BOARD OF CONTRACT APPEALS U.S. GOVERNMENT PRINTING OFFICE WASHINGTON, D.C. 20401 In the Matter of ) ) the Appeal of ) ) EPCO ASSOCIATES ) Docket No. GPO BCA 26-93 Programs D306-S and D306-S(R-1) ) Purchase Order 90758 ) Print Orders 40001-40027 ) DECISION AND ORDER GRANTING APPELLANT'S MOTION UNDER RULE 1(c) AND STAYING PROCEEDINGS UNDER RULE 1(d) On October 1, 1992, EPCO Associates (Appellant or Contractor, 3401 East-West Highway, Hyattsville, Maryland 20782, filed a Notice of Appeal and Complaint (Notice of Appeal) with the Board protesting, inter alia, the denial of its claim for additional compensation under its contract identified as Programs D308-S and 308-S (R-1), Purchase Order 90758, Print Orders 40001-40027, by Contracting Officer Richard Weiss of the U.S. Government Printing Office's (Respondent or GPO) Printing Procurement Department, Washington, DC 20401.1 GPO Instruction 110.12, Subject: Board of Contract Appeals Rules of Practice and Procedure, dated September 17, 1984, Rules 1(a), and 2 (Board Rules). Accompanying the Notice of Appeal, was Appellant's Motion Under Rule 1(c) (Rule 1(c) Motion), which moved for acceptance of the Contractor's Complaint in the absence of a final decision from the Contracting Officer on the ground that his failure to issue a final decision within a reasonable period should be "deemed denial" of the claim.2 Board Rules, Rule 1(c). See, Rule 1(c) Motion, p. 1. Basically, the Appellant Rule 1(c) Motion contends that: (1) the Contractor submitted its claim to the Contracting Officer on August 31, 1993; (2) the claim was virtually identical to its allegations before the Court of Federal Claims (hereinafter Claims Court) in EPCo Associates v. United States, No. 93-309C (August 17, 1993); (3) the Contracting Officer had been substantially involved in that civil matter and had throughout the case opposed the Contractor's right to any recovery; (4) thus the Contracting Officer was familiar with the substance of the claim; and (5) therefore, 30 days (August 31, 1993 to September 30, 1993) was more than sufficient time for the Contracting Officer to issue a final decision, particularly since the claim is identical to Claims Court complaint. Rule 1(c) Motion, pp.2-4. Accordingly, since the Contracting Officer had not issued a final decision, and because he had consistently opposed any recovery on the very grounds submitted by the Appellant in its August 31, 1993 claim, the Contractor asked the Board to accept the Notice of Appeal and Complaint under Rule 1(c). Rule 1(c) Motion, p. 4. Copies of the Notice of Appeal and the Rule 1(c) Motion were served by the Appellant on the Respondent on October 1, 1993. As of this date, the Respondent has not replied to the Appellant's Rule 1(c) Motion. An appeal is usually initiated with the Board when a contractor notes a disagreement with a contracting officer's "final decision."3 Board Rules, Rule 1(a). Indeed, in most cases the jurisdiction of a board of contract appeals is predicated on a contractor first submitting its claim to the contracting officer for a decision. Associated Contract Specialties Corporation, ASBCA No. 37437, 90-3 BCA ¶ 23,258; Spruill Realty/Construction Company, ASBCA No. 40477, 90-3 BCA ¶ 23,255. This does not mean, however, that a contracting officer can frustrate the appeals process by refusing to issue a final decision. Where, as here, a contractor has a claim in excess of $50,000.00, which was submitted to the contracting officer for a final decision and no such decision is issued within a reasonable time, the contractor may proceed to note its appeal to the Board, citing the failure of the contracting officer to render a decision on the claim as the basis for jurisdiction.4 Board Rules, Rule 1(c). Furthermore, the Board's filing rules allow it in such cases to stay further proceedings, at its option, pending issuance of a final decision by the contracting officer within such a period of time as it determines is appropriate.5 Board Rules, Rule 1(d). These rules of practice apply to the circumstances of this case. THEREFORE, the Board GRANTS the Appellant's Rule 1(c) Motion, accepts the Appellant's Notice of Appeal, and has assigned the case Docket No. GPO BCA 26-93. Board Rules, Rules 1(c), 2 and 3. FURTHERMORE, pursuant to Rule 1(d) of the Board Rules, the Contracting Officer is hereby directed to issue a final decision on the Appellant's claim which was submitted to him on August 31, 1993, within 60 days from the date of receipt of this Decision and Order, and furnish a copy of such decision to the Board.6 Board Rules, Rule 1(d). In that regard, the Contracting Officer is reminded that his final decision: . . . is vital to the administrative process of resolving disputes. Without it there is no immediate issue, appeal, or review. It directs