Appeal of
PAMELA J. SUTTON
Under Contract No. HCR 95669
PSBCA No. 1622

APPEARANCE FOR  APPELLANT:
Timothy P. Sperber, Esq.

APPEARANCE FOR RESPONDENT:
Doris Godinez-Taylor, Esq.

OPINION OF THE BOARD

            This is an appeal from the Contract Officer’s termination of Appellant’s highway transportation contract following Appellant’s refusal to continue performance.  Appellant, alleging Respondent breached the contract, raises issues of impossibility and misrepresentations by Respondent.

FINDINGS OF FACT

            1.  On April 21, 1986, the United States Postal Service (Respondent) solicited bids for a highway transportation services contract, Route HCR 95669, for box delivery of mail from the Georgetown and Garden Valley, California post offices (Appeal File (AF) Tab 2).  Under paragraph 12, Schedule and Frequency Requirements, the solicitation provided as follows:

“SEE ATTACHMENT “B” FOR STATEMENT OF SERVICE

                                          SCHEDULE
1                               TRIP                                              2
K7______________FREQUENCY____________         K7_
1000              Lv      Georgetown PO                Ar        1600
1205_______Ar___Garden Valley PO______ Lv_      1535

FREQUENCY:  K7  =  Daily except Sunday & holiday

*1.  Estimated Annual Schedule Miles  27,609.68
**  Estimated Annual Schedule Hours 2,702         Total Boxes 527

*The estimated annual miles and per trip miles are given only as information.  Prior to submitting a bid, the bidder should determine the actual miles. . . .

**The estimated annual hours are approximately the number of hours needed to operate the trips as they are shown in the schedule.  Also included in the total estimated annual hours are the number of hours needed for casing, loading/unloading and mail mark-up.  Prior to submitting a bid, the bidder must determine the actual hours.

Adjustments in Annual Hours:  If the contracting officer and the contractor are unable to mutually agree to an adjustment in the annual hours for a service change the following formula will apply.  Adjustments in the annual hours for casing and route operations will be computed using two constant factors.  Multiply the number of additional boxes by 3.64 and the additional miles by 10.40.  The sum of the two equals the new hours added to the contract.

Special Note:  Any additional hours or miles which may result from the bidders unique operations should be included in the bid price.  The miles and hours shown in this section are the estimated minimum miles and hours necessary to operate the trips as shown and do not include wash up time, vehicle inspection, etc.

FREQUENCY EXPLANATIONS

            Frequency Identification                                                       Annual Trips

                        K7                                                                                303.07”  Id.

            2.  Included in the solicitation was PS Form 7407 (Oct. 1981), as amended, Basic Surface Transportation Services Contract General Provisions, which included a claims and Disputes clause (AF Tabs 5, 6).  Clause 4 of the General Provisions provided in part that the “Contractor shall carry all mail tendered under this contract. . . with certainty, celerity, and security, in accordance with the operating schedule” (AF Tab 5).  Clause 16 set fourth causes warranting termination of the contract for default, including at subclause (a)(1), “Failure to perform service according to the terms of the contract.”  Subclause (c) declared that if the default termination was subsequently determined to have been improper, the contractor’s rights would be the same as though a termination for convenience had been issued under clause 17, including recovery of the indemnity prescribed in Clause 12, “Changes in Service.”  Id.

            3.  Pamela J. Sutton, Appellant, lived in the area of the route (Tr. 24).  She visited the Georgetown Post Office and discussed the route with the Postmaster (Tr. 25).  The Postmaster advised her to drive the route to become familiar with it, and that she could come into the office and observe the carrier (Tr. 24, 25).  The Postmaster also informed Appellant and other bidders that the route was long and difficult, but that after a break-in period, they should be able to deliver the route within the time shown on the schedule, although on some days it would take longer (Tr. 25, 86).  Appellant thereafter drove the route and in a subsequent conversation with the Postmaster stated to him that she thought the time schedule was correct (Tr. 86).

