Appeals of
DERRICK VAN GREENE

Under Contract Nos. HCR 76030 and HCR 76042

PSBCA Nos. 5093 and 5215

APPEARANCE FOR APPELLANT:
Derrick Van Greene

APPEARANCE FOR RESPONDENT:
Kimberly C. Blanton, Esq.
Southwest Law Office
 United States Postal Service

OPINION ON MOTION FOR RECONSIDERATION

            Respondent, United States Postal Service, has filed a motion seeking reconsideration of the Board’s decision in PSBCA No. 5215, Derrick Van Greene, PSBCA Nos. 5093 and 5215, 07-1 BCA ¶ 33,471.^[1]  Appellant opposes the motion.  The facts are stated in the consolidated decision, and familiarity with them is assumed.

            Respondent terminated Appellant’s mail transportation contract HCR 76042 for default based on a number of deficiencies in Appellant’s performance, and Appellant appealed.  The Board assessed Appellant’s performance as reflected in the record and determined that, while Appellant’s performance was by no means perfect, Respondent had not met its burden of showing that the default termination was justified.  See Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 765 (Fed. Cir. 1987); The Swanson Group, Inc., ASBCA No. 44664, 98-2 BCA ¶ 29,896 at 147,994.  The termination for default was converted to a termination for Respondent’s convenience, and Appellant was found entitled to liquidated damages as provided by the contract.

            In its Motion for Reconsideration, Respondent argues that the performance deficiencies considered by the Board were sufficient to justify the termination for default, but also that the Board ignored numerous other performance deficiencies.  In reaching our decision, we reviewed the entire record, including reports of performance deficiencies that were not mentioned in the decision, and considered all of Respondent’s arguments.  However, after eliminating alleged irregularities incorrectly included in the contracting officer’s evaluation, we concluded that Respondent had not shown a substantial failure of performance by Appellant.  We are not persuaded that our conclusion in that regard was in error.

            Respondent argues that the Board ignored established law when it rejected Respondent’s effort to justify the termination for default on grounds other than those relied upon by the contracting officer: namely, that Appellant had failed to pay his invoices under the contract’s fuel purchase program.  The Board recognizes that, in appropriate circumstances, Respondent may justify a termination for default on grounds other than those relied upon by the contracting officer.  See Arthur Napier, PSBCA Nos. 3044, 3140, 94-2 BCA ¶ 26,695.  However, Respondent had previously collected all of the required fuel payments (plus an occasional “bookkeeping” fee) by making withholdings from Appellant’s pay, and Appellant last failed to pay a fuel invoice seven months before the termination.  On these facts, Respondent did not demonstrate that Appellant’s failures to pay his fuel invoices were sufficient to justify termination of the contract for default.

            Respondent also argues that the termination could be justified by Appellant’s failure to cooperate in effecting a change to the contract.  After evaluating its transportation needs among the offices served by Appellant’s route, Respondent decided to make substantial changes to the schedule, changes it could only make with Appellant’s acquiescence.  Respondent requested a cost proposal from Appellant for the changed route, but Appellant did not respond.  Respondent argues in its Motion that Appellant’s failure to respond breached its duty to cooperate under the contract and justified Respondent’s termination of the contract for default.  This ground was not raised in Respondent’s original briefs but could have been.  Consequently, it is not a proper matter for a reconsideration motion.  See AFV Enterprises, Inc., PSBCA Nos. 2691, 3316, 02-1 BCA ¶ 31,764.  Further, if Appellant’s contract as written no longer provided for the service Respondent desired, the contract afforded Respondent the right to terminate it for convenience and replace it with a contract that provided the service Respondent required.  See Melvin R. Kessler, PSBCA Nos. 2820, 2972, 92-2 BCA ¶ 24,857 at 123,996.

            Finally, Respondent asserts that the Board’s decision rewards Appellant for his poor performance and, without citation to any authority, argues that the decision must be reversed to avoid “manifest injustice.”  As discussed above, we have found no error in the Board’s decision, and allowing Respondent to terminate Appellant’s contract for default without demonstrating a substantial failure of performance is not necessary to avoid manifest injustice.  See Pacific Gas & Electric Co. v. United States, 74 Fed. Cl. 779, 785 (2006).

            Respondent has not identified any factual or legal errors or demonstrated other grounds that would warrant changing our decision.  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.^[2]

            Respondent’s Motion for Reconsideration is denied.^[3]

Norman D. Menegat
Administrative Judge
Board Member

I concur:                                                                  I concur:

William A. Campbell                                                 David I. Brochstein
Administrative Judge                                               Administrative Judge
Chairman                                                                 Vice Chairman

[1]  This appeal was consolidated with PSBCA No. 5093 for decision, but Respondent only seeks reconsideration of PSBCA No. 5215.

[2]  In his opposition to Respondent’s Motion, Appellant briefly addressed the decision in PSBCA No. 5093, which was adverse to him.  To the extent it could be considered as a request for reconsideration of that decision, it was not filed within the time allowed by the Board’s rules.  See 39 C.F.R. §955.30.  Moreover, Appellant’s discussion regarding PSBCA No. 5093 recited the same facts and repeated the same arguments he presented in the original proceeding and is not a basis for granting reconsideration.  See AFV Enterprises, Inc., PSBCA Nos. 2691, 3316, 02-1 BCA ¶ 31,764.

[3]  Also in his opposition, Appellant asserted claims for compensation he had earned before the contract was terminated that Respondent withheld and for his extra costs of performing Trip 6 after he began emptying the collection box at Joshua.  Requesting reconsideration does not provide an opportunity to submit new claims.  Besides, before the Board would have jurisdiction to consider Appellant’s claims, he would have to submit them to the contracting officer and appeal any adverse decision to the Board.  See Linda Copman, PSBCA Nos. 4889, 4903, 03-2 BCA ¶ 32,342 at 160,030; Sunshine Development, Inc., PSBCA No. 4200, 99-1 BCA ¶ 30,149.