U.S. Government Printing Office Office of General Counsel Contract Appeals Board Appeal of Kimball Systems Division 74-13 January 21, 1975 Jay E. Eisen , Member This is an appeal filed.by Kimball Systems Division, Litton Business Systems, 850 Third Avenue, New York, New York, herein also referred to as the contractor on August 27, 1974, under the disputes clause of the contract, Jacket #524-355, Purchase Order 54897, Article 29, U.S. Government Printing Office Contract Terms No. 1, Rev. July 15, 1970. The Office of General Counsel is the Public Printer's representative for the determination of appeals under the disputes clause. 1. Findings of Fact. (a) This case arises out of a contract entered into by the appellant, Kimball Systems Division, and the U.S. Government Printing Office, herein referred to as the GPO, for the production of 500,000 sets (1,000,000 individual) labels. (b) The contract, designated as GPO Jacket Number 524-355, Purchase Order 54897 is a fixed price agreement for the procurement of supplies; to wit labels, awarded at a cost of $2,600.00 on November 15, 1973. (c) Jacket Number 524-355, Purchase Order 54897 is a requirement of the Department of Health, Education, and Welfare, (National Institutes of Health) for the production of.the following: "Yellow uncoated Label, 120-140, No Printing, 500,000 sets = 1,000,000 individual labels, size 4 x 1 7/16, mounted 2-up. Side by side . . ." (d) The contract, in addition to describing the standards for uncoated label paper set forth the type and kind of adhesive to be affixed to the labels as follows: "PRESSURE SENSITIVE ADHESIVE: (non-permanent) Labels shall be coated with a removable type adhesive of sufficient tack to cause the labels to adhere firmly to plastic magnetic tape reels operating at high speed. However, the labels shall be no more difficult to remove after 48 hours on reels than after 30 minutes; shall take no more than 5 seconds to remove and shall strip from the reel without tearing or leaving and residue on the reel. Labels shall have a shelf life of one year.'' (Emphasis supplied.) (e) The contract specified that pre-production sampling is required. The clauses for this purpose stated in pertinent part are as follows: "(a) The pre-production sample requirement for this contract is not less than 32 sets mounted on a continuous marginally punched backing sheet. Each set must be as specified herein (including size). Labels must be manufactured using the stock, equipment, and method of production to be used in producing the finished product, and must be of the kind and quality the contractor will furnish in producing the order. "(b) Prior to the commencement of production of the contract production quantity. the contractor shall deliver the pre- production sample to the Government addressed to: U.S. Government Printing Office . . . . . . "(d) The Government will approve. conditionally approve, or disapprove the pre-production samples within 7 working days of the receipt thereof. Samples will be inspected and tested and must comply with the specifications as to kind and quality of materials. Approval or conditional approval shall not relieve the contractor from complying with the specifications and all other terms and conditions of the contract. A conditional approval shall state any further action required by the contractor. A notice of disapproval shall state the reasons therefor. "(e) If the pre-production sample is disapproved by the Government, the Government at its option may require the contractor to submit additional samples for inspection and test, in the time and under the terms and conditions specified in the notice of rejection. . . . "f) . . . in the event pre-production samples are disapproved by the Government, the contractor shall be deemed to have failed to make delivery within the meaning of the default clause in which event the contract shall be subject to termination for default, . . ." (f) In accordance with the contract terms, the contractor on December 26, 1973 submitted the prior to production sample labels. They were tested and rejected by GPO on February 19, 1974 because they left a residue on the reels. The contractor acknowledged receipt of the rejection notice by letter dated February 19, 1974; the contractor indicated their intention to send "new samples" to GPO for approval. The additional preproduction samples were furnished on April 8, 1974 and rejected on April 19, 1974, for the same reasons. (g) The Contracting Officer, by letter dated April 19, 1974, notified the contractor that the contract is terminated for default by reason of its inability to deliver a product in accordance with the specifications; that the Government may procure supplies similar to those so terminated and that the contractor shall be liable to the Government for excess costs for such similar supplies in accordance with Article 18, GPO Contract Terms, No. 1. The contractor was advised of its right to appeal to the Public Printer pursuant to Article 29, GPO Contract Terms No. 1. (h) Subsequent to the notice of termination for default to the contractor, an award was made to the second low bidder, The