Appeal of
CARLA JANE MILLER
Under Contract No. HCR 71963
PSBCA No. 2150
Appearance for Appellant
Carla Jane Miller
Appearance for Respondent
L. Donell Blanchard, Esq.
OPINION OF THE BOARD
This appeal is from the Contracting Officer's denial of Appellant's claim arising under her highway transportation contract with the United States Postal Service (Respondent) for additional compensation in the amount of $17,538.56. This appeal is being processed under the Board's accelerated procedure of 39 C.F.R. §855.36. Both parties have waived a hearing and submitted the appeal on the record.
FINDINGS OF FACT
1. Appellant, Carla Jane Miller, was awarded
Contract No. HCR 71963 on
2. Appellant bid on the basis of 2,016 hours for herself (40 hours per week) and 416 hours for a helper (8 hours per week), using an hourly rate of $6.25 for both herself and her helper (AF Tab C-3). The annual mileage was estimated by Appellant to be 32,771.2 miles at $.06 per mile, and the yearly fuel costs as $2,731.25, for an annual contract rate of $19,872.52 (id.).
3. The contract included PS Form 7407 (Oct. 1981), Basic Surface Transportation Services Contract General Provisions, which included a Claims and Disputes clause, and the following provisions relating to adjustments in contract compensation:
"11. Adjustment of Compensation. --. . .
(a) (1) Basis for Adjustment
Contract
compensation may be adjusted, by mutual agreement of the Contracting Officer
and the Contractor in accordance
with the provisions of this clause and Management
Instruction PO-530 81-4,
* * *
(b) A change in compensation for any other contract not provided for in (a) above, shall be accomplished by a formal amendment to the contract.
12. Changes in Service
(a) Service Changes
(1) Insignificant Minor Service Changes. --
The Contracting Officer may, at any time, without consulting the Contractor, issue orders directing the extension, curtailment, change in line of travel, revision of route, or increase or decrease in frequency of service or number of trips and fixing an adjustment in the Contractor's compensation which increase the Contractors rate of pay by no more than 1% or $1,000, whichever is less. If the Contractor believes the increased costs of providing the service required by the order exceeds the increase made in compensation, he may request an adjustment of compensation for the service change.
(2) Other service changes.
Service changes other than insignificant minor service changes may be made if the terms of the change, including increase or decrease in compensation, are agreed to by the Contracting Officer and the Contractor. Such changes shall be executed on Form 7406, Amendment to Transportation Contract." (AF Tab C-19, 20).
4. Pursuant to General Provision 11(a)(1) (see
Finding 3), Management Instruction PO-530-82-6,
5. By letter dated December 1, 1983, Appellant submitted a claim to Respondent's Contracting Officer for 381 hours of overtime and two hours extra help per day, in an amount said to total $7,371,88 (AF Tab B-3, Encl. 6, (SAF); App. Reply Br., Attach 5). In the letter Appellant stated that nothing in the bid forms stated the number of hours per day required to perform the contract, or that two persons were required in the morning (id.). She added that she was refused permission to inspect the route and to ride with the carrier before bidding (id.).
6. There is no evidence of a reply by Respondent
to the claim dated
7. A subsequent amendment effective March 3, 1984, granted $292.48 additional compensation per year, and seven additional minutes because the route was extended 1.7 miles to serve five additional families (AF Tab D-15). This increased the total per annum amount to $22,000 (id.). Two later adjustments increased the annual amounts to $22,673, and $23,086 (see AF Tabs D-16, 17).
8. A box delivery contract route survey, dated
9. By letter dated
10.
On
11.
The renewal contract between Appellant and Respondent was executed on
12.
An order dated
13. Appellant's claim dated August 18, 1987, is captioned "Compensation for extra help and Route reduction" and, in addition to making a claim under the renewal contract, appears to incorporate (by virtue of the enclosures (SAF)) the substance of her two previous claims. In the letter Appellant states that she had planned not to renew her contract, but was misled by promises concerning a reduction of the route made by the Contracting Officer. There is no evidence in the record concerning the alleged promise. With regard to the additional compensation, Appellant enclosed a memorandum dated June 18, 1987, entitled "Additional Compensation for HCR 71963," from the Mount Ida Postmaster to the Transportation Management Office, in which the Postmaster recommended that consideration be given for additional compensation for the period of time commencing July 5, 1986, through April 10, 1987, for 304 hours, 48 minutes (rather than the 339 hours, 45 minutes claimed by Appellant) (AF Tab A-1, 2, 4; AF Tab B-3, Encl. 1 (SAF)).
