Appeals of
STEPHEN W. SOMMER
Under Contract No. HCR 852PV
PSBCA Nos. 4990 and 5056

APPEARANCE FOR APPELLANT:
Stephen W. Sommer

APPEARANCE FOR RESPONDENT:
Robert E. O'Connell, Esq.

OPINION OF THE BOARD

            Appellant, Stephen W. Sommer, has appealed from the denial of his claims for additional compensation for services rendered under a mail delivery contract with Respondent, United States Postal Service. At the election of the parties, these appeals are being decided without a hearing, in accordance with 39 C.F.R. §955.12.  Only entitlement is at issue in this proceeding.

FINDINGS OF FACT

            1.  On March 27, 2002, Respondent issued a solicitation for emergency services, inviting telephone proposals for box delivery services on a route in the Phoenix, Arizona area for a term from April 22 to October 11, 2002.  The solicitation estimated that the route would take five hours and ten minutes per day[1] to operate and required offers to be expressed on a per annum basis.  (PSBCA No. 4990 Appeal File Tab (4990AF) 5). 

            2.  In a fax dated April 17, 2002, and addressed to an individual in the contracting officer’s office, Appellant asked that his “annual bid for this emergency contract at $19,342.00” be accepted (4990AF 1).

            3.  By letter to Appellant, also dated April 17, 2002, the contracting officer accepted Appellant’s offer, with service to begin on April 22, 2002, and asked Appellant to

“[p]lease sign and return PS Form 7405A (Transportation Services Proposal and Contract for Emergency Service) … to this office as soon as possible.  You cannot be paid until PS Form 7405A has been signed by the Contracting Officer and forwarded to the Postal Data Center.” (4990AF 2).

Form 7405A provided, in part,

“This contract may be terminated by the U.S. Postal Service upon notice of not less than 24 hours, or by the contractor upon notice of not less than 15 days; and without the allowance of any indemnity or extra pay in lieu of indemnity to the contractor.”  (4990AF 5)

            4.  Appellant began service under the contract on Monday, April 22, 2002.  However, the Postal Service personnel charged with administering the contract were immediately dissatisfied with Appellant’s performance – in particular, the length of time it took him to sort and deliver the mail on the route.  As a result, in a telephone conversation held on April 26, 2002, and confirmed by letter dated April 30, 2002, the contracting officer notified Appellant that the contract was terminated effective the close of business on April 27, 2002. In the confirmation letter, the contracting officer stated that the termination was “under Section #4, of PS Form 7405A (Transportation Services Proposal & Contract for Emergency Service): [which] states this emergency contract may be terminated upon not less than 24 hours notification.”  In the letter, the contracting officer again informed Appellant that he could not be paid for the services rendered until he completed and returned Form 7405A.  (4990AF 6, 7, 9, 10).

            5.  By letter to Appellant, dated May 29, 2002, the contracting officer noted that the Postal Service owed him payment for the April 22-27, 2002 period, and reminded him that he had to complete and return Form 7405A in order to receive the payment (4990AF 11).

            6.  By fax dated June 7, 2002, Appellant submitted a demand for payment, including a Form 7405A, alleging that because of “contract bid package misrepresentation” his bid should have been $39,838.58 (rather than $19,342.00).  Appellant complained that, because of various problems with the route and the documentation of the route, he had spent up to 12 hours per day providing the required service, rather than 8 hours per day, which he stated was the solicitation estimate.  Based on the higher contract rate, Appellant stated that his payment for the six-day period he performed the contract should be $1,183.05. (4990AF 5, 12).

            7.  On June 24, 2002, the contracting officer signed the Form 7405A and a PS Form 7409A, “Notice of Acceptance – Transportation Services Contract Proposal for Emergency Service,” which showed the contract rate to be “$19,342.00 per annum.”  (4990AF 5).

