Appeal of

LYNN SUSAN MANCINI

Under Contract No. HCR 32696
PSBCA No. 4129

APPEARANCE FOR APPELLANT:
Leonard H. Klatt, Esq.

APPEARANCE FOR RESPONDENT:
Glenn L. Smith, Esq.

OPINION OF THE BOARD

            Appellant, Lynn Susan Mancini, has appealed from the default termination of her contract with Respondent, United States Postal Service, for the delivery of mail along a route originating at the Hernando, Florida Post Office.  A hearing was held in Ocala, Florida.

FINDINGS OF FACT

            1.  On March 17, 1995, Respondent awarded transportation services contract no. HCR 32696 to Appellant for the term of March 25, 1995, through June 30, 1998.  The contract required Appellant to deliver mail to boxes along a route originating and concluding at the Hernando, Florida Post Office.  The annual contract amount was $15,768.94 at the time of award, but had increased to $17,649.52 by December 1996.  The Hernando Postmaster was designated the administrative official for the contract.  (Stipulation paragraph (Stip.) 1; Appeal File Tab (AF) P; Appellant's Exhibit (Appnt. Exh.) 2; Transcript page (Tr.) 5).

            2.  Under Clause 16 of the general provisions ("Termination by the Postal Service for Default"), the contracting officer had the right to terminate the contract for default, among other reasons,

"[f]or Contractor's failure to perform service according to the terms of the contract;… [or] for the Contractor's disobedience of the instructions of the Contracting Officer….”  (AF P).

            3.  On Friday, December 20, 1996, Appellant was injured part way through her route when her leg was pinned between her vehicle and a parked car.  Up to that date, Appellant had operated the route herself, with only occasional help from her husband, sons, and others, and her service on the route had been excellent.  Appellant's injuries consisted of a fractured ankle and injuries to her lower back and/or hip.  As a result of these injuries, Appellant was unable personally to perform the duties of her contract during her period of convalescence.  (Stip. 6, 7; Tr. 36, 37, 145, 203; Deposition of Dennis Kenneth Mancini, March 20, 1998 (Mancini deposition), page 8).

            4.  Appellant and her husband contacted the Hernando Postmaster by telephone the evening of December 20, 1996, to inform her that Appellant would be unable to perform the contract the following day (Saturday) because of her injuries.  The postmaster responded that if Appellant did not perform, she (the postmaster) would consider the contract to have been abandoned and would take appropriate action to notify the contracting office in Atlanta.  Appellant's husband then telephoned Respondent's contract specialist in Atlanta to inform him of the conversation with the postmaster.  The contract specialist told Appellant's husband not to worry about providing coverage the next day – that Appellant would not be considered to have abandoned the contract if she did not work that day.  (Tr. 28, 29, 123, 125, 204; Mancini deposition, pages 10, 11; AF N).

            5.  On the following Monday or Tuesday, December 23 or 24, 1996, Appellant's husband went to the Hernando Post Office loading dock with one of Appellant's sons and a woman Appellant hoped to train to run her route, with the intent of getting both the son and the other woman cleared to drive the route.^[1]  Neither person was cleared to drive the route on that date. (Tr. 11, 21, 30, 209-213; Mancini deposition, pages 14-16).

            6.  On or about Monday, December 23, 1996, Appellant's husband had another conversation with the contract specialist he had talked to on December 20 (Finding 4).  During the course of that conversation, the contract specialist informed Appellant's husband that the postmaster had no authority to terminate the contract, and that only the contracting officer had that authority.  (Tr. 109).

            7.  Appellant's route was covered by a combination of Postal Service personnel and other carriers for the period of December 23 through December 27, 1996.  In a conversation on December 27, 1996, a different contract specialist informed Appellant that she could have a replacement driver operate her route if that driver submitted the appropriate forms for clearance.  (AF O; Tr. 40, 61).

            8.  On December 27, 1996, the contracting officer issued a Route Service Order suspending Appellant's right to perform the contract and directing that all payments be withheld pending a final decision.  On or about the same day, an emergency contract was let to continue coverage of Appellant's route.  The emergency contract contained a provision making it terminable by the Postal Service on 24-hours' notice.  (AF K; Tr. 136).

