Appeal of
LEO KIRKPATRICK
Under Contract No. HCR 97781
PSBCA No. 3832

APPEARANCE FOR APPELLANT:
Leo Kirkpatrick^[1]

APPEARANCE FOR RESPONDENT:
Mark Brent Ezersky, Esq.

OPINION OF THE BOARD

            Appellant, Leo Kirkpatrick, has appealed the contracting officer’s denial of his claim for recovery of costs associated with the presentation of his position in a dispute over the interpretation of certain requirements in his highway transportation contract with Respondent, United States Postal Service.  The appeal has been submitted on the record without an oral hearing.

FINDINGS OF FACT

            1.  Appellant held renewal contract HCR 97781 for the delivery of mail along a route originating at the Chemult, Oregon Post Office.  The term of the contract was from July 1, 1991, to June 30, 1995, and the administrative official was the Chemult Postmaster.  (Appeal File, Tab (“AF”) 16, 17, 18).

            2.  The contract specified that service was to be performed with a passenger vehicle with 40 cubic feet of space and that a four-wheel-drive vehicle was to be used from November 1 through April 30.  In the fifteen years Appellant had been performing the route, he had never been required to provide a four-wheel-drive vehicle and had always performed the route with a two-wheel-drive vehicle.  (AF 1, 15, 16, 17, 18).

            3.  By letter dated February 7, 1995, an official from Respondent’s Portland District Office^[2] told Appellant that he was required to use a four-wheel-drive vehicle to deliver the route until April 30.  Appellant was allowed three days to provide a four-wheel-drive vehicle and was advised that if he did not, the contract would be terminated.  At Appellant’s request, the time for providing a four-wheel-drive vehicle was extended to March 16, 1995.  Although Appellant made arrangements to have a four-wheel-drive vehicle available, it was never used for performance of the route.  (AF 1, 9, 12, 15).

            4.  Appellant obtained the assistance of a non-lawyer representative to persuade Respondent not to insist that he supply a four-wheel-drive vehicle.  Appellant’s representative argued that the four-wheel-drive requirement had been waived by Respondent’s permitting Appellant to use a non-complying vehicle for many years.  (AF 7, 10, 13, 14).

            5.  On March 15, Appellant’s representative wrote to the contracting officer seeking an interpretation of the contract in Appellant’s favor (AF 1, 8).

            6.  After considering the circumstances, the contracting officer decided that Appellant would be allowed to use his two-wheel-drive vehicle until the end of the contract term on June 30, 1995.  In his March 17, 1995 letter notifying Appellant of his decision, the contracting officer pointed out that the contract requirement would not be changed, however, and that a four-wheel-drive vehicle would be required for performance under any renewal of the contract.  (AF 5, 6).

            7.  On March 23, 1995, Appellant filed a claim with the contracting officer for $1,685.25, which was the sum of the costs he and his representative allegedly incurred in presenting Appellant’s position to Respondent and Appellant’s expense of arranging for the possible use of a four-wheel-drive vehicle.^[3]  (AF 4).

            8.  In a final decision dated March 29, 1995, the contacting officer denied Appellant’s claim for fees and expenses (AF 3).  This appeal followed (AF 2).

DECISION

            Appellant argues that he is entitled to recover under the Equal Access to Justice Act for the fees and expenses he incurred in persuading the contracting officer to allow him to continue using a two-wheel-drive vehicle to perform the contract.  He also argues, apparently alternatively, that the costs incurred were recoverable as reasonable contract performance or administration costs.

            Respondent agrees that the costs were incurred in connection with contract performance or administration but argues that they are not recoverable because they were incurred in support of Appellant’s efforts to obtain permission to continue breaching the contract by supplying a non-conforming vehicle.

            Appellant is not entitled to recover under the Equal Access to Justice Act (“EAJA”).  That Act allows a qualifying party who is successful in a Board action against the Postal Service to recover certain fees and expenses associated with his litigation.  Banks Trucking, PSBCA No. 3528, 96-2 BCA ¶ 28,350.  At the earliest, however, EAJA coverage begins when the contracting officer issues a final decision on a claim, and fees and expenses a party incurs before that time are not recoverable under EAJA.  Levernier Constr., Inc., 947 F.2d 497, 501-502 (Fed. Cir. 1991); Banks Trucking, PSBCA No. 3528, 96-2 BCA ¶ 28,350 at 141,575.  In this case, the contracting officer decided to permit Appellant to continue using his two-wheel-drive vehicle for the rest of the contract, an outcome that was satisfactory to Appellant, and the contracting officer did not issue a final decision.  Consequently, EAJA does not provide a basis for Appellant to recover his claimed fees and expenses.

            Appellant has not identified any provision of the contract or any other basis that would allow him to recover fees and expenses in this appeal.  It has not been shown that the Portland official who insisted that Appellant provide a four-wheel-drive vehicle had any authority to change the performance requirements or terminate the contract.  Therefore, his instructions did not cause a change to the contract requirements for which Respondent could be found liable, even if the four-wheel-drive requirement could be considered to have been waived by Respondent’s prior conduct.  Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384 (1947); Edward R. Ester and Lorraine Ester, PSBCA No. 3051, 93-3 BCA ¶ 25,960.  Moreover, once the matter was brought to the attention of the contracting officer, it was promptly resolved to Appellant’s satisfaction.  As Appellant’s performance under his fixed-price contract was not changed or made more difficult or expensive by actions of Respondent’s authorized officials, there is no basis for granting Appellant costs associated with obtaining resolution of the issue by the contracting officer and with preparing to supply a four-wheel-drive vehicle.

            Both parties find support for their positions in Bill Strong Enterprises, Inc. v. Shannon, 49 F.3d 1541 (Fed. Cir. 1995).  In that case, the Court applied the cost principles of the Federal Acquisition Regulations (“FAR”), 48 C.F.R. Part 31 (1987), to determine that the contractor was entitled to recover consultant costs associated with presenting a request for an equitable adjustment.  The government had conceded entitlement to an adjustment, and the parties eventually settled on a figure for the equitable adjustment, except for the consultant costs.  In this appeal, as discussed above, there is no basis for an equitable adjustment.  Additionally, the FAR does not apply to Respondent’s contracts.  39 U.S.C. §410(a).  Therefore, the Bill Strong decision is inapplicable to the circumstances of this appeal.

            The appeal is denied.

Norman D. Menegat
Administrative Judge
Board Member

I concur:
James A. Cohen
Administrative Judge
Chairman

I concur:
David I. Brochstein
Administrative Judge
Vice Chairman

^[1]  Although papers have been filed in this proceeding on Appellant’s behalf by a non-lawyer representative, Appellant may only appear before the Board in person or through an attorney.  39 C.F.R. §955.27.

^[2]  This official was not the contracting officer or the administrative official, and his role, if any, in administration of Appellant’s contract is not established in the record.

^[3]  The costs Appellant allegedly incurred to arrange for the use of a four-wheel-drive vehicle totaled $737, consisting of his cost of hiring a driver to bring a four-wheel-drive pickup from Nevada to Bend, Oregon and Appellant’s cost of driving the driver back to Nevada.  It has not been shown that the pickup otherwise met the contract requirements that the contractor use a passenger vehicle containing 40 cubic feet of space.