March 15, 1999
Appeal of
DAVID A. SCHAMP
Under Contract No. HCR 86372
PSBCA No. 4084
APPEARANCE FOR APPELLANT:
David A. Schamp
2550 E. Highway 89A
Cottonwood, AZ 86326-5301
APPEARANCE FOR RESPONDENT:
Robert E. O’Connell, Esq.
San Francisco Office
United States Postal Service
577 Airport Boulevard, Suite 200
Burlingame, CA 94010-2040
OPINION OF THE BOARD
Appellant, David A. Schamp, has appealed from the decision of the contracting officer terminating for default Appellant's mail delivery contract with Respondent, United States Postal Service. A hearing was held in Phoenix, Arizona.
FINDINGS OF FACT
1. Contract No. HCR 86372 between Appellant and Respondent was renewed in June 1993 for the period July 1, 1993, through June 30, 1997. The contract called for the delivery of mail to customers' boxes along a route originating at the Cottonwood, Arizona Post Office. At the time of renewal, the annual contract rate was $23,913. The Cottonwood Postmaster was designated the administrative official for the contract. (Stipulation paragraph (Stip.) 2; Appeal File Tab (AF) 1).
2. The contract did not require Appellant to report to the post office at a specific time, but only required Appellant to arrive at the Cottonwood Post Office each day "in sufficient time to case, load and depart [to deliver the mail] on schedule." As originally renewed, the contract required Appellant to depart the post office by 10:00 a.m. and to return by 1:10 p.m. (AF 1).
3. During the course of contract performance, the period allotted for delivery was increased twice because of increases in the number of boxes to be served. In November 1995, the time to return to the post office was extended to 1:30 p.m., and in September 1996, that time was further extended to 1:40 p.m. However, the departure time remained 10:00 a.m. (AF 12, 14).
4. Clause 16 of the contract general provisions ("Termination by the Postal Service for Default") provided that the contracting officer could terminate the contract for default "[f]or Contractor's failure to perform the service according to the terms of the contract" (AF 1).
5. Procedures at the Cottonwood Post Office were such that all of the carriers, both contract carriers and employees, were scheduled to leave the post office at approximately 10:00 a.m. each day. The post office had a procedure through which mail initially distributed to the wrong route could be re-sorted to the correct carrier and taken out for delivery that day. However, if a carrier was significantly behind in sorting his or her mail and not ready for a 10:00 a.m. departure, any missorted mail he or she had would not get to the correct carrier in time for delivery that day. In addition, a carrier leaving significantly late would be in jeopardy of returning too late to prepare any outgoing mail collected from customers along his or her route for pickup by the outgoing truck that day. Further, if a carrier returned late, customers from that route who came to pick up mail as a result of receiving "attempted delivery" notices that day might be unable to do so. (Transcript pages (Tr.) 17-20).
6. Between September 1993, and August 1995, Appellant received approximately 16 written notifications of deficiencies in his performance, either through the use of a Form 5500 (Contract Route Irregularity Report) or an internal memorandum. Of these instances, 11 related to significantly late departures from the post office. In addition, during this period, the postmaster and/or customer services supervisor had at least six discussions with Appellant concerning the same problem. (AF 28).
7. In August 1995, the postmaster and customer services supervisor held a formal conference with Appellant to discuss the continuing deficiencies in his performance. One of the primary topics at the conference was Appellant's failure to consistently get out of the post office on time. Appellant stated that he was having personal problems that were impacting his work and asked that the postmaster and supervisor work with him to enable him to perform properly. The supervisor made several suggestions to help Appellant work more efficiently and also authorized Appellant to sort only First Class mail in the morning (thereby reducing the amount of time he needed before departure) and save the bulk mail for later in the day, after his return. After the conference, Appellant's performance improved for a time, but then deteriorated again. (AF 28; Tr. 33-35).
8. Beginning in November 1996, Appellant received an additional series of approximately 30 discrepancy reports or other complaints relating to his operation of the route. Of these, approximately 15 related directly to Appellant's failure to depart and/or return on time and an additional 5 noted that Appellant failed to maintain a "regular schedule." As a result, on February 13, 1997, the postmaster, customer services supervisor, and a transportation specialist responsible for administering Appellant's contract held a second formal conference with Appellant. At that conference, the primary topic was again Appellant's failure to regularly maintain the contract schedule. Appellant stated that his difficulty in meeting the departure schedule was because of his need, as a single parent of two young children, to be at home in the morning long enough to get them off to school and not leave them unsupervised. In addition, Appellant stated that his route labels[1] were not in good condition and that new labels would help him meet the departure time. Respondent's officials agreed to provide Appellant new labels. In addition, they advised Appellant that, as before, he would be allowed to come in and sort only the First Class mail before departing, and leave the bulk mail to be sorted in the afternoon for delivery the next day. In that way, Appellant would be able to report to the post office somewhat later in the morning. However, Appellant was informed that he would have to meet the contract schedule or the postmaster would refer the file to the contracting officer for possible action, including default termination. (AF 31, 33; Tr. 42, 66-67).
9. Appellant failed to depart or return on time on at least three of the five delivery days following the conference and, by letter dated February 21, 1997, the postmaster and supervisor issued Appellant a "Final Request for Service Improvement." The letter asked Appellant to restore and maintain satisfactory service within seven days of receipt of the letter or the file would be referred to the contracting officer for "appropriate attention." (AF 32, 33; Tr. 43).
