April 1, 2008            

 

Appeals of                                                                   

                                                                                                                                      

MICHELLE R. P'POOL                                                                                                                                                                     

                                                                                                     

PSBCA Nos. 5294 and 5295

 

Under Contract Nos. HCR 401A3 & HCR 40161                        

 

APPEARANCE FOR APPELLANT:                     

Andrew J. Ruzicho, Esq.                                         

 

APPEARANCE FOR RESPONDENT:                

Douglas J. Colton, Esq.

Office of the General Counsel

United States Postal Service

                                            

OPINION OF THE BOARD

            Appellant, Michelle R. P’Pool, held two mail delivery contracts with Respondent, United States Postal Service.  In 2005, Respondent barred Appellant from performing personally the service required by the contracts.  Respondent provided service on the routes by emergency contracts for a time but eventually demanded that Appellant resume service using hired drivers.  When she did not, the contracting officer terminated both contracts, and Appellant appealed.

            A hearing was held in Louisville, Kentucky, and the parties filed post-hearing briefs.  Entitlement only is at issue (Hearing Transcript, Page (“Tr.”) 6).

FINDINGS OF FACT

            1.  On March 26, 2003, Respondent renewed contract HCR 40161 with Appellant for delivery of mail to customers’ boxes along a route originating at the Shepherdsville, Kentucky Post Office.  On the same date, Respondent awarded Appellant contract HCR 401A3, a new route that had been split off from HCR 40161.  The term of each contract was from April 1, 2003, through March 31, 2007.  The annual rate of compensation for HCR 40161 was $25,800 and for HCR 401A3 was $29,481.08.  (Appeal File, Tab (“AF”) 16; Stipulations (“Stip.”) 3, 5).

            2.  The Shepherdsville Postmaster was the administrative official for both contracts, responsible for day-to-day administration of contract performance.  However, during the relevant time period, the postmaster was also working at another post office, and a supervisor in the Shepherdsville Post Office acted as Officer-in-Charge (“OIC”).  The OIC, who had much less experience with transportation contracts, was often responsible for administering Appellant’s contracts.  (AF 16; Tr. 84, 89, 114; Stip. 6).

            3.  The contracts required that Appellant’s employees undergo a security screening.  For each potential employee, Appellant was required to submit to the post office a Contract Personnel Questionnaire, PS Form 2025, providing information about the applicant’s employment, education, criminal and residence history for the last five years, and a fingerprint card.  For those employees who would be driving, an official five-year driving record was required.  The contractor was to ensure that the forms were completed to Respondent’s requirements (Management Instruction, Section 13).[1]  The administrative official (the postmaster) receiving the screening application was to “review[ ] each form for completeness and accuracy,” sign the form and send it to the Postal Inspection Service in Memphis, Tennessee, which granted or denied the clearance.  (AF 16, Contract Clause B.5, SCREENING/IDENTIFICATION REQUIREMENTS (pp. 106-107, 170); Management Instruction, Section 14; Appellant’s Exhibit (“App. Exh.”) 301; Tr. 208, 273-275, 369).

            4.  If the screening application did not contain disqualifying information, the administrative official was to issue a temporary badge to the applicant, which would permit the employee to work on the contract pending completion of the screening process.  If the application was approved, a permanent badge would replace the temporary badge.  If the application was denied, the temporary badge would be revoked.  (AF 16, Contract Clause B.5, SCREENING/IDENTIFICATION REQUIREMENTS (pp. 106-107, 170); Management Instruction, Section 14; App. Exh. 301; Tr. 180-181, 195, 208, 273-274, 369).

            5.  The contracts required Appellant to “deny access to the mail to any employees or personnel when required to do so by the contracting officer.”  (AF 16, Contract Clause B.3, GENERAL REQUIREMENTS AND PROHIBITIONS, subsection h, Denial of Access to the Mails (pp. 103, 167)).

