December 23, 1996

Appeal of

WILLIAM ROACH

Under Contract No. HCR 08234

PSBCA No. 3335

 

APPEARANCE FOR APPELLANT:

Richard M. Flynn, Esq.

 

APPEARANCE FOR RESPONDENT:

Deborah A. Davis, Esq.

 

OPINION OF THE BOARD

 

Appellant, William Roach, has appealed the termination of his mail transportation contract with Respondent, United States Postal Service.  Respondent terminated the contract for default based on Appellant’s alleged failure to perform according to the requirements of the contract.

A hearing was held, and the parties submitted post-hearing briefs.

FINDINGS OF FACT

1.  On June 11, 1991, Respondent renewed contract HCR 08234 with Appellant for transportation of mail between Pleasantville and Marmora, New Jersey, with stops at a number of post offices along the route, for the period July 1, 1991, through June 30, 1992.  Respondent’s South Jersey Division Logistics office, in Bellmawr, New Jersey, oversaw the operation of the route, although the contracting officer was at the Philadelphia Transportation Management Sectional Center.  (Hearing Transcript, Pages (“Tr.”) 9, 82, 128; Appeal File, Pages (“AF”) 7-70).

2.  The contract required Appellant to “carry all mail tendered for transportation under this contract, whatever may be its size and weight, with certainty, celerity, and security . . . .” (AF 20, Basic Surface Transportation Services Contract General Provisions, PS Form 7407T, March 1989, General Provision 4(a)).

3.  Appellant was to provide the service using one 1200 cubic foot vehicle, and the contract required him to have sufficient stand-by equipment of the same type readily available to permit maintenance and to prevent delays from emergencies such as mechanical failures (AF 14-15, Contract Section 15).

4.  The contract required Appellant to “comply with all safety measures for protection of the general public and operating personnel.”  (AF 21, General Provision 5).

5.  The termination clause of the contract, Termination by the Postal Service for Default, provided, in part, “The Contracting Officer may terminate this contract for default: (1) For Contractor’s failure to perform service according to the terms of the contract.”  (AF 26, General Provision 16(a)(1)).

6.  The contract required Appellant to make five round trips each weekday and four on Saturday between Pleasantville and Marmora, New Jersey, making stops at Northfield, Linwood, Somers Point and Ocean City.  Appellant was not required to stop at each post office on every trip.  When the contract was renewed in 1991, the contract schedule was modified, but the new schedule proved unworkable.  Over the first weeks of the renewal term, the parties met and worked out adjustments to the schedule by trial and error, and a new schedule was prepared to be effective July 27, 1991.  (Tr. 94-95, 110, 131, 152-153, 323, 339-341, 448; AF  4-6, 10, 88-93; Supplemental Appeal File, Tab (“SAF”) 2).

7.  The first round trip of the day, Trips 11/12, leaving Pleasantville at 3:00 a.m., was added at the time of renewal.  Pleasantville was the hub office for receipt of mail from South Jersey Division for further distribution to the post offices along Appellant’s route and for receipt of their outgoing mail for dispatch to South Jersey (Tr. 144, 324).  The main reasons for adding Trips 11/12 were to free the cramped and congested dock at Pleasantville for further mail processing by dispatching the mail received before 3:00 a.m. from South Jersey to the post offices on Appellant’s route and to get those offices their mail earlier, especially Ocean City.  (Tr. 99-100, 144, 326; SAF 4).  Trip 11 went only as far as Ocean City, scheduled to arrive there at 3:30 a.m.  Appellant was to leave Ocean City at 3:50 a.m. for the return (inbound) Trip 12, arriving back at Pleasantville at 4:15 a.m.  The next outbound trip, Trip 1, was scheduled to leave Pleasantville at 4:30 a.m.  On Monday through Friday, at the conclusion of Trip 4, an inbound trip, Appellant was to lay over at Northfield, the stop immediately preceding Pleasantville, from 8:40 a.m. until 11:45 a.m. and arrive at Pleasantville at noon, just before the next outbound trip.  On Saturday, Appellant was not scheduled to have a layover at Northfield but was to conclude Trip 4 at Pleasantville at 8:55 a.m. under the schedule that became effective July 27, 1991.  The original renewal schedule had required a 9:00 a.m. return to Pleasantville to conclude Trip 4 on Saturday.  (AF 5, 10; see SAF 4).

