December 10, 1993
Appeal of
GLENDA R. WHITAKER
Under Contract No. HCR 65068
PSBCA No. 3443
APPEARANCE FOR APPELLANT:
Glenda R. Whitaker, pro se
APPEARANCE FOR RESPONDENT:
Julie A. Holvik, Esq.
OPINION OF THE BOARD
Appellant, Glenda R. Whitaker, has appealed from a decision of the Contracting Officer denying her claim for additional compensation for work performed under her contract with Respondent, United States Postal Service. Appellant alleges she was required to perform mail sorting work not covered by her box delivery contract. The appeal is being processed under the Board's Accelerated Procedure, 39 C.F.R. §965.36. Both entitlement and quantum are before the Board in this proceeding.
FINDINGS OF FACT
1. Contract HCR 65068, for box delivery services originating from the Eldon, Missouri Post Office, was awarded to Appellant on June 4, 1991. The contract was for the period of July 1, 1991, through June 30, 1995, at an annual rate (at the time of award) of $15,483. The notice of award, signed by the Contracting Officer, informed Appellant that the Administrative Official for her route was the Eldon Postmaster, and stated, "If you have any concerns or questions relating to route operations, the Postmaster will be glad to answer them." (Appeal File Tabs (AF) 27, 29).
2. In the solicitation which led to and became part of the contract, Appellant's work was described generally as including casing, loading, transporting, delivering, and collecting mail. The solicitation/contract did not expressly require Appellant to sort mail.[1] (AF 28, 33).
3. The solicitation contained an estimate of the hours needed to perform the contract, but advised bidders to determine the actual time required for performance and to contact the postmaster at Eldon for information concerning the casing and delivery of the mail before bidding. PS Form 7469T, "Highway ... Contract Information and Instructions," which was part of the solicitation and contract also noted that bidders "should familiarize themselves with the service to be performed, ... so as to avoid misapprehension or cause for complaint thereafter." Before bidding, Appellant drove the delivery portion of the route, but did not visit the post office and ask about the inside portion of the work. She did, however, read a booklet that accompanied the solicitation and described what was meant by casing the mail. (AF 28, 33; Tr. 93).
4. Appellant's route (designated HCR 2) was one of two routes serving the Rocky Mount, Missouri area and operating out of the Eldon Post Office. At the time Appellant began performance of her contract, the other Rocky Mount route (designated HCR 3) was operated by Carol Scott, with assistance from her husband. Prior to 1990, the Scotts had operated both Rocky Mount routes. From 1990 until Appellant began her contract in 1991, HCR 2 had been operated by another highway contractor. In July 1992, HCR 3 was transferred from Carol Scott to another contractor. (Stipulation paragraphs (Stip.) 2, 4-8; Tr. 64).
5. Mail for Rocky Mount had to be sorted at the Eldon Post Office for three destinations: HCR 2, HCR 3, and a contract postal unit in Rocky Mount containing post office boxes. Beginning at least as early as 1988 the highway contractors serving Rocky Mount had sorted the Rocky Mount mail in addition to casing it.[2] Mail delivered by Postal Service city and rural carriers operating out of Eldon was (and is) sorted by Postal Service clerks and was only cased by the carriers. The mail delivered by another (non-Rocky Mount) contractor operating out of Eldon is also sorted by the Postal Service clerks. (Stip. 9, 10; Tr. 15, 30, 128, 130, 145).
6. In sorting and casing the Rocky Mount mail, Appellant and the highway contractors for HCR 3 would first open the separate cage in which all the Rocky Mount mail was delivered to the Eldon Post Office. Each contractor would then take a portion of the mail, case any pieces belonging to that contractor and set aside any mail which belonged to the other contractor or to the contract postal unit. In this way, sorting and casing were accomplished as part of the same operation, although Appellant had to handle more mail and spend more time than would have been necessary had the mail been sorted before being furnished to her, as was done for the city and rural carriers. From the beginning of Appellant's contract until June 1992 there were three people sorting the Rocky Mount mail -- the Scotts and Appellant. Beginning in June 1992, when Carol Scott lost her contract, there were only two people available to do the sorting -- Appellant and the replacement contractor. (Tr. 19, 21, 28, 89, 98, 128, 154).
7. From the time she began performing her contract, Appellant, who was an inexperienced contractor, questioned whether sorting was part of her contract work. She asked the Eldon Postmaster and repeatedly asked the question of the person who administered her contract in the Postal Service's Transportation Management Service Center (TMSC) and who worked directly for the Contracting Officer. She was told by both persons that sorting was a contract requirement and that she had to do it. The Scotts had also questioned whether sorting was part of their contract work, but did not pursue the matter, stating that they were willing to do the sorting because in that way they were able to get out of the post office earlier, begin deliveries earlier, and finish earlier. (Tr. 28, 29, 33, 34, 38, 61, 62, 75, 83, 81, 82, 85, 88, 145).
