Appeal of
DINAH WOLVERTON PERKINS
Under Contract No. HCR 85684
PSBCA No. 3691

APPEARANCE FOR APPELLANT:
Dinah Wolverton Perkins, pro se

APPEARANCE FOR RESPONDENT:
Robyn M.A. Sembenini, Esq.

OPINION OF THE BOARD

            Appellant, Dinah Wolverton Perkins, has appealed from the default termination of her contract for the delivery of mail along a route originating at the Marana, Arizona Post Office.  This appeal is being processed under the Board's Accelerated Procedure, 39 C.F.R. §955.36.

FINDINGS OF FACT

            1.  Contract HCR 85684 was awarded to Appellant by Respondent, United States Postal Service, on June 27, 1994.  The contract covered box delivery services along a route originating at the Marana, Arizona Post Office and was for a term beginning on July 1, 1994, and ending on June 30, 1998.  (Appeal File Tab (AF) 8).

            2.  About a week prior to contract award, Respondent's Transportation Contract Specialist spoke to Appellant on the telephone about whether she was interested in receiving the award.[1]  Based on that conversation, the Transportation Specialist concluded that Appellant was a responsible bidder and recommended that she be awarded the contract.   (Tr. I-12-13).  By letter dated June 25, 1994, the Contracting Officer notified Appellant that she had been awarded the contract and listed several items that she would have to accomplish prior to the start of service.  Included in those items was box delivery training ("You will be provided and compensated for a reasonable amount of time (up to fourty [sic] hours) for formalized training on office/casing^[[2]] duties and route operation...") and vehicle inspection.  Appellant was advised to closely coordinate these items with the "Administrative Official," who was the postmaster of the Marana Post Office.  (Appellant's Exhibit (Appnt. Exh.) 5).

            3.  Under the schedule stated in the contract, Appellant was to report to the Marana Post Office at 6:30 a.m.  However, the contract also required generally that she report to the Marana Post Office "in sufficient time to case, load and depart on schedule."  The contract schedule required that she depart the post office to begin deliveries along her route by 9:30 a.m. and that she complete the delivery portion of the route and return to the post office by 12:45 p.m.  (Id.).

            4.  During the course of delivering the mail, Appellant was required by the contract to "dismount" from her vehicle in order to deliver, among other types of mail, "outside parcels" and mail (including Express Mail) for which a signed receipt was required (AF 8; "Basic Surface Transportation Services Contract - General Provisions"[3] clause (GP) 4(b)).

            5.  Under the contract, Appellant was required to utilize a vehicle containing at least 120 cubic feet of secure storage space.  (AF 8; GP 4(d)).

            6.  Clause 18.E. of the contract provided that,

            "The administrative postmaster will provide route training to the successful bidder/offeror.  The training will be for three hours per day over two days and will be equivalent to that training currently provided for rural carriers.  The contractor will be compensated at the hourly rate as quoted on the bid/proposal."  (AF 8).

            7.  Clause 16 ("Termination by the Postal Service for Default") of the general provisions provided that the Contracting Officer could terminate the contract for default,

            "(a)(1) For Contractor's failure to perform service according to the terms of the contract;... [or]

            (10)  If the Contractor's transportation equipment is insufficient, inadequate, or otherwise inappropriate for the service;..."

The clause provided further that if the default termination was later determined to be improper, the contract would be considered to have been terminated for the convenience of the Postal Service under GP 17, thereby entitling the contractor to the payment of an indemnity under GP 12.  (GP 16).

            8.  Appellant's training before the start of service consisted of following the predecessor contractor along the route for two days while he delivered the mail and casing mail under his supervision for short periods on two occasions (AF 10 (page 12), 12; Tr. I-58, II-66-68).  The record does not reflect that any formal training was conducted by Postal Service personnel, although Postal Service personnel, including the Marana Postmaster, were generally available to answer Appellant's specific questions.[4]  Payment to Appellant was authorized for a total of 20.5 hours of training time, from June 25 through June 29, 1994 (AF 9).

