U.S. Government Printing Office
Office of General Counsel
Contract Appeals Board

Appeal of Kimball Systems Division
74-13
January 21, 1975

Jay E. Eisen , Member

This is an appeal filed.by Kimball Systems Division, Litton
Business Systems, 850 Third Avenue, New York, New York, herein
also referred to as the contractor on August 27, 1974, under the
disputes clause of the contract, Jacket #524-355, Purchase Order
54897, Article 29, U.S. Government Printing Office Contract Terms
No. 1, Rev. July 15, 1970.  The Office of General Counsel is the
Public Printer's representative for the determination of appeals
under the disputes clause.

1. Findings of Fact.

(a) This case arises out of a contract entered into by the
appellant, Kimball Systems Division, and the U.S. Government
Printing Office, herein referred to as the GPO, for the
production of 500,000 sets (1,000,000 individual) labels.

(b) The contract, designated as GPO Jacket Number 524-355,
Purchase Order 54897 is a fixed price agreement for the
procurement of supplies; to wit labels, awarded at a cost of
$2,600.00 on November 15, 1973.

(c) Jacket Number 524-355, Purchase Order 54897 is a requirement
of the Department of Health, Education, and Welfare, (National
Institutes of Health) for the production of.the following:

"Yellow uncoated Label, 120-140, No Printing, 500,000 sets =
1,000,000 individual labels, size 4 x 1 7/16, mounted 2-up.  Side
by side . . ."

(d) The contract, in addition to describing the standards for
uncoated label paper set forth the type and kind of adhesive to
be affixed to the labels as follows:

"PRESSURE SENSITIVE ADHESIVE: (non-permanent) Labels shall be
coated with a removable type adhesive of sufficient tack to cause
the labels to adhere firmly to plastic magnetic tape reels
operating at high speed.  However, the labels shall be no more
difficult to remove after 48 hours on reels than after 30
minutes; shall take no more than 5 seconds to remove and shall
strip from the reel without tearing or leaving and residue on the
reel.  Labels shall have a shelf life of one year.'' (Emphasis
supplied.)

(e) The contract specified that pre-production sampling is
required.  The clauses for this purpose stated in pertinent part
are as follows:

"(a) The pre-production sample requirement for this contract is
not less than 32 sets mounted on a continuous marginally punched
backing sheet.  Each set must be as specified herein (including
size).  Labels must be manufactured using the stock, equipment,
and method of production to be used in producing the finished
product, and must be of the kind and quality the contractor will
furnish in producing the order.

"(b) Prior to the commencement of production of the contract
production quantity. the contractor shall deliver the pre-
production sample to the Government addressed to:  U.S.
Government Printing Office . . .

. . .

"(d) The Government will approve. conditionally approve, or
disapprove the pre-production samples within 7 working days of
the receipt thereof.  Samples will be inspected and tested and
must comply with the specifications as to kind and quality of
materials.  Approval or conditional approval shall not relieve
the contractor from complying with the specifications and all
other terms and conditions of the contract.  A conditional
approval shall state any further action required by the
contractor.  A notice of disapproval shall state the reasons
therefor.

"(e) If the pre-production sample is disapproved by the
Government, the Government at its option may require the
contractor to submit additional samples for inspection and test,
in the time and under the terms and conditions specified in the
notice of rejection. . . .

"f) . . . in the event pre-production samples are disapproved by
the Government, the contractor shall be deemed to have failed to
make delivery within the meaning of the default clause in which
event the contract shall be subject to termination for default, .
. ."

(f) In accordance with the contract terms, the contractor on
December 26, 1973 submitted the prior to production sample
labels.  They were tested and rejected by GPO on February 19,
1974 because they left a residue on the reels.  The contractor
acknowledged receipt of the rejection notice by letter dated
February 19, 1974; the contractor indicated their intention to
send "new samples" to GPO for approval.  The additional
preproduction samples were furnished on April 8, 1974 and
rejected on April 19, 1974, for the same reasons.

(g) The Contracting Officer, by letter dated April 19, 1974,
notified the contractor that the contract is terminated for
default by reason of its inability to deliver a product in
accordance with the specifications; that the Government may
procure supplies similar to those so terminated and that the
contractor shall be liable to the Government for excess costs for
such similar supplies in accordance with Article 18, GPO Contract
Terms, No. 1. The contractor was advised of its right to appeal
to the Public Printer pursuant to Article 29, GPO Contract Terms
No. 1.

