September 7, 1994

Appeal of

HIGH VOLTAGE MAINTENANCE CORP.

Under Contract No. 209986-91-B-0010

PSBCA No. 3640

APPEARANCE FOR APPELLANT:

Richard C. Doppes

APPEARANCE FOR RESPONDENT:

James D. Burroughs, Esq.

OPINION OF THE BOARD ON MOTION TO DISMISS

            Respondent has filed a motion to dismiss this appeal, contending that Appellant is a subcontractor without standing because the prime contractor has not authorized the appeal.  The following findings are made solely for purposes of addressing Respondent's motion and are based on the allegations set forth in Appellant's complaint.

Findings of Fact

            1.  On February 22, 1992, Frank Koplyay, an employee of the Postal Service, contacted Appellant and asked Appellant to prepare a proposal to install electrical circuits to serve new automated equipment to be installed in a postal facility.

            2.  On February 28, 1992, after a site visit by Appellant's sales engineer and his review of the requirements as presented by Mr. Koplyay, Appellant sent Respondent its price proposal.

            3.  On March 2, 1992, at Mr. Koplyay's request, Appellant sent Respondent a revised proposal.

            4.  On March 5, 1992, Respondent's contracting officer issued a work order and notice to proceed to Cravens Construction Company ("Cravens").  The scope of work in the work order was taken directly from Appellant's proposals to Respondent.

            5.  On March 6, after oral authorization from Cravens, Appellant began to perform the work covered by its proposal.  Cravens subsequently issued Appellant a purchase order for the work.

            6.  On two occasions after the work began, Mr. Koplyay notified Appellant of additional work that Respondent required.  For the first change, Mr. Koplyay told Appellant to send a proposal for the additional work to Cravens, which Appellant did.  On the second occasion, Mr. Koplyay requested that Appellant perform the additional work immediately because of Respondent's urgent need for the installation and assured Appellant that the official change would be accomplished as soon as Appellant's costs were known.

            7.  Appellant performed the additional work, but has not been paid for it.

            8.  The contracting officer denied Appellant's claim for the additional work, concluding that Cravens was paid for all authorized additional work.  This appeal followed.

Decision

            Respondent argues that as Cravens' subcontractor Appellant has no standing to pursue this appeal before the Board in its own right and that Cravens has not authorized Appellant to pursue the claim.  Respondent is correct that the usual subcontractor on a Postal Service project is not in privity with Respondent and lacks standing to bring an action before the Board in its own right.  See John R. Hundley, Inc., PSBCA No. 2349, 89-1 BCA ¶ 21,227; Gil Dunn Services, PSBCA No. 1077, 83-1 BCA ¶ 16,364.

            However, Appellant alleges that Respondent, through Mr. Koplyay, entered into an oral contract with Appellant to perform the additional work and is obligated to pay for it.  If Appellant can prove the existence of the alleged oral contract between Respondent and Appellant, it would have standing to pursue this appeal, and the Board would have jurisdiction to consider Appellant's claim.  See Seger v. United States, 469 F.2d 292, 301 (Ct. Cl. 1972); Howard Nettleton, PSBCA No. 3454, 1994 WL 286180, June 28, 1994; E.D. Conto, PSBCA No. 962, 1982 WL 8937, April 20, 1982.  Accordingly, the appeal is not subject to dismissal at this time.  See Jean Kultau GmbH & Co. KG, ASBCA No. 45949, 1994 WL 266643, June 14, 1994; Choe-Kelly, Inc., ASBCA No. 43481, 92-2 BCA ¶ 24,910.[1]

            The motion to dismiss 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

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[1] Erickson Air Crane Co. v. United States, 731 F.2d 810 (Fed. Cir. 1984), United States v. Johnson Controls, Inc., 713 F.2d 1541 (Fed. Cir. 1983), and Fairchild Industries, Inc. v. United States, 620 F.2d 807 (Ct. Cl. 1980), relied on by Respondent, do not require dismissal of this appeal.  In none of those cases was an oral or implied-in-fact contract between the subcontractor and the government alleged as the basis of subcontractor privity with the government.