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 )
For the Appellant: Bookbinders of New Mexico, Albuquerque, New Mexico,
by Joel Widman, President.
For the Government: Roy E. Potter, Esq., Associate General Counsel,
U.S. Government Printing Office.
Before KERRY L. MILLER, Administrative Judge.
DECISION ON MOTION FOR RECONSIDERATION
Bookbinders of New Mexico (Appellant) has filed a motion requesting that the
U.S. Government Printing Office Board of Contract Appeals (GPOBCA) reconsider
its earlier decision dismissing Appellant's appeal for lack of timeliness. For
the reasons that follow, the Motion is DENIED.
Background
In its earlier decision dismissing Appellant's appeal, the Board found that the
Contracting Officer sent a letter dated November 19, 1999, to Appellant
rejecting a shipment of Appellant's goods because of multiple defects. The
letter, addressed to Appellant's President, Joel Widman and bearing the address
of Appellant's place of business, also ordered Appellant to correct the defects
and re-deliver the goods to the Government by a date certain. The letter was
placed in the hands of a private carrier, FedEx, for delivery. According to
FedEx records they delivered the letter to Appellant's place of business on
November 22, 1999, and the letter was signed for by "J. Salazar" at 8:40 a.m.
that day.
Appellant appealed the Contracting Officer's decision to the GPOBCA by letter
dated March 1, 2000. The appeal letter was sent to the Board through the U. S.
Postal Service, postmarked March 1, 2000, and received by the Board on March 7,
2000. As the appeal appeared to be untimely, the Board issued an order to show
cause why the appeal should not be dismissed for failure to file within 90 days
of receipt of the Contracting Officer's rejection letter.
After considering Appellant's response to the show cause order, the Board
dismissed the appeal as being untimely. Under the Disputes clause of the
contract, 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, GPO Publication
310.2, Contract Clause 5. Similarly, the Board's Rules of Practice and
Procedure, GPO Publication 110.12A, require a notice of appeal to be "mailed or
otherwise filed with the Board within 90 days." GPOBCA Rule 1(a). The Board
found no facts or circumstances that would justify the exercise of the Board's
discretion1 to extend or waive the 90-day appeal period. Bookbinders of New
Mexico, GPOBCA No. 6-00, 2000 GPOBCA LEXIS 6, 2000 WL 1016874 (July 13, 2000).
Appellant thereafter filed a timely motion for reconsideration.
Decision on Reconsideration
Rule 29 of the Board's Rules of Practice and Procedure allows either party to an
appeal to file a motion for reconsideration within 30 days of the party's
receipt of the Board's decision. The major grounds for reconsideration are newly
discovered evidence that could not have been earlier discovered, or error in the
Board's findings of fact or conclusions of law. Reconsideration, however, is
discretionary with the Board and will not be granted in the absence of specific
and compelling reasons. Wickersham Printing Co., GPOBCA No. 23-96, 1999 GPOBCA
LEXIS 8, 1999 WL 498497 (March 1, 1999); Qualitype, Inc., GPOBCA No. 21-95, 1998
GPOBCA LEXIS 19, 1998 WL 350480 (June 24, 1998), slip op. at 2; Univex
International, GPOBCA No. 23-90, 1996 GPOBCA LEXIS 24, 1996 WL 112554 (February
7, 1996), slip op. at 4-5, 1996 WL 112554; Sterling Printing, Inc., GPOBCA No.
20-89 1994 GPOBCA LEXIS 31, 1994 WL 377592 (July 5, 1994), slip op. at 3-4;
Graphic Litho, Inc., GPOBCA No. 17-85 1988 GPOBCA LEXIS 16, 1988 WL 363516
(September 30, 1988), slip op. at 2-3. Arguments already made, reinterpretation
of old evidence, and mere disagreement with the Board's decision do not provide
a basis for reconsideration. Board Rule 29(a); Univex International, Inc.,
supra.
In its Request for Reconsideration Appellant argues:
1. As set forth in our letter of December 16, 1999 to Mr. Lowell Borton, a copy
of which is enclosed, the letter of November 19, 1999 was not received by us
until it was faxed to us on December 15, 1999 by Mr. Borton.
