September 2, 1998
Appeal of
DAVID FINLEY
Under Contract No. HCR 598 AD
PSBCA No. 3922
APPEARANCE FOR APPELLANT:
Stephen R. Brown, Esq.
APPEARANCE FOR RESPONDENT:
Samuel J. Schmidt, Esq.
OPINION OF THE BOARD
Appellant, David Finley, has appealed from the denial of his claim for an amount he contends should have been paid to him by Respondent, United States Postal Service, for work he performed under his mail transportation contract and for an amount he contends is due him for the partial termination of his contract. Respondent has counterclaimed to recover an amount it contends was paid to Appellant in error. A hearing was held in Missoula, Montana. Both entitlement and quantum are at issue in this proceeding.
FINDINGS OF FACT
1. In June 1992, Appellant was awarded contract HCR 598AD, a "trip-rate" contract for service between the Missoula, Montana Main Post Office and the Missoula airport. The term of the contract was from July 1, 1992, through June 30, 1996, and the initial contract rate was $26.63 per round trip. (Stipulation paragraphs (Stip.) C1, C2; Appeal File Tab (AF) 1).
2. As awarded, the contract required Appellant to supply one 600 cubic-foot capacity truck and to run a schedule consisting of 48 round trips per week -- which totaled 192 trips per four-week Postal Service accounting period (AP). Each of the trips was scheduled to last from 30 to 45 minutes. The contract also obligated Appellant to run "extra trips," as directed by the contracting officer or his representative. An "extra trip" was defined as one additional trip operated on an infrequent basis and was to be paid for at the "pro rata" rate for extra trips or, if no such rate had been negotiated in advance, at the original contract rate plus any additional costs that the contractor could demonstrate had been incurred. The contract also provided that the schedule could be changed by the Administrative Postmaster without prior notice "to meet service requirements." (Stip. B2; AF 2, 3)
3. Clause 12 (Changes) of the contract general provisions (PS Form 7407T, November 1988) provided, in part, that "Insignificant Minor Service Changes," including a change in the frequency of service or number of trips, could be ordered into effect by the contracting officer without consulting the contractor. The term "Insignificant Minor Service Change" was defined as a change that increased or decreased the contractor's rate of pay by no more than 10 percent or $1,000, whichever was less. The clause provided that other service changes could be made if agreed to by the contractor. (AF 3).
4. The contract general provisions also contained a "Termination for Convenience" clause (clause 17) under which the contracting officer had the right to terminate the contract, in whole or in part, when it was determined to be in the best interests of the Postal Service. In the case of a convenience termination, the clause provided for the payment of an indemnity in accordance with the Changes clause. For a partial termination for convenience, a "curtailment," the Changes clause required the payment of one-twelfth of the reduction in the annual rate if the curtailment was during the fourth year of the contract. (AF 3).
5. Clause 8 of the general provisions, Accountability of the Contractor, required, in paragraph (f) that "[t]he Contractor shall refund any overpayment for service performed or payment for service not performed." (AF 3).
6. Under the contract, Appellant was paid at the end of each AP, when the Administrative Postmaster reported the total number of trips performed through use of a PS Form 5429, "Certification of Exceptional Service Performed." The PS Form 5429 was sent by the Administrative Postmaster to Respondent's St. Louis Accounting Service Center, which then issued payment to Appellant. The number of trips reflected on the PS Form 5429 was multiplied by the contract trip rate and the product was the compensation paid to Appellant. A copy of the PS Form 5429 was also provided to the contracting office, which took no direct part in the payment process, and which checked the forms only to detect gross discrepancies in payments. (Stip. C3; Transcript pages (Tr.) 7, 8, 376-380).
7. In June 1992, before the start of service under the contract, Appellant and Respondent's then customer services supervisor in Missoula, Glenn Leming, had several discussions regarding the "trip" nature of the contract and the approximate number of trips per AP that Appellant should expect to perform. At that time, Appellant understood that he would be paid only for those trips actually performed. (Stip. C4; AF 32, 33; Tr. 251-252, 260-262).
