February 9, 2000
Appeal of
SUB-HAULERS INTERSTATE SERVICE
Under Contract No. HCR 98235
PSBCA No. 4327
APPEARANCE FOR APPELLANT:
Terry L. Smith, Esq.
APPEARANCE FOR RESPONDENT:
Mark Brent Ezersky, Esq.
OPINION OF THE BOARD
Appellant, Sub-Haulers Interstate Service, has filed a timely appeal of the contracting officer’s final decision denying its claim for additional compensation under a mail transportation contract with Respondent, the United States Postal Service. The parties elected to have this appeal decided on the record, pursuant to 39 C.F.R. §955.12.
1. On March 27, 1995, Appellant was awarded Contract No. HCR 98235, at an annual rate of $69,733, for the transportation of mail between Everett and Coupeville, Washington, with intermediate stops. The contract essentially required one round-trip between Everett and Coupeville each day, except Sundays. The contract term was from April 15, 1995, through June 30, 1997. (Appeal File Tabs (AF) 1 and 2).
2. Paragraph 12 of the contract specifications, Schedule and Frequency Requirements, identified the stops to be made and stated that the estimated scheduled mileage was 87 miles each way, for an estimated annual total of 60,945.3 miles. The specifications also included the following notice:
“The estimated annual miles and per trip miles are given only as information. Prior to submitting a bid, the bidder should determine the actual miles. (For additional information see PS Form 7469, Section D (Special Notices) Item No. 1).” (AF 3).
3. Section IID.1, Special Notices, of the HIGHWAY OR DOMESTIC WATER TRANSPORTATION CONTRACT INFORMATION AND INSTRUCTIONS (PS Form 7469, July 1992), which was incorporated into the contract, provided,
“The distance stated in this solicitation is believed to be substantially correct. The pay will neither be increased nor decreased if the actual distance is greater or less than advertised, if the points to be supplied are correctly stated. No claim for additional pay can be allowed which is based on alleged mistakes or misapprehensions as to the length of the route.” (AF 2A).
4. By letter dated October 22, 1996, in conjunction with the installation of a new gate, Respondent’s plant manager reminded all contractors of the correct line of travel for all mail transportation contractors arriving at or departing from the Everett, Washington P&DF. This changed Appellant’s line of travel and caused Appellant’s mileage to increase by two miles per trip. (AF 16, 17).
5. On October 28, 1996, in response to a service review conducted by Respondent, Appellant commented that the mileage contained in the specifications was incorrect (AF 5).
6. Respondent conducted a renewal route survey in January of 1997 and determined that the mileage from Everett to Coupeville was 92.7 miles and the return trip mileage was 90.0 miles (vice 87 miles for both directions in the contract specifications). Based on this survey, the renewal contract’s annual mileage estimate was raised to 63,633.3. (AF 6, 13).
7. Appellant and Respondent agreed to renew the contract, effective July 1, 1997, for a four-year term. The renewed contract’s annual rate was $80,100, and the annual estimated mileage was 63,633.3, based on the renewal survey findings of 92.7 miles outbound and a 90 mile return trip. (AF 7, 13).
8. By letter dated October 1, 1998, Appellant claimed $6,724.02 as compensation for the difference between its actual mileage and the mileage stated in its original contract, during the full term of the original contract, April 15, 1995, through June 30, 1997. As evidence of the difference, Appellant cited the increase in annual mileage that had been incorporated into its renewal contract. (AF 24).
9. By final decision dated October 20, 1998, the contracting officer granted Appellant $516.85 of its claim, based on the increased mileage Appellant incurred as a result of the change in route Respondent instituted in October of 1996 (see Finding of Fact No. 4). However, the contracting officer determined that Appellant was entitled to this increase only for the period March 1 through June 30, 1997. The contracting officer did not directly address Appellant’s contention that its actual mileage had exceeded the original contract’s estimated mileage during the full term of the original contract. (AF 16, 25, 26).
DECISION
Appellant argues that, from the beginning of its performance of the original contract, it was directed to travel a different route than the route it had been told by Postal Service personnel would be used and on which it had bid. In this regard, Appellant argues that the estimated mileage in its renewal contract (Finding of Fact No. (FOF) 6) represents the mileage it actually performed throughout the original contract. Appellant seeks payment of its claim for $6,724.02, less $516.85, awarded in the contracting officer’s final decision (FOF 8).
Respondent argues that Appellant is not entitled to any increase in compensation for driving more mileage than the estimated mileage in the contract if the points to be supplied are correctly stated. Respondent acknowledges that the mileage changed as a result of the change in routing instituted by the plant manager at the Everett P&DF, but argues that this change occurred on March 1, 1997, and that Appellant has already been reimbursed for this change.
Appellant, as the party asserting a claim, has the burden of proving its claim. See Lancor Engineering, Inc., PSBCA No. 3948, 97-2 BCA ¶ 29,007; RKM Construction Co., Inc., PSBCA No. 3370, 94-3 BCA ¶ 27,137. Appellant has not, however, offered any evidence to support its claim. [1] Nonetheless, Respondent acknowledges responsibility for increasing Appellant’s mileage during the term of the original contract, but argues that the increase did not begin until March 1,1997. This date, however, is likewise not supported by any evidence in the record. As we have found, the change in routing occurred no later than October 22, 1996, and there is no evidence that Appellant was not following the revised route as of that date (see FOF 4).
Accordingly, we find that Appellant is entitled to be reimbursed for the increased mileage it incurred under its original contract, as a result of the requirement to change the line of travel into the Everett P&DC, beginning on October 22, 1996. Appellant is not entitled, however, to be reimbursed for any other differences in mileage between the estimate in its original contract and the actual mileage it traveled. It is undisputed that the points to be served remained unchanged during Appellant’s performance of the original contract. Appellant was forewarned at Section IID.1 of the Information and Instructions portion of the solicitation that its “pay [would not] be increased [or] decreased if the actual distance is greater or less than advertised, if the points to be supplied are correctly stated.” See Betty C. Tweet, PSBCA No. 4081, 98-1 BCA ¶ 29,353, recon. denied, 98-1 BCA ¶ 29,624, 98-2 BCA ¶ 29,773.
The appeal is sustained to the extent indicated and is remanded to the parties to negotiate payment to Appellant based on October 22, 1996, as the date Appellant’s route was changed, plus Contract Disputes Act interest. The appeal is otherwise 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] The only documents filed by Appellant were its notice of appeal and its Complaint. However, allegations in pleadings do not constitute evidence. See Knight Architects Engineers Planners, Inc., PSBCA No. 3474, 94-3 BCA ¶ 27,178; GBS&H Architects, Landscape Architects, Planners, Inc., PSBCA No. 2316, 89-1 BCA ¶ 21,562.