_______________________________________________ GRANTED IN PART: February 27, 1995 _______________________________________________ GSBCA 13059 GREENVILLE STORAGE & INVESTMENT, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Earl Wilson of Greenville Storage & Investment, Palmetto, GA, appearing for Appellant. John C. Ringhausen, Office of Regional Counsel, General Services Administration, Atlanta, GA, counsel for Respondent. NEILL, Board Judge. This case involves a claim by appellant for payment of an invoice in the amount of $1,402.60 allegedly incurred for additional janitorial services occasioned by the Government's use of appellant's warehouse during the weekend of July 9-10, 1994. Appellant has requested that this dispute be resolved in accordance with the Board's small claim procedure. Rule 13.[foot #] 1 Both parties have agreed that the case should be decided on the record without the benefit of a hearing. Rules 9, 11. For the reasons set out herein, the Board grants this appeal in part. Findings of Fact 1. On Saturday, July 9, 1994, the Federal Supply Service (FSS), a division within the General Services Administration (GSA or Government) worked forty-five federal employees for an eight hour day performing general warehouse work. On the following day, six Federal employees performed conveyor maintenance in the warehouse. Appeal File, Exhibit 15. The normal number of federal employees working at the warehouse is approximately 160. ----------- FOOTNOTE BEGINS --------- [foot #] 1 48 CFR 6101.13 (1994). ----------- FOOTNOTE ENDS ----------- Affidavit of Palma F. Marron (Marron Affidavit) (Jan. 20, 1995) at 1. 2. The lease agreement for the warehouse requires the lessor to provide all services and maintenance in accordance with the solicitation which eventually led to the award of the lease. Appeal File, Exhibit 1. Both parties to this dispute recognize that this includes cleaning of the premises during the regular work week. 3. The lease contains a typical Government contract provision relating to contract changes. Appeal File, Exhibit 1, GSA Form 3517 at 3. 4. Owing to a dispute regarding payment for overtime services, the lessor had previously advised GSA that it would not provide janitorial services for overtime work. Appeal File, Exhibits 2, 7. In anticipation of having to procure janitorial services for weekends from some source other than the lessor, the contracting officer sought from the tenant a listing of the services which would be required. Id., Exhibit 8. In reply, the following services were identified: 1. Restroom cleaning and maintenance of restroom supplies. 2. Operation of the FSS owned floor sweeper machine. 3. Removal of trash (paper, packing materials and fiberboard boxes primarily) from area of the bin modules. Id., Exhibit 9. 5. On the weekend of July 9-10, 1994, lessor had no employees or subcontractors on site. Appellant's Answer to Respondent's Interrogatories[foot #] 2 at 1. Lessor's subcontractor for janitorial services, TTR Enterprises (TTR), states that upon arrival on the following Monday morning, it was obvious that much extra work would be required while still maintaining our daily routines. This took time and management to accomplish this task which was over and above our normal operations. Id. at 4. A contact record in the appeal file reports that a Government employee, presumably also on site on the same Monday morning, when asked later about the subcontractor's claim, stated that he did not notice anything out of the ordinary on that day. Appeal File, Exhibit 12. 6. By letter dated July 13, 1994, the janitorial subcontractor, TTR, wrote lessor seeking payment of $1,402.60 ----------- FOOTNOTE BEGINS --------- [foot #] 2 Hereinafter designated as Appeal File, Exhibit 16. ----------- FOOTNOTE ENDS ----------- for additional services provided during the week following the July 9-10 weekend to clean up after the weekend activity. The letter explains: On Saturday, July 9, 1994, Federal Supply Service worked without requesting janitorial services. The warehouse on the following Monday was in terrible shape. The carts that collect cardboard from the various locations around the warehouse were overflowing. The government personnel had started putting the cardboard in the green dumpsters. The warehouse floors were dirty with spotty pieces of trash. The offices and restroom trash cans were in need of being emptied. This idea of working without janitorial services is one that can not continue. [I]t put us under enormous strain to get it all clean again. The following is an itemized list of extra work that was required to bring the warehouse back up to where we had left it on Friday evening. Appeal File, Exhibit 10. 