March 11, 1987

Appeal of

PAUL A. MASON

Under Contract No. HCR 21515

PSBCA No. 1570

APPEARANCE FOR APPELLANT:

Paul A. Mason

APPEARANCE FOR RESPONDENT:

Gary W. Bigelow, Esq.

OPINION OF THE BOARD

Appellant has appealed from the decision of the Contracting Officer which denied in its entirety that aspect of Appellant’s claim relating to quantum. A hearing was held at Appellant’s request.

Findings of Fact

1. Appellant entered into a renewal contract in 1979 to carry mail between Cumberland and Baltimore, Maryland, for the period July 1, 1979 to June 30, 1983. During much of the contract term Appellant voluntarily furnished a larger truck (two-ton) than required. At times at the request of the Postal Service he carried loads in that truck in excess of that required by his contract. Appellant thereafter claimed additional compensation for extra costs incurred as the result of using the larger truck and carrying excess mail. His claim was denied and he appealed to this Board.

2. On January 17, 1986, this Board issued its Opinion in Paul A. Mason, PSBCA No. 1335, 86-1 BCA ¶18, 722, finding Appellant entitled to additional compensation for increased operating costs under his highway mail transportation contract during the period October 1, 1979 to October 1, 1982. The costs found to be recoverable were those beyond what the parties at renewal reasonably should have contemplated could be carried on a 650-cubic foot capacity truck with a 10,000-pound gvw limitation. The Board specifically found Appellant was not entitled to additional compensation for voluntarily furnishing the larger vehicle. The matter was remanded to the parties for the negotiation of quantum.

3. In pertinent part the Board’s Opinion stated at pages 10-11:

. . . At this time we do not determine the number of days Appellant

carried mail in excess of its contract obligations. Specific proof of the number of days will be part of the quantum determination on increased operating costs.

* * * *

If the parties fail to reach a settlement on quantum and this case again comes to this Board, Appellant will have to show specific evidence to prove its increased operating costs. . . .

4. On February 12, 1986, Appellant submitted his quantum claim to the Contracting Officer in the amount of $106,002.50. No supporting documentation, other than a three page written argument advocating full payment, was provided by Appellant to the Contracting Officer (Supplemental Appeal File (SAF)-2-5).

5. Appellant’s claim of $106,002.50 was comprised of three parts: increased operating costs (other than fuel) -- $73,573.05; increased fuel costs -- $29,028.45; initial cost difference (purchase price) between a 1-ton truck and the larger truck utilized in contract performance -- $3,401.00 (SAF-2-3).

6. The first two portions of the claim were derived from Postal Service vehicle operation costs for a two-ton vehicle over Appellant’s contract route for one day multiplied by 365 days with the product multiplied by 3 (representing 3 years) (Transcript (Tr.) 24-25; Appellant’s Exhibit (AX)-17; SAF-2-3).

7. By letter dated March 5, 1986, Postal Service Counsel requested Appellant to submit “documentation and data” for the reasonable costs of his claim. Specifically, Appellant was referred to page 10 of the Board’s Opinion on entitlement (Finding of Fact, No. 2, supra) for the specific documentation and data required (SAF-7).

8. Appellant refused to provide the requested documentation and on April 18, 1986, the Contracting Officer denied appellant’s $106,002.50 claim in its entirety. The Contracting Officer denied the claim because Appellant had failed to provide any substantiating data to establish the alleged increased operating costs (SAF 8-9; Board Notice of Docketing).

9. Pursuant to a Board Rule contained in 39 C.F.R. § 955.16 (b counsel for Respondent served a request for admission of specified facts upon Appellant. Appellant did not deny any of the requested admissions of facts, although specifically given an opportunity to do so at hearing. The requested facts therefore were deemed admitted and were received in evidence. In admissions 11 through 16 Appellant admitted he had no documents showing any day a specific vehicle was used on his contract route and had no documents of any nature relating to fuel and oil prices during the 1979-1982 period (Request for Admissions, Tr. 4-5).

10. At hearing in this appeal Appellant declined to testify on his own behalf, although given the opportunity to do so three times (Tr. 5, 22, 32). Additionally, Appellant offered no documentary evidence in support of his position, other than one exhibit, which showed operating costs of a Postal Service vehicle over his route for one day, February 13, 1981 (Tr. 23, 32-33; AX-17).

DECISION

Before discussing Appellant’s argument in support of his position we note that Appellant has a misconception of one aspect of the Board’s January 17, 1986, Opinion in PSBCA No. 1335, the entitlement portion of this appeal. Apparently Appellant believes the earlier Opinion limited his right to recovery to a maximum of $1,000. That is not the case. The Opinion stated at page 9 that “[u]nless there is . . . proof in the quantum determination, we will conclude that each tender of mail over the contract obligation falls within the category of a constructive minor insignificant service change under clause 12(a)(1) which is limited to $1,000 or 10% of the contract pay rate.” Thus, Appellant was afforded the opportunity in the quantum portion of the appeal to submit proof that his cost increase was more than $1,000. Additionally, in the event he failed in that aspect of his proof, the $1,000 limit was placed on Appellant’s increased costs for each tender of mail, not on the total amount of recovery.

Turning to Appellant’s argument in support of his contention that he is entitled to payment of the amount of $106,002.50, it is settled that it is the burden of the contractor to establish the amount of any recovery to which he might be entitled. Nager Electric Co. v. United States, 194 Ct. Cl. 835, 442 F.2d 936 (1971); Wunderlich Contracting Co. v. United States, 173 Ct. Cl. 180, 351 F.2d 956 (1965); National Constr. Co., POD BCA No. 242, 69-1 BCA ¶ 7648. In attempting to carry this burden Appellant relies solely upon one document, which shows operating costs of a Postal Service vehicle over his route for one day, February 13, 1981. This evidence is insufficient to establish any amount of recovery.

Appellant contends, using a “just compensation” argument, that he is entitled to increased compensation over the amount of the contract for each day during the period October 1, 1979 to October 1, 1982, since he had a vehicle larger than that required by the contract ready for operation each day. Such just compensation, he contends, should be calculated using costs expended by the Postal Service in operating a large (two-ton) vehicle over his route for one day.

Appellant’s argument is misplaced and ignores the Board’s Opinion on entitlement. The Board held Appellant was entitled to increased costs for those days, and only those days, when Appellant had to carry more mail than was required by his contract. It did not hold that he was entitled to increased costs for the use of the larger vehicle only or for an entire three years of operation. Further, Appellant has not shown that Postal Service operating costs for a truck for a one-day period over Appellant’s contract route had any relation to costs which were incurred by Appellant.

Appellant presented no proof, ether documentary or by direct testimony, to establish either the number of days when he carried excess mail or his increased operating costs for those days. The one document relied upon by Appellant has no demonstrated relationship to his increased costs. There is no evidence in the record on which the Board can base a calculation of additional compensation. Appellant’s appeal on quantum is denied in its entirety.

James D. Finn, Jr.

Administrative Judge

Vice Chairman

I concur:

James A. Cohen

Administrative Judge

Chairman

I concur:

David I. Brochstein

Administrative Judge

Board Member