January 28, 2016

PATRICK M. MURRAY v. UNITED STATES POSTAL SERVICE

PSBCA No. 6603

APPEARANCE FOR APPELLANT:
Patrick M. Murray   

APPEARANCE FOR RESPONDENT:
Steven C. Hough, Esquire
United States Postal Service Law Department 

OPINION OF THE BOARD

ON RESPONDENT’S MOTION TO DISMISS FOR LACK OF JURISDICTION

The United States Postal Service moves to dismiss for lack of jurisdiction alleging that Patrick M. Murray did not file a claim with a sum certain as required by the Contract Disputes Act.  Mr. Murray responds by arguing that the amount of the claim easily could be calculated or, in the alternative, that he seeks the adjustment of contract terms.  We grant the Motion to Dismiss, and dismiss the appeal without prejudice.

FINDINGS OF FACT

1. In 2011, Mr. Murray held Contract HCR 96046 with the Postal Service to deliver mail in Cottonwood, California, at an annual rate of $45,325.32.  The contract was set to expire on June 30, 2011.  (AF E at 1, 14, 22-24).
2. On May 17, 2011, the Postal Service sent a letter to Mr. Murray with revised terms and conditions and asked whether he wanted to renew the contract (AF A at 1-3).
3. On June 10, 2011, Mr. Murray sent a letter to the Postal Service asking how the solicitation could include an increase in the number of mail boxes on his route but a reduction in the estimated number of hours.  This letter did not include a request for money from the Postal Service.  (AF B). 
4. The Postal Service responded by email on June 25, 2011.  The email briefly explained the Postal Service’s calculations.  (AF C at 6-7).
5. The parties signed a contract amendment extending the contract term for four years from July 1, 2011 to June 30, 2015.  Mr. Murray signed the amendment on June 29, 2011.  The contracting officer signed the amendment on July 16, 2011.  The parties agreed to an annual price of $39,602.32 per year.  (AF E at 11-12, 14-15, 21).
6. The contract included the Claims and Disputes Clause (March 2006).  The clause defines a “claim.” “Claim,” as used in this clause, means a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to this contract.  However, a written demand or written assertion by the supplier seeking the payment of money exceeding $100,000 is not a claim under the [Contract Disputes] Act until certified . . . .  A voucher, invoice, or other routine request for payment that is not in dispute when submitted is not a claim under the Act.  The submission may be converted to a claim under the Act by complying with the submission and certification requirements of this clause, if it is disputed either as to liability or amount is not acted upon in a reasonable time. (AF E at 51).
7. On July 20, 2011, Mr. Murray sent two letters to the contracting officer (AF Supp. O, Q).  The second letter restated the first letter and added more information (AF Supp. O at 150).  Neither letter identified itself as a claim, demanded a final decision, or identified a specific amount of money sought by Mr. Murray.  Neither letter included a claim certification.  (AF Supp. O, Q).
8. In the second July 20, 2011 letter, Mr. Murray made five requests to the contracting officer.  First, he sought an investigation regarding the negotiation methods used by the Postal Service’s Purchasing Analyst and a local postmaster.  Second, he sought an explanation as to whether time cards were used by the Postal Service in developing its negotiation position.  Third, “[t]hat my hourly rate of pay be increased, pursuant to the verbal agreement with [the Purchasing Analyst].”  Fourth, “[t]hat my contract be corrected to indicate the new mileage rate on BOTH pages of my contract and that the new contract be recalculated to reflect, not only the increase in my hourly pay, as verbally offered by [the Purchasing Analyst] and which increase I accepted, but also to indicate the correct mileage increase.”  Finally, Mr. Murray asked whether the local postmaster is authorized to negotiate contract terms and what role the postmaster plays in contract negotiations.  (AF Supp. Q).
9. On December 30, 2011, the contracting officer responded to the first, second, and fifth requests.   The contracting officer’s response did not identify itself as a contracting officer’s final decision and did not provide a notice to the contractor identifying the right to appeal a final decision.  (App. Exh. C; see also 41 U.S.C. § 7103; 39 C.F.R. § 601.109(g)(7)). 
10. The parties modified the contract in 2014.  Effective October 1, 2014, the annual price increased to $39,787.93, and the contract term was extended from June 30, 2015 to March 31, 2017.  (AF K at 135-37).
11. On July 6, 2015 (nine months after the parties agreed to a new annual contract price and a week after the expiration of the original contract term), Mr. Murray appealed a deemed denial of his July 20, 2011 “complaint.”  Mr. Murray requested the use of the Board’s accelerated procedures.  (See Notice of Appeal; see also 41 U.S.C. § 7106; 39 C.F.R. § 955.13).
12. The Postal Service objected to the use of accelerated procedures because Mr. Murray did not identify an amount in dispute.  In addition, the Postal Service argued that the Board lacked jurisdiction because Mr. Murray had not submitted a claim to the contracting officer for final decision.  During a conference with the Board, Mr. Murray withdrew his request for accelerated procedures.  (See July 17, 2015 Order; August 7, 2015 Order and Memorandum of Telephone Conference).
13. The Postal Service subsequently moved to dismiss for lack of jurisdiction.  Mr. Murray opposed the motion.

