January 27, 1999
Appeal of
LEMMIE GARNER
Under Contract No. HCR 96133
PSBCA No. 4106
APPEARANCE FOR APPELLANT:
Lemmie Garner
APPEARANCE FOR RESPONDENT:
Robert E. O’Connell, Esq.
OPINION OF THE BOARD
Appellant, Lemmie Garner, has filed a timely appeal of the final decision of the contracting officer denying Appellant's claim for additional compensation under a highway transportation contract with Respondent, United States Postal Service. The parties elected to submit the case on the record, 39 C.F.R. § 955.12. Only entitlement is at issue.
FINDINGS OF FACT
1. On April 3, 1996, Respondent issued a solicitation for bids on a highway transportation contract to transport mail between Reno, Nevada and Tahoma, California. The contract term was from July 1, 1996, to June 30, 2000. (Appeal File Tab (AF) 1).
2. The solicitation advised bidders that “[t]he bid price must include all elements of cost that the contractor expects to incur in performing service” (Submission of Bids clause 9.D and clause18C, Postal Service Form 7435, July 1992). In addition, Paragraph D10, Special Notices, of the Solicitation's Contract Information and Instructions section (PS Form 7469, July 1992), provided that:
"Bidders/offerors submitting bids or proposals should familiarize themselves with the service to be performed, the estimated weight and volume of mail to be carried and all other circumstances affecting the cost of operation, without regard to prevailing rates, so as to avoid misapprehension or cause for complaint thereafter." (AF 1).
3. Appellant submitted a bid in the amount of $49,185.44, in which he agreed to provide the service called for in the solicitation at the rate of compensation bid. He was awarded the contract on June 24, 1996. (AF 1).
4. The contract included Basic Surface Transportation Services Contract General Provisions, Postal Service Form 7407, July 1992, which in clause 5, SAFETY REQUIREMENTS, required Appellant to carry tire chains when operating his route. In addition, clause 10, PAYMENT, provided, in pertinent part, as follows:
"Detours: When regular line of travel of a contract route is impassable and full service is performed over another and longer line of travel, the compensation of the Contractor will
be increased equitably for such service but not in excess of a pro rata increase of compensation for the additional miles traveled PROVIDED the increase amounts to as much as $1 in any 4-week accounting period and the Contractor reports the increased travel within 90 days after the service is performed." (AF 1).
5. Clause 11(a)(1), ADJUSTMENT OF COMPENSATION, of the contract's General Provisions provided that contract compensation could be adjusted by mutual agreement of the contracting officer and the contractor (AF 1).
6. On February 27, 1997, Appellant submitted a request to the contracting officer for $775.56 in additional compensation for delays due to road conditions occurring between December 6, 1996, and February 17, 1997. Two of the delays were identified as caused by detours and one by a road closing. Appellant acknowledged receiving payment for the additional mileage associated with these occurrences. (AF 5; Appellant's reply brief).
7. By letter dated March 18, the contracting officer informed Appellant that before he could issue a final decision on the matter, Appellant must initially submit the request to the administrative official overseeing his highway contract (AF 7).
8. By letter dated May 16, 1997, Appellant resubmitted his claim to the contracting officer. Appellant advised the contracting officer that he had submitted his request to the Network Specialist in Reno, Nevada, and that the Network Specialist had "approved" his request[1]. (AF 8).
9. Appellant's resubmittal of his claim on May 16 also included a request for an additional $70.00 in compensation for weather-related delays and road closures from February 27, 1997 to April 28, 1997. Three alleged delays were due to weather conditions requiring tire chains. The fourth alleged delay was attributed to a road having been closed because of an accident[2]. (AF 8).
10. On July 9, 1997, the contracting officer issued a final decision denying Appellant’s claim, stating that the United States Postal Service was not liable for contractor’s downtime due to weather-related road closures and icy road conditions. The contracting officer cited the contract's requirement for tire chains where conditions warrant them. The contracting officer also informed Appellant that, “contractors should include additional money in their offer to cover expenses associated with acts of God.” (AF 9).
