Government Not Entitled to Summary Judgment in Fuel Use Dispute

The government’s motion for summary judgment on its claim to recover excess fuel charges was denied by the Postal Board of Contract Appeals because there was a genuine issue of fact as to whether the contracting officer agreed to adjust the allocation, and the government did not demonstrate it was entitled to judgment as a matter of law. The dispute involved a mail transportation contract that was subject to the government’s Fuel Management Program, which allotted the contractor a specified annual volume of fuel to perform the contract. The contract required the contractor to use a van, but because of a high volume of mail, the contractor used a box truck with a greater cargo capacity that used more fuel. The government subsequently claimed the contractor owed it for exceeding the allotted fuel.

Contractor’s Expectation

On appeal, the contractor argued it sought a larger fuel allocation prior to agreeing to the contract, but the CO stated the allocation could be adjusted if the smaller amount proved inadequate. Thus, there was a genuine issue of material fact as to the nature of the pre-contract discussions and whether the contractor acquiesced to the smaller fuel allocation with an expectation the allocation would be adjusted if proven to be inadequate in practice. Moreover, a question remained as to whether the CO who issued the final decision reasonably exercised his discretion under the contract and the FMP to authorize an increase in the fuel allocated to the contract. The government therefore was not entitled to judgment as a matter of law, as the record required development to determine whether the contractor’s allegation of basic unfairness in the CO’s decision-making process could be proven. ( Sammy’s Delivery Service, Inc., PSBCA, ¶93,717).