UNITED STATES COURT OF CLAIMS
V. JEROME WIEMAN, T/A MERCHANT SERVICE
v.
THE UNITED STATES
No. 109-80C
1981 U.S. Ct. Cl. LEXIS 1563
Slip Opinion
V. Jerome Wieman, plaintiff, pro se.
Randall B. Weill, with whom was Assistant Attorney General Alice
Daniel, for
defendant.
ON PLAINTIFF'S MOTION AND DEFENDANT'S CROSS-MOTION FOR SUMMARY
JUDGMENT
* The trial judge's recommended decision and conclusion of law
are submitted in accordance with the court's order of April 10,
1981, and Rules 54 and 166. The necessary facts are stated in the
opinion.
WHITE, Senior Trial Judge: The plaintiff seeks to recover a total
of approximately $ 3,600,000, representing damages which he
allegedly sustained in connection with two "requirements"
contracts that the Government Printing Office (GPO) awarded to
the plaintiff on July 1, 1975. The plaintiff received the
contracts pursuant to a competitive bidding procedure in which
the plaintiff was the low bidder.
Under one contract, No. 373, the plaintiff was to provide hauling
service for a 15-month period (July 1, 1975 - September 30, 1976)
between the GPO warehouse in Franconia, Virginia, and various
government agencies located in the Washington, D.C., Commercial
Zone, as defined by the Interstate Commerce Commission. Contract
373 was later amended by a change order to include also hauling
service between the Franconia warehouse and the Senate Office
Building in Washington, D.C.
Under the other contract, No. 374, the plaintiff was to provide
hauling service for the same 15-month period between the GPO
warehouse in Franconia and the GPO headquarters in Washington,
D.C.
The two contracts contained an identical "default" provision; and
they both contained the usual "changes" and "disputes" provisions
that are customarily included in government contracts.
Both the plaintiff and the GPO apparently were dissatisfied with
their contractual relationship.
The plaintiff discontinued the performance of hauling services
for the GPO at the beginning of April 1976. On April 4, 1976,
the plaintiff dispatched a teletypewriter message (TWX) to the
GPO, stating that he was "unable to continue contract numbers 373
and 374 dated July 1975 having finally been run off the job a
victim of your management improprieties and the conspiracy and
sabotage perpetrated by the inhabitants of the GPO operation at
Franconia Virginia."
The message referred to in the preceding paragraph was received
by the GPO on April 5, 1976. That same day, the GPO dispatched
to the plaintiff, at the address used in all previous
communications, a telegram stating that the plaintiff's failure
to make deliveries was considered to be "a condition that is
endangering the performance of the contract[s]," and that "unless
such condition is cured within 24 hours after receipt hereof the
Government may terminate such contracts for default * * *." This
telegram was not delivered to the plaintiff, however, as the
plaintiff had left the address to which the telegram was sent,
there was no one present at such address to accept delivery of
the telegram, and Western Union was unable to obtain a new
address or telephone number for the plaintiff.
The plaintiff having failed to resume deliveries, the GPO sent to
the plaintiff on April 6, 1976, a notice stating that he was
being held in default under the "default" provision of the
contracts.
I. Ownership of Claims
A question was raised in an earlier stage of the case concerning
the ownership of the claims asserted by the plaintiff, in view of
the 1978 bankruptcy proceedings before the United States District
Court for the District of Maryland in which the plaintiff was
involved.
At a conference which the trial judge held on June 19, 1981, with
the plaintiff, acting pro se, and the attorney of record for the
defendant, counsel for the defendant stated that, upon the basis
of an examination of the record in the pertinent bankruptcy
proceedings, he had concluded that the plaintiff is the owner of
the claims asserted in the petition. Accordingly, counsel for
the defendant withdrew any question or contention previously
raised concerning the ownership of the claims, and conceded that
the plaintiff has the right to prosecute them.
