PSBCA Nos. 4904-4920, 5002 and 5003

November 3, 2005

Appeals of

TODD'S LETTER CARRIERS

Under Contract No. HCR 640L2

APPEARANCE FOR APPELLANT:

Todd Snyder

APPEARANCE FOR RESPONDENT:

Cary L. Katznelson, Esq.

Chicago Law Office

United States Postal Service

OPINION OF THE BOARD

Appellant, Todd’s Letter Carriers, also operating under the names TLC and TLC Trucking (all hereafter referred to as Appellant), has appealed from contracting officers’ decisions terminating for default 17 of its mail transportation contracts with Respondent, United States Postal Service; assessing reprocurement costs with respect to the terminated contracts; and demanding the return of payments allegedly made by mistake under one of the contracts following termination. These appeals are being decided on the record in accordance with 39 C.F.R. §955.12. Only entitlement is at issue with respect to the default terminations. Both entitlement and quantum are at issue with respect to the reprocurement assessments. (Board Order dated February 6, 2004). Only entitlement will be at issue with respect to Respondent’s claim for the return of the allegedly erroneous payments.

FINDINGS OF FACT

1. As of January 25, 2002, Appellant was the contractor for the following 17 mail transportation contracts with Respondent:

PSBCA Docket No.	Contract No.	Term Began	Scheduled Term End
4904	640L2	5/20/00	6/30/03
4905	60724	7/1/00	6/30/04
4906	48119	7/1/01	6/30/05
4907	53134	7/1/00	6/30/04
4908	530AS	7/1/00	6/30/02
4909	53056	7/1/00	6/30/04
4910	531AR	7/1/00	6/30/04
4911	530L6	10/9/99	6/30/02
4912	531AQ	7/1/00	6/30/02
4913	530M1	10/9/99	6/30/02
4914	530L1	9/12/98	6/30/02
4915	60613	7/1/01	6/30/05
4916	60227	7/1/98	6/30/02
4917	530RR	7/1/00	6/30/04
4918	483U1	4/8/00	6/30/03
4919	53011	7/1/98	6/30/02
4920	17016	7/1/01	6/30/05

(See Appeal Files in Docket Nos. 4904-4920). The contracts were administered by three different Postal Service offices – the Western Area Distribution Networks Office (WDNO), the Great Lakes Area Distribution Networks Office (GLADNO), and the Eastern Area Distribution Networks Office (EADNO). (Stipulation, dated May 19, 2004 (“Stip.”), paragraphs 1-3).

2. Each of the contracts contained a Termination for Default clause (clause H.4) which provided, in part:

“a. (1) The Postal Service may … by written notice of default to the supplier, terminate this contract in whole or in part if the supplier fails to:

(a) Complete the requirements of this contract within the time specified in the contract or any extension;

(b) Make progress, so as to endanger performance of this contract …; or

(2) The Postal Service’s right to terminate this contract under a.(1)(b) and (c) above may be exercised if the supplier does not cure the failure within three days (or more if authorized in writing by the contracting officer) after receipt of the notice from the contracting officer specifying the failure.

b. If the Postal Service terminates this contract in whole or in part, it may acquire similar supplies or services … and the supplier will be liable to the Postal Service for any excess costs.…

c. Except for defaults of subcontractors at any tier, the supplier is not liable for any excess costs if the failure to perform the contract arises from causes beyond the control and without the fault or negligence of the supplier.

d. If the failure to perform is caused by the default of a subcontractor at any tier, and if the cause of default is beyond the control of both the supplier and subcontractor, and without the fault or negligence of either, the supplier is not liable for any excess costs for failure to perform, unless the subcontractor supplies or services were obtainable from other sources in sufficient time for the supplier to meet the required delivery schedule.

* * *

h. The rights and remedies of the Postal Service under this clause are in addition to any other rights and remedies provided by law or under this contract.” (See, e.g., PSBCA 4904 Appeal File Tab (4904 AF) B (p. 32)).

