February 5, 1993
Appeal of
DOBEE INC.
Under Lease Agreement
PSBCA No. 3238
APPEARANCE FOR APPELLANT:
John H. Baker, Esq.
APPEARANCE FOR RESPONDENT:
Robert E. O'Connell, Esq.
OPINION OF THE BOARD ON PARTIAL
MOTION TO DISMISS
Appellant, Dobee Inc., has filed an
appeal from a Contracting Officer's decision which denied its claim for an
equitable adjustment in contract price for repaving work performed under an
Agreement to Lease. Respondent, United
States Postal Service, has filed a partial motion to dismiss alleging that the
Board has no jurisdiction over portions of Appellant's appeal, as no final
decision by the Contracting Officer has been issued on those claims. Appellant opposes Respondent's motion. For purposes of deciding the motion, we make
the following findings of fact.
Findings
of Fact
1.
On March 9, 1990, Appellant and Respondent entered into an Agreement to
Lease under which Appellant agreed to construct and lease to Respondent a
facility in Mulino, Oregon, to be utilized as a post office. The facility was to be completed within 180
days and a separate lease agreement was to be executed the first day of the
month following acceptance by Respondent (Appeal File (AF)-5). The anticipated effective date of the lease
therefore was October 1, 1990.
2.
The project completion was delayed for certain reasons not relevant to
this appeal (AF-18). On
November 13, 1991, a representative of Respondent wrote Appellant and
advised that tests would be conducted on the facility's asphalt paving to determine
contract compliance (AF-24). On
January 14, 1992, Respondent by letter advised Appellant that the asphalt
paving and base aggregate did not comply with contract specifications. Appellant was directed to take remedial
action by removing the existing paving, compact the base aggregate and repave
(AF-28).
3.
On February 6, 1992, Appellant wrote the Contracting Officer and advised
that the remedial work had been completed.
However, Appellant disputed the need to perform the work, alleging that
the paving as initially performed had been in conformance with the contract
requirements. Therefore, Appellant
requested reimbursement of the sum of $28,752 for the asphalt removal and
repaving work. Appellant also requested
that the lease for the facility be executed with an effective date of
January 1, 1992 (AF-31).
4.
By letter dated February 25, 1992, the Contracting Officer denied
Appellant's request for reimbursement for the pavement removal and replacement
work. The letter also stated that the
lease for the facility would be executed March 1, 1992, provided that
certain minor corrective action was taken pertaining to the repaving
(AF-33). The lease thereafter was
executed with an effective date of March 1, 1992 (AF-34).
5.
By letter to the Contracting Officer dated April 10, 1992,
Respondent again sought reimbursement for the asphalt removal and repaving work
(AF-35). By final decision dated
April 30, 1992, the Contracting Officer denied Appellant's claim for
reimbursement for the asphalt removal and repaving costs (AF‑38). This appeal followed (AF-39).
6.
Appellant thereafter filed its Complaint with the Board. Paragraph V
Decision
Respondent argues in support of its
motion that the Board has no jurisdiction to hear that portion of Appellant's
claim relating to damages for construction interest, real property taxes, and
property insurance, as Appellant never presented a claim to the Contracting
Officer for those items. Thus, Respondent
contends no Contracting Officer's decision on those items of claim was ever
issued and the Board is required under the Contract Disputes Act, 41 U.S.C. §
601 et. seq., to dismiss those portions of the appeal. Respondent relies upon Paragon Energy
Corp. v. United States, 227 Ct. Cl. 176, 645 F.2d 966 (1988); RGI Inc.,
ASBCA No. 38772, 92-2 BCA ¶ 24,839; and Janie Marie Winkle, PSBCA No.
1548, 86-3 BCA ¶ 19,255, to support its position.
In opposing the motion, Appellant
argues that the claim for recovery of construction interest, real property
taxes, and property insurance is a claim for damages directly resulting from
Respondent's failure to accept the project on January 1, 1992, when
Appellant contends it was completed.
According to Appellant, had the Contracting Officer not incorrectly
ordered Appellant to do the repaving work the lease for the facility would have
been executed effective January 1, 1992, and Appellant would not have
incurred the costs in issue. Thus,
reasons Appellant, the interest, tax, and insurance items are components of its
overall claim for the repaving work.
Respondent's position is not well
taken. Paragraph V
Accordingly, Respondent's Partial
Motion to Dismiss is denied.
James D. Finn, Jr.
Administrative Judge
Vice Chairman
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
David I. Brochstein
Administrative Judge
Board Member
[1] By denying the request for
cost reimbursement, the Contracting Officer implicitly denied the request for
the January 1, 1992, lease commencement, since granting the cost
reimbursement request would have acknowledged the right to an earlier lease
commencement date, and Appellant would not have incurred the interest, tax, and
insurance costs now requested.