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expiration of the appeal period. In requesting waiver of the time limit, appellant has the burden of proof and is not entitled to have the time limit waived unless it shows good cause of justifiable excuse for its failure to appeal within the time limit. Under these circumstances, the Board is required, under the guidelines set by the Court, to deny appellant's request for waiver of the time limit.
The Board's action culminating in the determination set out in the preceding paragraph is deemed to comply with the Court's remand order and dispose of appellant's request for waiver of untimeliness. However, the Board recognizes that it has not discussed or expressed any opinion on most of the arguments advanced by appellant in support to its request. In view of the likelihood of this Board rendered pursuant to the Court's remand order, and in view of the possibility that the Board may not have interpreted the Court's order in the manner intended by the Court, it is deemed appropriate for the Board to express itself below on the arguments presented by appellant's attorney at the 19 July 1973 hearing.
We regard the findings and conclusions in the Board's original decision rende red on 14 January 1970 (70-1 BCA par. 8076) and affirmed by the Court of Claims in its initial decision in Maney rendered on 21 January 1972 to the effect that: (1) the TCO's telegraphic decision was a valid and proper final decision of the contracting officer under the Disputes clause of the contract meeting the requirements of applicable regulations; (2) the telegraphic decision was received by appellant on 21 June 1969 so as to start the 30-day appeal period running on that date; and (3) appellant did not appeal until 31 days after it received such decision with the result that its appeal was untimely, as the "law of the case" not subject to review or modification by this Board. See The Rainier Company, Inc., ASBCA No. 3565, 69-2 BCA par. 8050.
The argument that the TCO did not have authority to render a decision under the Disputes clause was advanced for the first time at the 19 July 1973 hearing. The Board finds on examination of the ASPR provisions cited by appellant's attorney that they do not support his contentions that all authority to render decisions under the disputes clause had been delegated to the Aco. The Air Force Procurement Instruction (AFPI) has made a division of contracting officer authority between the PCO, the ACO and the TCO under which the TCO has been vested with contracting officer authority in connection with the termination of contracts, including the making of final decisions under the Disputes clause in connection therewith.
The Disputes clause provides that the contracting officer shall “mail or otherwise furnish" a copy of his final decision to the contractor. Undoubtedly the procedure customarily used by
contracting officers in mailing or otherwise furnishing a final decision to the contractor does not comply with statutory procedures governing the service of process. It has been held that the delivery to the contractor of a contracting officer's telegraphic decision constitutes the furnishing of a copy of the decision to the contractor so as to start the running of the 30-day appeal period. M. J. Johnson Aircraft Engineering Co., ASBCA No. 4794, 58-2 BCA par. 1926. We find no more reason for the delivery of a telegraphic decision being subject to the statutory requirements for the service of process than is the delivery of a decision mailed by the contracting officer.
At the 19 July 1973 hearing the Government trial attorney disputed facts alleged by appellant's attorney in support of his contentions that the contractor's delay in delivery of the contract items was due to excusable causes and that the Government had waived the delivery schedule, and he pointed out that there had been no hearing on the merits for the taking of evidence on these issues. It is doubtful at best that the facts alleged by appellant's attorney are sufficient to constitute excusable cause of delay. The Default clause de fines excusable delay as a delay beyond the control and without the fault or negligence of both the prime contractor and the subcontractor. In Bromi on, Inc., AS BCA No. 12075, 67-2 BCA par. 6543, the Board held that a delay in delivery caused by a delay in delivery of a component part by the sole source supplier of such part was not an excusable cause of delay under the Default clause when the sole source supplier's delay was not shown to be beyond his control and without his fault or negligence. On Wunderlich Act review, this decision was affirmed bay the Court of Claims in Bromion, Inc.
V. The United States, 188 Ct. ci. 31 (1969).
With reference to the claim of waiver of delivery schedule the Board held in General Products Corp., ASBCA No. 16658, 72-Ź BCA par. 9629, that there was no waiver of the delivery schedule when a delinquent contractor continued performance of the contract in reliance on his expectation that the PCO would follow the recommendation of the ACO that the contractor be granted an extension of the delivery schedule in consideration of an offered price reduction, as the contractor knew that the ACO lacked authority to accept the contractor's offer and extend the delivery schedule.
In this case it appears that the Government would have accepted the contractor's offer of a price reduction in consideration of an extension of the delivery schedule except for the fact that before the offer was accepted it was discovered that the Government no longer had a need for the supplies called for by the contract. It appears further that, after it was discovered that there was no longer a need for the supplies, the contract would have been
terminated for the convenience of the Government, except for the fact that, after investigation, the TCO de termined that the contractor was delinquent in deliveries without excusable cause so as to give the Government the right to terminate the contract for de fault. We are not aware of any principle of law which precludes any termination of a contract except for the convenience of the Government when it is determined that the Government no longer has a need for the supplies called for by the contract but the contractor is delinquent in deliveries without excusable cause. On the contrary, there are numerous decisions holding that the fact that the Government no longer has a need for the supplies called for by the contract is not as such a bar to a termination of a contract for de fault. Warner Manufacturing Corp., ASBCA No. 1427 (1953); Republic Foundry and Machinery Company,
ASBCA No. 2020 (1954); C. J. Casey & Company, ASBCA No. 3207, 57-1 BCA par. 1298; Skyway Clothing Corporation, ASBCA No. 3244, 56-2 BCA Par. 1120; Gilmore Steel and Supply Co., ASBCA No. 4518, 58-2 BCA par. 2023; Lumen, Inc., ASBCA No. 6431, 61-2 BCA par. 3210; Monarch Die Corporation, ASBCA No. 8414, 1963 BCA par. 3816; Portsmouth Coca Cola Bottling Works, ASBCA No. 5901, 60-1 BCA par. 2541; Ross-Meehan Poundries, ASBCA No. 4823, 59-1 BCA par. 2113; Action Manufacturing Co., ASBCA No. 6559 61-1 BCA par. 3087; Manteo Mfg. Co., Inc., ASBCA No. 136 77, 69-2 BCA par. 8066; Clark Cable Corporation, ASBCA No. 14521, 71-1 BCA par. 8748; Artisan Electronics Corporation, ASBCA No. 14154, 73-1 BCA par. 9807; Hydraulic Systems Company, ASBCA No. 16856, 72-2 BCA par. 9742.
