October 4, 1993
Appeal of
PATRICIA J. STEVENS
Under Contract No. HCR 84077
PSBCA No. 3272
APPEARANCE FOR APPELLANT:
Patricia J. Stevens
APPEARANCE FOR RESPONDENT:
Harold E. Durham, Esq.
OPINION OF THE BOARD
Appellant, Patricia J. Stevens, has appealed the default termination of her highway transportation contract with the United States Postal Service, Respondent. This appeal is being decided on the record pursuant to 39 C.F.R. § 955.12.
FINDINGS OF FACT
1. On June 12, 1991, the Postal Service awarded contract HCR 84077 to Appellant for delivery and collection of mail on a highway contract route in Park City, Utah. The term of the contract was to run from July 1, 1991, to June 30, 1993 (Appeal File Tab ("AF") 8).
2. The contract specified that Appellant would serve 290 delivery boxes and receive annual compensation of $12,977 (AF 8). By amendments to the contract, the number of boxes served was increased to 458 and the annual compensation to $17,370 (AF 1, 7). There were actually 481 boxes served by the route at the time the contract was terminated in June of 1992 (Appellant's supplemental evidence filed February 8, 1993, Exhibits ("Supp. Exhs.") 11, 12).
3. The contractor was required to deliver mail into customers' mail boxes (AF 8, "Basic Surface Transportation Services Contract General Provisions," PS Form 7407T, November 1988, paragraph ("GP") 4 (b)(1)(i), Contract Section 13 E, Contract Attachment B) and collect outgoing mail (AF 8, GP 4 (b)(1)(iii), Contract Attachment B) and "carry all mail tendered for transportation under this contract, whatever may be its size and weight, with certainty, celerity, and security." (AF 8, GP 4(a)).
4. The contract required that Appellant "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" (AF 8, GP 8 (a), Contract Section 19 A). The contractor remained responsible "for the faithful performance of the obligations assumed by him under this contract, whether or not he has entrusted the care and transportation of the mail to another." (AF 8, GP 8 (b)).
5. The contract was subject to termination for default by the contracting officer "[f]or Contractor's failure to perform service according to the terms of the contract." (AF 8, GP 16 (a)(1)).
6. The termination for default provision of the contract provided:
"If, after notice of termination of this contract under the provisions of this Clause, it is determined for any reason that the Contractor was not in default under the provisions of this Clause, or that the default was excusable, the rights and obligations of the parties shall be the same as if the notice of termination has been issued pursuant to Clause 17." (AF 8, GP 12 (c)).
7. The contractor's sole remedy in the event of a termination for convenience during the first two years of performance was an indemnity payment equal to one-third of the annual rate under the contract (AF 8, GP 17, GP 12 (d)(1)).
8. The schedule for the route, as set forth in the original contract, required Appellant to depart the Park City Post Office by 10:00 a.m. and return to the post office at 1:00 p.m. (AF 8, Contract Attachment B). Through amendments recognizing the additional boxes on the route, the return time was adjusted to 1:50 p.m. before June, 1992 (AF 1, 7 p. 9).
9. To perform the route, Appellant customarily arrived at the post office at 7:30 a.m. to case the mail. Her husband arrived between 10:15 and 10:30 a.m., at which time they would load and depart in two vehicles to deliver the route. Appellant returned to the post office between 12:00 and 12:30 p.m. to case the third class mail for the next day, and her husband returned between 1:30 and 2:00 p.m. (Supp. Exh. 1 ¶ I (1)).
10. On June 13, 1992, a replacement carrier hired by Appellant performed the route. The carrier did not leave the post office until 2:00 p.m. and was unable to finish the route (AF 5 pp. 4, 5; Supp. Exh. 1 ¶ I (4)). On two previous occasions, this employee had failed to deliver the entire route, and Appellant's husband had completed delivery (Supp. Exh. 1 ¶ I (4)).
11.
The Park City Postmaster and Superintendent of Postal Operations
("SPO") met with Appellant the following week to discuss the
deficiencies that had occurred on June 13 (AF 5, p. 1; Supp. Exh. 1
¶¶ I (4),
12.
Appellant planned to be out of town on vacation beginning June 19, 1992,
and arranged for the new replacement carrier to deliver the route (Supp. Exhs.
1 ¶ I (5), 14). This carrier had
substituted for Appellant on the route a number of times in the past, and,
during the week of June 15, Appellant and her husband conducted further
training with her (Supp. Exhs. 1¶ I (5), 3 ¶¶ (2), (9)). They told the replacement to call them if
there were any questions of an unusual nature or problems on the route (Supp.
