October 31, 1991
Appeal of
TRIPLE B. TRUCKING
Under Contract No. HCR 73041
PSBCA No. 2939
APPEARANCE FOR APPELLANT
Benjamin B. Booker
APPEARANCE FOR RESPONDENT
Patrice R. Dickey, Esq.
OPINION OF THE BOARD
This appeal is from a decision of the Contracting Officer terminating for default Appellant's highway transportation contract with Respondent, United States Postal Service. The parties have elected to submit the appeal on the record pursuant to 39 C.F.R. § 955.12.
FINDINGS OF FACT
1. On June 16, 1989, Appellant, Triple B. Trucking, a sole proprietorship of Benjamin B. Booker, was awarded contract no. HCR 73041 for highway transportation service of mail between Oklahoma City and Greenfield, Oklahoma, at an annual contract rate of $31,394, for a term beginning July 1, 1989, and ending June 30, 1993 (Appeal File Tab (AF) C). Under the contract Appellant was required to make daily round trips (except Sundays and holidays) between the two cities (id.).
2. Incorporated into the contract were the Basic Surface Transportation Service Contract General Provisions, PS Form 7407, March 1989 (AF C). Clause 5, Safety Requirements, required the contractor to comply with all applicable State laws and regulations. Paragraph (a) (Drivers) provided in part at follows:
"Drivers must be properly licensed for the vehicle(s) used in the performance of service under this contract."
Clause 16, Termination by the Postal Service for Default, provided in part as follows:
"(a) The Contracting Officer may terminate this contract for default:
(1) For Contractor's failure to perform service according to the terms of the contract.
* * * * *
(c) If, after notice of termination of this contract under the provisions of this Clause, it is determined for any reason that the Contractor was not in default under the provisions of this Clause, or that the default was excusable, the rights and obligations of the parties shall be the same as if the notice of termination has been issue pursuant to Clause 17."
Clause 17, Termination for Convenience, specifies that, if terminated under that section, a highway transportation contractor would be entitled to an indemnity as specified in Clause 12(d).
3. Commencing on October 9, 1990, and continuing thereafter, Appellant failed to operate the daily trips required by the contract (AF A pp. 12-14).
4. By letter dated October 15, 1990, the Contracting Officer (CO) notified Appellant that his right to perform under the contract was suspended, and that Appellant was directed to meet with the CO not later than October 19, 1990 (AF A p. 8). In that letter Appellant was notified that it was his responsibility to provide information "that would prevent termination of your route for default," and that failure to appear for the meeting with the CO would result in termination (id.).
5. On October 18, 1990, a transportation specialist in Respondent's Oklahoma City facility received a telephone call from Appellant's father, Edmond Booker. During that call Mr. Booker stated that his son (Appellant) was in jail. Mr. Booker offered to perform the services required by the contract during his son's absence, provided the contract could be transferred to his name. (AF A p. 6; Affdvt. Lawrence A. Wasson, June 28, 1991).
6. Respondent's officials declined Edmond Booker's offer and proceeded with termination of the contract (id.). The CO in a final decision dated November 1, 1990, terminated Appellant's contract effective the close of business October 10, 1990, based on Appellant's failure to perform contractual obligations and discontinuance of service (AF A p. 4; AF B).
7. Appellant's license as a commercial chauffeur in the State of Oklahoma was cancelled on June 4, 1990, and not reinstated until November 19, 1990 (AF A p. 3).
DECISION
In appealing from the default termination of his contract Appellant states that he was stopped by a State highway patrolman on his way to the Postal facility and arrested when it was discovered his operator's license had been suspended. According to Appellant, his license was suspended because he failed to submit to the licensing authorities an annual report on an existing medical condition. Appellant maintains that because he was unable to provide a bond and was incarcerated for 16 days he was unable to operate his route, but that he had no intention to abandon it. He further states his problem resulted from human error and refers to his work as a Postal Service contractor for the previous 10 years. Appellant requests to have his route restored to him.
Respondent contends that Appellant failed to perform required service under the contract and further that he had been operating his vehicle without a proper license for several months prior to his apprehension. Respondent adds that Appellant has not presented any evidence that would excuse his failure to perform. Respondent also has filed a Motion to Dismiss, contending that Appellant is seeking reinstatement of the contract, a remedy the Board is without authority to grant.
Although it is true this Board lacks authority to order reinstatement of contracts, it has jurisdiction to determine the propriety of a default termination. If a default termination is found to be improper, it may be converted to a termination for convenience (under Clause 17) with the specified indemnity provided in Clause 12(d) as stipulated damages. Stanley Myrle, PSBCA No. 1674, 88-1 BCA ¶ 20,239 (and cases cited therein).
It is undisputed that after his arrest on October 9, 1990, Appellant failed to perform his contractual obligations. As Respondent argues, once failure to perform in accordance with the contract is established, the burden shifts to Appellant to present evidence that the non-performance was excusable. See e.g., Lawrence D. Bane, PSBCA Nos. 1440, 1491, 86-2 BCA ¶ 18,997.
None of the reasons related by Appellant provides an excuse for his non-performance. His incarceration was caused by the lack of a proper license to operate the vehicle (a violation of the terms of the contract), which he claims resulted from his failure to submit required medical documentation to State licensing officials. Such matters were clearly within Appellant's control and the problem would not have occurred without Appellant's fault or negligence. Moreover, circumstances involving the jailing of a Postal Service contractor will not normally excuse the ensuing non-performance. See Jerry M. Armstrong, PSBCA No. 1602, 87-3 BCA ¶ 20,081.
Nor does the offer made by his father approximately nine days after Appellant's initial failure to perform provide any basis for setting aside the default termination. Respondent was not obligated to (and there is some doubt whether it could, consistent with contracting procedures), transfer the contract to Appellant's father.
Accordingly, the appeal 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