____________________________________________
 
              MOTION TO DISMISS GRANTED: February 17, 1994
              ____________________________________________
 
 
                              GSBCA 12642
 
 
                   SINGLETON CONTRACTING CORPORATION,
 
                                                    Appellant,
 
                                   v.
 
                    GENERAL SERVICES ADMINISTRATION,
 
                                                     Respondent.
 
        Wayne Singleton, Corporate  Secretary, Singleton Contracting
   Corporation, Senoia, GA, appearing for Appellant.
 
        Kenneth   E.  Kendell,   General  Services   Administration,
   Philadelphia, PA, counsel for Respondent.
 
   Before Board Judges DEVINE (presiding), HENDLEY, and BORWICK.
 
   HENDLEY, Board Judge.
 
        Parties entered into a contract under which appellant was to
   renovate  a  federally-owned  building.     Upon  completion   of
   performance,  appellant signed a  general release for  all claims
   arising  under  the  contract, as  required  under  the contract.
   Shortly thereafter, appellant filed its notice of appeal electing
   the accelerated procedure.  Appellant has alleged that respondent
   failed  to make  timely payments,  and  thus is  required to  pay
   appellant  the  required  interest penalty  under    3902  of the
   Prompt Payment Act.  Respondent has filed a motion to dismiss the
   appeal based on two grounds: first, appellant's release bars  any
   recovery and,  second, appellant  has failed  to  state a  claim.
   Given  our  grant   of  respondent's  motion  on   the  basis  of
   appellant's release, we need not reach the second ground.
 
                               Background
 
        By  letter  dated  October  7,  1992,  appellant,  Singleton
   Contracting Corp. (Singleton), was notified that it was awarded a
   contract by  respondent, General  Services Administration  (GSA),
   for renovation of a portion of the Federal Executive Institute in
   Charlottesville, Virginia.  Appeal File, Exhibit 2.  As modified,
   the period of performance was to commence in December of 1992 and
   end on August 13, 1993.  Id., Exhibit 1.
 
 
        Under the original  contract, the address of  the contractor
   was Senoia,  Georgia.  Appeal  File, Exhibit 1.   If a  different
   address  is to  be used  for Government  remittances, it  must be
   stated in  the contract.  Id.   Until modified, the  contract did
   not list a separate remittance address.  Id.  
 
        In  a letter  dated  December  8,  1992,  appellant  advised
   respondent  that  a  Mr. Chambers  would  be  appellant's project
   manager and gave an address for the project manager in Farmville,
   Virginia.  Appeal  File, Exhibit 5.  The letter  also states that
   the  manager   is  authorized  to   act  for  appellant   on  all
   administrative matters relative  to the contract.  Id.   No other
   matters  are addressed  in the  letter.  Id.   The  letterhead is
   different  from appellant's  previous  correspondence in  that  a
   Troy, Virginia address is inserted instead of the Senoia, Georgia
   address.   Id.  There is no mention  in the body of the letter of
   the  differing address,  nor  is  attention drawn  to  it in  any
   manner.  Id.
 
        After contract performance had begun, appellant submitted an
   invoice for payment  number 01.  Appeal  File, Exhibit 9.   It is
   not  possible to  tell from  the invoice  on what  date appellant
   submitted its request.   However, appellant's letter  demanding a
   final decision states  that  the invoice was  "forwarded to [GSA]
   on 11 January 1993, and was received . . . on or about 14 January
   1993."   Id.,  Exhibit  4.   The  invoice  simply  refers to  the
   contract  number and  requests  payment  of $19,000.    Id.   The
   letterhead address shown is Troy, Virginia.  Id.
 