Globe Ticket Company, 222 New Boston Street, Woburn, Massachusetts 01801, on April 30, 1974 in the amount of $3,640.00 (Jacket No. 524-355 - Purchase Order 58774). The specifications and requirements were the same. Kimball Systems was advised by the contracting officer by letter dated May 14, 1974, that the contractor shall be liable for the total amount of excess costs resulting from the procurement of the supplies from the Globe Ticket Company (Article 18, GPO Terms No. 1). (i) Article 29, U.S. GPO Contract Terms No. 1 contains the usual disputes provision concerning decisions on questions of fact arising under the contract to be decided by the contracting officer in event of failure to agree, with a right of appeal within thirty days after receipt of a copy of the decision. The records in.the file reflect the following sequence.of events concerning the termination of the contract for default: (1) APRIL 19, 1974 - contracting officers decision, with notice of right to appeal within thirty days after receipt of copy of decision. (2) MAY 14, 1974 - Notice re: Excess costs to contractor due to reprocurement. (3) AUGUST 27, 1974 - Date of appeal letter filed by contractor. No good cause shown for untimeliness of appeal. (4) OCTOBER 17, 1974 - Letter from Office of General Counsel to contractor advising of privilege to submit supporting evidence. (5) NOVEMBER 8, 1974 - Counsel for contractor acknowledged letter. (6) DECEMBER 3, 1974 - Counsel requested and a copy of GPO Contract Terms No. 1 dispatched to counsel - He requested delay to December 20, 1974 to submit appeal. (7) DECEMBER 20, 1974 - Received letter dated December 18, 1974 re: appeal (limited to the merits.) II. Opinion The immediate question in this appeal is the timeliness of the appellant's notice of appeal. As I have determined that a question concerning timeliness of an appeal is present, my initial consideration will be limited to such jurisdictional question. The merits are not to be considered if the submission was in fact untimely. The "disputes" article of the contract provides, in pertinent part, as follows: ". . . any dispute concerning a question of fact arising under this contract which is not disposed of by agreement shall be decided by the Contracting Officer, who shall reduce his decision to writing and mail or otherwise furnish a copy thereof to the Contractor. The decision of the Contracting Officer shall be final and conclusive unless within 30 days from the date of receipt of such copy, the contractor mails or otherwise furnishes to the Contracting Officer a written appeal addressed to the Public Printer." (Art. 29, GPO Contract Terms No. 1) This office does not have the specific date of the receipt of the Contracting Officer's decision by the appellant of the termination notice of the contract for default dated April 19, 1974. Since the contractor in a letter to the Contracting Officer dated May 7, 1974, acknowledged receipt of the termination notice of April 15, 1974, and since the notice of appeal was dated August 27, 1974, the appeal is patently untimely. A contracting officer's determination is considered final and conclusive unless an appeal is lodged within the 30 day period as set out in the Disputes Clause. The Curtiss Company, ASBCA, 69-1 BCA ¶ 7440, December 20, 1968. It has been held by contract review boards that the 30 day appeal period usually appearing in the standard disputes clause may not be waived in order to grant consideration on the merits. Arthur Venneri Co., GSBCA, 1964 BCA ¶ 4334, 1964; Wholesale Paint Co. , GSBCA, 68-1 BCA ¶ 7007, 1968; Monroe Tapper and Associates, PSBCA, 72-2 BCA ¶ 9628, 1972. This rigid and indiscriminate adherence to the 30 day provision of the disputes clause was considered to be too narrow a standard by the Court of Claims, who held that Boards of Contract Appeals have the power in proper circumstances to waive or extend the appeal periods specified in the usual disputes clauses. Maney Aircraft Parts, Inc. v. United States, 197 Ct. Cl. 159. This reasoning was reaffirmed in the case of Monroe M. Tapper and Asso. v. United States, 198 Ct. Cl. 72. The Court remanded the case to the Postal Service Board of Contract Appeals, who found that no facts or circumstances had been presented by the contractor that would warrant or permit the exercise of such power. Monroe M. Tapper and Associates , PSB, 72-2 BCA ¶ 9628, 1972. In the applicable case, the contractor was offered an opportunity to submit evidence in support of their appeal pursuant to the "disputes clause". The scope of review would of course include any facts or circumstances to justify extending or waiving the 30 day appeal period. In view of the cited decisions by the Court of Claims it is the belief that we have the power in proper circumstances to waive or extend the appeal period specified in the disputes clause. Hence, upon a review of the entire file, including the matters submitted by appellant's counsel, I find no facts or circumstances presented in the appeal which would justify extending or waiving the appeal period to August 27, 1974. In view of the foregoing the appeal is dismissed.