June 29, 1992

Appeal of

RODNEY MCCOY

 

Under Contract No. HCR 71262

PSBCA Nos. 2990, 3046

 

OPINION OF THE BOARD

 

This appeal is taken from a Contracting Officer's decision terminating Appellant's highway transportation contract for default.  At the request of the parties a hearing was held.

FINDINGS OF FACT

1.  Contract NO. HCR 71262 for highway transportation services between Winnsboro and Matthew's Corner, Louisiana, was awarded to Appellant, Rodney McCoy, on June 22, 1987, for a four year period commencing on July 1, 1987.  The annual amount of the contract was $23,495 (Appeal File (AF)-C).

2.  The contract contained the usual "Claims and Disputes" clause in its General Provisions (PS Form 7407, Oct. 1986).  Also included in the General Provisions was a "Termination by the Postal Service for Default" clause which provided in part:

   *(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."  (AF-C)

 

3.  Sometime prior to March 16, 1991, Appellant spoke with Respondent's transportation specialist, advising the transportation specialist that Appellant had a personal problem and wanted to have the contract transferred to his relief driver, Linda Haywood.  Appellant was going into the hospital on March 20 for a month and thus wanted Ms. Haywood to perform the contract and be paid directly by Respondent (Transcript (Tr.) 7-9; AF-G).  Ms. Haywood wanted direct payment from Respondent since payment to Appellant included a deduction for child support and it would not have been profitable for her to perform the contract with that payment deduction (AF-E 4, 5).  The transportation specialist advised Appellant that payment could not be made directly to Ms. Haywood and that Appellant should speak with the Contracting Officer at a Star Route Association meeting which Appellant planned to attend in Baton Rouge, Louisiana, on March 16, 1991 (Tr. 8(.

4.  Appellant attended the meeting in Baton Rouge as scheduled on March 16.  At that time he spoke with the Contracting Officer.  He advised the Contracting Officer that he was unable to get anyone to operate his route during the impending period of his hospitalization and therefore that he would have to give up the route.  The Contracting Officer in turn advised Appellant that under the circumstances presented Appellant's contract would be terminated for anticipatory breach of contract )AF-G; Tr. 23, 24).  The latter conversation partially took place in front of a third party (Tr. 38-40).

5.  As a result of the conversations with Appellant pertaining to Appellant's inability to continue to perform the contract the Contracting Officer advised the transportation specialist to terminate Appellant's contract (Tr. 5, 27).  On the afternoon of March 20, 1991, the day Appellant entered the hospital, the Postmaster at Winnsboro, Louisiana, advised Appellant's driver (Ms. Haywood) and substitute driver (Appellant's sister), both of whom had reported to the post office to perform the contract route that day, that the contract had been terminated as of March 21, 1991 (AF-E; Tr. 43, 57, 58).  Emergency contracts thereafter were given to others to perform the route (Tr. 44).

6.  A letter of contract termination in the form of a final decision was issued by the Contracting Officer on April 11, 1991.  The letter stated that "Your right to perform service on this route is terminated under clause 16(a)(1) of the . . . General Provisions . . . for failure to continue service on March 31, 1991."  (AF-B).  Appellant appealed.[1]

DECISION

Appellant contends that the termination action was improper as Appellant never failed to perform service under the contract - the reason given by the Contracting Officer as the basis for termination, (clause 16(a)(1) of the Contract's General Provisions).  Appellant alleges that he was prevented from performing the contract when on March 20, 1991, the Winnsboro Postmaster told Appellant's two drivers not to report the next day as the contract had been terminated.  As an adjunct to its arguments Appellant states that nowhere in the termination letter was anticipatory breach mentioned (the basis discussed between the parties on March 16 for the proposed termination action).

Appellant's arguments are without merit.  At least twice at the meeting in Baton Rouge on March 16, 1991, Appellant unequivocally communicated his intent not to perform his contract after he went into the hospital on March 20, 1991.  His expressed intent not to perform after the March 20 date constituted an anticipatory breach of contract which justified the termination action.  K C Dodge, Inc., PSBCA No. 1748, 88-3 BCA ¶ 20,947; Lawrence D. Bane, PSBCA No. 1440, 86-2 BCA ¶ 18,997.  Thus, the Contracting Officer properly advised the transportation specialist to commence the termination and Appellant's drivers were advised of the termination on March 20, 1991.

At no time subsequent to the March 16, 1991, meeting with the Contracting Officer did Appellant ever state that he had changed his mind and would be able to perform after March 20.  Nor does the record support a finding that Appellant's drivers would have continued to operate the route after that date, as the record contains a sworn statement from Ms. Haywood that it would not be profitable for her to perform the contract during Appellant's absence unless direct payment was made to her from Respondent.  Appellant's request in that regard had already been refused, however.

Finally, in his final decision letter the Contracting Officer properly relied on paragraph 16(a)(1) of the Contract's General Provisions as the basis for the termination.  Appellant's statement that he could not perform the contract after March 20 constituted a "failure to perform service" pursuant to paragraph 16(a)(1).  The default action was properly taken.  The appeals are denied.

 

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