U.S. GOVERNMENT PRINTING OFFICE BOARD OF CONTRACT APPEALS Neal Fine, Chairman Richard R. Heroux, Member John A. Shay, Member Appeal of National Typesetting, Incorporated Panel 80-12 April 7, 1981 I. This decision concerns an appeal dated November 20, 1980, and received by the GPO on December 3, 1980, concerning a May 1, 1980, decision of D. B. Logan, Contracting Officer, to terminate for default a contract identified as Purchase Order 10501, Jacket 302-236. II. Jurisdiction of Board The jurisdiction of the Board of Contract Appeals was established by GPO Instruction 110.10 (June 6, 1979). These regulations provide, "The Board shall consider and determine appeals from decisions of GPO contract officers made pursuant to provisions contained in certain GPO contracts requiring the determinations of appeals by the Public Printer or his duly authorized representative. In order to accomplish this, the Public Printer hereby delegates to the Board, as his duly authorized representative, his authority to make final administrative determinations of appeals falling within the scope of this authorization...." The Regulations further provide that an appeal from a decision of a contracting officer shall be mailed or filed within thirty (30) calendar days from the receipt of the contracting officer's decision, unless a different time is provided in the contract. III. Findings of Fact 1. On October 11, 1979, the appellant, National Typesetting, Inc., submitted a bid on GPO Jacket Number 302-236. The Bid Form provided that all offers were subject to Government Printing Office Contract Terms No. 1 in effect at the time the offer was submitted. Exhibit 3. 2. On October 25, 1979, Contracting Officer MacBride accepted the bid dated October 11, 1979, submitted by the appellant for GPO Jacket Number 302-236. The contract was for the composition of a NOAA Professional Paper, Exhibit 5. 3. On February 20, 1980, GPO Contracting Officer D. B. Logan sent a telegram to the appellant which notified appellant that the GPO was considering terminating the contract for Jacket Number 302-236. Exhibit 9. 4. On May 1, 1980, the GPO Contracting Officer D. B. Logan issued a telegram to the appellant which notified that the contract identified as Purchase Order 10501, Jacket Number 302-236 was terminated for default because the contractor failed to perform according to schedule. The telegram further informed the appellant that under the disputes clause of Contract Terms No. 1 the decision would be final unless a written notice of appeal was filed within ninety (90) days from the date of receipt of this decision. Exhibit 13. 5. Appellant submitted an appeal by certified mail, Certificate No. P094614451, dated November 20, 1980, to the GPO. The postmark on the appeal was dated December 2, 1980. The appeal was received by the GPO on December 3, 1980. 6. On January 16, 1981, the Board received a Motion to Dismiss from James Lane, Jr., counsel for the Contracting Officer. The Motion averred that the appeal should be dismissed by the Board on the grounds that appeal was untimely. IV. Issues.Presented The matter at hand presents two issues for adjudication. First, was the appeal by National Typesetting submitted in a timely fashion in accordance with the provisions of GPO Contract Terms No. 1. Second, was the decision of the Contracting Officer proper. V. Conclusions The threshold issue to be decided by the Board is whether the appeal was timely filed. The language in the contract specifically provides that decisions of a contracting officer are final unless within ninety (90) days an appeal is filed with the Public Printer. 1 The evidence presented to this Board indicates that the final decision of the Contracting Officer was rendered on May 1, 1980. The appeal was deposited in the mail on December 2, 1980, and received on December 3, 1980. The Board finds that 215 days elapsed between May 2, 1980, and December 2, 1980. 2 1 Article 3, Disputes. 2 In computing time, the day of the event is not counted. GPO Instruction 110.10. In researching the law on the issue of timeliness of appeals, the Board finds considerable support for the Motion to Dismiss filed by the counsel for the contracting officer. In the case of Zisken Construction Co., ASBCA No. 6281, July 17, 1960, the Army Appeals Panel ruled that an appeal was not valid which had been prepared within the thirty day time limit, but not mailed until after the expiration of the time limit. The Panel held that the failure to appeal within the thirty days terminates all right of appeal created by the contract. Likewise in the matter of Giuliani Contracting Company, Inc., ASBCA No. 1060, March 12, 1964, the Board ruled that upon expiration of the appeal period that the decision of the contracting officer is final. Finally, in the case of Unico Industrial Service & Engineering , ASBCA No. 22845, June 19, 1978, the Board affirmed its consistently held principle that when an appeal is made after the expiration of the filing period that it is not timely, and the Board has no jurisdiction to consider the matter. Accordingly, in view of the extraordinary amount of time which elapsed between the notice of termination and the filing of the appeal, the Board is constrained to grant the Motion to Dismiss filed by the counsel for the contracting officer. In view of this finding, the Board finds that it does not have jurisdiction to rule on the issue of the propriety of the termination which was raised by the appellant.