BOARD OF CONTRACT APPEALS
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON, DC 20401
STUART M. FOSS
Administrative Judge
The Appeal of PEAKE PRINTERS, INC.
Docket No. GPO BCA 12-91
Jacket No. 282-295
Program D189-S
Purchase Order 71940
Print Order 20002
May 12, 1993
DECISION AND ORDER DENYING APPELLANT'S
MOTION FOR JUDGMENT BY DEFAULT
On March 10, 1993, the Board conducted a prehearing
telephone conference in the above-captioned appeal of Peake
Printers, Inc., 2500 Schuster Drive, Cheverly, Maryland
20781 (Appellant or Contractor). Among the issues
considered at the conference was the Appellant's Motion For
Judgment [sic] By Default (Default Motion), dated December
11, 1992, asking the Board to enter a default judgment in
favor of the Contractor on the ground that the U.s.
Government Printing Office (Respondent or GPO or Government)
failed to comply with Rule 6(b) of the Board's Rules of
Practice and Procedure by not filing a timely Answer to the
Appellant's Complaint. GPO Instruction 110.12, Subject:
Board of Contract Appeals Rules of Practice and Procedure,
dated September 17, 1984, Rule 6(b) (Board Rules). After
hearing the positions of both parties at the conference, the
Board stated that it reserved judgment on the issue and
would rule on the question separately later. See, Report of
Prehearing Conference, GPO BCA 12-91, dated May 3, 1993, pp.
2-5 (Report). Since the close of the conference, the Board
has carefully considered the chronology of events in this
appeal as reflected in the record, and the arguments of the
parties at the conference with regard to the issue raised by
the Default Motion. For the reasons which follow, the Board
has determined that the Default Motion should be, and hereby
is DENIED.
A. Factual Background
The facts leading to the Default Motion are simple and
brief. By letter dated May 7, 1991, the Appellant filed its
appeal from the March 29, 1991, final decision of
Contracting Officer Richard Weiss. Board Rules, Rules 1(a)
and 2. The appeal was docketed by the Board that same day
(May 7, 1992). Board Rules, Rule 3. On May 30, 1991, the
Board wrote to the Contractor notifying it that its appeal
had been docketed, and provided it with a copy of the Board
Rules. Id. The Board's docketing letter specifically
directed the Contractor's attention to Rule 6(a) concerning
its obligation to file a Complaint with the Board within 30
days after receiving the Board's docketing letter. Board
Rules, Rule 6(a).
According to the Appellant, it submitted a letter entitled
"Rule 6(a) Response," dated June 20, 1991, to the Board as
its Complaint (Original Complaint). Board Rules, Rule 6(a).
Report, p. 3. However, there is nothing in the appeal
record which would show if or when the Appellant's Original
Complaint was received by the Board or whether the Board, in
accordance with the Board Rules, served a copy of it upon
the Government Counsel at that time. 1/ Board Rules, Rule
6(a).
Thereafter, by letter dated July 24, 1991, the Appellant
informed the Board that it desired a hearing on its appeal.
Board Rules, Rule 8. After the Board received this letter,
it contacted the Contractor to find out if a Complaint had
been filed and was informed that one had been submitted to
the Board on June 20, 1991. Since the Board had no record of
the Original Complaint, it asked the Appellant to furnish
another copy to the Board (Second Complaint), along with
evidence that the Original Complaint had been mailed to the
Board. The Board also asked the Contractor to send a copy
of the Second Complaint to Counsel for GPO in order to
expedite the appeal. The Second Complaint was received by
the Board on August 27, 1991, and a copy was sent to Counsel
for GPO by the Clerk of the Board in the normal course of
Business. Board Rules, Rule 6(a).
