Administrative Judge

Docket No. GPO BCA 12-91
Jacket No. 282-295
Program D189-S
Purchase Order 71940
Print Order 20002
May 12, 1993


     On March 10, 1993, the Board conducted a prehearing
     telephone conference in the above-captioned appeal of Peake
     Printers, Inc., 2500 Schuster Drive, Cheverly, Maryland
     20781 (Appellant or Contractor).  Among the issues
     considered at the conference was the Appellant's Motion For
     Judgment [sic] By Default (Default Motion), dated December
     11, 1992, asking the Board to enter a default judgment in
     favor of the Contractor on the ground that the U.s.
     Government Printing Office (Respondent or GPO or Government)
     failed to comply with Rule 6(b) of the Board's Rules of
     Practice and Procedure by not filing a timely Answer to the
     Appellant's Complaint.  GPO Instruction 110.12, Subject:
     Board of Contract Appeals Rules of Practice and Procedure,
     dated September 17, 1984, Rule 6(b) (Board Rules).  After
     hearing the positions of both parties at the conference, the
     Board stated that it reserved judgment on the issue and
     would rule on the question separately later.  See, Report of
     Prehearing Conference, GPO BCA 12-91, dated May 3, 1993, pp.
     2-5 (Report).  Since the close of the conference, the Board
     has carefully considered the chronology of events in this
     appeal as reflected in the record, and the arguments of the
     parties at the conference with regard to the issue raised by
     the Default Motion.  For the reasons which follow, the Board
     has determined that the Default Motion should be, and hereby
     is DENIED.

A. Factual Background

     The facts leading to the Default Motion are simple and
     brief. By letter dated May 7, 1991, the Appellant filed its
     appeal from the March 29, 1991, final decision of
     Contracting Officer Richard Weiss.  Board Rules, Rules 1(a)
     and 2.  The appeal was docketed by the Board that same day
     (May 7, 1992).  Board Rules, Rule 3.  On May 30, 1991, the
     Board wrote to the Contractor notifying it that its appeal
     had been docketed, and provided it with a copy of the Board
     Rules.  Id.  The Board's docketing letter specifically
     directed the Contractor's attention to Rule 6(a) concerning
     its obligation to file a Complaint with the Board within 30
     days after receiving the Board's docketing letter.  Board
     Rules, Rule 6(a).

     According to the Appellant, it submitted a letter entitled
     "Rule 6(a) Response," dated June 20, 1991, to the Board as
     its Complaint (Original Complaint).  Board Rules, Rule 6(a).
     Report, p. 3.  However, there is nothing in the appeal
     record which would show if or when the Appellant's Original
     Complaint was received by the Board or whether the Board, in
     accordance with the Board Rules, served a copy of it upon
     the Government Counsel at that time. 1/ Board Rules, Rule

     Thereafter, by letter dated July 24, 1991, the Appellant
     informed the Board that it desired a hearing on its appeal.
     Board Rules, Rule 8.  After the Board received this letter,
     it contacted the Contractor to find out if a Complaint had
     been filed and was informed that one had been submitted to
     the Board on June 20, 1991. Since the Board had no record of
     the Original Complaint, it asked the Appellant to furnish
     another copy to the Board (Second Complaint), along with
     evidence that the Original Complaint had been mailed to the
     Board.  The Board also asked the Contractor to send a copy
     of the Second Complaint to Counsel for GPO in order to
     expedite the appeal.  The Second Complaint was received by
     the Board on August 27, 1991, and a copy was sent to Counsel
     for GPO by the Clerk of the Board in the normal course of
     Business.  Board Rules, Rule 6(a).

