July 13, 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 L. Smith, Esq.
OPINION OF THE BOARD
Appellant, Swearingen Services, Inc., has timely appealed a Contracting Officer’s decision denying Appellant’s request for increased compensation as the result of a change order issued under a cleaning services contract. Appellant has elected to have the appeal processed under the Board’s accelerated procedure (39 C.F.R. §955.36). Both entitlement and quantum are in issue in this appeal. At the election of the parties a hearing was held.
FINDINGS OF FACT
1. On April 21, 1994, Appellant was awarded contract no. 475630-94-P-1449 to perform cleaning services at the Windy Hill Branch Post Office, Marietta, Georgia. The contract term was for two years at an annual amount of $11,271.00 (Appeal File, Tab 1 (“AF-1")).
2. A provision of the contract specifications/statement of work entitled “Required Days and Time” stated as follows:
REQUIRED DAYS AND TIME (Clause OB-571) (November 1989)
Services must be performed when Postal Service employees are on official duty, and in a manner and time that will not interfere with the movement of the mail. When services are required less than five days a week (i.e., Mon-Wed-Fri), and a normal service day falls on a Federal holiday, the contractor must provide the required services on the next Postal business day. No additional compensation will be provided for this service. Services must be performed between the hours and on the day indicated below:
Day Hours
Monday 6:00 am - 11:00 am
Tuesday 6:00 am - 11:00 am
Wednesday 6:00 am - 11:00 am
Thursday 6:00 am - 11:00 am
Friday 6:00 am - 11:00 am
Saturday 6:00 am - 11:00 am
The contract further required Appellant to coordinate its use of the premises with the installation head in certain areas, none of which included time of performance, however (Id.).
3. On October 17, 1994, the Contracting Officer issued modification no. 2 to the contract, a unilateral change order, which provided in pertinent part:
Refine the requirements of the hours of performance as outlined in the contract. The hours between which cleaning tasks may be performed will remain the same, 6:00 am - 11:00 am Monday-Saturday. However, the cleaning tasks for the service/box lobby area must be completed prior to 8:00 am each day Monday-Saturday. (Id.)
4. The modification was issued because Appellant had been arriving in the morning too late to complete cleaning of the lobby area prior to the branch opening to the public, thus interfering with Postal Service operations and inconveniencing the public (AF-18-19).
5. By letters to the Contracting Officer, dated October 22, 1994 and November 7, 1994, Appellant requested an equitable adjustment in contract price as the result of the issuance of modification no. 2. The total amount sought was $10,716.59, composed of the following elements:
A. 253.34 copying expenses
B. 200.00 legal counsel
C. 5.00 parking
D. 9.95 express mail
E. 58.00 telephone
F. 4.00 copy costs
G. 186.30 additional mileage
H. 10,000.00 pain & suffering
10,716.59 Total
Appellant additionally requested an increase in the annual amount of his contract of approximately $2600 (AF-27, 30).
6. By final decision dated November 21, 1994, the Contracting Officer denied Appellant’s claim in its entirety. The costs requested were found to be either unreasonable or not reimbursable (AF-34). Appellant thereafter appealed (AF-37).
DECISION
It is Appellant’s contention that Respondent changed the terms of its contract by requiring the cleaning tasks for the service/box lobby area to be completed by 8:00 a.m. each morning. According to Appellant, in order to complete such tasks by 8:00 a.m. an additional employee had to be hired. Appellant’s president testified that he had two other cleaning contracts which he performed himself and it was impossible to attend to all three contracts and meet the 8:00 a.m. deadline for the contract in issue.
It is Respondent’s position that under the contract terms Appellant was required to coordinate its use of the premises with the installation head; that Appellant did not do so, and that Appellant’s cleaning of the service box/lobby area subsequent to 8:00 a.m. interfered with Postal Service operations and inconvenienced the public. Thus, Respondent contends the direction by the Contracting Officer to complete cleaning the service/box lobby area by 8:00 a.m. did not constitute a compensable change under the contract.
Whether the issuance of modification no. 2 to the contract constituted a change in contract requirements need not be addressed in this instance. Elements A through G of Appellant’s claim (Finding Fact No. 5) do not constitute costs directly attributable to the issuance of modification no. 2 and therefore are not compensable. Element H, pain and suffering, pertains to tort recovery independent of the contract and the Board lacks jurisdiction to consider the matter. Roger Dean Barrett, PSBCA No. 2490, 89-3 BCA ¶ 22,220.
Appellant’s contention that it hired an additional employee to perform the early morning work at the Windy Hill Branch has no support in the record other than the unsubstantiated testimony of Appellant’s president. Further, no documentary evidence showing added costs incurred due to the hiring of an additional employee was submitted in the record.
Since Appellant has not shown that it incurred any additional cost as the result of the issuance of modification no. 2, it is not entitled to recover in this appeal. Accordingly, based on the evidence of record, the appeal is denied.
James D. Finn, Jr.
Administrative Judge
Vice Chairman
I concur:
James A. Cohen
Administrative Judge
Chairman