Appeal of
MARLENA R. ANTRIM
Under Contract No. HCR 93285
PSBCA No. 2149
Appearance for Appellant
Marlena R. Antrim
Appearance for Respondent
Doris Godinez-Taylor, Esq.
OPINION OF THE BOARD
This appeal arises from the Contracting Officer's decision terminating for default Appellant's highway transportation contract and renewal contract because of deviations from the official line of travel. Respondent also contends the termination should be upheld because Appellants anticipatorily repudiated the renewal contract and carried letters outside the mails. Appellants contend the default was improper and seek the indemnity (liquidated damages) provided by the contract. The appeal is denied.
FINDINGS OF FACT
1. A highway transportation contract (HCR 93285)
between Respondent, United States Postal Service, and Appellants, Marlena
Antrim and her husband James Antrim, provided for service during a term
beginning July 1, 1983, and ending June 30, 1987 (hereafter referred to as the
1983 contract) (Appeal File (AF) Tab 2).
By
2. Both contracts contained the "Basic Surface Transportation Services Contract General Provisions" on PS Form 7407, with the 1983 contract containing the October 1981 edition and the renewal contract the October 1986 edition. The pertinent General Provisions for both contracts were similar. They included a standard "Claims and Disputes" clause (clause 2). They also included clause 16, "Termination by the Postal Service for Default," which at subparagraph (a), authorized the Contracting Officer to terminate the contract "(1) for Contractor's failure to perform service according to the terms of the contract;" and "(3) for the Contractor's disobedience of the instructions of the Contracting Officer". Clause 16(c), 17 (Termination for Convenience), and 12(d), together, in effect, provided an indemnity (liquidated damages) if it were determined that the contractor was not in default or the default was excusable and the termination was not caused by the fault of the contractor. (AF Tabs 1, 2).
3. Both contracts provided in clause 4 (Service Requirements and Prohibitions) that the contractor "shall carry all mail rendered for transportation under this contract . . . with certainty, celerity, and security, in accordance with the operating schedule and between the points fixed in the solicitation . . .: Clause 4(f) stated: "The Contractor shall not carry letters outside of the mails." Clause 4(b), which was applicable to these contracts, required servicing mail to and from mail boxes of patrons along the line of the route. Clause 5 required the contractor to maintain the vehicles used for the route in "mechanically sound condition." (id.).
4. The type of vehicles to be used was set forth
in the contracts' special requirements; namely, "A vehicle, such as a
midsize station wagon, providing a minimum of 100 cubic feet of load
space," and standby equipment for emergencies. This equipment was to be "acceptable at
all times" to the Contracting Officer.
The service schedule provided for daily (except Sunday and holidays)
trips leaving the post office in
5. The line of travel was set forth in detail in
the statements of service with the street name from the post office and
return. As pertinent here, the route may
be described as providing for an area of service in downtown
6. The postmaster at the post office in Wofford
Heights, who was administratively responsible for the route, had authority to
authorize deviations from the line of travel in bad weather and other emergency
situations (Tr. 58; AF Tab 5). In
November 1984 the postmaster gave written notice to the mail patrons in the
Alta Sierra area to have outgoing mail in their boxes before
7. Because the Antrims lived in the Alta Sierra
area (Tr. 71), Mrs. Antrim, who was the operator of the route, preferred the
above line of travel since it would require her to go down and up the hill from
Alta Sierra to the post office only once, instead of twice, to perform the
contract service. In June 19876 Mrs.
Antrim requested the logistics coordinator in
"The
Postal Service must provide the same level of service to all customers on the route, and we cannot
reduce the outgoing mail pickup cut-off
time from approximately
8. In a further letter dated
9. In 1985 and 1986 the postmaster issued a few reports of contract route irregularity (PS Form 5500) because Mrs. Antrim deviated from the required line of travel or otherwise failed to perform service according to the contract schedule (AF Tabs 7-12). After the 1986 letters from the logistics coordinator to Appellants (Findings 7 and 8, supra), the postmaster had reason to believe Mrs. Antrim did not follow the scheduled line of travel consistently because the postmaster received complaints and adverse reports about Mrs. Antrim's performance. Also, the time shown on the PS Form 5399 for arrival at and departure from the post office on at least 30 days reflected less service time than the minimum time it should have taken to perform the scheduled route (about 1 hour and 35 minutes, which was less than the contract provided) (Finding 4; RXs F-H; Tr. 76-79, 84-86, 96, 97, 106, 111-13).
10. However, after July 1986 the postmaster did not file Form 5500 irregularity reports of contract violations because she was intimidated by the Antrims and unable to handle emotional confrontations with them at the post office when Mrs. Antrim's performance was criticized (Tr. 85, 93-97, 107, 109-12; RXs G, H).
