November 7, 1988
Appeal of
LEE McLAUGHLIN
Under Contract No. HCR 95061
PSBCA No. 2199
Appearance for Appellant:
James Moore King, Esq.
Appearance for Respondent:
Elena V. Alejandre, Esq.
OPINION OF THE BOARD
Appellant
has filed an appeal from a Contracting Officer's decision terminating
Appellant's highway transportation contract for default. A hearing, limited to the issue of the
propriety of the default termination, was held at Appellant's request.
FINDINGS OF FACT
1. Appellant was the low bidder in the amount of
$23,869.07 under Solicitation No. 948-19-87, issued on March 30, 3987,
requesting bids for a transportation box delivery services contract (No. 95061)
in Santa Cruz, California (Appeal File (AF)-1; Appellant's Exhibit (AX)-5).
2. The solicitation contained the following
provision entitled "Service Requirement": "Before submitting a bid, the bidders
should contact the Administrative Postmaster at Santa Cruz,
California, for information concerning the
casing and delivery of mail." The solicitation
also contained a "Statement of Service" which described the route and
gave an estimate of annual miles to be driven and hours worked to service the
route. The annual hours were stated to
be 2728 or approximately 9 hours per day (AF-1).
3. Prior to submitting his bid on May 2, 1987, Appellant drove the route
described in the solicitation on several occasions. He counted the mail boxes to be serviced and
calculated the mileage of the route and time taken to service it. He observed a substantial number of boxes
without address or names and noticed that some boxes had two unrelated or
different street numbers on them. He
also noticed street numbers that were out of sequence on some of the boxes. Appellant made no inquiry either to the
Contracting Officer or the designated administrative official (the Santa Cruz
Postmaster) as to how to service these obvious problem situations (Transcript
(Tr.) 153-55). Nor did Appellant ever
ask to speak with the Administrative Postmaster for information concerning
casing and delivery of mail, although he did visit the Post Office in an
unsuccessful attempt to go on the workroom floor to see the mail case for the
route (Tr. 271-73).
4. Appellant was awarded the contract for a
two-year term on July 23, 1987,
with a commencement date of August 10,
1987 (AF-1). The contract's
General Provisions (PS Form 7407, October, 1986) contained a "Service
Requirements and Prohibitions" clause which required Appellant to carry
all mail with "certainty, celerity and security in accordance with the
operating schedule." Its
"Termination by the Postal Service for Default" clause allowed the
Contracting Officer to terminate the contract "For contractor's failure to
perform service according to the contract terms." It further provided that if a default was
subsequently found to be excusable it would be treated as a termination for
convenience (AF-1).
5. Appellant reported to the Santa Cruz Post
Office as required on August 10, 1987
(Tr. 41). During the August 10-19 period
Appellant encountered substantial difficulty in servicing the route in a timely
manner. He took many more hours to
service the route than the contract estimate of 9 per day. His problems were
attributable partially to the double numbering on some boxes, the omissions of
names and street numbers on some, and the out-of-sequence numbers. Additionally, Appellant either was unable or
unwilling to memorize the system for casing the mail for his route. Instead, he unsuccessfully sought to develop and
perfect a system for sequentially casing by street numbers. These latter efforts resulted in Appellant
taking an inordinate amount of time to case the mail each day. The delivery and casing problems encountered
frustrated Appellant and resulted in Appellant's abandonment of the contract on
August 19, 1987 (AX-7; Tr.
14-17, 20, 36, 42-44, 46-47, 50, 178-84, 186, 188, 193-94, 197, 201; AF-18,
20).
6. Although Appellant was unable to perform each
day within the contract's estimated time, both prior and subsequent contractors
successfully serviced the route within the estimated time. Appellant's contract was not impossible to
perform (Tr. 48-50, 325).
7. On August
25, 1987, the Contracting Officer, who was located in the San
Francisco Bay
area, wrote Appellant, instructing him to resume performance of service by August 28, 1987, or face contract
termination (AF-14). Appellant returned
to the Post Office early in the morning of August 28, 1987, to resume his contractual duties (Tr.
218-19). He was carrying a document and
asked to see the Postmaster. Appellant's
presence was challenged by Postal Service floor supervisors, as the Contracting
Officer had not advised the Postmaster that Appellant had been instructed to
return. The Postmaster would not see
Appellant, and a verbal altercation ensued between Appellant and postal
supervisors. Appellant was told he was
trespassing and was asked to leave. When
he refused, the supervisors, acting on instructions from the Postmaster, called
the police to have Appellant removed from the premises. Upon arrival of the police Appellant
voluntarily departed and did not return.