            6.  Respondent’s procedures regarding denial of access to contractor personnel who had been previously screened and approved were also set forth in the Management Instruction (see fn. 1, above).  Under those procedures, the contracting officer was responsible for determining whether access should be denied and was to make the determination based on the advice of administrative officials after an appropriate investigation.  (Management Instruction, Section 16 (subsections 162.1, 162.2)).

            7.  The contracts’ identical termination provisions authorized Respondent to terminate the contract for default if Appellant failed to perform the requirements of the contract (AF 16, Contract Clauses H.4, TERMINATION FOR DEFAULT (Clause B-13) (January 1997) (Modified), subsection a, and H.5, EVENTS OF DEFAULT (Clause B-69) (January 1997), subsection a).

            8.  Both contracts included a Claims and Disputes clause, which described Appellant’s right to file a claim and the appeal rights available to Appellant if she was dissatisfied with a final decision of the contracting officer.  That clause required Appellant to “proceed diligently with performance of this contract, pending final resolution of any request for relief, claim, appeal, or action arising under the contract, and comply with any decision of the contracting officer.”  (AF 16, Contract Clause H.2, CLAIMS AND DISPUTES (Clause B-9) (January 1997), subsection j (pp. 124, 188)).

            9.  During Appellant’s performance of these contracts, substantial friction developed in the post office between her and postal craft and management employees.  Appellant claimed that the employees harassed her, had vandalized her vehicles, and treated her unfairly.  There had been instances where Appellant refused to follow instructions, became loud and confrontational when her performance was criticized, and was disruptive in the office.  There had been shouting matches between Appellant and the OIC, between Appellant and post office employees, and between Appellant and her own employees.  Respondent’s employees had documented Appellant’s disruptive conduct in written irregularity reports (PS Form 5500) given to Appellant.  The name of the preparer of the irregularity report appeared on each.  Although the Form 5500 included a space for the contractor to respond in writing to the charged deficiency, Appellant did not write a response to any of the irregularity reports.  The postmaster had discussed contract performance in conferences held with Appellant and, on or about March 4, 2005, had sent Appellant a letter, with a copy to the contracting officer, summarizing the past conferences regarding unsatisfactory service and listing the PS Forms 5500 Appellant had been issued.  (AF 14 (pp. 62-63, 68, 69, 75, 77-79, 82, 85); Supplemental Appeal File (“SAF”) B, C; App. Exh. 1, 8, 14; Tr. 23-27, 30, 34-37, 52-55, 100, 184, 345, 347-349, 351-355, 358, 374-375, 418, 470; contra Tr. 400-405, 410-414).

            10.  A recurring problem in the Shepherdsville Post Office was carriers (regular postal employees as well as contract carriers, such as Appellant) leaving behind in the post office parcels meant for delivery on the route.  On April 26, 2005, Appellant noticed a number of such undelivered parcels and brought them to the attention of the OIC.  The OIC discussed the matter with the postal carrier responsible for the parcels’ delivery.  (AF 13 (p. 54); SAF A, E; App. Exh. 8; Tr. 27, 416).

            11.  The next day, April 27, 2005, that postal carrier was having a cigarette break outside the post office with a number of other employees.  Appellant knew the carrier was mad and came out to apologize for getting her in trouble (Tr. 27, 238, 415-416).  The employee was angry and told Appellant she did not want to hear anything from her.  Appellant was insistent, moved close to the employee, and continued to try to talk to her notwithstanding the carrier’s repeated statements that she did not want to hear anything Appellant had to say.  Both Appellant and the employee raised their voices angrily, each trying to talk over the other.  As Appellant turned to go back into the post office, the employee called her a “bitch.”  Appellant said she intended to tell management.  (AF 13 (pp. 55, 56, 58, 59); SAF R; App. Exh. 22 (p. 22); Tr. 238-240, 417, 477).

            12.  Appellant went into the post office and immediately told the OIC that she was tired of being treated badly by postal employees and stated that the postal carrier had called her a bitch.  Appellant said she could not take the harassment anymore and was leaving.  Appellant was very upset and walked off the floor.  (AF 13 (p. 54); App. Exh. 3; Tr. 28, 62-63, 255, 418).

