Appeal of

BARBARA SCHWEISS

Under Contract Nos. HCR 63687 and HCR 636A6
PSBCA Nos. 4818 and 4819

APPEARANCE FOR APPELLANT:
Barbara Schweiss

APPEARANCE FOR RESPONDENT:
Samuel J. Schmidt, Esq.

OPINION OF THE BOARD

            Appellant, Barbara Schweiss, has appealed from the denial of her claims for additional compensation under two mail delivery routes that she operates under contracts with Respondent, United States Postal Service.  These appeals are being decided on the record in accordance with 39 C.F.R. §955.12.  Only entitlement is at issue in this proceeding.

FINDINGS OF FACT

            1.  Appellant was awarded contracts HCR 636A6 and 63687 on June 8, 1998.  The contracts required Appellant to deliver mail along two routes originating at the
Bloomsdale, Missouri Post Office, for the period of July 1, 1998, through June 30, 2002.  The contracts required the routes to be operated on a daily basis, except Sundays and holidays.  For at least five years before July 1, 1998, Appellant had operated a single contract route.  As of July 1, 1998, the Postal Service split the single route into the two routes covered by the contracts at issue in these proceedings.  (PSBCA 4818 Appeal File Tab (4818 AF) 2; PSBCA No. 4819 Appeal File Tab (4819 AF) 2; Declaration of Bruce Ferguson, dated March 7, 2002 (Ferguson Decl.), paragraph 3).

            2.  Contract HCR 63687 required Appellant to depart the Bloomsdale Post Office at 9:10 a.m. and to return by 12:40 p.m., for a total "street" time of 3 hours and 30 minutes.  The contract also identified a period of 2 hours and 10 minutes each day for "casing" (sorting) the mail prior to departing and 10 minutes for "mark up" after returning.  Thus, the total time estimated in the contract to operate this route was 5 hours and 50 minutes each day.  (4818 AF 2).

            3.  Contract HCR 636A6 required Appellant to depart the Bloomsdale Post Office at 9:45 a.m. and to return by 11:20 a.m., a total of 1 hour and 35 minutes of delivery time.  Additionally, the contract estimated a period of 45 minutes each day for casing the mail prior to departing and 5 minutes for "mark up" after returning.  Therefore, the total time estimated in the contract to operate this route was 2 hours and 25 minutes daily.  (4819 AF 2).

            4.  Both contracts contained "estimated annual schedule hours" with the following note:

"The estimated annual hours are approximately the number of hours needed to operate the trips as they are shown in the schedule.  Also included in the total estimated annual hours are the number of hours needed for casing, loading/unloading and mail mark-up."  (4818/4819 AF 2)

            5.  Both contracts also contained the following provision:

"ADJUSTMENTS FOR ROUTE EXTENSIONS OR EN ROUTE BOXES:  Adjustments for extensions and en route boxes will be processed using the following formula.  Adjustments in the annual hours for casing and route operations will be computed using two constant factors.  Multiply the number of additional boxes by 3.64 and the additional miles by 10.40.  The sum of the two equals the new hours added to the contract.  Adjustments for compensation will be made by the Contracting Officer to the cost worksheet pro-rata."  (Id.)

            6.  Because of the significant overlap in the required delivery times of the two contracts (see Findings 2, 3), it was impossible for the same driver to perform both routes in conformance with the contract schedules.  Appellant originally intended to drive one of the routes herself and to have her husband drive the other.  However, prior to the start of contract performance, Appellant's husband was diagnosed with a serious illness and was unable to operate the route as planned.  At Appellant's request, the Bloomsdale Postmaster agreed to allow Appellant to operate the routes consecutively, and Appellant did so from the inception of the contract until at least March 2002.  (Ferguson Decl.).

            7.  From September 26, 2001, through November 1, 2001, Petitioner worked an average of 8 hours and 14 minutes per day in operating the two routes.  This total included time for casing, delivery, and mark-up.  (Declaration of Timothy Brockman, dated March 6, 2002, ¶¶ 5-7; Appellant's submittal dated November 17, 2001).

            8.  As of October 2001, Appellant was delivering mail to 390 boxes under contract HCR 63687, rather than the 365 boxes set out in the contract when awarded.  In addition, Appellant was delivering mail to 172 boxes under contract HCR 636A6, rather than the 147 boxes set out in that contract when awarded.  (Appellant's submittal dated November 17, 2001 (Box Delivery Contract Route Surveys, PS Forms 5406)).

            9.  Mail volume at the Bloomsdale Post Office had steadily increased since March 1996 (Statement of Bruce Ferguson, dated February 10, 2002).

            10.  In February 2001, the Bloomsdale Postmaster submitted to Respondent's "Delivery Programs" personnel in Kansas City, Missouri, a request that the casing time in Appellant's contracts be increased (4818/4819 AF 3).^[1]  That request was denied and, by letters of March 14, 2001, the postmaster advised Appellant of the denial (4818/4819 AF 1).

