October 23, 1996

Appeal of

JONG KYU CHOI

LEASE AGREEMENT

PSBCA No. 3967

 

APPEARANCE FOR APPELLANT:

Jong Kyu Choi

 

APPEARANCE FOR RESPONDENT:

Robert E. O’Connell, Esq.

 

                             OPINION OF THE BOARD ON MOTION TO DISMISS

 

This appeal is from the contracting officer’s denial of a claim for compensation for construction work Appellant, Jong Kyu Choi, performed to premises he had agreed to lease to Respondent, United States Postal Service.  Respondent has filed a Motion to Dismiss the appeal, alleging that the Board lacks jurisdiction because the appeal was not timely filed.  Although Appellant was granted a thirty‑day period to file a reply to the motion, he has not done so.  The following findings of fact are made for the purpose of deciding Respondent’s motion.

                                                         FINDINGS OF FACT

1.  On January 6, 1995, Appellant and Respondent entered into a lease whereby Appellant was to lease to Respondent premises in Los Angeles for use as Respondent’s Greenmead Finance Station.  As part of the agreement, Appellant was to perform certain construction for Respondent for which Respondent agreed to compensate Appellant.  (Attachments 1 & 4 to Respondent’s motion).

2.  Appellant filed a claim with the contracting officer for the cost of performing work he contended was beyond the scope of the original agreement (Attachment 1 to Respondent’s motion; undated claim of Elden Development Corporation).

3.  In a final decision dated March 20, 1996, the contracting officer granted part of the increase sought and denied the remainder.  In the final decision letter, the contracting officer advised Appellant that he could appeal the final decision to this Board by providing notice of such appeal within 90 days after receipt of the letter or, alternatively, could bring an action in the United States Court of Federal Claims within 12 months after receipt.  The final decision was sent by certified mail and was received by Appellant on March 22, 1996.  (Attachments 1 & 2 to Respondent’s motion).

4.  By letter dated July 2, 1996, Appellant advised the contracting officer of his intention to appeal the contracting officer’s partial denial of his claim to the Postal Service Board of Contract Appeals.  According to the contracting officer, the letter was faxed to his office on July 8, and the hard copy was received on July 10, 1996.  (Attachments 3 & 4 to Respondent’s motion; contracting officer’s July 16, 1996 referral letter).

DECISION

In order to be considered timely, an appeal of a contracting officer’s final decision to the Board must be filed within 90 days from the date of receipt of the final decision.  41 U.S.C. §§ 601 et seq.; Cosmic Constr. Co. v. United States, 697 F.2d 1389 (Fed. Cir. 1982); Zsa Zsa Renee Pender, PSBCA No. 3853, 96‑1 BCA ¶ 28,018; Jeff W. Loder, PSBCA No. 2771, 90‑3 BCA ¶ 23,159.  Appellant’s notice of appeal was mailed at the earliest on July 2, 1996, 102 days after Appellant received the contracting officer’s final decision (Findings 3, 4).  Therefore, the appeal is untimely, and the Board lacks jurisdiction to consider Appellant’s claim.[1]                                                    Accordingly, Respondent’s Motion to Dismiss is granted, and the appeal is dismissed for lack of jurisdiction.

Norman D. Menegat

Administrative Judge

Board Member

 

I concur:

James A. Cohen

Administrative Judge

Chairman

 

I concur:

David I. Brochstein

Administrative Judge

Vice Chairman


[1]  As noted in the contracting officer’s final decision, Appellant may bring an action directly in the United States Court of Federal Claims within 12 months from the date of receipt of the contracting officer’s final decision.  The Court of Federal Claims is located at 717 Madison Place, NW, Washington, DC  20005.