Appeal of STEPHEN C. SOLOMON - P.S. Docket No. DEB 04-163

March 4, 2005

In the Matter of the Proposed Debarment of

STEPHEN C. SOLOMON

34 Brandywine Circle

Piscataway, NJ 08854-2705

P.S. Docket No. DEB 04-163

APPEARANCE FOR POSTAL SERVICE:

Michael F. Kiely, Esq.

Law Department

United States Postal Service

475 L’Enfant Plaza, SW, Room 6333

Washington, DC 20260-1127

APPEARANCE FOR RESPONDENT:

Stephen C. Solomon

34 Brandywine Circle

Piscataway, NJ 08854-2705

POSTAL SERVICE DECISION

Respondent, Stephen C. Solomon, has filed an appeal from a Notice of Proposed Debarment in which the Vice President, Supply Management, advised Respondent that he was proposing to debar him from contracting with the United States Postal Service for a period of three years based on his plea of guilty to one count of accepting an unlawful gratuity in violation of 18 U.S.C. §201(c)(1)(B). Respondent filed a timely request for a hearing, but after filing a comprehensive stipulation of facts and participating in a telephone conference with the Judicial Officer during which possible outcomes of the proceeding were discussed, the parties agreed the hearing could be cancelled and the matter decided on the record.

FINDINGS OF FACT

1. Between 1996 and September 2003, the Marsellis-Warner Corporation, a general construction contractor, had a contract (Contract no. 332495-97-B-0114 (hereinafter “Contract 0114”)) with the United States Postal Service for the rehabilitation of the parking lot and maneuvering area at the Postal Service’s New Jersey International and Bulk Mail Center in Jersey City, NJ (Stipulations of Non-Contested Fact (“Stipulation”) ¶1).

2. During part or all of the period from 1996 through September 2003, Respondent was employed by Parsons Brinckerhoff Construction Services, Inc. (“PBC”), which was contractually responsible to the Postal Service for providing construction management services on Contract 0114 (Stipulation ¶¶3 & 5).

3. While Respondent was working for PBC on Contract 0114, he had conversations with some Marsellis-Warner officials about the condition of the driveway at his residence, which was in need of repair (Stipulation ¶8).

4. Shortly after the conversations between Respondent and the Marsellis-Warner officials, Marsellis-Warner sent a work crew to Respondent’s residence and had the work crew pave the driveway and install part of a new concrete sidewalk (Stipulation ¶9).

5. Respondent was advised in advance by Marsellis-Warner of the work it was going to perform at his residence. Respondent did not pay Marsellis-Warner for the driveway and sidewalk work it performed at his residence (Stipulation ¶¶10 & 11).

6. In or around September 1999, Respondent prepared and approved a final modification to Contract 0114 that incorporated various change orders submitted by Marsellis-Warner throughout the period of contract performance (Stipulation ¶¶12, 15 & 16). The total amount of the final modification to Contract 0114 was $49,676.42, which represented $291,419.42 of changed work offset by a deduction of $241,743.00 for work deleted from the contract (Stipulation ¶¶13 & 14).

7. Approximately $33,400 of the amount of the final modification to Contract 0114 represented inflated and inaccurate claims submitted by Marsellis-Warner (Stipulation ¶17).

8. On December 11, 2003, Respondent entered into a plea agreement with the United States Attorney for the District of New Jersey, in which he agreed to plead guilty to one count of accepting an unlawful gratuity in violation of 18 U.S.C. §201(c)(1)(B)[1] (Stipulation ¶18).

9. On January 29, 2004, Respondent pled and was found guilty of one count of accepting an unlawful gratuity in violation of 18 U.S.C. §201(c)(1)(B). On

June 14, 2004, Respondent was sentenced to two years probation and fined $500 based on his guilty plea (Stipulation ¶¶19 & 20).

10. Respondent has not participated in any government contracts since his sentencing on June 14, 2004, and is currently serving two years probation from that date (General Counsel’s Reply, Ex. 2; Order and Memorandum of Telephone Conference, dated Feb. 15, 2005).

