Appeals of

SOUTHERN MAIL SERVICE, INC., et al.

Under Contract Nos. HCR 75124, et al.

PSBCA Nos. 5322, 5375, 5377-5382

APPEARANCE FOR APPELLANT:
Rand L. Allen, Esq.
Philip J. Davis, Esq.
Tracye Winfrey Howard, Esq.
Wiley Rein LLP

APPEARANCE FOR RESPONDENT:
Michael F. Kiely, Esq.
Office of the General Counsel
United States Postal Service

OPINION OF THE BOARD ON RESPONDENT’S SECOND MOTION FOR RECONSIDERATION[1]

            Respondent, United States Postal Service, has filed a motion seeking reconsideration of the Board’s June 16, 2010 Opinion, Southern Mail Service, Inc., et al., PSBCA Nos. 5322, 5375, 5377-82, 10-2 BCA ¶ 34,500, in which the Board denied Respondent’s first motion seeking reconsideration of the Board’s original Opinion, Southern Mail Service, Inc., et al., PSBCA Nos. 5322, 5375, 5377-82, 09-2 BCA ¶ 34,244.  In the original Opinion, we denied Respondent’s motion for summary judgment and granted Appellants’ appeals in PSBCA Nos. 5375 and 5377-82.  Familiarity with both the original Opinion and the Opinion on reconsideration is assumed.

            Respondent’s primary argument is that, in the context of a summary judgment motion, the Board erred in granting the appeals since, Respondent contends, it was necessary for the Board to determine the meaning of the phrase “solicitation proposal closing date” before determining whether the CORs made “mistakes” in granting the adjustments that they did.  Respondent now argues specifically that the meaning of this phrase is a disputed material fact that should have precluded granting summary judgment.  While not couched in precisely these terms, Respondent has made this argument already.  It has argued, from the time of its initial opposition to Appellants’ motion for summary judgment, that the CORs made mistakes in granting the adjustments requested by Appellants, on the basis that the Management Instruction referenced in the contract did not provide for those adjustments.

            In our original Opinion, we concluded that in seeking and granting the adjustments, Appellants and the CORs apparently agreed on an interpretation of the Management Instruction, including the ambiguous “solicitation proposal closing date” language.  We also concluded that that interpretation was a reasonable one.  Southern Mail Service, supra, 09-2 BCA ¶ 34,244 at p. 169,244.  Under the facts of these appeals – where the CORs otherwise had authority to approve the adjustments and where the parties agreed on a reasonable interpretation of the contract language – the CORs cannot be said to have approved the adjustments by “mistake.”  Thus, contrary to Respondent’s argument, it was not necessary for the Board to decide on “the” proper interpretation of the now-disputed language in order to decide the appeals that it granted.
            While it will be necessary for the Board to interpret the ambiguous language in connection with deciding the appeal in PSBCA No. 5322, that interpretation will have no bearing on the previously granted appeals.

            Respondent’s second 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] Administrative Judge Gary E. Shapiro took no part in the Board’s consideration of this motion.