September 19, 1995
Appeal of
HUBBARD TRUCKING, INC.
Under Contract No. HCR 80037
PSBCA No. 3790
APPEARANCE FOR APPELLANT:
John A. Berman, Esq.
APPEARANCE FOR RESPONDENT:
Samuel J. Schmidt, Esq.
OPINION OF THE BOARD ON MOTION TO DISMISS, OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT
Respondent, United States Postal Service, has filed a Motion to Dismiss, or in the Alternative, for Summary Judgment, alleging that Appellant, Hubbard Trucking, Inc., has not filed a proper or timely notice of appeal. Appellant opposes the Motion, contending that it sent two letters to the Contracting Officer which constitute a valid and timely notice of appeal. The following findings of fact are made for the purposes of deciding Respondent’s motion.
FINDINGS OF FACT
1. On June 14, 1993, Respondent issued a Notice of Renewal of Appellant’s contract, Highway Contract Route (HCR) 80037, for the transportation of mail between Denver and Monument, Colorado, with intermediate stops in Parker, Franktown and Castle Rock. Performance under the renewal contract was to begin on July 1, 1993, and extend to June 30, 1996. (Appeal File (AF)-Tab A).
2. The contract included the Postal Service standard form for highway transportation contracts, Postal Service Form 7407, July 1992, which included the standard “Claims and Disputes” and “Termination by the Postal Service for Default” clauses. (AF-Tab D).
3. By fax dated August 24, 1994, Appellant informed the Postal Service Western Area Distribution Networks Office (WADNO) that as of August 31, 1994, it was ceasing all operations (AF-Tab O). By final decision dated August 31, 1994, which Appellant received on September 2, 1994, the Contracting Officer terminated for default Appellant’s right to perform service on HCR 80037 based on Appellant’s faxed letter of intent to “cease performing service on this route.” (AF-Tab Q; Respondent’s Motion, Exhibit B). The Contracting Officer’s final decision advised Appellant that it could appeal the final decision to the Postal Service Board of Contract Appeals or “bring an action directly on the claim in the United States Court of Claims” [sic]. The Contracting Officer’s decision went on to state that “[i]f you decide to make an appeal to the Board of Contract Appeals, you must provide written notice . . . to the Contracting Officer within 90 days from the date you receive this decision.” (Id.).
4. Subsequent to the termination for default, Appellant sent the Contracting Officer an undated letter in which it stated it expected to be paid
“. . .for all service and indemnity payments due to HUBBARD TRUCKING, INC. If these payments are not paid it will be considered a breach of contract with HUBBARD TRUCKING, INC., as well as a violation of the civil rights of Larry D. Hubbard under the Americans with Disabilities Act and both parties reserve the right to take whatever action they feel necessary . . . I regret this had come to this but I believe that your office had control of this situation.” (AF-Tab R).
Appellant also requested a copy of the emergency contract for the route and the “bid amounts.” (Id.).
5. The Contracting Officer received Appellant’s undated letter on September 22, 1994, and responded the same day addressing Appellant’s contentions. In the last paragraph of this letter the Contracting Officer advised Appellant that if it was “not satisfied with the explanations contained herein, you may initiate an appeal to the Postal Service Board of Contract Appeals.” (AF-Tab S).
6. By letter dated October 14, 1994, Appellant responded to the Contracting Officer’s September 22, 1994 letter, in which it provided information which Appellant stated would substantiate its claim of breach of contract, expressed its hope that the matter could be resolved in favor of Appellant without added expenses and advised the Contracting Officer that it “continues to expect indemnity payments to be paid on all contracts.” (AF-Tab T).
DECISION
Appellant contends that its two letters constitute a valid notice of appeal. Respondent argues that the letters do not express Appellant’s intent to appeal to a higher authority or to elect the Board as the forum to hear its appeal.
