May 10, 2006
Appeal of
FRANK BAIAMONTE
Under Contract Nos. HCR 863C5 and HCR 863D8
PSBCA No. 5274
APPEARANCE FOR APPELLANT:
Frank Baiamonte
APPEARANCE
FOR RESPONDENT:
Gary Shapiro, Esq.
Office of the General Counsel
OPINION OF THE BOARD ON MOTION TO DISMISS
Appellant, Frank Baiamonte, has filed an appeal from a contracting officer’s decision denying his claim seeking payment from Respondent, United States Postal Service, based on the alleged failure of Respondent to enforce the terms of a contract to which Appellant is not a party, while enforcing the terms of Appellant’s contracts. Respondent has filed a motion to dismiss this appeal for lack of jurisdiction.
For the purpose of ruling on the motion we make the following findings of fact:
FINDINGS
OF FACT
1. In April 2003, Appellant was awarded two contracts for mail service originating at the Cottonwood, Arizona post office. One of the contracts (No. 863C5) was for delivery of mail to 580 boxes along a specified route. The second contract (No. 863D8) was “a collection route serving various businesses.” Both contracts were for the period from May 31, 2003 through June 30, 2006. (Appeal File Tabs (AF) 8, 9).
2. In April 2004, Respondent awarded another contract (Contract No. 86367) for box-delivery services originating from Cottonwood (along a different route) to a different contractor (the “86367 contractor”). The performance period for that contract was from May 8, 2004 though June 30, 2007. (AF 10).
3. Beginning in May 2004, through a series of letters and emails Appellant engaged in a dialog, primarily with Postal Service contracting personnel, in which he complained that the 86367 contractor was being allowed to use a vehicle that did not comply with the 86367 contract requirements regarding minimum capacity while Appellant was being required to meet the capacity requirements for the vehicle used in his contracts. (AF 7 (Appellant’s Exhibits A-O)).
4. By letter dated March 6, 2005, Appellant sent the contracting officer a claim, certified in accordance with the Contract Disputes Act of 1978, in which he demanded the payment of $285,000. Appellant described himself as an “interested contractor/supplier that was a participant in the bid process” leading to the award of contract 86367. The gist of Appellant’s claim was his allegation that while he had been held to his contract “in every aspect,” the 86367 contractor had been given “preferential treatment by noncompliance of this contract requirements with the help of Postal Service [personnel] involved.” Appellant’s claim contained no explanation regarding how he arrived at the amount of $285,000. (AF 7).
5. In an April 1, 2005 reply, Respondent’s Acting Manager of Transportation Contracts for the Pacific Area stated to Appellant that in order to evaluate his claim it would be necessary for him to provide a detailed description of his costs and documentation supporting those costs (AF 6).
6. By letter dated April 6, 2005, Appellant submitted additional documents related to his allegations regarding vehicle capacities, but no information explaining any costs that he incurred. In an April 12, 2005 reply, the Transportation Contracts Manager again requested that Appellant provide a description of his costs and supporting documentation. (AF 4, 5).
7. In a letter dated April 18, 2005, Appellant declined to provide a detailed description of the costs claimed, stating that he was not required by the Contract Disputes Act to do so. Appellant requested that a contracting officer’s decision be issued within the time required by the Act. (AF 3).
8. By final decision dated May 4, 2005, the contracting officer denied Appellant’s claim in its entirety. The contracting officer based her decision on Appellant’s failure to provide a detailed description of the claimed costs, and on her opinion that Appellant’s claim was not based on his contract but, instead, was based on the 86367 contract. (AF 2). Appellant filed a timely appeal (AF 1).
DECISION
Respondent argues that Appellant’s appeal is based on alleged violations of a contract to which Appellant is not a party, that Appellant, accordingly, lacks the privity of contract and standing needed to prosecute his claim, and that the Board lacks jurisdiction to hear this matter. Respondent also contends that, at best, this matter could be construed as a protest of the award of contract 86367, over which this Board also lacks jurisdiction. Appellant opposes the motion.
We
disagree with Respondent’s characterization of this appeal. In its essence, although inartfully
drafted and argued by Appellant, what we have before us is a claim by
Appellant, who is a contractor, 41 U.S.C. §601(4), that he was required by
Respondent to meet (and did meet) the requirements of his contracts with regard
to the capacity of the vehicle used to perform the contracts; that another
contractor, the 86367 contractor, was not required by Respondent to meet the
vehicle capacity requirements of his contract; that these actions by Respondent
were improper; and that Appellant was thereby damaged in the amount of
$285,000. Appellant's letter of March 6, 2005, to the contracting officer was a
written demand, seeking as a matter of right a "sum certain," and,
therefore, constituted a proper claim under the Contract Disputes Act of 1978.[1] See,
e.g., Contract Cleaning
Maintenance v. United States, 811 F.2d 586, 592 (Fed. Cir. 1987); Tecom, Inc. v.
With regard to further proceedings in this appeal, we note that Appellant has repeatedly failed and/or refused to set out the basis for the $285,000 in damages he has claimed. To prevail on the merits of his claim, Appellant will be required to show that Respondent’s actions breached his contracts, and that he suffered actual monetary damages as a result of those breaches.
Accordingly, Respondent’s motion to dismiss for lack of jurisdiction is denied.
David I. Brochstein
Administrative Judge
Acting Chairman
I concur:
Norman D. Menegat
Administrative Judge
Board Member
[1] The Board
erroneously docketed this appeal as arising under contract HCR 86367. The caption has been corrected to reflect
Appellant’s contracts, referred to in Appellant’s notice of appeal (AF 1).