BOARD OF CONTRACT APPEALS U.S. GOVERNMENT PRINTING OFFICE WASHINGTON, DC 20401 In the Matter of ) ) the Appeal of ) ) SWANSON PRINTING COMPANY ) Docket No. GPO BCA 27-94 Program D404-M ) Purchase Order 93869 ) Print Order No. 86087 ) DECISION AND ORDER ACCEPTING APPEAL AND DENYING MOTION TO DISMISS On July 6, 1995, the Board conducted a prehearing telephone conference in the above-captioned appeal of Swanson Printing Company (Appellant or Contractor), 5205 York Road, Baltimore, Maryland 21212. GPO Instruction 110.12, Subject: Board of Contract Appeals Rules of Practice and Procedure, dated September 17, 1984, Rule 10 (Board Rules). During the conference, the Board, sua sponte, questioned whether the Notice of Appeal was timely filed in this case.1 See Report of Prehearing Telephone Conference, dated July 10, 1995, p. 2 (RPTC). Thus, the Board observed that although the Contracting Officer had issued his final decision rejecting the Appellant's equitable adjustment claim on April 5, 1994, the Contractor's challenge was dated July 27, 1994, which was more than 90 days after the date of the final decision letter.2 RPTC, p. 2. Based on the ensuing discussion, the Board ultimately determined to resolve the jurisdictional issue before considering the merits of the appeal.3 RPTC, p. 3. Accordingly, it established a schedule for the Respondent to file a motion to dismiss, for the Appellant to respond to the motion, and for GPO to reply to the Contractor's response.4 Id. Pursuant to that schedule, the Board has received the following documents from the parties: (1) "Respondent's Motion to Dismiss with Points and Authorities in Support Thereof" (Motion), dated July 28, 1995; (2) "Respondent's Supplement to Motion to Dismiss" (Supplement), dated August 1, 1995; and (3) "Appellant's Opposition to Respondent's Motion to Dismiss and Respondent's Supplement to Motion to Dismiss" (Opposition), dated August 8, 1995. The Board has carefully considered the Motion, the Supplement, and the Opposition, and for the reasons which follow DENIES the Motion. I. STATEMENT OF FACTS The facts pertaining to the jurisdictional question are essentially undisputed and are set forth here only to the extent necessary for this decision. 1. On July 12, 1993, the Respondent issued an Invitation for Bids (IFB) for Program D404-M, which involves the production of two categories of saddle-stitched and perfect bound legal publications (i.e., briefs) for the Department of Justice (DOJ or customer-agency) (R4 File, Tab A, pp. 1, 5).5 As indicated in the IFB, Program D404-M covers operations such as composition (Category 1 only), film-making, printing, binding, packing, and delivery. (R4 File, Tab A, p. 5). The contract resulting from the IFB was to be a multiple award term contract for the period beginning with the date of award and ending July 31, 1994 (R4 File, Tab A, p. 1). 2. On July 30, 1993, the Contractor, who has done Program D404-M work before, see R.C. Swanson Printing and Typesetting Co., GPO BCA 15-90 (March 6, 1992), 1992 WL 487874, supplemental decision (July 1, 1993), 1993 WL526638, reconsid. granted (December 20, 1993),6 submitted its bid to the Respondent (R4 File, Tab B).7 Thereafter, on August 10, 1993, GPO issued Purchase Order No. 93869 to the Appellant making it one of the contractors for Program D404-M for the term beginning August 14, 1993, and ending July 31, 1994 (R4 File, Tab D).8 3. On January 3, 1994, the DOJ issued Print Order 86087 to the Appellant for the production of 208 copies of the Appendix only for a brief in the matter of United States v. National Treasury Employees Union ((R4 File, Tab E). Among other things, the Print Order established a delivery date of January 19, 1994, and required the Contractor to submit eight (8) sets of page proofs to the customer-agency prior to printing the Appendix. In that regard, the Print Order stated that proofs were due by January 7, 1994, and would be returned to the Appellant by January 18, 1994. 4. In accordance with the specifications, the Contractor prepared the required proofs of the Appendix and submitted them to DOJ. On January 14, 1994, the customer-agency returned the corrected Appendix proofs to the Appellant for printing (R4 File, Tab F). However, with the corrected Appendix the DOJ also sent the Contractor 23 additional manuscript pages-the brief's Petition-for typesetting and preparation of proofs (R4 File, Tab F). The customer-agency asked the Appellant to send it eight (8) proofs of the Petition by January 18, 1994, so that the final printed brief would be ready by the contract due date of January 19, 1994.9 Since the Appendix and the Petition, when bound together, constituted the complete brief, the Contractor was instructed to "wait until Monday for the o.k. to print the Appendix" (R4 File, Tab F). Also that same day, the DOJ asked GPO to make the appropriate change to its printing and binding requisition (R4 File, Tab G). 