August 24, 1994
Appeal of
LEE ANN WYSKIVER
Under Contract No. HCR 92562
PSBCA No. 3621
APPEARANCE FOR APPELLANT:
Lee Ann Wyskiver
APPEARANCE FOR RESPONDENT:
Mark Brent Ezersky, Esq.
OPINION OF THE
BOARD ON MOTION TO DISMISS
Respondent, United States Postal Service, has filed a motion to dismiss this appeal on the ground that Appellant has not submitted a claim to the contracting officer and received a final decision. Appellant was given an opportunity to respond to the motion, but she did not do so. For the reasons discussed below, the motion is denied.
For purposes of deciding the motion, we make the following findings of fact.
Findings
of Fact
1. Appellant held contract HCR 92562 for delivery of mail in the area of Temecula, California, pursuant to a Transportation Services Renewal Contract executed by Respondent May 14, 1990 (Appeal File Tab (“AF”) 8).
2. The contract authorized the contracting officer to make changes to the service required under the contract that resulted in adjustments of $1000 or less without consulting with Appellant (AF 8, General Provision 12 (a)(1)).
3. On January 27, 1994, the contracting officer ordered a service change to Appellant’s route. In a unilateral modification to the contract, the contracting officer reduced Appellant’s annual compensation by $80.00 to reflect the decreased service. (AF 3, 7).
4. In a February 5, 1994 letter to the contracting officer, Appellant objected to the service change, complained that the restated directions for her route were incorrect and charged that the change was instituted without adequate investigation into the delivery requirements. Additionally, Appellant complained that she and her employees have been harassed by officials in the Temecula Post Office and that rural carriers (Postal Service employees) have been assigned delivery routes in areas she contends are supposed to be served by highway contractors. (AF 2).
5. Appellant sent a copy of her February 5 letter to the Board, and it was docketed on February 16 as the notice of appeal in this proceeding.
6. In a March 1 letter to Appellant, the contracting officer acknowledged that the February 5 letter protested the service change. The letter further noted that the Board had docketed an appeal based on Appellant’s letter and asked Appellant whether she had intended her letter to be an appeal. The record contains no evidence that Appellant responded or that the contracting officer corresponded with her after that.
7. In a May 26, 1994 letter, Appellant, in response to an order of the Board, stated that she had attempted to discuss the appeal with Respondent but had been rebuffed by the Temecula Postmaster. She requested a hearing in Temecula and stated generally when she and her employees would be available.
8. The Claims and Disputes clause of Appellant’s contract defined a claim as “a written demand or assertion by one of the parties seeking, as a legal right, the payment of money, adjustment or interpretation of contract terms, or other relief arising under or relating to this contract.” (AF 8, General Provision 2 (c)(i)).
Decision
In its motion, Respondent contends that the Board does not have jurisdiction over this appeal because Appellant has not submitted a claim to the contracting officer and the contracting officer has not issued a final decision. Respondent contends that Appellant’s February 5, 1994 letter cannot be considered a claim because in it Appellant did not state a claim for monetary relief, state clearly the issues, request a final decision or include a certification.
Appellant’s February 5, 1994 letter challenges the January 27, 1994 service reduction as well as other service changes and alleges harassment by officials in Temecula. While perhaps not as clear as it could have been, Appellant’s letter can be fairly read to challenge the service reduction[1] and to seek an adjustment or interpretation of the contract in order to obtain relief from what Appellant contends are the arbitrary actions of Respondent’s officials in administering her contract. Therefore, Appellant’s February 5 letter was a claim. See Frank Wojcik, PSBCA No. 2532, 90-1 BCA ¶22,321; John R. Mott, Inc., PSBCA No. 1605, 87-3 BCA ¶ 20,106; Greater Eastern Holding Co., PSBCA No. 1128, 83-2 BCA ¶16,784.
The absence of a contracting officer’s final decision on Appellant’s claim does not defeat the Board’s jurisdiction under the circumstances of this appeal. A contracting officer’s failure to issue a final decision on a claim within 60 days of receipt is deemed a denial of the claim which authorizes the contractor to file an appeal with the Board. 41 U.S.C. § 605(c)(2) & (5); see Rice King, ASBCA No. 43352, 92-2 BCA ¶ 24,805; Dawson Constr. Co., PSBCA No. 2852, 91-2 BCA ¶23,798. However, Appellant sent a copy of her February 5 claim to the Board at the same time she sent it to the contracting officer, and the appeal process began before the 60 days allowed for the contracting officer’s decision elapsed. Insofar as the February 5 letter can be considered a notice of appeal, it was premature, and the appeal was subject to dismissal. See Fire Security Systems, Inc. v. General Services Administration, GSBCA No. 12350, 93-3 BCA ¶ 26,047; Moulde Bros., ASBCA Nos. 32673, 32674, 86-2 BCA ¶ 18,890. However, the contracting officer has now had the full 60-day period to respond to the claim and has not done so. Appellant’s expression of interest in continuing the appeal as set forth in her letter to the Board of May 26, 1994, is sufficient notice of appeal beyond the 60-day period to establish the Board’s jurisdiction. See Phoenix Petroleum Co., ASBCA Nos. 42763, 45412, 45413, 46671, 94-1 BCA ¶26,461; Emerson Electric Co., ASBCA No. 31184, 86-2 BCA ¶18,979.
Nevertheless, we exercise our discretion under the Contract Disputes Act to stay the appeal to obtain a contracting officer’s decision on Appellant’s claim, 41 U.S.C. §605(c)(5); Dawson Constr. Co., supra; Emerson Electric Co., supra, and direct that the contracting officer issue a final decision on Appellant’s February 5, 1994 claim no later than 60 days from Respondent’s receipt of this Opinion.
The motion is denied.
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