            9.  Appellant had no prior Postal Service experience and had difficulties at the beginning in mastering the details of the various tasks required for contract performance.  On the first day of contract performance, Appellant reported to the Post Office to begin casing the mail at 6:00 a.m. but did not leave to begin delivering the mail until 3:30 p.m.  She delivered mail until 9:00 p.m., but was unable to complete her route because of darkness.  On the second day, Appellant reported at 6:05 a.m., departed to deliver the mail at 12:45 p.m., and was able to complete the route, although she again delivered mail until 9:00 p.m.  During the first two weeks of her contract, she received some help in casing her mail from the postmaster and clerks and her overall performance improved with respect to the timeliness of delivery.  Over the course of contract performance, Appellant's casing and delivery speeds increased with experience.  However, the record shows no instances in which Appellant was able to depart by the contractually specified time of 9:30 a.m. and complete deliveries by the specified time of 12:45 p.m.  (Tr. I-68; AF 13).

            10.  The vehicle that Appellant initially used on the route did not meet the contract requirements.  On July 20, 1994, she put a new vehicle into service (a pickup truck) and on August 16, 1994, had a camper installed in the bed of the truck.  It was only at that point that she had a vehicle with the required 120 cubic feet of secure storage space.  However, the record does not indicate that Appellant's failure to have the proper vehicle either hindered her ability to perform the contract or was a substantial factor in the decision to terminate her contract.  (Tr. I-45, II-94, 98).

            11.  Outgoing mail picked up by Appellant from customer mailboxes on her route was dispatched from the Marana Post Office on a truck that stopped there at about 5:15 p.m. each day.  During the first three weeks of contract performance, there were a number of instances in which Appellant was unable to complete her route in sufficient time to meet that truck.  However, after July 20, 1994, when she placed her new vehicle into service, she did not again fail to meet the outgoing truck (but, see Finding 14).  (Tr. II-126).

            12.  Shortly after the first week of Appellant's contract, the Marana Postmaster began to receive customer complaints related to Appellant's performance.  The complaints, most of which were telephoned to the postmaster and some of which were made in writing, included mostly late deliveries but also included misdeliveries and failure to pick up outgoing mail.  The postmaster's supervisor also received telephone calls from customers complaining about poor service.  (AF 35 (page 1), 38, 39, 42-44; Tr. I-76).

            13.  It was the postmaster's practice to review with Appellant on a daily basis the customer complaints received and other deficiencies noted in Appellant's performance.  This review generally occurred between the time Appellant finished casing the mail and the time she departed to deliver her route.  Appellant informed the postmaster that she objected to the timing of these discussions because it delayed her departure.  Appellant also objected to what she considered harassment by the postmaster -- particularly the fact that he rarely, in her view, tempered his criticism of her work with compliments when they were deserved.  The postmaster, on the other hand, concluded that Appellant was unjustifiably irritated by what he considered a normal part of his administrative duties -- i.e., advising Appellant of customer complaints about her performance and about problems that he believed needed correction.  (AF 10 (page 5); Tr. I-66-70, II-91).

            14.  On August 3, 1994, in response to a telephoned customer complaint, the postmaster issued a USPS Form 5500 ("Contract Route Irregularity Report"),[5] alleging that Appellant failed to deliver mail on part of her route before returning to the post office.  On that date, Appellant had, in fact, interrupted her delivery, traversed the remainder of the route only picking up outgoing mail, and returned to the post office in order to meet the outgoing mail truck.  However, she then returned to her route and finished delivering the remainder of the mail.[6]  (AF 10 (page 22), 29, 30).

            15.  On August 5, 1994, the postmaster met with Appellant to discuss her progress during the first month of contract performance.  The postmaster told Appellant that he was concerned over customer complaints about late deliveries and misdeliveries.  He told Appellant that he believed that after 30 days her performance should be better.  He noted particularly his concern over what he considered Appellant's slow casing speed of approximately 40 minutes per "foot" of mail, as contrasted with the average by Postal Service carriers of approximately 15 minutes per foot.  He also discussed with Appellant his concern over what he perceived to be her negative attitude and reaction when he attempted to talk to her -- to the point that he felt reluctant to talk to her about problems for fear of disturbing her.  Finally, he informed Appellant that her continued failure to perform could result in "cancellation" of her contract.  (AF 5; Tr. I-80-82).

