UNITED STATES GOVERNMENT PRINTING OFFICE CONTRACT APPEALS BOARD Appeal of NATIONAL TYPESETTING, INC. Appeal dated November 20, 1980 Appeal postmarked December 2, 1980 Decision dated September 3, 1981 THOMAS O. MAGNETTI, Chairman, Panel 80-13 JOHN F. CAVANAUGH, Member ROBERT A. BLANEY, Member PRELIMINARY STATEMENT This is a decision on an appeal filed by National Typesetting, Incorporated (hereafter referred to as the contractor). The appeal disputes the final decision of the Contracting Office terminating the contractor for default. Disgruntled contractors may appeal such default termination decisions under and in accordance with Article 3 (the "Disputes" clause) of the Government Printing Office (hereafter the GPO) Contract Terms No. 1, GPO Publication 310.2, revised August 1, 1979. This document was incorporated by reference into the specifications of the contract. Exhibit 1 of the Appeal File (hereafter A.F.). The contract required the contractor to produce composition and proofs from manuscript copy furnished by the Government. The final decision of the Contracting Officer held that the contractor failed to perform the job according to the schedule. The jurisdiction of the Board of Contract Appeals has been established by GPO Instruction 110.10A, titled "Board of Contract Appeals Rules of Practice and Procedure". In accordance with that instruction, this decision is based upon the record. The record consists of the documents and exhibits that constitute the Appeal File. STATEMENT OF FACTS On July 30, 1980, in accordance with the standard GPO award procedures, Purchase Order No. 14480 for the procurement of one set of page reproduction proofs for the "Federal Maritime Commission Reports", Volume 21, July 1978 to July 1979 was awarded to the contractor. Exhibit 6, A.F. The contract required the contractor to prepare the manuscript for composition and deliver the camera ready reproduction page proofs by August 12, 1980. The manuscript copy was furnished to the contractor along with the Purchase Order on July 30, 1980. On August 11th and 12th the contractor called the GPO to determine what kind of proofs were due on August 12, 1980, and to ascertain what would happen if the proofs were late. Exhibits 7, 8 and 10, A.F. The GPO informed the contractor what was required and notified it that it was to proceed with the job. Id. GPO Printing Specialist Daniel Clurman twice attempted to reach the contractor late in the afternoon of August 12, 1980, to obtain an estimate of when the proofs would be complete. Exhibits 8 and 10, A.F. There was apparently no answer at the contractor's plant. Id. As the delivery date was August 12, 1980, and the Government would not determine whether performance would be forthcoming, it sent the contractor a show cause notice dated August 13, 1980. Exhibits 9 and 10, A.F. The contractor was informed in this notice that, as it failed to perform the schedule requirements of the contract, the Government was considering terminating the contract. By letter dated August 25, 1980, the Government terminated the contract for default because of the contractor's failure to perform the job according to schedule. Exhibit 11, A.F. The right to default contractors in cases such as this is derived from Article 17, titled "Default" of GPO Contract Terms No. 1, supra. That clause permits the Government to immediately terminate a contract if the contractor fails to make delivery of the supplies within the time specified by the contract. Aargus Poly Bag, GSBCA No. 4314, 76-2 BCA ¶ 11,927. The contractor's appeal of this decision, dated November 20, 1980, challenged the Contracting Officer's final decision to.default the contractor as being improper. Exhibit 13, A.F. It alleged that it received the show cause notice on August 27, 1980, two days after it received the termination notice and because of this, the default notification was improper. However, the threshold question that must be answered before the merits of the contractor's appeal can be considered is whether this appeal was filed in a timely fashion. Although the contractor's appeal letter was dated November 20th, the postmark on the letter was December 2, 1980, and the letter was received at the GPO on December 3, 1980. Article 3 of the Term Contract, which governs the dispute process, states in part that: The decision of the 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 to the Contracting Officer a written appeal addressed to the Public Printer. By the contractor's own admission, it received the final decision on August 25, 1980. Exhibit 13, A.F. The 90-day period in which the contractor had to appeal expired on November 22, 1980. The appeal letter was postmarked December 2, 1980, 10 days after the lapse of the appeal period. The Government moved on January 16, 1981, to dismiss the appeal because it was untimely. Disregarding the date on the contractor's appeal letter, the Government contended that the postmark should govern as proof of when the appeal was prepared and mailed. Therefore, the appeal period had lapsed, the decision of the Contracting Officer was final and conclusive, and the appeal should be dismissed. DISCUSSION It is unnecessary for this Board to examine the merits of this appeal as it now grants the Government's motion to dismiss on the grounds that the appeal was untimely. The language of Article 3, supra, provides that the decisions of Contracting Officers are final and conclusive unless an appeal is filed with the Public Printer within ninety days of receipt of the final decision. In the instant case, the contractor received written notice of the termination on August 25, 1980. Its appeal letter was postmarked December 2, 1980, and not received at the GPO until December 3, 1980. Exhibit 15, A.F. Exactly 99 days had elapsed from the contractor's notification of the decision to the GPO's receipt of the letter of appeal. This lapse of time marks this appeal as untimely. Several cases have found that expiration of the appeal period terminates all right to appeal. Zisken Construction Co., ASBCA No. 6281, 60-2 BCA ¶ 2,706; Guiliani Contracting Co., GSBCA No. 1060, 1964 BCA ¶ 4,137; Unico Industrial Service & Engineering, ASBCA No. 22845, 78-2 BCA ¶ 13,322. The contractor might argue that the date on the appeal letter (November 20, 1980) should take precedence to the date of the postmark. However, in cases where appeal letters are mailed, the determination whether an appeal is timely is made by recourse to the postmark on the appeal letter. Guiliani Contracting Co., supra; Electro Magnetic Processes, Inc., ASBCA 22857, 78-2 BCA ¶ 13,518; Pleasant Logging & Milling Co., AGBCA 79-172, 80-1 BCA ¶ 14,290. A conflict in mailing dates is resolved in favor of the U.S. Postal Service's mark because there is a presumption of regularity in the performance of the official duties of the postal employees. Since there has been no evidence to rebut this presumption, this Board rules that the appeal letter was received at the GPO after the appeal period had lapsed, and therefore the appeal was untimely filed. DECISION Based upon.the above reasoning, the Board grants the Government's Motion to Dismiss and dismisses the contractor's appeal in its entirety for failing to appeal in a timely fashion the final decision of the Contracting Officer which had terminated this contract for default.