Appeal of

FRANK BAIAMONTE

Under Contract No. HCR 863C5

PSBCA No. 5332

APPEARANCE FOR APPELLANT:
Frank Baiamonte

APPEARANCE FOR RESPONDENT:
Gary E. Shapiro, Esq.
Office of the General Counsel
United States Postal Service

OPINION OF THE BOARD ON RESPONDENT’S MOTION TO DISMISS

            Appellant, Frank Baiamonte, has filed an appeal from the contracting officer’s denial of his claim seeking payment from Respondent, United States Postal Service, based on Respondent’s allegedly improper decision to deny Appellant access to the mail.  In lieu of filing an Answer, Respondent has filed a motion to dismiss this appeal for lack of jurisdiction.

            For the purpose of ruling on the motion we make the following findings of fact:

FINDINGS OF FACT

            1.  As of September 2005, Appellant held two Postal Service contracts for mail service originating at the Cottonwood, Arizona Post Office.  One of the contracts (No. 863C5) was for delivery of mail to 580 boxes along a specified route.  The second contract (No. 863D8) was “a collection route serving various businesses.”  Both contracts were for the period from May 31, 2003, through June 30, 2006.  (PSBCA No. 5334 Appeal File, Tab (5334AF) 9; PSBCA No. 5332 Appeal File, Tab (AF[1]) 25).

            2.  Paragraph B.3.h of both contracts required Appellant to “deny access to the mail to any employees or personnel when required to do so by the contracting officer” (id.).

            3.  In a final decision dated September 8, 2005, the contracting officer terminated contract 863C5 for default as of the close of business that day.  Appellant filed a timely appeal from the default termination, which appeal is before the Board under PSBCA No. 5297.  (PSBCA No. 5297 Appeal File, Tabs (5297AF) 3, 22).

            4.  In a second letter dated September 8, 2005, the contracting officer, citing advice from the Administrative Official at the Cottonwood Post Office, denied Appellant access to the mail, effective immediately.  Specifically, Appellant was advised that “you will not be allowed to drive on any mail contract or have access to the mails or postal operations areas.”  Appellant was advised that he could file an administrative appeal of the decision by sending an appeal letter to the contracting officer within five days.  (AF 24).  Appellant filed an appeal of the denial of access, which appeal was denied by the Manager, Surface Transportation, by letter dated October 7, 2005 (AF 18, 19, 23).

            5.  By letter dated January 18, 2006, Appellant demanded a contract adjustment and payment in the amount of $1,592.63, to reflect the excess cost he allegedly had incurred and would continue to incur because of the denial of access in operating his remaining contract (No. 863D8) using a hired driver rather than operating it himself.  The claim for $1,592.63 covered the period of September 8, 2005 – when Appellant was denied access – to January 20, 2006.  (5334AF 5).  In a final decision dated February 15, 2006, the contracting officer denied Appellant’s claim (5334AF 2).  In so doing, the contracting officer concluded that the denial of access was warranted by Appellant’s conduct and that he was not entitled to an adjustment because any incurred costs did not result from conditions beyond Appellant’s control.  Appellant filed a timely appeal of the final decision, which appeal was docketed as PSBCA No. 5334.

            6.  By letter dated January 27, 2006, Appellant filed the claim which is before us in this appeal.  The certified claim demanded the payment of $910,985.57 based on the contracting officer’s denial of Appellant’s access to the mail.  The claim consisted of five elements, which Appellant drafted as follows:

            a.  “Now and future Denial to the access to the mails and postal operations areas nationwide $500000.00.”

            b.  “Denial of my assistances to run 863C5 current and future renewal $174,654.81.”

            c.  “Cause undue hardship on HCR 863D8 on my assistance and or sub every day that they enter this post offices knowing that they were not good enough to run the other route HCR 863C5 by the Contracting Officer decision.  $50,000.00.”

            d.  “Denial to participate in the Solicitation … for a different post office for which I held an emergency contract prior and had no problems at.  When I submitted the paperwork for this proposal it was not acted upon on by that office on grounds of the actions of the Contracting Officer decision. $146,330.76.”

            e.  “Lost of equipment that was purchase exclusively for USPS for deliver of the mails was a direct result of the actions of that Contracting Officer decision.  $40,000.00.”

(AF 8).

            7.  By letter dated February 17, 2006, the contracting officer asked Appellant to provide explanations as to how he had calculated the various amounts in his January 27 claim, and to explain the factual basis for some of its elements.  Appellant responded to the contracting officer in a February 22, 2006 letter, but failed to provide any of the information requested.  (AF 6, 7).

            8.  In a final decision dated February 27, 2006, the contracting officer terminated contract no. 863D8 for default, alleging failure to provide service and anticipatory repudiation of the contract by Appellant (AF 5).  Appellant has not filed an appeal of the termination with this Board.

            9.  By letter dated March 20, 2006, the contracting officer noted that Appellant had not provided the information requested in the contracting officer’s February 17, 2006 letter, and again requested that Appellant provide information explaining his claim.  In a March 22, 2006 response, Appellant again failed to provide the information requested.  (AF 2, 3).

            10.  In a final decision dated March 22, 2006, the contracting officer denied Appellant’s January 27, 2006 claim (Finding 6) in its entirety (AF 1).  Appellant filed a timely notice of appeal, which the Board docketed as PSBCA No. 5332.

            11.  In a motion dated April 27, 2006, Appellant asked that his appeal in PSBCA No. 5334 (see Finding 5), be removed from the Board’s docket so that he could “exercise [his] rights to have this case heard in a different venue.”  Respondent objected to any dismissal that was without prejudice, and the Board advised Appellant to consult counsel before proceeding since there might not be a different venue available to him.  Appellant thereafter renewed his request that the appeal be dismissed and specifically requested that the dismissal be “with prejudice.”  On June 13, 2006, the Board dismissed the appeal “with prejudice to its again being brought before this Board.”

