November 20, 2007

 

PSBCA No. 6118

 

Appeal of                                                                                                                                                      

EDWARD I, INC. d/b/a WINTER SERVICES                                                                              

                                                                                                                                                                                                                                                                         

APPEARANCE FOR APPELLANT:         

Tristan R. Pettit, Esq.

Petrie & Stocking S.C.

                                                                       

APPEARANCE FOR RESPONDENT:     

Melissa Mortimer, Esq.

Office of the General Counsel

United States Postal Service

                                

OPINION OF THE BOARD

 

            Appellant, Edward I, Inc., d/b/a Winter Services, has filed an appeal from the deemed denial of its claim for snow plowing and deicing services allegedly performed at a Postal Service facility.  Respondent, United States Postal Service, takes the position that the Board has no jurisdiction over this appeal because there was no contract between the parties for the services.  The appeal is being decided under the Board’s Small Claims (Expedited) procedure.  39 C.F.R. §955.13.

 

FINDINGS OF FACT

            1.  In June 2000, Appellant, then known as Bruno’s Snow and Ice Control, Inc., and Respondent entered into a contract for the period of July 1, 2000, through May 31, 2003, for snow plowing and removal and sanding/salting services for a number of Postal Service facilities, including the North Milwaukee Branch, in Milwaukee, Wisconsin.  The contract was awarded through Respondent’s 3Purchasing and Materials Service Center in Minneapolis, Minnesota.  Through a unilateral modification dated October 29, 2002, a contracting officer from Respondent’s “Chicago PSC” office added funds to the contract and extended its effective date through May 31, 2005.  (Appeal File Tab (AF) 1, pp. 2, 137).

            2.  Sometime in the first half of November 2005, Appellant’s owner telephoned Respondent’s Chicago PSC office to ask when he could expect to receive purchase orders to continue Appellant’s work at the various facilities it had been serving.  In mid-November 2005, Appellant’s owner spoke to an unidentified female at Respondent’s Chicago office.  At that time, Appellant’s contract had expired.  The person he spoke to indicated that she was behind in issuing new snow removal contracts and asked that Appellant provide those services at the North Milwaukee facility if it snowed before new contracts/purchase orders were issued.  Through three invoices, dated November 27 and 29, 2005, Appellant requested a total of $4,106 for snow removal services allegedly rendered at the North Milwaukee facility between November 18 and 26, 2005.  (Declaration of  W. Hanney, dated September 25, 2007; AF 5, pp. 226-228).

            3.  During November 2005, Respondent employed a contract specialist at the Chicago PSC office whose job included arranging services, including snow removal services, for post office facilities including the North Milwaukee facility.  The contract specialist had no contracting officer’s warrant or other written authority to enter into contracts on behalf of Respondent, and had not been delegated authority to bind Respondent to contracts.  (Declaration of D. L. Kerrill, dated September 5, 2007).

            4.  Through an invoice dated November 1, 2006, Appellant again requested payment for services rendered in November 2005.  By letter dated February 22, 2007, Appellant – through counsel – demanded payment of the invoices, plus interest, and a decision under the Contract Disputes Act.  By letter dated June 4, 2007, Appellant filed a notice of appeal from the contracting officer’s failure to issue a final decision within 60 days of receipt of Appellant’s claim.  (AF 5, 6).

DECISION

            Appellant argues[1] that it is entitled to recover on three bases:  breach of contract, unjust enrichment, and quantum meruit.  As argued by Respondent, the last two bases seek equitable remedies based on implied-in-law contract theories, over which this Board lacks jurisdiction.[2]  E.g., Henry Burge and Alvin White, PSBCA No. 2431, 89-3 BCA ¶ 21,910; Alta Construction Co., PSBCA Nos. 1334, 1487, 87-1 BCA ¶ 19,491; Gil Dunn Services, PSBCA No. 1077, 83-1 BCA ¶ 16,364.  Accordingly, we do not address them further.

            In its breach of contract argument, Appellant contends that by failing to pay Appellant’s invoices, Respondent breached an agreement reached between the parties pursuant to discussions between Appellant’s owner and Respondent’s contract specialist.  Respondent argues that no contract was formed because Appellant has not proved that a Postal Service official with actual contracting authority entered into any such contract.

            We agree with Respondent that even if Appellant provided the services for which it submitted invoices, this Board cannot grant its appeal because it has not shown that it entered into either a written or an oral contract for snow removal services with a person having actual authority to bind Respondent to pay for such services.  As we have found, Appellant’s previous contract for snow removal services had expired and its owner was attempting to find out when and if new purchase orders would be forthcoming (Finding 2).  In its Complaint, Appellant contended that its owner held discussions with Respondent’s contract specialist, who was identified by name.  However, in the only evidence Appellant submitted on this subject, Appellant’s owner stated only that he had spoken on the telephone with a person, whom he did not identify, from Respondent’s Chicago office.  We have found that the contract specialist did not have actual authority, either personally or by delegation, to enter into contracts on behalf of Respondent.  Further, as Appellant’s evidence does not identify any other person with whom its owner spoke, we cannot conclude that the person with whom he conversed, if it was other than the contract specialist, had such actual authority.  It was Appellant’s burden to prove that, among other factors, the person with whom it interacted had actual authority to bind the Postal Service, e.g., Night Vision Corp. v. United States, 469 F.3d 1369, 1375 (Fed. Cir. 2006), cert. den. 127 S. Ct. 2252 (2007); Chapman Children’s Trust II, PSBCA No. 4822, 03-2 BCA ¶ 32,371, and it has failed to do so.

            Since Appellant has not demonstrated the existence of a contract between the parties under which Respondent was obligated to pay for snow removal services, the Board lacks jurisdiction to consider the merits of this appeal.  See Coastal Corp. v. United States, 713 F.2d 728 (Fed. Cir. 1983); Alta Construction Co., PSBCA No. 1463, 90-1 BCA ¶ 22,527 at 113,064.  Accordingly, the appeal is dismissed for lack of jurisdiction.

 

David I. Brochstein

Administrative Judge

Vice Chairman


[1]   Appellant did not file a brief.  Its position has been gleaned from statements made in its Complaint and in the declaration of its owner.

[2]   In its Order of August 15, 2007, in response to Respondent’s motion to dismiss these causes of action, the Board noted that to the extent these causes of action were based on a contract implied-in-law, the Board lacked jurisdiction to consider them.  Appellant has filed nothing further arguing that that was not the basis for these causes of action.