September 2, 2008
Appeals of
GEORGE JERRY MALONE
PSBCA Nos. 6129 and 6135
Under Contract No. HCR
401A5
APPEARANCE FOR APPELLANT:
David P. Hendel, Esq.
Sarah M. Graves, Esq.
Akerman Senterfitt Wickwire Gavin
APPEARANCE
FOR RESPONDENT:
Joseph Anzalone, Esq.
United States Postal Service
OPINION OF THE BOARD
Respondent, United States Postal Service, terminated for default a mail delivery contract held by Appellant, George Jerry Malone, because he refused to deliver mail to part of his route along a road he considered unsafe. Appellant appealed the termination as well as Respondent’s demand for costs associated with providing service on the route after Appellant’s termination.
The
appeals were consolidated and, at the
election of the parties, are being decided on the record without an oral
hearing in accordance with 39 C.F.R. §955.12.
At Appellant’s request, the parties were allowed oral argument before
the Board in addition to filing written briefs.
Appellant elected application of the Board’s accelerated procedures, 39
C.F.R. §955.13. Only entitlement will be
addressed.
FINDINGS OF FACT
1. On
2. The contract required that
“[t]he supplier [Appellant] shall carry all mail tendered for
transportation under this contract, whatever may be its size and weight, with
certainty, celerity, and security, in accordance with the operating schedule
and between the points fixed in the schedule, as modified from time to time
pursuant to this contract.”
(AF 25, Contract Clause B.3.a, Sanctity of the Mail (Appeal File, Page
(“p.”) 95)).
3. Contract Clause B.6, Safety Requirements,
provided, “Extreme caution, even to the extent of stopping operation if
necessary, shall be exercised by drivers when hazardous road or weather
conditions prevail.” (AF 25, Contract
Clause B.6.d (p. 102).
4. The contract’s Changes clause authorized
Respondent to impose unilaterally minor route extensions and changes in the
line of travel (“Minor Service Changes”), provided the resulting service would
cause Appellant’s annual rate of pay to be increased by no more than $2,500 (AF
25, Contract Clause H.8, CHANGES (TRANSPORTATION) (Clause B-67) (January 1997),
subsection a (1) (p. 116)).
5. The contract’s Termination for Default clause
authorized Respondent to terminate the contract if Appellant failed to complete
the requirements of the contract within the time specified (AF 25, Contract
Clause H.4, TERMINATION FOR DEFAULT (Clause B-13) (January 1997) (Modified) (p.
113)).
6. In an Events of Default clause, the contract
identified grounds that would justify termination under the Termination for
Default clause. These included
Appellant’s failure to perform service according to the terms of the contract
and failure to follow the instructions of the contracting officer. (AF 25, Contract Clause H.5, EVENTS OF
DEFAULT (Clause B-69) (January 1997) (p. 114)).
7. The contract authorized Respondent to acquire
similar, replacement services after a termination for default, “and the
supplier [Appellant] will be liable to the Postal Service for any excess
costs.” (AF 25, Contract Clause H.4,
TERMINATION FOR DEFAULT (Clause B-13) (January 1997) (Modified), subsection b
(p. 114)).
8. Two cus
9. In 2006, one of the cus
10. During the time relevant to this appeal, when
considering cus
11. The postmaster initially denied the cus
12. On or about
13. In May 2007, before Respondent took final
action on the cus
14. After the work, the condition of the road was
as follows: The road was a flat, gravel
road, with the gravel surface varying in width from 10 feet to 12 feet 8 inches. There were grassy shoulders on at least one
side of the road for substantial portions of the road, but in most stretches, there
was a ditch of varying depths near one edge of the road. Three culverts crossed beneath the road, the
ends of two of which were somewhat obscured by tall grass. Two vehicles could not have passed each other
on the gravel surface of the road.