3. Each contract also contained a clause entitled “Events of Default” (clause H.5) which, in subparagraph “a,” provided that the supplier’s failure to perform service according to the terms of the contract was an event allowing termination for default (See, e.g., 4904 AF B (p. 33)).

4. Each contract also contained a clause entitled “Release of Supplier” (clause H.14) which provided, in part:

“a. The contracting officer may release an individual sole-proprietor supplier from the contract for reasons of physical disability which prohibit the supplier from adequately operating the route, or which endanger the supplier’s life if operation of the route continues, if:

(1) The supplier applies to the contracting officer for a release;

(2) The contracting officer determines that a release will be in the interest of the Postal Service; and,

(3) The Postal Service secures a new contract ….” (See, e.g., 4904 AF B (p. 38).

WDNO Contract (PSBCA Nos. 4904, 5002, 5003)

5. On January 25, 2002, Appellant’s principal, Mr. Todd Snyder, telephoned Respondent’s senior contract specialist at the WDNO and informed him that because of “bankruptcy” Appellant would be unable to continue operating contract 640L2 after that date. At the contract specialist’s request, Mr. Snyder faxed a letter addressed to the contracting officer at the WDNO confirming that Appellant would cease operating the contract. The letter stated that “due to health and financial reasons, effective close of business 01/25/02, we will no longer be able to operate” contract 640L2. (4904 AF D (pp. 91, 92); Declaration of Timothy Brockman (Brockman Declaration); Declaration of Todd Snyder, dated October 27, 2004 (Snyder Declaration)).

6. On January 25, 2002, the contract specialist began to solicit emergency replacement service for this route. He received three offers from existing highway contractors and an emergency contract was awarded to the lowest offeror for service beginning on January 26, 2002. The emergency contract provided that it could be terminated by the Postal Service on 24 hours’ notice, without the payment of any indemnity or extra pay in lieu of an indemnity. The amount of the emergency contract was $388,845 per annum. The amount of Appellant’s contract as of January 25, 2002, was $335,390 per annum. (Brockman Declaration and Attachment A thereto; 4904 AF C (p. 87)).

7. By final decision dated January 28, 2002, the WDNO contracting officer, citing clause H.5.a (see Finding 3) terminated the contract for default, effective as of the close of business on January 25, 2002. The contracting officer also directed the Postal Service Accounting Center to withhold all funds otherwise due the contractor until further notice. (4904 AF A, C (p. 88)).

8. By letter dated May 1, 2002, Appellant filed a notice of appeal from the default termination. In the letter, Mr. Snyder stated that Appellant had not been given a “notice to cure,” citing Clause H.4.a.(2), and that he had health and financial concerns beyond his control, citing Clause H.4.c & d (see Finding 2). Appellant also alleged that it met the requirements of Clause H.14 – Release of Supplier (see Finding 4). (4904 AF D (p. 93, 94)). Appellant’s appeal was docketed as PSBCA No. 4904.

9. By final decision dated December 5, 2002, the contracting officer assessed reprocurement costs in the amount of $13,390.50 against Appellant. The assessment was calculated based on a difference of $146.45 per day[1] for a period of 90 days, plus $210 for the contract specialist’s time ($35 per hour for 6 hours). (4904 AF E (p. 102)). By letter dated, March 5, 2003, Appellant filed an appeal of that decision. The appeal was docketed as PSBCA No. 5003.

10. Following termination, Respondent erroneously continued to make payments to Appellant under contract 640L2, even though the service required by the contract was being provided by the reprocurement contractor. In a second final decision dated December 5, 2002, the contracting officer demanded the return of $140,907.51, which he alleged represented the payments made to Appellant to which it was not entitled. (4904 AF E (p. 99); Declarations of Leslie Carpenter, dated May 13, 2004, and July 2, 2004; Brockman Declaration and Attachment E thereto; contra Snyder Declaration, p. 4). By letter dated March 5, 2003, Appellant also filed an appeal of this final decision, which appeal was docketed as PSBCA No. 5002.

