June 16, 1995
Appeal of
LEE ANN WYSKIVER
Under Contract No. HCR 92562
PSBCA No. 3621
APPEARANCE FOR APPELLANT:
Lee Ann Wyskiver
APPEARANCE FOR RESPONDENT:
Mark Brent Ezersky, Esq.
OPINION OF THE BOARD
Appellant, Lee Ann Wyskiver, has appealed from the decision by Respondent, United States Postal Service, to adjust her mail delivery contract to realign the route and eliminate one delivery.
FINDINGS OF FACT
1. Appellant held Transportation Services Renewal Contract HCR 92562 from July 1, 1990, through June 30, 1994, for delivery of mail in the area of Temecula, California. The contract included the Basic Surface Transportation Services Contract General Provisions, PS Form 7407T (March 1989). (Appeal File, Tab ("AF") 8).
2. The contract authorized the contracting officer to make changes to the service required under the contract that resulted in adjustments of $1000 or less without consulting Appellant:
"INSIGNIFICANT MINOR SERVICE CHANGES. The Contracting Officer may, at any time, without consulting the contractor, issue orders directing an extension, curtailment, change in line of travel, revisions of route, or increase or decrease in frequency of service or number of trips and fixing an adjustment in the Contractor's compensation which increases or decreases the contractor's rate of pay by no more than 10% or $1,000, whichever is less. If the Contractor believes the increased or decreased cost of providing the service required by the order exceeds the increase made in compensation, he may request an adjustment of compensation for the service change." (AF 8, General Provision 12 (a)(1)).
3. The contract provided as a remedy for Respondent's unilateral curtailment of the contract service in the fourth year of the contract an indemnity payment of one-twelfth of the value of the curtailed service (AF 8, General Provision 12 (d)).
4. Before 1993, the Temecula Post Office delivery area was served by Postal Service city delivery and by mail transportation contractors such as Appellant. There were no rural routes[1] in the Temecula Post Office delivery area. (Statement of Patricia Butler dated January 19, 1995).
5. In 1994, the Temecula Postmaster began switching delivery service from highway contractors to rural delivery, disregarding the boundaries of the areas that had previously been served by highway contractors (id.).
6. Appellant had initiated and established the delivery system for a number of new housing developments along her route, including the Red Hawk development. Delivery to some of these developments, including the bulk of the Red Hawk development, had been reassigned to rural routes before 1994.
7. On January 12, 1994, the San Diego Post Office, which supervises delivery in the area served by Appellant's route, advised the contracting officer of a realignment of Appellant's route that included elimination of Appellant's first delivery, which was to the Red Hawk development, a distance of one mile, to allow that delivery to be handled by the existing rural route that served the rest of the Red Hawk development. The request pointed out, "This realignment will not only allow us to consolidate deliveries, but also resolve scheme and ZIP+4 coding problems." The post office requested that there be no change to the contractor's compensation. (AF 3).
8. On January 27, 1994, the contracting officer, without first consulting with Appellant, ordered the service change realigning Appellant's route and eliminating one delivery. In a unilateral modification to the contract, the contracting officer reduced Appellant's annual compensation by $80 to reflect the decreased service. (AF 4, 7).
9. In a February 5, 1994 claim, Appellant objected to the service change, complained that the restated directions for her route were incorrect and charged that the change was instituted without adequate investigation into the delivery requirements. Additionally, Appellant complained that she and her employees had been harassed by officials in the Temecula Post Office and that rural carriers had been assigned delivery routes in areas she contended were supposed to be served by highway contractors. (AF 2).
10. Appellant's claim was filed with the Board and docketed as an appeal. Respondent filed a motion to dismiss the appeal, which was denied, but the Board directed the contracting officer to issue a final decision on Appellant's claim.
11. The contracting officer issued a final decision on September 7, 1994, in which he allowed Appellant $6.67 (one-twelfth of $80) as an indemnity for the curtailment of her route. The contracting officer did not address any other issues raised in Appellant's February 5, 1994 claim. (Supplemental Appeal File Tab 2).
