June 11, 1996
Appeal of
SWEARINGEN SERVICES, INC.
Under Contract No. 475630-94-P-1449
PSBCA No. 3793
APPEARANCE FOR APPELLANT:
Tracy T. Swearingen, Sr.
APPEARANCE FOR RESPONDENT:
Glenn L. Smith, Esq.
OPINION OF THE BOARD
Appellant, Swearingen Services, Inc., has timely appealed a Contracting Officer’s decision terminating its cleaning services contract with Respondent, United States Postal Service. A hearing was held at Appellant’s request in Atlanta, Georgia.
Findings of Fact
1. On April 21, 1994, Appellant was awarded contract no. 475630-94-P-1449 to perform cleaning services at Respondent’s Windy Hill Branch in Marietta, Georgia. The contract term was for two years at an annual price of $11,271. (Appeal File, Tab (“AF-") 1).
2. The “Scope of Work” clause of the contract provided, “The cleaning and policing of the facility must be to acceptable standards and must be performed in accordance with” the contract’s specifications. The specifications described the specific tasks to be performed when cleaning each of the identified areas at the facility, including the restrooms, lunch/swing rooms, locker rooms, workrooms, office spaces, storage areas, service/box lobby, etc., and stated the frequency (daily, weekly, monthly or bi-monthly) that each area was to be cleaned. (Id., Contract Section B and Attachments 1 and 2).
3. The contract contained the following “Termination On Notice” provision in its schedule:
This contract may be terminated, in whole or in part, by either party upon 30 days written notice. In the event of such termination, neither party will be liable for any costs, except for payment in accordance with the payment provisions of the contract for the actual services rendered prior to the effective date of the termination. When, in the contracting officer’s judgment, the interests of the Postal Service require such action, the contract may be terminated by the contracting officer, giving the contractor one day’s notice in writing. (Id., Contract Paragraph G.7).
4. By letter dated November 17, 1994, the contracting officer notified Appellant that the cleaning services at Windy Hill Branch were not being performed according to the requirements of the contract. The letter detailed Appellant’s failure to meet the stated frequency requirements for the cleaning services as well as a failure to perform the services satisfactorily in accordance with the standards of the contract specifications. The contracting officer noted that the deficiencies had been discussed with Appellant on a number of occasions by the station manager, and concluded, “If performance on this contract is not brought up to acceptable standards by December 5, 1994, your contract will be subject to termination.” (AF‑33).
5. Appellant responded to the Contracting Officer’s letter on November 21, 1994, taking the position that the allegations of poor performance were false and that Appellant was being blatantly harassed (AF-35).
6. On November 29, 1994, the contracting officer replied to Appellant’s November 21 letter, confirming that Appellant was not meeting the contract requirements. He reminded Appellant that the contract would be subject to termination if performance was not brought to an acceptable standard by December 5, 1994. (AF‑36).
7. The record establishes that Appellant’s performance under the contract was unsatisfactory and of an extremely poor quality. (Transcript pages (“Tr.”) 59, 71, 94, 112-114, 116-119, 162, 205, 336, 378, 382-385; AF-24, 40-44). On January 5, 1995, the conditions at the facility were below the standards required by the contract. Photographs taken that date reflect that Appellant had not performed according to the requirements set forth in the contract’s specifications, and many of the deficient conditions were the same as those shown in photographs taken December 19, 1994. The condition of the walls, floors, restroom fixtures and carpets shown in the photographs demonstrates that Appellant had failed, by a wide margin, to meet the cleaning standards of the contract, and that unsightly conditions that demonstrated a failure to meet the requirements of the contract specifications existed at the facility and had since at least December 19, 1994, without correction. (Tr. 120-128; AF-41, 46).
8. By letter dated January 5, 1994, the contracting officer terminated Appellant’s contract on one day’s notice pursuant to the “Termination On Notice” provision of the contract. Appellant was advised that it had not improved the service deficiencies outlined in the November 17, 1994 letter.[1] This appeal followed (AF-47).
Decision
The contract was properly terminated. As in Gayle E. Purnell, PSBCA No. 2250, 89-1 BCA ¶ 21,300, there is ample and sufficient support for a conclusion that the Contracting Officer acted reasonably in terminating Appellant under the one-day provision of the contract. On November 17 and 29, 1994, Appellant was given written notice of the deficiencies in contract performance, a reasonable period of time to correct the service deficiencies and an unmistakable warning that the contract was subject to termination if Appellant did not correct the deficiencies. Appellant failed to do so. The conditions that existed at the facility on January 5, 1995, demonstrate unmistakably that Appellant had not met the requirements of the contract.
The contract authorizes the Contracting Officer to terminate the contract on one-day’s notice when “the interests of the Postal Service require such action.” In this instance, considering the quality of the cleaning services and the ample opportunities given to Appellant to improve that quality, and its failure to do so, termination under the one-day notice provision was in the interest of the Postal Service. Thus, the Contracting Officer properly exercised his discretion to terminate the contract.
The appeal is denied.
James D. Finn, Jr.
Administrative Judge
Vice Chairman
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
Norman D. Menegat
Administrative Judge
Board Member
[1] The decision also relied upon Appellant’s failure to comply with the Contracting Officer’s direction in unilateral modification no. 2 of the contract, which changed the contractor’s hours of performance. The contracting officer denied Appellant’s claim for additional compensation due to modification no. 2, and we denied the ensuing appeal for Appellant’s lack of proof of compensable costs. Swearingen Services, Inc., PSBCA No. 3715, July 13, 1995. Whether the issuance of modification no. 2 constituted a change in contract requirements was not addressed. In view of our decision on the cleaning deficiencies, Appellant’s compliance (or lack of compliance) with modification no. 2 need not be considered further.