            8.  A Contract Route Service Order dated June 27, 2002, executed for the contracting officer by a representative, authorized a lump sum payment to Appellant, in the amount of $553.91 to compensate him for the additional time he spent performing the contract during its six-day term.  The representative calculated the base time using the $19,342.00 per annum contract rate originally bid by Appellant and allowed $317.94 for the six days.  In total, Appellant was allowed $871.85 for the six-day period, for both the base and additional time.  (4990AF 13; PSBCA No. 4990 Complaint/Answer).

            9.  By letter dated November 25, 2002, Appellant wrote to the contracting officer, asking for a response to his June 7, 2002 correspondence regarding payment (see Finding 6).  The contracting officer forwarded the letter to the Board, where it was docketed as PSBCA No. 4990.  (4990AF 14).

            10.  In a fax dated September 29, 2003, Appellant filed an additional claim with the contracting officer.  In that claim, Appellant asked that he be paid $19,365.38 -- the total contract price for the six-month contract (based on Appellant’s claim that the annual rate should have been $39,838.58) less the $553.91 lump sum payment he had received for additional time (see Findings 6, 8).  (PSBCA No. 5056 Appeal File Tab (5056AF) 2).

            11.  In a final decision dated October 7, 2003, the contracting officer denied Appellant’s claim.  Appellant filed a timely appeal, which was docketed as PSBCA No. 5056.  (5056AF 3).

DECISION

            Appellant contends[2] that the description of the box delivery route in the solicitation did not match the actual condition of the route, and that the route was impossible to run in the amount of time estimated in the solicitation.  Appellant argues that the solicitation misrepresented the number of customers, the mileage, and the line of travel, and that the records necessary to case and deliver the mail were missing or inaccurate.  As a result, Appellant contends that his bid should have been approximately twice what he actually bid, and that he should have been paid for the six days of actual operation based on the higher amount.  In his second claim, Appellant seeks to recover the full amount of the approximately six-month contract – also calculated based on the higher amount.

            Respondent argues that the termination of the contract was proper, based on the 24-hour termination provision, and that Appellant was entitled to recover only for the number of days he actually worked and based only on the amount of his actual bid.

PSBCA No. 4990

            In his first claim, Appellant seeks compensation for the additional time he worked during the six days he operated the route, based on what he claimed were defects in the route description contained in the solicitation.  Appellant contends that had he known of the actual route conditions, he would have bid $39,838.58 per annum, rather than the $19,342.00 he actually bid. Therefore, he sought payment based on the higher annual rate for the time he worked.  Based on the higher rate, Appellant’s calculation, which is not explained, of the total amount due him for the six-day period was $1,183.05, or $311.20 more than Respondent allowed (Finding 8).

            Appellant has not offered evidence showing that he should be paid at the higher rate he has claimed for the six days he worked. As noted above, the contracting officer allowed payment for the excess time Appellant claimed to have expended during that period (Finding 8).  However, Appellant has not shown that either the nature of the work he actually performed or any other factor was such that an annual rate higher than the one he bid should have been used to calculate the amount due.  Therefore, Appellant has not shown entitlement to additional compensation for his performance during the six-day contract period.

            Accordingly, the appeal under PSBCA No. 4990 is denied.

PSBCA No. 5056

            Form 7405A also contains the language expressly giving the Postal Service the right to terminate the contract on 24 hours’ notice, “without the allowance of any indemnity or extra pay in lieu of indemnity to the contractor.”  Having received the requisite notice (Finding 4), under that language Appellant was entitled to receive pay only for the six days he actually worked.  Appellant has made no specific arguments and provided no evidentiary basis in support of his claim for payment of the full amount of the six month contract, and we see no basis for concluding that he is entitled to recover that amount.  Accordingly, the appeal in PSBCA No. 5056 is 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] 1,566 estimated annual schedule hours divided by 303.07 annual trips (4990AF 5).

[2] Appellant did not submit a brief.  His position has been gleaned from the Complaints and documents in the Appeal Files for these appeals.