Board of Contract Appeals General Services Administration Washington, D.C. 20405 DENIED: June 23, 2000 GSBCA 14507 GRIFFIN SERVICES, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Karl Dix, Jr., and Steven L. Smith of Smith, Currie & Hancock LLP, Atlanta, GA, counsel for Appellant. Martin A. Hom, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), BORWICK, and GOODMAN. DANIELS, Board Judge. Griffin Services, Inc. (Griffin) claims reimbursement of deductions the General Services Administration (GSA) took from monthly payments under a contract for the provision of mechanical maintenance services at two federal buildings in Buffalo, New York. GSA took the deductions because Griffin provided less than one hundred hours of miscellaneous services in each of the contract months. Griffin maintains that the taking of the deductions was impermissible for two reasons. First, the contract between the two parties, as reasonably interpreted, precludes the taking of the deductions. Second, GSA's estimate that the Government would order one hundred hours of miscellaneous services per month was negligently prepared, thus constituting a breach of the warranty of reasonable accuracy of the plans and specifications. We find Griffin's first argument wanting. We agree that the estimate was negligently prepared, but because Griffin has not proved that it relied to its detriment on the misrepresentation in making its bid, it cannot recover. Findings of Fact 1. In late March or early April of 1996, GSA issued an invitation for bids to provide mechanical maintenance services at the Thaddeus J. Dulski Federal Building and the Michael J. Dillon United States Courthouse in Buffalo, New York. Appeal File, Exhibit 1; Respondent's Brief (Mar. 23, 1999) at 5 & n.4. The solicitation contained a clause entitled "Miscellaneous Services." The clause explained that miscellaneous services "shall consist of, but are not limited to, installing office identification cards and holders and changing building directory boards. . . . It may also include the making of door keys, repining lock cylinders, hanging pictures, maps and bulletin boards moving furniture, assembling or disassembly of materials, etc." Appeal File, Exhibit 1 at 000020. 2. The "Miscellaneous Services" clause contained the following paragraph, which is of critical importance to this case: The Contractor shall provide 100 man hours per month to accomplish miscellaneous services requested by the COR [contracting officer's representative], as part of this contract at no additional cost to the Government. Additional hours may be provided at the hourly labor rate that is specified in Part 1, Section B., [sic] [T]he government may also deduct at the same hourly rate when the total man hours are not provided either due to the contractor[']s inability to supply the manpower or when the COR has not issued enough work for any individual month. Appeal File, Exhibit 1 at 000020. The solicitation stated elsewhere: "NOTE: THE NUMBER OF HOURS OF . . . MISCELLANEOUS SERVICES . . . [IS] BASED ON HISTORICAL DATA DEVELOPED OVER THE PAST YEAR." Id. at 000236. 3. At the time the solicitation was issued, Temco Mechanical Maintenance (Temco) had been providing mechanical maintenance services, under contract, to GSA at both the Dulski Building and the Dillon Courthouse since September 1, 1994.[foot #] 1 Deposition of Richard T. Pierce (Pierce Deposition) (Sept. 2, 1998) at 18-19. From September 1994 until April 1996, the contractor was required to provide ----------- FOOTNOTE BEGINS --------- [foot #] 1 Temco's contract, as awarded on December 31, 1990, covered only the Dulski Building. Pierce Deposition, Exhibit 1. The Dillon Courthouse was added by a contract modification which took effect on September 1, 1994. Id., ___ Exhibit 2 at 000018. ----------- FOOTNOTE ENDS ----------- three hundred man-hours per month to accomplish miscellaneous services at those buildings. Id. at 20 & Exhibit 2 at 000018, 000021. As time had passed, however, the Government required substantially less miscellaneous services. Pierce Deposition at 42. By contract modification dated April 17, 1996, and effective on April 1 of that year, the number of hours required was reduced to fifty per month. Id., Exhibit 2 at 000005. 4. There were two reasons for this decrease. First, GSA had been including as miscellaneous services about two hundred hours per month of secretarial services and did not intend to continue this practice. Second, as a result of decreases in funds available to agencies which occupied the buildings, the Government was no longer ordering as many miscellaneous service hours as it had in the past. Pierce Deposition at 20-21, 33, 42- 45. The building manager of the Dulski Building from 1992 until October 1996, Richard Pierce, oversaw the operation of all GSA building maintenance activities in the Buffalo area during this period of time. Id. at 5-6. Fifty hours was Mr. Pierce's best estimate of the amount of miscellaneous services that GSA would require from Temco during the remainder of its contract. Id. at 43. 