_________________________________ DENIED: January 23, 1997 _________________________________ GSBCA 13462-TD CARDIOMETRIX, Appellant, v. DEPARTMENT OF THE TREASURY, Respondent. Edward J. Hoffman of Blank, Rome, Comisky & McCauley, Philadelphia, PA, counsel for Appellant. James E. Dumerer, Department of the Treasury, Internal Revenue Service, Office of Regional Counsel, Dallas, TX, counsel for Respondent. Before Board Judges DANIELS (Chairman), NEILL, and VERGILIO. VERGILIO, Board Judge. On October 31, 1995, the Board received this appeal from CardioMetrix contesting the termination for default issued by the respondent, the Department of the Treasury, Internal Revenue Service. Under the contract CardioMetrix was to provide on-site physician services. The agency terminated the contract on its thirty-eighth day. The contractor had failed to provide its designated primary, on- site physician. The contractor had provided one of its designated substitute physicians for all but one of the first seventeen days, but not thereafter. It did not provide that physician or the subsequent substitute in accordance with the terms of the solicitation and contract. Further, the contractor failed to propose an acceptable primary, on-site physician prior to the termination. Moreover, the contractor obtained the contract on the pretense that the three physicians it designated in its proposal would be employees of the contractor for the period of contract performance. However, the contractor lacked a basis to make such a commitment in its proposal. It had reached no understanding with any of the physicians; none of the three was an employee of the contractor at any time (prior or subsequent to the award). The record supports the agency default determination. The contractor failed to provide services as required under the contract and further failed to demonstrate how it satisfactorily would meet its obligations of performance. The contractor has not demonstrated that its failures were excusable. Accordingly, the Board denies the appeal. Findings of Fact 1. Under a cover letter dated April 4, 1995, the agency issued a request for proposals, seeking price and technical proposals for on-site physician services at two of its centers in Texas. Exhibit 1. The solicitation notes that the anticipated contract would be effective from July 1 through September 30, 1995; option periods would cover successive fiscal years (October 1 through September 30), with the total contract period not to exceed sixty months. Id. at 1 ( B.2). 2. The solicitation states that the agency requires the capabilities of a licensed physician, Exhibit 1 at 3 ( C.1.2), and details the services the contractor is to provide. Id. at 3-6 ( C.2). The solicitation requires the contractor to maintain medical liability insurance; each offeror is to confirm the required coverage with its proposal, and to provide a certificate of insurance evidencing the required coverage upon award, prior to the commencement of services. Additionally, with respect to any subcontractors, the contractor "shall require such subcontractors to provide evidence of and maintain insurance" of at least $200,000 per occurrence; at least five days before commencement of work by any subcontractor, the contractor "shall furnish to the Contracting Officer evidence of such insurance." Id. at 7 ( C.3); Exhibits 2, 3 ( I.7, Indemnification and Medical Liability Insurance). 3. The solicitation identifies "contractor qualifications" in terms of provider experience and past performance, and key personnel. It specifies two key positions, the on-site physician and the project manager. Exhibit 1 at 7-8 ( C.4). Of the former, it states: The on-site physician shall be a licensed Doctor of Medicine (M.D.) or Doctor of Osteopathic Medicine (D.O.). Due to the strong emphasis placed on occupational medicine, the physician shall also be board certified or eligible for board certification in the field of Occupational Medicine, or shall have experience as a hands-on provider of occupational health services and/or programs. A resume of the proposed on-site physician who shall commit to services under this contract shall be provided with the proposal. The physician's resume shall list as a minimum the physician's educational background; current degrees, licenses, and certificates; summaries of relevant projects with dates and client references; a listing and description of any recent published papers; and description of current professional activities. Because the doctor-patient relationship is key to patient compliance with proper health practices, and due to the importance of continuity-of-care, offerors shall provide only one physician to fulfill the requirements of this contract. Any substitute or alternate physicians shall be provided only in accordance with paragraph C.[5](1), Absences and Substitutions. Id. at 7-8 ( C.4.2.1) (emphasis added). 