May 23, 1994

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 ON MOTION FOR RECONSIDERATION

 

            Appellant, Patricia J. Stevens, appealed the termination for default of her highway transportation contract with the United States Postal Service, Respondent.  The Board denied the appeal, Patricia J. Stevens, PSBCA No. 3272, 94-1 BCA ¶ 26,419, and Appellant has timely filed a motion for reconsideration.  The circumstances leading up to the termination for default were set forth in the Board's October 4, 1993 decision and will be repeated here only as necessary to address Appellant's motion.

            Appellant arranged for a substitute to perform her highway transportation contract during Appellant's vacation.  While the route was being performed by the substitute and without advance notice to Appellant, Respondent terminated the contract for default.  The Board concluded that the termination was justified because the performance deficiencies occurring during the substitute's tenure constituted a material breach of Appellant's contractual duties and were unexcused and that Respondent's failure to notify Appellant before terminating the contract did not require that the termination be set aside.

Sufficiency of the Evidence

            Appellant challenges the sufficiency of the evidence underlying a number of the Board's findings of fact by discussing in detail the route, the location of certain addresses, the condition of certain of the mailboxes and the similarity of some customers' names to support her arguments that the deficiencies were not as serious as reported by postal officials, were excusable or could not have occurred as urged by Respondent.  Substantially the same arguments and contentions were made in Appellant's brief, and reargument of issues previously raised and fully considered in the Board decision does not provide a basis for reconsideration.  See L.B. Samford, Inc., ASBCA No. 32645, 93-2 BCA ¶ 25,709; E. Gerald Hanes, PSBCA No. 3082, 93-1 BCA ¶ 25,553; HTC Industries, Inc., ASBCA No. 40562, 93-2 BCA ¶ 25,701; Scott Company of California, PSBCA Nos. 1733, 2202, 88-3 BCA ¶ 21,181.  Nevertheless, we have again reviewed the conflicting evidence regarding the substitute's performance, as well as the detailed arguments directed specifically to the declaration of the Park City Superintendent of Postal Operations ("SPO"), and we reach the same conclusion that a material and unexcused failure to comply with the requirements of the contract was shown by a preponderance of the evidence.[1]

            Appellant renews her argument that the SPO delayed the substitute carrier on June 19 far longer than the 15 minutes found by the Board and offers a new affidavit in which the substitute carrier amplifies what she said in her first affidavit.  The substitute's first affidavit was fully considered by the Board, and the new affidavit presents evidence that could have been presented before the record was closed.  See 39 C.F.R. § 955.14 (b).  It is not accepted into evidence because it is not newly-discovered evidence that was not previously available to Appellant.  See Yachts America, Inc. v. United States, 779 F.2d 656, 662 (Fed. Cir. 1985); E. Gerald Hanes, supra.[2]

Insufficient Time to Perform Route

            In her motion, Appellant argues that the contract schedule did not provide enough time for the contractor to perform the route and that therefore the substitute's failure to meet the requirements of the contract was excusable.  This is a variation of the argument Appellant made in her brief that the actual number of boxes on the route exceeded by 23 the number recognized in the contract.  The Board concluded, however, that there was no showing that an adjustment to the contract schedule to reflect 23 additional boxes would have made a substantial difference in the delays in Appellant's performance of the route.

            In her motion, Appellant argues for the first time that previous contract amendments that recognized prior increases in the number of boxes on the route understated the extra time necessary to deliver to the additional boxes.  Those adjustments, using a formula in the contract, increased the number of compensable hours under the contract.  Appellant now argues that the route actually took her and her husband substantially more total hours to perform than reflected in the contract as amended and that, therefore, late performance by her substitute was excusable.

            As this argument could have been made in Appellant's brief, it is not a basis for reconsideration.  Montgomery-Ross-Fisher, Inc., PSBCA No. 1096, 84‑3 BCA ¶ 17,607.  In any event, by entering the contract, Appellant agreed to the formula to be used for making adjustments, and by agreeing to the previous amendments she accepted the additional time as compensation for the increased number of boxes.  See Lawrence D. Bane, PSBCA No. 1595, 87-2 BCA ¶ 19,913.

