OPINION OF THE BOARD

Respondent, United States Postal Service, terminated its mail transportation contract with Appellant, Robert E. Davis, for default. Respondent based the termination on Appellant’s alleged late performance and failure to equip his truck according to the requirements of the contract. Appellant appealed the termination.

An oral hearing was held, and the parties have filed post-hearing briefs.

FINDINGS OF FACT

1. On October 25, 1995, Respondent awarded Appellant a contract for the transportation of mail between Macon, Georgia and the Montgomery, Alabama General Mail Facility (“GMF”) according to a schedule of arrival and departure times set forth in the contract. The contract term was from November 18, 1995, to June 30, 1998, at an annual rate of $64,469. (Hearing Transcript, pages (“Tr.”) 40, 74, 108; Appeal File, Tab (“AF”) V, Contract Sections 11, 12; Joint Stipulation of Non-contested Facts (“Stip.”) ¶ 1).

2. The contract required Appellant to provide the service using a truck equipped with a specified load restraint system that included stake pockets (metal plates with holes located on the floor of the cargo area to secure the mail containers) and a “door saver” shoring bar on the inside of the rear door. (AF V, Contract Section 15.C.1.D, Attachments B, D (Stip. ¶ 5)).

3. The mail was to be carried in Postal Service carts, hampers and heavy “BMC” containers, and the load restraint system was necessary to secure the equipment safely in the truck. The stake pockets in the floor were specifically for use with the BMC containers—a pin from the container dropping into a stake pocket to keep the container from moving. The door saver bar prevented damage to the door and possible loss of mail through a damaged door in the event containers broke loose during transit. (Tr. 45, 46, 68, 79-80, 132-135, 137; Respondent’s Exhibit 1; AF V, Contract Section 15.C.1.C, Attachments B, D).

4. The contract also required that the interior walls of the cargo compartment be lined floor-to-ceiling with ¼ inch plywood (AF V, Contract Section 15.C.1.C). The plywood liner was an important mail security requirement to make sure loose mail could not slip down the interior wall of the cargo van and be lost (Tr. 69, 79).

5. Appellant was required by the contract to have readily available sufficient stand-by equipment of the type specified in the contract to permit vehicle maintenance and to prevent delays in the event of mechanical failures. (Tr. 77-78; AF V, Contract Section 15.A).

6. The contract authorized the contracting officer to terminate the contract for default,

“(1) For Contractor’s failure to perform service according to the terms of the contract;

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(10) If the Contractor’s transportation equipment is insufficient, inadequate, or otherwise inappropriate for the service;” (AF V, Contract General Provision 16, TERMINATION BY THE POSTAL SERVICE FOR DEFAULT, PS Form 7407, July 1992; Stip. ¶ 3)

7. In February 1997, Appellant had an accident that wrecked his truck, and that truck was never again used on the route (Tr. 113, 128). He continued to provide the service, first using a rented truck for a few days (Tr. 128), and then using a truck with a 22-foot-long cargo compartment that he had been using as his stand-by vehicle. The contract required that he use a truck with a cargo compartment minimum interior length of 23.5 feet. (Tr. 54, 76, 86, 109, 113-114; AF S; AF V, Contract Section 15.C.1).

8. Respondent repeatedly objected to Appellant’s continued use of the smaller truck and insisted that Appellant obtain a truck meeting the contract’s length requirement (Tr. 56, 58, 76; AF G (pp. 34-92), P, Q, R; Stip. ¶ 7).

9. In June 1997, Appellant bought a new truck. This truck was large enough, but it was not equipped with the plywood lining inside the cargo van, stake pockets or a door saver bar. (Tr. 22, 62, 78, 117-118, 130-132; AF K; Stip. ¶ 9).

10. The Networks Specialist at the Montgomery GMF inspected the vehicle and on June 30, 1997, advised Appellant that he needed to install the plywood lining and stake pockets (AF K). When this had not been done by August 15, 1997, the Networks Specialist wrote to Appellant insisting that the load restraint equipment, including the stake pockets and door saver bar, and the plywood liner be installed no later than September 1, 1997 (AF I; Stip. ¶ 11). The equipment was not installed, and Respondent issued Appellant Contract Route Irregularity Reports almost daily from September 3 through September 29, noting Appellant’s failure to install the required load restraint system and plywood liner (AF G, pp. 1-27).

