DENIED: March 26, 1993 GSBCA 10112 PEGASUS AVIATION, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Dennis J. Riley and Andrew B. Katz of Elliott Bray & Riley, Washington, DC, counsel for Appellant. Steven M. Stomski, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges HENDLEY, WILLIAMS, and DeGRAFF. WILLIAMS, Board Judge. This is an appeal of a contracting officer's decision denying a claim for $365,750.94 for damages caused by an alleged Government breach of a requirements contract for airline transportation services.[foot #] 1 Appellant Pegasus Aviation, Inc. (Pegasus), claims that the Government breached its contract by erroneously estimating the travel volume in the solicitation and by diverting requirements from Pegasus to other carriers. The appeal was filed on June 16, 1989. For the reasons stated below, we deny the appeal. Findings of Fact The Solicitation ----------- FOOTNOTE BEGINS --------- [foot #] 1 In its second amended complaint appellant reduced the amount it is claiming to $338,977.44. ----------- FOOTNOTE ENDS ----------- On May 27, 1983, the General Services Administration (GSA) issued solicitation number FTEV-FTE-029-A (the solicitation) for the acquisition of airline transportation services for Government employees authorized to travel at Government expense, for the period October 1, 1983, or from the date of award, whichever was later, through September 30, 1984. Appeal File, Exhibit 1 at 28; Stipulations 1. The solicitation listed 679 city pairs between which the Government required air transportation services. Stipulations 2. Of those, the Government listed an estimated number of passengers for 479 city pairs. Id. The solicitation estimated the total number of Government passengers for the two city pairs at issue as follows: Fayetteville/Washington: 438 passengers per month Philadelphia/Washington: 1,152 passengers per month Id. 6, 7; Appeal File, Exhibit 1 at 41, 47. In describing the estimates, the solicitation provided: The estimated travelers per month shown in the Schedule of Items are furnished to bidders for informational purposes only and shall not be construed to represent any amount which the Government shall be obligated to purchase under the contract. In the event the Government's future requirements for air transportation services do not equal the amounts listed as "estimated travelers per month," or if agencies and employees fail to comply with the terms of this contract, such failure shall not constitute a breach of contract nor shall it be a basis for an equitable adjustment. Appeal File, Exhibit 1 at 28. The Government reserved the right to award additional contracts to meet its needs, as follows: . . . [I]n view of the anticipated Government need for airline services at various times, the capacity of any single airline to accommodate all Government needs may be insufficient. Therefore, it is anticipated that the Government will make progressive awards on the basis of price to meet its needs for each city-pair with those responsible bidders whose bids conforming to the solicitation requirement will be most advantageous to the Government. The Government reserves the right to award additional contracts to meet its schedule needs in the event the successful bidder does not offer coverage throughout the day or to different airports serving the same city. Id. The Contract Pegasus submitted bids for eight separate routes in response to the solicitation. Stipulations 3. On August 19, 1983, GSA awarded contract number GS-OOT-42280, (the contract), a requirements contract, to Pegasus for five routes: Fayetteville/Washington, Philadelphia/Washington, Norfolk/Washington, Norfolk/Philadelphia, and Elgin AFB/Washington. Id. 4; Appeal File, Exhibit 1. In September 1983, GSA granted Pegasus' request to withdraw from three of the five routes, leaving only the Fayetteville/Washington and Philadelphia/Washington routes. Appeal File, Exhibit 4; Transcript at 270-72. The contract did not require a carrier to use any particular airport serving Washington, D.C. Appeal File, Exhibit 1. Three airports serve Washington, D.C.: Washington National Airport (National), Dulles International Airport (Dulles), and Baltimore- Washington International Airport (BWI). Stipulations 11. At the time the contract was awarded, about seventy percent of passengers flying in and out of Washington, D.C., used National Airport, but this was not indicated in the solicitation. The term of the contract ran from October 1, 1983, through September 30, 1984. Stipulations 5. The contract listed six exceptions to the required Government use of contract carriers by Government employees: . . . (1) flight schedules do not meet its mission requirements; (2) flight origin and termination points result in excessive local travel time and costs; (3) space is not available in time to accomplish the mission requirements; (4) the flight schedule would require additional overnight lodging; (5) the carrier's flight schedule