_____________________________________ DENIED: September 30, 1992 _____________________________________ GSBCA 11741 PREMIERE BUILDING SERVICES, INC., Appellant, V. GENERAL SERVICES ADMINISTRATION, Respondent. Bernard Greenspan, President of Premiere Building Services, appearing for Appellant. A. R. Dattolo, Assistant Regional Counsel, General Services Administration, Atlanta, GA, counsel for Respondent. Before Board Judges BORWICK, NEILL, and PARKER. Per Curiam. Pursuant to Rule 18, a hearing examiner was designated to conduct proceedings in this appeal. The Board adopts the following opinion recommended by the hearing examiner. Accordingly this appeal is denied. Opinion Recommended by Hearing Examiner Bryan This appeal, filed on February 26, 1992, arises from a dispute concerning deductions taken under a janitorial contract at the Federal Building in Jacksonville, Florida. Appellant, Premiere Building Services, Inc., appealed the General Services Administration's final decision deducting $3,237.75, for non- performance under contract No. GS-04P-88-EWC-0147, Option II, during the contract period February 1, 1991, to January 31, 1992. The parties elected to submit the appeal for decision on the record, under Rule 11, without a hearing. Findings of Fact 1. On December 16, 1988, appellant entered into contract No. GS-04P-88-EWC-0147, to provide janitorial services at the Federal Building in Jacksonville, Florida. The contract was to be performed during a twelve month period, but also included an option to extend the contract for four additional twelve month periods. The original performance period was from February 1, 1989, to January 31, 1990, and was later extended under Option I, from February 1, 1990, to January 31, 1991. A second option was exercised, from February 1, 1991, to January 31, 1992. Appeal File, Exhibit 1. 2. The contract specifically provides for withholding payments in the following circumstances: GSAR 552.232-78. Adjusting Payments (APR 1986) A. Under the Inspection of Services clause for this contract, payments may be adjusted if any services do not conform with contract requirements. The Contracting Officer or a designated representative will inform the Contractor, in writing, of the type and dollar amount of proposed deductions by the 10th workday of the month following the performance period for which the deductions are to be made. B. The Contractor may, within 10 working days of receipt of the notification of the proposed deductions, present to the Contracting Officer specific reasons why any or all of the proposed deductions are not justified. Reasons must be solidly based and must provide specific facts that justify reconsideration and/or adjustment of the amount to be deducted. Failure to respond within the 10 day period will be interpreted to mean that the Contractor accepts the deductions proposed. C. Payments (except for the final payment) will not be delayed or withheld until disputes over proposed deductions are settled. If the Contracting Officer determines that any or all of the proposed deductions are warranted, the Contracting Officer shall so notify the Contractor, and adjust subsequent payments under the contract accordingly. Appeal File, Exhibit 1. 3. Also included in the contract is a provision describing the criteria for making deductions: 10. Application of Criteria for Deductions. A. Toilet Cleaning. In instances where toilet rooms are not satisfactorily cleaned or policed and serviced as determined by the Contracting Officer's Representative, deductions shall be made for the entire room . . . . B. Room Cleaning. In instances where room cleaning has not been satisfactorily performed, or where any portion of work has been omitted or inadequately performed, a deduction for the entire room shall be made . . . . Appeal File, Exhibit 1. 4. The contract allows for notice of deductions to be presented to the contractor or contractor's on-site supervisor, and defines on-site supervisor as follows: B. On-Site Supervisors. (1) The term "on-site supervisor" means a person designated by the contractor who has authority to act for the contractor on a day-to-day basis at the work site, and to accept and sign for notices of deductions, inspection reports and all other correspondence on behalf of the contractor. Appeal File, Exhibit 1. 5. On March 7, 1991, the field office manager notified appellant in writing of proposed deductions in the amount of $429.29, for the month of February. Enclosed with the letter was a copy of the actual inspection report detailing the date, time and areas inspected, as well as the alleged deficiencies. Appellant was further notified that it had 10 days in which to respond to the deductions. Appeal File, Exhibit 2. 6. On March 15, appellant responded in writing, stating that the contract required that the notice of deductions was to be presented within 10 days of the preceding month, and because it was not received until March 13, the deductions were untimely. However, on March 29, appellant sent a second letter to the field office manager informing him that the March deduction letter had been delivered on time, but it chose not to respond to the specific deductions at that time, instead stating, "I reserve my right to raise issue with the proposed deductions at a later time." Appeal File, Exhibits 3, 4. 