November 16, 1992
Appeal of
PAUL C. POPIEL
Under Contract No. HCR 48676
PSBCA No. 3150
APPEARANCE FOR APPELLANT
Paul C. Popiel
APPEARANCE FOR RESPONDENT
Maria T. Robinson, Esq.
OPINION OF THE BOARD
Appellant, Paul C. Popiel, has
appealed the default termination of his contract for the delivery of mail on a
route in the vicinity of Sentinel Butte, North Dakota. The appeal is being decided on the record in
accordance with 39 C.F.R. ¶955.12.
FINDINGS OF FACT
1.
On May 29, 1991,
Appellant was awarded a contract for the delivery of mail along a route
beginning and ending at the Sentinel Butte, North Dakota, Post office. The term of the contract was June 8, 1991, through June 30, 1992. (Appeal File Tab (AF) A).
2.
The contract schedule required Appellant to report to the post office at
8:15 a.m. and depart on the delivery route at 9:00 a.m.
Appellant was scheduled to return to the post office at 12:10 p.m. on Mondays, Wednesdays, and Fridays
and at 12:30 p.m. on Tuesdays,
Thursdays, and Saturdays (id.).
The record contains no evidence of any changes to the original schedule.
3.
Contract general provision 16, "Termination by the Postal Service
for Default," provided that the Contracting Officer could terminate the
contract for default:
"(1)
For Contractor's failure to perform service according to the terms of the contract;…." (id.)
4.
The contract required Appellant to undergo a screening process and to
provide a full-face, color photograph for Respondent's use in preparing a
permanent identification badge (id.).
5.
The contract also required Appellant to provide, as a minimum, a
passenger car with a 75 cubic foot capacity and to present the vehicle for
inspection at a place and time designated by the Contracting Officer or his
representative (id.).
6.
On June 28, 1992,
the first day of performance, the Sentinel Butte Postmaster inspected
Appellant's vehicle. He concluded that
the vehicle did not meet the 75-cubic-foot capacity requirement and that
certain safety items (fire extinguisher, tire chains, and warning devices
(flares, lights, or flags)) were inadequate or missing. He found the vehicle's operational equipment
to be acceptable. No objection was
raised to the fact that the vehicle was a pickup truck rather than a passenger
car. (AF D(62)).
7.
Between June 8 and September
10, 1991, a number of PS Forms 5500, "Contract Route
Irregularity Report," were issued to Appellant by the Sentinel Butte
Postmaster. They alleged irregularities
such as late arrival, refusal to allow inspection of Appellant's vehicle,
failure of the vehicle to meet the 75 cubic-foot requirement, harassment of the
postmaster, and being disruptive. (AF D
(61-70, 74)).
8.
In a letter to Appellant dated September
12, 1991, the Contracting Officer, referring to reports by the
postmaster of disturbances created by Appellant, directed Appellant to attend a
conference at the Sentinel Butte Post Office on October 3, 1991, to discuss the matter (AF D (71)).
9.
On October 3, 1991,
the conference was held with Appellant at which several of Respondent's
personnel were in attendance. Topics of
discussion included harassment of postal personnel, failure to adhere to the
contract schedule and to comply with requirements such as using timecards, providing
a photograph for his identification badge, and failing to allow vehicle
inspection. Appellant was advised that
if he failed to take corrective action "within days" and maintain
satisfactory service, the case would be forwarded to the Contracting Officer
for action, including an assessment of damages and/or contract
termination. (AF D (75)).
10. On October 21, 1991, the Sentinel Butte Postmaster
issued another Form 5500 to Appellant, stating that Appellant had arrived at 12:09 rather than 11:45 and that he had failed to provide the photograph
required for his identification badge (AF D (77)).
11. In a letter to Appellant dated October 25, 1991, the postmaster
warned Appellant that service had not improved since the October 3, 1991, conference. The postmaster referred to a list of Forms
5500 issued since that date. However,
neither the list nor the 5500's are in the record. The postmaster warned Appellant that if
service did not improve within three days, the matter would be referred to the
Contracting Officer for action. (AF D
(79)).
12. On October 25, 1991, the postmaster also issued
another Form 5500 to Appellant, stating that Appellant still had failed to
provide a photograph meeting the requirements for a permanent identification
badge. Appellant was also cited for
harassing the postmaster. (AF D (79)).