for the travel involved is inconsistent with the Government's policy of scheduling travel to the maximum extent practicable during normal working hours; or (6) on the basis of a comparison of total cost for each individual trip, the use of a standard jet coach fare ("Y" class of service) is less than the contract fare at the time the reservation is made considering such cost factor [sic] as actual transportation costs, subsistence, allowable overtime, or lost productive time. Appeal File, Exhibit 1 at 30, 6(b). "Normal working hours" in this paragraph were considered by the Government to be 8:00 a.m. to 4:30 or 5 p.m. Transcript at 49, 85, 166. The contract listed several items which were the "contractor's responsibility," including: a. . . . . The contractor shall have contract fare quote data (bid price) entered into its electronic reservation system. Contractors must furnish flight schedules on awarded routes to the firm designated by the Government after award. b. Reservation services must be furnished and operational 15 days after award. Contract carriers must file contract fares under the "YCA" designator, to eliminate confusion with noncontract YDG or other Government-related fares. . . . c. The contractor(s) must comply with all rules and regulations required by the Civil Aeronautics Board and other provisions of the Federal Aviation Act of 1958 to permit the carrier(s) to contract for and to furnish air transportation in accordance with the contract. Appeal File, Exhibit 1 at 29. The contract also provided: ORDERING OF SERVICES GSA and DOD have entered into agreements with the Scheduled Airlines Traffic Offices (SATO's) and contracts with various commercial travel agents to provide travel management services for Federal agencies. These contractors are responsible for arranging and providing all travel services to Federal travelers and are assigned U.S. Government Transportation Request (GTR) numbers by each participating Government agency. The assigned number will be shown on all transportation tickets issued by the contractors. The successful bidders will be furnished a listing of the participating travel agents and SATO's. Appeal File, Exhibit 1 at 30. The Estimates of Travel Volume for the Solicitation There had been no previous contract carrier for either the Fayetteville or Philadelphia routes. Transcript at 266. GSA based its estimates, at least in part, on numbers provided by the Military Traffic Management Command (MTMC) reflecting Department of Defense (DOD) passengers who flew between the city pairs the previous fiscal year. Stipulations 8; Transcript at 34, 41-42. The contracting officer testified that given the size of DOD and the fact that MTMC was the "single manager there," both he and the MTMC staff "made it a point not to contact [end users] directly." Transcript at 120. It was more efficient, he said, to get data from this single source, especially since Fayetteville/Washington and Philadelphia/Washington were just two of the 479 city pairs for which GSA provided estimates in its solicitation. Id. MTMC compiled these numbers based upon the previous year's statistical analysis (STATCO) report, which contained travel information provided by military finance centers and by military travel agencies. Transcript at 34-35, 41-42, 135, 265. MTMC's Chief, Agreements and Negotiations Branch in the Passenger Service Division (Branch Chief) explained: The report itself was compiled from two sources. One would be those activities -- DOD installations activities, travel offices -- where there was a travel agency in place, the numbers were reported by the travel agency. At some smaller activities, the transportation officer, and to this day, to a small extent, still issues Government transportation requests to pay for individuals traveling between city pairs, that GTR gets paid by a finance center, either the Army, Navy, or the Air Force, Marine Corps, and those finance centers in turn keypunched the data and transmitted that to MTMC, where the two inbound reports were merged to produce the city pair report. Q And so . . . this final figure that you provided to GSA included the number of DOD passengers that flew between the city pairs on all commercial airlines? A Yes, it did. Transcript at 35. These estimates included traffic from Dulles and National Airports, but not BWI.