September 24, 1998
Appeal of
VINCENT OGONNAYA OFOR
Under Contract No. HCR 58061
PSBCA No. 3965
APPEARANCE FOR APPELLANT:
Vincent Ogonnaya Ofor
APPEARANCE FOR RESPONDENT:
Maria R. Fuhrmann, Esq.
OPINION OF THE BOARD
Appellant, Vincent Ogonnaya Ofor, has appealed from the default termination of his contract to transport mail on a route between Wahpeton and Cogswell, North Dakota. A hearing was held in Fargo, North Dakota.
FINDINGS OF FACT
1. Contract No. HCR 58061, with a term of July 1, 1995, through June 30, 1999, and an annual contract rate of $41,140, was awarded to Appellant on June 8, 1995. The contract required Appellant to transport mail in both directions between Wahpeton and Cogswell, North Dakota. The contract required one trip in the morning (5:40 a.m. to 7:45 a.m.) to bring mail from Wahpeton to Cogswell and five other post offices in between, and one trip in the afternoon (3:55 p.m. to 6:00 p.m.) to pick up mail at Cogswell and the other post offices for delivery to Wahpeton (from which the mail was dispatched to Fargo). The Wahpeton postmaster was designated the administrative official for the contract. (Appeal File Tab (AF) 1).
2. The contract stated that Respondent intended to have mail transported "on pallets, in wheeled containers, metal and non-metal containers, in sacks and loose loaded." In particular, Respondent intended to have Appellant transport wheeled containers known as all-purpose [mail] containers, or "APCs." The contract required Appellant to provide one vehicle, with specified minimum and maximum dimensions, equipped with a "power liftgate" with specified dimensions and lift capacity. The primary purpose for the liftgate was to allow Appellant to load and unload APCs at the intermediate post offices which did not have loading dock facilities and which, therefore, required mail to be delivered to, and picked up from, ground level. (AF 1; Transcript Page (Tr.) 16; Respondent's Exhibit No. (Resp. Exh.) 2, 3 (video tape)).
3. The contract required Appellant to "… carry all mail tendered for transportation under this contract …." Included in the definition of "mail" was "empty mail transportation equipment." The contract also required that Appellant load and unload mail, but provided that, "[i]n order to maintain schedule, postal personnel may assist with loading and unloading." Finally, the contract provided that Appellant remained accountable for the acts or omissions of his employees. (AF 1 (Clause 13 "Service Requirements;" General Provisions, clauses 4(a), 1(d), 8(c))).
4. Postal Service Form 5500, "Contract Route Irregularity Report," is a form used to record discrepancies in contract performance. The Form 5500 is filled out at the time of the discrepancy by a Postal Service employee, and the contractor is later given the opportunity to add comments in response to the initial information. (Tr. 45).
5. Before the start of service on July 1, 1995, Appellant had a liftgate installed on his truck. Prior to installing the liftgate, Appellant's truck/liftgate supplier had contacted Respondent's contract administrator and received approval to install a liftgate that differed from that required by the contract specifications, but that the administrator believed would work with APCs. However, after installation, it was discovered that the liftgate would not handle APCs properly.[1] (AF 9M; Tr. 21-22, 190).
6. Between July 1, 1995, the start of contract service, and October 24, 1995, Appellant received a number of Forms 5500 for failing to meet the contract requirements. Several of the 5500s were for failing to have a proper liftgate on the truck. In addition, 5500s were issued to Appellant on eight occasions (including July 1 and July 3) for operating either late or early.[2] Of those, Appellant denied the accuracy of the alleged irregularity on one occasion and explained several other instances as having been caused by the need to handle a large number of APCs (without a proper liftgate and without any assistance from Postal Service personnel) or the need to transfer mail from APCs on the dock to APCs in the truck (because of the unusable liftgate). (AF 9Q).
7. During the same July through October period, on one occasion Appellant left the keys to the other post offices on his route in the door of one post office. As a result, the next morning he was unable to unlock doors and deliver mail to some of those post offices in accordance with the schedule and had to delay until Postal Service employees reported for work, thereby making delivery late. Approximately ten days later, Appellant again forgot the keys to the other post offices. In this instance, rather than wait he decided to leave the mail for one of the post offices unattended, outside the post office door. (AF 9Q).
