ABCDE _________________________ GRANTED: June 30, 1992 _________________________ GSBCA 10664 ATD-AMERICAN CO., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Jerome M. Zaslow, President, ATD-American Co., Wyncote, PA, appearing for Appellant. A.R. Dattolo, Office of Regional Counsel, General Services Administration, Atlanta, GA, counsel for Respondent. Before Board Judges LaBELLA, WILLIAMS, and VERGILIO. VERGILIO, Board Judge. Appellant, ATD-American Co., filed this appeal on June 4, 1990, challenging the decision of respondent, the General Services Administration (GSA), terminating for default three purchase orders under appellant's contract to supply cloth bunting. The parties submitted the case on the record. The agency has failed to meet its burden of establishing a valid basis for the default. The record does not support the conclusion that appellant impermissibly failed to timely deliver the material or that the inspected bolts of material were defective (either in terms of imperfections or of material shortage). Accordingly, the Board grants the appeal. Findings of Fact 1. On May 4, 1989, under a sealed bid procurement, the agency awarded to appellant a requirements contract, to run from July 1, 1989, through June 30, 1990. The agency accepted appellant's bids on four line items which called for the provision of "cloth, bunting, cotton, mercerized," in the color blue, to four different sites. Appeal File, Exhibit 2, Award, at 1 ( 15), and Solicitation at 2-3 ( B, Items 16-19). 2. The contract required appellant to make delivery within ninety days of receipt of an order. Appeal File, Exhibit 2, Solicitation at 22 (F-FSS-260-A). Under the contract, the agency could inspect goods at the source prior to shipment. Id. at 19-20 (552.246-73 Source Inspection (FEB 1986); 552.246-77 Contractor Inspection Requirements (FEB 1986)). 3. The contract contains a default clause: 62. DEFAULT (FIXED-PRICE SUPPLY AND SERVICE) (APR 1984) (a)(1) The Government may, subject to paragraphs (c) and (d) below, 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 . . . . Appeal File, Exhibit 2, Solicitation at 35 (552.253-70). 4. The solicitation included descriptions of four colors of bunting, each referencing the same federal specification. Each such item contained an "EXCEPTION TO THE SPECIFICATION" that stated, "The bunting cloth shall be provided in a 50 yard +/- 5 yards bolt with not more than two pieces of cloth." However, for the blue bunting which appellant was to provide, the statement was identical except for one difference: it stated "50 yard +/- yards," rather than "+/- 5 yards"--no number was specified for acceptable deviation. Id. 5. Appellant makes the assertion, which we credit, that the industry practice is to allow some leeway in the "put-up" of a bolt. Appellant found it very difficult on subsequent orders to produce bolts of exactly fifty yards, particularly given the contract limitation that each bolt could contain only two pieces of cloth. Appeal File, Exhibit 9. The agency disputes appellant's interpretation of the contract and depiction of industry practice. The agency has placed into the record three documents which appear to be solicitation descriptions for similar cloth bunting. Agency Answer, Exhibits 2-4. However, these descriptions contain a date and a "supersedes" date, presumably indicating the date of the description previously in effect. None of the descriptions are relevant to an industry practice at the time of the bid in question. At best, they indicate that the agency altered the description here at issue. 6. This appeal involves three orders that the agency placed under the contract, with delivery dates of December 23, 1989, December 29, 1989, and February 3, 1990, respectively. Appeal File, Exhibit 5. 7. On January 24, 1990, appellant wrote to the agency requesting a no-cost extension of time for filling its orders. Appellant stated that its supplier could meet a delivery deadline of February 9. Appeal File, Exhibit 4. The agency agreed to the extension but stated: "Failure to deliver the order on or before February 9 1990 will result in the Termination for Default of the Contract." Id., Exhibit 5. 8. On March 5 or 6, prior to anticipated shipment, agency representatives inspected bunting material marked for delivery under one of the orders. The agency rejected the materials, giving two reasons. First, the "put-up" was measured at forty- five, rather than fifty, yards. Second, the inspectors assigned the material ninety "demerit points" for poor quality, a total that exceeded the maximum of eighty-three; the inspection report does not detail the defects found. Appeal File, Exhibits 6, 7. 