8.  On the trips for July 22 (AF 120), 23 (AF 119) and 24, 1991 (AF 118), Appellant did not return to Pleasantville at the conclusion of Trip 4 even though the written schedule required such return (Tr. 275-276, 341; AF 5, 10, 118, 119, 120).  A Contract Route Irregularity Report, PS Form 5500,[1] was issued for each instance, and a copy was sent to Appellant (Tr. 83, 86).  In the space provided for the contractor’s response on the copy of each of the 5500s, Appellant noted that he had acted according to verbal instructions of South Jersey Logistics not to return to Pleasantville on Trip 4.  (Tr. 340-343, 350-352; AF 118-120).

9.  On October 26 (AF 116), November 2 (AF 114), 9 (AF 113), and 16 (AF 112), 1991, all Saturdays, Appellant’s driver did not return to Pleasantville for the last stop of Trip 4 as required by the schedule (Finding 7).  Forms 5500 were prepared by the Transportation Requirements Analyst (“TRA”) at South Jersey who discovered the deficiencies during her review of the monthly log of all highway contract trips to and from Pleasantville.  The 5500s were sent to Appellant in a batch at the end of November.  (Tr. 25, 72, 86, 353, 362-364).

10.  On October 10 and November 1, 1991, Appellant failed to perform Trips 11/12 (Tr. 275; AF 5, 115, 117).  These failures were reported on PS Forms 5500, which were sent to Appellant (Tr. 86), and a pro rata deduction was made from Appellant’s pay.  (AF 101, 115, 117).  On November 1, heavy rains and flooding had made at least part of Appellant’s route impassable, although he could have made it to Northfield (Tr. 172, 355-361, 391).

11.  On November 21, 1991, at Pleasantville, Appellant’s driver refused to load two containers of outgoing First Class mail for the Northfield Post Office, which was the first stop on the route, even though there was room for the containers on the truck.  The driver stated that he had been directed by Appellant to load no more than the fifteen containers already on the truck.  This information was written up on a 5500 by the TRA, and sent to Appellant.  (Tr. 86, 365-366, 389, 413; AF 111).

12.  In a November 25 letter, signed by the South Jersey Logistics Manager but drafted by the TRA, Respondent called Appellant to a meeting to be held December 5, 1991, at South Jersey Division (AF 86-87).  The letter included copies of the 5500s and listed the performance deficiencies.  The letter identified the last four occasions of a failure to return to Pleasantville after Trip 4 (Finding 9), as well as the missed Trips 11/12 (Finding 10), as “Omitted Service”.  (AF 86-87).  At the meeting, Respondent’s officials advised Appellant of their concerns about his performance under the contract and notified Appellant that unless he maintained 100% satisfactory performance thereafter, Respondent would take further action (Tr. 95-98, 384; AF 84-87).

13.  At the December 5, 1991 meeting, Appellant did not complain that he was not receiving 5500s relating to the performance deficiencies, and he was reminded of the need to reply to any 5500s issued to him.  (Tr. 58, 86, 131, 188, 193).

14.  Appellant failed to perform Trips 11/12 on February 28 (AF 108; contra Tr. 403-404) and April 28, 1992 (AF 107).  Forms 5500 were issued and sent to Appellant, each noting the reason given by Appellant or his driver contemporaneously why the runs were missed:  “driver alarm was set wrong” (February 28), and “mechanical truck problems” (April 28) (Tr. 275; AF 107, 108).  A 5500 was also issued noting that Trips 11/12 were omitted on January 22, 1992 (AF 109), and recording Appellant’s contemporaneous explanation, “could not get truck started”.  On January 24, Appellant responded further on the 5500 that had been sent to him, stating that the driver had notified Pleasantville of the problem and suggesting that the truck did arrive, albeit late.  (Tr. 402; AF 109).

