June 8, 1987

Appeal of

LAWRENCE D. BANE

Under Control No. HCR 47233

PSBCA 1595

APPEARANCE FOR APPELLANT

Lawrence D. Bane

APPEARANCE FOR RESPONDENT

Maria R. Fuhrmann, Esq.

OPINION OF THE BOARD

Appellant has appealed from a final decision of the Contracting Officer denying his claim for additional compensation for trips that were added to Appellant's highway transportation contract. Appellant has elected the accelerated procedure of 39 C.F.R. § 955.36(d), and the parties have submitted the appeal on the written record pursuant to 39 C.F.R. § 955.12.

FINDINGS OF FACT

On June 23, 1983, Lawrence D. Bane (Appellant) and the United States Postal Service (Respondent) entered into a contract for the transportation of mail between Columbus, Indiana (IN) and Hanover, IN, with intermediate stops. Performance of the contract work was to begin on July 1, 1983, and continue for a term of four years (Appeal File (AF) Tab A, pp.1-2).

Appellant performed the contract until June 10, 1985, when it was terminated for default by Respondent. Appeals from that action and a subsequent assessment of excess reprocurement costs were taken to this Board which upheld the default termination and $7,844.94 of the $8,084.94 assessed for reprocurement. Lawrence D. Bane, PSBCA Nos. 1440, 1491, 86-2 BCA ¶ 18,997, recon. denied, 86-3 BCA ¶¶ 19,252, 19,276.

The contract included standard surface transportation General Provisions (PS Form 7407, Oct. 1981). Clause 12, "Changes in Service," allowed the Contracting Officer to issue orders for service changes so long as the terms of the change, including increases or decreases in compensation, were agreed to by the Contracting Officer and the Contractor. Such changes were to be executed on Form 7406, Amendment to Transportation Contract (AF Tab A, p. 20).

In accordance with the contract (AF Tabs A, p. 20; D, p. 69), two major service changes which added trips to Appellant's contract were negotiated and agreed to by the parties. The first service change made to Appellant's contract, effective December 24, 1983, added a Trip 6 for Express Mail from Madison, IN, to Columbus, IN (AF Tab A, p. 37). In calculating the increase the parties used a figure of 40 miles per trip (Dale Collins Affdvt., Mar. 21, 1987); AF Tab D, p. 59). Appellant agreed to the addition of this one way trip and to the use of 40 miles as the distance on which to make calculations (Collins Affdvt.). An amendment reflecting this agreement was executed on December 6, 1983 (AF Tab A, p. 37). The increase in compensation to Appellant because of the addition of this trip was $10,363 per year (AF Tab D, p. 59).

The distance used for Trip 6 (40 miles) was identical to the estimated mileage shown for the same trip under a previous emergency contract with a different contractor (Collins Affdvt.; AF Tab D, pp. 62-63).

A second service change, effective April 21, 1984, added two trips, designated as 7/8, and involved a round trip from Madison to Columbus, IN (Collins Affdvt.; AF Tab A, pp. 43-45). Except for the frequency and the round trip nature, these trips were identical to Trip 6, and 40 miles was used by the parties as the one way distance to calculate the cost increases (Collins Affdvt.). The terms of this amendment were agreed to by Appellant, who executed the amendment on April 23, 1984 (Collins Affdvt.; AF Tabs A, p. 43); D, p. 60). The total increase in compensation to be paid to Appellant due to the addition of these trips was $24,756 per year (AF Tab D, p. 60).

Respondent did not intend to renegotiate these service changes at a later time and at no time indicated to Appellant that the mileage figure would be later adjusted (Collins Affdvt.; Kenneth E. Martin Affdvt., Mar. 24, 1987). Appellant had the opportunity during negotiations to voice objections to the price adjustment or to the mileage figure used for the computations but made no such objections (Collins Affdvt.; Martin Affdvt.).

Subsequently, on or about July 30, 1984, Appellant submitted a cost statement requesting an economic price adjustment because of increases in operational and fuel costs (AF Tab D, p. 61). In the remarks section of that statement Appellant noted that the mileage was incorrect, asserting it was 45 miles (not 40 miles) from Madison to Columbus (id.). Appellant, however, made no request at that time for increased compensation because of the asserted mileage discrepancy.

After Appellant's contract was terminated, an emergency reprocurement contract was awarded to Larry Weekly in the annual amount of $118,689.53, as compared with Appellant's annual contract rate of $65,165. In setting forth the routes, trips and schedules for the Weekly contract (Statement of Service and Schedule), the distance shown between Columbus and Madison, IN, is 48 miles (PSBCA Nos. 1440, 1491, AF Tab D, p.77, submitted by Appellant as additional evidence, Feb. 9, 1987). Below the schedule on that page of the Weekly contract is the following statement:

"The mileages shown are estimates and are given only as information. Prior to submitting a bid, prospective bidders should determine the route of travel they will follow, and accurately determine the one-way mileage to be used in computing their bids."

Following the contract termination, Appellant submitted a claim dated August 19, 1986, in the amount of $17,531 for the alleged additional mileage (AF Tab C, p. 56). The claim was denied by the Contracting Officer (AF Tab B, p. 55), and a timely appeal followed.

DECISION

Appellant contends that when he executed the two contract amendments, he brought up the issue that the mileage being assumed as the distance for the added trips was erroneous, but was advised by the Contracting Officer that the mileage (and consequently the compensation) would be adjusted at a later time when the trips were made permanent.

Respondent denies and contradicts with supporting affidavits the above factual contentions.

Other than the statements in Appellant's Complaint and claim letters, Appellant has submitted no evidence to support his version of the negotiations. The evidence principally relied on by Appellant is the designation in the emergency reprocurement contract (awarded after the termination of Appellant's contract) of 48 miles as the one way distance for the trips which are shown as 40 miles in the modifications of Appellant's contract. However, the mileage figures in the subsequent contract documents were shown only as estimates and for information purposes, and bidders were cautioned to ascertain the mileage to be used in bidding based on their anticipated route of travel.

The only other evidence of Appellant's disagreement with the mileage surfaced approximately three months after the second amendment was executed. Even then, however, Appellant, while seeking an economic adjustment due to other factors, made no request for an overall adjustment of his compensation because of the alleged mileage discrepancy.

The contract amendments, which have been executed by the parties, appear on their face to be proper, and there is no basis in this record to deprive them of their normal binding effect. The evidence establishes that Appellant executed the amendments without expressing any reservations or reserving any future claim. It is also apparent from the record that Appellant thereafter accepted payments pursuant to the terms of those amendments. Because these circumstances constitute an accord and satisfaction, Appellant's claim for additional compensation under the amendments is barred. See Paul A. Mason, PSBCA No. 1449, 86-3 BCA ¶ 19,144 (and cases cited therein).

Accordingly, the appeal is denied.

James E. Lemert

Administrative Judge

Board Member

I concur

James A. Cohen

Administrative Judge

Chairman