[foot #] 2 Transcript at 37-38. The number of passengers between city pairs was not broken down ----------- FOOTNOTE BEGINS --------- [foot #] 2 The MTMC employee who provided the MTMC data to the GSA contracting officer testified that the estimates did not include BWI. Transcript at 37-38. The GSA contracting officer responded affirmatively to the question of whether the "contract contemplated Baltimore Washington Airport as an airport serving Washington, D.C." but did not say explicitly that the estimates included BWI traffic. Id. at 323. The contracting officer ___ testified: During that time, we were in a transition, and Baltimore sometimes was listed under Baltimore, sometimes was listed under Washington metropolitan area. So I need to say that Baltimore is a significant third airport that's not important. It's not a strong consideration here. It would be Washington National and Dulles airports that are very important, and among those two the predominant airport is National. Id. ___ ----------- FOOTNOTE ENDS ----------- by airport or by airline. Id. at 44. MTMC's Branch Chief further explained the STATCO report: [I]t was run a number of different ways, but essentially, the one that I was using was the number of passengers in each direction for a particular market. When I say market, there are 53,000 city pairs actually reflected in that report; so it is a huge document. It would simply list the numbers of passengers from Fayetteville to Washington and Washington to Fayetteville. I added the two together and passed those to GSA. Same thing for Philadelphia. Id. at 43. MTMC's numbers for air travel by DOD passengers for the year prior to the Pegasus contract were as follows:[foot #] 3 Fayetteville/Washington 380 passengers per month Philadelphia/Washington 962 passengers per month Appeal File, Exhibit 11; Stipulations 9. These numbers, which are described by the parties as "unverified" because they have not been audited, were the numbers that GSA used in estimating its requirements in the solicitation. Appeal File, Exhibit 11; Transcript at 30, 34. At the time that the solicitation's estimate was being prepared, the Office of Management and Budget (OMB) issued an ----------- FOOTNOTE BEGINS --------- [foot #] 3 These numbers have been stipulated by the parties. Stipulations 9. They are also contained in a memorandum written by the GSA contracting officer which was dated "6/21," but did not state a year. Appeal File, Exhibit 11. The contracting officer testified that he could not recall in what year he had written the memorandum but that he believed it was probably 1988 or 1989. Transcript at 282-83. The contracting officer received the information in the memorandum as a result of a telephone call to the MTMC employee who provided the MTMC estimates to GSA. Id. at 232. Neither the 1983 STATCO report ___ nor any other documentation of the numbers given by MTMC to GSA to use in formulating the estimates remain in existence. Id. at ___ 238, 259-60. Appellant asks us to draw an adverse inference and conclude that the no longer existing documents which were used in formulating the estimates would not have been favorable to the Government. Appellant's Posthearing Brief at 13. We decline. The contracting officer testified that records such as the STATCO report would only be left in MTMC computers for two or three years, and appellant waited four and one-half years to bring its claim. ----------- FOOTNOTE ENDS ----------- annual travel budget which showed that DOD accounted for approximately seventy-two percent to eighty percent of Government-wide travel. Transcript at 45, 115, 144-45. As a result, GSA increased the estimated number of DOD passengers by a certain percentage to account for the civilian agencies that had passengers flying between each of the city pairs. Id. at 115. Specifically, GSA added the sixteen percent to the MTMC's numbers for Fayetteville/Washington to reflect the anticipated additional traffic for eight or nine civilian agencies in the Fayetteville area and twenty percent to MTMC's numbers for Philadelphia/Washington to reflect at least twenty civilian agencies in the Philadelphia area. Id. at 173- 74.[foot #] 4 Appellant's Performance Problems Delay in Commencing Service In order to perform under the contract, Pegasus had to be certified by the Civil Aeronautics Board (CAB) and the Federal Aviation Administration (FAA). The certification process by the CAB and the FAA normally took thirteen to fourteen weeks from initial submission of documents to the CAB until final clearance by the FAA. Stipulations 16. Pegasus first applied to the CAB for a fitness determination (the first step in getting certified to perform under the contract) on August 8, 1983 -- after submitting its bids, but before contract award. In late September 1983, the CAB had not yet completed the fitness determination of Pegasus, and Pegasus could not commence operations on October 1, 1983, as called for by the contract. Stipulations 18. The CAB approved Pegasus on October 27, 1983. Id. 17. On October 27, 1983, GSA waived performance under the contract until November 15, 1983, or until final certification, whichever occurred earlier. Appeal File, Exhibit 5. By letter dated November 8, 1983, the contracting officer issued Pegasus a preliminary notice of default, stating in part: The contract specifies on page 28, that the contract period is October 1, 1983 through September 30, 1984; and on page 29, subparagraph (b) that reservation services must be furnished and operational 15 days after award. On October 27, 1983, we forwarded a telegram to you