15.  On May 5, 1992, Respondent and Appellant extended the expiration date of the contract by one year, from June 30, 1992, to June 30, 1993 (Tr. 65-66, 398, 422-423; AF 3-4).

16.  Appellant failed to perform Trips 11/12 on May 22 and 23, 1992 (Tr. 275, 309; AF 105-106; contra Tr. 406-409).  Appellant received 5500s relating to these dates that contained Respondent’s local official’s characterization of the deficiency: “Failure to run Trip #11&12 of contract schedule” (May 22) and “Did not perform Trips 11&12" (May 23).  Appellant responded to the former on May 29 and the latter on June 4.  In the section of the 5500 designated for the contractor’s response, Appellant wrote for each incident that he had been repairing the E-track of the truck (associated with the restraint system in the interior of the truck box) (Tr. 86-87, 181; AF 105-106).  Appellant did not state on the 5500s that he had performed the trips (AF 105-106).

17.  On April 16, 1992, deductions were made from Appellant’s pay for the missed service of February 28, and on June 1, 1992, deductions were made for the missed service on January 22, April 28 and May 22 (Tr. 15, 192; AF 99, 100).  Copies of the documents effecting the deduction were sent to Appellant (AF 99, 100).

18.  In a May 29, 1992 memorandum, drafted by the TRA for her manager’s signature, the South Jersey Division asked the contracting officer to take action to correct the service deficiencies on the route (AF 77-78).

19.  In a June 10, 1992 letter, the contracting officer advised Appellant that the omitted service of January 22, February 28, April 28, and May 22 (Findings 14, 16) constituted unsatisfactory service.  The four instances were plainly identified by the contracting officer as omitted service.  Appellant was notified that the letter was “a final warning, and that the Postal Service may terminate [his] contract for failure to perform unless satisfactory service is restored within ten (10) days of receipt of this letter, and maintained for the remaining term of the contract.”  (AF 75).  Appellant received the letter on June 12 (Tr. 416; AF 76), but he did not reply or object to the content of the letter or complain of not receiving 5500s relating to performance deficiencies (Tr. 58, 86-87, 192).

20.  Appellant did not perform Trips 11/12 on July 2 and 3, 1992 (Tr. 292-293, 302; SAF 3; contra 424-428).  Respondent’s group leader mail handler on the platform at the Pleasantville Post Office completed 5500s showing that Appellant had failed to make Trips 11/12 on those days (Tr. 274; SAF 3).  The 5500s, or reissued versions of them, were sent to Appellant (Tr. 86-88, 103, 302; AF 103, 104; SAF 3).  The group leader had noted on Form 5500 for July 3 “Driver called sick, but could not get in contact with sub. driver.”  The 5500 for July 2 contained no explanation for the failure.  (SAF 3).

21.  Based on those reports of failure to perform on July 2 and 3, and a thorough consideration of the entire record of Appellant’s performance since the 1991 renewal, the contracting officer terminated Appellant’s contract on July 21, 1992, citing General Provision 16(a)(1), for Appellant’s failure to perform service according to the terms of the contract.  The contracting officer based her decision primarily on the instances of omitted service.  (Tr. 11-19, 73; AF 122-123).  This appeal followed.

DECISION

Respondent argues that the default termination was justified by Appellant’s many failures to perform according to the requirements of the contract, which failures are documented in the PS Forms 5500, Contract Route Irregularity Reports.  According to Respondent, the deficiencies were serious and continuing, and Appellant was warned through meetings with Respondent’s personnel and the final warning letter of the contracting officer that further deficiencies would not be tolerated.  According to Respondent, the subsequent two instances of omitted service, when considered with Appellant’s performance over the past year, justified the termination for default.

