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 MOTION FOR RECONSIDERATION

            Appellant has filed a motion seeking partial reconsideration of the Board’s February 15, 2008 Opinion, Frank Baiamonte, PSBCA No. 5332, 08-1 BCA ¶ 33,796, which granted, in part, Respondent’s motion to dismiss this appeal.

            While not completely clear, Appellant appears to be arguing that the Board should reconsider its decision because the matter at issue has become criminal in nature.  Appellant cites a June 19, 2007 notice sent to him by the Postal Service Vice President, Supply Management, which notice stated that, under the provisions of 39 C.F.R. §601.106, the Postal Service would no longer accept or consider proposals from him.  Among the activities cited as a basis for the Vice President’s notice was “the initiation of numerous proceedings at the Postal Service Board of Contract Appeals, considered to be frivolous, as demonstrated, in part, by the dismissal to date of ten of those proceedings.”  Appellant appears to be arguing only that the disclosure to the Vice President of the information regarding the dismissal of proceedings before this Board was “criminal activity” by “[w]homever chose to disclose this information.”

            In an amendment to his motion,[1] Appellant also argues as a basis for seeking reconsideration that the final decision from which he appealed was not executed by a person with contracting officer authority.  Appellant does not explain what he views as the effect of such a lack of authority.  However, in support of his argument, Appellant cites a number of documents which, if taken at face value, may indicate that as of six-and-one-half months prior to issuing the final decision, the person who signed the decision had been newly appointed to his position and did not have contracting officer authority.

            Appellant’s arguments do not address in any fashion the merits of the Board’s decision to partially dismiss his appeal, or urge that the Board’s Opinion contained errors of fact or law.  Further, with regard to Appellant’s “disclosure” argument, we note first that all of the Board’s final orders and decisions, including those dismissing appeals, are available to the public.  39 C.F.R. §955.29; 5 U.S.C. §552(a)(2).  Second, the Board is not a proper forum for the consideration of accusations of criminal activity, as it has no jurisdiction to resolve such allegations.  E.g., Danny R. Mitchell v. GSA, GSBCA No. 16209, 04-1 BCA ¶ 32,551 at 160,994; Environmental Safety Consultants, Inc., ASBCA No. 53485, 02-2 BCA ¶ 31,904.

            With regard to Appellant’s argument concerning contracting officer authority, we note that the documents cited by Appellant do not demonstrate a lack of contracting officer authority at the time the final decision was issued.  Further, even if there was no effective final decision, by the time Appellant filed his Complaint in this appeal more than 60 days had elapsed from the submittal of his claim to the contracting officer and his Complaint would have sufficed as an appeal from a “deemed” denial of the claim.  41 U.S.C. §605(c)(5); Lee Ann Wyskiver, PSBCA No. 3621, 94-3 BCA ¶ 27,118.

            Thus, Appellant has not alleged or shown any factual or legal errors that would warrant changing the decision, or raised any newly discovered or unavailable evidence that would support reconsideration.  E.g., Frank Baiamonte, PSBCA No. 5274, 08-1 BCA ¶ 33,756.  Accordingly, Appellant’s motion for reconsideration is denied.

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]   Although the amendment was untimely as a motion for reconsideration, we have elected to include it in the discussion of Appellant’s motion.