November 16, 1994
Appeal of
KENNETH and VERNELL CHADWELL
Under Solicitation No. 489986-92-A-0036
PSBCA No. 3587
APPEARANCE FOR APPELLANT:
Kenneth Chadwell
APPEARANCE FOR RESPONDENT:
Mark E. Dennett, Esq.
OPINION OF THE BOARD
Appellant has timely filed an appeal from a Contracting Officer's decision denying two claims for alleged additional work performed under Appellant's contract to construct and lease a postal facility. At the election of the parties the appeal is being decided on the written record without a hearing.
FINDINGS OF FACT
1. On July 8, 1992, Appellant, Kenneth and Vernell Chadwell, husband and wife, signed an agreement with Respondent, United States Postal Service, to construct and lease back a postal facility located in Dallas, Texas, to be known as Belmont Station (Appeal file (AF)-A).
2. The facility was to be constructed according to certain plans and specifications furnished by Respondent and upon completion was to be leased by Appellant to Respondent for a period of twenty years, commencing July 2, 1993, at an annual rental of $30,240.00. At the end of twenty years the lessor was to convey the property to Respondent (Id.).
3. Kenneth Chadwell, operated as K. C. Enterprises, the entity that constructed the facility (AF-E, F, G, H, I, J, K, L, M).[1]
4. On June 4, 1993, Mr. Chadwell, on behalf of K. C. Enterprises, submitted a claim to the Contracting Officer in the amount of $5,324.10 for additional grading to the northwest approach to the project (AF-F). Respondent's project manager denied the claim in a June 28, 1993 letter to Mr. Chadwell (AF-G).
5. On July 20, 1993, Mr. and Mrs. Chadwell transferred all right, title and interest in their contract with Respondent to B. F. Cromeens. Paragraph numbered 1 of the transfer agreement stated:
"The Trasferor [sic] hereby confirms its assignment, conveyance and transfer of the Contracts to the Transferee, and does hereby release and discharge the Postal Service from, and does hereby waive any and all claims, demands and rights against the Postal Service which it now has or may hereafter have in connection with Contracts."[2]
Paragraph numbered 4 of the transfer agreement stated:
"The Postal Service hereby recognizes the transferor's successor in interest in and to the contracts. The transferee hereby becomes entitled to all right, title and interest of the Transferor in and to the contracts in all respects as if the Transferee were the original party to the ccontracts [sic] ...." (AF-B)
6. As stated in the transfer agreement Respondent recognized the transfer of interest from the Chadwells to B. F. Cromeens, as on July 29, 1993, Respondent's Contracting Officer signed a Memorandum of Lease with B. F. Cromeens, recognizing Cromeens as the lessor (Id.).
7. On August 5, 1993, Mr. Chadwell once more submitted the $5,324.10 claim to the Contracting Officer and on August 30, 1993, submitted a $170.00 claim on behalf of K. C. Enterprises to the Contracting Officer, the latter representing the cost of additional signs required on the facility (AF-J, K.)
8. By letter to Mr. Chadwell and K. C. Enterprises dated November 10, 1993, the Contracting Officer in a final decision denied the claims on their merits. No mention of the assignment of contract was made in the final decision (AF-O). This appeal followed.
DECISION
It is Respondent's position in defense of this appeal that Appellant is barred from recovering on its claims since the July 20, 1993, transfer or assignment of the lease released all claims which Appellant had against Respondent. We agree.
Paragraph numbered one of the transfer agreement specifically stated that the transferee (Appellant) releases and discharges the Respondent (Postal Service) from any and all claims which it "now has or may hereafter have" [emphasis added] against Respondent. The language could not be clearer. Respondent recognized the transfer or assignment, and subsequently executed a lease with the transferee, B. F. Cromeens. Any claims which Appellant possessed against Respondent were thereby waived and Appellant may not now prosecute them. Sensors, Data, Decisions, Inc., ASBCA No. 29386, 85-3 BCA ¶ 18,471.
Appellant contends that the transfer assignment does not extinguish its claims against Respondent as (1) the work in issue was completed prior to the assignment; (2) total payment for the work should be made by Respondent; (3) the assignment lacked consideration to make the lease effective; (4) [apparently] the lease between Respondent and B. F. Cromeens is invalid as B. F. Cromeens is a married woman and her husband's name does not appear on the lease. Appellant's contentions have no merit. In regard to 1 and 2 the release language of the transfer agreement specifically covered all claims, those then in existence at the time of the agreement and future claims. In regard to 3 and 4 Respondent's consent to the assignment constituted consideration, ITT Gilfillan, Inc. v. United States, 471 F.2d 1382, 1385-86 (Ct. Cl. 1973), and Respondent has recognized B. F. Cromeens as the lessor. The lease has been in existence more than two years and there is no evidence that its validity has been challenged previously by Appellant. In any event Appellant has no standing to challenge the validity of the lease between Respondent and B. F. Cromeens.
Accordingly, it is determined that Appellant has waived and released any and all claims possessed against Respondent. The appeal 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