     Nothing further occurred in this appeal for more than a
     year. Then, on October 7, 1992, Counsel for GPO filed
     Respondent's Motion to Dismiss (Dismissal Motion).  The
     Dismissal Motion sought dismissal of the case on the ground
     that the Appellant had, in effect, abandoned its appeal,
     because it had not submitted a Complaint within the required
     30 days under the Board Rules.  The Board immediately
     contacted counsel for GPO, and learned that he had no record
     of receiving a copy of the Second Complaint, either from the
     Board of the Appellant.  Therefore, he asked the Board to
     furnish him with another copy of the Second Complaint, and
     the Board did so.  Thereafter, the Board issued and served
     on the parties its Order Accepting Appellant's Appeal As a
     Complaint (Board Order), dated October 16, 1992. 2/  On
     November 18, 1992, the Respondent entered a "genial denial"
     in response to the Second Complaint, a copy of which was
     simultaneously served on the Appellant.  Board Rules, Rule

     On December 18, 1992, the Appellant submitted its Default
     Motion to the Board.  In effect, the Default Motion seeks
     sanctions against the Respondent under Rule 31 of the Board
     Rules. 3/  Board Rules, Rule 31.  As a remedy, the Appellant
     asks the Board to vacate and set aside the final decision of
     the Contracting Officer.

A. Positions of the Parties

     At the conference, Counsel for GPO opposed the Default
     Motion on the ground that the Respondent's failure to file a
     timely Answer was that, for some unexplained reason, it had
     not received a copy of either the Original Complaint or the
     Second Complaint from the Board or the Appellant until
     October 1992.  Report, p. 2.  Once the Respondent received a
     copy of the Second Complaint from the Board, along with the
     Board Order, it complied with Rule 6(b).  Id.  Board Rules,
     Rule 6(b).  Accordingly, Counsel for GPO believed that the
     Default Motion had no merit, and should be denied.  Id.

     Counsel for the Appellant, on the other hand, argued that
     its motion to sanction the Respondent was appropriate since
     the Government's 16 month delay in filing its Answer damaged
     the Contractor's case because two its "critical" witnesses
     were no longer available to testify on its behalf.  Report,
     p. 3.  In the Appellant's view, the Respondent was sent
     copies of the Second Complaint by both the Board and the
     Contractor in August 1991.  Id.  Therefore, as the
     Respondent did not file its Answer within 30 days after
     that, Counsel for the Appellant believed that his client was
     entitled to the relief sought in the Default Motion.
     Report, p. 4.

C. Decision

     Under Rule 6(a) of the Board Rules, although as appellant is
     required to file a complaint with the Board, it is the Board
     which is responsible for serving a copy of the complaint
     upon Government Counsel. 4/  Board Rules, Rule 6(a).  That
     is, unlike other provisions in the Board Rules, the parties
     themselves have no service obligations under Rule 6(a).
     Compare, Board Rules, Rules 4(a), 4(b), Rule 9, and Rule 16.
     In this case, while the Board has no doubt that the
     Appellant prepared and transmitted its Original Complaint to
     the Board on June 20, 1991, the Board is also certain that
     is never receive the Original Complaint.  If it were
     otherwise, a copy of the Original Complaint would be in the
     appeal file, and the Board's telephone call to the Appellant
     on August 27, 1991, following receipt of the Contractor's
     request for a hearing, would have been unnecessary. 5/

     Similarly, the Board has no reason to doubt Counsel for
     GPO's word that, according to his records, he never received
     a copy of the Second Complaint, either from the Board or the
     Appellant.  In that regard, the fact that Counsel for GPO
     filed a Dismissal Motion based on the Appellant's failure to
     submit a Rule 6(a) complaint a year after the Board
     requested the Second Complaint from the Contractor, is not
     without significance.  Because of the strong presumption
     that Government officials properly and honestly carry out
     their functions, the absence of "well-nigh irrefragable"
     proof in the record contradicting Counsel for GPO's
     categorical statement that he never received the Second
     Complaint precludes the Board from saying that his actions
     were based on anything other than a good faith belief that
     the Appellant had, indeed, failed to comply with Rule 6(a).
     Cf., e.g., B. P. Printing and Office Supplies, GPO BCA 14-91
     (August 10, 1992), Sl. op. at 16; Stephenson, Inc., GPO BCA
     02-88 (December 19, 1991), Sl. op. at 55; The Standard
     Register Company, GPO BCA 4-86 (October 28, 1987); Sl. op.
     at 12-13.  Also cf., Karpak Data and Design, IBCA 2944 et
     al., 93-1 BCA  25,360; Dalmo Victor Division, General
     Instrument Corporation, ASBCA 39718, 92-3 BCA  25,176;
     Local Contractors, Inc., ASBCA 37108, 92-1 BCA  24,491.

