PSBCA Nos. 6331, 6333, and 6334
November 22, 2010
FIRST NATIONWIDE POSTAL HOLDINGS and
GARY GLEN PARK REALTY LLC
LEASE AGREEMENTS
PSBCA Nos. 6331, 6333, and 6334
APPEARANCE FOR APPELLANT
Andrew Spodek
APPEARANCE FOR RESPONDENT
Jacqui De Laet Skoglund, Esq.
OPINION OF THE BOARD ON MOTIONS TO DISMISS
Respondent, United States Postal Service, has filed motions to dismiss these appeals for lack of jurisdiction on the basis that Appellants, First Nationwide Postal Holdings and Gary Glen Park Realty, LLC, filed their notices of appeal more than 90 days after they received the relevant contracting officer’s final decisions. Proceedings in these appeals have been suspended pending the Board’s decision on the motions.
For the purpose of deciding the motions, we make the following findings of fact:
FINDINGS OF FACT - PSBCA NO. 6331
1. By letter dated September 24, 2009, the contracting officer issued a final decision asserting a claim against Appellant, Gary Glen Park Realty, LLC, in the amount of $2,084.04 to recover the cost of a storm drain investigation at the Gary Glen Park Station, which Appellant leased to Respondent.[1] Appellant received the final decision on September 29, 2009. (Motion to Dismiss, Exh. A, B).
2. In a September 29, 2009 email to the contracting officer, Appellant stated:
As per your request I’ve attached a copy of your final decision regarding the storm drain investigation we received today. Furthermore, as per our conversation I’m going to wait for you to research this matter and advise us why this “investigation” which was done on October 16, 2008, after the Postal Service pumped the drain on August 8, 2008 was not have been [sic] part of [an earlier] final decision, was never brought to my attention before we settled the matter and why it has taken almost a year to request reimbursement.
(Attachment to Appellant’s corrected response to Respondent’s motion to dismiss (Appnt Att)).
3. In a November 12, 2009 follow-up email, referring to the September 24, 2009 final decision, Appellant wrote to the contracting officer, stating, “I just wanted to drop you a note to see if there is any update on this issue.” (Appnt Att).
4. In another follow-up email, dated January 18, 2010, to the contracting officer, Appellant wrote: “I have yet to receive a response to my [September 29, 2009] email …, please confirm that you received it and call me to discuss it at your earliest convenience.” (Appnt Att).
5. In an email dated February 4, 2010, to the contracting officer, Appellant wrote, in relevant part:
I have sent you a number of emails regarding the final decisions issued on the Gary, Peru & South Marion Indiana facilities yet for some reason I haven’t received any significant response. At this point, even though I would like to resolve these matters I don’t get the impression you feel the same way. If I am mistaken and you would like to discuss these matters, please contact me. If, however, you are not open to this please send my request for appeals in all of these matters to the Board of Contract Appeals.
Among the final decisions referenced in the email was the one dated September 24, 2009. (Appnt Att; Attachment to notice of appeal).
6. The record contains no evidence that the contracting officer responded to any of Appellant’s emails.
7. Appellant filed a notice of appeal from the referenced final decisions directly with this Board on June 7, 2010.
DECISION - PSBCA No. 6331
Respondent argues that Appellant did not file a timely notice of appeal from the contracting officer’s September 24, 2009 final decision. Respondent also argues that there is no evidence that the contracting officer agreed to reconsider his September 24, 2009 decision.
Appellant argues that it did not file an immediate notice of appeal because it was hoping to resolve the matter with the contracting officer, as it had resolved an earlier dispute involving the same facility. Appellant argues that it communicated with the contracting officer in that regard and that such communications continued for a number of months. Appellant also argues that its September 29, 2009 email constituted a timely notice of appeal.
Based on the limited record before us, and as explained below, we are persuaded that Appellant reasonably concluded that the contracting officer had agreed to reconsider his decision. For that reason, the time for filing an appeal had not expired as of the February 4, 2010 email which Respondent concedes constituted a notice of appeal. See, e.g., Sach Sinha & Assoc., Inc., ASBCA No. 46916, 95-1 BCA ¶ 27,499, at 137,042 (“the issue to be resolved … is whether the contractor presented evidence showing it reasonably or objectively could have concluded the CO’s decision was being reconsidered.”).
In its argument, Respondent characterizes Appellant’s September 29, 2009 email, which Appellant provided with its response to the motion to dismiss, as a “request” that the contracting officer research the matter and advise Appellant of his findings. The substance of the email, however, reflects more than simply a request by Appellant to the contracting officer. Rather, it recites that Appellant’s principal and the contracting officer had already spoken and had agreed that the contracting officer would research the matter and that Appellant would “wait” while he did so. In its later submittals responding to Appellant’s arguments and evidence, Respondent offered no evidence calling into question the accuracy of the statement in the email regarding the alleged conversation and, from this, we infer that the conversation occurred as described. See, e.g., CACI, Inc. - Federal v. General Services Administration, GSBCA No. 15588, 02-1 BCA ¶ 31,712. While the email does not state explicitly that Appellant would “wait” to file an appeal, that is the reasonable inference from the language used. On these facts, we conclude that Appellant was reasonable in its belief that the final decision was being reconsidered.[2] Sach Sinha & Assoc., Inc., supra. Accordingly, receipt of the September 24, 2009 final decision did not establish the beginning of the 90-day appeal period for the purpose of determining the Board’s jurisdiction, and Appellant’s February 4, 2010 notice of appeal, although sent more than 90 days after Appellant’s receipt of that final decision, was timely. See Nationwide Postal Management, PSBCA No. 5043, 04-1 BCA ¶ 32,492 and cases cited therein.