            4.  Under “Vehicle Requirements and Specifications,” the solicitation provided that the contractor would furnish, at a minimum, one passenger car, standard size (AF Tab 2, pp. 4-5).  The contractor was required to have readily available sufficient stand-by equipment to perform extra service, permit maintenance, and prevent delays in emergencies (id.).  In discussions with Appellant, the Georgetown Postmaster advised that more than one driver was permissible, and Appellant stated that she planned to have a helper (Tr. 58-59, 75).  Appellant was aware the previous carrier had used an assistant on heavy mail volume days (Tr. 117).

            5.  Appellant submitted a bid in the amount of $15,629.25 per year, based on costs of $12,122.80 for contractor wages, personal driving or supervision, at a rate of $5.00 per hour, estimating 2,424.56 hours per year for performance (Stipulation of Facts, Oct. 12, 1987 (Stip.) ¶ 5; AF Tab 9).  In the cost statement, P.S. Form 7468-B, submitted with her bid, Appellant inserted above her estimate for the annual hours (2,424.56), “Postmaster estimate 8 hrs a day” (AF Tab 9).  Appellant obtained the impression from her discussions with the Georgetown Postmaster that the average time for the route was eight hours per day, although it could be readily computed from the solicitation that the average daily time would be 8.91 hours, or approximately 8 hours, 54 minutes per day (see Tr. 107-08).

            6.  Following receipt of her bid, the Contracting Officer notified Appellant that based on a review of her cost statement, the fuel cost appeared to be overstated, and the hours shown were understated (AF Tab 14).  Appellant was provided a copy of the abstract of bids showing the amounts bid by the eleven other bidders, which ranged from $20,265 to $43,890.06 (AF Tab 51; Tr. 144).  Appellant was requested to provide written confirmation that she could perform the required services at her stated bid rate of $15,629.25 (AF Tab 14; Stip. ¶ 6).

            7.  Thereafter, Appellant submitted a revised cost statement for the identical sum of $15,629.15, but changed the fuel costs, the contractor’s rate (to $4.00 per hour), and the number of annual hours to 2,702 (AF Tabs 9, 15; Stip ¶ 6).  Appellant also submitted the written confirmation of her bid, stating as follows:

“Enclosed is the revision of my bid proposal.  Thank you for your concern and time, as the readjustment does seem to help.

Rest assured that the mail will be delivered as promised.  Personal funds make it possible to meet any additional expense.

We are looking forwarded to serving you soon!  (AF Tab 15).

            8.  Award was made to Appellant on or about June 24, 1986, for a contract term from July 1, 1986, to June 30, 1990 (AF Tab 1; Stip. ¶ 7).

            9.  Appellant commenced performance on July 1, 1986 (Stip. ¶ 9; Tr. 113).  One week later, on July 8, 1986, Appellant wrote to the Contracting Officer requesting that she be released from the contract (AF Tab 18; Stip. ¶ 10).  Her reasons included dangerous conditions caused by the presence of logging trucks, inability to stay on schedule, and stress caused by tight time frames (id.).

            10.  The Contracting Officer by letter dated July 11, 1986, refused to release Appellant from her contractual obligations, advising her to become more proficient in her duties and to call on the Georgetown Postmaster for assistance or additional training (AF Tab 21; Stip. ¶ 11).

            11.  The Georgetown Postmaster in a memorandum dated July 15, 1986, reported to the Contracting Officer that Appellant’s performance had improved noticeably (AF Tab 22).

            12.  In a letter dated July 30, 1986, to the Contracting Officer, Appellant stated that her last working day would be September 3, 1986, after which she would no longer serve the route (AF Tab 23).  Appellant gave as reasons for her decision her belief that the scheduled route time was understated, she had no time for breaks, outdated postal equipment, dangerous traffic conditions, and inability to stay on schedule because of mail volume (id.; Stip. ¶ 13).

            13.  The approximate average daily time for completion of the route during the weeks Appellant performed the contract are as follows:

Week (commencing, ending)          Time (in hrs & minutes)

July 1-5                                              11:34
July 7-12                                            11:17
July 14-19                                          9:45
July 21-26                                          8:30
July 28-Aug. 3                                    9:20
Aug. 4-9                                             9:01
Aug. 11-16                                         9:11
Aug. 18-23                                         9:05
Aug. 25-30                                         9:15

            (See AF Tab 44, pp. 5-8; Tr. 30).

