Kasler/Continental Heller/Fruin Colnon v. United States

33 Cont. Cas. Fed. 74,096, 9 Cl. Ct. 187, 1985 U.S. Claims LEXIS 880
CourtUnited States Court of Claims
DecidedNovember 26, 1985
DocketNo. 93-85C
StatusPublished
Cited by11 cases

This text of 33 Cont. Cas. Fed. 74,096 (Kasler/Continental Heller/Fruin Colnon v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kasler/Continental Heller/Fruin Colnon v. United States, 33 Cont. Cas. Fed. 74,096, 9 Cl. Ct. 187, 1985 U.S. Claims LEXIS 880 (cc 1985).

Opinion

OPINION

NETTESHEIM, Judge.

Defendant has moved, over plaintiff’s opposition, for partial summary judgment dismissing Count I of plaintiff’s complaint.

FACTS

The following facts are not disputed. This case concerns a contract between Kasler/Continental Heller/Fruin Colnon (“plaintiff”) and the Army Corps of Engineers (the “Corps”) for the construction of the Space Transportation System-Package II at Launch Complex Six, Vandenberg Air Force Base, California. On February 15, 1983, plaintiff, pursuant to the Contract Disputes Act, 41 U.S.C. §§ 601-613 (1982) (the “CDA”), submitted to contracting officer Col. Paul W. Taylor Claim No. 9 concerning “spot welds,” which sought costs allegedly incurred in performing additional work under the contract. On February 10, 1984, Col. Taylor issued a final decision denying plaintiff’s claim.

The letter containing the final decision was sent by certified mail, “Return Receipt Requested,” to plaintiff’s post office box at the main branch of the United States Post Office in Lompac, California. A secretary, employed by plaintiff declares that during February 1984 she was responsible for signing for and collecting plaintiff’s certified mail delivered to the Lompac Post Office at the close of plaintiff’s business day. On the following day, she would deliver the mail to plaintiff’s office and stamp it “received”. Declaration of Elizabeth McAllister, Nov. 12, 1985, 11112-3. Plaintiff concedes that Mrs. McAllister collected the letter memorializing Col. Taylor’s final decision on February 13, 1984.

The declarations of two United States Postal Service employees, Randy Myers and David Christensen, state that Mr. Myers completed and filed PS Form 3849-A after delivering the certified letter at issue to Mrs. McAllister. Declarations of Randy Myers and David Christensen, Oct. 3, 1985. “The date of the day of delivery of the ... [certified letter] is ... recorded and initialled on the form 3849 by the postal clerk who delivers or gives the article of mail to the addressee____” Christensen Deck 113. Mr. Christensen also submitted a copy of the subject PS Form 3849-A.

On February 14, 1985, plaintiff filed its complaint in this court under 41 U.S.C. § 609(a)(1). Defendant contends that Count I is barred by the CDA’s statute of limitations, 41 U.S.C. § 609(a)(3), because the action was commenced over 12 months from the date on which plaintiff received the contracting officer’s final decision denying Claim No. 9.

[189]*189DISCUSSION

Section 609(a)(3) of the CDA provides that any action in this court “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.” If a suit is not timely filed, the contracting officer’s decision is “final and conclusive and not subject to review by any forum.” 41 U.S.C. § 605(b); Gregory Lumber Co. v. United States, 229 Ct.Cl. 762 (1982).

Although it is undisputed that Mrs. McAllister signed for Col. Taylor’s final decision on February 13,1984, plaintiff contends that because she collected the letter subsequent to the close of business on February 13, the letter could not be deemed received on that date for purposes of section 609(a)(3). According to plaintiff, the 12-month limitations period began to run on February 14, 1984, the date on which Mrs. McAllister brought the letter to plaintiff’s office and stamped it “received”. Thus, plaintiff submits that its claim filed on February 14, 1985, is timely.

In United Construction Co. v. United States, 7 Cl.Ct. 47 (1984) (order denying motion for summary judgment), this court stated that it “is guided by the principle that the scope of the sovereign’s waiver of sovereign immunity under the CDA must be strictly construed.” Id. at 50 (citing cases). This principle would be defeated if the court acceded to plaintiff’s position that for purposes of section 609(a)(3) a contracting officer’s final decision is deemed received when the letter in which it is contained is opened and stamped “received”. In effect, plaintiff requests that an exception be engrafted on the CDA to recognize its policy of collecting mail after the close of daily business. Were plaintiff’s argument accepted, no objective method would exist for determining the date on which a contracting officer’s final decision is received. For example, another contractor might argue that although a letter was signed for on the premises after business hours on a Friday, it was received when stamped “received” on the following Monday. The date delimiting the sovereign’s waiver of immunity would fluctuate with the vagaries of individual business practices. A contractor cannot be permitted to delay filing its claim until the expiration of the 12-month period and then argue for adoption of an overly broad statutory construction to validate its choice of a filing date.

In Hawkins v. United States, 1 Cl.Ct. 221, 223 (1983), the court held that, in addition to other evidence, the delivery date on PS Form 3849-A established the latest date for purposes of section 609(a)(3) on which plaintiff subcontractor would be deemed to have received the contracting officer’s final decision. Plaintiff here does not cite any cases to support its argument, and Hawkins under the circumstances stands unrefuted as persuasive and good law.

Alternatively, plaintiff contends that consideration of its claim is not foreclosed because this court’s six-year statute of limitations, 28 U.S.C. § 2501,1 rather than the CDA’s 12-month statute governs.

41 U.S.C. §§ 605(c)(1), (2) provides in pertinent part:

(1) A contracting officer shall issue a decision on any submitted claim of $50,-000 or less within sixty days from his receipt of a written request from the contractor that a decision be rendered within that period____
(2) A contracting officer shall, within sixty days of receipt of a submitted certified claim over $50,000—
(A) issue a decision; or
(B) notify the contractor of the time within which a decision will be issued.

Subsection (c)(5) further states:

Any failure by the contracting officer to issue a decision on a contract claim within the period required will be deemed to be a decision by the contracting officer [190]*190denying the claim and will authorize the commencement of the appeal or suit on the claim as otherwise provided in this chapter____

Plaintiff argues that, notwithstanding the February 10, 1984 issuance of a final decision, its certified claim was deemed denied as a matter of law on or about April 18, 1983, because Col. Taylor failed to issue a final decision or notice of forthcoming decision on day 60 following plaintiffs submission on February 15, 1983, of its certified claim.

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Bluebook (online)
33 Cont. Cas. Fed. 74,096, 9 Cl. Ct. 187, 1985 U.S. Claims LEXIS 880, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kaslercontinental-hellerfruin-colnon-v-united-states-cc-1985.