Exhs. 1 ¶
13. On Friday, June 19, Appellant's employee arrived at the post office at about 6:00 a.m., cased and loaded her mail and left the post office after 3:00 p.m. (Thurber Decl. ¶ 7; but see Supp. Exh. 3 ¶ (3)). During the time the replacement carrier was in the post office, the SPO spoke to her on a number of occasions, totalling about 15 minutes (Supp. Exh. 3 ¶ (2); Thurber Decl. ¶ 7). Some of the SPO's conversation was critical of Appellant's performance of the contract (Supp. Exh. 3 ¶ (2)). Appellant's employee finished delivering mail after 6:00 p.m. and returned to the post office before dark (Thurber Decl. ¶ 7; Supp. Exh. 3 ¶ (3)). On June 19 and on the other days she delivered the route she encountered delays resulting from construction on one of the roads she was required to travel (Supp. Exh. 3 ¶ (3)).
14. On Saturday, June 20, the replacement carrier cased mail until noon (Supp. Exh. 3 ¶ (4)). She was using Appellant's jeep, which broke down while she was on the route. As a result, she lost one-and-one-half hours getting it repaired, and completed delivery at about 7:00 p.m (Supp. Exh. 3 ¶ (4)). When the SPO discussed the route with Appellant's employee on Monday, June 22, she did not mention the mechanical problems with the jeep (Thurber Decl. ¶ 9). Appellant had had the jeep serviced within two weeks before she left for vacation (Supp. Exh. 6).
15.
On Monday, June 22, the replacement carrier did not depart the post
office until 4:00 p.m. (AF 5 p. 10).
Appellant's jeep again broke down, and there were delays in getting it
fixed (Supp. Exh. 3 ¶ (5)). She
delivered mail until after dark, but did not complete the route (AF 5 pp. 2,
10; Supp. Exhs. 1 ¶
16. On June 23, two postal employees spent four-and-one-half hours assisting Appellant's employee in casing the mail (AF 5 p. 2; Supp. Exh. 3 ¶ (6); Thurber Decl. ¶ 12). As the postal employees were not familiar with the route and the casing area was not big enough to accommodate three people efficiently, their help was of questionable value (Supp. Exhs. 3 ¶ (6), 5; AF 5 p. 10). The carrier did not leave the post office until 2:00 p.m. The post office also provided at least an hour of delivery assistance on the route, and the route was finished at 6:00 p.m. (AF 5 p. 2; Supp. Exh. 3 ¶ (6)).
17. Before Appellant's employee left the post office to deliver the mail on June 23, the postmaster told her not to return the next day. The postmaster declined the employee's offer to use her own car instead of Appellant's jeep on the route the next day and declined her offer to give him the telephone number where Appellant could be reached (Supp. Exh. 3 ¶ (6)). When she returned to the post office that evening, the case for Appellant's route had been broken down and reconfigured to permit the route to be split in two so that it could be delivered by two highway contractors (id.).
18. On the evening of June 23, Appellant's employee called Appellant, who was still on vacation, and told her of the problems she had been encountering on the route and the postmaster's direction that she not return to deliver the route the next day (Supp. Exhs. 1 ¶ I (6), 3 ¶ (6)).
19. At Appellant's direction, her employee returned to the post office on June 24 and asked the postmaster to put his dismissal in writing, but he refused to do so and told her to leave (Supp. Exh. 3 ¶ (6)).
20. The postmaster described the deficiencies on the route in a letter addressed to Appellant dated June 23, 1993 (AF 5 p. 1-2). In that letter, he asserted that Appellant's actions constituted abandonment of the route. Appellant did not receive the letter before the contract was terminated. A copy of the letter was provided to the Salt Lake City Transportation Management Service Center.
21. The post office prepared a total of five "Contract Route Irregularity Reports," PS Form 5500, for June 19 through 23 (AF 5 pp. 6-12), but they were not given to Appellant or her employee before the termination, and Appellant was not given a formal opportunity to respond regarding the irregularities before the contract was terminated.
22. By a final decision dated June 24, 1993 (and received by Appellant June 27), the contracting officer terminated the contract for default effective the close of business June 24, 1993, "for failure to perform service according to the terms of the contract." (AF 4). In deciding to terminate the contract, the contracting officer did not characterize the contractor's failure to perform on June 24 as an abandonment of the contract or rely on an abandonment theory. See Declaration of Gordon W. Kirkham, December 14, 1992. Appellant appealed the final decision.
23.
Before and after her termination, Appellant noted, and on many
occasions, pointed out to Park City postal officials what she considered to be
violations of contract requirements by other Park City highway contractors
(Supp. Exhs. 1 ¶¶ I (1) & (2),
DECISION
Appellant admits that the replacement contractor failed to meet all of the requirements of the contract but argues that, for the most part, the performance deficiencies were excusable and that those that were not excusable were insufficient to justify termination of the contract for default.
