March 8, 1994
Appeal of
SHARON F. GRAVES
Under Contract No. HCR 96166
PSBCA No. 3399
APPEARANCE FOR APPELLANT:
Sharon F. Graves
APPEARANCE FOR RESPONDENT:
Mark Brent Ezersky, Esq.
OPINION OF THE BOARD
Appellant, Sharon F. Graves, has appealed the partial denial of her claim for an adjustment to her mail box delivery contract with Respondent, United States Postal Service. At the request of the parties, the appeal has been submitted on the written record pursuant to 39 C.F.R. § 955.12.
Findings of Fact
1. On April 27, 1992, Respondent issued Solicitation No. 948‑074‑92 requesting bids to perform mail box delivery service from the Westwood, California Post Office (Appeal File Tab ("AF") 15).
2. The solicitation described the route and advised of the estimated annual miles and hours (2425) to perform the service. The solicitation noted, "The estimated annual hours are approximately the number of hours needed to operate the trips as they are shown in the schedule and loading and unloading. Prior to submitting a bid, the bidder must determine the actual hours." (AF 15, Section 12).
3. The solicitation described the requirements to case the mail into delivery order before leaving the post office as follows:
"The estimated annual hours include casing time of 451 total boxes cased as follows:
POST OFFICE NO. OF BOXES
1. CONTRACTOR CASING: Westwood PO ____610_____
2. POSTAL EMPLOYEE CASING: ___________ ____________" (AF 15, Section 12)
4. The solicitation directed bidders to the administrative postmaster for additional information:
"Further information regarding this solicitation may be obtained from the Contracting Officer or administrative official designated in Section 4 or 6 of this solicitation. Information obtained from any other sources may be incorrect. Oral explanations or instructions given before the award of a contract will not be binding." (AF 15, Section 18.B.).
Section 6 of the solicitation identified the Westwood Postmaster as the administrative official (AF 15, Section 6). Additionally, the solicitation cautioned,
"Before submitting a bid, the bidder should contact the Administrative Postmaster at Westwood, California for information concerning the casing and delivery of the mail." (AF 15, Section 13.A.)
5. Before submitting her bid, Appellant asked the Westwood Postmaster about the apparent conflict in the solicitation: while the annual hours of the contract were said to include casing time for 451 boxes, the number of boxes the contractor would be required to case was listed as 610 (Finding 2). The postmaster advised Appellant that there were approximately 475 boxes on the route and that the 610 number must have included the boxes at the Peninsula Village Community Post Office ("CPO"). The CPO was served by the route, but the contractor was not required to case and deliver the mail for the individual boxes at the CPO. (AF 7, 13, 15 (Attachment A), Declaration of Linda D. Rubio dated June 15, 1993; see Declaration of Guy P. Graves dated June 15, 1993; contra Declaration of Ray L. Gettner dated June 8, 1993).
6. No written explanation of the discrepancy was issued before award of the contract.
7. Appellant submitted her bid on May 23, 1992, and was the low bidder. On June 19, 1992, she was awarded the contract for the term July 1, 1992, through June 30, 1996, at an annual rate of $22,000 (AF 14).
8. The contract included a formula for calculating an adjustment in compensation resulting from a change in the number of boxes served on the route:
"Adjustments In Annual Hours: 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 figures equals the new hours added to the contract." (AF 15, Section 12).
9. Within two weeks after beginning service on the route, Appellant complained that there were 641 boxes on her route, far more than the 451 she said she was led to expect by the solicitation and the explanation she received from the postmaster before bidding. She stated she could not perform the route within the time and for the amount stated in her contract (AF 13).
10. As of July 1, 1992, the first day of her contract performance, there were approximately 653 boxes on the route (AF 3, 4, 6, 9, 13; Declaration of Robert J. Lee dated June 9, 1993, ¶ 4).
11. The minimum vehicle requirements stated in the solicitation were for a passenger car (AF 15, Section 15). Appellant provides the service with a right-hand drive jeep (AF 9, 13).
12. In the years before Appellant was awarded the contract, Respondent regularly let a temporary box delivery contract for the high volume summer months for delivery to approximately 100 of the boxes on the route. This has not been done since Appellant was awarded the contract. (Id.).
13. On September 21, 1992, Appellant asked the contracting officer for an adjustment to her contract based on the number of boxes she served over the 451 stated in the solicitation. Appellant again pointed out that she had been misled by the postmaster's pre-bid explanation regarding the number of boxes on the route. She also complained that the route could not have been performed using the minimum specified vehicle, a passenger car, and that she had purchased a right-hand drive jeep to allow her to perform. (AF 7).
14. The contracting officer responded that 610 boxes would be the basis for any adjustment and that the language in the solicitation referring to 451 boxes "was a typing error." He also pointed out that she had voluntarily chosen to use a vehicle larger than the minimum specified and that she would not be compensated for it. (AF 5).