DECISION

The Postal Service moves to dismiss for lack of jurisdiction arguing that Mr. Murray did not submit a monetary claim with a sum certain.  Mr. Murray responds that his July 20, 2011 letter was a claim. 

He argues that the third request in the letter sought an increase in the contract rate to reflect an agreement with the Purchasing Analyst (see Finding 8).  Even though the July 20, 2011 letter did not include a specific dollar amount, Mr. Murray argues that we have jurisdiction because a sum certain can be determined with a simple mathematical calculation. 

Alternatively, Mr. Murray argues that the July 20, 2011 letter is a claim because his fourth request sought an adjustment of the contract’s terms to reflect an oral agreement he had with the Purchasing Analyst (see Finding 8).

The Contract Disputes Act (CDA) provides the basis for the Board’s jurisdiction in this case.  41 U.S.C. §§ 7101-7109 (2012).  “As a prerequisite for the Board’s jurisdiction, the CDA requires a contractor to present a valid claim over which the contracting officer has rendered a final decision.”  Parsons Global Servs., Inc. v. McHugh, 677 F.3d 1166, 1170 (Fed. Cir. 2012).  “Each claim by a contractor against the Federal Government relating to a contract shall be in writing” and “shall be submitted to the contracting officer for a decision.”  41 U.S.C. § 7103(a).  “Absent this ‘claim’, no ‘decision’ is possible and, hence, no basis for jurisdiction” before the Board exists.  Paragon Energy Corp. v. United States, 645 F.2d 966, 971 (Ct. Cl. 1981); see also Linda Copman, PSBCA Nos. 4889, 4903, 03-2 BCA ¶ 32,343.

Because the CDA does not define “claim,” we look to the contract language.  See The General Store, PSBCA No. 3951, 98-1 BCA ¶ 29,573; CPS Mech. Contractors, Inc. v. United States, 59 Fed. Cl. 760, 762 n.1 (2004).  The contract between the Postal Service and Mr. Murray includes a definition of a “claim.”  This definition requires that the claim demand “the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to this contract.”  (Finding 6).

SUM CERTAIN

Mr. Murray concedes that his “claim” (the longer of the July 20, 2011 letters) does not identify a specific amount that he contends is owed by the Postal Service.  Instead he argues that the amount claimed is apparent and can be determined with simple mathematics.  See Appellant’s Statement in Support of Claim/Complaint, August 14, 2015; Modeer v. United States, 68 Fed. Cl. 131, 137 (2005)(“[t]he sum certain requirement is met if the contracting officer can determine the amount claimed by a simple mathematical calculation”), aff’d, 183 F. App’x 975 (Fed. Cir. 2006).  Mr. Murray offers the following explanation: Appellant’s hours were cut to 2111. Appellant’s income in the prior contract which was being renegotiated for the next four (4) years, was $45,325 (which included Operational Costs and Fuel expenses). On PS Form 7406 “Amendment to Transportation Services Contract”, the body of this document states: “FINALIZE EXPIRING CONTRACT
As a result of renewal negotiations between supplier and the Postal Service, contract is amended as stated.
NEW CONTRACT RATE: $39,602.32 per annum.
Official paid box COUNT: 391
Adjust pay by <$5,723.00> PER ANNUM, effective SEE ABOVE...” Simple mathematics could easily have given Respondent a “sum certain”. Appellant’s yearly hours were cut to 2,111.  Appellant’s prior contract which was being “negotiated” and renewed paid Appellant $45,325 (+/- changes could apply due to any CPI adjustments from time to time). Simple mathematical equation: NEW CONTRACT RATE - $39,602.32 + $5,723.00 (amt. being taken away) = $45,325.32. To take it a step further, NEW HOURS = 2111.  To ascertain new hourly rate of pay needed to “compensate for hours lost”, all the Respondent needed to do was spanide the prior contract amount ($45,325.32, less Operational Costs and Fuel (OCF) expenses of $8,058.53 = $37,266.79) by the “new hours” (2111), to ascertain the new hourly rate.  ($45,325.32 < $8,058.53 OCF> = $37,266.79 / 2111 = “$17.65 dollars per hour).  (Appellant’s Statement in Support of Claim/Complaint at 4-5)(citations omitted).

