May 22, 1996
Appeal of
WILLIE B. JACKSON
Under Contract No. HCR 90020
PSBCA No. 3694
APPEARANCE FOR APPELLANT:
Willie B. Jackson
APPEARANCE FOR RESPONDENT:
Robert E. O’Connell, Esq.
OPINION OF THE BOARD
Appellant, Willie B. Jackson, has filed a timely appeal from a final decision of a contracting officer terminating Appellant’s highway route contract for default. Appellant contends that his failure to perform in accordance with the contract schedule was excusable and that the termination should be converted to a termination for convenience. Respondent, United States Postal Service, asserts that Appellant’s delays and omissions of service and subsequent abandonment of performance are not excusable and that the Contracting Officer properly terminated the contract for default.
At the request of Appellant and with the concurrence of Respondent, the appeal is being considered on the record in accordance with 39 C.F.R. §955.12.
FINDINGS OF FACT
1. On April 26, 1994, Appellant was awarded contract no. HCR 90020 for the transportation of mail between Los Angeles and Mojave, CA with intermediate stops in Lancaster and Van Nuys, CA (Appeal File (AF) Tab 1). Service under the contract was to begin on May 28, 1994, and continue through June 30, 1997. The annual mileage for the route was stated to be 424,272.66, the annual contract rate for the service to be performed was $333,000.00 and the annual hours to provide the service were estimated to be 12,811 (AF Tabs 1 & 2).
2. The contract required Appellant to arrive and depart at specific locations and times on each of the 12 trips listed in the contract schedule (AF Tab 1, Att. 1). The contract also required Appellant to devote a daily average of approximately 15 minutes for loading and unloading at both the head out and terminus points. However, the time for loading and unloading at intermediate stops was included in the route schedule (Id.).
3. The contract included the standard Postal Service “Basic Surface Transportation Services Contract - General Provisions” (PS Form 7407, July 1992) which in clause 16, Termination by the Postal Service for Default, permitted the Postal Service to terminate the contract for default if the contractor failed to perform according to the terms of the contract (AF Tab 1). The Default clause also provided for the conversion of a default termination to a termination for convenience if for any reason it was determined that the contractor was not in default or that the default was excusable (Id.).
4. Under Clause 15 of the contract, Release of the Contractor, the Contracting Officer was authorized to release Appellant from the contract if a physical disability prevented Appellant from adequately operating the route or if his life would be endangered by continued operation. In order for the release to be granted, the contract required Appellant to apply to the Contracting Officer for the release and agree to waive indemnity. Additionally, the contract required the Contracting Officer to determine that the release was in the best interest of the Postal Service and to secure a new contract (AF Tab 1).
5. On May 28, 1994, Appellant’s first day of performance, he was issued nine Contract Route Irregularity Reports (USPS Form 5500)[1] for trips 1, 3, 5 and 6-10, based on late arrivals and departures ranging from ½ hour to five hours and 15 minutes (AF Tab 20). On his second day, Appellant was issued four additional Forms 5500 for similar delays (Id.). On May 31, 1994, one additional Form 5500 was issued for a 19 minute late arrival and a 25 minute late departure from Mojave (Id.).
6. On May 31, 1994, the Mojave Postmaster complained to Postal Service transportation officials about Appellant’s poor service (AF Tab 3). In early June 1994, Postal officials met informally with Appellant to discuss his performance (AF Tabs 3 & 4).
7. By mid-June, 1994 service on the route still had not improved. Therefore, Respondent, by letter dated June 21, 1994, scheduled a formal conference with Appellant to discuss the chargeable irregularities that had been issued between June 2 and 20, 1994 (AF Tab 4). Attached to the letter was a list of 53 Forms 5500 which reflected delays ranging from 15 minutes to more than nine hours and three instances of omitted service (Id.). Twenty-seven additional Forms 5500 that were not referenced in the June 21, 1994 letter, were also issued in the month of June, reflecting omitted service and delays of up to four hours (AF Tab 21).
8. The formal conference with Appellant was held on June 27, 1994, (AF Tab 5). During the conference the parties discussed Appellant’s performance delays, mechanical problems and failure to reply to the Forms 5500 (Id.). The minutes of the conference indicate that Appellant attributed many of his delays and service omissions to hostility on the part of Mojave Postal officials. However, he acknowledged there were performance problems and agreed to take corrective action (Id.). At the conclusion of the conference, Appellant was given one week to “restore and maintain, one-hundred percent (100%) on-time performance permanently from the date of th[e] conference.” (Id.). Appellant was warned that if at any time he could not maintain 100% on-time performance a letter of warning would be issued and his file would be forwarded to the Contracting Officer for possible termination of the contract (Id.).
9. Twenty-three Forms 5500 were issued to Appellant between July 8 and 24, 1994. The forms show delays ranging from 20 minutes to three hours and 45 minutes with one instance of omitted service (AF Tabs 7, 18 & 22). By letter dated July 27, 1994, Respondent again notified Appellant that service on the route had not improved and requested that Appellant “take whatever action is necessary to restore and maintain one-hundred percent (100%) on-time performance permanently within three (3) days of receipt of this letter.” Appellant was warned that a failure to achieve satisfactory performance may “lead to termination of your contract.” (AF Tab 7). Between July 25 and 29, 1994, 15 additional Forms 5500 were issued for late arrivals or departures, ranging from 20 minutes to one hour and 45 minutes (AF Tab 22).
