________________________________________________ DISMISSED FOR LACK OF JURISDICTION: May 18, 1995 ________________________________________________ GSBCA 12451 ZINGER CONSTRUCTION CO., INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Irving Zinger, President of Zinger Construction Co., Inc., Los Angeles, CA, appearing for Appellant. Sharon A. Roach, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges PARKER, VERGILIO, and GOODMAN. VERGILIO, Board Judge. On June 2, 1993, the Board received this appeal from Zinger Construction Co., Inc. The respondent, the General Services Administration, has moved to dismiss the appeal and impose sanctions upon the contractor. Zinger seeks to litigate a matter which already has been resolved by the Board, and which has become final. Because no matter is properly before the Board, the Board dismisses the appeal for lack of jurisdiction. Findings of Fact 1. In an earlier appeal to this Board involving the same contract, GS-03B-78445, the Board made the following finding: On July 16, 1980, appellant sent a $22,163 delay claim to the contracting officer. Appellant asserted that it had been delayed from October 6, 1978, the contract completion date depicted in appellant's approved construction progress chart, finding 5, through the date of substantial completion, December 4, 1978, [f]or a total of fifty-nine calendar days. Appellant calculated the quantum of its claim as follows: Unabsorbed [extended] overhead $249.80/day x 59 days = $14,738 Loss of efficiency 35% x $16,500 Labor = 5,775 Standby 10% x $16,500 Labor = 1,650 $22,163 Zinger Construction Co., GSBCA 6568, 84-3 BCA 17,537, at 87,346 (Finding 20). The contracting officer did not issue a decision on the claim of July 16. The contractor filed that appeal (GSBCA 6568), based upon a deemed denial of its claim, although it recalculated the amount it sought to recover. Id. (Findings 22, 23). 2. By decision dated July 18, 1984, this Board denied the claim of the contractor. The contractor demonstrated that the Government had delayed the contractor's performance, but failed to prove any monetary impact it had experienced because of the delay. Zinger, 84-3 BCA at 87,349-50 ("[W]e have no credible evidence that would permit a determination of the adjustment due appellant as a result of that delay. It was appellant's burden to provide us such evidence, and since it has not, this appeal is denied."). The contractor appealed the decision to the United States Court of Appeals for the Federal Circuit. The Court dismissed the appeal for failure to prosecute. Zinger Construction Co. v. United States, No. 85-1517 (Fed. Cir. June 4, 1985) (mandate issued); Zinger, GSBCA 6568-R, 87-1 BCA 19,444. 3. By notice of appeal to the Board, dated June 24, 1985, the contractor sought payment of unabsorbed and extended overhead for fifty-nine days of Government-caused delay under the same contract. The Board determined that the issue had been litigated and resolved in the earlier appeal of Zinger, GSBCA 6568, and concluded that the appeal was barred by the doctrine of res judicata. The Board dismissed with prejudice the appeal. Zinger Construction Co., GSBCA 7973, 89-1 BCA 21,529, motions for reconsideration denied, 89-2 BCA 21,887; 90-2 BCA 22,882. The contractor did not appeal the decision. 4. By notice of appeal to the Board, received on January 2, 1991, the contractor sought to recover $14,738 under the same contract. The Board determined that the contractor was seeking to relitigate the same quantum claim that had been before the Board previously. The Board dismissed with prejudice the appeal, concluding that the doctrine of res judicata precluded not only the litigation of issues that were actually decided but also issues which could have been presented for determination. Zinger, GSBCA 11039, 91-3 BCA 24,066, motions for reconsideration denied, 92-3 BCA 25,039; 93-1 BCA 25,426. In resolving the final motion for reconsideration, the Board stated: "Appellant has come to the end of the road with this matter. This Board will waste no additional resources on consideration of this claim. Accordingly, no further filings by appellant with respect to this claim will be accepted." 93-1 BCA 25,426, at 126,642. The contractor did not appeal the decision. 5. By notice of appeal to the Board, received on June 2, 1993, the contractor submitted the appeal in the present case. The contractor specifies in its submission that, given that the contracting officer has failed to issue a decision on its claim, it is appealing from the deemed denial. The contractor asserts: This issue has not been addressed in any prior appeals and therefore not precluded under any doctrines such as the Doctrine of Resjudicata. The issue before the Board is whether the contracting officer performed the contract in STRICT ACCORDANCE with the referenced laws and clauses depicted in the contract. Letter of Appeal (June 2, 1993) at 1. 