In the Matter of          )
the Appeal of             )
GRAPHICDATA, INC.         )   Docket No. GPO BCA 35-94
Program D306-S            )
Purchase Order 94586      )


   By Notice of Appeal dated October 21, 1994, GraphicData, Inc.
   (Appellant or Contractor), alleging that Contracting Officer
   Richard Weiss has failed to issue a final decision on an
   equitable adjustment claim it filed with the U.S. Government
   Printing Office (Respondent or GPO or Government) within a
   reasonable time, asks the Board to assert jurisdiction over
   the matter.1  GPO Instruction 110.12, Subject: Board of
   Contract Appeals Rules of Practice and Procedure, dated
   September 17, 1984, Rule 1(c) (Board Rules).2  The Appellant
   attached its Complaint to its Notice of Appeal. Board Rules,
   Rules 2 and 6.

   The Notice of Appeal and accompanying Complaint were assigned
   docket number GPO BCA 35-95 by the Clerk of the Board on
   October 27, 1994, and copies were sent to the Respondent the
   same day.3  Board Rules, Rule 3.  However, on November 4,
   1994, before the Board could prepare and serve its official
   docketing letter on the Contractor, the Respondent filed a
   document entitled, "Motion to Dismiss" (Motion) asking the
   Board to dismiss the appeal on the ground that it is premature
   because the Contracting Officer has not had a reasonable
   amount of time to dispose of the claim.  See, Motion, pp. 1,
   2-3.  In that regard, Counsel for GPO stated that consistent
   with the Board's preference for audited claims,  see, Motion,
   p. 2 (citing, Banta Company, GPO BCA 03-91 (November 15,
   1993), Sl. op. at 57; R.C. Swanson Printing and Typesetting
   Company, GPO BCA 15-90, Decision on Motion for Reconsideration
   and Order (December 20, 1993), Sl. op. at 14), the Contracting
   Officer had referred the matter to GPO's Office of the
   Inspector General (OIG) for an audit, and until that
   investigation was finished, there was no basis for an appeal
   to the Board, see, Motion, pp. 2-3 (citing, Cosmo Construction
   Company, IBCA No. 412, 64 BCA  4,059).  Since the Contracting
   Officer was entitled to a reasonable amount of time under Rule
   1(c) of the Board Rules to issue a final decision on a claim
   of this magnitude,4 the Respondent asked the Board to dismiss
   the appeal.5  See, Motion, p. 3.

   Thereafter, on November 8, 1994, Counsel for the Appellant
   filed the Contractor's "Opposition to Government's Motion to
   Dismiss and Request for Telephonic Conference" (Opposition).
   In its Opposition, the Appellant argued, inter alia, that: (1)
   the appeal fully complied with Rule 1(b) of the Board Rules,
   which allows a contractor to seek Board redress from the
   failure of a contracting officer to issue a final decision
   once the claim has been in the contracting officer's hands for
   60 days or a reasonable time (the Appellant says that should
   have been less than 60 days under the circumstances here)
   (citing, EPCo Associates, GPO BCA 26-93 (November 18, 1993);
   (2) the Contracting Officer waited an unreasonable length of
   time to order an audit of the claim, and in any event an
   audit, timely or not, does not offset the Contracting
   Officer's failure to issue a final decision (citing, Dewey
   Electronics Corporation, DOTCAB No. 1224, 82-2 BCA  15,828;
   Inter-con Security Systems, Inc., ASBCA No. 45749, 93-3 BCA 
   26,061); (3) by analogy to the Contract Disputes Act of 1978
   (CDA), 41 U.S.C.  601 et seq., in this case the Contracting
   Officer not only failed to make a timely final decision, but
   he also refused to establish a date certain for ruling on the
   claim, see 41 U.S.C.  605(c)(2)(A),(B); (4) on the other
   hand, even if the Board finds that the appeal is premature, it
   should continue the appeal but stay further proceedings
   pending issuance of a final decision by the Contracting
   Officer, see Board Rules, Rule 1(d); and (5) a telephone
   conference between the parties and the Board would be
   appropriate in order to discuss the date by which the
   Contracting Officer would issue a final decision.  See,
   Opposition, pp. 2, 5-8.