5. Mr. Pierce also drafted the specifications for the solicitation in question. Pierce Deposition at 5-6, 39. He understood that the miscellaneous services to be performed under the contract which would result from the solicitation were essentially the same as those being performed under the Temco contract (less the secretarial services). Id. at 22-23, 32-33. At one time during the preparation of the solicitation, the number of man-hours of miscellaneous services to be included in the price at no additional cost to the Government had been stated as four hundred per month. On March 28, 1996, Mr. Pierce requested that this number be reduced to one hundred monthly. His recommendation was incorporated in the solicitation which was sent to prospective bidders. Id. at 25-27; Appellant's Brief (June 19, 1998), Exhibit C. 6. When Mr. Pierce was asked why he used the number one hundred in the solicitation, though GSA was at virtually the same time reducing the number in the predecessor contract to fifty, he responded simply, "Yes, there could have been a reason" and "I can't give you the reason for it, but . . . [t]here had to be some validity to making the changes in these hours." Pierce Deposition at 31, 38. Mr. Pierce thought that the number one hundred had been "a 50/50 shot" between historical data and his estimate of future requirements. Id. at 33. At the same time, he acknowledged that he did not expect an increase in miscellaneous services hours: "We were falling on leaner times. We had less money to operate from other agencies for miscellaneous type work. If anything, we expected to have a decrease in work." Id. The record does not contain any evidence, other than Mr. Pierce's testimony, regarding the basis for requiring one hundred hours of miscellaneous services per month in the solicitation, but calling for only fifty hours from Temco. 7. The only real difference between the Temco contract and the solicitation, as to miscellaneous services, is (aside from the stated number of hours) that the solicitation, but not the contract, allowed GSA to take a deduction from total payments in any month in which the stated number of hours was not ordered. Pierce Deposition at 22; compare id., Exhibit 1 at 16, with Appeal File, Exhibit 1 at 000020; see Appellant's Brief (Mar. 31, 1999) at 3, 11; Respondent's Brief (Mar. 23, 1999) at 3. 8. After receiving the solicitation in question, Griffin's vice president for operations wrote to an agency contracting officer: [The paragraph set out in Finding 2] requires the contractor to provide 100 manhours monthly for various miscellaneous services. Additionally, [it] allows the government to deduct for unused manhours . . . . Please be advised that we believe this is an unacceptable approach towards the procurement of manhours for miscellaneous services. Our position is based on the fact that the contractor is required to maintain sufficient staff on-site to accommodate these requests. Therefore, any reduction in the contractor[']s monthly price could not be offset by a decrease in cost to the contractor. Appeal File, Exhibit 4. 9. The contracting officer responded: [I]t is in the government's best interest to retain the clause allowing for a deduction for nonperformance. It is the government's intention to utilize the 100 man- hour requirement, but, note that this is an estimate of intent and the clause is protection for the government in the event that the 100 man-hour requirement is not met for a variety of possible reasons. Furthermore, there will be occasion[s] when we will be purchasing additional hours over the 100 man-hours requirement[]. Appeal File, Exhibit 5. 10. Following this exchange of correspondence, Griffin submitted a bid in response to the solicitation. The bid includes these prices: PER MONTH price for providing the operations, preventive maintenance, service calls (including 100 man-hours for Miscellaneous Services), water treatment services and related services described herein. $35,826.05/MO. PER HOUR price for providing miscellaneous services described herein. $28.44/HR. Appeal File, Exhibit 1 at 000002. 11. Griffin's president, who prepared his company's bid, says that he based the bid on the assumption that "on average, the Government would order 100 manhours of miscellaneous services per month and, furthermore, would not deduct amounts if the 100 hours were not ordered unless 'non-performance' problems occurred in which Griffin Services, for whatever reason, would fail to perform manhours of service once ordered by the Contracting Officer's representative." Affidavit of James J. Griffin, President and Owner of Griffin Services, Inc. (Griffin Affidavit) (undated, but attached to appellant's brief dated June 19, 1998) 16. The president has explained further, "Griffin Services planned to perform this work with personnel already available on the site." Id. 17. 