The Appeal of Treasure Chest/Phillips Litho -- Joint Venture
Docket No. GPO BCA 32-90
February 11. 1991

Stuart M. Foss, Administrative Law Judge



   By letter dated October 1, 1990, Treasure Chest/Phillips
   Litho-Joint Venture, 15354 Stafford Street, P. 0. Box 3137,
   City of Industry, CA 91744 (TCPL-JV), noted an appeal from the
   July 9, 1990, final decision of Jack G.  Marken, Contracting
   Officer (Contracting Officer), U.S.  Government Printing
   Office (GPO), Washington, DC (GPO or Respondent), denying the
   TCPL-JV's claim for additional compensation under its contract
   covered by Jacket Nos.  245-017 and 245-020.  The notice of
   appeal was submitted on a Treasure Chest (TC) letterhead and
   was signed by Phil Phillips, Jr.  (Phillips), President of
   Phillips Litho (PL), on behalf of the TCPL-JV.  Subsequently,
   by letter dated November 15, 1990, the TCPL-JV filed a
   Complaint with the Board detailing the matters at issue.  See,
GPO Instruction 110.12, Subject: Board of Contract Appeals Rules
of Practice and Procedure, dated September 17, 1984, Rule 6(a)
(Board Rules).

   On November 14, 1990, Respondent filed a Motion to Dismiss
   (Motion) the appeal on the ground that Phillips had no
   authority to note an appeal on behalf of the TCPL-JV.
   Respondent relies on Sections III and V of the Joint Venture
   Agreement (JVA), dated July 25, 1989, for the proposition that
   TC alone had the authority to control, bind, or act for the
   TCPL-JV. 1  Basically, Respondent argues that Phillips is not
   an employee or officer of TC, and hence, under the terms of
   the JVA he has no authority to act for the TCPL-JV.  In other
   words, since the Board's rules require that a notice of appeal
   be signed by "the appellant or the appellant's
   representative," under the terms of the JVA only an officer or
   designated agent of TC could initiate the appeal; as President
   of PL, Phillips had no such authority.  Board Rules, Rule 2.

   On December 14, 1990, the TCPL-JV responded to the Motion and
   contested Respondent's assertion that Phillips was without
   authority to submit the notice of appeal to the Board.  The
   thrust of the TCPL-JV's argument is that when read in its
   entirety, Section III of the JVA allowed TC to delegate
   responsibilities under the contract to each party of the joint
   venture, and since the claim at issue arose out of PL's
   assigned role, the co-venturers mutually agreed that PL would
   pursue the appeal to the

Board. 2  Attached to the TCPL-JV's response was an Affidavit
(Affidavit) from Vina Organ (Organ), TC's Director of Government
Printing, affirming PL's authority to act on behalf of the joint
venture in this matter.


   The sole issue to be decided is whether or not Phillips'
   signature on the notice of appeal made it defective, thus
   depriving the Board of jurisdiction in this case.  Clearly, if
   Respondent's Motion is granted, then the subsequent Complaint
   would be untimely.  Board Rules. Rule l.(a).


   The Board's Rules provide simply that a "notice of appeal
   should be signed by the appellant or by the appellant's duly
   authorized representative or attorney." 3  Board Rules, Rule
   2.  The Board's Rules also define the term "Appellant" as "the
   contractor who appeals."  Board Rules.  VI.B.2.  Since only
   the TCPL-JV fits

   As Respondent observes, joint ventures are legal entities
   eligible for award of government contracts.  See, e.g., T.V.
   Travel, Inc., et al., 65 Comp. Gen. 109, 115 (1985).
   Generally, a joint venture has many of the elements of the
   traditional partnership in that either of the co-venturers may
   bind the enterprise by contracts which are within the scope of
   the business enterprise, and within that scope any one of the
   parties is authorized to act for the others.  See, e.g.,The
   Boeing Company, ASBCA, 90-2 BCA  22,769 (citing, Lentz v.
   United States, 346 F.2d 570, 575 (Ct.Cl. 1965)).  However, an
   individual co-venturer may not sue in his own name to enforce
   a liability owed a joint venture. Id., (citing, Pine Products
   Corp. v. United States, 15 Cl.Ct. 11 (1988)).  Also, as
   Respondent correctly states, the rights and authority of the
   co-venturers are strictly governed by the terms of the joint
   venture agreement.

   In the context of this particular business undertaking, the
   JVA gave TC the responsibility for the overall conduct of the
   joint venture's affairs.  The JVA also apportioned the duties
   under the contract between TC and PL, making TC responsible
   for administrative support and PL for the operational aspects
   of the joint venture.  It is clear, however, that by allowing
   TC to delegate "the responsibilities to accomplish the joint
   venture operation," the JVA itself provided sufficient
   flexibility for the TCPL-JV to tailor the co-venturers' roles
   as future needs warranted; i.e, there is nothing in the JVA to
   suggest that PL was only to "print, trim, box and ship" and do
   nothing more.

