MOORE BUSINESS FORMS & SYSTEMS DIVISION GPO BCA 3-86 February 25, 1987 Michael F. DiMario Administrative Law Judge Order granting Respondent's motion to dismiss Appellant's request for waiver of time limitation for filing appeal of final decision of Contracting Officer Background Moore Business Forms & Systems Division (hereinafter "Moore"), 2202 Camino Ramon, San Ramon, CA 94583, by letter of its Regional Manager R. F. Kinton dated April 21, 1986, referencing Government Printing Office San Francisco Regional Printing & Procurement Office, Jacket No. 789-880, Purchase Order P-5384, advised this Board that "[t]he U.S. Government Printing Office (hereinafter "GPO") has found Moore to be in default . . . has issued a debit memo in the amount of $78,295.21." and that "Moore . . . strongly disagrees with the GPO findings and wishes to appeal the decision . . . ." for reasons set forth in the said letter. Thereafter, GPO moved for dismissal of the appeal on the grounds that it was untimely in that: (1) The contract was terminated for default by letter of the Contracting Officer dated March 6, 1985; (2) the termination notice stated that the decision would be final and conclusive unless a written notice of appeal was filed within 90 days of its receipt in accordance with the "Disputes" article of U.S. Government Printing Office Contract Terms No. 1, which was incorporated in the contract by reference; (3) the "Disputes" article provided that the contractor mail or otherwise furnish a written notice of its appeal to this Board within 90 days from the date of its receipt of the Contracting Officer's final decision; (4) the appeal of the default termination was lodged with the GPO Board of Contract Appeals on April 25, 1986, more than a year after receipt of the termination notice; and (5) the Appellant gave no reasons for the inordinate delay in lodging its appeal. Next, this Board, by letter of June 5, 1986, notified Kinton that he should file his response to the Motion to Dismiss within 30 days of receipt of the Board's letter showing such cause as he might have as to why the Motion should not be granted and that thereafter, as necessary, the Board would schedule a hearing limited to the question of the timely filing of the appeal. After an appropriate extension of time, Appellant filed its Opposition, affidavits in support thereof, and Memorandum of Law with the Board. A hearing was then scheduled and held on the matter on December 8, 1986. At the outset of the hearing discussion ensued over whether or not, as a matter of motion practice, the Board should accept affidavits or require oral examination of witnesses. The Board accepted the affidavits but held open the question of whether oral examination would be necessary. No witnesses were subsequently called. Be that as it may, the factual thrust of Appellant's case, both in documentation and hearing, was that: (1) Appellant had manifested its clear intention to appeal in its letter of January 17, 1985, by Account Executive Charles H. Lape, P.O. Box 1060, 1265 Montecito Avenue, Mountain View, CA 94042, given in response to Respondent's so-called "Show Cause" letter of January 11, 1985 (Rule 4 File, hereinafter "R4 File," Tab 3) which Appellant characterized as a "conditional termination." (Transcript, page 28, line 13.); (2) the said January 17th letter "set forth Moore's position with respect to the facts.", asserted that "Moore was not negligent," and claimed that "the Government was liable for the total cost of all forms produced." (Affidavit of Charles H. Lape dated August 6, 1986); (3) thus, when Respondent's termination letter of March 6, 1985, was received by Lape he, being a salesperson unschooled in the law, "was confused but assumed that since the Government had made full payment after receipt of [his] letter that either [the Government's] letter was erroneously sent, or even if the Government had nevertheless decided to terminate the contract that [his] prior letter would still serve as [Moore's] appeal of such decision." He thus dismissed the importance of responding to the March 6, 1985 termination letter (Affidavit, Id.); (4) thereafter, until the misdirected debit memo was received in an unrelated unit of Moore's vast business activity in Denton, TX and a search undertaken to discover the responsible office within the company, no legally knowledgeable officials of Moore were aware of the matter; but (5) when such responsible official, Mr. Kinton, was at last apprised of the matter in February 1986, he immediately contacted the Contracting Officer and pursuant thereto executed the Appellant's letter of April 21, 1986. Appellant argues that the facts, as presented by it, show as a matter of substantial evidence that Respondent caused the confusion experienced by Lape and that therefore this Board as a matter of equity within its discretion should alternatively either (1) accept Lape's January 17, 1985, letter as a duly filed appeal to Respondent's "conditional termination" of January 11, 1985, without regard to the 5-day limitation or other terms contained therein; (2) grant a waiver to the strict 90-day time limit for filing an appeal and accept Respondent's April 21, 1986, letter as the bona fide appeal of Respondent's March 6, 1985, termination letter; or (3) accept Appellant's April 21, 1986 letter as a timely filed appeal to Respondent's misdirected debit memo of November 11, 1985. Respondent's counter argument is that: (1) Lape was the person within Appellant's organization with whom it had carried on all activities associated with the contract; (2) as such, Lape was the proper party to receive the show cause notice and termination letters; (3) the said notice and letters which were sent to Lape were clear in their terms; (4) Lape's letter of January 17, 1985, was in obvious response to the show cause notice; (5) the