April 13, 1993
Appeal of
HOMER J. SAPPINGTON
Under Contract No. HCR 73017
PSBCA No. 3162
APPEARANCE FOR APPELLANT:
Homer J. Sappington
APPEARANCE FOR RESPONDENT:
Judith L. Schlossberg, Esq.
OPINION OF THE BOARD
Appellant has timely filed an appeal from a decision of a Contracting Officer terminating his highway transportation contract for default. The appeal is being decided on the record without a hearing at the parties' election.
Findings of Fact
1. Contract No. HCR 73017 was awarded to Appellant, Homer J. Sappington, on October 3, 1991, for a term beginning October 7, 1991 and ending June 30, 1995. Under the contract Appellant was to provide highway
transportation services between Oklahoma City and Lawton, Oklahoma at an annual rate of $26,555 (Appeal File (AF)-C).
2. The contract required Appellant to provide a vehicle (truck) with a minimum interior length of 22 feet, a minimum interior width of 7.5 feet and a minimum interior height of 7.5 feet (AF-C).
3. The Contract's General Provisions (PS Form 7407T, March 1989) contained as paragraph 16 a "Termination By The Postal Service For Default" provision which stated that:
"(a) The Contracting Officer may terminate this contract for default:
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(10) If the Contractor's transportation equipment is insufficient, inadequate, or otherwise inappropriate for service." (AF-A)
4. On October 4, 1991, Appellant and Respondent's transportation specialist either met or spoke over the telephone regarding the size of the vehicle that Appellant was going to utilize to perform the contract. The record contains conflicting statements as to the substance of the conversation. It is Appellant's recollection that he advised the transportation specialist that the vehicle would not comply with the specified 7.5 foot contract height requirement, but would comply with the 22 foot length requirement and that the specialist approved Appellant's proposed purchase of the vehicle. The transportation specialist recalls only being assured by Respondent that the interior cubic footage of the vehicle met the contract requirements. In a declaration he states that no mention was made of the interior height measurement (AF-A).
5. On October 11, 1991, the transportation specialist advised Appellant that the vehicle did not comply with the contract height specification. Appellant thus was unable to double stack certain containers and therefore could not fully perform the contract requirements. The parties agreed that Appellant would act to comply with the height specification within two weeks (AF-B).
6. By November 22, 1991, Appellant still had not provided a vehicle which met the specified 7.5 foot height requirement. Thus, on that date the Contracting Officer wrote Appellant and directed him to comply with the contract specifications within five days from receipt of the letter or face possible termination for default of the contract (AF-B).
7. Appellant did not comply with the Contracting Officer's direction and on December 2, 1991, the Contracting Officer issued a final decision terminating Appellant's contract for default for failure to comply with the contract specifications (AF-A). This appeal followed.
Decision
Appellant challenges the default termination on two grounds - (1) that Respondent's representative on October 4, 1991, approved the use by Appellant of a vehicle which did not comply with the contract height requirements, and (2) that Appellant was not given thirty (30) days advance notice of the termination action.
Appellant's first argument is not supported by the record. We are not persuaded that Respondent's transportation specialist on October 4, 1991, would have approved the use of a vehicle with a height which deviated from the contract requirements and then on October 11, 1991, brought to Appellant's attention the fact of such deviation.[1] Rather we accept the transportation specialist's version of the October 4, 1991, communication between the parties in which Appellant assured Respondent that the interior cubic footage of the vehicle met the contract requirements, but made no mention of the interior height measurement of the vehicle.
We thus find that Appellant without approval by Respondent provided a vehicle for use under his contract which deviated from the interior height requirement of the contract. Appellant's contract therefore was properly terminated for default. Appellant has shown no valid excuse for failing to provide a vehicle meeting the contract height requirement. Appellant thus breached his contract, thereby warranting the default action. James A. Weibel, PSBCA No. 2960, 91-3 BCA ¶ 24,268; citing Bowman'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.
Appellant's contention that he was not afforded thirty (30) days advance notice of the default provides no basis for relief. Appellant has cited no contractual provision requiring an advance notice to terminate for default and we can find none. F. W. H. Motor Transit, Inc., PSBCA No. 1317, July 30, 1985, recon. denied Nov. 22, 1985.
The appeal is 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