Appeal dated November 20, 1980
Appeal postmarked December 2, 1980
Decision dated September 3, 1981

THOMAS O. MAGNETTI, Chairman, Panel 80-13


This is a decision on an appeal filed by National Typesetting,
Incorporated (hereafter referred to as the contractor).  The
appeal disputes the final decision of the Contracting Office
terminating the contractor for default.  Disgruntled contractors
may appeal such default termination decisions under and in
accordance with Article 3 (the "Disputes" clause) of the
Government Printing Office (hereafter the GPO) Contract Terms No.
1, GPO Publication 310.2, revised August 1, 1979.  This document
was incorporated by reference into the specifications of the
contract.  Exhibit 1 of the Appeal File (hereafter A.F.).  The
contract required the contractor to produce composition and
proofs from manuscript copy furnished by the Government.  The
final decision of the Contracting Officer held that the
contractor failed to perform the job according to the schedule.

The jurisdiction of the Board of Contract Appeals has been
established by GPO Instruction 110.10A, titled "Board of Contract
Appeals Rules of Practice and Procedure".  In accordance with
that instruction, this decision is based upon the record. The
record consists of the documents and exhibits that constitute the
Appeal File.


On July 30, 1980, in accordance with the standard GPO award
procedures, Purchase Order No. 14480 for the procurement of one
set of page reproduction proofs for the "Federal Maritime
Commission Reports", Volume 21, July 1978 to July 1979 was
awarded to the contractor.  Exhibit 6, A.F.  The contract
required the contractor to prepare the manuscript for composition
and deliver the camera ready reproduction page proofs by August
12, 1980.  The manuscript copy was furnished to the

contractor along with the Purchase Order on July 30, 1980.  On
August 11th and 12th the contractor called the GPO to determine
what kind of proofs were due on August 12, 1980, and to ascertain
what would happen if the proofs were late.  Exhibits 7, 8 and 10,
A.F.  The GPO informed the contractor what was required and
notified it that it was to proceed with the job. Id.  GPO
Printing Specialist Daniel Clurman twice attempted to reach the
contractor late in the afternoon of August 12, 1980, to obtain an
estimate of when the proofs would be complete.  Exhibits 8 and
10, A.F.  There was apparently no answer at the contractor's
plant.  Id.  As the delivery date was August 12, 1980, and the
Government would not determine whether performance would be
forthcoming, it sent the contractor a show cause notice dated
August 13, 1980.  Exhibits 9 and 10, A.F.  The contractor was
informed in this notice that, as it failed to perform the
schedule requirements of the contract, the Government was
considering terminating the contract.  By letter dated August 25,
1980, the Government terminated the contract for default because
of the contractor's failure to perform the job according to
schedule.  Exhibit 11, A.F.  The right to default contractors in
cases such as this is derived from Article 17, titled "Default"
of GPO Contract Terms No. 1, supra.  That clause permits the
Government to immediately terminate a contract if the contractor
fails to make delivery of the supplies within the time specified
by the contract.  Aargus Poly Bag, GSBCA No. 4314, 76-2 BCA 

The contractor's appeal of this decision, dated November 20,
1980, challenged the Contracting Officer's final decision
to.default the contractor as being improper.  Exhibit 13, A.F.
It alleged that it received the show cause notice on August 27,
1980, two days after it received the termination notice and
because of this, the default notification was improper.

However, the threshold question that must be answered before the
merits of the contractor's appeal can be considered is whether
this appeal was filed in a timely fashion.  Although the
contractor's appeal letter was dated November 20th, the postmark
on the letter was December 2, 1980, and the letter was received
at the GPO on December 3, 1980.  Article 3 of the Term Contract,
which governs the dispute process, states in part that:

The decision of the Contracting Officer shall be final and
conclusive unless, within 90 days from the date of receipt of
such copy, the contractor mails or otherwise furnishes to the
Contracting Officer a written appeal addressed to the Public

By the contractor's own admission, it received the final decision
on August 25, 1980.  Exhibit 13, A.F.  The 90-day period in which
the contractor had to appeal expired on November 22, 1980.  The
appeal letter was postmarked December 2, 1980, 10 days after the
lapse of the appeal period.

The Government moved on January 16, 1981, to dismiss the appeal
because it was untimely.  Disregarding the date on the
contractor's appeal letter, the Government contended that the
postmark should govern as proof of when the appeal was prepared
and mailed.  Therefore, the appeal period had lapsed, the
decision of the Contracting Officer was final and conclusive, and
the appeal should be dismissed.


It is unnecessary for this Board to examine the merits of this
appeal as it now grants the Government's motion to dismiss on the
grounds that the appeal was untimely.

The language of Article 3, supra, provides that the decisions of
Contracting Officers are final and conclusive unless an appeal is
filed with the Public Printer within ninety days of receipt of
the final decision.  In the instant case, the contractor received
written notice of the termination on August 25, 1980.  Its appeal
letter was postmarked December 2, 1980, and not received at the
GPO until December 3, 1980.  Exhibit 15, A.F.  Exactly 99 days
had elapsed from the contractor's notification of the decision to
the GPO's receipt of the letter of appeal.  This lapse of time
marks this appeal as untimely.  Several cases have found that
expiration of the appeal period terminates all right to appeal.
Zisken Construction Co., ASBCA No. 6281, 60-2 BCA  2,706;
Guiliani Contracting Co., GSBCA No. 1060, 1964 BCA  4,137; Unico
Industrial Service & Engineering, ASBCA No. 22845, 78-2 BCA 

The contractor might argue that the date on the appeal letter
(November 20, 1980) should take precedence to the date of the
postmark.  However, in cases where appeal letters are mailed, the
determination whether an appeal is timely is made by recourse to
the postmark on the appeal letter.  Guiliani Contracting Co.,
supra; Electro Magnetic Processes,  Inc., ASBCA 22857, 78-2 BCA 
13,518; Pleasant Logging & Milling Co., AGBCA 79-172, 80-1 BCA 
14,290.  A conflict in mailing dates is resolved in favor of the
U.S. Postal Service's mark because there is a presumption of
regularity in the performance of the official duties of the
postal employees.  Since there has been no evidence to rebut this
presumption, this Board rules that the appeal letter was received
at the GPO after the appeal period had lapsed, and therefore the
appeal was untimely filed.


Based upon.the above reasoning, the Board grants the Government's
Motion to Dismiss and dismisses the contractor's appeal in its
entirety for failing to appeal in a timely fashion the final
decision of the Contracting Officer which had terminated this
contract for default.