Respondent argues that the termination was proper as the delays in delivery and missed deliveries were serious violations of contract requirements and were not excusable. Respondent argues that Appellant was not entitled to an opportunity to respond to the route deficiencies as the deficiencies constituted "major irregularities" for which the contracting officer may terminate without affording a contractor an opportunity to respond.
The Postal Service has the burden of proving that the termination was justified, but once Respondent shows that Appellant failed to perform in accordance with the contract, the burden shifts to Appellant to present evidence of excusable causes, Pamela J. Sutton, PSBCA No. 1622, 88-3 BCA ¶ 21,031 at 106,237, or to show the termination was an abuse of the contracting officer's discretion, Jesse A. Farmer, PSBCA No. 2702, 91-3 BCA ¶ 24,181 at 120,941; Quality Environment Systems, Inc., ASBCA No. 22178, 87-3 BCA ¶ 20,060 at 101,569.
Thus, the serious performance deficiencies, unless excusable, following by less than a week the specific warning to Appellant of Respondent's concern about service deficiencies stemming from Appellant's use of a replacement carrier, plus the absence of any assurance that service could be restored to the contract standard without application of additional postal resources justified the default termination.[1] See John Michael Hall, PSBCA No. 1311, 1985 WL 16596 (P.S.B.C.A.), May 15, 1985.
As excuses for the performance deficiencies, Appellant raises (1) road construction on the line of travel, (2) mechanical problems with her delivery vehicle, (3) interference with the replacement carrier by postal employees and other highway contractors working out of the Park City Post Office and (4) Respondent's failure to adjust the route time to recognize the actual number of boxes on the route. However, even accepting road construction, see Brooks E. Cook, PSBCA No. 1350, 86-3 BCA ¶ 19,073 at 96,361, and equipment problems, see William Cimpi, PSBCA No. 2695, 91-1 BCA ¶ 23,390 at 117,379, as excusable grounds for performance deficiencies, Appellant has not demonstrated excusable reasons for the carrier's departing the post office two to six hours late, (Findings 8, 13, 14, 16, 17) and the substantial missed deliveries on June 19, 20 and 22, which were not shown to result from the jeep breakdown or road construction (Findings 15, 16).
Appellant has not shown that Respondent interfered with the replacement carrier's performance of the route. Appellant claims that the SPO delayed the replacement carrier on her first day on the job by talking to her at length and criticizing Appellant's performance of the contract. That the SPO talked to the replacement on her first day would be expected, and his discussions could have caused no more than a minor delay, if any, and do not constitute interference. Appellant's argument that providing casing assistance on June 23 interfered with the replacement carrier is also rejected. Although the casing assistance may have been ineffective, in the face of the serious delays on the route over the previous three delivery days (regardless of cause), providing assistance on casing and delivery was reasonable. The postmaster's action in doing so does not show an effort to interfere with the replacement carrier, and there is no evidence the carrier was delayed by the casing assistance. Other than these two instances, Appellant has presented only conclusory and generalized allegations of interference, unsupported by specific proof and probative evidence, and these are not sufficient to show Respondent interfered with Appellant's employee's performance. See Fred A. Arnold, Inc., ASBCA Nos. 20150, 22154, 84-3 BCA ¶ 17,624 at 87,843.
Appellant has not shown that the replacement carrier's performance deficiencies resulted from there being more boxes on the route than reflected in the contract delivery time. Appellant had not requested a route adjustment, and there is no evidence Respondent would have refused one if requested. Moreover, Appellant has not shown that an adjustment in time to account for 23 additional boxes would have been sufficient to make an appreciable dent in the late departures and route completions or to affect the missed deliveries. Appellant has thus failed to demonstrate that the performance deficiencies of her replacement carrier were excusable.
Appellant argues that Respondent discriminated against her in that the deficiencies for which her contract was terminated were no more serious than those occurring on other highway contract routes out of the Park City Post Office. She contends that other highway contractors conspired to deprive her of the route and that they exerted undue influence over the postmaster which caused Park City postal officials to overlook performance deficiencies of the other contractors. Whether other contractors were also guilty of violations of their contracts has no bearing, in and of itself, on whether Appellant's contract was properly terminated. See Pascal Redfern, PSBCA No. 1512, 87-1 BCA ¶ 19,646 at 99,461 aff'd on recon. 87-3 BCA ¶ 19,983. Appellant's unsubstantiated suspicions and allegations of a conspiracy between postal officials and other contractors and of undue influence over the postmaster exerted by the other contractors do not establish that the termination of her contract stemmed from bad faith or bias on the part of postal officials. See Spezzaferro v. F.A.A., 807 F.2d 169, 173 (Fed. Cir. 1986).
