Appeal of
ROGER DEAN BARRETT
Under Contract No. HCR 72666
PSBCA No. 2490
APPEARANCE FOR APPELLANT
Roger Dean Barrett
APPEARANCE FOR RESPONDENT
Patrice R. Dickey, Esq.
OPNION OF THE BOARD
This appeal is from the termination of a highway transportation contract for default because Appellant failed to comply with the Contracting Officer's instructions to deliver accumulated bulk business mail. Respondent has filed a Motion to Dismiss for lack of jurisdiction and lack of authority to grant the injunctive relief requested by the Appellant. The parties agreed to submit their appeal on the record. Therefore, the Motion and the merits of the appeal are considered without an oral hearing.
FINDINGS OF FACT
1. Respondent, United States Postal Service,
awarded contract HCR 72666 to Appellant, Roger Dean Barrett, for a term of
service from
2. In clause 13c of the special provisions, Appellant was expressly required to "load, transport, and unload all classes of mail at the head-out (Yellville Post Office), enroute, and destinating offices." Clause 4, "Service Requirements and Prohibitions," of the contract's "Basic Surface Transportation Services General Provisions" (PS Form 7407, Oct. 1981), provided that 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. . ." Clause 4 also required the contractor to "load and unload mail, and make the exchange of mail as directed by the Contracting Officer" (id.).
3. The contract's General Provisions included a standard "Claims and Disputes" clause (clause 2) implementing the Contract Disputes Act of 1978, as amended, 41 U.S.C. §§ 601-13. By clause 16, "Termination by the Postal Service for Default," the contractor's right to perform could be terminated by the Contracting Officer "(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" (id.). If it was found that the contractor was not in default or if the default was excusable, the contract provided that the rights and obligations of the parties would be the same as a termination for convenience under clause 17, which would include a liquidated damages indemnity under clause 12 (id.).
4. During December 1988 and January 1989, a large amount of bulk business mail to be delivered on Appellant's route accumulated in the Yellville Post Office. Despite repeated oral and written instructions and warnings by the Yellville Postmaster, Appellant refused to deliver that mail (AF C, D, E).
5. In a letter dated
6. On
DECISION
In his Complaint Appellant requests nonmonetary relief as follows: reinstatement of the contract, a full time job with Respondent or job training, letters of recommendation, dismissal of a postal employee for allegedly discriminating against him, and investigation of two post offices for alleged failure to assist contract carriers. He also requests monetary relief totaling $241,000, of which $15,000 relates to wear on his truck due to bad roads on the route, $76,000 "for the contract," and $150,000 for alleged mental anguish caused by a postal employee.
In
the Motion to Dismiss, Respondent contends that Appellant's request for
nonmonetary relief should be dismissed with prejudice as the Board lacks
authority to grant such injunctive relief.
We agree that such mattes are outside the Board's authority and grant
the Motion as to the requested monetary relief.
See Board Order in this appeal dated
Respondent contends subject matter jurisdiction over the appeal is lacking because Appellant's request for monetary relief in his Complaint exceeds $50,000 and has not been presented as a certified claim to the Contracting Officer for decision as required by the Claims and Disputes clause of the contract and by section 6 of the Contract Disputes Act of 1978, as amended, 41 U.S.C. § 605. Respondent requests that the appeal be dismissed without prejudice as to the monetary claim asserted in the Complaint.
By
Board Order of
Appellant's
failure to present a certified monetary claim to the Contracting Officer
pertaining to the default termination does not require dismissal of this
appeal, as requested by Respondent.
Presentation of a claim to the Contracting Officer is not a prerequisite
for the Board to have subject matter jurisdiction over such an appeal. Regardless of any request by the Appellant
for monetary relief, an appeal challenging the propriety of the default
termination is a matter properly before the Board. Malone v.
With respect to the merits of the default termination, Appellant's appeal has been considered to determine if there has been a default and, if so, if the default is excusable as provided by the contract. Clearly, there has been a default by Appellant of some of his contractual obligations. Appellant does not deny that the bulk business mail accumulated. In his Complaint he admits that "third and fourth class mail stacked, thus my dismissal." He makes a number of assertions but most of them concern matters occurring in previous years and/or matters that are irrelevant to the default termination.
Appellant
makes only two assertions which offer any possible excuse for his failure to
deliver the bulk mail. He asserts that
he was not allowed in the Yellville Post Office prior to
As Appellant has not shown that his failure to carry all classes of mail tendered was excusable or that he was justified in not complying with the Contracting Officer's instructions to deliver the accumulated bulk business mail, the contract was properly terminated for default.
Accordingly, Respondent's Motion to Dismiss is denied in part and granted in part as indicated above. Appellant's appeal is dismissed as to any monetary claim or request for relief beyond the Board's authority. As to the default termination, the 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