The police were told their presence was not necessary and the matter was
dropped. The Postmaster subsequently
contacted the Contracting Officer's office and was advised that Appellant had
been instructed to return to perform his contract and that the police should
not have been called (Tr. 22, 34, 95, 105-11, 114-16, 222-25, 227, 231-32;
AF-13; AX-2).
8. The Contracting Officer was concerned that
Appellant might have been prevented by Postal Service officials from resuming
his contract on August 28, 1987. Thus, on September 3, 1987, the Contracting
Officer wrote Appellant stating that "[w]e have contacted the Postmaster,
Santa Cruz, and requested that he arrange for you to return to the route and to
furnish all necessary training to assist you in performing service as required
by the contract." Appellant was
further instructed to resume performance within three days of receipt of the
letter or face termination of the contract.
Appellant received the letter on September
9, 1987 (Tr. 131; AF-10).
9. On that same day, September 9, 1987, Appellant placed a call to the
General Manager, Surface Contracts Management Division, Postal Service
Headquarters, to discuss the contract.
The General Manager arranged for a conference call to be held among
himself, Appellant and the Contracting Officer.
Appellant asked for assurance that if he returned to the Santa Cruz Post
Office the Santa Cruz Postmaster and/or others there would not call the police
again. Neither the General Manager nor
the Contracting Officer was able to give Appellant such an assurance. Appellant thus stated that he could not abide
by the September 9 directive to return and perform his contract (Tr. 232-34).
10.
On September 11, 1987, the
Contracting Officer by letter terminated Appellant's contract for default. Appellant filed his notice of appeal on December 7, 1987 (AF-7, 9).
DECISION
Appellant
contends that his failure to perform after August 19, 1987, was excusable since it was attributable
to certain actions or inactions of the Postal Service. Specifically, Appellant argues that the bid
specifications for the route were erroneous and defective due to their failure
to indicate the double numbering, non-sequential numbering or lack of numbering
on many of the boxes. He further argues
that the labels on his mail case were handwritten and not legible, and that the
casing system itself was not orderly and thus defective. According to Appellant, these problems made
timely delivery of the mail impossible.
Appellant additionally contends that Postal Service actions in failing
to correct such defects and in threatening Appellant with the possibility of
arrest if he attempted performance of the contract precluded and excused
Appellant from performing.
Respondent contends the termination was proper
because of Appellant's abandonment of service.
In support of this position Respondent argues that Appellant's contract
was not impossible to perform, that other contractors had been able to perform
the route, that Appellant had knowledge at the time he submitted his bid of the
box-numbering deficiencies and that the difficulties encountered in casing were
manufactured by Appellant. Respondent
additionally asserts that even if Appellant's route was impossible to perform
within a reasonable period of time Appellant failed to follow the contractually
prescribed procedures for resolving disputes.
Appellant
clearly abandoned performance of the contract on August 19, 1987.
Thus, sufficient grounds existed for default termination unless the
basis for the abandonment would excuse Appellant from further performance. Pamela J. Sutton, PSBCA No. 1622, 88-2 BCA ¶ 20,680. The reasons given here by Appellant for abandoning
the contract do not constitute sufficient grounds to excuse him. However, as explained further, later actions
by Postal Service officials subsequently excused Appellant from further
performing the contract.
On
several occasions prior to submitting his bid Appellant drove the route
described n the solicitation. He
observed mail boxes which lacked street numbers and/or names, were out of
sequence, or contained double addresses.
He made no inquiry to the Contracting Officer or the Santa Cruz Postmaster
as to how to service these discernible and obvious problem boxes. By submitting his bid without making inquiry
Appellant assumed the risk of performance.
He may not now complain of those probable performance difficulties known
to him before bidding, nor rely upon them as an excuse for his failure to
perform. E. C. Dodge, PSBCA No.1
748, 88-3 BCA ¶ 20,947. Additionally, Appellant's impossibility of
performance argument is negated by the fact that prior contractors had been
able to perform successfully over the same route within the contractually
prescribed time frame.