GLADNO Contracts (PSBCA Nos. 4905-4919)

11. On January 25, 2002, Mr. Snyder also telephoned the contracting officer at the GLADNO to inform him that, because of financial problems, after that day Appellant would no longer operate any of its contracts. By letter faxed to the contracting officer the same day, Mr. Snyder stated that due to “health and financial reasons,” effective with the close of business on January 25, 2002, “we will no longer be able to operate” 15 specified contracts.[2] (See, e.g., 4905 AF E (p. 84), F; Snyder Declaration).

12. Beginning on January 25, 2002, GLADNO contracting personnel solicited and awarded emergency contracts replacing all 15 of Appellant’s contracts. With the exception of the replacement contracts in PSBCA Nos. 4913 and 4915, Respondent received at least two offers in response to each solicitation and made an award to the low offeror. (4905-4919 AF G).

13. In PSBCA No. 4913, Respondent received six or seven offers, but made an award to the second low offeror, without explanation. The amount of the low offer was $749,004.89 per annum, while the amount of the replacement contract as awarded was $834,806 per annum. (4913 AF G (pp. 87, 158-172)).

14. In PSBCA No. 4915, only one offer was received in response to the solicitation. The “Solicitation Record – Emergency Highway Contract,” (PS Form 7439) includes the conclusory statement “SOLICITIED [sic] ADEQUATE COMPETITION,” but no other supporting information. (4915 AF G (pp. 155-56)).

15. By final decisions dated January 29, 2002, the contracting officer terminated all 15 contracts, effective with the close of business on January 25, 2002 (4905-4919 AF A).

16. In letters dated May 1, 2002, Appellant filed notices of appeal of all the default terminations of the contracts administered by the GLADNO. The letters contained the same allegations that were in the WDNO letter (Finding 8). (Stip. 8; see, e.g., 4905 AF E (p. 85)).

17. In a final decision dated November 21, 2002, the contracting officer assessed reprocurement costs in the amount of $234,245.72, consisting of excess costs and administrative costs, against Appellant. The final decision stated that Respondent was holding $1,685 for services previously performed by Appellant and, accordingly, demanded payment of $232,560.72. In establishing the amount allegedly due, the contracting officer calculated the difference (whether positive or negative) on a per-day basis between each of Appellant’s contracts and the corresponding replacement contract, and charged (or gave credit to) Appellant for that difference for a period of 84 days (the number of days in three of Respondent’s accounting periods). For the three contracts that were priced on a “per trip” basis, the contracting officer multiplied the difference in “per trip” amounts by the number of trips actually run during the same 84-day period. The charges based on the amounts of the reprocurement contracts totaled $229,379.86.[3] (Supplement to the Appeal File, filed on March 21, 2003, Tab Z).

18. The administrative costs, totaling $4,865.85, were based on 4 hours of secretarial time for preparing and distributing the documents for each reprocurement solicitation and contract, and 10.3 hours of transportation specialist time for preparing each solicitation, soliciting contractors, evaluating offers, and making award. (Supplement to the Appeal File, filed on March 21, 2003, Tab Z).

EADNO Contract (PSBCA No. 4920)

19. On January 25, 2002, Mr. Snyder also spoke by telephone with Respondent’s senior contract transportation specialist at the EADNO and informed her that that day would be Appellant’s last day on the route under contract 17016. In a letter faxed by Appellant the same day, Mr. Snyder advised that due to “health and financial reasons,” effective with the close of business on January 25, 2002, “we will no longer be able to operate” contract 17016. (Declaration of Barbara Spelic, ¶4; 4920 AF 4; Snyder Declaration).

20. Beginning on January 25, 2002, the transportation specialist solicited, by telephone and fax, emergency service on this route – to begin on January 26, 2002. Five offers were received and award was made to the lowest offeror. The amount of the emergency contract was $804,137 per annum. The amount of Appellant’s contract as of January 25, 2002, was $546,028. (Declaration of Barbara Spelic, ¶ 5; Respondent’s Additional Evidence, Filed June 14, 2004, Attachment F (PS Form 7436); 4920 AF “Reprocurement Costs” Tab; Declaration of Peter Bacola).