5. On January 27, 1994, the Appellant submitted a voucher for payment of the completed work (R4 File, Tab H). Included in its bill were two charges totaling $3,710.00 for a "2nd printing" of the brief. These charges were disallowed by GPO's Financial Management Section, and the Appellant was instructed to contact the Contracting Officer (R4 File, Tab H). Accordingly, on February 18, 1994, the Contractor wrote to Richard Weiss, the Contracting Officer for Program D404-M during this period, see Supplement, Declaration of Richard Weiss, ¶ 1 (Weiss Declaration), contending that the charges for the second printing were appropriate (R4 File, Tab I). The crux of the Appellant's argument was that it had printed the Appendix, as corrected on January 14, 1994, after receiving assurances from DOJ's representatives that there would be no other changes, only to discover when the proofs of the Petition were subsequently returned that the customer- agency had also made additional alterations in the Appendix (R4 File, Tab I). Since it had to print the Appendix a second time in order to accomplish these extra changes, the Contractor believed its charges were justified under the circumstances (R4 File, Tab I). On March 29, 1994, the Appellant sent a follow-up letter to the Contracting Officer about this matter, and asked Weiss to expedite payment of its claim which "is properly due" (R4 File, Tab N). 6. In the interim, the Contracting Officer had contacted those DOJ employees involved with this contract, and was told that the customer-agency had not authorized two printings of the Appendix (R4 File, Tabs K and L). Accordingly, by letter dated April 5, 1995, expressly entitled "Notice of Final Decision," Weiss denied the Appellant's claim for recovery of the costs of printing the Appendix a second time (R4 File, Tab O). In making his determination, the Contracting Officer relied on two things: (a) the Contractor's inability to supply copies from the first printing; and (b) any other supportable evidence showing that the reprint was both necessary and authorized (R4 File, Tab O). The Contracting Officer's letter also contained the following standard paragraph: This is the final decision of the Contracting Officer. You may appeal this decision to the U.S. Government Printing Office Board of Contract Appeals, Washington, DC 20401. If you decide to appeal, you must, within 90 days from the date you receive this decision, mail or otherwise furnish written notice to the Board of Contract Appeals and provide a copy to the Contracting Officer from whose decision the appeal is taken. The notice shall indicate that an appeal is intended, reference this decision, and identify the contract by number. See R4 File, Tab O. See also Board Rules, Rule 1(a). 7. The record shows that the Appellant received Weiss' letter on April 8, 1994. See Motion, Exhibit 1. Therefore, counting April 9, 1994, as the first day of the 90-day appeal period, see Board Rules, Preface to Rules, ¶ III.B, the Contractor's appeal should have been "mailed or otherwise furnished to the Board" by July 8, 1994. Board Rules, Rule 1(a). 8. On June 13, 1994, 66 days after it received the Contracting Officer's final decision letter, the Appellant wrote to Weiss concerning his determination to reject the Contractor's claim for payment of the additional work performed on Print Order 86087, as well as on another job- Print Order 86144 (R4 File, Tab P).10 As explained by the Appellant, in pertinent part: . . . Both P.O.'s 86144 and 86087 contained back to press charges. PO 86087 consisted of a memorandum from the Dept. of Justice okaying a job to print which was then later changed, after it had been printed but before it was delivered. Your position was that we needed to obtain authorization from the agency for back to press orders and that your could not authorize such a thing. Now we have PO 86144 where the agency requested an additional 100 books after the first order had been printed and they did send a "REQUEST FOR CHANGE ON PRINTING AND BINDING REQUISITION" dated May 24, 1994. In their "Request" they stated . . . "This is to authorize back to press for an additional 100 copies." Both items were performed by us and were substantiated by printed sample and receipts showing delivery. We billed under the pricing of the contract and included a copy of the "Request" from the Dept. of Justice. You have stopped payment for this work claiming it was authorized by you. Your newest verbal decision creates a myriad of problems that must be dealt with. See R4 File, Tab P, p. 1. [Emphasis added.] Accordingly, the Appellant asked the Contracting Officer to clarify his position with respect to Program D404-M by answering certain questions, including, in pertinent part: * * * * * * * * * * 3. Are Print Orders able to be changed, "after" they have been issued, by the issuer? 