July 22, 1993

Appeal of

ALTINA TRUCKING

Under Contract No. HCR 78182

PSBCA No. 3341

 

APPEARANCE FOR APPELLANT:

Ernestine M. McGee

 

APPEARANCE FOR RESPONDENT:

Patrice R. Dickey, Esq.

 

OPINION OF THE BOARD

 

            Appellant, Altina Trucking, has appealed the default termination of its highway transportation contract with Respondent, United States Postal Service.  A hearing was held at Appellant's request.

Findings of Fact

            1.  On October 5, 1992, Respondent awarded Appellant contract number HCR 78182 for the transport of mail between Boerne and Waring, Texas, including delivery of mail to over 380 customer boxes, for the term beginning October 17, 1992, and ending June 30, 1996 (Stipulation dated April 2, 1993 ("Stip.") ¶ 1; Appeal File Tab ("AF") 1; Respondent's Exhibit 1).

            2.  The schedule in the contract provided for the contractor to arrive at the Boerne Post Office at 7:30 a.m. and to depart the post office to deliver the route at 10:45 a.m., after sorting ("casing") the mail (AF 1, "Statement of Service and Schedule").  The scheduled return after delivery of the mail was 2:30 p.m. (id.).

            3.  The contract included the Basic Surface Transportation Contract General Provisions, PS Form 7407T, March 1989.[1]  General Provision 4(a) requires the contractor to "carry all mail tendered for transportation under this contract, . . .  with certainty, celerity, and security, in accordance with the operating schedule and between the points fixed in the solicitation . . . ."

            4.  General Provision 2, the Claims and Disputes clause, requires that contractor claims under the contract be submitted in writing to the contracting officer and that the contractor continue performing in accordance with the directions of the contracting officer pending final resolution of the dispute (Stip. ¶ 4).

            5.  General Provision 16(a)(1), authorizes the contracting officer to terminate the contract for default for the "Contractor's failure to perform service according to the terms of the contract[.]"  (Stip. ¶ 2).  If, after a termination for default, it is determined that the contractor was not in default or that the default was excusable, under General Provision 16(c) the termination will be considered as one under the termination for convenience provision of the contract, General Provision 17.  In such a circumstance, the contractor would be entitled to be paid an indemnity equal to one-third of the annual contract compensation if the termination occurs in the first two years of performance (General Provision 12; Stip. ¶¶ 2, 3).

            6.  Section 18.D. of the contract provides:

"The Administrative Postmaster will provide route training to the successful bidder.  The training will be for three hours per day over two days and will be equivalent to that training currently provided for rural carriers.  The contractor will be compensated at the hourly rate as quoted on the bid cost statement."  (AF 1)

 

            7.  On or about October 8, 1992, a transportation contract specialist from the Dallas Transportation Management Service Center ("TMSC"), the office responsible for the award and administration of the contract, discussed certain of the requirements of the contract with Ernestine McGee, who, along with her husband, Alfred McGee, owned Appellant.  The specialist advised her that the contractor was entitled to three hours of training on each of two days, for which it would be paid, before performance on the contract began (Transcript of Hearing, page ("Tr.") 82).  He told her to set up training with the Boerne Post Office (Tr. 102; see Tr. 100).

            8.  On October 8, 1992, Mr. McGee went to the Boerne Post Office and spent three to four hours with John Taylor, the husband of the contractor carrying the route on an emergency basis (Tr. 5, 66, 70, 133).  Mr. McGee was shown how to case the mail (Tr. 133-34).  He was given a sketch of the route and drove over it after leaving the post office (Tr. 136).  Mr. Taylor told Mr. McGee that it would take approximately two weeks to fully train for the route and suggested Mr. McGee needed to start coming to the post office to train (Tr. 66-67, 134).

            9.  While in the post office, Mr. McGee met postal supervisor Elder, with whom he discussed his training.  Ms. Elder called the McGees at about 7:00 a.m. on October 15, and asked them to come in for training that morning (Tr. 7, 23, 141; AF 6).[2]   They arrived at the post office after Mr. Taylor had already left the post office to deliver the mail, but they caught up with him on the route at about noon and followed him on the route the rest of the day, until about 4:00 or 4:30 p.m. (Tr. 8-9, 69, 73, 155; AF 6).  After returning to the post office, Mr. McGee cased mail with Mr. Taylor until about 7:00 p.m. (Tr. 142).