the way the contract will proceed in the interim. . . . Finally, the decision is the basis for the GPO's position on appeal. With supplementary data, it forms the record that the Board of Contract Appeals reviews in deciding the case. See, PPR, Chap. X, ¶ 4.c., p. 85. ACCORDINGLY, further proceedings in this matter are STAYED until such time as the Contracting Officer issues his final decision in accordance with this Decision and Order. Board Rules, Rule 1(d). It is so Ordered. November 18, 1993 STUART M. FOSS Administrative Judge _______________ 1 The essence of the Appellant's claim was a demand for "common law damages" of $2,169,005.00 based on the Respondent's "... material breach of a 5-year "requirements" contract". See, Notice of Appeal, p. 1. 2 Rule 1(c) of the Board Rules provides: "Where the contractor has submitted a claim in excess of $50,000 and has requested a final decision from the contracting officer and the contracting officer has failed to issue a decision within a reasonable time, the contractor may file a notice of appeal as provided in subparagraph (a) above, citing the failure to issue such decision." 3 The time limit for filing an appeal is 90 days from the date a contractor receives a "contracting officer's final decision." Board Rules, Rule 1(a). This time limit is jurisdictional; i.e., the Board cannot consider and decide an appeal filed more than 90 days after receipt of the contracting officer's final decision. Cf., Ace Duplicating Company, GPO BCA 44-92 (February 1, 1993). 4 As indicated above, the Appellant's Rule 1(c) Motion urges the Board to consider the Contracting Officer's failure to issue a final decision within a reasonable period as a denial of the claim. See, Rule 1(c) Motion, p. 1. The Contractor apparently has reference to section 605(c)(5) of the Contract Disputes Act, Pub.L. 95-563 (November 1, 1978), 92 Stat. 2383, 41 U.S.C. §§ 601, 605(c)(5) (CDA), which provides, in pertinent part, that: "[a] failure by the contracting officer to issue a decision on a contract claim within the period required will be deemed to be a decision by the contracting officer denying the claim and will authorize the commencement of the appeal or suit on the claim as otherwise provided in this chapter." However, the CDA does not apply to contracts awarded by the Respondent because GPO is a Legislative branch agency. Cf., Banta Company, GPO BCA 03-91 (November 15, 1993), Sl. op. at 10, fn. 29 (citing, The Wessel Company, Inc., GPO BCA 8-90 (February 28, 1992), Sl. op. at 17, fn. 18). Also cf., Tatelbaum v. United Sates, 749 F.2d 729, 730 (Fed. Cir. 1984). Nothing in the Board's rules of practice authorize it to hold that a contracting officer's failure to issue a final decision within a reasonable period is tantamount a to a denial of the claim. 5 Rule 1(d) parallels so much of section 605(c)(5) of the CDA which states: ". . . in the event an appeal or suit is so commenced in the absence of a prior decision by the contracting officer, the tribunal concerned may, at its option, stay the proceedings to obtain a decision on the claim by the contracting officer." 41 U.S.C. § 605(c)(5). Indeed, the CDA also provides that: "[a] contractor may request the agency board of contract appeals to direct a contracting officer to issue a decision in a specified period of time, as determined by the board, in the event of undue delay on the part of the contracting officer." 41 U.S.C. § 605(c) (4). Hence, the authority of a board to establish a time for the issuance of a final decision and to direct the contracting officer to comply with its instructions is not in doubt. A.D. Roe Company, Inc., ASBCA No. 26078, 81-2 BCA ¶ 15,231. 6 The CDA instructs contracting officer's to issue their final decisions on claims ". . . within a reasonable time, in accordance with regulations promulgated by the agency, . . .". 41 U.S.C. § 605(c)(3). GPO's Printing Procurement Regulation (PPR) is even stronger because it tells a contracting officer to render a final decision "promptly". See, Printing Procurement Regulation, GPO Publication 305.3 (Rev. September 1, 1988), Chap. X, ¶ 4.c., p.85. The reason given for this urgency is three-fold: (a) the contractor is responsible for continued performance while an appeal is pending; (b) any delay in the final decision may become an issue in the dispute; and (c) the failure to make a final decision may itself be appealed. Id. The fact that the Contracting Officer here has failed to issue a final decision on the Appellant's claim since August 31, 1993, has indeed become a procedural issue and has been appealed to the Board. Board Rules, Rule 1(c). Therefore, the Board considers the additional 60 days given to him for that purpose by this Decision and Order as more than reasonable under the rules. Board Rules, Rule 1(d).