WASHINGTON, D.C.  20401

In the Matter of                  )
the Appeal of                     )
EPCO ASSOCIATES                   )   Docket No. GPO BCA 26-93
Programs D306-S and D306-S(R-1)   )
Purchase Order 90758              )
Print Orders 40001-40027          )


      On October 1, 1992, EPCO Associates (Appellant or Contractor, 3401 East-West Highway,
      Hyattsville, Maryland 20782, filed a Notice of Appeal and Complaint (Notice of Appeal) with
      the Board protesting, inter alia, the denial of its claim for additional compensation under
      its contract identified as Programs D308-S and 308-S (R-1), Purchase Order 90758, Print
      Orders 40001-40027, by Contracting Officer Richard Weiss of the U.S. Government Printing
      Office's (Respondent or GPO) Printing Procurement Department, Washington, DC 20401.1   GPO
      Instruction 110.12, Subject:  Board of Contract Appeals Rules of Practice and Procedure,
      dated September 17, 1984, Rules 1(a), and 2 (Board Rules).

   Accompanying the Notice of Appeal, was Appellant's Motion Under Rule 1(c) (Rule 1(c) Motion),
   which moved for acceptance of the Contractor's Complaint in the absence of a final decision from
   the Contracting Officer on the ground that his failure to issue a final decision within a
   reasonable period should be "deemed denial" of the claim.2  Board Rules, Rule 1(c).  See, Rule
   1(c) Motion, p. 1.  Basically, the Appellant Rule 1(c) Motion contends that: (1) the Contractor
   submitted its claim to the Contracting Officer on August 31, 1993; (2) the claim was virtually
   identical to its allegations before the Court of Federal Claims (hereinafter Claims Court)  in
   EPCo Associates v. United States, No. 93-309C (August 17, 1993); (3) the Contracting Officer had
   been substantially involved in that civil matter and had throughout the case opposed the
   Contractor's right to any recovery; (4) thus the Contracting Officer was familiar with the
   substance of the claim; and (5) therefore, 30 days (August 31, 1993 to September 30, 1993) was
   more than sufficient time for the Contracting Officer to issue a final decision, particularly
   since the claim is identical to Claims Court complaint.  Rule 1(c) Motion, pp.2-4.  Accordingly,
   since the Contracting Officer had not issued a final decision, and because he had consistently
   opposed any recovery on the very grounds submitted by the Appellant in its August 31, 1993
   claim, the Contractor asked the Board to accept the Notice of Appeal and Complaint under Rule
   1(c).  Rule 1(c) Motion, p. 4.  Copies of the Notice of Appeal and the Rule 1(c) Motion were
   served by the Appellant on the Respondent on October 1, 1993.  As of this date, the Respondent
   has not replied to the Appellant's Rule 1(c) Motion.

   An appeal is usually initiated with the Board when a contractor notes a disagreement with a
   contracting officer's "final decision."3  Board Rules, Rule 1(a).  Indeed, in most cases the
   jurisdiction of a board of contract appeals is predicated on a contractor first submitting its
   claim to the contracting officer for a decision.  Associated Contract Specialties Corporation,
   ASBCA No. 37437, 90-3 BCA  23,258; Spruill Realty/Construction Company, ASBCA No. 40477, 90-3
   BCA  23,255.  This does not mean, however, that a contracting officer can frustrate the appeals
   process by refusing to issue a final decision.  Where, as here, a contractor has a claim in
   excess of $50,000.00, which was submitted to the contracting officer for a final decision and no
   such decision is issued within a reasonable time, the contractor may proceed to note its appeal
   to the Board, citing the failure of the contracting officer to render a decision on the claim as
   the basis for jurisdiction.4  Board Rules, Rule 1(c).  Furthermore, the Board's filing rules
   allow it in such cases to stay further proceedings, at its option, pending issuance of a final
   decision by

the contracting officer within such a period of time as it determines is appropriate.5  Board
Rules, Rule 1(d).  These rules of practice apply to the circumstances of this case.

   THEREFORE, the Board GRANTS the Appellant's Rule 1(c) Motion, accepts the Appellant's Notice of
   Appeal, and has assigned the case Docket No. GPO BCA 26-93.  Board Rules, Rules 1(c), 2 and 3.
   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
   31, 1993, within 60 days from the date of receipt of this Decision and Order, and furnish a copy
   of such decision to the Board.6  Board Rules, Rule 1(d).  In that regard, the Contracting
   Officer is reminded that his final decision:

      . . . is vital to the administrative process of resolving disputes.  Without it there is no
      immediate issue, appeal, or review.  It directs the way the contract will proceed in the
      interim. . . .  Finally, the decision is the basis for the GPO's position on appeal.  With
      supplementary data, it forms the record that the Board of Contract Appeals reviews in
      deciding the case.

