March 20, 1992

Appeal of

MATTHEW AUSTON

d/b/a AUSTON & SON TRUCKING

Under Contract No. HCR 90195

(Tires)

PSBCA No. 3077

APPEARANCE FOR APPELLANT

Matthew Auston

APPEARANCE FOR RESPONDENT

Charles T. Jackson, Esq.

OPINION OF THE BOARD

This appeal is from a contracting officer's decision denying Appellant's claim for the cost of replacement trailer tires. The parties have elected to submit the appeal on the record pursuant to 39 C.F.R. § 955.12.

FINDINGS OF FACT

1. On or about July 1, 1987, Matthew Auston d/b/a Auston & Son Trucking (Appellant) and Respondent, United States Postal Service, executed Basic Surface Transportation Services Contract No. 90195, for highway transportation of mail between Los Angeles (LA) Bulk Mail Center (BMC) and the Bakersfield General Mail Facility. The term of the contract was July 1, 1987, to June 30, 1991. (See Appeal File Tab (AF) 11-17).

2. Under the contract Appellant was required to furnish two tandem axle tractors for use with 45-foot BMC trailers, which were supplied by another contractor

(AF 1).

3. Under the heading "Liability for equipment damage and repairs," the contract read as follows:

"A (3) The contractor shall be solely liable for loss of or damage to equipment of the Postal Service or other Postal Service mail transportation contractors or their subcontractors which occurs while such equipment is in the custody or control of the contractor unless such loss or damage is caused by the negligent act or omission of the Postal Service.

A (4) Any amounts for which the Postal Service may be liable pursuant to [the above] shall exclude fair wear and tear, and shall be paid to the contractor upon submission of a properly documented claim to the Contracting Officer. The Contracting Officer may deduct from compensation otherwise due the contractor any amounts for which the contractor may be liable pursuant to [item A(3)] hereof." (AF 1).

4. The contract with Appellant also incorporated PS Form 7407, Oct. 1986, :Basic Surface Transportation Services Contract General Provisions," which included as Section 5(b) (2) (b) the following:

"Inspection of Equipment

Drivers shall satisfy themselves that the emergency equipment is in place and ready for use and that the following parts and accessories are in good working order:

iv. Tires."

Pursuant to Clause 8, "Accountability of the Contractor," paragraph (g) provided as follows:

(g) Trailer Damage

(i) The Contractor shall be responsible for any damage to a trailer owned or leased by the Postal Service or a third party, which is caused by a negligent act or omission of the Contractor.

(ii) The Postal Service may deduct and set off under Clause 8 and 13 from payment otherwise owed to the Contractor any costs which the Postal Service incurs, or for which it becomes liable, as a result of damage to a trailer owned or leased by the Postal Service or a third party, for which the Contractor is liable under paragraph (g)(i)."

5. The following similar language appeared in the contract between Respondent and the trailer supplier (HCR 90099):

G. DAMAGE

When loss of or damage to a contractor's trailer is caused by the negligent acts and/or omissions of the contractor supplying the motive power, this latter contractor will be responsible for the necessary replacement and repair and for the cost of the loss or repairs to the trailer in accordance with the provisions of the contract providing for the motive power. Should the motive power contractor fail to meet this obligation of replacement or loss, replacement or repair will be affected by the Postal Service, and the contractor providing the motive power will be financially responsible to the Postal Service for such replacement or repair. Any damages suffered by the Postal Service as a result of the failure of the contractor providing the motive power to pay for such replacement or repair may be deducted from compensation otherwise due the contractor providing the motive power. . . .

In no event shall the Postal Service be responsible for loss of, or damage to, such equipment which is the result of ordinary wear and tear in the type of operation for which used. . . . (AF 1(C)).

6. Instructions were issued by the BMC "Regarding Trailer Damages," describing trailer inspection procedures. If during an inspection any damage is detected, appropriate notification is to be made to the trailer supplier. (AF 3).

7. In a letter to Appellant dated June 28, 1991, a representative of Respondent's LA BMC notified Appellant that damage had occurred to a trailer leased to Respondent, which had been billed $470 by the trailer supplier (Respondent's Exhibit (Resp Exh) A). Appellant, whose drivers had custody of the trailer when the damage occurred, was directed by the LA BMC to make payment of the $470 directly to the trailer supplier, or to submit evidence to establish that Appellant was not chargeable (id.). Attached to the letter were two repair orders dated May 20, 1991, and June 4, 1991, for replacement of the right rear outer tire and the left front outer tire, respectively, in amounts of $242.50 and $227.50. Both repair orders indicated that the damaged tires, which had been "run flat until destroyed," had tread left on them, 13/32nds on one and 11/32nds on the other. (Resp Exhs B, C).

8. By letter received in Respondent's BMC at Bell, CA, on July 5, 1991, Appellant denied the damage claim of $470, stating that the repairs were maintenance items that were the owner's responsibility for normal wear and tear (AF 5).

9. By letter dated July 8, 1991, the Contracting Officer notified Appellant that the tire damage in question did not appear to be normal wear and tear, but was caused by a failure to check the tires as specified in Appellant's contract (AF 4). Stating that there was sufficient tread left on the tires and no indication of other debris causing the damage, the Contracting Officer advised Appellant that the damage would be charged to his contract (id.). It was also suggested that Appellant should advise his drivers of their responsibility to check the trailers for damage as well as safety before leaving the facility (id.).

10. Appellant filed an appeal from the Contracting Officer's decision.

DECISION

In his Complaint Appellant alleges that the trailer tires for which he was charged $470 had dry-rotted and were in that condition when his driver removed the trailer from the Bulk Mail Center lot. Appellant claims he should not be held responsible for such tire damage. Further, Appellant contends that he his being held responsible without supporting documentation (but "on the word of a transportation analyst sitting in his office responding to hearsay") and that the sole bases for the charges are "word of mouth and guilty by association." In addition to requesting compensatory damages, Appellant asks the Board to issue an order requiring Respondent to adopt a program to ensure that all claims be properly investigated and that conclusive documents be filed before assessing fines.

Respondent argues that under the terms of the contract the presence or absence of supporting documentation is up to Appellant. Moreover, according to Respondent, Appellant has failed to provide any evidence to support his allegations. Respondent also argues that the Board has no jurisdiction to grant the injunctive relief requested by Appellant.

There is no evidence in the record that establishes precisely what caused the damage to the trailer tires. Reports reflect that abundant tread was left on the tires which had been "run flat to destruction." Thus, the available evidence is more supportive of an inference of negligence on the part of Appellant's drivers that of causes attributable to either the trailer supplier or Respondent.

Moreover, the contract places the burden on Appellant, who had custody of the trailer at the time the tires were damaged, to establish that the damage was caused by others. In this appeal Appellant has presented no evidence to support his allegation that the tires were defective when Appellant assumed custody of the trailer. Allegations in pleading cannot be accepted as proof of disputed facts. E.g., Jake Sweeney Auto Leasing, PSBCA No. 2463-2675, 90-2 BCA ¶ 22,766.

Respondent's actions in withholding the amount for the tire replacements are supported by the contractual provisions and the evidence. See Judith A. Ling, PSBCA No. 355. (Slip Opn. July 25, 1977).

Accordingly, the appeal is denied.

James E. Lemert

Administrative Judge

Board Member

I concur

James A. Cohen

Administrative Judge

Chairman

I concur

James D. Finn, Jr.

Administrative Judge

Vice Chairman