            13.  Subsequently, Appellant returned to her work area (Tr. 67, 418-419).  The OIC went to her and asked whether she was going to deliver the route (Tr. 67).  Appellant responded that she was going to, but that the way she was treated was why people “go postal” (Tr. 68, 419).  Further, she said that she did not care what it cost her but that “if anyone else says anything to me I’m going to stomp their ass” (Tr. 28, 68; contra Tr. 419-420).  Later, she came into the OIC’s office and repeated her statement that if employees spoke to her she would “stomp their ass” (Tr. 28; contra Tr. 419-420).  The OIC told her that her statement constituted a threat, and Appellant said she didn’t care.  (AF 13 (p. 54); SAF A, B; App. Exh. 7, 8, 9; Tr. 29; contra AF 10; SAF R; Tr. 417).

            14.  Later that day, the OIC reported the incident to her postmaster and to the Human Resources manager at the Kentuckiana District Office, Shepherdsville’s managing office in Louisville, as well as to a contract transportation specialist working for the contracting officer.  A listing of nine PS Form 5500s issued to Appellant in the past was forwarded by email to the contract specialist.  (App. Exh. 3, 7; Respondent’s Exhibit (“Resp. Exh.”) BB (p. 20); Tr. 30-32, 69-70, 258-259).

            15.  The contract specialist saw the conflict in the post office as possibly a personality conflict (App. Exh. 5), and, on April 28, she decided to explore with Appellant the possibility of releasing her from her contracts.  She wanted Appellant to continue performing the routes until she could arrange a release and find someone to take over the contracts.  (App. Exh. 12-14; Tr. 30, 173, 261-262, 264-265).

            16.  On April 29, Appellant called the contract specialist to discuss her situation and faxed the specialist a letter explaining her position.  She responded to the substance of the irregularity reports that had been issued to her since the beginning of the contracts.  She wrote that she was not told that she was supposed to respond to them when they had been issued, or she would have.  (SAF G; App. Exh. 15; Tr. 14, 16, 422).

            17.  The manager of Human Resources and the District Manager of the Kentuckiana District considered Appellant’s April 27 statements to the OIC (Finding 13) to be a sufficiently serious threat to harm postal employees that excluding Appellant from the post office immediately was warranted.  On April 29, the District Human Resources Manager directed the OIC to do so.  The OIC asked that postal inspectors be present because she was afraid to be alone with Appellant.  (AF 13 (p. 52); SAF H; App. Exh. 16; Tr. 38-40, 96-98).

            18.  On the morning of April 30, when Appellant arrived at the post office, she was ushered into the conference room by the OIC, the postmaster and two postal inspectors to discuss the incident of April 27.  Appellant denied making the threatening statement and said that she had told the OIC that she (Appellant) felt that someone was going to attack her.  The postal inspectors advised that Appellant would no longer be permitted in the building (Tr. 41, 383, 429, 432).  She was required to turn over her identification badge.  Her hired driver working on HCR 401A3 was called to the room, and Appellant stated that she was also pulling him from his route (Tr. 384).  They both left the post office.  While at the post office, the postal inspectors took statements from those involved in the incidents of April 27th, including Appellant, and prepared an investigative report of their findings and included copies of the statements of witnesses.  (AF 13; SAF H, R; App. Exh. 17; Tr. 41-42, 384, 428-432).

            19.  Respondent arranged for replacement contractors to take over Appellant’s routes (App. Exh. 17, 31, 32, 76; Tr. 296-299, 436, 454; Resp. Exh. AA (p. 67)).

            20.  The OIC held a disciplinary job discussion with the postal carrier involved in the altercation with Appellant regarding the carrier’s use of foul language (Tr. 105; SAF D).

            21.  By letter dated May 2, 2005, the contracting officer temporarily barred Appellant from access to the post office and mail pending further investigation, making it impossible for her to perform the contract services personally (AF 15; SAF F, J; App. Exh. 21; Tr. 128-130, 435-436, 454; Stip. 7).

