April 19, 2004
Appeals of
PETER A. SOBIECKI d/b/a ROADMAX
Under Contract No. HCR 917A0
PSBCA Nos. 4901, 4940
APPEARANCE FOR APPELLANT:
Peter A. Sobiecki
APPEARANCE FOR RESPONDENT:
Melvin L. Kennedy, Esq.
San Francisco Law Office
United States Postal Service
390 Main Street, Suite 740
San Francisco, CA 94105-5001
OPINION OF THE BOARD
Appellant, Peter A. Sobiecki, d/b/a Roadmax, has appealed the default termination of his mail transportation contract with Respondent, United States Postal Service, and the assessment of excess reprocurement costs against him. The appeals are being decided on the record in accordance with 39 C.F.R. §955.12.
FINDINGS OF FACT
1. On January 5, 2001, Appellant entered into Contract No. HCR 917A0 with Respondent for the transportation of mail by truck from the Rancho Cucamonga, California Post Office to Etiwanda, California, with an intermediate stop at the Alta Loma, California Branch. Service under the contract was to begin on February 24, 2001, and continue through June 30, 2004, at an annual rate of $39,384.39. (Appeal File, Tab (“AF”) 1; Joint Stipulation dated January 27, 2003 (“Stip.”) 1, 2).
2. The contract authorized Respondent to terminate the contract if Appellant failed to complete the requirements of the contract within the time allowed or if Appellant failed to perform any of the other provisions of the contract (AF 1, Contract Section H.4, TERMINATION FOR DEFAULT (Clause B‑13) (January 1997) (Modified), subsection a).
3. The contract included a requirement that Appellant comply with all Federal laws, ordinances, and regulations while performing the contract and with postal laws and regulations related to performance of the contract (AF 1, Contract Sections H.19, LAWS AND REGULATIONS APPLICABLE (Clause B-80) (January 1997) and H.5, EVENTS OF DEFAULT (Clause B-69) (January 1997), subsection b).
4. Postal Service regulations governing conduct on postal property provide, at 39 C.F.R. §232.1 (2001),
“(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.”
5. In the event of a default termination, the contract provided that Respondent could obtain similar services and hold the contractor liable to the Postal Service for any excess costs (AF 1, Contract Section H.4, TERMINATION FOR DEFAULT (Clause B-13) (January 1997) (Modified), subsection b).
6. When Appellant finished loading mail in his truck at a post office, Respondent’s Security Seal Program required that a post office employee prepare and apply a security seal to the closed truck door. To ensure that the mail in the truck was not accessed during the trip, at the next stop on the route only a postal employee was permitted to cut the seal to allow Appellant to unload his truck. (AF 17, 28).
7. During performance of the contract, considerable friction arose between Appellant and Respondent’s employees over the time it took postal employees to cut the seal after Appellant arrived at the post office dock. Appellant complained that the employees were slow to appear, that they purposely delayed him by refusing to come out even when they knew he had arrived and that they were rude and arrogant when they did appear. (AF 7, 10, 12, 13, 14, 15, 18, 21, 27, 28, 36; Appellant’s Exhibits (“App. Exh.”) 2, 4).
8. In August 2001, on at least four occasions, Appellant cut the security seal on his truck after arriving at the Rancho Cucamonga Post Office, ringing the dock bell and waiting what he considered a reasonable time for Respondent’s employee to arrive to cut the seal. Respondent had previously instructed Appellant that he was not permitted to cut the security seal himself, but he believed doing so was justified by the failure of Respondent’s employees to appear promptly. He believed his conduct was necessary in order to deliver on schedule. (AF 12, 13, 14, 15, 18; App. Exh. 2).
9. By letter dated August 30, 2001, Respondent’s transportation manager explained the security program to Appellant and directed him again not to cut the seals on his truck (AF 17). Appellant responded on September 11, 2001, that he understood and would comply with her instructions (AF 20).
10. On December 24, 2001, Respondent’s designated employee at Rancho Cucamonga refused to cut the security seal, and Appellant did so himself. In a December 26, 2001 fax to the contracting officer, Appellant explained why he had done so and complained that the conduct of this Rancho Cucamonga employee was making it impossible for him to perform his contractual duties. (AF 27).