11. During 1996, Respondent’s officials had issued Appellant a number of Contract Route Irregularity Reports, noting late arrivals and departures. On June 10, 1996, the Networks Specialist, representing the contract’s administrative official, met with Appellant and discussed Respondent’s dissatisfaction with his late performance. (AF T). In 1997, Appellant was late arriving or departing on the route by more than 15 minutes on March 8 (AF G, p. 78), 12 (AF G, p. 75), 14 (more than 3 hours late)(AF G, p.74), May 7 (2 hours late)(AF G, p. 46) and 17 (AF G, pp. 42-45), June 14 (5 hours late due to a mechanical breakdown)(AF G, pp. 31-32), 19 (AF G, p. 30) and 20 (AF G, p. 29). Respondent had warned Appellant on a number of occasions that he must meet the contract schedule. (Tr. 17, 44, 47-48; AF G, J, M, N, T; Stip. 8, 10).

12. When Appellant arrived late at the Montgomery GMF, the mail he was carrying risked missing, and on a number of occasions did miss, outbound trips to its destination cities, because those trips would depart before Appellant’s late arrival. Thus, mail was delayed, and, additionally, the late arrival disrupted Respondent’s handling of the mail at the GMF. (Tr. 44, 48; AF N).

13. On September 18, 1997, the Networks Specialist notified the contracting officer that Appellant had failed to respond to his demands that the load restraint equipment and plywood liner be installed. Sometime later in September, a contract specialist working for the contracting officer called Appellant and urged him to bring the truck up to the contract specification requirements (Tr. 22-23). Appellant did not tell the contract specialist of any plans he had to install the required equipment (Tr. 22-23, 142; contra Tr. 135-136, 138).

14. The required equipment was never installed (Tr. 130-132), and in a final decision dated October 1, 1997, the contracting officer terminated the contract for default. The contracting officer relied on the number of performance irregularities—mainly late deliveries—since the beginning of 1997 and Appellant’s failure to provide a vehicle that met the specifications. The contracting officer cited specifically
Appellant’s failure to have stake pockets, a door saver bar and plywood lining of the interior walls. (Tr. 17; AF E; Stip. ¶¶ 12, 13).

DECISION

Respondent argues that the termination was justified by Appellant’s late performance on a number of occasions and by his failure to install the load restraint system and plywood liner specifically required by the contract.

Appellant argues that any late performance was excusable, and that he never failed to deliver the mail, even when he was delayed. Regarding the equipment he was to install in the truck, he argues that he was a small businessman and that his financial condition prevented him from complying.

Appellant’s contract was properly terminated for default for his failure to install the load restraint equipment and the plywood liner. Respondent has shown that the particular requirements at issue were significant to the safety of the transport of the mail and to the security of the mail in the cargo van (Findings 3, 4).[1] Appellant does not deny that the contract required him to install the load restraint system and the plywood liner, and he concedes that he did not do so before the contract was terminated.

Appellant has not shown a valid excuse for failing to equip his vehicle as required. Any financial difficulties experienced by Appellant would not excuse his failure to comply with the contract requirements, because there was no suggestion that Respondent had caused those difficulties. See Mowtron Indus., Inc., PSBCA No. 1743, 88-3 BCA ¶ 20,834.

Appellant also argued that he could not have taken the vehicle out of service for the two to three days it would have taken to install the required equipment and still perform the contract. However, if he had had a contract-compliant backup vehicle, as required by the contract (Finding 5), he would have been able to accomplish the work promptly without missing service on the route.

Finally, Appellant contended that the termination was improper because he had made arrangements for the truck to be brought up to specification standards on October 3 and had so advised Respondent’s contract specialist immediately before the contract was terminated. On this point, however, we have credited the contract specialist’s testimony that Appellant did not advise her of an intention to install the equipment or of any appointment he had for doing so (Finding 13).

Appellant’s failure to install the equipment despite being given ample opportunity to do so breached the contract, and the contracting officer reasonably exercised his discretion in terminating the contract based on Appellant’s providing nonconforming equipment that compromised the safety and security of the mail. See James A. Weibel, PSBCA No. 2960, 91-3 BCA ¶ 24,268; Charles E. Blanton, PSBCA No. 1381, 86-1 BCA ¶ 18,723.[2]

The appeal is denied.

Norman D. Menegat

Administrative Judge

Board Member

I concur:

James A. Cohen

Administrative Judge

Chairman

I concur:

David I. Brochstein

Administrative Judge

Vice Chairman

[1] Appellant contended that the stake pockets were not crucial because he seldom carried BMC containers, but Respondent is entitled to strict performance of its contract requirements regardless of Appellant’s view as to the necessity for the stake pockets. See J & M Trucking, PSBCA No. 2804, 92-1 BCA ¶ 24,598; Charles E. Blanton, PSBCA No. 1381, 86‑1 BCA ¶ 18,723. He also testified that he had drilled the holes into which the metal stake pockets would be inserted. However, simply drilling holes in the floor did not meet the specification requirements.

[2] Appellant’s history of late performance (Findings 11, 12) gave the contracting officer additional grounds for terminating the contract. However, because we find that Appellant’s failure to equip his truck properly was a sufficient basis for the termination, we need not address separately the late performance.