II. Administrative Proceedings
By means of a letter dated April 30, 1976, and addressed to
Public Printer, the plaintiff submitted "a claim for damages in
the amount of $ 88,336.76 incurred while serving under your
contract numbers 373 and 374 dated July 1975." Along with the
letter, the plaintiff submitted a considerable volume of
supporting material, which indicated that the total claim of $
88,336.76 included a number of separate items that varied in
amount from $ 292.28 to $ 34,322.68.
In accordance with subsequent correspondence between the GPO and
the plaintiff, the plaintiff's letter of April 30, 1976, was
treated as if it were a claim submitted to the contracting
officer in accordance with the terms of the respective contracts.
In a decision rendered on November 9, 1976, the contracting
officer denied all aspects of the plaintiff's claim.
The plaintiff thereupon took a timely appeal to the Contract
Appeals Board of the GPO (the Board) under the "disputes"
provision of the respective contracts.
After holding a hearing in January 1979, the Board denied the
plaintiff's appeal in a decision dated February 11, 1980.
The plaintiff thereafter filed his petition with the court on
September 19, 1980. The parties then filed the pending cross-
motions for summary judgment.
III. Alleged Breach of Contract
According to the petition, the plaintiff seeks to recover $
3,500,000 -- or the major portion of the overall amount claimed
in the petition -- because the defendant allegedly breached
contracts 373 and 374.
The allegations in the petition on this point are general and
refer to "harassment of Plaintiff * * * by Government Printing
Office Personnel, with the design and intent of forcing Plaintiff
to abandon his contracts." The result (according to the petition)
was that "Plaintiff was forced, against his will, to abandon said
Contracts, rather than suffer additional damages," and was
"forced out of business and into the ignominious state of
personal bankruptcy."
The claim for $ 3,500,000 was not involved in the administrative
proceedings before the contracting officer and before the Board.
It will not be adjudicated in the present opinion, but will be
reserved for further judicial proceedings, which will include
(inter alia) some clarification of the specific actions by GPO
personnel on which the breach-of-contract claim is based.
The subsequent discussion relates only to the claim items
totaling $ 88,336.76 which the plaintiff submitted in the
administrative proceedings, and the Board's decision on such
items.
IV. Alleged Intimidation of Witness
Among the numerous attacks made by the plaintiff on the validity
of the Board's decision is one relating to the alleged
"harassment and intimidation of the Plaintiff's key witness by a
Supervisor on the payroll of the Government Printing Office."
This allegation apparently relates to an incident involving
Robert Beach, chief of a branch in the Stores Division of the
GPO, who was called as a witness for the plaintiff at the hearing
before the Board. Sometime during the week that preceded the
hearing, Lawrence Hall, Assistant Chief of the Stores Division,
remarked to Mr. Beach, "I hear that you are now a hostile witness
against the Government Printing Office." Mr. Beach replied that
he was not a hostile witness against the GPO, but that he had
made statements about the case several years previously, and he
stood by those statements.
When asked on the witness stand about the incident, Mr. Beach
testified before the Board that he did not like, and was very
upset over, Mr. Hall's remark to him about being a hostile
witness against the GPO.
There is nothing in the administrative record, however, to
indicate that Mr. Beach was intimidated by Mr. Hall's remark or
attitude, or that Mr. Beach's testimony at the hearing was
affected in any way by the incident. On the contrary, Mr. Beach
seemed to testify readily and fully concerning the matters about
which he was asked and of which he had knowledge.
Consequently, irrespective of the obvious impropriety of Mr.
Hall's remark, this incident apparently did not result in any
prejudice to the plaintiff and, therefore, does not provide an
adequate basis for overturning the decision of the Board.
V. Tort Claim
One of the claims submitted by the plaintiff in the
administrative proceedings was for $ 4,400 and was based upon
physical damage allegedly done to highway trailers used by the
plaintiff in the performance of the contracts. The plaintiff
contended that such damage resulted from the careless or
malicious acts of GPO personnel while loading the trailers at the
Franconia warehouse.
