August 5, 1991

 

Appeal of

JAMES A. WEIBEL

 

Under Contract No. HCR 95930

PSBCA No. 2960

 

APPEARANCE FOR APPELLANT

James A. Weibel

 

APPEARANCE FOR RESPONDENT

Elena V. Alejandre, Esq.

 

OPINION OF THE BOARD

 

Appellant has appealed from the termination for default of his highway transportation contract.  The appeal was submitted on the record pursuant to 39 C.F.R. § 955.12 and at Appellant's election is being processed under the Board's Accelerated Procedure (39 C.F.R. § 955.36(d)).

FINDINGS OF FACT

1.  On November 9, 1990, Appellant was awarded Highway Transportation Services Contract No. 95930 for the transportation of mail between Marysville and Dunnigan, California, for an approximate four year period beginning November 17, 1990.  The contract rate was $24,800 per year (Appeal File Tab (AF) 1A).

2.  The contract contained PS Form 7407T (March, 1989) "Basic Surface Transportation Services Contract General Provisions" ("General Provisions").  Clause 16 of the General Provisions was entitled "Termination by the Postal Service for Default."  Paragraph (a) (10) of Clause 16 allowed the Contracting Officer to terminate the contract for default "[i]f the contractor's transportation equipment is insufficient, inadequate, or otherwise inappropriate for the service."  (AF 1C).

3.  The contract's "Vehicle Requirements and Specifications" provision required Appellant to provide a vehicle meeting the following requirements:

"The contractor will be required to provide as a minimum the vehicle(s) indicated below:

 

                                          Minimum     Minimum           Minimum           Bed Height

Type of              Number of   Interior         Interior              Interior              From Ground

Vehicle             Vehicle       Length        Width                Height               Minimum     Maximum

 

*Truck               ___1___     _9' 6"_         _7' 6"_              __5'__               _24"_          _36"_

 

*A vehicle such as a parcel delivery van, cut-away van with box, cab & chasis with box or equivalent (AF 1D)."

 

The vehicle's width requirement was a standard dimension (AF 15).

4.  Appellant commenced performance of the contract as required on Saturday, November 17, 1990, with a vehicle which did not meet the contract specifications in regard to minimum interior vehicle width (AF 12, 13).  Appellant was instructed to provide a proper size vehicle by the following Monday, November 19, but failed to do so.  A PS Form 5500 "Contract Route Irregularity Report" was prepared by Respondent on November 19 indicating an unsatisfactory vehicle furnished by Appellant.  A similar report was prepared on Tuesday, November 20, 1991 (AF 6).  Appellant was once more instructed to obtain a proper size vehicle (AF 13).

5.  On Wednesday, November 21, 1991, Appellant again arrived at the Post Office with a vehicle of improper width size (AF 12).  Respondent's representative advised the Contracting Officer by telephone of Appellant's failure to provide a proper size vehicle, and the Contracting Officer thereupon terminated Appellant's contract for default pursuant to Clause 16(a)(10) of the Contract's General Provisions (AF 13, 11).

6.  Subsequent to the termination of Appellant's contract Respondent issued a solicitation for bids for a replacement contract for the same route.  That solicitation contained a minimum interior width requirement for the vehicle of "manufacturer standard" (AF 3).

DECISION

Appellant contends that he was unable to obtain a vehicle with a minimum width of 7'6" as, according to Appellant, such a width is normally associated only with heavy trucks and semi-box trailers.  Appellant further states that he inspected numerous vans throughout northern California and the widths of those vans averaged 6'6".  In effect, Appellant argues that his contract was impossible to perform due to the specified width dimension.  In further support of his argument Appellant relies upon the contents of the contract awarded subsequent to his for the same route which required a minimum vehicle interior width of "manufacturer standard."

We are not persuaded that Appellant's contract was impossible to perform due to the 7'6" vehicle width requirement.  According to a written declaration provided by the Contracting Officer the 7'6" width dimension was considered to be a standard dimension.  The change in language from a specified dimension in Appellant's contract to "manufacturer standard" in the subsequent contract did not constitute a substantive change in the contract's vehicle width requirement.  The Contracting Officer's declaration was supported by attachments consisting of pages from catalogs of commercial vehicles.  Appellant presented no independent evidence in support of his contentions.  Accordingly, Appellant's assertions are rejected.

Appellant's contract was properly terminated for default.  The contract required Appellant to provide a vehicle of certain width size and Appellant failed to do so.  Instead he provided a vehicle of insufficient size.  Appellant has shown no valid excuse for failing to have a vehicle meeting the contract width size capacity on November 17, 1990, the contract commencement date or thereafter.  Appellant thus breached his contract, thereby warranting the default action.  Bowen's Transport Company, PSBCA Nos. 1088, 1089, 1092, 84-1 BCA ¶ 17,217; Gregory Hilderbrand d/b/a Nevertheless Messenger Service, PSBCA No. 1734, 88-3 BCA ¶ 20,833.

The appeal is denied.

James D. Finn, Jr.

Administrative Judge

Vice Chairman

 

I concur

James A. Cohen

Administrative Judge

Chairman