10. By memorandum dated March 24, 1997, the postmaster forwarded her contract file to the contracting officer, reporting that Appellant's performance had not improved following her final request letter. She asked that the contracting officer take action necessary to restore and maintain a satisfactory level of service. (AF 34).
11. Appellant failed to depart and/or return[2] on time on each of the delivery days between March 22 and April 4, 1997. By letter to Appellant dated April 4, 1997, the contracting officer noted that Appellant had been issued a number of Forms 5500 for unsatisfactory service since the postmaster's February 21, 1997 letter (Finding 9) and warned that unless Appellant restored and maintained satisfactory service within three days, the contract might be terminated for default. (AF 35).
12. Appellant received the contracting officer's warning letter no later than April 10, 1997. On April 14-17, 1997, Appellant failed to depart the post office by 10:00 a.m. or return by 1:40 p.m. (AF 35, 41, 43).
13. By final decision dated April 18, 1997, the contracting officer terminated the contract for default, effective the close of business on April 21, 1997. In his decision, the contracting officer cited Appellant's alleged failure to "maintain your contract scheduled reporting time of 0555" on April 15-18, 1997. (AF 43). Appellant filed a timely appeal.
DECISION
Respondent argues that Appellant's failure to comply with the terms of the contract, especially the required times for departing from and returning to the post office, justifies the contracting officer's decision to terminate the contract for default. Further, Respondent argues that Appellant has not proved either that he had an excuse for his failure to perform or that the termination was the result of bias or an improper motive on the part of the contracting officer.
Appellant challenges a number of Forms 5500 that were issued to him for alleged occurrences other than untimely departure and/or return to the post office. He also argues that he was the subject of harassment by the postmaster and customer services supervisor, who wrote him up for minor deficiencies or for events that did not occur. He also argues that construction in the area of his route delayed him by up to 30 minutes, and attached newspaper articles to his brief describing the construction. Finally, Appellant argues that certain actions by the postmaster and supervisor amounted to a violation of his "ethical and civil rights" and that they failed to sufficiently take into account the personal problems he was having as the single parent of two young children.
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.
When Appellant renewed the contract in 1993, the contract contained certain required times for his departure from the Cottonwood Post Office to begin his deliveries and for his return to that office upon completion of his route. In failing, on frequent occasions, to meet those time requirements, Appellant materially breached the contract. Based on that repeated breach, the contracting officer was justified in determining that the contract should be terminated for default. Appellant was given multiple informal and formal warnings, by both the administrative official and by the contracting officer, but failed to correct this repeated deficiency in his performance. Appellant presented no evidence of the alleged delays caused by construction on his route until he filed his brief. Even were we to consider this evidence, we note that there is no indication that the construction occurred over the several-year period during which Appellant frequently failed to meet the contract schedule. Further, construction on Appellant's route would have affected, at most, his time of return to the post office, but would have had no effect on his departure time.
Appellant cites personal problems involving the care of his two young children as factors that affected his ability to report to the post office in time to sort the mail and depart on schedule. However, Appellant was obligated to make arrangements that would allow him to meet his contractual obligations, notwithstanding his personal responsibilities.
Appellant's argument that he was being unfairly harassed by the postmaster and customer services supervisor is also not accepted. The alleged violation of his "ethical and civil rights" appears to stem primarily from an incident in which another carrier reported to the postmaster that he or she had smelled alcohol on Appellant's breath one morning. On receiving that report, the postmaster and supervisor privately asked Appellant to take a breath test, administered by local police officers, before allowing him to drive his route. Appellant agreed to do so, and the test proved completely negative. Under the circumstances, the actions of the postmaster and supervisor were reasonable. Appellant has failed to provide evidence that the postmaster or supervisor were biased against him for reasons unrelated to his contract performance or that they had ulterior motives in referring the matter to the contracting officer. Further, there is no evidence of bias or bad faith on the part of the contracting officer in deciding to terminate the contract for default.
Respondent has met its burden of proving that the default termination was justified,[3] and Appellant has failed to offer an acceptable excuse for his failure to perform the contract. Accordingly, the appeal is denied.
David I. Brochstein
Administrative Judge
Vice Chairman
I concur:
James A. Cohen
Administrative Judge
Administrative Judge
Chairman
I concur:
Norman D. Menegat
Administrative Judge
Board Member
[1] The function of route labels was not explained in the record, although they appear to be an aid used in sorting the mail (AF 33).
[2] A number of the Forms 5500 erroneously show the scheduled return time to be 1:00 p.m., instead of 1:40 p.m. (see Finding 3). However, in each instance in which an actual return time is recorded, it is substantially after 1:40 p.m.
[3] We note that the contracting officer's stated basis for terminating the contract for default was Appellant's alleged failure to report to the post office by 5:55 a.m. on several days after receiving a final warning. Since the contract contained no specific reporting time (Finding 2), the stated basis for termination would be invalid. However, on those days Appellant had also failed to depart from and return to the post office at the times expressly required by the contract, and those failures would provide a proper basis for termination under the facts of this appeal. See, e.g., Pots Unlimited, Ltd. v. United States, 220 Ct. Cl. 405, 600 F.2d 790 (1979); Leo Swanson, PSBCA No. 2641, 91-1 BCA ¶ 23,632.