4. The above-referenced Absences and Substitutions clause states: The on-site physician may request absences of up to two days with notification and approval of the COTR [contracting officer's technical representative] at least 15 days in advance of the planned absence. Notification of illness or emergency which precludes the physician from reporting for duty shall be provided to the COTR as soon as possible after the physician becomes aware of the illness or emergency, but no later than one (1) hour before the regularly scheduled hours of work. In instances of absences of three or more days, whether due to illness, emergency, or prearranged time off, the contractor shall provide for the services of an acceptable substitute physician. The use and suitability of all substitute personnel shall be approved in advance by the Contracting Officer. Procedures for requesting the use of substitute personnel shall be in accordance with the requirements of Section H.6 of this contract. Exhibit 1 at 8 ( C.5(1)). 5. The above-referenced requirements of section H.6 are part of the solicitation's section designated "special contract requirements." The provision states: REQUIREMENTS FOR KEY PERSONNEL (a) The contractor shall utilize the key personnel set forth in his/her proposal for performance of this contract. In the event that one or more of the key personnel become unavailable, the contractor shall furnish substitute personnel of equal skills. (b) All requests for personnel substitutions shall be submitted to the Contracting Officer, in writing, at least 15 calendar days in advance of the proposed substitutions. Requests shall include a brief synopsis of the individual(s)' applicable experience and suitability for the job; complete resume(s), licenses, and evidence of insurance coverage; and proposed dates of service. The qualifications of substitute personnel shall be equal to or greater than the qualifications of the key personnel to be replaced. The Contracting Officer will review the credentials of all proposed substitutes and promptly accept or reject the requests in writing. The contractor shall not utilize the services of substitute personnel at any time prior to receiving written authorization from the Contracting Officer. Exhibit 1 at 21 ( H.6). 6. The solicitation requires offerors, in one section of proposals, to fully describe the educational background and related professional experience of the proposed on-site physician. Minimum ma[n]datory requirements for this position are provided in Sections C.4.2. and M.2.1. Additional consideration will be given for individuals experienced with medical programs of a similar size and complexity as well as for specialized training and formal education above the minimum levels. Offerors shall provide the on-site physician's resume and other required credentials in this section. Exhibit 1 at 57 ( L.5.1). 7. The solicitation dictates that proposals will be evaluated based upon two equally important factors--technical and price. The first technical subfactor--significantly more important than the other three--is titled qualifications and experience of on-site physician. Exhibit 1 at 61-62 ( M.2, M.2.1). The agency commits to making the award to the responsible offeror whose proposal conforms to the solicitation and is most advantageous to the Government, total price and technical factors considered. Id. at 62 ( M.3). 8. The solicitation contains a default clause from the Federal Acquisition Regulation (FAR), 48 CFR 52.249-8 (APR 1984), which is quoted in the discussion portion of this opinion. Exhibit 1 at 23 ( I.1). CardioMetrix' proposal and award 9. CardioMetrix proposed Dr. R as the primary, on-site physician and designated Drs. M and P as back-up physicians. Exhibit 5 at 29 (references to physicians are so abbreviated throughout the opinion; quotations are so altered without further notation). The credentials for the three physicians, submitted with the initial proposal, indicate that none of the three then worked for CardioMetrix. Id., Attachments 3 and 4, at 44, 51, 56. However, in its technical proposal, CardioMetrix expressly commits to providing Dr. R: "Our designated primary physician for this program, Dr. R, will provide direct on-site physician services . . . ." Exhibit 5 at 26. 10. Following receipt and review of initial proposals, the agency engaged in written discussions. To CardioMetrix, the agency addressed questions in three categories, the first related to the proposed on-site physician, Dr. R. Exhibit 6. CardioMetrix provided a response to each item. Exhibit 7. In response to a request to "include an explanation of CardioMetrix' relationship with the proposed physicians for this project, indicating whether they are subcontractors or directly employed by CardioMetrix," it represented, in part: "All proposed physicians for the subject activity (Drs. R, P, and M) will be employees of CardioMetrix during the anticipated period of performance." Exhibit 6 at 2 ( 2); Exhibit 7 at 3 ( 2). 11. After the agency received best and final offers, it relied on the specific responses to questions and made a selection determination. Agency Exhibit F at 2-3 ( 6-8). It telephoned CardioMetrix, on June 28, to advise of the contract award and planned formal award date, and to establish a start date for Dr. R. Exhibit 9. CardioMetrix responded during the call that it is unable to contact the vacationing Dr. R, but that the approved substitute physician, Dr. M, is available to start July 5. Id. By letter to the agency dated June 29, CardioMetrix confirmed the start date and stated, "one of our proposed substitute physicians, Dr. M, will function as the initial on-site physician for the subject contract until a firm start date and schedule can be established with the primary designated provider, Dr. R." Exhibit 10. 