12. During discovery, GSA asked Griffin to "state how many hours per month for Miscellaneous Servi[c]es . . . you included in your bid." Griffin answered, "Griffin's bid accounted for 500 man hours per year. Any remaining requirements were expected to be provided from additional hours available from the on-site team, over and above the actual work requirements calculated in the bid." Respondent's Brief (Mar. 23, 1999), Exhibit 2 at 1. Griffin's bid workpapers confirm the number of 500 man-hours per year. Affidavit of Paula Ann Downey (Downey Affidavit) (Mar. 31, 1999), Exhibit B at 32. The workpapers show specific numbers of hours for each of numerous tasks (6763.42), with additional hours for "loss time" (676.34), service calls (1115.96), maintenance repairs (743.96), and "coverage or utility services" (500).[foot #] 2 Id. at 1-32. Griffin's operations manager explains that the 500 man-hours "was a contingency item ----------- FOOTNOTE BEGINS --------- [foot #] 2 As can be seen from a comparison of Griffin's interrogatory answer and bid workpapers, the contractor used the terms "utility hours" and "miscellaneous hours" interchangeably. GSA did this, too. See, e.g., Pierce Deposition at 16. ___ ____ As can also be seen, the quantities for the categories of loss time, service calls, and maintenance repairs have been derived from the quantity for the specified tasks. Loss time is ten percent of that figure; service call time is fifteen percent of the total hours for specified tasks plus loss time; and maintenance repair time is ten percent of that total. "Coverage or utility service" time, on the other hand, is an independently selected figure. ----------- FOOTNOTE ENDS ----------- to make sure that Griffin Services, Inc. had provided enough labor man hours to perform the work required by the Solicitation . . . . [T]hese additional man hours applied to all the work including the utility services." Downey Affidavit 4. The operations manager states further, "No specific FTE [full- time equivalent] or man hours were provided in Griffin Services, Inc.'s bid to perform the utility or miscellaneous services. Instead, these services were to be provided by the personnel on the site as part of the overall labor hours estimated for the project." Id. 6. 13. Griffin's bid was accepted by GSA. The agency awarded to Griffin on July 24, 1996, a contract which includes the paragraph set out in Finding 2 above. The contract covers the thirty-six month period from September 1, 1996, to August 31, 1999, and includes two option periods of thirty-six additional months each. Appeal File, Exhibits 1, 2. 14. In October 1996, after completion of the first month of contract services, GSA deducted from its payment to Griffin "$490.59 for 17.25 hours of 'Miscellaneous Services' not provided during Sept." Griffin Affidavit, Exhibit 1. Griffin objected to this deduction. Griffin Affidavit 10. In succeeding months, GSA took similar deductions and Griffin requested rescission of them. Id. 11; Appeal File, Exhibits 7, 9, 10, 12, 13. 15. On August 21, 1997, Griffin submitted to the contracting officer a claim for return of all deductions GSA had taken for provision of less than one hundred man-hours of miscellaneous services in each of the preceding contract months. In its claim letter, Griffin said that in making its bid, it "interpreted the Contract and the Contracting Officer's response to mean that the Government intended to utilize the 100 man-hours and that penalties may be imposed for 'non-performance', i.e. if Griffin Services failed to provide hours requested by the COR." Appeal File, Exhibit 15. 16. On November 20, 1997, the contracting officer denied this claim. In so doing, he asserted that the contract provision in question allows the Government to make deductions in any month in which one hundred man-hours of miscellaneous services were not ordered "for a variety of possible reasons." He also maintained that Griffin should have considered the implications of the provision in formulating its bid. Appeal File, Exhibit 16. Griffin timely appealed this decision. Id., Exhibit 17. 17. A month later, the contracting officer considered modifying the contract "to decrease the number of miscellaneous man hours from 100 to, say, 50 man hours per month." Appellant's Brief (June 19, 1998), Exhibit B. Mr. Pierce's successor as building manager advised, however, in favor of "keep[ing] the 100 man hours in the contract as this would allow more flexibility should that amount of work be available in any given month." Id. The contracting officer noted that this and another issue were "very important," and observed for future reference that "[i]f the Building Managers address them during their preparation of the specifications, we may be able to avoid costly claims during contract performance." Id. 18. GSA had ordered from Temco, the predecessor contractor to Griffin, the following numbers of hours of miscellaneous services (not including secretarial services): 1995: March, 426 less secretarial hours; April, 141; May: 149; June, 191; July: 126.5; August, between zero and 140;[foot #] 3 September, between zero and 140; October, between zero and 132; November, between zero and 164; December, between zero and 148. 