April 20, 1998
Appeal of
RENATO LUNA
Under Contract No. HCR 85376
PSBCA No. 4037
APPEARANCE FOR APPELLANT:
Jerald S. Chesler, Esq.
P. O. Box 2987
Carefree, AZ 85377-2987
APPEARANCE FOR RESPONDENT:
Robert E. O’Connell, Esq.
San Francisco Office
United States Postal Service
577 Airport Blvd., Suite 200
Burlingame, CA 94010-2040
OPINION OF THE BOARD
Appellant, Renato Luna, has appealed the termination for default of his Highway Transportation Contract with Respondent, United States Postal Service. Appellant maintains that the termination for default of his contract was an abuse of discretion and the product of discrimination against him. A hearing was held in Carefree, Arizona.
FINDINGS OF FACT
1. On May 29, 1996, Respondent awarded to Appellant Contract No. HCR 85376 in the amount of $27,368.00 per year. The term of the contract was from July 1, 1996, through June 30, 2000. (Stipulation of Fact No. (SOF) 1; Appeal File Tab (AF) 2).
2. The contract required Appellant to transport and deliver mail six days a week from the Cave Creek, Arizona Post Office to 351 Postal Service customers along a contractually specified 36.1 mile route. The Cave Creek Postmaster was designated as the administrative official for the contract. (SOF 2; AF 2, 5).
3. The contract included Basic Surface Transportation Services Contract General Provisions, Postal Service Form 7407, July 1992, which in clause 4(a), SERVICE REQUIREMENTS AND PROHIBITIONS, required Appellant to "carry all mail tendered for transportation under this contract, whatever may be its size and weight, with certainty, celerity, and security;" and at Clause 4(c), required Appellant to "protect the mail from loss, depredation, or damage" and transport the mail "in an enclosed, water-proof compartment, equipped with secure locking devices, which shall be kept locked at all times except when access thereto is required for performance of service under this contract" (AF 2).
4. General Provisions (GP) 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 (under GP 16(a)(1)) or if the contractor’s transportation equipment is insufficient, inadequate, or otherwise inappropriate for the service (under GP 16(a)(10)). GP clause 16 further provided that if, after a termination for default, it was determined that the contractor was not in default or that the default was excusable, the rights and obligations of the parties would be the same as if the contract had been terminated for convenience pursuant to General Provisions clause 17, TERMINATION FOR CONVENIENCE. (Id.).
5. Prior to commencing performance on July 1, 1996, Appellant received approximately 40 hours of training in the requirements of the contract from the Cave Creek Postmaster, as well as from his predecessor on the route (Tr. 39, 40; SOF 3; AF 4).
6. During a July 10, 1996 meeting with the contract carriers (which included Appellant), the postmaster emphasized that first and second class mail must never be delayed and that third class (bulk) mail must be delivered no later than the day of its color coding for delivery. (Tr. 44; Supplemental Appeal File Tab (SAF) 2). However, an exception to the bulk mail delivery requirements could be made by the postmaster under special circumstances (Tr. 40, 87, 88).
7. On July 15, 1996, the postmaster issued irregularity reports (Form 5500s) to Appellant for delaying delivery of bulk mail on July 11 and July 12, 1996, beyond the bulk mail’s color coded delivery dates. On both dates the postmaster was not at work and, in her absence, Appellant had obtained approval to delay bulk mail delivery from one of the employees designated by the postmaster to provide advice to new carriers. (Tr. 42, 45, 46, 87, 88, 163, 164, 170; AF 6).
8. During the months of August and September 1996, Appellant received four customer complaints for misdeliveries and for bending mail containing photographs and magazines. The postmaster issued a single irregularity report to Appellant for these complaints. During this same time frame Appellant also received an irregularity report for leaving a priority mail package unsecured on the top of a community mailbox and another for delaying delivery of bulk mail without the permission of the postmaster. (AF 6; AX 3).
9. On September 20, 1996, the postmaster discovered that Appellant had failed to return the customer signed receipt for a piece of registered mail delivered on August 17, 1996. Appellant immediately located and turned in the receipt. Nevertheless, the Postmaster issued an irregularity report to him for failing to turn in the receipt on the day of delivery. (Tr. 48, 171-173; AF 6).
10. On October 2, 1996, Appellant attended a formal conference with the postmaster and other Postal Service officials to discuss their concerns with Appellant’s contract performance (AF 7). Following this conference, Appellant’s performance and his attitude towards his job improved (Tr. 53, 100).
11. Following the formal conference, Appellant did not receive an irregularity report for over six weeks of contract performance. However, on November 18, 1996, the postmaster issued a Form 5500 to Appellant for rubber banding a customer’s mail. Nothing in Appellant’s contract prohibited using rubberbands to package customer mail and, during Appellant’s training, his predecessor contractor instructed him to do so. (Tr. 102, 167; AF 2, 8).
12. On November 19, 1996, Appellant was cited in an irregularity report for unprofessional behavior. One of the customers on his route had come to the post office to pick up mail being held for her while she was on vacation. The postal clerk who waited on this customer informed her that she could not find any mail being held for her. Appellant became upset with the clerk and used profanity when he learned of this since he believed that the "hold mail" was in plain view in his cubicle and should have been easy to find. (Tr. 189, 190; AF 8).
13. Appellant began a one week vacation on November 20, 1996. During his vacation Appellant employed a substitute driver he had recently trained. (Tr. 184, 185).
