Docket No. VABCA-7214GPO

Department of Veterans Affairs Board of Contract Appeals

2005-1 B.C.A. (CCH) P32,829; 2004 VA BCA LEXIS 1

November 10, 2004



David Motekaitas, President, Far Western Graphics, Inc., Sunnyvale,
CA, for the Appellant.

Roy E. Potter, Esq., Trial Attorney, Washington, D.C., for the U.S.
Government Printing Office.



This appeal was originally docketed by the Government Printing Office
Board of Contract Appeals (GPOBCA) as GPOBCA No. 06-4 on April 28,
2004. The Public Printer subsequently decided to discontinue the
GPOBCA and, by Interagency Agreement, dated June 7, 2004, designated
this Board, the Department of Veterans Affairs Board of Contract
Appeals (VABCA), to hear appeals of final decisions by U.S. Government
Printing Office (GPO) Contracting Officers (CO) and the Board docketed
this appeal as VABCA-7214GPO on July 29, 2004. On review of the file
after docketing by the VABCA, we determined that there was evidence of
neither a claim nor a CO Final Decision in the file. Consequently, the
Board issued, sua sponte, an ORDER To SHOW CAUSE why this appeal
should not be dismissed for lack of jurisdiction. Appellant, Far
Western Graphics, Inc. (FWG) responded; the GPO did not respond.


The following are summarized relevant facts based on the Record, which
consists of the NOTICE OF APPEAL, the APPEAL FILE submitted by the
GPO, correspondence from the parties and FWG's RESPONSE to the ORDER

FWG was awarded GPO Purchase Order 70880 for the printing of the
"Columbia Accident Investigation Board Report" for the National
Aeronautical and Space Administration (NASA) on December 1, 2003 for a
price of $ 247,777.

Following some necessary changes to the Contract requirements
increasing the Contract price, on December 10, 2004, NASA informed GPO
that the Contract price now exceeded its budget and requested that the
Contract be terminated for convenience. Although GPO's the de jure
termination of the contract for termination was effective March 12,
2004, the de facto termination for convenience was implemented shortly
after the NASA request.

Following notification from the CO that the Contract was terminated
Form 911) totaling $ 105,962.80 on January 9, 2004. The CO evaluated
FWG's proposal and negotiated with FWG. The parties were unable to
reach agreement with the CO being fully aware that FWG adhered to its
position that it was entitled to the full amount stated in its
termination settlement proposal. The CO subsequently presented
Contract Modification No. 1, a supplemental agreement, to FWG for
signature with text as follows:

You are notified that your Purchase Order 70880, Jacket 302-301 is
hereby terminated for the convenience of the Government, in accordance
with the provisions of the U.S. Government Printing Office Contract
Terms. This termination is effective March 12, 2004.

The settlement of this termination shall be $ 71,729.00 which
represents a final decision by the contracting officer on all work
completed, paper and plates purchased, and storage. You will be
notified by the U.S. Government Printing Office, Plant Operations,
Paper and Specialized Procurement Branch of the disposition on the
paper and plates upon their acquisition.

This agreement constitutes full and complete settlement of the amount
due the contractor by reason of the complete termination of work under
this contract and of all other claims and liabilities of the
contractor and the GPO under this contract.

FWG executed Modification No. 1 on March 12, 2004 with the following
reservation handwritten on the Modification:
This letter is signed under protest. Far Western Graphics needs this
money, and is looking at this contract modification as a partial
payment under the contract. This letter superseads [sic] any and all
other paperwork before the letter.


Our jurisdiction is delimited by the terms of the Contract and the
regulations enacted by the GPO governing its procurements. Idaho
Blueprint and Supply Co., Inc., GPOBCA 27-99, 1999 WL 1581235
(December 28, 1999). For us to have jurisdiction over this appeal
there must be both a proper claim by FWG and a CO final decision. The
GPO disputes and appeals provisions mirror the CONTRACT DISPUTES ACT
(CDA) and Federal Acquisition Regulation provisions applicable to
executive agency procurement contracts. The CO final decision is as
much a "linchpin" of the appeals process in GPO as it is in the
executive agencies and a proper claim and final decision are
absolutely essential for our jurisdiction here.  GRAPHICDATA, Inc.,
GPOBCA 35-94, 1994 WL 837426 (December 21, 1994); citing Paragon
Energy Corporation v. United States, 645 F.2d. 966 (Ct. Cl. 1981).
Here we have a circumstance where FWG executed a bi-lateral contract
modification formally terminating the contract for convenience and,
ostensibly, settling the amount due FWG resulting from the
termination. The amount stated in Modification 1 due FWG was $
34,233.80 less than FWG claimed in its termination settlement
proposal. By its terms, Modification 1 is the CO's "final decision" on
FWG's settlement proposal.

Under James M. Ellett Construction Company, Inc. v. United States, 93
F.3d 1537 (Fed. Cir. 1996), a termination settlement proposal is not a
"claim" or a "request for decision", both prerequisites for an appeal
over which we could exercise jurisdiction, when initially submitted.
However, the Ellett Court recognized that a termination settlement
proposal can ripen into a claim when the parties are unable to reach

In this case, the parties were negotiating the amount of the
termination for convenience settlement and reached an impasse on the
amount due FWG. Under the Ellett rubric, the termination settlement
proposal was transmuted to a claim at that point. The CO reached a
"final decision" as evidenced by Modification 1 and transmitted the
final decision to FWG by sending an executed Modification. This, in
substance but not form, was simply a settlement of the proposal by
"determination" as contemplated in the GPO PRINTING PROCUREMENT
REGULATION (GPPR), GPO Publication 305.3, and the Contract TERMINATION
GPPR explicitly recognize the right of a contractor to appeal such
settlements of termination for convenience settlement proposals by
determination. (GPRR Chapter XIV, Section 3(j)(7))

Since the CO was fully aware that FWG contested the $ 71,729 amount
allowed by GPO and claimed the full $ 105,962.80 and, with that
knowledge, issued what he considered his "final decision" on that
claim, the Idaho Blueprint test has been met and we have jurisdiction
over this appeal.


For the foregoing reasons, we have jurisdiction over the Appeal of Far
Western Graphics, Inc., under U.S. Government Printing Office Purchase
Order No. 70880, VABCA-7214GPO. The parties will be informed of the
schedule for further processing of this appeal.

DATE: November 10, 2004

Administrative Judge
Panel Chairman

We Concur:

Chief Administrative Judge

Administrative Judge