11. In June 1987 the postmaster received a customer complaint that he did not receive weekly circulars. The postmaster also suspected that additional circulars were not delivered because of the number returned to the post office. She also received reports that Mrs. Antrim was not following the route. After receiving advice from the logistics coordinator, the postmaster requested postal inspectors to investigate the route. (Tr. 92, 93, 97, 107).
12.
On
13.
In a letter to the Contracting Officer dated
14.
Appellants' right to perform service was suspended on
15.
After receiving Appellants' letter of
DECISION
Respondent established that on the day Mrs. Antrim, the operator of the route, was observed by the postal inspectors, she had picked up mail after signing out from the post office and kept it in her possession. This was contrary to instructions she had received from the Contracting Officer's representatives. She also failed to follow the line of travel required in the contract schedule. Additional evidence from the postmaster and from Appellants' admissions shows she had deviated from the line of travel previously without prior approval. These actions of failing to follow the contract route and carrying mail outside of duty hours were contrary to the instructions and violated the contract (see Findings 2-5). Termination of the 1983 contract under clauses 16 (a) (1) and (3) was warranted because of failure to perform service according to the terms of the contract and disobedience of instructions of the Contracting Officer.
Mrs. Antrim argues the termination action was improper. She attempts to excuse her actions on several grounds. First, she asserts she did not know of the prohibition against carrying mail outside the normal scheduled service. Her alleged ignorance is not excusable, nor is it credible in view of the contract provision and contrary instructions Appellants had received (see Findings 3, 6-8).
Next, Mrs. Antrim seeks to excuse her failure to follow the line of travel by alleging that driving up the hill twice would cause her jeep to overheat. Despite her reliance on a statement from her mechanic, the statement does not support that allegation. However, even if it did, the overheating of the vehicle would not excuse Appellants' unauthorized deviation from the line of travel. The contract required that the vehicles used on the route be maintained in a mechanically sound condition "acceptable at all times" to the Contracting Officer (Findings 3, 4). Even if it were difficult to maintain the jeeps used by Appellant, her choice of vehicles instead of the midsize station wagon suggested, cannot serve as an excuse for noncompliance with the contract. Cf. William Cimipi, PSBCA No. 391 (January 27, 1978).
Mainly, Appellants attempt to blame the postmaster for the termination, alleging she was prejudiced and biased against them. Mrs. Antrim asserts the postmaster knew she "was in jeopardy" by not following the line of travel but failed to warn her and made "irritating accusations" instead (Appellants' brief at 2 and 3). Contrary to these arguments, Appellants had been advised previously of the necessity to follow the line of travel set forth in the contract. Also, Appellants failed to show a specific instance where the postmaster's instructions were contrary to the contract requirements. The evidence fails to show bad faith, unfair dealings, or an abuse of discretion by the postmaster or other postal official which would excuse Appellants' contract violations and negate the termination of the 1983 contract. The lack of additional and more formal warnings about Mrs. Antrim's continued violations does not suffice as an excuse in these circumstances. Cf. H.T.J. Trucking, Inc., PSBCA No. 366, 78-2 BCA ¶ 13,280.
As the contract violations were not excusable, the 1983 contract was properly terminated for default. The remaining issue concerns the status of the renewal contract. Respondent contends the renewal contract could be terminated for default for the reasons justifying termination of the 1983 contract and because Appellants anticipatorily repudiated the contract by unequivocally stating they did not wish to renew the contract. Appellants apparently now wish, in effect, to retract that notice as they seek the liquidated damages prescribed in the contract where a contract is terminated without the fault of the contractor.
A contractor's continued satisfactory performance is an essential pre-condition for renewing a highway transportation contract. Shorthaul Trucking Co., PSBCA No. 1046 (June 18, 1985). Here the parties had executed the renewal contract, but both it and the current contract were terminated for default before the renewal contract would become effective. In executing the renewal contract, the parties agreed, in effect, to continue the terms and conditions of the prior contract "prevailing at the end of the current contract." (Finding 1, supra). Before its expiration, the "current contract" (the 1983 contract) had been terminated because of Appellants' contract violations. Therefore, there was o valid, existing contract to renew unless there was some further agreement of the parties which would effectuate the renewal contract despite the termination of the current contract. Clearly no such agreement existed in view of the Contracting Officer and of Appellants' statement that they did not wish to renew the contract. It is now too late for Appellants to retract that statement.
The renewal contract is considered as having been nullified by the default termination of the contract which was to be renewed and by the parties' actions. Therefore, no rights remained under the executed, but nullified, renewal contract, including rights under clauses pertaining to termination and damages.
Accordingly, Appellants' appeal is denied.
Joan B. Thompson
Administrative Judge
Board Member
I concur
James A. Cohen
Administrative Judge
Chairman
I concur
James D. Finn, Jr.
Administrative Judge
Vice Chairman