In the Matter of ) August 16, 1972 ) RICHARD C. LOUGH ) 2112 Hewitt Drive ) Billings, Montana 59102 ) P.S. Docket No. 1/148 Wenchel, Adam G.
This appeal is from a notice of suspension of the above-named Respondent from eligibility to be a contractor or subcontractor on Postal Service contracts. The same Respondent was the subject of a prior notice of suspension. In a Postal Service Decision dated July 20, 1972, that suspension was set aside on appeal for the failure to comply with Section 956.9(a) of the applicable postal regulations 1/ in that it did not include the statement required by subparagraph (2) of the cited section that the suspension was for a temporary period "pending the completion of an investigation and such other proceeding as may follow therefrom."
On July 27, 1972, the Assistant Postmaster General, Logistics and Engineering Department, directed a second notice of suspension to Respondent under the contract debarment and suspension regulations 2/ from which the instant appeal is taken.
The substantive part of that notice is as follows:
"This is to serve as notice that effective immediately you are suspended under the authority contained in 39 Code of Federal Regulations, Part 956, from being awarded U.S. Postal Service contracts. This suspension is based upon irregularities which seriously reflect upon the propriety of further dealings by you with the Government. It has been established upon adequate, clear and convincing evidence by an investigation which has been completed and by the litigation of your appeal in Appeal of Richard C. Lough, POD BCA No. 508 (decided November 3, 1971), before the Postal Service Board of Contract Appeals, that on March 5, 1971, you shoved a mail cart toward Mrs. Mary J. Bauer, Officer-in-Charge at Gardiner, Montana, with the result that sacks hanging over the side of the cart struck her, and that thereafter you swore at Mrs. Bauer and began hitting her on the arm with your fists. Those actions constitute an assault and battery on Mrs. Bauer, and are cause of such serious and compelling nature affecting your responsibility as a Government contractor, as may be determined to warrant your suspension.
"This suspension is for a temporary period not in excess of 120 days from the date of this Notice of Suspension, pending the completion of the above described debarment proceeding, which was instituted as a result of the completed investigation."
Respondent's appeal letter, in substance, makes two contentions. These are:
1. That an investigation of the type referred to in Section 956.9(a)(2) has not been conducted; and
2. That notice misstates the occurrences of March 5, 1971.
Respondent also says:
"Any investigation must in itself consist of a hearing at Billings, Montana."
The Assistant Postmaster General has furnished a reply to the appeal, a copy of which is transmitted to Respondent with this decision.
It is not clear whether the sentence in the appeal letter last quoted is a request for the Judicial Officer to hold a hearing or whether it is a reference to the investigation made prior to suspension. It is clear from the second sentence of Section 957.27(c) 3/ that the Judicial Officer retains discretion as to whether a hearing will be granted in a suspension case. After a review of the issues involved in this proceeding, it is the Judicial Officer's conclusion that no substantial factual issues need to be resolved in this appeal. The issues rather, primarily concern the interpretation of the rules governing suspensions and other matters of law. Thus, there is no need to hold a hearing for the purpose of taking evidence on the propriety of the suspension. 4/
The reference to "investigation" in Section 956.9(a) is for the purpose of helping to define the temporary period for which a suspension may be effective. It does not prescribe the nature or extent of the investigation and indeed, while the investigation in this matter apparently has concluded, the regulation also contemplates situations in which an investigation is conducted during the suspension period. It is undeniable that an investigation has been made of the circumstances on which the suspension is based, even though that investigation did not proceed upon lines Respondent believes were merited.
The notice that is the subject of this appeal does not suffer from the defect found in the prior notice. The docketing of the debarment appeal establishes the validity of the Assistant Postmaster General's statement in compliance with Section 956.9(a)(2).
Respondent's contention that the notice misstates the occurrences of March 5, 1971, cannot form a basis for setting aside the suspension. The decision of the Board of Contract Appeals in the Appeal of Richard C. Lough, P.O.D. BCA No. 508, clearly establishes a reasonable basis for the current suspension.
Accordingly, the above-captioned appeal is DENIED.
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1/ 39 C.F.R. 956.9(a).
2/ 39 C.F.R. 956 and 957.