12. By letter dated October 6, 1994, Appellant appealed that final decision. In her letter she stated that the $6.67 indemnity was inadequate because the lost revenue from curtailment of her route exceeded that amount, that the decision considered only contract number 92562 when it should have addressed similar problems under four other highway contracts, and that proper procedures had not been followed in curtailing her route and replacing the service with rural route service. (Supplemental Appeal File Tab 1).
13. Section 222.1 of Respondent's Handbook PO-504, Highway Contract Routes -- Box Delivery Service, March 1, 1989, provides:
"222 Supersedure of Contract Service by Rural Delivery
222.1 During Contract Period. A contract route will not be replaced by rural delivery service during the contract period unless the contractor consents in writing or there is a worthwhile improvement in service.
222.2 At End of Contract Period. A contract route will not be replaced by rural delivery service at the end of the contract period unless there will be a worthwhile service improvement or a reasonable cost reduction."
DECISION
Appellant's February 5, 1994 claim appears to have been prompted by the January 27, 1994 curtailment of contract 92562, but the claim also generally challenged previous reassignments to rural carriers of parts of her route that Appellant considered to be reserved for highway contractors. Additionally, she complained that rural carriers were assigned delivery of Express Mail along highway contract routes even though the items could be given to the highway contractor for delivery. The contracting officer limited his final decision to the January 27 curtailment, but other parts of Appellant's claim are deemed denied and may be considered by the Board. See 41 U.S.C. § 605(c)(2) & (5); Rice King, ASBCA No. 43352, 92‑2 BCA ¶ 24,805; Dawson Constr. Co., PSBCA No. 2852, 91‑2 BCA ¶ 23,798.
Appellant's main complaint is that Respondent, by the January 27, 1994 curtailment and earlier actions, has "taken" deliveries within area that is "highway contract territory" and "given" the deliveries to rural carriers. Her complaint is premised on her conclusion that certain areas have been historically served by highway contractors and must be reserved for highway contract service. She also argues that highway contract service is more cost effective for Respondent than rural delivery and that Respondent has failed to take the cost advantage of highway contracts into account when transferring deliveries under HCR 92562, as well as on other routes, to rural delivery service. Appellant contends that the January 27 curtailment was part of a plan by the Temecula Postmaster to rid his post office of all highway contractors and to have all mail delivered by rural carriers.
In her complaint, Appellant charged that the Temecula Postmaster harassed her and her employees and treated employees in the post office unfairly. She also contended that unsafe roads and other conditions made delivery of the route difficult and that the conditions were not corrected notwithstanding her complaints to the postmaster.
As a remedy, Appellant asks that delivery areas formerly served by highway contractors be returned to highway contract service, that the Postal Service managers in San Diego responsible for her contract be removed and replaced with unbiased persons, that she receive a formal apology from the Temecula Postmaster, that there be an investigation into the management of the Temecula Post Office, and that Respondent reimburse monies paid rural carriers for services performed in areas formerly served by highway contracts. Appellant has not challenged Respondent's calculation of the annual price reduction due to the January 27, 1994 curtailment.
Respondent argues that it is authorized by the Insignificant Minor Service Changes clause of the contract to make unilateral changes such as the elimination of one delivery from Appellant's route, and that the compensation determined by the contracting officer, $6.67, is all that Appellant is entitled to under the contract. Respondent has not addressed Appellant's claims of mismanagement by the Temecula Post Office, harassment of Appellant's employees and unsafe conditions on the route.
Respondent has demonstrated that the contracting officer's price reduction of $80.00 due to the curtailment of Appellant's route was reasonable, and Appellant has not challenged the calculation of that amount or shown any additional costs incurred due to the realignment of the route. Under the Insignificant Minor Service Changes clause of Appellant's contract, the contracting officer was authorized to order a minor change, such as the January 27, 1994 realignment and curtailment, without consulting with Appellant. The contract provided that Appellant's remedy in such event was to recover an indemnity of one-twelfth of the value of the eliminated service. Respondent has conceded entitlement to an indemnity of $6.67, which is one-twelfth of $80.00, and Appellant has thus received all the relief she is entitled to under the contract. Although Appellant argues that the indemnity fails to compensate her fully for the lost revenue, the Board is not authorized under the circumstances of this appeal to reform the contract to add remedies more favorable to Appellant than her contract provides. See Deep Run Salvage, ASBCA No. 45152, 95-1 BCA ¶ 27,565 at 137,382.