4. Does the Contract . . . establish rules for changing a Print Order that does not alter the contract but merely adds or subtracts from the work originally requested? i.e., change 200 copies to 300 copies. * * * * * * * * * * 6. Keeping in mind that work ordered at 9:00 p.m. and available for pick-up even later is usually due the next morning at 9:00 a.m., is it your position that no work should be done without authorization in writing from you that in any way varies from the original print order . . . ? * * * * * * * * * * 8. Please provide your specific reasons for refusing to pay for PO's 86144 and 86087, citing the Contract to substantiate your position. See R4 File, Tab P, p. 2. [Emphasis added.] See also R4 File, Tab R ("The reason for my letter of June 13 was to clarify issues . . .".). The Contractor also asked Weiss for a quick response, "since these are not new questions since your have apparently already answered them in withholding payment . . .". Id. 9. On June 17, 1994, 70 days after the Contractor had received the final decision letter, the Contracting Officer wrote back to the Appellant and restated his position with regard to the disputed Print Orders (R4 File, Tab Q). With respect to Print Order 86087, specifically, Weiss said: . . . In your letter you state that my position was that Swanson Printing needed to obtain authorization from the agency for back to press orders and that I could not authorize such a thing. I have reviewed my Final Decision Letter on Print Order 86087, dated April 5, 1994, and can find nothing that would support the above statement. See R4 File, Tab Q, p. 1. [Emphasis added.] 10. On June 23, 1994, 76 days after receipt of the final decision letter, the Appellant responded to the Contracting Officer's letter, and among other things, said, in pertinent part: In regard to PO 86087, I must request that all of the materials that were submitted to substantiate our bill be returned to us so that I may highlight the proof for you since you obviously have taken the time to review the material submitted with the bill. Once I have it in my possession I will reconstruct the events that occurred and resubmit to you with the written instructions by the Department of Justice. See R4 File, Tab R. 11. On July 6, 1994, 88 days from the time it had received the Contracting Officer's final decision, the Appellant wrote another letter to Weiss concerning the disputed Purchase Orders (R4 File, Tab S). In that correspondence, the Contractor stated the following with regard to Purchase Order 86087: . . . I have finally received the material back from your office that clearly supports the fact that the changes were made after the OK to print and as such required a second printing. I assume that you had reviewed all of these materials in issuing your decision so I must now request that you reconsider your decision based on the clear proof before us, or in the alternative, reissue your decision stating the facts as you see them and indicate what part of the documents led you to that conclusion so that we may appeal this matter to the Board of Contract Appeals. See R4 File, Tab S, p. 2. [Emphasis added.] The record indicates that the Appellant's letter, which was postmarked in Baltimore, Maryland on July 7, 1994, was received by Weiss on or after July 9, 1994. See Supplement, Weiss Declaration, ¶ 3. 12. On July 13, 1994, 95 days from the date the Appellant received the Contracting Officer's final decision, Weiss sent a letter to the Contractor which said the following: This is in response to your letter of July 6, 1994 in which you request that I reconsider my final decision on your claim for Print Order 86087. I have again at your request, reviewed my final decision, and find it to be both correct, and also perfectly clear as to why your claim was denied. See R4 File, Tab T. [Emphasis added.] 13. On July 27, 1994, 109 days after the Contracting Officer initially issued his final decision about Print Order 86087, the Appellant sent Weiss a letter "requesting an appeal" of the matter to the Board (R4 File, Tab U).11 The record also shows that the Contracting Officer promptly forwarded the appeal to the Board, where it was docketed on August 12, 1994. See R4 File, Tab V; Docket Entry No. 2. II. QUESTION PRESENTED The only issue in this proceeding is whether, under these facts, was the appeal from the Contracting Officer's final decision timely filed so that the Board can assert jurisdiction over the Appellant's claim? III. POSITIONS OF THE PARTIES12 The Respondent opposes the Board's assertion of jurisdiction in this case on the simplest of grounds, namely, the Appellant did not file its Notice of Appeal with the Board within 90 days of its receipt of the Contracting Officer's final decision, as required by both the contract and the Board Rules.13 See RPTC, p. 2; Motion, pp. 4-5 (citing, R4 File, Tab A, p. 2, incorporating by reference GPO Contract Terms, Solicitation Provisions, Supplemental Specifications, and Contract Clauses, GPO Publication 310.2, effective December 1, 987 (Rev. 9-88) ¶ 5(b) (Disputes) (hereinafter GPO Contract Terms); Board Rules, Rule 1(a)). The Government notes that, historically, the Board has strictly applied the 90-day filing rule. See Motion, p. 5 (citing Ace Duplicating Company, GPO BCA 44-92 (February 1, 1993); Moore Business Forms and Systems Division, GPO BCA 3-86 (February 25, 1987, 1987 WL 228968). Nonetheless, it also recognizes that, under certain specific factual circumstances, the Board may toll the running of the time limits for filing an appeal, where there are specific or equitable reasons for doing so. Id (citing Appeal of DiLine Litho, Inc., GPOCAB 77-3 (January 24, 1978), 1978 WL 22341 [citing Maney Aircraft Parts, Inc. v. United States, 479 F.2d 1350, 1353 (Ct. Cl. 1973); Monroe M. Tapper and Associates v. United States, 458 F.2d 66 (Ct. Cl. 1972), appeal