June 5, 1997
Appeal of
LANCOR ENGINEERING INC.
Under Contract No. 119986-92-B-0033
PSBCA No. 3948
APPEARANCE FOR APPELLANT:
Jeremy E. Gluckman, Esq.
APPEARANCE FOR RESPONDENT:
Glenn L. Smith, Esq.
OPINION OF THE BOARD
Appellant, Lancor Engineering, Inc., has filed an appeal of the United States Postal Service’s (Respondent) failure to issue a decision on its claims for alleged uncompensated work performed by Appellant on the Miami Executive Annex. Subsequent to the filing of this appeal, Respondent’s contracting officer issued two final decisions addressing Appellant’s claims. The parties have elected to submit the appeal on the record pursuant to 39 C.F.R. §955.12. Both entitlement and quantum are at issue.
FINDINGS OF FACT
1. On June 10, 1992, Respondent awarded Indefinite Quantity Painting Contract No. 11986-92-B-0033 to Appellant for the performance of work in the Miami, Florida area. The contract contained a price multiplier of .4895. That is, Appellant agreed to perform the work ordered under the contract for the unit prices contained in the contract’s price schedule, times the multiplier of .4895. (Appeal File Tab (AF) 1).
2. Specification section C.13(f) allowed for the negotiation of the price of work items not covered by the contract’s price schedule. Under that section, the cost of negotiated work could not exceed 25% of any work order. (AF 1).
3. On July 26, 1993, Appellant was awarded work order 18 under the contract at a total price of $52,717.16, for work to be performed at the Miami Executive Annex. The work order included a negotiated item, in the amount of $3,191.66, for 1,100 square yards of carpet. (AF 3).
4. On August 12, 1993, Appellant’s invoice for $52,717.16, was accepted by the contracting officer and processed for payment (AF 4).
5. During performance of work order 18, additional work was ordered by Respondent for the Miami Executive Annex, which included replacement of the
septic system. In addition, Appellant removed and hauled away the old carpet even though this item of work had not been itemized in his proposal for the carpeting work under work order 18. (Supplemental Appeal File Tab (SAF) 1).
6. On February 24, 1994, Appellant submitted a claim for $140,807.40, for work performed at the Miami Executive Annex but, according to Appellant, not covered by work order 18. Included in this claim was work performed on the septic system as well as carpet removal at the Executive Annex. (AF 5).
7. On July 5, 1994, representatives of Appellant met with the contracting officer to negotiate a resolution to this claim. As a result of these negotiations, Appellant was paid an additional $14,025.88 under a new contract, Contract No. 115854-94-A-0095, for work related to the septic system at the Executive Annex. Included in this sum was payment of $4,520.79 for an excavator rental; $600.29 for bulldozer rental; $357.50 for grading equipment; $40.00 for a permit fee; and $3,663.26 for a new pump and control panel. Appellant’s invoice for $14,025.88 was paid on November 4, 1994. (AF 6, 7; SAF 1, 2).
8. On the same date, the parties executed Contract No. 115854-94-X-0062, at a price of $9,000, for work which included an item for carpet removal and disposal. Appellant invoiced for and was paid $9,000 on July 6, 1994. (AF 8; SAF 1, 2).
9. By letter dated January 22, 1996, Appellant submitted another claim for additional compensation for the carpeting and septic system work it performed at the Executive Annex. Specifically, Appellant sought $4,988.73 of additional cost associated with the installation, removal and disposal of 958 square yards of carpeting Appellant claimed to have installed at the Executive Annex. In addition, Appellant sought $18,698.98 in additional cost allegedly incurred in performing work on the septic system at the Executive Annex. (Complaint, Exhibit A).[1]
10. On May 9, 1996, Appellant filed this appeal with respect to the claims for compensation for carpet removal and additional work on the septic system. Appellant’s appeal was predicated on its assumption that Respondent had denied its claim with respect to these items since Respondent had failed to address them in subsequent correspondence with Appellant. (Notice of Appeal).
11. On October 7, 1996, the contracting officer issued a final decision denying Appellant’s claim for additional cost associated with carpeting the Executive Annex, finding that Appellant had already been fully compensated for its carpet work through the payments it received under work order 18 and Contract No. 115854-94-X-0062 (SAF 1).
12. The contracting officer issued a second final decision on October 7, 1996, with respect to Appellant’s claim for additional compensation for work on the septic system. This claim consisted of eleven items. The contracting officer denied items 1, 3, 5, 7, 9 and 11 as being identical to the items included in and already paid for under Contract No. 115854-94-A-0095 (see Finding No. 7). (SAF 1).
13. The contracting officer concluded, however, that items 2, 4 and 6 had not been included in Contract No. 115854-94-A-0095 and, therefore, awarded Appellant $4,175.84 additional payment for these items. Claim item 2, in the amount of $2,800, was for an excavator operator. Appellant had not provided any documentation or other justification supporting the amount claimed. Nevertheless, the contracting officer awarded Appellant $1,980 for this item. This sum included forty hours of excavation (the amount of time spent by Appellant’s excavator operator on the jobsite) at the prevailing wage rate of $45.00 per hour ($1,800), plus 10% of overhead and profit ($180). Appellant had not provided any documentation to support claim item 4, in the amount of $560.00 for a bulldozer operator. However, the contracting officer found this amount to be reasonable and he awarded the full amount for this item. The contracting officer found that Appellant had previously documented its costs for item 6 (gas powered pumps) and awarded the full $1,635.84 claimed. (SAF 1).
