December 21, 1994
Appeal of
JEROME BAILEY
Under Contract No. HCR 29433
PSBCA No. 3638
APPEARANCE FOR APPELLANT:
Jerome Bailey
APPEARANCE FOR RESPONDENT:
D. D. Anna, Esq.
OPINION OF THE BOARD
Jerome Bailey, Appellant, has appealed the termination of his mail transportation contract with Respondent, United States Postal Service. Respondent terminated the contract for default after Appellant's driver failed to perform the contract duties for several days and Appellant could not be reached. At the election of the parties, this appeal is being decided on the record without an oral hearing.
FINDINGS OF FACT
1. On June 25, 1991, Respondent renewed contract HCR 29433 with Appellant for transportation of mail between Charleston and Isle of Palms, South Carolina, for the term from July 1, 1991, to June 30, 1995 (Appeal File Tab ("AF") A).
2. Appellant was required to "carry all mail tendered for transportation under this contract, whatever may be its size and weight, with certainty, celerity, and security . . . ." (AF A, Basic Surface Transportation Services Contract General Provisions, PS Form 7407T, March, 1989, General Provision ("GP") 4 (a)).
3. The contract required that Appellant "give either personal or representative supervision over the operation of the route" (AF A, GP 8 (a)) and that Appellant or a route supervisor "maintain a phone and be easily contacted in the event of unexpected problems on the route." (AF A, Contract Section 18 A). Appellant remained responsible "for the faithful performance of the obligations assumed by him under this contract, whether or not he has entrusted the care and transportation of the mail to another." (AF A, GP 8 (b)).
4. The contract was subject to termination for default by the contracting officer "[f]or Contractor's failure to perform service according to the terms of the contract." (AF A, GP 16 (a)(1)).
5. On January 21, 1994, a Friday, Appellant's driver told Respondent's Manager, Transportation Networks, in Charleston, that he would not be able to perform the services for HCR 29433 due to illness and that he might not be available until the following Monday, January 24, or Tuesday, January 25. (AF D, January 26, 1994 Memorandum, Forms 5500).
6. The Manager, Transportation Networks, attempted to contact Appellant on January 21, but could not reach him. On the same day, the Manager advised the Mid-Atlantic Distribution Networks Office, at which the contracting officer worked, of the omitted service. A transportation specialist in that office immediately began calling the telephone numbers Appellant had provided Respondent and leaving messages on an answering machine informing Appellant that he needed to contact the Distribution Networks Office immediately concerning the non-performance of the contract. As of the close of business on January 21, Appellant had not returned the calls. On Monday, January 24, the transportation specialist again called Appellant's telephone numbers and left messages for Appellant to contact Respondent by noon on January 24. As of Tuesday, January 25, 1994, Appellant had not contacted the Distribution Networks Office or the Charleston Post Office. (AF D, January 31, 1994 Memo for File).
7. Appellant was on vacation and unavailable from before January 21 until January 26, 1994. He had arranged for a representative to manage the route in his absence, but the driver failed to alert the representative of his inability to perform the duties under the contract. Appellant's telephone answering machine lost all messages left on it during Appellant's absence. (Notice of Appeal; Complaint).
8. Appellant did not provide the contract service on or after January 21, 1994, and the route was performed through January 24 by Postal Service employees using postal vehicles and thereafter by an emergency contractor (AF B; AF D, January 26, 1994 Memorandum, Forms 5500). The contract schedule required service on the route each day, including Sunday, during the period of Appellant's nonperformance (AF A).
9. By letter dated January 31, 1994, the contracting officer terminated Appellant's contract effective January 21, 1994, for Appellant's failure to perform the contract on January 21 and thereafter. In his letter, the contracting officer noted that Appellant had not returned any of Respondent's calls as of the date of the letter. (AF C).
10. Appellant appealed the termination. In his notice of appeal and complaint, Appellant contends that Respondent failed to pay him for service from January 8 through January 21, 1994, and for certain extra service Appellant claims to have performed at Respondent's request.
DECISION
Appellant does not deny that he failed to perform service on and after January 21, 1994. He points out that he has provided conscientious service on the route for more than ten years and that it was the driver's failure to contact Appellant's route manager that caused the service omission, but he does not argue that the omission was excusable under the contract. Appellant seeks to have the contract reinstated or to receive payment for the term of the contract remaining at the time it was terminated. He also contends that he is entitled to unspecified additional compensation for a change to the schedule ordered by Respondent's officials in August, 1993, and for regular service performed from January 8 through 21, 1994.
Respondent argues that Appellant's failure to perform the contract services after January 20, 1994, justified the termination and that Appellant has shown no excusable cause for the failure to perform.
Respondent has the burden of proving that the termination was justified, but once it shows that Appellant failed to perform in accordance with the contract, the burden shifts to Appellant to present evidence of excusable causes, see Patricia J. Stevens, PSBCA No. 3272, 94-1 BCA ¶ 26,419 at 131,429; Pamela J. Sutton, PSBCA No. 1622, 88-3 BCA ¶ 21,031 at 106,237, or to show that the termination was an abuse of the contracting officer's discretion, see Jesse A. Farmer, PSBCA No. 2702, 91-3 BCA ¶ 24,181 at 120,941; Quality Environment Systems, Inc., ASBCA No. 22178, 87-3 BCA ¶ 20,060 at 101,569.
From January 21 to the date of termination Appellant failed to perform the services required under HCR 29433, and he has not shown the failure to be excusable. The illness of Appellant's driver and the driver's failure to contact Appellant's representative do not excuse Appellant's failure to perform after January 20. The contract required Appellant to ensure that the contract was performed and to remain easily accessible in the event problems arose on the route. However, despite the reasonable efforts of Respondent's employees, Appellant could not be reached when the driver ceased performance, and he did not return the calls of Respondent's officials. There was no evidence to suggest that Appellant had ever notified Respondent that a representative was managing the route while Appellant was on vacation. Appellant has not met his burden of demonstrating that his failure to perform the contract requirements and to maintain contact with Respondent was excusable. See Bobby A. Edwards, PSBCA No. 3408, 94-1 BCA ¶ 26,281. There is no evidence that the contracting officer abused his discretion in terminating the contract.
The Board is without jurisdiction to consider Appellant's claims for compensation based on performance of service before the contract was terminated. Submission of a written claim to the contracting officer is a prerequisite to this Board's jurisdiction over Appellant's monetary claims. See 41 U.S.C. § 605(a); Paragon Energy Corp. v. United States, 645 F.2d 966, 971 (Ct. Cl. 1981); James H. Foster, PSBCA No. 3152, 93-1 BCA ¶ 25,362. The assertion of monetary claims in the notice of appeal does not constitute a claim because Appellant did not specify an amount claimed, explain the basis of the claims or request the contracting officer's final decision. See James H. Foster, PSBCA No. 3152, 93-1 BCA ¶ 25,362; Vienna/Vienna, PSBCA Nos. 2505, 2816, 92-3 BCA ¶ 25,042; E.P. Cline, PSBCA No. 2926, 91-2 BCA ¶ 23,992; Wayne R. Hilf, PSBCA No. 2800, 91-1 BCA ¶ 23,628. Therefore, the portion of the appeal seeking monetary relief for service performed before the termination is dismissed. However, the dismissal is without prejudice, and Appellant may submit a proper claim to the contracting officer and file another appeal to this Board if the contracting officer denies the claim.
The appeal of the termination for default is denied. Appellant's claim for monetary relief is dismissed without prejudice.
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