        Apparently  the  invoice  was routinely  routed  to  the GSA
   finance center  in Ft.  Worth, Texas for  payment.   According to
   appellant, the finance center returned the invoice on February 1,
   1993, stating that "the contract  must be modified to reflect the
   `remit  to'  address  to  be  the  same  as  that  stated in  the
   contract."   Appeal  File,  Exhibit  4.   A  unilateral  contract
   modification was issued by the contracting officer on February 8,
   1993, changing   contractor's remittance address to  the Virginia
   address.   Id., Exhibit  1.  According  to appellant,  the "exact
   same proper  invoice"  was then  resubmitted.   Id.,  Exhibit  4.
   According  to respondent,  a  "proper  payment  receipt  was  not
   received  until March  3, 1993."    Id., Exhibit  5.   Respondent
   issued  a check  dated  March  22, 1993,  which  was received  by
   appellant sometime during the period April 10-13, 1993.  Id.
 
        The  Prompt Payment Act, 31 U.S.C.A.   3901-3907 (West Supp.
   1993), is applicable  to this contract.  Section 3903  of the Act
   directs that  regulations shall  be prescribed  to carry  out the
   provisions  of  the  statute.   Id.    The  contract incorporates
   Federal Acquisition Regulation  (FAR) clauses; consequently,  the
   payment  terms of  the  contract reflect  the  provisions of  the
   statute.   Appeal  File, Exhibit 1.   Per FAR  52.232-27 - Prompt
   Payment For Construction Contracts, the contract requires that an
   invoice include specific information, such as the address  of the
   contractor's official to  whom payment is to  be made.  Id.   The
   payment  address  must  be  the   same  as  that  listed  in  the
   contract.  Id.
 
 
        Under the terms  of FAR 52.232-27,  Appeal File, Exhibit  1,
   and the Prompt Payment Act, 31 U.S.C.A.   3901 (West Supp. 1993),
   a payment  is deemed to  have been made  on the date a  check for
   payment is dated.   As noted above, respondent's  check was dated
   March 22,  1993.  FAR 52.232-27, as written in the contract, also
   states that normally the progress  "payment due date shall be the
   27th  day  after the  date  the Contractor's  payment  request is
   dated,  provided a proper  payment request is  received .  . . ."
   Appeal File, Exhibit 1.
 
        On  June 18,  1993, appellant  wrote a letter  to respondent
   alleging that respondent owed penalty interest on $19,000 for the
   period January 29  to April 10,  1993.   Appeal File, Exhibit  4.
   Appellant further asserted that, since interest had not been paid
   automatically,  it was entitled  to a penalty  in accordance with
   the Prompt Payment Act.  Id.  Despite the unequivocal term of the
   contract  (noted above),  appellant also  asserted  that the  Act
   required payment of invoices within fourteen calendar days of the
   Government's     receipt.[foot #] 1         Id.         Appellant
   requested  a  formal   contracting  officer's  decision   on  its
   claim.[foot #] 2      A   final   decision  denying   the   claim
   was issued July 12, 1993.  Id., Exhibit 5.
 
        Under the  terms of  the contract, after  completion of  and
   acceptance  of  the  work, presentation  of  a  properly executed
   payment  voucher, and  presentation of  a release  of all  claims
   "other  than claims specifically  excepted from operation  of the
   release,"  the  Government  was required  to  pay  contractor the
   amount due.   Appeal  File, Exhibit 1;  FAR 52.232-5.   Appellant
   executed a  Release of  Claims, GSA Form  1142, dated  October 8,
   1993.    Id., Exhibit  6.    The  form specifically  states  that
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 1    The  statute  does  require,  in  construction
   contracts, that  interest penalty be  paid on a  progress payment
   unpaid for a period of more than fourteen days after receipt of a
   payment  request,  unless a  longer  period is  specified  in the
   solicitation, as it was in  this case.  31 U.S.C.A.    3903 (West
   Supp. 1993); Appeal File, Exhibit 1.
 