Bad Faith and Due Process

            Appellant contends that her due process rights under the Constitution were violated by Respondent's failure to give her notice of and an opportunity to respond to or correct the deficiencies on the route before terminating her contract.  She asserts that the failure to advise her of the imminent termination of her contract established that the contracting officer abused his discretion and acted in bad faith.  These arguments were specifically made in Appellant's brief and rejected in the October 4 decision.  Appellant argues in her motion that Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), requires the Board to overturn the contracting officer's termination of her contract for his failure to give her advance notice.  Cleveland Board of Education v. Loudermill held that a public employee who can be discharged only for cause is entitled to at least an opportunity to respond to charges against him before he is fired.  Id. at 535, 542, 547-48.  This case does not bear on Appellant's rights as Respondent's contractor, which rights are spelled out in the contract and applicable law, and Appellant has pointed to no authority that would cause us to disregard the prior decisions of this Board, cited in the October 4 decision, that uphold default terminations of highway contracts notwithstanding the lack of advance notice to the contractor.

            Also, Appellant would have known of the problems on the route had she supervised and monitored the performance in her absence as required by the contract.[3]   Finally, even when Appellant was apprised that the postmaster had told the substitute not to return the next day to deliver the mail, Appellant made no effort to contact Respondent's officials to ascertain what could be done to remedy the deficiencies.  Appellant has presented no newly-discovered or previously-unavailable evidence that would cause a change in the Board's determination that Appellant failed to demonstrate bad faith or an abuse of discretion by the contracting officer.

            Appellant also contends that her due process rights were violated by the Board's ruling, over her objection, allowing Respondent to submit the declaration of the SPO and the two pages from his daybook and denying her an opportunity to examine and, possibly, to offer into evidence the remainder of the daybook.  As set forth in the Board's March 31, 1993 ruling on Appellant's objection to acceptance of the SPO's declaration into evidence, Appellant had disregarded the schedule for submission of evidence and briefs.  Respondent met the schedule, but Appellant filed her extensive brief and affidavits late without having requested an extension of time.  Respondent filed a motion to exclude Appellant's submission or, in the alternative, that Respondent be allowed to respond to it.  In order to overcome the disadvantage to Respondent resulting from Appellant's disregard of the schedule without taking the harsh step of excluding Appellant's late submission, the Board allowed Respondent an opportunity to address Appellant's submittal.  Respondent did so by filing the SPO's declaration.  Denial of Appellant's request to respond further to Respondent's submission was well within the Board's discretion to manage the cases before it.

            Additionally, Appellant's request for access to other parts of the daybook is the type of access that could have been obtained through discovery, which is authorized by the Board's rules, but which should have occurred far in advance of the time set for submission of evidence.  Cf. Hunter L. Todd, dba Courier Express Mail & Package Delivery Service, PSBCA No. 1472, 86-3 BCA ¶ 19,061 at 96,267.  From at least October of 1992 when Appellant received a copy of the Appeal File, Appellant had copies of the postmaster's letter setting out the reasons he recommended a termination and copies of the 5500s setting out performance deficiencies, including missed deliveries, by the substitute carrier.  Appellant knew that the substitute carrier's failure to meet the delivery requirements under the contract was the pivotal issue in this appeal and could have requested discovery of postal documents, including notes of employees, related to this issue.  By the time she did, in March of 1993, it was too late, and the record was properly closed.  Cf. C & L Constr. Co., ASBCA No. 22993, 83‑2 BCA ¶ 16,785.

Failure to Consider Legal Arguments

            Appellant argues that the October 4 decision failed to consider five specific legal questions of contract law she raised in her brief.  Appellant characterizes these theories as relating to substantial performance, rejection of tender of performance, contracts of adhesion, discharge by alteration of a contract, and good faith.  Those arguments were considered by the Board in reaching its decision and will be addressed only briefly here.