15. In an undated letter received by Respondent on November 10, 1992, Appellant again claimed an adjustment, based on the contract formula, for the difference between the actual number of boxes on the route (which she contended was 663) and 451. She also requested an adjustment due to an increase in her insurance costs. (AF 4).
16. In a December 15, 1992 final decision, the contracting officer partially denied the claim, granting an increase based on the difference between the 653 boxes he conceded were on the route and the 610 figure in the solicitation, but denying any adjustment for boxes between 451 and 610 (AF 3). The contracting officer did not act on the claim for an insurance adjustment; relying on a "partial moratorium on cost adjustments for highway contracts," he advised that that part of her request "cannot be processed." (Id.). This appeal followed.
Decision
Appellant argues that she reasonably relied on information from the administrative official identified in the solicitation in resolving the ambiguous statement of the number of boxes on the route. She contends she based her bid on casing and delivering mail for 451 boxes, and that she is entitled to an adjustment under the formula in the contract to reflect the actual number of boxes, which far exceeds the 451 she expected. Appellant also complains that she was not afforded the same relief provided predecessor contractors on her route who received assistance during the summer months when a temporary contract was let to deliver to about 100 of the boxes on the route. She also argues that the route could not be performed using the passenger car specified as the minimum vehicle, and that the vehicle she uses, a jeep, is required. Although Appellant has asserted various theories for her recovery, the only relief she has sought is an adjustment to her contract using the formula in the contract to recognize the difference between the 451 boxes on which she contends she bid and the current number of boxes on the route.
Respondent argues that Appellant failed to seek clarification of the patent ambiguity regarding the number of mail boxes on the route. Respondent denies Appellant sought the postmaster's clarification, and that, therefore, she is bound by the 610 figure in the solicitation. Even if the pre-bid discussion with the postmaster had occurred as Appellant maintains, Respondent contends she should still not recover because there was no written change made to the solicitation clarifying the number of boxes on the route. Respondent also contends Appellant has not proven by a preponderance of the evidence that she incurred additional costs because of the additional boxes on the route.
In concluding that Appellant sought clarification of the conflict in the solicitation (Finding 4), we have rejected Respondent's challenges to Appellant's evidence. Respondent argues that no weight should be given to Ms. Rubio's declaration given under penalty of perjury because the declaration does not identify who Ms. Rubio is or her relationship to this dispute. In her declaration, however, Ms. Rubio states that she was at the post office and witnessed and heard a conversation on about May 12, 1992, in which the postmaster told Appellant the route contained approximately 475 boxes and that the 610 figure included the Peninsula CPO boxes. Ms. Rubio established personal knowledge of the event about which she testified, and her declaration corroborates Appellant's unsworn statements regarding the conversation. See Federal Rules of Evidence, Rule 602.
Respondent questions the relevance of Mr. Graves' declaration because it recounts a conversation with the postmaster after award. In that declaration, Mr. Graves states under penalty of perjury that in response to Mr. Graves' inquiry only a few days after Appellant began performing the route, the postmaster told Mr. Graves that there were approximately 475 boxes on the route. The postmaster did not deny making that statement, and even though not a pre-bid representation, the postmaster's statement to Mr. Graves is consistent with what Appellant contends she was told and what Ms. Rubio says she heard the postmaster say to Appellant. It is admissible and supports Appellant's version of the events. The postmaster denies any inquiry from Appellant and denies advising her regarding the number of boxes on the route, however, we have accepted Appellant's evidence on this point.
When Appellant noticed the conflict in the solicitation regarding the number of boxes on the route, she asked the Westwood Postmaster about it. That was the course directed in the solicitation and required of potential bidders under such circumstances. See Interstate Gen. Gov't Contractors, Inc. v. Stone, 980 F.2d 1433, 1436 (Fed. Cir. 1992); James A. Mann, Inc. v. United States, 535 F.2d 51, 61 (Ct. Cl. 1976); Foley and Assoc. Constr. Co., PSBCA No. 2851, 92-1 BCA ¶ 24,397 aff'd on reconsideration 92-1 BCA ¶ 24,728. The postmaster's advice that there were approximately 475 boxes on the route was consistent with the lower figure of 451 listed in the solicitation as the number of boxes.
Respondent correctly points out, however, that the solicitation specifically provided that oral explanations would not be binding, and it is undisputed that a written clarification of the conflict was never issued by Respondent. However, notwithstanding Appellant's inquiry, Respondent did not amend the solicitation or otherwise provide written clarification of the number of boxes on the route. Under such circumstances, Respondent bears the risk that the successful bidder's interpretation will prevail, so long as that interpretation is within the zone of reasonableness. Plano Bridge & Culvert, ASBCA No. 35497, 90-3 BCA ¶ 23,224 at 116,549; Triple "A" South, ASBCA No. 27736, 86-2 BCA ¶ 18,968; Delta Elec. Constr. Co., ASBCA No. 14324, 71-1 BCA ¶ 8830.
