September 22, 2000
Appeal of
DONALD E. SKAGGS
Under Contract Nos. 118925-91-P-0019 & 475630-95-P-2647
PSBCA Nos. 4486 & 4487
APPEARANCE FOR APPELLANT:
Donald E. Skaggs
APPEARANCE FOR RESPONDENT:
Mark E. Dennett, Esq.
Appellant operated two postal stations under contracts with Respondent. After substantial shortages were discovered in the accounts of the stations, the contracting officer demanded repayment and terminated the contracts on one-day’s notice. Before the contracts were terminated, Appellant had sought a retroactive increase to his rate of pay under one of the contracts, which the contracting officer denied. Appellant’s appeals of the denial of his retroactive pay request as well as of Respondent’s termination of the contracts and demand for repayment of the shortages were denied by the Board, Donald E. Skaggs, PSBCA Nos. 4486 & 4487, 00-2 BCA ¶ 30,933, and Appellant has filed a timely motion for reconsideration. The facts of these appeals are set forth in the Board’s decision and will not be repeated here.
In his motion, Appellant repeats the arguments he previously made, which were addressed in the Board’s Opinion. He argues that he should not be responsible for repaying the shortages he incurred because Respondent failed to detect the shortages through regular audits. However, as noted in the decision, the contract does not obligate Respondent to manage or audit the contract stations for the operator’s protection. See The General Store, PSBCA No. 3951, 98-1 BCA ¶ 29,573, recon. denied, 99-1 BCA ¶ 30,124. It was Appellant’s responsibility to manage the contract stations and to institute procedures which he deemed necessary to protect the stamp stock entrusted to him by Respondent. See Jaehee Yoshimoto, PSBCA Nos. 2315, 2749, 92-1 BCA ¶ 24,504 at 122,315. The contract squarely placed the responsibility for financial losses on Appellant, and the recurring losses he experienced in the two stations justified the terminations as well as the determination that Appellant was responsible for repayment of the losses.
Appellant repeats his argument that he is entitled to a rate increase for the Mid Venice Station retroactive to September 1997, because his 1997 and 1998 requests for an increase were not transmitted to the contracting officer as contemplated by the contract. However, Respondent demonstrated that the actions of its officials were taken in furtherance of Respondent’s business interests, did not breach the duty of good faith and fair dealing between the parties and, therefore, would not be considered to be a material breach of contract on the part of Respondent. Any failure to transmit the 1997 and 1998 requests for increases to the contracting officer is not a basis for Appellant's claimed recovery of the increase it sought.[1]
Furthermore, although Appellant did not receive a decision of the contracting officer on his requests as contemplated by the Price Adjustment clause (Decision, Finding 7), he was certainly aware that his requests for an increase had not been granted,[2] and the contract’s Contract Duration and Termination clause (Decision, Finding 3) plainly afforded him the right to terminate the contract at any time by giving Respondent 60-days’ notice. Appellant asserted that certain of Respondent’s officials led him to believe that the increase would eventually be granted and given retroactive effect, causing him to continue performance in anticipation of eventual compensation for his increased costs. However, each of the officials identified by Appellant denied in their sworn statements ever giving Appellant such assurance. Appellant has failed to show that he was persuaded by statements or conduct of Respondent’s officials not to exercise his right to terminate the contract at any time under the Contract Duration and Termination clause.
Appellant’s challenge to the accuracy of the count was raised before, and the Board found the counts to be accurate based on the sworn statement ofRespondent’s official who conducted the counts and Appellant’s signature on the documents recording the results of the counts, indicating his agreement. (Affidavit of Nancy M. Lemonde). Nothing Appellant argues in his motion persuades us that we erred in reaching this conclusion in our original decision.
Finally, other arguments raised in the motion for reconsideration were considered by the Board, and asking the Board to reach different conclusions on issues that have been previously raised and fully considered in the Board’s decision is not a basis for reconsideration. See Patricia J. Stevens, PSBCA No. 3272, 94-2 BCA ¶ 26,951; F.C.F. Company, PSBCA No. 1353, 87-1 BCA ¶ 19,522. Appellant has not shown any factual or legal errors that would warrant changing the Board’s decision. See Nationwide Postal Management, PSBCA No. 4015, 98-2 BCA ¶ 30,089.
Accordingly, the motion for reconsideration is denied.
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
David I. Brochstein
Administrative Judge
Vice Chairman
[1] Additionally, the contracting officer denied Appellant’s 1999 request for an increase until all shortages were repaid, and Appellant has not shown any likelihood that the earlier requested increases would have been granted by the contracting officer.
[2] The contract did not establish a right to an increase based on increased costs. Respondent could choose, as it did in Appellant’s case, not to increase the contractor’s compensation notwithstanding demonstrated increases in the contractor’s costs of performance. See Fax-Photo-Shipping, Etc., PSBCA Nos. 3916, 3970, 98-2 BCA ¶ 29,998, recon. denied, September 5, 2000.