October 7, 1996

Appeal of

ROY DECKER

Under Contract No. HCR 18461

PSBCA No. 3816

 

APPEARANCE FOR APPELLANT:

Roy A. Decker

 

APPEARANCE FOR RESPONDENT:

Deborah A. Davis, Esq.

 

OPINION OF THE BOARD

Roy Decker, Appellant, has appealed the termination of his mail transportation contract with Respondent, United States Postal Service.   Respondent terminated the contract for default for failure to perform service according to the terms of the contract.  At the election of the parties, this appeal is being decided on the record without an oral hearing.  39 C.F.R. §955.12.

FINDINGS OF FACT

1.  On June 19, 1992, Appellant was awarded HCR Contract 18461 for the transportation of mail between Nicholson and Clifford, Pennsylvania, for the term July 1, 1992, to June 30, 1996.  (Appeal File Tab (AF) 8).

2.  The contract contained “Basic Surface Transportation Services Contract General Provisions,” PS Form 7407T, March 1989.  The relevant provisions therein are as follows:

“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 . . .”

* * *

 

“8.  ACCOUNTABILITY OF THE CONTRACTOR

 

(a) The Contractor will give either personal or representative supervision over the operation of the route and must be easily contacted in the event of emergencies, to give personal or representative attention to the problem at hand.”

 

* * *

“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.”  (AF 8).

3.  In July 1993, Appellant left the Nicholson, Pennsylvania, area to go to Wyoming to take care of personal business concerns.  In his absence, Appellant left substitute mail drivers, James and Sandra Pedrick, to deliver the mail on his route.  Appellant did not inform the postmaster, or any other Postal Service official that he would be out of the area nor did he leave a telephone number where he could be reached.   (Walters Declaration; Complaint).

4.  As a result of Appellant’s absence, the postmaster had to handle the day-to-day problems that arose on Appellant’s route.  These problems included arranging for substitute drivers for the route.  (AF 4; Walters Declaration).

5.  In January 1994, Appellant’s substitute driver, Ms. Pedrick complained to the Nicholson postmaster about not being paid by Appellant.  (Walters Declaration).  Respondent’s contracting specialist contacted Appellant in Wyoming through his substitute driver and advised him he needed to return immediately to Pennsylvania and provide personal supervision for the operation of his contract.  In response, Appellant returned to Nicholson for eight days in February.  During this eight-day period, Appellant spent two days training substitute driver Sue Polovitch.  Appellant then returned to Wyoming, again without notifying any Postal Service official or leaving a telephone number where he could be reached.  (Declarations of Walters and Moore).

6.  For the remainder of 1994, Appellant’s route was performed by substitute driver Sue Polovitch.  In Appellant’s absence, either Ms. Polovitch or the postmaster would perform Appellant’s route management tasks such as arranging for substitute drivers, as well as filling out the necessary route forms.  (Declarations of Polovitch and Walters).

7.  On December 14, 1994, Ms. Polovitch tried to contact Appellant at the telephone number he had left with her but found it to have been disconnected.  On the same day she advised the postmaster of her inability to contact Appellant by telephone and of her decision to cease mail delivery on the route effective December 23, 1994.  She then sent a certified letter to Appellant advising him that her last day would be December 23, 1994.  Ms. Polovitch provided service on the route through December 23, 1994, but not thereafter.  (AF 5, Polovitch Declaration).

8.  Also on December 14, 1994, Respondent tried unsuccessfully to contact Appellant at the Pennsylvania number listed in his contract.  (Declaration of Moore).

9.  Having been unable to contact Appellant to have him arrange for a substitute driver for Ms. Polovitch, Respondent awarded an emergency contract to take effect on December 23, 1994.  The emergency contract commenced on December 23, 1994, without Appellant ever directly contacting Respondent[1] or providing service on the route on or after December 24, 1994.  (Declaration of Walters).

10.  By letter dated December 23, 1994, the contracting officer terminated Appellant’s contract, effective the same date, for failure to perform the service according to the terms of the contract.  (AF 2).

11.  Appellant appealed the termination.  In his Complaint, Appellant contended that Respondent owed him $963.83 in unpaid contract funds as well as $325.00 of administrative costs which were assessed against him.  (AF 1; Complaint).

DECISION

Respondent argues that  Appellant’s prolonged absences, his failures to inform postal officials of his absences or to leave a telephone number where he could be reached, his failure to provide personal or representative supervision to his route while absent, and finally the inability of Postal Service officials to contact him when Ms. Polovitch declared her intention to cease operating the route, effective December 23, 1994, all constitute adequate grounds to terminate the subject contract for default.  Appellant does not dispute the above stated facts.  Appellant argues however, that his past faithful operation of the route, as well as his other business difficulties, should have been considered before terminating his contract.      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.  Jerome Bailey, PSBCA No. 3628, 95-1 BCA ¶ 27,447; see also 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.

Appellant’s failure to perform his contract as of December 23, 1994, standing alone, justifies the decision to terminate the contract for default.  The contract required that Appellant ensure that the contract was performed and remain easily accessible in the event problems arose on the route.  Appellant failed these obligations.  Upon learning on December 14, 1994, that Appellant’s substitute driver intended to cease performance of the route, effective December 23, 1994, Respondent attempted to contact Appellant but was unsuccessful.  (Finding of Fact (FF)  8).  Respondent then awarded an emergency contract, which commenced on December 23, 1994.   (FF 9).  There is no record of  Appellant ever contacting Respondent prior to commencement of the emergency contract or of being ready, willing and able to perform the contract services subsequent to that date.  Under these circumstances, Appellant was clearly in breach and the decision to default was proper.  See Jerome Bailey, PSBCA No. 3638, 95-1 BCA ¶ 27,447.

Appellant’s prior satisfactory performance, even if proved in this appeal, would not overcome his abandonment of performance as of December 23, 1994.  Appellant’s business difficulties which forced him to remain in Wyoming, although severe, do not justify a failure to perform the contract.  Appellant has not met his obligation to rebut Respondent’s prima facie case.  See Bobby Edwards, PSBCA No. 3408, 94-1 BCA ¶ 26,281.

The Board is without jurisdiction at this time to hear the claims for compensation contained in Appellant’s Complaint.  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.  Therefore, Appellant’s claim for monetary relief for services performed before 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.

William K. Mahn

Administrative Judge

Board Member

 

I concur:

James A. Cohen

Administrative Judge

Chairman

 

I concur:

David I. Brochstein

Administrative Judge

Vice Chairman

 


[1]   On December 22, 1994, Appellant’s mother contacted the Nicholson Postmaster to ask what was happening to the contract.  (Walters Declaration).