stating that services were to commence within 48 hours of Civil Aeronautics Board certification. Pegasus Aviation obtained such certification on November 2, 1983. On November 7, ----------- FOOTNOTE BEGINS --------- [foot #] 4 This procedure of adding a certain percentage to MTMC's numbers to account for civilian agency passengers was only followed by GSA for new markets, such as the Fayetteville and Philadelphia markets. Transcript at 266. ----------- FOOTNOTE ENDS ----------- 1983, federal employees were unable to obtain transportation services; no reservation system had been installed and no reservation clerks were available to take reservations for airline services. Appeal File, Exhibit 6. Pegasus responded to the notice, explaining that it had been delayed by the CAB's and FAA's lengthy, sequential certification and approval processes, and that on November 14 it would begin service. On November 14, 1983, the FAA conducted its final ridecheck with the pilots of Pegasus, and Pegasus began scheduled passenger flights under the contract. Stipulations 19; Transcript at 365.[foot #] 5 Pegasus' Failure to Obtain Landing Rights at National Airport Although Pegasus' bids on the Fayetteville/Washington and Philadelphia/Washington routes listed service to and from both National and Dulles airports, Pegasus did not receive landing rights at National in a September 1983 lottery and thus during the entire period of contract performance had landing rights only at Dulles. Appeal File, Exhibit 1 at 41, 47; Transcript at 151-58, 368-69.[foot #] 6 The parties contemplated that DOD would be a major end-user of airline services under contract routes involving Washington, D.C. Stipulations 10. Of the three Washington, D.C., area airports, National is the closest airport to the Pentagon, DOD headquarters, and numerous DOD support offices in Crystal City, Virginia. Id. 12. Many DOD travellers preferred to use National because of its proximity to the Pentagon area. Transcript at 156, 162, 489-90. When Pegasus realized that it would be using only Dulles, it leased an eleven-passenger van to transport passengers between the Pentagon Metro Station and Dulles. Id. at 515-16. Using the Pentagon Metro Station, it was possible to get from the Pentagon to National in four or five minutes, whereas, even using the van provided by the appellant, it took thirty to forty minutes to get to Dulles, which is not ----------- FOOTNOTE BEGINS --------- [foot #] 5 GSA declined to terminate Pegasus for default on the basis of the delays occurring prior to the time Pegasus began commercial air transportation services. Stipulations 20. [foot #] 6 Appellant's president realized that a presence at National was very important and tried very hard to get landing rights there. Transcript at 368-69. ----------- FOOTNOTE ENDS ----------- served by mass transportation. Id. at 165-66.[foot #] 7 Flight Schedule The Joint Travel Regulations applicable during this contract which governed official travel by Federal employees provided that employees should not be required to travel between midnight and 6:00 a.m., and that travel should be scheduled during the employee's normal working hours whenever possible. Transcript at 49. On its October 31, 1983, timetable, Pegasus listed two daily flights each between Fayetteville-Washington and between Philadelphia-Washington. Appellant's Exhibit 7a. Appellant's president admitted that he "had a number of problems getting the operation off the ground" and that while he originally intended to provide four daily round trips spread throughout the day, he halved that when he saw that appellant "might not initially get the number of passengers [it was] expecting." Transcript at 363. On its May 1, 1984, timetable, Pegasus added a round trip flight between Fayetteville and Philadelphia. Appellant's Exhibit 7b. Some of Pegasus' scheduled arrival and departure times in its October 31, 1983, schedule did not take place during "normal working hours," i.e., between 8:00 a.m. and 5:00 p.m. Appellant's Exhibit 7a; Transcript at 51-54. Of Pegasus' scheduled Fayetteville flights, one departed at 6:50 a.m., another departed Dulles at 5:30 p.m. and arrived in Fayetteville at 7:00 p.m. Appellant's Exhibit 7a; Transcript at 473. One of the Philadelphia flights departed at 5:30 p.m. and arrived at Dulles at 6:20 p.m. Another departed Dulles at 4:15 p.m. and arrived in Philadelphia at 5:10 p.m. Appellant's Exhibit 7a. Pegasus sometimes canceled its flights when there were no passengers booked. Transcript at 401-03. On one occasion, a Pegasus employee told a caller that a contract flight had been canceled so that the plane could be used to fly a charter flight. Id. at 403, 530. Flight Information and Reservation System In October 1983, fare and schedule information for Pegasus was published in the Federal Travel Directory (FTD), as this information had been sent to the publishers of the FTD before Pegasus informed GSA that it would not be able to start ----------- FOOTNOTE BEGINS --------- [foot #] 7 Appellant's president opined that most passengers were only twenty to thirty-five minutes from Dulles. Transcript at 365. ----------- FOOTNOTE ENDS ----------- performance as of October 1, 1983. Transcript at 242-45, 453- 56.