June 11, 1997
Appeal of
BSS CORPORATION
Under Contract No. 232098‑94‑B‑0121
PSBCA No. 3961
APPEARANCE FOR APPELLANT:
Dwight Embry
APPEARANCE FOR RESPONDENT:
Thomas J. Marshall, Esq.
OPINION OF THE BOARD
During the two-year term of its indefinite quantity construction contract with Respondent, United States Postal Service, Appellant, BSS Corporation, received no work orders. Appellant filed a claim for the minimum order specified in the contract, $10,000, which the contracting officer denied. Appellant filed a timely appeal of that denial.
At the election of the parties, the appeal is being decided on the record without an oral hearing, 39 C.F.R. §955.12, and the parties were afforded an opportunity to file evidence and argument in support of their positions. Respondent filed additional evidence, a declaration of the administrator of the contract and a brief, but Appellant filed nothing beyond its unsworn July 26, 1996 letter, which was accepted by the Board as its complaint.
FINDINGS OF FACT
1. On April 7, 1994, Respondent awarded Appellant an indefinite quantity construction contract to perform painting and related services at post offices in the Cincinnati area. The term of the contract was from April 8, 1994, through April 7, 1996. (Appeal File, Tab (“AF”) A; Declaration of Charles Hail, paragraph (“Hail Decl.”) 3).
2. Jobs were to be assigned to Appellant by issuance of work orders describing the work to be performed:
“Each work order will describe the extent of work to be removed and the extent and type of new work to be installed. Descriptions may be written, by sketch or by drawing. Each work order will give the location where work is to be performed, state whether work may be performed during regular working hours, and describe the requirements for submittals. Submittals may include certificates, shop drawings, manufacturer’s literature, data, test reports, and/or other documents that provide required information on the material or equipment.” (AF A, Section C.13.b, WORK ORDERS (INDEFINITE-QUANTITY)(Clause FB-251)(June 1988)).
3. Work could not be commenced until the contractor and the contracting officer had signed a written work order and the contracting officer had issued a Notice to Proceed (AF A, Section C.13.a, c, WORK ORDERS (INDEFINITE-QUANTITY)(Clause FB-251)(June 1988)).
4. The contract provided,
“Specific Work Orders will be issued by the Contracting Officer in accordance with the Unit Price Schedule and Specifications. One or more Work Orders will be issued totaling not less than $10,000.00 nor more than $250,000.00 during a two (2) year period of the contract.” (AF A, Section B.1, SCOPE OF WORK; see Hail Decl. 3).
5. Section B.5.a of the contract confirmed that “the total quantity of work ordered during the term of this contract will not be less than $10,000.00 . . . .” (AF A, Section B.5, QUANTITY OF WORK (INDEFINITE-QUANTITY)(Clause FB-248)(March 1989)).
6. Before a work order could be issued, Appellant was required to inspect the site:
“It shall be the contractor’s responsibility to inspect conditions at each site, including such things as elevator size and capacities, existing building materials and components, and the like, before finalizing work orders.” (AF A, Section G.33, INSPECTION OF SITE OR BUILDING (INDEFINITE-QUANTITY)(Clause FB-260)(June 1988)).
7. Respondent’s practice when it identified a potential job for an indefinite quantity contractor was to call the contractor, advise of the availability of the project and invite the contractor to visit the job site to determine the contractor’s requirements for performing the work. After the contractor’s visit, the contractor was to draft a work order describing the necessary work and submit the proposed work order to the contracting officer for review and approval. If the contracting officer approved, he would send written notice to the contractor to proceed with the work. (Hail Decl. 5, 6).
8. Appellant had previously performed under an indefinite quantity contract with Respondent and was aware of the requirement that the contractor inspect the site and prepare the work order. Shortly after award, Respondent proposed a pre-construction conference to discuss the procedures regarding issuance of the work orders. However, Appellant’s president advised that Appellant understood the procedure and that it would visit job sites upon receipt of a call from Respondent. (Hail Decl. 7, 8; Second Supplement to Appeal File).
9. In April 1995, Respondent advised Appellant of the availability of a parking lot resurfacing project at the Worthville, Kentucky Post Office. Appellant visited the job site, but never developed or submitted a proposed work order for that project, believing that it would lose money if it performed the work under the price structure of its contract. The job was eventually performed by another contractor at a price of $4,238.48. (Hail Decl. 9-13).
10. On March 6, 1996, Respondent advised Appellant of the availability of a painting project at the Parkdale Branch of the Cincinnati Post Office. Appellant did not visit the site or develop or submit a proposed work order for this project. The estimated value of the Parkdale project was $15,000 to $20,000. (Hail Decl. 14, 15, 16; Second Supplement to Appeal File).
11. No work orders were issued to Appellant during the term of the contract, and after the contract expired, Appellant filed a claim for $10,000, the minimum work stated in the contract (AF 3, 5, 6). The contracting officer denied the claim, and this appeal followed (AF 4, 7, 8).
DECISION
Appellant argues that it is entitled to payment of the $10,000 minimum under the contract because the contracting officer never issued it any work orders. Respondent concedes that no work orders were finalized and issued but argues that Appellant is not entitled to recover because it failed to develop proposed work orders on the two projects Respondent asked it to review.
The parties contemplated that Appellant would participate in the development of project work orders by visiting the site of a job and preparing a proposed work order for the contracting officer’s review (Findings 4, 5). Nevertheless, despite being advised by Respondent of two projects, Worthville and Parkdale, Appellant failed to prepare a proposed work order setting forth the work and Appellant’s requirements for completing it (Findings 9, 10). While the contract language stated that the contracting officer will issue specific work orders (Finding 7), his doing so depended upon Appellant inspecting the projects offered and providing Respondent with the information necessary for the finalization of the work order (Findings 4, 5, 6). Therefore, the contracting officer’s failure to issue specific work orders for the Worthville and Parkdale jobs was justified.
Appellant has not shown that the Worthville and Parkdale projects were beyond the scope of its contract, that they were otherwise inappropriate or that its concern that it would lose money on a job would be a sufficient reason for declining to submit a proposed work order. Since the work offered on the two projects exceeded the $10,000 minimum stated in the contract (Findings 9, 10), Respondent’s failure to issue work orders does not entitle Appellant to recover.
The appeal is denied.
Norman D. Menegat
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
David I. Brochstein
Administrative Judge
Vice Chairman