Appeal of
ERNEST JOHNSON
Under Contract No. HCR 71330
PSBCA No. 3658

APPEARANCE FOR APPELLANT:
Ernest Johnson

APPEARANCE FOR RESPONDENT:
Patrice R. Dickey, Esq.

OPINION OF THE BOARD

             Ernest Johnson, Appellant, has appealed the termination of his mail transportation contract with Respondent, United States Postal Service.  Respondent terminated the contract for default based on Appellant's alleged failure to perform according to the requirements of the contract.

            At the election of the parties, this appeal is being decided on the record without an oral hearing.

FINDINGS OF FACT

            1.  On June 3, 1993, Respondent renewed contract HCR 71330 with Appellant for transportation of mail between Alexandria and Trout, Louisiana for the term July 1, 1993, through June 30, 1994, at an annual rate of $24,575.  The route consisted of a morning trip from Alexandria to Trout (Trip 1) and a return trip in the afternoon (Trip 2).  Each trip included a stop at Jena, Louisiana.  (Appeal File Tab ("AF") A).

            2.  Appellant was required to "carry all mail tendered for transportation under this contract, whatever may be its size and weight, with certainty, celerity, and security . . . ."  (Basic Surface Transportation Services Contract General Provisions, PS Form 7407, July, 1992, General Provision 4 (a)).[1]  The obligation to transport "mail" under the contract included the duty to transport empty mail transportation equipment of the Postal Service, and the post offices on Appellant's route had been instructed to return all empty equipment to Alexandria daily (General Provision 1(d); AF F, pp. 21-22).

            3.  The contract required Appellant to perform the service using a truck with a minimum interior length of 11 feet, minimum interior width of 7.5 feet and minimum interior height of 7.5 feet.  (AF A, Contract Section 15).

            4.  The contract also required that Appellant "have readily available sufficient stand-by equipment of the [same] types . . . to perform extra trips, to permit vehicle maintenance, and to prevent delays in emergencies such as mechanical failure and bad weather conditions."  (Id.).

            5.  General Provision 6 of the contract required Appellant to "establish and maintain continuously in effect a policy or policies of liability insurance for all motor vehicles to be used under the contract" and set the minimum coverage (General Provision 6; see AF A, Contract Section 18.C).

            6.  Under the contract, only drivers who displayed an identification badge that had been issued by Respondent after the driver had been screened could be allowed access to the mail and restricted areas of post offices.  Appellant was "responsible for recovery and return of badges to the U.S. Postal Service when an employee leaves his employment. . . ."  (AF A, Contract Section 17; General Provision 5(a)).

            7.  Appellant remained responsible "for the faithful performance of the obligations assumed by him under this contract, whether or not he has entrusted the care and transportation of the mail to another."  (General Provision 8(b)).

            8.  Under the contract, Appellant was required to perform extra trips ordered by the contracting officer or his authorized representative (AF A, Contract Section 14; General Provision 12(b), (c)).

            9.  The termination clause of the contract, Termination by the Postal Service for Default, provided, "The Contracting Officer may terminate this contract for default:  (1) For Contractor's failure to perform service according to the terms of the contract; * * * (10) If the Contractor's transportation equipment is insufficient, inadequate, or otherwise inappropriate for the service; * * * (13) If the Contractor fails to establish and maintain continuously in effect insurance as required by Clause 6, or fails to provide proof of insurance prior to commencement of service and thereafter as required by the Contracting Officer."  (General Provision 16(a)(1), (10) and (13)).

            10.  On September 13, 1993, Appellant did not perform Trip 1 due to illness.  He notified Respondent seven hours before the trip was to commence that he would not be able to perform, but he did not provide a replacement.  The service was performed by a Postal Service employee using a Postal Service vehicle.  (AF I, J, pp. 5, 6; AF K, p. 5).

            11.  On October 4, 1993, Appellant refused to load some of the mail for his route at the Alexandria dock because he considered his truck to be overloaded.  The Alexandria supervisor of customer services directed Appellant to perform an extra trip to carry the remaining mail, but Appellant did not do so.  (AF I, J, pp. 1, 2; AF K, p. 3).

            12.  On the following day, October 5, Appellant and the Alexandria supervisor of customer services, who acted for the Alexandria Postmaster as the contract's administrative official, had a heated argument on the dock regarding the reasons for Appellant's failure to run the extra trip on the previous day.  Appellant left the post office and did not perform either trip that day.  They were performed by Postal Service employees.  (AF I, J, K, pp. 1, 2).