9. By letter dated March 8, the agency provided appellant with notice terminating for default the three delivery orders. The notice simply cites failure to deliver and does not reference the rejected shipment. Appeal File, Exhibit 8. 10. Although the record suggests that no material reached the required destinations, the record contains no information explaining what happened between the agency's granting of the requested extension to February 9 and the inspection in early March. Regardless of when appellant made the particular material available for inspection, the agency inspected it. 11. Appellant asserts that, had the agency not rejected its shipments, it could have filled all three orders promptly. Appeal File, Exhibit 9; Appellant's letter (Sept. 4, 1990). The agency does not suggest otherwise. The record does not enable the Board to conclude that the failure to deliver was due to anything other than the agency's delay in making its inspectors available; that is, the Board cannot conclude that delay was due to the fault or negligence of the contractor or subcontractor. 12. Appellant asserts that the inspectors did not properly inspect the bunting. Specifically, it claims that the inspectors stood abnormally close to the cloth and marked demerit points for anything they considered a defect, both without regard to the applicable guidelines. Appeal File, Exhibit 9. Appellant asserts that, after conducting a proper inspection, the inspectors concluded that rolls initially rejected met the contract requirements, and that the contracting officer would not reconsider the decision to default based upon this information. Id. at 2-3; Appellant's letter (Sept. 4, 1990). The agency denies the assertions, but has introduced no evidence into the record (e.g., affidavits, or affirmative statements of what did or did not transpire) which demonstrates that the inspections were properly conducted, or that the rejected cloth bunting, in fact, failed to satisfy the solicitation requirements. Agency Answer at 2-3. 13. Lacking any evidence besides that which we have detailed, we cannot find that the inspection was conducted properly or that the material failed to satisfy the solicitation requirements. Discussion The Government has the burden of justifying the termination for default. Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 765 (Fed. Cir. 1987); Arctic Refrigeration & Air Con- ditioning, Inc., GSBCA 8073, 87-3 BCA 20,078, at 101,655. The agency has raised three possible bases supporting the default termination--failure to deliver, excessive imperfections in the material, and shortage of material. The record fails to support any basis for defaulting the contractor. Although delivery at designated sites did not occur by February 9, the agency has not demonstrated that lack of delivery could serve as a valid basis for default termination. The record indicates that any delay was due to the agency's failure to make its inspectors available, and was not due to the fault or negligence of the contractor or its subcontractor. Findings 10, 11. Had the goods passed inspection, delivery would have been timely. Finding 11. We cannot find that the goods were properly rejected. The agency advanced two reasons for its action. Finding 8. One-- poor quality--is not supported by the record. Findings 12-13. The other was that the inspected bolts fell five yards below the minimum put-up. Appellant argues that the contract contained a typographical error, i.e., that description should have specified 50-yard bolts "+/- 5 yards," as did the other bunting items. We agree that the contract can only logically be read in this manner. Without a number indicating an acceptable tolerance of deviation, the provision makes no sense. As written, it allows "+/-" some unspecified number of yards. If it stated "+/- 0," or omitted the "+/-" altogether, the inspectors' interpretation would be reasonable. Reading it together with the other items, and taking into account industry practice, however, we find that the contract allowed appellant five yards leeway and that its shipment therefore should not have been rejected. Findings 4-5. Decision The appeal is GRANTED. Respondent is directed to convert the termination for default into one for the convenience of the Government. __________________________ JOSEPH A. VERGILIO Board Judge We concur: _____________________________ __________________________ VINCENT A. LaBELLA MARY ELLEN COSTER WILLIAMS Board Judge Board Judge