September 19, 2000
Appeal of
DANIEL M. MILEY, JR.
Under Contract Nos. 089480-97-P-0900 and 249990-92-P-0344
PSBCA No. 4494
Contract No. 323900000-99-01
PSBCA No. 4495
APPEARANCE FOR APPELLANT:
Daniel M. Miley, Jr.
APPEARANCE FOR RESPONDENT:
Margaret E. Harper, Esq.
OPINION OF THE BOARD
Appellant, Daniel M. Miley, Jr., filed two separate appeals of the final decision of the contracting officer terminating, on one day’s notice, three cleaning services contracts Appellant had with Respondent, United States Postal Service. The appeals were consolidated for processing and decision, and a hearing was held in Concord, New Hampshire.
1. On March 16, 1992, Respondent awarded Appellant Contract No. 249990-92-P-0344, in an annual amount of $3,650.10, for Monday through Saturday cleaning services at the Hancock, New Hampshire Post Office. The term of the contract was from April 4, 1992, through April 1, 1994, with options for four additional two-year terms, exercisable at the discretion of the Postal Service. On December 5, 1997, Respondent exercised the third of the two-year options, extending the contract to March 25, 2000. (Stipulation of Fact Nos. (Stip.) 5-8, 10; Appeal File Tab No. (AF 4494) 10).
2. On May 13, 1997, Respondent awarded Appellant Contract No. 089480-97-P-0900, in an annual amount of $5,996.64, for Monday through Friday cleaning services at the Hillsboro, New Hampshire Post Office. The term of the contract was from May 10, 1997, through May 7, 1999, with four additional two-year terms, exercisable at the option of the Postal Service. On April 22, 1999, Respondent exercised the first of the two-year options, extending the contract to May 4, 2001. (Stip. 1, 2 and 4; AF 4494, 1).
3. Both contracts contained a Termination on Notice clause (Clause OB-581) (June 1988), which provided:
“This contract may be terminated in whole or in part, by either party upon thirty days’ written notice. In the event of such termination, neither party will be liable for any costs, except for payment in accordance with the payment provisions of the contract for actual services rendered prior to the effective date of the termination. When, in the contracting officer’s judgment, the interests of the Postal Service require such action, the contract may be terminated by the contracting officer, giving the contractor one day’s notice in writing.” (Stip. 3, 9; AF 4494, 1, 10).
4. Both contracts also contained a Laws and Ordinances clause (Clause OB-585) (June 1988), which notified the contractor that it must comply with all Federal laws, ordinances, and regulations in the course of performance of the contract (AF 4494, 1).
5. Postal Service regulations governing conduct on postal property provide, at 39 C.F.R. §232.1 (e),
“(e) Disturbances. Disorderly conduct, or conduct which creates loud and unusual noise, or which obstructs the usual use of entrances, foyers, corridors, offices, elevators, stairways, and parking lots, or which otherwise tends to impede or disturb the public employees in the performance of their duties, or which otherwise impedes or disturbs the general public in transacting business or obtaining the services provided on property, is prohibited.”
6. In addition to these two cleaning services contracts, on July 23, 1999, Appellant entered into a U. S. Postal Service Cleaning Services Agreement (Agreement No. 323900000-99-01), for cleaning services at the Henniker, New Hampshire Post Office. This agreement provided that it was “. . . effective beginning July 17, 1999 until cancelled, without liability, by either party upon one day verbal notice.” (AF 4495, 1).
7. On March 1, 1999, Appellant lost his temper and slammed the door of the Hancock Post Office safe with such force that the building shook and the safe was damaged. The Hancock Postmaster informed Appellant that his behavior was unacceptable and gave Appellant a copy of the Postal Service’s Zero Tolerance Policy [for violence in the workplace] to read. Appellant was asked to apologize to the employees present, but he refused to do so. The Postmaster warned Appellant at this time that another violent outburst may result in the termination of his contract. (Transcript pages (Tr.) 38-42; Stip. 14).
