BOARD OF CONTRACT APPEALS U.S. GOVERNMENT PRINTING OFFICE WASHINGTON, DC 20401 STUART M. FOSS Administrative Judge The Appeal of PEAKE PRINTERS, INC. Docket No. GPO BCA 12-91 Jacket No. 282-295 Program D189-S Purchase Order 71940 Print Order 20002 May 12, 1993 DECISION AND ORDER DENYING APPELLANT'S MOTION FOR JUDGMENT BY DEFAULT On March 10, 1993, the Board conducted a prehearing telephone conference in the above-captioned appeal of Peake Printers, Inc., 2500 Schuster Drive, Cheverly, Maryland 20781 (Appellant or Contractor). Among the issues considered at the conference was the Appellant's Motion For Judgment [sic] By Default (Default Motion), dated December 11, 1992, asking the Board to enter a default judgment in favor of the Contractor on the ground that the U.s. Government Printing Office (Respondent or GPO or Government) failed to comply with Rule 6(b) of the Board's Rules of Practice and Procedure by not filing a timely Answer to the Appellant's Complaint. GPO Instruction 110.12, Subject: Board of Contract Appeals Rules of Practice and Procedure, dated September 17, 1984, Rule 6(b) (Board Rules). After hearing the positions of both parties at the conference, the Board stated that it reserved judgment on the issue and would rule on the question separately later. See, Report of Prehearing Conference, GPO BCA 12-91, dated May 3, 1993, pp. 2-5 (Report). Since the close of the conference, the Board has carefully considered the chronology of events in this appeal as reflected in the record, and the arguments of the parties at the conference with regard to the issue raised by the Default Motion. For the reasons which follow, the Board has determined that the Default Motion should be, and hereby is DENIED. A. Factual Background The facts leading to the Default Motion are simple and brief. By letter dated May 7, 1991, the Appellant filed its appeal from the March 29, 1991, final decision of Contracting Officer Richard Weiss. Board Rules, Rules 1(a) and 2. The appeal was docketed by the Board that same day (May 7, 1992). Board Rules, Rule 3. On May 30, 1991, the Board wrote to the Contractor notifying it that its appeal had been docketed, and provided it with a copy of the Board Rules. Id. The Board's docketing letter specifically directed the Contractor's attention to Rule 6(a) concerning its obligation to file a Complaint with the Board within 30 days after receiving the Board's docketing letter. Board Rules, Rule 6(a). According to the Appellant, it submitted a letter entitled "Rule 6(a) Response," dated June 20, 1991, to the Board as its Complaint (Original Complaint). Board Rules, Rule 6(a). Report, p. 3. However, there is nothing in the appeal record which would show if or when the Appellant's Original Complaint was received by the Board or whether the Board, in accordance with the Board Rules, served a copy of it upon the Government Counsel at that time. 1/ Board Rules, Rule 6(a). Thereafter, by letter dated July 24, 1991, the Appellant informed the Board that it desired a hearing on its appeal. Board Rules, Rule 8. After the Board received this letter, it contacted the Contractor to find out if a Complaint had been filed and was informed that one had been submitted to the Board on June 20, 1991. Since the Board had no record of the Original Complaint, it asked the Appellant to furnish another copy to the Board (Second Complaint), along with evidence that the Original Complaint had been mailed to the Board. The Board also asked the Contractor to send a copy of the Second Complaint to Counsel for GPO in order to expedite the appeal. The Second Complaint was received by the Board on August 27, 1991, and a copy was sent to Counsel for GPO by the Clerk of the Board in the normal course of Business. Board Rules, Rule 6(a). Nothing further occurred in this appeal for more than a year. Then, on October 7, 1992, Counsel for GPO filed Respondent's Motion to Dismiss (Dismissal Motion). The Dismissal Motion sought dismissal of the case on the ground that the Appellant had, in effect, abandoned its appeal, because it had not submitted a Complaint within the required 30 days under the Board Rules. The Board immediately contacted counsel for GPO, and learned that he had no record of receiving a copy of the Second Complaint, either from the Board of the Appellant. Therefore, he asked the Board to furnish him with another copy of the Second Complaint, and the Board did so. Thereafter, the Board issued and served on the parties its Order Accepting Appellant's Appeal As a Complaint (Board Order), dated October 16, 1992. 2/ On November 18, 1992, the Respondent entered a "genial denial" in response to the Second Complaint, a copy of which was simultaneously served on the Appellant. Board Rules, Rule 6(b). On December 18, 1992, the Appellant submitted its Default Motion to the Board. In effect, the Default Motion seeks sanctions against the Respondent under Rule 31 of the Board Rules. 3/ Board Rules, Rule 31. As a remedy, the Appellant asks the Board to vacate and set aside the final decision of the Contracting Officer. A. Positions of the Parties At the conference, Counsel for GPO opposed the Default Motion on the ground that the Respondent's failure to file a timely Answer was that, for some unexplained reason, it had not received a copy of either the Original Complaint or the Second Complaint from the Board or the Appellant until October 1992. Report, p. 2. Once the Respondent received a copy of the Second Complaint from the Board, along with the Board Order, it complied with Rule 6(b). Id. Board Rules, Rule 6(b). Accordingly, Counsel for GPO believed that the Default Motion had no merit, and should be denied. Id. Counsel for the Appellant, on the other hand, argued that its motion to sanction the Respondent was appropriate since the Government's 16 month delay in filing its Answer damaged the Contractor's case because two its "critical" witnesses were no longer available to testify on its behalf. Report, p. 3. In the Appellant's view, the Respondent was sent copies of the Second Complaint by both the Board and the Contractor in August 1991. Id. Therefore, as the Respondent did not file its Answer within 30 days after that, Counsel for the Appellant believed that his client was entitled to the relief sought in the Default Motion. Report, p. 4. C. Decision Under Rule 6(a) of the Board Rules, although as appellant is required to file a complaint with the Board, it is the Board which is responsible for serving a copy of the complaint upon Government Counsel. 