This aspect of the claim which the plaintiff submitted in the
administrative proceedings, based on the alleged tortious conduct
of GPO personnel, was outside the jurisdiction of the Board under
the "disputes" provision of the respective contracts. The
jurisdiction of a board of contract appeals under the standard
"disputes" clause in government contracts is limited to claims
for equitable adjustments, for time extensions, and for other
remedies under specific contract provisions authorizing such
relief. See United States v. Utah Construction & Mining Co., 384
U.S. 394, 405 (1966).
Accordingly, it was not necessary for the Board to consider (as
it did) whether the evidence established that actions by GPO
personnel caused damage to the plaintiff's equipment. The Board
reached a negative conclusion on this factual issue, but, in view
of the jurisdictional defect, there is no occasion for the court
to review the propriety of such determination.
It should also be stated, in this connection, that the
plaintiff's tort claim cannot be considered by this court de
novo, as the court has no jurisdiction over tort claims.
Transcountry Packing Co. v. United States, 215 Ct. Cl. 390, 399,
568 F. 2d 1333, 1338 (1978). Section 1491 of title 28, U.S.C.,
expressly excludes "cases sounding in tort" from this court's
general jurisdiction under the Tucker Act.
However, in the subsequent proceedings on the plaintiff's breach-
of-contract claim, the plaintiff will be afforded an opportunity
to prove (if he can) that acts by GPO personnel damaged his
equipment and thereby interfered with his performance of the
contracts.
VI. Funds Withheld
Another claim submitted by the plaintiff in the administrative
proceedings was in the amount of $ 10,944.30, and it was for
services actually performed under the contracts (according to the
plaintiff) and not paid for by the GPO.
It appears from the administrative record that some funds
otherwise due the plaintiff for services performed under the
contracts were withheld by the GPO because: (1) the Internal
Revenue Service on April 20, 1976, filed a notice of levy in the
amount of $ 10,160.44 against the plaintiff; (2) the IRS on June
22, 1976, filed a second notice of levy against the plaintiff,
this one being in the amount of $ 15,226.21; and (3) the
Department of Labor filed a notice requesting that the sum of $
3,681.19, out of any moneys owed the plaintiff, be paid to the
Wage and Hour Division of the Department for disbursement to the
plaintiff's unpaid employees.
At the hearing before the Board, the plaintiff did not present
any evidence tending to prove the invalidity of the notices filed
by the IRS and the Department of Labor, or to prove that it was
improper for the GPO, in accordance with such notices, to
withhold funds otherwise due the plaintiff for services performed
under the contracts.
In the absence of evidence to the contrary, it must be held -- in
view of the presumption of validity which supports the legality
of official administrative actions (Kalvar Corp. v. United
States, 211 Ct. Cl. 192, 198-99, 543 F. 2d 1298, 1301-1302
(1977); Sun Oil Co. v. United States, 215 Ct. Cl. 716, 746, 572
F. 2d 786, 805 (1978)) -- that the notices from the IRS and the
Department of Labor were proper, and that the GPO acted properly
in withholding funds otherwise due the plaintiff, upon receiving
the notices from the other agencies.
Consequently, the Board did not err in denying this aspect of the
plaintiff's claim.
VII. Extra-Contractual Services
A majority of the claim items involved in the administrative
proceedings were for additional compensation in connection with
what the plaintiff referred to as extra-contractual services
demanded by the GPO under contract 364 and performed by the
plaintiff.
Section 1 of the schedule in contract 364 contained three
numbered items that described the services that were to be
performed by the plaintiff under that contract.
Item 1 covered "Hauling Roll Stock Paper, Flat paper, blank
envelopes and knocked-down cartons from Franconia, Virginia, to
the GPO, Wash, D.C. and occasional backhaul," for which the
plaintiff was to be paid at the rate of 12.3 cents per cwt.
Item 2 covered "Hauling elec. trucks, same as above, one-way haul
either direction."
Item 3 covered "Occasional hauling of unweighed paper materials
between the GPO and * * * Franconia, Va.," for which the
plaintiff was to receive $ 34.50 per truckload.
(a) M Street Warehouse. The plaintiff claimed $ 3,186.93 as
additional compensation in connection with the performance of
"hauling services involving the 'M' Street warehouse."
