__________________________ DENIED: August 31, 1992 __________________________ GSBCA 11039-R-R ZINGER CONSTRUCTION COMPANY, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Irving Zinger, President, Zinger Construction Company, Inc., Los Angeles, CA, appearing for Appellant. Patricia S. Grady, Assistant Regional Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges LaBELLA, DANIELS, and HYATT. HYATT, Board Judge. Appellant, Zinger Construction Company, in a motion filed on May 4, 1992, has moved to vacate the Board's decisions in Zinger Construction Co., GSBCA 11039, 91-3 BCA 24,066, and Zinger Construction Co. v. General Services Administration, GSBCA 11039- R (April 27, 1992). In those decisions we dismissed appellant's claim for recovery of unabsorbed overhead on the grounds of res judicata, and denied its motion for reconsideration. Appellant now attempts to have those two decisions vacated, arguing that the Board lacked jurisdiction over its appeal. For the reasons stated below, we deny this motion. Background The history of this case spans three decades. It began in 1978 when Zinger Construction Company was awarded Contract No. GS-03B-78445, to furnish and install various items at the Internal Revenue Service Building in Philadelphia, Pennsylvania. Appellant later filed an appeal seeking to recover costs related to delays that had occurred during contract performance. After a hearing on the merits in 1984, the Board held that appellant had been delayed by the Government but had not presented any credible evidence of its claimed costs, and thus denied the appeal. Zinger Construction Co., GSBCA 6568, 84-3 BCA 17,537. Subsequently, appellant filed a motion for reconsideration of that decision, as well as a petition for review at the United States Court of Appeals for the Federal Circuit. The petition before the Federal Circuit was ultimately dismissed for lack of prosecution, Zinger Construction Co. v. United States, No. 85- 1517 (Fed. Cir. July 3, 1986), and the motion before this Board was later dismissed as moot. Zinger Construction Co., GSBCA 6568-R, 87-1 BCA 19,444. In 1985, appellant filed a second appeal, attempting to recover unabsorbed overhead costs for the period of Government- caused delay it claimed was established during the original appeal and hearing in Zinger, 84-3 BCA 17,537. We dismissed this second appeal, holding that appellant's claim had been litigated earlier and the determination that appellant had not presented any credible evidence regarding damages precluded appellant from relitigating the case under the doctrine of res judicata. Zinger Construction Co., GSBCA 7973, 89-1 BCA 21,529. More recently, on January 2, 1991, appellant, having submitted the identical quantum claim to the contracting officer for decision, returned to this Board with yet another notice of appeal concerning this same issue, previously addressed in the Zinger opinions of 1984 and 1989. This appeal, docketed as GSBCA 11039, was characterized by Zinger as an appeal of the contracting officer's deemed denial of its claim.[foot #] 1 We ruled that this claim was barred ----------- FOOTNOTE BEGINS --------- [foot #] 1 Specifically, appellant's president asserted in his notice of appeal that: I am appealing an unwritten Contracting Officer's decision. The time has expired for the Government to answer the contractor pursuant to the CDA. A non-response by the Government is the same as a denial. The Board so noted in its decision dismissing Zinger's claim: On January 2, 1991, the Board received appellant's notice of appeal after the contracting officer failed to issue a decision on its claim. Appellant correctly notes that such failure by the contracting officer may be deemed a denial of the claim. (continued...) ----------- FOOTNOTE ENDS ----------- by the doctrine of res judicata, as Zinger was once again seeking to litigate an issue that could have been brought at its original hearing on the merits. The appeal was dismissed with prejudice. Zinger Construction Co., GSBCA 11039, 91-3 BCA 24,066. Subsequently, appellant filed a motion for reconsideration, which was denied. Zinger Construction Co. v. General Services Administration, GSBCA 11039-R (April 27, 1992). Discussion We now have before us appellant's most recent action, a motion to vacate the decisions in GSBCA 11039 and GSBCA 11039-R for lack of jurisdiction. This motion is premised on the proposition that this Board did not have jurisdiction to decide either GSBCA 11039 or 10039-R, because the contracting officer had never issued a final decision. In support of this contention, appellant argues that sections 605 and 607 of the Contract Disputes Act of 1978 (CDA) are inconsistent, as section 607(d) requires a decision to be issued by the contracting officer, and section 605 allows an appellant to proceed without a written decision of the contracting officer. Appellant asserts that both decisions are void, and must be vacated. The Contract Disputes Act of 1978 (CDA) establishes procedures for the adjudication of Government contract claims. Under the CDA, agency boards are authorized to exercise jurisdiction over appeals of contracting officer decisions. 