___________________________________________ MOTION TO DISMISS DENIED: February 2, 1994 ___________________________________________ GSBCA 12640 GENERAL CLEANING CORPORATION, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. David M. Johnson of Johnson, Killen, Thibodeau & Seiler, Duluth, MN, counsel for Appellant. Paul J. Maxse, Office of Regional Counsel, General Services Administration, Chicago, IL, counsel for Respondent. Before Board Judges PARKER, NEILL and DeGRAFF. DeGRAFF, Board Judge. General Cleaning Corporation (GCC) and the General Services Administration (GSA) entered into three successive contracts for janitorial services at the federal building in Duluth, Minnesota. GCC claimed that it had not been paid the proper amount for its services and this claim was denied by the contracting officer. GCC then filed this appeal and GSA filed a motion to dismiss. As explained below, GSA's motion is denied. Background GCC performed janitorial services at the federal building from March 1983 until February 1986 pursuant to contract GS-05B- 42291. GCC performed these same services from March 1986 until February 1989 pursuant to contract GS-05B-42593, and from March 1, 1989, until May 31, 1992, pursuant to contract GS05P88GAC0202. Appeal File, Exhibits 1, 4. On May 1, 1992, GSA sent a release of claims form to GCC and asked GCC to complete the form by listing any claims against GSA and to return the form to GSA. Appeal File, Exhibit 2. On November 6, 1992, GCC sent a claim letter to GSA, stating that it was owed $19,222.78. In its letter, GCC notes that it had provided services to GSA for nine years and was supposed to have been paid each month. The letter does not identify the months for which GCC claimed not to have received payment. Id., Exhibit 4. On April 29, 1993, GCC sent another letter to GSA which lists the amounts billed and the amount of payment received for each contract. This letter states that GCC claimed that it was owed $13,246.70 for work performed pursuant to the first contract (1983 through 1986), that it was owed $13,057.74 for work performed pursuant to the second contract (1986 through 1989), and that it had been paid $7,081.66 more than it had billed for work performed pursuant to the third contract (1989 through 1992). Appeal File, Exhibit 5. On June 23, 1993, GCC sent another letter to GSA. This letter, like the April 29, 1993 letter, clearly segregates the amounts that GCC claimed for each contract, stating: [T]he first three-year contract has an unpaid balance of $13,246.70 and the second three- year contract has an unpaid balance of $13,057.74. The third three-year contract is in excess of the contracted amount by $7,077.19 which we assumed was part payment against the unpaid balance. Subtracting the third three-year contract from the first two three-year contracts leaves a total unpaid balance of $19,227.25. Appeal File, Exhibit 6. GSA examined GCC's claim letters and determined that GCC was due $9,940 for work performed pursuant to the third contract (1989 through 1992). Appeal File, Exhibit 7. The contracting officer issued her decision in a letter dated August 10, 1993. In this letter, GSA directed GCC to submit an invoice for $9,940 in order to "reconcile [GCC's] claim regarding contract GS05P88GAC0202 only" and to submit a release of claim form stating that GCC had no claims outstanding on this contract. The letter explains that GSA's records concerning the other two contracts were being recalled from archives so that GSA could evaluate the remainder of GCC's claim. Appeal File, Exhibit 8. GCC submitted an invoice dated August 17, 1993, in the amount of $9,940 and GSA paid the invoice. Supplemental Appeal File, Exhibit 2; Motion to Dismiss in Lieu of Answer, Attachment B. The contracting officer issued her decision concerning the first and second contracts in a letter dated September 10, 1993. In this letter, GSA explained that the files for the first contract had been destroyed and that GCC had signed a release of all claims concerning the second contract. The release, which states that GCC had no claims against GSA concerning the second contract, is attached to the contracting officer's decision. Supplemental Appeal File, Exhibit 3. GCC filed this appeal on October 7, 1993. In its notice of appeal, GCC states that it is appealing the contracting officer's August 10, 1993 decision concerning the third contract, GS05P88GAC0202. GCC also states that it is seeking $9,282.78, which it claims is the unpaid balance due pursuant to the third contract. Appeal File, Exhibit 9. Discussion In lieu of an answer, GSA filed a motion to dismiss. GSA asserts that any claim for money due upon the first contract should be dismissed due to the running of the statute of limitations contained in 31 U.S.C. 3702(b) and 28 U.S.C. 2415(a). GSA asserts that any claim for money due upon the second contract should be dismissed due to the fact that a valid release of claims was executed by GCC. GSA asserts that any claim for money due upon the third contract should be dismissed because GCC's acceptance of the $9,940 payment amounts to an accord and satisfaction. GCC opposes GSA's motion. It would not be appropriate for us to consider GSA's arguments concerning the first and second contracts because the final decision concerning those contracts has not been challenged by GCC in this appeal. If GCC is owed any money for work that it performed pursuant to the first and second contracts, we cannot award that money to GCC in this appeal. We reject GSA's argument concerning the third contract because there is insufficient evidence of an accord and satisfaction. The elements of an accord and satisfaction are "proper subject matter, competent parties, meeting of the minds of the parties, and consideration." Mil-Spec Contractors, Inc. v. United States, 835 F.2d 865, 867 (Fed. Cir. 1987),(quoting Brock & Blevins Co. v. United States, 170 Ct. Cl. 52, 59, 343 F.2d 951, 955 (1965)). Based upon the facts as we now know them, it is not apparent that there was a meeting of the minds of the parties concerning whether GCC's acceptance of $9,940 would constitute satisfaction of its claim. DECISION For these reasons, GSA's motion to dismiss is DENIED. __________________________ MARTHA H. DeGRAFF Board Judge We concur: _____________________________ ____________________________ ROBERT W. PARKER EDWIN B. NEILL Board Judge Board Judge