The written document which the plaintiff submitted to the
contracting officer on this claim item asserted that there were
24 such hauls, that the plaintif was required to render "Same day
pick up and delivery" service on these hauls, that the plaintiff
was paid $ 1,013.07 for hauling the 24 loads (presumably at the
contract rate of 12.3 cents per cwt.), that he should have been
paid $ 175 per load, or a total of $ 4,200, for the "expedited
service," and that the GPO still owed him $ 3,186.93 ($ 4,200
minus $ 1,013.07) on the 24 loads involving the M Street
warehouse.
Contract 374, as previously indicated, did not mention that the
plaintiff was required to perform hauling service to or from any
warehouse located on M Street. The "changes" provision of the
contract, however, provided in part that "The Contracting Officer
may, at any time, by a written order * * * make changes within
the general scope of the contract in any one or more of the
following: * * * (c) the place of origin, [or] (d) the place of
delivery * * *"; and that "If any such change causes an increase
* * * in the cost of * * * performance of any part of the work or
services under this contract, * * * an equitable adjustment shall
be made in the contract price * * *."
A requirement for the performance of hauling service by the
plaintiff between the M Street warehouse and the GPO
headquarters, or between the M Street warehouse and the Franconia
warehouse, would seem to have been "within the general scope" of
contract 374; and, therefore, it would have been appropriate for
the contracting officer to issue a change order amending contract
374 so as to provide for such hauling service (just as the
contracting officer, by means of a change order, amended contract
373 so as to include the performance of hauling service between
the Franconia warehouse and the Senate Office Building within the
language of that contract). The contracting officer, however,
did not issue any written order including service to or from the
M Street warehouse within the written language of contract 374.
The evidence in the record shows that, in the administration of
contract 374, responsible GPO officials made it plain to the
plaintiff that Roger King, the GPO official directly in charge of
the Franconia warehouse, was authorized to give the plaintiff
instructions as to what hauling services the plaintiff was to
perform, and that the plaintiff was expected to comply with Mr.
King's directives. The evidence also shows that it was Roger
King who normally gave the plaintiff instructions (usually in the
afternoon of the preceding day) as to what hauling services the
plaintiff was to perform on a particular day. Consequently,
although the evidence on this point in the record is not as clear
as would be desirable, the only reasonable inference to be drawn
from the evidence is that Roger King, in the administration of
contract 374, directed the plaintiff to haul commodities to or
from the M Street warehouse.
Even though Mr. King was not expressly authorized to issue change
orders, the evidence shows that the GPO acquiesced in, and
accepted the benefits flowing from, Mr. King's orders. In view
of this, Mr. King's directives that the plaintiff perform hauling
services to or from the M Street warehouse must, in all fairness,
be regarded as constituting a constructive change order,
entitling the plaintiff to the benefits of the "changes"
provision of contract 374, upon proper proof. Cf. Chris Berg,
Inc. v. United States, 197 Ct. Cl. 503, 525-26, 455 F. 2d 1037,
1050-51 (1972).
Unfortunately for the plaintiff, the administrative record does
not contain the sort of proof that would be necessary to support
the plaintiff's claim for additional compensation in connection
with the performance of hauling service to or from the M Street
warehouse.
There is no evidence in the record tending to show that the
performance of such service caused any increase in the
plaintiff's costs, over what his costs would have been in
connection with the performance of the same sort of hauling
service between the Franconia warehouse and the GPO headquarters
(the places specifically mentioned in contract 374), or that the
price of 12.3 cents per cwt. prescribed in the contract was
unreasonably low in connection with the hauling service to or
from the M Street warehouse, or that the charge of $ 175 per load
which the plaintiff sought would have constituted a reasonable
charge for such hauling service, or that the plaintiff was
actually required to provide "expedited service" in connection
with pickups from or deliveries to the M Street warehouse.
(b) Farrington warehouse. The preceding discussion with respect
to the M Street warehouse is also applicable to the claim item
which the plaintiff submitted on April 30, 1976, for additional
compensation of $ 717.59 in connection with the performance of
"hauling services involving the 'Farrington' warehouse."
