Appeal of
STEVEN S. FREEDMAN
Under Contract No. 339990-93-P-0344
PSBCA No. 3867

APPEARANCE FOR APPELLANT:
Steven S. Freedman

APPEARANCE FOR RESPONDENT:
Daniel M. Curts, Esq.

OPINION OF THE BOARD ON MOTION TO DISMISS

            Appellant, Steven S. Freedman, filed this appeal to challenge the failure of Respondent, United States Postal Service, to extend his contract for custodial services at a postal facility.  Respondent has filed a motion to dismiss the appeal on the ground that Appellant did not submit his claim for relief to the contracting officer and receive a final decision before filing the appeal and because Respondent contends that certain of the relief sought by Appellant is beyond the Board’s jurisdiction.  For purposes of deciding the motion to dismiss, the following findings of fact are made.

FINDINGS OF FACT

            1.  Appellant held a two-year contract to provide cleaning services at Respondent’s Industrial Branch in Hillside, New Jersey.  The contract expiration date was March 17, 1995, but the contract provided for extending the term for up to four additional two-year terms.  (Appeal File Tab (“AF”) 2).

            2.  Before the expiration date, Appellant and the contracting officer discussed extending the contract for two years and reached oral agreement regarding the price for the additional term.  The contracting officer took steps to formalize the extension, but when Respondent did not receive from Appellant the signed extension agreement before the contract’s expiration date, Respondent rescinded the offer to extend.  (AF 6-9).

            3.  The cleaning requirement was resolicited, and Appellant was the successful offeror, but the resolicited contract was at an annual rate lower than that he had discussed with the contracting officer for the extension (AF 2).

            4.  In a March 31, 1995 letter to his congressman, Appellant complained about Respondent’s failure to extend the contract (AF 5).

            5.  The congressman referred the letter to Respondent, and, by letter dated July 12, 1995, the contracting officer replied to the congressman, setting forth Respondent’s views on the extension controversy (AF 5).

            6.  On August 4, 1995, Appellant filed this appeal in response to his receipt of the contracting officer’s reply to his congressman (AF 5).

            7.  The relief sought by Appellant, as set forth in his complaint, is reinstatement of the first contract option, punitive damages and money damages for lost profits reflecting the difference between the extension rate he discussed with the contracting officer and the lower rate in the resolicited cleaning contract which he is now performing.

DECISION

            Although the Board may not order a contracting officer to exercise an option available to Respondent in a contract or, absent allegations of bad faith, review a contracting officer’s decision not to exercise an option, Erwin Melvie, PSBCA No. 1744, 87-3 BCA ¶ 20,158; Mr. and Mrs. Edward R. Ester, PSBCA No. 1559, March 24, 1987; Monarch Enterprises, Inc., ASBCA No. 31375, 86-3 BCA ¶ 19,227, the Board may address whether actions of the parties constituted a renewal or an implied-in-fact contract to renew.  Shorthaul Trucking Co., PSBCA No. 1046, 1985 WL 16706, June 18, 1985.  The remedy sought by Appellant, however, reinstatement of the contract as if the option had been exercised, is not within the Board’s authority.  David Sahagian, PSBCA No. 3543, 94-3 BCA ¶ 27,269; D’s Nationwide Industrial Services, Inc., PSBCA No. 3071, 93-1 BCA ¶ 25,454.  Therefore, the part of the complaint in which Appellant seeks reinstatement is subject to dismissal.

            Claims for money damages incurred by Appellant allegedly because of Respondent’s failure to continue Appellant’s performance under the renewal term of the original contract may be considered by the Board, but any such consideration must be preceded by submission of the claim in writing to the contracting officer for a final decision.  See 41 U.S.C. § 605(a); Paragon Energy Corp. v. United States, 645 F.2d 966, 971 (Ct. Cl. 1981); Jerome Bailey, PSBCA No. 3638, 95-1 BCA ¶ 27,447; James H. Foster, PSBCA No. 3152, 93-1 BCA ¶ 25,362.  In this appeal, although the gist of the claim is known to the contracting officer through Appellant’s correspondence with his congressman, the claim has not been submitted to the contracting officer and been the subject of a final decision.  Appellant’s assertion of this monetary claim, for the first time, in his complaint does not suffice to give the Board jurisdiction.  See James H. Foster, PSBCA No. 3152, 93-1 BCA ¶ 25,362.  Therefore, the portion of the complaint seeking monetary relief for lost profits is dismissed.  See Mr. and Mrs. Edward R. Ester, PSBCA No. 1559, March 24, 1987.  However, that dismissal is without prejudice, and Appellant may submit a proper claim to the contracting officer and file another appeal if the contracting officer denies the claim.

            Finally, the portion of the complaint seeking punitive damages is dismissed because the Board is without authority to award such damages.  Computer Power Support, Inc., PSBCA No. 3401, 94-2 BCA ¶ 26,626; Paul A. Mason, PSBCA No. 1473, 86-3 BCA ¶ 19,142.

            Appellant’s reinstatement and punitive damage claims are dismissed as the relief sought is not within the authority of the Board to grant.  The lost profits claim is beyond the jurisdiction of the Board and, as discussed above, is dismissed without prejudice.

Norman D. Menegat
Administrative Judge
Board Member

I concur:
James A. Cohen
Administrative Judge
Chairman

I concur:
James D. Finn, Jr.
Administrative Judge
Vice Chairman