Appellant argues that the performance deficiencies reported on the 5500s did not occur or were excusable.  He contends that many of the 5500s were false and were issued by or at the direction of the TRA in South Jersey, who, because of a disagreement with Appellant, had targeted his contract for termination.  He contends the termination of his contract was unjustified and resulted from the bad faith actions of Respondent’s officials.  Furthermore, he argues that the 5500 process was not followed and that, except on a few occasions, he was not given copies of the 5500s promptly and afforded an opportunity to respond to the charges in them.  Finally, he argues that Respondent has not shown that any service deficiencies on his part had any adverse impact on Respondent’s operations and that, therefore, termination was not justified.

Respondent has the burden of proving that the termination was justified by demonstrating that Appellant failed to perform in accordance with the contract.  Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 765 (Fed. Cir. 1987); Patricia J. Stevens, PSBCA No. 3272, 94-1 BCA ¶ 26,419 recon. denied 94-2 BCA ¶ 26,951.  It has met that burden.

Appellant failed to complete Trip 4 on four successive Saturdays in October and November 1991 (Finding 9) and from October 1991 through the termination in July 1992, Appellant omitted service on Trips 11/12 at least seven times (Findings 10, 14, 16) and was late or omitted service on those trips one additional time, January 22, 1992 (Finding 14).  Additionally, Appellant’s driver refused to carry all the available mail on November 21, 1991 (Finding 11).  Respondent advised Appellant in the December 1991 meeting of its dissatisfaction with Appellant’s performance and that it would not tolerate more performance deficiencies (Findings 12, 13).  More instances of omitted service occurred, and on June 10, 1992, the contracting officer gave Appellant a written final warning that further unsatisfactory performance could be cause for termination of the contract (Findings 14, 16, 19).  The July 2 and 3 failures to run Trips 11/12 (Finding 20) justifiably caused the contracting officer to review Appellant’s performance over the entire term of the renewal contract, and the performance deficiencies over that time were sufficient to justify termination.[2]

We are not persuaded by Appellant’s testimony that for most of the instances stated by Respondent to be nonperformance of Trips 11/12, he actually performed the trips, albeit late.  Except regarding the January 22, 1992 trip, there is no evidence that Appellant made such contentions contemporaneously.  While suggesting in response to the 5500 of January 22, 1992, that he was only late (Finding 14), Appellant made no similar response regarding February 28 and April 28 either through the 5500 or after he received the June 10 final warning that listed those instances as omitted service (Findings 14, 19).  In responding to the 5500s for May 22 and 23, 1992, Appellant stated that, for both mornings, he was repairing the E-track in the truck.  He did not say at that time that he was only slightly late but made the trips (Finding 16), which is what he now contends.  Surely Appellant would have also contemporaneously objected to Respondent’s nonperformance characterization if he had only been slightly late.

When Appellant received the contracting officer’s June 10, 1992 final warning letter noting the instances of omitted service (Finding 19), he knew that Respondent had issued 5500s for the identified instances and that Respondent considered that Trips 11/12 on January 22, February 28, April 28 and May 22 were not performed.[3]  Appellant did not respond to the contracting officer at that time or make any effort to correct what he now contends were improper characterizations of his slightly late arrivals as omitted service.  Additionally, deductions were made from Appellant’s pay based on the instances of omitted service (Finding 17), and surely Appellant would have promptly complained had he believed that such deductions were unjustified.  Under these circumstances, the written contemporaneous reports are entitled to greater weight than Appellant’s contrary testimony presented at the hearing.  See United States v. United States Gypsum Co., 333 U.S. 364, 396 (1947).

Respondent has shown that Appellant did not meet the contract requirements.  Therefore, 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 recon. denied 94-2 BCA ¶ 26,951; 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.