(c) Miscellaneous commodities. The plaintiff claimed additional
compensation of $ 5,574.98 for hauling 38 loads of commodities
which were not expressly named among the commodities described in
contract 374 as being within the terms of that contract. The
plaintiff's statement on this claim item referred to these
commodities under such designations as "Solid load of Documents,"
"Solid load of Pallets," "Load of Documents & Pallets," "Solid
Load of Document Stock." etc. The plaintiff's statement asserted
that he was paid $ 1,075.02 for hauling the 38 loads (presumably
at the contract rate of 12.3 cents per cwt.), and that he should
have been paid $ 175 per load for "same day pick up and delivery"
service, or a total of $ 6,650 for the 38 loads, thus leaving $
5,574.98 still due the plaintiff.
Much of what has been said previously in connection with the M
Street warehouse claim applies also to the claim now under
consideration. The "changes" provision in contract 374
authorized the contracting officer, by written order, to make
changes within the general scope of the contract as to (among
other things) "(b) work or services, * * * [or] (e) tonnage to be
shipped." As the commodities involved in the claim now under
consideration were similar in nature to those expressly named in
contract 374, a formal change order by the contracting officer
amending contract 374 so as to include the commodities involved
in the 38 loads within the description of commodities set out in
the contract would have been appropriate. However, no such formal
change order was issued.
Again, it must be inferred from the evidence that Roger King, the
GPO official who customarily instructed the plaintiff as to what
commodities were to be hauled each day, directed the plaintiff to
haul the various commodities that were involved in the 38 loads
on which this claim was based. As the GPO acquiesced in, and
accepted the benefits flowing from, such directives, Mr. King's
directives must be regarded as constituting a constructive change
order entitling the plaintiff to the benefits of the "changes"
provision of contract 374, upon proper proof.
However, this claim item must also be rejected for the same sort
of failure of proof that required the rejection of the
plaintiff's M Street warehouse claim. The administrative record
does not contain the type of evidence that would entitle the
plaintiff to recover on this claim. There is no evidence showing
that the plaintiff's costs in hauling the commodities involved in
the 38 loads were greater than what his costs would have been in
hauling, under similar circumstances, commodities expressly named
in contract 374, or that the contract rate of 12.3 cents per cwt.
was unreasonably low for hauling the commodities involved in the
38 loads, or that the charge of $ 175 per load which the
plaintiff requested would have been a reasonable charge for this
service, or that "same day pick up and delivery" service was
required with respect to these commodities or (if required)
caused him any unusual difficulty or extra costs.
(d) Occasional hauling. Item 3 of section 1 of the schedule in
contract 374 called for "Occasional hauling of unweighed paper
materials between the GPO and * * * Franconia, Va." at $ 34.50
per truckload.
Among the claim items submitted by the plaintiff on April 30,
1976, was one that arose (according to the plaintiff's statement
of the claim) in connection with the hauling of 43 loads of
unweighed paper materials from the GPO headquarters to the
Franconia warehouse. It appears from the plaintiff's statement
of this claim item that the plaintiff was paid at the contract
rate of $ 34.50 per truckload for hauling each of the 43 loads of
unweighed paper materials. The plaintiff contended, however,
that only seven of the 43 loads could properly be regarded as
coming within the category of "occasional hauling" and,
therefore, that 36 of the 43 loads constituted extra-contractual
services which the plaintiff was required to render and for which
he was entitled to additional compensation, over and above the
contract rate of $ 34.50 per load. This particular claim was in
the amount of $ 5,058 (36 truckloads at $ 175 per load for
"expedited service," or a total of $ 6,300, minus the $ 1,242
actually received for hauling the 36 loads at $ 34.50 per load).
The word "occasional" in item 3 was undoubtedly used in the sense
of "Occurring at irregular intervals; infrequent." WEBSTER'S NEW
INTERNATIONAL DICTIONARY (2nd edition, unabridged (1955)).