However, in many places there were solid pull off areas where two
vehicles could easily pass one another by one or both pulling slightly onto the
grassy shoulders. The road was straight and
level to the first house (about 1,900 feet), followed by a right turn and
another straight 500 feet to an S-curve leading to the second house. There was good visibility along the road,
including around the turns, and no obstructions along the sides that would
prevent a clear view of the road ahead. As
a result, an oncoming vehicle would have been plainly visible at a substantial
distance. The road dead-ended just
beyond the second of the two homes on it, so there was very little
traffic. A cul de sac at the end of the
road permitted a driver to turn around without backing up, and there were other
places along the extension where the carrier could turn around. (AF 5 (p. 11), 13, 14, 16; SAF 36, 37, 38, 39;
Amended Complaint Exhibits 2, 3; Malone Aff., ¶¶ 8, 17, 19; Declaration of K.
Harris (“Harris Decl.”), ¶ 12; Reasons Decl., ¶¶ 8, 9, 11; Butler Decl.,
¶¶ 3, 4, 5; Declaration of T. Shirley, ¶¶ 5, 6; Supplemental Affidavit of
George Jerry Malone; Affidavit of J. Pigman and Exhibit C thereto).
15. The road met State safety mandates for rural
roads, which meant, among other things, that it was safe for passenger vehicle
travel, and school buses would be permitted to drive on it (Powers Decl., ¶¶ 4,
5). UPS and Fed Ex trucks, larger than
Appellant’s vehicle, used the road to make deliveries (AF 9; Declaration of T.
Shirley, ¶ 7).
16. After the county improvements, the postmaster
inspected the road and concluded that driving on the gravel road to make mail deliveries
would not be unsafe (AF 14, 16; SAF 28, 29, 30, 31 (p. 159); Malone Aff., ¶ 16;
Butler Decl., ¶ 1).
17. The postmaster approved the cus
18. Appellant objected to the relocation of the
box, contending that the gravel road was unsafe notwithstanding the
improvements. Appellant stated he had no
intention to provide delivery service along the gravel road. (AF 15, 17; SAF 32 (p. 167); Reasons
Decl., ¶ 12; Harris Decl., ¶ 3; Stip. 12)).
19. On
20. On
21. When the postmaster told Appellant on August
1 that he would be required to deliver along the gravel road, Appellant again
protested. The postmaster agreed to
inspect the road with Appellant, and on August 2, they visited the road
together and discussed Appellant’s concerns.
After that visit, the postmaster still felt the road was safe for mail
delivery. On
22. On August 3, the contracting officer spoke separately
by telephone to the postmaster and Appellant regarding their joint inspection
of the road the previous day. He advised
Appellant that he must begin delivering to the relocated box the next day. The contracting officer pointed out that the
unilateral Contract Route Service Order (Finding 20) had changed the route’s
official line of travel and that Appellant’s refusal to serve the box put him
in default of his contractual obligations.
(AF 9; Harris Decl., ¶ 7).
23. After the cus
24. On the morning of August 6, Appellant was
asked to participate in a telephone conference with a number of postal
officials, including the District Safety Manager. During the conference, the participants discussed
the safety of the gravel road. (Malone
Aff., ¶ 29).
25. Based on Appellant’s failure to deliver to
the relocated box, the contracting officer suspended his performance under the
contract effective
26. After Appellant was suspended, another mail
delivery contractor delivered the route.
She felt no concern for her safety while delivering mail along the
gravel road. (Reasons Decl., ¶ 15 and
Exhibit B; Declaration of T. Shirley, ¶ 8).
27. On
28. Appellant responded on August 21, arguing
that the gravel road remained unsafe for year round travel and that the county
improvements were minimal. He concluded
by restating his refusal to provide mail delivery service on the gravel
road. (AF 6; Malone Aff., ¶ 33; Harris
Decl., ¶ 10).