1996: January, between zero and 140; February, between zero and 140; March, between zero and 140; April, 61; May, 62.5; June, 70.5; July, 73.5; August, between zero and 50. Respondent's Brief (Mar. 23, 1999), Exhibit 1. 19. During the months of September 1996 through May 1998, inclusive, GSA directed Griffin to provide miscellaneous services in every month. The number of man-hours ordered monthly varied between 18.5 (in March 1998) and 99 (in February 1998); it averaged 57.4 per month. Griffin Affidavit, Exhibit 2; Declaration of John L. Carson (Carson Declaration) (undated, but attached to respondent's brief dated July 27, 1998), Exhibit 1 at 2. According to declarations by a GSA contracting officer and a GSA building manager, these hours represented the entirety of the agency's needs for miscellaneous services. Declaration of Josephine H. Ali (undated, but attached to respondent's brief dated July 27, 1998) 10-11; Carson Declaration 10-11. The monthly deductions taken by GSA in each month equal the product ----------- FOOTNOTE BEGINS --------- [foot #] 3 The documentation does not show how many miscellaneous services hours were ordered in this month and those with similar entries; it shows only that the figure did not exceed the number which the contractor was required to provide without additional charge. Respondent's Brief (Mar. 23, 1999), Exhibit 1. Thus, the total number of miscellaneous services hours ordered could have been anywhere between zero and 300 for months in which the required amount was 300, and between zero and 50 for months in which the required amount was 50. We have subtracted from the maximum the number of secretarial hours ordered. GSA suggests that "it is safe to assume that all 300 man-hours were utilized" in each of the months from March 1995 through February 1996, save July 1995, because GSA took a credit in July 1995 for having ordered less than 300 hours. Respondent's Brief (Mar. 23, 1999) at 10. We do not consider this a fair assumption. The Temco contract did not allow for such a deduction. Finding 6. The deduction for July 1995 appears to have been taken in error. ----------- FOOTNOTE ENDS ----------- of two numbers: one hundred less the number of hours ordered, multiplied by the hourly rate of $28.44.[foot #] 4 The total of deductions taken for these months was $23,542.93. Griffin Affidavit, Exhibit 2; Carson Declaration, Exhibit 1 at 2. 20. According to Griffin's president, "At all times during performance of the contract, Griffin Services has been staffed to provide 100 man-hours of miscellaneous services per month." Griffin Affidavit 18. "Griffin Services has not experienced any reduction in its costs when the Government has failed to order the 100 man-hours of miscellaneous services as provided in the contract." Id. 19. 21. Griffin's payroll records show that between September 1996 and March 1998, the company had a total of twenty-four employees working under this contract. Between six and fifteen of the employees were on the job in each two-week pay period, and the employees worked between 417 and 994 hours during each such period. During virtually every pay period, at least one employee worked overtime; generally, almost half the employees worked overtime in any particular pay period. Also during virtually every pay period, many of the employees were paid for less than a full eighty hours on the job. Some of the employees were paid for hours which varied wildly from pay period to pay period; employee Higgins, for example, was on the payroll for almost every pay period, and was paid for as little as seventeen and as many as seventy hours in a period. Downey Affidavit, Exhibit A. Discussion This dispute revolves around a single paragraph in the contract between the parties: The Contractor shall provide 100 man hours per month to accomplish miscellaneous services requested by the COR [contracting officer's representative], as part of this contract at no additional cost to the Government. Additional hours may be provided at the hourly labor rate that is specified in Part 1, Section B., [sic] [T]he government may also deduct at the same hourly rate when the total man hours are not provided either due to the contractor[']s inability to supply the manpower or when the COR has not issued enough work for any individual month. Findings 2, 13. ----------- FOOTNOTE BEGINS --------- [foot #] 4 There is one exception to this statement. For the month of January 1998, GSA ordered sixty-eight hours of miscellaneous services and took a credit of only $193.69, or $6.05 per hour. ----------- FOOTNOTE ENDS ----------- Griffin maintains that this paragraph, especially as interpreted by the GSA contracting officer in a pre-bid letter to Griffin, forbids the Government (with one exception) from making deductions from contract payments for the provision of less than one hundred man-hours of miscellaneous services in any month. The exception is