BOARD OF CONTRACT APPEALS
   U.S. GOVERNMENT PRINTING OFFICE
   WASHINGTON, DC 20401

In the Matter of          )
                          )
the Appeal of             )
                          )
GRAPHICDATA, INC.         )   Docket No. GPO BCA 35-94
Program D306-S            )
Purchase Order 94586      )

   DECISION AND ORDER ACCEPTING APPEAL
   AND DENYING MOTION TO DISMISS

   On January 3, 1995, the Board conducted a hearing pursuant to
   Rule 5 of its rules of practice and procedure for the purpose
   of receiving the parties' arguments on the question of whether
   it had jurisdiction to decide the claim of Graphicdata, Inc.
   (Appellant or Contractor) because the Contracting Officer had
   failed to render a final decision within a "reasonable time",
   or, on the other hand, was the appeal premature?  See,
   Decision and Order Scheduling a Hearing, dated December 21,
   1994, at 6-7 (Hearing Decision); GPO Instruction 110.12,
   Subject: Board of Contract Appeals Rules of Practice and
   Procedure, dated September 17, 1984, Rule 5 (Board Rules).
   The issue was raised when the Respondent filed a "Motion to
   Dismiss" (Motion) on November 4, 1994, contending that the
   Contracting Officer, Richard Weiss, had not had a reasonable
   amount of time to resolve the claim, and thus the Contractor's
   appeal of October 21, 1994, should be dismissed as premature.1
   See, Hearing Decision, at 2.  At the hearing, both parties
   were represented by counsel who presented oral argument
   concerning their respective positions.2  In addition, the
   Appellant offered testimony with regard to the question being
   heard.  The parties waived the filing of post-hearing briefs
   in this matter (Tr.: 72-73).3  Board Rules, Rule 23.  Based on
   the testimony and arguments at the presented at the hearing,
   the Board has concluded that the appeal should be ACCEPTED and
   the Motion  should be DENIED.  Board Rules, Rule 1(c).4

   A. STATEMENT OF FACTS

   The facts pertaining to the jurisdictional question are
   essentially undisputed and are set forth here only to the
   extent necessary for this decision.

   1. Program D306-S involves the printing and distribution of
   U.S. patents (Tr.:26).5  Under the contract, the Appellant is
   required to perform approximately 2 million printing
   impressions each week, and make daily deliveries (Tr.: 26-27).

   2. The contract was for nine months, divided into two
   production periods-one of two months (eight issues) and the
   other of seven months (31 one issues)-totalling 39 weeks of
   performance (Tr.: 27-28).  Although the contract is scheduled
   to end on February 28, 1995 (Tr.:11), it is so structured that
   there is an overlap period which will require the Appellant to
   produce work until the end of April 1995 (Tr.: 49).6

   3. The work under the contract was originally estimated to be
   approximately 2 million impressions for the first production
   period only, with a lower production rate of approximately 1
   million impressions for the second period (Tr.: 28).  This
   estimated reduction in output was based on the U.S. Patent
   Office's (Patent Office) intent to submit patents
   electronically in the second production period, instead of in
   hard copy (Tr.: 28).  However, the Patent Office changed its
   mind and decided to continue provide patents for reproduction
   in hard copy, so the lower impression rate for the second
   production period never materialized; i.e., the Appellant
   continues to produce approximately 2 million impressions a
   week (Tr.: 29).7

   4. Because of this change, the Appellant was asked to submit
   its proposal for an equitable adjustment in the contract
   price.  On August 22, 1994, the Contractor sent its equitable
   adjustment claim to the Respondent (Tr.: 33; App. Exh. No. 1).
   Thereafter, on September 20, 1994, in response to a telephone
   call from the Contracting Officer, the Appellant certified its
   claim (Tr.: 34; App. Exh. No. 1).  The next day, September 21,
   1994, the Contracting Officer sent a memorandum to GPO's
   Office of the Inspector General (OIG) requesting an audit of
   the claim (Tr.: 9).  The Contracting Officer believed an audit
   was necessary because the claim contained a number of line
   items and issues and was complex (Tr.:59).

