August 3, 1988

Appeal of

PAMELA J. SUTTON

Under Contract No. HCR 95669

PSBCA No. 1622

APPEARANCE FOR APPELLANT:

Timothy P. Sperber, Esq.

APPEARANCE FOR RESPONDENT:

Doris Godinez-Taylor, Esq.

OPINION OF THE BOARD ON MOTION FOR RECONSIDERATION

Appellant has filed a Motion for Reconsideration or Rehearing in connection with the Board’s decision dated March 31, 1988 (88-2 BCA ¶ 20,680). In that decision the Board upheld a default termination taken by the Contracting Officer after Appellant had abandoned performance of her highway transportation contract.

Appellant sets forth 10 points in the motion which, it is contended, constitute error. The first nine points can be summarized generally as arguments that the opinion of the Board is not supported by substantial and credible evidence. In Point 10 Appellant argues the Board wrongly placed the burden of proof on Appellant. Respondent has filed an opposition to the motion.

Point 10 of the motion refers to three conclusions in the Board’s decision which Appellant reads as erroneously placing the burden of proof on Appellant. Appellant cites those rulings of the Board which (1) rejected Appellant’s factual contentions that misrepresentations were made by Respondent as “not supported by the evidence”; (2) rejected Appellant’s impossibility argument, concluding that the “evidence fails to establish the contract was impossible to perform”; and (3) concluded “Appellant has failed to prove hazardous or unsafe conditions on the route that would justify her non-performance” (88-2 BCA at 104,539-40). Additionally, Appellant claims to have been misled by a statement of the presiding Administrative Judge in the prehearing conference that Respondent would have the burden of proof.

There is no verbatim record of the prehearing conference so the precise statement complained of cannot be reconstructed. However, the main points of the prehearing conference were summarized by the presiding Administrative Judge who mentioned, inter alia, that the order of proceeding was discussed (Tr. 7). It was in that context, i.e., which party would put its evidence on first, that the comment was made to the effect that the normal practice is for Respondent, which has the ultimate burden to justify (or prove that adequate grounds existed for) the default termination, to proceed first. Under established rules of law, once Respondent has shown that the contractor has failed or refused to perform in accordance with the terms of the contract, the burden of going forward shifts to Appellant to present evidence of excusable causes. See, e.g., Bula Forge, Inc., PSBC No. 1490, 87-3 BCA ¶ 20,159; B & E Mail Transport, Inc., PSBCA Nos. 972, 973, 974, 82-2 BCA ¶ 15,965. A review of the Board’s decision does not reflect that it misapplied those rules. See B & E Mail Transport, Inc., PSBCA No. 947 (July 14, 1982); Hoyt Brothers Trucking, Inc., PSBCA No. 931 (June 24, 1981); Remco Hydraulics, Inc., ASBCA Nos. 17077, 17953, 74-2 BCA ¶ 10,732; Art Clemons, PSBCA No. 61, 73-2 BCA ¶ 10,289.

Claiming to have been misled by the comment pertaining to burden of proof, Appellant has requested, alternatively, that a rehearing be granted. Based on the foregoing, it cannot be concluded that Appellant, who was represented by counsel throughout these proceedings, was misled. Further, the record indicates that both parties were given a full opportunity to present evidence in support of their respective positions. Accordingly, we conclude that the arguments submitted in Point 10 of Appellant’s motion afford no bases for modifying our decision or for granting a rehearing.

Appellant in Points 1, 2, 6 and 7 criticizes the Board’s reliance on a document designated Appeal File (AF) Tab 44 to support Findings 13 and 14 of the decision. Appellant argues that AF Tab 44 does not portray actual route performance, citing testimony from various witnesses characterized as inconsistent with the information in Tab 44. The document in question is comprised of copies of the actual records kept to record on a daily basis the times, Appellant, along with the predecessor and successor contractors on the same route, commenced and completed their contractual duties. There was no contention that the times recorded thereon were inaccurate. Thus, in terms of the time for completion of the route, the information from those records would represent a more accurate portrayal of contract performance for the three contractors than general impressions of such performances given by witnesses. Furthermore, a reading of the various transcript references and other Appeal File documents provided by Appellant in the Motion for Reconsideration does not reveal significant inconsistencies with Tab 44.