that deductions may be made whenever GSA orders man-hours which Griffin fails to provide. GSA, on the other hand, contends that the paragraph allows the Government to make deductions whenever the contractor does not provide as many as one hundred man-hours, no matter the reason for the failure to provide the hours. The Court of Appeals for the Federal Circuit has summarized the way in which we should approach disputes like this one which are based on contract interpretation: In interpreting a contract, we begin with the plain language. We give the words of the agreement their ordinary meaning unless the parties mutually intended and agreed to an alternative meaning. In addition, we must interpret the contract in a manner that gives meaning to all of its provisions and makes sense. If terms are susceptible to more than one reasonable interpretation, then they are ambiguous. An ambiguity may be patent or latent. A patent ambiguity is one that is so glaring as to raise a duty to inquire. A latent ambiguity, on the other hand, is not glaring, substantial, or patently obvious. Where such a latent ambiguity exists, the court will construe the ambiguous term against the drafter of the contract when the nondrafter's interpretation is reasonable. Massie v. United States, 166 F.3d 1184, 1189 (Fed. Cir. 1999) (citations and quotations omitted); see also American Commercial Contractors, Inc. v. General Services Administration, GSBCA 11713, et al., 94-3 BCA 26,973, at 134,351-52. Following the court's guidelines results in a very short analysis here. The plain language of the contract is eminently clear (even though the syntax is poor). The paragraph says that Griffin shall provide, each month, without any charge beyond the monthly fee, one hundred man-hours to accomplish miscellaneous services. If the Government orders more than one hundred man- hours of miscellaneous services in any month, it will pay for those hours at the rate specified for such services in the contract. If the Government orders less than one hundred man- hours of miscellaneous services in any month, the Government may take a deduction for the deficit at the same hourly rate. A deduction may be taken not only "when the total man hours are not provided . . . due to the contractor[']s inability to supply the manpower," but also "when the COR has not issued enough work."[foot #] 5 Because the plain language is clear, our analysis stops with it. Barseb ck Kraft AB v. United States, 121 F.3d 1475, 1479 (Fed. Cir. 1997). GSA's position is correct. Griffin asserts the existence of an ambiguity in the contract provision in question. The contractor points in support of this assertion to an exchange of correspondence, before bidding occurred, between a Griffin vice president and the GSA contracting officer. Even if this exchange could be considered in interpreting the contract, it would not help Griffin because it does not demonstrate an ambiguity. The vice president understood well the import of the paragraph at issue. He did not ask for an explanation of it; instead, he objected that it was "an unacceptable approach" because it was, in his mind, unfair to the contractor. Finding 8. The contracting officer responded that she was concerned only with "protection for the government in the event that the 100 man-hour requirement is not met for a variety of possible reasons." She therefore decided to retain the paragraph as written. Finding 9. The contracting officer's explanation was consistent with the provision and did not vary its meaning. Griffin's determination, even with her response in hand, to bid as if deductions could only be taken for the contractor's failure to honor Government directives, obviously ignored the plain words of the clause and therefore was outside the "zone of reasonableness." Interpretations outside that zone do not suffice to establish an ambiguity in a contract provision. Metric Constructors, Inc. v. National Aeronautics & Space Administration, 169 F.3d 747 (Fed. Cir. 1999) (citing WPC Enterprises, Inc. v. United States, 323 F.2d 874, 876 (Ct. Cl. 1963)). Griffin's second justification for its claim is that GSA may not take deductions for the provision of less than one hundred man-hours of miscellaneous services in any month because the estimate of one hundred man-hours was a misrepresentation of the amount of such services which the Government would actually order. Again, the Court of Appeals has summarized the law relevant to the issue posed: A contractor can recover damages under a contract for a misrepresentation by the Government in the contract documents. In order for a contractor to prevail on a claim of misrepresentation, the contractor must show ----------- FOOTNOTE BEGINS --------- [foot #] 5 Griffin points out that elsewhere in the contract, the parties agreed that GSA could take deductions from monthly payments when the contractor "[f]ail[ed] to perform . . . other work required by the contract." See Appeal File, Exhibit 1 ___ at 000050; Finding 15. This authorization to take