            11.  In August 2001, Appellant filed notices of appeal from the postmaster's letters.  Because of some question as to whether Appellant's requests for an increase had been reviewed by a contracting officer, that review was undertaken in December 2001.  In a final decision dated December 27, 2001, the contracting officer denied Appellant's request for an increase in the casing time.  The basis for the denial was that the total time worked by Appellant on the two routes was less than the total time estimated for the two routes in the contracts.  (Attachment to Respondent's status report, dated January 2, 2002).

DECISION

            Appellant argues that the amounts of time stated in her contracts for casing are less than the casing time actually required for her two routes, and that this has been so since the contracts were awarded to her in June 1998.  Appellant contends that she informed Respondent's personnel of the problem at the beginning of the contract term, but that they refused to take any action.  Appellant argues that, based on what turned out to be erroneous estimates in the contracts, she is entitled to contract adjustments.  In addition, Appellant states that two other contractors from the same post office, whose requests for increases in casing time were also denied and who also appealed to this Board, reached settlements of their claims in which Respondent allowed increases in time.  Based on these settlements, Appellant argues that she should be entitled to a similar adjustment, and contends that inasmuch as the other two contractors were male, she is being discriminated against on the basis of gender.

            Respondent argues that there are no contract provisions providing for an increase in time based on volume fluctuations alone.  Further, Respondent argues that there is neither an allegation nor any evidence that the contracting officer directed any change in Appellant's contract routes.  Finally, Respondent argues that the evidence demonstrates that there has been no increase in the total time necessary to run the two routes.

            Having considered the evidence and arguments, we agree with Respondent that Appellant may not recover on her claims.  Appellant was the incumbent on the contract that was split to make the two contracts involved in these appeals and, therefore, was in the best position to know whether the times set out in these contracts were understated before entering into them.  According to Appellant, when negotiating for the renewal of these contracts she submitted price proposals she considered reflective of the actual volume of mail, but these were rejected by the contracting officer as too high.  Respondent made a lower counterproposal, which Appellant accepted.  However, she was ultimately free to decline to enter into the contracts if she believed that they significantly understated the amount of time necessary to run them or inadequately compensated her for her performance, given the volume of mail she knew had to be cased and delivered.  See, e.g., Robins Maintenance, Inc., 265 F.3d 1254 (Fed. Cir. 2001).  Further, the record does not show that the amount of time necessary to case the mail for the two contracts increased significantly from the award date to the point at which the postmaster requested adjustments.  In addition, the total annual contract performance times, from which the daily times were derived, were specifically described as estimates and approximations (Finding 4), and the record shows that the total time needed by Appellant to operate the two routes did not exceed the total time estimated in the contracts.  As indicated above, the time Appellant needed to operate the two routes was an average of 8 hours and 14 minutes per day (Finding 7).^[2]  This total is almost exactly the same as the sum of the times estimated in the contracts, which sum was
8 hours and 15 minutes (Findings 2, 3).  Under these facts, Appellant has not shown entitlement to an increase in payments under her contracts.

            With regard to Appellant's argument concerning settlements reached by the other two contractors, the fact that the other parties were able to reach settlements that included an increase in time does not automatically entitle Appellant to a similar result.  The limited record before us gives no indication of just what considerations by the parties led to the settlements in the other appeals.  That the other contractors were able to reach settlements has no bearing on Appellant's rights under her contracts.  See, e.g., Patricia J. Stevens, PSBCA No. 3272, 94-1 BCA ¶26,419.  Further, the fact that the other two contractors were male is, without more, insufficient evidence to support a conclusion that Respondent's personnel improperly discriminated against Appellant on the basis of gender.

            In a letter to the Board received on July 17, 2002, Appellant reports that her contracts were renewed as of July 1, 2002, and that the casing times in the renewed contracts were increased to the levels she was requesting in connection with these appeals.  Appellant states that this supports her claim for "back pay" under the previous contracts.  However, the fact that Respondent agreed to a higher level of pay under the renewed contracts is not relevant to a determination of the parties' rights under the previous contracts, see, e.g., Intram Co., ASBCA No. 44159, 94-1 BCA ¶ 26,375; Wilson Constr., Inc., AGBCA No. 89-178-1, 92-2 BCA ¶ 24,798; Robert McMullan & Son, Inc., ASBCA No. 32460, 87-1 BCA ¶ 19,364, and does not change our conclusions.

            Appellant has failed to meet her burden of showing entitlement to an increase in the amount of her contracts.  Accordingly, the appeals are denied.

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]   Although the February 2001 letter in the record specifically mentions a different contractor, Appellant submitted the letter as reflecting that a request was also made on her behalf.  (Attachments to notices of appeal).

     [2]   We accept the times recorded for the period of September 26 through November 1, 2001, which were submitted by Appellant, as representative of the times generally experienced in running the two contracts consecutively.  Further, since the reported times were from a period relatively late in the contract term, those times would reflect any general increase in volume that may have occurred since contract award (see Finding 9).