8. However, at the time Appellant submitted his bid on the contract he was employed as a driver for the incumbent contractor and was aware that the number of trips for which the incumbent contractor was being paid significantly exceeded the number of trips shown on the schedule in the contract. Appellant further understood that the incumbent was being paid for an extra trip when a scheduled trip lasted more than two hours -- generally because of delays at the airport. He asked Mr. Leming whether to base his bid on the number of trips shown in the contract schedule or on the number of trips actually being run. Mr. Leming checked with the Postal Service contracting office in Salt Lake City, Utah (which was then the office administering the contract) and was told that the contract would continue to be run as it was then actually being run. Mr. Leming passed this information to Appellant, who used it in developing his bid on the contract. (Tr. 97-99, 178-180, 223, 224).
9. In or about September 1992, a change was made in an air taxi contract serving Missoula. As a result, larger volumes of mail began to arrive. In addition, changes were made to the airline schedules, resulting in a substantial increase in the number of trips scheduled during each accounting period.[1] (Stip. C5; AF 31; Tr. 255-57).
10. Initially, the increased volume was handled by the scheduled service provided under the contract -- i.e., with one truck. However, Appellant's vehicle, which had a capacity that actually exceeded the contract requirements of 600 cubic feet, would sometimes be loaded beyond 600 cubic feet because more than that volume of mail was arriving and had to be transported. (Stip. C6; Tr. 237-38).
11. Eventually, Mr. Leming requested that Appellant perform extra trips, using a second vehicle. Mr. Leming sought and was given authorization to request such service from the Postal Service logistics office, not the contracting office. Beginning in October 1992, Appellant performed extra trips with his second vehicle approximately three nights per week. (Stip. 7, 8; Tr. 230).
12. In late December 1992, Mr. Leming was transferred out of Missoula and his place was taken by a new customer services supervisor, Kelly Fillenworth (Stip. C9).
13. Extra trips with the second vehicle continued through February 1993, and in March 1993, were added to the schedule on the Form 5398 three times per week. In the February/March period and thereafter, Mr. Fillenworth included in the total on the Form 5429 (see Finding 6) one or more "bonus" trips for each time the second vehicle was used to perform an extra trip for the air taxi. Therefore, in effect, Appellant was being paid at least double the contract rate for trips performed with his second vehicle. (Stip. C10, C12; Tr. 314, 444, 450, 454; SAF 30E).
14. Because of the "bonus" trips added by Mr. Fillenworth, the Forms 5429 for the period of AP 3/93 through AP 5/95, do not correctly reflect the number of trips actually performed by Appellant. Instead, the numbers on the Forms 5429 were inflated to include the bonus trips used to compensate Appellant on an ad hoc basis for the second vehicle service (and, to some extent, for other "exceptional" service, such as extended waiting times at the airport). The Forms 5429 showed only a total number of trips certified for payment and did not distinguish between trips actually run and those that were "bonus" trips. (Stip. 11; Tr. 315; AF 31).
15. Until February or March 1995, Appellant had never reached any express agreement with or discussed the subject of using the second vehicle with the contracting officer or other personnel in the Postal Service contracting office. He also did not have any express agreement with Mr. Fillenworth regarding any particular formula that he used in authorizing the payment of "bonus" trips. (Tr. 168-172).
16. Mr. Fillenworth's practice of paying bonus trips continued until February or March 1995, when Mr. Leming came back to Missoula to conduct a review of several contracts for Mr. Fillenworth. Mr. Leming advised Mr. Fillenworth that payment of "bonus" trips for use of the second truck was improper. The practice of compensating Appellant with bonus trips ceased at that time. As a result, the number of trips certified for payment on the Form 5429 dropped substantially -- from 302 trips in AP 5/95 to 258 trips for AP 6/95 -- although the service being provided by Appellant had not changed materially. (Stip. C13; AF 31; Tr. 129-130).
17. When Appellant received his copy of the Form 5429 showing payment for only 258 trips, he immediately telephoned the Postal Service contract specialist who administered his contract. The contract specialist first directed Appellant to stop running the second truck, since it was not covered in the contract. After speaking to the Postal Service personnel in Missoula and learning that the second truck was needed, however, she called Appellant back and authorized him to continue running the second truck (approximately six nights per week), advised him that it would be added to the contract, and told him that they would have to negotiate a rate for the second truck. (Stip. C17; Tr. 129-130, 507). At that point the contract specialist considered trips run with the second truck to be part of the contract requirements (Tr. 545, 568). By letter dated May 26, 1995, the contracting officer stated that "[e]ffective April 29, 1995 service and schedule, and vehicle requirements on your [contract] were changed" to add, on an as-needed basis, the second-truck service, which was estimated to require 303 trips per year. Through the letter and its attachments, the contracting officer proposed a per-trip rate for the second-truck service of $30.54, and invited Appellant to submit his own proposed costs if he disagreed with the proposed rate. The contracting officer also indicated that Appellant would be compensated in a lump sum for trips performed prior to April 29, 1995, at the rate to be negotiated for the second-truck service. (AF 13).
