_____________________________________________________________ RESPONDENT'S MOTION TO DISMISS AND ALTERNATIVE MOTION FOR SUMMARY RELIEF DENIED: July 15, 1996 _____________________________________________________________ GSBCA 13576-IBWC VEGA ROOFING CO., Appellant, v. INTERNATIONAL BOUNDARY AND WATER COMMISSION, Respondent. Juan Vega, Owner of Vega Roofing Co., McAllen, TX, appearing for Appellant. Randall A. McMains, International Boundary and Water Commission, El Paso, TX, counsel for Respondent. Before Board Judges WILLIAMS, DeGRAFF, and GOODMAN. WILLIAMS, Board Judge. On March 29, 1996, Vega Roofing Co. appealed the final decision of an International Boundary and Water Commission contracting officer denying appellant's claim under contract number IBM 95-32 for replacement of roofs on residences located at Falcon Village in Falcon Heights, Texas. This matter comes before the Board on respondent's motion to dismiss and alternative motion for summary relief. In its motion respondent states that this appeal should be dismissed either for failure to state a claim upon which relief can be granted pursuant to Board Rule 8(c)(1) or for failure to prosecute pursuant to Board Rule 8(c)(2). In its appeal, appellant states: I am appealing the decision made by Ms. Debra J. Little, contracting officer for this project. The disagreement with Ms. Little is over whether or not we should have known that there were two or more roofs over these homes. In her letter of March 1, 1996, she stated that it was obvious upon inspection to see four layers of shingles at the bottom edge of the roof. As a result of that statement, I went back to the site and took pictures of the remaining buildings to make sure that this was in fact correct. As I suspected, that was not the case in most of the homes. Of the eleven remaining buildings that have not been reroofed, eight do not have any sign of more than one roof. Most of those eight do not even have a starter coarse on the gable sides. Ms. Little stated that the gable sides of roofs above the starter coarse would indicate the number of roofs existing. The pictures that I sent her do not substantiate that position in at least eight of the homes. In her latest correspondence, she stated that the housing units that we photographed belonged to the U.S. Customs Service and that those housing units were not relative to this issue. I strongly disagree with that statement. These units show what the units that were reroofed looked like. We could not have determined what was under the shingle without having to perform some kind of removal during the inspection stage of the bid. We based our inspection upon a visual observation and the plans that were part of the bid package. Neither of these indicated that there were two roofs over these homes. In our opinion, it was not reasonably ascertainable from these two sources. We simply want to be compensated for the costs that were involved in the removal of the additional material. Our request, as you can see, doesn't include any profit margin at all. We simply want to recover the additional cost to remove the extra material. We would greatly appreciate your consideration in this matter. Appellant attached a letter dated November 21, 1995, to the contracting officer, which states: The removal phase of the reroofing job has shown that there are two roofs and not one over the roof deck. The bid documents and our bid proposal included removing one roof. We are therefore having to request a change order for the difference in cost in removing the extra roof. The change order request will include the following: 1. Removal of 532 squares at $8.00 per square....$4256.00 2. Land fill fee.....17 loads at $40.00........ 709.00 3. Fuel expense....100 gallons at $.98......... 98.00 4. Driver..........20 hrs....at $6.00.......... 120.00 5. Overhead.................................... 150.00 ________ Total: $5333.00 If we need to provide any other information, please let me know. At the Board's request, appellant provided a copy of the contracting officer's decision at issue here. In further support of its appeal, appellant submitted a letter dated April 3, 1996, enclosing nine photographs and stating: Enclose[d], please find the pictures that were taken of the roof located at the Falcon Village. We hope that th[ese] pictures will show why we didn't see that there was another roof underneath. If you need any more information, please feel free to call our office. On April 11, 1996, the Board issued its order on proceedings in this appeal ordering appellant to file its complaint or to designate its notice of appeal as its complaint by May 10, 1996. Appellant did not respond to the Board's order. On June 4, 1996, respondent filed its answer, noting that appellant had not filed a complaint, and its motion to dismiss and alternative motion for summary relief. On June 6, 1996, the Board telephoned appellant's office and left a message for appellant's representative to call. On June 14, appellant's representative returned the Board's call and informed the Board (via voice mail) that he had overlooked the dates in the Board's order on proceedings. By letter dated July 9, appellant stated: I apologize for the late response. Somehow, I was under the impression that the correspondence that took place between this agency and myself was sufficient for the court to understand my position. This appeal basically states that we did not know that there were two roofs on these buildings. We took pictures of some of these buildings to show that without actually tearing into the roof, we could not have seen the roof underneath. This is basically what we feel was in place on the roofs that we removed. If it is indeed true that all of these roofs actually had the detail where you do see several layers of roofs at the edge, then I would gladly withdraw my request for these additional funds. To the best of my knowledge, this was not the case. I questioned my foremen and they also stated that this was not the detail that they saw when they removed the roofs. I wasn't notified of this additional layer until after the removal was started. I believe this entire matter lies with the understanding of what is "reasonably ascertainable" from an inspection. We do not believe that we could have known there was another roof under the top layer without actually tearing some of the shingle off and that was not an option as far as we were concerned. We hope this explains our position. Thank you for your consideration. Discussion Respondent seeks dismissal of this appeal or entry of summary relief in its favor on the grounds that appellant failed to file a complaint or designate its notice of appeal as its complaint in accordance with the Board's order on proceedings. Specifically, respondent seeks dismissal on the ground that appellant has failed to state a claim upon which relief can be granted since appellant has not formally stated a claim. Alteratively, respondent seeks dismissal for failure to prosecute. Finally, respondent contends that even if the current record is viewed in the light most favorable to appellant, an award could not reasonably be made to appellant, thus warranting summary relief in respondent's favor. During a telephonic conference on July 9, 1996, appellant's representative advised the Board that he wished to designate the appeal and the papers filed to date as the complaint. Appellant's representative apologized for his apparent misunderstanding of the rules. Viewing appellant's statements to date, it is apparent that these documents set forth appellant's claim in simple, concise, and direct terms, as well as the factual basis for the claim. Appellant has stated that the amount of the claim is $5,333. The Board's rules provide that no particular form is prescribed for a complaint. The Board may designate the notice of appeal, a claim submission, or any other document as the complaint either on its own initiative or on the request of appellant. Rule 7(b)(1), 48 CFR 6101.7(b)(1) (1995). Respondent correctly points out that appellant has failed to comply with orders of this Board. However, because appellant is proceeding pro se and apparently misunderstood the Board's Rules of Procedure, the Board will allow it to pursue this appeal so long as it abides by all future rulings in a timely fashion. The Board accepts appellant's papers filed to date as its complaint. Decision Respondent's motion is DENIED. ______________________________ MARY ELLEN COSTER WILLIAMS Board Judge We concur: ____________________________ ____________________________ MARTHA H. DeGRAFF ALLAN H. GOODMAN Board Judge Board Judge