            22.  On or about May 13, 2005, the contracting officer obtained a copy of the Inspection Service report of the investigation of the April 27 incident (Tr. 135) and information about the history of acrimonious confrontations between Appellant and Respondent’s employees (Tr. 177-178).  Based on that information, the contracting officer decided to deny Appellant access to the mail permanently (Tr. 135-136, 152).

            23.  On May 14, at the direction of the contracting officer, a contract transportation specialist called Appellant and told her that she was being denied access to the mail permanently but that Appellant could arrange to cover her two routes with hired drivers.  On or about May 19, the contract specialist again contacted Appellant and advised her that she would be required to continue service on the routes with hired drivers.  She advised Appellant to pick up forms at the post office for a security screening application for each proposed driver and submit them by May 25.  (App. Exh. 34, 63; Resp. Exh. AA (p. 41, 67, 72); Tr. 89, 289-291, 295, 455).

            24.  By a May 19, 2005 letter to Appellant, the contracting officer made the denial of access to the mail and postal facilities permanent.  He advised Appellant that she could appeal that denial to the Manager, Surface Transportation, in Postal Service Headquarters.[2]  He also advised Appellant to contact the contract specialist if she had any questions.  (AF 11; SAF I; App. Exh. 33; Tr. 437; Stip. 8).  Through counsel, Appellant appealed the denial of access (App. Exh. 62; AF 10; SAF J, K, L).[3]

            25.  Appellant had potential drivers for her routes pick up screening applications at the post office.  On or about May 24, after Appellant had reviewed and signed the screening packages, she had one of her proposed drivers deliver completed packages to the Shepherdsville Post Office.  (Tr. 223-227,  231, 439-440).

            26.  The contract transportation specialist expected that the Shepherdsville Post Office would issue Appellant’s proposed drivers temporary badges during the screening process as provided in the Management Instruction, unless there was disqualifying information in the screening application package (Finding 4; Resp. Exh. AA (p. 68)).  However, the post office did not issue Appellant’s proposed drivers temporary badges, even though it was the postmaster’s normal practice to do so pending completion of the screening process (Tr. 222-227, 231, 369).  Had they been issued temporary badges, Appellant’s proposed drivers could have provided service under the contracts (Management Instruction).  Appellant was familiar with the screening process and use of temporary badges for drivers (Tr. 391-392, 434), but there is no evidence that Appellant requested temporary badges for her proposed drivers or complained when they did not receive them.

            27.  The post office sent the screening packages to the Inspection Service office in Memphis without review or signature by the postmaster or the OIC (App. Exh. 54, 55, 56; Tr. 314-315).

            28.  Appellant did not resume service, and Respondent continued to perform Appellant’s routes with emergency contractors (Tr. 136, 295-296, 298-299).

            29.  By letter dated May 27, 2005, the contracting officer directed Appellant to resume service on both routes on June 11, 2005, using properly screened drivers.  The contracting officer provided the telephone number of the transportation contract specialist and advised that Appellant could contact her for further information.  (AF 9; App. Exh. 43; SAF M; Tr. 437).

            30.  In late May or early June, 2005, a Postal Service rural carrier associate (“RCA”), a postal employee, who worked in a neighboring post office contacted Appellant about working on one of Appellant’s routes.  The RCA was willing to do so but would only be available, at most, one day a week.  However, the transportation contract specialist advised Appellant or the RCA that the RCA would not be able to drive for Appellant due to a conflict between her duties as a Postal Service employee and driving for a highway contractor.  Nevertheless, the employee did drive later for one of the emergency contractors who replaced Appellant after her denial of access, but the RCA drove for only a few days up until the end of the year because of her other duties for the Postal Service.  (Tr. 212, 442, 492, 497-498).

            31.  On June 10, 2005, The Manager, Surface Transportation, denied Appellant’s appeal of her denial of access (AF 4; SAF Q).