[foot #] 8 The contract required appellant to list its contract fares as "YCA" in order to eliminate confusion with non-contract fares. Appeal File, Exhibit 1 at 29, 5(b). The contracting officer testified that no "YCA" fares were listed for appellant before January 1984, so that Government travellers may not have been aware that there was a contract carrier. Transcript at 170, 274-77, 313, 322-24, 451. Pegasus' flights and fares were listed in the American Airlines SABRE reservation system and United Airlines APOLLO reservation system approximately one week before the first Pegasus flight under the contract, which occurred on November 14. Transcript at 371-72, 448. The vast majority of travel agents used the SABRE or APOLLO system for reservations. Id. at 372. Pegasus was listed in the electronic version of the Official Airline Guide (OAG) by the second week of December 1983 and was listed in the hard-copy version of the OAG by January 1984. Id. at 449, 489. The Pegasus reservation system was not fully automated; to book a flight, it was necessary to call Pegasus' toll-free reservation number, which was not always staffed twenty-four hours per day. Transcript at 373-75. GSA was concerned about Pegasus' problems with its reservation system and expressed this concern to Pegasus. Id. at 375-76. Complaints GSA received approximately nine or ten passenger complaints about Pegasus' contract performance between November of 1983 and February of 1984. Transcript at 199, 281. GSA's contracting officer described these complaints as follows: Q Can you tell me what those complaints were? A Who is this airline? Where are they located? Why can't we find their counter? How can I get a ticket? Things of that nature. I think one of the most pointed complaints were [sic] when I call I only get an answering machine, when I call I don't get an answer -- things of that nature. ----------- FOOTNOTE BEGINS --------- [foot #] 8 The contract required the Government to "disseminate the mandatory requirements . . . along with all information relative to the schedules of the awarded contract carriers." Appeal File, Exhibit 1 at 30. Publication of information in the FTD, which notified Government travellers of the flights available to them, was one way the Government fulfilled this requirement. Transcript at 243. Information had to be sent to the publisher of the FTD six to eight weeks in advance of publication. Id. ___ ----------- FOOTNOTE ENDS ----------- Id. at 199. End of Performance After approximately seven and a half months of performing under the contract, Pegasus, on June 30, 1984, ceased providing commercial air transportation between Fayetteville and Washington, and on July 8, 1984, ceased providing commercial air transportation between Philadelphia and Washington. Stipulations 21, 22. On July 31, 1984, Pegasus returned the airplanes it had leased to carry out its air transportation service under the contract. Stipulations 23. Number of Passengers During Performance Between January 1 and March 31, 1984, MTMC's usage reports showed the following average number of DOD passengers per month: Fayetteville/Washington 412 per month Philadelphia/Washington 413 per month Appeal File, Exhibit 11. Between January 1 and March 31, 1984, MTMC's usage reports showed the following average of Government passengers per month flying Pegasus: Fayetteville/Washington 14 per month (or 3.39% of the actual total). Philadelphia/Washington 8 per month (or 1.93% of the actual total). Id. The total number of Government passengers that Pegasus received during the seven and one-half month period of contract performance was: Fayetteville/Washington 123 (or 3.75% of the solicitation's estimate). Philadelphia/Washington 60 (or .69% of the solicitation's estimate). Appeal File, Exhibit 12. Subsequent Estimates In subsequent years, in situations where a contract for a specific city pair had previously existed, the previous estimate became the initial new estimate, and it was then compared to the actual passenger figures and adjusted if necessary. Transcript at 236, 265-66. GSA issued solicitations for air transportation service in 1984 (the 1984 solicitation) and 1985 (the 1985 solicitation) in which it provided the following estimates: Fayetteville/Washington: 250-499 passengers per month Philadelphia/Washington: 1000-1999 passengers per month Id. at 295-96. Unlike the 1983 solicitation which had not specified a minimum number of daily flights for either city pair, the 1984 and 1985 solicitations required a minimum number of daily flights: three each way for Fayetteville/Washington and six each way for Philadelphia/Washington. Transcript at 330-31; Appeal File, Exhibit 1 at 41, 47. After