BOARD OF CONTRACT APPEALS U.S. GOVERNMENT PRINTING OFFICE WASHINGTON, DC 20401 In the Matter of ) ) the Appeal of ) ) OLYMPUS PRINTING COMPANY ) Docket No. GPO BCA 19-93 Program 2955-S ) Purchase Order P-7326 ) DECISION AND ORDER DISMISSING APPEAL By letter dated May 25, 1993, Olympus Printing Company (Appellant or Contractor), 5234 Mission Street, San Francisco, California 94112, appealed the April 20, 1993, final decision of Contracting Officer John J. O'Connor, of the U.S. Government Printing Office's (Respondent or GPO), San Francisco Regional Printing Procurement Office, Treasure Island, Building 99, San Francisco, California 94130-9991, terminating the Appellant's contract, identified as Program 2955-S, Purchase Order P-7326, for default. GPO Instruction 110.12, Subject: Board of Contract Appeals Rules of Practice and Procedure, dated September 17, 1984, Rules l(a), 2 (Board Rules). The appeal was docketed by the Board on June 4, 1993. Board Rules, Rule 3. By letter the same date, the Board notified the Contractor that its appeal had been docketed and provided the Appellant with a copy of the Board Rules. Id. Among other things, the Board's letter specifically directed the Appellant's attention to: (1) Rule 4(b) of the Board Rules. which requires that within 30 days after receipt of a copy of the appeal file from the Contracting Officer, the Appellant shall transmit to the Board any documents not contained therein which it considers relevant to the appeal; and (2) Rule 6(a), which provides 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, Rules 4(b) and 6(a). By letter dated, June 30, 1993, the Appellant informed the Board that it had no documents which it considered relevant to the appeal. Board Rules, Rule 4(b). However, the Contractor never filed a Rule 6(a) Complaint within the timeframe set forth in the rules. On January 25, 1994, Counsel for GPO filed Respondent's Motion to Dismiss (Motion) with the Board seeking dismissal of this case on the ground that the Appellant 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 over six (6) 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 January 27, 1994, 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 advised the Board that it was considering withdrawing its appeal, provided the Contracting Officer did not hold the Appellant liable for any reprocurement costs. The Appellant further stated that it planned to talk to the Contracting Officer about the matter, and would file its response to the Motion immediately after these discussions were concluded. Thereafter, by letter dated February 7, 1994, the Appellant, informed the Board that: (1) it was unaware of the full nature of the job at the time it submitted its bid, so it should not be held responsible; (2) it did not understand the meaning of the term "default"; and (3) the Contracting Officer never furnished it with a copy of the contract. However, the Appellant did not file its Rule 6(a) Complaint or respond to the Motion. Accordingly, on April 6, 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 the appeal record showed the Board's original docketing letter, along with the Board Rules, had been received by the Appellant on June 12, 1993. Rule to Show Cause. p. 3. The Board also observed that notwithstanding its patience and efforts to facilitate the appeal, the Appellant has never filed the required Complaint and response to the Respondent's Motion. Rule to Show Cause, pp. 3-4. Furthermore, the Board expressly held that the Appellant's appeal letter of May 25, 1993, and subsequent correspondence of June 30, 1993, and February 7, 1994, neither individually nor taken together, sufficiently defined 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. Moreover, the Board indicated that it had been waiting for two months for a proper response from the Appellant to the Motion. Id. 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. Id. The appeal record shows that the Rule to Show Cause was received by the Appellant on April 11, 1994. On April 25, 1994, within the calendar period afforded for a response, the Board received the Appellant's response to the Rule to Show Cause. In its reply, the Appellant, inter alia, referred to a letter the Contractor mailed to the Board in "the week of July 1993", which was somehow "lost or misplaced" because the Board never received it. The Appellant stated that the reason it had not pursued this matter was that it was "under the impression that [the] case [had been] dismissed."2 In the opinion of the Board, while the Contractor's letter of April 25, 1994, might explain its long silence and failure to adhere to the requirements of the Board Rules, it is not specifically the requested Rule 6(a) Complaint, or the answer to the Motion, nor is it an adequate response to the Rule to Show Cause. 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; Graphic Image, Inc., GPO BCA 42-92 (April 22, 1994), Sl. op. at 5. The Board has given 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. As indicated above, the Appellant's letter of April 25, 1994, is not a proper response to the Rule to Show Cause. Consequently, the Contractor has failed to provide the Board with sufficient reasons or justification to warrant continuation of this appeal under Rule 31 of the Board Rules. THEREFORE, 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 p.8; Rosemark, supra, Sl. op. at 7; Graphic Image, Inc., supra, Sl. op. at 5. It is so Ordered. April 29, 1994 STUART M. FOSS Administrative Judge _____________ 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 indicates an intention not to continue the orderly prosecution or defense of an appeal, . . .". 2.The Board is at a loss to explain how the Appellant got the idea that its appeal had been dismissed. Prior to this order, no letter, order or other official correspondence from the Board, has ever been prepared and served on the contractor, informing it of the dismissal of its case.