458 F.2d 66 | Ct. Cl. | 1972
Lead Opinion
delivered the opinion of the court:
This is another controversy in which a Board of Contract Appeals has dismissed as untimely an appeal from a contracting officer’s decision, and relief is sought from this court. In 1968 plaintiff Monroe M. Tapper and Associates agreed with the then Post Office Department to construct and lease to the Department a Post Office and Vehicle Maintenance Facility in Worcester, Massachusetts. The Tapper group, which constituted the prime contractor but appeared to have
In the course of performance, Granger disagreed with C. W. Buckley, Inc., the defendant’s architect-engineer, over whether gravel should be used for certain backfill. The position of the architect-engineer was that gravel was demanded by the contract; Granger considered the item an extra for which it should be reimbursed under the Changes clause. When the controversy could not be resolved, Granger asked the contracting officer for a formal “final decision”. This was forthcoming on December S3, 1968, and was sent to Mr. Tapper’s office in Minneapolis, Minnesota, without any copy being furnished to Granger in Worcester. Appeal was not taken by Tapper until February 25, 1969. The Government moved before the Post Office Department Board of Contract Appeals to 'dismiss the appeal as too late.
The Board found — and this finding, which is based on ample evidence, is unchallenged in this court — that the contracting officer’s decision was actually received by Tapper’s office on or before January 16, 1969. Mr. Tapper testified that he went to Arizona for a vacation at Christmas-time 1968 and returned to Minneapolis in the second or third week of January 1969; the contracting officer’s final decision was delivered to his office during his absence; it was apparently misfiled by his secretary and he did not see or know about its arrival until June 1969 after he had made a diligent search in connection with the motion to dismiss the appeal; and he sent his appeal notice of February 25, 1969 after Granger inf ormed him on February 20th that a final decision had been rendered and prompted him to appeal. On this and other evidence, the Board found that the notice of appeal was untimely and dismissed the appeal on that ground.
Before us, plaintiff barely challenges the holding that the appeal was technically late — as it was. The Tapper group,
The major theme of the petition and of plaintiff’s argument is, first, that the Board had power to enlarge the 'appeal-period and waive the lateness of the filing, and, second, that that is what should have 'been done in this instance. We need not linger over the first point. The court has recently reaffirmed the rule that Boards of Contract Appeals have power, in proper circumstances, to waive or extend the appeal period specified in the usual disputes clauses. Maney Aircraft Parts, Inc. v. United States, 197 Ct. Cl. 159, 453 F. 2d 1260 (1972).
Plaintiff’s position is that a waiver must be accorded, and the appeal period enlarged, unless the Government can show prejudice from such enlargement. We cannot accept that as the sole and exclusive criterion. First of all, the burden should not be on the defendant; the contractor, which failed to comply with the requirement that an appeal be filed within the specified period, must persuade the tribunal that in the particular circumstances a waiver would be warranted. It is normal to ask that some good cause be shown by an applicant seeking extension of a waivable time-limit for appeal. See, e.g., Schacht v. United States, supra, at 64, 67. Secondly, prejudice to the Government is of course an important factor but the contractor’s own responsibility should not be disregarded. As in most instances where a discretionary waiver of a specific time-limit is involved, carelessness or neglect on the part of the applicant is relevant, though it may not be conclusive. Plaintiff’s contrary rule would undermine the integrity of the appeal period and remove an essential goad to the filing of timely appeal notices. Laxity on the part of contractors would be greatly encouraged. In exercising its discretion whether or not to waive a contract time-limit, a contract appeals board (or similar tribunal) must be able to weigh all elements, including the conduct of both the Government and the contractor.
Although we disagree with the narrow standard plaintiff proposes, we feel, as in Ma/ney Aircraft, supra, that this contractor should be permitted to apply to the Board for consideration, or further consideration, of a discretionary waiver because the course of the defendant’s dealings with Granger may have induced Granger (and Tapper) reasonably to believe that Granger would promptly receive a copy of the contracting officer’s final decision — and thus enable Granger to set in motion a timely appeal by the prime. Without attempting to summarize or weigh all the pertinent evi
Nevertheless, no copy of that decision was ever sent to Granger, and when Granger seasonably asked Tapper (on February 8,1969) if he had received the decision the answer was in the negative (because Tapper was then unaware that his secretary had received and misfiled the document). Likewise, Buckley, the architect-engineer, received no copy of the final decision until February 3, 1969, and therefore told Granger, on inquiry before that time, that he had not received the ruling. The fact that a decision had actually been made first came to the attention of Buckley and Granger on February 3rd.
Granger explains the delay in filing an appeal (it did not ask Tapper to appeal until February 20th) on two grounds. One was Granger’s confusion resulting from the nature of
We believe that there is enough in these circumstances to call for an assessment by the Board of whether it should waive the 30-day time-limit. Plaintiff urges that (i) we ourselves find that the defendant led Granger reasonably to believe it would receive a copy of the final decision and then failed to follow through, and (ii) we hold that the defendant was entirely or mainly responsible for the untimeliness of the appeal. We decline to make that finding or ruling. The existing record is not so clear that the Board could reach only a result favorable to plaintiff. Moreover, the plaintiff stresses in its briefs that there was no adequate hearing before the Board on the various equities of the situation; it is appropriate, therefore, to remit the entire problem to the Board so that it can decide whether to exercise its discretion to the contractor’s advantage.