Accordingly, Respondent’s motion to dismiss PSBCA No. 6331 is denied.[3]
FINDINGS OF FACT - PSBCA Nos. 6333 and 6334
8. In a final decision dated July 22, 2009, the contracting officer asserted Respondent’s claim for the cost of exterior painting and interior ceiling tile replacement at the South Marion, Indiana Post Office.[4] The final decision sought $4,107.28 in damages from Appellant, First Nationwide Postal Holdings, which leased the facility to Respondent. Appellant received the final decision on July 29, 2009. (6334 Motion to Dismiss, Exh. A, B).
9. In a final decision dated August 3, 2009, the contracting officer asserted Respondent’s claim for the cost of repairs to the canopy lighting at the South Marion Post Office.[5] The decision sought $1,651.86 in damages from Appellant. Appellant received the final decision on August 6, 2009. (6333 Motion to Dismiss, Exh. A, B).
10. In an email dated August 27, 2009, addressing both South Marion final decisions, Appellant’s representative wrote to the contracting officer:
…. I was about to appeal your July 22 & August 3rd final decisions and thought it better to resend Isaacs email[[6]] to email [sic] so that we can discuss a possible resolution of these matters outside the court room. If you are not amenable to [this] please let me know and I will file our appeal immediately.
(6333/4 Appnt Att).
11. In an August 28, 2009 email, the contracting officer responded: “I don’t recall receiving this email from Isaac but I will check into it and get back to you.” (6333/4 Appnt Att).
12. In a September 22, 2009 email to the contracting officer, Appellant’s representative wrote, in relevant part, “I just wanted to follow up on my prior email and see if you were able to find anything out.” (Id.). The record contains no evidence that the contracting officer replied to this email.
13. The next communication in the record regarding the South Marion Post Office is the February 4, 2010 notice of appeal referred to in Finding 5, above, which also referenced the July 22 and August 3, 2009 South Marion Post Office final decisions.
14. Appellant filed a notice of appeal from the referenced final decisions directly with this Board on June 7, 2010.
DECISION - PSBCA Nos. 6333 and 6334
Respondent argues that Appellant did not communicate a notice of appeal until its February 4, 2010 email, which was not within 90 days of receipt of either final decision and was, therefore, untimely. In addition, as before, Respondent contends that there is no evidence that the contracting officer agreed to reconsider his decision.
Appellant argues that its August 27, 2009 email (Finding 10) fulfilled the requirements of a notice of appeal in that it expressed both disagreement with the final decisions and an intent to appeal to a higher authority.
In this instance, Appellant advised the contracting officer that it had intended to appeal but, instead, invited the contracting officer to discuss resolution of the disputes. The contracting officer replied that he would “check into it and get back to you.” If the contracting officer had concluded that he was not interested in attempting to resolve the disputes, he easily could have “gotten back” to Appellant’s representative, as he said he would, and disabused him of that possibility. However, he did not do so, even after the September 22, 2009 follow-up email from Appellant.
As with PSBCA No. 6331, this is not a situation in which there was simply a request by the contractor that the contracting officer reconsider his final decisions, to which there was no response whatsoever from the contracting officer. See, e.g., Horton Electric, Inc., ASBCA No. 35677, 88-2 BCA ¶ 20,608. Rather, in this instance, the contracting officer specifically advised that he would “look into it and get back to you.” Based on this response from the contracting officer, we conclude that because the contracting officer did not later advise Appellant that he would not reconsider his decisions, Appellant was justified in concluding that the final decisions were being reconsidered and that immediate appeals were unnecessary. E.g., Johnson Controls, Inc., ASBCA No. 28340, 83-2 BCA ¶ 16,915. Therefore, receipt of the July 22 and August 3, 2009 final decisions did not establish the beginning of the 90-day appeal periods, and Appellant’s February 4, 2010 notice of appeal was timely. See Nationwide Postal Management, PSBCA No. 5043, 04-1 BCA ¶ 32,492 and cases cited therein.
Accordingly, Respondent’s motions to dismiss PSBCA Nos. 6333 and 6334 are denied.[7]
David I. Brochstein
Administrative Judge
Vice Chairman
I concur
William A. Campbell Norman D. Menegat
Administrative Judge Administrative Judge
Chairman Board Member
[1] The final decision refers only to “Maintenance Enforcement Call No. 66675” as the source of Respondent’s claim. Appellant’s Complaint identifies the claim as relating to the storm drain investigation.
[2] We note that the contracting officer could have, but did not, advise Appellant to the contrary despite Appellant’s repeated requests for a status update.
[3] Because of this resolution, we do not address the parties’ arguments concerning whether any of Appellant’s communications prior to February 4, 2010, constituted effective notices of appeal.
[4] The final decision refers only to “Maintenance Enforcement Call No. 40296” as the source of Respondent’s claim. Appellant’s Complaint identifies the claim as relating to the cost of exterior painting and ceiling tile replacement performed by Respondent.
[5] The final decision refers only to “Maintenance Enforcement Call No. 57153” as the source of Respondent’s claim. Appellant’s Complaint identifies the claim as relating to the cost of canopy light repairs performed by Respondent.
[6] This refers to an email sent by another of Appellant’s representatives to the contracting officer on July 8, 2009 - i.e., prior to the issuance of the final decisions - questioning an earlier demand by Respondent for reimbursement for the same items. (Attachment to Appellant’s response to motions to dismiss in PSBCA Nos. 6333 and 6334 (6333/4 Appnt Att)).