            16.  On August 5, 1994, the postmaster issued a Form 5500, alleging that Appellant had failed to attempt delivery of two pieces of Express Mail to addresses on her route.  However, the record indicates that Appellant had, in fact, attempted to deliver both pieces, but had treated them as she would any other pieces of accountable mail.  Appellant had not been trained in handling Express Mail at that point and was not aware of the particular requirements of that class.  (Tr. I-187-196, II-133-137; AF 10 (page 26, 27), 28).

            17.  On August 5, 1994, the postmaster received a telephone call from a customer complaining about continued late mail delivery.  However, the record contains no evidence as to the details of the call or as to what day or days were being complained about.  No Form 5500 was issued.  (AF 28).

            18.  On August 11, 1994, the postmaster issued a Form 5500 to Appellant.  The 5500 was issued in response to a telephone call the postmaster  had received from a customer complaining that Appellant was not giving proper handling to parcels that were too large to fit in the mailbox.  The customer stated that Appellant had hung one parcel from the mailbox, had attached another to the outside of the mailbox and had attached a third parcel to the fence adjacent to the mailbox.  On the 5500 the postmaster wrote that he had discussed this type of situation with Appellant on several occasions and that she was to leave an attempted-delivery notice in the mailbox and return the parcel to the post office.  Appellant replied that she had spoken to the customer previously and that she had been told to leave oversize parcels inside the gate.  (AF 10 (page 28), 25).

            19.  On or about the second week in August 1994, the postmaster received a petition signed by seven residents along Appellant's route.  The letter listed a number of perceived deficiencies in the service being provided by Appellant and asked that she be removed from the route.  The residents were particularly concerned about late deliveries, misdeliveries, failure to pick up mail, homes not receiving any mail for days and then receiving a large amount in one day, Appellant stopping twice at some boxes (indicating to the authors that she was not properly sorting the mail), lost mail, and delayed mail.  The authors stated that these deficiencies had persisted for over a month, with no improvement.  (AF 22).

            20.  On August 15, 1994, the postmaster received a telephone complaint from a customer who alleged that some mail properly addressed to him was being marked to be returned to sender.  The postmaster reviewed the situation with Appellant and determined that there were no notes or markings on her case and no records of forwarding or other requests that should have resulted in mail properly being marked for return.  (AF 24).

            21.  On August 25, the postmaster received a complaint from a customer who claimed that Appellant had failed to attempt delivery of a certified letter.  The postmaster discussed the incident with Appellant, who stated that she had, in fact, attempted to deliver the letter.  The record does not show that a Form 5500 was issued as a result of this incident.  (AF 22).

            22.  On August 26, 1994, a customer filled out a "Consumer Service Card" complaining that Appellant was delivering mail to the wrong boxes and then failing to remove the misdelivered mail from the box after the customer had marked up the envelopes to reflect the problem (AF 21).

            23.  On September 1, 1994, the postmaster issued a Form 5500 based on a Consumer Service Card received from a customer on Appellant's route.  The customer complained of continuing to receive mail that did not belong to him and complained about Appellant not picking up all outgoing mail.  The postmaster noted that the customer had previously telephoned with the same complaints, stating that he (the customer) had talked to Appellant about the problem several times.  Appellant replied that she had to deliver mail as addressed as long as there were no forwarding instructions.  She also stated that the customer had not marked the incorrectly delivered mail (to let her know it should not be delivered there) and therefore she had not picked it up from the box.  (AF 18, AF 10 (page 45, 46)).

