July 27, 2000
Appeal of
LINDA F. WILLETT
Under Contract No. HCR 38018
PSBCA No. 4379
APPEARANCE FOR APPELLANT:
Cindy Cole Ettingoff, Esq.
APPEARANCE FOR RESPONDENT:
Glenn L. Smith, Esq.
OPINION OF THE BOARD
Appellant, Linda F. Willett, has appealed the termination for default of her mail transportation contract with Respondent, United States Postal Service. The parties elected to submit the appeal on the record pursuant to 39 C.F.R. §955.12.
1. On June 6, 1996, Respondent awarded to Appellant Contract No. HCR 38018, in the amount of $47,972.42 per annum, for the transport of mail between the Memphis General Mail Facility (GMF) and Newbern, Tennessee. The term of the contract was from July 1, 1996, to June 30, 2000. (Appeal File Tab (AF) 6).
2. The contract included Basic Surface Transportation Services Contract General Provisions, Postal Service Form 7407, July 1992, which in clause 4(a), 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,” and at Clause 4(c), required Appellant to “protect the mail from loss, depredation, or damage” and transport the mail “in an enclosed, water-proof compartment, equipped with secure locking devices, which shall be kept locked at all times except when access thereto is required for performance of service under this contract.” These requirements remained in force at all times during Appellant’s performance of the contract. (Declaration of Dan Starnes; AF 6, 7).
3. General Provisions Clause 16, TERMINATION BY THE POSTAL SERVICE FOR DEFAULT, permitted the Postal Service to terminate the contract for default if the contractor failed to perform according to the terms of the contract, for the contractor’s failure to properly account, deliver and pay over moneys, mail and other property pursuant to Clause 8 of the contract[1], or if the contractor’s transportation equipment is insufficient, inadequate, or otherwise inappropriate for the service (AF 6).
4. On March 3, 1999, 11 registry pouches containing $62,227.63 in cash and checks were lost or stolen from Appellant’s truck while she was performing her route. Although Appellant had procured and installed a lock on her truck, she had not locked the compartment of her truck that contained the registry pouches while she performed the route on this date. When Appellant completed the route and discovered the loss, she also noted that her rear door was 1/3 open. (Declaration of Valerie Clay; Affidavit of Charles Coleman; AF 3, 8).
5. On March 4, 1999, the contracting officer suspended Appellant’s performance of the contract and, by final decision dated March 16, 1999, he terminated the contract for default because of Appellant’s failure to protect the mail from loss, depredation or damage as well as her failure to secure the mail by locking the mail compartment while transporting the mail (Declaration of Dan Starnes; AF 2, 7). Appellant filed a timely appeal of the contracting officer’s final decision.
Respondent has the burden of proving that the termination for default was justified by demonstrating that Appellant failed to perform according to the terms of the contract. Jerome Bailey, PSBCA No. 3638, 95-1 BCA ¶ 27,447; Pamela J. Sutton, PSBCA No. 1622, 88-3 BCA ¶ 21,031. Respondent has met its burden. The evidence in this appeal clearly establishes that Appellant failed to secure the mail by locking the compartment of her truck while transporting the mail (Finding of Fact No. 4). This failure, and the resultant loss of registered mail containing approximately $60,000 in cash and checks, was a serious breach of Appellant’s obligations under the contract, and justifies the contracting officer’s decision to terminate the contract for default. See Renato Luna, PSBCA No. 4037, 98-1 BCA ¶ 29,719; accord Rellen Clark, PSBCA Nos. 4096, 4097, 99-1 BCA ¶ 30,210.
Appellant presents four arguments to support her contention that the termination for default of her contract was improper. Appellant first argues that the termination was motivated by her claim of sexual harassment by Postal Service employees in Memphis, Tennessee. However, Appellant has presented no evidence to support this contention. Appellant’s contract was terminated for default by the contracting officer in Atlanta, Georgia almost two years after she complained of sexual harassment at the Memphis GMF, and Appellant has not shown that her complaints of sexual harassment had any relationship to the decision by the contracting officer to terminate her contract for default.
Appellant also argues that the decision to terminate her contract for default was motivated by racism in that the contracts of other non-African American mail transportation contractors were not terminated after a theft or loss on the route. Here also, this argument fails for lack of proof, since Appellant offered no evidence to support the allegation. Moreover, the fact that a theft occurred does not necessarily mean that a mail transportation contractor violated a contract requirement. Appellant has not shown that the mail losses of other contractors resulted from their breach of the terms of their contracts.
Appellant next argues that she was unaware of the requirement to lock the truck while transporting mail and that this requirement was not uniformly enforced against other mail transportation contractors. In support of this argument, Appellant submitted the affidavit of a driver for another mail transportation contractor who stated that he was not made aware by Postal Service officials that locks were required on the mail trucks while transporting mail. This evidence, however, has no relevance to whether the contracting officer properly terminated Appellant’s contract for default for failing to protect the mail. In the first instance, it was the responsibility of the driver’s employer, i.e., the mail transportation contractor, and not the Postal Service, to inform the driver of the requirements of the mail transportation contract. Secondly, the fact that another HCR contractor was in violation of its contract does not excuse Appellant’s failure to perform according to the terms of her contract. Further, Appellant’s installation of the lock on her truck (Finding of Fact No. 4), makes it doubtful she was unaware of her contract obligations. Nevertheless, ignorance of the requirements of her contract does not excuse her failure to comply with all of its material terms. See Marlena R. Antrim, PSBCA No. 2149, 88-3 BCA ¶ 21,108.
Finally, Appellant suggests that Postal Service employees carried out the theft for the purpose of having her contract terminated for default. However, Appellant failed to produce any evidence to support this allegation. See Gary W. Noble, PSBCA No. 4094, 00-1 BCA ¶ 30,602.
The evidence in this appeal fails to show that Appellant’s contract was improperly terminated for default or that Appellant’s failure to comply with the terms of the contract was excusable. Accordingly, this appeal is denied.
William K. Mahn
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
Norman D. Menegat
Administrative Judge
Acting Vice Chairman
[1] General Provisions Clause 8 of Appellant’s contract required the contractor to faithfully account for, deliver and pay over all moneys, mail and other property of every kind belonging to the United States Postal Service.