July 29, 1993
Appeal of
BOBBY A. EDWARDS
Under Contract No. HCR 27057
PSBCA No. 3408
APPEARANCE FOR APPELLANT:
Bobby A. Edwards
APPEARANCE FOR RESPONDENT:
D. D. Anna, Esq.
OPINION OF THE BOARD
Appellant, Bobby A. Edwards, has appealed the default termination of his highway transportation contract with the United States Postal Service, Respondent. At Appellant's request, this appeal is being processed under the Board's Accelerated Procedure, 39 C.F.R. § 955.36, and is being decided on the record. Appellant was afforded an opportunity to file supplemental evidence and a brief, but did not do so.
Findings of Fact
1. On June 30, 1992, Respondent renewed Appellant's contract, HCR 27057, for transport of mail, two trips per day, six days per week, between Greensboro and Lawsonville, North Carolina, for the period July 1, 1992, through June 30, 1996 (Appeal File Tab ("AF") A, "Statement of Service and Schedule").
2. The contract included the Basic Surface Transportation Contract General Provisions, PS Form 7407T, March 1989. 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 . . . ." (AF A).
3. The contract called for use of one vehicle, but the contractor was "required to have readily available sufficient standby equipment . . . to perform extra trips, to permit vehicle maintenance and to prevent delays in emergencies such as mechanical failures and poor weather conditions." (AF A, section 15.B).
4. Under the contract, Appellant was liable for "ordinary repairs to and maintenance of equipment furnished by the contractor" (AF A, section 16.B(1)).
5. The contract provided:
"The contractor must provide either personal or representative supervision over the operation of the route. The contractor or his route supervisor must maintain a phone and be easily contacted in the event of unexpected problems on the route." (AF A, section 18.A)
6. Among the grounds stated in General Provision 16(a) of the contract for terminating the contract for default are the contractor's "failure to perform service according to the terms of the contract" (General Provision 16(a)(1)) and "[i]f the Contractor's transportation equipment is insufficient, inadequate, or otherwise inappropriate for the service" (General Provision 16(a)(10)) (AF A).
7. 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 A).
8. On Saturday, November 28, 1992, the brakes on Appellant's truck failed causing his driver to terminate the first trip of the day without completing it (AF D). Respondent arranged for another contractor to complete the morning run, perform the second required trip on November 28 and perform the route on the following Monday (AF D). When further inspection of Appellant's truck revealed a number of other equipment deficiencies, Respondent suspended Appellant's performance of service on the route until December 7 and directed Appellant to present an acceptable truck for inspection before that date (AF D). Although some repairs were made to Appellant's truck, it was not found acceptable when inspected by Respondent on December 4; the rear door was broken and the driver side window was missing (AF D; Declaration of George Whitworth dated June 24, 1993). Appellant did not present the truck to Respondent for reinspection (AF D).
9. On December 7, Appellant left town without advising Respondent that he would be unavailable and without leaving a telephone number where he could be reached. He did not perform or arrange for the performance of the route from December 7 through December 11 (AF D; Complaint; Declaration of George Whitworth dated June 24, 1993).
10. Using the number Appellant had previously supplied, Respondent's employees made several attempts to reach Appellant by telephone during the week of December 7. They left messages on his answering machine asking that he return their calls, but Appellant had not contacted Respondent by December 11 (AF D).
11. By letter dated December 11, 1992, the contracting officer terminated the contract for default, basing the termination on Appellant's failure to comply with General Provisions 16(a)(1) and (10) (AF C). This appeal followed.
Decision
Appellant argues that by December 7 he had repaired the mechanical defects identified by Respondent except for the driver's window and that the missing window did not interfere with use of the truck on the route. He contends that the termination was unwarranted because his failure to present the vehicle for reinspection, to be reachable by Respondent and to carry the route from December 7 through 11 stemmed from a family emergency that required him to leave town. Respondent argues that the failure to carry the route and to have acceptable equipment justified the termination and that Appellant has failed to present excusable reasons for not performing.
Respondent 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 to demonstrate that the failure to perform was excusable under the contract. Pamela J. Sutton, PSBCA No. 1622, 88-3 BCA ¶ 21,031 at 106,237.
There is no dispute that Appellant, without explanation to Respondent, failed to perform the route when, on December 7, the suspension of service expired and Appellant was expected to resume his contractual duties. Appellant could not be "easily contacted" (Finding 5) as he had not left a telephone number at which he could be reached, and he did not respond to messages left at the telephone number he had previously provided to Respondent. Respondent has demonstrated that the termination was justified by Appellant's failure to perform the service under the contract after December 7 and his unavailability to contact by Respondent.
Appellant has not met his burden of demonstrating that his failure to perform and to maintain contact with Respondent was excusable. He has not demonstrated that Respondent's rejection of the truck was unreasonable or that his reasons for not performing the route from December 7 to December 11 were excusable under the contract. Moreover, Appellant has presented no reason for failing to contact Respondent to explain his absence and to provide a telephone number at which he could be reached.
The appeal is denied.
Norman D. Menegat
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
Chairman