            24.  On September 1, 1994, at the request of Postal Service management in Denver, another postmaster (J.R. Mauldin) visited the Marana Post Office to get a first-hand view of the situation involving Appellant and to confer with the Marana postmaster.  Mr. Mauldin reviewed the file of complaints that the Marana postmaster had compiled.  He also examined Appellant's case after she departed on her route and noticed what he concluded were three trays of delayed business mail that had not been cased for delivery, and approximately three-quarters of a foot of first and second class mail that had been left behind (see Finding 25).   After conferring with the Marana postmaster, Mr. Mauldin participated in a telephone conference with the Contracting Officer, described his observations and recommended that the contract be terminated for default.  His recommendation was based in part on the appearance in the file of multiple instances of the same problems and his impression that Appellant's performance had reached a "plateau" and was unlikely to significantly improve.  However, part of the basis for Mr. Mauldin's recommendation was his incorrect assumption that Appellant had been taking mail home for overnight storage[7] on those days (early in contract performance) when she had been unable to complete her route and return to the post office before it closed.  Following the conversation, Mr. Mauldin helped the Marana postmaster draft and issue to Appellant a letter ("Final Request for Service Improvement") informing Appellant that service had not improved since their conference on August 5, 1994, and giving Appellant two days to restore and maintain satisfactory service.  The letter stated that if Appellant failed to do so, her file would be referred to the contracting officer for "appropriate attention." (Tr. II-5, 12, 13, 15, 31, 77, 78, 111; AF 4).[8]

            25.  On September 1, 1994, the postmaster also issued a Form 5500 to Appellant for her failure to case and deliver all available mail.  Appellant conceded that there were 15 pieces that she had failed to pick up and take with her before departing on her route.  (AF 10 (page 41)).

            26.  On or about September 2, 1994, the postmaster received another complaint letter from one of the persons who had signed the earlier petition (Finding 19).   In the letter the customer complained that although she had filed several change of address cards, Appellant continued to deliver mail to her old address, including some mail addressed to her new address.  (AF 17).

            27.  On September 7, 1994, the postmaster issued another Form 5500 to Appellant based on a Consumer Service Card and verbal complaint to a Postal Service clerk received on that date.  The customer complained that Appellant did not bring a parcel to her home the day before but had, instead, only left an attempted-delivery notice.  The customer also stated that she had been receiving other people's mail "quite often lately."  In reply, Appellant stated that she had delivered the parcel the next day (September 8).  (AF 10 (page 63), 15).

            28.  On September 7, 1995, the postmaster received a telephoned complaint from a customer who stated that Appellant had missed delivering a portion of her route.  The customer based his complaint on his observation that there was a group of mailboxes that had received no mail at all and that among those boxes were a number which had flags that had not been lowered by the carrier.[9]  (Tr. 1-63).

            29.  In the period from September 1, 1994, when Appellant received the "two-day" letter, until the date of termination, Appellant's actual delivery times were the following (AF 13):

            Date                Departed from Post Office               Returned to Post Office

            9/1                   10:05 a.m.                                          1:50 p.m.

            9/2                   9:55 a.m.                                            1:47 p.m.

            9/3                   10:00 a.m.                                          3:05 p.m.

            9/4                   Sunday

            9/5                   Holiday

            9/6                   12:28 p.m.                                          5:24 p.m.

            9/7                   9:40 a.m.                                            1:50 p.m.

            9/8                   10:25 a.m.                                          3:00 p.m.

            30.  After reviewing the file and speaking to the postmaster, a contract specialist who worked directly for the Contracting Officer recommended to the Contracting Officer that Appellant's contract be terminated for default.  He based his recommendation on reports of customer complaints, the Forms 5500, Consumer Service Cards, and conversations with the Marana postmaster, who reported that performance was not improving and that communications between Appellant and him were becoming more difficult.  The Contract Specialist also relied on Mr. Mauldin's review of the situation to give him a certain "comfort level" in making the recommendation.  (Tr. I-14-18).

            31.  In a final decision dated September 8, 1994, the Contracting Officer terminated the contract for default for Appellant's failure to perform service in accordance with the terms of the contract (AF 2).

            32.  Following the termination, a contract was awarded to another contractor on an emergency basis to begin mail deliveries the next day (Tr. II-24).  The emergency contractor was able to meet the contract delivery schedule on a fairly regular basis within approximately five weeks of taking over the route (AF 13).

DECISION

            Respondent argues that Appellant's unsatisfactory service, as shown by customer complaints of misdeliveries, failure to deliver and deliveries outside the contract delivery schedule, provides a basis for the Contracting Officer's decision to terminate the contract for default.  Respondent argues that Appellant received adequate warning that her performance was unsatisfactory, including an informal meeting on August 5, 1994, and the formal "two-day" notice on September 1, 1994, and that the Contracting Officer's decision to terminate when Appellant's performance did not improve was not arbitrary or capricious.

