July 26, 2000
Appeal of
EVERGONE, INC.
Under Contract Nos. HCR 98038, 98194 , 98096 & 98195
PSBCA Nos. 4392-4395
APPEARANCE FOR APPELLANT:
Gregory L. Olson
APPEARANCE FOR RESPONDENT:
Melvin L. Kennedy, Esq.
Appellant, Evergone, Inc., appeals from the contracting officer’s partial denial of its claims for additional compensation under four mail transportation contracts Appellant held with Respondent, United States Postal Service.
The parties elected to submit these appeals on the written record without an oral hearing. Although the claims arose under different contracts, the circumstances of the claims and the prosecution of the appeals were sufficiently similar that a consolidated decision is the most efficient method of resolution.
1. In late 1997-early 1998, Appellant held the following Postal Service mail transportation contracts:
a. Contract No. HCR 98038 for the transportation of mail between Seattle and Renton, Washington, for the term July 1, 1997, through June 30, 2001, at an annual compensation of $151,625 (Appeal File for PSBCA No. 4392, Tab (“4392AF”) 6, 9, 11 (p. 53)).
b. Contract No. HCR 98194 for the transportation of mail between Seattle and Yakima, Washington, for the term July 1, 1997, through June 30, 2001, at an annual compensation of $134,000 (Appeal File for PSBCA No. 4393, Tabs (“4393AF”) 7, 8).
c. Contract No. HCR 98096 for the transportation of mail between Seattle, Washington and Medford, Oregon, for the term July 1, 1997, through June 30, 2001, at an annual compensation of $335,000 (Appeal File for PSBCA No. 4394, Tab (“4394AF”) 7).
d. Contract No. HCR 98196 for the transportation of mail between Seattle and Wenatchee, Washington, for the term July 1, 1997, through June 30, 2001, at an annual compensation of $134,000 (Appeal File for PSBCA No. 4395, Tab (“4395AF”) 6).
2. The Seattle-Renton contract (98038) authorized Respondent to require extra trips under the contract:
“Extra trips shall be negotiated in advance of the performance when the Contracting Officer deems it appropriate. However, the Contracting Officer may order the Contractor to perform such extra service at pro rata pay. If no rate of pay for extra trips has been negotiated in advance, the Contractor shall nonetheless perform such extra trips as are ordered by the Contracting Officer and may, on an after-the-fact basis, obtain a lump sum reimbursement for the difference between costs incurred as a direct result of performing such extra trips and pro rata payment for such trips, provided that such claims costs are adequately supported by documentary evidence furnished to the Contracting Officer.” (4392AF 9, Contract Section 14 and General Provision 12, CHANGES (PS form 7407, BASIC SURFACE TRANSPORTATION SERVICES CONTRACT—GENERAL PROVISIONS, July 1992)).
3. Under each of the four contracts, the annual contract rate Appellant agreed to was recognized to “include all elements of cost the contractor expects to incur in performing the service.” (4392AF 9; 4393AF 7, 4394AF 7; 4395AF 6, Contract Paragraph 18.C).
4. Under each contract, Appellant was responsible for damage to or loss of its equipment, unless caused by Respondent. Additionally, Appellant was responsible for ordinary repairs to and maintenance of its equipment. Each contract provided,
“In the event of a breakdown en route between postal facilities, the contractor shall be responsible for securing tires, tire repairs, or other ordinary repairs to all equipment utilized in the performance of this contract.” (4392AF 9; 4393AF 7, 4394AF 7; 4395AF 6, Contract Paragraph 16, LIABILITY FOR EQUIPMENT DAMAGE AND REPAIRS).
5. Each contract included a schedule for arrivals and departures from the points on the route, and Appellant was entitled to compensation in the event Respondent caused Appellant delay in departing or performing the route (4392AF 9; 4393AF 7, 4394AF 7; 4395AF 6, Contract Paragraph 12 and General Provision 12, CHANGES (PS form 7407, BASIC SURFACE TRANSPORTATION SERVICES CONTRACT—GENERAL PROVISIONS, July 1992)).
6. In advance of the Christmas season, it was Respondent’s practice to negotiate a separate price with the contractor for the expected large number of extra trips required during the Christmas mailing season (4392AF 8).
