BOARD OF CONTRACT APPEALS
U.S. GOVERNMENT PRINTING OFFICE
In the Matter of )
)
the Appeal of )
)
BOOKBINDERS OF NEW MEXICO ) Docket No. GPOBCA 06-00
Program 6713-S )
Print Order 60001 )
DECISION ON TIMELINESS
On March 7, 2000, the Board received, via U. S. Postal Service,
Appellant's appeal letter of March 1, 2000. Appellant sought to
appeal a decision of the Contracting Officer dated November 19,
1999, that rejected Print Order 60001 for multiple defects and
required Appellant to rebind and redeliver the products by
December 3, 1999.
As it appeared that the appeal might be untimely, the Board
issued an Order requiring Appellant to "show cause why this
appeal should not be dismissed for failure to file its appeal
within 90 days of receipt of the Contracting Officer's final
decision." Order to Show Cause (March 22, 2000) (hereinafter
"Order"). Appellant was directed to respond to the Order within
10 days of receipt. Id.
The Board's first attempt to serve the Order on Appellant by
Certified Mail was returned to the Board marked "unclaimed." The
Board's second attempt to serve Appellant by Certified Mail was
also returned to the Board marked "unclaimed." Finally, on June
29, 2000, the Board successfully served Appellant by facsimile.
Appellant's July 3, 2000, response to the Order was to fax a copy
of a March 6, 2000, letter to the Board in which Appellant states
that the Contracting Officer's letter of rejection was "first
received by facsimile on December 15, 1999." The facsimile
transmittal cover sheet from Joel L. Widman stated: "I thought
the attached letter of 3/6/2000 was our appeal." Appellant did
not submit further evidence or argument on the issue of
timeliness.
Accordingly, the Board makes the following findings of fact on
the issue of timeliness.
FINDINGS OF FACT
1. By letter dated November 19, 2000, GPO Contracting Officer
Arthur Jacobson, rejected Print Order 60001, Program 6713-S,
Purchase Order S-1020, because of six defects, and ordered
Appellant to pick up the rejected publications and correct the
defects no later than December 3, 1999.
2. The Contracting Officer sent the letter to Appellant by
Federal Express. According to Federal Express delivery records
the letter was delivered to Appellant and signed for by J.
Salazar at 8:40 a.m. on November 22, 1999.
3. Appellant's letter of appeal dated March 1, 2000, was sent
to the Board by U. S. Postal Service, postmarked March 1, 2000,
and received by the Board on March 7, 2000.
4. Appellant's letter of appeal was not mailed or otherwise
furnished to the Board within 90 days after Appellant received
the Contracting Officer's rejection letter.
DECISION
Under the terms of the contract at issue in this appeal, a
decision of a Contracting Officer "shall be final and conclusive
unless, within 90 days from the date of receipt of such copy, the
contractor mails or otherwise furnishes a written notice of
appeal to the Government Printing Office Board of Contract
Appeals." GPO Contract Terms, Contract Clause 5(b). Similarly,
the Board's Rules require a notice of appeal to be "mailed or
otherwise filed with the Board within 90 days from the date of
receipt of a final written decision of the contracting officer."
GPO Instruction 110.12A, Rule 1(a).
This Board's normal practice has been to enforce this 90-day time
limit. See Pittenger Enterprises, Ltd, GPOBCA No. 5-99, 1999
GPOBCA LEXIS 1, 1999 WL 498502 (April 8, 1999); Ace Duplicating
Co., GPOBCA 44-92 (Feb. 1, 1993); Moore Business Forms & Systems
Division, GPOBCA 3-86, 1987 GPOBCA Lexis 26, 1987 WL 228968 (Feb.
25, 1987). However, unlike Executive Branch1 Boards that treat
the 90-day time limit as jurisdictional, the GPOBCA possesses
limited discretion to waive the time limit in appropriate
circumstances. See, e.g., Olympic Graphic Systems, GPOBCA 01-92,
1996 GPOBCA LEXIS 32, 1996 WL 812957 (Sept. 13, 1996) (Notice of
appeal misdirected by agency's mail room); McDonald & Eudy
Printers, Inc., GPOBCA 06-91, 1994 GPOBCA LEXIS 29, 1994 WL
377581 (May 6, 1994) Slip op. at 2, fn. 2 (Appellant's notice of
appeal lost by agency's mail room). The Court of Claims, in a
series of pre-Contract Disputes Act cases held that Boards of
Contract Appeals have the power in proper circumstances to waive
or extend the appeal periods specified in the usual disputes
clause. Maney Aircraft Parts, Inc. v. United States, 197 Ct. Cl.
159 (1972); Monroe M. Tapper v. United States, 198 Ct. Cl. 72
(1972); Schlesinger v. United States, 181 Ct. Cl. 21, 28-29
(1967); Moran Bros. Inc. v. United States, 171 Ct. Cl. 245, 250
(1965).
When the timeliness of an appeal is at issue, the Appellant has
the burden of proving its appeal was timely filed. Warren Owner
Co., VACAB 1657, 82-1 BCA ¶ 15,709; Engineering Design &
Development, ASBCA 15531, 71-1 BCA ¶ 8708. In the instant
appeal, Appellant has failed to meet its burden of proof. The
unrebutted evidence of record is that Appellant mailed its appeal
letter more than 90 days after receiving a copy of the
Contracting Officer's letter rejecting goods tendered by
Appellant and ordering correction of the defects. Thus the
appeal was untimely.
Upon review of the entire record, I find no facts or
circumstances that would justify the exercise of the Board's
discretion to extend or waive the 90-day appeal period.
Accordingly, this appeal is dismissed with prejudice as untimely.
July 13, 2000 KERRY L. MILLER
Administrative Judge
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1 Executive Branch appeals are governed by the Contract Disputes
Act of 1978 (CDA), 41 U.S.C. §§ 601-613, as amended, which
establishes a 90-day time limit within which an appeal must be
filed. The 90-day filing requirement is statutory and cannot be
waived. Cosmic Construction Co. v. United States, 697 F.2d 1389
(Fed. Cir. 1982). However, GPO contracts are not covered by the
CDA due to the GPO's status as a Legislative Branch agency. See
Tatelbaum v. United States, 749 F.2d 729, 730 (Fed. Cir. 1984).