December 22, 2003
Appeal of
NATIONWIDE POSTAL MANAGEMENT
LEASE AGREEMENT
PSBCA No. 5043
APPEARANCE FOR APPELLANT:
J. Leonard Spodek
APPEARANCE FOR RESPONDENT:
Patrice R. Dickey, Esq.
OPINION OF THE BOARD ON MOTION TO DISMISS
Appellant, Nationwide Postal Management, leases a building to Respondent, United States Postal Service. A dispute arose between the parties regarding responsibility for certain repairs made to the premises, and the contracting officer issued Appellant a final decision. Appellant filed an appeal, and in its Answer to Appellant’s Complaint, Respondent challenged the Board’s jurisdiction, contending that the appeal was untimely filed. We considered this challenge to be the equivalent of a motion to dismiss, and afforded Appellant an opportunity to file an opposition to Respondent’s “motion.” The following findings are based on the record as it stands at this time and are made solely for the purpose of deciding this motion to dismiss.
FINDINGS OF FACT
1. Appellant leases to Respondent a building used as the Eaton Park, Florida Post Office (Appeal File, Tab (“AF”) 6).
2. In 2002, Respondent performed certain repairs to the parking lot of the post office that it contended were Appellant’s responsibility (AF 4, p. 3).
3. In a final decision dated March 14, 2003, the contracting officer for the lease stated his view that the repairs were the responsibility of Appellant and that Appellant was liable for their cost. He stated that the debt would be offset against the Eaton Park Post Office rent commencing with the March 2003 rent. The final paragraph of the letter contained the standard final decision language advising Appellant of its appeal rights under the Contract Disputes Act. Appellant received the final decision on March 19, 2003. (AF 3).
4. In response to the contracting officer’s March 14 final decision, Appellant’s principal spoke to the contracting officer’s supervisor, the Manager, Real Estate, regarding the parking lot, and by letter dated May 19, 2003, Appellant wrote to the Manager seeking reconsideration of the March 14 decision. In the letter, Appellant recounted briefly the history of the dispute and Appellant’s position and included copies of documents pertaining to the repairs at issue. Appellant concluded the letter as follows, “Therefore, we would like to request that you reconsider the aforementioned final decision. Thank you in advance for your time and consideration in this matter.” (AF 2, pp. 2-9).
5. Believing that the matter could be resolved through the reconsideration process without having to resort to litigation and concerned that filing a formal appeal would be inconsistent with also asking the Manager for reconsideration, Appellant did not file an appeal of the contracting officer’s March 14 final decision (Appellant’s December 3, 2003 opposition to dismissal).
6. On July 1, 2003, the Manager, Real Estate, replied:
“This letter is in response to your letter of May 19, 2003 wherein you requested that I review the final decision issued by [the contracting officer] with regards to the parking lot at Eaton Park, FL.
I spoke with [the contracting officer], reviewed the file and his correspondence with you concerning the parking lot, and have concluded that [he] has acted in the best interest of the Postal Service. If you disagree with the decision of [the contracting officer], you have certain rights under the lease that [he] has spelled out in his letter dated March 14, 2003.”
(AF 2, p. 1).
7. By letter dated July 24, 2003, to the Manager, Real Estate, and apparently received by him on or about August 6, 2003, Appellant stated its intent to appeal the contracting officer’s decision to make deductions from Appellant’s rent to pay for the repairs. Appellant stated, “Please forward this notice within ten days to the Board of Contract Appeals according to Title Code 39 of Federal Regulations, Paragraph 955.3.” (AF 1). That letter was forwarded to the Board where it was docketed as an appeal.
DECISION
Respondent argues that the appeal initiated by Appellant’s July 24, 2003 letter (Finding 7), which was sent more than 90 days after Appellant received the contracting officer’s March 14, 2003 final decision (Finding 3), was untimely filed. Under the Contract Disputes Act, as amended, to be timely an appeal to the Board must be filed within 90 days after receipt of a contracting officer’s final decision, and the Board cannot waive the 90-day filing requirement. Cosmic Constr. Co. v. United States, 697 F.2d 1389 (Fed. Cir. 1982); J. Leonard Spodek d/b/a Alabama Postal Holdings, PSBCA No. 3932, 97-1 BCA ¶ 28,964.
However, a final decision will not serve to begin the appeal period when Respondent’s actions lead the contractor to reasonably believe that the decision is being reconsidered and that an immediate appeal is, therefore, not necessary. See William G. Barnes & Son, Co., PSBCA No. 3405, 1993 PSBCA LEXIS 45 (November 12, 1993); Edward R. Ester and Lorraine Ester, PSBCA No. 3051, 92-2 BCA ¶ 24,822; Johnson Controls, Inc., ASBCA No. 28340, 83-2 BCA ¶ 16,915. The content of the conversations regarding the parking lot at the Eaton Park Post Office between the Manager, Real Estate, and Appellant (Finding 4) is not in the record, but when the Manager’s response to Appellant on July 1, 2003, given more than a month after he received the reconsideration request (Finding 6), is considered, it is apparent that the Manager agreed to and did conduct a reconsideration of the circumstances leading the contracting officer to impose liability for the repairs upon Appellant. Although the typical case involves actions of the contracting officer indicating that he will reconsider his final decision, here the actions of the contracting officer’s Manager were equivalent and had the effect of causing Appellant to reasonably conclude that the decision was being reconsidered and that an appeal within 90 days of the March 14 final decision was not necessary (Finding 5). Id.; Sach Sinha and Assoc., ASBCA No. 46916, 95-1 BCA ¶ 27,499 at 137,042. That being the case, Appellant’s time for filing its appeal did not commence until receipt of the Manager’s July 1, 2003 letter (Finding 6), and its July 24 letter (Finding 7) constituted a timely appeal.
Alternatively, Appellant’s May 19, 2003 letter (Finding 4), sent within 90 days of its receipt of the March 14, 2003 final decision, was itself a notice of appeal. A notice of appeal need not be in any particular form, so long as it evidences disagreement with the final decision and indicates an intent to appeal the decision to a higher authority. Auburn Flying Serv., PSBCA Nos. 1509, 1510, 86‑3 BCA ¶ 19,273; Hubbard Trucking, Inc., PSBCA No. 3790, 97-1 BCA ¶ 28,913. In the May 19 letter, Appellant states its disagreement with the March 14 decision of the contracting officer and by addressing the letter to the contracting officer’s supervisor Appellant plainly sought an appeal of the final decision to a higher authority.
For these reasons, based on the record available, we conclude that the appeal was timely filed. The 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