June 7, 1999
Appeal of
CHRISTINE M. SHEETS
Under Contract No. HCR 93670
PSBCA No. 4034
APPEARANCE FOR APPELLANT:
Christine M. Sheets
APPEARANCE FOR RESPONDENT:
Elena V. Alejandre, Esq.
OPINION OF THE BOARD
Appellant, Christine Sheets, has appealed the termination for default of her highway transportation contract with Respondent, United States Postal Service. The parties have elected to submit the appeal on the record pursuant to 39 C.F.R. §955.12.
1. On June 16, 1993, Respondent renewed Contract No. HCR 93670, with Appellant, for the transportation and box delivery (476 boxes) of mail between Oakhurst and Fishcamp, California. The term of the renewed contract was from July 1, 1993, to June 30, 1997, at an annual rate of $30,435. The Oakhurst Postmaster was designated as the administrative official for the contract. (Appeal File Tab (AF) 1).
2. The contract included Basic Surface Transportation Services Contract General Provisions, Postal Service Form 7407, July 1992. Clause 4(a), therein, 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.” 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 1C).
3. The contract required Appellant to report in sufficient time to case, load, and depart on schedule. Scheduled departure from the Oakhurst Post Office was 9:30 a.m. (AF 1).
4. On October 14, 1995, the contracting officer altered the contract schedule, at Appellant’s request, to better reflect Appellant’s actual hours of operation. Although Appellant’s scheduled departure from the Oakhurst Post Office remained 9:30 a.m., the remainder of the scheduled arrival and departure times were extended. Instead of returning to the Oakhurst Post Office at 12:45 p.m. (as specified in the contract as awarded), the altered contract schedule required Appellant to complete her route and return to the Oakhurst Post Office at 3:10 p.m. each day. Appellant remained on this revised schedule until her contract was terminated. (AF 1A, 3; Declaration of L. Judine Kwiecinski).
5. On November 10, 1995, Appellant met with one of the Oakhurst Post Office supervisors to discuss her late contract performance. Appellant acknowledged that she was not arriving at the post office in the morning in sufficient time to allow her to case, load and depart on time and she agreed to come in earlier to meet the contract’s schedule. (AF 6; Declaration of James Langan).
6. Between November 14, 1995, and April 8, 1996, Appellant received a total of 37 irregularity reports for deficiencies in her contract performance. Appellant was primarily cited in these irregularity reports for late departure on her route. However, others were issued for her failure to clock in and out (seven times); for unprofessional behavior (argumentative behavior in front of customers); for two misdeliveries; and for disregarding an order from the administrative official not to bring a dog with her during contract performance. (AF 4, 5, 8, 10, 11).
7. On April 9, 1996, the administrative official held a formal conference with Appellant to discuss her unsatisfactory performance. Appellant was given seven days to improve her performance and eliminate all contract deficiencies. (AF 12).
8. By letter dated April 12, 1996, the administrative official admonished Appellant for returning late on April 11, and gave Appellant another seven days to restore and maintain satisfactory contract service. Appellant was warned in this letter that her failure to do so could result in the termination of her contract and the assessment of damages against her. This letter was hand delivered to Appellant on April 30, 1996. (AF 13).
9. During the months of May and June 1996, Appellant departed late to perform her route on ten occasions. In response to the irregularity reports she received for the late departures, Appellant began to complain that her late departures were caused by not receiving the mail on time. Therefore, starting on June 24, 1996, Respondent investigated and recorded on each irregularity report that Appellant had received her mail on time. The six irregularity reports Appellant received for late departures on June 24 through June 29 all indicated that she had received the mail on time[1]. (AF 4, 5; Declarations of L. Judine Kwiecinski and James Langan).
10. During the month of July, 1996, Appellant was late performing her contract on four occasions, July 3, 8, 10 and 11 (AF 4, 5).
11. On July 12, 1996, Appellant met with her administrative official to discuss the numerous delays in her contract performance. Appellant stated that sickness was preventing her from performing on time, but Appellant had not seen a doctor and did not appear to be ill. Appellant was advised at this conference that the primary cause of her late departures was arriving too late each day to allow sufficient time to case, load and depart at the scheduled time. (AF 14; Declaration of L. Judine Kwiecinski).
