January 31, 1994

Appeal of

GERALD M. DAVY

Under Contract No. HCR 98372

PSBCA No. 3270

 

APPEARANCE FOR APPELLANT:

Gerald M. Davy

 

APPEARANCE FOR RESPONDENT:

Robin M.A. Sembenini, Esq.

 

OPINION OF THE BOARD

 

            Appellant, Gerald M. Davy, has appealed the default termination of his contract for the transportation and delivery of mail in Gig Harbor and Fox Island Washington.  This appeal is being decided on the record in accordance with Rule 12 of the Board's Rules of Procedure, 39 C.F.R. §955.12.

FINDINGS OF FACT

            1.  The solicitation which led to the contract award to Appellant was issued on February 26, 1992, and contemplated a contract for the transportation of mail in both directions between Gig Harbor and Fox Island, Washington, and for box delivery services on Fox Island.  The contract term was to be May 30, 1992, to June 30, 1994.  (Appeal File Tab ("AF") 2).

            2.  The solicitation contained PS Form 7407T (March 1989), "Basic Surface Transportation Services Contract General Provisions," and amendments thereto.  General Provision 16, "Termination by the Postal Service for Default," provided, in part, that:

"The Contracting Officer may terminate this contract for default:

 

(1) For Contractor's failure to perform service according to the terms of the contract;

 

***

 

(10) If the Contractor's transportation equipment is insufficient, inadequate, or otherwise inappropriate for the service...."  (AF 3).

 

            3.  The solicitation required the contractor to provide a passenger vehicle with at least 90 "Cubes" capacity.[1]  Further, the solicitation required the contractor to present his vehicle for inspection at the location and time indicated by the Contracting Officer or a designated representative.  (AF 2).

            4.  Appellant was the low bidder on the solicitation.  On May 8, 1992, Respondent's Transportation Specialist, Thomas Rutledge, conducted a preaward conference with Appellant by telephone.  During the conference, Mr. Rutledge questioned whether the vehicle proposed for use by Appellant was large enough to meet the 90-cubic-foot requirement of the contract.  Mr. Rutledge also told Appellant that he was required to make his vehicle available for inspection by the Fox Island Postmaster no later than May 22, 1992.  (Declaration of Thomas Rutledge ("Declaration"), para. 5, 6; AF 8, 12).

            5.  On May 28, 1992, two days before service was to start and six days after the date specified by Mr. Rutledge, Appellant presented his vehicle for inspection by the postmaster, but was turned away because the postmaster was too busy to conduct an inspection.  On the morning of May 29, 1992, the postmaster inspected and measured the vehicle.  At approximately 11:00 a.m., the postmaster called Mr. Rutledge to advise that the vehicle presented by Appellant had a capacity of only 72.8 cubic feet.  At 11:10 a.m., Mr. Rutledge called Appellant to discuss the use of the vehicle.  Mr. Rutledge told Appellant that he could begin service with the current vehicle but that a Form 5500, "Contract Route Irregularity Report," would be issued for each day he used an inadequate vehicle.  Mr. Rutledge also stated that if Appellant did not provide a vehicle meeting the solicitation requirement, on June 1 he would be sent a letter giving him three days from the date of receipt to put an adequate vehicle into service.  Appellant stated that he would talk the matter over with his wife and would contact Mr. Rutledge shortly.  At 2:45 p.m., Mr. Rutledge again telephoned Appellant.  Appellant stated that he would not purchase another vehicle for the contract, and that he had decided to withdraw from the contract and would not be starting work the next day.  He asked that he be released from the contract.  Following his conversation with Appellant, Mr. Rutledge contacted the second low bidder to provide emergency service on the route.  (Declaration, para. 7-12; AF 18).

            6.  In a letter dated  May 29, 1992, and received by Respondent's Transportation Management Service Center (TMSC) on Saturday, May 30, 1992, Appellant indicated that he had reconsidered and stated that he did not believe it was proper for him to "resign" from the contract.  He stated that he had made arrangements for a "90 cube" vehicle and asked that Mr. Rutledge call him.  (AF 21; Declaration, para. 13).  The record does not indicate when Mr. Rutledge actually received the letter, except that it was before the termination (Declaration, para. 15).