11. On December 26, 2001, Respondent’s Networks Specialist, who oversaw Appellant’s route, called Appellant and reiterated that under no circumstances was Appellant to cut the seal and that if he had a problem with someone on the dock, he was to speak to a supervisor or the postmaster. Appellant again complained about the Rancho Cucamonga dock employee’s rudeness. (AF 28).
12. On April 2, 2002, Appellant had to wait about 15 minutes for a postal employee at the Alta Loma Branch to come to the dock and cut the seal on his truck, even though he had rung the bell and eventually gone around to the front of the post office looking for someone to cut the seal. Once the employee arrived at the dock, Appellant initiated an altercation, yelling rudely at the employee. He called her vulgar names, and she responded in kind. Thereafter, the employee, having cut the seal, returned to the building to make the new seal to close the truck, and Appellant went into the back of his truck to unload equipment. While in the truck, however, Appellant decided he “had to deal with” the situation. He left his truck and returned to the building to confront the employee. Standing close and holding his fist near her face, he twice threatened to physically assault her. The employee was shaken by the encounter, but both she and Appellant finished their official tasks, and Appellant left. (AF 35-39, 41, 43, 45).
13. On April 3, 2002, the contracting officer issued a show cause notice stating that Appellant’s actions on April 2, 2002, violated the Postal Service’s policy of zero tolerance for violence or threat of violence. The contracting officer temporarily barred Appellant from driving the route or having access to the mail, and gave Appellant six days to submit evidence regarding his behavior and performance on the route and to show cause why the contract should not be terminated for default. (AF 40; Stip. 5).
14. Appellant responded to the show cause notice by admitting the substance of the threats attributed to him and by stating that he did not feel bad or guilty about his response to the clerk’s “vulgar insult.” He complained that his previous complaints of rude behavior by postal employees to higher level officials had gone unanswered, and, as a result, he had to stand up for himself. He said his April 2 response to the employee’s insult was “deliberately rude so [she] can learn that it is not a good idea to insult me or anybody else.” (AF 41; Stip. 6).
15. After receiving and considering Appellant’s response to the show cause notice, the contracting officer issued a final decision on April 9, 2002, terminating Appellant’s contract for default effective close of business April 3, 2002. The contracting officer based his decision on Appellant’s behavior during the April 2 confrontation at the Alta Loma Branch. (AF 42; Stip. 7).
16. On April 17, 2002, Appellant filed a timely appeal of the termination for default with the Board, which appeal was docketed as PSBCA No. 4901 (AF 43; Stip. 10).
17. On August 1, 2002, the contracting officer issued a final decision assessing reprocurement costs against Appellant. Respondent calculated the amount of damages against Appellant to be $1,389.11, which included $1,038.62 in reprocurement costs and $350.49 in administrative costs. A “Default Damage Worksheet” purporting to show how the damages were determined was sent with the August 1, 2002 final decision. (AF 48; App. Exh. 6; Stip. 11).
18. On August 13, 2002, Appellant filed a timely appeal of the August 1, 2002 final decision assessing excess reprocurement costs. The appeal was docketed as PSBCA No. 4940 and consolidated with PSBCA No. 4901. (Stip. 12).
DECISION
Respondent contends Appellant’s contract was properly terminated for default due to Appellant’s hostile and threatening behavior toward the Alta Loma Branch employee and Appellant’s failure to follow established security procedures. Respondent also contends that the assessment of reprocurement costs was proper.
Appellant argues that his performance was satisfactory, that Respondent’s employees interfered with his performance and that the termination resulted from postal employees’ discrimination and hostility toward him. Appellant opposes the assessment of reprocurement costs.
Termination for Default
The friction between Appellant and Respondent’s employees (Findings 7, 8, 10, 11) culminated in the altercation of April 2, 2002, at the Alta Loma Branch. After an initial exchange of insults between Appellant and Respondent’s employee, both returned to their official duties: Appellant in his truck unloading equipment and Respondent’s employee returning to the building to make the security seal to apply once the truck was ready to go (Finding 12). However, as Appellant thought about it in his truck, he concluded that he had to deal further with the insult, and he left his contract duties and went to the building to confront the employee. This time he did so in a threatening manner, standing close, holding his fist to her face[1] and explicitly threatening her twice with serious bodily harm.[2] (Finding 12).
