August 10, 1987

Appeal of

MAYNARD L. KRESSIN

 

Under Contract No. HCR 93561

PSBCA No. 1588

 

APPEARANCE FOR APPELLANT

Maynard L. Kressin

 

APPEARANCE FOR RESPONDENT

Charles T. Jackson, Esq.

 

OPINION OF THE BOARD

 

            Appellant has appealed from the Contracting Officer's decision which denied his claim of $35,000 for alleged increased costs incurred in performing his highway transportation contract.  The appeal has been submitted on the record without a hearing.  The record consists only of the pleadings and the appeal file submitted by Respondent.  Neither party filed a brief.

Findings of Fact

 

            1.  Appellant was awarded contract number HCR 93561 on April 11, 1985, in the amount of $25,272.10.  Pursuant to its terms Appellant was required to perform daily (except Sunday and holiday) mail transportation delivery services to patrons along a route from Edwards, CA, to Boron, CA, and return for the period April 27, 1985 - June 30, 1988.  The mileage for the route was shown to be approximately 58.7 miles one way and 117.4 round trip.  The contract stated that 527 customer boxes were to be serviced (Appeal File (AF)-1).

            2.  The contract stated that the mileage distance requirement was believed to be substantially correct.  It further provided that:  "The pay [rate of compensation] will neither be increased nor decreased if the actual requirements are greater or less than advertised, if the points to be supplied are correctly stated" (AF-1).

            3.  The contract contained the usual "Change in Service" provision which provided for compensation adjustment to be made in the event of changes in the service the contractor performed under the contract (AF-1).

            4.  In response to a contract irregularity report issued by Respondent on August 7, 1985, Appellant complained that the points to be serviced on his route were incorrectly stated in the contract.  He orally advised a postal employee of this same problem on August 13, 1985 (AF-6, 7).

            5.  On August 14, 1985, Respondent's Logistics Coordinator, Bakersfield, CA, Post Office sent the Santa Fe Springs, CA, Transportation Management Office (TMO) a letter requesting the statement of service for Appellant's contract be corrected to include an omitted portion of the route.  The TMO Manager issued a contract route service order on August 27, 1985, which corrected the statement of service.  The record does not indicate that the contract was formally modified.  The omitted portion included the area of service generally referred to as Frontage Road.  Twenty-one patron boxes were located in the Frontage Road area.  This number was included in the total box count of 527 set forth in the contract and the mileage required to service Frontage Road was included in the contract's mileage figure (AF-8).

            6.  Appellant serviced the Frontage Road area from the contract commencement date without any complaints or other notice to the Postal Service until his response to the irregularity report on August 7, 1985 (AF-20, 22, 34).

            7.  On September 11, 1985, the Postal Service conducted a box delivery survey of Appellant's contract route.  It showed a count of 506 boxes on the route.  It further showed the mileage from Edwards to Boron (the delivery portion of the route) to be 62.5 miles.  Return trip mileage was shown to be 53.4 miles (AF-9).

            8.  Appellant wrote to the Manager of the TMO on November 7, 1985, and requested release from his contract.  In support of the request he stated that "all the points of delivery to be supplied are incorrectly stated on my contract."  He additionally requested to be supplied with claim forms.  The TMO Manager denied the request for release from the contract in a letter to Appellant dated November 14, 1985 (AF-13, 14).

            9.  Appellant responded to the TMO Manager in a letter dated November 22, 1985.  He stated that there were 80 mail boxes on his route (the Frontage Road segment) that were not in his contract and that the actual mileage he drove per day was in excess of the total 117.4 estimate in the contract.  He again asked for release from the contract (AF-16).

            10. The request for release was once more denied by the TMO Manager.  In a letter dated January 15, 1986, he advised Appellant that the number of customer mail boxes on his route had decreased from the 527 indicated in the contract to 506.  The letter was not responsive to Appellant's allegation that he drove more than 117 miles per day to service the route; however the TMO Manager did state that the Frontage Road area was always considered to be a part of Appellant's contract route (AF-17).

            11. Correspondence on these matters continued between the parties with both sides adhering to their respective positions and with Appellant being specifically instructed to service the Frontage Road area as part of his contract obligation (AF019, 20, 22).  On May 2, 1986, Appellant wrote the TMO and requested a contract price increase of approximately $43,300 plus a lump sum payment of $15,000 for past costs incurred.  The TMO Manager responded on May 15 by sending Appellant certain forms utilized for price adjustments (AF-23, 25).

            12. The parties were unable to agree on any contract price increase and on July 14, 1986, Appellant abandoned further service on the contract route (AF-26, 27, 28, 29, 30, 32).

            13. Appellant's contract was terminated for default by the Contracting Officer on August 22, 1986, for failure to perform service according to the terms of the contract (AF-33).  On August 29, 1986, Appellant wrote the Contracting Officer that he did not want to appeal the termination as he did not want the contract.  At the same time he submitted a claim for $35,000 for "back pay."  That sum apparently represented his added costs allegedly incurred in servicing the Frontage Road area (AF-34).  The claim was denied in its entirety by the Contracting Officer on February 19, 1987 (Supplemental AF).

Discussion

            Since Appellant does not contest the default termination the only issue for resolution is whether Appellant is entitled to additional compensation under the contract's "Changes in Service" provision for servicing the Frontage Road area.[1]  We hold that Appellant has no right to additional compensation.

            It appears that Appellant realized from the contract's inception that he was required to service the Frontage Road area.  He fully serviced that area without complaint or other notice to the Postal Service from contract commencement date, April 27, 1985, until August 7, 1985, when he responded to an irregularity report.  That contemporaneous construction prior to the existence of the dispute weighs strongly against any argument by Appellant that the correction of the statement of service by the TMO Manager in August, 1986, to include Frontage Road changed the contract terms.  Standard Oil Company of California v. United States, 685 F.2d 1337 (Ct. Cl. 1982); State of Arizona v. United States, 575 F.2d 855 (Ct. Cl. 1978).

            Appellant has presented no evidence in support of his contentions that the number of boxes serviced or daily mileage driven exceeded the contract terms.  His claim letter and pleadings allege such facts but no evidence in the record supports these allegations.  It is established that claim letters and pleadings are not proof of facts.  Schoenie Construction Co., Inc., PSBCA No. 1338, 85-3 BCA ¶ 18,312; E. Patti & Sons, Inc., PSBCA Nos. 1024, 1100, 85-2 BCA ¶ 18,144.

            In any event, the record disproves Appellant's contention that he serviced more patron boxes and drove more miles per day than his contract required.  Although the Frontage Road area was erroneously omitted from the contract's statement of service, the number of boxes for that area and the mileage to be driven to service the area were included in the contract as executed.  In fact, the number of boxes actually serviced was 506, or 21 less than the contract stated were included in the route.  Likewise, the actual mileage driven on a complete round trip was 115.9, or 1.5 miles less than the approximate round trip mileage given in the contract (Findings of Fact 1 and 7).

            Accordingly, we hold that the contract terms were not changed, either actually or constructively, by any directions issued by the TMO Manager to Appellant requiring Appellant to service the Frontage Road area as part of his contract.  The appeal is denied.

James D. Finn, Jr.

Administrative Judge

Vice Chairman

 

I concur

James A. Cohen

Administrative Judge

Chairman

 

I concur

James E. Lemert

Administrative Judge

Board Member


[1]  The Contracting Officer's final decision also denied Appellant any severance pay, an item not requested by Appellant in his August 29, 1986, claim letter.  The contract contains no provision for severance pay or similar payment when default termination action is properly taken.