7. TTR's itemized list reads as follows: 1. One man on cardboard for (2) days = 16 man-hours 2. One man on riding sweeper for (3) days = 24 man- hours + machine charge 3. One man (3) hours emptying trash 4. (5) additional hours for Janitorial service on the restrooms and offices Cost Breakdown for the additional services is as follows: 48 additional man-hours @ $6.25/hour = $ 300.00 Additional Sweeper charge @ $150.00/day = $ 450.00 Additional Tugger charge @ $ 90.00/day = $ 180.00 Workers Compensation 10.44% of $300.00 = $ 31.32 Payroll Taxes 11.45% of $300.00 = $ 33.45 Additional Trash Removal Costs = $ 50.00 Additional Supervision & Planning = $ 114.40 ------------------------------------------------------ Subtotal $1159.17 TTR Enterprises Overhead 10% = $ 115.92 ------------------------------------------------------ Subtotal $1275.09 TTR Enterprises Profit 10% = $ 127.51 ------------------------------------------------------ TOTAL $1402.60 Appeal File, Exhibit 10. 8. The lessor paid the TTR invoice by check dated July 19, 1994. Appeal File, Exhibit 16 at 4. 9. TTR's representative has offered the following explanations regarding the invoice items. The cardboard was inappropriately placed in green dumpsters, not gray carts. Extra time required to pull cardboard out of green dumpsters was incurred. One man, Brian Mason was doing Monday's normal cardboard bailing. Stacey Connally was assigned to catch up Saturday's work. It took him two days due to the scattered placement of cardboard. Spencer Hayes was assigned to catch up sweeping. He did normal section sweeping for approximately two hours per day and spent eight hours for three days catching up on it. In order to rent a comparable piece of equipment, it would cost approximately $150 to $200 per day for a sweeper and $90 to $100 per day for a tugger. We used the low end for quoting. The trash cans throughout the warehouse had to be emptied from Saturday's work. The bathrooms throughout the warehouse (nine sets) were used for Saturday's work. This left them dirty, low or out of supplies and not satisfactory for use on Monday. Extra personnel were assigned to bring them up to the standard left from Friday's cleaning. Appeal File, Exhibit 16 at 3. TTR's representative has stated under penalty of perjury that these explanations provided in response to respondent's discovery requests are true. 10. TTR's representative has also explained that there were a crew of fourteen full-time employees and one part-time employee assisting with the additional janitorial work required during the week following the July 9-10 weekend. He further states that the employees of TTR are not employees of appellant. Discussion At the outset we note that this is not a claim by appellant for overtime. Rather, it is a claim for the cost of extraordinary services which appellant was allegedly required to provide during the normal workweek. The services are said to have been occasioned by weekend activity at the warehouse on the weekend of July 9-10. The services in question are not, therefore, overtime services. This is a premise to appellant's claim which the parties have accepted from the time of their first conference with the Board and which the Board itself adopts in deciding this claim. In its final brief, appellant has commingled with its argument references to its ongoing dispute with GSA regarding payment for overtime under the lease. In addition, appellant has submitted with its brief eight supplemental exhibits which relate to overtime. Since this is not a claim for overtime, counsel for respondent has objected to the introduction of these documents on the ground that they are not relevant to the claim. His point is well taken. Based on the understanding reached early in this proceeding, overtime is not in issue in this case. Accordingly, we sustain respondent's objection. This documentation proposed by appellant for inclusion in the record is rejected and will not be considered by the Board in deciding this claim. Appellant has convinced us that, as a result of the activity at the warehouse site on the weekend of July 9-10, the lessor's janitorial staff was required to do more work than it would otherwise have been required to do in the course of its normal weekday duties. Respondent argues that any extra cleaning which may be needed when FSS works on the weekend is not covered by the lease. Respondent's Brief at 2. We disagree. We consider that the work in question can be viewed as additional or extra work within the scope of the contract and which the Government obviously expected appellant to perform. When seen in this light, the requirement to perform this work can be viewed as a constructive change for which appellant