May 24, 1996
Appeal of
RICHARD R. WILSON
Under Contact No. HCR 33965
PSBCA No. 3469
APPEARANCE FOR APPELLANT:
Richard R. Wilson
APPEARANCE FOR RESPONDENT:
Larry D. Blanchard, Esq.
OPINION OF THE BOARD
This appeal is taken from a Contracting Officer’s final decision which denied Appellant’s claim for extra costs incurred in performing his transportation services renewal contract and damages for breach of contract, including punitive damages. The appeal has been submitted on the record without a hearing. Only entitlement is in issue.
FINDINGS OF FACT
1. Transportation services renewal contract no. 33965 for box delivery services in LaBelle, Florida for the period July 18, 1989 through June 30, 1993, was awarded to Appellant on June 22, 1989. The annual contract rate was $19,518. By subsequent contract amendments the annual rate was increased to $28,907 (Appeal File (AF)-4).
2. Specification paragraph 13 of the contract entitled “SERVICE REQUIREMENTS” stated:
D. The Contractor will be required to handle all classes of mail. The Contractor will be required to perform box delivery services to the customers and all other related services as they are outlined in Section 4b of the attached Contract General Provisions, PS Form 7407T, or as directed by the Contracting Officer or his authorized representative.
E. Normally, the Contractor will not be required to dismount from a vehicle to deliver mail to boxes along the line of travel. The following are examples of conditions which will require the Contractor to dismount from a vehicle to provide delivery:
1. Delivery to apartment houses or other dwellings which use or are qualified to use apartment house receptacles (cluster boxes).
2. When necessary to obtain a signed receipt for accountable mail (i.e., Express, special, certified, and registered).
3. When boxes (or clusters) are located behind sidewalks and the solid sidewalk prevents the normal delivery of mail from the vehicle.
4. Normal operations may be interrupted in order for Express Mail to make delivery by the committed time, as directed by the Contracting Officer or his authorized representative. (Id.).
3. Section 4 of the Contract’s General Provision (PS Form 7407T, Nov. 1988) stated in paragraph (b)(3):
(3) In addition to delivery and collection of ordinary mail, the Contractor may be required to perform the following duties:
I. Sell stamps supplies.
ii. Accept money with applications for money orders and give receipts.
iii. Accept and give receipts for matter presented for registration, certification, insurance or COD service.
iv. Deliver registered, certified, insured, COD, Special Delivery, and Express Mail. Contractors will dismount when necessary to transact business involving the above classes of mail. (Id.).
4. Shortly after the beginning of the renewal contract term on July 1, 1989, the Postmaster, LaBelle, FL, issued orders that all mail, regardless of class or type, that could not be delivered to the mail box was to be taken to the home or business location. Appellant was thus required to dismount and walk to deliver that particular mail. The order limited the delivery diversion to within ½ mile from the line of travel of the contract; a total diversion could thus be as much as one mile (½ mile each way). (Complaint, page 3, and Answer).
5. By letter to the Contracting Officer, dated August 22, 1991, Appellant complained of the dismounting and delivery requirement. He noted that the requirement covered parcel post as well as accountable mail (Appellant’s Supplemental Appeal File (“SAF”)-page 6). A similar letter was sent on March 20, 1992 (SAF-12).
6. Appellant did not receive responses satisfactory to him in regard to the August 22, 1991 and March 20, 1992 letters. Accordingly, on October 27, 1992, Appellant sent Respondent a “Letter of Resignation from Highway Contract 33965.” The letter stated in part:
“Final service was provided today, Tuesday October 27, 1992.
As the Postal Service is aware, I have been working the entire length of this current contract under orders to deliver all parcel post mail to the physical door of my customers or inside if a business. I am required to drive, at my own expense, up to one mile per delivery. Estimating between two and three miles per day, at my current contract rate, I have been improperly denied over $10,000.00 in pay since these orders were issued.”
(SAF-8)
7. On November 4, 1992, Appellant’s contract was terminated for default. On April 13, 1993, the termination for default was converted to a termination for convenience. Indemnity in the amount of $2,408.92 was approved for payment to Appellant. The record does not explain the reason for the termination conversion (AF-4).
8. On April 9, 1993, Appellant submitted a claim in an unspecified amount to the Contracting Officer. The claim covered eight counts, as set forth in his complaint (see Decision, infra). By final decision dated April 27, 1993, the Contracting Officer denied Appellant’s claim in its entirety (AF-2). A timely appeal followed.
DECISION
Appellant’s Complaint seeks recovery against Respondent under the eight counts synopsized as follows:
1. Diversion from mail route and dismounting
2. Personal losses due to lack of ability to sell a house and motor home, and tax problems
3. Payment for full term of contract
4. Payment for next renewal term
5. Loss of other job
6. Payment for next three renewal contracts
7. Alternate theory to recovery under Count 1
8. Punitive damages
Appellant is entitled to partial recovery under Count 1 of his claim and Complaint. Appellant’s contract required dismounting and delivery of certified, insured, C.O.D., special delivery and Express Mail, but not dismounting and delivery of parcel post. Further, there was no requirement for him to divert from the route. Thus, the direction to him after the beginning of the renewal contract on July 1, 1989, that mail that could not be delivered to the mail box (primarily parcel post mail) had to be delivered to the home or business location caused Appellant to perform work not required by the terms of the contract for which Appellant is entitled to be compensated. See Glenda R. Whitaker, PSBCA No. 3443, 94-2 BCA ¶26,643.
Respondent has contended, at least in the Contracting Officer’s final decision that the conversion of the default termination to one for convenience was part of a settlement of the diversion claim asserted by Appellant. However, there is no evidence in the record to support such a theory and any contentions in this regard are rejected.
Claims 2 and 5, damages for personal losses and loss of another job, fail for lack of proof. Appellant has presented nothing in the record to support these claims. Additionally, they represent requests for consequential damages, for which recovery is precluded. Northern Helex Co. v. United States, 524 F.2d 707 (Ct. Cl. 1975) cert. den., 429 U.S. 866 (1976); Cramer Alaska, Inc., ASBCA No. 47725, 96-1 BCA ¶ 27,971; R & R Enterprises, IBCA No. 2417, 89-2 BCA ¶ 21,708.
Claim 3 seeks reimbursement for the full term of the contract. However, the contract ultimately was terminated for Respondent’s convenience, as permitted by its terms. Appellant has been reimbursed for such termination. Thus no further recovery may be had.
Claims 4 and 6 request payment for non-renewal of contracts over which the Board has no jurisdiction. Marvin R. Iseminger, PSBCA No. 2537, 90-1 BCA ¶ 22,339; Janie Marie Winkle, PSBCA No. 1548, 86-3 BCA ¶ 19,255. Claim 7 constitutes an alternate basis to recovery of Claim 1 and now is moot in view of Appellant’s recovery under Claim 1. Claim 8 is a request for punitive damages which the Board has no authority to grant. Paul A. Mason, PSBCA No. 1473, 86-3 BCA ¶ 19,142.
In summary Appellant is entitled to an equitable adjustment under Claim 1 to reflect Appellant’s costs of performing the additional services required of him. The other claims are denied. The appeal is remanded to the Contracting Officer for negotiation of the amount of equitable adjustment due Appellant.
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