November 17, 1994
Appeal of
ELMER KRUEGER
Under Contract No. HCR 68730
PSBCA No. 3502
APPEARANCE FOR APPELLANT:
Elmer Krueger
APPEARANCE FOR RESPONDENT:
Gregg R. Sackrider, Esq.
OPINION OF THE BOARD
This appeal is taken from a Contracting Officer's final decision which denied in its entirety Appellant's claim of $11,307.27, representing extra costs allegedly incurred by Appellant in the operation of his transportation services contract. A hearing, limited to the issue of entitlement, was held at Appellant's election.
FINDINGS OF FACT
1. On April 23, 1992, Respondent, United States Postal Service, issued a solicitation for bids for highway transportation service between Norfolk and O'Neill, Nebraska. Paragraph 17 of the solicitation "Screening/ID Requirements" stated:
"New Hires/Awards: The contractor must complete and submit original Forms 2025, Contract Personnel Questionnaire, and FD-258, Fingerprint Chart--Applicant {card}, for himself and each of his employees who have mail handling responsibilities to the Administrative Official (AO). Also, if the contractor or his employees are hired in a driving capacity, the contractor must obtain and provide a copy of each such individual's current driving record and submit it to the AO with the completed forms referenced above. A temporary identification badge will be issued to the contractor and each of his employees until results of the screening procedure are available." (Appeal File (AF)-2)
2. The Form 2025 referred to in paragraph 17 required the contractor (bidder) to list all criminal convictions, including traffic violations (AF-Supplement No. 1). Introductory language contained on the form advised "This information will be used ... to determine your fitness ... for a contractual service to the USPS" (Id.).
3. On May 22, 1992, Appellant, Elmer Krueger, submitted the low bid in response to the solicitation in the amount of $37,884. The bid price was predicated on Appellant driving the contract route himself. Appellant's bid also contained the Form 2025. Included in block 21 of the form was a list of Appellant's traffic convictions. Appellant listed three speeding offenses. The information as to the three speeding offenses was taken from a state motor vehicle report, dated March 16, 1992, which Appellant also submitted with his bid (AF-3, Supplement No. 1; Transcript (Tr.) 8, 14, 24-25).
4. A "Table of Driver Disqualifications," which was not included in the solicitation, was utilized by Respondent in determining eligibility of a contractor or his employees to drive the vehicle in contract performance. It stated in regard to moving traffic violations, such as speeding, that more than three convictions within the last three years disqualifies an applicant from driving the vehicle (AF-2, 3, Supplement No. 1; Tr. 30).
5. Appellant was awarded contract no. 68730 on June 5, 1992, for the required transportation service between Norfolk and O'Neill, Nebraska (AF-1).
6. Due to the March 16, 1992 date on the motor vehicle report which Appellant submitted with his bid, a date that pre-dated the solicitation issuance date, Respondent on June 5, 1992, the date of contract award, asked Appellant to update his Form 2025 (Tr. 25). The updated form, with accompanying state motor vehicle report (dated June 11, 1992), showed a speeding conviction not contained in the earlier motor vehicle report. The conviction occurred on August 26, 1991 (AF-Supplement No. 1; Tr. 25).
7. The August 26, 1991, speeding conviction constituted the fourth conviction against Appellant in a three-year period, and thus disqualified him from driving the contract pursuant to the disqualification criteria contained in the "Table of Driver Disqualifications" (AF-Supplement No. 1, AF-14). Appellant was unaware of the fourth conviction at the time he submitted his bid and the earlier Form 2025 (Tr. 8, 10, 12, 14).
8. By letter to Appellant from the Contracting Officer, dated June 24, 1992, Appellant was advised that he could not operate the vehicle in contract performance until December 1993 (AF-14).
9. By letter dated June 25, 1992, to Appellant from the General Manager, Surface Contracts Management Division, Office of Transportation and International Services, Appellant's period of driving ineligibility was reduced to six months (AF-13).
10. Appellant submitted an undated claim to Respondent's representative on April 9, 1993, in the amount of $11,307.27, representing his costs incurred in hiring a driver to perform the contract during his six-month period of driving ineligibility (AF-11).
11. Appellant's claim was denied by final decision of the Contracting Officer dated July 14, 1993 (AF-8). This appeal followed.
DECISION
It is Appellant's contention that he is entitled to additional compensation under his contract, representing the cost incurred in hiring a driver for the first six months of the contract, as he was unaware that four traffic violations, as shown on his updated motor vehicle report, disqualified him from driving his vehicle in contract performance. In this regard Appellant argues that the "Table of Driver Disqualifications" was not included in the bidding documents and thus he had no reason to believe that he was not eligible to drive the route. Appellant contends that had he known that another driver would be needed for the first six months of contract performance a higher bid would have been submitted or he would not have bid.
Respondent counters with the argument that the solicitation clearly set forth the driving eligibility screening requirement and Appellant had an obligation to inquire as to his driving eligibility requirements prior to bid submission. Respondent also contends that since Appellant provided an inaccurate Form 2025 and motor vehicle report with his bid he assumed any risks of driver disqualification.
We agree with Respondent that Appellant assumed the risk of driver disqualification. Even if Appellant knew of the contents of the "Table of Driver Disqualifications," his contract bid price or his election to bid most probably would not have changed as Appellant believed he had only three violations. It is Appellant's responsibility, not Respondent's, to know the correct number of traffic violations currently existing on Appellant's driving record. Appellant's mistaken reliance on the contents of the incorrect March 16, 1992 motor vehicle report in submitting his bid does not and cannot shift to Respondent the monetary impact Appellant suffered as the result of such mistaken reliance. Accordingly, Appellant's position is without merit and his appeal is denied.
James D. Finn, Jr.
Administrative Judge
Vice Chairman
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
Norman D. Menegat
Administrative Judge
Board Member