to GSA's second cure notice.[foot #] 4 Wilmer states that it shipped part of one of the two lots of covers and that shipment of the second lot was "on hold." Wilmer also explains its testing procedures: Wilmer states that, using calipers, it measured the thickness of base metal at the time it was received from Wilmer's supplier and measured the thickness of the covers after they were painted, and then calculated that the difference between the two figures was the thickness of the paint. The letter states that the pallets complied with Federal Specification NN-P-71B, which, according to Wilmer, permits a tolerance of 1/4 inch in specified dimensions. Wilmer states that its calipers and other measuring instruments were "sent outside for calibration to insure accuracy on a timely basis." Finally, the letter states that inspection reports were available. Appeal File, Exhibit 29. ----------- FOOTNOTE BEGINS --------- [foot #] 4 Although Wilmer's letter is dated October 18, 1991, it was not telefaxed to GSA until October 28, 1991, when GSA first received it. Appeal File, Exhibit 29. ----------- FOOTNOTE ENDS ----------- 32. Federal Specification NN-P-71B, which is not referenced in the contract, provides, "The deckboards and stringers of any one pallet shall be uniform in thickness and height, respectively, with a tolerance of 1/8 inch over the minimum sizes specified in 3.3.2." Section 3.3.2 provides that stringers shall be not less than 3-5/8 inches high. Appeal File, Exhibit 30. 33. On October 25, 1991, Mr. Martin visited Wilmer's plant in order to determine whether Wilmer had any covers ready for inspection. Appeal File, Exhibit 28. According to Mr. Martin, one of Wilmer's employees stated that Wilmer had no garbage can covers ready to inspect or to ship because Wilmer was waiting to receive some component parts from one of its suppliers. Id. 34. At the hearing, Mr. Martin testified that Wilmer could have used a vernier caliper or a micrometer to perform all of the tests required by the contract. Mr. Martin also explained that neither of these would have performed properly unless it had been properly calibrated. Mr. Martin also testified that he had requested calibration records for Wilmer's caliper and that no records were provided. Transcript at 144, 148-49. 35. Mr. Martin also testified that he never saw Wilmer perform any required testing and that Wilmer never presented any documentation to establish that it had performed the enamel thickness, base metal thickness, or enamel adhesion tests in accordance with the contract's requirements. Transcript at 145- 47. 36. At the hearing, Mr. Pedro Caballero, one of Wilmer's employees, testified that he used his own tools at Wilmer. He stated that, in October 1991, he took his calipers to be calibrated. He testified that this was the first time he had taken his tools to be calibrated. Transcript at 75-77. Mr. Caballero also testified that he used his calipers to perform the thickness testing for this contract. Id. at 165. 37. Mr. Caballero explained the method he used to perform the base metal and paint thickness tests for Wilmer. He stated that, in order to perform the tests, he would "grab a piece of the scraps . . . and [ask] the person who was in charge of painting to spray half of it. . . . And then I got my calipers - - I have with me -- and I measure the item that has to be painted and I compare it to the area that has been painted. And I simply rely on simple subtraction to get the thickness of the paint." Transcript at 165. There is no evidence in the record that Wilmer performed any base metal or paint thickness tests on anything other than scrap pieces of base metal. There is no evidence in the record that Wilmer performed any tests on the covers being produced and painted. 38. At the hearing, Wilmer's president stated that she did not claim that Wilmer ever tested base metal thickness as required by the contract. Transcript at 165. Mr. Caballero stated that, in fact, Wilmer did not perform the test as required by the contract. Id. at 165. 39. On November 1, 1991, GSA terminated for default Wilmer's right to perform the contract. The termination letter states that Wilmer had failed to cure the conditions cited in GSA's letter dated September 25, 1991, and had failed to present acceptable material for Government inspection by October 25, 1991. Appeal File, Exhibit 31. 