            9.  On December 31, 1996, the contracting officer issued a second Route Service Order.  That Order rescinded the first Route Service Order, directed the release of any payments owed to Appellant up through the day before her injury – the last day she had run her complete route -- but also directed that her pay be withheld beginning on the day of her injury.  (AF J).

            10.  In a letter dated January 15, 1997, Appellant wrote to the contracting officer,

"As a follow up since my last doctor's appointment on January 7, 1997:  Dr. Choung, my [orthopedic] surgeon, has put my ankle in a full cast for another four weeks, keeping me out of work for that time also.  I have another appointment scheduled for February 7, 1997.  At that time I will send you another follow-up on my progress.…"  (AF I).

            11.  By letter dated February 2, 1997, Appellant informed the contracting officer that,

"As of this date, I would like to let you know that I am ready to perform the duties of my contract number 32696 as I was on December 24, 1996.  Please let me know when this transition may take place.

If needed, I will forward a release from my doctor stating that I am able to resume the responsibilities of my contract.  Please advise me as such.…"  (AF I).

            12.  On or about February 5, 1997, Respondent's contract specialist telephoned Appellant and asked her to forward the medical release she had offered to provide.  In response, Appellant faxed a note from the doctor, dated February 6, 1997, and reading "Light duty for 4 weeks."  (AF H, I; Tr. 117).

            13.  On or about February 7, 1997, the contract specialist again telephoned Appellant and asked her to provide a "release" from the doctor indicating that she was able to perform the duties required by the contract.  In a letter to the contracting officer the same day, Appellant stated,

"I have been ready to fulfill the duties and responsibilities of my contract number 32696 since December 24, 1996.  I have done everything you have asked of me and you are still refusing me the rights of my contract.  You leave me no choice except to turn this matter into the hands of my attorney and give him the 'go ahead' to file suit for the full amount of my contract.  Further correspondence will be forwarded to my attorney."  (AF H, I).

            It is unclear whether there was any further contact between the parties in response to this letter, but by letter dated February 24, 1997, Appellant stated,

"As stated in previous letters, I am waiting for acknowledgment that I may return to the Hernando Post Office and to fulfill the duties and responsibilities of my contract number 32696.  Again, I have been willing and able to continue my duties as operator of such contract since December 24, 1996.  My agent^[2] had been willing to perform such duties on the 24^th of December when the door of the post office had been slammed in his face, stopping him from performing such duties.  Please advise when I may return to initiate the duties of said contract number 32696.

Also, I have not received my monthly check for said contract beginning December 24, 1996 through the present date.  Please let me know when I may expect payment for my obligation of such contract."  (AF I).

            14.  In a letter dated March 7, 1999, the contracting officer recounted the events that had occurred in early February, and indicated that Respondent had not received any further correspondence from Appellant's doctor concerning Appellant's "ability to return to performance of the contractual duties."  The contracting officer stated that "[u]pon receipt of a doctor's medical release, we will review it in making a decision whether to allow you to return to performing the duties of the contract."  (AF H).

            15.  Appellant replied to the contracting officer's March 7 letter in a letter dated March 17, 1997.  In that letter Appellant stated, in part,

" I have been instructed by [counsel] to do nothing more to get you to honor the contract.…  I have stated in approximately six telephone conversations and at least three letters that I have been ready to resume the duties of my contract since December 24, 1996.…

If you continue to violate the contract…, [counsel] has advised me to wait until March 25, 1998, when the contract ends, and to file suit for its entirety along with damages and lawyer fees due to breech [sic] of said contract.

As of this date, you owe me back wages from December 24, 1996 through March 17, 1997 for failure to allow me to fulfill the duties of my contract.  This is also a violation of my contract.  Upon receipt of monies owed and written notice of me being allowed to resume the duties and responsibilities of my contract, I will decide whether or not to resume my contract at that time.…"  (AF G)

            16.  In a letter dated April 20, 1997, Appellant again requested payment under the contract for the period since December 24, 1996.  In addition, Appellant stated,

"There is no reason why I am not being allowed to fulfill the duties of my contract.  I have stated this time and time again and you refuse me to do so."  (AF F).