21. By final decision dated February 8, 2002, the contracting officer terminated the contract for default, effective as of the close of business on January 25, 2002 (4920 AF 3).

22. In a final decision dated February 14, 2002, the contracting officer assessed Appellant $59,400.40 in costs based on the increase in contract amount – calculated for a period of 84 days – and $353.68 in administrative costs, for a total of $59,754.07.[4] (4920 AF “Reprocurement Costs” Tab; Declaration of Peter Bacola; Declaration of Margaret L. Madigan).

23. In a letter dated May 1, 2002, Appellant filed a notice of appeal of the February 8, 2002 termination for default. The letter contained the same allegations that were in the WDNO letter (Finding 8). (4920 AF 2).

ADDITIONAL FINDINGS

24. After receiving Appellant’s notices that it would cease operation under its contracts after January 25, 2002, Respondent did not permit Appellant to run some trips on that date (Snyder Declaration).

25. During the Christmas season in 2001, Appellant had threatened to quit performing certain, unspecified contracts if Respondent did not agree in advance to pay certain amounts for extra service to be performed by Appellant during that period. Respondent agreed to make the payments and Appellant did not quit. (Snyder Declaration).

26. On several occasions before January 2002 Appellant had been given three-day cure notices directing it to cure performance irregularities. In each case, Appellant had cured the problems and had been allowed to continue performance. (Snyder Declaration).

DECISION

Terminations for Default

Respondent, which has the burden of demonstrating by a preponderance of the evidence that these default terminations were justified, Charles West, PSBCA No. 3655, 96-1 BCA ¶ 28,211 at 140,807, and cases cited therein, argues primarily that Mr. Snyder’s communications on January 25, 2002, informing Respondent that Appellant would, after that date, be unable to operate its contracts, constituted anticipatory repudiations of its contracts, thereby entitling Respondent to terminate the contracts for default immediately and secure substitute service at Appellant’s expense. In addition, Respondent argues that Appellant has not shown either that it met the requirements under clause H-14 to be released from its contract obligations, or that it was unable to continue service because of funds it was owed by Respondent. Finally, Respondent argues that it is entitled to recover the funds paid to Appellant in error following the termination of contract 640L2.

Appellant’s primary argument is that the terminations of its contracts were improper because under the terms of the Default clause anticipatory repudiation is not specified as a reason for default, and that Appellant was entitled to receive a three-day cure notice and the opportunity to cure before the contracts were terminated for default. Appellant argues that when Mr. Snyder called the contracting offices on January 25, 2002, he only threatened to quit if Appellant was not paid for extra service it had run during Christmas seasons for several past years. Appellant argues that Mr. Snyder had previously threatened to quit – i.e., “played the ‘I quit’ card” - when he needed something from the Postal Service that it was not willing to give, and that in previous instances he neither quit nor did the Postal Service terminate his contracts. Appellant contends that in this instance it did not cease performance of the contracts but was, instead, prevented from continuing performance by Respondent’s personnel as early as the afternoon of January 25. Appellant contends that Mr. Snyder’s threat was, at worst, a potential failure to “[m]ake progress, so as to endanger performance of the contract,” or a potential failure to “[p]erform any other provision of the contract” which, under paragraph a.(1)(b) or (c) of the Default clause (Finding 2), could only be the grounds for a default if Appellant failed to cure the failure within three days of receipt of a notice from the contracting officer.

With regard to the letters Mr. Snyder faxed to the contracting offices on January 25, 2002, Appellant argues that Mr. Snyder was told what to say by Respondent’s personnel during the course of his telephone conversations on that day.

Finally, Appellant argues that Respondent’s personnel were well aware of Mr. Snyder’s health problems and that Appellant’s financial difficulties were caused by Respondent’s failure to pay for the extra Christmas service.