12. On July 18, 1996, the administrative official forwarded Appellant’s file to the contracting officer requesting that the contracting officer take action to insure that Appellant restored and maintained satisfactory performance (AF 15).
13. By letter dated August 8, 1996, the contracting officer informed Appellant that her contract might be terminated if satisfactory service was not restored and maintained within three days of receipt of the letter (AF 16).
14. During the month of August 1996, Appellant was either late departing or returning from her route on eleven occasions. On all but one of these occasions, Appellant received her mail on time. Appellant was also cited during this month for failing to clock in and for misdelivery of mail. (AF 4, 5).
15. During the month of September 1996, Appellant was late departing on her contract on three days and failed to clock in on another occasion. On September 5, Appellant was 3 hours and 2 minutes late departing on her route and 3 hours, 5 minutes late returning to the Oakhurst Post Office. On September 6, she departed the post office 27 minutes late and on September 7, she departed 16 minutes late. On each of these days, Appellant received her mail on time. (AF 4, 5).
16. By final decision dated September 16, 1996, the contracting officer terminated the contract for default for failure to perform according to the terms of the contract (AF 17). Appellant filed a timely appeal of that decision (AF 18).
17. Subsequent to the termination for default of Appellant’s contract, an emergency replacement contract was awarded containing the same delivery and time requirements as contained in Appellant’s contract. The emergency contractor performed the route in a timely fashion. (Declarations of L. Judine Kwiecinski and James Langan).
Respondent argues that Appellant’s failure to perform according to the terms of her contract, primarily her repeated late daily departures from the Oakhurst Post Office, justifies the contracting officer’s decision to terminate the contract for default. Respondent further argues that the excuses Appellant offers for her late performance do not justify the failure to timely perform the contract and that the decision to terminate was not the result of unfair treatment of Appellant by the administrative official.
Appellant argues that her late performance was excusable because of the volume of mail she had to handle and the fact that she was not given the mail on time. Appellant also claims that road construction delayed her performance. Finally, Appellant argues that there is no requirement in her contract to “clock in and out”.
Respondent has the burden of proving that the termination for default was justified, but once it shows that Appellant failed to perform according to the terms of the contract, the burden shifts to Appellant to present evidence of excusable causes. Werner Lembke d/b/a Lembke Trucking, PSBCA No. 3875, 98-2 BCA ¶ 29,999 and cases cited therein.
Respondent’s decision to terminate the contract for default was amply justified. Appellant was given multiple formal and informal warnings by both the contracting officer and the administrative official to correct the numerous deficiencies in her performance, yet she failed to do so. After being warned by the administrative official in April 1996, that her failure to restore and maintain satisfactory service may result in the termination of her contract, Appellant was late performing her contract twenty-six times during the next four months (Finding of Fact Nos. (FOF) 8-10, 13). Even after receiving a similar warning from the contracting officer in August 1996, Appellant was, nevertheless, late performing her contract on six days (FOF 13-15).
The record does not support Appellant’s allegations that her delays were caused by road construction or late receipt of the mail. Appellant did not submit any evidence in this appeal to demonstrate that there was road construction interfering with her performance during 1996. Moreover, many of the irregularities Appellant received indicated that she was departing late on her route. In these instances, late departures rather than road construction were most likely the cause of the irregularities.
Beginning on June 24, 1996, Respondent investigated and recorded whether Appellant received her mail on time and did not cite her for late performance on those days she did not receive mail on time (FOF 9). Thus, late receipt of the mail would not have caused Appellant’s untimely performance.
Appellant’s occasional claim that she was sick or that the volume of mail caused her late performance likewise does not excuse her deficient performance. If sickness prevented Appellant from properly performing her route she was obligated to make other arrangements, such as hiring a substitute driver, that would insure satisfactory contract performance during those days she was ill.
Finally, we note that Appellant’s allegation that the volume of mail she received prevented her from timely performing is contradicted by the fact that the emergency contractor hired to replace her performed the route in a timely fashion (FOF 17).
In conclusion, Appellant has failed to offer an acceptable excuse for her failure to perform according to the terms of the contract. Accordingly, the appeal is denied.
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] All of the mail was scheduled to be given to mail delivery contractors (including Appellant) by 8:30 a.m. each morning. If that deadline was not met, the Postmaster would not authorize issuing an irregularity report to a contractor for any delays associated with late issuance of mail. (Declaration of L. Judine Kwiecinski).