May 12, 1986

 

APPEAL OF

RILEY E. THOMPSON

UNDER CONTRACT NO. HCR 06038

 

PSBCA NO. 1410

 

APPEARANCE FOR APPELLANT:

Riley E. Thompson

 

APPEARANCE FOR RESPONDENT:

Albert W. Sullivan, Esq.

 

OPINION OF THE BOARD

 

            Appellant appeals from the termination for default of his right to continue performance under his highway Transportation Services Contract, and seeks conversion of the termination to one for convenience with indemnification, alleging that his failure to meet the contract schedule was excusable.

            The parties elected to waive hearing and to submit the appeal for decision on the record, including briefs filed by both parties.

FINDINGS OF FACT

            1.  On July 12, 1982, Respondent awarded Appellant contract HCR 06038 for transportation of mail between Hartford and Tariffville, Connecticut, and intermediate points at an annual rate of $48,859.42 for the period July 17, 1982 to June 30, 1986.

            The contract included a Statement of Service and Schedule containing, among other things, arrival and departure times at Hartford and Tariffville and departure times, only, from immediate points, i.e., Windsor, Windsor Locks, Enfield, Suffield, West Suffield and East Granby.  It also contained the following provisions:

            “The contractor will load and unload mails at all points; reporting for duty sufficiently in advance of the scheduled departure time to accomplish the loading.  Loading or unloading assistance may be furnished at the discretion of the postmaster or his designee, if required, to maintain on-time operation.”

 

            3.  In addition to the Statement of Service and schedule, the contract contained the following pertinent provisions:

General Provisions

 

            “4.  Service Requirements and Prohibitions. – (a)  The Contractor shall carry all mail tendered for transportation under this contract, whatever may be its size and weight, with certainty, celerity, and security, in accordance with the operating schedule and between the points fixed in the solicitation, as modified from time to time pursuant to Clause 12, General Provisions of this contract. * * *

 

16.  Terminations by the Postal Service for Default. – a.  Upon the determination by the Contracting Officer that the public interest requires such actions as a result of any of the following, the Contracting Officer may terminate the Contractor’s right to continue performance under the contract * * *

 

(1)  for Contractor’s failure to perform service according to the terms of the contract; * * *

 

12.  Changes In Service

 

*           *           *

 

(b)  Extra Trips

(1)  An extra trip is one 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.  Extra trips shall be negotiated in advance of the performance thereof whenever possible.  However, when time does not permit negotiations, the Contracting Officer may order the Contractor to perform such extra service at pro rata pay.”

 

*           *           *

 

            4.  Starting in August 1982, and continuing throughout performance of the contract, numerous Reports of Contract Route Irregularity (PS Form 5500) were issued to Appellant, a total of 268 during Appellant’s contract term (Appeal File (AF) 9, 23, 36, 39).

            5.  At conferences attended by Appellant on December 22, 1982, May 20, 1983, February 2, 1984, and December 14, 1984, Appellant’s numerous service irregularities were discussed and he was given notice that service would have to be improved to meet contract requirements and that failure to do so could result in termination of the contract for default.  These warnings were confirmed in writing (AF-8, 14, 15, 27, 30, 32, 34 and 38).  For the period August 4, 1984, through October 26, 1984, Respondent’s performance improved (AF 31), but thereafter deteriorated.