14. Respondent paid Appellant for these items by sending Appellant a check for $4,175.84 on December 26, 1996. (SAF 1).
15. Appellant failed to provide any documentation or other substantiation for items 8 and 10, in the amounts of $1,596 and $969, for installing a new pump and removing and reinstalling a control panel. The contracting officer stated that he could not independently verify that the work had occurred or that the costs were incurred and, therefore, denied this portion of Appellant’s septic system claim. (SAF 1).
DECISION
On appeal, Appellant claims entitlement to an additional $4,988.73 for carpeting work and materials previously provided and $18,698.98 for repairs and materials it alleges it provided for a septic system. Respondent contends that Appellant has already been compensated for this work and that it is not entitled to any additional compensation. For the reasons set forth below, we find that Appellant has failed to sustain its burden with respect to all aspects of its claim[2].
CARPET INSTALLATION, REMOVAL AND DISPOSAL
Respondent argues that the payments Appellant received under work order 18, combined with the additional payment received by Appellant under Contract No. 115854-94-X-0062, constitutes an accord and satisfaction of Appellant’s claim for additional costs associated with carpet installation, removal and disposal at the Executive Annex. Respondent further argues that Appellant failed to carry its burden of proof that it incurred additional costs for which it was not compensated. With the exception of a single undated invoice for carpeting, Appellant has not submitted any evidence or arguments to support its claim for additional costs associated with carpeting at the Executive Annex.
The original work order for work at the Executive Annex (work order 18) was for a total price of $52,717.16 and contained a negotiated line item in the amount of $3,191.66 for 1,100 square yards of carpeting (Finding of Fact No. (FOF) 3). Appellant received full payment for work order 18 (FOF 4).
Subsequently, Respondent and Appellant negotiated and executed Contract No. 115854-94-X-0062 to compensate Appellant for work it performed at the Executive Annex which was not covered by work order 18. This supplemental contract included an item for carpet removal and disposal. Appellant invoiced for and was paid the full amount negotiated under Contract No. 1158-94-X-0062. (FOF 8).
Appellant has offered nothing in this appeal to explain why it is entitled to receive further compensation for the purchase, installation, removal and disposal of carpet at the Executive Annex. Accordingly, this appeal is denied.
SEPTIC SYSTEM WORK
Respondent argues that there is an accord and satisfaction with respect to items 1, 3, 5, 7, 9 and 11 in Appellant’s claim regarding septic system work. Respondent further argues that Appellant has failed to prove or otherwise establish that it is entitled to be paid more for claim items 2, 4, 6, 8 and 10 than the amounts determined by the contracting officer in his final decision on this claim. Appellant has not submitted any evidence or arguments to substantiate its septic system claim.
Items 1, 3, 5, 7, 9 and 11 were included in Appellant’s claim submittal of February 24, 1994. These items were included in the negotiations which culminated in Contract No. 115854-94-A-0095. Appellant voluntarily entered into this contract and was paid its full amount on November 4, 1994. (FOF 6, 7). Accordingly, Appellant has been fully compensated for these items.
In his final decision, the contracting officer determined that Appellant was entitled to $1,980 for claim item 2 and included that amount in the payment made to Appellant by Respondent on December 26, 1996 (FOF 13). This amount was an estimate by the contracting officer concerning the amount of time spent on the job by Appellant’s excavator operator (40 hours), times the prevailing wage rate of $45.00 per hour, plus 10% overhead and profit. (FOF 13).
Appellant, on the other hand, failed to submit any evidence to support the $2,800 sum it claims for this item. Accordingly, we find that Appellant has failed to establish that it is entitled to a greater recovery for this item.
Appellant failed to provide any evidence to support its claim for $560 for a bulldozer operator (claim item 4). The contracting officer, however, found this amount to be reasonable and agreed in his final decision to award Appellant the full amount for this item (FOF 12). Similarly, the contracting officer awarded Appellant the full amount of claim item 6, in the amount of $1,635.84 for gas powered pumps since he could independently verify this claimed amount. Therefore, these items are not in dispute.
Appellant has not provided any proof, either initially to the contracting officer, or subsequently in this appeal, to support claim items 8 and 10. These items are, therefore, denied for lack of proof.
Accordingly, this appeal is denied in its entirety.
William K. Mahn
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
David I. Brochstein
Administrative Judge
Vice Chairman
[1] Appellant’s January 22, 1996 claim letter also included claims for retainage of $7,680.00 on Opa Locka and $3,642.50 on Lighthouse Point. Appellant has not included them in its Complaint and they are not at issue in this proceeding. (AF 10, 11).
[2] Appellant, which is the party seeking recovery, has the burden of proof in this appeal. RKM Construction Co., Inc., PSBCA No. 3370, 94-3 BCA ¶ 27,137; Roger H. Elliott, PSBCA No. 3285, 1993 WL 73426 (Feb. 12, 1993); F&B Realty, PSBCA No. 2529, 91-2 BCA ¶ 23,788.