The Government, on the other hand, urges that the Board has already considered whether to extend the appeal time-period and has chosen to exercise its discretion against plaintiff. There is no suggestion of such discretionary consideration in the Board’s original opinion; on the contrary, the Board said there that it “closely adheres” to the “well-settled rule * * * that a delay of more than 30 days after receipt of the Contracting Officer’s final decision in filing a notice of appeal requires that the attempted appeal be dismissed”, and later the opinion specifically rejected, among other points, the argument that the Board has the discretionary power to waive the 30-day requirement.
In its opinion on reconsideration, the Board did say: “This Board is well aware that factual circumstances sometimes exist that affect the relationship between the parties in such a manner that rigid and indiscriminate adherence to the 30-
The 'defendant argues that the Board must have considered Granger’s role and position when it said (on reconsideration) that Tapper “was not, directly or indirectly, lulled by any conduct of the Government into the failure to timely file an appeal” (emphasis added), but this slight reference to an “indirect” effect on Tapper is too obscure to suggest that the Board was holding that Granger was not itself lulled into inaction by the Government’s failure to send it a copy of the final decision. In any event, as already indicated, plaintiff
For these reasons, as in Maney Aircraft Parts, Inc. v. United States, supra, we order that the proceedings herein, including action with respect to the parties’ motions for summary judgment, be suspended for a period of ninety (90) days pending plaintiff’s further pursuit of its administrative remedy through a possible discretionary waiver, by the appropriate board, of the contractual time-limit.
The Board found :
“The facts found herein make it clear that Appellant, in the person of Mr. Tapper, adopted the view that after he was awarded the contract by the Post Office Department (Respondent) and after he entered into the subcontract with Granger, Appellant’s role, at least on construction matters, was almost that of a bystander. Whatever construction problems arose were, according to Appellant’s Tapper, to be handled by Granger whose construction work was generally authorized or approved by Appellant. Appellant’s only function, in the eyes of Mr. Tapper, was to pay bills and make occasional calls to Respondent’s Mr. Trich.”
In addition to Maney Aircraft and this court’s decisions cited in that opinion, see Burnett Constr. Co. v. United States, 186 Ct. Cl. 953, 954 (1908), and Arthur Venneri Co. v. United States, 180 Ct. Cl. 920, 925 n. 3, 381 F. 2d 748, 751 n. 3 (1967).
The opinion or reconsideration also “affirms In all respects [the Board’s Initial] Opinion and Order dismissing with prejudice this appeal as untimely” — and, as already noted, that first opinion went squarely on. the ground that the time-limit could not be waived.
The Board characterizes Tapper’s actions with respect to receipt of the final decision and the failure to take a timely appeal as resulting from “gross carelessness” and “sheer carelessness”. Neither of the Board's opinions casts any reflections on Granger, and neither considers the equities with respect to Granger.
The Board’s hearing was expressly restricted, by a pre-hearing order, to “testimony and any significant exhibits relevant to the question of whether by reason of the relationship existing among the parties as implemented by any conduct and understanding of the Post Office Department with Tapper, Buckley and Granger, subcontractor Granger had 30 days after Granger received the final Post Office Department decision to take the appeal in the name of the prime (Tapper) or otherwise.” This order also referred to the possible applicability of Portland Machine Tool Works, Inc., ASBCA, No. 4143, 58-1 BCA ¶ 1604 (1958).
Concurrence Opinion
concurring:
I join in the foregoing opinion of the court and add the following: This is our third Wunderlich Act 30-day filing case for 1972, the others being Maney Aircraft Parts, Inc. v. United States, 197 Ct. Cl. 159, 453 F. 2d 1260 (1972); and Roscoe-Ajax Constr. Co., Inc. v. United States, post, at 133, 458 F. 2d 55; and two more 1972 Wunderlich cases involving different notice requirements may be added: Hoel-Steffen Oonstr. Go. v. United States, 197 Ct. Cl. 561, 456 F. 2d (1972); International Tel. & Tel. Co. v. United States, 197 Ct. Cl. 11, 453 F. 2d 1283 (1972). For prior decisions, see cases cited in Judge Davis’s fn. 2 and cases cited in those cases. Thirty day filing requirements could easily be the commonest kind of Wunderlich Act dispute. It appears to me that the repeated necessity of adjudicating such sterile controversies calls into play the Chief Justice’s admonitions for lawyers and judges to co-operate in eliminating wasteful use of lawyer power and judge power. Here, we have no great reason to believe Judge Davis’s careful analysis will contribute anything to the ultimate disposition of the case. We seem to have got into this latest round via our holding that failure to file an appeal on time could be waived if the Board considered the appeal
The Shaoht case, cited by Judge Davis, stimulates reflection. The Justices decided, over three dissents, in a deserving case, to waive the 30-day requirement of their own rule as to certiorari petitions. Certiorari petitions are often used by unsuccessful litigants for delay. Such petitions seek review that must be denied to most petitioners, and thus it is reasonable to demand that the successful ones turn square corners. I ask whether the Disputes Clause 30-day provision has equally strong reasons looking toward its undeviating maintenance. What evil is averted if an appeal filed in 31 days is not heard on the merits ? I think any rule of law, any regulation, is better interpreted and applied if this sort of question is asked and answered. I am not in a position to answer it and do not do so here.
This is the sort of pettifogging controversy that causes intelligent people to prefer other careers over service on the bench. If the Boards cannot find a rational and workable line under the existing clause, it is to be hoped the mysterious processes that generate standard Government contract clauses may be set to work to géstate a substitute or amendment.