The failures to return to Pleasantville on Trip 4 on successive Saturdays after the amendment of the schedule (Finding 6) are not excusable.  We do not accept Appellant’s argument that the requirement to return to Pleasantville on Saturdays was added to the schedules without his knowledge.  Appellant signed the modification of which the new schedule was a part and must be presumed to know what was in the schedule.  See Marine Design Technologies, Inc., ASBCA No. 39391, 94-1 BCA ¶ 26,355.  Furthermore, both the original and new schedules required that Appellant return to Pleasantville at the conclusion of Trip 4 on Saturdays.

Additionally, Appellant’s driver’s refusal to carry two containers of First Class mail on November 21, 1991 (Finding 11), is a material breach of Appellant’s duties under the contract (Finding 2), and Appellant has not shown the refusal to be excusable.  Mail transportation contractors are held to strict requirements to carry all of the mail tendered, and it is Appellant’s burden to demonstrate that for safety reasons, his driver was justified in refusing to take the two containers of mail.  See Arnette B. Fleming Hauling, Inc., PSBCA No. 2872, 91‑2 BCA ¶ 23,868 at 119,567; Estelle McCormick, PSBCA No. 1030, 83‑2 BCA ¶ 16,574; Road Service, Inc., PSBCA No. 1023, 83‑1 BCA ¶ 16,218 at 80,588.  Appellant argued that to have placed the two containers sideways at the back of the truck would have violated the contract’s safety requirements (Finding 4) and would have endangered the driver when unloading at stops down the line.  The reason given by the driver at the time, however, was simply that he had been instructed by Appellant not to load more than 15 containers on the truck even though 17 would fit, and there is no evidence that 17 containers would have exceeded the capacity of the truck.  Moreover, the containers left behind were destined for Northfield, the first stop on the route, so they would not have interfered with the safe performance of the rest of Appellant’s route.  Appellant did not demonstrate that loading the containers, for which there was room on the truck, constituted a hazard so significant that refusing to carry mail tendered by Respondent, in violation of the express contract requirements (Finding 2), was excusable.  See Pamela J. Sutton, PSBCA No. 1622, 88-3 BCA ¶ 21,031.

The performance deficiencies considered most significant by the contracting officer were the instances of omitted service (Finding 21), and failing to make a scheduled trip is a serious violation of the contract requirements.  The 3:00 a.m. trip obviously caused Appellant problems, because it is the only trip from the entire schedule that Appellant totally omitted, and he missed it on at least seven[4] occasions.  Under the circumstances of this appeal, mechanical problems with his vehicle or the driver oversleeping or his own illness do not constitute excuses for failure to perform Trips 11/12.  Appellant was responsible for assuring that the contract was performed, even at 3:00 a.m., and was to have available back-up equipment and substitute drivers to use in the event his vehicle was unavailable or his driver could not perform (Finding 3).  See B.C. Topps d/b/a B.C. Topps Transport, PSBCA No. 2241, 89‑1 BCA ¶ 21,563.  The pattern of omitted service on this contract demonstrates a failure to provide for satisfactory, reliable service.  Additionally, refusing to carry mail tendered is a serious violation of the requirements of Appellant’s contract.  Therefore, the failures to complete Trip 4, the omissions of Trips 11/12 and the refusal to carry mail provided the contracting officer reasonable grounds for terminating the contract.  See Ernest Johnson, PSBCA No. 3658, 95-2 BCA ¶ 27,692; William Cimpi, PSBCA No. 2695, 91-1 BCA ¶ 23,390; Henry Lee Yon, PSBCA No. 932, 81-1 BCA ¶ 15,076.

Appellant’s argument that any missed trips had no impact on Respondent’s operation and thus are not grounds for termination is rejected.  Pleasantville’s was a crowded and congested dock, and getting the mail for the downstream post offices off the dock was a prime reason for setting up the 3:00 a.m. trip in the first place (Finding 7).  That Appellant might have carried the same mail and equipment on the day’s second trip, leaving Pleasantville at 4:30 a.m., does not mean that the failure to perform Trips 11/12 was excusable or nonchargeable.  Appellant contracted to perform Trips 11/12, and his failure to do so is a contract violation, notwithstanding his belief that later delivery adequately served the post offices’ needs.  See J & M Trucking, PSBCA No. 2804, 92-1 BCA ¶ 24,598 at 122,724.