   The Board is persuaded by the evidence before it that the JVA
   was, in fact, followed in this case.  First, the notice of
   appeal is in response to the Contracting Officer's letter of
   July 9, 1990, to the TCPL-JV denying its claim for extra
   compensation.  Second, the notice of appeal was on TC
   stationery, and Phillips' signature block tells us that he was
   acting for the TCPL-JV, not in his individual capacity as
   President of PL.  Third, the notice of appeal uses phraseology
   which clearly indicates that Phillips was speaking for the
   contracting joint venture (TCPL-JV), and not merely for one of
   its component elements (PL):

". . . we wish to exercise our right to appeal, . . .

"The purpose of this letter is to notify the Board of our appeal
and to request that we be instructed as to whom we need to
contact to proceed with the appeal process [Emphasis added]." 4

Finally, in the Affidavit attached to TCPL-JV's response to the
Motion, Organ, TC's Director of Government Printing, states, in
pertinent part:

"The Notice of Appeal dated October 1, 1990 to the GPO signed by
Phil Phillips, Jr. on behalf of the Treasure Chest/Phillips Litho
Joint Venture was given by Mr. Phillips under the authority
extended to him pursuant to the terms of the Joint Venture

Affidavit,  8.

   While the Affidavit was submitted to the Board after the
   Respondent questioned Phillips' authority to sign the notice
   of appeal, the Board observes that such post-challenge
   evidence of requisite authority is generally allowed in the
   field of procurement law.  See. e.g., T.V. Travel, Inc., et
   al., supra, 65 Comp. Gen. at 115 (citing, Marine Power and
   Equipment Company, 62 Comp. Gen. 75 (1982), 82 CPD  514;
   Sevick-Thomas Builders and Engineers Corporation, B-215678,
   July 30, 1984, 84-2 CPD  128 (after bid opening); Cambridge
   Marine Industries, Inc., 61 Comp. Gen. 187, 189 (1981), 81-2
   CPD  517 (after closing date for receipt of proposals or best
   and final offers)).

   As we see the situation before us, Phillips, in keeping with
   the terms of the JVA, correctly obtained TC's consent and
   authorization to file the contested notice of appeal with the
   Board.  Once that consent and authorization was obtained,
   Phillips became the duly authorized representative for the
   joint venture contractor, TCPL-JV, in this matter for that
   purpose. Cf., The Boeing Company, supra, (citing, Eastern Car
   Construction Company, ASBCA, 86-2 BCA  18,909).


   For the foregoing reasons, the Board DENIES the Respondent's
   Motion, and ORDERS it to prepare the appropriate appeal file
   and submit it to the Board within 30 days from the receipt of
   this Decision.  Board Rules, Rule 4.

It is so Ordered.

1 Section III of the JVA provides: "The parties agree that
Treasure chest shall have total control of all phases of the
joint venture operation.  This control includes the authority to
delegate to each party the responsibilities to accomplish the
joint venture operation." Section V provides: "Treasure Chest
shall provide invoices to the U.S. Government for all phases of
the joint venture operation."

2  Section IV divides joint venture responsibilities between TC
and PL.  Basically, PL performed the operational phases of the
contract (printing, trimming, boxing and shipping), while TC was
responsible for administrative support (supplying paper, quality
control, bid preparation and invoicing).

3 In contrast, GPO's Printing Procurement Regulation is more
detailed concerning who may file an appeal with the Board: "The
appeal should be signed by the appellant, or by an officer of the
appellant corporation or a member of the appellant firm, or by
the contractor's duly authorized representative or attorney."
See, GPO Printing Procurement Regulations. GPO Publication 305.3,
(as revised September 1, 1988), Chapter X (Contract Claims and
Litigation), Section 1,  5.b. the meaning of "Appellant" under
the Board's Rules, disposition of the Motion must turn on whether
Phillips was the TCPL-JV's "duly authorized representative" for
the purpose of filing the notice of appeal.  The Board believes
that under the circumstances of this case, Phillips was, in fact,
"duly authorized" to initiate an appeal on behalf of the TCPL-JV.

4   The common definition of the pronoun "we" is as a word "used
to refer to the speaker and another or others." Webster's II New
Riverside Dictionary, 1307 (1984). The Board sees nothing in the
notice of appeal to warrant the conclusion that Phillips was
using "we" in its "imperial" sense; i.e., as a substitute for
"I." The adjective "our" simply means "of or pertaining to us,
ourself, or ourselves, especially as possessors or possessor,
agents or agent, or object of objects of an action; e.g., our
[appeal]". Id., at 833.