is entitled to an equitable adjustment under the changes clause of the contract. Mr. Klean's Janitor & Maintenance Service, Inc., GSBCA 9010, 91-2 BCA 23,683. Respondent contends that there is serious doubt as to whether the work was even required. We believe otherwise. The statement of a GSA employee that he saw nothing out of the ordinary simply lacks credibility. We cannot accept the fact that the weekend activity would not have generated trash and required cleaning. The conflicting statement of the TTR representative is based on first hand knowledge while that of the GSA employee may simply be attributable to an uninformed or unpracticed eye. Furthermore, the type of conditions allegedly found by TTR employees on Monday, July 11, called for work quite similar to that which the tenant had anticipated would be required in the event the facility was used outside the normal workweek schedule. See Finding 4. Much more convincing are respondent's arguments that the charges in question are unreasonable. The record tells us little regarding the size of the janitorial operation at the warehouse. The number of federal employees working on-site and the number of TTR employees involved in janitorial operations, however, suggests that the janitorial duties are extensive. Accordingly, any cleanup occasioned by use of the facility by forty-five persons could well be significant. We find the explanation offered in support of the labor required for cardboard disposal credible. Not so, however, the twenty-four hours claimed for sweeping operations -- particularly when one assumes that normal day to day janitorial services would presumably involve sweeping the entire premises at least once over a two to three day period. If there were special extenuating circumstances in this case which would explain why a total of twenty-four hours of sweeping were required just to clean up after the weekend activity, they have not been provided by appellant. Based on the information actually offered, we are prepared to allow no more than eight hours. As to the cost said to be associated with equipment rental, we disallow it in its entirety. The explanation given by TTR indicates that, in fact, TTR used its own equipment but, considered itself entitled to "quote" a cost for renting equipment since its own equipment was being utilized beyond normally anticipated limits. We agree with respondent that this is an inappropriate cost for recovery since, in fact, it was never incurred. See Respondent's Brief at 3. In the absence of a more reasonable measure such as one which might be based on depreciation of the useful life of the equipment, we deny this portion of the claim. We recognize the contracting officer in her affidavit has expressed the opinion that "[t]he restrooms in or near areas not worked would not have been used." Marron Affidavit at 1. Her information, however, as to what sections were worked does not appear to be based on any personal observation. On the other hand, the information provided by TTR on restrooms needing servicing presumably is based on personal observation. We, therefore, are prepared to allow the claim for time spent on restroom cleaning notwithstanding the contracting officer's comment. Finally, we consider the claim for additional supervision and planning to be part of TTR's overhead. Presumably this is already provided for in the overhead markup set out in TTR's invoice. We, therefore, decline to award it as a separate item. Given the considerations set out above, we recalculate appellant's claim as follows: 1. One man on cardboard for (2) days = 16 man-hours 2. One man on riding sweeper for (1) day = 8 man- hours 3. One man (3) hours emptying trash 4. (5) additional hours for Janitorial service on the restrooms and offices Cost Breakdown for the additional services: 32 additional man-hours @ $6.25/hour = $ 200.00 Workers Compensation 10.44% of $200.00 = $ 20.88 Payroll Taxes 11.45% of $200.00 = $ 22.90 Additional Trash Removal Costs = $ 50.00 ------------------------------------------------------ Subtotal $ 293.78 TTR Enterprises Overhead 10% = $ 29.38 ------------------------------------------------------ Subtotal $ 323.16 TTR Enterprises Profit 10% = $ 32.32 ------------------------------------------------------ TOTAL $ 355.48 Decision This appeal is GRANTED IN PART. We find respondent liable for $355.48 in costs associated with the performance of extra janitorial services required as a result of authorized activities at the warehouse site on the weekend of July 9-10, 1994. Appellant is entitled to interest on that amount as provided under the Contract Disputes Act of 1978. 41 U.S.C. 611 (1988). _________________________ EDWIN B. NEILL Board Judge