            14.  Appellant’s immediate successor, the carrier who took over on an emergency basis from September 4 through November 21, 1986, was able, after the first two weeks on the job, to deliver the route within the time allotted in the schedule (see AF Tab 44, pp. 8-10; Tr. 34-35, 47).  The contractor preceding Appellant also delivered the route in less than the estimated time as computed from the annual hours specified in her contract (8.89 hours daily), at least during the period February 15, 1986 to June 30, 1986 (see AF Tab 44, pp. 1-5; Tr. 50; Supplemental Stipulation (Supp. Stip.) ¶ 2e).

            15.  Appellant made complaints of unsafe conditions on the route relating to the location of several mailboxes that she believed were too close to the roadway.  Serving those boxes while traffic, including logging trucks, passed on the roadway was thought by Appellant to be hazardous (Tr. 135, 136).  The Georgetown Postmaster investigated and determined the boxes complained of did not present a hazardous condition (Tr. 152-54).  There had been no complaints of unsafe conditions or about the locations of boxes from the contractors who had served the boxes for the twelve years previous to Appellant’s service (Tr. 25, 152).  With respect to one box serving a customer named Goodpaster, the Postmaster requested that the location be moved because of Appellant’s complaints (Tr. 152).  The box was subsequently relocated sometime after September 3, 1986 (id.).

            16.  Appellant ceased performance on September 3, 1986 (Stip. ¶ 14; Tr. 32, 44, 119).  In a letter dated September 5, 1986, the Contracting Officer notified Appellant that she was to advise his office within three days if she intended to resume operation of the route (AF Tab 26).  She was further advised that failure to reply would result in a termination action being taken (id.).

            17.  In a final decision dated September 23, 1986, the Contracting Officer terminated Appellant’s right to perform the contract services, without allowance for indemnity, for abandonment of service (AF Tab 31; Stip. ¶¶ 14, 16).

            18.  A timely appeal was filed.

            19.  Commencing September 4, 1986, Appellant’s contract was taken over on an emergency basis by other carriers who served the route until the end of the year (Tr. 34-35; see AF Tab 44, p. 4).

            20.  Solicitations dated October 28, 1986, were issued inviting bids on two contracts (to commence after the first of the year 1987) to serve the route previously covered by Appellant’s contract, one contract for a route serving customers from the Georgetown post office, the other from Garden Valley (AF Tab 46; Tr. 36; Stip. ¶¶25, 26; see AF Tabs 32-38). The Garden Valley Postmaster had previously recommended a split of the route because of customer dissatisfaction with late delivery (AF Tabs 13, 19, 24; Stip. ¶ 8; Tr. 97-101).  On September 29, 1986, the Georgetown Postmaster recommended splitting the route based on, among other things, his belief that mail was frequently delivered late, especially to customers at the end of the route (AF Tab 32).  In making statements about late delivery of mail on heavy mail days, the Georgetown Postmaster was referring to Appellant’s performance (Tr. 60).  He was of the view that emergency contractors were able on many occasions to finish the route on schedule even on heavy volume mail days (Tr. 64).

            21.  After the recommendations for a route split were made, a route survey was performed which revealed there were 568 boxes on the route, or 41 more boxes then reflected in Appellant’s contract (AF Tab 45; Supp. Stip. ¶ 8).  While performing the contract Appellant served approximately 560 to 568 boxes (Tr. 22, 111-13; AF Tab 48; Stip. ¶ 34).  No claim has been submitted by Appellant concerning the increased number of boxes.

            22.  On April 3, 1987, replacement contracts were awarded in the amounts of $11,942.82 and $13,652.70, estimating 13,183.56 and 16,002.10 annual miles, and 1,591 and 2,349 annual hours, respectively (AF Tab 46; Supp. Stip. ¶¶ 4, 5).  the increased estimated schedule hours included time for future mail volume growth on the routes as well as additional miles (Tr. 79-81).