            17.  The contracting officer wrote to Appellant, in a letter dated May 12, 1997, that he had requested a release from her doctor stating that she was able to perform the duties of the contract, but that he had not yet received documentation from the doctor that Appellant was able to "perform [her] contractual duties at 100 percent capacity."  The contracting officer demanded that documentation be submitted to his office within five days of receipt of the letter, and indicated that when the documentation was received, he would "review it in making a decision whether to allow you to return to performing the duties of the contract."  Further, the contracting officer stated that "[t]his is our final request for medical documentation for your fitness for duties of your contract[.]  FAILURE TO RESPOND TO THIS REQUEST MAY RESULT IN TERMINATION OF YOUR CONTRACT."  (AF E).

            18.  By letter dated May 27, 1997, Appellant responded,

"You are in violation of contract number 32696 and have been since December 24, 1996.  We have made several attempts to solve this and you have ignored any and or [sic] all requests.

This matter has been turned over to my attorney and you may forward all further correspondence to him.…"  (AF D).

            19.  On or about June 20, 1997, the contracting officer issued a "Show Cause Notice" to Appellant and her counsel.  The Notice indicated that Respondent had still not received any medical documentation, notwithstanding the March 7 and May 12, 1997 requests.  The contracting officer then stated that Appellant was,

"hereby afforded the opportunity to present in writing within ten (10) days … any fact or evidence as to: (1) why the medical documentation requested has not been submitted, and (2) why you have not hired and submitted for … clearance … a driver to run the route during the period of your convalescence."  (emphasis in original).

The letter went on to state that Appellant's failure to present any excuse could be considered an admission that no excuse for nonperformance existed.  (AF C).

            20.  By letter dated July 9, 1997, Appellant stated that ten days was insufficient time to respond to the Show Cause Notice because her attorney was out of town, and indicated that she hoped to respond on or about July 21, 1997, after consulting with him.  In her letter, Appellant also stated,

"Mr. Starnes [the contracting officer], you already know that I was able to perform the duties of my contract … since December 24, 1996.  You also know that my husband … has been cleared through the Hernando Post Office since the first day of my contract.…  Why would you make such a ridiculous request as to ask me why I hadn't hired someone to run my route?  This is well known information, that he had been cleared.  On several different occasions you were sent letters stating that I was ready to fulfill the duties of my contract.…"  (AF B).

The record contains no further response to the Show Cause Notice.

            21.  In a final decision, dated August 21, 1997, the contracting officer terminated the contract for default, "for failure to perform service according to the terms of your contract."  The contracting officer cited Appellant's failure to submit medical documentation and her failure to have submitted a driver for clearance to operate her route during her convalescence.  (AF A).  Appellant submitted a timely appeal.

            22.  Appellant did not provide any service under the contract from the time of her injury until the contract was terminated (Stip. 11, 20-29).

DECISION^[3]

            Respondent offers three arguments for upholding the default termination of this contract.  First, Respondent argues that the contracting officer properly terminated the contract because of Appellant's failure to perform the contract following her injury or to arrange for another driver to run her route.  Second, Respondent argues that Appellant refused to resume service under her route until funds allegedly owed her were paid.  Respondent contends that such a demand by Appellant would constitute abandonment of the contract and would justify termination.  Finally, Respondent contends that Appellant failed to adequately respond to the contracting officer's show-cause notice, and that such failure constituted disobedience of a reasonable directive of the contracting officer.

            Appellant argues first that the postmaster prevented Appellant's husband from performing her route by leading him to believe that she was in default and no longer had a route for him to perform.  Appellant argues next that the contracting officer improperly required that Appellant provide documentation that she was able to perform her contractual duties at 100 percent capacity (Finding 14), a requirement that Appellant argues was a violation of the contract.  Appellant argues that upon receiving notification that Appellant was ready to resume her duties, the contracting officer was obligated to terminate the emergency contract, which he could do on 24-hours' notice, and authorize Appellant to resume her route.  Finally, with respect to the show-cause notice, Appellant argues that the response she submitted, although promising an additional response from her attorney, was an adequate reply to the contracting officer.

            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.

            The record shows that Appellant failed to provide service under her contract, either personally or through substitutes, even though warned by the contracting officer's June 20, 1997 letter that she was expected either to provide medical documentation or run the route using substitutes.  Thus, Respondent has met its initial burden of showing that Appellant did not meet her contract requirements.  As indicated above, the burden then shifts to Appellant to demonstrate that her failure to perform was due to excusable causes.