41 U.S.C. 607(d) (1988). In anticipation of the possibility that a contracting officer's decision may not, in all instances, be issued within the established time frames, the Act provides that if a decision is not timely rendered, a claim may be deemed to have been denied for purposes of permitting the contractor to press its claim at an agency board or the United States Claims Court. The pertinent provision states that: 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 denying the claim and will authorize the commencement of the appeal or suit on the claim as otherwise provided in this chapter. . . . Id., 605(c)(5) (1988). Appellant's argument that these provisions of the Contract Disputes Act are inconsistent is simply incorrect. Section 607(d) establishes that Boards have jurisdiction over appeals ----------- FOOTNOTE BEGINS --------- [foot #] 1 (...continued) Zinger Construction Co., GSBCA 11039, 91-3 BCA 24,066, at __________________________ 120,482. ----------- FOOTNOTE ENDS ----------- taken from a final decision of a contracting officer, while section 605(c)(5) in essence provides for a decision denying the claim by operation of law in the event the contracting officer fails to issue a timely decision. In either case, the contractor's claim has been duly submitted to the contracting officer for decision, and the appeal is either of an actual or deemed decision denying the claim. As such, the Board properly assumed jurisdiction over GSBCA 11039 and 11039-R under 41 U.S.C. 605(c)(5), 607(d) (1988). There is no valid basis to vacate these decisions. We have now reached the point at which appellant has sought, in three separate actions, spawning no less than five decisions, to recover on the same claim that was rejected conclusively in the first instance. In addressing a similar situation, involving this same litigant, the Armed Services Board recently observed: To the extent that appellant is again claiming entitlement for its [value engineering] claim, a review of the doctrine of res judicata is appropriate. Res judicata mandates that an existing final judgment rendered without fraud or collusion upon the merits by a court or administrative agency of competent jurisdiction is conclusive of the cause of action and of the facts or issues actually litigated or which could have been litigated in all other actions. The objectives of this doctrine are to prevent endless litigation, such as is occurring in the instant case, and to promote the proper administration of justice. . . . . . . Appellant has had its day in court, including a full evidentiary hearing, and having lost upon the merits is not entitled to re- litigate the claim. Zinger Construction Co., ASBCA 40616, 92-1 BCA 24,456, at 122,004 (1991). The Armed Services Board held in this case that, while it would not go so far as to prohibit further filings with respect to the contract in issue, it would require appellant to demonstrate that any further appeals under that contract were not recharacterizations of the same claim. We believe a similar measure is warranted here. 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. Decision Appellant's motion to vacate is DENIED. __________________________ CATHERINE B. HYATT Board Judge I concur: __________________________ VINCENT A. LaBELLA Board Judge DANIELS, Board Judge, concurring. The Board's decision in this case is exactly right -- as far as it goes. The opinion is far too kind to appellant, however. Insofar as the opinion applies a sanction, it simply prevents appellant from making additional filings with respect to the claim at issue. While this action is appropriate, it is insufficient given the bad faith shown by the contractor in bringing the motion. I would impose a supplemental sanction, as explained below. Zinger has been litigating this same claim at this Board since 1980. At all times known, the matter has been before us in the