29. On or about
30. By final decision dated
31. By final decision dated
DECISION
Respondent
correctly argues that Appellant’s refusal to deliver mail to the cus
Appellant argues that the gravel road in question was unsafe and that, accordingly, his refusal to deliver to the box on the route extension was excusable and that the contracting officer abused his discretion by terminating the contract for default on that ground. See Estelle McCormick, PSBCA No. 1030, 83-2 BCA ¶ 16,574; John Horsley, PSBCA No. 1464, 86-3 BCA ¶ 19,141, recon. denied, 87-1 BCA ¶¶ 19,413, 19,450. Appellant submitted the report of an expert in highway safety who had been asked to address whether the road in question “was safe for daily travel by Appellant as a contractor delivering mail for the U.S. Postal Service.” The expert noted the hazards that faced Appellant if he were required to deliver along the gravel road: the road was too narrow for two opposing vehicles to pass one another while remaining entirely on the gravel surface; it was unsafe for a vehicle to leave the gravel road at certain “constriction points” where culverts or a ditch limited shoulders; and at some points the depth of the ditch and/or the presence of culverts in those ditches made entering the ditch to avoid an oncoming vehicle hazardous. He concluded that Appellant’s decision not to deliver the mail on the section of road at issue “was reasonable and based on significant safety concerns.”
We are not
obligated to adopt any particular conclusion or opinion reached by an expert
witness, see Del Mar Avionics, Inc. v. Quinton Instrument Co.,
836 F.2d 1320, 1325 (Fed. Cir. 1987), and it is our responsibility to determine
the weight (if any) to be given all of the evidence, whether it be expert or
non-expert testimony, see id.; J.C. Equipment Corp. v. England,
360 F.2d 1311, 1315 (Fed. Cir. 2004).
Also, we may substitute our own common sense for the opinion of an
expert. Gulf Contracting, Inc.,
ASBCA Nos. 30195, 32839, 90-1 BCA ¶ 22,393 at 112,521. Based on the entire record, including
Appellant’s expert’s opinion, we conclude that the gravel road was not unsafe
for mail delivery. This conclusion and
the supporting findings (Findings 14, 15) derive from the statements of the
witnesses, the documentary evidence, and our own impressions of the road gained
from our review of the many photographs in the record. See Publix Delivery Serv., Inc.,
PSBCA No. 477, 79-1 BCA ¶ 13,863 at 68,021. The terrain of the road is flat, and
visibility along the road is unimpeded (Finding 14). Vehicles approaching each other would have
sufficient time to adjust their travel to avoid passing at the “constriction
points” of concern to Appellant’s expert.
While the road is narrow, and there are culverts and a ditch to contend
with, we find that the road was not unsafe for travel by Appellant, provided,
as the District Safety Manager stated, the driver exercised regular driving
precautions (Finding 19).[2]
The contracting officer, relying on the advice of responsible postal
officials as well as his own inspection of the road, reasonably found that the
road was safe for mail delivery. Appellant
was not excused from performing the disputed part of the route, and the
contracting officer did not abuse his discretion by terminating the contract
when Appellant refused to deliver mail as required by his contract.
Appellant next argues that Respondent breached the duty of good faith and fair dealing implicit in every contract by failing to consider Appellant’s safety concerns about the route extension and to address the merits of those concerns with him. We disagree. The record reflects that the District Safety Manager and other postal officials made a conscientious and thorough review of Appellant’s concerns about the safety of the gravel road. The postmaster made several trips to inspect the road; the District Safety Manager made at least three visits; and the contracting officer personally visited the route to see for himself the conditions Appellant complained of (Findings 16, 19, 21, 29). The postmaster, the contracting officer, the District Safety Manager and other postal officials discussed those issues with Appellant at various times (Findings 21, 22, 24). That they did not come to the conclusion desired by Appellant does not mean they did not give adequate attention to his concerns or that Respondent breached the implied duty of good faith and fair dealing. See Jack Swedberg, PSBCA No. 3876, 96-2 BCA ¶ 28,337. We find on this record that Respondent fully considered and reasonably addressed Appellant’s safety concerns.[3]
Appellant’s
reliance on our decision in Samson J. Hypolite,
PSBCA No. 5266, 06-2 BCA ¶ 33,337, recon. denied, 07-1 BCA
¶ 33,468, is misplaced. In Hypolite, Respondent’s actions had made it virtually
impossible for the contractor to perform his contractual duties, thus breaching
Respondent’s implied duty of good faith and fair dealing. In this appeal, Appellant has not pointed to
conduct by Respondent’s officials that interfered with or impeded his
performance.