In order for a contractor’s letter to be considered a valid notice of appeal it must express dissatisfaction with the Contracting Officer’s final decision and an intention to appeal to a higher authority.[1] There are no magic words required to constitute a valid notice of appeal.[2] Respondent concedes that Appellant’s letters express dissatisfaction with the Contracting Officer’s final decision. However, Respondent argues that Appellant’s letters do not express an intent to appeal to a higher authority.
In Auburn, this Board concluded that a contractor’s intent to appeal was evident from the request for relief sought. After analyzing the correspondence in the file we found that the contractor’s request for (1) reinstatement of its contract, (2) reversal of all penalties imposed and, (3) payment of all monies due, coupled with a request for immediate action on the part of the Contracting Officer, expressed the contractor’s intent to appeal. Appellant’s intent to appeal, in this case, is equally evident from its timely request for payment for all services and indemnity, coupled with its allegations of breach of contract and expressions of hope that the matter could be favorably resolved. Thus, Appellant’s letters satisfy the Auburn requirement of expressing an intention to appeal to a higher authority and, therefore constitute a valid and timely notice of appeal.
Respondent, however, contends that Auburn relies on a principle established in a pre-Contract Disputes Act decision of the Armed Services Board of Contract Appeals (ASBCA)[3] which has been sharply narrowed in subsequent ASBCA decisions.[4] Therefore, Respondent would have us reconsider our holding in Auburn and conclude that Appellant has not expressed an intent to appeal to a higher authority nor has it made an election to have its appeal considered by this Board.
We are satisfied that the Auburn holding is consistent with the requirements of the Contract Disputes Act and therefore, are not inclined to alter our prior position. The Contract Disputes Act requires that a contractor be given notice of its right to appeal to a Board of Contract Appeals or to file its claim with the United States Court of Federal Claims.[5] The Act also requires that a contractor make a knowing election to appeal to a Board of Contract Appeals in order for the Board to have jurisdiction over the contractor’s claim.[6] Appellant was given notice of its appeal rights by the Contracting Officer’s final decision. By filing its appeal with the Contracting Officer, rather than filing a claim with the United States Court of Federal Claims, Appellant made a knowing election to have its appeal considered by this Board. Since Appellant’s letters constitute a proper and timely notice of appeal, there is no basis for dismissing the appeal.
Respondent’s alternative argument that summary judgment should be granted is premised on its contention that Appellant has not filed a timely and proper notice of appeal. These issues have already been addressed in connection with Respondent’s Motion to Dismiss and need not be considered further in the context of Respondent’s alternative motion for summary judgment. Accordingly, Respondent’s Motion to Dismiss, or in the Alternative for Summary Judgment is denied.
James A. Cohen
Administrative Judge
Chairman
I concur:
James D. Finn, Jr.
Administrative Judge
Vice Chairman
I concur:
David I. Brochstein
Administrative Judge
Board Member
[1]Auburn Flying Service, PSBCA Nos.1509-10, 86-3 BCA ¶19,273.
[2]Auburn, citing, Reliance Bronze and Aluminum Foundry, Co., ASBCA No. 7896, 1962 BCA ¶3585.
[3]Pantronics, Inc., ASBCA No. 20,982, 78-2 BCA ¶13,285.
[4]Wach-und Werkschutz Kleve-Bocholt, ASBCA No. 41,651, 91-2 BCA ¶23,862; Stewart-Thomas Industries, Inc., ASBCA No. 38,773, 90-1 BCA ¶22,481; McNamara-Lunz Vans & Warehouses, Inc., ASBCA No. 38,057, 89-2 BCA ¶21,636.
[5]41 U.S.C. §605; See Santa Fe Engineers, Inc. v. United States, 677 F.2d 876, 230 Ct. Cl. 512 (1982).
[6]Bonneville Associates Ltd. v. United States, 43 F.3d 649, 655 (Fed. Cir. 1994); Mark Smith Constr. Co. v. United States, 10 Cl. Ct. 540, 544 (1986) (quoting Prime Constr. Co. v. United States, 231 Ct. Cl. 782 (1982)).