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.