September 3, 1992

Appeal of

GENEVA C. STONE

 

Under Contract No. HCR 99679

PSBCA No. 3104

 

APPEARANCE FOR APPELLANT

Geneva C. Stone

 

APPEARANCE FOR RESPONDENT

Elena V. Alejandre, Esq.

 

OPINION OF THE BOARD

 

Appellant, Geneva C. Stone, has appealed from the denial by the Contracting Officer of her claim for an increase in her contract payment based on an increased number of boxes on her mail delivery contract route.  The appeal is being decided on the record in accordance with 39 C.F.R § 955.12.

FINDINGS OF FACT

1.  In May 1991, Contract HCR 99679, for the delivery of mail between Soldotna and Sterling, Alaska, was renewed for a four-year period beginning July 1, 1991, at an annual rate of $31,659.33.  The contract was based on an estimate of 2,374 hours annually, which hours were based on serving 337 boxes along the route.  The contract required box delivery services during one round trip per day between the two post offices.  The schedule provided that Appellant would depart Soldotna at 9:50 a.m. and complete the round trip by 2:50 p.m.  Appellant was required by contract to report to the Soldotna post office in sufficient time to case and load the mail before departing on her route and to case and perform other work after returning from her route, before leaving for home.  The total time estimated in the contract for Appellant's work (casing, delivery, and other work) was eight hours and five minutes per day -- 7:15 a.m. to 3:20 p.m.  (Appeal File Tabs (AF) 1-3).

2.  Regarding adjustments in annual hours for service changes, the contract provided:

            "If the contracting officer and the contractor are unable to mutually agree                     to an adjustment in the annual hours for a service change the following      formula will apply.  Adjustments in the annual hours for casing and route operations will be computed using two constant factors.  Multiply the    number of additional boxes by 3.64 and the additional miles by 10.40.      

 

The sum of the two equals the new hours added to the contract."  (AF 3).

 

3.  Contract General Provision 11 provided that compensation "may be adjusted by mutual agreement" in accordance with Management Instruction PO-530-81-4 or its successor instruction, in this case Management Instruction PO-530-89-09.  In paragraph II.A, the latter Management Instruction provided:

            "It is Postal Service policy to allow . . . transportation contractors an     adjustment in the rate of compensation when changed economic    conditions or operational requirements occur over which the contractor       has little or no control, subject to the provisions of this instruction."

 

Paragraph V.H provided limits to adjustments as follows:

 

            "1. Adjustments in the rate of compensation for contractors using Form           7464 are limited to an amount that does not exceed the CPIW except for           fuel, insurance and labor costs. . . .

 

            2. Adjustments in the rate of compensation for non-CPIW line items is             limited to the actual cost changes documented by the contractor."

 

4.  On July 26, 1991, the Superintendent of Postal Operations (SPO) at Soldotna filled out a Route Data form indicating that the number of boxes on Appellant's route was 332 (AF 12).

5.  On or about August 16, 1991, Appellant submitted a Cost Statement (PS Form 74764-X) requesting an increase in the contract amount.  One portion of the requested increase was 36.5 additional hours of personal driving or supervisory time, corresponding closely to an increase of ten boxes in accordance with the formula in the contract (Finding 2).  The request was supported, in part, by Appellant's claim analysis which stated that the number of boxes on the route was 347, an increase of ten boxes above the 337 on which the contract was based.  The claim analysis also stated that the average time which Appellant spent on her route each day was 8 hours and 15 minutes.  (AF 13).

6.  On or about August 22, 1991, one of Respondent's employees conducted a physical inspection of Appellant's route by following Appellant along her route and counting the boxes.  The number counted was 338.  (AF 14, 24 (Declaration of Roger L. Schmidt, January 24, 199[2])).

7.  The record shows that Appellant normally arrived at the post office to begin casing the mail at approximately 8:00 a.m., departed on her route approximately at the scheduled time of 9:50 a.m., returned from her route at approximately 1:55 p.m., and left the post office at approximately 2:15 p.m.  Thus, the record shows that Appellant normally performed her work in approximately six hours and fifteen minutes -- significantly less time that was allotted by the contract schedule (see Finding 1).  (AF 3, 12, 12A, 15).

8.  By letter dated September 13, 1991, the Contracting Officer issued a decision denying the portion of Appellant's request for an increase based on an increased number of boxes.  The Contracting Officer stated that the number of boxes was 338, only one more than the number in the contract, rather than the 347 claimed by Appellant.  He also noted that Appellant was spending less time on the route than scheduled.  (AF 16).  Appellant filed a timely appeal.

9.  On or about May 7, 1992, the SPO at Soldotna conducted a second physical survey of Appellant's route by following her as she drove.  The SPO counted 320 boxes on the route.  The SPO reported that Appellant claimed 12 boxes were down due to highway maintenance, but the SPO stated he saw no down boxes on the route during the survey.  (Declaration of Dieter L. Jackson, May 8, 1992).

DECISION

Appellant, a mail transportation and delivery contractor, seeks an increase in the amount of her contract because of an alleged increase in the number of boxes on her route.  As the party asserting the claim, Appellant bears the burden of proving entitlement by a preponderance of the evidence.  John A. and Pamela A. Darcy, PSBCA No. 2810, 91-2 BCA ¶ 23,977; Newell Clothing Co., ASBCA No. 28,306, 86-3 BCA ¶ 19,093.

Appellant argues that she has shown that the number of boxes on her route increased from 337 to 347, and that she is entitled to an increase in contract amount based on a mathematical formula in the contract.  Appellant relies on her own statements regarding the number of boxes and also cites a count allegedly performed on her behalf by a representative of a mail contractors association.  Respondent argues that Appellant has failed to present sufficient evidence to substantiate her claim that the number of boxes has increased to 347, citing sworn declarations by two of Respondent's employees who conducted route surveys and concluded that the number of boxes was, at most, 338.

Respondent also cites the fact that Appellant completes her route in less time than indicated in the contract and argues that Appellant is not entitled to an increase because she has not shown that the claimed increase in boxes has caused an increase in the time necessary to run the route or that the time is in excess of that set out in the contract.  In reply, Appellant argues that the fact she takes less time to perform her work than is set out in the contract is due to her own initiative and should not preclude her from receiving an increase in accordance with the formula when the number of boxes increases.

We have considered the evidence and arguments and conclude that Appellant has failed to prove by a preponderance of the evidence that the number of boxes on her route has increased to 347, as she claims.  Appellant has relied on her own count, as reflected in the analysis form she submitted with her claim, and a count allegedly performed on her behalf by a third party.  Appellant's count is not supported by any other evidence which explains how the count was made or attests to its reliability.  The third-party count, allegedly made by the president of a mail contractors association, is mentioned only in Appellant's reply brief, and is not supported by an affidavit or statement by the person who made the count.  In contrast, Respondent has produced sworn declarations by two employees who conducted route surveys but counted fewer boxes than the number claimed by Appellant.  On balance, we cannot conclude that Appellant has met her burden of proving an increase in the number of boxes.

Because Appellant has not proven that the number of boxes increased, she is not entitled to an increase in compensation.  Accordingly, the appeal is denied. 

 

David I. Brochstein

Administrative Judge

Board Member

 

 

I concur

James A. Cohen

Administrative Judge

Chairman

 

 

I concur

James D. Finn, Jr.

Administrative Judge

Vice Chairman