Cessation of Service On July 24, 1984, the president of Pegasus wrote to the GSA contracting officer requesting the actual number of Government passengers, on a monthly basis, who had travelled between Washington and Fayetteville and Washington and Philadelphia during the period of contract performance. Appeal File, Exhibit 8. In response to this letter, the GSA contracting officer stated that there was no single Federal agency that compiled data on all Government travel between the relevant cities, and that he was unable, therefore, to develop data on the actual volume of travel between those cities during the contract period. Appellant's Exhibit 6. On December 3, 1984, GSA sent a policy letter to its Travel Management Centers and its Scheduled Airline Traffic Offices emphasizing that exceptions to the mandatory use of the contract carrier should be quite limited. Appeal File, Exhibit 13. On January 19, 1989, Pegasus submitted its claim for breach of the contract to the GSA contracting officer. Appeal File, Exhibit 9. On May 19, 1989, the GSA contracting officer denied Pegasus' claim. Appeal File, Exhibit 10. Discussion Appellant seeks damages of $338,977.44 claiming that GSA breached its requirements contracts on two distinct theories. First, appellant claims that the Government's estimates of passengers on the Fayetteville/Washington and Philadelphia/Washington routes in the solicitation were defective and misrepresented the work to be performed by the contractor. Second, appellant claims that the Government diverted its requirements from the contractor. Were GSA's Estimates Defective? As we recognized in Medart Inc., GSBCA 8939, 91-2 BCA 23,741, aff'd, 967 F.2d 579 (Fed. Cir. 1992): In order to recover for estimates which allegedly caused loss to it, appellant must show: a substantial variance [which] is accompanied by positive proof that all current and experiential information reasonably and readily available was not taken into account, and reasonable reliance and damage result[ed] therefrom. A substantial variation from mere estimated quantities standing alone, is not sufficient to establish government liability. Id. at 118,889 (citing, Womack v. United States, 182 Ct. Cl. 399, 389 F.2d 793 (1968); Grover Contracting Corp., GSBCA 4115, 75-2 BCA 11,550). Here, there was not a "substantial variance" from the quantity of Government travellers on the Fayetteville route -- there was a substantial variance in the number of those passengers Pegasus received. An average of 412 DOD passengers flew between Fayetteville and Washington during each of the first three months of 1984. This was very close to the solicitation's estimate of 438 for both DOD and civilian passengers per month for this route. The fact that these passengers chose not to fly on Pegasus is better explained by Pegasus' transportation from Dulles only, myriad performance problems, infrequent flights during normal working hours, lack of a reliable reservation system, misinformation about its start-up date, and occasional cancellation of flights -- rather than upon any defective estimate. While the Philadelphia estimate (1,152) did vary from the actual total DOD travellers (413) by approximately 65%, this alone does not render the estimate defective. GSA based its estimates on the number of DOD passengers who had flown between the city pairs the previous year as compiled by MTMC; GSA then increased the DOD figure up to twenty percent to account for additional civilian passengers based upon OMB's annual travel budget and the civilian agencies located near each destination. Appellant alleges that in formulating the estimates in the solicitation, GSA neglected to evaluate independently the MTMC data and abdicated its responsibility to base the estimate on all reasonably available relevant information. Appellant's Posthearing Brief at 17, 26-28. We rejected a similar claim in Medart, Inc., 91-2 BCA 23,741. In Medart, in the context of procuring furniture on behalf of several hundred ordering agencies, GSA derived the estimate for the solicitation using actual numbers ordered from the most recently available twelve- month period. As a result of the procurement cycle, the most current yearly information available was from two fiscal years earlier. The appellant in Medart argued that respondent should have made surveys of individual users. We squarely rejected that argument holding that the law "does not require respondent's contracting officials to search for or create information that is not reasonably and readily available." Id. at 118,889. Here, verification of the actual number of travellers on each of the 479 city pairs by contacting each potential user agency or component -- when that information was in large part already compiled by another Government agency -- was simply not required. GSA reasonably relied on MTMC's numbers. Appellant also questions GSA's addition of sixteen percent and twenty percent to the MTMC DOD passenger estimates for the