The plaintiff's performance under contract 374 continued over a
period of 9 months; and the 43 loads of unweighed paper materials
therefore averaged slightly less than 5 loads per month. Hence,
the various demands that the plaintiff haul unweighed paper
materials were clearly infrequent, inasmuch as contract 374
required that the plaintiff be prepared to haul up to a maximum
of 450,000 1bs. of materials each day, Monday through Friday, and
also on Saturday, unless otherwise notified (see the discussion
in (e), infra).
The information outlined by the plaintiff in support of this
claim item indicated that the time intervals between consecutive
loads of unweighed paper materials varied all the way from 1 day
to 13 days. Accordingly, these loads were not only infrequent,
but they occurred at irregular intervals as well.
It must be concluded, therefore, that according to the
information set out by the plaintiff in his statement of this
claim item, none of the 43 loads of unweighed paper materials
represented service outside the language of item 3 of section 1
of the schedule in contract 374.
(e) Saturday hauling. The plaintiff's claim, as submitted on
April 30, 1976, included an item of $ 292.28 in connection with
hauling a load of paper stock on Saturday, January 10, 1976. The
statement on this item indicated that the load consisted of
46,926 1bs., for which the plaintiff was paid at the contract
rate of 12.3 cents per cwt., or $ 57.72. The statement said that
the plaintiff was not notified on the preceding day (Friday) that
this service would be required on Saturday and, therefore, that
such hauling constituted extra-contractual service, for which the
plaintiff should have been paid $ 175 for "same day pick up and
delivery" and an additional $ 175 for working on Saturday, or a
total of $ 350. Thus, according to the statement of the claim
item, the sum of $ 292.28 was still due the plaintiff.
It appears to have been the plaintiff's position that he was not
required by contract 374 to provide hauling service on Saturday
unless he was notified earlier in the week that such service
would be required. The pertinent provision of the contract
specifications (section 2 of the schedule) was paragraph (c),
which provided as follows:
(c) The carrier will be required to furnish the whole services,
specified herein, Monday through Friday during the contract
period, unless otherwise notified. If hauling on Saturday is not
required for a particular week, the carrier will be notified
[emphasis supplied].
Although the syntax of paragraph (c) was somewhat less than
perfect, the meaning of the provision was that the plaintiff
would be required to provide hauling service each day, Monday
through Saturday, unless otherwise notified. Accordingly, it was
not outside the language of the contract for the plaintiff to be
required to provide hauling service on Saturday, January 10,
1976.
Even if a different interpretation of paragraph (c) of the
contract specifications were proper, the plaintiff's claim for
hauling the load on Saturday, January 10, 1976, would
nevertheless have to be rejected. At the hearing before the
Board, the plaintiff did not present any evidence on which it
could be determined that the charge of $ 350 which the plaintiff
sought for this service -- or any other figure higher than the
contract rate of 12.3 cents per cwt. on which the payment to the
plaintiff was based -- would have constituted a reasonable charge
for such service.
(f) Propane-powered trucks. The remaining item in the claim for
additional compensation based on extra-contractual services
related to the hauling of propane-powered trucks.
Item 2 of section 1 in the contract 374 schedule called for
"Hauling elec. trucks, same as above [referring to item 1, which
covered the hauling of paper stock, etc., between the Franconia
warehouse and the GPO headquarters, at 12.3 cents per cwt.],
oneway haul either direction."
Paragraph (b) of the contract specifications provided in part as
follows:
(b) Carrier will not be required to haul in excess of 450,000
pounds of paper stock in any one day. In addition, the carrier
will be required to haul approximately 160 electric trucks during
the contract period in either direction. * * * The price of
hauling electric trucks is conclusively presumed to be included
in the price of Item 1. Consequently, payment will be made only
for paper stock hauled and no payment will be made for hauling
electric trucks in either direction.
The plaintiff's statement of this claim item indicates that over
a period of 16 weeks in the early fall of 1975, he was required
to haul 32 propane-powered trucks from the Franconia warehouse to
the repair shop at GPO headquarters, and then to haul them back
to Franconia after they were repaired. The statement of the
claim item estimated that the tonnage involved in hauling these
trucks to the repair shop and then back to Franconia amounted to
a total of 768,000 pounds, and the statement asserted that the
plaintiff should have been paid 50 cents per cwt. for this
hauling service, or a total of $ 3,840.
