ASBCA 59665

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) International Automotriz ) ASBCA No. 59665 ) Under Contract No. W912QM-13-P-0075 ) APPEARANCE FOR THE APPELLANT: Sra. Doris Elizabeth L. Sibrian Owner APPEARANCES FOR THE GOVERNMENT: Ray M. Saunders, Esq. Army Chief Trial Attorney Kyle E. Chadwick, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE NEWSOM Appellant seeks compensation for damage to four vehicles that it rented to the Army. The Army admitted responsibility for the damage and paid the appellant $12,947.88. Not satisfied, appellant seeks more than $189,412.12 in additional damages, including lost rental income, interest on loans, and other damages. For the reasons set forth below, we hold that appellant has already received compensation for the damage for which the government is responsible and deny appellant's appeal insofar as it seeks additional damages. FINDINGS OF FACT 1. On 7 June 2013, the Army awarded Contract No. W912QM-13-P-0075 (the Contract) to appellant, International Automotriz, a company located in El Salvador (R4, tab 1 at 1). The Contract called for appellant to rent three vehicles - one sport utility vehicle (SUV) and two pickup trucks - to special forces personnel in El Salvador, in exchange for a rental fee of $65 per day per vehicle (R4, tab 1 at 4, 12). 2. Originally, the Contract called for 106 rental days for the SUV and 102 days for each of the pickup trucks, for a total Contract value of $20,150 (R4, tab 1 at 4, 12). On 1 August 2013 the parties executed a bilateral modification changing the rental period and reducing the total Contract value to $17,420 (R4, tab 2). 3. The Contract incorporated Federal Acquisition Regulation (FAR) clause 52.228-8, LIABILITY AND INSURANCE - LEASED MOTOR VEHICLES (MAY 1999) (R4, tab 1 at 4 ), which stated that the government:  (a) ... shall be responsible for loss of or damage to- (1) Leased vehicles, except for (i) normal wear and tear and (ii) loss or damage caused by the negligence of the Contractor, its agents, or employees .... 4. International Automotriz delivered the vehicles on 24 June 2013 to U.S. service member, Chief Adam Davis, in El Salvador (tr. 60, 104; R4, tab 1 at 12; app. supp. R4, tab 2). 5. International Automotriz typically provides a copy of its standard rental agreement to persons who rent its vehicles (tr. 106). Accordingly, at delivery, Chief Davis received, and he signed, International Automotriz's rental agreement (tr. 60, 106-07; app. supp. R4, tab 6A). This rental agreement was mostly in Spanish with portions translated into English (app. supp. R4, tab 6A). The English translation stated, among other things: RENTAL AGREEMENT Celebrate the present agreement "Doris Elizabeth Lopez Sibrian", as the renter in this city for effect of the present contract will be called "THE LESSOR" and the person designed in the beginning on the contract will be called "THE LESSEE". 9. It will be the "THE LESSEE" responsibility to pay the rento for period that the vehicle stays in the repair shop due to an accident in concept of dismissed lucre. 16. In order to valid the collision damage waiver "THE LESSEE" must present a police report of the collision of the accident. Other way "THE LESSEE" will be responsible for all the damage of the vehicle. (App. supp. R4, tabs 6, 6A at 1) 6. The contracting officer, however, did not sign the International Automotriz rental agreement and did not have that rental agreement when he awarded the Contract (app. supp. R4, tab 6; tr. 105-07). Indeed, International Automotriz's owner and General 2 Manager, Sra. Doris Sibrian 1, testified that she first discussed the rental agreement with the contracting officer when International Automotriz submitted its claim (tr. 107-08). There is no evidence in the record that Chief Davis had actual authority to bind the government, and none to indicate that the contracting officer ratified appellant's standard rental agreement. 7. After the government picked up the vehicles, the SUV - a Toyota Prado-was damaged, and the government returned it early to International Automotriz (tr. 61).