November 23, 2011         

Appeals of

ROGER W. HOLCOMBE

PSBCA Nos. 5365 and 6120

APPEARANCE FOR APPELLANT:
Roger W. Holcombe

APPEARANCE FOR RESPONDENT:
Melissa M. Mortimer, Esq.

OPINION OF THE BOARD

            Appellant, Roger Holcombe, filed timely appeals from two contracting officer final decisions.  The first final decision terminated his mail delivery contract for default.  The second final decision assessed excess reprocurement costs against him.  Appellant’s appeal of the termination was docketed as PSBCA No. 5365, and his appeal of the excess cost assessment was docketed as PSBCA No. 6120.  Both entitlement and quantum were before the Board. 

Our April 1, 2011 decision in Roger W. Holcombe, PSBCA Nos. 5365, 6120, 11-1 BCA ¶ 34,725 (Holcombe I), among other holdings, granted Respondent contingent recovery of “its additional daily costs associated with the replacement contract for an 857 day period subject to a showing that performance under the replacement contract was accomplished and that additional costs were incurred.”  We assume familiarity with this decision.

On April 29, 2011, Respondent filed “Record of Payment to Replacement Supplier”[1] wherein it asserts that the replacement transportation services have been performed and that Respondent has tendered payment therefore to the replacement contractor.  Consequently, Respondent requests payment from Appellant in the amount of $44,628.40.  Appellant did not submit a response, despite being given the opportunity to do so (Order, May 25, 2011).

FINDINGS OF FACT

1.  Performance under Appellant’s contract commenced on December 3, 2005, and was to have concluded on June 30, 2009 (Holcombe I, Finding 6).

2.  Respondent terminated the contract for default.  At the time of termination, the annual rate of Appellant’s contract was $36,885.14.  (Holcombe I, Finding 18).  Had Appellant continued performance for the remaining 857 days of his contract, Respondent would have paid him $86,604.28 for that period.[2]

3.  On February 21, 2007, the contracting officer awarded replacement contract No. HCR 895A4 to provide the same service as provided by Appellant under his terminated contract.  The replacement contractor’s performance began on February 24, 2007, and continued through June 30, 2010.  (Holcombe I, Finding 21; Luke Decl. ¶¶ 3, 4).

4.  The replacement contractor performed the replacement contract in its entirety (Luke Decl. ¶ 4).

5.  The difference between the replacement contract rate of $55,363.39 per annum and Appellant’s contract rate of $36,885.14 per annum was $18,478.25, or $50.63 per day.  The Board found Respondent entitled to recover $50.63 per day for an 857-day period for a total of $43,389.91, contingent on Respondent showing actual performance by, and payment to, the replacement contractor.  (Holcombe I).

6.  Respondent paid the replacement contractor a total of $135,378.89 under the replacement contract for the applicable 857-day period (Luke Decl., Exhibit 1).[3]  The difference between this amount and what would have been paid Appellant (Finding 2) is $48,774.61.

DECISION

            Respondent asks that the Board hold that it is entitled to recover excess reprocurement costs in the amount of $44,628.40.  We have already allowed the recovery of $1,238.49 in Holcombe I.  Recovery of the balance - 857 days at $50.63 per day, or $43,389.91 - was contingent upon a showing that the replacement contract was performed, and payment for that performance was tendered to the replacement contractor.  In this regard, we have found that the replacement contract was fully performed and compensation for that performance was tendered to the replacement contractor.

            With regard to the amount to be recovered, we have found that Respondent paid $48,774.61 more to the replacement contractor than it would have paid to Appellant for the applicable 857-day period (see Finding 6).  Inasmuch as this is in excess of the balance sought by Respondent ($43,389.91), Respondent has demonstrated that it has paid at least the requested amount to the replacement contractor.

            Accordingly, Respondent has satisfied the contingencies set out in Holcombe I for the recovery of excess reprocurement costs, and it may recover the balance of $43,389.91 from Appellant.

 William A. Campbell
Administrative Judge
Chairman

I concur:                                                                      I concur:
David I. Brochstein                                                    Norman D. Menegat
Administrative Judge                                                Administrative Judge
Vice Chairman                                                          Board Member

[1] Included in Respondent’s Record of Payment to Replacement Supplier submission is the Declaration of R. Luke  (Luke Decl.), dated April 28, 2011 with an exhibit entitled “Supplier Payment History Report” detailing payments made to the replacement contractor from February 27, 2007, through June 30, 2009. 

[2] ($36,885.14 ÷365) x 857 = $86,604.28

[3]  Of the payments shown in Exhibit 1 to Mr. Luke’s Declaration, the $3,287.82 payment made on February 27, 2007, was not considered in determining the amount paid under the replacement contract as it was apparently made under a different contract.  The remaining payments made to the replacement contractor totaled $135,378.89.