Appeal of
Under Control No. HCR 08041
PSBCA No. 1674
APPEARANCE FOR APPELLANT
Lewis. G. Adler, Esq.
APPEARANCE FOR RESPONDENT
Deborah A. Davis, Esq.
OPINION OF THE BOARD ON
MOTION FOR SUMMARY JUDGMENT
Appellant, Stanley Myrie, has appealed from the Contracting Officer's decision terminating his highway transportation contract for default because of unsatisfactory performance.
Appellant contends he substantially performed the contract and was not in default. He further asserts that any default or irregularities in performance were due to actions of the United States Postal Service (Respondent), or were beyond his control, and that the termination action was taken in bad faith.
Respondent has filed a Motion for Summary Judgment, and Appellant has opposed the motion.
BACKGROUND
On June 24, 1985, Appellant and Respondent entered into a contract for the highway transportation of mail between the South Jersey MSC, NJ, and Bridgeton, NJ, commencing July 1, 1985, and ending June 30, 1989 (Appeal File (AF) Section I p.#3 (1-3)). Included in the contract were the Basic Surface Transportation Services Contract General Provisions (PS Form 7407, Oct. 1981) (AF 1-3E).
Clause 4 of the general provisions, "Service Requirements and Prohibitions," required that mail be carried "with certainty, celerity and security" in accordance with the specified operating schedule (id.). Clause 16 of the general provisions set forth causes warranting termination of the contract for default, including, at subclause (a)(1), "failure to perform service according to the terms of the contract." Subclause (c) declared that if the default termination was subsequently determined to have been improper, the contractor's rights would be the same as though a termination for convenience had been issued under Clause 17, including the receipt of the indemnity prescribed in Clause 12, "Changes in Service" (id.).-
During
1986 Respondent issued various notices of contract irregularities to Appellant
(AF II-10A, III, IV). Counseling
sessions were held with Appellant on October 3 and
The
contract irregularities charged against Appellant included instances of omitted
service, late departures, and use of an undersized vehicle. Appellant has disputed one of the charges of
omitted service and has claimed excusable causes with respect to several of the
other irregularities (Affdvt.
Respondent has submitted into the record excerpts captioned "Irregularity Procedures" from the Administrative Official's Guide for the Administration of Highway Contracts which set forth various performance standards in terms of percentages ranging between 95 and 100 percent (Supplemental Appeal File (SAF) Tab 1).
By
letter dated
DECISION
Summary
judgment will be granted only where no genuine issue of material fact exists
and the moving party is entitled to judgment as a matter of law. American Federal Contractors, Inc.,
PSBCA No. 1360, 86-2 BCA ¶ 18,855. The party moving for summary judgment bears
the burden of demonstrating both elements, and for purposes of ruling on the
motion, the record documents are viewed in the light most favorable to the
opposing party. Northway Development,
Inc., PSBCA No. 1453, 86-2 BCA ¶
18,998. In deciding a motion for summary
judgment the Board's function is not to resolve any questions of material fact,
but to ascertain whether any such questions exist. American Federal Contractors, Inc., PSBCA
No. 1424, 86-2 BCA ¶ 18,891.
Respondent argues that Appellant's service deteriorated to an unacceptable level during 1986 and, despite warnings and counseling sessions, it did not improve. Acknowledging that Appellant's affidavit alleges instances of excusable causes for certain violations, Respondent nevertheless urges that even if those irregularities are disregarded, there are still numerous others which justify the default termination. Respondent also argues that the Board is without authority to grant reinstatement of the contract, one of the requests for relief made by Appellant.
Appellant contends that he substantially performed the contract, and has asserted that his efficiency level was 98 percent. Appellant has also disputed certain of the charges of contract irregularities and has put forth what he considers excusable causes for others.
Respondent has not carried its burden to demonstrate the absence of genuine issues of material fact. Appellant has presented evidence of equipment breakdowns, traffic accidents in which his drivers were not at fault, and intentional damage to his equipment by a prospective successor to his business. Appellant asserts that the use of a smaller truck while his vehicle was being repaired (due to an accident which was not his fault) in no way impacted on his ability to carry all of the mail available for delivery. Appellant's evidence challenges the legitimacy of certain irregularities and whether they were properly chargeable to Appellant. Appellant has also made factual contentions relating to his efficiency rating, which could call into question the standards applied by the Contracting Officer, and whether uniform procedures existed that allowed a threshold percentage for highway contractors. See Del Transport, Inc., PSBCA No. 1279 (Sept. 3, 1985).
Appellant has alleged facts which, if proved, could constitute legal excuses to the performance failures that led to the termination action. Further, there are genuine issues of material fact concerning the alleged performance failures. These factors will not permit a resolution of the legal issues on the record.
With
regard to the issue of contract reinstatement, Respondent correctly argues that
the Board has no authority to order reinstatement. Paul A. Mason, PSBCA No. 1187, 84-3 BCA
¶ 17,735; Spaulding Radiator
Service, PSBCA No. 1068, 82-2 BCA ¶ 16,088.
However, the Board has jurisdiction to determine the propriety of a
default termination, and if found to be improper, the contract allows for a
conversion to a termination for convenience, with the specified indemnity as
stipulated damages. Samuel A. Moore,
PSBCA No. 1063, 83-1 BCA ¶ 16,376; Interstate United Corp., PSBCA No.
966, 82-1 BCA ¶ 15,758. Thus there is a
basis to grant relief if Appellant prevails on the default termination issue
and Respondent is not entitled to judgment as a matter of law.
Respondent's Motion for
Summary Judgment is denied.
James E. Lemert
Administrative
Judge
Board Member
I concur
James A. Cohen
Administrative
Judge
Chairman
I concur
James D. Finn, Jr.
Administrative
Judge
Vice Chairman