   5. Between October 4, 1994, and October 7, 1994, the
   Contracting Officer and the Appellant were in touch with each
   other daily, exchanging proposals in an effort to find an
   appropriate equitable adjustment figure and avoid a Government
   audit (Tr.: 43-47: App. Exh. No. 1).  When their efforts
   proved unsuccessful, the Contracting Officer told the OIG to
   proceed with the audit of the claim (Tr.: 47; App. Exh. No.
   1).8

   6.  On October 12, 1994, Edwin L. Hawse, an OIG Supervisory
   Auditor, telephoned the Contractor and said that a Ms. Anna
   Sud had been assigned to inspect the claim, and that while Ms.
   Sud would begin the audit as soon as possible, he could not
   give the Appellant a definite date when it would be performed
   (Tr.: 48; App. Exh. No. 1).  Thereafter, on December 21, 1994,
   the OIG sent a letter to the Appellant informing it that the
   audit would be conducted at its New Jersey offices on January
   9, 1995 (Tr.: 7, 8, 53).9
   7. The OIG auditors promised to have a final audit report in
   the Contracting Officer's hands by the end of January 1995,
   and he has committed to issue a final decision on the claim
   two weeks after that (Tr.: 7, 71).10

   8. In the interim, when the Contracting Officer failed to
   issue a final decision on the claim by October 14, 1994, as
   demanded by its attorney (App. Exh. No. 1), the Appellant, on
   October 21, 1994, filed its appeal with the Board.

   B. QUESTION PRESENTED

   The only issue in this proceeding is whether the Board has
   jurisdiction over the Appellant's claim because the
   Contracting Officer has had a "reasonable time" to render a
   final decision, or should the appeal be dismissed because it
   is premature?

          C. CONCLUSIONS

   From the parties' oral argument and the testimony of the
   Appellant's witness at the hearing, the Board draws the
   following conclusions:

   1. Rule 1 of the Board Rules parallels section 605 of the
   Contract Disputes Act (CDA), 41 U.S.C.  605, to the extent
   that a contracting officer is allowed 60 days to issue a final
   decision for claims of $50,000 or less, or a "reasonable time"
   for claims in excess of $50,000.  Compare, Board Rules, Rules
   1(b) and 1(c) with 41 U.S.C.  605(c)(1),(3).
   2. What constitutes a "reasonable time" under the CDA is
   determined by taking into account such factors as the size and
   complexity of the claim and the adequacy in support of the
   claim provided by the contractor.  41 U.S.C.  605(c)(3).
   See,  Universal Contracting, DOT CAB Nos. 1565, 1600, 1601,
   85-3 BCA  18,326.  However, the Board's reading of the CDA
   cases tells it that whatever constitutes a "reasonable time",
   it will most likely be more than 60 days.11  See, Roebbelen
   Engineering, Inc., DOT BCA No. 1814, 87-1 BCA  98,628;

   3. There is no comparable definition of "reasonable time" in
   the Board Rules, although the similarity between those
   regulations and the CDA with respect to other relevant
   language, as well as their shared procedural philosophy,
   warrants the conclusion that the CDA's definition is implied
   in the Board Rules.  See, Banta Company, GPO BCA 03-91
   (November 15, 1993), Sl. op. at 34.

   4. By any definition, the claim in question clearly meets the
   standard of a complex claim.  Moreover, under GPO's
   procurement regulations, as well as the terms of the contract,
   given the size and scope of the claim it was not unreasonable
   under the circumstances for the Contracting Officer to ask the
   OIG to audit the claim before issuing a final decision.  See,
   PPR, Chap. X,  4.a.; GPO Contract Terms, Solicitation
   Provisions, Supplemental Specifications, and Contract Clauses,
   GPO Publication 310.2, Effective December 1, 1987 (Rev. 9-88),
   Contract Clauses,  40.  Therefore, the Board concludes that
   when the Appellant filed its appeal with the Board on October
   21, 1994, at the expiration of 60 days, it was acting
   prematurely.  See, Executive Elevator Service, Inc., VABCA No.
   2741, 88-3 BCA  20,964.

