June 28, 2013

Appeal of

REDMOND CITY CENTER, L.L.C.

LEASE AGREEMENT

PSBCA No. 6498           

APPEARANCE FOR APPELLANT
Matt Adamson, Esq.
Jameson, Babbitt, Stites & Lombard, P.L.L.C.

APPEARANCE FOR RESPONDENT
Jacqui De Laet Skoglund, Esq. 
United States Postal Service
Procurement & Property Law Office

OPINION OF THE BOARD
ON RESPONDENT’S MOTION TO DISMISS FOR LACK OF JURISDICTION

Respondent, United States Postal Service, moves to dismiss this appeal for lack of jurisdiction.   We deny the motion.

FACTUAL BACKGROUND

 On May 27, 2010, Respondent sold property used as a post office in Redmond, Washington to Redmond City Center, L.L.C. (hereafter “City Center”) (Motion to Dismiss for Lack of Jurisdiction or, in the Alternative, Motion for Summary Judgment (Motion), Exhibit 1).  The next day, City Center leased the property back to Respondent for a twenty-four month period.  The lease specified that rent would be paid to “Redmond City Center, L.L.C. c/o Cosmos Management Corp.” at a specifically-identified address in Bellevue, Washington.  The lease later was extended until August 31, 2012 (Motion, Exhibit 2).

 On September 21, 2012, a certified monetary claim was submitted to Respondent’s contracting officer (involving deferred maintenance under the lease, restoration and related costs, and rent for a restoration period).  The claim was signed and certified by the named Facilities Manager for Cosmos Management Corp. (hereafter “Cosmos”), as “Authorized Agent, Redmond City Center, L.L.C.”  (Appellant’s Response to Motion to Dismiss, Appendix A).  Cosmos is City Center’s property manager (Appellant’s Response to Motion to Dismiss, Appendix C).  The claim certification, in accordance with the Contract Disputes Act of 1978, 41 U.S.C. §§ 7101-7109 (hereafter “CDA”), states that the signatory is “duly authorized to certify the claim on behalf of [City Center].”  The claim letter identifies the claimant as City Center.  (Appellant’s Response to Motion to Dismiss, Appendix A).

 On January 31, 2013, Respondent’s contracting officer issued a final decision, denying the claim.  The contracting officer sent the final decision to the Facilities Manager for Cosmos at the address identified in the lease for City Center.  (Notice of Appeal, Exhibit L).

 On March 29, 2013, the Facilities Manager for Cosmos, as “Authorized Agent, Redmond City Center, L.L.C.” transmitted a letter notifying Respondent’s contracting officer that the final decision was appealed to the Board.  The notice of appeal stated that Cosmos was appealing “on behalf of” City Center.  (Appellant’s Response to Motion to Dismiss, Appendix B).

By letter dated April 8, 2013, Respondent’s contracting officer forwarded the notice of appeal to the Board, stating that he “received [the enclosed appeal] from Cosmos Management Corp.”  The Board then docketed the appeal as Appeal of Cosmos Management Corporation, PSBCA No. 6498 (Notice of Docketing and Complaint Due Date, April 11, 2013).

 On May 17, 2013, before a compaint or appeal file was submitted, Respondent filed the motion here at issue, contending that the Board lacks jurisdiction.  The Board received a notice of appearance and an opposition to the motion from counsel for City Center on June 17.  Respondent filed a reply on June 20.

DECISION

 Respondent contends that the Board lacks CDA jurisdiction because Cosmos filed the claim and appeal, not City Center.  Respondent argues that because it does not have privity of contract with Cosmos, neither the claim nor the appeal was filed by the proper contracting party which deprives the Board of jurisdiction under the CDA (citing 41 U.S.C. §§ 7101(7), 7103(a)(1)), and the lease’s Claims and Disputes clause (citing Motion, Exhibit 2, General Conditions, ¶ 8(c)).