after remand, 514 F.2d 1003 (1973)]).14 However, GPO contends that the Contractor has not demonstrated the requisite good cause for not having filed its appeal on time in this case. See Motion, p. 6. The Respondent also argues that the Appellant's experience in litigating appeals before the Board and the Courts precludes it from claiming that it is unfamiliar with the Board's rules or the appeal process, including the filing time limits. Id (citing, Richard C. Swanson and Larry A. Ford, d.b.a. Swanson Printing and Typesetting Co. v. United States, C.A. 94-185C (Fed. Cl)). While it acknowledges that a contractor's request for reconsideration can also stop the 90- day clock, the Government states that the Contractor did not seek reconsideration of the final decision until the 89th day of the appeal period (July 6, 1994). Id. Apart from believing that the reconsideration request could not have reached the Contracting Officer until after the appeal period had lapsed, the Respondent also contends that the Appellant could not have had a reasonable or objectively demonstrable belief Weiss was, in fact, reconsidering his final decision on the 90th day, or that the Contractor's letter had even been received. See Motion, pp. 6-7 (citing Rainbow Construction Co., Inc., ASBCA No. 48196, 95-1 BCA ¶ 27,580).15 In that regard, the GPO dismisses the Appellant's communications with the Contracting Officer between June 13, 1994, and July 6, 1994, as no more than "expressions of disagreement" with the final decision, and claims that nothing in Weiss' responses to the Contractor's letters amounts to a decision on reconsideration. See Motion, p. 6, fn. 4. Furthermore, the Government asserts that the Contracting Officer's replies to the Appellant before July 13, 1994, reveal no indication whatsoever that he intended to change his April final decision, or that he was reconsidering the decision at all. See Motion, p. 7, fn. 5. Accordingly, the Respondent submits that no tolling of the 90-day filing period occurred in this case, and asks the Board to dismiss the untimely appeal for lack of jurisdiction. The Appellant concedes that if April 8, 1994-the date it received the Contracting Officer's final decision letter of April 5, 1994-is considered the starting point of the 90-day appeal period under the Board Rules, then its Notice of Appeal was untimely filed. However, the Contractor contends that the Contracting Officer's April letter was not a "final decision" in fact, and that it had asked Weiss to reconsider the matter. See RPTC, p. 2; Opposition, p. 2. The Appellant believes that the Contracting Officer's actions between April 5, 1994, and July 13, 1994, were inconsistent with the Government's position that the April letter was the decision which started the clock on the appeal period. Id. In that regard, the Contractor observes that the appeal file contains an exchange of correspondence between the parties between April and July, in which the claim was actively discussed. See RPTC, p. 2. In addition, the Appellant notes that it talked with the Contracting Officer on the telephone during this period, and says that Weiss was well aware that Appellant was seeking return of the original documents to submit them as proof of Appellant's position. See Opposition, p. 2. The Contractor asserts that its reconsideration letter of July 6, 1994, proves that the communications between the parties after April 5, 1994, amounted to a "waiver" of the original 90-day appeal period. See Opposition, pp. 2, 3. It also contends that the fact the letter was not received by the Contracting Officer until on or after July 9, 1994, is irrelevant. See Opposition, p. 2. Under the rules, the 90-day appeal period can be tolled by mailing, and in this case, as the Respondent admits, the reconsideration letter was postmarked July 7, 1994, which was within the time limits established by the rules. See Opposition, pp. 2, 3. As for the Government's reliance on Rainbow Construction Co., Inc., the Appellant argues that the R4 File clearly shows that it has met the requisite test enunciated by the ASBCA in that case by "showing it reasonably or objectively could have concluded that the contracting officer's decision was being [re] considered." See Opposition, p. 2. Thus, under the law, the Contracting Officer's April 5, 1994, "final decision" was not final at all, but merely preliminary. Id. The Contractor rejects the Respondent's attempt to use its prior appeals to the Board and its pending claim before the Federal Claims Court as evidence of awareness of the appropriate time limits. Id. Rather, the Appellant states that as a non- lawyer appearing pro se in this case, it must rely on its layman's understanding of the rules and procedures of the Board, which tells it that the appeal clock stopped running while the Contracting Officer reconsidered his decision. See Opposition, pp. 2-3. Finally, the Contractor submits that the Contracting Officer's letter of July 13, 1994, was a "new" final decision, which began a new 90-day appeal period. See Opposition, p. 3. Accordingly, since July 13, 1994, not April 5, 1994, is the critical date for the purposes of jurisdiction in this case, the Board may hear the appeal because the