            13.  On October 6, 1993, Appellant entrusted the performance of Trip 2 and the keys to post office vestibules to a driver who had not been screened and issued a badge authorizing access to the mail and restricted areas of the post offices.  The driver was wearing an identification badge that Respondent had issued to a former driver who no longer worked for Appellant, and which Appellant had not returned to the post office.  Respondent's officials confiscated the badge.  (AF H).

            14.  On October 8, 1993, the Alexandria supervisor of customer services held a formal meeting with Appellant to discuss Appellant's failure to perform regular and extra trips.  Appellant was advised that his contract required regular performance, that he was required to run extra trips when directed by the administrative official, and that he was required to have a backup vehicle available for use when his truck had mechanical problems.  (Declaration of James B. Berry; AF G, H).

            15.  The supervisor of customer services wrote to Appellant on October 18, 1993, raising the use of an unauthorized driver on October 6 as another instance of unsatisfactory service.  The official advised Appellant to restore satisfactory performance within 7 days or the file would be referred for action by the contracting officer.  He cautioned that such referral could lead to assessment of damages or termination of the contract.  (AF G).

            16.  The liability insurance on Appellant's vehicle was cancelled effective January 17, 1994, for nonpayment of premiums.  The supervisor of customer services wrote to Appellant on February 1, insisting that Appellant obtain replacement insurance by February 7, 1994, which Appellant did.  (AF E, F).

            17.  On December 4, 1993, January 22, 29, and 31, 1994, Appellant left behind at the Jena dock empty mail transportation equipment that was supposed to be returned to Alexandria.  Appellant's use of a vehicle that did not comply with the requirements of the contract was the cause of his failure to carry the empty equipment on December 4, 1993, and January 31, 1994.  He also used a nonconforming vehicle on March 12, 1994.  (AF C, F, pp. 17-19, 21-22).

            18.  On February 1, 1994, Appellant did not perform the morning run (Trip 1) due to equipment failure and did not provide a backup vehicle.  He notified Respondent the evening before that he would be unable to perform, and the trip was performed by a postal employee using Postal Service equipment.  (AF F, pp. 9-15).

            19.  On February 7, 1994, the Alexandria Postmaster submitted the file for Appellant's contract to the contracting officer and requested that Appellant's contract be terminated for default.  The letter recited all of the incidents the postmaster considered to violate the terms of the contract.  Reports of incidents occurring after February 7 were referred to the contracting officer by supplemental memoranda.  (AF C, D, E).

            20.  On February 5, Appellant left Jena 5 minutes before his scheduled departure time, leaving behind two pieces of First Class mail that had been deposited for collection before he was scheduled to leave.  As a result the two pieces of mail were dispatched late.  (AF D).

            21.  In a final decision dated March 29, 1994, the contracting officer terminated Appellant's right to perform under the contract for default "[d]ue to the continued unsatisfactory service, with no apparent improvement."  (AF C).  Appellant filed a timely appeal from that decision (AF B).

DECISION

            The Findings made regarding Appellant's performance are based on documents, primarily copies of PS Forms 5500, Contract Route Irregularity Report, in the record that recite service failures noted by Respondent's employees and, in a few cases, Appellant's reply explaining the events.  Respondent submitted a declaration of the Alexandria supervisor of customer services in which he recounts the performance deficiencies but adds little to the contents of the reports themselves.

            Appellant submitted a declaration, although unsworn, in which he denies each and every statement of deficient performance in the supervisor's declaration.  Because Appellant's "declaration" is in the nature of a general denial rather than a statement of Appellant's recollection of specific facts, little evidentiary weight was given to it, although the arguments it contains have been considered.

            Appellant argues that the termination for default stemmed from the incidents occurring at the Alexandria dock on October 4 and 5, 1993.  He argues that on October 4 the supervisor of customer services insisted that Appellant, a minority contractor, load all the mail for his route even though it would have overloaded his vehicle, while two non-minority mail transportation contractors were allowed to leave mail behind.  He argues that the supervisor of customer services was the aggressor in the altercation on October 5 and that Appellant was justified in leaving the post office to avoid the confrontation.  He claims that the supervisor of customer services orchestrated the termination to retaliate against Appellant for the October 5, 1993 altercation, and that other contractors who had committed similar contract violations were not terminated.  He contends that his driver's use of the badge of a former driver was a mistake made by the driver, who was a trainee.  Appellant asks that the contract be reinstated.

