Appeal of

47 MAIN STREET OLD MYSTIC LLC

Under Lease Agreement

PSBCA No. 6370

APPEARANCE FOR APPELLANT
Sofia Giotis

APPEARANCE FOR RESPONDENT
Margaret E. Harper, Esq.

OPINION OF THE BOARD ON RESPONDENT’S MOTION TO DISMISS

           Respondent, United States Postal Service, moves for dismissal for lack of jurisdiction because Appellant, 47 Main Street Old Mystic LLC, did not appeal a contracting officer’s decision within the statutory deadline in the Contract Disputes Act (CDA).  We agree with Respondent and dismiss the appeal.  The following findings of fact are determined solely for purposes of resolving this motion.

FINDINGS OF FACT

1.         Appellant and Respondent are parties to a lease for the Old Mystic, Connecticut Main Post Office (Old Mystic MPO) (Appeal File Tab (AF) 1).[1]

2.         By letter dated May 6, 2010, Appellant disputed responsibility for $1,020 of flood-related costs and $494.58 for related rental abatements at the Old Mystic MPO, which Respondent sought to assess against Appellant (AF 6-7).

3.         On July 14, 2010, Respondent’s contracting officer responded to Appellant’s letter in the form of a final decision.  The decision concluded that Appellant was responsible for the disputed costs, and included notice of Appellant’s appeal rights, as follows,

This is a final decision of the contracting officer pursuant to the Contract Disputes Act of 1978 and the clause of your contract entitled Claims and Disputes.  You may appeal this decision to the Postal Service Board of Contract Appeals by mailing or otherwise furnishing written notice (preferably in triplicate) to the contracting officer within 90 days from the date you receive this decision.  The notice should identify the contract, reference this decision and indicate that an appeal is intended.  Alternatively, you may bring an action directly in the United States Court of Federal Claims within 12 months from the date you receive this decision.

(AF 8).  Appellant received the contracting officer’s decision on July 22, 2010 (Respondent’s Motion to Dismiss, Exhibit 1).

4.         On December 19, 2010, Appellant sent a letter to Respondent’s contracting officer in response to his decision.  The letter contested the decision, asserted that Respondent was responsible for the disputed costs, and requested reimbursement.  (AF 10).

5.         Respondent did not receive any document from Appellant, prior to the December 19, 2010 letter referenced in Finding 4, challenging or addressing the contracting officer’s decision (Declaration of D. Marotto (Marotto Decl.) ¶ 5; Declaration of M. Laverdiere (Laverdiere Decl.) ¶ 5).

6.         Respondent did not provide any indication to Appellant that the final decision referenced in Finding 4 would be reconsidered by the contracting officer (Marotto Decl. ¶ 6; Laverdiere Decl. ¶ 6).

7.         On January 31, 2011, Respondent’s contracting officer forwarded to the Board his July 14, 2010 decision and Appellant’s December 19, 2010 letter.  The Board docketed the matter as PSBCA No. 6370.  Appellant has not filed anything in this case.

8.         Following a Board Order in which we questioned our jurisdiction sua sponte (April 14, 2011 Order), Respondent filed a Motion to Dismiss.  We allowed Appellant an opportunity to respond (May 5, 2011 Order).  In the absence of any response from Appellant, the Board determined that Respondent’s Motion to Dismiss was ready to be decided (June 24, 2011 Order).

DECISION

           Under the CDA, for the Board to possess jurisdiction over an appeal from a contracting officer’s decision, the contractor must have filed an appeal within 90 days after receiving the decision.  41 U.S.C. §§ 7103(g), 7104(a).  The Board lacks discretion to waive that statutory deadline.  See Cosmic Construction Co. v. United States, 697 F.2d 1389, 1390 (Fed. Cir. 1982).

           Here, Appellant received the contracting officer’s decision on July 22, 2010, and the decision advised Appellant of its right to appeal within 90 days of receiving the decision (Finding 3).  Appellant sent nothing to the contracting officer or the Board within the 90-day period; Appellant’s letter of December 19, 2010 was sent well after expiration of the statutory deadline (Findings 4-5).  No indications of reconsideration by the contracting officer are evident which might result in a later appeal deadline (Finding 6).

           Accordingly, because no appeal of the contracting officer’s decision occurred before expiration of the CDA deadline at 41 U.S.C. § 7104(a), this appeal is dismissed for lack of jurisdiction. 

CONCLUSION

           Respondent’s motion to dismiss is granted.  This appeal is dismissed. 

                                                                        Gary E. Shapiro
                                                                        Administrative Judge
                                                                        Board Member

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

[1] The term of the lease included in the appeal file does not begin until October 1, 2011.  A predecessor lease under which the parties appear to have been operating (see, e.g., AF 4 at 18; AF 7 at 25) is not in the record.  However, it is not contested that the dispute at issue involved a lease between the parties, and documentation in the record indicates that a lease with a term from October 1, 2006, to September 30, 2011, was in effect (AF 4 at 18).