            6.  By letter dated February 12, 1985 (AF-41), Appellant’s right to continue performance under the contract was terminated for default effective close of business February 11, 1985, without allowance of indemnity, pursuant to clause 16(a) of the General Provisions of the contract.  The termination was based on the following irregularities listed in the February 12 letter:

Date                Trip                       Irregularity

12/15/85         Scheduled Extra  Omitted Service

12/15/84         1, 2                        Omitted Service

12/21/84         5                            Departed Hartford, CT

                                                      15 minutes late

12/24/84         4                            Arrived Hartford, CT 2 hours late

12/24/84         6                            Arrived Hartford, CT 6 hours,

                                                      45 minutes late

12/24/84         8                            Arrived Hartford, CT 1 hours,

                                                      30 minutes late

12/26/84         2                            Arrived Hartford, CT 15

                                                      minutes late

12/26/84         4                            Omitted Service

12/28/84         3                            Departed Hartford, CT 1 hours,

                                                      5 minutes late

12/29/84         1                            Arrived Enfield, CT 30 minutes late

1/2/85             1                            Arrived Enfield, CT 31 minutes late

1/2/85             3                            Arrived Enfield, CT 15 minutes late

1/3/85             1                            Arrived Enfield, CT 15 minutes late

1/7/85             extra                      Omitted Service

1/7/85             5                            Departed Hartford, CT 40 minutes

                                                      late

1/7/85             8                            Arrived Enfield, CT 18 minutes late

1/8/85             6                            Arrived Hartford, CT 35 minutes late

1/9/85             1                            Arrived Enfield, CT 33 minutes late

1/9/85             3                            Arrived Enfield CT 30 minutes late

1/9/85             5                            Arrived Enfield, CT 35 minutes late

1/9/95             8                            Arrived Enfield, CT 35 minutes late

1/10/85           1                            Arrived Enfield, CT 50 minutes late

1/10/85           3                            Arrived Enfield, CT 20 minutes late

1/10/85           4                            Omitted Service

1/10/85           8                            Arrived Enfield, CT 25 minutes late

1/11/85           1                            Arrived Enfield, CT 1 hours, 26

                                                      minutes late

1/11/85           3                            Arrived Enfield, CT 20 minutes late

1/12/85           4                            Arrived Hartford, CT 30 minutes late

1/15/85           Extra                     Departed Hartford, CT 1 hour late

1/15/85           1                            Departed Hartford, CT 28 minutes

                                                      late

1/16/85           6                            Arrived Enfield, CT 20 minutes late

1/17/85           extra                      Departed Hartford, CT 55 minutes

                                                      late

1/17/85           1                            Departed Hartford, CT 35 minutes

                                                      late

1/25/85           4                            Arrived Hartford, CT 30 minutes late

1/25/85           8                            Arrived Hartford, CT 2 hours, 15

                                                      minutes late

1/29/85           3                            Departed Hartford, CT 1 hour, 10

                                                      minutes late

2/1/85             3                            Departed Hartford, CT 30 minutes

                                                      late

2/1/85             13                          Departed Hartford, CT 30 minutes

                                                      late

2/6/85             6, 7, 8                   Unsatisfactory vehicle-unable to

                                                      shutoff engine at Hartford, CT

2/7/85             6, 7, 8                   Unsatisfactory vehicle-unable to

                                                      shutoff engine at Hartford, CT

2/7/85             13                          Departed Hartford, CT 43 minutes

                                                      late

2/8/85             6, 8                        Unsatisfactory vehicle-unable to

                                                      shutoff engine at Hartford, CT

            7.  The forms 5500 covering the irregularities listed in FOF 6, above, show no replies from Appellant in the space provided although 31 of them were issued more than 10 days prior to the termination and, therefore, should have been responded to in accordance with the instruction given in section 2 of the form.

            8.  Although the Statement of Service and Schedule does not specify arrival times for intermediate points, many of the forms 5500 list late arrival at such points as irregularities.  However, except in one instance (AF 39, Trip 1, 1-3-85, Enfield) the forms 5500 listing such late arrivals also show a late departure exceeding the specified departure time by more than the 15 minute grace period allowed by Respondent.

            9.  Although Appellant’s Complaint (Ltr. May 3, 1985) alleges that a “goodly portion” of late departures were caused by USPS personnel and that others were due to weather conditions, Appellant has submitted no evidence by way of replies to forms 5500 or otherwise to support this allegation.