Fayetteville and Philadelphia routes, respectively, to account for the civilian agencies in those areas. Appellant's Posthearing Brief at 26-27. However, there was no showing that GSA was negligent in relying on this percentage which was based upon OMB's annual travel budget and the civilian agencies located in Fayetteville and Philadelphia. Appellant further claims that the estimates should have been reduced in the solicitation since GSA knew passengers could liberally invoke the six exceptions to the use of contract carriers in the solicitation. Appellant's Posthearing Brief at 17, 19. We disagree. Appellant has not demonstrated that such a reduction was necessary to render the estimates accurate. Appellant had clear warning from the solicitation that passengers might invoke one of the six exceptions. Appellant maintains that GSA's estimates were negligently prepared because they included passengers using all airlines and all airports servicing the city pairs. Appellant's Posthearing Brief at 23-24. We reject this contention finding that only the two primary airports, Washington National and Dulles, were included in the estimate, and that BWI was not a strong consideration. Appellant also suggests that the estimates were defective because GSA knew that a single carrier could not possibly handle all the traffic. Id. at 24. This argument lacks merit; the solicitation contained estimates of total Government travellers, but the Government expressly "reserves the right to award additional contracts to meet its schedule needs in the event the successful bidder does not offer coverage throughout the day or to different airports serving the same city." Appeal File, Exhibit 1 at 28. Finally, appellant contends that the addition of the ranges and minimum numbers of flights to the 1984 and 1985 solicitations is the "most revealing evidence of GSA's misstatement of its needs" in the 1983 solicitation. Appellant's Posthearing Brief at 22. In 1984 and 1985, the solicitations issued by GSA for air transportation services gave estimates of passenger numbers in ranges: 250-499 passengers per month for Fayetteville/Washington and 1000-1999 for Philadelphia/Washington, and these solicitations, unlike the 1983 solicitation, listed minimum numbers of daily flights for both routes. According to appellant, the fact that specific numbers were given in the 1983 estimates led appellant to believe that GSA had "incorporated accuracy into [its] formulation of the estimate," while the broad ranges given in the later solicitations warned subsequent bidders of extreme variations. Id. There is no support for appellant's belief. The 1983 estimates are not rendered defective by the fact that subsequent solicitations incorporated ranges rather than a single number of passengers. In sum, appellant has not established that the Government either erred in formulating the estimate or failed to consider pertinent, reasonably available information.[foot #] 9 Cf. Alert Care Ambulance Service, VABCA 2844, 90-3 BCA 22,945, at 115,179-80 (Government, instead of using prior actual service requirements, relied on inaccurate estimates that had been prepared for the prior three years' contract and continued to rely on inaccurate estimates even after the contractor questioned them); McCotter Motors, Inc., ASBCA 30498, et al., 86-2 BCA 18,784, at 94,650-51 (estimate based on the previous year's sales of engine parts was found to be negligently prepared when the estimator failed to investigate why there had been a gross disparity between prior estimate and that particular year's sales). Because we find no evidence of negligent or improper Government conduct, we deny appellant's claim on the issue of defective estimates. Did GSA Divert its Requirements from the Contract Carrier? As this Board recognized in S&W Tire Services, Inc., GSBCA 6376, 82-2 BCA 16,048, at 79,617, "the Government may not agree to purchase its requirements from one contractor and then, with impunity, satisfy them elsewhere." A contractor's ability to recover for an agency's diversion of work which might be performed under a requirements-type contract depends on the language of the contract. Kozak Micro Systems, GSBCA 10519, 91-1 BCA 23,342, aff'd, No. 92-1391 (Fed. Cir. Feb. 3, 1993). Here, the contract did not require the Government to purchase unconditionally all of its requirements for airline transportation services on the two routes at issue from appellant. Rather, the Government expressly advised contractors of six exceptions which permitted users to satisfy their travel needs elsewhere. The three most important exceptions for purposes of this dispute provided that Government travellers did not have to use the contract carrier when the carrier's flights 1) did not meet the traveller's mission requirements; 2) resulted in excessive ----------- FOOTNOTE BEGINS --------- [foot #] 9 Appellant has advanced additional arguments in support of its position which do not bear