December 27, 2005
Appeal of
J. LEONARD SPODEK
NATIONWIDE POSTAL MANAGEMENT
LEASE AGREEMENT
PSBCA No. 5285
APPEARANCE
FOR APPELLANT:
J. Leonard Spodek
APPEARANCE
FOR RESPONDENT:
Carrie M. Branson, Esq.
OPINION OF THE BOARD ON MOTION FOR
RECONSIDERATION
Appellant,
J. Leonard Spodek, has filed a motion for
reconsideration of the Board’s
Appellant, owner of a building leased to Respondent, received a final decision from the contracting officer terminating the lease, and his appeal of the final decision was not made within the 90-day period allowed by the Contract Disputes Act. Respondent filed a motion to dismiss the appeal for lack of jurisdiction. Appellant opposed the motion, arguing that the Board had jurisdiction over the appeal because the contracting officer had reconsidered his decision, thus tolling the running of Appellant’s appeal period. Appellant submitted a number of documents, including correspondence between the parties, in support of his position. However, Appellant failed to persuade the Board that the contracting officer had agreed to reconsider his final decision or led Appellant to believe he had done so before the 90 days had run, and the Board concluded that the appeal was untimely.
In support of his motion for reconsideration, Appellant has submitted two additional pieces of correspondence from Respondent to Appellant that he argues demonstrate that the contracting officer agreed to reconsider his final decision. However, Appellant has not shown that those documents could not have been provided in response to the motion to dismiss, and, accordingly, the additional evidence will not be considered. See Linda F. Willett, PSBCA No. 4379, 01-1 BCA ¶ 31,196; Patricia J. Stevens, PSBCA No. 3272, 94-2 BCA ¶ 26,951. In any event, the two items, although sent within 90 days after Appellant received the final decision, plainly respond to Appellant’s Freedom of Information Act request for information regarding the condition of the leased premises and could not be read to suggest the contracting officer was reconsidering his final decision.
Appellant suggests
that there may have been oral communications between the parties within the
90-day period following receipt of the final decision, including oral requests
by Appellant that the contracting officer reconsider his final decision. Appellant presents no evidence or allegations
of specific oral requests for or discussions of reconsideration, and, as
discussed above, the time to present such evidence was in response to the
motion to dismiss. A request for
reconsideration does not authorize Appellant to offer evidence it had available
but failed to present in the original proceeding.
Finally, Appellant
believes that he should be allowed to conduct discovery to develop evidence of
oral communications relating to the contracting officer’s reconsideration of
the final decision. The time to request
discovery was in responding to the motion to dismiss. Additionally, Appellant would have been a
party to any such oral communications, and his failure to submit evidence thereof,
e.g., his own affidavit, in response to the motion to dismiss bars consideration
of such oral communications in the motion for reconsideration.
Except as discussed above, Appellant repeats arguments previously made in connection with consideration of the motion to dismiss, and such repetition is not a basis for reconsideration. See The General Store, PSBCA No. 3951, 99-1 BCA ¶ 30,124. Appellant has not shown any factual or legal errors that would warrant changing our decision dismissing the appeal as untimely filed. See Gary W. Noble, PSBCA No. 4094, 00-1 BCA ¶ 30,602.
Accordingly, Appellant’s motion for reconsideration 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