July 17, 1995

 

Appeal of

MIKE ALBERT LEASING, INC.

Under Contract No. 161540-84-V-A047

PSBCA No. 3761

 

APPEARANCE FOR APPELLANT

Tim A. Graham

 

APPEARANCE FOR RESPONDENT

Maria R. Fuhrmann, Esq.

 

OPINION OF THE BOARD

 

            Appellant, Mike Albert Leasing, Inc., appeals from the denial of its claim for the cost to repair damage to a vehicle it leased to Respondent, United States Postal Service.  Appellant elected to have the appeal processed under the Boards Small Claims (Expedited) procedure, 39 C.F.R §955.36.  However, because of Appellant's delays in responding to a Board order, the expedited schedule could not be met and Appellant was deemed to have withdrawn its election.  See Order dated May 16, 1995.  The appeal has been submitted on the record without a hearing pursuant to 39 C.F.R. §955.12.

FINDINGS OF FACT

 

            1.  Under contract 161540-84-V-A047, Appellant leased vehicles to Respondent for use at the Hazel Crest, Illinois Post Office (Joint Stipulation dated May 9, 1995; Appeal File Tab ("AF") 1).

            2.  The contract included the General Provisions for Vehicle Hire Contracts, PS Form 7476, July 1980, General Provision GP-6 of which provided, in part:

            "LIABILITY PROVISIONS.

                        (a) Contractor's Vehicles.  The Postal Service shall be responsible for loss of or damage to, the Contractor's vehicles while in its custody only when caused by the act or negligence of any officer or employee of the Postal Service acting in the scope of his employment. . .  In no event shall the Postal Service be responsible for ordinary wear and tear."  (Joint Stipulation dated May 9, 1995).

 

            3.  Vehicle 65581, one of the vehicles Appellant provided under the contract, was returned to Appellant on September 6, 1990.  While in Respondent's custody, the roof of the vehicle had been scratched and dented and the right front door dented. (AF 1).

            4.  Appellant filed a claim dated October 3, 1990, in the amount of $434, the cost to repair the vehicle as shown in the lower of two repair estimates submitted with the claim.  The cost to repair and refinish the roof was $335.36.  Of that, $204 was identified on the estimate as the labor cost to repair the roof.  On a separate line near the end of the estimate was listed the material and labor to refinish the roof and the door.  The portion of the materials and labor for refinishing the roof was $131.36.

            5.  In a January 17, 1995 final decision, the contracting officer allowed recovery for the roof damage, but only allowed $204 as the repair cost.  He denied recovery for the damage to the door.  (AF 1).  This appeal followed.

DECISION

            Appellant argues that the damage to the roof was significant and should have been noticed by Respondent's driver.  Additionally, Appellant argues that Respondent delayed for more than 4 years in acting on its 1990 claim and that Appellant was prejudiced by the delay.  Respondent has not submitted a brief.

            Liability for the damage to the roof does not appear to be in dispute.  The contracting officer in his final decision granted recovery for the damage, but in his calculation he included only the labor to repair the dent, $204, and did not add on the materials and refinishing charges clearly shown on the estimate.  Respondent has not argued that Appellant was entitled to less than the full cost of repairing the roof and has not challenged Appellant's estimates.  There is no indication that the contracting officer's failure to award the full amount shown on the lower estimate was anything but an oversight, and, therefore, the amount awarded will be corrected to reflect the full cost of repairing and refinishing the roof by allowing recovery of $131.36 in this proceeding.

            To recover under the contract for the damage to the door, Appellant has the burden of proving by a preponderance of the evidence that the proximate cause of the door dent was the act or negligence of an officer or employee of the Postal Service and that the damage exceeded ordinary wear and tear.  See Jake Sweeney Auto Leasing, Inc., PSBCA No. 3286-94, 3304, 3305, 93-3 BCA 25,945, and cases cited therein.

            Appellant has not shown by a preponderance of the evidence that the likely cause of the dent to the door was the act or negligence of an officer or employee of the Postal Service.

            Appellant argues that its claim was first submitted in 1990, on or about the date of the claim, and that Respondent's failure to decide the claim at that time has prejudiced Appellant's ability to produce evidence of the cause of the damage in support of its claim.  It contends that if it had received a prompt response to its initial claim, it would have had access to the vehicles and could have photographed the damage to preserve evidence of the cause.  However, delay in processing Appellant's claim would not be a basis for holding Respondent liable for the damage.  Under the Contract Disputes Act, Appellant could have considered its claim denied and filed an appeal to the Board when the contracting officer had not acted on the claim within 60 days of its submission.  See 41 U.S.C. § 605 (b)(5); L.A. Constr., Inc., PSBCA No. 3338, 3372, 95-1 BCA ¶27,291; Jake Sweeney Auto Leasing, Inc., PSBCA No. 3279, 93-3 BCA ¶26,186.  Thus, Appellant had a remedy if its claim was not decided promptly.  Additionally, any delay by the contracting officer in deciding the claim would not have prevented Appellant from taking whatever steps it thought prudent to preserve evidence relating to the cause of the dent to the door.  Appellant has shown no prejudice resulting from any delay in deciding its claim.

            The appeal is sustained in the amount of $131.36 and is otherwise denied.

 

 

Norman D. Menegat

Administrative Judge

Board Member

 

I concur

 

James A. Cohen

Administrative Judge

Chairman

 

I concur

 

James D. Finn, Jr.

Administrative Judge

Vice Chairman