14.
In a final decision dated
"Solicitation
380-144-83 was issued on
[The Contracting Officer reviewed the various adjustments to Appellant's contracts, summarizing as follows]:
". . . there has been an increase in hours of 1272; increase in wages of $7367. Approximately 436 of the additional hours and $2500 of the wage increase was due to service changes or economic increases. We have already added 836 to this contract that was not due to service changes, since it was awarded to you."
[The Contracting Officer also cited the Mount Ida Postmaster's observation that]:
"When you carry the route by yourself, the route is generally carried within the allotted time. Postmaster Standridge also states that you have extra help come in almost every day although at times the mail volume doe not justify it." (AF Tab B-1, 2).
15. A timely appeal was filed with the Board.
16. In the complaint Appellant describes her claim as consisting of 381 actual hours per year beyond those recognized in the contract, at $6.25 per hour, or $2,281.25 per year; 608 additional hours per year for extra help at $6.25, or $3,800 per year. These amounts total $6,181.25, which is multiplied by 2.5 years to get $15,453.12, as a sub-total. To that is added 304 hours at $6.86, or $2,085.44, for the period July 1986 through April 1987. The total claimed is $17,538.56.
DECISION
Although the parameters are not precisely articulated, the essence of Appellant's claim is that the time of performing her contractual obligations exceeded the amount on which she bid plus the adjustments granted by the Contracting Officer. For the hours which exceeded those recognized in the contract Appellant claims entitlement at the hourly rate. Appellant bid on the basis of 2,016 annual hours of her time, and 416 hours of a helper's time, asserting she was unaware of Respondent's estimate of 2,813 annual hours.
The Contracting Officer in the decision appealed from finds that the Mount Ida Postmaster apprised Appellant of the time required for the route prior to bidding, and that, despite that information, she bid 797 fewer hours than the schedule showed. The Postmaster in a memorandum prepared shortly after the award states that he advised all prospective bidders of the time required for the contract (see Finding 6). Furthermore, the solicitation on which Appellant bid shown an average daily time for the route of 9 hours and 15 minutes, which when multiplied by the trips per year indicates that 2,813 annual hours would be required (Finding 1).
This evidence establishes that Appellant either was aware or should have been aware of the time requirements for the contract when she bid. In estimating only 2,016 annual hours for herself and 416 annual hours for a helper, Appellant either underbid the contract or overestimated her anticipated efficiency in performing the contract.
During the initial term of the contract the Contracting Officer granted several increases in the amount of Appellant's compensation beyond those allowable because of service changes or economic adjustments. While these equitable increases were not required under the contract, they were within the Contracting Officer's discretion, and served to ameliorate the effect of her underestimate of hours needed to perform the contract. We conclude that with regard to the initial term of Appellant's contract (November 26, 1983, to June 30, 1986), there is no entitlement to any further adjustment of compensation.
In view of this conclusion, it is unnecessary to address Respondent's argument that Appellant's claim under the initial contract is barred by an accord and satisfaction resulting from her execution of the renewal contract.
Under the terms of the renewal contract, except for changes in service, or economic conditions beyond the contractor's control, no adjustments for cost changes are permissible during the first seven accounting periods, i.e., approximately 28 weeks (see Finding 4). Because there is no evidence of a service change in connection with Appellant's claim under the renewal contract, there is no basis for any entitlement through mid-January 1987. Beyond that date Appellant's evidence (corroborated by the Mount Ida Postmaster) is to the effect that she and her helpers expended more time to perform the contract than was reflected in her cost estimate when she agreed to the renewal.
Appellant agreed to perform the services required by the renewal contract for the specified fixed price based on her estimate that 3,233 hours were required annually. That Appellant's time to perform during this period was greater than she anticipated does not, of itself, establish a service change that would require an increase in compensation. Since we found no other evidence of such a service change or other condition that would justify an adjustment, the last portion of Appellant's claim must also be denied.
The appeal is denied.
James E. Lemert
Administrative Judge
Board Member
I concur
James A. Cohen
Administrative Judge
Chairman