            32.  On or about June 15, the Inspection Service returned the screening packages for each of Appellant’s three proposed drivers directly to Appellant without taking action on them (Tr. 319, 440-441, 487).  The cover sheet for each returned application noted missing information about the applicant that was required before the application could be considered.  The return transmittals also noted that each application was missing the signature of the Shepherdsville Postmaster and that the application had been sent to the Inspection Service without a transmittal cover sheet.  Generally, under these circumstances, contractors are given an opportunity to complete the applications and resubmit them to the Inspection Service (Tr. 323), and the Inspection Service cover sheet returning the applications to Appellant asked that the missing information be supplied and the applications resubmitted.  (App. Exh. 54, 55, 56).

            33.  Appellant received the returned applications shortly after June 15, 2005 (Tr. 440-441).  There is no evidence in the record that Appellant did anything further in response to her receipt of the returned screening applications.  She did not ask her proposed drivers to correct their applications (Tr. 235), did not return the applications to the Inspection Service or to the post office (Tr. 332), and she did not contact the Shepherdsville Post Office (Tr. 332).  There is no evidence she contacted the contracting officer or contract specialist thereafter.

            34.  By final decisions dated July 6, 2005, the contracting officer terminated for default both of Appellant’s contracts for failure to perform the service according to the terms of the contracts.  He noted the direction he had given Appellant in his letter of May 27 to resume service on the routes (Finding 29), and that Appellant had “not provided screened drivers, [had] not resumed service and [had] not contacted this office with an alternative plan.”  (AF 1; SAF S, T; App. Exh. 51, 52; Tr. 138-139, 442-443; Stip. 9).

            35.  Appellant filed timely appeals from the terminations.  The appeal of the termination of HCR 401A3 is PSBCA No. 5294 and that of HCR 40161’s termination is PSBCA No. 5295.

DECISION

            It is Respondent’s burden to demonstrate that the terminations of Appellant’s contracts were justified by her failure to perform in accordance with the contracts.  See Benjamin Mullins, PSBCA Nos. 5136, 5173, 05-1 BCA ¶ 32,918; Charli Selsa Schiver d/b/a NGX-Schiver, PSBCA No. 4545, 02-2 BCA ¶ 31,937.  Appellant’s failure to perform service under either contract from the date of her denial of access despite the contracting officer’s direction that she resume service (Findings 19, 23, 28, 29) provided ample justification for the terminations.  See Andrew M. Johnson, PSBCA Nos. 5175, 5210, 5242, 07-1 BCA ¶ 33,464, recon. denied, 07-1 BCA ¶ 33,582; Linda Copman, PSBCA Nos. 4889, 4903, 03-2 BCA ¶ 32,342.  Accordingly, the burden shifts to Appellant to present evidence of causes sufficient to excuse her failure to perform, Pamela J. Sutton, PSBCA No. 1622, 88-3 BCA ¶ 21,031, or to show that the termination was an abuse of the contracting officer's discretion, Patricia J. Stevens, PSBCA No. 3272, 94-1 BCA ¶ 26,419, recon. denied, 94-2 BCA ¶ 26,951. 

Jurisdiction to Consider Denial of Access

            Appellant argues that the denial of access made it impossible for her to perform her route and breached Respondent’s duty to cooperate and not to interfere with Appellant’s performance.  Respondent argues that the Board is without jurisdiction to consider Appellant’s challenge to her denial of access because such denials are security matters within the sole control of the Postal Inspection Service.  Respondent fears that Board review of denial of access decisions will necessarily interfere with the authority of the Inspection Service to establish security requirements for the Postal Service.

            As we said in Edward Grinnell, PSBCA No. 5331, September 20, 2006,

“The Board has no authority to afford Appellant an equitable remedy in the nature of injunctive relief.  See Lee Ann Wyskiver, PSBCA No. 3621, 95-2 BCA ¶ 27,755; Onice Ulmer, PSBCA No. 2938, 91-3 BCA ¶ 24,345.  Accordingly, the Board could not direct Respondent to permit Appellant access to the mail and postal facilities.”