18. From May through August 1995, the parties attempted to negotiate the per-trip rate for the second vehicle service, based on determining Appellant's costs for running the service. During this period, Appellant continued to provide the second-truck trips as set out in the proposed contract amendment. However, notwithstanding several exchanges, the parties were unable to agree on a rate, and Respondent eventually solicited other bids for the service. On or about September 9, 1995, Respondent awarded a contract for the service that had been previously performed by Appellant's second truck. Respondent ceased providing service with his second truck on September 11, 1995. (Stip. C18, C19, C20; AF 13, 15, 18-21, 23-35).
19. Appellant performed 404 trips with his second vehicle during the period of December 12, 1992 (AP 4/93), through February 3, 1995 (AP 5/95), 16 of which trips were performed during AP 5/95. Appellant was paid at least one bonus trip for each of those trips. Appellant performed 192 trips with his second vehicle during the period from AP 6/95 (the first accounting period in which Respondent did not pay "bonus" trips) through AP 13/95, when Appellant stopped providing service with the second vehicle. Appellant was paid $28.30 per trip for those 192 trips.[2] (Stip. C14, C15; Attachment 2 to Respondent's brief; Appellant's reply brief, p. 8/9).
20. The time required to run each of the second-truck trips was approximately three hours. The driver who ran the second-truck trips was paid a flat rate per trip, which rate worked out to approximately $16 per hour. (Tr. 47-50, 66, 68-69, 81-86, 110). As detailed in the following table, the annualized vehicle costs incurred by Appellant in running the second-truck trips totaled $2,476.23, yielding a per-trip vehicle cost of $8.17 for each of the 303 estimated annual trips:
|
ITEM |
ANNUAL AMOUNT |
Record Reference |
|
Vehicle Cost (ownership) |
$1,000.00 |
AF 24 (HC 107 form - standby vehicle cost) |
|
Operational Cost |
617.35 |
AF 19, 24 |
|
Registration |
129.88 |
AF 24 (HC 107 form) |
|
Overhead |
400.00 |
AF 19, 24 |
|
Fuel |
245.52 |
AF 24 (7463A form) |
|
Oil |
84.00 |
AF 24 (7463A form) |
|
Insurance |
0 |
AF 24 (HC 107 form) |
|
|
|
|
|
|
|
|
|
|
|
|
21. By letter dated October 27, 1995, Appellant filed a claim with the contracting officer. The claim totaled $48,233.07 and included the following elements:
a. Damages for the change in compensation that occurred in February 1995 when the number of trips for which Appellant was compensated dropped significantly, while the service he provided remained at the same level or increased. Appellant claimed a total of $17,970.50 plus interest (to that point) of $527.42, based on his theory that he should continue to be paid based on the average number of trips paid for in the preceding year.
b. Damages for Respondent's failure to properly terminate the portion of the contract under which Appellant provided service with the second truck. Appellant claimed the right to continuing payments under the contract because of Respondent's failure to give the 30-day notice required by the contract's convenience termination provision. In addition, Appellant claimed entitlement to the indemnity payment provided for in that provision. Appellant sought a minimum of $9,905 for "lost trips" plus interest (to that point) of $68.38 for the failure to give the required notice, and $3,556.37 for the indemnity payment.
c. Consequential damages for Respondent's alleged breach of the covenant of good faith and fair dealing in unilaterally changing Appellant's compensation without notice and for using demeaning terms in the course of the unsuccessful negotiations of a rate for the second truck. The amount claimed was "at least" $16,013.83 -- i.e., one-half the amount of the actual damages claimed in the earlier parts of the claim.