deductions is not the exclusive such authorization, however, as Griffin contends; rather, it is an authorization additional to the one at issue in this case. ----------- FOOTNOTE ENDS ----------- that the Government made an erroneous representation of a material fact that the contractor honestly and reasonably relied on to the contractor's detriment. A misrepresentation is material if it would be likely to induce a reasonable person to manifest his assent, or if the maker knows that it would be likely to induce the recipient to do so. T. Brown Constructors, Inc. v. Pe a, 132 F.3d 724, 728-29 (Fed. Cir. 1997) (citations and quotations omitted); see also Medart, Inc. v. Austin, 967 F.2d 579, 581 (Fed. Cir. 1992). The Court of Claims explained the reason for allowing recovery for misrepresentation in Womack v. United States, 389 F.2d 793 (Ct. Cl. 1968): An estimate as to a material matter in a bidding invitation is an expedient. Ordinarily it is only used where there is a recognized need for guidance to bidders on a particular point but specific information is not reasonably available. Intrinsically, the estimate that is made in such circumstances must be the product of such relevant underlying information as is available to the author of the invitation. If the bidder were not entitled to so regard it, its inclusion in the invitation would be surplusage at best or deception at worst. Assuming that the bidder acts reasonably, he is entitled to rely on Government estimates as representing honest and informed conclusions. Id. at 801; see also Atlantic Garages, Inc., GSBCA 5891, 82-1 BCA 15,479, at 76,707-08 (1981). The inclusion in a solicitation of a provision relating to a variation in quantity "does not dilute the standard to which [the Government] is held with respect to particular estimates that it includes"; it does not "excuse the estimator from using and disclosing relevant information that is reasonably available to him." Womack, 389 F.2d at 801. A variation clause "does not encompass a fluctuation which was unanticipated by the contractor solely because the Government did not disclose information which it possessed." Chemical Technology, Inc. v. United States, 645 F.2d 934, 948 (Ct. Cl. 1981). As Griffin maintains, the estimate in the solicitation of miscellaneous services hours to be performed each month was flawed by misrepresentation. First, the number of hours was said to have been based on historical data, Finding 2, but it was not. The GSA building manager who was the only agency representative to provide us with information about the number testified that the amount was "a 50/50 shot" between historical data and his estimate of future requirements. Finding 6. Further, the historical data is so incomplete as to make any reliance on it useless. See Finding 18. Second, and more important, the number was greatly in excess of the agency's own best estimate of the man-hours of miscellaneous services it would need. That estimate was no more than fifty hours per month, and probably less as time passed. Findings 4, 6.[foot #] 6 GSA has provided no good explanation for why it placed the number one hundred in the solicitation which led to Griffin's contract, at the same time that it was putting the number fifty in the predecessor contract. See Findings 4-6. Nor has the agency explained why, during the nearly four months which passed between issuance of the solicitation and award of the contract, while the agency was accumulating data which showed that the number fifty was much closer to the Government's needs, see Finding 18, it never modified the solicitation to insert an accurate number.[foot #] 7 The only apparent reason for including the number fifty in the predecessor contract, but one hundred in the solicitation, was the contracting officer's desire to protect the Government under the Griffin contract, in the event few hours were ordered. See Findings 9, 17; see also Finding 7 (regarding change in design of contract). This sort of reasoning, if accepted, would always justify the Government's inserting in solicitations grossly inflated estimates of work to be ordered, as a means of encouraging prospective contractors to promise better prices -- usually, lower unit prices based on assumed high volumes of sales. This is the sort of action which Womack and Chemical Technology proscribe as placing an unfair risk on the contractor. Griffin may not prevail, however, merely because it has convinced us that GSA's estimate of the number of miscellaneous service hours to be ordered was a misrepresentation. As quoted above, the Court of Appeals has made clear that the contractor cannot succeed unless it also shows that it honestly and reasonably relied, to its detriment, on the misrepresentation. Griffin's bid workpapers show that the contractor included only five hundred man-hours per year, or less than forty-two per month, for miscellaneous services -- and in answering an interrogatory, Griffin acknowledged this fact. Finding 12. Because all other hours shown in the workpapers were attributed to other kinds of work, we cannot view Griffin's bid as being based on an assumption that any more than forty-two hours of ----------- FOOTNOTE BEGINS --------- [foot #] 6 We note that this estimate proved to be accurate. Finding 19. [foot #] 7 We note that after Griffin filed its claim, the contracting officer suggested to the building manager that estimates of work to be ordered are important and should be addressed carefully during preparation of solicitation specifications, to avoid later problems like the one at issue in this case. Finding 17. The contracting officer's comment is highly perceptive. ----------- FOOTNOTE ENDS ----------- miscellaneous services would be ordered in any month. See id.