DECISION

            Appellant seeks conversion of the default termination to a termination for convenience with payment of indemnity pursuant to clauses 12 and 17 of the General Provisions.

            Throughout performance of this contract, Appellant compiled a record of numerous and frequently serious irregularities.  By means of several conferences and warning letters, Respondent gave Appellant repeated opportunities to improve his performance.  Appellant, however, failed to take advantage of such opportunities except for a three-month period in late 1984.

            Appellant has failed to produce persuasive evidence to support his contention that there were excusable causes for any of the irregularities on which the termination was based.  Although Appellant’s brief presents several arguments in support of its request for conversion of the termination, none of them has merit.

            First, Appellant quarrels with Respondent’s reference, in its Answer, to the contract schedule as a “strict time schedule.”  Appellant says that it is not a strict time schedule and violates  section 19-303.22 and 19-303.23 of the Postal Contracting Manual (PCM) in that it does not state a reporting time, does not specify arrival times at intermediate points, gives mileage requirements as estimates, and gives discretion to postal management to give loading and unloading assistance to the Contractor.  Appellant says all of these factors leave the Contractor vulnerable to the whims of postal personnel.  None of these factors appears to be a violation of the PCM and, even if they were, they have not been shown by Appellant to have contributed to its failure to perform.  The Schedule does not specify arrival times at intermediate points and several of the forms 5500 list late arrival at such points.  However, except in one instance (Trip 1, 1-3-85, Enfield), late arrivals are uniformly coupled with late departures exceeding the 15-minute grace period which, according to its brief, Respondent allowed (Resp. Brief, p. 1).

            Appellant says that he was not given the required 4-hour notice of extra trips except during the Christmas season, but was cited on forms 5500 for delayed extra trips on 13 occasions.  The 43 irregularities on which the termination was based included four involving an extra trip.  On two occasions (12/15/84 and 1/7/85) Appellant failed completely to perform the extra trip.  The two other occasions involved departures from Hartford 1 hour late and 55 minutes late (1/15/85 and 1/17/85).  the record shows no response by Appellant to the forms 5500 covering these irregularities.  His argument in his brief fails to tie his late-notice excuse to any specific extra trips.

            Appellant’s brief suggests that the termination was based, in part, on his failure to respond to a large number of forms 5500 and that the decision to terminate was, therefore, arbitrary and capricious because failure to respond is not a violation of the contract, citing Hartwig Transit Inc., PSBCA No. 1087 (August 2, 1983).  Hartwig dealt not with termination for default but, rather, with the imposition of a fine for failure to respond to forms 5500.  Discussion of Appellant’s duty to respond to forms 5500 is unnecessary because the termination was not based to any extent on Appellant’s failure to respond to such forms.  Nevertheless, Appellant’s lack of response leaves the record without any explanation for the irregularities.

            Finally, Appellant raises the point that on November 9, 1984, the Contracting Officer (Manager, TMO, Springfield, MA) found that Appellant’s performance had improved for the period August 4, 1984, through October 26, 1984, following the issuance of a final warning letter to him (FOF 4, supra; AF 31).  Appellant says that if this performance was acceptable in November 1984, then the CO’s decision to terminate in February 1985, was arbitrary and capricious.  A period of good service does not preclude default termination for subsequent irregularities such as occurred in this case.  See Henry Lee Yon, PSBCA No. 932 (April 22, 1981).  Appellant’s performance deteriorated after the Contracting Officer’s November 9 evaluation of performance.

            We conclude that the contract was properly terminated for default because of Appellant’s numerous, repeated failures to perform service according to the contract schedule and to perform extra trips ordered pursuant to Clause 12(b)(1) of the General Provisions.  Accordingly, the appeal is denied.

Quentin E. Grant

Administrative Judge

Board Member

 

I Concur:

James A. Cohen

Administrative Judge

Chairman

 

I concur:

Joan B. Thompson

Administrative Judge

Board Member