            10.  On October 16, Mr. McGee rode with the emergency contractor, Audrey Taylor, on the route, leaving the post office by 11:00 a.m. and returning after 2:30 p.m. (Tr. 9, 58, 143; AF 6).  He also spent time that day casing mail with Ms. Taylor either before or after the route was delivered (Tr. 58, 143).  The Taylors made a good faith effort to provide training to the McGees during the time they worked together; they did not mislead or misdirect the McGees (Tr. 61, 72‑74).

            11.  On the first two delivery days of the contract, October 17 and 19, Mr. and Ms. McGee cased the mail[3] and delivered the route by themselves, returning to the post office at 12:45 a.m. on October 18 after the first day and at 11:45 p.m. on October 19 (Tr. 11-13, 33; AF 6).

            12.  The McGees were late in arriving at the post office on the morning of October 20.  As they had not arrived by 7:30 a.m. (Tr. 129, 176), Ms. Elder and Ms. Taylor began casing the mail for Appellant's route (Tr. 14-15, 34, 50, 84, 129, 132).  A Boerne postal official called the TMSC, and told the transportation contract specialist of the circumstances (Tr. 84).

            13.  The McGees arrived at about 8:50 a.m., noted that Ms. Elder and Ms. Taylor were casing their mail, and were asked to go to an office to talk to the contracting officer by telephone (Tr. 52, 129).

            14.  In the ensuing discussion, the contracting officer asked Ms. McGee whether she and her husband were going to carry the route (Tr. 109).  Ms. McGee stated that delivering the route had taken far more time than expected and that the route was impossible to carry (Tr. 109-111; see Tr. 138).  She told the contracting officer the Taylors were trying to sabotage her and her husband's performance of the route (Tr. 173) and asked that she and her husband be allowed to recase the mail already sorted by Ms. Elder and Ms. Taylor (Tr. 158, 160, 169, 170, 180).  She believed the late completion of the route the previous two days stemmed from misdirection by the Taylors (Tr. 129-131, 133, 169).  The contracting officer told Ms. McGee that she was obligated under the contract to perform the route (Tr. 115, 173, 178) and that if she did not, Appellant would be terminated for default (Tr. 109-111).  Ms. McGee stated that she would not carry the route (Tr. 52, 84-85, 109-111, 185, 187, 189).  After the conversation, the McGees immediately left the post office without the mail (Tr. 52, 84-85).

            15.  By letter dated October 20, 1992, the contracting officer terminated Appellant's contract for default under General Provision 16(a)(1) as of the close of business October 19, 1992 (AF 2).  This appeal followed.

Decision

            Appellant argues that the termination of its contract was improper as it resulted from the failure of postal officials to carry out their obligation to train new contractors as provided in the contract.  It also contends the training ultimately provided was inadequate and misleading, and that delegating the training to the Taylors was improper and was part of a conspiracy among postal officials to take the contract from Appellant and award it to Ms. Taylor.  As evidence of this conspiracy, Appellant points out that Ms. Taylor had been performing the route on an emergency basis before award to Appellant, was the second low bidder for the route, and has been performing the route since Appellant's termination.

            Respondent argues that Appellant's refusal to perform the services required by the contract constituted an abandonment of the contract and that the refusal was unjustified.  It urges that the McGees inadequately investigated the contract requirements before bidding, were not prepared to perform the contract, and failed in their duty to obtain training.

            There is no dispute that Appellant abandoned performance of the contract.  Ms. McGee told the contracting officer unequivocally on October 20, 1992, that she and her husband would not perform the contract, and they did not carry the route that day.  Appellant argues, however, that actions of postal officials and the emergency highway contractor justified its refusal to perform.

            Appellant blames its difficulties delivering the route on the first two days of the contract on the inadequate and misleading training provided by the post office.  However, the McGees received the quantity of training set forth in the contract.  The time the McGees admit spending with the Taylors in the post office or on the route on October 8 (Finding 9, 10), October 15 (Finding 10) and October 16 (Finding 11) exceeded the six hours of training the Postal Service agreed to provide (Finding 6).  Although more training would have been helpful (Finding 8), Respondent provided the training hours required under the contract.  Arranging for the contractor currently performing the route to provide the training was reasonable as that contractor would likely be most familiar with the details of the route, and the Taylors did not mislead or misdirect the McGees (Finding 10). Appellant submitted no evidence to suggest the training was not "equivalent to that training currently provided for rural carriers" (Finding 6).  Therefore, Appellant has not shown that Respondent breached a contractual duty to provide training.

