March 8, 2006

 

Appeal of

 

RONALD L. JOHNSON

 

Under Task Orders

PSBCA No. 5282

 

APPEARANCE FOR APPELLANT:

Ronald L. Johnson

 

APPEARANCE FOR RESPONDENT:

Gary Shapiro, Esq.

Office of the General Counsel

United States Postal Service

 

OPINION OF THE BOARD ON RESPONDENT’S MOTION TO DISMISS

 

            Respondent, United States Postal Service, has filed a motion seeking dismissal of this appeal for lack of jurisdiction.  Respondent and Appellant, Ronald L. Johnson, entered into an ordering agreement in 2004, under which Appellant performed investigative services relating to complaints of discrimination filed with Respondent’s Equal Employment Opportunity (EEO) Services Office.  After being informed that he would not be offered a follow-on ordering agreement, Appellant filed this action.

            The following findings of fact are made for the purpose of ruling on Respondent’s motion:

FINDINGS OF FACT

            1.  On February 9, 2004, the parties entered into an ordering agreement (“Agreement”) under which Appellant was to perform investigative services related to EEO complaints filed by Postal Service employees.  The Agreement, by its explicit terms, was not a contract, but only established the terms and conditions applicable to future contracts, which were to be formed by Appellant’s acceptance of orders placed by Respondent under the Agreement.  There was no requirement that Respondent place any orders under the Agreement.  (Appeal File Tab (AF) 2).

            2.  The Statement of Work in the Agreement provided that reports of investigations were to be prepared in accordance with standards contained in “Technical Exhibit 4-001.”  Technical Exhibit 4-001 contained an overall description of the contents of an investigative report, as well as a checklist of specific items to be included with the report.  (Complaint, Exhibit 1; Notice of Appeal, Exhibit 1).

            3.  Between February 2004 and January 2005, Appellant was assigned approximately 60 investigations (AF 3, 4).

            4.  On March 28, 2005, in response to an inquiry to the EEO Services Office, Appellant was advised by email from one of Respondent’s EEO Services Analysts that he had not been sent a new ordering agreement to sign because, although his work was satisfactory, the work of other contract investigators was excellent.  This assessment was confirmed in a subsequent email from the Analyst.  (AF 4).

            5.  On April 6, 2005, Appellant sent an extensive email to the contracting officer seeking a reassessment of the decision and asking that feedback be obtained from the EEO Analysts who had been responsible for reviewing his work.  Appellant followed up with a second email to the contracting officer on May 2, 2005.  By email dated May 12, 2005, from the Manager of EEO Services, Appellant was advised that his request would not be granted.  (AF 4).

            6.  Appellant filed this appeal by letter dated May 25, 2005, to the Postal Service General Counsel.[1]

            7.  In his Complaint, Appellant stated that he did not wish to obtain a new ordering agreement, but, for the first time, requested compensation for a three-year period in the amount, for each year, that he had earned under the 2004 Agreement.  After Respondent filed its motion to dismiss the appeal, Appellant amended his Complaint to request compensation in the total amount of $100,000, which is the only relief Appellant seeks in this appeal.

DECISION

            As Respondent argues and Appellant concedes, the ordering agreement entered into by the parties is not a contract.  Therefore, the Board does not have jurisdiction over claims based on alleged failures to comply with the ordering agreement itself.  Ridge Runner Forestry v. Veneman, 287 F.3d 1058 (Fed. Cir. 2002); Julian Freeman, ASBCA No. 46675, 94-3 BCA ¶ 27,280.

            Appellant alleges, however, that Respondent breached its obligations under the orders that were placed under the ordering agreement.  Each of those orders, once accepted by Appellant, was a contract between the parties, e.g., Julian Freeman, ASBCA No. 46675, 94-3 BCA ¶ 27,280, and Appellant alleges that Respondent used an improper standard in evaluating the work he performed pursuant to the orders.

            Nevertheless, as argued by Respondent, it is well established that the Board does not have jurisdiction to consider a monetary claim that Appellant has not first submitted to the contracting officer, see 41 U.S.C. § 605(a); Paragon Energy Corp. v. United States, 645 F.2d 966, 971 (Ct. Cl. 1981); Debra Lea McSheffrey, PSBCA No. 4061, 98-2 BCA ¶ 29,826, recon. denied, 98-2 BCA ¶ 30,081, and there is no evidence that Appellant did so before including his demand in his Complaint.  Therefore, as Appellant has sought no other relief, the appeal is dismissed for lack of jurisdiction.[2]  Tab Distributors, Inc., PSBCA No. 4134, 99-1 BCA ¶ 30,110.

 

David I. Brochstein

Administrative Judge

Acting Chairman

 

 

I concur:

 

Norman D. Menegat

Administrative Judge

Board Member


[1]   Appellant’s letter indicated that it was a formal protest of the decision to deny him an ordering agreement for 2005.  Through correspondence with Respondent’s assigned counsel, Appellant clarified that he intended that his letter be considered an appeal to this Board.

[2]   As noted above, based on the limited record before us at this time, the only damages apparently sought by Appellant relate to his allegation that but for allegedly improper evaluations of his work, Respondent would have extended or renewed the ordering agreement.  However, whether Respondent’s evaluations were in accordance with the contract requirements or not, there was no assurance that Appellant’s ordering agreement would have been extended.  Further, even if the ordering agreement had been extended, Respondent would have been under no obligation to issue Appellant any additional orders to conduct investigations.  Under these circumstances, even assuming a breach by Respondent, the damages sought by Appellant may well be too remote and speculative to be recoverable in an action before this Board.  See, e.g., Olin Jones Sand Co., 225 Ct. Cl. 741, 742-743 (1980); Ramsey v. United States, 121 Ct. Cl. 426, 433, 101 F. Supp. 353, 357 (1951), cert. denied, 343 U.S. 977 (1952).