February 9, 2000
Appeal of
D & C BUILDING MAINTENANCE, INC.
Under Contract Nos. 475630-98-P-0316 and 475630-98-P-0440
PSBCA No. 4459
APPEARANCE FOR APPELLANT:
David Heidenthaler
APPEARANCE FOR RESPONDENT:
Mark E. Dennett, Esq.
OPINION OF THE BOARD ON MOTION TO DISMISS
Respondent, United States Postal Service, has filed a motion to dismiss the challenge raised by Appellant, D & C Building Maintenance, Inc., in its Complaint of the decision of the contracting officer to terminate the subject contracts on thirty days notice. Respondent argues in support of its motion to dismiss that Appellant failed to timely appeal the contracting officer’s decision to terminate the contracts. The following findings of fact are made for the purpose of deciding this motion.
1. On March 2, 1999, two contracts Appellant had with Respondent for cleaning services of postal facilities (Contract Nos. 475630-98-P-0316 and 475630-98-P-0440), were terminated on thirty days notice by the contracting officer because of Appellant’s unsatisfactory performance (Appeal File Tab (AF) E).
2. By letter dated March 6, 1999, Appellant informed the contracting officer’s representative (COR), that it disagreed with the termination of the contracts and that it would “proceed with this matter to the courts for violation of our rights . . . .” (AF F).
3. On April 5, 1999, by final decision, the contracting officer reaffirmed the terminations and informed Appellant of its appeal rights (AF G).
4. On April 21, 1999, Appellant filed a claim with the contracting officer in the amount of $22,010.40, for lost profits and consequential damages for the wrongful termination of the subject contracts (AF H).
5. In response, by final decision dated May 11, 1999, the contracting officer denied Appellant’s claim in its entirety. Appellant received the final decision on May 14, 1999. (AF G).
6. On August 13, 1999, Appellant filed a notice of appeal of the contracting officer’s May 11, 1999 final decision (AF J).
Under the Contract Disputes Act of 1978, as amended, an appeal to an agency board of contract appeals must be filed within 90 days from receipt of a contracting officer’s final decision. 41 U.S.C. §606. The 90-day period is jurisdictional and cannot be waived by a board. Cosmic Construction Co. v. United States, 697 F.2d 1389 (Fed. Cir. 1982); Jeff W. Loder, PSBCA No. 2771, 90-3 BCA ¶ 23,159; Conquest Construction, Inc., PSBCA No. 2637, 90-2 BCA ¶ 22,682. A notice of appeal need not be in any form, however, as long as it evidences a disagreement with the contracting officer’s decision and indicates an intent to appeal the decision to a higher authority. Auburn Flying Service, PSBCA Nos. 1509, 1510, 86-3 BCA ¶ 19,273; Hubbard Trucking, Inc., PSBCA No. 3790, 97-1 BCA ¶ 28,913. Moreover, the notice need not be sent to the board itself, but may be filed with the contracting officer from whose decision the appeal is taken, 39 C.F.R. §955.2, or with the contracting officer’s representative. See Auburn Flying Service, supra.
In this case, Appellant’s letter of March 6, 1999, to the contracting officer’s representative, and the April 21 challenge to the propriety of the termination satisfy the requirements of a valid notice of appeal. These documents clearly evidence a disagreement with the contracting officer’s decision on March 2, 1999, to terminate the contracts[1] and indicate intent to appeal the decision to a higher authority. (Finding of Fact No. 2).
Accordingly, Respondent’s motion to dismiss is denied.
William K. Mahn
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
Board Member
I concur:
David I. Brochstein
Administrative Judge
Board Member
[1] The failure of the contracting officer to inform Appellant of its appeal rights in the terminations of its contracts does not render the decisions ineffective or deprive boards or courts of jurisdiction if a timely appeal is filed. See Frank Wojcik, PSBCA No. 2532, 90-1 BCA ¶ 22,321; J. Fiorito Leasing, Ltd., PSBCA No. 1102, 83-1 BCA ¶ 16,546.