   On November 25, 1994, Counsel for GPO submitted a document
   entitled "Respondent's Reply to Appellant's Response to Motion
   to Dismiss" (Reply) to the Board.  The Reply served two
   purposes, namely, it placed on the record: (1) the
   Respondent's disagreement with the Appellant's version of the
   date on which the claim was forwarded to the OIG for an
   audit;6 and (2) GPO's position not only with respect to the
   meaning of the Board's opinion in EPCo Associates, supra, but
   also why that decision did not apply to the facts here.  See,
   Reply, pp. 1-2.  Accordingly, the Respondent renewed its
   contention that the appeal was premature and should be
   dismissed in order to give the Contracting Officer time to
   render a reasoned decision based on the results of the OIG
   audit.7  See, Reply, p. 3.

   The Board has carefully weighed the procedural arguments of
   the parties against the requirements of the Board Rules, and
   has concluded that the Appellant's request for a conference is
   appropriate under the circumstances presented here.  Board
   Rules, Rule 5.

   As a rule, an appeal is initiated with the Board when a
   contractor notes a disagreement with a contracting officer's
   final decision.  EPCo Associates, supra, Sl. op. at 3.  See,
   Board Rules, Rule 1(a).  Indeed, in most cases the Board's
   jurisdiction is predicated on a contractor first submitting
   its claim to the contracting officer for a decision.  See,
   Shepard Printing, GPO BCA 37-92 (January 28, 1994), Sl. op.
   32.  Accord, Associated Contract Specialties Corporation,
   ASBCA No. 37437, 90-3 BCA  23,258; Spruill
   Realty/Construction Company, ASBCA No. 40477, 90-3 BCA 
   23,255.  Thus, the underlying precepts of the Board Rules are
   essentially the same as those of the CDA, which places great
   emphasis on the role of a contracting officer in resolving
   contract claims, makes his/her decision an indispensable
   precondition to the assertion of a contract appeal, and
   characterizes that final decision as "the linchpin" for the
   contract appeal process.  Paragon Energy Corporation v. United
   States, 645 F.2d 966, 967 (Ct.Cl. 1981).  See also,
   Continental Products, Inc., ASBCA No. 45193, 93-2 BCA 
   25,879, at 128,740; John C. Grimberg Company, Inc., ASBCA No.
   42695, 91-3 BCA  24,074, at 120,521 (The [CDA] does not
   authorize an impatient contractor to jump-start the litigation
   process); DHR, Incorporated, EBCA No. 401-12-87, 88-1 BCA 
   20,451, at 103,430.
   To the extent that the Rule 1 allows a contracting officer 60
   days to issue a final decision for claims of $50,000 or less,
   or a "reasonable time" for claims in excess of $50,000, the
   Board Rules are no different than the requirements of the
   CDA.8  Compare, Board Rules, Rules 1(b) and 1(c) with 41
   U.S.C.  605(c)(1),(3).  See also, Robert Augustine & Sons,
   Inc., VABCA No. 3079, 90-1 BCA  22,506 (claims of $50,000 or
   less); Executive Elevator Service, Inc., VABCA No. 2741, 88-3
   BCA  20,964 (claims in excess of $50,000).  A "reasonable
   time" is determined under the CDA by taking into account such
   factors as the size and complexity of the claim and the
   adequacy in support of the claim provided by the contractor.
   41 U.S.C.  605(c)(3).  See, Roebbelen Engineering, Inc., DOT
   BCA No. 1814, 87-1 BCA  98,628; Universal Contracting, DOT
   CAB Nos. 1565, 1600, 1601, 85-3 BCA  18,326.  There is no
   comparable definition of "reasonable time" in the Board Rules,
   although the similarity between those regulations and the CDA
   with respect to other relevant language, as well as their
   shared procedural philosophy, allows the conclusion that the
   CDA's definition is implied in the Board Rules.