22. In a final decision dated November 22, 1995, the contracting officer concluded that Appellant was entitled to payment, at a rate of $38.85 per trip, for the second-truck trips he had run from the beginning of the contract. However, the contracting officer concluded that because of the payment of bonus trips, Appellant had been overcompensated for those and other extra trips he had run from the beginning of the contract. Therefore, the contracting officer demanded repayment in the net amount of $25,973.94 (reduced to $3,999.88 at the hearing). The claim was otherwise denied. (AF 29). Appellant filed a timely appeal.
23. In this appeal, Appellant does not seek damages, or reimbursement, for events occurring prior to February 1995 (AP 6/95). (Stip. 16).
DECISION
Entitlement
Appellant's claim
consists of three basic parts: The first part consists of damages for what he
argues was an improper reduction in his pay under the
contract beginning in February 1995, when Mr. Fillenworth, on advice from
Mr. Leming, stopped certifying "bonus" trips for payment.
Appellant argues first that, notwithstanding that the parties did not enter
into a written agreement providing for the payment of bonus trips, they did so
through a course of conduct that developed over an extended period of time and
which had the effect of incorporating the informal payment of "bonus"
trips into the contract as a requirement. Appellant then argues that the
sudden reduction in compensation that occurred in February 1995 (and continued
through September 1995) was a breach of the "modified" compensation
scheme and, in addition, was a breach of the express terms of the contract in
that it constituted an "other service change" (Finding 3) that could
not be unilaterally implemented by Respondent.
The second part of Appellant's claim is that the award of the second-truck contract to another contractor in September 1995 was an improper partial termination of Appellant's contract. Appellant contends that the second truck had, by at least March 1995, been officially incorporated into Appellant's contract by Respondent's contracting personnel, and Respondent's failure to give the 30-day notice required by the Termination for Convenience clause was a breach of the contract.
The third part of the claim is for what Appellant terms consequential damages. Appellant argues that when Respondent unilaterally reduced his compensation without notice and used what Appellant considered demeaning terms during negotiations over the second-truck price, Respondent breached its obligation to deal with Appellant fairly and in good faith.
Respondent's position is that the contract entitled Appellant to be paid only for the number of trips actually run and that it had not been modified, either expressly or by the actions of the parties, to guarantee either payment for a minimum number of trips or the payment of "bonus" trips. With respect to the second truck, Respondent argues that since the parties never agreed to a price for the service, no contract was ever formed for the use of the second truck and Respondent was at liberty to discontinue use of the second truck at will. Respondent also argues that, because of the bonus trips paid Appellant for the second-truck trips it ran before February 1995, Appellant has been overcompensated for the actual trips he made and is obligated to repay the amount of the overcompensation.
Claim for reduced payments beginning February 1995
In order for Appellant to establish entitlement, under his theory, to damages based on the reduction in payments that began in February 1995, he must first establish that his contract required Respondent to pay him for more trips than he actually ran in February and thereafter. Appellant has not done so.
The solicitation, as issued, and the contract, as awarded, contained a nominal schedule of trips to be run and provided that a fixed "per-trip" rate would be paid. Contrary to Appellant's argument, the practice that Respondent's local personnel had developed of paying "bonus" trips under certain circumstances -- i.e., intentionally certifying for payment more trips than were actually run, which had the effect of paying more than the contractually specified "per-trip" rate for some trips -- did not become a contract requirement. As argued by Respondent, such a change in contract terms would constitute a contract modification, and no such modification was expressly or impliedly agreed to by the parties.
Appellant is correct when he argues that the parties' practices in the performance of a contract can have the effect of modifying the terms of the contract. However, such a modification requires either actual knowledge on the part of someone with authority to bind the Postal Service to the change -- e.g., the contracting officer -- or circumstances under which the Board can conclude that if the contracting officer did not know of the practices, he or she should have known of them and may be charged with that knowledge. Gresham & Co. v. United States, 470 F.2d 542 (Ct. Cl. 1972); L.W. Foster Sportswear v. United States, 405 F.2d 1285 (Ct. Cl. 1969).