We agree with Respondent that Appellant’s communications with the three contracting offices on January 25, 2002, constituted anticipatory repudiations of each of its 17 contracts. While there may be some question about exactly what Mr. Snyder said in the three telephone conversations, the letters he faxed the same day to each office unequivocally and unconditionally stated that Appellant would not be operating any of the contracts after January 25, 2002 (Findings 5, 11, 19). With regard to Appellant’s claim that Mr. Snyder was told what to put in his letters by Respondent’s personnel, we note that even if Appellant’s claim is accurate, there is no evidence that Mr. Snyder contacted any of the contracting offices to attempt to amend or rescind his letters - even after learning that Appellant was being barred from running some trips that day - or explain, as Appellant now claims, that it did not actually intend to cease operations, but was merely playing the “’I quit’ card” in an attempt to secure payments it believed it was owed.

Under these circumstances, absent a justifiable reason for halting service, the statements in Appellant’s letters that it intended to halt performance were sufficient to warrant default termination of the contracts for anticipatory repudiation. P Star, Inc., PSBCA No. 4839, 04-1 BCA ¶ 32,514 at 160,840; Justlogistics, PSBCA No. 4926, 03-1 BCA ¶ 32,190; Henry Lee Hayes, PSBCA No. 3997, 3998, 98-1 BCA ¶ 29,642; Paul C. Popiel, PSBCA No. 3150, 93-2 BCA ¶ 25,603. Moreover, the repudiation by Appellant justified immediate termination by Respondent. Respondent was not required to wait and see if Appellant actually ceased operations before deciding to terminate the contracts and seek replacement service. P Star, Inc., PSBCA No. 4839, 04-1 BCA ¶ 32,514 at 160,840, citing United States v. DeKonty Corp., 922 F.2d 826, 827 (Fed. Cir 1991); Cascade Pacific International v. United States, 773 F.2d 287, 293 (Fed. Cir 1985); Restatement (Second) of Contracts (1981), §250(a) and Comment a.

With regard to Appellant’s contention that the contracts do not provide for termination for anticipatory repudiation, under the common law theory of anticipatory repudiation Respondent had the right to terminate these contracts as one of the "other rights and remedies provided by law" that are alluded to, but not named, in paragraph h of the Default clause (Finding 2). P Star, Inc., PSBCA No. 4839, 04-1 BCA ¶ 32,514 at 160,840; see also Cascade Pacific International v. United States, 773 F.2d 287, 293 n. 5 (Fed. Cir. 1985), and cases cited therein.

In addition, Appellant’s argument that Respondent improperly failed to issue cure notices before terminating its contracts is without merit. A cure notice is not required when the termination is issued because of the anticipatory repudiation of a contract. P Star, Inc., PSBCA No. 4839, 04-1 BCA ¶ 32,514 at 160,840, citing Fairfield Scientific Corp., ASBCA No. 21151, 78-1 BCA ¶ 13,082 at 63,907.

We do not accept Appellant’s argument that its cessation of service should be excused because of Respondent’s alleged failure to pay for extra service performed over a number of previous years. The record contains copies of what Appellant alleges to be letters and other documents related to its efforts to obtain payments for extra service going back to 1996 (Snyder Declaration, Exhibits 2-4). Those documents, however, provide no information regarding the amount of money involved. More importantly, Appellant has not met its burden of showing, as a matter of fact, that Respondent’s failure to pay for extra service, even if proven, was the primary or controlling cause of Appellant’s alleged inability to continue performance as of January 25, 2002. See, e.g., Johnson v. United States, 223 Ct. Cl. 210, 217, 618 F.2d 751, 755 (1980); Mowtron Industries, PSBCA No. 1743, 88-3 BCA ¶ 20,834; Consumers Oil Co., ASBCA No. 24172, 86-1 BCA ¶ 18,647 at 93,710; R.C. Hudson & Associates, Inc., ASBCA No. 20711, 76-2 BCA ¶ 12,201 at 58,748.

