April 8, 1994

Appeal of

J. LEONARD SPODEK

NATIONWIDE POSTAL MANAGEMENT

Under Lease Agreement

PSBCA No. 3584

APPEARANCE FOR APPELLANT:

J. Leonard Spodek

APPEARANCE FOR RESPONDENT:

Patrice R. Dickey, Esq.

OPINION OF THE BOARD

            Appellant, J. Leonard Spodek, has appealed from a contracting officer's decision deducting from rent otherwise due Appellant an amount representing payments made by Respondent, United States Postal Service, for repairs at the South San Antonio Station, San Antonio, Texas.  Although not raised by either party, the Board on its own motion questioned the timeliness of Appellant's notice of appeal and the Board's jurisdiction to consider the appeal under the Contract Disputes Act of 1978.

FINDINGS OF FACT

            1.  On or about May 18, 1993, the Contracting Officer issued a final decision notifying Appellant that the amount of $1,843.63 would be deducted from rent otherwise due under a lease for the South San Antonio Station.  The reason for the deduction was Appellant's failure to pay for repairs made to the "HVAC" system, which repairs were alleged by the Contracting Officer to be Appellant's responsibility under the lease.  The final decision advised Appellant that he could appeal either to this Board by furnishing written notice within 90 days of receipt of the decision or to the United States Claims Court (now the United States Court of Federal Claims) within one year of receipt of the decision. (Contracting Officer's final decision).

            2.  Appellant received the final decision on or about May 22, 1993.  Appellant moved to a new office on June 1, 1993, and, in the process, the file relating to this matter was temporarily misplaced.  Appellant did not file a notice of appeal until December 1993.  (Appellant's reply to the Board's March 15, 1994 Order).

DECISION

            As noted in the Board's March 15, 1994 Order, this Board has jurisdiction over appeals filed within 90 days of receipt of the Contracting Officer's decision.  41 U.S.C. §606.  Further, as the 90-day appeal period represents a waiver of sovereign immunity, it must be strictly construed and may not be waived by the Board.  Cosmic Constr. Co. v. United States, 697 F.2d 1389 (Fed. Cir. 1982).

            In this instance, it is undisputed that Appellant failed to file its appeal within the 90-day period set out in the Contract Disputes Act.  There being no other circumstances shown in the record that would allow consideration of this appeal, the Board has no jurisdiction to consider the appeal and, therefore, it is dismissed.  The dismissal is without prejudice to Appellant's right to exercise any other appeal rights it may have under the Contract Disputes Act.  See, e.g., National Neighbors, Inc. v. United States, 839 F.2d 1539 (Fed. Cir. 1988)

            The appeal is dismissed for lack of jurisdiction.

David I. Brochstein

Administrative Judge

Board Member

I concur:

James A. Cohen

Administrative Judge

Chairman

I concur:

James D. Finn, Jr.

Administrative Judge

Vice Chairman