January 14, 1999
Appeal of
RICHARD R. WILSON
Under Contract No. HCR 33965
PSBCA No. 4104
APPEARANCE FOR APPELLANT:
Richard R. Wilson
APPEARANCE FOR RESPONDENT:
Larry Donell Blanchard, Esq.
OPINION OF THE BOARD
Appellant, Richard R. Wilson, held a contract for the delivery of mail to customers’ curbside mailboxes along a route in LaBelle, Florida. Respondent, United States Postal Service, required Appellant to perform delivery service that was not required by the terms of his contract. In Richard R. Wilson, PSBCA No. 3469, 96-2 BCA ¶ 28,366, recon. denied, 98-1 BCA ¶ 29,499, the Board determined that Respondent’s actions breached the contract and that Appellant was entitled to be compensated for performing the extra service. Determining the amount of the damages was remanded to the parties for negotiation, but they were unable to agree regarding compensation, and this appeal ensued.
At the parties’ election, this appeal was submitted on the record without an oral hearing. Only quantum of damages is at issue. The parties have submitted evidence and briefs in support of their positions. Documents filed in the entitlement appeal, PSBCA No. 3469, have been incorporated into the record of this appeal.
FINDINGS OF FACT
1. Appellant was awarded transportation services renewal Contract No. HCR 33965 for box delivery services in LaBelle, Florida for the period July 1, 1989, through June 30, 1993. When the contract was entered into, the contract rate was $19,518 per year for delivery every day except Sundays and holidays, which resulted in an average of 303.07 daily trips per year. The route was 18.6 miles long, resulting in annual mileage of 5,637. (Appeal File for PSBCA No. 3469, Tab (“3469AF”) 4).
2. Although the contract was awarded at an annual rate of compensation, it reflected also a “rate per mile” used for compensating the contractor for extra trips he might make at the direction of Respondent. The rate per mile was determined by dividing the annual rate by the number of miles driven under the contract each year. As the rate per mile is based on the total annual compensation under the contract, it includes all costs incurred by the contractor—e.g., his wages, gasoline, depreciation, etc.—and profit. At the beginning of the contract term, the rate per mile was $3.4628. This was decreased by a subsequent change order to $3.26496 effective October 17, 1989. (3469AF 4).
3. In September 1991, Respondent conducted a survey of Appellant’s route which disclosed that the number of boxes served by the route was approximately 200 more than shown in the contract. By an amendment to the contract, effective September 5, 1991, and agreed to by Appellant, 303 miles per year were added to the route’s official length (one mile per day) to serve the additional boxes, and Appellant’s annual compensation was increased by $6,154. The rate per mile increased to $4.08036. (3469AF 4; Appellant’s Supplemental Appeal File of September 14, 1993, Item 2b).
4. Effective May 14, 1992, the annual compensation under the contract was increased to $28,907, and the rate per mile increased to $4.56378 (3469AF 4).
5. The contract contemplated that Appellant would deliver the mail from his vehicle. For delivery of accountable mail—that for which Appellant was to obtain a receipt signed by the customer—and parcels too large to leave in the customer’s box at the curb, he was only required to exit his vehicle (dismount) to conduct the transaction, e.g., obtain a signature or to deliver the oversized parcel, at his vehicle. He was not required to drive or walk up to the customers’ residences or to walk into businesses to make these deliveries. Richard R. Wilson, PSBCA No. 3469, 96-2 BCA ¶ 28,366, recon. denied, 98-1 BCA ¶ 29,499.
6. Soon after Appellant’s contract was renewed in 1989, Respondent began requiring Appellant to take accountable mail and parcels too big to leave in the curbside box to the customer’s door or into businesses that were open. This occasionally required Appellant to drive his vehicle off the route’s line of travel to accomplish delivery. Appellant drove an additional 2 to 3 miles per day to
accomplish this extra-contractual service. (Appeal File for PSBCA No. 4104, Tab (“4104AF”) H).
7. Despite Appellant’s repeated and consistent complaints that his contract did not require him to deliver to customers’ homes and businesses, Respondent continued to require this extra-contractual service until Appellant ceased all performance under the contract on October 27, 1992.