     Nothing in the record accounts for this breakdown in the
     system followed by the Board for serving papers and
     documents. However, in the absence of any evidence to the
     contrary, the Board must conclude that the initial copy of
     the Second Complaint which it sent to Counsel for GPO on or
     after August 27, 1991, was either lost in the GPO terminal
     mail system or misplaced in the Office of the General
     Counsel. 6/   Therefore, the Board believes Counsel for GPO
     in this matter when he says that the first notice he had
     that the Appellant had complied with Rule 6(a) was when he
     received the copy of the Second Complaint which the Board
     sent him in October 1992, after he had filed the
     Respondent's Dismissal Motion.

     In the final analysis, the Board observes that from August
     1991 until October 1992, neither party contacted the Board
     concerning the status of this appeal.  Certainly, the
     Appellant in particular did not question the failure of the
     Respondent to file an Answer during that period, and the
     Board believes it may not have done so but for the fact that
     Counsel for GPO filed a Dismissal Motion.  Indeed, the Board
     also believes that the Default Motion, submitted two months
     later, is nothing more than the Appellant's "tit for tat"
     response to the Dismissal Motion.

     In light of the fact that Rule 6(b) is not jurisdictional,
     and indeed allows the Board to act in Lieu of the Respondent
     when no Answer is filed within 30 days, the Board itself
     must bear some responsibility for the delay in processing
     this appeal. Accordingly, since the first notice Counsel for
     GPO had that a Complaint had been filed was in October 1992,
     the Board believes that it would be unfair to sanction the
     Respondent for the shortcomings of the procedural system
     which occurred in this case. Board Rules, Preface to Rules,

     On the other hand, the Board recognizes that there may be
     some merit to Counsel for the Appellant's argument that the
     16 month delay between the Second Complaint and the
     Respondent's Answer harmed the Contractor's case because two
     "critical" witnesses are no longer available.  Whether the
     Appellant was actually prejudiced by the delay is a question
     which may be resolved by the parties themselves during
     discovery prior to the hearing which the Board has scheduled
     in this matter for Tuesday, June 8, 1993.  Report, pp. 8-9.
     In any case, the Board believes that such matters are more
     appropriate for its consideration during the hearing.

D. Order

     For all of the foregoing reasons, the Board believes that
     good cause exists for not applying Rule 31 sanctions in this
     case. Board Rules, Rule 31.  THEREFORE, Appellant's Default
     Motion is hereby DENIED.

It is so Ordered.


1/ The record does show that the Respondent did comply with its
Rule 4(a) obligations and submitted the Contracting Officer's
appeal file to the Board in a timely fashion; i.e., on June 21,

2/ The Board Order also denied the Respondent's Dismissal Motion.
See, Board Order, p. 3.

3/ Rule 31 provides that "[w]henever a record discloses the
failure of either party to file documents required by these
rules; respond to notices or correspondence from the Board;
comply with an order of the Board; or otherwise indicates an
intention not to continue the orderly prosecution or defense of
an appeal, the Board may issue an order requiring the offending
party to show cause why the appeal should not be either dismissed
or granted, as appropriate.  If the offending party shall fail to
show such cause, the Board may take such action as it deems
reasonable and proper under the circumstances" [Emphasis added].

4/ Similarly, the Board Rules provide that the Board shall serve
a copy of the respondent's answer to the complaint on the
appellant.  Board Rules, Rule 6(b).

5/ Although the Appellant complied with the Board's instruction
to send it the Second Complaint, it notes that the Contractor did
not submit the evidence of mailing of the Original Complaint
which was also requested by the Board.

6/ Although the Appellant stated at the conference that it
complied with the Board's request to expedite the appeal by
independently serving a copy of the Second Complaint on Counsel
for GPO, there is nothing in the record to indicate that the
Respondent received that copy either.  Report, p. 3.