Appellant contends that the failure to give her an opportunity to respond to the allegations of deficient performance by the replacement carrier violated her due process rights afforded by the Constitution and that the termination of the contract before she was allowed ten days to respond to the allegations as provided in the Forms 5500 requires that the termination for default be overturned. After the failure of the previous replacement carrier to complete the route on June 13 and the subsequent meeting with the postmaster and SPO (Findings 10, 11), Appellant was on notice that Respondent would not tolerate serious service deficiencies resulting from use of a replacement carrier unable to perform the route in accordance with the terms of the contract. Appellant's contract does not guarantee her notice of deficiencies and an opportunity to respond in advance of a termination, and, as the 5500s were not given to Appellant before the termination, she did not receive a commitment from Respondent that she would have ten days to respond. See Douglas Cremer, PSBCA No. 3108, 93-2 BCA ¶ 25,565; Harvey L. Monk, PSBCA No. 995, 82-2 BCA ¶ 15,797. Therefore, termination based on the recurrence of such deficiencies and lack of assurance that acceptable performance would be restored is not invalidated by the Postal Service's failure to give the contractor advance formal notice of the termination. See Homer J. Sappington, PSBCA No. 3162, 1993 WL 130171 (P.S.B.C.A.), April 13, 1993; Marlena R. Antrim, PSBCA No. 2149, 88-3 BCA ¶ 21,108 at 106,563. Additionally, Appellant was required by her contract to supervise the contract which included establishing adequate monitoring of the operation of the route whether or not she was performing it personally. Appellant could have ascertained the problems on the route through telephone contact with the replacement carrier.[2] That Appellant did not know of the problems on the route stemmed from her delegation of performance of the route to the replacement carrier, and did not result from any action of Respondent.
Respondent's termination of the contract without advance notice and an opportunity to respond does not violate Appellant's constitutional due process rights. Although Respondent failed to provide Appellant a formal opportunity to respond to the deficiencies before termination, Appellant has not been denied her rights under the Constitution as she has had an opportunity in this proceeding to raise, and we have considered, her explanations and arguments regarding the service deficiencies. See Melvin R. Kessler, PSBCA Nos. 2820, 2972, 92-2 BCA ¶ 24,857 at 123,997; Shorthaul Trucking Co., PSBCA No. 1046, 1985 WL 16706 (P.S.B.C.A.), June 18, 1985.
Appellant argues but has not established that the termination of her contract violated other provisions of the Constitution. There is no evidence in the record to support her contention that her contract was terminated to stop complaints she had made about the Park City Post Office or in retaliation for her complaints, and thus there would be no basis for concluding she was denied any First Amendment protection that might be applicable to government contractors. Likewise, Appellant has made no showing that the termination of her contract violated any rights she might possess under the Fourth Amendment or the Equal Protection clause of the Fourteenth Amendment.[3]
Finally, Appellant challenges the postmaster's characterization of her actions as abandonment of the contract because the replacement carrier's failure to deliver on June 24 resulted from the postmaster's direction not to return to the post office even though the contract had not been terminated. However, in deciding to terminate the contract, the contracting officer did not rely on Appellant's failure to perform the contract on June 24 or the postmaster's characterization of Appellant's performance as an abandonment of the contract. Rather, the contracting officer terminated the contract for failure to perform service according to the terms of the contract. Based on the evidence presented, the contracting officer properly terminated for default Appellant's contract.
The appeal is denied.
Norman D. Menegat
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
James D. Finn, Jr.
Administrative Judge
Vice Chairman
[1] The Postal
Service was not obliged to take the replacement's inexperience into account by
accepting performance that did not comply with the contract requirements or by
continuing the additional supervision of and assistance to Appellant's employee
to obtain performance that met the requirements of the contract. See Arnette B. Fleming Hauling,
Inc., PSBCA No. 2872, 91-2 BCA ¶ 23,868 at 119,567.
[2]Notwithstanding
Appellant's instructions to her employee that the employee call Appellant if
she encountered any problems or questions of an unusual nature on the route
(Finding 12), the employee inexplicably did not do so despite encountering what
Appellant now contends were significant road construction delays, major
mechanical problems with the delivery jeep and substantial interference from
postal employees and other contractors.
[3]As Appellant has not shown that her
Constitutional rights were violated, we need not address what, if any, relief
the Board could grant based on violations of the Constitution. See Paul A. Mason, PSBCA No.
1357, 1985 WL 16447, March 26, 1985; M & M Services, Inc., ASBCA No.
28712, 84-2 BCA ¶ 17,405 at 86,688.