November 6, 1998
Appeal of
THE GENERAL STORE
Under Contract No. 059991-92-P-0081
PSBCA No. 3951
APPEARANCE FOR APPELLANT:
Thomas M. Witte, Esq.
APPEARANCE FOR RESPONDENT:
Elena V. Alejandre, Esq.
OPINION OF THE BOARD ON MOTION FOR RECONSIDERATION
Appellant operated a postal station under contract to Respondent. After a substantial shortage was discovered in the accounts of the station, the contracting officer demanded repayment of the shortage and eventually terminated the contract. Appellant’s appeal of both actions was denied by the Board, The General Store, PSBCA No. 3951, 98-1 BCA ¶ 29,573, and Appellant has filed a timely motion for reconsideration of the Board’s Opinion. The facts of this appeal are set forth in the Board’s decision and will not be repeated here.
In its motion, Appellant contends that the Board erred in relying on Appellant’s daily accounting records as evidence of the amount of the shortage. Appellant argues that Respondent was bound by the shipment records Respondent maintained and that the Board denied Appellant due process and ignored the Constitutional presumption of innocence by not requiring Respondent to prove the existence of a shortage with its own stamp shipment records.
While the presumption of innocence applies in a criminal context and not in this Board proceeding, we agree with Appellant that it was Respondent’s burden to prove that a shortage existed at Appellant’s contract station. We carefully examined the evidence regarding the amount of stamps Appellant received and concluded that the daily accounting records (known as the 1412s) that Appellant’s employees prepared accurately reflected the amount of stamps that the contract station should have had on hand. The testimony of Respondent's witnesses persuaded us that its accounting officials reviewed the contract station’s 1412 report each day and promptly reconciled the station’s reports with contemporaneous stamp shipment records (and other records). This cross-checking confirmed that the amount of stamp stock listed as received on the station’s 1412 was correct and that the daily-adjusted running balance of the stock on hand was accurate.
Appellant argued that the station’s 1412s were unreliable and overstated the amount of stamps the station received. However, Appellant chose not to present any witnesses familiar with the operation of the contract station and completion of the daily 1412, and there is no basis in the record or in logic for concluding that Appellant’s employees routinely recorded receipt of more stamps on the 1412 than the station actually received. Moreover, the computer-generated summary stamp shipment document Appellant urged us to rely on carried its own disclaimer indicating that certain (undefined in the record) stamp shipments were not included on the summary, and it was not otherwise shown to be a complete record of stamp shipments to Appellant’s contract station.
Appellant contends that the Board allowed Respondent to refuse to provide access to the daily stamp shipment records that Respondent’s officials testified to using to corroborate the entries on the contract station’s accounting statement. The Board ordered Respondent to disclose documents related to Appellant’s contract, and Respondent did provide copies of certain documents. The daily stock shipment records were apparently not among the documents disclosed, but Appellant made no further requests of the Board to compel disclosure or to allow further discovery to ascertain the whereabouts or disposition of such records. The Board would not condone a party’s refusal to disclose documents covered by a Board order, but it is up to the requesting party to bring any such refusal to the Board’s attention and seek redress.
Appellant also complains that the documents that were provided to it were delivered only a few weeks before the scheduled hearing, suggesting that it was disadvantaged by late disclosure. However, Appellant did not request a postponement of the hearing or other relief to allow it to review the documents in depth and, if necessary, to conduct depositions or other discovery to ascertain the import and any limitations of the documents before the hearing. If it believed the timing of the disclosure prejudiced its ability to present its case at the scheduled hearing, Appellant should have sought the Board’s intervention before the hearing.
The arguments Appellant makes in this motion for reconsideration were previously raised and fully considered in the Board’s decision and, thus, do not provide a basis for reconsideration. See Patricia J. Stevens, PSBCA No. 3272, 94-2 BCA ¶ 26,951; F.C.F. Company, PSBCA No. 1353, 87-1 BCA ¶ 19,522. Nevertheless, having considered the matters raised in Appellant’s motion for reconsideration, the Board affirms its Opinion.
The motion for reconsideration is denied.
Norman D. Menegat
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
David I. Brochstein
Administrative Judge
Vice Chairman