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The fact that we directed but one approach to all three claims (namely, the seeking of administrative relief) could no more serve to establish their merger than could the joining of these claims in one petition. Each, from the outset, was a separate claim arising out of a particular contract. And while they may have shared like factual considerations, neither that attribute nor our common treatment of them could in any way have produced a legal coalescence sufficient to insulate all claims jointly from whatever valid defenses the Government might offer against each individually. Whatever erroneous view plaintiff initially might have taken, surely the separate decisions he received from the contracting officer (each of which advised plaintiff of his right to appeal within 30 days) should have been sufficient to alert him to the fact that his claims were - from the Government's point of view separate and distinct. Legally, plaintiff's claims can be viewed in no other light.
The further argument is made that the Board should have given heed to plaintiff's adverse circumstances by allowing a tolling of the 30-day period following the contracting officer's decision. These adverse circumstances include the officer's decision. These adverse circumstances include the death of plaintiff's attorney in December 1963 and the death of plaintiff's wife in April 1964. These unfortunate incidents may possibly have contributed to plaintiff's failure to adequately pursue his claims, but we cannot hold that the Board abused its discretion in adhering in this instance to the 30-day requirement. The required notice of appeal was a simple document, and plaintiff showed by his response to the third decision of the contracting officer, on May 21, 1964, that he knew how to compose and file such a brief notice. It is noteworthy, too, that that notice of appeal, dated June 22, 1964, did not refer in any way to the two earlier decisions which had been received less than 3 weeks before the third decision. It was not until August 13, 1964, that plaintiff indicated any intention to appeal the two earlier rulings. In these circumstances the Board had leeway to find that the 30-day provision should not be considered tolled or waived.
Based upon the foregoing considerations, it must be concluded that the action taken by the Board was not erroneous. Plaintiff's failure to timely appeal the contracting officer's decisions made those decisions final and conclusive. Plaintiff is entitled to recover the sum of $921.40 under contract TAP-1933; the balance of his claim must be rejected.
We grant the Government's motion for summary judgment with respect to the claims arising under contracts QM 1761 and QM 13919; plaintiff's cross-motion for summary judgment on these claims is denied, and that part of the petition is dismissed. As to the claim under contract TAP-1933, the Government's motion for summary judgment is denied; plaintiff's crossmotion for summary judgment is granted; and judgment is entered for plaintiff in the sum of nine hundred twenty-one dollars and forty cents ($921.40).
This appeal is before the Board for the third time. By decision rendered on 14 January 1970 (70-1 BCA par. 8076) this Board dismissed the above-styled appeal as untimely because of failure of the contractor to appeal until 31 days after receipt of the contracting officer's decision. In the Wunderlich Act suit, Maney Aircraft Parts, Inc. v. The United States, Ct. ci. No. 191-70, the Court of Claims rendered a decision on 21 January 1972 holding that there was no error of law or fact in the Board's holding that the appeal was untimely, but, nevertheless, suggested that the Board might in its discretion waive the 30day appeal period and take jurisdiction over the appeal to decide it on its me rits. Pursuant to the Court's decision, the plaintiff-appellant then filed a petition with this Board asking for "a discretionary waiver of the contractual time-limit of 30 days and for the right to proceed to try its appeal on the merits." The reupon on 28 April 1972 the Board rendered a decision denying appellant's petition for discretionary waiver of the 30-day time limit on the ground that its Charter from the Departmental Secretaries did not give it such authority (72-1 BCA par. 9449).
On 20 June 1973 the Court of Claims rendered another decision in Ct. C1. No. 191-70 in which it invoked the remand authority granted to it by Public Law 92-415, approved 29 August 1972, 86 Stat. 652 (amending 28 U.S.C. Sec. 1491), and remanded the case to this Board with direction to it "to exercise its discretion as to whether or not the plaintiff has shown good cause or a justifiable excuse, under all the facts and circumstances of the case, for failing to file its appeal within the 30-day time limit, and by virtue thereof the 30-day time limit requirement should be waived."
Without regard to whether the Board has authority under its Charter in its discretion to waive the 30-day time limit in the Disputes clause and consider and decide an untimely appeal on its merits, the Board has proceeded diligently to carry out the Court's remand order issued pursuant to statutory authority. Promptly after receipt of the Court's decision, the Board issued a letter Notice of Hearing dated 26 June 1973 to the attorney of record for each party, setting a hearing for 19 July 1973, " for the taking of evidence and the hearing of oral argument that has a bearing on whether the facts and circumstances justify a waiver of the 30 day time limit," Both parties elected not to file briefs following the 19 July hearing.
At the outset, we reiterate that we are considering this case again in its present posture solely because of the Court's remand order and pursuant to its instructions. As such, we do not regard ourselves as acting under our Charter or the language of the contract's disputes cìause as written or properly interpreted. Our actions here in these circumstances should not be interpreted as any modification of the views we expressed the last time this case was before us. Maney Aircraft Parts, Inc., 72-1 BCA par. 9449.
Respect for the Court's instructions and consideration of the appellant's rights as the Court views them mandate a careful consideration of the former and scrupulous application of the latter to the facts of record. We take as controlling the guidelines set out in the Court's decision, which is the "law of the case."
The Court has indicated that the 30-day time limit of the Disputes clause should not be treated lightly, or given little or no effect, or routinely waived in the way that is customary in waiving the time limit's specified by the Board's rules for the filing of complaints, answers and briefs. The Court states that "prejudice to the Government is a factor to be considered, but the lack of such prejudice does not automatically entitle the plaintiff to a waiver.' We interpret this to mean that lack of prejudice, standing alone, does not justify waiver of the time limit.