[foot #] 8 We recognize that Griffin's president says that he based his company's bid on the assumption that the Government would order an average of one hundred man-hours of miscellaneous hours per month. Finding 11. In light of the bid workpapers, however, the president's statement can only be construed as saying nothing more than that Griffin was prepared to provide one hundred man-hours of miscellaneous services in any month. See Finding 20. Griffin's bid, then, insofar as it related to miscellaneous services, was not premised on an assumption that the Government would order, in each month, the one hundred man-hours that GSA estimated in the solicitation. We have no reason to believe that if GSA had prepared its solicitation more conscientiously by including its best estimate of fifty hours per month, Griffin w o u l d h a v e s t r u c t u r e d i t s b i d a n y differently.[foot #] 9 We therefore cannot find that Griffin relied to its detriment on the agency's inclusion, without rational basis, of an unrealistically high estimate in the solicitation. Griffin's failure to prove detrimental reliance is pivotal in this case. Even if we had agreed with the contractor's position on its first theory, contract interpretation, this failure would suffice to defeat the claim. T. Brown Constructors, 132 F.3d at 735; Fruin-Colnon Corp. v. United States, 912 F.2d 1426, 1430 (Fed. Cir. 1990). ----------- FOOTNOTE BEGINS --------- [foot #] 8 Griffin has submitted an affidavit from its operations manager with regard to the workpapers. The affidavit indicates that the figure of forty-two hours per month may be high, since these hours "applied to all the work including the [miscellaneous] services." Finding 12. [foot #] 9 Griffin's president says that if he had "known that the 100 Man Hours estimated for monthly Miscellaneous Services was not based upon historical data, [he] would have prepared [the] bid to include amounts for unused hours probably in the amount of fifty to seventy-five hours due to the limited definition and description of Miscellaneous Services." Affidavit of James J. Griffin (July 7, 1998) 7. This statement does not have any impact on our conclusion. The statement is off-point in two regards -- in focusing on the estimate's not having been grounded on historical data, when the problem was really that the estimate had no basis at all, and in questioning the definition of "miscellaneous services," something that has not been put at issue in this case. The statement is also confusing in its reference to "unused hours" and vague as to the potential effect of a differently-worded solicitation. To the extent that the statement might be considered to speak to Griffin's reliance on the estimate in the solicitation, we find it without credibility. ----------- FOOTNOTE ENDS ----------- Griffin's payroll records contain further cause for doubting that the contractor was damaged by having to provide less than one hundred man-hours of miscellaneous services in every contract month for which we have information. The contractor asserts, "[S]ufficient staff was maintained to perform 100 miscellaneous man hour services per month. Once the project was so staffed, Griffin could not cut its workers['] pay at the end of the month to recoup any hours less than the 100 monthly miscellaneous hours which were not ordered. Griffin incurred the same cost for these services whether the man hours ordered were 20, 50, 100 or 110 man hours." Appellant's Brief (Mar. 31, 1999) at 9. In reality, however, Griffin did not staff the project with a fixed corps of servicemen and women, but rather, with a constantly-changing cast of employees. These personnel did not work fixed work schedules of eighty hours each two weeks; rather, many worked overtime (why would they do this if the Government's ordering less work than expected was a problem?) and others worked schedules which varied wildly but always involved part-time work under this contract. Finding 21. The payroll records suggest that Griffin could and did alter the time that its employees devoted to this job in response to the Government's needs. Decision The appeal is DENIED. _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ _________________________ ANTHONY S. BORWICK ALLAN H. GOODMAN Board Judge Board Judge