In evaluating this explanation, we are guided by the Federal Circuit:  “[A] valid claim under the CDA must contain a clear and unequivocal statement that gives the contracting officer adequate notice of the basis and amount of the claim.”  Northrop Grumman Computing Sys., Inc. v. United States, 709 F.3d 1107, 1112 (Fed. Cir. 2013) (internal quotation marks omitted).  Tellingly, notwithstanding this explanation, Mr. Murray does not identify a sum certain in his Notice of Appeal, in his response to the Postal Service’s objection to the use of accelerated procedures, or in his brief replying to the Motion to Dismiss.  Moreover, in his response to the Postal Service’s objection to using accelerated procedures because of an unstated amount at issue, Mr. Murray explained “[r]egarding a total amount claimed, I would not know how to figure out how much damages I may be entitled to . . . .”  See Appellant’s Statement Regarding Accelerated Procedures, July 29, 2015 at 3. 

The contracting officer is not required to infer a sum certain from Mr. Murray’s explanation.  In this case, contrary to Mr. Murray’s explanation (quoted above), a simple mathematical calculation of a sum certain is not possible.  See Metric Const. Co. v. United States, 14 Cl. Ct. 177, 180 (1988)(“it would be quite easy for a contracting officer to compute incorrectly the amounts that Metric claims”).

ADJUSTMENT OF CONTRACT TERMS

In the alternative, Mr. Murray argues that we have jurisdiction because he is seeking adjustment of the contract terms.  Mr. Murray’s letter to the contracting officer sought a change in the hourly rate, a change in the total hours, and a change in the mileage rate to reflect what he thought was an agreement he had with the Purchasing Analyst before he signed the contract (Finding 8).

We disagree with Mr. Murray’s characterization of this claim as one merely seeking an adjustment of contract terms.  In our view, the essence of his claim was and is entirely monetary, and as noted above, Mr. Murray has not presented a monetary claim cognizable under the CDA.  Given the circumstances present here, the Board will not adjudicate an inadequate monetary claim clothed as a claim for contract adjustment.  Pacific Coast Cmty. Serv., Inc. v. Dept. of Homeland Security, CBCA No. 5063, 2016 WL 185134 (January 14, 2016); CDM Constructors, Inc., ASBCA No. 59524, 15-1 BCA ¶ 36,097; Commissioning Solutions Global LLC, ASBCA No. 59007-945, 14-1 ¶ BCA 35,523; Kellogg Brown & Root Serv., Inc. v. United States, 115 Fed. Cl. 168 (2014).

ORDER

The Postal Service’s Motion to Dismiss is granted.  The appeal is dismissed without prejudice.  Mr. Murray may submit to the contracting officer for final decision a properly certified (if over $100,000) claim for the payment of money in a sum certain.

Peter F. Pontzer
Administrative Judge
Board Member

I concur:
Gary E. Shapiro
Administrative Judge
Chairman

I concur:
Alan R. Caramella
Administrative Judge
Board Member

¹ Mr. Murray also sought damages based on alleged fraudulent behavior of Postal Service employees.  He withdrew this allegation in his reply to the Motion to Dismiss.

² Respondent’s exhibits are referred to as “AF” for the appeal file or “AF Supp.” for the appeal file supplement.  Appellant’s exhibits are referred to as “App. Exh.”

³ The record is unclear whether the contracting officer responded to the first or second July 20, 2011 letter, which in either case, does not affect our decision.