            Appellant admitted the substitute's performance did not meet the requirements of the contract in every respect but argued that the substitute carrier substantially performed the contract and that termination was improper in view of that substantial performance.  Our determination that the substitute carrier's performance deficiencies from June 19 through 23 and the lack of assurance that performance would return to an acceptable level constituted a material, unexcused breach of the contract that justified the termination for default amounts to a rejection of Appellant's substantial performance argument.

            The effect of the substitute's offer to perform the route with her own vehicle (tender of performance) was specifically addressed in the October 4 decision.  We noted that there were substantial and material deficiencies in addition to the delays arguably resulting from the jeep breakdowns and that Appellant did not show that use of the substitute's vehicle would have caused performance to meet the standards of the contract.

            Appellant asserted that her contract with Respondent was a "contract of adhesion", but she did not identify how that conclusion would entitle her to prevail in this appeal.  If Appellant's contract were a contract of adhesion, ambiguities in the contract would be interpreted against Respondent as the drafter.  Standard Oil Company of California v. Perkins, 347 F.2d 379, 383 n. 5 (9th Cir. 1965); Double Circle Farm Supply Co., AGBCA No. 88-204-1, 90-1 BCA ¶ 22,556.  That principle--contra proferentum--is applicable in government contracts, Hills Materials Co. v. Rice, 982 F.2d 514, 516-17 (Fed. Cir. 1992), TRW, Inc., ASBCA Nos. 27299, 27602, 87-3 BCA ¶ 19,964 at 101,071, but this appeal does not involve interpretation of ambiguous contract provisions.  Therefore, a determination that Appellant's was a contract of adhesion would not change the outcome of the appeal.

            Appellant's theory of "discharge by alteration" is inapplicable.  There is no allegation that the written contract was altered by Respondent, and, thus, there was no need to address that argument.  See Restatement Contracts (Second) § 286 (1) (1979). 

Finally, we specifically considered, and rejected, Appellant's arguments that Respondent acted in bad faith in terminating her contract, finding that Appellant failed to meet her burden of proving that the contracting officer abused his discretion or that postal officials acted in bad faith.

Conclusion

            Appellant has not persuasively shown in this motion any factual or legal errors which would warrant changing our decision.  See E. Gerald Hanes, supra; Montgomery-Ross-Fisher, Inc., supra.

            The motion for reconsideration 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]  In her motion, Appellant has made a number of challenges to evidence Respondent offered in support of its position but which the Board did not rely on in its findings.  For example, Appellant continues to challenge the statements of the postmaster and the SPO that they met with Appellant on June 18.  The Board only found that there was a meeting the week of June 15, which Appellant admitted.  Appellant's similar challenges to evidence not relied on by the Board will not be specifically addressed in this decision, not only because they are not new arguments, but also because the challenged evidence did not affect the outcome of the decision.

[2]  Appellant charges that the Park City SPO committed perjury in the declaration submitted by Respondent and that a number of documents, including pages from the SPO's daybook that were attached to his declaration, contained false statements.  On reviewing the record, we are unable to conclude that the October 4 decision was based on evidence containing false statements.

[3]  Appellant should have known that a less-experienced substitute, working alone, could not meet the schedule in the contract, which Appellant met only with help from her husband.  Thus, Appellant should have known that substantial contract deficiencies would occur in her absence, as they did, that entrusting the route under these circumstances immediately after the postmaster's warning put her contract in jeopardy and that close monitoring of the contract was essential.  Notwithstanding Appellant's parting instructions to her substitute to let Appellant know of any problems on the route, the substitute never called even though she was encountering what she and Appellant now contend were substantial delays resulting from road construction, vehicle breakdowns and interference by Respondent's employees.  Even when the substitute was told on the morning of June 23 not to return the next day, she waited until that evening to call Appellant.