What has been said previously about constructive change orders,
and about the necessity of proving damages, is also applicable to
this claim item. The directives which required that the
plaintiff provide hauling service for propane-powered trucks that
were in need of repairs would seem to have been within the
general scope of item 2 relating to the hauling of electric-
powered trucks and, thus, to constitute a constructive change
order.
The plaintiff, however, did not present before the Board any
evidence tending to prove that the costs involved in hauling the
propane-powered trucks were greater than his costs would have
been in hauling electric-powered trucks under similar
circumstances, or that the rate of 50 cents per cwt. which he
sought would have been a reasonable rate for this hauling
service.
(g) Summary. The plaintiff has failed to establish his
entitlement to an equitable adjustment upward in the contract
price because of the performance of extra-contractual services.
VIII. Hauling Hours
The largest claim which the plaintiff submitted in the
administrative proceedings was for $ 34,322.68 and was based upon
what the plaintiff's statement of the claim referred to as the
"time utilization factor."
Paragraph (i) of the contract specifications provided as follows:
(i) Hauling will normally be conducted during operating hours (8
a.m. to 4:30 p.m.), however, this will not necessarily preclude
the requirement for an occasional haul between the hours of 4:30
p.m. and 12 p.m. (Midnight).
The plaintiff's statement of this claim indicated that instead of
being allowed to conduct hauling operations each day for 8-1/2
hours (i.e., from 8 a.m. to 4:30 p.m.), the GPO's methods of
operations were such that the plaintiff could actually work only
from 8:15 a.m. to 11:10 a.m., and from 11:50 a.m. to 3:30 p.m.,
or only for 6 hours and 35 minutes of "production time." The
statement of the claim then set out a rather elaborate
mathematical computation purporting to show that this resulted in
a loss to the plaintiff of $ 34,322.68 because of the "time
utilization factor."
The plaintiff did not present at the hearing before the Board
evidence sufficient to prove this claim. However, as this claim
related to the alleged failure of the GPO to afford the plaintiff
the amount of daily working time specified in the contracts, it
was in the nature of a breach-of-contract claim. Accordingly, it
will be reserved for the reception of proof in the subsequent
judicial proceedings to be held on the alleged breach-of-contract
issue.
IX. Plaintiff's Salary
The overall amount which the plaintiff claimed in the
administrative proceedings included an item of $ 19,999.99, which
allegedly represented the plaintiff's loss of salary for the 26
weeks remaining on contracts 373 and 374 after they were
terminated.
The plaintiff's statement of this claim indicated that the figure
of $ 19,999.99 was computed on the basis of a weekly salary of $
769.23, multiplied by 26 weeks.
In the first place, as indicated in the preceding parts of this
opinion, the plaintiff failed to establish in the administrative
proceedings his right to recover on the basis of the various
allegations concerning administrative actions that were within
the jurisdiction of the Board under the "disputes" provision of
contracts 373 and 374. Consequently, it necessarily follows that
the plaintiff was not entitled to recover in the administrative
proceedings for any post-contract loss of salary.
However, inasmuch as the plaintiff's breach-of-contract claim is
being reserved for further judicial proceedings, the plaintiff
should be permitted to establish (if he can) the alleged loss of
post-contract salary as a proper item of damages in connection
with the alleged breach of contract.
X. Conclusion
For the reasons stated in the preceding parts of this opinion,
the plaintiff's motion for summary judgment is denied; and the
defendant's cross-motion for summary judgment is allowed and the
petition is dismissed with respect to the claims totaling $
88,336.76 which the plaintiff submitted in the administrative
proceedings, with the exception of the claims relating to alleged
loss of post-contract salary and the alleged loss due to the so-
called time utilization factor, which claims are reserved for
further consideration and disposition in the subsequent judicial
proceedings relating to the alleged breach of contracts 373 and
374.
July 2, 1981