July 27, 2005
Petition of
NOVA EXPRESS
PSBCA No. 5279
APPEARANCE FOR APPELLANT:
Philip Emiabata
APPEARANCE FOR RESPONDENT:
Renee C. Macri, Esq.
OPINION OF THE BOARD
On June 2, 2005, Nova Express (Petitioner) petitioned the Board to direct the United States Postal Service (Respondent) to issue a contracting officer’s final decision on Petitioner’s claim dated March 29, 2005. By Order dated June 8, 2005, the Board directed the contracting officer to issue a final decision no later than August 8, 2005, or by June 23, 2005, show cause why he should not be required to issue such a decision. By response dated June 23, 2005, Respondent stated its opposition to the requirement to issue a contracting officer’s final decision.
Findings of Fact
For the limited purpose of deciding the issues presented by the petition and response, the Board makes the following findings of fact:
1. By letter dated April 14, 2003, the Executive in Charge/Sr. Plant Manager at the Austin, TX Processing and Distribution Center (Austin P&DC) notified Philip Emiabata, Petitioner’s principal, that he would no longer be allowed to access the premises of the Austin P&DC or the Austin Priority Annex because he had violated Respondent’s zero tolerance policy on threats in the workplace (Response, Ex. 1).
2. By letter dated March 29, 2005, Petitioner requested that the contracting officer issue a final decision rescinding the plant manager’s determination to deny Mr. Emiabata access to the Austin, TX facilities and to compensate Appellant for the “monetary damages” it had sustained. Although Petitioner referred to the sum of $2.5 million, which it had sought in a previously dismissed United States District Court suit, it did not seek the payment of money in a sum certain. Petitioner’s letter also did not include the certification language required under the Contract Disputes Act for claims exceeding $100,000 or refer to any specific contract under which the claim was being made. (Petitioner’s March 29, 2005 Letter).
3. At the time Mr. Emiabata was denied access to the Austin, TX facilities, Petitioner had at least two highway route contracts for the transportation of mail from the Austin P&DC. See Nova Express, PSBCA Nos. 5101, 5205 and 5268 (Appeal File, Tab 1) and Nova Express, PSBCA Nos. 5102, 5204 and 5206 (Supplemental Appeal File, Tab 1).
Decision
Respondent argues that the contracting officer should not be required to issue a final decision on Petitioner’s claim because it has not asked for the payment of money in a sum certain or properly certified its claim to the contracting officer[1] as required by the Contract Disputes Act.
Although Petitioner is seeking monetary damages which appear to be in excess of $100,000, it has neither identified the contract under which it is making a claim nor presented a properly certified claim to the contracting officer as required by the Contract Disputes Act. See 41 U.S.C. §605(c)(1).[2] Moreover, Appellant has not filed a claim for a sum certain, as required by the Claims and Disputes Clause in its contracts. Under such circumstances, the contracting officer is not obligated to issue a final decision and the Board will not direct the issuance of such a decision at this time. See Production Corp., ASBCA No. 49122-812, 96-1 BCA ¶28,053, recon. denied, 96-1 BCA ¶28,181. Accordingly, the petition is dismissed without prejudice to allow the Petitioner to submit to the contracting officer for a final decision a properly certified (if over $100,000) claim for the payment of money in a sum certain under a specified contract in compliance with the Contract Disputes Act and the Claims and Disputes clause of its contract(s).
James A. Cohen
Administrative Judge
Chairman
I concur:
David I. Brochstein
Administrative Judge
Vice Chairman
I concur:
Norman D. Menegat
Administrative Judge
Board Member
[1] Respondent also argues that the contracting officer should not be required to issue a final decision because Petitioner’s claim was untimely filed and Petitioner is seeking tort claim damages not recoverable under the Contract Disputes Act. As Petitioner appears to be asserting a claim arising under or relating to a contract that has not been shown to be untimely, neither of those arguments would preclude the Board from requiring the issuance of a contracting officer’s final decision.
[2] The Contract Disputes Act requires that “[f]or claims of more than $100,000, the contractor shall certify that the claim is made in good faith, that the supporting data are accurate and complete to the best of his knowledge and belief, that the amount requested accurately reflects the contract adjustment for which the contractor believes the government is liable, and that the certifier is duly authorized to certify the claim on behalf of the contractor.”