   5. However, it is well settled that prematurity is not always
   fatal to the justiciability of an appeal.  See, Briggs
   Engineering and Testing Company, Inc. v. United States, 230
   Ct.Cl. 828 (1982); So-Pak-Company, Inc., ASBCA No. 38906, 93-3
   BCA  26,215; Rice King, ASBCA No. 43352, 92-2 BCA  24,805;
   Emerson Electric Company, ASBCA No. 31184, 86-2 BCA 
   18,979.20.  For example, under the CDA the filing of a
   premature appeal does not relieve a contracting officer from
   rendering a final decision on a claim in excess of $50,000
   within the 60-day period prescribed by the statute.  Atherton
   Construction, Inc., ASBCA No. 41414, 91-1 BCA  23,635; ACS
   Construction Company, ASBCA No. 36535, 89-1 BCA  21,406.

   6. It is also settled that an audit alone will not shield a
   contracting officer from his responsibility to issue a
   decision.  See, Robert Augustine & Sons, Inc., supra, 90-1 BCA
    22,506.  In conducting the audit in this case, the OIG
   auditors are acting as the representative of the Contracting
   Officer and their obligations are no less than his.  See,
   Computer Systems & Resources, Inc., GSBCA No. 8434-TD, 86-3
   BCA  19,017.

   7. What bothers the Board about the audit in this case is the
   delay involved.  As it observed during the hearing, from the
   time the Contracting Officer requested the OIG audit of the
   claim (September 21, 1994) to the date it began (January 9,
   1995), three and one-half months had elapsed (Tr.: 8-9).
   Looked at another way, between the date the claim was filed
   with the Contracting Officer (August 22, 1994) and the date of
   the OIG audit 131 days had disappeared from the calendar.

   8. The OIG auditors promised the Contracting Officer that they
   would complete their examination by end of January 1995, and
   he in turn has made a commitment to issue a final decision
   within two weeks after he receives their report.  Taking the
   OIG at its word, the audit report should be in the Contracting
   Officer's hands any day now.  Therefore, while the Board is
   not pleased with the dilatory and casual manner in which the
   OIG handled the arrangements for the audit, it seems that the
   appropriate remedy at this stage is to give both OIG and the
   Contracting Officer a reasonable period of time in which to
   complete review of the Appellant's claim and to issue a
   decision.  See, Computer Systems & Resources, Inc., supra,
   86-3 BCA  19,017.  See also, James Reeves Contractor, Inc.,
   ASBCA Nos. 35280-281, 35281-282, 87-3 BCA  20,173.  That is
   exactly what the Board will do here.  As the Board indicated
   during the hearing, it believes that dismissal of the appeal
   at this time, followed by the taking of a new appeal, and then
   redocketing, would here appear to be inefficient and an
   elevation of form over substance (Tr.: 23).  See, Cessna
   Aircraft Company, ASBCA No. 43196, 92-1 BCA  24,425, at
   121,909.  See also, So-Pak-Company, Inc., supra, 93-3 BCA 
   26,215.

   9. THEREFORE, the Board DENIES the Respondent's Motion and
   ACCEPTS the Contractor's appeal.  Board Rules, Rules 1(c), 2
   and c.  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 22, 1994, within two weeks after receiving the OIG's
   audit report, but in no event later than February 28, 1995,
   and furnish a copy of such decision to the Board.  Board
   Rules, Rule 1(d).  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.  Id.  See, EPCo Associates, GPO BCA 26-93 (November 18,
   1993).  Accord, Improved Petroleum Recovery, EBCA Nos.
   348-1-86, 349-1-86, 87-1 BCA  19,431 (1987).12

It is so Ordered.