            Respondent did not submit a brief.

            Respondent has the burden of proving that the termination was justified by demonstrating that Appellant failed to perform in accordance with the contract.  Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 765 (Fed. Cir. 1987).  Once Respondent shows that Appellant did not meet the contract requirements, the burden shifts to Appellant to present evidence of excusable causes, see Patricia J. Stevens, PSBCA No. 3272, 94-1 BCA ¶ 26,419 at 131,429; Pamela J. Sutton, PSBCA No. 1622, 88-3 BCA ¶ 21,031 at 106,237, or to show that the termination was an abuse of the contracting officer's discretion, see Jesse A. Farmer, PSBCA No. 2702, 91-3 BCA ¶ 24,181 at 120,941; Quality Environment Systems, Inc., ASBCA No. 22178, 87-3 BCA ¶ 20,060 at 101,569.

            Respondent has met its burden of demonstrating that Appellant did not perform in accordance with the requirements of the contract over the period of about seven months leading up to the termination at the end of March 1994.  Appellant missed scheduled trips on September 13, 1993, October 5, 1993 (two trips) and February 1, 1994, and an extra trip ordered on October 4, 1993.  On December 4, 1993, January 31 and March 12, 1994, Appellant used a vehicle that did not meet the requirements of the contract.  On at least two of those occasions, use of the nonconforming vehicle caused Appellant to leave behind empty mail equipment he was supposed to pick up in Jena, and on two other occasions in January, 1994, Appellant left empty equipment at Jena.  The gap in insurance coverage from January 17 through February 7, 1994, constituted a breach of the contract requirement that coverage be continuously maintained, notwithstanding Appellant's provision of replacement coverage within the time set by the contracting officer.[2]   On October 6, 1993, Appellant intentionally entrusted the route and keys to post office vestibules where mail was secured for the contractor to a driver who had not been screened by the Postal Service and authorized access to the mail, and the driver improperly used a badge issued to a former employee that Appellant had failed to return to the post office.

            Appellant has not demonstrated that the performance deficiencies were excusable.  Appellant's arguments regarding excusability focus on the incidents of October 4 and 5, 1993.  However, he has not established by a preponderance of the evidence that non-minority contractors were treated differently or that actions of the supervisor excused Appellant's failure to perform his contract duties on October 5 or any of the subsequent performance deficiencies.[3]  Additionally, Appellant is responsible for failures of his employees to perform in accordance with the requirements of the contract, so he is responsible for the misuse of a Postal Service-issued identification badge and improper access of an unscreened driver to the mail and to postal facilities' restricted areas as well as Appellant's own failure to return the badge when his former employee left.  Appellant has not presented evidence that would demonstrate that any of the other performance deficiencies were excusable.

            Taken together, the deficiencies over seven months demonstrate a failure to provide for satisfactory, reliable service, and the contracting officer had a reasonable basis for terminating the contract.  William Cimpi, PSBCA No. 2695, 91-1 BCA ¶ 23,390; Henry Lee Yon, PSBCA No. 932, 81-1 BCA ¶ 15,076.

            Appellant has not shown that the termination of his contract for default was an abuse of the contracting officer's discretion.  Appellant has not shown that the termination was based on anything other than his performance deficiencies, and he has not supported with probative evidence his allegations that other contractors received more favorable treatment and that the termination was motivated by racial animus and by hostility toward him on the part of the supervisor of customer services at the Alexandria Post Office.

            The appeal is denied.

Norman D. Menegat
Administrative Judge
Board Member

I concur:
James A. Cohen
Administrative Judge
Chairman

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

     [1]  The General Provisions were not included in the Appeal File.  However, the contract explicitly incorporated the July 1992 edition of the General Provisions, and we can take note of the content of those General Provisions.  A copy of the General Provisions is in the record, having been filed by Respondent as a proposed exhibit when it was thought a hearing would be held.

     [2]    While that insurance gap might not be a basis for termination, in and of itself, because Appellant promptly replaced the insurance within the time Respondent allowed, see Gary A. Boyd, PSBCA No. 2182, 88-3 BCA ¶ 21,010; Christina Corp., PSBCA No. 762, 1980 WL 3089, December 24, 1980, it may be considered along with the other contract violations to demonstrate cause for the termination.

     [3]  Appellant submitted a sketch of the Alexandria loading platform on which he identified others present during the altercation who, presumably, he expects would verify his version of the incident.  However, he has presented no statements or other evidence from these persons from which we can determine what happened.