February 20, 1998
Appeal of
NATIONWIDE POSTAL MANAGEMENT
LEASE AGREEMENT
PSBCA No. 4119
APPEARANCE FOR APPELLANT:
J. Leonard Spodek
APPEARANCE FOR RESPONDENT:
Samuel J. Schmidt, Esq.
OPINION OF THE BOARD ON MOTION TO DISMISS
Respondent has submitted a motion to dismiss in which it argues that this appeal must be dismissed for lack of jurisdiction because Mr. J. Leonard Spodek signed the notice of appeal, whereas Ms. Rosalind Spodek, his wife, is the owner of the property leased to the Postal Service. For the purpose of deciding this motion, the following findings of fact are recited.
FINDINGS OF FACT
1. On January 20, 1987, the Postal Service leased property for a post office in Graceville, Minnesota. In 1995, Ms. Rosalind Spodek acquired this property subject to the existing lease with the Postal Service. (Appeal File Tab Nos. (AF) 1, 2).
2. On February 19, 1996, Ms. Spodek submitted to the Postal Service a Power of Attorney to Receive Rents, appointing Nationwide Postal Management as attorney to receive rents (AF 3).
3. Correspondence from the contracting officer to the Lessor subsequent to Ms. Rosalind Spodek’s purchase of the property was addressed to J. Leonard Spodek, Rosalind T. Spodek and Nationwide Postal Management (AF 5, 7, 8, 9).
4. On August 20, 1997, Respondent’s contracting officer sent a final decision to J. Leonard Spodek, Rosalind T. Spodek and Nationwide Postal Management informing them that $5,792.00, plus interest, would be withheld from rent due under the lease to recover the cost of roof repairs undertaken by Respondent on the leased property (AF 10).
5. By letter dated September 5, 1997 (on Nationwide Postal Management letterhead), Mr. J. Leonard Spodek notified the contracting officer that the “Lessor” intended to appeal the final decision and requested that the letter be forwarded “to the Board of Contract Appeals according to Title Code 39 of Federal Regulations [sic], Paragraph 955.3.” (AF 11).
DECISION
The Contract Disputes Act of 1978 is silent as to who may submit a notice of appeal. What is necessary is that there be a final decision and an appeal from that decision within 90 days of receipt. However, §955.3 of the Board’s Rules of Practice (39 C.F.R., Part 955), provides that “a notice of appeal should be signed personally by the Appellant (the contractor making the appeal), . . . or by the contractor’s duly authorized representative or attorney.” Thus, the contractor need not sign the notice of appeal if the notice of appeal is filed by an authorized representative of the contractor and otherwise meets the requirements for a notice of appeal. See, e.g, Garrison Engineers Construction, Inc., NW Mechanical, Inc., ASBCA Nos. 29015, 29536, 85-1 BCA ¶ 17,731 (a notice of appeal filed by a contractor’s claims advisor (Garrison) was valid where the final decision was sent in care of Garrison, the notice of appeal clearly manifested Garrison’s intent to appeal on behalf of the contractor, and Garrison was authorized by the contractor to pursue the contractor’s claims up to and including the filing of a notice of appeal); Willis Jay Daniel and Terri A. Daniel, PSBCA No. 1579, 87-2 BCA ¶ 19,829 (spouse authorized to bring appeal).
It is quite evident from the notice of appeal filed in this instance that Mr. J. Leonard Spodek was filing an appeal on behalf of the “Lessor”. Moreover, the fact that the final decision, as well as prior correspondence from the contracting officer, was addressed to Mr. Spodek makes it clear that the Postal Service recognized that Mr. Spodek represented the Lessor. Finally, we note that in Appellant’s response to the motion, Ms. Rosalind Spodek asserts that she intended to appeal the final decision and that she gave permission to Mr. Spodek to file the notice of appeal on her behalf. Appellant’s ratification of the notice of appeal filed on her behalf is sufficient to establish that the notice of appeal was properly filed and that the Board has jurisdiction over the appeal. See Foster Co. of Greenville, Inc. and Finesilver Mfg. Co., Inc., ASBCA Nos. 28955 and 29132, 84-2 BCA ¶ 17,481; see also Colton Construction Co., Inc., ASBCA No. 30313, 85-2 BCA ¶ 17,986 (a contractor may subsequently ratify a notice of appeal submitted by its subcontractor, even after the 90 day appeal period has passed). In these circumstances, Respondent’s citation to Mellon Stuart Company, PSBCA No. 3262, 93-1 BCA ¶ 25,490 (unauthorized subcontractor had no right to file an appeal in the name of the prime contractor), as well as the other cases cited, is inapposite.
Accordingly, Respondent’s motion is denied.
William K. Mahn
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
David I. Brochstein
Administrative Judge
Vice Chairman