June 19, 1998

Appeal of

LAICE R. McFADDEN

Under Contract No. HCR 78363

PSBCA No. 4063

 

APPEARANCE FOR APPELLANT:

Lacie R. McFadden

 

APPEARANCE FOR RESPONDENT:

Patrice R. Dickey, Esq.

 

OPINION OF THE BOARD

 

            Appellant, Lacie R. McFadden, has filed a timely appeal of the decision of the contracting officer to terminate for default her mail transportation contract with Respondent, the United States Postal Service.  The parties have elected to submit the appeal on the record in accordance with 39 C.F.R. §955.12.

FINDINGS OF FACT

            1.  On June 5, 1995, Appellant was awarded Contract No. HCR 78363, at an annual rate of $20,824.68, for the transportation and box delivery of mail between Rockport and Copono Ridge, Texas.  Performance under the contract commenced on July 1, 1995, and was to run for a four-year term.  (Appeal File Tab (AF) G).

            2.  General Provisions clause 12 of the contract, CHANGES, provided that the contracting officer could, without consulting the contractor, issue orders directing "insignificant minor service changes" which may increase the contractor's pay by no more than $1,000.  This clause further provided that the contractor shall proceed diligently in accordance with the service changes and extra trips ordered by the contracting officer and that disputes concerning the contrcting officer's directions shall be resolved pursuant to the contract's Disputes clause.  (AF G-18).

            3.  General Provisions clause 16 of the contract, TERMINATION BY THE POSTAL SERVICE FOR DEFAULT, permitted the Postal Service to terminate the contract for default if the contractor failed to perform service according to the terms of the contract or for the contractor's disobedience of the contracting officer's instructions (AF G-19).

            4.  By letter dated April 11, 1996, Appellant submitted a request for adjustment to her route, arguing that she was servicing 58 additional boxes which increased the number of hours she worked annually by 192.92 hours (AF F-10).  This request was addressed by a final decision of the contracting officer dated July 9, 1996, in which he offered Appellant $945.00 (AF F-1).  Appellant did not appeal this final decision.

            5.  Subsequently, however, an amendment to the contract to compensate Appellant for servicing 58 additional boxes was negotiated by the parties to be effective on October 4, 1996, and was executed by Appellant on November 23, 1996.  A contract route service order to cover servicing the 58 additional boxes during the period October 31, 1995 to October 3, 1996 was issued on February 21, 1997, with a one time payment to Appellant of $1,760.26.  (Declaration of A.T. Mills; AF E-1-4, E-10-13).

            7.  Appellant refused to follow the instructions of the Rockport Postmaster to utilize a timecard to record her arrival and departure times.  In response to Appellant's refusal, on February 19, 197, the contracting officer held a telephone conference with Appellant and a representative for the Rockport Postmaster.  Appellant was told by the contracting officer during this telephone conference that the requirement to use timecards was authorized by Section 321 of the Postal Operations Handbook PO-504.  The contracting officer further informed appellant that he was directing her to comply with the postmaster's directions to use timecards and if she believed that the use of a timecard was a change to her contract she should submit a claim.  The contracting officer concluded the discussion by informing Appellant that he would send her a letter confirming his direction and allowing her three days from receipt of the letter to comply.  If she did  not comply, the contracting officer stated that he would terminate her contract (Declaration of A.T. Mills; AF D-6-10).

            8.  The contracting officer sent Appellant a final warning letter on February 22, 1997.  Appellant responded to the final warning letter on February 24, 1997, stating that she would only comply with the direction to utilize timecards after receiving a modification to her contract granting her a daily 20 minute increase in time and a $909.21 annual rate increase.  (Declaration of A.T. Mills; AF D-5).

            9.  Based on information from the postmaster that Appellant had not complied with his direction to utilize a timecard, on February 26, 1997, the contracting officer terminated Appellant's contract for default effective March 3, 1997, for failure to follow the directions of the contracting officer (Declaration of A.T. Mills and Israel Mora; AF C-1-5).

            10.  By letter dated March 11, 1997, Appellant filed a timely appeal of the contracting officer's final decision.

DECISION

            Appellant argues that the contract does not contain a requirement for personal services or instructions to use a timecard and that the contracting officer failed to issue a cure notice before terminating her contract.  Appellant asserts that she attempted to comply with the direction of the contracting officer by requesting that the contracting officer first negotiate a 20 minute daily time increase to her contract.  She further argues (in a reply brief), that Respondent committed a material breach of the contract by failing to make payments owed to her, thereby excusing her own failure to comply with the contracting officer's directions.  Appellant claims that she is entitled to $5,670.00, plus $13,351.52 for two backpayment shortfalls; $59,925.41 for the loss of anticipated earnings; and $500,000.00 for "unwarranted, immense, immeasurable personal and professional character damage, . . . impacting. . .the Contractor's right to gainful employment."  Finally, Appellant requests that she should be placed in the position of route carrier.