 City Center responds that the claim and notice of appeal were submitted by the party in privity with Respondent – City Center.  City Center asserts that while the claim and notice of appeal were signed by Cosmos’ Facilities Manager, he signed specifically as the authorized representative or agent of City Center, and that the requisite documents so specify.  Respondent replies that there is insufficient evidence in the record that City Center authorized Cosmos (or its signatory) to assert the claim and appeal.  We agree with Appellant. 

Respondent is correct that the claim belongs to City Center, the party with which it contracted.  See Fireman’s Fund Ins. Co. v. United States, 313 F.3d 1344, 1351 (Fed. Cir. 2002).  However, the claim consistently identified the claimant as City Center, by virtue of defining “Landlord” as City Center on its first page.  It was submitted by the Facilities Manager for Cosmos, as authorized agent for City Center, not for Cosmos itself.  Indeed, the claim’s certification (which Respondent has not specifically challenged) recited that the signatory was “duly authorized to certify the claim on behalf of [City Center].”  Authorized representatives or agents of contractors may file claims under the CDA.  See 41 U.S.C. § 7103(b); Rapoco, Inc., ASBCA No. 39501, 90-3 BCA ¶ 23,146; Metric Constructors, Inc., ASBCA No. 50843, 98-2 BCA ¶ 30,088.
Further, it is not up to Respondent to determine who has authority to submit a claim, as the certification authority standards do not pertain to submission of the claim itself.  See, e.g., Writing Co. v. Dept. of  Treasury, GSBCA No. 15117-TD, 00-2 BCA ¶ 31,076, n. 14.  Attorneys, agents, and other representatives of contractors may submit claims.  See, e.g., Malheur Lumber Co., AGBCA No. 87-398-3, 91-1 BCA ¶ 23,545; Rapoco, 90-3 BCA ¶ 23,146.  Respondent does not challenge specifically the claim certification, and there is no evidence that the signatory lacked authority.   In any event, execution even of the statutorily-required certification by an improper person is a correctable defect.  See Home Entertainment, Inc., ASBCA No. 50791, 98-1 BCA ¶ 29,460.

 In this case, Respondent’s contracting officer issued a final decision in response to the claim without questioning authority.  While the contracting officer directed his final decision to the same Facilities Manager that filed it as City Center’s authorized representative, he mistakenly identified Cosmos, rather than City Center, as the claimant.   The contracting officer sent his final decision, however, to the very address identified in the lease for City Center, a clear recognition that he believed that City Center was the entity whose claim he was deciding.

 Regarding the notice of appeal, the CDA does not require that an appeal on behalf of a contractor be filed by some specific person or that the notice must include all indicia of agency or representation.  See 41 U.S.C. § 7104; Frank E. Basil, Inc./Trataros Constr., Inc., JV, DOTCAB No. 2554, 93-2 BCA ¶ 25,802.  In this case, of course, the notice of appeal did include indicia of representation, as it also was expressly submitted by the Facilities Manager for Cosmos, as “authorized agent, Redmond City Center, L.L.C.”  The opening paragraph of the notice of appeal specifically recites that Cosmos “on behalf of Redmond City Center, LLC (Owner) is appealing your Final Decision . . . .”  Such a representative may submit appeals to the Board.  See Rapoco, 90-3 BCA ¶ 23,146; see also, 39 CFR § 955.3(b).
 Both the claim and appeal were submitted by City Center, the contracting party in privity with Respondent.  Both were submitted by City Center’s authorized representative or agent, which is permissible under the CDA.  Respondent’s motion is denied.
 In its opposition, Appellant requested that the caption of this appeal be changed to Appeal of Redmond City Center, L.L.C.  That request is granted, and the caption is changed accordingly.

CONCLUSION

Respondent’s motion to dismiss for lack of jurisdiction is denied.

      Gary E. Shapiro
      Administrative Judge
      Vice Chairman

I concur:                                      I concur:

____________________        ___________________
William A. Campbell                   Peter F. Pontzer
Administrative Judge                Administrative Judge
Chairman                                   Board Member