   Simply put, the procedural issue presented here is does the
   Board have jurisdiction to decide the Appellant's claim
   because the Contracting Officer has exceeded the time allowed
   to issue a final decision, or has otherwise unduly delayed his
   decision?9  See, DHR, Incorporated, supra, 88-1 BCA  20,451;
   Computer Systems & Resources, Inc., GSBCA No. 8434-TD, 86-3
   BCA  19,017.  Stated otherwise, the question is should the
   appeal be dismissed without prejudice at this time on the
   ground that it is premature,10 because the Contracting Officer
   has not had a "reasonable time" to issue his final decision on
   the Contractor's claim?11  See, John C. Grimberg Company,
   Inc., supra, 91-3 BCA  24,074; Executive Elevator Service,
   Inc., supra, 88-3 BCA  20,964; Roebbelen Engineering, Inc.,
   supra, 87-1 BCA  98,628.  A review of the Board's previous
   decisions discloses that it has never been faced with
   precisely this question before.12

   It has been said that jurisdiction and prematurity are
   distinguishable concepts, primarily because the former depends
   on the mere passage of time,13 while the latter invests a
   great deal of discretion in the deciding official to determine
   how much time is reasonable under the particular circumstances
   of the case, a matter on which reasonable jurists may, and
   probably will, differ.  See, Roebbelen Engineering, Inc.,
   supra, 87-1 BCA at 98,630.  Regardless, the only procedure
   available under the Board Rules to decide the prematurity
   issue presented here is the one established to dispose of
   jurisdictional challenges.  That procedure provides, in
   pertinent part:

        Any motion addressed to the jurisdiction of the Board
        shall be promptly filed.  Hearing on motion shall be
        afforded on application of either party.  However, the
        Board may defer its decision on the motion pending
        hearing on both the merits and the motion. . . .

Board Rules, Rule 5.  [Emphasis added.]  The Appellant's request
in this case for a conference to discuss the date by which the
Contracting Officer would issue a final decision, see,
Opposition, p. 8, is tantamount to a request for a hearing on the
Respondent's Motion.  In the Board's opinion, the Respondent's
Motion and the Appellant's Opposition have raised a threshold
jurisdictional issue, and it believes that a sound administration
of the rules in this appeal requires a hearing on that question
alone.  See, Graphic Image, Inc., GPO BCA 05-94, Order Scheduling
Hearing (April 19, 1994), Sl. op. at 4.

   ACCORDINGLY, a hearing has been scheduled for 10:00 a.m.
   (EST), on Tuesday, January 3, 1995, in the Board's Conference
   Room (Room A-651), at the U.S. Government Printing Office, 732
   North Capitol Street, NW., Washington, DC 20401.

It is so Ordered.

December 21, 1994                  STUART M. FOSS
                                   Administrative Judge