termination letter, on the other hand, required another specific response thereto within the time specified in order to perfect the appeal; (6) the failure to respond to the termination letter within the prescribed time was the direct result of the negligence of Lape; (7) such failure caused a vesting of rights in Respondent, the Contracting Officer's decision becoming "final and conclusive" by operation of the terms of the contract; (8) to grant Appellant's request to have the contractual time limit for appeal waived by action of this Board would adversely affect Appellant's vested rights; and (9) the reasons espoused by Appellant for such request of waiver amount to an admission of negligence on the part of its employee, Mr. Lape, and as such, do not constitute a showing of that kind of good cause for which Boards of Contract Appeals may exercise waiver discretion. Decision Notwithstanding Appellant's artful assertion that Respondent's so-called "show cause" letter of January 11, 1985, was a "conditional termination" giving rise to a right of appeal in Moore, this Board, using a reasonable man standard, finds in such terminology as "is considering," "pending a final decision," and "in the event a decision is made" that no such termination had been made or by implication conveyed to Lape. Moreover, it is the view of this Board that, absent a substantial contrary factual showing, Mr. Lape's letter of January 17th must be read to be responsive to Respondent's January 11th invitation ". . . to present, in writing, any facts bearing on the question . . ." "whether your failure to perform arose out of causes beyond your control and without fault or negligence on your part." rather than as an appeal of an action taken. In stating this the Board notes that, in its opinion, its reading of the clear documentation of record substantially outweighs in probative value Lape's post hoc assertions of subjective intent however much sworn to. That having been said, this Board next considers the question of the impact of the full payment by Respondent which Lape asserts he became aware of prior to receipt of Respondent's March 6, 1985 letter. This Board believes that a reasonably prudent printing contractor in like circumstances, i.e., a contractor who had an extensive contractual dispute with the Government which he, on the basis of having received full payment, believed to have been satisfactorily resolved in his favor, would have reacted quite differently to Respondent's March 6th letter than did Lape. That letter in its detail was precise. It was addressed to Mr. Lape, the Moore representative who made the bid on behalf of the company and with whom all substantial dealings between the parties respecting this contract had been carried on. It identified the contract by jacket number and stated that the letter itself was notification of termination of the contract for default. It stated the reason for such termination, i.e., "refusal to reprint the forms that were rejected by this office on December 31, 1984." It clearly and unambiguously "advised that the same or similar items terminated may be reprocured against your firm's account, on such terms and in such manner as the Contracting Officer deems appropriate." It further stated that if such reprocurement were undertaken, the company "shall be held liable to the Government for any excess costs." Moreover, contrary to Appellant's claim of confusing language respecting monetary liability, it clearly reserved to the Government "all rights and remedies provided by law and under the contract, in addition to charging excess costs." (Emphasis added.) Most importantly, it expressly stated that "[t]his decision, [i.e., the decision to terminate] is made in accordance with the article entitled 'Disputes,' U.S. Government Printing Office Contract Terms No. 1 and shall be final and conclusive as provided therein, unless you file a written notice of appeal within 90 days from the date of receipt of the decision." (Emphasis added.) Then in clear direction the letter went on to state express procedural requirements, i.e., the notice of appeal should be  "addressed to the Public Printer," and be  "sent to the Contracting Officer." must be  "signed by the contractor,"  "identity the contract by number and this decision,"  "state that the decision is being appealed,"  "specify the part or parts of this decision from which the appeal is taken," and  "state the reason why these parts are erroneous." (Emphasis added.) As an added caution, the letter also stated that "[a] general letter of complaint objecting to the action taken will not be considered an notice of appeal." Given such precision in Respondent's letter of termination, this Board believes that a reasonable contractor in like circumstances, even one who assumed as Lape claims he did, would have made an inquiry as a matter of normal caution or even mere curiosity, to ascertain the reason for Respondent's letter. Lape took no such action. In fact, he took no action whatsoever even failing to inform his own superiors. Such nonfeasance cannot now be rectified by asserting some disingenuous claims of causation attributable to Respondent. Accordingly, this Board holds, upon principles of both express limitations and laches, that Appellant, through the negligence of its own employee, Lape, lost its right of appeal. This negligence caused Respondent's contractual inchoate interest to vest finally and conclusively as a property right in accordance with the terms of the contract and the termination letter. This being the case, this Board finds that Appellant has failed to show such good cause as would justify the granting of any of the relief it has requested. Therefore, it is Ordered that: Respondent's Motion to Dismiss be and the same is hereby granted; Appellant's opposition to such motion being simultaneously denied.