December 29, 1994
Appeal of
K & P LANDSCAPING
Under Oral Contract
PSBCA No. 3589
APPEARANCE FOR APPELLANT:
David R. Farney, Esq.
APPEARANCE FOR RESPONDENT:
Maria T. Robinson, Esq.
OPINION OF THE BOARD
Appellant, K & P Landscaping, has appealed from a final decision of a Contracting Officer which denied Appellant's claim for breach of an alleged oral contract for snow removal services.[1] The appeal has been submitted on the record without a hearing pursuant to 39 C.F.R. §955.12. Appellant submitted a brief, while Respondent did not.
FINDINGS OF FACT
1. In the Spring of 1992, Appellant, through its proprietor, Ken Powell, submitted a proposal to Respondent, United States Postal Service, to perform lawn and other outdoor maintenance, as well as winter snow plow services, at three of Respondent's facilities, Southfield, MI, Lathrop Village, MI and Franklin, MI. That portion of Appellant's proposal for the lawn and outdoor maintenance was accepted by Respondent's representative, Richard Henry. Appellant thereafter performed such work through the summer of 1992 and was paid for the work performed. No written contract between the parties for such work was signed (Appeal File ("AF")-Tab B ("B"); Appellant's Complaint Exhibits; Complaint and Answer, paragraphs 1, 6, 7). It appears from the record that that portion of Appellant's proposal relating to snow removal services was also accepted by Mr. Henry (Complaint and Answer, paragraph 9). Richard Henry had no authority to contract for snow removal services on behalf of Respondent (Contracting Officer's final decision, October 21, 1993).
2. On or about October 14, 1992, Mr. Powell, concerned that a formal contract between the parties had not been signed, drafted a contract, which accurately outlined the prior agreement between himself and Mr. Henry in regard to snow removal services to commence November 15, 1992. A handwritten notation contained on the document stated "Temporary until B.P.A. is approved." The document was signed by Ken Powell for Appellant and Richard Henry for Respondent (Complaint and Answer, paragraph 9; AF-A).
3. "B.P.A." referred to in the October 14 Agreement is a Basic Pricing Agreement, which is an ordering agreement that permits authorized Postal Service individuals to purchase certain work by telephone or letter instead of by written order (USPS Procurement Manual, Publication 41, §4.2.5).
4. Appellant performed some snow plow services for Respondent in December 1992 (Complaint and Answer, paragraph 10).
5. On September 15, 1992, representatives of Respondent's Southfield, MI Post Office sent a requisition for snow removal services to be performed at Southfield, Lathrop Village and Franklin to Respondent's Support Services Office in Birmingham, MI. The period covered by the requested services was December 1, 1992 to November 30, 1994 (AF-A).
6. Between December 3 and December 7, 1992, Respondent's Contracting Officer in the Support Services Office telephoned six potential offerors, including Appellant, to obtain price quotes for the snow removal services (Declaration of Gradie Tamakloe; AF-A).
7. The low offeror for the services was Dependable Snow Removal, and a contract was awarded to that firm on December 8, 1992 (Id.).
8. On December 8, 1992, Respondent was advised in a letter from the Contracting Officer that its bid was not accepted and that award had been made to Dependable Snow Removal (Id.).
9. On December 22, 1992, Appellant's attorney wrote the Contracting Officer, advising that Appellant had previously been awarded the snow removal contract and that the award to Dependable Snow Removal was in violation of Respondent's agreement with Appellant (AF-B).
10. Subsequent correspondence was exchanged by the parties and on October 21, 1993, the Contracting Officer in a final decision advised Appellant that the Agreement with Appellant was only a temporary one; that Mr. Henry had no authority to award a snow removal contract to Appellant; and that award of a contract to Dependable Snow Removal was made in accordance with established law and regulations and therefore was properly made to Dependable as the low bidder (Id.). This appeal followed.
Decision
It is Appellant's contention that a binding contract exists between Appellant and Respondent for outdoor maintenance and snow removal for a two-year period commencing in April 1992 and that Respondent has breached that contract. In this regard, Appellant states that Mr. Henry advised Mr. Powell that he, Henry, had authority to contract and that Mr. Powell was assured that the agreement would be prepared by "central office" which would give final approval to it. According to Mr. Powell, based on such assurance, he adjusted his rates downward, hired additional personnel and purchased additional equipment in anticipation of contract performance.
Appellant continues by arguing that the prior oral agreement became formalized on October 14, 1992, when Mr. Powell and Mr. Henry signed the written agreement which, according to Mr. Powell's understanding, was subject only to approval by someone designated as "BDA", and that such approval was a mere formality.
Appellant's arguments provide no basis for relief and recovery. Mr. Henry did not have authority to bind Respondent for the services in issue. It is a basic axiom that "anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority." Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384 (1947).
Further, Appellant has the burden to show that the individual whose conduct is relied upon had actual authority to bind the government in contract. H. F. Allen Orchards v. United States, 749 F.2d 1571, 1575 (Fed. Cir. 1984), cert. denied, 474 U.S. 818 (1985). See also, City of El Centro v. United States, 922 F.2d 816, 820-21 (Fed. Cir. 1990); Housing Corp. of America v. United States, 199 Ct. Cl. 701, 468 F.2d 922 (1972). Here, Appellant has not carried that burden as the record in this appeal does not support a finding that Mr. Henry had the requisite contracting authority. In fact, the evidence supports a conclusion that no such contracting authority existed.
Appellant's argument that someone designated "BDA" had agreed to formally approve the October 14, 1992, agreement has no merit. The actual wording of the written notation on the document was "Temporary until B.P.A. is approved" (emphasis added). A B.P.A. is a Basic Pricing Agreement, not an individual. It is unrealistic to believe that Mr. Powell would have signed the October 14, 1992, document and not have inquired as to the meaning of B.P.A., and if he did not, he should have. Moreover, the document provided that it was temporary until the B.P.A. was approved and since a B.P.A. was in effect disapproved, as evidenced by award of a snow removal contract to Dependable, the Postal Service had no obligation to continue to purchase snow removal services from Appellant.
The record on appeal shows that the Contracting Officer followed proper contracting procedures and properly awarded the snow removal services contract to Dependable Snow Removal as the low bidder. Appellant was given an opportunity to submit a bid for the services and was not the low bidder. No binding contract for such services was ever awarded to Appellant and this appeal is without merit. The appeal is denied.
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
[1]This appeal, as docketed, indicated that the contract under which this dispute arose is No. 252490-93-P-0176. That designation is erroneous, as it is a contract executed with another contractor for snow removal services. No formal contract for such services was ever executed between Appellant and Respondent.