June 28, 1999
Appeal of
LIBEN MOLU LIBEN
d/b/a MEGA TRANSPORT COMPANY
Under Contract No. HCR 55640
PSBCA No. 4194
APPEARANCE FOR APPELLANT:
Michael H. Boyle, Esq.
APPEARANCE FOR RESPONDENT:
Cary L. Katznelson, Esq.
OPINION OF THE BOARD ON MOTION TO DISMISS
Respondent has filed a motion to dismiss this appeal for lack of jurisdiction, alleging that Appellant failed to file an appeal within the 90-day period required by the Contract Disputes Act. For the reasons explained below, we deny the motion. For the purpose of deciding the motion we make the following findings of fact, based on the current record.
FINDINGS OF FACT
1. Contract HCR 55640 was awarded to Appellant on January 10, 1997, for a term beginning February 1, 1997, and ending June 30, 1998. The contract required the transportation of mail between Duluth and Grand Portage, Minnesota, with intermediate stops. (Appeal File Tab (AF) 1).
2. By final decision dated September 7, 1997, the contracting officer terminated the contract for default for Appellant's "failure to perform service according to the terms of the contract …." Appellant received the notice of termination on September 15, 1997, but did not file an appeal. (AF 2).
3. By final decision dated January 30, 1998, the contracting officer assessed Appellant $6,190.68 in damages, based primarily on the excess cost of an emergency contract for the period of September 10, 1997, through December 5, 1997. The final decision contained language notifying Appellant of his right to appeal to either this Board or to the United States Court of Federal Claims, but there is no record of when Appellant received this final decision. (AF 3).
4. In a letter dated April 6, 1998, and received by the contracting officer on April 21, 1998, Appellant described difficulties he had had in performing the contract, including weather problems, equipment problems, road condition problems (which apparently resulted in Respondent adding 30 minutes to his scheduled time), problems getting paid, and problems caused when his driver (who had been left in charge because of a family emergency suffered by Appellant) failed to run the route. The letter was addressed to the contracting officer and to the "Board of Contract Appeals" and the subject of the letter was indicated as "Appeals for HCR 55640." Appellant closed his letter by stating that "i will be seeking fare jugment to excuse me form this dept." [sic] (AF 4).
5. Appellant's April 6, 1998 letter was forwarded to the Board and was docketed as PSBCA No. 4194.
6. Appellant's Complaint was filed with the Board on June 9, 1998. In his Complaint, Appellant contended that the contract had been improperly terminated for default and that Respondent had failed to mitigate its damages in connection with the reprocurement.
DECISION
Respondent contends that Appellant's letter of April 6, 1998, cannot be considered a notice of appeal because it fails to meet the necessary elements of such a notice – which Respondent contends include directly appealing Respondent's final decision, or contradicting Respondent's final decision terminating the contract or taking issue with the costs of reprocurement. Respondent contends that the letter should be regarded as, at most, a request for reconsideration of the final decision. Respondent argues that Appellant's Complaint was the first document which could be considered an acceptable notice of appeal. However, Respondent argues, since that document was filed after the 90-day appeal period, it is insufficient to give the Board jurisdiction over this appeal.
To constitute an appeal, a written notice must state Appellant's dissatisfaction with the final decision and express Appellant's intention to appeal the contracting officer's action to a higher authority. Nationwide Postal Management, PSBCA No. 4068, 98-1 BCA ¶ 29,444, and cases cited. Appellant's letter of April 6, 1998, meets this test.
In that letter, Appellant cited various difficulties he encountered in attempting to operate his route, including some alleged delay in getting paid, and clearly indicated his contention that they were beyond his control. The gist of Appellant's letter was that he disagreed with the contracting officer's conclusion that the contract should have been terminated for default. This satisfies the first element of the test – an expression of dissatisfaction with the final decision.
Appellant's expression of his intent to appeal to a higher authority is found in three elements of his letter. First, the letter, although bearing the mailing address of the contracting officer, was addressed both to the contracting officer and to this Board. Second, the subject line of the letter, which read "Appeals for HCR 55640," can be read as an expression of Appellant's intent to invoke the appeal rights spelled out in the final decision – i.e., an appeal to this Board. Finally, the closing line in the letter, which indicates that Appellant "will be seeking fare [sic]" judgment, also indicates an intent to take the matter beyond the contracting officer.
Inasmuch as Appellant's letter of April 6, 1998, contained the required elements of a notice of appeal, Respondent's motion to dismiss this appeal for lack of jurisdiction is denied.
David I. Brochstein
Administrative Judge
Vice Chairman
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
Norman D. Menegat
Administrative Judge
Board Member