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

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

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 Branch2 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).