In this instance, the record indicates that neither the contracting officer nor anyone in his office was aware that the customer services supervisor in Missoula had taken it upon himself to authorize the payment of trips that had not been actually run. The discussion that occurred prior to award (Finding 8) had covered only the question of whether more trips than were shown in the solicitation schedule would be run (as they had been by the previous contractor) -- not whether payment in excess of the contract rate (e.g., in the form of "bonus" trips) would be made for some of the trips. Further, although copies of the Forms 5429 were sent to the contracting office (Finding 6), personnel in that office are not thereby chargeable with knowledge that bonus trips were being paid. It was not possible to tell from looking at the forms themselves that bonus trips were included (Finding 14). Further, the contracting office had no direct involvement in the payment process and, therefore, reasonably did not check the forms in detail but only checked for gross discrepancies in the amount certified for payment. Accordingly, the contracting officer did not have actual or constructive knowledge that Appellant was receiving payment in excess of that specified in the contract, in the form of "bonus" trips.
We also do not accept Appellant's argument that the change in payment amount was a violation of the Changes clause. That clause is intended to cover changes in cost resulting from changes made in the contract requirements. In this instance there was no such change to any contract requirements and, therefore, the limitations of the Changes clause are not applicable to these facts.
Accordingly, when Respondent stopped paying for bonus trips in February 1995, it did not breach the contract.
Termination of second-truck trips
Appellant argues that the second truck became part of the contract and that it is entitled to payment of an indemnity because of Respondent's termination of that service in September 1995. Respondent argues that because the price was never agreed to, the second truck never became part of the contract and Appellant may not recover any indemnity.
We agree with Appellant that the second truck became a contract requirement, as early as the time the contracting specialist requested that he provide the service, and certainly no later than the time the contracting officer issued the proposed contract modification directing that Appellant provide the service (Finding 17). While a final per-trip rate was never agreed to, from the parties' negotiations it is clear that they intended to use Appellant's costs for running the second truck as the basis for arriving at a rate. Therefore, notwithstanding their failure to arrive at a final number, the parties agreed to include the second truck as a contract requirement. See Western States Construction Co., Inc., ASBCA No. 16003, 72-2 BCA ¶ 9508. Accordingly, when Respondent awarded a contract to another contractor to provide the second-truck service and ceased using Appellant's services, Appellant became entitled to the payment of an indemnity under the Termination for Convenience and Changes clauses of the contract.
Consequential Damages
Appellant seeks what he denominates "consequential damages" for Respondent's alleged violation of the implied covenant of good faith and fair dealing. Appellant argues that Respondent breached that duty when it unilaterally changed the contract compensation rate without notice and used demeaning terms in subsequent negotiations with Mr. Finley.
Appellant's damages for Respondent's reduction in the compensation paid to Appellant in February 1995 have been discussed earlier and need not be addressed again here. Further, damages for emotional pain and suffering, damages arising from a tort independent of the contract and punitive or exemplary damages are generally not recoverable before contract appeals boards. See, e.g., Onice Ulmer, PSBCA No. 2938, 91-2 BCA ¶ 23,991 recon. denied 91-3 BCA ¶ 24,345; Roger Dean Barrett, PSBCA No. 2490, 89-3 BCA ¶ 22,220; Paul A. Mason, PSBCA No. 1473, 86-3 BCA ¶ 19,142; Bartel Kress, AGBCA No. 85-139-1, 91-3 BCA ¶ 24,366; Robert K. Adams, ASBCA No. 34519, 87-3 BCA ¶ 20,205; Alfred Bronder, ASBCA No. 29938, 86-3 BCA ¶ 19,102 aff'd 824 F.2d 980 (Fed. Cir. 1987)(Table). Accordingly, Appellant's claim for consequential damages is denied.
Respondent's counterclaim
Respondent argues that it is entitled to recover from Appellant the amounts of any overpayments it made in the form of unauthorized bonus trips for the second-truck trips. Appellant maintains that since the payment practices were established by Postal Service personnel, he is not liable for refunding any overpayment. Further, Appellant argues that forcing him to make a repayment implies that he somehow misrepresented the work he was doing, a fact that he denies.
We agree with Respondent that it is entitled to repayment of any overpayments it made. The language of the contract provision calling for such is clear and unambiguous (Finding 5). As we held above, the practice of paying bonus payments for second-truck trips never became part of the contract. Accordingly, when Appellant was paid double the contract rate for a single trip with his second truck, he was potentially being overpaid[3] and, under the terms of the contract, must refund any such overpayment.[4]
Quantum
To calculate the amount due each party, the Board must determine three amounts: the amount of any underpayment for the 192 second-truck trips run between AP 6/95 and AP 13/95, for which Appellant was paid at the $28.30 contract per-trip rate (Finding 19); the amount of any overpayments made by Respondent for second-truck trips for the contract period during which Appellant was being paid bonus trips (Finding 19); and the amount to be paid Appellant under the contract's indemnity provision for the termination of second-truck service in September 1995 (Finding 18).
