June 28, 2013

Appeal of

ALLEN JERRY OLIVER

Under Contract No. HCR 230 A-1

PSBCA No. 6500           

APPEARANCE FOR RESPONDENT:  Joseph Anzalone, Esq. 
United States Postal Service
Procurement and Property Law
Section

APPEARANCE FOR APPELLANT:  Allen Jerry Oliver

OPINION OF THE BOARD
ON RESPONDENT’S MOTION TO DISMISS

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

FINDINGS OF FACT

 We make the following findings of fact solely for the purpose of deciding this motion.  As the motion was filed before an appeal file, we base these findings on the complaint and documents submitted by Appellant, Allen Jerry Oliver. 

1. Appellant provides mail transportation and delivery services for Respondent between Toano, Virginia and Richmond, Virginia under contract No. HCR 230 A-1.  Appellant believes that he is due monetary compensation from Respondent for additional contract work. 

2. Proceeding without counsel, Appellant initially sought redress from the Postal Service’s Office of Inspector General (OIG) in March 2013.

3. In April 2013, Appellant sent a notice to the Board seeking to initiate litigation.  His submission recited that an OIG agent suggested that he direct the matter to the Board.  Although reciting contract grievances, Appellant’s notice did not identify a monetary demand, claim, or final decision. 

4. The Board docketed this submission as an appeal.  See Notice of Docketing and Complaint Due Date, April 17, 2013.  Appellant thereafter filed an undated complaint which asserted that he is due additional contract compensation.  The complaint identified monetary amounts at issue, but did not reference a claim or contracting officer’s decision on which it was based.

5. On May 21, 2013, in lieu of an answer, Respondent filed a motion to dismiss for lack of jurisdiction.  Respondent’s motion states that Appellant has not submitted a Contract Disputes Act (CDA) claim and that Respondent’s contracting officer has not issued a decision on which an appeal can be based. 

6. On May 29, 2013, the Board issued an Order directing Appellant to respond to the motion.  The Order explained to Appellant that if he contends that Respondent’s motion should be denied, his response should “identify the document or documents that he believes should be considered as the claim filed with the contracting officer, and the contracting officer's decision thereon, if any.” 

7. On June 4, 2013, Appellant responded to the motion.  Appellant’s response reviewed his various efforts to have his grievances addressed, but did not identify a claim or final decision on which his case is based.  Appellant stated in his response that “I have no claim to the CO [contracting officer] concerning this nonpayment complaint . . . .“  Appellant also stated that he has been treated unfairly by the Postal Service, and suggests that he should be heard at the Board to which he was referred by the OIG.

DECISION

Respondent is correct that the Board lacks jurisdiction.  Our jurisdiction in a case of this type depends upon a contractor having submitted a cognizable CDA monetary claim to Respondent’s contracting officer, and having filed a timely appeal from a contracting officer’s decision thereon (or an appeal following expiration of the statutory time period for the contracting officer to have issued a decision).  See 41 U.S.C. § 7103-7104; Sharman Co., Inc. v. United States, 2 F.3d 1564, 1568-69 (Fed. Cir. 1993).  Here, neither a claim nor a contracting officer’s decision exists (Findings of Fact 3, 4, 7).

Appellant cannot create jurisdiction by identifying a monetary claim amount for the first time in the complaint.  See Centurion Elec. Serv., ASBCA No. 51956, 03-1 BCA ¶ 32,097, recon. denied, 03-2 BCA ¶ 32,262, aff’d, 95 Fed. Appx. 978 (Fed. Cir. 2004).  Nor could a suggestion by an OIG agent that Appellant should refer his grievances to the Board (see Findings of Fact 3, 7) confer jurisdiction where it otherwise does not exist.  Rather, Congress established the CDA claims and disputes process in part to encourage resolution of government contract disputes by negotiation without the need for litigation of such claims before a board or court.  See Newell Clothing Co., ASBCA No. 24482, 80-2 BCA ¶ 14,774.  That negotiated dispute resolution process must be given an opportunity to proceed, after which there may remain no dispute for the Board to resolve.   We presently lack jurisdiction to address the matter.

CONCLUSION 6500 A

Respondent’s motion to dismiss for lack of jurisdiction is granted.  The case is dismissed without prejudice to Appellant’s ability to submit a timely appeal to the Board if the statutory requirements are satisfied.

      Gary E. Shapiro
      Administrative Judge
      Vice Chairman

I concur:                                       I concur:

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