APPEAL OF FAR WESTERN GRAPHICS, INC. Docket No. VABCA-7214GPO Department of Veterans Affairs Board of Contract Appeals 2005-1 B.C.A. (CCH) P32,829; 2004 VA BCA LEXIS 1 November 10, 2004 COUNSEL: APPEARANCES David Motekaitas, President, Far Western Graphics, Inc., Sunnyvale, CA, for the Appellant. Roy E. Potter, Esq., Trial Attorney, Washington, D.C., for the U.S. Government Printing Office. OPINION BY ADMINISTRATIVE JUDGE KREMPASKY BACKGROUND This appeal was originally docketed by the Government Printing Office Board of Contract Appeals (GPOBCA) as GPOBCA No. 06-4 on April 28, 2004. The Public Printer subsequently decided to discontinue the GPOBCA and, by Interagency Agreement, dated June 7, 2004, designated this Board, the Department of Veterans Affairs Board of Contract Appeals (VABCA), to hear appeals of final decisions by U.S. Government Printing Office (GPO) Contracting Officers (CO) and the Board docketed this appeal as VABCA-7214GPO on July 29, 2004. On review of the file after docketing by the VABCA, we determined that there was evidence of neither a claim nor a CO Final Decision in the file. Consequently, the Board issued, sua sponte, an ORDER To SHOW CAUSE why this appeal should not be dismissed for lack of jurisdiction. Appellant, Far Western Graphics, Inc. (FWG) responded; the GPO did not respond. SUMMARY FINDING OF RELEVANT FACTS The following are summarized relevant facts based on the Record, which consists of the NOTICE OF APPEAL, the APPEAL FILE submitted by the GPO, correspondence from the parties and FWG's RESPONSE to the ORDER TO SHOW CAUSE. FWG was awarded GPO Purchase Order 70880 for the printing of the "Columbia Accident Investigation Board Report" for the National Aeronautical and Space Administration (NASA) on December 1, 2003 for a price of $ 247,777. Following some necessary changes to the Contract requirements increasing the Contract price, on December 10, 2004, NASA informed GPO that the Contract price now exceeded its budget and requested that the Contract be terminated for convenience. Although GPO's the de jure termination of the contract for termination was effective March 12, 2004, the de facto termination for convenience was implemented shortly after the NASA request. Following notification from the CO that the Contract was terminated for convenience, FWG submitted a TERMINATION SETTLEMENT PROPOSAL (GPO Form 911) totaling $ 105,962.80 on January 9, 2004. The CO evaluated FWG's proposal and negotiated with FWG. The parties were unable to reach agreement with the CO being fully aware that FWG adhered to its position that it was entitled to the full amount stated in its termination settlement proposal. The CO subsequently presented Contract Modification No. 1, a supplemental agreement, to FWG for signature with text as follows: You are notified that your Purchase Order 70880, Jacket 302-301 is hereby terminated for the convenience of the Government, in accordance with the provisions of the U.S. Government Printing Office Contract Terms. This termination is effective March 12, 2004. The settlement of this termination shall be $ 71,729.00 which represents a final decision by the contracting officer on all work completed, paper and plates purchased, and storage. You will be notified by the U.S. Government Printing Office, Plant Operations, Paper and Specialized Procurement Branch of the disposition on the paper and plates upon their acquisition. This agreement constitutes full and complete settlement of the amount due the contractor by reason of the complete termination of work under this contract and of all other claims and liabilities of the contractor and the GPO under this contract. FWG executed Modification No. 1 on March 12, 2004 with the following reservation handwritten on the Modification: This letter is signed under protest. Far Western Graphics needs this money, and is looking at this contract modification as a partial payment under the contract. This letter superseads [sic] any and all other paperwork before the letter. DISCUSSION Our jurisdiction is delimited by the terms of the Contract and the regulations enacted by the GPO governing its procurements. Idaho Blueprint and Supply Co., Inc., GPOBCA 27-99, 1999 WL 1581235 (December 28, 1999). For us to have jurisdiction over this appeal there must be both a proper claim by FWG and a CO final decision. The GPO disputes and appeals provisions mirror the CONTRACT DISPUTES ACT (CDA) and Federal Acquisition Regulation provisions applicable to executive agency procurement contracts. The CO final decision is as much a "linchpin" of the appeals process in GPO as it is in the executive agencies and a proper claim and final decision are absolutely essential for our jurisdiction here. GRAPHICDATA, Inc., GPOBCA 35-94, 1994 WL 837426 (December 21, 1994); citing Paragon Energy Corporation v. United States, 645 F.2d. 966 (Ct. Cl. 1981). Here we have a circumstance where FWG executed a bi-lateral contract modification formally terminating the contract for convenience and, ostensibly, settling the amount due FWG resulting from the termination. The amount stated in Modification 1 due FWG was $ 34,233.80 less than FWG claimed in its termination settlement proposal. By its terms, Modification 1 is the CO's "final decision" on FWG's settlement proposal. Under James M. Ellett Construction Company, Inc. v. United States, 93 F.3d 1537 (Fed. Cir. 1996), a termination settlement proposal is not a "claim" or a "request for decision", both prerequisites for an appeal over which we could exercise jurisdiction, when initially submitted. However, the Ellett Court recognized that a termination settlement proposal can ripen into a claim when the parties are unable to reach agreement. In this case, the parties were negotiating the amount of the termination for convenience settlement and reached an impasse on the amount due FWG. Under the Ellett rubric, the termination settlement proposal was transmuted to a claim at that point. The CO reached a "final decision" as evidenced by Modification 1 and transmitted the final decision to FWG by sending an executed Modification. This, in substance but not form, was simply a settlement of the proposal by "determination" as contemplated in the GPO PRINTING PROCUREMENT REGULATION (GPPR), GPO Publication 305.3, and the Contract TERMINATION FOR THE CONVENIENCE OF THE GOVERNMENT clause. The Contract and the GPPR explicitly recognize the right of a contractor to appeal such settlements of termination for convenience settlement proposals by determination. (GPRR Chapter XIV, Section 3(j)(7)) Since the CO was fully aware that FWG contested the $ 71,729 amount allowed by GPO and claimed the full $ 105,962.80 and, with that knowledge, issued what he considered his "final decision" on that claim, the Idaho Blueprint test has been met and we have jurisdiction over this appeal. DECISION For the foregoing reasons, we have jurisdiction over the Appeal of Far Western Graphics, Inc., under U.S. Government Printing Office Purchase Order No. 70880, VABCA-7214GPO. The parties will be informed of the schedule for further processing of this appeal. DATE: November 10, 2004 RICHARD W. KREMPASKY Administrative Judge Panel Chairman We Concur: GARY J. KRUMP Chief Administrative Judge WILLIAM E. THOMAS Administrative Judge