December 12, 1996
Appeal of
B & W TRUCKING
SILVER FOX, JV
Under Contract No. HCR 92340
PSBCA No. 3955
APPEARANCE FOR APPELLANT:
Sheri B. Cruz, Esq.
APPEARANCE FOR RESPONDENT:
Elena V. Alejandre, Esq.
OPINION OF THE BOARD
Appellant, B & W Trucking, Silver Fox, JV, has appealed the denial of a claim for additional compensation under its highway transportation contract with Respondent, United States Postal Service. Appellant claims that Respondent required it to perform the contract using vehicles that were more expensive to operate than those described in the contract.
At the election of the parties, this appeal was submitted on the record without an oral hearing. Despite being provided with an opportunity to file additional evidence and briefs, neither party did so. The decision is based on the appeal file and the pleadings.
FINDINGS OF FACT
1. On September 23, 1992, Respondent awarded Appellant a contract for the highway transportation of mail between San Bernardino and Hemet, California, for the term October 10, 1992, through June 30, 1996 (Appeal File, Tab (“AF”) 1-3).
2. The contract required that Appellant provide the service using, as a minimum, two “two-axle tractor[s]”, each having a single drive axle. The schedule in the contract identified the required equipment as “two (2) tandem-axle tractors.” In a September 1994 contract amendment, the equipment required was identified as two “Two Axle Tractor[s] (Single Drive).” (AF 3).
3. By letter dated September 12, 1993, Appellant complained to Respondent that it was being required by Respondent’s officials at the San Bernardino facility to provide “three axle tractor[s] with twin screws,” which it contended were more expensive to operate than the two-axle tractors specified in the contract. It requested additional compensation of fifteen cents per mile driven. (AF 5).
4. In a September 21, 1993 response, the contracting officer rejected Appellant’s claim for additional compensation. He stated that the contract did not require use of twin-screw/three-axle tractors, that Appellant was not required to provide such equipment and that Respondent would not pay extra if Appellant chose to provide tractors that exceeded the minimum requirements stated in the contract. (AF 5).
5. On January 23, 1996, Appellant filed a claim for what it contended was the additional cost of performing the service using “tandem-axle” tractors as directed by officials of the San Bernardino facility (AF 5).
6. By final decision dated January 31, 1996, the contracting officer denied the claim, stating that the contract requirement had never been changed and that no authorized official of Respondent directed Appellant to provide equipment that exceeded the contract requirements (AF 6). This appeal followed.
DECISION
As the party asserting the claim, Appellant bears the burden of proving by a preponderance of the evidence that it is entitled to recover additional compensation for use of tractors that exceeded the requirements of the contract. See Geneva C. Stone, PSBCA No. 3104, 93-1 BCA ¶ 25,453; John A. and Pamela A. Darcy, PSBCA No. 2810, 91‑2 BCA ¶ 23,977. It has not done so.
First, Appellant failed to show that the tractors it used to perform the service exceeded the minimum requirements of the contract. Any differences between the “tandem-axle” tractors or the “three axle tractors with twin screws” Appellant contends it provided (Findings 3, 5; Complaint ¶ 7) and the “two-axle” tractors with single axle drive specified in the contract are not apparent to the Board. Expert testimony or other evidence explaining the technical characteristics of different types of tractors would have been necessary before the Board could determine that the tractors identified by Appellant exceeded the requirements of the contract. Cf. Roger H. Elliott, PSBCA No. 3285, 1993 WL 73426 (February 12, 1993); R.G. Wood and Associates, Ltd., PSBCA Nos. 1059, 1229, 85‑1 BCA ¶ 17,898 at 89,633. Appellant failed to submit such evidence and has, therefore, failed to meet its burden of proof on this point.
Additionally, even if Appellant had demonstrated that it supplied tractors that exceeded the requirements of the contract, it must also show that it did so at the direction of an official of Respondent authorized to change the contract requirements. See John S. Vayanos Contracting Co., PSBCA Nos. 2360, 2713, 93‑2 BCA ¶ 25,600; E.D. Conto, PSBCA No. 962, 1982 WL 8937 (April 20, 1982). The contracting officer had made it clear promptly after Appellant’s September 1993 inquiry (Finding 3) that Appellant was not required to provide anything more than the equipment specified in the contract and that it would not receive additional compensation if it chose to do so (Finding 4). Appellant has not shown that anyone at the San Bernardino facility who might have instructed it otherwise had authority to override the contracting officer’s directions and bind Respondent to compensate Appellant for supplying more expensive tractors. Therefore, Appellant would not be entitled to recover even if it had shown that it used tractors that exceeded the contract requirements. See Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384 (1947); Leo Kirkpatrick, PSBCA No. 3832, 1996 WL 590751 (October 11, 1996); Edward R. Ester and Lorraine Ester, PSBCA No. 3051, 93-3 BCA ¶ 25,960.
Appellant has failed to demonstrate its entitlement to additional compensation under the contract. Accordingly, the appeal is denied.
Norman D. Menegat
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
David I. Brochstein
Administrative Judge
Vice Chairman