September 30, 2005
Appeal of
AJ CUSTODIAL SERVICE
Under Contract No. 115925-222-04-02
PSBCA No. 5220
APPEARANCE FOR APPELLANT:
Auren J. Frei
APPEARANCE FOR RESPONDENT:
Stephen D. Lobaugh, Esq.
Office of the General Counsel
OPINION OF THE BOARD
Appellant, AJ Custodial Service, appeals the termination of its cleaning services contract with Respondent, United States Postal Service, contending that its work was satisfactory and that the termination was not justified.
At the parties’ election, the appeal is being decided on the record without an oral hearing. The parties submitted additional evidence, including declarations of witnesses and briefs in support of their positions.
FINDINGS OF FACT
1. On April 29, 2004, Respondent and Appellant entered into Contract No. 11595-222-04-02 requiring Appellant to provide cleaning services at the Middleburg, Florida Post Office for the period June 5, 2004, through June 3, 2005. Appellant was to be paid $384 bi-weekly, totaling $9,984 for the entire contract term. (Appeal File, Tab (“AF”) 5; Stipulation (“Stip.”) 2).
2. The contract’s Statement of Work specified the required cleaning tasks and the frequency of their performance (daily, weekly, monthly or quarterly) (AF 5).
3. The contract included a Termination on Notice clause that provided, “Either the Postal Service or the supplier may terminate this contract on 30 days’ written notice to the other.” It also included authority for Respondent to terminate the contract for cause if Appellant failed to perform the requirements of the contract. (AF 5 (PS Form 7355-X); Stip. 3).
4. Respondent’s signature block on the printed contract form identified the “Postmaster” as the official to sign the contract on Respondent’s behalf. In this case, however, the contract had been signed for Respondent by an officer-in-charge, who preceded the postmaster as manager of the Middleburg Post Office and who acted as the postmaster temporarily during his tenure as officer-in-charge. By September 2004, a postmaster had been appointed for Middleburg, and the postmaster then was the contracting officer for Appellant’s contract. (Declaration of Kenneth A. Brantley, Paragraphs 1, 2; AF 5).
5. In September and October 2004, the postmaster and another official of the Middleburg Post Office directed Appellant to perform certain tasks that Appellant believed were not within the scope of its duties under the contract. Appellant refused to perform the tasks despite being directed again by the postmaster, orally and in writing, to do so, arguing that they were not required by its contract. (AF 6, 7, 9; Declaration of Kenneth A. Brantley, Paragraphs 3, 4, 7, 8).
6. On October 4, 2004, the postmaster invoked the Termination on Notice provision of the contract (Finding 3), giving Appellant written notice that the contract was terminated and that its contract services would end on November 2, 2004 (AF 8; Stip. 4, 5; Declaration of Kenneth A. Brantley, Paragraph 10).
7. Appellant ceased performing on November 2 and
was compensated through that date. In a
November 4 letter to the postmaster, Appellant complained that the termination
was unfair and demanded payment of the compensation it would have earned under
the contract until its expiration on
8. Appellant had not received a response to its
November 4 letter by the end of the month and on November 30 filed this appeal,
which the Board docketed on
9. By final decision dated
DECISION
Appellant argues that it performed the duties required by the contract satisfactorily, but that the postmaster directed it to perform work beyond the contract’s scope and improperly terminated the contract when Appellant refused. Appellant argues that since the termination resulted from Respondent’s dissatisfaction with its performance, Respondent should have terminated the contract for cause and should be required in this appeal to demonstrate that Appellant’s performance did not meet the requirements of the contract. Further, Appellant questions the postmaster’s authority to terminate the contract and claims that the postmaster was hostile toward it and acted in bad faith. Respondent argues that the postmaster properly exercised Respondent’s rights under the Termination on Notice provision of the contract.
Appellant questions the postmaster’s authority to administer and terminate the contract because the postmaster did not sign the original contract. However, the authorized signatory on behalf of Respondent, as printed on the contract form, was the postmaster of the office, and once a postmaster succeeded the temporary officer-in-charge as manager of the Middleburg Post Office, he assumed authority to act for Respondent under the contract (Finding 4). Thus, the Middleburg Postmaster was authorized to administer Appellant’s contract on Respondent’s behalf.
It
is not necessary to determine whether the tasks Appellant refused to perform
were, in fact, beyond the scope of its cleaning services contract. It is enough that under Appellant’s contract
Respondent was not receiving the services it wanted. Terminating the contract on 30 days’ written
notice so that Respondent could obtain the desired service was authorized by
the Termination on Notice clause of the contract. See D & C Building Maintenance,
Inc., PSBCA No. 4459, 01-1 BCA ¶ 31,301; Swearingen Services, Inc.,
PSBCA No. 3718, 96-2 BCA ¶ 28,398.
Appellant was entitled to compensation for the full notice period, but
Respondent compensated Appellant only through
Appellant
says that the postmaster was hostile toward it and suggests that he acted in
bad faith when deciding to terminate the contract. It is apparent from the record that there was
friction between Appellant and the postmaster stemming from their disagreement
about the tasks Appellant refused to perform.
Resolving such a contentious work environment at the post office is
another justification for terminating the contract on 30 days’ notice, see
D & C Building Maintenance, Inc., PSBCA No. 4459, 01-1 BCA ¶ 31,301,
and the record falls far short of demonstrating bad faith on the postmaster’s
part. Appellant has not shown by clear and
convincing evidence that the postmaster had some specific intent to harm it or
was motivated alone by malice in terminating the contract, which is what
Appellant must show to demonstrate bad faith on the part of Respondent’s
employee. See Am-Pro Protective
Agency, Inc. v.
Recovery is allowed for the 30th day of the required notice period, but the appeal is otherwise 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