Appellant did not show that the system of issuing 5500s was flawed.  Appellant contends that the termination should be set aside because Respondent’s officials failed to follow Respondent’s established procedure for reporting performance deficiencies.  First, he argues that there was no informal discussion with him regarding correction of any performance failures as he contends is required by Respondent’s procedures as set forth in the USPS Mail Transportation Procurement Handbook (Finding 8, Footnote 1).  However, Respondent’s officials worked with Appellant to resolve schedule problems at the beginning of the renewal term, met with Appellant to discuss his performance on the route, and wrote to him addressing his performance (Findings 6, 12, 19).  Furthermore, Appellant has not suggested how his failures to perform Trips 11/12 because of mechanical or driver failures would have been corrected by additional informal discussions.  Thus, Appellant has not shown that Respondent failed to communicate with him regarding his performance of the route and has not demonstrated that he was prejudiced by Respondent’s handling of the correspondence, discussions and meetings relating to his performance.

Next, Appellant argues that the 5500s were unreliable because they were issued by persons who did not observe first hand the deficiencies reported.  Of the 5500s found to support the termination for default, those relating to the failure to return after Trip 4 (Finding 9) were prepared by the TRA from monthly logs, and she did not personally observe the deficiencies.  Likewise, the 5500 relating to Appellant’s driver’s refusal to carry mail on November 21, 1991 (Finding 11), was prepared by the TRA, evidently based on information reported to her because she was not present when the incident occurred.  However, Appellant has not disputed that the instances reported on those 5500s occurred as reported, so whether the forms’ preparer actually observed the events is academic.  The other 5500s that support our findings were prepared by employees of Respondent who appear to have had first hand knowledge of the irregularities reported.  With respect to the critical 5500s for July 2 and 3, 1992 (Finding 20), Appellant vigorously disputed their accuracy, contending that he performed Trips 11/12 on both days and that the group leader whose name appears on them was not at work those days and prepared the 5500s later.  Based on our observation of the witnesses and evaluation of the testimony and documents regarding the events of July 2 and 3, we have found that the group leader’s reports of omitted service on those dates were accurate.

Finally, Appellant has argued that Respondent did not send copies of the 5500s to him.  Those for the failures to complete Trip 4 were not sent until the end of the month following their occurrence (Finding 9), but the evidence is that the others were sent to him promptly (Findings 10, 11, 14, 16, 19).  His contemporaneous responses on many of the 5500s demonstrate he did receive them, and he did not complain to Respondent’s officials of nonreceipt when he indisputably became aware that 5500s were being issued (Findings 13, 19).  We do not find that Appellant was prejudiced by a failure to receive 5500s.

Appellant has not shown that Respondent failed to follow the procedures for issuance of 5500s in any material way.  He has not shown that he was prejudiced by the process followed or that Respondent’s handling of the 5500s would be a basis for overturning the termination for default that is otherwise justified.  See B&E Mail Transport, Inc., PSBCA No. 947, 82‑2 BCA ¶ 15,912 at 78,870; H. L. Clemons, PSBCA No. 569, 1980 WL 3063, February 29, 1980.

