June 26, 1996
Appeal of
NANA KWABENA YABOAH
Under Contract No. HCR 10545
PSBCA No. 3744
APPEARANCE FOR APPELLANT:
George Kuntu-Blankson, Esq.
APPEARANCE FOR RESPONDENT:
Anna V. Crawford, Esq.
OPINION OF THE BOARD
This appeal arises from a contracting officer’s termination of Appellant’s highway transportation contract due to Appellant’s failure to perform the contract services. A hearing was held at Appellant’s request.
FINDINGS OF FACT
1. Appellant was awarded highway transportation contract HCR 10545 on December 2, 1994, to provide mail transportation services between postal facilities in Westchester and Mohegan Lake, New York, making four intermediate stops. The contract term was from December 3, 1994, to June 30, 1997, at an annual rate of $101,840.38. (Appeal File (AF)-9).
2. The contract specifications contained a provision entitled “Schedule and Frequency Requirements” which required Appellant to provide six trips (three round trips) daily except Sundays and Holidays (AF-10).
3. Incorporated into the contract was PS Form 7407 (July 1992) “Basic Surface Transportation Services Contract - General Provisions,” which included the following:
3. LAW AND REGULATIONS APPLICABLE. This contract and the services performed thereunder are subject to applicable laws and regulations made pursuant thereto. The Contractor shall faithfully discharge all duties and trusts imposed upon him by such laws and regulations.
4. SERVICE REQUIREMENTS AND PROHIBITIONS. (a) The Contractor shall carry all mail tendered for transportation under this contract, whatever may be its size and weight, with certainty, celerity, and security, in accordance with the operating schedule and between the points fixed in the solicitation, . . . .
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16. TERMINATION BY THE POSTAL SERVICE FOR DEFAULT.
(a) The Contracting Officer may terminate this contract for default:
(1) For Contractor’s failure to perform service according to the terms of the contract;
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(10) If the Contractor’s transportation equipment is insufficient, inadequate, or otherwise inappropriate for the service;”
(AF-10)
4. The specifications contained the following provision entitled “Vehicle Requirements and Specifications”:
“A. The number of vehicles identified below is the minimum vehicle requirement. The contractor will also be required to have readily available sufficient standby equipment of the type(s) listed below to perform extra trips, to permit vehicle maintenance, and to prevent delays in emergencies such as mechanical failures and poor weather conditions.
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C. The contractor will be required to provide as a minimum the vehicle(s) indicated below:
TYPE OF VEHICLE: CUBES NUMBER
STRAIGHT TRUCK CAB-OVER 800 2“
(AF-10).
5. On the first day of service, Saturday, December 3, 1994, Appellant did not report to the Westchester facility to perform Trip 1, which was scheduled to leave Westchester at 4:00 a.m. (Transcript (Tr.) 20, 61; AF-11; Stipulation No. 6). He also did not perform Trip 2, which was to return to Westchester from Mohegan Lake (AF-11). Appellant performed the remaining four trips on that day (Stipulation No. 6).
6. On Monday, December 5, 1994, Appellant commenced Trip 1, but his vehicle broke down in the vicinity of Mohegan Lake. Appellant did not perform Trips 2, 5 and 6 that day (Tr. 23, 63; AF-11; Stipulation No. 7), and Respondent arranged for service on those trips to be performed by another contractor (AF- 11). Appellant performed Trips 3 and 4, although Trip 4 was late by approximately 2 hours (Stipulation No. 7).
7. At the time of the vehicle breakdown on December 5, Appellant had no standby equipment. The vehicle that broke down required a new clutch and was not available for service on December 6 (Tr. 163). Appellant’s other vehicle had a broken windshield wiper, and, on December 5, it did not appear that it would be available for Appellant’s first trip on December 6. Respondent’s Manager, Transportation Networks, Westchester, therefore advised Appellant’s driver that Respondent would perform the first round trip of the day (Trips 1 and 2), but that Appellant must perform the others (Tr. 63, 69, 70, 99-100). Appellant did not perform Trips 1 and 2 that day (December 6), but did perform the remaining trips (Tr. 24; AF-11; Stipulation No. 8).
8. Appellant’s failure to make the trips that he missed over the first three days of the contract had a significant adverse impact on Respondent’s operations (Tr. 26-27, 61, 63-64, 72-73, 90).
9. At the Contracting Officer’s direction, Respondent’s Transportation Contract Specialist orally terminated Respondent’s contract on December 6, 1994, effective at the close of business on that day (Tr. 28; Stipulation No. 9). A formal letter of termination was sent to Appellant on December 12, 1996, terminating his contract under clause 16(a)(1) of the contract’s General Provisions for failure to perform service according to the contract terms. A timely appeal followed. (AF-12, 13).
DECISION
Respondent has established that reasonable grounds existed for the default termination. Marvin K. Reese, PSBCA No. 3139, 92-3 BCA ¶ 25,188. Appellant omitted two trips (one round-trip) on the first day of contract performance. On the second day of performance, he omitted three one-way trips, was unable to complete another trip and was two hours late in performing another. He had no backup vehicle and thus was unable to perform the first two trips (one round-trip) on the third day of performance.
Appellant has not established that the deficiencies were excusable. Arnette B. Fleming Hauling, Inc., PSBCA No. 2872, 91-2 BCA ¶ 23,868. Appellant testified, as did his driver, that on day one of the contract the driver was at the Westchester facility at 3:30 a.m. to perform the first trip of the day,[1] yet somehow was prevented from performing by either Respondent or the presence of other trucks. Appellant also testified that he had a backup truck available on December 6, 1994. Such testimony was not credible and is rejected in its entirety. The credible testimony of Respondent’s witness to the effect that there was no one in the truckyard on the first day of contract performance at 4:00 a.m. is accepted and negates such excuse by Appellant for his non-performance. In regard to the availability of a backup vehicle, Appellant’s testimony was vague and evasive. Further, Appellant had no documentary proof of the ownership of such a vehicle.
In conclusion Appellant did not perform the services required under his contract on December 3, 5, or 6. Such failure to perform disrupted
Respondent’s operations, thereby warranting contract termination. The appeal is denied.
James D. Finn, Jr.
Administrative Judge
Vice Chairman
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
Norman D. Menegat
Administrative Judge
Board Member