November 6, 1992

Appeal of

JOHN W. BRADBARY

 

Under Contract No. 010780-89-S-0163

PSBCA No. 3126

 

APPEARANCE FOR APPELLANT

Frank C. Ingraham, Esq.

 

APPEARANCE FOR RESPONDENT

Judith L. Schlossberg, Esq.

 

OPINION OF THE BOARD

This appeal is from a final decision of a Contracting Officer directing Appellant to reimburse the Postal Service $602.33 for a shortage found at his contract station.

FINDINGS OF FACT

1.  On January 28, 1982, Appellant, John W. Bradbary, was awarded Contract No. 010780-89-S-0163 by Respondent, United States Postal Service (Appeal File Tab (AF) H1).  Under the contract Appellant was to operate a Contract Postal Unit, or a Contract Station, in Decatur, Alabama (id).

2.  Incorporated in the contract was PS Form 7369, General Provisions for Contract Stations, Contract Branches and Community Post Offices (AF H1).  Clause 9, Postal Service-Furnished Property, provided as follows:

            "(a) The Postal Service shall supply the Contractor for use in connection with this contract the materials and equipment listed on the specification requirements, Form 7311.

 

(b) Unless otherwise provided in this contract the Contractor, upon delivery to him of any Postal Service-furnished property, assumes the risk of, and shall be responsible for, any loss thereof or damage thereto except for reasonable wear and tear, except to the extent that such property is consumed in the performance of this contract."  Id.

 

3.  The Specification Requirements, PS Form 7311, Apr. 1979, of the contract stated in paragraph 9 that the Postal Service would furnish "money order machine, scales, postmarking equipment and small misc. supplies: (AF H1).  Paragraphs 18, 19, and 20 stated as follows:

            "18. The contractor shall be personally responsible, accountable, and answerable for the faithful performance and discharge of all duties and obligations assumed by him in this contract, whether or not he personally conducts the Contract Unit.  The contractor shall be chargeable with all acts and omissions of his employees who assist in the conduct of the Contract Unit.

 

            19. All moneys received from the operation of the Contract Unit are property of the U. S. Postal Service, and not the property of the contractor.  Such monies shall not be commingled with personal or other funds of the contractor, and shall not be used for any purpose other than in connection with the postal duties and functions of the Contract Unit.  The contractor shall account for such monies at the close of each day's business.

 

            20. During periods when the Contract Unit is closed, or is unattended for any reason, all monies and postage supplies, including money order forms, shall be kept in the safe, which must be securely locked by at least three complete turns of the combination dial.  Envelope and postal card stock may be kept in a suitable cabinet, provided that it is kept locked."  Id.

 

4.  Appellant was also required by the contract (GP 17 and 3 of the Specification Requirements) to obtain a performance bond in the amount of $15,000 (AF H1).

5.  At some time between the hours of 10:30 P.M. October 1, 1990, and 12:05 A.M. October 2, 1990, unknown persons burglarized the Contract Postal Unit (AF G1, G2).  After the safe was removed to the back of the station a small hole was cut through the bottom of the safe (id.).  Because of the existence of a shelf separating the top and bottom portions of the safe, $1,642.14 in cash, $7,748.21 in postage, 591 money orders, and the money order machine were not disturbed in the safe and were recovered, along with postage stamps worth $2,280 found outside the safe (AF G1).  However, an audit of the Contract Station conducted the following day disclosed a shortage of $602.33 (id.; AF E1).

6.  A letter of demand dated October 9, 1990, was sent to Appellant requesting that he remit $602.33 to the Postal Service (AF E1).

7.  Thereafter, Appellant made requests for waiver of the payment of the amount demanded (AF C2, D1, E2).

8.  Respondent's officials denied Appellant's requests for waiver and directed him to remit the amount demanded (AF C1, D2).

9.  In a letter of final decision dated August 14, 1991, the Contracting Officer notified Appellant that he must repay $602.33, the amount of the shortage found after the burglary, to the Postal Service (AF B1).

10. Appellant thereafter filed a timely appeal (AF B2).

DECISION

Appellant has filed no brief or supplemental evidence in this appeal.  In his Complaint he asserts that the matter of a burglary or armed robbery is not covered in his contract.  Appellant argues that he should not have to repay the missing funds since they were taken in a burglary and all of the money and accountable stock had been properly secured and locked in a safe.

Respondent argues that under the contract Appellant assumed the risk of all loses and bore responsibility to reimburse Respondent for any loss.  Respondent contends the contract provisions make Appellant personally accountable and liable for all shortages of postal stock and money, citing Clines Office Products, PSBCA No. 3045, 92-1 BCA ¶ 24,725, and Jaehee Yoshimoto, PSBCA Nos. 2315, 2749, 92-1 BCA ¶ 24,504.

Although the cause of the loss in this appeal is not certain, the evidence indicates that the loss was most probably caused by the burglary (see Finding 5).  As Respondent correctly argues, the Board in Clines and Yoshimoto applied a rule of strict liability and held contractors liable for losses from causes beyond their control, based on the language of clauses similar to those used in this contract (see Finding 2).  In Clines the loss had occurred as a result of a burglary.

in Maude Ellen Thacker, PSBCA No. 2923, 92-3 BCA ¶ 25,093, the Board recognized a possible exception to the rule imposing strict liability on a contractor.  In that appeal it was noted that in addition to the contract clauses relied on in Clines and Yoshimoto, the contract contained Clause 20 of PS Form 7311 (also present in this contract, see Finding 3), which required the contractor to keep "monies and postage supplies" in a securely locked safe at any time the Contract Postal Unit was closed or otherwise unattended.  Such a specific requirement for safeguarding funds was said to have created an ambiguity in the contract in that there were two reasonable interpretations of the contract provisions related to the contractor's liability for Postal Service property.  Because of unresolved facts concerning the contractor's interpretation and her reliance on that interpretation when bidding, the Board in Thacker denied Respondent's Motion for Summary Judgment.

In this appeal Appellant has presented no facts as to his interpretation or his reliance on that interpretation when bidding.  Therefore, Appellant has failed to carry his burden of proving his reliance on an interpretation of ambiguous provisions.  See Fruin-Colnon Corp. v. United States, 912 F.2d 1426, 1432 (Fed. Cir. 1990).  Moreover, there is no other evidence which would exonerate Appellant from liability.

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