Appellant characterizes Tab 44 as irrelevant and meaningless, apparently because it fails to reflect all the variables and conditions respecting contract performance of the route. It is true Tab 44 does not comprehensively summarize all the aspects of daily contract performance. However, the other factors as brought out in testimony of witnesses and other evidence were fully considered by the Board in its decision. We are not persuaded by Appellant’s arguments that the Board erroneously relied on Tab 44 of that Findings 13 and 14 are incorrect. We therefore reject Points 1, 6 and 7 of Appellant’s motion.

In Point 2 Appellant takes issue with the Board’s rejection of her impossibility argument as being improperly based on Tab 44 and testimony of the Georgetown Postmaster, which are said to be inconsistent. As indicated above, we have rejected the contentions that Tab 44 is irrelevant, or that the testimony reflected any significant inconsistencies. The record, including Tab 44, contains probative evidence that other contractors before and after Appellant were able to complete the route within the scheduled time. Successful performance of virtually identical contract services by other contractors is persuasive evidence that impossibility has not been established. Cf. Smith Movers, Inc., PSBCA No. 884 (July 16, 1981); Continental Rubber Works, ASBCA No. 22447, 80-2 BCA ¶ 14,754.

We are similarly not persuaded that Respondent’s subsequent splitting of the route mentioned in Points 2 and 9 of Appellant’s motion compels a conclusion that the route was impossible to perform. This issue was fully considered and discussed in the Board’s decision and Appellant in the motion has raised no arguments not previously considered.

Appellant asserts the Board failed to consider her arguments concerning the alleged misrepresentations of Respondent that the route could be performed with a single vehicle/driver within the prescribed time. This contention was fully considered and rejected in the Board’s decision. The record establishes that Appellant was on notice that previous contractors on the route had used helpers on heavy volume days and that she also had planned on the use of helper. In light of this, Appellant’s contention that a single driver/vehicle test be used for determining impossibility is unfounded. Accordingly, Point 8 of Appellant’s motion is rejected.

In Point 5 of her motion Appellant argues that the evidence does not support the Board’s finding that Appellant was aware that additional drivers/helpers were utilized by previous contractors. We cannot agree, especially in view of Appellant’s admission of the fact. Further, in addition to Appellant’s personal knowledge, she had been apprised by Respondent that the route was long and difficult and, after receipt of her bid, had ben notified by Respondent that it appeared she had in her bid estimated understated the number of hours and the fuel costs.

Replying to Respondent’s request to confirm her bid, Appellant increased her estimated number of annual hours to 2,702, the number shown in the solicitation, which, when divided by the number of days per year that contract services were required, yielded an average of 8.91 hours daily. Appellant also increased the fuel costs in her revised bid estimate. Despite her knowledge that the other bids received were substantially higher, and a notification from Respondent that a bid based on an estimate of eight ours per day was erroneous, Appellant elected not to change her bid price. Instead, she decreased the hourly compensation by $1 per hour so that the total amount of her bid would be unchanged and not jeopardize her eligibility for the award. In submitting her revised estimate, Appellant wrote assurances that she would be able to perform the contract at the amount originally bid.

In Points 3 and 4 of the motion Appellant takes issue with the Board’s findings concerning her bid confirmation and the Board’s conclusion that Appellant had made a judgmental error in her bid. Here again, the evidence is consistent with the Board’s findings and conclusions. We are not persuaded of the contrary interpretations put forward by Appellant which involve strained readings of the evidence and igore much of the pre-award knowledge and conduct of Appellant.

The decision having been reconsidered is affirmed in all respects. The Motion for Rehearing is denied.

James E. Lemert

Administrative Judge

Board Member

I concur:

James A. Cohen

Administrative Judge

Chairman

I concur:

James D. Finn, Jr.

Administrative Judge

Vice Chairman