Appellant has not shown an obligation by Respondent to refrain from changing the mode of service to areas that had been served by highway contractors in the past. Appellant's contract describes in detail the route and thereby the area to be served under her contract, but the contract does not establish any obligation on Respondent's part to use any particular manner of delivery in areas served by the Temecula Post Office. Whatever might have been the practice in the area was not made a contractual commitment. Furthermore, Appellant has not shown any basis for her stated expectation that certain areas would be preserved for delivery by highway contractors. Therefore, Appellant has not shown entitlement to make the deliveries in certain highway contract "territories." Likewise, the contract does not limit Respondent's authority to make Express Mail deliveries along her route using its own employees. See Paul A. James, PSBCA Nos. 266, 283, 1977 WL 2647, April 12, 1977.
Appellant offered a copy of Section 222.1 of Respondent's Handbook PO-504, Highway Contract Routes -- Box Delivery Service, into evidence and suggested that it demonstrates that the contracting officer improperly curtailed her route. Appellant's reliance on that provision is misplaced. There is no evidence that the terms of the provision were violated. When Respondent reassigns one or a few highway route deliveries to rural delivery service, it has not "replaced" the contract route "by rural delivery service during the contract period" as addressed in Section 222.1. Additionally, Appellant has provided no support for her suggestions that such action was not taken to provide a "worthwhile improvement in service," which would permit such replacement in any event.
Appellant has alleged that the curtailment of her route in this instance, and in other instances as well, was done because of bad faith on the part of the Temecula Postmaster. Appellant alleges a conspiracy to rid the Temecula Post Office of highway contractors for reasons unrelated to the relative efficiency or economy of highway contract service compared to rural delivery. However, she has not proven such motivation. She has not shown by probative evidence that the January 27, 1994 change to her route was done for any reason other than the efficiency of service to the Red Hawk development or that any earlier revisions to HCR 92562 were motivated by an intention to harm her.
The Board has no authority to direct Respondent to make management changes, to order Respondent's officials to issue an apology, to order Respondent to deliver mail in certain areas by highway contractors or to order Respondent to investigate the management of the Temecula Post Office. This relief would involve equitable remedies such as granting of injunctive relief, which this Board has no authority to order. See Onice Ulmer, PSBCA No. 2938, 91-3 BCA ¶ 24,345; F.W.H. Motor Transit, Inc., PSBCA No. 1317, 85-2 BCA ¶ 18,080.
Appellant, in her notice of appeal, contended that there were conditions that made delivery of the route by her employees difficult and unsafe. She pointed out that there were unfinished and hazardous roads and that some of the boxes were inadequate for the amount of mail received. Appellant also contended that the Temecula Postmaster's harassment of her employees made performance of the route more difficult. However, Appellant has not made a written claim to the contracting officer asking for compensation for any additional costs she might have incurred to cope with these conditions. As a result, the Board does not have jurisdiction to consider these issues. See Sharon Rhoades, PSBCA No. 3455, 94-2 BCA ¶ 26,950; Janie Marie Winkler, PSBCA No. 1548, 86-3 BCA ¶ 19,255. The same is true for claims she appears to assert under contracts other than HCR 92562.
Appellant is entitled to $6.67 as indemnity under the contract for the January 27, 1994 change realigning and curtailing her route. Appellant has not demonstrated entitlement to any other relief for that action or for any other curtailment that occurred under her contract. Accordingly, the appeal is sustained in the amount of $6.67 and is otherwise denied. Appellant's claims relating to additional costs she might have incurred because of harassment of her employees and hazardous and unexpectedly difficult conditions on the route are dismissed. This dismissal, however, is without prejudice, and would not preclude Appellant from proceeding before the Board if she submits a written claim to the contracting officer which 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