8. On July 8, 1999, the Officer-in-Charge (OIC), of the Hillsboro Post Office heard Appellant yelling and screaming. After continuing to yell despite being told by the OIC to calm down, Appellant was asked to leave the premises until he could behave in a civil manner. The OIC held a discussion with Appellant when he returned on July 10, 1999, concerning his behavior on July 8. Based on this discussion, and concern that Appellant would have such outbursts in the future, the OIC requested that the Postal Inspection Service conduct an investigation of Appellant’s behavior. (Tr. 22-24).
9. The investigation by a Postal Inspector included interviews of nine Postal Service employees, all of whom reported instances of loud and/or intimidating behavior by Appellant in the past. Examples of such behavior include throwing a large trash can across the room in a fit of anger, use of extremely vulgar language on two occasions, as well as numerous instances of verbally abusing Postal Service customers and employees. (Tr. 15-18, 29-31; AF 4494, 17).
10. Based on the report of the Postal Inspector, and discussions with the contract administrator and contracting officer representatives at each post office, the contracting officer determined that Postal Service employees were afraid of, and intimidated by Appellant at all three of the post offices where he worked. As a result, by final decision dated September 14, 1999, the contracting officer terminated the three contracts on one day’s notice. The final decision was hand delivered to Appellant on the morning of September 15, 1999, and the termination was effective September 16, 1999. (Tr. 8-12; Stip. 15, 17; AF 4494, 18; AF 4495, 4).
11. Appellant filed timely appeals of the contracting officer’s decision to terminate the two cleaning services contracts and the cleaning services agreement (Stip. 16, 18).
Respondent argues that the decision to terminate the two cleaning services contracts on one day’s notice was justified by Appellant’s disruptive and intimidating behavior on numerous occasions prior to the termination. Appellant challenges the terminations and argues that he always performed good work under the contracts and his periodic episodes of “emotional” behavior, standing alone, did not justify termination. Appellant further argues that he was denied due process by not first being warned that his behavior may lead to termination and because he was never interviewed during the investigation that led to the decision to terminate the contracts.
A contracting officer’s decision to terminate a contract on one day’s notice under the termination clause in both of these contracts will be upheld unless it constitutes an abuse of discretion. See Tom Kime, PSBCA No. 3480, 95-1 BCA ¶ 27,490 recon. denied 95-2 BCA ¶ 27,673. In this case Respondent has documented numerous instances of disruptive behavior by Appellant that had the effect of frightening and intimidating Postal Service employees (Finding of Fact Nos. (FOF) 7-9). Contrary to Appellant’s assertion, he was warned in March 1999, that his behavior was in violation of the Postal Service’s “Zero [violence] Tolerance” policy, and that further outbursts may lead to the termination of his contracts (FOF 5). Nevertheless, Appellant continued to have episodes of similar disruptive behavior (FOF 8, 9).
Thereafter, based on the results of the investigation of the Postal Inspection Service, as well as in consultation with Respondent’s contracting officer representative at each post office, the contracting officer decided to terminate the contracts on one day's notice. Based on this record, the contracting officer’s decision to terminate was not an abuse of discretion. Appellant’s episodes of disorderly conduct violated Postal Service regulations governing conduct on post office premises (FOF 5), and constituted a breach of Appellant’s contractual duty to comply with such regulations (FOF 4). Accordingly, the contracting officer’s decision to terminate the contracts on one day’s notice was proper. See Thomas A. Grafford, PSBCA No. 4345 (Slip Opinion dated August 15, 2000); Lisa Coffron, PSBCA No. 4069, 98-2 BCA ¶ 29,825. This appeal is denied.
Respondent argues that this cleaning services contract provided that both parties had the right to terminate the agreement without liability on one day’s notice, and that, having given proper notice, Respondent acted correctly in terminating the agreement. Appellant argues that the cleaning services agreement was an extension of the previous cleaning services contract he held at the Henniker Post Office and should be treated as such.
Despite Appellant’s assertion, his signature on the cleaning services agreement for the Henniker Post Office appears on the same page as the mutual termination provision that allows either party to terminate the agreement, without liability, on one day’s notice ( FOF 6). Moreover, even if this mutual one-day termination provision was not present, the reasons for terminating the two contracts under PSBCA No. 4494 are equally applicable to this contract. Accordingly, the contracting officer’s decision to terminate this contract on one day’s notice is upheld.
This appeal is likewise 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