November 30, 1995

Appeal of:

SWEARINGEN SERVICES, INC.

Under Contract No.  475630-94-P-1449

PSBCA No.  3715

APPEARANCE FOR APPELLANT:

Tracy T. Swearingen, Sr.

APPEARANCE FOR RESPONDENT:

Glenn Smith, Esq.

OPINION OF THE BOARD ON MOTION FOR RECONSIDERATION

Appellant has filed a Motion for Reconsideration of the Board’s July 13, 1995 decision, Swearingen Services, Inc., PSBCA No. 3715,  BCA , which denied its claim for increased compensation as the result of a change order issued under its cleaning services contract.  As the basis for its motion, Appellant contends that the issuance of modification no. 2 of the contract by Respondent did in fact, contrary to the Board’s opinion, cause Appellant to incur additional costs which it claims are recoverable under its contract.  In support of this contention Appellant contends that certain evidence which it supplied to the Contracting Officer either was omitted from the appeal file or was overlooked by the Board.  Appellant has attached to its Motion copies of canceled checks and other information regarding the alleged costs incurred.  Respondent has not filed an opposition to Appellant’s Motion.

The hearing in this appeal was concluded on May 3, 1995.  This Board’s Rules of Practice provide that “[e]xcept as the Board may otherwise order in its discretion, no proof shall be received in evidence after completion of an oral hearing . . . .” (39 C.F.R. §955.14(b)).  Appellant was given a full opportunity to present evidence and testify on its own behalf at the hearing and in fact did so.  Appellant has not shown that the evidence it now seeks to introduce was unavailable at the time of hearing or was newly discovered subsequent to the hearing.  Thus, to the extent Appellant is seeking the introduction of additional factual evidence, the attachments to the Motion will not be considered.  Earl L. Love, PSBCA No. 589, June 8, 1979; P. T. Sarana Daya Taruna, ASBCA No. 26240, 87-2 BCA ¶ 19,696.  To the extent it is additional argument, it has been considered as material supplementing the argument in support of the Motion.

Appellant contends the canceled checks, especially those showing payment to individuals for daily cleaning services performed for Appellant at the Windy Hill Branch Post Office, prove that Appellant incurred additional costs as the result of the issuance of modification no. 2 to the contract.  Appellant’s proof is deficient however.  The record in the appeal (appeal file tab 14, daily log sheets) shows that Appellant  utilized third parties on a fairly frequent basis to perform cleaning services at Windy Hill.  There is no evidence in the record other than Appellant’s unsubstantiated testimony that the issuance of modification no. 2 required Appellant to utilize contract employees more often than was Appellant’s custom prior to the issuance of the modification.

As to the remaining costs sought, as evidenced by the canceled checks, the prior decision specifically stated that those costs do not constitute costs directly attributable to the issuance of modification no. 2.  Accordingly, Appellant’s Motion for Reconsideration is denied.

James D.  Finn, Jr.

Administrative Judge

Vice Chairman

I concur:

James A. Cohen

Administrative Judge

Chairman