Nothing further occurred in this appeal for more than a
year. Then, on October 7, 1992, Counsel for GPO filed
Respondent's Motion to Dismiss (Dismissal Motion). The
Dismissal Motion sought dismissal of the case on the ground
that the Appellant had, in effect, abandoned its appeal,
because it had not submitted a Complaint within the required
30 days under the Board Rules. The Board immediately
contacted counsel for GPO, and learned that he had no record
of receiving a copy of the Second Complaint, either from the
Board of the Appellant. Therefore, he asked the Board to
furnish him with another copy of the Second Complaint, and
the Board did so. Thereafter, the Board issued and served
on the parties its Order Accepting Appellant's Appeal As a
Complaint (Board Order), dated October 16, 1992. 2/ On
November 18, 1992, the Respondent entered a "genial denial"
in response to the Second Complaint, a copy of which was
simultaneously served on the Appellant. Board Rules, Rule
6(b).
On December 18, 1992, the Appellant submitted its Default
Motion to the Board. In effect, the Default Motion seeks
sanctions against the Respondent under Rule 31 of the Board
Rules. 3/ Board Rules, Rule 31. As a remedy, the Appellant
asks the Board to vacate and set aside the final decision of
the Contracting Officer.
A. Positions of the Parties
At the conference, Counsel for GPO opposed the Default
Motion on the ground that the Respondent's failure to file a
timely Answer was that, for some unexplained reason, it had
not received a copy of either the Original Complaint or the
Second Complaint from the Board or the Appellant until
October 1992. Report, p. 2. Once the Respondent received a
copy of the Second Complaint from the Board, along with the
Board Order, it complied with Rule 6(b). Id. Board Rules,
Rule 6(b). Accordingly, Counsel for GPO believed that the
Default Motion had no merit, and should be denied. Id.
Counsel for the Appellant, on the other hand, argued that
its motion to sanction the Respondent was appropriate since
the Government's 16 month delay in filing its Answer damaged
the Contractor's case because two its "critical" witnesses
were no longer available to testify on its behalf. Report,
p. 3. In the Appellant's view, the Respondent was sent
copies of the Second Complaint by both the Board and the
Contractor in August 1991. Id. Therefore, as the
Respondent did not file its Answer within 30 days after
that, Counsel for the Appellant believed that his client was
entitled to the relief sought in the Default Motion.
Report, p. 4.
C. Decision
Under Rule 6(a) of the Board Rules, although as appellant is
required to file a complaint with the Board, it is the Board
which is responsible for serving a copy of the complaint
upon Government Counsel. 4/ Board Rules, Rule 6(a). That
is, unlike other provisions in the Board Rules, the parties
themselves have no service obligations under Rule 6(a).
Compare, Board Rules, Rules 4(a), 4(b), Rule 9, and Rule 16.
In this case, while the Board has no doubt that the
Appellant prepared and transmitted its Original Complaint to
the Board on June 20, 1991, the Board is also certain that
is never receive the Original Complaint. If it were
otherwise, a copy of the Original Complaint would be in the
appeal file, and the Board's telephone call to the Appellant
on August 27, 1991, following receipt of the Contractor's
request for a hearing, would have been unnecessary. 5/
Similarly, the Board has no reason to doubt Counsel for
GPO's word that, according to his records, he never received
a copy of the Second Complaint, either from the Board or the
Appellant. In that regard, the fact that Counsel for GPO
filed a Dismissal Motion based on the Appellant's failure to
submit a Rule 6(a) complaint a year after the Board
requested the Second Complaint from the Contractor, is not
without significance. Because of the strong presumption
that Government officials properly and honestly carry out
their functions, the absence of "well-nigh irrefragable"
proof in the record contradicting Counsel for GPO's
categorical statement that he never received the Second
Complaint precludes the Board from saying that his actions
were based on anything other than a good faith belief that
the Appellant had, indeed, failed to comply with Rule 6(a).
Cf., e.g., B. P. Printing and Office Supplies, GPO BCA 14-91
(August 10, 1992), Sl. op. at 16; Stephenson, Inc., GPO BCA
02-88 (December 19, 1991), Sl. op. at 55; The Standard
Register Company, GPO BCA 4-86 (October 28, 1987); Sl. op.
at 12-13. Also cf., Karpak Data and Design, IBCA 2944 et
al., 93-1 BCA ¶ 25,360; Dalmo Victor Division, General
Instrument Corporation, ASBCA 39718, 92-3 BCA ¶ 25,176;
Local Contractors, Inc., ASBCA 37108, 92-1 BCA ¶ 24,491.
