December 4, 1998
Appeal of
J. LEONARD SPODEK
NATIONWIDE POSTAL MANAGEMENT
LEASE AGREEMENT
(Rhodhiss, NC MPO)
PSBCA No. 4289
APPEARANCE FOR APPELLANT:
J. Leonard Spodek
APPEARANCE FOR RESPONDENT:
Robert P. Faust, Esq.
OPINION OF THE BOARD ON MOTION TO DISMISS
Respondent has filed a motion to dismiss this appeal, contending that the Board is without jurisdiction because Appellant has failed to submit a proper claim. Respondent contends that correspondence setting forth Appellant’s claim for certain costs he had incurred was not a claim because it was addressed to Respondent’s counsel, and thus was not “submitted in writing to the contracting officer” as required by section 605 of the Contract Disputes Act.[1]
FINDINGS OF FACT
1. In a January 22, 1998 letter to Appellant, the contracting officer for the lease of the Rhodhiss, North Carolina Post Office advised Appellant, the building owner, that he was obliged to perform repairs to the HVAC system at the post office (Appeal File for PSBCA No. 4250, Tab (“AF”) B3). The letter was sent by fax to Appellant and by mail to Appellant’s attorney[2] (id.).
2. On January 23, Appellant responded, apparently also by fax and mail, in a letter addressed to one of Respondent's attorneys. Appellant referred to the contracting officer’s January 22 letter—“In response to [the contracting officer’s] letter of January 22, 1998 . . .—“ and addressed the HVAC repair issues. The last paragraph of the letter, however, addressed a different issue:
“Furthermore, after reviewing the file, I found that the lessor on or about May 2, 1997 paid Bruce Williams $1090.00 for painting and servicing this Post Office, copy of bill attached. Let this serve as notice [to] the United States Postal Service that the lessor is requesting reimbursement for this bill.” (AF B4).
3. By a January 29 letter, again addressed to Respondent’s counsel and apparently sent by fax and mail, Appellant purported to provide certain documentation relating to the HVAC system that the contracting officer had requested in his January 22 letter. Appellant’s January 29 letter concluded,
“As per my letter of January 3[sic 23], 1998 the lessor needs reimbursement of $1090.00 dollars most of which is for painting the above mentioned facility. It is the lessors position that painting is decorating and not a repair.” (AF B5).
4. On February 3, the contracting officer responded to Appellant, beginning his letter, “This letter is in response to your letters to [counsel], dated January 23 and January 29, 1998.” (AF B6). The contracting officer addressed the HVAC issues, and included the following paragraph regarding the painting claim:
“In your January 23 and 29 letters, you also refer to a cost you incurred in the amount of $1,090 for painting of the Rhodhiss post office and you request reimbursement from the Postal Service for this amount. Is it your intent that this amount be considered a claim against the Postal Service? If so, please let me know immediately and I will treat it as such. Until I receive such notice I will not treat it as a claim.” (Id.).
5. Believing he had not received a response to his January 23, 1998 letter by September 1998, Appellant asked the Board to docket an appeal of the contracting officer's deemed denial.
DECISION
The Contract Disputes Act does not require that a claim be sent only to the contracting officer. Other appropriate government officials may receive written claims and forward them to the contracting officer. See Dawco Constr., Inc. v. United States, 930 F.2d 872, 880 (Fed. Cir. 1991) overruled in part, on other grounds, Reflectone v. Dalton, 60 F.3d 1572 (Fed. Cir. 1995); Roy McGinnis & Co., ASBCA Nos. 40004, 40005, 91-1 BCA ¶ 23,395; Robin Indus., Inc. v. United States, 22 Cl. Ct. 448 (1991). It is apparent that Appellant intended that his painting claim be considered by the contracting officer, even though it was addressed to counsel. The claim was asserted in the course of an exchange of correspondence with the contracting officer regarding the facility and as part of Appellant’s response directly to the contracting officer. In a declaration filed in support of Respondent’s motion, the attorney to whom Appellant addressed his January 23 and 29 letters states that he returned Appellant’s claim and explained to Appellant that the claim had to be directed to the contracting officer. However, it is apparent that the contracting officer received Appellant’s claim for painting and simply chose not to act on it.
Accordingly, Respondent’s motion to dismiss is denied. Appellant’s Complaint is to be filed within 30 days after it receives this Decision.
Norman D. Menegat
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
David I. Brochstein
Administrative Judge
Vice Chairman