40. Wilmer received the termination letter on November 4, 1991. The ninetieth day within which Wilmer could file this appeal fell on Sunday, February 2, 1992. Wilmer's appeal was timely filed on Monday, February 3, 1992. Appeal File, Exhibit 33; Notice of Appeal. Discussion GSA established that Wilmer did not deliver garbage can covers within the time required and did not cure this default by making covers available for inspection within the time required, failed to conduct required tests, failed to provide proper pallets, and failed to maintain quality control records. Based upon solid evidence, GSA acted reasonably when it terminated Wilmer's right to perform the contract. Each deficiency, taken alone, establishes a valid basis supporting the termination for default. Therefore, the Board sustains GSA's termination for default of Wilmer's right to perform the contract. Late Delivery The contract clearly requires that Wilmer deliver garbage can covers within sixty days after receiving a purchase order. Finding 6. The contract's Default clause provides that GSA had the right to terminate Wilmer's performance for default if Wilmer failed to make timely deliveries. Finding 3. GSA established that Wilmer failed to deliver two lots of garbage can covers within sixty days from the date that Wilmer received purchase orders. GSA directed Wilmer to cure this default by presenting covers for inspection by October 25, 1991. Neither of these lots was ready for inspection by October 25, 1991. Finding 33. Plainly, Wilmer was in default of its contractual obligation to make timely deliveries and Wilmer did not cure this default by presenting covers for inspection within the time required. GSA's termination of Wilmer's contract was proper, unless Wilmer can establish that its delay was excusable. At the hearing, Wilmer did not provide any evidence concerning its failure to deliver or to make covers available for inspection in a timely manner. In its post-hearing brief, Wilmer asserts that its delay was due to GSA's improper rejection of Wilmer's shipments. Wilmer states that it manufactured garbage can covers that met the requirements of the contract and asserts that it could have performed in a timely manner if GSA had simply verified the quality of the covers. In its brief, Wilmer notes that various Government agencies have, for many years, been satisfied with the garbage can covers manufactured by Wilmer. Wilmer asserts that it would have performed in a timely manner if GSA had not insisted that Wilmer perform testing and provide pallets and a quality control system that complied with the contract's requirements. Even if Wilmer is correct that it could have performed timely if GSA had been willing to ignore some contract requirements, GSA was not obligated to waive any of the contract requirements, no matter how insignificant those requirements may seem to Wilmer. The fact that GSA insisted that Wilmer comply with all of the contract's requirements does not excuse Wilmer's delay. Finally, Wilmer asserts that its delay was excusable because GSA's quality assurance specialist, Mr. Martin, was biased against small businesses and women-owned businesses. Wilmer argues that, if Mr. Martin's inspections had been more lenient, Wilmer's performance would have been timely. There is absolutely no evidence in the record to support Wilmer's allegation that Mr. Martin was biased against small businesses or women-owned businesses or to suggest that Mr. Martin's inspections were any more stringent than necessary. In summary, Wilmer failed to make timely deliveries as required by its contract and did not cure this condition by making covers available for inspection within a reasonable time.[foot #] 5 Wilmer's delay is not excusable. Wilmer's failure to perform in a timely manner constitutes a default of Wilmer's contractual obligations. GSA properly terminated Wilmer's right to perform, based upon Wilmer's default. Whitlock Corp. v. United States, 141 Ct. Cl. 758, cert. denied, 358 U.S. 815 (1958); General Floorcraft, Inc., GSBCA 10493, 91-2 BCA 24,023. Testing According to the terms of the parties' contract, GSA was entitled to insist that Wilmer test the covers that it manufactured for base metal thickness, for enamel thickness, and for enamel adhesion. Further, GSA was entitled to require that Wilmer perform these tests in the manner set forth in the contract. Findings 4, 8, 9. As Mr. Martin and Wilmer's employees testified at the hearing, Wilmer never performed any tests in accordance with the requirements of the contract. Findings 35-38. Wilmer's thickness tests consisted of painting portions of scrap pieces of base metal and measuring the ----------- FOOTNOTE BEGINS --------- [foot #] 5 Although GSA provided Wilmer with an opportunity to cure its default, according to the terms of the parties' contract, GSA was not required to do so. Finding 3; Air ___ Inc., GSBCA 8847, 91-1 BCA 23,352. ____ ----------- FOOTNOTE ENDS ----------- difference between the painted and the unpainted portions of the pieces. Finding 37. Clearly, Wilmer's actions did not fulfill the requirements of the contract. Wilmer's tests provided information concerning scrap pieces of metal. But Wilmer's tests provided no information concerning the covers actually being manufactured. The contract's Default clause states