        [foot #] 2    Appellant's letter,  as well  as its  original
   complaint, claims interest  penalty on all invoices  it submitted
   under  the contract.   Appellant's Complaint, November  15, 1993;
   Appeal File,  Exhibit 4.   Appellant has verbally told  the Board
   that, in this  appeal, it is only pursuing its  claim relative to
   the  first  invoice.    Appellant's  telephone  conversation with
   Board, Jan. 18, 1994.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   Singleton "releases  the United  States from  any and  all claims
   arising under and by virtue of [the] contract or any modification
   or  change thereto"  except as listed.   Id.   The form  lists no
   exceptions  to the release and is signed by appellant's president
   and a witness.   Id.   In  the space provided  for exceptions  is
   typed the word  "None."  Id.   There is nothing in the  record to
   indicate,  nor  has  appellant  alleged,  that  appellant  lacked
   information  necessary, at  the time of  signing the  release, to
   know it  had a reasonable  basis for a  claim or to  preserve its
   right to file a  claim.  In fact, the basis of  its request for a
   final decision is the same as the basis for its claim.
 
 
        Appellant filed a notice of appeal with the Board on October
   13, 1993.  Appeal File, Exhibit 7.  The notice takes exception to
   the  contracting  officer's  denial of  "appellant's  request for
   payment of interest and penalties under the  Prompt Payment Act."
   Id.   Appellant argues that respondent continued  to consider its
   claim after appellant filed its appeal.  Appellant's Response and
   Opposition to Respondent's Motion to  Dismiss With Prejudice.  In
   paricular, appellant points  to respondent's issuance of  a check
   in October, 1993, drawn in appellant's favor, and telephone calls
   received from  respondent in  January, 1994.   Id.; Affidavit  of
   Wayne Singleton (Jan.  14, 1994).  Appellant further argues that,
   since it  filed its appeal  prior to respondent's  final payment,
   appellant's  release should not  bar consideration of  its claim.
   Appellant's  Response and  Opposition to  Respondent's Motion  to
   Dismiss With Prejudice.
 
        On October 29, 1993, respondent issued a check in the amount
   of  $10.29 to appellant.  Appellant's  Response and Opposition to
   Respondent's Motion to  Dismiss With Prejudice, Exhibit F.   In a
   letter to the  Board, respondent states that the check represents
   the amount to which respondent feels appellant is entitled (three
   days'  interest   on  $19,000,   the  amount   of  invoice   01).
   Respondent's Letter (Jan.  14, 1994).   Appellant states that  it
   did not  know why  the check was  tendered until  the contracting
   officer   contacted   appellant   in   January,   1994.[foot #] 3
   Affidavit  of  Wayne  Singleton (Jan. 14,  1994).    According to
   appellant, the  contracting officer telephoned  appellant, at the
   request of respondent's  counsel, "to discuss the  possibility of
   settling the pending appeal." Id.   Appellant also states that it
   received another call  from the contracting officer  and one from
   respondent's counsel.  Id.
 
                               Discussion
 
        The  policy  behind a  release is  "finality."   The primary
   purposes of a release are  to finalize the rights of the  parties
   and to evidence  completion of performance.   Dawson Construction
   Co., GSBCA 5611, et al., 83-1 BCA   16,160.  Consequently, except
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 3   This seems improbable; a reasonable response to
   receipt of a check for no apparent reason would be to inquire.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   in  narrow circumstances, a release bars further consideration of
   a claim.  Id.
 
 
        One exception to the rule is when the conduct of the parties
   evidences an intent to exclude or permit a claim, notwithstanding
   a written release.   R.C. Hendrick & Son, Inc.,  GSBCA 5321, 79-2
   BCA    13,996  (citing  Winn-Senter  Construction Co.  v.  United
   States, 110  Ct. Cl. 34  (1948)).   This exception does  not help
   appellant.   Appellant  maintains that  respondent's  efforts  to
   settle the  claim, after  the filing of  the appeal,  evidences a
   continuing consideration of appellant's claim; thus, such conduct
   evinces an intent to exclude  the claim from the general release.
   Appellant's   contention   ignores   the  basic   public   policy
   encouraging  parties  to resolve  disputes  short  of litigation.
   There   is  nothing  to   suggest  an  unabated   and  continuing
   consideration  of the claim after the contracting officer's final
   decision in  the matter.   Rather, the record suggests  that once
   counsel for respondent became involved in the dispute, respondent
   reviewed the facts and  circumstances surrounding payment request
   01, and determined  that a fair resolution  would be to tender  a
   check in the amount of $10.29 in interest penalty.
 
