May 7, 1993
Appeal of
RICHARD R. WILSON
Contract No. HCR 33965
PSBCA No. 3409
APPEARANCE FOR APPELLANT:
Richard R. Wilson
APPEARANCE FOR RESPONDENT:
Larry Donell Blanchard, Esq.
OPINION OF THE BOARD ON MOTION TO DISMISS
Respondent has filed a motion to dismiss this appeal alleging that no issues remain for the Board's resolution since the termination of Appellant's contract for default has been converted to a termination for convenience and all damages to which Appellant is entitled are being paid. Appellant opposes the motion on the grounds that the Postal Service has not paid him for damages he incurred during performance of his contract with the Postal Service.
A review of the record establishes that the appeal before the Board is from the Contracting Officer's decision holding Appellant liable to the Postal Service for damages resulting from the termination of Appellant's contract for default for failure to perform. The Postal Service has now converted Appellant's termination for default to a termination for convenience, withdrawn its decision that Appellant is liable for damages, and agreed to pay Appellant the funds previously withheld from payment and also liquidated damages with interest as provided by the terms of the contract. Since all damages to which Appellant is entitled for termination of his contract are being paid in full, no issues remain in this appeal for resolution by the Board. See Atlas Const. Co., PSBCA 1463, 90-3 BCA ¶22,966 at 115,337-338; Atterton Painting & Const., Inc., PSBCA No. 2696, 90-2 BCA ¶22,681 at 113,925-926; Paul A. Mason, PSBCA No. 1187, 84-3 BCA ¶17,572 at 87,567.
Appellant however contends that he is entitled to damages for acts committed by the Postal Service prior to termination. According to Appellant, he submitted a claim to the Contracting Officer on April 9, 1993, and since this claim was filed with the Contracting Officer prior to conversion of the default termination to a termination for convenience, he is entitled to have this claim adjudicated in this proceeding.[1]
By his own statement, it is clear that Appellant only recently submitted his claim to the Contracting Officer for damages allegedly incurred during performance of his contract with the Postal Service. Since it appears that this is a separate claim unrelated to the termination of his contract and no final decision has been issued by the Contracting Officer, Appellant's claim for damages will not be considered by the Board at this time. See Mark L. Gabel, PSBCA No. 2694, 90-2 BCA ¶22,697 at 113,992; John S. Vayanos Contracting Co., Inc., PSBCA No. 2317, 89-1 BCA ¶21,494 at 108,295; Stewart Trucking Co., Inc., PSBCA No. 207, 76-1 BCA ¶11,872 at 56,879. In the event that the Contracting Officer issues a final decision denying Appellant's claim for damages, Appellant may appeal that decision to the Board.
Accordingly, for the reasons stated herein, Respondent's motion to dismiss is granted and the appeal is dismissed with prejudice.
James A. Cohen
Administrative Judge
Chairman
James D. Finn, Jr.
Administrative Judge
Vice Chairman
I concur:
David I. Brochstein
Administrative Judge
Board Member
[1]Appellant also requests that the Board compel the filing of the appeal file in order for him to file his Complaint in this appeal. Because this appeal is being dismissed, there is no need for the appeal file to be filed. In addition, the Rules of Practice do not contemplate the filing of the appeal file as a prerequisite to filing the Complaint.