June 18, 1998
Appeal of
DEBRA LEA MCSHEFFREY
Under Contract No. HCR 18660
PSBCA No. 4061
APPEARANCE FOR APPELLANT:
Debra Lea McSheffrey
P. O. Box 272
East Montpelier, VT 05651-0272
APPEARANCE FOR RESPONDENT:
Deborah A. Davis, Esq.
Philadelphia Office
United States Postal Service
P. O. Box 40595
Philadelphia, PA 19197-0595
OPINION OF THE BOARD
Appellant, Debra Lea McSheffrey, has appealed the termination for default of her highway transportation contract with Respondent, United States Postal Service. Appellant argues that the contracting officer erroneously terminated the contract for abandonment without first discussing the circumstances with her. A hearing was held in Fort Myers, Florida and Wilkes-Barre, Pennsylvania.
FINDINGS OF FACT
1. Appellant was awarded Contract No. HCR 18660 on January 8, 1996, for the transportation of Express Mail between the Wilkes-Barre, Pennsylvania Processing and Distribution Facility (P&DF) and the Philadelphia, Pennsylvania Airport Mail Center (AMC). The contract commenced on February 3, 1996, and was to run until June 30, 1998. (Appeal File Tab (AF) 7).
2. The contract required that Appellant depart from the Wilkes-Barre P&DF with each day's Express Mail (excluding Sundays and Holidays), by 7:30 p.m. and arrive at the Philadelphia AMC by 10:00 p.m. (AF 7).
3. The contract contained Basic Surface Transportation Services Contract General Provisions, Postal Service Form 7407, July 1992, which in clause 8(a), ACCOUNTABILITY OF THE CONTRACTOR, of the General Provisions required that Appellant "give 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." General Provisions clause 16, TERMINATION BY THE POSTAL SERVICE FOR DEFAULT, authorized the contracting officer to terminate the contract for default if the contractor failed to perform service according to the terms of the contract. (AF 7).
4. At the time of commencing contract performance, Appellant resided in the Wilkes-Barre area and provided on-site administration of the contract. However, in July 1996, Appellant hired drivers and moved to Florida. Appellant intended to
return to Wilkes-Barre only if problems arose in performing the contract. (Transcript pages (Tr.) 177-179).
5. Appellant performed the contract in a satisfactory manner for the first eleven months. However, on January 4, 1997, Appellant's driver called the Wilkes-Barre P&DF to state that she had car problems and would be unable to run the route that evening. Respondent's officials arranged to have the mail transported on that date by another highway contractor (Tr. 11, 28, 29, 97, 98, 285, 286; AF 6).
6. Again on January 9, 1997, Appellant omitted service. Appellant's driver contacted the Wilkes-Barre P&DF to state that car troubles would prevent her from running the route on that date and Respondent's officials again made arrangements to have another highway contractor transport the Express Mail Appellant had failed to deliver. (Tr. 13, 287, 288; AF 6).
7. On January 10, 1997, a logistics clerk for Respondent contacted Appellant to discuss his concerns about Appellant omitting contract service on January 4 and January 9. During their conversation he informed Appellant that it was her responsibility to perform the contract or to personally arrange for backup drivers. (Tr. 15, 289, 290).
8. On January 15, 1997, Appellant's husband called the Wilkes-Barre P&DF to state that Appellant would be unable to perform the contract on January 15 or January 16. (Tr. 18, 97, 98, 290, 291; AF 6).
9. On January 16, 1997, Appellant left a voice mail message with the contract's administrative official at the Wilkes-Barre P&DF that she would be unable to perform the contract until January 21, 1997 (Tr. 77, 87).
10. On January 16 and January 17, 1997, Respondent's officials at both the Wilkes-Barre P&DF and the Allegheny contracts office placed numerous telephone calls to Appellant in Florida. However, Appellant's telephone was not answered and Respondent's officials had no other way of contacting her. (Tr. 20, 64, 107, 110, 136, 292, 293, 333).
11. Appellant's driver did not show up to perform the contract on January 21, 1997 (Tr. 78, 106, 107).
12. As of January 23, 1997, Appellant had not performed the contract since January 14, 1997, and had not spoken with any of Respondent's contracting officials concerning the reason for her failure to perform (Tr. 106, 110).
13. On January 23, 1997, the contracting officer decided to terminate Appellant's contract for default because of her failure to perform and also because she was unavailable to discuss her failure to perform (Tr. 112, 113). In a January 23, 1997 final decision, the contracting officer terminated the contract effective January 16, 1997, citing Appellant's abandonment of performance as the reason for the decision to terminate for default (Tr. 106,107; AF 4).
