ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This case presents an interesting facet in a developing long line of cases involving the transition phase of the Contract Disputes Act of 1978 (act)
The facts of plaintiff's substantive claims have no bearing on our disposition of this case and, therefore, we only state that plaintiff had a contract, entered into prior to March 1, 1979, the effective date of the act, with the United States Postal Service (Service) and certain claims arose out of the performance of that contract. Plaintiff filed its claims with a Service contracting officer. The contracting officer denied in turn each of the claims. Each of the contracting officer's final decision letters, all issued after March 1, 1979, stated plaintiff's appeal rights, as they related to the act, as follows:
An officer of plaintiff, Mrs. Irma Story, responded to each of the final decision letters within the 90-day period for filing with the board and stated that plaintiff appealed the decisions and requested that "all applicable documents be sent to the Board of Contract Appeals." None of plaintiff's responses made any reference to an appeal to this court. All of the appeals were subsequently docketed by the board.
In its motions for continuance with the board, plaintiff stated it was attempting to settle the claims directly with the Service and, absent settlement, it intended to file suit in this court. Subsequently, the board,
The arguments of the parties can be briefly stated. Plaintiff claims that it had not been given adequate notice of its avenues of appeal and therefore National Electric Coil v. United States
The distinguishing factor which separates the results in Tuttle/White Constructors, Inc. and National Electric Coil is the notification given to the contractor concerning its rights under the then new Contract Disputes Act of 1978. In Tuttle/White, we found that the notice received by the contractor was sufficient to allow it to make a knowing election in which forum, the board or the court, it wanted to bring its action. However, in National Electric Coil, we held that the contractor did not make a knowing election since it was not given any indication that the act applied to its claim or that it had a choice of which forum to bring its action. We hold that plaintiff here was given adequate notice of its appeal rights and, by electing to appeal to the board, plaintiff has foreclosed direct access to this court.
We find that the contracting officer's letters clearly informed the contractor of its rights of appeal, as required by section 605(a)
Section 609(a), which grants the alternative forums, refers to the appeal, to a board, of the decision of the contracting officer under section 605. Section 605 uses clear language in two places in subsection (c)(5) to indicate that the contractor has an "either-or" alternative, and not dual avenues of appeal, by authorizing "the commencement of the appeal or suit on the claim as otherwise provided in this chapter." (Emphasis supplied.) The alternative avenues are set forth in sections 606
Furthermore, we find that even though the final decision letters refer to the act as "the Contracts and Disputes Act" instead of the correct title, "Contract Disputes Act," the letters would put a reasonable person on notice to investigate whether the act was applicable to him and what would be the proper procedures to follow in order to come under the desired provisions of the act. Also, while we neither find nor imply that plaintiff was attempting to subvert the act's requirements, we find that to allow a contractor to file suit with the board within the 90 days mandated by 41 U.S.C. § 606 and then, within the 12-month period mandated by 41 U.S.C. § 609,
Finally, we reject plaintiff's contention that since the suggested real party in interest, a subcontractor of plaintiff, Mesa Constructors, did not elect a forum, the plaintiff's election is not binding.
The court concludes, without hearing oral argument, that plaintiff was given adequate notice of its rights of appeal under the act and, by electing to appeal to the board, has foreclosed direct access to this court. Defendant's motion for summary judgment is granted, and the petition is dismissed.
"(1) Except as provided in paragraph (2), and in lieu of appealing the decision of the contracting officer under section 605 of this title to an agency board, a contractor may bring an action directly on the claim in the United States Court of Claims, notwithstanding any contract provision, regulation, or rule of law to the contrary."
"Within ninety days from the date of receipt of a contracting officer's decision under section 605 of this title, the contractor may appeal such decision to an agency board of contract appeals, as provided in section 607 of this title."
"Each agency board shall have jurisdiction to decide any appeal from a decision of a contracting officer (1) relative to a contract made by its agency, and (2) relative to a contract made by any other agency when such agency or the Administrator has designated the agency board to decide the appeal. In exercising this jurisdiction, the agency board is authorized to grant any relief that would be available to a litigant asserting a contract claim in the Court of Claims."
"(3) Any action under paragraph (1) or (2) shall be filed within twelve months from the date of the receipt by the contractor of the decision of the contracting officer concerning the claim, and shall proceed de novo in accordance with the rules of the appropriate court."