(h) Subsequent to the notice of termination for default to the
contractor, an award was made to the second low bidder, The Globe
Ticket Company, 222 New Boston Street, Woburn, Massachusetts
01801, on April 30, 1974 in the amount of $3,640.00 (Jacket No.
524-355 - Purchase Order 58774).  The specifications and
requirements were the same.

Kimball Systems was advised by the contracting officer by letter
dated May 14, 1974, that the contractor shall be liable for the
total amount of excess costs resulting from the procurement of
the supplies from the Globe Ticket Company (Article 18, GPO Terms
No. 1).

(i) Article 29, U.S. GPO Contract Terms No. 1 contains the usual
disputes provision concerning decisions on questions of fact
arising under the contract to be decided by the contracting
officer in event of failure to agree, with a right of appeal
within thirty days after receipt of a copy of the decision.

The records in.the file reflect the following sequence.of events
concerning the termination of the contract for default:

(1)  APRIL 19, 1974 - contracting officers decision, with notice
of right to appeal within thirty days after receipt of copy of
decision.

(2)  MAY 14, 1974 - Notice re: Excess costs to contractor due to
reprocurement.

(3)  AUGUST 27, 1974 - Date of appeal letter filed by contractor.
No good cause shown for untimeliness of appeal.

(4)  OCTOBER 17, 1974 - Letter from Office of General Counsel to
contractor advising of privilege to submit supporting evidence.

(5)  NOVEMBER 8, 1974 - Counsel for contractor acknowledged
letter.

(6)  DECEMBER 3, 1974 - Counsel requested and a copy of GPO
Contract Terms No. 1 dispatched to counsel - He requested delay
to December 20, 1974 to submit appeal.

(7)  DECEMBER 20, 1974 - Received letter dated December 18, 1974
re: appeal (limited to the merits.)

II.  Opinion

The immediate question in this appeal is the timeliness of the
appellant's notice of appeal.  As I have determined that a
question concerning timeliness of an appeal is present, my
initial consideration will be limited to such jurisdictional
question.  The merits are not to be considered if the submission
was in fact untimely.

The "disputes" article of the contract provides, in pertinent
part, as follows:

". . . any dispute concerning a question of fact arising under
this contract which is not disposed of by agreement shall be
decided by the Contracting Officer, who shall reduce his decision
to 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 30 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." (Art. 29, GPO Contract Terms No. 1)

This office does not have the specific date of the receipt of the
Contracting Officer's decision by the appellant of the
termination notice of the contract for default dated April 19,
1974.  Since the contractor in a letter to the Contracting
Officer dated May 7, 1974, acknowledged receipt of the
termination notice of April 15, 1974, and since the notice of
appeal was dated August 27, 1974, the appeal is patently
untimely.  A contracting officer's determination is considered
final and conclusive unless an appeal is lodged within the 30 day
period as set out in the Disputes Clause. The Curtiss Company,
ASBCA, 69-1 BCA  7440, December 20, 1968.

It has been held by contract review boards that the 30 day appeal
period usually appearing in the standard disputes clause may not
be waived in order to grant consideration on the merits.  Arthur
Venneri Co., GSBCA, 1964 BCA  4334, 1964; Wholesale Paint Co. ,
GSBCA, 68-1 BCA  7007, 1968; Monroe Tapper and Associates,
PSBCA, 72-2 BCA  9628, 1972.  This rigid and indiscriminate
adherence to the 30 day provision of the disputes clause was
considered to be too narrow a standard by the Court of Claims,
who held that Boards of Contract Appeals have the power in proper
circumstances to waive or extend the appeal periods specified in
the usual disputes clauses. Maney Aircraft Parts, Inc. v. United
States, 197 Ct. Cl. 159.  This reasoning was reaffirmed in the
case of Monroe M. Tapper and Asso. v. United States, 198 Ct. Cl.
72.  The Court remanded the case to the Postal Service Board of
Contract Appeals, who found that no facts or circumstances had
been presented by the contractor that would warrant or permit the
exercise of such power. Monroe M. Tapper and Associates , PSB,
72-2 BCA  9628, 1972.

In the applicable case, the contractor was offered an opportunity
to submit evidence in support of their appeal pursuant to the
"disputes clause".  The scope of review would of course include
any facts or circumstances to justify extending or waiving the 30
day appeal period.  In view of the cited decisions by the Court
of Claims it is the belief that we have the power in proper
circumstances to waive or extend the appeal period specified in
the disputes clause.

Hence, upon a review of the entire file, including the matters
submitted by appellant's counsel, I find no facts or
circumstances presented in the appeal which would justify
extending or waiving the appeal period to August 27, 1974.

In view of the foregoing the appeal is dismissed.