            Initially, we note that the fact of the injury itself did not excuse Appellant's failure to perform.  Appellant was obligated to continue service through the use of substitutes if she was unable to continue operating the route personally.  See Donna M.P. Benchamkha, PSBCA No. 2588, 90-3 BCA ¶ 23,112, and cases cited therein. 

            Even if, as asserted by Appellant, the Hernando Postmaster stated that Appellant no longer had a route and was unwilling to clear anyone to run Appellant's route on December 23 or 24,^[4] that did not completely relieve Appellant of her contractual obligations.  Contrary to Appellant's argument, the postmaster's actions, even if as alleged by Appellant, did not have the effect of terminating the contract.  Appellant was aware, from having spoken to Respondent's contract specialist, that the postmaster had no authority to terminate the contract.  Further, Appellant was aware that her husband had previously been cleared to operate the route, and that other replacement drivers could be screened to do so if the drivers submitted the appropriate paperwork (Finding 7).  Therefore, even if the postmaster had refused to clear anyone to operate the route on December 23 or 24, Appellant could not reasonably have believed that the single refusal completely relieved her of her obligation to perform the contract.^[5] 

            Appellant's primary "excusable cause" argument is that the contracting officer improperly required her to provide documentation showing that she was physically able to perform the contract duties before he would allow her to resume performance.  As indicated by the Findings of Fact, Appellant was barred from personally operating the route, subject to the condition that she furnish documentation of her fitness to resume driving.  Whether or not the contracting officer had the right to insist on this documentation, the fact that he did so did not relieve Appellant from her obligations under the contract.  Under these circumstances, Appellant was obligated either to furnish the requested documentation or operate the route using substitute drivers.  If she believed that the contracting officer's directive was unreasonable and increased her costs, she could have filed a claim seeking to recover those costs.  See, e.g., Werner Lembke d/b/a Lembke Trucking, PSBCA No. 3875, 98-2 BCA ¶ 29,999 at 148,365; Lacie R. McFadden, PSBCA No. 4063, 98-2 BCA ¶ 29,838, recon. den. 98-2 BCA ¶ 30,015, aff'd sub nom. McFadden v. Henderson, 1999 U.S. App. Lexis 7312 (Fed. Cir. 1999 (non-precedential opinion)).  She was not, however, entitled to refuse to resume service.

            Appellant has failed to show that her failure to resume service under the contract was excusable.  Accordingly, the contracting officer's decision to terminate the contract for default was proper.

            The appeal is denied.

David I. Brochstein
Administrative Judge
Vice Chairman

I concur:
James A. Cohen
Administrative Judge
Chairman

I concur:
Norman D. Menegat
Administrative Judge
Board Member

[1]   Appellant's husband previously had been cleared to drive the route (Tr. 18, 44; AF Q).

[2]   Through a document dated December 27, 1996, Appellant had appointed her husband "my acting agent to further pursue any dealings I may have in regards to contract route number 32696.  He will be handling all personal, professional and if the need arises, any legal matters involved in this matter."  (AF L).

[3]  Respondent filed a motion to strike certain hearing testimony given by Appellant's son, Peter Mancini.  The motion was first made during the hearing, but the Board reserved judgment and gave Respondent the opportunity to argue its position as part of its post-hearing brief.  The basis for the motion is that part of Peter Mancini's testimony was inconsistent with an interrogatory answer provided by Appellant during the course of discovery.  We have considered Respondent's motion but conclude that Respondent has failed to identify specific testimony that was inconsistent with the interrogatory answer. Respondent's motion to strike Mr. Mancini's testimony is denied.

[4]  Appellant contends that the postmaster refused to give her husband the required forms, stating that Appellant no longer had a contract.  Respondent contends that the postmaster said that she would get the necessary forms, but that when she sent the forms out with her assistant five or ten minutes later, Appellant's husband and son had already left.

[5]   Further, even if Appellant initially believed that her contract had been terminated, she clearly did not believe that to be the case at least as early as February 2, 1997, when she informed the contracting officer that she was ready to resume performance.  (See Finding 11).