        At no  time since  the filing of  the appeal  has respondent
   abandoned  its  argument  that   appellant  should  not  prevail.
   Instead,  it has advanced  concurrent theories in  support of its
   position;   an   approach  clearly   permitted   in  adjudicative
   procedure.  See Federal Rule of Civil Procedure 8(e)(2).
 
                                Decision
 
        Based  on the foregoing,  respondent's motion to  dismiss on
   the grounds  that appellant's general  release precludes  further
   consideration of its claim is GRANTED.  Consequently, we need not
   reach  respondent's other basis  for dismissal; i.e.,  failure to
   state a claim.
   ________________________________
 
                                      JAMES W. HENDLEY
                                      Board Judge
   I concur:
   ______________________________
   ANTHONY S. BORWICK
   Board Judge
 
 
   DEVINE, Board Judge (presiding), dissenting.
 
 
        I  respectfully dissent from the majority opinion because it
   is wrong.   The evidence  shows that appellant's  initial invoice
   had  a remittance address  different from the  remittance address
   shown in  the contract.   It was therefore returned  to appellant
   with  the advice  that appellant  would have  to seek  a contract
   amendment to cure the difficulty.  Appellant did so by telephone,
   and resubmitted the invoice.  The amount  in question, the sum of
   $l9,000, represented the initial progress payment on a renovation
   job that appellant was performing for the Government.  A check in
   the appropriate  amount was  mailed to  appellant in due  course.
   However, appellant believed that the  check was not mailed within
   the time frame  specified in the Prompt Payment Act,  and filed a
   claim with the contracting officer for the interest penalty which
   appellant believed was due it under the Act because of  the tardy
   payment.   The claim was denied by the contracting officer on the
   ground that the  invoice had been paid within the time allowed by
   the  Act.    Approximately  three  months  thereafter,  Mr.  J.A.
   Singleton, appellant's  president, in  connection with  the final
   payment  under the renovation contract, executed the release that
   the majority  relies on.   Five days later, Mr.  Wayne Singleton,
   appellant's  vice president and secretary, appealed the denial of
   appellant's  claim for interest  penalty.  Seventeen  days later,
   the Government issued a check  payable to appellant in the amount
   of $10.29.  Thereafter, appellant  was advised by the contracting
   officer that the check represented 3 days interest penalty on the
   original payment of $l9,000.  Apparently this was the contracting
   officer's view of the amount due.  It is unclear exactly  how the
   amount was calculated.
 
        It  is clear that  neither party  believed that  the release
   executed in connection with the final payment under the  contract
   also  released appellant's claim  for interest penalty  under the
   Prompt  Payment Act.  The language of  the release itself did not
   go so far.  It deals only with "claims arising under or by virtue
   of said contract."   Appellant's claim arises under  the terms of
   the Prompt  Payment Act and  not under the contract,  even though
   the Act is incorporated  into the contract.  A  delay in payment,
   such  as  will activate  the  Act,  has nothing  to  do with  the
   performance  of the contract  work.  Certainly  appellant did not
   believe that the release it signed had  the effect ascribed to it
   by  the majority.   It  continued to  press its  interest penalty
   claim.   Nor did the  Government believe the release  covered the
   interest  penalty  sought  by  appellant.   It  paid  a  part  of
   appellant's  claim in complete derogation of  the release.  There
   would  have  been  no  need for  the  payment  of  $l0.29  if the
   contracting officer  had believed  that the  release in  question
   affected the claim.    The check is clear proof that both parties
   were  actively  considering  appellant's  claim  long  after  the
   execution of the final release.
 
 
        I conclude that the Government's  motion should be denied on
   two  grounds:  because  the release  did  not  affect appellant's
   Prompt Payment Act rights which existed outside the contract, and
   because  both parties  continued to  treat  appellant's claim  as
   subsisting despite the release, especially the Government when it
   issued its $l0.29 check.    
   ________________________________
 
                                      DONALD W. DEVINE
                                      Board Judge