6. Attached to the notice of appeal are letters from the contractor to the agency and contracting officer dating back to August 2, 1991. In these letters, the contractor demands a "COFD"--contracting officer final decision. For example, in the letter of August 2, 1991, the contractor states: I request a Contracting Officer's written decision on the issue of "GOVERNMENT BREACH OF CONTRACT" in the performance of the contract. The provisions of the contract are stated below for your interpretation as to how they were breached. Letter of August 2, 1991, at 1. The contractor proceeds to recognize that, in GSBCA 6568, it had received a time extension for contract performance, then states: "An Equitable adjustment in time and price was not made by the Contracting Officer for the DAMAGES sustained due to the Government caused delays. The clauses in [the contract] provide for price adjustments which were not made by the Contracting Officer." Id. at 5-6. The claimed damages are for the alleged bad faith and breach of contract by the contracting officer in not providing the requested equitable adjustment: "The claim is filed in the amount of $47,788 for the additional costs sustained by the contractor is seeking justice for an equitable adjustment that the contract provisions provided." Id. at 6. The other letters repeat or embellish this basic theme. 7. In response to an agency motion to dismiss with prejudice and to impose monetary sanctions, the contractor contends that the issue previously before the Board (in GSBCA 6568) "related to the loss of efficiency impact costs, which were mainly made up of direct costs and not indirect costs of the original appeal & replaced with a new complaint that was amended and then the original complaint became a moot issue." Contractor Submission (July 16, 1993) at 4. Further, A written COFD had not been furnished in either the prior appeal or in this appeal. In each instance the appeal is being taken from an UNWRITTEN decision after the expiration of time to answer by the contracting officer. Under the Board's rules an appeal can be taken from an UNWRITTEN decision in which the Board accepts the unwritten decision as a DENIAL to the claim/claims. This is an abusive act of the contracting officer's duties and relates to the one of the main issues in this appeal, and will be presented hereinafter. Id. at 4-5. 8. Zinger seeks to recover $49,800, which it calculates as follows: $14,738 original extended overhead amount 33,062 interest from date of original claim 1,200 discovery costs 800 postage, printing, and telephone expenses Contractor Submission (July 16, 1993) at 39 (Attachment 1). Discussion The claim in this appeal is grounded in the contractor's assertion that it is entitled to $14,738 in "original extended overhead." Finding 8. The other amounts reflect alleged "costs" incurred because the contracting officer has failed to provide a written decision in response to subsequent requests by the contractor for reimbursement. The underlying claim for overhead (of $14,738) was the subject of the claim underlying the appeal in GSBCA 6568. Findings 1, 2. The same claim was presented in two subsequent appeals to the Board, GSBCA 7973 and 11039. Findings 3, 4. By virtue of its claim at issue in GSBCA 6568, the contractor contested the denial (albeit deemed) by the contracting officer of the claim for unabsorbed or extended overhead of $14,738. Given the dismissal of the appeal at the Federal Circuit, the decision of the Board became final. 41 U.S.C. 607(g)(1) (1988). Under the same statutory provision, the decisions of the Board in the two subsequent appeals, GSBCA 7973 and 11039, are final. The underlying claim has already been resolved and is final. The contractor has presented no basis or evidence which supports its assertion that the matter has not been addressed in prior appeals. The assertion that the contracting officer breached the contract because of a failure to issue a written decision on the subsequent "claims" is not properly grounded. By application of the finality provisions of statute, the underlying claim for quantum related to the fifty-nine calendar day Government-caused delay was resolved. The contractor's suggestion that a contracting officer is obligated (in seeming perpetuity) to issue a written decision on a contractor's "claim" which has been resolved ignores the finality provisions. Contrary to the admonition that the contractor had "come to the end of the road with this matter," Finding 4, the contractor has once again filed the same matter with this Board. Accordingly, any future submission to the Board on behalf of Zinger Construction Co., Inc., involving the underlying contract, GS-03B-78445, will be returned unfiled and undocketed, unless submitted by counsel with an explanation as to how the matter submitted is appropriately before the Board. Decision The Board DISMISSES FOR LACK OF JURISDICTION the appeal of Zinger Construction. ______________________________ JOSEPH A. VERGILIO Board Judge We concur: ____________________________ __________________________ ROBERT W. PARKER ALLAN H. GOODMAN Board Judge Board Judge