DECISION

            Appellant argues that Respondent misrepresented the time required to perform the contract services, and also misrepresented the number of vehicles needed.  According to Appellant these misrepresentations constitute a substantial breach of the contract, and therefore Respondent was not justified in terminating the contract.  Appellant asserts that  Respondent knew, or should have known, Appellant’s bid was erroneous, and that its failure to warn Appellant of her error constituted overreaching, bad faith, and a substantial breach of contract.  Appellant also contends it was impossible to perform the contract services with one vehicle and one driver, and she was therefore justified in ceasing to perform the contract services.  As further justification for her actions, Appellant asserts Respondent wrongfully refused to abate life-threatening, dangerous conditions on the route.

            Respondent contends the termination was proper because of Appellant’s abandonment of service.  Respondent argues that the abandonment cannot be justified as excusable because Appellant has failed to prove impossibility of performance or the existence of safety hazards on the route.  As an added argument Respondent asserts that even if conditions were unsafe or the route impossible to perform within the time schedule, Appellant failed to follow the procedure required by the contract to settle disputes.

            There is no dispute that Appellant abandoned performance of the contract.  Abandonment of performance, or anticipatory repudiation by a contractor, is sufficient grounds for a default termination unless the reasons for the abandonment constitute excusable causes for non-performance.  B & E Mail Transport, Inc., PSBCA Nos. 971, 973, 974, 82-2 BCA ¶ 15,965.  See also Willis Jay Daniel, PSBCA No. 1579, 87-2 BCA ¶ 19,829.

            Appellant’s argument that misrepresentations were made by Respondent concerning the estimated performance time and the number of drivers for the route is not supported by the evidence.  The estimated annual hours for contract performance was specified in the solicitation to be 2,702.  From this number and the number of annual trips required (303.07), the average daily time for the route could be calculated as 8.91 hours, or approximately 8 hours 54 minutes.  Respondent’s Georgetown Postmaster told all bidders who inquired that it was a long and difficult route.  That  Appellant formed the impression she could perform the route in eight hours per day was either a misjudgment on her part, or a unilateral mistake that cannot be attributed to Respondent.  Before award Appellant was asked to verify her bid, which was considerably lower than others received, and was notified that she had underestimated the number of hours.  She, nevertheless, confirmed her bid, adjusted the hours and her own rate of compensation, and stated she would perform the required services as specified in the contract.

            We have also found that Appellant was aware that a helper or driving assistance was used by previous carriers on heavy mail volume days, and that she planned to have a helper (Finding 4).  Under these circumstances we cannot find that actions or statements of Respondent were misrepresentations, or were such as to constitute a breach of contract.

            The evidence fails to establish the contract was impossible to perform.  Rather, the record indicates that whereas Appellant’s time to complete the route was slightly more than the estimated time for performance, other contractors before and after Appellant were able to complete the route within the contract’s estimated time (Finding 14).  That some hardship or inconvenience was experienced by Appellant in attempting to meet the schedule does not establish impossibility or excuse Appellant’s non-performance.  See B & E Mail Transport, Inc., PSBCA No. 947, 82-2 BCA ¶ 15,912; Hoyt Brothers Trucking Inc., PSBCA No. 931 (June 24, 1981).  Respondent’s decision to split the route when it was resolicited was done for the convenience and better service of its customers, and cannot on this record be construed as an acknowledgement that the previous route was impossible to perform (see Finding 20).

            Appellant has failed to prove hazardous or unsafe conditions on the route that would justify her non-performance (Finding 15).  Even were the Board to find that the location of the one box complained of created a hazardous condition, at most it would have excuse Appellant’s failure to serve that box.  It would not justify Appellant’s abandonment of the entire route.  Estelle McCormick, PSBCA No. 1030, 83-2 BCA ¶ 16,574.  See also John Horsley, PSBCA No. 1464, 86-3 BCA ¶ 19,141, on recon., 87-1 BCA ¶¶ 19,413, 19,450.

            Accordingly, the appeal is denied.

James E. Lemert
Administrative Judge
Board Member

I concur:
James A. Cohen
Administrative Judge
Chairman

I concur:
James D. Finn, Jr.
Administrative Judge
Vice Chairman