DISMISSED: August 30, 1996 GSBCA 13448-C(13299) CALIFORNIA PACKAGING, Applicant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Brett A. Alcala of Mousalam & Alcala, Los Altos, CA, counsel for Applicant. Wendy Nevett Bazil, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), DEVINE, and NEILL. DEVINE, Board Judge. California Packaging, applicant here, had a requirements contract with the General Services Administration (GSA), an agency of the United States Government, to supply corrugated cardboard shipping boxes to the Government. Three purchase orders for shipping boxes were terminated for default primarily because the boxes were not bundled and strapped in accordance with the contract terms. California Packaging appealed the default terminations to this Board. Before trial (or significant preparation for trial), settlement negotiations produced a settlement which converted the default terminations to no cost terminations for the convenience of the Government. As a result, this Board entered an order dismissing the appeal as settled on September 15, 1995. The order was transmitted by facsimile to appellant who received it the same day. Under our Rules, an application for reimbursement of attorneys fees under the Equal Access to Justice Act (EAJA), 5 U.S.C. 504 (1994), which allows such reimbursement to a prevailing party, must be filed within thirty days of the resolution of the appeal. The thirtieth day following September 15, 1995, is October 15, 1995, a Sunday. Our Rules provide that, in such a case, since the Board Clerk's Office is not open, a filing on the next business day would be timely. Applicant's attorneys, who are located in California, chose to transmit the EAJA application by Federal Express. The application was delivered to Federal Express on Friday, October 13, 1995, and arrived at the Board Clerk's Office at 11:53 a.m. on Tuesday, October 17, 1995, one day late. Applicant submitted a letter received from Federal Express with respect to the shipment of the application which reads, in pertinent part, as follows: Our tracing specialists have traced your shipment and determined that delivery was attempted in a timely manner on Monday, October 16 at 11:52 a.m. to the GSA building at 18th and F Streets NW. Delivery could not be completed, however, as the offices were not open or no one was available to sign for the package at that time. Our records reflect that delivery was completed on October 17 at 11:52 a.m., signed for by "B. Jones." Letter from Counsel for Applicant to the Board (Dec. 21, 1995), Exhibit A. The affidavit of the legal secretary who was in charge of sending the application read, in pertinent part, as follows: On that same day, Tuesday, October 17, 1995, I telephoned Federal Express to track our EAJA filing and was advised that two delivery attempts were made on Monday, October 16, 1995. On the first attempt, Federal Express reported that the Clerk's office was closed. On the second attempt in the afternoon, I was advised that the Federal Express delivery person had to turn back because, due to the "Million Man March," they could not even get near the building. Letter from Counsel for Applicant to the Board (Dec. 21, 1995), Exhibit B. We are thus given several different reasons why the EAJA application was not filed in time. California Packaging first says in Paragraph A of its letter that the Clerk's Office was closed "earlier than 4:30 p.m." which was the cause of its failure to file on time. Later at Paragraph A(4) applicant states that it "believes that the 'Million Man March' caused the Office of the Clerk to be effectively closed to the public for an indeterminate period of time prior to 4:30 p.m. (EST)." Applicant does not, however, tell us how this came about. When queried, Federal Express first told applicant via its attorney's secretary (on Tuesday, October 17) that the Clerk's Office was closed on the morning of the day in question rather than the afternoon, thus frustrating delivery, and that a second attempt in the afternoon failed because the Million Man March prevented the messenger from reaching the GSA building. In a later letter dated December 12, 1995, Federal Express stated to applicant's counsel that its messenger had attempted delivery only once, not twice, on October 16 at 11:52 a.m., and could not complete the delivery "as the offices were not open or no one was available to sign for the package." We need not resolve the inconsistencies in these explanations. Applicant's attorneys chose the method of delivery. Had they deposited the application in the United States mail, it would have been filed, under our Rule 1(b)(5)(i), as of the date of its postmark. Had they sent it to us by facsimile transmission, it would have been filed, under our Rule 1(b)(5)(ii), on the date it was received. However, counsel chose to entrust delivery to a courier service. The Board Clerk's Office was open for business as usual on October 16, from 8:00 a.m. to 4:30 p.m. The courier was applicant's agent. By using its services applicant assumed the risk that Federal Express might lose the packet, might not find the building, or finding the building, might not be able to find someone to deliver it to, resulting in a late delivery. We have heretofore applied our rules on late filings stringently. Emulex Corp., GSBCA 9357-C(9259-P), 89-1 BCA 21,349, 1988 BPD 276. We see no reason not to do so here. Applicant has failed to file its application within the time allowed by our Rules 2(c) and 35(b). Decision For the reasons stated, the application is DISMISSED. _________________________ DONALD W. DEVINE Board Judge We concur: _______________________ _________________________ STEPHEN M. DANIELS EDWIN B. NEILL Board Judge Board Judge