Appeals of

DENISE BAIAMONTE

Under Contract Nos. HCR 863H7, et al.

PSBCA Nos. 5387-5393

APPEARANCE FOR APPELLANT:
Denise Baiamonte

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

OPINION OF THE BOARD ON MOTION TO DISMISS

            Appellant, Denise Baiamonte, filed appeals from final decisions by the contracting officer denying claims she made in connection with seven solicitations issued by Respondent, United States Postal Service.  Respondent has filed a motion to dismiss the appeals, asserting that they are in fact protests or “disagreements” over the award of the seven contracts, rather than contract claims to be decided pursuant to the Contract Disputes Act, and arguing that the Board lacks jurisdiction to consider them.  Appellant filed an opposition to the motion.

FINDINGS OF FACT

            For the purpose of deciding the motion, the Board makes the following Findings of Fact:

            1.  In September 2006, in connection with a number of solicitations issued by Respondent for mail transportation/delivery services, Appellant’s husband wrote to the contracting officer asking whether a particular right-hand-drive vehicle could be used in providing the service.  In response, the contracting officer indicated that the vehicle could not be used because its capacity was less than what was required by the solicitations.  Appellant’s husband then wrote back to the contracting officer questioning the use of the same vehicle by other contractors at a particular post office.  (Appeal File, Tabs (AF) 10, 11).

            2.  By identical November 7, 2006 letters to the contracting officer, Appellant submitted what she denominated as claims under the Contract Disputes Act seeking damages under each of the seven solicitations – citing the award of contracts to other contractors whose vehicles she alleged were not in compliance with the vehicle requirements of their contracts.  Each claim letter contained the certification language required by the Contract Disputes Act.  (AF 7).

            3.  In letters dated November 30, 2006, the contracting officer issued what he termed final decisions, denying Appellant’s claims on the basis that the claims were, at best, in the nature of bid protests, for which Respondent had established a specific procedure for review by the Postal Service Ombudsman.^[1]  The contracting officer also noted that Appellant did not then hold, and had never held, a Postal Service contract.  Each of the final decisions contained language informing Appellant of her right to appeal to this Board or to the United States Court of Federal Claims.  (AF 5).

            4.  By Notices of Appeal dated January 30, 2007, Appellant appealed each of the contracting officer’s final decisions (AF 1).

DECISION

            Respondent argues that the Board lacks jurisdiction to consider Appellant’s appeals because they are, in reality, protests over the award of contracts resulting from the seven solicitations.  Respondent argues that the Board’s jurisdiction is limited to a contractor’s claims concerning her own contracts, and must be based on privity of contract.  Respondent argues that Appellant is not a contractor under any of the solicitations about which she complains.  

            Appellant argues that the Board has jurisdiction to decide the appeals since they arose under or were related to contracts subject to the Contract Disputes Act.  Appellant argues that privity of contract exists because she would otherwise not have known of the specific requirements for the contracts.

            We agree with Respondent that the Board lacks jurisdiction to consider Appellant’s appeals and that they must be dismissed.  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 claims related only to the contracts that arose out of the seven solicitations - contracts to which Appellant is not a party.  Thus, Appellant is not a contractor with respect to those contracts, 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 Contract Disputes Act claims with the contracting officer related to those contracts, 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 were purported to be final decisions, referring to a 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, Respondent’s motion is granted and these appeals are dismissed for lack of jurisdiction.

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]  The Postal Service process for dealing with procurement “disagreements,” which Appellant invoked simultaneously with her use of the Contract Disputes Act claim process described here, is found at 39 C.F.R. §§601.107-.108.