    1 From the sparse documentation in the appeal file, the Board
    understands that the Appellant's claim amounts to
    $532,092.74.  See, Appellant's Complaint, dated October 21,
    1994,  5.
    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 decision."
    3 On October 27, 1994, and October 28, 1994, respectively,
    Counsel for the Appellant telephoned the Board and was given
    the docket number of the appeal, and was told that the
    documents had been served on the Respondent by the Board.  At
    the same time, Counsel for the Appellant was informed that
    his request to have this procedural matter processed under
    the optional Small Claims (Expedited) procedure for claims of
    $10,000.00 or less, on the ground that no dollar amount was
    involved, see Notice of Appeal, would not be considered.
    Board Rules, Rules 12.1(a) and 12.2.  Simply stated, while
    the Board admired Counsel's creative interpretation of the
    rules, the Small Claims (Expedited) procedure does not apply
    to this preliminary stage of the appeals process or to the
    procedural issue raised.
    4 Rule 1(b) allows a GPO contracting officer 60 days to issue
    a final decision on claims of $50,000.00 or less.  Board
    Rules, Rule 1(b).  Since the claim in this case is more than
    10 times that amount, and is governed by Rule 1(c) which
    speaks in terms of a contracting officer's decision being
    issued within a "reasonable time", the Respondent believes
    that it was unrealistic for the Appellant to expect such a
    decision within 60 days, and hence the appeal itself was
    5 Alternatively, since the OIG anticipated completion of its
    audit by the end of January 1995, see, Motion, p. 3, fn. 2,
    Counsel for GPO suggested that the appeal should be dismissed
    in accordance with the policy announced by the Board in
    Universal Printing Company until the audit is completed.
    Motion, p. 3 (citing, Universal Printing Company, GPO BCA
    9-90 (June 22, 1994)).  In Universal Printing Company, the
    Board was faced with a contractor's claim which was
    "practically undecipherable", and while the age of the case
    militated in favor of deciding the dispute on the record as
    it existed, the Board stated that: ". . . in the future, if
    in the judgment of the Board the clarification of a claim on
    appeal is necessary in order to resolve a dispute, it will
    remand the matter to the Contracting Officer, through
    Government Counsel, with instructions to have the claim
    audited, and will dismiss the appeal without prejudice until
    the audit is complete. [Footnote omitted.]  See, National
    Council of Negro Women, LBCA No. 84-BCA-18, 84-2 BCA 
    17,436, at 86,827.  The Board is confident that, in the long
    run, this new policy will buttress a major purpose of the
    Board's preliminary procedures, namely, obtaining fully
    disclosure of relevant and material facts."  See, Universal
    Printing Company, supra, Sl. op. at 30.  The situation in
    Universal Printing Company is clearly distinguishable from
    the instant appeal; hence, the announced policy is
    inapplicable here.  In Universal Printing Company, although
    the Board was not happy with the record before it,
    nonetheless it had extensive documentation from the
    contractor concerning the claim, a final decision from the
    contracting officer, and it was well aware of the respective
    positions of the parties on the claim from the discussions at
    the prehearing conference and the briefs they subsequently
    filed.  Here, by contrast, the parties have barely stepped
    across the Board's threshold in developing a record.  In
    short, this appeal is not what the Board had in mind when it
    announced its policy in Universal Printing Company.
    6 The Appellant claims that an audit was not requested by the
    Contracting Officer until October 11, 1994.  See, Opposition,
    p. 5,  8.  The Government, on the other hand, contends it
    asked the OIG to audit the claim on September 21, 1994, see,
    Reply, p. 1 (citing, Declaration of Richard Weiss, dated
    November 23, 1994).  The auditor assigned to the claim, Edwin
    L. Hawse, states that he received the Contracting Officer's
    audit request on or about September 27, 1994.  See, Reply, p.
    1 (citing, Declaration of Edwin Hawse, dated November 23,
    7 In that regard, Counsel for GPO advises the Board that: (a)
