December 30, 1993
Appeal of
COMPUTER POWER SUPPORT, INC.
Under Contract No. 05990-92-P-0775
PSBCA No. 3401
APPEARANCE FOR APPELLANT:
Michael J. Radin, Esq.
APPEARANCE FOR RESPONDENT:
Robert E. O'Connell, Esq.
OPINION OF THE BOARD ON MOTIONS TO DISMISS
Respondent, United States Postal Service, has filed a Motion to Dismiss this appeal, contending that it is moot because the contracting officer has converted the default termination which underlies the appeal to a termination for convenience. In lieu of a response to the motion, Appellant, Computer Power Support, Inc., filed its own Motion to Dismiss, in which it agreed that the appeal could be dismissed but asked that the dismissal be with prejudice only insofar as the appeal challenges the propriety of the termination for default. It asks that the dismissal be without prejudice to its later assertion of other claims it raised in its complaint, a claim for attorney fees under the Equal Access to Justice Act and any other claims arising out of the termination of the contract, including a termination for convenience claim.
For purposes of the parties' motions we make the following findings of fact.
Findings of Fact
1. On July 29, 1992, the Postal Service awarded Appellant a contract to provide certain electric maintenance service for a period of 26 months at the Postal Data Center at San Mateo, California (Appeal File ("AF") Tab 10).
2. By letter dated October 19, 1992, the contracting officer terminated Appellant's contract, stating "that award of such contract was tainted by a number of procurement irregularities and violations of Postal Service's conflict of interest regulations." (AF Tab 13).
3. Appellant appealed the termination. In its complaint filed with the Board, Appellant contended the contract was wrongfully terminated for default and sought special damages totalling $32,800 plus interest; general damages for the emotional pain and suffering of one of Appellant's principals; revision of Postal Service records to reflect that the termination was not for Appellant's default; an order directing the Chief Postal Inspector's office to release certain documents to Appellant and costs and attorney fees. Appellant has not presented its claims for monetary damages to the contracting officer.
4. By letter dated September 17, 1993, the contracting officer converted the termination for default to a termination for the convenience of the Postal Service and requested that Appellant submit a claim in accordance with the termination for convenience provision of the contract.
5. On September 21, 1993, Respondent filed its motion to dismiss the appeal as moot because the termination had been converted to a termination for convenience.
Decision
The only issue properly before the Board in this appeal is the validity of the termination for default. As far as the record reflects, no monetary claims, including those set forth in Appellant's complaint, have been presented to the contracting officer for decision, and, therefore, the Board lacks jurisdiction to consider them. 41 U.S.C. § 605(a); Paragon Energy Corp. v. United States, 645 F.2d 966, 971 (Ct. Cl. 1981); James H. Foster, PSBCA No. 3152, 93‑1 BCA ¶ 25,362; Lou Faro Leasing, Inc., PSBCA No. 2889, 91-2 BCA ¶ 23,668; Wayne R. Hilf, PSBCA No. 2800, 91-1 BCA ¶ 23,628.[1]
Appellant's request in its complaint that the Board order Respondent to provide it access to documents of the Chief Postal Inspector could have been addressed through discovery had this appeal continued, but the Board is without jurisdiction over Appellant's request independent of a pending appeal. Access to postal records may be sought through the Postal Service's Release of Information procedures, 39 C.F.R. Part 265, without pending litigation. See H.P. Connor & Co., Inc., PSBCA No. 1358, 91‑3 BCA ¶ 24,270; International Creative and Training, Ltd., ASBCA No. 42833, 93‑3 BCA ¶ 26,009.
Appellant's request for attorney fees is premature. American Federal Contractors, Inc., PSBCA No. 1359, 87‑2 BCA ¶ 19,848. Qualified applicants who are prevailing parties in Board proceedings may recover attorney fees pursuant to the Equal Access to Justice Act, as amended, 5 U.S.C. § 504. If Appellant qualifies, it may file an application with the Board within the time period specified in the statute and implementing regulations, 5 U.S.C. § 504 (a)(2), 39 C.F.R. § 960.12. See R & W Construction Co., Inc., PSBCA Nos. 2357, 2404, 90-1 BCA ¶ 22,381.
The parties agree that Appellant's challenge to the propriety of the default termination is moot and may be dismissed with prejudice. Accordingly, it is so dismissed. See Calvin Harris d/b/a Harris Electric, PSBCA Nos. 3392-94, October 26, 1993; Richard R. Wilson, PSBCA No. 3409, May 7, 1993; H.H. Christian Co., AGBCA No. 82-120-1, 83-1 BCA ¶ 16,335. Appellant's other claims are 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
[1]As we have no jurisdiction over these claims absent their prior presentation to the contracting officer, we make no finding regarding their validity. However, damages for emotional pain and suffering, damages arising from tort independent of the contract and punitive or exemplary damages are generally not recoverable before contract appeals boards. See, e.g., Onice Ulmer, PSBCA No. 2938, 91-2 BCA ¶ 23,991 recon. denied 91-3 BCA ¶ 24,345; Roger Dean Barrett, PSBCA No. 2490, 89-3 BCA ¶ 22,220; Paul A. Mason, PSBCA No. 1473, 86-3 BCA ¶ 19,142; Bartel Kress, AGBCA No. 85-139-1, 91-3 BCA ¶ 24,366; Robert K. Adams, ASBCA No. 34519, 87-3 BCA ¶ 20,205; Alfred Bronder, ASBCA No. 29938, 86-3 BCA ¶ 19,102 aff'd 824 F.2d 980 (Fed. Cir. 1987)(Table).