In regard to his
problem in casing the mail, Appellant never contacted the Administrative
Postmaster prior to bidding for information concerning casing. The most he did was make an unsuccessful
attempt to get on to the workroom floor to see the mail case which was to be
assigned to him. In any event, the
record clearly establishes that Appellant's casing problems stemmed from his
inability or unwillingness to memorize the system for casing the mail. Rather than learn the existing method
Appellant made a quixotic and unsuccessful attempt to develop a new casing
system.
Thus, Appellant's
abandonment of the contract on August 19, 1987, was inexcusable, and on that day
Respondent had a clear right to terminate the contract for Appellant's failure
to perform. Brooks E. Cook, PSBCA No.
1350, 86-3 BCA ¶ 19,073; James E. White, PSBCA No. 1022, 82-2 BCA ¶
15,896. However, Respondent chose not to
do so. Instead of terminating the
contract on August 9, 1987, Respondent took no action until August 5,
1987, when by letter the Contracting Officer gave Appellant three additional
days in which to resume performance. Its
August 25 letter thus gave Appellant the option to continue performance and waived
Respondent's right to terminate until a time subsequent to August 28. John Michael Hall, PSBCA No. 1311,
(May 15, 1985), citing Cities Service Helex, Inc. v. United States, 211
Ct. Cl. 222, 234-35 (1976); General Dynamics Corp., DOTCAB No. 1232, 83-1
BCA ¶ 16,386. See also Willis Jay
Daniel and Terri A. Daniel, PSBCA No. 1579, 87-2 BCA ¶ 19,829.
Choosing not to incur
termination of his contract, Appellant returned to the Santa Cruz Post Office
early in the morning of August 28, 1987.
Appellant testified that his purpose in returning to the Post Office was
to resume the performance of his contract.
Respondent presented testimony that Appellant showed no intent to resume
performance and instead that his purpose was merely to create a disturbance, as
evidenced by a verbal altercation between Appellant and a supervisor. Appellant's testimony has been accepted as
the more credible in light of the circumstances then existing and the events
that transpired.
Neither the Postmaster
nor supervisory personnel had any knowledge that Appellant had been given the
opportunity by the Contracting Officer to resume performance. His presence in the Post Office early in the
morning on August 28 was unexpected. A
verbal altercation followed. Appellant
was told he was trespassing, was directed to leave, and the police were called,
prompting Appellant's departure.
The altercation appears
to have been the result of postal personnel at Santa Cruz mistakenly believing Appellant to be a
trespasser intent on disturbing the peace, and not the result of any actual
intent by Appellant to disturb the peace.
This holding is further fortified by the subsequent advice by the
Contracting Officer to the Postmaster that the police should not have been
called and by the Contracting Officer's September 3, 1987, conciliatory letter to Appellant giving
him another opportunity to resume performance and "to be given necessary
training to assist you in performing . . . ."
We thus find that
Appellant's failure to perform service on August 28, 1987, was the direct result of Respondent's
refusal to allow him to do so.
Accordingly, his failure to perform on that day was excusable.
Upon receipt on September
9, 1987, of the
Contracting Officer's September 3, 1987, letter, which by its terms gave Appellant
until September 12 to again begin performance (and waived any termination right
until that latter date, John Michael Hall, supra), Appellant
contacted Postal Service Headquarters in an attempt to resolve his
problem. In a subsequent telephone
conference conversation with the General Manager, Surface Contracts Management
Division, and the Contracting Officer Appellant sought assurance that if he
returned to the Santa Cruz Post Office he would not again be subject to arrest. According to Appellant neither individual
gave him that assurance. Respondent
presented no evidence, either written or by testimony at hearing, that
Appellant's version of the conversation was incorrect. Accordingly, it has been accepted as
factually accurate.
Appellant was thus
placed in a dilemma - either return to work and risk arrest or stay away and
face certain default termination action.
He chose the latter. We find the
circumstances then existing and as known to Appellant sufficient to excuse
Appellant's further performance of the contract. In so holding we need not decide the legal
effect, if any, of the Contracting Officer terminating Appellant's contract on September
11, 1987, one day
earlier than the date he gave Appellant to resume contract performance.
The default termination
is converted to a termination for convenience.
The matter is remanded to the parties for negotiation of the amount of
indemnity due Appellant.
The appeal is
sustained.
James D. Finn, Jr.
Administrative
Judge
Vice Chairman
I concur
James A. Cohen
Administrative
Judge
Chairman
I concur
David I. Brochstein
Administrative
Judge
Board Member