    the OIG forecasts that its audit will be completed by the end
    of January 1995, see, Motion, p. 3, fn. 2; and (b) the
    Contracting Officer will provide a final decision on the
    claim within two weeks of his receipt of the final audit
    report, see, Reply, p. 3, fn. 1.
    8 There are, however, two significant procedural differences
    between the Board Rules and the CDA in this area which the
    Board cannot ignore.  First, under the CDA a contracting
    officer's final decision which may be appealed pursuant to 41
    U.S.C.  606, may be an actual decision or a "deemed denial"
    decision; i.e., one imputed from the failure of the
    contracting officer to issue a decision with the "period
    required", see, 41 U.S.C.  605(c)(5).  See, e.g., Winston
    Corporation, ASBCA No. 40591, 92-3 BCA  25,213; Melvin R.
    Kessler, PSBCA No. 2820, 91-1 BCA  23,511; Central
    Manufacturing Corporation, ASBCA No. 39324, 90-2 BCA 
    22,885; CBI Na-Con, Inc., ASBCA No. 37972, 89-2 BCA  21,728.
    The Board Rules do not provide for "deemed denial" decisions
    as the basis for jurisdiction.  See, EPCo Associates, supra,
    Sl. op. at 3, fn. 4.  Second, within the 60-day decision
    period the CDA allows a contracting officer to either: (a)
    issue a decision; or (b) notify the contractor of the time
    within which a decision will be issued.  See, Cessna Aircraft
    Co., ASBCA No. 43196, 92-1 BCA  24,425, at 121,909; John C.
    Grimberg Company, Inc., supra, 91-3 BCA at 120,520; Robert
    Augustine & Sons, Inc., supra, 90-1 BCA at 112,972 (the
    contracting officer's notification must be based on a "good
    faith" estimate of the time within which a decision will be
    issued).  See, 41 U.S.C.  605(c)(2)(A),(B).  There is
    nothing in Rule 1 of the Board Rules, or in Chapter X of
    GPO's Printing Procurement Regulation, GPO Publication 305.3
    (Rev. 10-90), which applies to the processing of claims,
    comparable to the "notification" provision of the CDA (41
    U.S.C.  605(c)(2)(B)).
    9 It should be noted that even where jurisdiction is
    asserted, the Board has the same authority as its
    counterparts under the CDA to still direct the contracting
    officer to issue a decision and, at its option, stay further
    proceedings until that it accomplished.  Compare, Board
    Rules, Rule 1(d) with 41 U.S.C.  605(c)(4),(5).  See, EPCo
    Associates, supra, Sl. op. at 3-4.  Accord, DHR,
    Incorporated, supra, 88-1 BCA  20,451; Emerson Electric
    Company, ASBCA No. 31184, 86-2 BCA  18,979; Feinstein
    Construction Company, Inc., ASBCA No. 30519, 86-1 BCA 
    18,660; A.D. Roe Company, Inc., ASBCA No. 26078, 81-2 BCA 
    15,231.  Similarly, it is also well-settled that a
    contracting officer is not relieved from the obligation of
    issuing a final decision merely because the contractor has
    filed a premature appeal.  See, Rice King, ASBCA No. 43352,
    92-2 BCA  24,805; Atherton Construction, Inc., ASBCA No.
    41414, 91-1 BCA  23,635; ACS Construction Company, ASBCA No.
    36535, 89-1 BCA  21,406.
    10 Generally, contract appeals boards tend to see premature
    appeals as "unwise", see, Sierra Blanca, Inc., ASBCA No.
    30910, 85-3 BCA  18,440, at 92,653, and not an
    inconsequential matter to be regarded lightly, see, Emerson
    Electric Company, supra, 86-2 BCA at 95,856.  However, it is
    also the case that prematurity is not always fatal to the
    justiciability of an appeal.  See, Briggs Engineering and
    Testing Company, Inc. v. United States, 230 Ct.Cl. 828
    (1982); Monaco Enterprises, Inc., ASBCA No. 27423, 86-2 BCA 
    18,922; The Boeing Company, ASBCA No. 27396, 83-1 BCA 
    16,256; R.G. Robbins, Co., Inc., ASBCA No. 26521, 82-1 BCA 
    15,643.  See also, John C. Grimberg Company, Inc., supra,
    91-3 BCA at 120,520.  This is particularly true where despite
    the lack of a final decision, the facts indicate that no
    useful purpose would be served by suspending or dismissing
    the appeal and directing the contracting officer to issue a
    formal decision, especially if the record already contains
    the Government's expression of an opinion on the claim so
    that the matter has clearly crystallized into a dispute ripe
    for adjudication.  See, Emerson Electric Company, supra, 86-2
    BCA at 95,857; Fuel Storage Corporation, ASBCA No. 26994,
    83-1 BCA  16,418.
    11 If the Board in this appeal was faced with a claim of