14. On November 21, 1996, Respondent issued a notice of unsatisfactory performance to Appellant, citing the two 5500s issued to him on November 18 and 19, 1996, as an indication of a failure to improve service following the counseling he received in the formal conference of October 2, 1996. Appellant was directed to take whatever action was necessary to restore good service within three days of receipt of the notice. Appellant was further advised that unless good service was restored, he may be subject to an assessment of damages or termination of his contract. (AF 8).
15. Since the beginning of Appellant’s contract performance, the postmaster had had several discussions with Appellant concerning his practice of transporting mail in the back of his pickup. Appellant was informed in these discussions that if he carried mail in the bed of his pickup, he had to have a cover over the bed. (Tr. 41, 42, 56, 57).
16. Appellant had an enclosed van he occasionally used to transport the mail. However, Appellant generally used his extended cab pickup truck during contract performance. Nothing in Appellant’s contract prohibited his use of his pickup truck as long as he carried all the mail in an "enclosed water-proof compartment" with a locking device, i.e., within the enclosed extended cab of the truck. On occasion, however, Appellant placed mail in the bed of the truck. Appellant tied down the mail placed in the bed of the truck to prevent its loss. Appellant took precautions so he would not lose or otherwise damage any mail as a result of placing mail in the bed of his pickup. (Tr. 104, 108, 110, 149-151, 193).
17. On November 22, 1996, the postmaster issued a Form 5500 to Appellant because his substitute driver left the post office with mail unsecured in the back of a pick-up truck. (Tr. 56, 193; AF 9).
18. On November 29, 1996, the postmaster issued two irregularity reports to Appellant. One was based on a customer complaint that the mail was arriving at erratic times. However, nothing in the contract specified the times by which mail was to be delivered to individual customers. The second 5500 was issued to Appellant because his substitute driver did not finish the route until 6:00 p.m. on the same day. (Tr. 58, 59; AF 2, 10, 11).
19. On December 4, 1996, the postmaster followed Appellant on his route. The postmaster drove out to Appellant’s route and discovered his employee transporting parcels unsecured in the back of the pickup. (Tr. 61, 203; AF 13, 14).
20. Acting immediately on a report from the postmaster on December 4, the contracting officer terminated Appellant’s contract for default for failure to perform service according to the terms of the contract and for having transportation equipment that was insufficient, inadequate, or otherwise inappropriate for the service. The contracting officer did not hold any discussions with Appellant prior to issuing the final decision. (Tr. 116; AF 16).
21. It was the practice of the Cave Creek Postmaster to leave packages intended for delivery each day outside on the rear dock of the post office. Although the rear door of the post office was usually open and there were people walking in and out, the packages were in an ungated area. (Tr. 28, 80, 123, 135, 136, 151).
DECISION
Respondent argues that the termination for default of Appellant’s contract was proper because Appellant failed to perform the service according to the terms of the contract and has failed to provide an excuse for his failure to comply. Appellant argues that the termination for default of Appellant’s contract was an abuse of discretion and was the product of discrimination against him. With respect to the irregularity reports he received for transporting mail unsecured in the bed of his pickup, Appellant argues that the mail he transported on these occasions was no less secure than the mail the postmaster left unsecured behind the post office each day.
Respondent has the burden of proving that the termination for default was justified by demonstrating that Appellant failed to perform according to the terms of the contract. Once that burden is met, the burden shifts to Appellant to present evidence of excusable causes or abuse of discretion. Jerome Bailey, PSBCA No. 3628, 95-1 BCA ¶ 27,477; see also Patricia J. Stevens, PSBCA No. 3272, 94-1 26,419 at 131,429 recon. denied 94-2 BCA ¶ 26,591; Pamela J. Sutton, PSBCA No. 1622, 88-3 BCA ¶ 21,031 at 106,237.
Although Appellant did not receive an inordinate number of chargeable irregularity reports (he received six chargeable irregularity reports during contract performance), throughout the entire five months he performed the contract he transported mail in the back of a pickup truck which was not "an enclosed, water-proof compartment, equipped with secure locking devices . . . " as required by clause 4(c) of the General Provisions (FOF 3). Appellant was well aware for some time that this practice constituted a violation of his contract since the postmaster had held several discussions with him concerning this practice (FOF 15), and because the contract requirement itself was quite clear. It is no defense to this serious violation that the postmaster also left mail unsecured each morning behind the post office. The issue in this appeal is not only whether the mail was "secure," but rather, it is also whether it was transported in the contractually specified manner, i.e., in an enclosed waterproof compartment. Similarly, that Appellant took precautions so that he would not lose any mail from the back of his pickup does not excuse his failure to comply with the explicit requirements of the contract.
Appellant has failed to establish that the contracting officer abused his discretion or acted in bad faith in terminating Appellant’s contract on December 4. The contracting officer based his decision on the repeated failure of Appellant to transport mail in the contractually specified manner as well as on the other contract infractions committed by Appellant during the five months Appellant performed his contract. Although Appellant demonstrated that some of these infractions were excusable, he failed to offer any probative evidence to excuse his failure to transport mail in an "enclosed, water-proof compartment, equipped with secure locking devices . . . . " Moreover, Appellant failed to offer any objective evidence of discrimination against him on the part of the contracting officer or the postmaster, who was the administrative official for the contract.
Accordingly, this appeal is denied.
William K. Mahn
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
Chairman