that failure to perform any of the provisions of the contract could result in a termination for default. Finding 3. Section B of the contract required Wilmer to comply with Federal Specification RR-C-625C, which required Wilmer to perform paint thickness, base metal thickness, and enamel adhesion tests. Findings 4, 8, 9. The Federal Specification contained exacting instructions for performing these tests. Finding 8. Wilmer did not perform the testing required by the contract. Findings 12, 14, 16, 18, 27, 30, 31, 35-38. Wilmer's failure to test the garbage can covers to ensure that they met the requirements contained in the contract constitutes a default of Wilmer's contractual obligations and Wilmer did not cure this default within a reasonable time. GSA properly terminated Wilmer's right to perform, based upon Wilmer's default. Inland Chemical Co., GSBCA 3946, 75-1 BCA 11,033. Pallet Size Section B of the contract required the pallets used by Wilmer to contain stringers with minimum acceptable dimensions of 1-1/2 inches in width and 3-1/2 inches in height. Finding 4. On July 10, 1991, GSA notified Wilmer that its pallets did not meet the requirements of the contract because the stringers were less than 3-1/2 inches high. Findings 24, 25. Wilmer responded that the pallets were acceptable because they met the requirements of Federal Specification NN-P-71B. Finding 31. Wilmer never contested GSA's determination that the stringers were less than 3-1/2 inches high. Wilmer was required to supply pallets which complied with the terms of the contract, and Federal Specification NN-P-71B was not part of the parties' contract. Even if this specification had been incorporated into the contract, its terms do not support Wilmer's position. Federal Specification NN-P-71B specifies that stringers must be 3-5/8 inches high and permits a tolerance of 1/8 inch over this minimum height. Finding 32. Wilmer's stringers were less than 3-1/2 inches high and so they did not meet either the requirements of the contract or the requirements of Federal Specification NN-P-71B. Wilmer's failure to provide pallets which met the requirements of the contract constitutes a default of Wilmer's contractual obligations. Wilmer did not cure its default, even though it was provided with a reasonable time to do so. GSA established that it properly terminated Wilmer's right to perform, based upon Wilmer's default. Cascade Pacific International, GSBCA 6287, 83-1 BCA 16,501. Quality Control Section E of the contract requires Wilmer to maintain an inspection system as required by Federal Standard 368A. Finding 5. Federal Standard 368A provides that Wilmer was required to provide a written description of its quality control system and to make that written description available to GSA; to identify quality control personnel; to inspect measuring devices for accuracy; to maintain records of inspections and of calibration of test equipment and to make those records available to GSA; and to maintain an organization chart and a production flow chart. Finding 11. Section E of the contract requires Wilmer to respond promptly to Quality Deficiency Notices. Finding 5. Section E also provides that Wilmer's right to perform the contract could be terminated for default if quality or process controls were not maintained. Finding 5. Throughout the course of the contract, Wilmer failed to comply with many of the contract's quality control provisions. Findings 12-19, 22-27, 30, 34, 36. In its post-trial brief, Wilmer maintains that it did not need a complicated quality control system because the garbage can covers were not complicated to manufacture. Wilmer might be correct that it did not need a complicated quality control system. But, it did need to maintain some sort of a system that met the requirements of the contract. This Wilmer failed to do. Wilmer's failure to maintain a quality control system which met the requirements of the contract constitutes a default of Wilmer's contractual obligations and Wilmer did not cure this default, despite being provided with a reasonable opportunity to do so. GSA properly terminated Wilmer's right to perform, based upon Wilmer's default. Orchids Paper Products Co., GSBCA 10555, 91-2 BCA 23,965. GSA correctly determined that Wilmer was in default of several of its contractual obligations and provided Wilmer with an opportunity to cure its default. When Wilmer failed to cure its default within the time permitted, GSA acted reasonably when it terminated Wilmer's right to perform. There were multiple, good grounds and solid evidence to support GSA's decision. Decision For the reasons set forth above, Wilmer's appeal is DENIED. ______________________________ MARTHA H. DeGRAFF Board Judge We concur: ____________________________ ______________________________ DONALD W. DEVINE JOSEPH A. VERGILIO Board Judge Board Judge