Finally, Appellant has not shown bad faith on the part of Respondent’s officials.  Appellant has argued strenuously that the Transportation Requirements Analyst at South Jersey had targeted his contract for termination because of differences between them.  He produced evidence that several months after his contract was terminated, the TRA had taken actions adverse to another highway contractor who had fired a driver who was a friend of hers.  Two other contractors testified that the TRA could be vindictive.  Appellant also demonstrated that the TRA drafted correspondence for her manager’s review, revision and signature (Findings 12, 18).  This does not amount to a showing that she administered Appellant’s contract in bad faith.  There was no credible evidence that she fabricated 5500s relating to Appellant’s performance or that she told any other postal official to do so, as Appellant suggested, or that any of her actions were motivated by a desire to harm Appellant.  Appellant has not met his burden of demonstrating that the TRA acted in bad faith.  See Kalvar Corp. v. United States, 211 Ct. Cl. 192, 198-199, 543 F.2d 1298, 1301-02 (1976) cert. denied, 434 U.S. 830 (1977); Patricia J. Stevens, PSBCA No. 3272, 94-1 BCA ¶ 26,419 at 131,430 recon. denied 94-2 BCA ¶ 26,951.

Furthermore, the contracting officer acted independently in terminating the contact, and only did so after a thorough review of the contract files (Finding 21).  The evidence does not show that the TRA had any influence over the contracting officer, or that the contracting officer had any knowledge of hard feelings that might have existed between Appellant and the TRA.  There is no evidence of ulterior motives or bad faith by the contracting officer in making the termination decision, see Jaehee Yoshimoto, PSBCA Nos. 2315, 2749, 92-1 BCA ¶ 24,504 at 122,314; J & M Trucking, PSBCA No. 2804, 92-1 BCA ¶ 24,598 at 122,723, and the contracting officer did not act arbitrarily or abuse her discretion.

The appeal is denied.

Norman D. Menegat

Administrative Judge

Board Member

 

I concur:

James A. Cohen

Administrative Judge

Chairman

 

I concur:

David I. Brochstein

Administrative Judge

Vice Chairman


[1]  PS Form 5500, Contract Route Irregularity Report, is a form used by Respondent to notify transportation contractors of deficiencies in their performance.  Respondent's employees at the point where the irregularity occurs note the deficiency on the form, and a copy of the form is to be sent to the contractor through the contract's administrative official (South Jersey in this case).  The form provides space for the contractor to reply and provide any explanation for the identified irregularity.  (Tr. 14-15, 29-34).  If irregularities persist or become more serious, Respondent’s guidelines require the administrative official to follow the following sequence if each preceding step does not achieve satisfactory service:  informal discussions with the contractor to try to correct the deficiencies, a conference, a certified letter requesting improvement and, finally, referral to the contracting officer for action.  (Handbook PO-513, February 1990, USPS Mail Transportation Procurement Handbook, 2.6.2).  The Mail Transportation Procurement Handbook is intended only for the internal guidance of Respondent’s officials in the performance of their duties.  (Transmittal Letter 2, February 1990, USPS Mail Transportation Procurement Handbook).

[2]  We have not considered the July 1991 failures of Appellant to return to Pleasantville after Trip 4 (Finding 8) as breaches of the contract requirements.  The original renewal schedule had proved unworkable, and the parties were in the process of revising it (Finding 2).  Oral permission had been given Appellant to vary the contract schedule in certain respects, and the parties were refining the schedule as they went along.  Respondent has not demonstrated that those failures constituted breaches of a contract schedule the parties had agreed to.

[3]  Although the contracting officer did not list the omitted service of May 23 in her final warning letter, Appellant had already received the 5500 for that date which clearly stated that Appellant had not performed Trips 11/12 (Finding 16).

[4]  Appellant contended that he performed Trips 11/12 on January 22, 1992, and he did provide a contemporaneous response to the 5500 for that date suggesting that he arrived at the post office late.  The portion of the 5500 in the appeal file showing the time Appellant said he arrived is illegible, so it is not possible to determine whether he was late for Trips 11/12 or missed 11/12 but arrived in time for the next trip, Trip 1, leaving at 4:30 a.m.  (Finding 14).  Whether omitted or late, however, Appellant failed on that date to perform according to the requirements of the contract because his truck could not be started, and there is no evidence that Appellant had a backup vehicle available as required by the contract (Finding 3).  Additionally, we have not counted the November 1, 1991 omitted service, considering nonperformance of that trip to be excused because of bad weather and flooding along the route (Finding 10).