Notice of Appeal was filed within 14 days after this "new" final decision was issued. See RPTC, pp. 2-3; Opposition, p. 3. IV. DECISION After a close review of the record and the arguments presented by the parties in the Motion, the Supplement, and the Opposition, the Board has concluded that: (a) the Appellant's July 6, 1994, letter to the Contracting Officer constitutes a validly filed, timely Notice of Appeal; and (b) regardless of the effect of the Contractor's letter of July 6, 1994, the Contracting Officer's actions between April 5, 1994, and July 13, 1994, gave a reasonable appearance that he was reconsidering his final decision. A. The letter of July 6, 1994 Like all other contract appeals boards, the Board's jurisdiction is triggered by an appeal from the final decision of a GPO contracting officer. Board Rules, Preface to Rules, ¶ I (Jurisdiction for Considering Appeals); GPO Contract Terms, Contract Clauses, ¶ 5(b) (Disputes). See EPCO Associates, GPO BCA 26-93 (November 18, 1993), slip op. at 3, 1993 WL 526919; Shepard Printing, GPO BCA 37-92 (January 28, 1994), slip op. at 28, 1994 WL 275077. Accord Associated Contract Specialties Corp., ASBCA No. 37437, 90-3 BCA ¶ 23,258; Spruill Realty/Construction Co., ASBCA No. 40477, 90-3 BCA ¶ 23,255; Santa Fe Engineers, Inc., ASBCA Nos. 28058, 29362, 86-3 BCA ¶ 19,092, aff'd 818 F.2d 856, 858 (Fed. Cir. 1987); R & E Electronics, Inc., VABCA Nos. 2227, 2299, 2300, 85-3 BCA ¶ 18,316. Both the "Disputes" clause in GPO Contract Terms and the Board Rules allow a contractor 90 days from the date of receipt of a contracting officer's final decision to file an appeal. GPO Contract Terms, Contract Clauses, ¶ 5(b) (Disputes); Board Rules, Rule 1(a). Accord Policy Research, Inc., ASBCA No. 26144, 82-1 BCA ¶ 15,618; Cosmic Construction Co. v. United States, supra. Consistent with the regulations of other contract appeals boards, the Board Rules does not require a Notice of Appeal to actually reach the Board by the 90th day. A valid filing will occur by the 90th day if the appeal is dispatched through the U.S. Postal Service, in which case the postmark governs, see Micrographic Technology, Inc., ASBCA No. 25577, 81-2 BCA ¶ 15,357,16 or is "otherwise furnished to the Board," a phrase which encompasses not only actual delivery of the notice to the Board itself, but also protects contractors from the consequences of misdirected appeals,17 see Birken Manufacturing Co., ASBCA No. 37064, 89-1 BCA ¶ 21,248 (providing notice of appeal to the contracting officer); Brunner Bau GmbH, ASBCA No. 35678, 89-1 BCA ¶ 21,315 (mailing notice of appeal to government counsel); Contraves- Goerz Corp., ASBCA No. 26317, 83-1 BCA ¶ 16,309 (mailing notice of intent to appeal to Secretary of the Air Force through the contracting officer). See also McDonald & Eudy Printers, Inc., GPO BCA 06-91 (May 6, 1994), 1994 WL 377581 (notice of appeal lost by GPO's mail room).18 However, for a notice of appeal directed to the contracting officer to be considered a filing, it must reflect a dissatisfaction with the final decision and indicate an intent to appeal to a board of contract appeals or U.S. Claims Court. See Johnson Controls, Inc., ASBCA No. 28340, 83-2 BCA ¶ 16,915; Birken Manufacturing Co., supra; Yankee Telecommunication Laboratory, Inc., ASBCA No. 25240, 82-1 BCA ¶ 15,515; Dawson Construction Co., EBCA No. 155-2-81, 81-2 BCA ¶ 15,162; Pantronics, Inc., ASBCA No. 20982, 78-2 BCA ¶ 13,285. By that standard, the Appellant's letter to the Contracting Officer on July 6, 1994, could be considered a valid filing because it clearly reflects dissatisfaction with Weiss' final decision an indicates an intention to appeal to the Board (R4 File, Tab S). Furthermore, since the time for submitting an appeal in this case did not expire until July 8, 1994, such a filing would be timely because the Contractor's letter was postmarked on July 7, 1994, the 89th day of the appeal period, even though it was not received by Weiss until the 91st day, July 9, 1994, at the earliest. See Supplement, Weiss Declaration, ¶ 3. B. Reconsideration of the Final Decision It is well-established that a contracting officer's reconsideration of an earlier final decision vacates the finality of that decision.19 See Rainbow Construction Co., Inc., supra; Sach Sinha and Associates, Inc., ASBCA No. 46916, 95-1 BCA ¶ 27,499; Royal International Builders Co., ASBCA No. 42637, 92-1 BCA ¶ 24,684; Johnson Controls, Inc., supra. Essentially, where a contracting officer, either by words or actions, agrees to reconsider his or her final decision, the matter is kept open and the finality of the initial decision is necessarily destroyed. See Roscoe-Ajax Construction Co. v. United States, 198 Ct. Cl. 133, 148, 458 F.2d 55, 63 (1972). In such a case, a new final decision is required to begin the running of the appeal period. See Information Systems & Networks Corp. v. United States, 17 Cl. Ct. 527 (1989); Birken Manufacturing Co., ASBCA No. 36587, 89-2 BCA ¶ 21,581. The principle, as succinctly expressed by the ASBCA in Rainbow Construction, a case cited to the Board by the Respondent, is: If a contracting officer's decision is not truly "final," but being reconsidered, a "failure to appeal from the