In conclusion, Appellant’s refusal to deliver mail along the route
extension was not excusable, and the contracting officer did not abuse his
discretion by terminating the contract for default based on Appellant’s refusal
to perform duties required by the contract.
Further, Respondent did not breach the implied duty of good faith and
fair dealing. The appeal of PSBCA No. 6129
is denied.
In PSBCA No. 6135, the Board is
asked to consider Respondent’s entitlement to recover its reprocurement
costs. The contract authorizes recovery
of such costs (Finding 7), and
Respondent, by demonstrating that it incurred administrative costs associated
with obtaining replacement service for Appellant’s route after the termination,
has shown its entitlement to recover. See
Paul A. Mason, PSBCA No. 1335, 86-1 BCA ¶ 18,722; Gene
Gibler, PSBCA No. 1278, 1985 WL 16415 (P.S.B.C.A.), February 26, 1985. Although Respondent has not claimed costs
associated with performance of the service after Appellant’s termination, as it
was Appellant’s default that required Respondent to find a replacement
contractor, Respondent may recover its reasonable administrative costs. See Todd’s Letter Carriers,
PSBCA Nos. 4904, et al., 05-2 BCA ¶ 33,121 at 164,137. Calculation of the amount of recovery is
remanded to the parties.
Norman D. Menegat
Administrative
Judge
Board Member
I concur:
William A. Campbell
Administrative
Judge
Chairman
[1] Appellant has not
contested Respondent’s right under the contract to impose a Minor Service
Change unilaterally and has not challenged Respondent’s determination that the
added extension of service caused an increase to the contract compensation of
less than $2,500 per year (Findings 4, 20).
[2] Appellant’s expert also
opined that adverse weather conditions could create particularly hazardous
conditions along the road. Occasional
weather-related hazardous conditions permit and even require a mail delivery
contractor to halt service when necessary for safety (Finding 3), but we reject
Appellant’s argument that the cited contract provision gives authority to
Appellant to decide whether the road is safe for regular use (Appellant’s Reply
Brief, pp. 6-7). Contract Clause B.6.d
(Finding 3) allows ad hoc judgments by the contractor to determine whether the
contract can be performed safely in the face of occasional hazardous
conditions. That clause does not give a
contractor absolute discretion to stop performance when it claims to have
encountered hazardous conditions, see Arnette
B. Fleming Hauling, Inc., PSBCA No. 2872, 91-2 BCA ¶ 23,868 at
119,567, and it does not authorize
Appellant to make the final judgment on the safety of the gravel road at issue
for regular delivery services. See
Estelle McCormick, PSBCA No. 1030, 83-2 BCA ¶ 16,574 at
82,416; Publix Delivery Serv.,
Inc., PSBCA No. 477, 79-1 BCA ¶ 13,863 at 68,022.
[3] In view of this conclusion, we need not decide the
precise scope of Respondent’s duty, if any, to discuss the route extension with
Appellant before unilaterally imposing it under the authority granted
Respondent in the Changes clause of the contract (Finding 4). See Lee Ann Wyskiver, PSBCA No. 3621, 95-2 BCA ¶ 27,775 at 138,376
(“Under the Insignificant Minor Service Changes clause of Appellant’s contract,
the contracting officer was authorized to order a minor change . . . without
consulting with Appellant.”).