Nothing in the record accounts for this breakdown in the
system followed by the Board for serving papers and
documents. However, in the absence of any evidence to the
contrary, the Board must conclude that the initial copy of
the Second Complaint which it sent to Counsel for GPO on or
after August 27, 1991, was either lost in the GPO terminal
mail system or misplaced in the Office of the General
Counsel. 6/ Therefore, the Board believes Counsel for GPO
in this matter when he says that the first notice he had
that the Appellant had complied with Rule 6(a) was when he
received the copy of the Second Complaint which the Board
sent him in October 1992, after he had filed the
Respondent's Dismissal Motion.
In the final analysis, the Board observes that from August
1991 until October 1992, neither party contacted the Board
concerning the status of this appeal. Certainly, the
Appellant in particular did not question the failure of the
Respondent to file an Answer during that period, and the
Board believes it may not have done so but for the fact that
Counsel for GPO filed a Dismissal Motion. Indeed, the Board
also believes that the Default Motion, submitted two months
later, is nothing more than the Appellant's "tit for tat"
response to the Dismissal Motion.
In light of the fact that Rule 6(b) is not jurisdictional,
and indeed allows the Board to act in Lieu of the Respondent
when no Answer is filed within 30 days, the Board itself
must bear some responsibility for the delay in processing
this appeal. Accordingly, since the first notice Counsel for
GPO had that a Complaint had been filed was in October 1992,
the Board believes that it would be unfair to sanction the
Respondent for the shortcomings of the procedural system
which occurred in this case. Board Rules, Preface to Rules,
¶ VI.C.
On the other hand, the Board recognizes that there may be
some merit to Counsel for the Appellant's argument that the
16 month delay between the Second Complaint and the
Respondent's Answer harmed the Contractor's case because two
"critical" witnesses are no longer available. Whether the
Appellant was actually prejudiced by the delay is a question
which may be resolved by the parties themselves during
discovery prior to the hearing which the Board has scheduled
in this matter for Tuesday, June 8, 1993. Report, pp. 8-9.
In any case, the Board believes that such matters are more
appropriate for its consideration during the hearing.
D. Order
For all of the foregoing reasons, the Board believes that
good cause exists for not applying Rule 31 sanctions in this
case. Board Rules, Rule 31. THEREFORE, Appellant's Default
Motion is hereby DENIED.
It is so Ordered.
_______________
1/ The record does show that the Respondent did comply with its
Rule 4(a) obligations and submitted the Contracting Officer's
appeal file to the Board in a timely fashion; i.e., on June 21,
1991.
2/ The Board Order also denied the Respondent's Dismissal Motion.
See, Board Order, p. 3.
3/ Rule 31 provides that "[w]henever a record discloses the
failure of either party to file documents required by these
rules; respond to notices or correspondence from the Board;
comply with an order of the Board; or otherwise indicates an
intention not to continue the orderly prosecution or defense of
an appeal, the Board may issue an order requiring the offending
party to show cause why the appeal should not be either dismissed
or granted, as appropriate. If the offending party shall fail to
show such cause, the Board may take such action as it deems
reasonable and proper under the circumstances" [Emphasis added].
4/ Similarly, the Board Rules provide that the Board shall serve
a copy of the respondent's answer to the complaint on the
appellant. Board Rules, Rule 6(b).
5/ Although the Appellant complied with the Board's instruction
to send it the Second Complaint, it notes that the Contractor did
not submit the evidence of mailing of the Original Complaint
which was also requested by the Board.
6/ Although the Appellant stated at the conference that it
complied with the Board's request to expedite the appeal by
independently serving a copy of the Second Complaint on Counsel
for GPO, there is nothing in the record to indicate that the
Respondent received that copy either. Report, p. 3.