decision within the prescribed period will not defeat . . . [a] contractor's opportunity to be heard on the merits." Johnson Controls, Inc., ASBCA No. 28340, 83-2 BCA ¶ 16,915 at 84,170. The issue to be resolved with respect to vitiation of "finality" is whether the contractor has presented evidence showing it reasonable or objectively could have concluded that the contracting officer's decision was being reconsidered. Sach Sinha and Associates, Inc., ASBCA No. 46916, 95-1 BCA ¶ 27,499 (13 February 1995) and cases cited. See 95-1 BCA at 137,447. This rule has been consistently and repeatedly applied by the ASBCA, see, e.g., Sach Sinha and Associates, Inc., supra (finality of default decision vitiated by the contracting officer's discussion of the termination with the contractor, and his request that the contractor submit, in writing, settlement alternatives); Royal International Builders Co., supra (finality vitiated where the contracting officer's actions created sufficient uncertainty that the contractor could reasonably believe decision was not final); Johnson Controls, Inc., supra ((finality vitiated where the contracting officer granted the contractor an audience to discuss decision and did not "make it very clear" that original appeal period was running), as well as other tribunals, see, e.g., Summit Contractors v. United States, 15 Ct. Cl. 806 (1988) (the contracting officer's post-decision review of same record vitiated the finality of the final decision); Edward R. Ester and Lorraine Ester, PSBCA No. 3051, 92-2 BCA ¶ 24,822 (reasonable interpretation of the contracting officer's letter was that he was willing to reconsider the final decision, and the contractor was led to believe that the decision would be reconsidered); Riverside General Construction Co., IBCA No. 1603-7-82, 82-2 BCA ¶ 16,127 (finality was vitiated because the contracting officer held out the prospect that the final decision would be subject to further discussion and possibly reconsideration). It is also established that the use of the word "reconsider" is not a sine qua non, but rather the issue is whether the contractor "reasonably concluded" that the contracting officer was "reconsidering his final decision." See Sach Sinha and Associates, Inc., supra, 95-1 BCA at 137,042 (citing Precision Tool & Engineering Corp., ASBCA No. 16652, 73-1 BCA ¶ 9878). Furthermore, the test is not limited to the subjective state of the contractor's mind, but rather is an objective one considering all the facts. See Jen-Beck Associates, VABCA No. 1988, 85-2 BCA ¶ 18,086. From the evidence in this case the Board concludes that the Appellant reasonably or objectively could have concluded that the Contracting Officer was reconsidering his April 5, 1995, final decision. See Rainbow Construction Co., Inc., supra, 95-1 BCA at 137,447; Sach Sinha and Associates, Inc., supra, 95-1 BCA at 137,042. In that regard, the Board reads the Contractor's June 13, 1994, letter to the Contracting Officer asking him, inter alia, to explain, in detail, his reasons for denying payment of the voucher for Print Order 86087, as effectively seeking reconsideration of the final decision from Weiss. See R4 File, Tab P, p. 2. In his response on June 17, 1994, the Contracting Officer specifically told the Appellant that: "I have reviewed my Final Decision Letter on Print Order 86087, dated April 5, 1994, and can find nothing that would support the [Contractor's position]." See R4 File, Tab Q, p. 1. It seems to the Board that this reply was, in effect, a denial of the Appellant's June 13, 1994, request for reconsideration, in which case the new appeal period would have expired on September 15, 1994. Looked at that way, the Contractor's letter to Weiss of July 27, 1994, "requesting an appeal" of the dispute to the Board, was obviously timely filed. See R4 File, Tab U. Despite the Contracting Officer's negative response, the Appellant continued its pursuit of payment for the second printing on Purchase Order 86987. First, on June 23, 1994, the Contractor asked Weiss to return the documentation accompanying the original voucher so that, inter alia, it could highlight the proof of claim, and resubmit its bill along with the DOJ's written instructions. See R4 File, Tab R. See also, GPO Contract Terms, Contract Clauses, ¶ 24 (Payment on Purchase Order). Next, on July 6, 1994, the Appellant specifically requested reconsideration of the Contracting Officer's final decision, or in the alternative, a more detailed explanation so that it could appeal the matter to the Board. See R4 File, Tab S, p. 2. Weiss' answer on July 13, 1994, which denied the request for reconsideration and reaffirmed his final decision, also clearly indicates that he thought he was doing so for a second time. See R4 File, Tab T ("I have again at your request, reviewed my final decision, . . . ". [Emphasis added.]). In the Board's opinion, when viewed in its entirety, one salient point stands out in the parties' exchange of correspondence between June 13, 1994, and July 13, 1994-at no time did the Contracting Officer ever make it clear to the Appellant that the original appeal period remained in effect. Weiss' failure to advise the Contractor in the course of their