DECISION

            Respondent, in support of its motion to dismiss, argues that the relief requested by Appellant in each of the five elements of his claim either duplicates claims already before the Board in other appeals or is unavailable as a matter of law.  Therefore, Respondent contends, the appeal as a whole must be dismissed for lack of jurisdiction.  Each claim element will be addressed below.

            Claim Element “a”

            In this item, Appellant seeks $500,000 for “now and future” denial of access to the mails and postal operations areas.  In its motion, filed before the dismissal of PSBCA No. 5334 (Finding 11), Respondent argues that this claim is not “justiciable,” reasoning that it was duplicative of the claim in PSBCA No. 5334, then being litigated.  Since PSBCA No. 5334 was later dismissed with prejudice, to the extent that claim element “a,” now before us, represents the same cause of action as the claim in PSBCA No. 5334, it is subject to dismissal.  See, e.g., Hitt Contracting, Inc., ASBCA Nos. 51594, 51878, 99-2 BCA ¶ 30,442, recon. den. 99-2 BCA ¶ 30,558; Charles G. Williams Constr., Inc., ASBCA Nos. 51329, 51637, 99-2 BCA ¶ 30,409.  Other than reference to a later time – i.e., “Now and future denial” of access, as opposed to denial of access over a specific period in the past (Finding 5) – there is no indication that claim element “a” differs in any material way from the claim in PSBCA No. 5334, which sought compensation for the excess cost of hiring a driver allegedly incurred by Appellant after he was barred from access to the mail and postal facilities.  We see no difference in the operative facts, the alleged wrong committed by Respondent, or the evidence necessary to support the claim.  Under these circumstances, we agree with Respondent and grant its motion to dismiss this claim element.

            Claim element “b”

            This claim element apparently challenges the termination of contract 863C5 and seeks to recover $174,654.81 in payments under that contract and future renewals thereof.  The exact nature of Appellant’s claim is not discernable from the brief statement included in the claim letter.  However, to the extent it challenges the termination of contract 863C5, we agree with Respondent that that termination is already before us in PSBCA No. 5297 and in PSBCA No. 5324 (which addresses a Postal Service claim for excess reprocurement costs).  Moreover, an appeal seeking monetary recovery predicated on the reversal of the default termination of contract 863C5 is premature.  Accordingly, we dismiss this element of Appellant’s appeal.  Such dismissal is, however, without prejudice to Appellant’s right to pursue the monetary portion of this claim element should the default be overturned.  See, e.g., Kit Pack Co., Inc., ASBCA No. 53155, 01-2 BCA ¶ 31,479; Peter Gross GmbH & Co. KG, ASBCA No. 49437, 96-2 BCA ¶ 28,290.

            Claim element “c”

            In the absence of any explanation from Appellant to the contrary, it appears that through this claim element, Appellant is seeking the amount of $50,000 in damages based on emotional distress of Appellant’s employees in contract 863D8.  As argued by Respondent, such damages sound in tort and are outside the Board’s jurisdiction.  See Donald E. Skaggs, PSBCA Nos. 4486, 4487, 00-2 BCA ¶ 30,933; Don Wasylk d/b/a Klysaw, PSBCA Nos. 4186, 4283, 00-1 BCA ¶ 30,844; Computer Power Support, Inc., PSBCA No. 3401, 94-2 BCA ¶ 26,626; Onice Ulmer, PSBCA No. 2938, 91-2 BCA ¶ 23,991.  Accordingly, the motion to dismiss this portion of the appeal is granted.

            Claim element “d”

            In this claim element, Appellant seeks compensation based on Respondent’s failure to award him a different contract.  As argued by Respondent, disputes that are actually bid protests are outside the Board’s jurisdiction, e.g., Coastal Corp. v. United States, 713 F.2d 728 (Fed. Cir. 1983); Kelley McDonald Aragon, PSBCA No. 5053, 04-1 BCA ¶ 32,493, and the contracting officer's issuance of what purports to be a final decision addressing Appellant's protest does not confer such jurisdiction on the Board, e.g., ITS, Inc., ASBCA No. 52802, 01-1 BCA ¶ 31,223.  Accordingly, the motion to dismiss this portion of the appeal is granted.

            Claim element “e”

            Respondent takes the position that Appellant is seeking damages based on an improper termination of his contracts and argues that any recovery of damages will be governed by the indemnity provisions of contracts 863C5 and 863D8, which provisions do not permit the type of recovery sought here.  However, as we understand claim element “e,” Appellant seeks to recover damages – $40,000 due to loss of equipment – allegedly suffered due to the fact that he was denied access to the mails and postal operations areas by the contracting officer.  Actual damages caused by the denial of access, if shown to be improper, are independent of any recovery for an improper default termination.  Accordingly, the motion to dismiss this portion of the appeal is denied.

            Summary

            As explained above, Respondent’s motion to dismiss this appeal is granted in part and denied in part.  Claim element “a” is dismissed with prejudice.  Claim element “b” is dismissed without prejudice to the extent that it seeks monetary recovery in the event the termination of contract 863C5 is overturned.  Claim elements “c” and “d” are dismissed for lack of jurisdiction.  The motion to dismiss is denied with respect to claim element “e.”  The Board will address other matters pending in this appeal in a separate Order.

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]   Unless otherwise indicated, references to the Appeal File (AF) are to the Appeal File in this appeal, PSBCA No. 5332.