February 27, 1997

Appeal of

HUBBARD TRUCKING, INC.

Under Contract No. HCR 67020

PSBCA No. 3701

APPEARANCE FOR APPELLANT:

John A. Berman, Esq.

APPEARANCE FOR RESPONDENT:

Cary L. Katznelson, Esq.

OPINION OF THE BOARD ON MOTION FOR RECONSIDERATION

Appellant has filed a motion seeking reconsideration of the Board’s Opinion denying the appeal of Hubbard Trucking, Inc., PSBCA No. 3701 (November 18, 1996). 

In the Board’s Opinion, we upheld the decision of the contracting officer to terminate for default Appellant’s highway transportation contract and to assess against Appellant excess reprocurement costs.  Appellant’s motion challenges that decision and asserts that the Board ignored evidence which was submitted by Appellant which justified Appellant’s decision to repudiate its contract obligations.  Appellant argues that our “Finding of Fact 8 requires revision to follow the requirements of 39 C.F.R. §955.14 and basic due process” because it fails to make a finding related to the substance of the February 24, 1994 conversation between Mr. Hubbard and the contracting officer.

Under 39 C.F.R. 955.14(c), “[t]he weight to be attached to any evidence of record will rest within the sound discretion of the Board.”  In exercising that discretion with respect to the February 24 conversation, we considered such factors as Mr. Hubbard’s notes; the lack of any recollection by the contracting officer of the conversation; the contracting officer’s declaration about what would have been his normal practice with regard to a suggestion of a novation made over the telephone -- i.e., tell the party to put it in writing; and the question of whether Mr. Hubbard even had any discussions with Messrs. Cravens and Meyers prior to speaking with the contracting officer about the novation (a question raised by discrepancies in dates between Mr. Hubbard’s notes and the declarations of Messrs. Cravens and Meyers); and concluded that the evidence was not sufficient for us to make any finding as to the substance of that conversation.

Moreover, even if the conversation took place as Appellant recollects, it would not have excused Appellant’s subsequent abandonment of performance.  There is no provision in Appellant’s contract granting a right to transfer or novate the contract to another party or entity.  The granting of a novation or transfer of Appellant’s contract is generally prohibited, and if granted, is done at the discretion of the contracting officer.  See generally, Triple B. Trucking, PSBCA No. 2939, 92-1 BCA ¶ 24,506; Ateron Corporation, ASBCA No. 46352, 94-3 BCA 27,229 at 135,693.  Appellant’s recollection of the telephone conversation on February 24, 1994, does not establish an abuse of that discretion.  Having previously obtained a novation of its contract with Respondent, Appellant was well aware of the requirement that any request for transfer had to be made in writing.  If Appellant truly sought a novation of its contract it should have submitted in writing a complete novation agreement.  Appellant failed to do so. 

In summation, Appellant’s motion asks us to review the same evidence in the record and reach a different conclusion.  However, Appellant has failed to submit any previously unavailable or newly discovered evidence or shown any factual or legal errors which would warrant changing our decision.  See Montgomery-Ross-Fisher, PSBCA No. 1096, 84-1 BCA ¶ 17,607.  Appellant’s unequivocal repudiation of its contract obligations and its ceasing of contract performance justified the contracting officer’s decision to terminate Appellant’s contract for default.  Appellant offered no acceptable excuse for its repudiation and breach. 

Accordingly, the motion for reconsideration is denied.

William K. Mahn

Administrative Judge

Board Member

I concur:

James A. Cohen

Administrative Judge

Chairman

I concur:

David I. Brochstein

Administrative Judge

Vice Chairman