Appeal of
PHILIP WARING
Under Contract No. HCR. 83800
PSBCA No. 3588

APPEARANCE FOR APPELLANT:
Philip Waring

APPEARANCE FOR RESPONDENT:
Samuel J. Schmidt, Esq.

OPINION OF THE BOARD

            Appellant, Philip Waring, has filed an appeal from a Contracting Officer's decision denying his claim for additional compensation for an alleged changed condition in his water transportation contract.  Respondent, United States Postal Service, contends Appellant has not shown that a changed condition occurred or that he is entitled to additional compensation.  The parties have elected to have the appeal decided on the record in accordance with 39 C.F.R. §955.12.  Both parties have filed briefs.

FINDINGS OF FACT

            1.  On May 26, 1992, Appellant was awarded contract no. HCR 83800 for the performance of mail transportation service between Coeur d'Alene, ID and Black Rock Landing, ID.  (Appeal File (AF) Tab 11).  Service under the contract was to be provided from July 1, 1992, through June 30, 1996, at an annual price of $11,497 (Id.).  The contract included the provisions of the solicitation for bids and various Postal Service standard forms including PS Form 7469T, Highway or Domestic Water Transportation Contract Information and Instructions (March 1989) and PS Form 7407T, Basic Surface Transportation Service Contract General Provisions (March 1989) (Id.).

            2.  The service to be provided by Appellant was detailed in the specifications attached to the solicitation.  (AF Tab 1).  The specifications listed approximately 21 service points for mail delivery between Coeur d'Alene and Black Rock Landing for both the summer and winter months. The estimated annual mileage for the route was 6,550.8 and the estimated annual hours were 651 (Id.).  The per trip mileage for both the summer and winter months was stated to be 29.2 miles (Id.). For the winter period running from October 16 through June 15, Appellant was required to deliver mail on Tuesday, Thursday and Saturday, whereas summer delivery was to be performed six days a week (Id.). 

            3.  The solicitation provided that "[t]he estimated annual miles and per trip miles are given only as information.  Prior to submitting a bid, the bidder should determine the actual miles.  (For additional information see PS Form 7469T, Section D (Special Notices) Item No. 1.)" ( Id.).

            4.  Section D referred to in the solicitation states that:

"[t]he distance stated in this solicitation is believed to be substantially correct.  The pay will neither be increased nor decreased if the actual distance is greater or less than advertised, if the points to be supplied are correctly stated.  No claim for additional pay can be allowed which is based on alleged mistakes or misapprehensions as to the length of [the] route."  (AF Tab No. 2).

Paragraph 13 of Section D provides:

"While the law provides for adjustment of the compensation of contractors holding advertised contracts BIDDERS SHOULD NOT SUBMIT BIDS WITH THE EXPECTATION OF HAVING THEIR PAY ADJUSTED IF AWARDED A CONTRACT, AS NO INCREASE WILL BE ALLOWED EXCEPT FOR CHANGED CONDITIONS." (Id.)

            5.  Prior to submitting his bid, Appellant observed the route and determined that no customer required winter service beyond Mica Bay, the eighth service point listed in the specifications (AF Tabs 19 & 21).

            6.  During the first winter of Appellant's performance, October 16, 1992, to June 15, 1993, Mica Bay was the last service point requiring mail delivery.  During the second winter, October 16, 1993, to June 15, 1994, one customer required service at Loff's Bay, three miles south of Mica Bay (AF Tab 19).  The solicitation lists Loff's Bay as the fifteenth service point on the route (AF Tab 1).

            7.  Appellant submitted a claim for an increase in his annual compensation in the amount of $567.12, claiming that winter service to Loff's Bay was a changed condition under Section D, Paragraph 13 of PS Form 7469T (AF Tab 19).

            8.  By final decision dated December 8, 1993, the Contracting Officer denied Appellant's claim for additional compensation (AF Tab 23).  Appellant filed a timely appeal from the Contracting Officer's decision.

DECISION

            Appellant contends that the solicitation directed bidders to determine the actual mileage on the route, which he did by observing the route prior to submitting his bid.  Based on this observation, Appellant argues he correctly and reasonably believed that winter service was only required as far south as Mica Bay.  As a result, Appellant contends he prepared his bid on the basis of providing winter service to Mica Bay and the requirement to provide service to Loff's Bay is a changed condition entitling him to additional compensation. 

            Respondent contends that Loff's Bay was listed as one of the points of service during the winter period and therefore the requirement to provide service to that point is not a changed condition.  According to Respondent, Appellant's reliance on his observation of the route and the solicitation provision relating to actual miles to arrive at the conclusion that he did not have to provide service beyond Mica Bay was a mistake or misapprehension for which he is not entitled to be compensated.

            The solicitation clearly and unambiguously listed the delivery points requiring mail service for both the summer and winter periods.  Loff's Bay was one of those points.  The solicitation also clearly stated that bidders should determine the route's actual mileage prior to bidding because no additional compensation would be allowed if the service points were correctly stated. 

            There is no evidence that the service points were incorrectly stated or that Appellant was required to deliver to a destination not listed in the specifications.  In addition, there is no evidence that the estimated annual mileage, the per trip mileage, or the estimated annual hours were inaccurate.  While service to Loff's Bay was not being performed when Appellant observed the route prior to bidding, it was nonetheless listed in the specifications as a delivery point that Appellant was required to serve.  Appellant was not relieved of the responsibility for performing the service because it had not been previously needed.  When he bid, Appellant assumed the risk that he would have to deliver to all of the service points listed in the specifications.

            Since service to Loff's Bay was required under the terms of the contract, it cannot be considered a changed condition entitling Appellant to additional compensation.  Accordingly, Appellant's appeal is denied.

James A. Cohen
Administrative Judge
Chairman

I concur:
James D. Finn, Jr.
Administrative Judge
Vice Chairman

David I. Brochstein
Administrative Judge
Board Member