DECISION
Appellant argues that because of his inexperience as a contractor, and because of a lack of clear language in the contract, he was not given notice that a contractor should include additional hours for weather-related delays in the bid price. Appellant also argues that previous contractors on the same route had been compensated for similar road delays and detours. Appellant maintains that the signature of a Network Specialist in Reno, Nevada on his request for compensation,
amounts to approval of that request. In addition, Appellant argues that if he had hired a driver, he would have been required by the Department of Labor to pay that driver for all time spent driving the route to deliver the mail and that the same requirement should apply to Respondent's obligation to compensate Appellant.
Appellant seeks $846.00, plus interest, in increased compensation for weather-related delays and detours, plus $150.00 in administrative costs allegedly incurred in pursuing this appeal.
Respondent argues that contractors should anticipate weather-related delay in performing their contract in winter months, and that the Postal Service is not liable for any delays that are not caused by the Postal Service. Respondent also maintains that the previous contractor was compensated for weather caused delays because the detour route used had been approved by the administrative official, and that such approval was not given in Appellant’s case.
The solicitation advised bidders to include all elements of cost they expected to incur in performing the service and to familiarize themselves with all circumstances affecting the cost of operating the route (Finding of Fact No. (FOF) 2). Appellant has not shown that the conditions he experienced that caused delays should not be expected over this route. While the contract explicitly provides for payment for additional mileage due to detours where roads are impassable (FOF 4), nothing in the contract requires Respondent to pay for additional time incurred due to weather-related delays. In this regard, we note that Appellant acknowledges
being paid for the additional mileage associated with the detours due to impassable and closed roads (FOF 6).
We need not decide whether the handwritten notations of a Network Specialist amounted to approval of his claim (see FOF 8), since under the contract, only the contracting officer has the authority to adjust Appellant’s compensation (FOF 5). Appellant has not shown that the Network Specialist had the necessary authority and Respondent is not bound by agreements or representations made by an official lacking proper authority. See Hartwig Transit, Inc., PSBCA No. 3464, 94-3 BCA ¶ 27,268.
Appellant’s argument that Respondent must compensate Appellant for all extra hours spent driving the route because Appellant, if he had employed a driver, would have had to pay the driver for all time spent driving the route, is likewise without merit. The contract language does not provide for additional compensation for delays not caused by Respondent, irrespective of whether the route is performed by Appellant or by a driver hired by Appellant.
Finally, we note that Appellant's argument that he is entitled to $150.00 in administrative costs incurred in pursuing this appeal was raised for the first time in Appellant's brief and also was not supported by any evidence in the record. However, costs incurred in prosecuting a claim against the Postal Service, even if
proved, are not recoverable. See Nationwide Postal Management, PSBCA No. 3988, 98-1 BCA ¶ 29,364; Alta Construction Co., PSBCA Nos. 1463 & 2929, 96-1 BCA ¶ 27,961).
The appeal is denied.
William K. Mahn
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
David I. Brochstein
Administrative Judge
Vice Chairman
[1] Appellant had apparently forwarded his February 27, 1997 claim and the contracting officer's March 18, 1997 letter requiring him to initially submit his claim "to the Administrative Official which oversees [his] Highway Contract," to Postal Service officials in Reno. Handwritten on his claim is "OK Theresa Walker." Also, on the bottom of the contracting officer's March 18 letter is the handwritten statement, "Return to Denver correct as is -- Theresa Walker, Network Spec. Reno." (AF 5; Complaint, Exhibit 2).
[2] In this claim submittal, Appellant also requested $21.11 as compensation for six 15-minute delay periods caused by the Postal Service and documented by late slips. By modification to Appellant's contract dated July 11,1997, Appellant received $20.45 in compensation for this portion of his claim. (AF 8, 10).