Appeal of
ODI TRANSPORTATION
Under Contract No. HCR 5338
PSBCA No. 3157
APPEARANCE FOR APPELLANT
Anthony D. Pollasky
APPEARANCE FOR RESPONDENT
Nancy E. Slovik, Esq.
OPINION OF THE BOARD
This appeal is from a Contracting Officer decision terminating for default Appellant's right to perform its highway transportation contract with the United States Postal Service.
FINDINGS OF FACT
1.
On
2. Incorporated into the contract was PS Form 7407T, "Basic Surface Transportation Services Contract General Provisions," which included the following:
"4. SERVICE REQUIREMENTS AND PROHIBITIONS. -- (a) The Contractor shall carry all mail tendered for transportation under this contract, whatever may be its size and weight, with certainty, celerity, and security, in accordance with the operating schedule and between the points fixed in the solicitation."
* * *
8. ACCOUNTABILITY OF THE CONTRACTOR
(a) The contractor will give either personal or representative supervision over the operation of the route and must be easily contacted in the event of emergencies, to give personal or representative attention to the problem at hand."
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16. TERMINATION BY THE POSTAL SERVICE FOR DEFAULT.
(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 A-22, A-26, A-28).
3. Between April 7, 1990, and January 12, 1991, Respondent issued to Appellant 19 reports of irregularities in contract performance (PS Forms 5500): during the calendar year 1990 on April 7, 10 and 28, May 5, June 30, July 6, 18, and 28, August 27, November 27, December 15, 22 (3 reports), 23 (2 reports), and 29 (2 reports); and on January 12, 1991 (Stip ¶ 4; AF E-110, Supplemental Appeal File Tab (SAF) 7). Of the 18 irregularity reports which were issued to Appellant for the approximately nine-month period of performance in 1990, seven incidents involved late arrivals, one was for omitted service ("no show"), and there were 10 instances of misdeliveries of mail (id.).
4. On
5. Thereafter, between
6. On
7. Thereafter, between
8. On
9. In a letter dated
10. Thereafter, between the dates
of November 5 and
11. During the year 1991, until
12. A major snow storm which left an accumulation of approximately 27
inches of snow struck the Minneapolis-St. Paul vicinity on October 31 -
13. The Postal Service officials who reviewed contract performance
evaluated Appellant's performance as very poor, much worse than other
contractors (Tr 45, 66-67, 69, 112, 178).
A major factor in Appellant's poor performance involved the frequent
firing and hiring of new, untrained drivers (Tr 27-28, 256).
14. The contractors who immediately preceded and succeeded Appellant on
the route were able to perform the contract without the use of special
equipment on a timely basis, frequently finishing early (Tr 33, 76, 112,
120-121, 139, 164-65; SAF 3).
15. In a final decision dated
November 21, 1991, the Contracting Officer terminated the contract for default
pursuant to General Provision 16 (a)(1) of the contract. The letter cited nine instances of failure to
comply with contract provisions in the month of November 1991. (Stip ¶ 12; AF C-62, 63). The Contracting Officer characterized these
irregularities as the "final straw" in a long-standing pattern of
deficiencies, about which attempts at corrective action had been unavailing,
with continued deterioration of contract performance (Tr 171, 173-74).
16. Appellant filed a timely
Notice of Appeal (AF D-66).
DECISION
In this appeal Appellant's position, as enunciated by its president, is
that he did his best under difficult and trying circumstances. He contends that a number of the PS Forms
5500, Reports of Contract Route Irregularities, were erroneously issued and
should not be considered as grounds for a default termination. He asserts that contract irregularities
reflected in the PS Forms 5500 issued for late performance in November 1991
immediately prior to the termination should have been excused because of
adverse road conditions caused by a massive snow storm in the Minneapolis-St.
Paul area on October 31 -
Respondent argues that Appellant's performance throughout the contract
period was uniformly poor and that Respondent was justified in terminating the contract
for default. Respondent further
maintains (without conceding the facts) that even if as many as 50 percent of
the PS Forms 5500 were excusable, Appellant still accumulated far more
irregularities than any other contractor in that area, and the deficiencies
would justify termination.
The record in this appeal shows that throughout the duration of the
contract Appellant's operations were beset with problems, which resulted in
sub-standard performance. Even with
three fewer contract irregularities which we have found to be excusable (see
Finding 11), Appellant's deficiencies in contract performance (as represented
by approximately 38 PS Forms 5500 over a period of slightly more than 19
months) were greatly in excess of the deficiencies of other highway
transportation contractors operating in the Minneapolis area (Findings 3,
11). Despite the counseling sessions and
warnings issued by Respondent, Appellant was unable to improve its performance
and bring it to a satisfactory level.
Appellant has made various contentions concerning problems or conditions
which affected its performance and were allegedly beyond its control. These contentions, such as weather
conditions, difficulties in operating the route without special equipment, and
restrictive conditions on the route impeding Appellant's ability to meet the
schedule, have been refuted by evidence that other contractors were able to
perform the route without special equipment and in a timely fashion. The record also demonstrates that, except for
Appellant, all other contractors in the
Therefore, the contract irregularities charged in November 1991 which
provided the "final straw" basis for the default termination (see
Finding 15) were not excusable and were properly charged against Appellant.
We conclude that the evidence amply establishes that the Contracting
Officer properly exercised his discretion in terminating for default Appellant's
contract. 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