8. By letter to the TMSC dated September 10, 1992, Appellant asked that she be compensated in an amount representing one-half hour per day for sorting the mail because of the change from three people to two, which had occurred in June 1992 when the Scotts' contract had been transferred. Until he received Appellant's letter, the Contracting Officer was not aware that contractors were sorting the mail (AF 24; Tr. 172).
9. After several exchanges of correspondence and telephone calls, the Manager of Distribution Networks at the TMSC wrote Appellant a letter, dated December 15, 1992, denying her claim on the basis that she was performing the contract within the hours estimated in the solicitation and that no additional time was justified. However, the letter also stated that the sorting which Appellant had been performing had not been approved by the TMSC and was not considered part of a contractor's normal duties. (AF 15, 16-18, 21-23).
10. On December 18, 1992, Postal Service employees at the Eldon Post Office took over sorting the mail that had previously been sorted by the contractors, including Appellant (AF 13; Tr. 134).
11. By letter dated January 25, 1993, to the Contracting Officer, Appellant informed him that she wished to appeal the letter denying her claim. She also stated that she wished to amend her claim to one-and-one-quarter hours per work day, asserting that the sorting took that long to perform. In a January 28, 1993 letter, the Contracting Officer responded that he would consider her letter a request to reconsider the earlier decision and asked her to document her claim of one-and-one-quarter hours per day. In a letter dated February 21, 1993, Appellant provided the Contracting Officer with several pages listing the days she had worked. She calculated her claim on the basis of an estimate[3] of one-and-one-quarter hours on each of her work days multiplied by $13.00 per hour, which she asserted was the wage paid clerks at the post office, for a total claim of $7,231.25. (AF 9, 11, 12)
12. In a letter dated March 19, 1993, the Contracting Officer denied Appellant's claim. The basis for the denial was that there had been no changes in contract performance after award. The Contracting Officer concluded that if Appellant had thoroughly familiarized herself with the conditions before bidding, she would have discovered that the previous box delivery contractors sorted the mail. By letter dated April 27, 1993, Appellant appealed the denial of her claim. (AF 4, 8).
13. One-half hour is the amount of time estimated by Appellant to have been added to her casing time by combining sorting and casing, which was the method she used. One-and-one-quarter hours is the amount of time Appellant estimated it would have taken her to sort the Rocky Mount mail had she done so as a separate operation before casing her mail. Appellant sorted the mail from the inception of her contract until December 17, 1992. During this period Appellant worked (and sorted mail) on 445 days. (Tr. 85, 86; AF 9).
14. The time actually required by Postal Service personnel to sort the Rocky Mount mail, including both the morning and afternoon sorts, is between one and one-and-one-half hours (Tr. 134, 136).
15. In connection with contract award, Appellant submitted a "Short Form -- Cost Statement" (PS Form 7468-B) which is used to establish a base from which adjustments to compensation are made during the course of the contract. In the cost statement, Appellant listed her own anticipated hourly wage for "driving or supervision" as $5.66 for 966 hours. She also listed 500 hours for a hired driver at an hourly wage of $8.46 although she did not actually plan to hire anyone to drive the route for her. Thus, the total of the hours indicated for contract performance was 1466, which was 125 hours below the hours estimated by Respondent in the solicitation. (AF 28, 30, 33).
DECISION
Appellant argues that the mail sorting she performed in connection with her box delivery contract was work not required by the contract. Appellant contends that she raised the question of whether sorting was required by her contract early and often during the time she was doing the work but was told incorrectly that it was part of her contract duties. She argues that the evidence shows she spent one-and-one-quarter hours per day sorting mail that should have been sorted by Postal Service clerks and that, therefore, she should be paid for that work at the clerks' wage rate.
Respondent argues only that Appellant should not recover because the sorting work was not authorized by the Contracting Officer, but was required by the Eldon Postmaster, who lacked the authority to add work or adjust compensation of contractors. Respondent argues that Appellant should not have relied on the unauthorized representations of the postmaster that the work was required by her contract but should have raised her concern directly with the Contracting Officer. Respondent also notes that when the Contracting Officer learned that the contractors were sorting mail, he took action to discontinue the practice. Finally, Respondent argues that the Board has no authority to award recovery on a quantum meruit or contract-implied-in-law theory of recovery.
In relying solely on an argument based on the postmaster's lack of authority, Respondent implicitly concedes that the sorting performed by Appellant was not a requirement of her contract. From the evidence presented we would clearly reach the same conclusion. We note also that by shifting the work from Appellant to the Postal Service clerks without seeking any corresponding reduction in the contract price or other consideration, the Contracting Officer in effect agreed that sorting was not part of Appellant's contract, notwithstanding his contrary position in denying the claim [see Finding 12].
As to the amount of recovery, Respondent argues that Appellant has not shown that she is entitled to one-and-one-quarter hours per day, since that amount of time is based on separately sorting the mail, while Appellant actually sorted and cased the mail in one operation, a less time-consuming method. Respondent also notes that the time claimed by Appellant did not change even though during the first year there were three people sorting and after June 1992 there were only two.
