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


   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

   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


   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 [1]
   "addressed to the Public Printer," and be [2] "sent to the
   Contracting Officer." must be [3] "signed by the contractor,"
   [4] "identity the contract by number and this decision," [5]
   "state that the decision is being appealed,"  [6] "specify the
   part or parts of this decision from which the appeal is
   taken," and [7] "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

   Ordered that: Respondent's Motion to Dismiss be and the same
   is hereby granted; Appellant's opposition to such motion being
   simultaneously denied.