BOARD OF CONTRACT APPEALS U.S. GOVERNMENT PRINTING OFFICE In the Matter of ) ) the Appeal of ) ) BOOKBINDERS OF NEW MEXICO ) Docket No. GPOBCA 06-00 Program 6713-S ) Print Order 60001 ) DECISION ON TIMELINESS On March 7, 2000, the Board received, via U. S. Postal Service, Appellant's appeal letter of March 1, 2000. Appellant sought to appeal a decision of the Contracting Officer dated November 19, 1999, that rejected Print Order 60001 for multiple defects and required Appellant to rebind and redeliver the products by December 3, 1999. 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 (March 22, 2000) (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 on Appellant by Certified Mail was returned to the Board marked "unclaimed." The Board's second attempt to serve Appellant by Certified Mail was also returned to the Board marked "unclaimed." Finally, on June 29, 2000, the Board successfully served Appellant by facsimile. Appellant's July 3, 2000, response to the Order was to fax a copy of a March 6, 2000, letter to the Board in which Appellant states that the Contracting Officer's letter of rejection was "first received by facsimile on December 15, 1999." The facsimile transmittal cover sheet from Joel L. Widman stated: "I thought the attached letter of 3/6/2000 was our appeal." Appellant did not submit further evidence or argument on the issue of timeliness. Accordingly, the Board makes the following findings of fact on the issue of timeliness. FINDINGS OF FACT 1. By letter dated November 19, 2000, GPO Contracting Officer Arthur Jacobson, rejected Print Order 60001, Program 6713-S, Purchase Order S-1020, because of six defects, and ordered Appellant to pick up the rejected publications and correct the defects no later than December 3, 1999. 2. The Contracting Officer sent the letter to Appellant by Federal Express. According to Federal Express delivery records the letter was delivered to Appellant and signed for by J. Salazar at 8:40 a.m. on November 22, 1999. 3. Appellant's letter of appeal dated March 1, 2000, was sent to the Board by U. S. Postal Service, postmarked March 1, 2000, and received by the Board on March 7, 2000. 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 rejection letter. DECISION Under the terms of the contract at issue in this appeal, a decision of a Contracting Officer "shall be 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, Contract Clause 5(b). 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 Board's normal practice has been to enforce this 90-day time limit. See 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 Branch1 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. 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 rejecting goods tendered by Appellant and ordering correction of the defects. Thus the appeal was untimely. 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. July 13, 2000 KERRY L. MILLER Administrative Judge _______________ 1 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).