June 14, 1995

Appeal of

JAMES A. CROSBY

Under Contract No. HCR 496AA

PSBCA No. 3673

APPEARANCE FOR APPELLANT:

James A. Crosby

APPEARANCE FOR RESPONDENT:

Gregg R. Sackrider, Esq.

OPINION OF THE BOARD ON MOTION TO DISMISS

Respondent has filed a Motion to Dismiss this appeal, alleging that the Board has no jurisdiction, as the relief sought by Appellant is reinstatement of his contract, which relief the Board has no authority to order.  Appellant has opposed the Motion to Dismiss but, although afforded opportunities to do so, has set forth no theory of recovery other than contract reinstatement.  For purposes of ruling on the motion the following Findings of Fact are made.

FINDINGS OF FACT

1.  On June 28, 1990, Appellant was awarded transportation services contract no. 496AA for highway mail service between the Traverse City, MI Annex and the Traverse City, MI Main Post Office.  The contract term was to begin July 1, 1990 and end June 30, 1994.  The contract rate was $56,881.46 per year (Appeal File (AF)-A).

2.  The contract’s General Provisions (PS Form 7407T, March 1989) contained the standard “Claims and Disputes” clause (Id.).

3.  On May 5, 1994, the Contracting Officer wrote Appellant stating that it had just become known to Respondent that Appellant had been out of the country for two years and that Appellant’s son had been operating the contract route for that period without written authorization given by Appellant to Respondent.  He further stated in the letter that upon contract expiration on June 30, 1994, it would not be renewed, considering Appellant’s absence and no interest in contract performance (AF-C).

4.  A Contract Route Service Order (PS Form 7740, Nov. 1990) was issued by the Contracting Officer on June 20, 1994, which stated “Effective Close of Business June 30, 1994, allow this Contract to Expire.”  The contract thereafter expired on June 30, 1994 (AF-B, D).  Appellant appealed the Contracting Officer’s decision to allow the contract to expire and not renew it (AF-D).

DECISION

Respondent’s Motion to Dismiss is based on the well established principles that the Board does not have authority to order reinstatement of a contract or renewal of a contract.  See Hector Rivera Ruiz, PSBCA No. 1756, 88-3 BCA ¶ 20,829; Paul A. Mason, PSBCA No. 1187, 84-3 BCA ¶ 17,572; recon. denied, 85-1 BCA ¶ 17,735; Nathan Dal Santo; PSBCA No. 1146, 83-2 BCA ¶ 16,781; Associated Transfer and Storage, PSBCA No.1058, 83-1 BCA ¶ 16,138; Spaulding Radiator Service, PSBCA No. 1068, 82-2 BCA ¶ 16,088.  Thus, to the extent that Appellant seeks those forms of relief, the Board has no jurisdiction.

By Order dated February 17, 1995, Appellant was given an opportunity to set forth an alternative basis of relief, such as breach of contract, which might provide the Board the requisite jurisdiction to hear the appeal.  No response was received from Appellant and by further Order dated March 28, 1995, Appellant was given until April 17, 1995 to set forth a jurisdictional theory of recovery, and was advised that failure to do so may result in granting Respondent’s Motion to Dismiss.  Appellant did not respond to the March 28, 1995 Order.

The relief sought by Appellant is clearly that of contract reinstatement or renewal of the expired contract.  The Board has no jurisdiction to grant either form of relief.  Appellant has twice been afforded an opportunity to provide an alternative jurisdictional basis of recovery and has failed to do so.  It is therefore concluded that no jurisdiction exists to consider Appellant’s appeal and it is dismissed.

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