September 4, 1997

Appeal of

LEDGEWOOD PROPERTIES, INC.

LEASE AGREEMENT

PSBCA No. 4062

 

APPEARANCE FOR APPELLANT:

Cheryl Woodrow

Ledgewood Properties, Inc.

235 Moore Street

Hackensack, NJ  07601-7417

 

APPEARANCE FOR RESPONDENT:

Geraldine O. Rowe, Esq.

Windsor Law Office

United States Postal Service

8 Griffin Road North

Windsor, CT  06006-0170

 

                            OPINION OF THE BOARD ON MOTION TO DISMISS[1]

 

Appellant, Ledgewood Properties, Inc., leases the Macedon, New York Post Office to Respondent, United States Postal Service.  This appeal is from a final decision issued by Respondent’s contracting officer asserting a claim against Appellant under the lease, and, at Appellant’s election, the appeal is being considered under the Board’s accelerated procedure, 39 C.F.R. §955.13.  Respondent filed a Motion for Summary Judgment, contending that the Board lacks jurisdiction because the appeal was not timely filed, a motion we treat as a motion to dismiss.  Although Appellant was granted a twenty‑day period to file a reply to the motion, it did not do so.  The following findings of fact are made for the purpose of deciding the motion.

                                                         FINDINGS OF FACT

1.  SMPO Properties, Inc., constructed and leased to Respondent a building in Macedon, New York, to be used as the Macedon Post Office.  The lease was executed on July 17, 1992, and on October 13, 1992, SMPO’s interest was transferred to Appellant.  (Appeal File, Tabs (“AF”) 1, 3, 5).

2.  Under the tax clause of the lease, Respondent agreed to reimburse the lessor for general real estate taxes paid on the property.  The clause obligated the lessor to furnish Respondent copies of notices the lessor received that might affect the amount of general real estate taxes owed on the property.  If, as a result of the lessor’s failure to furnish such notices, the lessor paid and Respondent reimbursed general real estate taxes that were higher than they should have been, the clause provided that the lessor would be responsible for the “overpayment”.  (AF 3, Lease Paragraph 28, REIMBURSEMENT OF PAID TAXES (Clause OB-905)(June 1988)).

3.  Local tax laws allowed an exemption for newly-constructed commercial buildings that would result in lower general real estate taxes on such buildings for the first ten years after completion.  The benefit of this exemption was not obtained for the Macedon Post Office building.  (AF 8-11).

4.  By final decision dated August 9, 1994, the contracting officer asserted a claim against Appellant in the amount of $4,024.03, the amount by which Respondent contended the general real estate taxes it reimbursed to the lessor for the previous year exceeded what they would have been if the exemption had been obtained.  Respondent concluded that the exemption was not obtained because SMPO or Appellant failed to apply for or notify Respondent of the availability of the exemption, which failure, according to Respondent, breached the lessor’s duty under the tax clause.  The final decision demanded that Appellant pay the $4,024.03 and pointed out that that amount would be withheld from rent if Appellant did not pay.  The letter continued that similar overpayments of general real estate taxes in future tax years would also be recovered from rent.  (AF 15[2]).

5.  The August 9, 1994 final decision concluded by advising Appellant that it 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 August 11, 1994 (AF 15).

6.  In an August 15, 1994 letter, Appellant’s representative acknowledged receipt of the final decision and expressed the representative’s understanding that SMPO, the previous owner, had filed the proper documents for the exemption.  The letter continued,

“Your letter is the first that we have heard of this matter.  Why didn’t someone contact us when this ‘oversight’ occurred?  We could have interceded and assisted in solving why we did not get the exemption.  Your approach to this matter is incorrect.  You have made us the guilty party without all the facts.  This is not our fault and I cannot understand how you expect us to go along with your unilateral solutions outlined in your letter.

 

Please give me a call so that we can discuss this issue.”  (AF 14).

 

7.  More than two years later, in a January 20, 1997 letter to the contracting officer, Appellant’s representative “formally request[ed] that the USPS review and reverse its decisions with regard to the deductions that it is taking as a penalty for what the USPS has determined to be a failure of Ledgewood Properties to forward notices received and to file paperwork necessary to receive certain real estate tax exemptions.”  The letter concluded, “This is our notice to appeal your findings.  Kindly review this matter and contact me . . . with any questions you may have.”  (AF 16).  Appellant’s appeal covers not only the $4,024.03 demanded in the contracting officer’s August 9, 1994 final decision but also deductions from rent that Appellant contends Respondent has been making to recover claimed tax overpayments for subsequent years (Complaint dated May 14, 1997).