    $50,000 or less, the issue could be decided by simple
    reference to the calendar and a brief arithmetical
    computation to see if more than 60 days had passed without a
    final decision by the Contracting Officer.  Board Rules, Rule
    1(b).   However, because the claim is for a greater amount, a
    more complex legal determination of what is a reasonable time
    under all the circumstances is required of the Board.
    12 Although instructive, the situation in EPCo Associates can
    be distinguished from this proceeding.  In that case, the
    parties came to the Board after the Federal Claims Court had
    dismissed the contractor's direct action suit because it had
    not exhausted its administrative remedies.  See, EPCo
    Associates v. United States, No. 93-309C (August 17, 1993).
    The appeal record showed: (a) the disputed claim was
    virtually identical to allegations in the complaint
    considered by the Court; (b) the contracting officer had been
    substantially involved in that civil matter and had
    throughout the case opposed the contractor's right to any
    recovery; and (c) the contracting officer was familiar with
    the substance of the claim.  Under these circumstances, the
    contractor believed that 30 days was more than sufficient
    time for the contracting officer to issue a final decision,
    particularly since the claim and the court complaint were
    substantially the same.  EPCo Associates, supra, Sl. op. at
    2.  In essence, because everyone involved in that proceeding
    knew the contracting officer's views, and it was clear to the
    Board that his decision would be a mere formality, it
    asserted jurisdiction over the appeal.  As the Board pointed
    out, while a final decision from the contracting officer is
    normally a prerequisite to an appeal, that "does not mean,
    however, that a contracting offcer can frustrate the appeals
    process by refusing to issue a final decision."  Id., at 3.
    On the other hand, for the sake of the record, the Board
    exercised its option under its rules and asked the
    contracting officer to provide it with a final decision,
    giving him 60 days to do so, and stayed further proceedings
    pending its receipt.  Id., at 3-4.  Board Rules, Rule 1(d).
    Accord, Emerson Electric Company, supra, 86-2 BCA  18,979
    (although the contractor's appeal was technically premature,
    the board took jurisdiction because the government had
    already expressed its position on the claim so that the
    matter was clearly ripe for adjudication).
    13 The Board's rules allow a contractor 90 days from the date
    of receipt of a contracting officer's final decision to file
    an appeal.  Board Rules, Rule 1(a).  This time limit is
    jurisdictional; i.e., an appeal filed more than 90 days after
    receipt of the contracting officer's final decision is
    generally not considered by the Board.  See, Ace Duplicating
    Company, GPO BCA 44-92 (February 1, 1993).  However, there is
    a critical distinction between the Board's practice and the
    90-day rule followed by Executive Branch boards under the
    CDA.  See, 41 U.S.C.  606.  In that regard, under the CDA
    the 90-day time limit is strictly construed because the right
    to appeal a contracting officer's decision is a waiver of
    sovereign immunity by the United States.  See, Elden-Rider,
    Inc., GSBCA No. 8643, 90-2 BCA  22,878; Avon C. Brown, Inc.,
    DOT CAB 1082, 80-1 BCA  14,399.  The Board normally applies
    its 90-day filing rule strictly as well.  See, Ace
    Duplicating Company, supra.  See also, Moore Business Forms &
    Systems Division, GPO BCA 3-86 (February 25, 1987).  But, the
    Board sees nothing in the legislative history of 44 U.S.C. 
    502 to indicate that by authorizing the Public Printer to
    contract out printing, binding, and blank-book work, Congress
    thereby also intended to waive the Government's sovereign
    immunity with respect to his settlement of contract claims
    against the United States.  See, The Wessel Company, Inc.,
    GPO BCA 8-90 (February 28, 1992), Sl. op. at 44.
    Accordingly, the Board believes there is a measure of
    flexibility in its 90-day rule, and it will exercise its
    discretion to allow an otherwise late appeal if good cause is
    shown for the delay.  See, e.g., McDonald & Eudy Printers,
    Inc., GPO BCA 06-91 (May 6, 1994) Sl. op. at 2, fn. 2.