14. By letter dated January 30, 1997, to Respondent's officials at the Wilkes-Barre P&DF, Appellant stated that she was in the process of locating and signing
drivers to perform her contract and that she assumed that Respondent would continue to perform her contract responsibilities for her in her absence[1] (AF 3).
DECISION
Appellant argues that she did not abandon contract performance and that Respondent should have advised Appellant that her contract performance was substandard and discussed with her its intent to terminate before issuing the final decision. Appellant also argues in this regard that Respondent should have first sent a written warning of its intent to terminate the contract before actually doing so. Finally, Appellant argues that she had an arrangement with Respondent's logistics clerk in Wilkes-Barre that Respondent would arrange for substitute drivers on those days when Appellant's driver failed to perform the contract. Appellant seeks the release of $641.13 in retained contract funds, liquidated damages in the amount of
$9,252.61, compensatory damages in the amount of $2,198.16 and damages from the loss of future Postal Service contract awards in the amount of $58,892.40.
Respondent argues that the termination for default was justified by Appellant's failure to perform service according to the terms of the contract, as well as because she failed to give personal or representative supervision over the operation of the route, and that the contracting officer did not abuse his discretion when making the decision to terminate the contract for default. Respondent further argues that Appellant has not provided any excusable causes for her failure to perform. Finally, Respondent argues that Appellant's monetary claims are barred by Appellant's failure to submit a claim to the contracting officer prior to appealing to the Board.
Appellant's failure to perform the contract after January 14, 1997, justifies the decision to terminate the contract for default. It is not relevant in this appeal whether Appellant intended to abandon contract performance. The contract required Appellant to ensure that the contract was performed and to remain easily accessible in the event problems arose on the route (Finding of Fact Nos. (FOF) 2, 3). Appellant failed both of these obligations. Respondent's officials made repeated attempts between January 16, 1997, and January 23, 1997, to contact Appellant, but were unable to do so (FOF 10). Appellant, for her part, never contacted Respondent after January 16 concerning her intent to perform the contract until writing a letter to Postal Service officials on January 30, 1997 (FOF 14).
Other than arguing that Respondent should have arranged for a substitute in her absence, Appellant has not offered any excuse for failing to perform her contract after January 14, 1997. However, there is no contractual support for her belief that Respondent should have arranged for substitute drivers. Nothing in the contract required Respondent to take such an action. Moreover, after failing to perform on January 9, Appellant was informed by a Postal Service official at the Wilkes-Barre P&DF that it was her responsibility as contractor to arrange for substitute drivers (FOF 7).
In addition, nothing in Appellant's contract expressly required the contracting officer to furnish Appellant with a written warning of his intent to terminate the contract for default prior to doing so. There may be circumstances where a warning would be required. However, Appellant's failure to show up to perform her contract after January 14, without ever contacting the contracting officer to explain her failure (or even being available to be contacted by telephone), certainly justifies the contracting officer's decision to terminate Appellant's contract for default without first issuing a written warning.
On these facts, Appellant was clearly in breach of her contract obligations, and the contracting officer did not abuse his discretion in terminating the contract for default. See Roy Decker, PSBCA No. 3816, 96-2 BCA ¶ 28,585; Jerome Bailey, PSBCA No. 3628, 95-1 BCA ¶ 27,447. Therefore, the default termination was proper.
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); Roy Decker, PSBCA No. 3816, 96-2 BCA ¶ 28,585; Jerome Bailey, PSBCA No. 3638, 95-1 BCA ¶ 27,447; James H. Foster, PSBCA No. 3152, 93-1 BCA ¶ 25,362, and there is no indication that such a submission was made. Accordingly, Appellant's monetary claims are dismissed without prejudice to Appellant's right to submit a proper claim to the contracting officer.
CONCLUSION
The appeal of the termination for default is denied. The monetary claims raised by Appellant for the first time in her Complaint are 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] Appellant claims to have had an arrangement with Mr. Robert Everett, a Wilkes-Barre Postal Service official, that he would obtain substitute drivers for her when she failed to perform. In his testimony, however, Mr. Everett unequivocally denied ever making such an agreement (Tr. 293). However, we need not address whether there was such an agreement since Mr. Everett lacked contracting authority and was not authorized by the contracting officer to make such an agreement on behalf of Respondent (Tr. 16, 17, 114).