7. By letter dated April 3, the field office manager notified appellant of proposed deductions for the month of March in the amount of $233.27, along with a detailed inspection report. Appellant responded on April 15, again stating that "I dispute the proposed deductions and reserve my right to present pertinent facts at a later date." Appeal File, Exhibits 7, 8. 8. Proposed deductions for the month of April were presented to appellant by letter on May 8, in the amount of $482.69. Also enclosed was a detailed inspection report indicating why specific deductions had been taken. Appellant responded on May 21, by disputing the deductions but reserving the "right to present facts at a later time." Appeal File, Exhibits 10, 11. 9. In a June 10 letter, appellant was presented with the inspection report and proposed deductions for the month of May, in the amount of $312.54. Appellant responded on May 18, disputing the proposed deductions, but reserving the "right to present my comments at a later time." Appeal File, Exhibits 12, 13. 10. Appellant notified the contracting officer by letter on July 16, that no deductions had been taken for the month of June. Appeal File, Exhibit 14. 11. By letter of August 5, the field office manager notified appellant of the inspection report and proposed deductions for the month of July, in the amount of $355.22, to which appellant did not respond. Appeal File, Exhibit 15. 12. By letter of September 6, the field office manager notified appellant of proposed deductions for the month of August, in the amount of $177.45, and again appellant did not respond. Appeal File, Exhibit 16. 13. In an October 3rd letter, the field office manager notified appellant of the September deductions, in the amount of $466.39. On October 15, appellant responded in writing to these proposed deductions, setting out specific arguments as to why the deductions were unwarranted. Appellant asserted that seventy percent of the total deductions for the month were for bathroom cleaning; that the fixtures and floor in the bathroom were twenty-four years old and had a considerable amount of wear and tear; and that it was unreasonable to use all of the fixtures in a room to calculate the deductions, when only a few were unsuitable. Appeal File, Exhibits 17, 18. 14. By letter of November 6, the field office manager notified appellant of deductions for the month of October in the amount of $164.05, to which appellant did not respond. Appeal File, Exhibit 20. 15. Respondent notified appellant in a letter of November 26, that it intended to exercise the third renewal option for extension of the subject contract for the period of February 1, 1992, through January 31, 1993. Appeal File, Exhibit 28. 16. On December 9, 1991, the field office manager notified appellant of the November deductions in the amount of $282.19. Appellant responded in detail to these deductions on December 13, arguing that the inspector was improperly charging for two hours of his time while he was re-inspecting; and that the inspector should determine what portion of the entire task is deficient in order to determine whether that deficiency rendered the entire lot unsuitable. On February 10, 1992, the contracting officer responded to appellant's arguments, holding that the deductions were proper. Appeal File, Exhibits 21, 22, 27. 17. By letter of January 13, 1992, the field office manager notified appellant of deductions taken for the month of December, in the amount of $155.83. Appellant challenged the timeliness of the notice, alleging that it was not received until January 21. Later, the contracting officer noted that appellant's on-site supervisor signed for the certified notice letter on January 14, which was within the time frame required. Appeal File, Exhibits 24, 25, 26. 18. On February 26, 1992, the Board docketed appellant's claim for additional costs for 1) $3,237.75 in deductions taken during the contract period for alleged unsatisfactory services; 2) a performance bond in the amount of $2,149, which appellant was required to provide; and 3) additional costs in the amount of $1,330 for changes which occurred during the performance period February 1, 1991, through January 31, 1992. Appeal File, Exhibit 36. Discussion Appellant originally filed this appeal on February 26, 1991, based on a deemed denial of its claim by the contracting officer. The Board later learned that appellant had never submitted a request for a final decision, and consequently suspended proceedings under Rule 27(a), on May 6, 1992, in order to allow for a final decision to be issued. On May 13, appellant submitted a request for a final decision on the sole issue of deductions, in the amount of $3,237.75. On June 23, the contracting officer denied appellant's claim, which is now properly before the Board. In cases where deductions have been taken for deficiencies in janitorial contract work, the Government has the burden of proving that the contractor failed to meet the contract requirements. This can be accomplished by submitting inspection reports, which are considered prima facie evidence of the deductions. Sylvan Service Corporation, GSBCA 9024 88-3 BCA 21,087, at 106,457; Sunnybrook Contractors, GSBCA 7628, 87-1 BCA 19,410. Here, respondent has presented its prima facie case for deductions by submitting detailed inspection reports which indicate the time, place and exact reason for the deductions as well as the daily abstract table it used for calculating deductions, all of which it forwarded to appellant on a monthly basis. Once respondent has presented evidence of deficiencies, it then