11. Respondent has demonstrated a recognition and affirmative acceptance of personal responsibility for the offense charged (General Counsel’s Reply, Ex. 2) and cooperated with the authorities investigating the alleged unlawful gratuity (Notice of Appeal, dated Nov. 1, 2004). Respondent is currently undergoing counseling and has agreed to incorporate ethics counseling into his current counseling arrangement (see General Counsel’s Reply, Ex. 2; Order and Memorandum of Telephone Conference, dated Feb. 15, 2005).

DECISION

The proposed debarment is based on Respondent’s guilty plea and conviction of one count of accepting an unlawful gratuity in violation of 18 U.S.C. §201(c)(1)(B). Specifically, Respondent accepted work on his driveway and sidewalk from Marsellis-Warner in exchange for preparing and approving the inflated final modification.[2] Under the Postal Service Purchasing Manual, “commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, or receiving stolen property” is cause for debarment.[3] Since Respondent was convicted under the bribery statute of accepting an unlawful gratuity, cause exists to debar him from contracting with the Postal Service.

Despite the fact that cause for debarment exists, the decision to debar is discretionary and must be based on a determination of the best interest of the Postal Service.[4] It is in the best interest of the Postal Service to contract only with qualified contractors, and in determining a contractor’s qualifications, the Postal Service is required to assess the integrity, business ethics and capability of the prospective contractor to perform the required work.[5] In this case, the record supports the Vice President’s determination to debar Respondent as Respondent’s improper conduct raises serious questions about his integrity and business ethics. Although Respondent states that he intended to pay for the work performed at his residence and that he requested a bill from Marsellis-Warner which he did not receive, he did not pay the company for the work performed and later approved the inflated final modification on Marsellis-Warner’s behalf.[6] Respondent’s actions as well as his plea of guilty to accepting an unlawful gratuity are sufficient to establish that debarment is in the best interest of the Postal Service.

Having determined that the Postal Service properly exercised its discretion to debar Respondent, the prescribed period of Respondent’s exclusion from contracting must be considered to determine whether it is commensurate with the seriousness of the offense.[7] Debarment should not be punitive in nature and should not remain in effect beyond the period necessary to protect the interests of the Postal Service.[8]

The Postal Service has proposed a three year period of debarment with an effective date of November 8, 2004, and a termination date of November 8, 2007. Respondent argues that his cooperation during the investigation and his prior unblemished record should be considered as mitigating factors to support a reduction of the debarment period. Respondent has taken responsibility for his actions and cooperated with the investigating officials.[9] Moreover, Respondent has not been shown to have any prior convictions and the record reflects that he was found guilty of only a single instance of wrongdoing for which the United States District Court for the District of New Jersey determined a sentence of two years probation was a sufficient judgment.[10] In addition, Respondent has not participated in any government contracts since at least June 14, 2004, and he has agreed to incorporate ethics counseling in his current counseling sessions.[11] Under these circumstances, it appears appropriate to have the period of debarment reduced to two years to run concurrently with the period of Respondent’s probation. In addition, Respondent is to seek ethics counseling during this period.

Conclusion

The proposed debarment of Respondent is sustained. The period of the debarment is modified to begin on June 14, 2004, and terminate on June 14, 2006. Respondent is to receive ethics counseling during the remaining period of debarment and to provide documentation of the commencement and content of such counseling to the Judicial Officer no later than 60 days after the date of receipt of this decision.

James A. Cohen

Judicial Officer

[1] 18 U.S.C. §201, “Bribery of public officials and witnesses”, provides in subsection (c)(1)(B):

“Whoever…being a public official…otherwise than as provided by law for the proper discharge of official duty, directly or indirectly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally for or because of any official act performed or to be performed by such official or person…shall be fined under this title or imprisoned for not more than two years, or both.”

[3] Purchasing Manual (PM) §3.7.1.d(1)(c).

[5] See PM §§2.1.9.c(2) and (3); see also Sol Fisher, P.S. Docket No. 37/33 (P.S.D. March 19, 1991); Recognition Equipment Inc., P.S. Docket No. 32/62 (P.S.D. Feb. 17, 1989).

[8] Sol Fisher, P.S. Docket No. 37/33 (P.S.D. March 19, 1991); Vijay Patel and Loading Dock, Inc., P.S. Docket No. 35/28 (P.S.D. Dec. 29, 1989); Paul E. Jaquish, Jr. and Presa, Inc., P.S. Docket No. 19/124 (P.S.D. April 12, 1985).