BOARD OF CONTRACT APPEALS
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON, DC 20401
In the Matter of )
)
the Appeal of )
)
GRAPHIC IMAGE, INC. ) Docket No. GPO BCA 42-92
Program 2703-S )
Purchase Order K-0106 )
Print Orders 70000, 70007 thru 70017 )
DECISION AND ORDER DISMISSING APPEAL
By Notice of Appeal dated October 20, 1992, Graphic Image,
Inc. (Appellant or Contractor), 561 Boston Post Road, Milford,
Connecticut 06460, appealed the July 22, 1992, final decision
of Contracting Officer Richard W. Wildbrett, of the U.S.
Government Printing Office's (Respondent or GPO), Dallas
Regional Printing Procurement Office, United States Courthouse
and Federal Office Building, 1100 Commerce Street, Room 304,
Dallas, Texas 75242, terminating the Appellant's contract,
identified as Program 2703-S, Purchase Order K-0106, Print
Orders 70000, and 70007 through 70017, for default. GPO
Instruction 110.12, Subject: Board of Contract Appeals Rules
of Practice and Procedure, dated September 17, 1984, Rules
1(a), 2 (Board Rules).
The appeal was docketed by the Board on October 30, 1992.
Board Rules, Rule 3. By letter the same date, the Board
notified the Appellant that its appeal had been docketed and
provided it with a copy of the Board Rules. Id. Among other
things, the Board's letter specifically directed the
Contractor's attention to Rule 6(a) of the Board Rules, which
requires that within 30 days after receipt of the notice of
docketing the appeal, the Appellant shall file with the Board
an original and two (2) copies of a Complaint containing the
information described in that rule. Board Rules, Rule 6(a).
On March 5, 1993, Counsel for GPO filed Respondent's Motion to
Dismiss (Motion) with the Board seeking dismissal of this case
on the ground that the Contractor had abandoned its appeal.
The Motion was based, inter alia, on the ground that the
Appellant had not submitted its Rule 6(a) Complaint, even
though five (5) months had elapsed since the Contractor had
received the Board's notice of docketing. A copy of the
Motion was simultaneously served on the Appellant. Board
Rules, Rule 16.
On March 24, 1993, the Board contacted the Appellant by
telephone to inquire about the status of this case, and in
particular to ascertain its position on the Motion. During
this conversation, the Contractor informed the Board that it
could not locate the docketing letter, and asked for another
copy of the letter along with the Board Rules. The Appellant
further stated that it had not abandoned the appeal and would
file its Complaint with the Board, along with a response to
the Motion, immediately upon receipt of the docketing letter
and the Board Rules. Accordingly, on March 25, 1993, the
Board sent another copy of the docketing letter and the Board
Rules to the Contractor by facsimile transmission. However,
the Appellant never filed a Complaint or its response to the
Motion.
After ten (10) months had elapsed, on January 27, 1994, the
Board telephoned the Appellant again, and asked about the
status of this case. Specifically, the Board wanted to know
when it could expect the Complaint and a reply to the Motion.
The Contractor said it would submit those documents within
three (3) days; i.e., by the end of January 1994. However, no
Complaint or response to the Motion was received by the Board
within the promised time.
Therefore, on March 28, 1994, the Board, exercising its
authority under Rule 31 of the Board Rules, issued a Rule To
Show Cause Why Appeal Should Not Be Dismissed For Failure To
Prosecute (Rule to Show Cause), and sent it to the Appellant
by certified mail.1 Board Rules, Rule 31. In the Rule to
Show Cause, the Board specifically noted that, as indicated
in the appeal record, the Board's originally docketing letter
along with the Board Rules, had been received by the Appellant
on November 3, 1992. Rule to Show Cause, p. 3. Furthermore,
in response to the Contractor's claim that it could not locate
the docketing letter, the Board sent second copies of letter
and the Board Rules to the Appellant on March 25, 1993, by
facsimile transmission. Id. The Board also observed that
notwithstanding the its patience and efforts to facilitate the
appeal, the Appellant has never filed the required Complaint
and response to the Respondent's Motion.2 Rule to Show Cause,
pp. 3-4. Therefore, in accordance with the procedures set
forth in Rule 31 of the Board Rules, the Appellant was given
fifteen (15) days from the receipt of the Rule to Show Cause
to provide reasons, in writing, why the appeal should not be
dismissed with prejudice for failure to prosecute. Rule to
Show Cause, p. 4. The appeal record shows that the United
States Postal Service delivered the Rule to Show Cause the
Appellant on April 5, 1994.
Under Rule 31 of the Board Rules, an appellant who has
disregarded the Board's rules and directives, and otherwise
indicates an intention not to continue the orderly prosecution
or defense of its appeal, is subject to having the Board
dismiss the case for failure to prosecute after the appellant
is given an opportunity to show cause why the appeal should
not be dismissed. Rosemark, GPO BCA 30-90 (April 22, 1994),
Sl. op. at 6. The Board has attempted to give the Appellant
an opportunity under Rule 31 of the Board Rules to show cause
why its appeal should not be dismissed for failure to
prosecute. However, the Appellant has not responded to the
Rule to Show Cause in this case, nor has it asked the Board,
in writing, for an extension of time in which to respond.
Board Rules, Preface to Rules, ΒΆ III.C.
THEREFORE, since the time for receipt of the Appellant's
written reasons showing why the appeal should not be dismissed
with prejudice for failure to prosecute has now expired
without any response from the Contractor, the Respondent's
Motion is GRANTED, the appeal is DISMISSED with prejudice for
failure to prosecute, and the case is closed. Bedrock
Printing Company, GPO BCA 05-91 (April 10, 1992), Sl. op. at
8; Rosemark, supra, Sl. op. at 7.
It is so Ordered.
April 22, 1994 STUART M. FOSS
Administrative Judge
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1 Rule 31 states, in pertinent part, that the Board may dismiss
an appeal: "[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 indicated an intention not to continue
the orderly prosecution or defense of an appeal, . . .".
2 In the Rule to Show Cause, the Board expressly held that the
Appellant's Notice of Appeal did not sufficiently define the
Contractor's claim or identify the issues in the case, so as to
be deemed a Complaint within the meaning of Rule 6(a) of the
Board Rules. Rule To Show Cause, p. 4.