8.  The January 20, 1997 letter was forwarded to the Board and docketed.

                                                                  DECISION

In order to be considered timely, and thus within the jurisdiction of the Board, an appeal of a contracting officer’s final decision must be filed within 90 days from the date the contractor received 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 January 20, 1997 letter (Finding 7) was submitted more than two years beyond the time allowed for an appeal of the contracting officer’s August 9, 1994 final decision to this Board, and, therefore, this appeal is subject to dismissal, see Jong Kyu Choi, PSBCA No. 3967, 96-2 BCA ¶ 28,609, unless the August 15, 1994 letter to the contracting officer (Finding 6) can be considered a notice of appeal.

Appellant’s August 15 letter satisfies one requirement of a valid notice of appeal by stating Appellant’s dissatisfaction with the contracting officer’s final decision.  See James D. Sandberg, Inc., PSBCA No. 3890, 96-1 BCA ¶ 28,129; Hubbard Trucking, Inc., PSBCA No. 3790, 97-1 BCA ¶ 28,913 (1995).  However, the letter fails to express Appellant’s intention to appeal the contracting officer’s action to a higher authority, thus failing to meet a second requirement of a valid notice of appeal.  See J. Leonard Spodek d/b/a Alabama Postal Holdings, PSBCA No. 3932, 97-1 BCA ¶ 28,964; Hubbard Trucking, Inc., PSBCA No. 3790, 97-1 BCA ¶ 28,913 (1995).

No particular language is necessary to demonstrate an intention to appeal a contracting officer’s final decision, Hubbard Trucking, Inc., PSBCA No. 3790, 97-1 BCA ¶ 28,913 (1995), and we have taken a liberal view of whether a contractor’s written communications adequately express its intention to appeal notwithstanding the absence of direct statements that an appeal is intended.  See James D. Sandberg, Inc., PSBCA No. 3890, 96-1 BCA ¶ 28,129 (A contractor’s request for review of the contracting officer’s decision by a more authoritative entity has been found a sufficient indication of an intent to appeal, even though the Board of Contract Appeals was not mentioned); Auburn Flying Service, PSBCA Nos. 1509, 1510, 86-3 BCA ¶ 19,273 (A contractor’s request for specific relief from the final decision plus a request for immediate action constituted an expression of an intention to appeal); Hubbard Trucking, Inc., PSBCA No. 3790, 97-1 BCA ¶ 28,913 (1995) (A request for specific relief coupled with allegations that Respondent’s actions were a breach of contract sufficiently expressed an intention to appeal).

In its August 15, 1994 letter, however, Appellant did no more than state its dissatisfaction with the final decision and request a call from the contracting officer to discuss the matter.[3]  Appellant did not request specific relief, demand that the contracting officer refrain from the action stated in the final decision, contend that the proposed action would be a breach of contract or ask that the final decision be reviewed by someone other than the contracting officer.  Furthermore, Appellant did not press the issue until it sent the January 20, 1997 formal appeal of the final decision more than two years later (Finding 7).  This inaction suggests that the August 15, 1994 letter itself was not an expression of Appellant’s intention to appeal the final decision, see Richardson Camera Co. v. United States, 467 F.2d 491, 496-497, 199 Ct. Cl. 657, 666-667 (1972), and the January 20, 1997 letter makes no suggestion that the August 15, 1994 letter was so intended, see J. Leonard Spodek d/b/a Alabama Postal Holdings, PSBCA No. 3932, 97-1 BCA ¶ 28,964.  Therefore, the August 15 letter is not a notice of appeal, and the appeal is untimely.

            Accordingly, the Motion to Dismiss[4] 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


[1]  Respondent has styled its motion as one for summary judgment.  However, as the motion challenges the Board’s jurisdiction over the appeal, we shall treat the motion as a motion to dismiss for lack of subject matter jurisdiction. 

[2]  The Table of Contents of the appeal file identifies the August 9, 1994 final decision as Tab 13.  The document itself, however, was located in Tab 15.

[3]  There is no evidence indicating what, if any, action the contracting officer took in response to Appellant’s August 15, 1994 letter.  On this record, therefore, it has not been shown that the finality of the August 9 final decision was vitiated by an agreement of the contracting officer to reconsider his decision.  See William G. Barnes & Son Co., Inc., PSBCA No. 3405, November 12, 1993; Edward R. Ester and Lorraine Ester, PSBCA No. 3051, 92-2 BCA ¶ 24,822; Horton Electric, Inc., ASBCA No. 35677, 88-2 BCA ¶ 20,608.

[4]  As discussed in Footnote 1, above, Respondent’s motion raises a jurisdictional issue and therefore is treated as a Motion to Dismiss.