Appeal of

RODNEY TREVETT

Under Contract No. HCR 05635
PSBCA Nos. 4255 & 4452

APPEARANCE FOR APPELLANT:
James Jamele, Esq.

APPEARANCE FOR RESPONDENT:
Margaret E. Harper, Esq.

OPINION OF THE BOARD

            Appellant, Rodney Trevett, claimed that Respondent, United States Postal Service, directed him to perform service beyond that required under his mail transportation contract.  The contracting officer denied Appellant’s claim for additional compensation, and Appellant appealed (PSBCA No. 4255).  Appellant also filed a claim based on Respondent’s alleged tortious interference with Appellant’s contractual relationship with a subcontractor/driver.  The contracting officer denied that claim, and Appellant appealed (PSBCA No. 4452).

As elected by the parties, these appeals are being decided on the record.  39 C.F.R. §955.12.

FINDINGS OF FACT

            1.  In 1993, Respondent and Appellant entered into a renewal contract calling for Appellant to make several trips each day, six days per week transporting mail between Montpelier and Cabot, Vermont.  The term of the contract was from July 1, 1993, through June 30, 1997.  (Appeal File, Tab (“AF”) 1).

            2.  The first run of the day (Trip 1) was scheduled to start from Montpelier at 6:30 a.m., make stops at East Montpelier, Plainfield and Marshfield and arrive at Cabot at 7:25 a.m.  Trip 2 left Cabot at 7:30 a.m. and ran only back to Marshfield, arriving at 7:40 a.m.  There, Appellant’s driver cased mail for delivery to customer mailboxes along the route which he delivered on Trip 3, leaving Marshfield at 8:15 a.m. and reaching Cabot at 8:45 a.m.  On the final morning trip (Trip 4), Appellant was scheduled to leave Cabot at 8:50 a.m. and, without making intermediate stops, return to Montpelier, arriving at 9:30 a.m.  (AF 1; Declaration of Rodney Trevett, ¶ 3).

            3.  The first afternoon trip (Trip 5) was scheduled to leave Montpelier at 2:00 p.m., make stops at East Montpelier, Plainfield and Marshfield before arriving at Cabot at 3:00 p.m.  Trip 6 left Cabot at 4:40 p.m., arriving at Montpelier at 5:30 p.m., after making stops at the three intermediate post offices.  (AF 1; Declaration of Rodney Trevett, ¶ 3).

            4.  The contract authorized Respondent to direct Appellant to make extra trips.  The contract defined an extra trip as an “additional trip of service operated on an infrequent time basis over the same route or part as normally provided under the terms of the contract.”  The contractor was to receive additional compensation for performing such extra trips.  (AF 1, General Provision 12, CHANGES, Basic Surface Transportation Services Contract – General Provisions, PS Form 7407, July 1992; see AF 1, Contract Clause 15. EXTRA TRIPS).

            5.  At some point during the term of the contract, Appellant’s driver, with Respondent’s permission, began performing Trip 4, the morning return from Cabot to Montpelier, at about 1:10 p.m. to arrive at Montpelier shortly before beginning the first scheduled afternoon run (Trip 5) at 2:00 p.m. from Montpelier to Cabot.  He made stops to pick up and drop off mail at the intermediate post offices even though Trip 4 did not call for such stops.  Appellant’s driver lived in Cabot, and this arrangement was more convenient for him than having the morning trips end in Montpelier.  (Declaration of Rodney Trevett, ¶¶ 4, 5; Declaration of Raymond M. Bourbeau, ¶¶ 4, 5).

            6.  From about April 27, 1996, through February 28, 1997, Respondent paid Appellant for running an “extra” round trip every service day starting at 1:00 p.m. from Cabot to Montpelier with stops at Marshfield, Plainfield, and East Montpelier.  On Respondent’s forms authorizing the extra payment (one form for each trip), the justification was identified as, “Extra trip to bring outgoing mail to Montpelier Post Office for early dispatch.”  The forms listed a return Montpelier-Cabot trip, but no time was entered for that run.  (Respondent’s Trial Exhibit, Tab 1).

            7.  However, Appellant’s driver was not running an “extra” trip.  The trip Appellant received extra payment for was Trip 4, a trip required under the contract that Appellant was running in the afternoon instead of in the morning as scheduled.  The only difference was the addition of the three intermediate stops that were not required on Trip 4 as listed in the contract schedule.  (AF 13; Declaration of Raymond M. Bourbeau, ¶ 4).