 

However, while we lack authority to direct that Appellant be given access, we have authority to review the contractual implications of the denial of access.  See, e.g., Andrew M. Johnson, PSBCA Nos. 5175, 5210, 5242, 07-1 BCA ¶ 33,464, recon.  denied, 07-1 BCA ¶ 33,582; O. Gary Bollschweiler and Anna Marie Bollschweiler, PSBCA Nos. 3844, 3852, 96-2 BCA ¶ 28,536; Hector Rivera Ruiz, PSBCA No. 1756, 88-3 BCA ¶ 20,829; Bryant L. Millwee, PSBCA No. 1249, 84-2 BCA ¶ 17,343.  Denying Appellant access affected her ability to perform her contractual duties and implicated Respondent’s implied duty under the contracts to cooperate and not willfully or negligently to hinder Appellant’s performance.  See Malone v. United States, 849 F.2d 1441, 1445 (Fed. Cir. 1988); AFV Enterprises, Inc., PSBCA Nos. 2691, 3316, 01-1 BCA ¶ 31,388 at 155,024; Restatement (Second) of Contracts § 205 (1981).  This duty may be breached when Respondent takes actions that unreasonably prevent or interfere with performance of a Postal Service contract, and the scope of that duty is a matter within the Board’s purview.  See Hector Rivera Ruiz, PSBCA No. 1756, 88‑3 BCA ¶ 20,829; Bryant L. Millwee, PSBCA No. 1249, 84-2 BCA ¶ 17,343.  Accordingly, we may review the contracting officer’s determination to deny Appellant access to the mail.  See Old Hickory Services, GSBCA No. 6259, 82‑2 BCA ¶ 15,972 at 79,223.

Denial of Appellant’s Access

            The contract authorized the contracting officer to require Appellant to deny access to the mail to personnel performing contract services (Finding 5), and the contracting officer is afforded discretion in making such a decision.  See Andrew M. Johnson, PSBCA Nos. 5175, 5210, 5242, 07-1 BCA ¶ 33,464, recon. denied, 07-1 BCA ¶ 33,582; Old Hickory Services, GSBCA No. 6259, 82‑2 BCA ¶ 15,972 at 79,223.  Here, the contracting officer denied Appellant access to the mail based on the statements she made on April 27, 2005, and he took into account her history of confrontations with post office employees (Finding 22).

            Appellant argues that her remark was not serious enough to warrant barring her from the post office.  She points out that the transportation contract specialist believed the incident might reflect only a personality conflict, and that, in fact, the specialist wanted Appellant to continue performing the contracts until replacements could be found (Finding 15).[4]  Appellant also notes that her statement that she would “stomp the ass” of postal employees speaking to her was not directed at any particular employee nor did it threaten immediate, unconditional action.

            However, the comments were made just after an acrimonious confrontation between Appellant and a postal employee (Findings 11, 12).  Appellant was upset, expressed exasperation over her situation, and stated her feeling of being at the end of her rope regarding what she perceived as harassment by postal employees (Finding 13).  Given the history of volatile confrontations between Appellant and employees in the office, although always verbal in the past (Finding 9), the threat to retaliate physically against postal employees had more significance and credibility than such a statement might have had in another, less historically confrontational environment.  Under these circumstances, the contracting officer did not abuse his discretion in determining that Appellant’s conduct and statements constituted a threat that warranted excluding her from postal facilities and denying her access to the mail.  Denial of Appellant’s access did not breach Respondent’s duty not to hinder her performance or excuse Appellant’s failure to perform the contracts.

Screening of Proposed Drivers

            As it was not an abuse of the contracting officer’s discretion to deny access to Appellant, the next question is whether, as alleged by Appellant, Respondent’s failure to approve Appellant’s proposed drivers made it impossible for Appellant to perform the contract and excused her failure to provide service.  Appellant argues that she was prevented from performing the contracts through hired drivers because the postmaster’s failure to sign the screening applications caused them to be rejected by the Inspection Service.  Respondent argues that it was Appellant’s responsibility to assure that the information on the applications was complete and accurate and that she was responsible for a number of omissions on each of the applications.  Therefore, according to Respondent, it was not just the absence of the postmaster’s signature that caused return of the screening applications, and Appellant was equally responsible for failure to obtain approval of her drivers.

