230 Ct. Cl. 745 | Ct. Cl. | 1982
The two cases before us are part of an extensive litigation brought in this court by Gregory Lumber Company (Gregory), stemming from contracts to purchase standing timber from the government. Although plaintiff presents separate and distinct claims in each of the two cases before us, the government has moved for summary judgment in both cases on the ground that plaintiff made a binding election by appealing the Contracting Officer’s adverse decision to the Department of Interior Board of Contract Appeals, which therefore precludes plaintiff from obtaining "direct access” review in this court of the Contracting Officer’s decision under the Contract Disputes Act of 1978, 41 U.S.C. §§601-613 (Supp. Ill 1979). Because the issue presented by the government’s dispositive motions in the two cases is identical, we have consolidated the two cases for the purpose of ruling upon both motions in a single order. Having reviewed the submissions of the parties, we conclude that plaintiff has not made a binding election before the Board of Contract Appeals under the Contract Disputes Act. We therefore remand the two cases to the Trial Division for further proceedings including, but not limited to, plaintiffs claims under the "direct access” provision of the Contract Disputes Act. Id. §609(a)(l).
In separate letters to the Contracting Officer dated February 5 and February 13, 1979,
In its motions for summary judgment, the government asserts that Gregory is barred from now bringing its "direct access” suits in this court on the ground that it made binding elections under the Act to submit these two claims to the Department of Interior Board of Contract Appeals.
We disagree with the government’s position. This court’s recent order in another of the Gregory cases, Gregory Lumber Co. v. United States, 229 Ct. Cl. 762 (1982), provides compelling support for the view that plaintiffs appeals to the Board, which were dismissed without prejudice pending resolution of an important jurisdictional question, do not constitute binding elections under the Contract Disputes Act. When plaintiff filed its appeals with the Board in October and December of 1979, it was attempting to protect its rights at a time when the coverage of the Contract Disputes Act was far from settled. As we noted in our January 8, 1982 order in Gregory, "Though plaintiff assumed and contended (in its appeal to that Board) that the Board of Contract Appeals had jurisdiction, the choice to appeal there was not a true election if one takes account of the real uncertainty prevailing during that period.” 229 Ct. Cl. at 765. In view of the uncertainty facing plaintiff, it would be unduly harsh to conclude that by filing its appeals with the Board plaintiff made an informed election which now precludes its present "direct access” claims.
Our decision in Tuttle/White, supra, was based upon facts easily distinguishable from those now before us. In Tuttle/White, plaintiff was fully aware of its right to proceed under the Contract Disputes Act, but instead chose to
In the cases at bar, plaintiff was aware of the Contract Disputes Act and fully intended to avail itself of its provisions, despite the failure of the Contracting Officer to inform plaintiff of its rights under the Act.
Accordingly, after consideration of the submissions of the parties, but without oral argument, defendant’s motions for summary judgment are denied. The cases are remanded to the Trial Division for further proceedings including but not limited to plaintiffs claims under the "direct access” provisions of the Contract Disputes Act.
In neither instance did Gregory certify its claim to the Contracting Officer as required by section 6(c)(1) of the Contract Disputes Act, 41 U.S.C. §605(c)(l), for claims in excess of $50,000. However, Gregory’s failure to certify is not grounds for dismissing the suit under controlling precedent established in Folk v. United States, 226 Ct. Cl. 602 (1981). In Folk, we held that "when a contracting officer renders a decision after the effective date of the Act on an uncertified claim submitted prior to that date, the contractor may proceed under the Act and appeal to this court.” In the cases at bar the claims directed to the Contracting Officer were dated February 5 and February 13, 1979, while the Contract Disputes Act did not take effect until March 1, 1979. Thus, Gregory’s failure to certify its claims is not dispositive because the claims were filed with the Contracting Officer prior to the effective date of the Act. See also Gregory Lumber Co. v. United States, Ct. Cl. No. 428-80C (order of March 27, 1981) (unreported).
Section 10(a)(1) of the Act, 41 U.S.C. §609(a)(l), provides in part, "[I]n lieu of appealing the decision of the contracting officer. . .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.”
The failure of the Contracting Officer to inform plaintiff of its rights under the new Act was a factor in our decision in National Electric Coil v. United States, 227 Ct. Cl. 595 (1981), in which we found no election under the Act despite the fact that plaintiff had filed a notice of appeal with the governing Board of Contract Appeals.
Our decision is also consistent with the view of election under the Contract Disputes Act articulated by Judge Kunzig in his concurrence in Tuttle/White, supra. In his concurrence, Judge Kunzig stated, "I would hold that by docketing an appeal with the ASBCA, plaintiff made a binding election of forums under the Contract Disputes Act and is now required to litigate in its chosen arena — the Board — prior to seeking judicial review in this court.” 228 Ct. Cl. at 362, 656 F.2d at 649. By dismissing Gregory’s suit without prejudice, the Board vitiated Gregory’s election of forums and left Gregory in the position it enjoyed prior to filing its appeal with the Board.