correspondence subsequent to April 5, 1994, that the "clock was still running" on the 90-day appeal period, is fatal to its position that there was no reconsideration of the final decision between June 13, 1994, and July 6, 1994. See Royal International Builders Co., supra; Riverside General Construction Co., Inc., supra; Johnson Controls, Inc., supra. In that regard, it is well-established that a contracting officer's failure to tell a contractor, either orally or in writing, that post-final decision discussions or letters concerning a dispute do not affect the original appeal period, will be taken as signaling a willingness to reconsider his decision, see Royal International Builders Co., supra, 92-1 BCA at 123,135; Riverside General Construction Co., Inc., supra, 82-2 BCA at 80,049-50, and creating the impression that the initial decision is not truly final or that it is being reconsidered, see Johnson Controls, Inc., supra, 83-2 BCA at 84,170. A contracting officer who carries on discussions with a contractor about the merits of a disputed claim after the final decision has been issued, is obligated to "make it very clear" to the contractor that the appeal period set forth in that final decision continues to run, otherwise the contracting officer's silence will be deemed a contributing cause of the contractor's delay in initiating a timely appeal. See Riverside General Construction Co., Inc., supra, 82-2 BCA at 80,050; Johnson Controls, Inc., supra, 83-2 BCA at 84,170. Applying these principles here, the Board is forced to conclude that the Contracting Officer's actions destroyed the finality of his April 5, 1994, decision, and as a result, the original appeal period was no longer in effect. See Royal International Builders Co., supra, 92-1 BCA at 123,135 Furthermore, even if Weiss' correspondence of June 17, 1994, is discounted, at the very least his letter of July 13, 1994, was the operative final determination in this case, which was appealed two weeks later at the start of the new appeal period. See Roscoe-Ajax Construction Co. v. United States, supra, 198 Ct. Cl. at 148, 458 F.2d at 63; Johnson Controls, Inc., supra, 83-2 BCA at 84,170. Admittedly, the Contracting Officer's July 13, 1994, letter lacks the requisite language concerning finality and appeal rights. See Printing Procurement Regulation, GPO Publication 305.3 (Rev. 10-90), Chap. X, Sec. 1, ¶ 4.d (Contracting Officer Final Decision). However, that language is for the benefit of the appellant, and its absence does not preclude the Board from treating the letter as a final decision and permitting an appeal therefrom. See Johnson Controls, Inc., supra, 83-2 BCA at 84,170 (citing R.G. Robbins Co., Inc., ASBCA No. 26521, 82-1 BCA ¶ 15,643). ACCORDINGLY, the Board finds that the Appellant's appeal is timely filed. THEREFORE, the Respondent's Motion is DENIED. It is so Ordered. September 29, 1995 STUART M. FOSS Administrative Judge _______________ 1 Board Rules, Rule 5 states, in pertinent part: "The Board shall have the right at any time and on its own initiative to raise the issue of its jurisdiction to proceed with a particular case, . . .". 2 Board Rules, Rule 1(a) states, in pertinent part: "Notice of an appeal shall be in writing and mailed or otherwise furnished to the Board within 90 days from the date of receipt of a contracting officer's final decision." 3 The Board also concluded that no evidentiary hearing was necessary to resolve the threshold question, and the parties waived such a hearing in this case. RPTC, p. 3, fn. 4. See Board Rules, Rule 5, which states, in pertinent part: "Hearing on the motion shall be afforded on application of either party." 4 Under that schedule, the Respondent's motion was due at the Board on July 28, 1995, the Appellant's response was to be filed by August 18, 1995, and the Government's reply by August 25, 1995. RPTC, p. 3. Although the scheduled allowed it, the GPO did not submit a reply to the Appellant's response. 5 The Contracting Officer's appeal file was delivered to the Board on September 13, 1994. See Board Rules, Rule 4(a). It will be referred to hereafter as the R4 File, with an appropriate Tab letter also indicated. The R4 File has 22 documents identified as Tabs A through V. 6 According to the record, at the time of the IFB the first contractor for Category I work under Program D404-M was Wilson-Epes. Balmar Printing was the first contractor for Category II work See R4 File, Tab C. 7 The Contractor bid $363,242.70 for Category I work, and $20,189.40 for Category II, which was the lowest offer in both categories. See R4 File, Tab C. 8 The contract was awarded to the Appellant at the following contract prices: (a) $290,594.16 (for Category I work); and (b) $16,151.52 (for Category II work). See R4 File, Tab D. 9 The Board takes judicial notice of the fact that the days of the week in question were Friday (January 14, 1994), Tuesday (January 18, 1994), and Wednesday (January 19, 1994). Furthermore, Monday, January 17, 1994, was the "Martin Luther King's Day" holiday. FED. R. EVID. 201(b) (2). See Asa L. Shipman's Sons, Ltd., GPO BCA 06-95 (August 29, 1995), slip op. 21, fn. 24. 