8. Appellant is entitled to be compensated for the extra-contractual service he performed between contract renewal on July 1, 1989, and October 27, 1992, Richard R. Wilson, PSBCA No. 3469, 96-2 BCA ¶ 28,366, recon. denied, 98-1 BCA ¶ 29,499, a total of 1,213 days. Using 2.5 as the number of extra miles he drove each day (Finding 6) and multiplying the extra miles by the rate per mile in effect at the time the miles were driven results in a figure of $9,131.58 as the value of the additional miles he drove. The calculation is set forth below:
|
Applicable Period |
Days |
Delivery Days[1] |
x2.5= |
Miles |
x Rate = |
Damages |
|
7/1/89-10/16/89 |
108 |
89.61 |
|
224.04 |
$3.46280 |
$775.79 |
|
10/17/89-9/4/91 |
688 |
570.87 |
|
1427.19 |
$3.26496 |
$4,659.71 |
|
9/5/91-5/13/92 |
251 |
208.27 |
|
520.67 |
$4.08036 |
$2,124.54 |
|
5/14/92-10/27/92 |
166 |
137.74 |
|
344.35 |
$4.56378 |
$1,571.54 |
|
|
1213 |
|
|
|
|
|
|
|
|
|
|
|
Total Damages = |
$9,131.58 |
9. Appellant’s original claim, filed on April 9, 1993, claimed compensation for the additional miles he drove as a result of Respondent’s improper delivery
requirements (3469AF 3). That claim was denied by the contracting officer in a final decision dated April 27, 1993 (3469AF 2). After the Board found in Appellant’s favor, he resubmitted his quantum claim, and on May 1, 1997, the contracting officer issued a final decision specifically denying Appellant’s quantum claim and offering Appellant $2,000 as full and final settlement of the quantum portion of the appeal. (4104AF B). Appellant appealed the quantum denial, which appeal was docketed as PSBCA No. 4104 (4104AF A).
DECISION
Appellant claims he is entitled to $120,000 in additional compensation. He estimates that Respondent’s improper delivery directions caused him to drive an additional 33 miles per day. By his calculations, he is entitled to recover 33 miles per day times 303.07 daily trips per year times the average per mile rate (about $4 according to Appellant) for a total of $40,000 per year times three years equals approximately $120,000.
Respondent contends that a much smaller figure is due. Respondent bases its calculations on a work sheet purportedly used to determine the amount of time allowed rural carriers (Postal Service employees) to perform certain listed tasks, including delivering parcels and accountable items—ten seconds for delivery of each parcel and two minutes for delivery of each piece of accountable mail. Using the times from the work sheet and mail count figures from a September 1991 survey, Respondent calculated what it asserts is the additional time it took Appellant to perform the extra delivery service. Respondent then multiplies that by Appellant’s wage rate as reflected in his cost statements to determine that Appellant is entitled to $1,453.68. Respondent’s calculations allow nothing for additional vehicle costs necessary to perform the service.
Neither party has supported with credible evidence its calculation of the damages. First, Respondent has not shown that the work sheet used for its rural carriers establishes an accurate time for the functions listed or that the worksheet otherwise has any bearing on the work of a highway contractor such as Appellant. Further, the work sheet itself has lines for entries for authorized dismounts and authorized dismount distance that Respondent has not used.
Appellant’s figures are not acceptable either. Appellant has conceded that they are only estimates, and the 33-miles-per-day figure is simply not credible. It would be extremely unlikely that the extra deliveries would require him to drive 33 extra miles on a 20 mile route. Furthermore, in his correspondence during contract performance he never mentioned diversion mileage of such magnitude, and in his October 27, 1992 letter notifying Respondent that he was discontinuing performance of the contract (Finding 7), he stated a figure of two to three miles per day as the extra mileage. We have rejected Appellant’s estimate of 33 additional miles driven per day.[2]
Nevertheless, as we have found entitlement, Appellant is not without a remedy simply because he is unable to prove the quantum of damages with mathematical precision. See West Coast Builders, PSBCA No. 3378, 93-3 BCA ¶ 26,195. It is enough if the evidence allows determination of a fair and reasonable approximation of his damage. See Specialty Assembling & Packing Co. v. United States, 174 Ct. Cl. 153, 184 (1966); Kings Electronics Co. v. United States, 169 Ct. Cl. 433, 444 (1965); West Coast Builders, PSBCA No. 3378, 93‑3 BCA ¶ 26,195.
In his letter of resignation, Appellant said the additional work required by Respondent amounted to two to three miles extra per day. That figure was asserted reasonably close in time to Appellant’s performance and appears reasonable in relation to the total daily mileage of the route. Furthermore, Respondent has not challenged Appellant’s assertion of driving two to three miles per day to perform the extra-contractual deliveries. Using 2.5 miles of additional travel per day results in compensation due Appellant of $9,131.58 (Finding 8).
Appellant is entitled to payment of damages in the amount of $9,131.58 plus Contract Disputes Act Interest from the date of Appellant’s claim, April 9, 1993.
Norman D. Menegat
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
David I. Brochstein
Administrative Judge
Vice Chairman