            Respondent argues further that the explanations offered by Appellant do not constitute excuses for unsatisfactory service.  Respondent argues that Appellant did not, for the most part, provide timely responses to the Forms 5500 issued by the Contracting Officer.  Respondent also contends that the explanations offered do not excuse the deficiencies identified.  Finally, Respondent argues that Appellant's assertions with respect to inadequate training do not excuse her poor performance and that the record does not support her allegation that she was harassed by the administrative official.

            Appellant argues that the termination was improper because it was based on a number of incorrect assumptions made by J.R. Mauldin, the person asked by Postal Service management to visit the Marana Post Office and evaluate the situation.  Appellant argues specifically that Mr. Mauldin was deliberately and incorrectly led to believe that (a) Appellant was delivering mail at night up until the end of August; (b) Appellant was taking mail home with her overnight; (c) Appellant had late mail (i.e., bulk business mail that had not been cased within 48 hours of arrival) at her case on September 1, 1994, when Mr. Mauldin visited the post office; and (d) Appellant was carrying unsecured mail.  Appellant also argues that the record shows that Mr. Mauldin's account of Appellant's slow casing speed was based only on his observation of her after she had been given the two-day warning letter that upset her and caused her to lose concentration.  Appellant argues that the Contracting Officer gave considerable importance to Mr. Mauldin's resulting recommendation to terminate the contract.

            Appellant also argues that it was improper for the Contracting Officer and Contract Specialist to have accepted "undocumented" notes of customer complaints that were kept by the Marana postmaster as evidence of Appellant's performance and of her temperament.

            Finally, Appellant suggests that a motive in deciding to terminate the contract was Respondent's desire to award a replacement contract at a lower amount.

            The Postal Service has the burden of proving that the default termination was justified, but once Respondent shows that Appellant failed to perform in accordance with the contract, the burden shifts to Appellant to present evidence of excusable causes.  Patricia J. Stevens, PSBCA No. 3272, 94-1 BCA ¶ 26,419.  Having considered the record before us, we conclude that Respondent has met its burden of proving that the default termination of this contract was proper.

            When Appellant executed the contract, she obligated herself to deliver the mail according to the schedule set out in the contract.  Although her performance had shown substantial improvement by the time of contract termination, she had not yet reached the point at which she was able to meet that schedule.  We conclude that this fact combined with the deficiencies in her performance both before and after the date of the September 1, 1994 warning letter, provide a sufficient basis for a decision by the Contracting Officer to terminate the contract.  Patricia J. Stevens, supra; Peggy Thornburg, PSBCA No. 2385, 1989 WL 81101 (July 7, 1989).  Appellant had been given over two months to bring her performance into compliance with the contract but had not done so, notwithstanding what was clearly a great deal of effort on her part.  We note that the emergency contractor who took over her route had reached Appellant's approximate level of timeliness after about two weeks and was able to meet the contract schedule on a fairly regular basis after approximately five weeks.  Therefore, we have no basis for concluding that the contract schedule was objectively impossible to meet.

            During the course of the hearing in this matter, although not in her final argument or brief, Appellant emphasized what she considered to be Respondent's failure to adequately train her for the contract work.  We note that Appellant, who was a contractor and not an employee, received and was paid for approximately twenty hours of training before the period of performance began, even though the contract (and the solicitation on which Appellant bid) obligated Respondent to provide only six hours.  Appellant was also able to get additional training on an ad hoc basis from Postal Service personnel as particular situations arose during the course of performance.  While the training may not have been as formal or comprehensive as Appellant may have desired, the record does not show that Appellant was hampered by a lack of cooperation in providing information necessary to contract performance.  The record does not show that with the training and assistance she received Appellant could not have performed the contract in a timely manner after two months of operation.

            Appellant also emphasized what she considered harassment and insensitivity by the Marana postmaster in his administration of the contract.  Having considered the record, we do not conclude that his actions were improper.  The information regarding customer complaints that he conveyed to Appellant was relevant to her contract performance and was information that she was entitled to have and properly should have been given by the administrative official in a timely manner.  Therefore, we cannot fault the postmaster's practice of conveying that information to Appellant before she left the post office to deliver her route.  We are not persuaded that the postmaster's timing should have significantly affected Appellant's ability to perform the contract.