            Respondent contends that the termination for default of Appellant's contract was warranted by Appellant's failure to follow the direction of the contracting officer and that the contracting officer did not abuse his discretion when issuing the direction to use a timecard.  Respondent further argues that Appellant has failed to show a material breach of the contract by Respondent.  Finally, Respondent argues that Appellant's claim for a contract adjustment and back pay should be denied since she never appealed the contracting officer's final decision of July 9, 1996.

            Respondent has the burden of proving that the termination for default was justified, but once it shows that Appellant failed to perform as directed, the burden shifts to Appellant to present evidence of excusable causes.  Jerome Bailey, PSBCA No. 3628, 95-1 BCA 27,447 at 126,742; see also Patricia J. Stevens, PSBCA No. 3272, 94-1 CA 26,419 at 131,429, recon. denied, 94-2 BCA 26,951; Pamela J. Sutton, PSBCA No. 1622, 883 BCA 21,031 at 106,237.

            Appellant’s failure to comply with the direction of the contracting officer to utilize a timecard justifies the decision to terminate her contract for default.  The requirement was imposed by Respondent to provide information necessary to conduct an annual analysis of the performance of the highway contractors (Findings of Fact No. (FOF) 6).  Appellant’s disagreement with the policy or need for the requirement to use a timecard is not an excusable reason for concompliance.  General Provisions clause 12, CHANGES       , Appellant’s contract, required that she proceed diligently with service changes unilaterally ordered by the contracting officer.  See Charles E. Blanton, PSBCA No. 1381, 86-1 BCA 18,723.

            Appellant sought a $909.21 increase in the annual rate of her contract before she would agree to comply with the direction of the contracting officer to record her arrival and departure times on a timecard (FOF 8).  This amount falls within General Provisions clause 12(a)(1), as an “insignificant minor service change.”  However, Appellant’s failure to comply with the direction of the contracting officer was neither “insignificant” or “minor.”  The adjectives, “insignificant” and “minor,” refer to the amount of the service change and not the importance of the requirement.

            We note also that when the contracting officer issued the direction to use a timecard, he specifically advised appellant that she was required to comply with  this direction or be subjected to having her contract terminated and that she should submit a claim if she believed that the requirement to use a timecard was a change to her contract (FOF 7).  If Appellant believed she was entitled to additional time and/or compensation for complying with his direction she should have pursued her remedies pursuant to the contract’s Changes clause by file a claim with the contracting officer and then taking an appeal if her claim was denied.  See John Horsley, PSBCA No. 1464, 86-3 BCA 19,141.

            We find no merit to Appellant’s argument that the termination for default was improper because the contracting officer failed to issue a cure notice.  The default clause in Appellant’s contract does not require the contracting officer to issue a cure notice prior to terminating the contract.  Moreover, Appellant received adequate warning from the contracting officer, both during the conference held with her on February 19, 1997, and again in the final warning letter she received on February 22, 1997, that her contract was subject to being terminated for default if she failed to begin utilizing a timecard.  Thus, the termination for default was proper and no excusable cause for Appellant’s failure to follow the contracting officer’s direction has been shown.

            Although Appellant has presented a number of claims for monetary recovery under the contract – ncluding two claims for backpayment (in the amounts of $5,670.00 and $13,351.52), a claim for loss of earnings over the four-year period of the contract, and $500,000.00 for “unwarranted, immense, immeasurable personal and professional character damages,” the exact basis for these claims is not clear and the parties did not discvuss them at all in their briefs or reply briefs.  A preliminary examination of the record had previously indicated that appellant had raised these claims with the contracting officer.[1]  However, a more careful examination of the full record fails to show that claims in these amounts had been previously submitted to the contracting officer for a decision, that the claim over $100,000.00 was certified, or that a contracting officer’s final decision has been issued, all of which is a prerequisite to our authority to consider them on appeal.  41 U.S.C. §605.  Accordingly, we dismiss these claims without prejudice to Appellant’s right to submit them for a decision by the contracting officer.[2]

            Finally, Appellant’s claim to be placed in the position of a route carrier must be dismissed because this Board lacks the authority to grant such non-monetary relief.  Roger Dean Barrett, PSBCA No. 2490, 89-3 BCA 22,220.

CONCLUSION

            Accordingly, Appellant’s appeal from the termination for default is denied and her assertion of monetary claims against the Postal Service 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] By Order dated June 4, 1997, the Board noted that, based on an examination of the pleadings and the appeal file, there was a question as to whether any of the monetary claims contained in the Complaint had previously been submitted to the contracting officer for his consideration and decision.  In response, Appellant advised that these claims had been submitted to the contracting officer.  Based on this response, the Board, in an Order dated June 19, 1997, noted that it appeared that the monetary claims had been submitted to the contracting officer and that the Board had jurisdiction to consider those claims in this proceeding

 

[2] With respect to the claim for “character damage,” we again call the parties’ attention to rulings by this Board that “damages for emotional pain and suffering, damages arising from tort independent of the contract and punitive or exemplary damages are generally not recoverable before contract appeals board.”  Computer Power Support, PSBCA No. 3401, 94-2 BCA 26,626, footnote 1, and cases cited therein.