December 3, 1998
Appeal of
SUNSHINE DEVELOPMENT, INC.
LEASE AGREEMENT
(Carlisle, PA Post Office)
PSBCA No. 4200
APPEARANCE FOR APPELLANT:
Kenneth I. Levin, Esq.
Samantha L. Southall, Esq.
APPEARANCE FOR RESPONDENT:
Daniel M. Curts, Esq.
OPINION OF THE BOARD ON MOTION TO DISMISS
Respondent has filed a motion to dismiss this appeal as untimely. For purposes of deciding the motion, the following findings of fact are made.
FINDINGS OF FACT
1. On August 29, 1996, Respondent and Appellant entered into a lease whereby Appellant agreed to expand and renovate the premises Respondent leased for the Carlisle, Pennsylvania Post Office. Certain costs of the project were to be recovered by Appellant over the term of the lease as rent, but the lease provided that Respondent would pay Appellant a lump sum of $921,000 to complete construction of the project, including extension of the lookout galleries (“LOG”) to the expanded space. (Appeal File, Tab (“AF”) 1; Complaint ¶3; Answer ¶3).
2. During construction, a disagreement arose between the parties about the scope of Appellant’s duty under the lease to construct the extension of the LOG to the new lobby retail counter (AF 3, 14-18, 25, 40).
3. By letter dated September 2, 1997, Respondent insisted that Appellant construct the LOG extension to the retail counter area (AF 20, 21). Appellant objected to that construction, and did not extend the LOG (AF 25).
4. On December 29, 1997, Respondent advised Appellant that as of a December 18 walk through of the building, it was noted that the LOG extension had not been constructed as Respondent had directed in its September 2, 1997 letter (AF 27).
5. By letter dated December 30, 1997, Appellant advised the contracting officer that it believed the LOG as constructed (without the extension to the retail counters) met the requirements of the contract (AF 28).
6. By letter dated January 9, 1998, the contracting officer issued a punch list to Appellant, listing the construction deficiencies noted in a final inspection of January 7, 1998. In the letter, the contracting officer referred to Appellant’s December 30 letter and insisted that extension of the LOG to the retail area was required by the contract. The letter stated that the determination was a contracting officer’s final decision and advised Appellant of the appeal rights set forth in the contract’s Claims and Disputes clause. Appellant received the January 9 letter on January 12, 1998. (AF 29).
7. By letter dated February 24, 1998, Appellant apprised the contracting officer that the extra cost associated with construction of the lookout gallery extension, which Appellant contended was beyond the scope of the contract, would be $22,786.29 (AF 30, 31).
8. By March 18, 1998, Appellant had constructed the LOG to the retail counters. Although the construction was not exactly as desired by Respondent, Respondent accepted it. (AF 32, 33).
9. In a letter dated April 22, Appellant’s attorney inquired of the contracting officer as to what he intended to do regarding granting Appellant an equitable adjustment for the LOG extension (AF 34).
10. In a letter dated April 27, 1998, the contracting officer discussed a number of remaining construction issues. He addressed the LOG as follows: “Regarding the Lookout Gallery extension, we acknowledge acceptance of the gallery as per my 3-18-98 letter. Please refer to my 1-9-98 letter. The Lookout Gallery extension was required under this contract and therefore no equitable adjustment will be made.” (AF 35).
11. On May 5, 1998, Appellant filed a notice of appeal from the contracting officer’s April 27 decision denying Appellant an equitable adjustment (AF 36, 37).
DECISION
Respondent argues that the Board lacks jurisdiction over this appeal because Appellant failed to file an appeal of the contracting officer’s January 9, 1998 letter, which Respondent contends was a final decision, within the 90 days allowed by the Contract Disputes Act. Appellant responds that as of January 9, 1998, Appellant had not filed a claim. Absent a claim, according to Appellant, the January 9 “final decision” was without effect, and the time to appeal did not start to run.
Although the parties disagreed about the scope of Appellant’s duty under the contract to construct the LOG extension to the retail counters, the record before us does not show that Appellant had submitted a claim before January 9, 1998, when the contracting officer purported to issue a final decision. Appellant’s expressions of disagreement with the contracting officer’s interpretation of the contract requirements were not a claim because they had not been reduced to a written demand seeking as a matter of right the payment of money in a sum certain, interpretation of the contract, or other relief, and Appellant had not requested that the contracting officer issue a final decision. See Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed. Cir. 1995); Wayne R. Hilf, PSBCA No. 2800, 91-1 BCA ¶ 23,628; E.P. Cline, PSBCA No. 2926, 91-2 BCA ¶ 23,992. As it was issued before Appellant filed a claim, the contracting officer’s January 9, 1998 letter did not start Appellant’s time to appeal the contracting officer’s interpretation of the contract requirements. See Fisherman’s Boat Shop, Inc., ASBCA No. 50324, 97-2 BCA ¶ 29,257.
However, Appellant’s letters of February 24 and April 22, 1998 (Findings 7, 9), constituted a claim which the contracting officer denied in his letter of April 27, 1998 (Finding 10). Appellant took a timely appeal from this denial, and, therefore, the Board has jurisdiction over Appellant’s appeal.
Accordingly, Respondent’s motion to dismiss is denied.
Norman D. Menegat
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
David I. Brochstein
Administrative Judge
Vice Chairman