With regard to the issue of Mr. Snyder’s health, other than in Appellant’s notices of appeal (Findings 8, 16, 23), Appellant has not contended that it met the requirements set out in the “Release of Supplier” provisions for releases based on the supplier’s disability (Finding 4). Although Appellant argues that Respondent’s personnel were well aware of Mr. Snyder’s health problems, Appellant has not shown that it had even applied to the contracting officers for releases based on those problems. Therefore, Appellant is not entitled to relief based on the provisions of that clause. See P Star, Inc., PSBCA No. 4839, 04-1 BCA ¶ 32,514; Hubbard Trucking Inc., PSBCA No. 3701, 04-2 BCA ¶ 32,667.

Accordingly, Respondent’s decisions to terminate Appellant’s contracts for default were legally correct and Appellant’s appeals from those decisions are denied.

Excess Reprocurement Costs

The contract authorizes Respondent, upon termination of the contract for default, to reprocure the services and recover from Appellant any excess costs of reprocurement (Finding 2, clause H.4.b). Respondent argues that it properly solicited replacement service for the terminated contracts and mitigated Appellant’s damages by seeking competition, awarding to the lowest bidders, and assessing Appellant the difference in contract rates for a period of not more than 90 days, rather than for the entire remaining contract period. Respondent also contends that it assessed Appellant reasonable administrative costs incurred in soliciting for and awarding the replacement contracts. Appellant has not argued that any of the procedural steps taken by Respondent in securing replacement service were improper or that Respondent failed to mitigate its damages.[5]

With the exception of the replacement contracts awarded in PSBCA Nos. 4913 and 4915, we agree that Respondent has demonstrated that it adequately mitigated the damages assessed against Appellant, see, e.g., Benjamin Mullins, PSBCA Nos. 5136, 5173, 05-1 BCA ¶ 32,918 at 163,063, and may recover the amounts claimed, including administrative costs assessed.

In PSBCA No. 4913 (contract 530M1), Respondent secured adequate competition, but the record indicates that it awarded the emergency contract to the second low bidder, with no explanation in the record as to why it did not make an award to the low bidder (see Finding 13). Accordingly, we adjust the amount of Respondent’s recovery under that contract to reflect what it would have recovered had it made an award to the low bidder. As a result, Respondent’s recovery in PSBCA 4913 is reduced to $24,511.89, rather than the $44,257.94 it claims, plus administrative costs.[6]

In PSBCA No. 4915, Respondent received only one offer to provide the emergency service, and made an award to that offeror at a price that represented an increase of 44 percent over the amount of Appellant’s contract (see Finding 14 and footnote 3). Because some increase in contract price is to be expected due to the short term nature of the contracts when emergency replacement service is procured, we have not always required specific evidence of efforts to mitigate damages where only modest price increases have been incurred. See. e.g., Arthur L. Johnson, PSBCA 3894, 97-1 BCA ¶ 28,773; J. Morizzo Transport Corp., PSBCA No. 1108, 84-1 BCA ¶ 17,231 at 85,813. However, where, as here, the increase in contract price is substantial, we have not allowed recovery based on the new contract price in the absence of specific evidence that Respondent made reasonable efforts to mitigate the costs to be assessed. E.g., Bowman's Transport Co., PSBCA No. 1092, 84-1 BCA ¶ 17,217. That evidence is lacking with regard to this contract.

The evidence submitted by Respondent indicates only the price of the emergency contract and the fact that the emergency contract was for the same service as the terminated contract. There is no evidence of the procedures used to solicit offers from potential contractors or any other information concerning the procedures used in awarding the replacement contract, aside from a conclusory statement suggesting that competition was obtained (Finding 14). Absent such evidence we conclude that Respondent has failed to make a prima facie showing that it made reasonable efforts to mitigate damages. Respondent has also failed to offer any evidence that we might use to estimate the market value of the reprocured services in order to calculate what a reasonable recovery would be absent Respondent's failure to mitigate. See, e.g., Bowman's Transport Co., PSBCA No. 1092, 84-1 BCA ¶ 17,217; J. Morizzo Transport Corp, PSBCA No. 1108, 84-1 BCA ¶ 17,231. Accordingly, Respondent may not recover any excess costs based on the price of this emergency replacement contract. However, inasmuch as it was Appellant’s default that caused Respondent to engage in the effort required to find a replacement contractor, Respondent may recover its administrative costs.