            8.  Under the contract, the Montpelier Postmaster was the administrative official, authorized to manage the contract on a day-to-day basis (AF 1; Declaration of Raymond M. Bourbeau, ¶ 3).

            9.  In early 1997, the administrative official told Appellant’s driver to run the route according to the schedule in the contract.  He told the driver that Respondent would permit Trip 4 to be run at 1:10 p.m., for the convenience of the driver, but that the driver was not to pick up mail at the three intermediate post offices on his way from Cabot to Montpelier and that Respondent would not pay for the trip as an extra trip.  (AF 13; Declaration of Raymond M. Bourbeau, ¶ 5).

            10.  Respondent refused to pay for Trip 4 as an extra trip after February 28, 1997 (Declaration of Raymond M. Bourbeau, ¶ 6; Respondent’s Trial Exhibit).

            11.  Appellant filed a claim on June 13, 1997, for $3,888, based on Appellant’s contention that his driver had run one extra trip per service day from March 1, 1997, until the claim was filed and would continue to do so through June 30, 1997, when the contract would expire.  (AF 6, 10, 11; Declaration of Raymond M. Bourbeau, ¶ 7; Declaration of Rodney Trevett, ¶¶ 7, 9; Declaration of Joseph G. Arsenault, ¶ 3).

            12.  On April 15, 1998, the contracting officer denied the claim (AF 14, 15; Declaration of Joseph G. Arsenault, ¶ 3), and the appeal docketed as PSBCA No. 4385 followed.

            13.  On March 31, 1999, appellant submitted a claim for damages based on Respondent’s alleged tortious interference with the contractual relationship between Appellant and his driver/subcontractor.  Appellant also contended that Respondent unfairly favored Appellant’s driver/subcontractor in awarding the contract for the route after Appellant’s contract expired.  (AF 18).

            14.  On May 24, 1999, the contracting officer denied the claim (AF 19), and the appeal docketed as PSBCA No. 4452 followed

DECISION

            Appellant has the burden of proving his entitlement to additional compensation under the contract for what he claims were extra trips made at the direction of Respondent.  See Sub-Haulers Interstate Service, PSBCA No. 4327, 00-1 BCA ¶ 30,767.  However, he has not shown that there were extra trips performed during the time for which he seeks to recover or that there was any direction by Respondent to provide extra trips.  What Appellant claims was an extra trip each day was actually the contract-required Trip 4, which Respondent allowed to be performed in the afternoon instead of the morning for the convenience of Appellant’s driver.  Further, Appellant has not alleged or offered evidence that performing the trip in the afternoon increased his costs of performance.  Finally, there is no evidence that Appellant ever ran the return Montpelier-Cabot run either during the period of his claim (after February 28, 1997) or before, even though that return run was included on the extra trip authorizations through February 28, 1997.  For these reasons, Appellant is not entitled to additional compensation for the claimed extra trips.

            Appellant included in his consolidated Complaint a claim based on Respondent’s alleged intentional interference with the business relationship between Appellant and his driver/subcontractor.  That claim is in the nature of a tort, which the Board lacks authority to consider.  See Sonny's Enterprise, GSBCA No. 10290, 90-2 BCA ¶ 22,740; Roger Dean Barrett, PSBCA No. 2490, 89-3 BCA ¶ 22,220; General Security Services, GSBCA No. 7684, 85-3 BCA ¶ 18,380 at 92,196.  Appellant also complains that his driver/subcontractor received an unfair advantage in the award of the follow-on contract after Appellant’s contract expired.  That claim is in the nature of a protest over the award of the later contract and, as such, is also beyond the Board's jurisdiction.  See Coastal Corp. v. United States, 713 F.2d 728, 730-731 (Fed. Cir. 1983); Gary W. Noble, PSBCA No. 4094, 99-2 BCA ¶ 30,413; Dill's Star Route, Inc., PSBCA No. 3699, 95-2 BCA ¶ 27,608.  Those claims (which comprise PSBCA No. 4452) are dismissed.^[1]

            The appeal of PSBCA No. 4255 is denied.  PSBCA No. 4452 is dismissed.

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] By Order dated February 4, 2000, the Board advised the parties of its lack of jurisdiction over tort claims and claims in the nature of protests and that the claims would be dismissed in the decision on these appeals.  Evidence on those claims was not received.