becomes appellant's burden to demonstrate that the deductions were taken in error. This proof "must be supported by probative evidence, not by bare allegations that the contractor disagrees with Government. Statements in claim letters are not sufficient proof of facts which are disputed." Government Contractors, Inc., GSBCA 6776, 84-1 BCA 16,934, at 84,243. Appellant was forewarned of the necessity of presenting specific facts when objecting to deductions. Contract provision 552.232-78 required that appellant respond within ten days of receiving notice of deductions, and that the response be in writing, setting forth detailed reasons why a deduction should not be made. Furthermore, the contract stated that if appellant failed to respond within the ten day time period, this silence would be interpreted as an acceptance of the deductions. Finding 2. Despite this clear notice, appellant failed, for the most part, to properly address these deductions in a manner sufficient to prove that the deductions were undeserved. Even though appellant responded in writing every month from February through May 1991, objecting to the deductions, it merely stated that appellant reserved the right to address the issue at a later date and did not present any specific facts as to why the deductions were unjustified. When given a second opportunity to present facts to this Board, appellant again failed to offer any direct proof. We have no alternative but to find that the deductions taken for the months of February, March, April, and May, were proper as respondent's prima facie case remains uncontested for these months. Additionally, the record indicates that appellant did not respond at all to the deductions taken during the months of July, August and October 1991. Pursuant to the contract, a failure to take issue with deductions at the proper time is interpreted to mean that the contractor accepts the deductions as presented. Finding 2. We find that appellant's complete lack of objection during contract performance, and failure to present evidence now, justifies the deductions taken during these months. Our attention, therefore, is focused on the three months for which appellant responded to deductions within the time required under the contract, and where specific arguments were asserted in support of its objections: September, November and December. During the month of September, deductions totalled $466.30. Respondent's inspection reports indicate numerous deficiencies ranging from floors left unvacuumed and cigarette butts found on stairs, to stains on bathroom fixtures. Finding 13. In responding, appellant merely addressed the inequities of the contract deduction table, arguing that the total number of bathroom fixtures were used to determine the rate of deduction, rather than the total number of dirty fixtures. Furthermore, appellant argued that the bathroom fixtures were twenty-four years old, and had a large amount of wear and tear, and discoloration which may have contributed to the overall appearance. Id. During the month of November, deductions were taken in the amount of $282.10. Again, respondent submitted detailed inspection reports listing very particular deficiencies in office and bathroom cleaning. Finding 16. In responding to these deductions, appellant reiterated the same objections it had made to the September deductions; that the bathroom fixtures were old and that the entire area should not be rendered unacceptable when only a few of the fixtures were not considered clean. Id. Appellant's objections to both of these months' deductions, while emphatic, lacked specificity and are insufficient proof that deductions were taken improperly. Appellant's arguments regarding the age of the bathroom fixtures and the inequities of the deduction tables have no bearing on whether the specific areas in question were clean on the days they were noted to be dirty by the inspector. Additionally, appellant's objection to the deduction tables is misplaced. According to the contract, it is permissible to take deductions based on the entire room, rather than the individual fixture. Finding 3. Appellant had notice of this contract clause, and cannot now dispute its terms. Finally, we look at appellant's objections to deductions for the month of December, in the amount of $155.83. Here, appellant objects not to the actual deductions taken, but to the timeliness of notice of deduction, arguing that it was received on January 21, 1992, which was outside the ten day limitation imposed on respondent. This allegation was challenged by respondent, by presenting a January 14th receipt of certified mail, signed by a representative of appellant. Finding 17. Appellant also argues that the contract provides that notice of deductions is to be given to the contractor, rather than the contractor's on-site representative. This argument also fails, as the contract explicitly provides that the contractor's on-site representative has the authority to accept notice of deductions. Finding 4. We have held before that where appellant offers no more than "after-the-fact objections, raised by its principals, to the daily inspection reports" they are insufficient to prove reports were erroneous. Mutual Maintenance, GSBCA 7637, 91-1 BCA 23,287, at 116,782. Here, we conclude that appellant has failed to present anything more than bare allegations, and has not met its burden of proof. ____________________________ SHARI K. BRYAN Hearing Examiner