Appeal of
FRANK BAIAMONTE

Under Contract Nos. HCR 863C5 and HCR 863D8

PSBCA No. 5274

APPEARANCE FOR APPELLANT:
Frank Baiamonte

APPEARANCE FOR RESPONDENT:
Gary Shapiro, Esq.
Office of the General Counsel
United States Postal Service
475 L'Enfant Plaza SW, Room 6327
Washington, DC 20260-1127

OPINION OF THE BOARD

            In its earlier Opinion (Frank Baiamonte, PSBCA No. 5274, 06-1 BCA ¶ 33,286) dated May 10, 2006, the Board denied Respondent’s motion to dismiss and concluded that it had jurisdiction to consider this appeal.  The basis for that decision was the Board’s conclusion that, notwithstanding some difficulties in understanding Appellant’s submittals, Appellant’s claim was, in essence, a claim that Respondent had breached Appellant’s contracts by treating Appellant and another contractor (the “86367 contractor”) differently and that Appellant had been damaged thereby.  The facts are stated in that Opinion and are adopted in this decision.

            Subsequent to the earlier Opinion, the Board issued an Order directing Appellant to file a revised Complaint, “setting out in greater detail the specific actions he is claiming constituted [Respondent’s] breaches of his contracts and the nature of, and the calculation of, the monetary damages he is claiming to have suffered because of those breaches.”  In response, Appellant filed a request for clarification of the Board’s Order.  In the clarification request, Appellant expressed some concern about the direction in the Order to describe Respondent’s breaches of his contracts because “these contracts were not in breached [sic] at that time.”  Further, Appellant’s description made it clear that the basis for his claim was not that Respondent had breached his contracts, but that if the Postal Service had terminated the 86367 contractor for default - an action Appellant believed the Postal Service was required to take - he would have been “next in line to fulfill the [86367] contract.…” – i.e., that the 86367 contract would have become his by right following the default.  Appellant also made it clear that the $285,000 he was seeking was the revenue he believed he would have received under the 86367 contract but for Respondent’s refusal to terminate the contract and award it to him.

            Based on Appellant’s clarification request, the Board issued an Order setting out what it then understood to be the basis for Appellant’s claim, as described above, and directing Appellant to show cause why the appeal should not be dismissed for lack of jurisdiction, notwithstanding the Board’s May 10, 2006 Opinion.  In response, Appellant did not take issue with the Board’s characterization of his claim, but argued that the Board should continue to process the appeal.

            We may review, at any stage, whether we have jurisdiction over an appeal when that jurisdiction appears in doubt.  Arctic Corner, Inc. v. United States, 845 F.2d 999 (Fed. Cir. 1988); Mid-Continent Casualty Co., DOT BCA No. 1996, 89-3 BCA ¶ 22,120.  Appellant’s responses to the Board’s Orders, as described above, have caused us to revisit our jurisdiction in light of Appellant’s clarification of the nature of his claim.  Based on our review, and based on the record as it exists today, the Board concludes that this appeal must be dismissed for lack of jurisdiction.

            In order for this Board to have jurisdiction over a dispute under the Contract Disputes Act, the dispute must relate to a contract between the Postal Service [or Postal Regulatory Commission] and the contractor seeking relief.  E.g., United States v. Johnson Controls, Inc., 713 F.2d 1541 (Fed. Cir. 1983); Julian Freeman, M.D., ASBCA No. 42130, 91-2 BCA ¶ 23,772; Hogan Garner, Inc., PSBCA No. 1757, 88-1 BCA ¶ 20,327; 41 U.S.C. 607(c); [39 U.S.C.S. §404(note)].  In this instance, Appellant’s claim has no connection to Appellant’s contracts and it “relates,” if at all, only to the 86367 contract.  Appellant is not a contractor with respect to the 86367 contract, 41 U.S.C. §601(4) (“the term ‘contractor’ means a party to a Government contract other than the Government”), and did not have standing to file a Contract Disputes Act claim relating to that contract with the contracting officer, 41 U.S.C. §605 (“claims by a contractor relating to a contract … shall be submitted to the contracting officer for a decision.” (emphasis added)).  E.g., Hogan Garner, supra; High Voltage Maintenance Corp., PSBCA No. 3640, 94-3 BCA ¶ 27,173.  That the contracting officer issued what purported to be a final decision, referring to Appellant’s right to appeal to this Board, did not have the effect of giving the Board jurisdiction that it did not otherwise have under the Contract Disputes Act.  E.g., Freeman, supra.

            Accordingly, Appellant’s appeal is dismissed for lack of jurisdiction.^[1]

David I. Brochstein
Administrative Judge
Vice Chairman

I concur:                                                                      I concur:
William A. Campbell                                                     Norman D. Menegat
Administrative Judge                                                  Administrative Judge
Chairman                                                                    Board Member

[1]  Following the issuance of the Board’s show cause order, Respondent filed a motion seeking reconsideration of the Board’s earlier Opinion and seeking dismissal for Appellant’s failure to state a claim on which relief may be granted.  Because of our dismissal of the appeal, it is unnecessary to rule on that motion.