Respondent is correct in arguing that the Contracting Officer did not personally authorize or direct that Appellant perform the sorting function. However, Appellant repeatedly raised the question of whether sorting was a requirement of her contract with the Eldon Postmaster (to whom she had been told to direct questions relating to route operations [Finding 1]) and to the person who administered her contract at the TMSC and worked directly for the Contracting Officer. Appellant, an inexperienced contractor, was told by both persons that sorting was a contract requirement. As Respondent now concedes, that advice was incorrect and caused Appellant to perform work not in her contract. As stated in Emerson-Sack-Warner, ASBCA No. 6004, 61-2 BCA ¶ 3248 at 16,827:
"Where as a result of the Government's misinterpretation of contract provision a contractor is required to perform more or different work, ... the contractor is entitled to equitable adjustments ...."
See also O'Neal Construction Co., ENG BCA No. 5038, 87-2 BCA ¶ 19,935 at 100,890. In this instance, misinterpretation of the contract requirements by the postmaster and the contract administrator caused Appellant to perform work not required by the terms of her contract.
While it is true that a contractor has a duty to protest and may not simply accede to directions by Government personnel to perform work that the contractor considers to be in excess of the contract requirements, J.A. Ross & Co. v. United States, 126 Ct. Cl. 323, 115 F. Supp. 187 (1953), in this instance Appellant did protest. Appellant's repeated questioning of the requirement to do the extra work, while not made to the Contracting Officer, was made to the postmaster, to whom she had been told by the Contracting Officer to direct questions concerning her route, and to the person at the TMSC who administered her contract for the Contracting Officer. Knowledge of Appellant's protests, having been communicated to those authorized by the Contracting Officer to administer the contract, may be imputed to the Contracting Officer. Therefore, Appellant's failure to communicate directly with the Contracting Officer does not bar recovery. See e.g., Powers Regulator Co., GSBCA Nos. 4668, 4778, 4838, 80-2 BCA ¶ 14,463; Davis Decorating Service, ASBCA No. 17342, 73-2 BCA ¶ 10,107. We therefore conclude that Appellant may recover for the time she spent sorting the mail.
For a number of reasons, however, we do not accept Appellant's claim that she is entitled to compensation for one‑and‑one‑quarter hours per day. Appellant did not keep contemporaneous records of the time she spent, but relied on an after-the-fact estimate that she provided to the Contracting Officer. The evidence shows that sorting all the Rocky Mount mail, when performed as a separate operation, can be completed in from one to one‑and‑one‑half hours. Appellant, however, sorted only a portion of the mail (since the other contractor(s) sorted at the same time) and did her sorting at the same time she cased the mail. Therefore, we conclude the time she expended in sorting the mail was less than the amount she has claimed.
The record available in this appeal does not allow calculation of the amount of time Appellant spent sorting the mail with any great precision. However, where, as here, the record is deficient but no question exists that some "damage" occurred, the Board will make an award on a jury verdict basis. Nab-Lord Associates, PSBCA No. 923, 83-2 BCA ¶ 16,807. See Golden West Builders, PSBCA No. 3378, 93-3 BCA ¶ 26,195. Appellant testified that her estimate of the additional time spent sorting the mail, using the method she actually employed, was one-half hour. That testimony was not rebutted. Appellant's estimate is also confirmed by a comparison between the average time Appellant spent in the post office in the mornings in January 1992, when she and the other contractors were sorting the mail, and the average time she spent at the post office in the mornings in January 1993, shortly after the Postal Service clerks had taken over the task of sorting (see AF-13). The record does not, however, provide a sufficient basis for calculating any increase in time caused by the June 1992 change from three "sorters" to two [Finding 6]. Accordingly, we utilize Appellant's estimate of one-half hour per day as the additional time for which she is to be compensated.
Although Appellant may have been performing clerk's work, she is not entitled to receive the clerk's wage rate for the additional hours. The rate at which Appellant is to be compensated is the rate stated in her short form cost statement for her own time, or $5.66 per hour. Under the contract the amounts in the cost statement are to be used as the basis for adjustments to the contract, and Appellant has not persuaded us that another rate should apply.
Accordingly, Appellant is to receive $1259.35 ($5.66 per hour x 1/2 hour per day x 445 days) plus interest under the Contract Disputes Act. To that extent, the appeal is sustained.
David I. Brochstein
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
Chairman
[1] "Sorting" mail means separating the mail into portions for different carriers so that each carrier receives only the mail for his or her route. "Casing" of mail is the next step in the process and refers to arranging the mail for a particular carrier's route in delivery sequence order. (Tr. 11, 12, 19, 29, 59, 144, 145).
[2] The two highway contractors sorted the mail for all three Rocky Mount destinations, but there is no evidence that they cased the mail intended for the contract postal unit.
[3] Appellant did not keep contemporaneous records of her actual time (Tr. 98).