            While Appellant had some responsibility for assuring the correctness of the information on the Questionnaire, the instructions in the Management Instruction make it clear that the postmaster was supposed to review the applications carefully, make sure all the required information is provided, and then sign the applications and send them to the Inspection Service (Finding 3).  In this case, neither the postmaster nor the OIC reviewed the applications before sending them to the Inspection Service (Finding 27).  Had they done so, they would likely have caught the omissions on the applications and could have prevented their return without consideration by the Inspection Service.

            However, when the Inspection Service returned the applications to Appellant, she did not provide the missing information and did not resubmit the applications, notwithstanding the instructions with their return that she do so (Finding 32).  There is no evidence the Shepherdsville Post Office personnel or the contracting officer knew the applications had been returned, and Appellant gave the postmaster no opportunity to correct her mistake and sign the applications (Finding 33).  Although the June 11 deadline to resume service set by the contracting officer (Finding 29) had passed by the time the applications were returned to Appellant, the contracts had not been terminated.  Appellant could have taken steps to provide the missing information about her proposed drivers and obtain the postmaster’s signature, to explain the circumstances to the contracting officer or to ask for additional time.  See Andrew M. Johnson, PSBCA Nos. 5175, 5210, 5242, 07-1 BCA ¶ 33,582.  Between her and Respondent, Appellant had the last opportunity to resolve the problems with the applications, and for that reason, we place on her the responsibility for the lack of final clearance for her drivers.  See Shirley A. Loar, PSBCA No. 3896, 97-2 BCA ¶ 29,114; Seaway Shipping Lines, PSBCA No. 2840, 91-2 BCA ¶ 23,731.

Temporary Badges

            The Management Instruction and the contracts provided that an applicant submitting a screening application will be given a temporary badge and be permitted to perform service under the contract, absent disqualifying conditions (Finding 4).  However, notwithstanding the provisions in the Management Instruction and the usual practice of the Shepherdsville Postmaster to issue temporary badges to drivers who had submitted a security screening package, Appellant’s proposed drivers were not issued temporary badges (Finding 26).

            There is no evidence that Appellant asked for temporary badges for her employees or complained when they did not receive them (Finding 26).  She knew issuance of temporary badges was possible, but never raised the issue with Respondent’s officials.  While the Shepherdsville personnel erred in not issuing temporary badges to any of her drivers without disqualifying information in their applications, Appellant did nothing to apprise them of their error even though she knew that her drivers had not received badges.  Accordingly, as with the returned screening applications, without bringing the lack of temporary badges to Respondent’s attention, Appellant failed to take reasonable steps to point out the omission and demonstrate her employees were entitled to temporary badges.  See Shirley A. Loar, PSBCA No. 3896, 97-2 BCA ¶ 29,114; Seaway Shipping Lines, PSBCA No. 2840, 91-2 BCA ¶ 23,731.

            Appellant argues that Respondent’s refusal to allow her to hire a postal employee who was a carrier relief excused her failure to perform the contracts.  However, that employee was available to work, at most, one day per week (Finding 30).  Allowing her to work for Appellant would not have been sufficient to meet the requirements of either contract.

            Appellant has not demonstrated that her failure to perform the contracts was excusable or that in terminating the contracts for default the contracting officer abused his discretion.

Bad Faith

            Appellant argues that termination of her contracts was a product of bad faith.  To show that the terminations resulted from bad faith on the part of Respondent's employees, Appellant must show by clear and convincing evidence some specific intent to harm her, see Am-Pro Protective Agency, Inc. v. United States, 281 F.3d 1234, 1240 (Fed. Cir. 2002); Henry H. Norman v. General Services Administration, GSBCA Nos. 15070, 15189, 15252, 02-2 BCA ¶ 32,042 at 158,355, and she has not done so.