January 31, 1995                  STUART M. FOSS
                            Administrative Judge

_____________

     1 When the Board scheduled the jurisdictional hearing in
     this matter, it understood that the Appellant's claim
     amounted to $532,092.74.  See, Hearing Decision, at 1, fn.
     1.  On January 20, 1995, after the close of the hearing,
     Counsel for the U.S. Government Printing Office (Respondent
     or GPO or Government) furnished the Board with a copy of a
     letter from the Appellant's President, Kenneth Margulies, to
     the Contracting Officer, dated January 17, 1995, contending
     that the correspondence showed that during the audit
     process, the Appellant revised its claim upward without
     certifying it as required by the Respondent's regulations
     governing the procurement of printing, see, Printing
     Procurement Regulation, GPO Publication 305.3 (Rev. 10-90)
     Chap. X, Section,  3 (PPR), and thus the Contracting
     Officer could not be expected to issue a final decision.
     See, Notice of Filing, dated January 20, 1995, p. 1 (Notice
     of Filing).  On January 23, 1995, Counsel for the Appellant
     responded with a document entitled "Motion to Strike GPO
     Notice of Filing Dated January 20, 1995 and Motion for
     Sanctions Pursuant to Rule 31" (Motion to Strike), which,
     among other things, flatly denied that the Contractor was
     increasing its claim, but rather was supplying the auditors
     with more detailed information, and moreover, the
     $532,092.74 claim it submitted was properly certified.
     Motion to Strike, at 2-3.  The Board has read the letter
     from Mr. Margulies to the Contracting Officer and sees
     nothing to alter its belief that it is dealing with a
     $532,092.74 claim.  However, there is nothing in the Board's
     procedural rules which contemplate a Motion to Strike, nor
     has the Appellant established any basis for such a motion at
     this preliminary stage of the appeal under the Federal
     rules. FED. R. CIV. P. 12(f).  In the Board's view, the
     Respondent's Notice of Filing is mere argument supplementing
     the position it took at the hearing, and is not a defensive
     pleading.  Furthermore, nothing in the Notice of Filing
     warrants the conclusion that the Respondent is attempting to
     interfere with "the orderly prosecution or defense of an
     appeal" so as to justify the imposition of sanctions under
     Rule 31.  Board Rules, Rule 31.  Accordingly, the Motion to
     Strike is DENIED.
     2 References to the official transcript will be cited as
     "Tr." followed by a full colon (:), with an appropriate page
     number thereafter.
     3 However, the Counsel for the Appellant did submit a copy
     of the written statement which he had prepared for the
     hearing (Tr.: 72).
     4 Rule 1(c) of the Board's procedural regulations 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."  Board
     Rules, Rule 1(c).
     5 The record does not contain the Contracting Officer's
     appeal file. Board Rules, Rule 4(a).  However, for the
     purposes of background, the Board accepts the testimony of
     the Appellant's witness, Mr. Margulies, describing the scope
     of the agreement.  The Contractor also submitted a
     contemporaneously written memorandum to the file from Mr.
     Margulies, recording his recollection of events from October
     4, 1994 to October 12, 1994, as Appellant's Exhibit No. 1
     (hereinafter App. Exh. No. 1) (Tr.: 35-39).
     6 Consequently, at the time of the hearing the Contractor
     had been performing under the contract for only five months
     (Tr.: 49).
     7 The Contracting Officer informed the Appellant of the
     Patent Office's decision on or about July 11, 1994,
     approximately two or three weeks before the commencement of
     the second production period (Tr.: 29-30, 31).  Thereafter,
     on July 21, 1994, the Contracting Officer provided the
     Contractor with a letter stating that ". . . there would be
     no reduction in print volumes, and `present print volumes
     will continue until further notice.  These projected volumes
     were faxed to you on July 13, 1994.'"  See, App. Exh. No. 1.
     8 Among other things, the record shows that the Appellant