Appellant's conduct on April 2, 2002, significantly disrupted the orderly performance of work at the Alta Loma Branch. His conduct violated Respondent’s regulation governing conduct on postal property (Finding 4) and, thereby, breached his contractual obligation to comply with such regulations (Finding 3). See Arthur Napier, PSBCA Nos. 3044, 3140, 94-2 BCA ¶ 26,695. The contracting officer gave Appellant an opportunity to respond to the proposed termination of his contract (Finding 13), but in his response, Appellant expressed no regret for the encounter (Finding 14). He confirmed what he had told postal officials on other occasions—that he would not put up with what he considered abusive treatment by Respondent’s employees—and he gave the contracting officer no assurance that a similar, or perhaps worse, encounter would not occur in the future (Finding 14).
Appellant’s disruptive behavior and threats to harm a Postal Service employee constituted a material breach of the contract’s requirements. See Daniel M. Miley, Jr., PSBCA Nos. 4494, 4495, 00-2 BCA ¶ 31,108; Robert Earl Lanier, PSBCA No. 3143, 94-2 BCA ¶ 26,693; Eddy M. Acevedo, PSBCA No. 3217, 93-1 BCA ¶ 25,493; Pascal Redfern, PSBCA No. 1512, 87-1 BCA ¶ 19,646, recon. denied, 87-3 BCA ¶ 19,983. Those threats of physical violence, with no assurance by Appellant that the circumstance would not recur, justified the contracting officer’s termination of the contract for default. See Composite Laminates, Inc. v. United States, 27 Fed. Cl. 310, 324-325 (1992); International Verbatim Reporters, Inc. v. United States, 9 Cl. Ct. 710, 723 (1986).
Appellant has not shown an excusable cause for default or that the termination was an abuse of discretion. He has not shown that the termination was caused by anything other than his conduct on April 2, 2002, and his failure to offer assurance that such unacceptable conduct would not recur. He has not shown that bias or discrimination motivated Respondent’s actions. See Patricia J. Stevens, PSBCA No. 3272, 94-1 BCA ¶ 26,419, recon. denied, 94-2 BCA ¶ 26,951. He has not demonstrated that his threatening conduct was provoked by the Alta Loma employee or justified by past rude behavior of postal employees.
Accordingly, the contracting officer’s decision to terminate the contract for default was proper.
Excess Costs of Reprocurement
In support of the assessment of excess reprocurement costs, Respondent submitted only a Default Damage Worksheet, which showed how the contracting officer calculated the $1,389.11 in claimed costs (Finding 17). No other evidence regarding the reprocurement cost claim is in the record. The Worksheet does not satisfy Respondent’s burden to show that the services reprocured were the same or similar to those required by Appellant’s contract, that Respondent actually incurred the costs on the Worksheet or that Respondent acted reasonably in awarding the emergency contract, thus mitigating the amount of excess costs incurred. See Cascade Pacific International v. United States, 773 F.2d 287, 293 (Fed. Cir. 1985); Don Wasylk d/b/a Klysaw, PSBCA Nos. 4186, 4283, 00-1 BCA ¶ 30,844; Jim Lovett, PSBCA Nos. 3633, 3634, 95-1 BCA ¶ 27,516. Accordingly, Respondent may not recover its claimed excess reprocurement costs or any associated administrative costs. See Linda Copman, PSBCA Nos. 4889, 4903, 03-2 BCA ¶ 32,342; Werner Lembke d/b/a Lembke Trucking, PSBCA No. 3875, 98-2 BCA ¶ 29,999 at 148,366.
Conclusion
The termination for default was proper, and the appeal from the termination, PSBCA No. 4901, is denied. However, Respondent failed to prove entitlement to excess reprocurement costs. Accordingly, the appeal in PSBCA No. 4940 is
sustained. Appellant is entitled to repayment of any earned amounts withheld based on Respondent’s claim of reprocurement costs, plus applicable interest.
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] The clerk involved in the incident stated that Appellant raised his fist to her face during the incident (AF 35, 39), which Appellant denied (AF 42, 43). However, when asked by the postmaster later that day why he had raised a fist to the employee, Appellant did not deny doing so but stated that his conduct was justified by the employee’s rudeness to him (AF 36). We have credited the employee’s statement on this point.
[2] Appellant and the employee disagree about the exact threatening language used. However, we see little difference in their versions, and whichever expressions were used, the statements, accompanied by Appellant’s actions, were serious and believable threats to harm the employee physically.