Central to all of these calculations is a determination of the appropriate per-trip rate to be paid for use of the second truck. As we have found (Finding 18), the parties agreed to compensate Appellant for his actual costs of running the second truck and we have determined those costs from the record before us to total $56.17 per trip -- $48 + $8.17. (Finding 20)
We next apply this cost figure to determine the three amounts, described above, that are required for this portion of the Opinion.
Underpayment of trips between AP 6/95 and AP 13/95
Appellant was paid at the contract rate of $28.30 per trip for the 192 second-truck trips he ran during this period. Accordingly, he was underpaid by $27.87 per trip ($56.17 - $28.30) and may recover $5,351.04 for those trips (192 x $27.87).
Overpayments by Respondent – Respondent's Counterclaim
During the first part of the contract, Appellant received one bonus trip for each second-truck trip he ran. Therefore, in effect, he was being paid either $53.26, $54.20, or $56.60 per trip for the second-truck trips, with the last amount effective only during the last accounting period in which bonus trips were paid (see footnote 2). Inasmuch as we have calculated the cost of a second-truck trip to be $56.17, Appellant was, therefore, not overpaid for those trips, except for a $0.43 per trip overpayment for the 16 second-truck trips run during that last accounting period. Since only 16 of the trips were overpaid, the total payments for the 404 second-truck trips did not represent an overall overpayment to Appellant (see Finding 19).[5] Therefore, Appellant is not required to reimburse Respondent for any overpayments, and Respondent's counterclaim, although based on valid legal grounds, is denied.
Termination for Convenience Indemnity
Since the termination for convenience occurred during the fourth year of the contract, Appellant is entitled to recover an indemnity equal to one-twelfth of the annual rate for the second truck. The annual rate for the second truck is $17,019.51 – i.e., $56.17 x 303 – and Appellant may recover one-twelfth of that amount, or $1,418.29. for the termination of its second-truck service.
As explained above, Appellant's appeal is sustained in part and denied in part. Appellant may recover a total of $6,769.33, plus Contract Disputes Act interest. Respondent's counterclaim is denied.
David I. Brochstein
Administrative Judge
Vice Chairman
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
Norman D. Menegat
Board Member
[1] The Administrative Postmaster, for whom Mr. Leming worked, had the authority to change the schedule (Finding 2). The actual schedule required of the contractor by Postal Service personnel in Missoula, as contrasted with the schedule expressly set out in the contract, was recorded on a PS Form 5398 ("Transportation Performance Record"). The same form was to be used by the Postal Service personnel at the post office loading dock to keep a record of the number of trips actually run by Appellant. (SAF 30). However, Respondent's personnel routinely failed to record some of the trips actually run by Appellant (Tr. 241, 470), and Appellant kept no independent records of the number of trips that he ran (Tr. 160).
[2] Appellant's contract per-trip rate was $26.63 from the time of award through AP 3/94; $27.10 for the period from AP 4/94 through AP 4/95; and $28.30 effective AP 5/95 (AF 8).
[3] Respondent has acknowledged that it was responsible for paying for the second-truck trips, including those that occurred before the second truck was made part of the contract in March 1995, and that the per-trip rate to be paid for second-truck trips could exceed the rate specified in the contract. Respondent seeks the net difference between the amount it actually paid for those trips and the amount it should have paid. Therefore, the amount to be refunded, if any, will depend on a comparison of the rate we determine is to be paid for second-truck trips, with the amounts Appellant was actually paid for those trips in the first part of the contract, a matter to be addressed in the Quantum section of this Opinion.
[4] In general, the United States may recover funds erroneously paid. See United States v. Wurts, 303 U.S. 414, 415-416 (1938); American Fidelity Fire Insurance Co. v. United States, 513 F.2d 1375, 1381 (Ct. Cl. 1975); Fansteel Metallurgical Corp. v. United States, 172 F.Supp. 268, 270 (Ct. Cl. 1959); Russell and Ruby Lambert, PSBCA Nos. 2287, 2300, 89-3 BCA ¶ 22,227.