February 7, 2001
Appeal of
M.E.S., INC.
Under Contract No. 332495-98-B-0307
PSBCA No. 4462
APPEARANCE FOR APPELLANT:
Timothy A. Sullivan, Esq.
APPEARANCE FOR RESPONDENT:
Daniel Gimmy, Esq.
OPINION OF THE BOARD ON MOTION FOR SUMMARY JUDGMENT
Appellant, M.E.S., Inc., has filed a motion for summary judgment in which it argues that the default termination of its contract was invalid because Respondent’s contracting officer exceeded his authority in terminating the subject contract for default. Respondent opposes the motion. The following findings of fact are made for the purpose of deciding this motion.
1. On August 14, 1998, Respondent, United States Postal Service, awarded Contract No. 332495-98-B-0307 to Appellant, in the amount of $3,954,000, for the construction of a post office in Riverhead, New York (Exhibit 1 to Motion for Summary Judgment (“Exhibit 1”)).
2. By final decision dated June 2, 1999, Respondent’s contracting officer terminated the contract for default (Exhibit 2).
3. U.S.P.S. Purchasing Manual, Section 1.1.1.b.4. provides:
“The policies and procedures established by the PM are intended to further the objectives expressed herein, but are not intended, and should not be construed, to create any right or benefit, substantive or procedural, enforceable by a party against the Postal Service or United States, or their officers or employees, except to the extent expressly provided within the PM.”
4. In addition, Section 6.9.1.b, Review and Approval, specifies, in pertinent part:
“No contract priced at or with a potential termination liability exceeding $1 million may be terminated for convenience or default unless the VP, P&M [Vice President, Purchasing and Materials], has approved termination. In addition, no contract, regardless of price, which is considered sensitive or highly visible may be terminated for convenience or default unless the VP, P&M, has approved termination.”
5. As of June 2, 1999, Respondent’s contracting officer had not received the approval of the VP, P&M to terminate the contract. However, the VP, P&M approved the decision to terminate the contract for default on November 7, 1999. (Exhibit 4).
DECISION
Summary judgment is appropriate when the material facts are not in dispute and the moving party is entitled to judgment as a matter of law. Monroe Construction Corp., PSBCA No. 1518, 86-3 BCA ¶ 19,274.
In its motion, Appellant argues that the decision of the contracting officer to terminate the subject contract was not authorized in accordance with Postal Service regulations and was, therefore, invalid. Appellant further argues that this unauthorized action cannot be ratified afterwards (citing Timberland Paving and Construction Co. v. United States, 8 Cl. Ct. 653 (1985) for this proposition). Accordingly, Appellant argues that the default termination should be converted to a termination for convenience. Respondent argues that the procurement regulations of the Postal Service are promulgated for the benefit of the Postal Service and that Appellant does not gain a cause of action when Postal Service officials fail to follow their own regulations. Respondent further argues that, to the extent the action of the contracting officer was invalid at the time it was taken, this was cured when the VP, P&M ratified the contracting officer’s decision on November 7, 1999.
We agree with Respondent. We need not decide the effect of Section 6.9.1.b on the authority of the contracting officer to terminate the contract because it is clear from the record that the decision was subsequently ratified by proper authority (Finding of Fact No. (FOF) 5). See John E. Cowles, PSBCA No. 184, 1976 PSBCA LEXIS 25 (August 23, 1976). Appellant’s reliance on Timberland Paving and Construction Co. v. United States, supra, for the proposition that an unauthorized termination for default may not be subsequently ratified is inapposite since the Claims Court therein found that defendant had failed to prove that a ratification had even occurred.
Appellant has failed to demonstrate that it is entitled to judgment as a matter of law. Accordingly, Appellant’s motion for summary judgment 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