2. Mr. Salazar was not our employee or agent and was not authorized to receive
anything directed to Bookbinders of New Mexico or Widman Enterprises, Ltd. In
fact, we were and still are in litigation with Mr. Salazar and notwithstanding
numerous requests directed to him and his attorney he has failed and refused to
deliver the letter to us.
3. Pursuant to your rules, the time for appeal runs from receipt of the
decision of the Contracting Officer. The decision was not received by us until
December 15, 1999 and, therefore, our appeal of March 6, 2000 was timely and
should be considered on its merits.
Request for Reconsideration (August 1, 2000).
Appellant does not dispute the accuracy of the FedEx delivery records or claim
that the letter was not delivered to Appellant's place of business on November
22, 1999. Instead, Appellant makes two legal arguments in support of its
motion.
First, Appellant claims that the person who signed for the Contracting Officer's
letter was not "authorized" by Appellant to do so. According to Appellant,
Bookbinders of New Mexico ceased doing business on November 17, 1999. Letter
from Joel Widman to Lowell Borton (Dec. 15, 1999). The person who signed for
the letter was not Appellant's "employee or agent at the time of delivery" but
was an adversary in a lawsuit who "was on the premises to remove equipment
pursuant to a court order." Letter from Joel Widman to Lowell Borton (Dec. 16,
1999). Therefore, Appellant argues that Bookbinders of New Mexico did not
actually receive the letter when delivered by FedEx.
Appellant's second argument is that while the Board's Rules of Practice and
Procedure require receipt, the delivery of the letter to Appellant's place of
business was not receipt as that term is used in the Board's Rules.
Based on a review of applicable precedent, the Board concludes that Appellant's
arguments lack merit. Under the Board's Rules and the Disputes Clause of the
contract, the 90-day appeal period is triggered by receipt of a Contracting
Officer's decision. Neither the Rules nor the Disputes Clause require that any
particular employee of Appellant receive or have actual notice of the letter's
contents to trigger the 90-day time period. Images II, Inc., ASBCA No. 47943,
94-3 BCA ¶ 27,277. Similarly, the addressee is not required to have the letter
in hand to constitute receipt for purposes of starting the time period. Miller-
Wills Aviation, Inc., ASBCA No. 40976, 91-1 BCA ¶ 23,290. All that is required
is that the contractor receive a copy of the decision. C.f. Bio-Temp
Scientific, Inc., ASBCA No. 41388, 95-2 BCA ¶ 27,808. The Government's
obligation is to have the correspondence delivered to the last known address of
the contractor.
In the instant appeal, the Government utilized a private commercial carrier,
FedEx, to deliver the correspondence to Appellant's last known address2 where it
was signed for by someone who was not Appellant's employee. A similar fact
pattern was reviewed in Penole Industries, ASBCA No. 42025, 91-2 BCA ¶ 23,857.
In that appeal, a contractor went out of business and a member of the cleaning
crew signed for a letter from a contracting officer. The contractor argued that
the signer was not its proper representative and was unauthorized to sign the
receipt. The ASBCA held that since the letter was actually delivered to the
contractor's business address the letter was received for purposes of initiating
the 90-day appeal period. The fact that a member of the cleaning crew may have
signed for the letter did not alter the fact that the letter was actually
received at the contractor's place of business.
Conclusion
In the instant appeal, the Board holds that the delivery of the Contracting
Officer's decision letter to Appellant's designated address on November 22,
1999, was receipt for purposes of triggering the 90-day appeal period, under
both the Board's Rules, and the contract's Disputes clause. Since Appellant did
not file its notice of appeal with the Board until after the expiration of the
90-day appeal period, the appeal is untimely.
Appellant's Motion for Reconsideration of the Board's earlier decision
dismissing the appeal, is denied.
It is so Ordered.
December 11, 2002
KERRY L. MILLER
Administrative Judge
1 Unlike Executive Branch 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).
2 There is nothing in the record to indicate that Appellant notified GPO of a
new business address.