7. The document used for a contractor to submit its proposal for the extra Christmas trips was a Scheduled Extra Service for Christmas Cost Request Form, HC 166, June 1997. That document allowed the contractor to propose to do the extra trips at “pro rata” payment rates (the rate per mile it was earning for the regular service), to propose a new price per round trip or to propose a price per mile for the extra service. (4392AF 8).
8. On or about November 9, 1998, Appellant submitted its form HC 166 for the 1998 Christmas season (November 31, 1998, through December 24, 1998) for the Seattle-Renton contract (98038). Appellant proposed to perform all the extra Christmas service for a total of $1,735.01, which included payment for the extra trips at its pro rata rate plus a lump sum of $560 due to Respondent's alleged repeated changes to the schedule while Appellant was preparing its proposal—16 hours of administrative time at $35 per hour. (4392AF 3).
9. On December 2, 1998, Appellant’s president discussed the Christmas service with a contract specialist who worked for the contracting officer. The contract specialist advised that the contracting officer was not willing to agree to the lump sum administrative charge. Appellant’s president responded that he would not perform the extra Christmas service unless Respondent agreed to the administrative charge. (June 7, 1999 Notice of Appeal).
10. Appellant performed the specified extra Christmas service and, on January 11, 1999, submitted an invoice for $1,735.01, the full amount stated in the original proposal (4392AF 10).
11. Respondent paid the invoice amount except for the claimed $560 lump sum, which the contracting officer denied in a final decision of April 28, 1999 (4392AF 3; Answer), and Appellant filed a timely appeal.
12. In early December 1998, an error on the schedule for the Seattle-Yakima contract (98194) prepared by Respondent caused Appellant to be late by an hour each on December 1 and December 5 (4393AF 9 (p. 7)). On December 14, 1998, Appellant submitted a claim for $117.50, claiming an hour delay on each day from December 1 through December 5, a total of 5 hours at its per mile rate (4393AF 9 (p. 12).
13. On December 21 and December 22, 1998, Appellant was delayed a total of 59 minutes by Respondent as shown on Postal Service-issued late slips[1] (4393AF 9 (pp. 6-8, 10)). On January 10, 1999, Appellant filed a claim for two hours delay for December 21 and 22 and an hour delay to repair flat tires on December 10, 1998, and for five hours delay caused by an accident encountered on the route. (4393AF 9 (p. 9)).
14. In a May 24, 1999 final decision, the contracting officer allowed Appellant compensation for two hours of delay due to the schedule errors on December 1 and 5 (Finding 12) and 59 minutes for the delays on December 21 and 22 (Finding 13). The contracting officer denied the remainder of the December 14, 1998 and January 10, 1999 claims (4393AF 9 (pp. 1, 2)), and Appellant appealed the partial denials of its claims on June 7, 1999.
15. On or about December 13, 1998, Appellant submitted an invoice to the contracting officer on the Seattle-Medford contract (98096) seeking a total of $238.35 for extra time in loading or unloading its vehicles and for extra time due to detours (4394AF 1, 8 (p. 17)).
16. On or about January 10, 1999, Appellant submitted a claim totaling $948.11 for delays resulting from road closures, detours, loading or unloading its vehicles, and for late slips issued by Respondent reflecting delays Respondent imposed on Appellant (4394AF 8 (p. 23)).
17. In a May 18, 1999 final decision, the contracting officer allowed Appellant compensation for 10.367 hours of delay as shown on late slips. The contracting officer denied the remainder of the December 13, 1998 and January 10, 1999 claims (4394AF 8 (pp. 1-3)), and Appellant appealed the partial denials of its claims on June 7, 1999.
18. On or about January 10, 1998, Appellant submitted an invoice to the contracting officer on the Seattle-Wenatchee contract (98196) seeking a total of $185.79 for extra time as shown on late slips and for delays due to detours on the route (4395AF 9, pp. 7, 20).
19. In a May 24, 1999 final decision, the contracting officer allowed Appellant compensation for 0.833 hours of delay based on the late slips. The contracting officer denied the remainder of the January 10, 1999 claim (4395AF 9 (pp. 1-3), and Appellant appealed the partial denial of its claim on June 7, 1999.
Respondent has paid for the extra service provided during the 1998 Christmas season (Finding 11), so the only issue remaining in this appeal is Appellant’s claim for the $560 in administrative costs. Appellant argues that it incurred those administrative costs in preparing its proposal for Christmas service (Findings 6-8) because of Respondent’s repeated revision of the Christmas schedule while Appellant was preparing its price proposal. Respondent argues that the administrative costs are not recoverable and that Appellant performed the extra service knowing that Respondent refused to pay the lump sum portion of Appellant’s proposal.
