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Reflections on the August 2010 Annual Convention, National Star Route Mail Contractors Association Newsletter

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9.01.10

Once again, the Star Route Association's Annual Convention was an eye-opener for me on the issues that HCR and CDS contractors face. This article examines some of the issues that were brought to my attention.

First Dibs on Extra Trips

When the Postal Service needs an extra trip to be run on your CDS route, is it required to come to you first or can it give the work to another contractor? For most CDS contractors, this is not a concern because the Postal Service generally asks the regular contractor to perform any extra trips on its route. But is it required to do so?

HCR contracts typically contain specific provisions describing how long a contractor has to respond to a request to perform an extra trip. CDS contracts do not appear to have such a clause. But each CDS contractor has a contract to sort and transport mail to a defined set of mailboxes along a defined route. If there is extra work to be done along this defined route, then, under the implied condition of good faith and fair dealing, the existing contractor should be given the right of first refusal to perform it. Absent a specific contract term setting out the conditions under which the contractor must be given a right of first refusal, a reasonable condition would be implied. Thus, when there are extra trips to be performed under a CDS contract, if it is reasonable to allow the existing contractor the first opportunity to perform it, then contractually it should be given that opportunity.

As a practical matter, problems can arise if extra trips are performed by another contractor or a postal employee. For example, if the regular contractor has not performed the extra trip, the Postal Service would not know who is at fault for misdelivered or damaged mail. CDS contractors who receive Irregularity Reports for mail they were not responsible for should make sure that this is noted in their response.

If you are not being given the first opportunity to perform extra trips along your route, you should notify the Administrative Official and Contracting Officer. You should note that you expect to be given the first opportunity to perform extra trips, and if the Postal Service does not intend to do so without having a reasonable basis then such action would entitle you to damages for breach of contract.

Package drop-off

Postal customers along various CDS routes are given a form allowing them to designate if they want to pick up their packages at the Post Office or have them delivered to their home. The form also allows the customer to designate where packages should be left if they are not at home. Some postal customers have apparently designated on this form drop-off locations that are unreasonable or unsafe. Examples would include someone else's property, inconvenient locations (e.g., "behind the barn"), or dangerous locations (e.g., inside the fenced yard of an aggressive dog). If you believe this is the case, you should contract your Administrative Official and explain why the location is unreasonable or unsafe. You should never attempt to leave a package in an unsafe location, and you should advise the Administrative Official in writing each time this happens.

"4 by 4, As Needed"

Your contract will typically designate the type of vehicle you must use on your route. On some contracts, the required vehicle is described as "4 by 4, as needed." If this designation is in your contract, who determines when a four-wheel drive vehicle is "needed"? You do. The purpose for adding the "as needed" description is to allow the contractor to use a two-wheel drive vehicle when a four-wheel drive vehicle is unnecessary. Because two-wheel drive vehicles typically cost less to operate, this lowers the cost of performance and the price of such contracts. If the Postal Service did not want to give you the discretion to determine when to use a four-wheel drive vehicle there would be no point to adding the "as needed" language.

Under such contracts, you are only required to use a four-wheel drive vehicle when conditions are such that a two-wheel drive vehicle would not be able to negotiate the route. If a four-wheel drive vehicle could negotiate the route, but you do not have access to one, then you would be in breach of the contract. Sometimes, the weather and road conditions are no match even for four-wheel drive vehicles. On these occasions, you would be excused from performance of the route, regardless of whether you have a two-wheel or four-wheel drive vehicle.

Harassment by Postal Officials

Sad to say, but I heard too many stories of CDS contractors being harassed by postal officials. Of course, I'm only hearing one side of the story. Nonetheless, in some cases it's apparent from the documentation itself that a CDS contractor is being harassed. When that happens, the contractor faces a difficult time. The Postal Service should appoint an ombudsman to deal with such issues, but until it does, here are some suggestions for dealing with it:

First, give the postal official the benefit of the doubt and operate from the assumption that he or she is not out to "get you." Try to determine if there is any merit in the official's complaints and then set about to correct any deficiencies. Perhaps the rude conduct you are experiencing relates to a legitimate concern that should be addressed. Or perhaps the official is not aware of what the contract requires and expects you to perform extra work without being paid for it. Postal officials do not go to charm school, so they might not be expressing their concerns in the most professional or tactful way possible. If the rude behavior stems from these reasons, it's potentially fixable.

Second, if you've tried step one and the official is an incorrigibly spiteful person and treating you unfairly, you need to make sure that you respond in writing to all complaints you receive. Always act professionally, no matter how outrageous the provocation from the postal official. If necessary, walk away, but don't lose your cool. If the postal official is violent or threatening, you should contract the Inspection Service and the Contracting Officer. The Postal Service has a "zero tolerance policy" for such type of behavior. It goes without saying that you should not say or do anything that would cause a postal official to believe that you have made a violent threat.

Third, try to have another person witness all interactions you have with the harassing official. This way, you will avoid a "he said, she said" encounter, in which the Postal Service will believe its employee and not you. If there is a security system camera in the facility, try to make sure all encounters with the harassing official are being recorded. Some states allow a single party to a conversation to record it, even if the other party is unaware and has not given consent. Be careful, as this is illegal in some states. But if your state allows this, consider buying a pocket recorder and turning it on during your conversations with the harassing official.

Fourth, document every instance of such treatment, including as many specific facts as possible, such as dates, time of day, scan numbers, and the names of other people who were witnesses. If possible, take a photograph of the underlying conditions that are interfering with your performance, taking due care that any such photographs not identify customer address information. Taking photographs can be a touchy area. If you are directed not to do so, obey such direction, but be sure to document the fact that you have been prohibited from doing so.

Fifth, send a letter to the contracting officer describing each instance of harassment. I understand that just because you are paranoid doesn't mean they are not out to get you. Still, make every effort to avoid being characterized as paranoid or a kook. Stick to the facts and leave the opinions and apparent motivations out. Explain what it is happening and why it is interfering with your performance.

Note that "extremely rigid, unreasonable and arbitrary" conduct by an official who administers your contract or inspects your performance is a constructive change to the contract, entitling you to the cost impact from dealing with such conduct and excusing performance deficiencies that result from it. See, e.g., G.W. Galloway Co., ASBCA Nos. 16656, 16975, 73-2 BCA ¶ 10,270. In some cases, a high degree of government supervision can even cause you to lose control over your employees and the manner in which the work is performed. See Karnavas Painting Co., NASABCA 28, 63 BCA ¶ 3,633. Thus, harassment by postal officials that impacts your performance would entitle you to recover the added cost of dealing with the harassment.

Summary

The Annual Convention once again demonstrated that the Star Route Association is the leading and most influential association of postal contractors. While postal officials do not necessarily agree with the Star Route Association on every issue (an understatement, to be sure), they do listen to it and respect its views. Contractors, and the Postal Service itself, would be far worse off if the Association did not exist.

David P. Hendel
Partner
Husch Blackwell LLP
750 17th Street, NW, Suite 1000
Washington, D.C. 20006-4607
Direct Phone: 202.378.2356
Direct Fax: 202.378.2319
E-Mail: david.hendel huschblackwell.com
Website: www.huschblackwell.com