After a careful consideration of all of the evidence and arguments in the appeal record, including what was presented at the 19 July 1973 hearing, the Board determines that appellant has not shown good cause or justifiable excuse under all the facts and circumstances of the case for failing to file its appeal within the 30-day time limit. Accordingly, the request for waiver of the time limit is denied, and the appeal is dismissed.
JEPPESEN AND COMPANY
ASBCA No. 1962 (1959)
ON MOTION TO DISMISS
1. Counsel for the Government has moved to dismiss the above entitled appeal on the ground that the appeal was not timely filed.
FINDINGS OF FACT
2. In the course of Appellant's performance of the three subject fixed 2 price contracts, whereunder Appellant was required to compile and draft certain aeronautical charts for the U.S. Navy Hydrographic Office, Appellant presented to the Contracting Officer certain claims for additional compensation,
3. Under date of 21 September 1953 the Contracting Officer addressed a letter to Appellant wherein Appellant's claims were discussed and the additional compensation which Appellant sought was denied. The next to last paragraph of this letter read as follows:
"In accordance with the contract provisions, the Contractor may appeal this decision by furnishing to the Contracting officer, within thirty days from the date of receipt of this decision, a written appeal clearly stating all the facts involved and apportioning the requests for additional funds to the individual contracts. This appeal, although furnished to the Contracting Officer, shall be addressed to the Secretary of the Navy."
4. Upon receipt of the Contracting Officer's letter of 21 September 1953 Appellant undertook further analysis of certain data and review of the contract specifications and of Appellant's performance thereunder, in order to be able to submit a written appeal which would conform to the above quoted instructions. The Board finds that on 19 October 1953, conscious of the fact that the 30-day period for appeal would soon elapse, Appellant's general manager telephoned the Contracting Officer to explain the amount of work Appellant deemed necessary in order to comply with the Contracting Officer's instructions concerning the filing of an appeal, and to request permission to delay mailing the appeal for several weeks. The Board finds that the Contracting Officer approved Appellant's request and agreed that Appellant could have two additional weeks in which to complete and file its appeal. The appeal, dated 2 November 1953, was mailed on 3 November 1953. The appeal, which deals with technical matters relating to the specifications and Appellant's performance thereunder, presents, as requested by the Contracting Officer, a breakdown of the total costs claimed under each of the three contracts.
5. Counsel for the Government, in contending that the appeal was not timely taken, has assumed that the Contracting Officer's decision was mailed at Suitland, Maryland on the date which appears at the top of the letter, and has further assumed that Appellant more probably than not received the letter at its offices in Denver, Colorado on 24 September 1953. There is no evidence before the Board to show on what date the decision was in fact mailed or received. Appellant, however, in responding to the argument of Government counsel, has not taken issue with the above mentioned assumptions. For purposes of this decision the date of mailing and the date of Appellant's receipt of the letter will be considered by the Board as not being in issue between the parties. On the basis of the above mentioned assumptions counsel for the Government has argued that the notice of appeal was mailed 40 days after the probable date of receipt of the Contracting Officer's decision, and that the Contracting Officer had no authority to extend the time for the filing of the notice of appeal. The cases cited on behalf of the Government in support of this contention, however, are cases wherein the Board and its predecessors have held that when the appeal period has in fact elapsed before an appeal is taken, neither the Secretary nor the Board as his authorized representative can waive the timeliness requirement and recognize the notice of appeal as a valid notice. The case of Goldschmidt and Bethune Company, BCA No. 856, 3CCF 381 (1945), cited on behalf of the Government as holding that a Contracting Officer cannot validly grant a request for extension of time for taking an appeal, is in fact a case wherein the request for extension was made and purportedly granted by the Contracting Officer after the 30-day period had elapsed. In the instant case the request was made and granted before the 30-day period had elapsed. Under the circumstances here disclosed the Board holds the instant appeal was timely taken. It should be noted, incidentally, that neither the rules nor the decisions of the Board, or its predecessors, support any such interpretation of the requirements of the contract disputes clause as was set forth in that portion of the Contracting Officer's decision which is quoted above in paragraph 3. The notice of appeal should make it clear that it is a notice of appeal, but it need not set forth a full statement of all the facts which are involved.
6. The motion to dismiss the appeal for untimeliness is denied.
Section 3. Finality of ASBCA Decision
UNITED STATES V. WUNDERLICH
342 U.S. 98 (1951)
MR. JUSTICE MINTON delivered the opinion of the Court.