8. On October 27, 1995, at the request of the Postal Service administrative official, Appellant participated in a formal conference to discuss his contract performance. At the conference, the parties discussed the liftgate problem and Appellant's failure to maintain the contract schedule. The administrative official directed Appellant to have the proper liftgate installed by November 3, 1995, and indicated that Appellant's complaints regarding the schedule would be addressed once the correct liftgate was installed. Shortly after the conference, Appellant wrote to the administrative official arguing that use of APCs on his route was dangerous and unnecessary and suggesting an alternative method of transporting the mail. In response, by letter dated November 3, 1995, the contracting officer rejected Appellant's proposal and directed that he install an acceptable liftgate within 14 days. The contracting officer stated that the Postal Service was willing to pay the difference between the cost of the original liftgate (which the contract administrator had approved) and the cost of an acceptable liftgate. (AF 9M, 9N, 9O).
9. Between October 27 and November 24, 1995, Appellant was issued 5500s because of five additional instances of late service and misdelivered mail (AF 9P).
10. In a letter dated November 4, 1995, the administrative official stated that Appellant still had not had the proper liftgate installed and was not adhering to the contract schedule. The administrative official stated that if contract performance was not brought up to the required level within five days, the entire file would be referred to the contracting officer for possible termination action. (AF 9L).
11. Appellant had the proper liftgate installed on or about December 11, 1995. On or about December 21, 1995, the contracting officer authorized a one-time payment of $2,386.60 to Appellant for the cost difference. (AF 9J).
12. Between December 11, 1995, and January 3, 1996, Appellant received three additional 5500s – one because of 30 minutes late service and two for misdelivering mail sacks. Appellant attributed the late service to bad roads and "possibly an unusually high amount of mail" but did not deny the late arrival or the two misdeliveries. As a result, by letter dated January 8, 1996, the contracting officer issued a "final warning" notifying Appellant that the contract might be terminated if "satisfactory service" was not restored within three days and maintained for the remainder of the contract term. Appellant received the final warning letter on January 22, 1996. (AF 9C, 9B (p. 105)).
13. Although not cited in the warning letter, Appellant also received 5500s because of late service on January 3 (90 minutes), January 5 (started route but failed to complete due to mechanical problem), January 6 (35 minutes), January 8 (35 minutes), and January 22 (35 minutes)[3] – before receiving the final warning letter. Appellant attributed these instances to a combination of truck problems, too much mail, and slow operation of the liftgate. (AF 9B).
14. Following receipt of the final warning letter, Appellant received a number of additional 5500s for unsatisfactory service, some of which were considered by the contracting officer in his eventual decision to terminate the contract for default, as follows:
On January 26, 1996, an empty tub fell off the truck along the route and was retrieved by a customer. Appellant admitted that the truck door had come open, but attributed it to ice that had interfered with operation of the lock. No mail was lost.
On January 29, 1996, Appellant's truck was approximately 40 minutes late. Appellant attributed the late operation to a large number of APCs that had to be loaded and the fact that the liftgate operated slowly.
On February 8, 1996, Appellant received a 5500 for misdelivering one mail pouch.
On February 14, 1996, Appellant failed to unload an APC at the proper post office, returned to that post office from two stops farther down the route to correct the error, and, therefore, was late delivering mail to several other post offices.
Between March 23 and March 28, 1996, Appellant had a continuing disagreement with the officer-in-charge at Wahpeton[4] over Appellant's practice of combining the mail from partially filled APCs, as prepared by Respondent's personnel, into a single APC. Appellant contended that he was entitled to combine mail from partially filled APCs, notwithstanding that he had previously been instructed not to move mail from one APC to another.
On April 1 and April 8, 1996, Appellant received 5500s for late operation – on the former date for operating 15 minutes late and on the latter date for operating close to an hour late (having failed to adjust for the switch to daylight savings time).
Finally, on May 14, 1996, Appellant received a 5500 for operating 15 minutes late after his driver made an unscheduled stop and transferred mail to a different vehicle. (AF 9B, 9G; Tr. 89-90, 126).