     submitted a revised settlement proposal to the Contracting
     Officer on October 6, 1994, which increased the rate on line
     item I.(a)(3) for the second production period from $3.00 to
     $4.21 (Tr.: 45; App. Exh. No. 1).  The Contracting Officer
     countered by offering to pay a rate of $3.65 for the same
     line item (Tr.: 45: App. Exh. No. 1).  The Contractor did
     not accept the Contracting Officer's proposal, but offered
     to split the difference between $4.21 and $3.65 to settle
     the matter (Tr.: 46; App. Exh. No. 1).  However, the
     Contracting Officer rejected this second offer and told the
     Appellant that he would have the claim audited by the OIG
     (Tr.: 47-48; App. Exh. No. 1).  In reply, the Contractor
     requested the issuance of a contract modification increasing
     the rate on line item I.(a)(3) in the second production
     period from $3.00 to $3.65-the rate proposed by the
     Contracting Officer-which would have provided a partial
     settlement of the dispute and narrowed the scope of the
     audit to the .56 rate difference between the Government and
     the Appellant, but the Contracting Officer refused to do so
     (Tr.: 48; App. Exh. No. 1).
     9 At the hearing, Mr. Margulies testified that he had not
     received the letter and was thus unaware that the audit was
     to begin the following week (Tr.: 53).  The Board was not
     surprised because the letter was mailed during the U.S.
     Postal Service's peak season-Christmas-and was sent by
     regular mail.
     10 However, as Counsel for GPO pointed out at the hearing,
     the OIG's ability to keep its promise may only be as good as
     current funding and staff levels, which are generally low
     throughout the agency (Tr.: 7-8).
     11 For certified claims in excess of $50,000, the only CDA
     requirement imposed on a contracting officer who fails to
     issue a decision within 60 days is to notify the contractor
     of the time within which a decision will be issued.  41
     U.S.C.  605(c)(2)(B). See, John C. Grimberg Company, Inc.,
     ASBCA No. 42695, 91-3 BCA  24,074; Robert Augustine & Sons,
     Inc., VABCA No. 3079, 90-1 BCA  22,506.  The Board Rules do
     not contain a comparable provision.  See, Hearing Decision,
     at 6, fn. 8.
     12 Shortly after the close of the jurisdictional hearing,
     the Appellant submitted a motion asking the Board to order
     the Contracting Officer to issue a contract modification
     increasing the price of line item I.(a)(3) of the contract
     from $3.00 to $3.65 as the undisputed portion of the claim,
     because the "undisputed testimony" indicated that the
     Contracting Officer agreed with the increase. See, Motion to
     Order Contracting Officer to Pay Undisputed Portion of Claim
     Immediately," dated January 3, 1995, at 1 (Motion to Pay).
     The Respondent opposes the Motion to Pay on the ground that
     Appellant has mischaracterized the evidence which shows that
     the parties never had a meeting of the minds regarding the
     amount due the Contractor as an equitable adjustment.  See,
     Respondent's Opposition to Appellant's Motion to Order
     Contracting Officer to Pay Undisputed Portion of Claim
     Immediately, January 11, 1995, at 1-2.  GPO's printing
     procurement regulation provides, in pertinent part: "In the
     event of an appeal, the amount, if any, determined to be
     payable in the decision of the Contracting Officer, less any
     portion previously paid, should be paid in advance of any
     decision by the board without prejudice to the rights of
     either party or the appeal."  PPR, Chap. X, Sec. 1,  5.g.
     [Emphasis added.]  The plain meaning of the regulation tells
     us that the sine qua non of a contractor's right to be paid
     the undisputed amount of a claim while its appeal is pending
     is the issuance of a final decision from the Contracting
     Officer establishing that amount.  THEREFORE, regardless of
     any testimony at the hearing, the Appellant's Motion to Pay
     is premature and is hereby DENIED.  Once a final decision is
     rendered on the claim, the Appellant may renew its demand
     for payment of the undisputed amount (whatever that may be),
     but the matter should first be presented to the Contracting
     Officer.