The Court's decision makes it clear that the time limit is to be waived only for "good cause or a justifiable excuse shown by the contractor" for "failing to file his appeal within such time period" and that "the burden is on the contractor" to show that "under the circumstances of his case a waiver of time limit should be granted." As a condition precedent to a waiver of the time limit, the contractor has the burden of showing facts and circumstances relating to the late filing of the appeal explaining and justifying the failure to appeal within the time limit so as to make it fair, just and equitable that the time limit be waived.
The Court states that the Board should exercise its discretion in waiving the time limit "with an objective to do justice under the circumstances. We do not understand this to me an that the Board is to waive the failure to appeal within 30 days if it finds that the contractor has a meritorious claim. To apply such a test would require a trial of the case on its merits to the extent necessary to determine whether the contractor has a meritorious claim, or at least the probability that the claim is meritorious, be foré exercising discretion to waive the time limit. It would logically further require a waiver of the time limit whenever the hearing on the merits showed that the contractor has a meritorious
claim, or the probability of such a claim. Such an interpretation would'effectively nullify the 30-day time limit in the Disputes clause because to decide whether the untimely appeal involves a meritorious claim before deciding whether to waive the untimeliness would itself be in practical effect a waiver of the time limit.
The following decisions by other boards of contract appeals involve the issue of discretionary waiver of a contractor's failure to appeal within the 30-day time limit: West Coast Dredging, Inc., ENG. BCA 3254, 72-1 BCA par. 9461; SWH Company, Dot CAB 72-29, 72-2 BCA par. 9570; Monroe M. Tapper and Associates, PSBCA 349. 72-2 BCA par. 9628. In all of these cases the appeal board found the circumstances to be insufficient to justify or excuse the contractor's failure to appeal within the time limit and refused to grant a waiver. We are not aware of any case where an appeal board has granted discretionary waiver of the untimeliness of an appeal.
In West Coast Dredging, Inc., where the contractor did not file his appeal until 45 days after receipt of the contracting officer's decision, the only reason advanced for waiver of the time limit was a statement by the appellant's attorney that the failure of appellant's president to appeal within the time limit was through "inadvertence, error and mistake," without any elaboration.
In swd Company there was no appeal until 18 months after
SWH receipt of the contracting officer's decision. The Board's decision in that case contains a lengthy discussion on discretionary waiver of failure to appeal within the time limit. The Board expressed the following views : There is a well-established Government policy in favor of early and diligent administrative resolution of contract disputes. Experience has shown that the 30-day appeal period provides the contractor with ample time for the simple act of filing a notice or appeal, and experience discloses that less than one appeal out of 500 is untimely. Adherence to the 30-day time limit serves to expedite administrative relief, which is advantageous to contractors. The "waiver doctrine" enunciated by the Court of Claims is not a signal to abandon the appeal time limit, and there still remains the necessity for strict enforcement of the Disputes clause's time requirements. Accordingly, the time limit should be waived only for "good cause" shown, and a contractor seeking waiver has the burden of proving good cause, not be a me re preponderance of the evidence, but by clear, unequivocal and convincing proof.
The above-cited appeal board decision in Monroe M. Tapper and Associates was rendered pursuant to the decision of the Court of Claims in Monroe M. Tapper and Associates v. The United States, 198 Ct. ci. 72 (1972). In that case the contracting officer's decision was received by the contractor on 16 January, but the appeal was not filed until 25 February, which was ten days after
the expiration of the time to appeal. The following circumstances found by the Court caused it to suspend its proceedings to permit the departmental appeal board to exercise discretion as to whether the time limit should be waived: The case involved a claim on work performance by a subcontractor where the subcontractor was the real party in interest. The prime contractor, Tapper, left the subcontract to deal directly with the Government on matters affecting the subcontractor. The decision on the subcontractor's claim was rendered at the request of the subcontractor, who asked that he be advised of the final decision on his claim. The contracting officer's decision was received by the prime contractor when Mr. Tapper was away from his office on a vacation, it was mis filed by his secretary, and the subcontractor was led to believe that the decision had not yet been issued. The subcontractor finally learned of the decision on 3 February.
In acting pursuant to the Court's order, the Postal Service Board of Contract Appeals set the matter for hearing on the agreed issue to whether there were any circumstances, including the matter of whether the subcontractor was lulled into inaction by the Government's failure to send him a copy of the final decision, which would warrant the waiver of the appeal time limit. The Board found, on the basis of the evidence received at the hearing, that there was no course of conduct of direct dealing between the subcontractor and the Government, that repeatedly the Government had informed the subcontractor that his claim would have to be processed through the prime contractor, that the failure to send a copy of the decision to the subcontractor was to impress upon him the importance of following the regular procedure of dealing with the Government through the prime contractor, that the sub contractor's representative was told on 9 January that the decision has been mailed and was a denial of the claim, and that there was no valid ground for the subcontractor's believing that the 30-day appeal time did not start running until he received a copy of the decision, if he did so believe. The Board found that no facts or circumstances had been presented which would warrant discretionary waiver of the appeal time limit.
In each of the cited appeal board decisions the approach of the Board in deciding whether to waive the appeal time limit was to decide whether the contractor had shown good cause by presenting facts and circumstances relating to its failure to appeal within the time limit that tended to justify or excuse such failure.
The present posture of the case is that, after having given appellant a full opportunity to present facts and circumstances showing good cause or a stifiable excuse for failing to file its appeal within the time limit, the appellant has not shown, or attempted to show, any facts and circumstances whatsoever explaining why it did not file its appeal until one day after the