15. By memo dated May 28, 1996, the contracting officer wrote that he failed to see any improvement in Appellant's performance after issuance of the final warning letter and directed the contract administrator to begin the process of terminating the contract. In a final decision dated June 18, 1996, the contracting officer terminated the contract for default effective on June 21, 1996, due to "poor performance." (AF 2, 9B).
16. In deciding to terminate the contract, the contracting officer did not rely on those 5500s issued prior to December 1995 that cited the absence of the proper liftgate on the truck (Tr. 44, 52, 74).
DECISION
Respondent argues that Appellant's record of poor performance justifies the contracting officer's decision to terminate the contract. Respondent argues that even discounting those performance irregularities that were caused by having the improper liftgate (which had been approved by Respondent), Appellant's performance was inadequate and justified the termination. As to Appellant's contention that part of his problem was caused by the refusal of Respondent's personnel to help him with loading and unloading, Respondent points to the contract language that makes such assistance optional on the part of Respondent.
Appellant argues that the bulk of the service irregularities occurred before December 1995, when the proper liftgate was installed, and that they were caused by the absence of that piece of equipment. Specifically, Appellant contends that many instances of late service were actually caused by the need to bed load[5] the mail, a process that took longer than loading APCs. Appellant argues further that after December 1995, his record improved substantially and that the contracting officer's ultimate decision to terminate the contract was not justified.
Appellant had a significant number of instances of late performance early in the contract term, many of which he attributed to the fact that he did not have a usable liftgate with which to handle APCs. Respondent has acknowledged some responsibility for the improper liftgate, since its contract administrator approved the one that was installed at the beginning of the contract, and the contracting officer did not count against Appellant those irregularities that specifically cited the absence of a proper liftgate.
However, the record does not show that Appellant's record significantly improved after installation of the proper liftgate in December 1995. Appellant continued to have a significant number of instances of late performance both before and after the contracting officer issued his final warning letter on January 8, 1996 (Findings 12-14). Of the irregularity reports considered significant by the contracting officer in his decision to terminate (Finding 14), at least three involved instances of late performance that were clearly chargeable and occurred after Appellant had received the final warning letter.[6] See Charles West, PSBCA No. 3655, 96-1 BCA ¶ 28,211. These three chargeable irregularities, the other irregularities that occurred after installation of the proper liftgate, and those that occurred before installation of the liftgate but were not related to the absence of the liftgate,[7] provide a sufficient basis for the contracting officer's decision to terminate the contract. See Steinmann Transportation, Inc., PSBCA No. 3302, 94-3 BCA ¶ 27,212.
Accordingly, we conclude that the contracting officer did not abuse his discretion when he decided to terminate the contract for default. The appeal is denied.
David I. Brochstein
Administrative Judge
Vice Chairman
I concur:
James A. Cohent
Administrative Judge
Chairman
I concur:
Norman D. Menegat
Administrative Judge
Board Member
[1] The overall dimensions of the liftgate were adequate. However, construction of the liftgate caused APCs placed on it to tilt away from the back of the truck in an unsafe manner. (Tr. 191, 192).
[2] Early performance would be a problem on the afternoon trip, during which Appellant picked up outgoing mail from the various post offices on his route and delivered it to Wahpeton. Early operation could cause mail to be left behind. (AF 9Q)
[3] The first four of these were not determined by Respondent to be chargeable until after the warning letter had been issued (AF 9B).
[4] The officer-in-charge administered Appellant's contract from December 1995 until its termination in June 1996 (Tr. 83).
[5] "Bed loading" refers to the practice of manually loading mail sacks and trays into the bed of the truck. Bed loading requires multiple handling of the mail and is much more labor intensive than loading the sacks and trays into an APC and rolling the APC onto the truck. (Tr. 17, 24, 25).
[6] See Finding 14 - irregularities for January 29, February 14, and April 8, 1996.
[7] The number of instances of late operation after installation of the proper liftgate (Findings 12-14), also calls into question Appellant's explanation that his late performance early in the contract was caused by the absence of a proper liftgate.