4/ Board Rules, Rule 6(a). That is, unlike other provisions in the Board Rules, the parties themselves have no service obligations under Rule 6(a). Compare, Board Rules, Rules 4(a), 4(b), Rule 9, and Rule 16. In this case, while the Board has no doubt that the Appellant prepared and transmitted its Original Complaint to the Board on June 20, 1991, the Board is also certain that is never receive the Original Complaint. If it were otherwise, a copy of the Original Complaint would be in the appeal file, and the Board's telephone call to the Appellant on August 27, 1991, following receipt of the Contractor's request for a hearing, would have been unnecessary. 5/ Similarly, the Board has no reason to doubt Counsel for GPO's word that, according to his records, he never received a copy of the Second Complaint, either from the Board or the Appellant. In that regard, the fact that Counsel for GPO filed a Dismissal Motion based on the Appellant's failure to submit a Rule 6(a) complaint a year after the Board requested the Second Complaint from the Contractor, is not without significance. Because of the strong presumption that Government officials properly and honestly carry out their functions, the absence of "well-nigh irrefragable" proof in the record contradicting Counsel for GPO's categorical statement that he never received the Second Complaint precludes the Board from saying that his actions were based on anything other than a good faith belief that the Appellant had, indeed, failed to comply with Rule 6(a). Cf., e.g., B. P. Printing and Office Supplies, GPO BCA 14-91 (August 10, 1992), Sl. op. at 16; Stephenson, Inc., GPO BCA 02-88 (December 19, 1991), Sl. op. at 55; The Standard Register Company, GPO BCA 4-86 (October 28, 1987); Sl. op. at 12-13. Also cf., Karpak Data and Design, IBCA 2944 et al., 93-1 BCA ¶ 25,360; Dalmo Victor Division, General Instrument Corporation, ASBCA 39718, 92-3 BCA ¶ 25,176; Local Contractors, Inc., ASBCA 37108, 92-1 BCA ¶ 24,491. Nothing in the record accounts for this breakdown in the system followed by the Board for serving papers and documents. However, in the absence of any evidence to the contrary, the Board must conclude that the initial copy of the Second Complaint which it sent to Counsel for GPO on or after August 27, 1991, was either lost in the GPO terminal mail system or misplaced in the Office of the General Counsel. 6/ Therefore, the Board believes Counsel for GPO in this matter when he says that the first notice he had that the Appellant had complied with Rule 6(a) was when he received the copy of the Second Complaint which the Board sent him in October 1992, after he had filed the Respondent's Dismissal Motion. In the final analysis, the Board observes that from August 1991 until October 1992, neither party contacted the Board concerning the status of this appeal. Certainly, the Appellant in particular did not question the failure of the Respondent to file an Answer during that period, and the Board believes it may not have done so but for the fact that Counsel for GPO filed a Dismissal Motion. Indeed, the Board also believes that the Default Motion, submitted two months later, is nothing more than the Appellant's "tit for tat" response to the Dismissal Motion. In light of the fact that Rule 6(b) is not jurisdictional, and indeed allows the Board to act in Lieu of the Respondent when no Answer is filed within 30 days, the Board itself must bear some responsibility for the delay in processing this appeal. Accordingly, since the first notice Counsel for GPO had that a Complaint had been filed was in October 1992, the Board believes that it would be unfair to sanction the Respondent for the shortcomings of the procedural system which occurred in this case. Board Rules, Preface to Rules, ¶ VI.C. On the other hand, the Board recognizes that there may be some merit to Counsel for the Appellant's argument that the 16 month delay between the Second Complaint and the Respondent's Answer harmed the Contractor's case because two "critical" witnesses are no longer available. Whether the Appellant was actually prejudiced by the delay is a question which may be resolved by the parties themselves during discovery prior to the hearing which the Board has scheduled in this matter for Tuesday, June 8, 1993. Report, pp. 8-9. In any case, the Board believes that such matters are more appropriate for its consideration during the hearing. D. Order For all of the foregoing reasons, the Board believes that good cause exists for not applying Rule 31 sanctions in this case. Board Rules, Rule 31. THEREFORE, Appellant's Default Motion is hereby DENIED. It is so Ordered. _______________ 1/ The record does show that the Respondent did comply with its Rule 4(a) obligations and submitted the Contracting Officer's appeal file to the Board in a timely fashion; i.e., on June 21, 1991. 2/ The Board Order also denied the Respondent's Dismissal Motion. See, Board Order, p. 3. 3/ Rule 31 provides that "[w]henever a record discloses the failure of either party to file documents required by these rules; respond to notices or correspondence from the Board; comply with an order of the Board; or otherwise indicates an intention not to continue the orderly prosecution or defense of an appeal, the Board may issue an order requiring the offending party to show cause why the appeal should not be either dismissed or granted, as appropriate. If the offending party shall fail to show such cause, the Board may take such action as it deems reasonable and proper under the circumstances" [Emphasis added]. 4/ Similarly, the Board Rules provide that the Board shall serve a copy of the respondent's answer to the complaint on the appellant. Board Rules, Rule 6(b). 5/ Although the Appellant complied with the Board's instruction to send it the Second Complaint, it notes that the Contractor did not submit the evidence of mailing of the Original Complaint which was also requested by the Board. 6/ Although the Appellant stated at the conference that it complied with the Board's request to expedite the appeal by independently serving a copy of the Second Complaint on Counsel for GPO, there is nothing in the record to indicate that the Respondent received that copy either. Report, p. 3.