            As evidence of bad faith by Respondent’s employees, Appellant points to what she contends were falsified, unsigned irregularity reports that she was never told about.  We have carefully reviewed the testimony, evaluated the evidence and observed the demeanor of the witnesses while testifying, and we do not find that the irregularity reports were falsified and we do not find that Appellant was unaware of their existence until after the incident of April 27.  In her April 29, 2005 letter to the contract transportation specialist (Finding 16), Appellant responded to the substance of each of the irregularities without mentioning, as she would have been expected to do if true, that they were fabricated and that she had never seen them before.  Each of the Forms 5500 in the record reflects the name of the preparer (Finding 9), and we have found that they accurately report instances occurring during Appellant’s performance of the contracts.  Any deficiencies in their preparation by Respondent’s officials were minor and do not preclude the contracting officer or the Board from considering them as evidence of the conduct reported on the forms.  See Shorthaul Trucking Co., PSBCA No. 1046, 1985 WL 16706 (P.S.B.C.A.), June 18, 1985; Bowman’s Transport Co., PSBCA Nos. 1088, 1089, 1092, 84-1 BCA ¶ 17,217; B&E Mail Transport, Inc., PSBCA No. 947, 82-2 BCA ¶ 15,912 at 78,870.

            Appellant contends that the Shepherdsville Postmaster and OIC intentionally delayed and mishandled the screening applications of her proposed drivers to make sure she would be unable to perform the contracts after she was denied access.  There is insufficient evidence that any delays in processing the screening applications occurred in Shepherdsville.  The postmaster’s failure to review and sign the applications was error, but there was no showing of intentional mishandling.  The post office’s sloppy administration of the screening process is not sufficient to prove bad faith on the part of Respondent’s employees.  See James Hovanec, PSBCA No. 4767, 04-2 BCA ¶ 32,805 at 162,262; Lopez Machine Works, Inc., ASBCA No. 45509, 97-1 BCA ¶ 28,622 at 142,910.

            Plainly, there was hostility between Appellant and Respondent’s employees, but Appellant was at least an equal cause of the friction, and it was she who precipitated the April 27 encounter that led to her denial of access.       Bad relations between Appellant and Respondent’s employees, especially as Appellant had at least an equal role in causing the hostility, do not prove bad faith on Respondent’s part.  See IMS Engineers-Architects, P.C., ASBCA No. 53471, 06-1 BCA ¶ 33,231 at 164,674, recon. granted in part on other grounds and otherwise denied, 07-1 BCA ¶ 33,467.

            Appellant alleges that the OIC schemed to remove Appellant so the OIC’s daughter could get a job working for one of the contractors who replaced Appellant after her denial of access.  That the daughter worked for a time for one of the replacement contractors was shown, but the evidence does not show that the possibility of such future employment for her daughter influenced any actions of the OIC.

Appellant also contends that Respondent’s failure to take any action against the postal carrier with whom Appellant argued demonstrates bias and bad faith.  The record refutes the factual premise of this argument (Finding 20).  Likewise, Respondent’s disapproval of the postal relief carrier to drive for Appellant was found above not to have affected Appellant’s ability to perform her contracts, and we do not find it to evidence bad faith.

Considering the effect of all of the circumstances Appellant has identified as evidence of bad faith, she has not shown by clear and convincing evidence that Respondent’s officials had the requisite “specific intent to injure” Appellant, that they were “motivated alone by malice,” that they engaged in a “proven conspiracy to get rid of” Appellant or employed “designedly oppressive” measures.  See Am-Pro Protective Agency, Inc. v. United States, 281 F.3d 1234, 1240 (Fed. Cir. 2002).  Accordingly, under the standard set forth above, Appellant has not demonstrated that Respondent’s actions were the product of bad faith.

Conclusion

            The appeals of PSBCA Nos. 5294 and 5295 are denied.

 

 

Norman D. Menegat

Administrative Judge

Board Member

 

 

William A. Campbell                                                 David I. Brochstein

Administrative Judge                                                Administrative Judge

Chairman                                                                   Vice Chairman