It was reasonable for Appellant to accept the explanation from the person identified in the solicitation as the contact for further information. Respondent has not argued that the postmaster lacked authority to give explanations of the contract requirements, and the subject of Appellant's inquiry, the number of boxes on the route, was peculiarly within the knowledge of the postmaster. See Max Drill, Inc. v. United States, 427 F.2d 1233, 1243 (Ct. Cl. 1970). Moreover, the postmaster's advice did not vary the explicit requirements of the solicitation; absent some clarification, it was impossible to determine from the words of the contract what was really meant. See Id. n. 6. Once Appellant was told the route contained approximately 475 boxes and that the figure of 610 in the solicitation must include boxes she did not have to serve, she was reasonable in interpreting the solicitation to call for bids to deliver a route
containing 451 boxes.[1] See Id.; Cf. Unidynamics/St. Louis, Inc., ASBCA No. 17592, 73-2 BCA ¶ 10,360 at 48,933.
In order to prevail, Appellant must also show that she relied on her interpretation that there were 451 boxes on the route when preparing her bid. Fruin-Colnon Corp. v. United States, 912 F.2d 1426, 1430 (Fed. Cir. 1990); Edward R. Marden Corp. v. United States, 803 F.2d 701, 705 (Fed. Cir. 1986); James A. Mann, Inc. v. United States, 535 F.2d at 62; John W. Bradbary, PSBCA No. 3126, 93-2 BCA ¶ 25,563 at 127,325; Nab-Lord Assoc., PSBCA No. 415, 80-2 BCA ¶ 14,645 at 72,248. However, as stated by the Armed Services Board in Quiller Construction, Company, Inc., ASBCA No. 22556, 80‑1 BCA ¶ 14,427 at 71,127:
"The rule requiring contractor reliance in bid or performance on its interpretation of a disputed term does not require a mathematical link between that interpretation and a particular amount in the bid. See Dale Ingram, Inc. v. United States, 201 Ct. Cl. 56, 72, 475 F.2d 1177, 1185 (1973), and cases cited therein. There are many factors which go into bidding decisions which cannot be shown to have affected the bid by any specific amount, but which nevertheless may influence the contractor as to either the total amount bid, bidding strategy or the decision to submit a bid."
Appellant's bid breakdown on PS Form 7468-A, Highway Transportation Contract -- Bid or Renewal Worksheet, which was submitted with her bid, bases her total labor costs on the 2425 annual hours listed in the solicitation. Because Appellant reasonably believed the 2425 hours were related to delivery to 451 boxes and there would be no reason for Appellant to have bid on 610 boxes once she received the explanation from the postmaster, we accept her unsworn statements that she calculated her bid based on the lower figure in the solicitation. Cf. Ogden Allied Services Corp., ASBCA No. 40823, 91-1 BCA
¶ 23,455.[2] Appellant has demonstrated she relied on there being 451 boxes on the route when she prepared her bid.
Accordingly, Appellant is entitled to an adjustment to the contract price to reflect the boxes over 451 she serves on the route. Appellant may recover pursuant to the contract formula for calculating such an adjustment, and, therefore, Respondent's argument that Appellant has failed to prove precisely the extent of her extra costs is irrelevant.
The appeal is sustained. The matter is remanded to the contracting officer for calculation of an adjustment based on an original contract for delivery to 451 boxes on the route. Appellant is entitled to interest as provided in the Contract Disputes Act of 1978 only on the adjustment for the difference between 451 and 610 boxes as the record reflects that there has not been any dispute regarding Appellant's entitlement to an adjustment for boxes over 610. Dawco Constr., Inc. v. United States, 930 F.2d 872, 878-79 (Fed. Cir. 1991); Vienna/Vienna, PSBCA No. 2505, 2816, 92-3 BCA ¶ 25,042 at 124,831.[3]
Norman D. Menegat
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
James D. Finn, Jr.
Administrative Law Judge
Vice Chairman
[1] Our holding does not address whether Respondent could bind prospective bidders to oral interpretations given by the administrative postmaster in violation of the requirement that explanations must be in writing to be binding. See M.G.C. Co., DOT BCA Nos. 1553, 1564, 1592, 86-1 BCA ¶ 18,571 at 93,270.
[2] The Worksheet does not ask for information related to the number of boxes on which Appellant was bidding, and it is unlikely that more detailed bid documents, even if prepared, would have shown a specific reference to the number of boxes on the route. Therefore, the absence of direct evidence in the bid documents that Appellant used 451 boxes in figuring her bid is not dispositive. Cf. Malloy Constr. Co., ASBCA No. 25055, 82-2 BCA ¶ 16,104.
[3] In view of this resolution, we need not address Appellant's arguments regarding the vehicle requirements and the summer help provided previous contractors as she has been afforded all the relief she asked for in this proceeding. For two reasons, we have not considered Appellant's request for an adjustment to reflect increased insurance costs. First, Appellant did not include that claim in her complaint or present any evidence regarding her insurance costs. Second, even though the request for an adjustment was included with her claim related to the number of boxes on the route, there is no evidence it was anything more than a routine request for an adjustment that was not in dispute when submitted. Id.