Appeal of
NATIONWIDE POSTAL MANAGEMENT
LEASE AGREEMENT
PSBCA No. 3989

APPEARANCE FOR APPELLANT:
J. Leonard Spodek

APPEARANCE FOR RESPONDENT:
Robert P. Faust, Esq.

OPINION OF THE BOARD

            Appellant, Nationwide Postal Management, has appealed the decision of the contracting officer denying its claim for $1,100 for alleged improper deductions from rent owed by Respondent, United States Postal Service, to Appellant.  The parties have elected to submit their cases on the record in accordance with 39 C.F.R. §955.12.  Only entitlement is at issue in this appeal.

FINDINGS OF FACT

            1.  Respondent leased the Highland Hills Post Office, San Antonio, Texas from Appellant’s predecessor-in-interest for an initial term beginning on July 1, 1986 and ending June 30, 1991.  The lease contained two five-year options, which have been exercised.  (Appeal File Tab (AF) A1).

            2.  Appellant purchased the property in 1992 (AF A3; Declaration of Arthur Jimenez).

            3.  In accordance with Paragraph (c)(2) of the Maintenance Rider to the lease, the lessor is responsible for all structural repairs to the demised premises, including all parts of the roof system (AF A1).

            4.  The roof on the Highland Hills Post Office is approximately 37 years old.  By February 1996, the roof leaked in six different locations whenever it rained.  (Declarations of Charles Juarez, Robert Belden, Arthur Jimenez, Kathy Davis; AF B2).

            5.  By letter dated February 29, 1996, Respondent’s contracting officer notified Appellant that the roof on the Highland Hills Post Office was leaking and that the situation was urgent.  Appellant was requested to immediately arrange for roof repairs to take place no later than the following day.  (AF B1).

            6.  On March 1, 1996, Appellant notified Respondent’s contracting officer that a roofing contractor would send someone to the post office “as soon as possible” and to advise him if no one showed up.  (Jimenez Declaration, Exhibit 1).

            7.  By letter dated March 5, 1996, the contracting officer again informed Appellant that the roof continued to leak, causing wet and slippery floors which constituted a significant safety hazard for the customers and employees of the post office.  Appellant was requested to repair the roof that same day and warned that if it did not do so, Respondent would have no choice but to make its own arrangements to have the roof repaired to insure the safety of its customers and employees.  Appellant was advised that Respondent’s cost to repair the roof, plus administrative costs, would be charged to Appellant and deducted from rental payments owed.  (AF B2).

            8.  In two facsimiles, sent on March 6, 1996, the contracting officer again demanded that, unless Appellant acted immediately to repair the roof, Respondent would make its own arrangements to have the roof repaired to correct a significant safety hazard (AF B5, B6).  Similar warnings were issued to Appellant by facsimile on March 7, and by letter on March 12, 1996 (AF B9, B10).

            9.  In addition to the letters and facsimiles sent to Appellant, the contracting officer had numerous telephone conversations with Appellant during this same time period.  In these conversations, Appellant repeatedly assured Respondent that he would soon award a contract to have the post office roof replaced.  Nevertheless, as of March 27, 1996, no roof repair or replacement work had been accomplished.  (Declaration of Arthur Jimenez; Declaration of Robert Belden).

            10.  On March 27, 1996, Respondent had emergency repairs made to the roof of the Highland Hills Post Office at a cost of $900.00 (AF B16, D1, D2).  These emergency repairs were necessary, reasonable and well done and the amount charged appropriate for the work accomplished (Declaration of Robert Belden).

            11.  On June 11, 1996, Appellant was notified that $900.00 had been deducted from the June rent on the Highland Hills Post Office to cover the cost of the emergency roof repair (AF B18).

            12.  By letter dated July 12, 1996, Appellant filed a claim for return of the $900.00 deducted from the June rent payment, plus $200.00 in unspecified administrative costs.  Appellant claimed that he should have been notified prior to Respondent undertaking the repairs.  (AF B19).

            13.  By final decision dated July 15, 1996, the contracting officer denied Appellant’s claim, finding that Appellant had received sufficient notice to have allowed him to carry out the repairs prior to the Postal Service having had to accomplish them (AF B20).

            14.  By letter dated August 27, 1996, Appellant filed a timely appeal of the contracting officer’s decision (AF B21).

DECISION

            Appellant argues in this appeal that he was not notified of the need for emergency repairs of the roof of the Highland Hills Post Office.  Had he been provided notice, Appellant argues that he would have arranged for the contractor he had engaged to replace the roof on that post office to first perform emergency repairs.  Respondent argues that, under the terms of the lease, it was Appellant’s responsibility to maintain the roof.  Furthermore, Respondent argues that Appellant was given more than adequate notice of the immediate need to perform emergency repairs to the roof and that, when Appellant failed to heed Respondent’s repeated requests to accomplish the roof repairs, Respondent had the right to carry out the repairs and charge Appellant with their cost. 

            The lease placed upon Appellant the responsibility to perform all necessary repairs to the roof (Finding of Fact No. (FOF) 3).  The evidence in this appeal demonstrates that the roof was 37 years old and quite badly in need of immediate, emergency repair (FOF 4-8).  Appellant was repeatedly given notice of the immediate need to perform emergency repairs to the post office roof and warned that his failure to act immediately would result in Respondent performing the repairs and charging their costs to Appellant (FOF 5-7).

            When Appellant failed to heed these warnings and repair the roof, Respondent had the work done and offset its cost ($900.00) against rent owed to Appellant under the lease (FOF 8, 9).  The evidence demonstrates that the repair work accomplished by Respondent was necessary and well done, and that the amount charged for the work was reasonable  (FOF 8).  In so doing, Respondent was well within its contractual right.  See Massapequa Partners Limited Partnership MPL Group, Inc., PSBCA No. 3817, 97-2 BCA ¶ 29,058; M.R. Kaplan, et al., PSBCA Nos. 1147, 1298, 1303, 1310, 88-3 BCA ¶ 20,827.

            Accordingly, this appeal is denied.

William K. Mahn
Administrative Judge
Board Member

I concur:
James A. Cohen
Administrative Judge
Chairman

I concur:
David I. Brochstein
Administrative Judge
Vice Chairman