May 21, 2007

 

Appeals of                                                                        

                                                                                                                                  

ANDREW M. JOHNSON                                          

                                                                                                 

Under Contract No. HCR 99332

                       

PSBCA Nos. 5175, 5210, and 5242

 

APPEARANCE FOR APPELLANT:         

George R. Guinn, Esq.

                                

APPEARANCE FOR RESPONDENT:     

Stephen D. Lobaugh, Esq.

Office of the General Counsel

United States Postal Service

475 L'Enfant Plaza, SW, Room 6425

Washington, DC  20260-1127

 

OPINION OF THE BOARD ON MOTION FOR RECONSIDERATION

 

            Appellant has filed a motion seeking reconsideration of the Board’s Opinion (Andrew M. Johnson, PSBCA Nos. 5175, 5210, 5242, 07-1 BCA ¶ 33,434) denying his appeals in connection with the default termination of his contract for the delivery of mail on a route originating in Pasco, Washington.  Respondent opposes the motion.  The facts are stated in that decision and familiarity with them is assumed.

            In his motion, Appellant argues that the Board was in error when it determined that the default that led to termination of his contract was not excused by a material breach of Respondent’s duties under the contract.  Appellant’s arguments on reconsideration are essentially the same as those he made in the original

appeal – i.e., that Respondent breached its duty of good faith when its officials insisted that Appellant provide Forms 2181-C (Authorization and Release – Background Investigation) for his employees/substitutes, and that Respondent made continued performance by Appellant impossible when Respondent’s officials retrieved the temporary badge that had been issued to Appellant’s employee and excluded Appellant and his employees from the facility.  Repeating arguments made and considered in connection with the original Opinion does not provide a basis for reconsideration.  See The General Store, PSBCA No. 3951, 99-1 BCA ¶ 30,124; Montgomery-Ross-Fisher, Inc., PSBCA No. 1096, 84-3 BCA ¶ 17,607.

            Appellant adds to his earlier arguments in two areas.  While continuing to argue that the contract did not require him to provide the Forms 2181-C, he contends, for the first time, that his motivation in refusing to submit the forms was his desire to protect the privacy of his employees against unwarranted investigation.  He also contends that “conditions of the labor market” and the steps necessary to hire and qualify new employees made it impossible for him to have found replacements for his employees in the short time between his, and his employee’s, expulsion from the Pasco facility on May 16, 2003, and the deadline of May 24, 2003, established by the contracting officer for Appellant to resume service.

            Appellant’s motivation in refusing to provide the requested forms is irrelevant and, as explained in the original Opinion, Respondent’s direction that he submit the forms, even if determined to be a contract breach, was not a material breach.  The default termination was sustained based on Appellant’s failure to resume the service after he and his employee had been excluded from the facility.  As noted in the Opinion, Appellant provided no evidence that contract operations could not have been continued through the use of substitutes, and there is no evidence Appellant made any efforts to locate and employ other substitutes or to have his then existing substitutes execute the disputed forms and resume performance of the route.  Further, notwithstanding the May 24 “deadline,” the contracting officer did not actually terminate the contract until mid-July, a period that should have given Appellant enough time to have resumed service.  Appellant’s “labor market” argument is based entirely on the fact that Respondent issued 48 solicitations for the reprocurement contract but received only one offer, and is speculative at best.  The argument is not supported either by Respondent’s experience during the reprocurement process - since Respondent was seeking contractors, not individual employees – or by any other record evidence.

            Not only are Appellant’s new arguments unpersuasive, but as they could have been made earlier, the arguments do not provide a proper basis for reconsideration of the Board’s Opinion.  See AFV Enterprises, Inc., PSBCA Nos. 2691, 3316, 02-1 BCA ¶ 31,764; Montgomery-Ross-Fisher, Inc., PSBCA No. 1096, 84-3 BCA ¶ 17,607.  Appellant has not shown any factual or legal errors that would warrant changing the decision, or raised any newly discovered or unavailable evidence that would support reconsideration.  See Gary W. Noble, PSBCA No. 4094, 99-1 BCA ¶ 30,602; Patricia J. Stevens, PSBCA No. 3272, 94-2 BCA ¶ 26,951.

            Accordingly, Appellant’s motion for reconsideration is denied and the Board’s original Opinion is affirmed.

David I. Brochstein

Administrative Judge

Vice Chairman

 

I concur:                                                                      I concur:                                 

William A. Campbell                                     Norman D. Menegat

Administrative Judge                                                Administrative Judge

Chairman                                                                   Board Member