13. On October 28, 1991, Appellant contacted the Contracting
Officer by telephone. The Contracting
Officer reported, in a contemporaneous "memo for the record," that
Appellant stated the requirement for him to provide a photograph was being used
as a form of petty harassment. According
to the Contracting Officer, Appellant stated the Contracting Officer could
"take the route" and find somebody else with a "picture"
for the badge and, when asked if he would no longer operate the route,
Appellant replied yes, "find somebody else." The Contracting Officer stated he asked
Appellant to put this in writing and that Appellant stated he would. No such document appears in the record. In an unsworn statement filed with the Board
on July 10, 1992, Appellant
argued that the Contracting Officer ordered him not to return unless he
provided a picture of himself which met management approval, notwithstanding
the fact that, according to Appellant, he had previously provided suitable photographs. (AF D (80); Declaration of Jim Lillie, dated
July 9, 1992; Statement of Paul Popiel, dated July 2, 1992).
14. In a final decision dated October 29, 1991, the Contracting
Officer terminated the contract for default, based on his conversation with
Appellant on October 28, 1991
(AF B, C). In January 1992 Appellant
filed an appeal with this Board.
DECISION
Respondent argues that there are
two bases which support the termination of Appellant's contract for
default. Respondent argues that
Appellant's contract performance was unsatisfactory, as evidenced by the Forms
5500 (Contract Route Irregularity Report) issued for late arrivals, failure to
have his vehicle inspected, failure to provide a suitable vehicle, harassment
of Postal Service personnel, and failure to provide a suitable photograph for
his identification badge. Respondent
also contends that during the October
28, 1991, conversation with the Contracting Officer, Appellant
stated that he would no longer operate the route, thereby justifying the termination
on the basis of anticipatory repudiation of the contract.
With respect to the suitability of
his vehicle, Appellant, who used a pickup truck, argues that he previously used
the same type of vehicle with no objections when he was a rural carrier on the
same route. Appellant states that the
present carrier also uses the same make and model. As to failing to meet the schedule, Appellant
argues that the schedule required him to drive too fast over poor roads and
that, in any event, the mail was not scheduled for dispatch from the post
office for over four hours after his scheduled return time. Appellant also denies that he harassed the
Sentinel Butte Postmaster, alleging instead that he was the subject of
harassment by the postmaster, including the solicitation of letters of
complaint from people not even served by Appellant's route.
Disputing the alleged abandonment
of the contract, Appellant contends that he was ordered not to return to
operate the route. Specifically,
Appellant contends that he was ordered not to return unless he provided a
photograph which met management approval.
Appellant also contends that the requirement for a photograph was used
by Respondent's personnel as a form of petty harassment.
We are persuaded that Appellant
repudiated the contract and, therefore, that the termination for default was
proper. This Board has held that a
statement by a contractor indicating intent to halt service on a contract route
is sufficient to warrant a default termination of the contract, unless there is
a justifiable reason for halting service.
Lawrence D. Bane,
PSBCA Nos. 1440, 1441, 86-2 BCA ¶
18,997; B & E Mail Transport, Inc., PSBCA Nos. 971, 973, 974, 82-2
BCA ¶ 15,965. See also James
E. White, PSBCA No. 1022, 82-2 BCA 15,986; Hoyt Brothers Trucking, Inc.,
PSBCA No. 931, 1981 WL 7674 (June 24, 1981).
In this instance, providing a photograph for a permanent ID card, which
apparently precipitated Appellant's conversation with the Contracting Officer,
was an unambiguous contract requirement.
The Contracting Officer reported that his conversation with Appellant
included a discussion of the requirement for a photograph but that Appellant
then stated that he would not operate the route and that the Contracting
Officer should "find someone else."
Based on the Contracting Officer's contemporaneous memorandum and
Appellant's failure to deny that portion of the conversation, we conclude that
the Contracting Officer accurately reported the conversation. Even if, as argued by Appellant, the
Contracting Officer ordered Appellant not to return without the photograph,
Appellant's statement that he would not operate the route was not
justifiable. The topic of the ID
photograph had been covered in the conference held more than three weeks
earlier. Based on that conference and on
the issuance of at least two additional Forms 5500 referring to the missing
photograph, Appellant was well aware that the photograph was required. Appellant has provided no persuasive evidence
that the requirement was being unreasonably applied to him or that he was being
singled out for enforcement. He has also
provided no persuasive evidence to support his allegation that he had submitted
suitable photographs. We conclude that
the record does not provide any justification for Appellant's statement that he
would not operate the route and, therefore, the Contracting Officer properly
exercised his discretion to terminate the contract for default.
Since we have concluded that the termination for default was proper, we
need not consider the allegations of unsatisfactory performance which
Respondent argues also support its decision to terminate the contract. Accordingly, the appeal is denied.
David I. Brochstein
Administrative
Judge
Board Member
I concur
James A. Cohen
Administrative
Judge
Chairman
James D. Finn, Jr.
Administrative
Judge
Vice Chairman