Appellant has not demonstrated entitlement to the claimed administrative costs under the contract. The Changes clause (Finding 2) authorizes payment in excess of the contractor’s per-mile rate, provided Appellant shows that it incurred the costs and that they were “incurred as a direct result of performing” the extra trips. We need not decide whether this type of administrative cost could be recovered under the Changes clause because Appellant has not shown that preparation of its proposal was impacted by schedule revisions. Appellant submitted no evidence beyond the assertions of its president in its Notice of Appeal, and it has failed to support those assertions by testimonial or other evidence showing that schedule changes occurred or that such changes impacted preparation of its proposal. [2] See Charles and Lilly Hendlish, PSBCA No. 3661, 96-1 BCA ¶ 28,131; Knight Architects Engineers Planners, Inc., PSBCA No. 3474, 94-3 BCA ¶ 27,178.
The appeal of PSBCA No. 4392 is denied.
The only argument Appellant makes in support of granting these appeals is that the claims at issue are similar to claims Respondent has paid in the past. Respondent denies that such claims by contractors have been paid in the past.
It is Appellant’s burden to establish by a preponderance of the evidence that it is entitled to recover its claimed costs, see Sub-Haulers Interstate Service, PSBCA No. 4327, 00-1 BCA ¶ 30,767, but it has not shown under any of these appeals that it incurred recoverable costs for delays in an amount greater than allowed by the contracting officer. Appellant submitted no evidence of the circumstances of the delays it contends it incurred despite being advised by the Board of the necessity of submitting evidence sufficient to prove its entitlement. See n. 2, above. The claim invoices, standing alone, do not prove the occurrence of delays. The scant “supporting” information for each of the invoices was largely illegible, and what could be read was unexplained.[3] Accordingly, these appeals are denied for failure of proof. See GBS&H Architects, Landscape Architects, Planners, Inc., PSBCA No. 2316, 89-1 BCA ¶ 21,562; Maynard L. Kressin, PSBCA No. 1588, 87-3 BCA ¶ 20,080.
Furthermore, even if Appellant was delayed by traffic congestion, bad weather, accidents or flat tires, it has not shown that its contracts entitle it to damages for the associated delays. There is no allegation that the incidents were caused by Respondent, and Appellant has shown no reason why Respondent should pay for the time involved. Ordinary maintenance is Appellant’s responsibility under the contracts (Finding 4), and occasional flat tires and delays due to traffic, weather and accidents are to be expected in performing this type of contract. If Appellant expected compensation for these occurrences, it should have included a contingency for such incidents in its proposed contract price (Finding 3). See Lemmie Garner, PSBCA No. 4106, 99-1 BCA ¶ 30,226.
Finally, we need not address under what circumstances Respondent’s payment of claims similar to those in these appeals might entitle Appellant to recover, because Appellant has presented no evidence that Respondent has allowed recovery of similar claims in the past. The unsupported, general assertions of its president in the Notice of Appeal are not sufficient to prove such previous payments. See Charles and Lilly Hendlish, PSBCA No. 3661, 96-1 BCA ¶ 28,131; Knight Architects Engineers Planners, Inc., PSBCA No. 3474, 94-3 BCA ¶ 27,178.
The appeals of PSBCA Nos. 4393-4395 are denied.
Norman D. Menegat
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
William K. Mahn
Administrative Judge
Acting Vice Chairman
[1] Late slips are issued by local Postal Service employees to Appellant’s drivers when they are delayed by Respondent’s actions. These may be subsequently submitted by Appellant to support a claim for compensation under the contract due to Respondent-caused delays.
[2] In the Board’s Order of March 8, 2000, the parties were reminded that submission of the appeal on the record did not relieve them of the necessity of proving the facts supporting their allegations or defenses. In a March 24 telephone conference, the parties were advised that statements of witnesses might be necessary to support their positions.
[3] In the March 24 telephone conference, the parties were advised that the appeal file contained a number of illegible documents and that legible copies of any documents the parties wished to rely on must be provided to the Board. Additionally, they were advised that statements of witnesses might be necessary to explain documents in the appeal file. Neither party filed any additional evidence.