10. By memorandum dated July 28, 1994, the Mojave Postmaster notified the Contracting Officer that Appellant’s on-time record was less than 60% and that his irregularities in performance caused incalculable revenue loss and overtime of more than 600 hours at Mojave alone (AF Tab 8). The Postmaster requested that the Contracting Officer promptly take whatever actions were necessary to obtain compliance with the contract schedule (Id.). Between August 4 and 10, 1994, Appellant was issued 21 additional Forms 5500 reflecting omitted service and delays ranging from 20 minutes to as long as four hours (AF Tabs 14, 15 & 23).
11. From May 31 through August 10, 1994, a total of 154 Forms 5500 were issued against Appellant, all for omissions in service or delays exceeding 15 minutes. Appellant replied to only 33 Forms 5500. In the 33 replies, 13 refer to driver problems, 11 indicate mechanical problems and nine indicate delays due to traffic. Some of the Forms 5500 contained the explanations given at the time of the delay, which also attributed the deficiencies to traffic, mechanical or driver problems (AF Tabs 5, 7,14,15, 17, 18, 20-23). Ninety-two of the Forms 5500 issued to Appellant were from Mojave and the remaining 62 were issued by the other offices along the route (Id.).
12. Late in the day on August 10, 1994, Appellant notified Respondent’s Manager of Transportation Networks that he was no longer going to provide service on the route and thereafter he did not provide service on trips seven and eight that day (AF Tab 15). Beginning with trip nine, service on the route was performed by another contractor under a temporary emergency services contract (Id.).
13. On August 11, 1994, Appellant confirmed that he was not going to service the route and that he intended to default on the contract (AF Tab 11). By letter dated August 11, 1994, the Contracting Officer issued a final decision terminating Appellant’s contract for default effective close of business that same day. The decision stated that the termination was based on Appellant’s “anticipatory breech [sic] of contract and failure to perform service according to the terms of the contract” (AF Tab 12). By letter dated August 23, 1994, Appellant filed a timely notice of appeal.
Decision
Appellant contends that the delays, omissions of service and eventual abandonment of the contract were excusable and, therefore, that the contract should not have been terminated for default. According to Appellant, mechanical failures, driver illness, traffic conditions, problems with Respondent’s Mojave employees and poor health prevented him from performing in accordance with the terms of the contract. Therefore, he requests that the termination for default be converted to a termination for convenience of the Postal Service.
The record establishes that Appellant failed to comply with the contract schedule on numerous occasions (FOF 5, 7-13). Although Appellant contends his delays and omissions of service were excusable, he has not presented any evidence to support this contention. While the Forms 5500 do reflect mechanical failures, driver illness and traffic delays which could excuse some of Appellant’s performance deficiencies, Shorthaul Trucking Co., PSBCA 1046 (June 18, 1985) (unusually severe weather conditions caused excusable traffic delays); Arizona Barnes, PSBCA No. 945 (May 27, 1981) (mechanical failures may constitute excusable delays); Superior Building Maintenance, Inc., ASBCA Nos. 12067, 12198, 68-2 BCA ¶12,067 (inadequate manpower or equipment loss may constitute excusable delay), the number and severity of the unexplained deficiencies, were more than sufficient to justify the Contracting Officer’s ultimate determination to terminate the contract for default, Hunter L. Todd d/b/a Courier Express Mail & Package Delivery Service, PSBCA No. 1472, 86-3 BCA ¶19,061; Riley E. Thompson, PSBCA No. 1410, 86-2 BCA ¶19,001; Peggy A. Thornburg, PSBCA No. 2835, WL 81101 (July 7, 1989). Further, Appellant’s notice to Respondent that he was abandoning performance, Brooks E. Cook, PSBCA No. 1350, 86-3 BCA ¶19,073; James E. White, PSBCA No. 1022, 82-2 BCA ¶15,896; Hoyt Brothers Trucking, PSBCA No. 931 (June 24, 1981), and his subsequent failure to perform trips seven and eight on August 10, 1994, were also sufficient to justify the Contracting Officer’s decision to terminate the contract for default. Gregory Hildebrand d/b/a Nevertheless Messenger Service, PSBCA No. 1734, 88-3 BCA ¶20,833 (inexcusable failure to perform supports termination for default); Pamela J. Sutton, PSBCA No. 1622, 88-2 BCA ¶20,680 (inexcusable abandonment supports termination for default); Bowman’s Transportation, Co., PSBCA Nos. 1088, 1089, 1092, 84-1 BCA ¶17,217 (inexcusable failure to perform supports termination for default).
Additionally, Appellant has not provided any evidence in support of his contention that Mojave postal officials hindered or interfered with his performance of the contract. It is certainly true that the bulk of the irregularity reports were issued by Mojave (FOF 12), but Appellant has neither shown that those reports were unjustified or that the Mojave officials did anything other than accurately document Appellant’s chronically deficient performance.
Finally, Appellant has not established that his abandonment of the contract should be excused or that he should have been released from the contract because of his poor health. Other than Appellant’s bare assertion, there is no evidence of a physical disability which prevented him from adequately operating the route or that his life would be endangered by his continued performance in accordance with the contract schedule. Furthermore, there is no evidence of compliance with any of the additional requirements of the Release of the Contractor clause (See FOF 4). Thus, Appellant has not shown that he was entitled to be released from the contract or that any physical condition excused his failure to continue performing the contract.
Conclusion
The contract was properly terminated for default. Accordingly, Appellant’s appeal is denied.
James A. Cohen
Administrative Judge
Chairman
I concur:
James D. Finn, Jr
Administrative Judge
Vice-Chairman
I concur:
David I. Brochstein
Administrative Judge
Board Member
[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 in section 1 of the form. Section 2 provides space for the contractor to reply and advises the contractor that a failure to reply will be taken as an admission that the facts as stated in Section 1 are correct. Section 3 provides space for the comments of postal officials, including whether the deficiency is chargeable, i.e. unexcused, after reviewing the contractor’s response.