October 29, 1998
Appeal of
TAB DISTRIBUTORS, INC.
Under Contract No. HCR 10537
PSBCA No. 4134
APPEARANCE FOR APPELLANT:
Christopher A. Smith, Esq.
APPEARANCE FOR RESPONDENT:
Charles J. Dudek, Esq.
OPINION OF THE BOARD ON MOTION TO DISMISS
Respondent has filed a motion to dismiss this appeal, contending that the Board does not have jurisdiction to order the relief Appellant seeks: renewal of a highway transportation contract it held with Respondent. Appellant has opposed the motion on the ground that renewal of its contract is not the relief it seeks in this appeal. Instead, according to Appellant, the Board should remand the issue of whether the contract should be renewed to another contracting officer for proper determination on the merits because the original nonrenewal decision of the contracting officer was tainted by bad faith and constituted an abuse of discretion. For purposes of ruling on the motion, the following Findings of Fact are made.
FINDINGS OF FACT
1. Respondent awarded contract HCR 10537 to Appellant for the transportation of mail between Westchester and Hartsdale, New York. The contract term was from June 30, 1993, through June 30, 1997. (Appeal File Tab (“AF”) 1).
2. The contract provided that it could “be renewed by mutual agreement of the parties.” (AF1, General Provision 27, PS Form 7407, July 1992).
3. The contract contained the standard Claims and Disputes clause (AF 1, Clause 2, PS Form 7407, July 1992), but also specified that Appellant could appeal a contracting officer's decision not to renew the contract to the “next higher level of contracting authority." (AF 1, General Provision 26, PS Form 7407, July 1992). The contract provided that a decision of the contracting officer not to renew or the decision on appeal by the next higher level of contracting officer authority "is not a dispute within the meaning of Clause 2.” (id.).
4. By letter dated June 9, 1997, the contracting officer notified Appellant,
“The Postal Service will not be renewing this contract upon expiration because of your record of unsatisfactory performance during the current contract term, and your inability to establish and maintain a sound record of integrity and business ethics.” (AF 12).
5. By letter of July 3, 1997, at the request of Appellant's attorney, the contracting officer explained that his decision not to renew the contract was based, among other things, on the fact that several tax liens had been lodged against Appellant causing his payment checks from the Postal Service to be sent to the state tax department and that several judgments had been entered against Appellant (AF 16).
6. Appellant appealed the contracting officer's decision to the next higher level of contracting officer authority (AF 18, 19), and on August 1, 1997, that official, the Manager of National Mail Transportation Purchasing at Postal Service Headquarters, denied the appeal (AF 20).
7. On October 28, 1997, Appellant filed a notice of appeal of the August 1 denial, which was docketed as an appeal by the Board. In its Complaint, Appellant asked that the Board direct that Appellant’s contract be renewed.
DECISION
Respondent argues that General Provision 26 (Finding 3) specifically provides that a decision of the contracting officer not to renew the contract is not a dispute within the meaning of the Claims and Disputes clause and that, therefore, the Board does not have jurisdiction over this appeal. It also points to decisions of the Board holding that it does not have authority to order Respondent to renew a contract.
Respondent's argument that the Board has no jurisdiciton to consider the appeal because the contract specifically provides that a nonrenewal decision is not an appeal within the Claims and Disputes clause has been considered before and has been rejected. E.g. Associated Transfer and Storage, PSBCA No. 1058, 83-1 BCA ¶ 16,138; James B. Hewette, PSBCA No. 1060, 83-1 BCA ¶ 16,168; see Burnside-Ott Aviation Training Center v. Dalton, 107 F.3d 854, 851 (Fed. Cir. 1997). Thus, the cited language of General Provision 26 does not preclude the Board from taking jurisdiction over this appeal.
It is also well established that the Board has no authority to order Respondent to renew a contract. See James A. Crosby, PSBCA No. 3673, 95-2 BCA ¶ 27,754; Marvin R. Iseminger, PSBCA No. 2537, 90‑1 BCA ¶ 22,339; Erwin Melvie, PSBCA No. 1744, 87-3 BCA ¶ 20,158. Insofar as Appellant seeks such relief, its appeal is subject to dismissal.
The Board's lack of authority to order Appellant's contract renewed was highlighted in the Board's Order of July 22, 1998, affording Appellant an opportunity to respond to the motion to dismiss. The Board suggested that Appellant's response include any alternative basis of relief, such as breach of contract, that it was asserting in the appeal. See Marvin R. Iseminger, PSBCA No. 2537, 90-1 BCA ¶ 22,339.
In its response, Appellant argued that it was not asking the Board to direct Respondent to renew the contract. Appellant stated that the only relief it sought was that the Board determine that the decision of the contracting officer was made in bad faith or was arbitrary and capricious and remand the determination of whether the contract should be renewed to another contracting officer. However, the relief now sought by Appellant is also beyond the authority of the Board to grant. Ordering Respondent to assign another contracting officer to address whether Appellant's contract should have been renewed is equitable relief in the nature of an injunction, and is also relief the Board is not authorized to grant. See Lee Ann Wyskiver, PSBCA No. 3621, 95-2 BCA ¶ 27,755, and cases cited therein. Despite being afforded an opportunity to do so, Appellant has not alleged a breach of any implied contract or facts that would support any other cause of action that might form a basis for the Board to award relief within the scope of its authority. See Erwin Melvie, PSBCA No. 1744, 87-3 BCA ¶ 20,158.
Accordingly, the appeal is dismissed.
Norman D. Menegat
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
Chairman