U.S. GOVERNMENT PRINTING OFFICE
BOARD OF CONTRACT APPEALS

The Appeal Of AUTOMATED DATATRON, INC.
Docket No. GPO BCA 20-87
March 31, 1989

MICHAEL F. DiMARIO
Administrative Law Judge

ORDER GRANTING RESPONDENT'S
MOTION TO DISMISS

   Having heard and duly considered both "Respondent's Motion to
   Dismiss" the above-captioned appeal and Appellant's
   "Opposition" thereto, it is the Board's opinion that it lacks
   jurisdiction over the subject matter of the appeal for the
   following reasons:

   (1) The Board does not derive its jurisdictional authority
   from the Contract Disputes Act of 1978, 41 U.S.C.  601 et
   seq., as alleged by Appellant, and therefore cannot avail
   itself of the remedies of that act;

   (2) The Board derives its jurisdictional authority solely from
   GPO Instruction 110.10C, which in pertinent part provides:

1. Purpose. To establish a Board of Contract Appeals for the U.S.
Government Printing Office and to outline the functions of that
Board.

. . . .

3. Statutory Authority. The United States Government Printing
Office (hereinafter GPO) is an Office in the legislative branch
of the United States Government. United States v. Allison, 91
U.S. 372 (1876); Lewis v. Sawyer, C.A. No. 82-2869, Memorandum at
3 (D.D.C. Dec. 20, 1982); Thompson v. Sawyer, 678 F.2d 257 (D.C.
Cir. 1982); McKenzie v. Sawyer, 648 F.2d 257 (D.C. Cir. 1982),
Comp. Gen. Op. B-208272 (1983); Comp. Gen. Op. B-152126 (1963);
36 Comp. Gen. 163 (1956); 34 Comp. Gen. 485 (1955). As such, GPO
contract disputes are not subject to procedures prescribed by the
Administrative Procedure Act, 5 U. S.C.  551 et seq. (1982), or
the Contract Disputes Act of 1978, Pub. L. 95-563, 92 Stat.
2383-91 (codified at 41 U.S.C.  601-613 (1982)). The GPO is
under the direction and supervision of the Public Printer of the
United States, whose statutory and administrative powers include
the authority to enter into contracts on behalf of the United
States and to make final administrative determinations regarding
such contracts. See 44 U.S.C.  301, 309, 501, 502 (1982).

4. Establishment of the U.S. Government Printing Office Board of
Contract Appeals. Pursuant to the statutory and administrative
powers of the Public Printer, there is hereby established the U.
S. Government Printing Office Board of Contract Appeals
(hereinafter the Board).

5. Jurisdiction of the Board. The Board shall consider and
determine appeals from final decisions of Contracting Officers
relating to contracts which contain provisions requiring the
determination of appeals by the Public Printer, or his duly
authorized representative or board. By agreement, the Board may
also consider and determine appeals from decisions of other
legislative branch Contracting Officers made pursuant to their
contracts. In addition, the Board shall have jurisdiction over
such other procurement related matters as may be assigned to it
by the Public Printer. The Board has authority to determine
appeals falling within the scope of its jurisdiction as fully and
finally as might the Public Printer.

. . . .

7. Decisions of the Board

. . . .

b. When an appeal is taken pursuant to a Disputes clause of a
contract which limits appeals to disputes concerning questions of
fact, the Board may, in its discretion, hear, consider, and
decide all questions of law necessary for the complete
adjudication of the appeal. In the consideration of an appeal,
should it appear that a claim is involved which is not cognizable
by the Board, the Board may make findings of fact with respect to
such claims without expressing an opinion on the question of
liability. (Emphasis added.)

   (3) Page 2 of the "General Terms, Conditions and
   Specifications" of the Program B154-S contract provides in
   pertinent part that: "Any contract which results from this
   Invitation for Bid will be subject to all terms and conditions
   of U.S. Government Printing Office Contract Terms No. 1, Rev.
   Oct. 1980 (GPO Pub. 310.2). In case of conflict between these
   specifications and Contract Terms No. 1, these specifications
   will govern." In turn, the said U.S. Government Printing
   Office "Contract Terms No. 1" provides in pertinent part that:

2-3. Disputes

(a) Except as otherwise provided in the contract, any dispute
concerning a question of fact related to the contract which is
not disposed of by agreement shall be decided by the Contracting
Officer, who shall make his/her decision in writing and mail or
otherwise furnish a copy thereof to the contractor. The decision
of the 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 to the Contracting
Officer a written appeal addressed to the Public Printer. The
decision of the Public Printer, or a duly authorized
representative for the determination of such appeals, shall be
final and conclusive unless determined by a court of competent
jurisdiction to have been fraudulent, or capricious, or
arbitrary, or so grossly erroneous as necessarily to imply bad
faith, or not supported by substantial evidence. . . . .

(b) This "Disputes" article does not preclude consideration of
law questions in connection with decisions provided for in the
paragraph above: Provided, That nothing in the contract shall be
construed as making final the decision of any administrative
official, representative, or board on a question of law.
(Emphasis added.)

   (4) The Board, upon its examination of Appellant's "Notice of
   Appeal," and Exhibits A and B, has determined that such
   documents are insufficient to support Appellant's
   jurisdictional characterization of Exhibit B as "the final
   decision of Linwood Imlay, Contracting Officer, . . . GPO . .
   . made in the last ninety (90) days, refusing to make routine
   payments on vouchers . . . (Exhibit A), as submitted and
   certified." None of the documents of Exhibit A are addressed
   to Mr. Imlay, nor are any of the documents of Exhibit B signed
   by him. To impute a "final decision" to Mr. Imlay from such
   facts in order to invoke the jurisdiction of this Board under
   the "Disputes" clause of the contract is unwarranted.

   The appropriate means for securing a final written decision on
   a disputed question of fact is to first demand such decision
   from the contracting officer. If, after such demand, the
   contracting officer fails to comply, a contractor may invoke
   the jurisdiction of this Board to compel such decision under
   the provision of Rule 1 of this Board's Rules of Practice and
   Procedure, GPO 110.12, September 17, 1984.

   Neither Appellant's "Notice of Appeal" nor "Complaint"
   evidence that such action has been taken.

   (5) The Public Printer has not under the provision of
   paragraph 5 of GPO Instruction 110.10C delegated authority to
   this Board to consider legal questions existing outside the
   contract itself. Therefore, the Board is without authority to
   consider whether Respondent has violated the procedural
   requirements of the Claims Collection Act, 31 U.S.C.  3716,
   as established by Appellant in its "Notice of Appeal" and
   "Complaint."

   (6) Appellant, itself, by its specific statement on page 3 of
   its said "Opposition" that it "does not seek damages for
   breach of contract -- it merely seeks payment pursuant to the
   various contracts it has entered into with GPO.", moots the
   necessity of this Board deciding whether or not it has
   authority over breach of contract matters.

   ACCORDINGLY, IT IS ORDERED that the appeal be and the same is
   hereby dismissed for lack of jurisdiction by this Board over
   the subject matter of the appeal.