            Appellant's claim that postal officials acted in bad faith in administering and terminating the contract because they wanted the Taylors to have it is not supported by the evidence.  The McGees' speculation, unsupported by probative evidence, does not demonstrate collusion or bad faith.  See Spezzaferro v. F.A.A., 807 F.2d 169, 173 (Fed. Cir. 1986); Fred A. Arnold, Inc., ASBCA Nos. 20150, 22154, 84-3 BCA ¶ 17,624 at 87,843.

            Appellant argues that the contracting officer's failure to allow Ms. McGee an opportunity to recase the mail that Ms. Taylor and Ms. Elder had already cased was improper, and that the McGees would have performed the route had they been given that opportunity.  Appellant suggests that the Taylors were to blame for the McGees' long hours delivering the route on October 17 and 19, and, therefore, that they did not want to deliver the route if Ms. Taylor was involved in casing the mail.  Even if Appellant had presented probative evidence to show that the Taylors had misled the McGees, which it did not, any such concern that the McGees would be disadvantaged by not being allowed to recase the mail already cased by the time they arrived on October 20 would have been unwarranted.  There is no evidence that Ms. Taylor knew the McGees were coming in to deliver the mail, so it is unreasonable to assume that she would sabotage the casing, even if she had some desire to harm the McGees, since she or her husband might have been called upon to deliver the route.  Further, there is no evidence the Taylors were involved in casing the mail for Appellant's route on October 17 or 19, so there could be little connection between those delays and Ms. Taylor's casing of Appellant's mail.

            That the contracting officer did not grant Ms. McGee's request to recase the mail would not have justified Appellant's refusal to deliver the route on October 20.  Its refusal to perform because the contracting officer would not accede to Appellant's stated condition of continued performance does not save the refusal from being considered an abandonment.  See James E. White, PSBCA No. 1022, 82-2 BCA ¶ 15,896 at 78,823‑3, aff'd on recon. 82-2 BCA ¶ 16,069; Lawrence D. Bane, PSBCA Nos. 1440, 1491, 86-2 BCA ¶ 18,997 at 95,928, aff'd on recon. 86-3 BCA ¶ 19,252 and 1986 WL 20173, August 26, 1986.  Appellant's remedy under General Provision 2 of the contract is to perform the contract according to the contracting officer's direction and to file a written claim for any additional costs resulting from what Appellant considered to be contract breaches by Respondent.  See James E. White, supra; Lawrence D. Bane, supra, at 95,929.  Any hindrance to Appellant caused by Postal Service interference or the providing of training that did not meet the contract requirements was remediable by a claim for damages.  See Estelle McCormick, PSBCA No. 1030, 83-2 BCA ¶ 16,574; James E. White, supra.

            Appellant has not met its burden of demonstrating that its unequivocal refusal to perform was justified or that the contracting officer abused his discretion in terminating Appellant's contract for default based on the refusal to perform the service required under the contract.  See Pamela J. Sutton, PSBCA No. 1622, 88‑2 BCA ¶ 20,680 at 104,539, aff'd on recon. 88-3 BCA ¶ 21,031; Paul C. Popiel, PSBCA No. 3150, 93-2 BCA ¶ 25,603 at 125,458; B & E Mail Transport, Inc., PSBCA Nos. 971, 973, 974, 82-2 BCA ¶ 15,965 at 79,133. 

            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 Appeal File did not include a copy of the General Provisions, but the Board can identify the content of this standard Postal Service form from the specific reference in the solicitation to the March 1989 edition and take official notice of its provisions (see Sandra Estep, PSBCA No. 1610, 88‑1 BCA ¶ 20,238; AF 1, Section 10.B.; Stip. ¶¶ 2-4).

[2] There is disagreement as to who was to initiate contact for further training after their October 8 meeting.  Because, as discussed below, we conclude the training established in the contract was provided to the McGees, we need not determine whose responsibility it was to initiate the training.

[3] The post office held back at least some third class mail to lessen their work (Tr. 11, 26, 28, 156-57; AF 6).