July 31, 1997
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 specifications.
At the election of the parties, this appeal was submitted on the record without an oral hearing. After the Board decided the appeal in December 1996, the parties advised that they had previously discussed and agreed to an extension of the time for submission of further evidence and briefs to a date beyond the date the decision was issued. Their extension agreement had not been conveyed to the Board, but in a Motion for Reconsideration, Appellant argued that it had intended to make further submissions and had delayed doing so in reliance on the agreement to extend the time for filing. On February 6, 1997, the Board vacated its previous decision, and provided the parties an opportunity for further submissions. Respondent filed additional evidence, including declarations of witnesses, and a brief within the time allowed by the Board. Appellant did not submit additional material in support of its position. After the time allowed for filing closing briefs, Appellant requested that the appeal be dismissed without prejudice. That request was opposed by Respondent and was denied by the Board. The parties were subsequently advised that the record was closed and the appeal ready for decision.
This decision is based on the appeal file, the pleadings and Respondent’s submission of evidence and argument.
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”) 1-4).
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. All tractors have a front axle, but the practice in the trucking industry when describing a tractor is not to count the front axle. Thus, a single-axle tractor is one with a front axle and only one rear axle. A tandem-axle tractor is the same as a two-axle tractor and is one with a front axle and two rear axles. (Declaration of Craig Swanson dated March 5, 1997, ¶¶ 3-6; Declaration of Bobby Mays dated January 6, 1997, ¶ 8; Respondent’s Exhibit 1).
4. 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).
5. 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).
6. On January 23, 1996, Appellant filed a claim for what it contended was the additional cost of performing the service using “tandem-axle” tractors that, according to Appellant, exceeded the requirements of the contract. Its claim was evidently premised on a belief that a tandem-axle tractor had more axles than a two-axle tractor. (AF 5).
7. 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 (AF 7).
DECISION
It is Appellant’s burden to prove by a preponderance of the evidence that Respondent required it to perform the contract using 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.
Appellant evidently based its claim on its belief that two-axle tractors had fewer axles, and thus were less costly to operate, than tandem-axle tractors. However, Respondent demonstrated that in the trucking industry, the terms “two-axle tractor” and “tandem-axle tractor” refer to the same configuration; namely, one front axle and two rear axles (Finding 3). Appellant has not shown that it was required to perform the service using anything other than the tractors specified, and, therefore, it has not shown that it is entitled to additional compensation under the contract.
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