            7. The second low bidder provided service on May 30 and June 1, 1992.  Appellant did not appear at the Fox Island Post Office on either day to provide service.  (Declaration, paras. 12, 14).

            8.  After a briefing by Mr. Rutledge on June 2, 1992, the Contracting Officer issued a letter and Contract Route Service Order terminating the contract for default, effective May 29, 1992 (Declaration, paras. 15, 16; AF 24, 25).

DECISION

            Respondent, which has the burden of proof in this default termination appeal, Pamela J. Sutton, PSBCA No. 1622, 88-3 BCA ¶ 21,031, argues that Appellant's statement that he would not begin contract performance constituted an anticipatory repudiation of the contract and justified Respondent's actions in terminating the contract.

            In his notice of appeal, which was treated as his Complaint,[2] Appellant argues that he had used the vehicle that was rejected between 25 and 30 times previously, without objection from the Fox Island Postmaster.  Appellant also seems to be arguing that he did not understand the implications of his "resignation" and believed from his conversation with Thomas Rutledge, Respondent's Transportation Specialist, that he was relieved from his contract obligations.  Appellant also maintains that he should be paid $1031.00 as reimbursement for the cost of a "Post Office jeep" that he purchased "plus 6 hours of training at the Post Office."

            In his conversation with Mr. Rutledge, which Appellant does not deny, Appellant unequivocally stated that he would not begin performance of the contract, which was scheduled to start the next day.  We agree with Respondent that this statement constituted an anticipatory repudiation of the contract and, especially in view of Appellant's actual failure to begin work on May 30, justified the termination for default.  Fairfield Scientific Corp., ASBCA No. 21151, 78‑1  BCA ¶ 13,082, recon. den., 78‑2 BCA ¶ 13,429, citing Dingley v.  Oler, 117 U.S. 490, 503 (1886).  Appellant's subsequent attempt to retract the repudiation was ineffective, as Respondent, by hiring an emergency replacement to begin performance, changed its position in reliance on the repudiation before it received notification of the retraction.  Further, the record does not indicate that Respondent's change in position was other than material.  What Mac Contractors, Inc., GSBCA No. 4766, 78-2 BCA ¶ 13,279;  see Restatement of Contracts, 2d, §256 (1981); 4 Corbin on Contracts §980 (1951)

            We also do not accept Appellant's argument concerning his previous use of the vehicle that was rejected for use under this contract.  The evidence shows that the vehicle clearly did not meet the 90-cubic-foot capacity requirement stated in this contract.  Moreover, Appellant has provided no evidence concerning the circumstances of the vehicle's earlier use which might call into question Respondent's decision to reject the vehicle for use under the contract before us.

            Finally, we conclude that the evidence is insufficient to conclude that Appellant was misled during his conversation with Mr. Rutledge as to the consequences of his "resignation."  Accordingly, we conclude that Respondent's default termination of the contract was proper.

            As to Appellant's monetary claims, there is no indication in the record that they have been submitted to the Contracting Officer for a decision, which is a necessary prerequisite to our jurisdiction.  Accordingly, those claims are dismissed without prejudice for lack of jurisdiction.  41 U.S.C. §605.

            The appeal is denied.

David I. Brochstein

Administrative Judge

Board Member

 

I concur:

James A. Cohen

Administrative Judge

Chairman

 

I concur:

James D. Finn, Jr.

Administrative Judge

Vice Chairman


[1]  In his correspondence, Appellant, apparently inadvertently, referred to measurements of the vehicle in terms of cubic inches.  Respondent interprets the capacity requirements in terms of cubic feet.  The Board takes judicial notice that 90 cubic inches is considerably less than one cubic foot (which is 1728 cubic inches) and, therefore, adopts Respondent's interpretation of the term "Cubes" as reasonable when applied to the capacity of a vehicle.

[2]  Appellant did not file a brief.