            As to Appellant's arguments concerning incorrect assumptions made by Mr. Mauldin, the record does not reflect that those particular assumptions played a significant part in Mr. Mauldin's recommendation or in the Contracting Officer's decision to terminate.  While Mr. Mauldin's recommendation may have been one factor considered by the Contracting Officer, it was not the only factor.  Also before the Contracting Officer were the records of customer complaints, the Forms 5500 issued by the administrative official, and the records of Appellant's time of performance, all of which provided a sufficient basis for the Contracting Officer's decision to terminate the contract.

            We also disagree with Appellant's argument that it was improper for the Contracting Officer to have considered the Marana postmaster's notes of customer complaints.  Appellant refers to the notes as "undocumented," by which term she seems to infer a duty on the part of the postmaster to have conducted an investigation of each complaint or to have insisted that customers follow up each telephoned complaint in writing.  Were there one or two major irregularities relied on for the termination, which irregularities were supported only by notes of telephoned complaints, we might agree.  Here, however, the notes reflected a significant number of complaints concerning similar problems, in which each individual complaint could be considered relatively minor.  Under these circumstances, we do not impose on the administrative official the obligation to investigate each complaint individually to ensure its accuracy or to require the customer to put the complaint in writing before giving it any consideration.

            Finally, we conclude that the record does not support Appellant's suggestion that the Contracting Officer's motive in terminating the contract involved the award of a successor contract at a lower price.  There is no evidence that the amount of Appellant's contract was a consideration in the Contracting Officer's decision to terminate.

            Accordingly, the appeal is denied.

David I. Brochstein
Administrative Judge
Board Member

I concur:
James A. Cohen
Administrative Judge
Chairman

[1]  The contract had earlier been awarded to another contractor, whose contract was subsequently terminated on the basis of anticipatory repudiation.  There was also at least one other lower bidder not awarded the contract for reasons of non-responsibility.  (Transcript, Volume I, pages 26-28, 46 (Tr. I-26-28, 46)).

[2]  Casing the mail refers to placing individual pieces of mail in slots in a case in which one slot represents each delivery point.

[3]  The General Provisions were not included in the copy of the contract found in the appeal file.  However, the Board has taken judicial notice of the contents of the contract general provisions incorporated by reference in clause 10 of the solicitation (Postal Service Form 7407 (July 1992 version)), a copy of which was filed with the Board by Appellant as part of the addendum to her appeal.

[4]  Appellant received brief training in the use of "attempted delivery" notices, which are to be left when delivery of a parcel or a piece of accountable mail (e.g., registered, certified, Express Mail) cannot be completed.  She received some training on handling undeliverable bulk mail.  She also eventually received what she considered satisfactory training in the handling of mail that had to be forwarded.  The record indicates that this training was not received in any formal or organized fashion, but was given to Appellant on an ad hoc basis as particular situations arose in the course of her work.  (Tr. I-99, 102, 106; Tr. II-72-74).

[5]  The postmaster had decided that, in fairness to Appellant (as a new contractor), he would not issue any Forms 5500 during the first 30 days of contract performance (AF 3).  It was also his practice not to issue a Form 5500 to a contractor unless a problem had been reported more than once or twice (Tr. 1-70).

[6]  The record is not conclusive with respect to whether Appellant returned to complete deliveries on the route at the direction of the postmaster or whether she did so on her own initiative.

[7]  Both parties agree that this would have been a serious violation, probably justifying termination by itself (Tr. II-30).

[8]    At the hearing Mr. Mauldin also testified to having observed Appellant casing mail at a very slow pace, using a technique he considered unacceptable.  However, that observation was made after Appellant had received the "two-day" letter, which had upset her greatly and caused her to lose her concentration.  It is unclear whether that information was passed to the Contracting Officer.  (Tr. II-9, 90, 106).

[9]  Customers raise the flags on their mailboxes to indicate that they have outgoing mail.  The carrier is required to lower the flag once the mail has been picked up.