June 14, 1993

Appeal of

KIMBERLY A. TOWNE

Under Contract No. HCR 54533

PSBCA No. 3382

APPEARANCE FOR APPELLANT:

Scott A. Cirilli, Esq.

APPEARANCE FOR RESPONDENT:

Maria T. Robinson, Esq.

OPINION OF THE BOARD

Appellant, Kimberly A. Towne, has appealed the default termination of her highway transportation contract with the Postal Service, Respondent. At Appellant's request, this appeal is being processed under the Board's Accelerated Procedure, 39 C.F.R. § 955.36. A hearing was held limited to the issue of the propriety of the default termination.

1. On August 18, 1992, Respondent, through its Chicago Transportation Management Sectional Center ("TMSC"), awarded Appellant Contract HCR 54533 for the transport of mail between Rhinelander, Wisconsin, and Harshaw, Wisconsin (Stipulation of the parties dated April 6, 1993 ("Stip.") ¶ 1; Appeal File Page ("AF") 1).

2. Service on the route was to commence September 5, 1992 (id.).

3. The contract included the "Basic Surface Transportation Contract General Provisions," PS Form 7407T, March 1989, which, in General Provision 16, authorized the contracting officer to terminate the contract for default for the "Contractor's failure to perform service according to the terms of the contract" (AF 35, General Provision 16 (a)(1)). 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 (AF 35). In such a circumstance, the contractor would be entitled to be paid an indemnity by the Postal Service equal to one-third of the annual contract compensation if the termination occurs in the first two years of performance (AF 34, General Provision 12 (d)).

4. Section 17 of the contract provided:

"SCREENING/ID REQUIREMENTS:

New Hires/Awards: The contractor must complete and submit original Forms 2025 and FD-258 for himself and each of his employees who have mail handling responsibilities to the Administrative Official (AO). Also, if the contractor or his employees are hired in a driving capacity, the contractor must obtain and provide a copy of each such individual's current driving record and submit it to the AO with the completed forms referenced above. A temporary identification badge will be issued to the contractor and each of his employees until results of the screening procedure are available." (AF 11)

5. In an August 18, 1993 letter notifying Appellant of the award of the contract, the TMSC advised Appellant to submit screening forms for anyone expected to work on the route and provided the forms for doing so (AF 85; Transcript page ("Tr.") 53).

6. The full screening process leading to issuance of a permanent identification badge generally took about three to eight weeks to complete (Tr. 18, 35, 80), but the Rhinelander Post Office was authorized to issue temporary identification badges on the spot to allow the contractor and the contractor's employees access to the mail during the time necessary to complete the full screening (Postal Service Management Instruction PO-530-89-03, "Screening Mailhandling Contract Employees," March 24, 1989, II.A., IV.B.3.a.; Tr. 20, 35-36, 76, 78-79, 80, 82). Appellant was issued a temporary identification badge before performance was scheduled to begin (Tr. 41, 57, 78-79, 81).

7. Appellant had planned to have her husband help her carry the route and had advised the Postal Service of that intention after she was awarded the contract (AF 70, 76-77; Tr. 16, 39-41, 58-59, 61-63; Answer ¶ 6).

8. On or about September 3, 1992, Appellant submitted a completed Form 2025, "Contract Personnel Questionnaire," and FD-258, "Fingerprint Chart," for her husband to the Rhinelander Post Office (AF 76-77; Tr. 42, 51, 65-66). At the time she submitted these documents, she was advised by postal officials in Rhinelander that obtaining clearance for her husband would take three to six weeks (Tr. 42, 59, 69-70). She did not specifically request a temporary identification badge for her husband, and the postal employees she dealt with did not tell her that a temporary identification badge was available (Tr. 19, 22, 43, 48, 81). A temporary badge was not issued for Appellant's husband (Tr. 42-43, 48, 68).

9. Because of the volume of mail to be delivered on the route, it would have been very difficult for Appellant to perform it by herself within the contract schedule (Tr. 10, 15, 46, 62).

10. Appellant carried the route on September 5, 1992, without assistance, but finished 45 minutes late (Tr. 45-46, 71-72).

11. On the morning of September 8, the next delivery day after the Labor Day holiday, Appellant arrived at the Rhinelander Post Office shortly before 5:00 a.m. and told the postal supervisor on duty she could not perform the route (Tr. 7; Stip. ¶ 2). Appellant gave the postal supervisor the keys used to open the lock boxes at the post offices served by the route (Tr. 7, 10, 46-47; Stip. ¶ 2).

12. The Postal Service arranged to have the route carried that day by postal employees (Tr. 8) and another highway contractor (Tr. 13).

