BOARD OF CONTRACT APPEALS
U.S. GOVERNMENT PRINTING OFFICE
In the Matter of )
)
the Appeal of )
)
ALLEGRA PRINT & IMAGING ) Docket No. GPOBCA 07-01
)
Jacket 652-314 )
Purchase Order H6292 )
For the Appellant: Allegra Print & Imaging, Schaumburg, IL, by
Ramesh Gandhi, President.
For the Government: Roy E. Potter, Esq., Associate General
Counsel, U.S. Government Printing Office.
Before KERRY L. MILLER, Administrative Judge.
DECISION ON TIMELINESS
On September 28, 2001, the U.S. Government Printing Office Board
of Contract Appeals (Board) received, via U. S. Postal Service
Priority Mail, Appellant's appeal letter dated September 15,
2001. Appellant sought to appeal a decision of the Contracting
Officer dated June 19, 2001, that terminated Appellant's contract
for default. The envelope containing the appeal letter was
postmarked September 24, 2001.
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 (October 11, 2001) (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 by Certified Mail
resulted in the return of a signed, but undated return receipt.
Given uncertainties in the timely delivery of mail to and from
federal agencies in the Washington D.C. area as a result of
disruptions caused by anthrax contaminated postal facilities, the
Board served the order on Appellant by telefacsimile on November
14, 2001.
Appellant responded to the Board's Order by letter dated
October[sic] 15, 20011. Appellant's President, Ramesh Gandhi
explained that "[t]he fact of the matter in sending the delayed
response for appeal is the lack of knowledge on my part of the
procedure involved in the appeal preparation & getting all of my
facts together before mailing the appeal." (Emphasis in
original) Letter from Ramesh Gandhi to U. S. Government Printing
Office Board of Contract Appeal (October 15, 2001).
Accordingly, the Board makes the following findings of fact on
the issue of timeliness.
FINDINGS OF FACT
1. By letter dated June 19, 2001, addressed to Ramesh
Gandhi, Allegra Print & Imaging, GPO Contracting Officer Steven
Boortz, terminated Appellant's contract (Purchase Order H6292,
Jacket 652-314) for default because of Appellant's "failure to
deliver the products in accordance with the contract
specifications." The letter also stated: "This is the final
decision of the Contracting Officer, made pursuant to Article 5,
page 13, "Disputes", of Contract Clauses in GPO Contract Terms
(Pub. 310.2), which is a part of the contract. It shall be final
and conclusive as provided therein, unless within 90 days from
the date of receipt of this decision, a written notice of appeal,
addressed to the U.S. Government Printing Office Board of
Contract Appeals, Washington, DC 20401, is mailed or otherwise
furnished."
2. The Contracting Officer delivered the final decision
letter to Appellant by Federal Express. According to Federal
Express delivery records, the Contracting Officer's letter was
delivered to Appellant at 9:25 a.m. on June 20, 2001, and signed
for by "R. Ghandi."
3. Appellant's letter of appeal dated September 15, 2001,
was sent to the Board by U. S. Postal Service Priority Mail,
postmarked September 24, 2001. It was received by the Board on
September 28, 2001. On the outside of the envelope was the
handwritten notation: "6/15/01 + 90 Days + 1 wk of Sept. 11 = 97
days Sept. 24/01."
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 default letter.
DECISION
Under the terms of the contract at issue in this appeal, a
decision of a Contracting Officer becomes "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 (Rev. 5-99)
Contract Clause 5(e). 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 90-day deadline was also communicated to
Appellant in the Contracting Officer's default letter. Letter
from Steve Bortz to Ramesh Gandhi (June 19, 2001).
This Board's normal practice has been to enforce this 90-day time
limit. See Bookbinders of New Mexico, GPOBCA No. 6-00, 2000
GPOBCA LEXIS 6, 2000 WL 1016874 (July 13, 2000); 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 Branch2 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. While
it appeared from the handwritten notation on the appeal letter
envelope that Appellant had granted itself a one week extension
of the 90-day deadline because of the unprecedented events of
September 11, 2001, Appellant failed to produce evidence that the
events of September 11, 2001, prevented it from filing its appeal
in a timely manner. Indeed, Appellant's Response to the Board's
Show Cause Order did not even reference the September 11, 2001
terrorist attacks. Instead, Appellant blamed its tardiness on
its unfamiliarity with appeal procedures and its need to gather
facts.
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 terminating the contract for
default. Thus the appeal was untimely. In reaching this
conclusion, the Board has considered carefully Appellant's pro se
status. See Quincey Carpenter v. United States, 38 Fed. Cl. 576
(1997) and cases cited therein. However, formal legal training
is not necessary for responding to simple deadlines or for
otherwise prosecuting an appeal. See, Airborne Industries, Inc.,
ASBCA Nos. 45491 et al., 95-1 BCA ¶ 27,496, aff'd on recon. at
¶ 27,311. 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.
January 28, 2002 KERRY L. MILLER
Administrative Judge
____________
1 Appellant's response was postmarked November 19, 2001, but not
received by the Board until January 23, 2002.
2 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).