June 27, 2005
Appeal of
TERRY L. BRADLEY
Under Contract No. HCR 72737
PSBCA No. 5103
APPEARANCE FOR APPELLANT:
Raymond C. Smith, Esq.
APPEARANCE FOR RESPONDENT:
Judith K. Zehner, Esq.
OPINION OF THE BOARD ON MOTION TO DISMISS
Respondent, United States Postal Service, has filed a motion to dismiss this appeal, contending that the Board does not have jurisdiction to order the relief Appellant, Terry L. Bradley, seeks: renewal of his mail transportation contract. Appellant argues that the decision not to renew his contract was the product of malicious and false information supplied to the contracting officer by Respondent’s officials and that the Board has jurisdiction to address his claims.
For purposes of ruling on the motion, the following Findings of Fact are made.
FINDINGS OF FACT
1. In June 2003, Appellant’s contract HCR 72737 for transportation of mail between Respondent’s Fayetteville, Arkansas Processing and Distribution Facility and a number of neighboring post offices was renewed for a seven-month period, from July 1, 2003, to January 30, 2004 (Appeal File, Tab (“AF”) 29).
2. The renewal contract provided, “This contract may be renewed by mutual agreement of the parties.” (AF 30 (p. 195), Contract Clause H.17, RENEWAL (Clause B-79) (January 1997)).
3. In a letter dated January 13, 2004, the contracting officer advised Appellant that Respondent had decided not to renew Appellant’s mail transportation contract when it expired on January 30, 2004. The letter advised Appellant that it was a final decision of the contracting officer and notified Appellant of his right to appeal the decision to the Postal Service Board of Contract Appeals. (AF 38).
4. Appellant, through counsel, filed a notice of appeal on January 23, 2004 (AF 39). In a February 13, 2004 letter to the contracting officer, with a copy sent to the Board, Appellant’s counsel advised that Appellant was willing to use alternative dispute resolution procedures ("ADR") to try to resolve the dispute. Counsel asked the contracting officer whether he would be willing to utilize ADR.
5. In his Complaint, filed March 3, 2004, Appellant asserted that the decision not to renew his contract was tainted by bad faith conduct of Postal Service employees. As relief he sought (1) renewal of his contract and (2) recovery of his cost of hiring a driver during the renewal period when Respondent barred him from performing the route personally and certain vehicle costs he allegedly incurred because the contract was not renewed. (Complaint).
6. Respondent filed a motion to dismiss the appeal, contending that the Board is not authorized to grant reinstatement or renewal of Appellant’s contract.
7. On July 1, 2004, the Board suspended proceedings to allow the parties an opportunity to explore settlement and, if no settlement was reached, to allow Appellant to submit his monetary claims to the contracting officer for decision. (July 1, 2004 Order and Memorandum of Telephone Conference).
8. On August 30, 2004, Appellant sent the contracting officer his claim for the cost of the hired driver and for costs associated with specialized vehicles he acquired to perform the route that he allegedly could not use after his contract was not renewed (Exhibit A to Declaration of Johnny Lott).
9. By letter dated October 13, 2004, the contracting officer denied both claims. The letter advised Appellant that the denial was the final decision of the contracting officer and that Appellant could file an appeal of the denial with the Postal Service Board of Contract Appeals within 90 days after his receipt of the decision. The letter advised that, alternatively, Appellant could “bring an action, directly in the United States Court of Federal Claims within 12 months from the date you receive this decision.” (Exhibit B to Declaration of Johnny Lott). Appellant received the October 13 final decision on October 15, 2004, and has not filed an appeal with the contracting officer or the Board (Declaration of Johnny Lott and Exhibit C thereto).
DECISION
It is well established that the Board has no authority to order Respondent to renew a contract. Tab Distributors, Inc., PSBCA No. 4134, 99-1 BCA ¶ 30,110, citing James A. Crosby, PSBCA No. 3673, 95-2 BCA ¶ 27,754; Marvin R. Iseminger, PSBCA No. 2537, 90-1 BCA ¶ 22,339. As the relief Appellant seeks is beyond the Board’s authority to grant, Appellant’s demand that the contract be renewed is subject to dismissal.
In his Complaint, Appellant also claimed recovery of the cost of hiring a driver while Appellant was barred from driving the route personally and costs related to trucks he would have used to perform the renewed contract (Finding 5). The contracting officer denied those claims on October 13, 2004, and Appellant has not appealed that denial to the Board (Finding 9). As more than 90 days have passed since Appellant’s receipt of the contracting officer’s October 13, 2004 final decision, any appeal of those claims would be untimely and subject to dismissal for lack of jurisdiction. See Cosmic Constr. Co. v. United States, 697 F.2d 1389 (Fed. Cir. 1982); Glenna Romero, PSBCA No. 5137, 04-2 BCA ¶ 32,790.
In a February 13, 2004 letter to the contracting officer, before the Complaint was filed, Appellant’s counsel proposed use of alternative dispute resolution (“ADR”) methods regarding the dispute (Finding 4). According to Appellant, the contracting officer failed to respond, and Appellant suggests that pursuant to the Contract Disputes Act provisions authorizing alternative means of dispute resolution (41 U.S.C. §605 (d) & (e)), this failure renders the contracting officer’s October 13, 2004 letter ineffective as a final decision. Thus, Appellant argues, pursuit of his monetary claims before the Board is not time barred.
The cited provisions of the Contract Disputes Act authorized but did not compel the contracting officer to engage in ADR to attempt to settle this appeal, and Appellant has failed to demonstrate why a contracting officer’s failure to respond to a suggestion that ADR be employed would affect the vitality of any subsequently-issued final decision. Moreover, Appellant has not argued and the record does not reflect that the contracting officer’s failure to respond formally to Appellant’s ADR suggestion prevented Appellant from appealing the October 13 final decision denying his monetary claims or that Appellant was misled or lulled into believing he was not required to appeal the final decision within the time limits stated therein. Appellant has shown no basis for tolling the running of the appeal period or for relieving him from the requirement to file his appeal within 90 days after receipt of the final decision.
The appeal is dismissed for the reasons stated herein.[1]
Norman D. Menegat
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
Chairman
David I. Brochstein
Administrative Judge
Vice Chairman
[1] Appellant may bring an action on his claims for monetary damages directly in the United States Court of Federal Claims within 12 months from the date of receipt of the contracting officer's final decision. 41 U.S.C. §609(a)(1) and (3); Finding 9.