10 A third job-Print Order 86148-was also discussed, but it is clear from the Appellant's letter that no formal claim had yet been submitted to the Contracting Officer on that matter. See R4 File, Tab P. Instead, the Contractor was seeking a contract modification authorizing payment for typesetting performed prior to cancellation of the Print Order by the customer-agency. The Appellant stated that it would submit a formal termination for convenience claim only if the Contracting Officer denied the modification. 11 The Appellant's letter also requested an appeal of Print Order 86144, but that matter is not involved in this proceeding. 12 The respective positions of the parties is set forth here as understood from the discussions during the prehearing telephone conference on July 6, 1995, and the documents addressing the jurisdictional issue which were subsequently filed with the Board; i.e., the Motion, the Supplement, and the Opposition. 13 The Respondent has "no doubt" that the appeal was received by the Board after the 90-day limit. Motion, p. 5. By GPO's calculation, the Appellant took 115 days from the date of the Contracting Officer's final decision to file its appeal with the Board. Id. 14 DiLine Litho, Inc., was decided by an ad hoc contract appeals panel which considered appeals from final decisions of GPO Contracting Officers prior to the establishment of the Board in 1984. GPO Instruction 110.10C, Subject: Establishment of the Board of Contract Appeals, dated September 17, 1984. Decisions of these ad hoc panels are cited by the Board in its decisions as "GPOCAB." While the Board is not bound by the decisions of the ad hoc panels, its policy is to follow their rulings where applicable and appropriate. See Asa L. Shipman's Sons, Ltd., supra, slip op. 33, fn. 34; Univex International, GPO BCA 23-90 (July 31, 1995), slip op. at 23, fn. 24; Universal Printing Co., GPO BCA 9-90 (June 22, 1994), slip op. at 11, fn. 9, 1994 WL 377586; Stephenson, Inc., GPO BCA 2-88 (December 20, 1991), slip op. at 18, fn. 20, 1991 WL 439274; Chavis and Chavis Printing, GPO BCA 20-90 (February 6, 1991), slip op. at 9, fn. 9, 1991 WL 439270. 15 In Rainbow Construction, the Armed Services Board of Contract Appeals (ASBCA) held that a contractor's facsimile request for reconsideration of the contracting officer's final decision on 90th day of the appeal period, did not vitiate the finality of that decision and therefore did not toll the period for filing a notice of appeal. In so ruling, the ASBCA said that the contractor was required to show that "it reasonably or objectively could have concluded that the contracting officer's [final] decision was being considered." See 95-1 BCA at 137,447 (citing Sach Sinha and Associates, Inc., ASBCA No. 46916, 95-1 BCA ¶ 27,499). 16 As a rule, delivery of the appeal to private carrier, such as Federal Express, is not a considered a "mailing." See Rainbow Construction Co., Inc., supra; North Coast Remanufacturing, Inc., ASBCA No. 38599, 89-3 BCA ¶ 22,232. In Rainbow Construction, one of the cases relied upon by the Respondent to support its position, the notice of appeal, which the contractor sent to the Armed Services Board of Contract Appeals (ASBCA) by private courier on the 89th day of the appeal period, was delivered to the ASBCA on the 91st day, and hence was untimely. See 95-1 BCA at 137,447 (citing Cosmic Construction Co. v. United States, 697 F.2d 1389, 1390 (Fed. Cir. 1982)). Ironically, if the contractor instead had mailed the notice of appeal on the 89th day, it would have been considered timely filed even if it arrived at the ASBCA on the 91st day or after. 17 Generally, agency boards have embraced a liberal policy regarding misdirected appeal notices. See generally CIBINIC, JOHN, JR. & NASH, RALPH C., JR., ADMINISTRATION OF GOVERNMENT CONTRACTS, 1310 (3rd ed. 1995). But see Doris Bookout, AGBCA No. 89-147-1, 89-1 BCA ¶ 21,570 (providing appeal notice to the contracting officer is not a filing). 18 As observed by the author of a recent commentary on the Board's procedural rules: ". . . the [Board] believes there is a measure of flexibility in its ninety-day rule, and it will exercise its discretion to allow an otherwise late appeal if good cause is shown for the delay." Matthew S. Foss, U.S. Government Printing Office Board of Contract Appeals: The First Decade, 24 PUB. CONT. L.J. 579, 591 (A.B.A. 1995). 19 A contracting officer's authority to reconsider a final decision is not seriously questioned. See Riverside General Construction Co., Inc., IBCA No. 1603-7-82, 82-2 BCA ¶ 16,127, at 80,049 (enactment of the Contract Disputes Act of 1978 (CDA), 41 U.S.C. § 601 et seq., did not change the authority which contracting officer's had under the "Disputes" clause to reconsider a final decision, assuming, in both cases, the timeliness of the appeal. Citing Imperator Carpet & Interiors, Inc., GSBCA No. 6167, 81-2 BCA ¶ 15,266; Prime Roofing, Inc., ASBCA No. 25836, 82-1 BCA ¶ 15,667 at 77477; G.A. Western Construction Co., IBCA 1550-2-82, 82-2 BCA ¶ 15,895). Indeed, the ASBCA has stated that: "In our judgment the contracting officer not only is permitted to correct an erroneous `final decision' but has an obligation to do so." See Space Age Engineering, Inc., ASBCA No. 26028, 82-1 BCA ¶ 15,766, at 78,033.