13. Later that morning, the Rhinelander Postmaster advised the TMSC of Appellant's actions (Tr. 12). As a result, Mr. Klee, a Transportation Specialist at the TMSC, called Appellant shortly thereafter to discuss the route (AF 88; Tr. 47; Stip. ¶ 3). In that conversation, Appellant told Mr. Klee that she was 45 minutes late completing the route on September 5, that she could not perform the route by herself and that she had been advised by someone in the Rhinelander Post Office that it would take three to six weeks for her husband to be cleared to help her

(AF 88; Tr. 48, 50). Mr. Klee told Appellant that she was not out of the contract just because she had turned in her keys (Tr. 50) and offered to arrange for immediate issuance of an emergency identification badge so her husband could assist on the route (AF 88; Tr. 48, 49). Appellant declined, and after Mr. Klee explained that she could be terminated for default if she did not continue performance (Tr. 50), she repeated that the route was too much work (AF 88; Tr. 50, 55, 75). Mr. Klee then advised Appellant that her contract was terminated for default (AF 88).

14. Appellant wanted to retain the contract (Tr. 49, 56), but, nevertheless, declined Mr. Klee's offer of an emergency identification badge for her husband because she considered the route already terminated since she had finished the route 45 minutes late on September 5 and turned in her keys on September 8 (Tr. 46, 55). However, no one from the Postal Service told Appellant her contract was terminated until Mr. Klee did so after she was offered and rejected the emergency identification badge for her husband and refused the opportunity to continue performance of the route (Tr. 73-75).

15. On September 8, 1992, the contracting officer issued a final decision terminating the contract for default (AF 89-90; Stip. ¶ 5), which termination was appealed by Appellant on December 9 (AF 92). By letter dated January 11, 1993, the contracting officer confirmed the termination and stated that the basis for the termination was the contractor's refusal to perform the service according to the terms of the contract (AF 95-96; Tr. 25-27, 37).

Decision

Appellant does not deny that she told Mr. Klee that she would no longer perform the route. She contends, however, that the route was too difficult for her to perform alone, that she had advised the Postal Service of her intention that her husband assist her on the route and that Respondent's failure to provide her with a temporary identification badge for her husband which would allow him to help justified her refusal to perform. Respondent argues that Appellant unequivocally refused to perform the route and that termination for default was proper because her refusal was not justified.

There is no dispute that Appellant abandoned performance of the contract. She turned in her keys and refused to perform the route on September 8. Absent excusable cause, these actions would be grounds for termination of the contract for default. See Paul C. Popiel, PSBCA No. 3150, 93-2 BCA ¶ 25,603 at 125,458; Pamela J. Sutton, PSBCA No. 1622, 88-2 BCA ¶ 20,680 at 104,539; B & E Mail Transport, Inc., PSBCA Nos. 971, 973, 974, 82-2 BCA ¶ 15,965 at 79,133. Such excusable cause does not exist in this case. Notwithstanding the prompt issuance of a temporary identification badge to Appellant and mention of the availability of temporary identification badges in Section 17 of the contract, Appellant did not specifically request the Rhinelander Post Office to issue a temporary identification badge for her husband. That one could have been obtained had she asked is confirmed by Mr. Klee's offer to arrange for issuance of such a badge as soon as he was aware of Appellant's difficulty with the route. Cf. John Vayanos Contracting Co., Inc., PSBCA No. 2317, 89-1 BCA ¶ 21,494 at 108,294; Suffolk Environmental Magnetics, Inc., ASBCA No. 17593, 74-2 BCA ¶ 10,771 at 51,217. Additionally, the absence of the temporary identification badge did not render the contractor's performance impossible inasmuch as Appellant was able to finish the route on September 5, albeit 45 minutes late. Compare Lee McLaughlin, PSBCA No. 2199, 89-1 BCA ¶ 21,377, and Hector Rivera Ruiz, PSBCA No. 1756, 88-3 BCA ¶ 20,829, in which Postal Service actions made the contractors' performance impossible.

Moreover, Appellant's continued refusal to perform expressed to Mr. Klee later on September 8, after he had offered to arrange for an immediate emergency badge for her husband that would allow him to help her, was not justified. The TMSC was the contracting office, and Appellant had no reason to doubt Mr. Klee's offer and ability to obtain an emergency identification badge for her husband or Mr. Klee's willingness to allow her to continue to operate the route. Any belief Appellant might have had that turning in the keys and not carrying the route on September 8 had irretrievably terminated the contract was unfounded as no one from the Postal Service told her the contract was terminated before she spoke to Mr. Klee, and he specifically advised her that the contract was still in effect. Mr.

Klee's offer should also have allayed any concern that she would be terminated for her completion of the route 45 minutes late on September 5.

The appeal is denied.

Norman D. Menegat

Administrative Judge

Board Member

I concur:

James A. Cohen

Administrative Judge

Chairman