discussion. ----------- FOOTNOTE ENDS ----------- local travel time and costs; or 3) were inconsistent with the Government's policy of scheduling travel to the maximum extent practicable during normal working hours. In its bids on the Fayetteville and Philadelphia routes, appellant listed service to and from Washington out of both National and Dulles Airports. However, appellant was not successful in obtaining landing rights at National, so it provided service to and from Washington only out of Dulles during the time of contract performance. Transcript at 158. Yet, both parties agreed that DOD travellers preferred to use National since it is much closer to the DOD offices which were the major end-users of airline services under the contract. Although appellant leased a van to transport passengers between Dulles and the Pentagon Metro Station, an exception allowed passengers who would be subjected to excessive local travel time using the contract carrier to use another carrier. Using the Pentagon Metro Station, it was possible to get from the Pentagon to National in four or five minutes, whereas, even using the van provided by the appellant, it took thirty to forty minutes to get to Dulles, which is not served by the Washington Metro system. Id. at 165-66. In addition to listing service to and from National in its bids, appellant listed four daily flights each way between Philadelphia and Washington in its bids for that route. However, appellant never provided more than two daily flights each way between Philadelphia and Washington during contract performance. Respondent alleges that in addition to providing only half as many flights as stated in its bid for the Philadelphia route, appellant scheduled several of its flights on both routes outside "normal working hours." Both the MTMC employee and the contracting officer testified that "normal working hours" for DOD employees were from 8 a.m. to 4:30 or 5 p.m. We find that appellant failed to furnish the level of service contemplated by the contract. Appellant did not provide the flight schedule it had indicated it would provide in its bid -- using both National and Dulles airports and providing four flights each way between Philadelphia and Washington. Appellant's flights did not meet mission requirements and necessitated excessive local travel time. Appellant's inability to provide more flights commencing and terminating during "normal working hours" conflicted with the Government policy of planning travel to the maximum extent practicable during normal working hours. The reasons listed above justify making use of the exceptions to the requirement that Government travellers must use the contract carrier. Appellant incorrectly relied on the belief that once it became the contract carrier, Government travellers were required to use it regardless of the quantity or quality of service it provided. Another likely contributing factor to Pegasus' lack of passengers was the problem with publication of flights and Pegasus' reservation system. Appellant was not providing service at the time its flight schedule was listed in the October FTD. While appellant's contract began on October 1, 1983, it could not commence service until final CAB/FAA certification on November 14, 1983, but appellant's flight schedule had already been entered in the October 1983, Federal Travel Directory (FTD). Although appellant had its flights listed in the SABRE and APOLLO reservation systems approximately one week before its first flight under the contract, in order actually to book a flight with appellant, the travel agent would then have to call appellant's toll-free telephone number, which was sometimes connected to an answering machine. Transcript at 199, 372-74. Appellant did not get its flight information into the electronic version of the Official Airline Guide (OAG) until mid- December 1983, and it did not appear in the published or hard- copy version of the OAG until January 1984. Transcript at 169- 70, 223, 274-76, 449, 489. Just as the listing of appellant's flight information in the FTD before appellant was ready to commence performance may have confused potential passengers, appellant's delay in getting its flight schedule into the OAG after it had commenced performance can only have hurt appellant's ability to increase its passenger traffic. There is no evidence that GSA or DOD intentionally diverted Government passengers to other carriers. There is considerable evidence, however, that appellant's performance of this contract itself was the reason that thousands of Government employees each made individual decisions not to take appellant's flights.[foot #] 10 Decision This appeal is DENIED. ____________________________ MARY ELLEN COSTER WILLIAMS Board Judge We concur: ____________________________ ____________________________ JAMES W. HENDLEY MARTHA H. DeGRAFF Board Judge Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 10 As a result of our ruling on entitlement, we do not reach quantum.