Accordingly, Respondent may recover $201,710.40 based on the difference in prices in the reprocurement contracts,[7] plus administrative costs in the amount of $5,429.53[8] for a total of $207,139.93. The $1,685 mentioned in the GLADNO contracting officer’s final decision as the amount already withheld for services previously rendered (Finding 17) and any other such sums are to be credited against that recovery.

Erroneous Payments

After contract 640L2 was terminated, Appellant continued to receive payments from Respondent under that contract, which payments were made erroneously (Finding 10). 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, and Appellant has not shown that this principle should not be applied here. Accordingly, Respondent is entitled to recover the amount of the erroneous payments. Negotiation of the amount of the recovery is remanded to the parties.

SUMMARY

The appeals in PSBCA Nos. 4904-12, 4914, 4916-20, 5002, and 5003 are denied. The appeals in PSBCA Nos. 4913 and 4915 are granted in part and denied in part.

David I. Brochstein

Administrative Judge

Vice Chairman

I concur:

James A. Cohen

Administrative Judge

Chairman

I concur:

Norman D. Menegat

Administrative Judge

Board Member

[1] ($388,845 - $335,390) ÷ 365 = $146.45. See Finding 6, above.

[2] The contracts specified were those associated with Docket Nos. 4905-4919. See Finding 1, above.

[3]

Docket No.	Contract No.	Amount at Termination	Replacement Contract Amount	Difference	Total Amount Charged
4905	60724	$478,267	$656,070	$177,803	$40,918.98
4906	48119	$294,500	$278,633	-$15,867	($3,651.70)
4907	53134	$205,534	$166,915	-$38,619	($8,887.49)
4908	530AS	$157.76 per trip	$217.80 per trip	$60.04 per trip	$3,422.28 (57 trips)
4909	53056	$455,337	$491,904	$36,567	$8,415.48
4910	531AR	$565.00 per trip	$504.00 per trip	-$61.00 per trip	($366.00) (6 trips)
4911	530L6	$327,639	$319,890	-$7,749	($1,783.36)
4912	531AQ	$31,336	$30,000	-$1,336	($307.35)
4913	530M1	$642,495	$834,806	$192,311	$44,257.94
4914	530L1	$264,807	$237,724	-$27,083	($6,232.80)
4915	60613	$789,279	$1,140,000	$350,721	$80,713.81
4916	60227	$1,583,536	$1,795,000	$211,464	$48,665.60
4917	530RR	$185.00 per trip	$175.00 per trip	-$10.00 per trip	($50.00) (5 trips)
4918	483U1	$539,760	$599,208	$59,448	$13,681.11
4919	53011	$450,065	$496,052	$45,987	$10,583.36
Total: $229,379.86

[4] This sum contains an error in the amount of $.01, which we otherwise ignore.

[5] The record contains a notice of appeal from the excess reprocurement cost assessment related to contract no. 640L2 (Finding 9 (PSBCA Nos. 4904 and 5003)). The record contains no notices of appeal from the excess reprocurement cost assessments with regard to the other contracts. Nevertheless, because Appellant filed timely notices of appeal of the default terminations of those contracts, the related excess reprocurement cost assessments are also at issue in this proceeding. See Hubbard Trucking Inc., PSBCA No. 3701, 04-2 BCA ¶ 32,667, and cases cited therein.

[6] (($749,005 - $642,495) ÷ 365) x 84 = $24,511.89. See Finding 13 and footnote 3, above.

[7] $13,390 [Finding 9- PSBCA 4904] + $229,379.86 - $44,257.94 + $24,511.89 – $80,713.81 [Footnote 3, as modified above- PSBCA 4905-4919] + $59,400.40 [Findings 20, 22 – PSBCA No. 4920].

[8] $210 [Finding 9] + $4,865.85 [Finding 18] + $353.68 [Finding 22].