See, PPR, Chap. X,  4.c., p. 85.  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.  Board Rules, Rule 1(d).

It is so Ordered.

November 18, 1993                  STUART M. FOSS
                                   Administrative Judge

    1 The essence of the Appellant's claim was a demand for "common law damages" of $2,169,005.00
    based on the Respondent's "... material breach of a 5-year "requirements" contract".  See,
    Notice of Appeal, p. 1.
    2 Rule 1(c) of the Board Rules 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
    3 The time limit for filing an appeal is 90 days from the date a contractor receives a
    "contracting officer's final decision."  Board Rules, Rule 1(a).  This time limit is
    jurisdictional; i.e., the Board cannot consider and decide an appeal filed more than 90 days
    after receipt of the contracting officer's final decision.  Cf., Ace Duplicating Company, GPO
    BCA 44-92 (February 1, 1993).
    4 As indicated above, the Appellant's Rule 1(c) Motion urges the Board to consider the
    Contracting Officer's failure to issue a final decision within a reasonable period as a denial
    of the claim.  See, Rule 1(c) Motion, p. 1.  The Contractor apparently has reference to section
    605(c)(5) of the Contract Disputes Act, Pub.L. 95-563 (November 1, 1978), 92 Stat. 2383, 41
    U.S.C.  601, 605(c)(5) (CDA), which provides, in pertinent part, that: "[a] failure by the
    contracting officer to issue a decision on a contract claim within the period required will be
    deemed to be a decision by the contracting officer denying the claim and will authorize the
    commencement of the appeal or suit on the claim as otherwise provided in this chapter."
    However, the CDA does not apply to contracts awarded by the Respondent because GPO is a
    Legislative branch agency.  Cf., Banta Company, GPO BCA 03-91 (November 15, 1993), Sl. op. at
    10, fn. 29 (citing, The Wessel Company, Inc., GPO BCA 8-90 (February 28, 1992), Sl. op. at 17,
    fn. 18).  Also cf., Tatelbaum v. United Sates, 749 F.2d 729, 730 (Fed. Cir. 1984).  Nothing in
    the Board's rules of practice authorize it to hold that a contracting officer's failure to
    issue a final decision within a reasonable period is tantamount a to a denial of the claim.
    5 Rule 1(d) parallels so much of section 605(c)(5) of the CDA which states:  ". . . in the
    event an appeal or suit is so commenced in the absence of a prior decision by the contracting
    officer, the tribunal concerned may, at its option, stay the proceedings to obtain a decision
    on the claim by the contracting officer."  41 U.S.C.  605(c)(5).  Indeed, the CDA also
    provides that: "[a] contractor may request the agency board of contract appeals to direct a
    contracting officer to issue a decision in a specified period of time, as determined by the
    board, in the event of undue delay on the part of the contracting officer."  41 U.S.C.  605(c)
    (4).  Hence, the authority of a board to establish a time for the issuance of a final decision
    and to direct the contracting officer to comply with its instructions is not in doubt.  A.D.
    Roe Company, Inc., ASBCA No. 26078, 81-2 BCA  15,231.
    6 The CDA instructs contracting officer's to issue their final decisions on claims ". . .
    within a reasonable time, in accordance with regulations promulgated by the agency, . . .".  41
    U.S.C.  605(c)(3).  GPO's Printing Procurement Regulation (PPR) is even stronger because it
    tells a contracting officer to render a final decision "promptly".  See, Printing Procurement
    Regulation, GPO Publication 305.3 (Rev. September 1, 1988), Chap. X,  4.c., p.85.  The reason
    given for this urgency is three-fold: (a) the contractor is responsible for continued
    performance while an appeal is pending; (b) any delay in the final decision may become an issue
    in the dispute; and (c) the failure to make a final decision may itself be appealed.  Id.  The
    fact that the Contracting Officer here has failed to issue a final decision on the Appellant's
    claim since August 31, 1993, has indeed become a procedural issue and has been appealed to the
    Board.  Board Rules, Rule 1(c).  Therefore, the Board considers the additional 60 days given to
    him for that purpose by this Decision and Order as more than reasonable under the rules.  Board
    Rules, Rule 1(d).