BOARD OF CONTRACT APPEALS

U.S. GOVERNMENT PRINTING OFFICE

In the Matter of )

)

the Appeal of )

)

**PITTENGER ENTERPRISES, LTD.** ) Docket No. **GPOBCA 05-99**

Jacket No. 444-966 )

Purchase Order 74992 )

**[DECISION ON TIMELINESS]{.underline}**

On March 9, 1999, the Board received, via United Parcel Service,
Appellant's appeal letter of March 8, 1999. Appellant sought to appeal a
final decision of the Contracting Officer dated December 7, 1998, which
terminated Jacket 444‑966 for default.

As it appeared that the appeal might be untimely, the Board issued an
Order requiring Appellant to "show cause why this appeal should not be
dismissed for failure to file its appeal within 90 days of receipt of
the Contracting Officer's final decision." Acknowledgment, Scheduling
Order, and Order to Show Cause (March 11, 1999) (hereinafter "Order").
Appellant was directed to respond to the Order within 10 days of
receipt.[^1] *Id*. at 4.

Appellant did not respond to the Order or otherwise submit evidence on
the issue of timeliness.

Accordingly, the Board makes the following findings of fact on the issue
of timeliness.

**FINDINGS OF FACT**

1\. By letter dated December 7, 1998, GPO Contracting Officer Edward A.
Reesman, terminated Purchase Order 74992, Jacket 444‑966 for default
because of Appellant's "failure to perform . . . in accordance with the
specifications."

2\. The Contracting Officer's Notice of Termination Complete informed
Appellant that should it wish to appeal the default termination to the
Board, it was required to "mail or otherwise furnish written notice" to
the Board "within 90 days from the date you receive this decision."

3\. The Contracting Officer sent the Notice of Termination Complete to
Appellant by telefacsimile on December 7, 1998. In its letter of appeal,
Appellant acknowledged receiving the Notice of Termination Complete on
December 7, 1998.

4\. Appellant's letter of appeal dated March 8, 1999, was sent to the
Board by United Parcel Service and received by the Board on March 9,
1999.

5\. Appellant's letter of appeal was not mailed or otherwise furnished
to the Board within 90 days after Appellant received the Contracting
Officer's final decision.

**[DECISION]{.underline}**

Under the terms of the contract at issue in this appeal, a decision of a
Contracting Officer "shall be final and conclusive unless, within 90
days from the date of receipt of such copy, the contractor mails or
otherwise furnishes a written notice of appeal to the Government
Printing Office Board of Contract Appeals." GPO Contract Terms, Contract
Clause 5(b). Similarly, the Board's Rules require a notice of appeal to
be "mailed or otherwise furnished to the Board within 90 days

from the date of receipt of a contracting officer's final decision." GPO
Instruction 110.12, Rule 1(a).

This Board's normal practice has been to enforce this 90‑day time limit.
*See*, *Ace Duplicating Co*., GPOBCA 44‑92 (Feb. 1, 1993); *Moore
Business Forms & Systems Division*, GPOBCA 3‑86, 1987 GPOBCA Lexis 26,
1987 WL 228968 (Feb. 25, 1987). However, unlike Executive Branch[^2]
Boards which treat the 90‑day time limit as jurisdictional, the GPOBCA
possesses limited discretion to waive the time limit in appropriate
circumstances. *See e.g.*, *Olympic Graphic Systems*, GPOBCA 01-92, 1996
GPOBCA LEXIS 32, 1996 WL 812957 (Sept. 13, 1996) (Notice of appeal
misdirected by agency's mail room); *McDonald & Eudy Printers, Inc*.,
GPOBCA 06‑91, 1994 GPOBCA LEXIS 29, 1994 WL 377581 (May 6, 1994) Sl. op.
at 2, fn. 2 (Appellant's notice of appeal lost by agency's mail room).
The Court of Claims, in a series of pre‑Contract Disputes Act cases held
that Boards of Contract Appeals have the power in proper circumstances
to waive or extend the appeal periods specified in the usual disputes
clause. *Maney Aircraft Parts, Inc. v. United States*, 197 Ct. Cl. 159
(1972); *Monroe M. Tapper v. United States*, 198 Ct. Cl. 72 (1972);
*Schlesinger v. United States*, 181 Ct. Cl. 21, 28‑29 (1967); *Moran
Bros. Inc. v. United States*, 171 Ct. Cl. 245, 250 (1965).

When the timeliness of an appeal is at issue, the Appellant has the
burden of proving its appeal was timely filed. *Warren Owner Co*., VACAB
1657, 82-1 BCA ¶ 15,709*; Engineering Design & Development*, ASBCA
15531, 71-1 BCA ¶ 8708. In the instant appeal, Appellant has failed to
meet its burden of proof. The unrebutted evidence of record is that
Appellant placed its appeal letter in the hands of a private carrier 91
days after receiving a copy of the Contracting Officer's final decision.
The appeal letter was not received by the Board until the 92nd day, and
thus the appeal was untimely.

Upon review of the entire record, I find no facts or circumstances that
would justify the exercise of the Board's discretion to extend or waive
the 90‑day appeal period.

Accordingly, this appeal is dismissed with prejudice as untimely.

April 8, 1999 KERRY L. MILLER

Administrative Judge

[^1]: The Board served the Order on appellant by Certified Mail. The
    Certified Mail receipt reflects that Appellant received the Order on
    March 19, 1999.

[^2]: Executive Branch appeals are governed by the Contract Disputes Act
    of 1978 (CDA), 41 U.S.C. §§ 601‑613, as amended, which establishes a
    90‑day time limit within which an appeal must be filed. The 90‑day
    filing requirement is statutory and cannot be waived. *Cosmic
    Construction Co. v. United States*, 697 F.2d 1389 (Fed. Cir. 1982).
    However, GPO contracts are not covered by the CDA due to the GPO's
    status as a Legislative Branch agency. *See, Tatelbaum v. United
    States*, 749 F.2d 729, 730 (Fed. Cir. 1984).