posture of an appeal from the contracting officer's deemed denial of the claim. The very first appeal filed by the contractor, GSBCA 5906, was "from the contracting officer's failure to render a decision." Zinger Construction Co., GSBCA 6568, 84-3 BCA 17,537, at 87,346 (1984). That docket number was dismissed without prejudice to permit the parties to attempt settlement of the dispute, but the case was refiled in 1982, again as an appeal "from the contracting officer's failure to render a decision." Id. The second docket number was decided by us and appealed to the Court of Appeals for the Federal Circuit; a motion for reconsideration was later dismissed as moot. Zinger Construction Co., GSBCA 6568-R, 87-1 BCA 19,444 (1986). Zinger has subsequently brought the matter back to the Board on two separate occasions and received three decisions. We do not know from the decision on the first of these attempts whether the appeal was taken from an actual contracting officer's decision or not, but the decisions on the second attempt make clear that again, the appeal was from a deemed denial by the contracting officer of Zinger's claim. Zinger Construction Co. v. General Services Administration, GSBCA 11039, 91-3 BCA 24,066 (1991), reconsideration denied (Apr. 27, 1992); Zinger Construction Co., GSBCA 7973, 89-1 BCA 21,529 (1988). Throughout this torturous, twelve-year history, neither Zinger nor the Government ever challenged the Board's jurisdiction (or the Court of Appeals' authority, for that matter) on the ground that an appeal could not be taken from a contracting officer's deemed denial of a claim. During the same time period, Zinger was similarly pursuing repetitive litigation of a claim through the Armed Services Board of Contract Appeals, the Court of Claims, the Court of Appeals for the Federal Circuit, and the United States Claims Court -- which tribunals issued a total of seven decisions on the matter. The subject of that litigation was also an appeal from a deemed denial of a claim made by Zinger. Zinger Construction Co., ASBCA 40616, 92-1 BCA 24,456 (1991). Not a peep was heard from Zinger or the Government to the effect that the absence of an actual contracting officer's decision divested the tribunals of jurisdiction to hear the case. The reason that no one ever broached this issue may well be, of course, that the Contract Disputes Act of 1978, which authorizes these cases, states very clearly, "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 denying the claim and will authorize the commencement of the appeal or suit on the claim as otherwise provided in this Act." 41 U.S.C. 605(c)(5) (1988). Lest there be any doubt that this statutory provision applies to the matter now before the Board, we stated, in denying the last of the three appeals filed with us, "Appellant correctly notes that such failure by the contracting officer [to issue a decision] may be deemed a denial of the claim." 91-3 BCA at 120,482. We can be sure then that Zinger knew full well, when it filed the instant motion to vacate the decisions on the final appeal for lack of jurisdiction, that we had jurisdiction over the case when we denied it on the basis of res judicata, and again when we denied the motion for reconsideration. Zinger told us that it recognized this, and we applauded the firm for its observation. In this context, the motion is clearly frivolous and made in bad faith. This Board has announced that it can and will, in appropriate circumstances, impose sanctions -- including awards of reasonable attorney fees and other costs -- against parties and attorneys who litigate in bad faith. International Technology Corp., GSBCA 10056-C(10010-P), 90-1 BCA 22,341, 1990 BPD 2 (1989). The Court of Appeals' decision in ViON Corp. v. United States, 906 F.2d 1564 (Fed. Cir. 1990), amended by unpublished errata (Aug. 21, 1990), is not to the contrary; that opinion addresses the ability of Boards to dismiss cases brought in bad faith, not our power to impose lesser sanctions against bad faith litigants. The Court has expressly left open the question of the full scope of the Board's authority to impose sanctions. Id. at 1568 n. 5 ("We do not, however, comment on whether ViON could lawfully be sanctioned for past discovery misdeeds."). Zinger's conduct in filing this motion is so egregious that it merits imposition of the sanction of requiring appellant to pay to the General Services Administration double that party's costs of responding to the motion. _________________________ STEPHEN M. DANIELS Board Judge