12. The agency accepted the CardioMetrix offer and prescribed an award date of June 30 and start date of July 5. Exhibit 13. Certain provisions in section H (special contract requirements) of the contract are not expressly found in the solicitation, such as a "key personnel" paragraph: The key personnel cited below are considered essential to the work being performed under this contract. If these individuals leave the Contractor's employ or are reassigned to other programs, the Contractor shall notify the Contracting Officer reasonably in advance and shall submit justification (including proposed substitutions) in sufficient detail to permit evaluation of the impact on the program. No diversion or replacement shall be made by the Contractor without the written consent of the Contracting Officer. Id. at 21 ( H.5). The paragraph then identifies Robert J. Loring, Ph.D, as the Project Manager, and Dr. R. as the on-site physician. Id. The language is fully consistent with language in the solicitation, Findings 3-7, and the CardioMetrix proposal. Paragraph H.6 of the solicitation, Finding 5, became paragraph H.9 of the contract. Exhibit 13 at 23. Performance 13. Beginning on July 5, Dr. M performed as a substitute physician. Exhibits 14 (July 7 entry), 35 at 3-4. 14. On July 7, the agency contacted CardioMetrix to check on the status of the start date of the primary, on-site physician, Dr. R. Cardiometrix responded that it lacked a confirmed date for Dr. R and that Dr. M will continue to perform. Exhibit 11. 15. Having been told by Dr. M that, absent an increased rate of pay from CardioMetrix, he would not renew his contract to perform beyond July 21, the agency, by letter dated July 20, sought from CardioMetrix the official start date of the designated primary physician, Dr. R. The request expressed the agency's concern because the current substitute physician was said to be committed to work only through July 21, a Friday. Exhibits 16, 35. 16. On July 21, through a telephone conversation, CardioMetrix told the agency that Dr. R, the proposed primary physician, was unavailable to work on the contract--he had taken a job elsewhere, sometime prior to July 20. Exhibit 17. 17. CardioMetrix faxed a letter to the agency the same day, July 21, proposing a temporary, on-site physician, Dr. N, available to begin on July 24, Monday, and to continue until CardioMetrix is able to locate a permanent replacement for the designated primary physician. The submission does not indicate that Dr. N will perform as a subcontractor and contains no information on insurance. Exhibit 18. By letter of the same date, the agency responded to the CardioMetrix submission. The letter both states that the agency will approve the proposed physician upon provision of a current state physician permit and provides reporting instructions for July 24. Exhibit 19. The agency faxed to CardioMetrix this information (the conditional approval and reporting instructions for July 24). Exhibit 20. 18. Unrebutted in the record is a statement by the contracting officer that the agency (located in Texas, Central time) received the CardioMetrix facsimile naming Dr. N shortly after 4:00 pm (Eastern time). The agency faxed its response to CardioMetrix (in New Jersey) at approximately 5:15 (Eastern time), received at approximately 5:25 according to CardioMetrix. Exhibits 28 at 1-2 ( 1, 4), 31 at 2, 35 at 5. CardioMetrix maintains that its offices had closed at approximately 5:00, and that the Project Manager did not become aware of the existence of the document until Monday morning. Exhibit 28 at 1 ( 1). CardioMetrix had not informed the agency that it would close its offices at any particular time on July 21. Agency Exhibit D (Request for Admission 13 and Response). 19. On July 24, Dr. N did not show up for work. Exhibit 20. CardioMetrix provided no physician on that scheduled day of performance. Dr. N did perform on July 25 and thereafter. Show cause 20. The agency sent to CardioMetrix a letter dated July 24, containing a show cause notice, expressing concerns, and explaining that the agency seeks responses to particular questions as it contemplates default terminating the contract: The Government is particularly interested in your reasons for failure to notify the contract administrator as soon as you were made aware that Dr. R would not be available to perform as the permanent physician as offered in your technical proposal. We understand that you have been negotiating with Dr. M for some time for the purpose of securing his services as the permanent on-site physician in lieu of Dr. R. You are advised that even if such an agreement between you and Dr. M had been made, the Government would have had to review and approve this change. Dr. M as you know, was previously approved as a substitute only. After a recent reassessment of his credentials, the Government is of the opinion that Dr. M does not meet the criteria required of the permanent on- site physician who will actually develop and implement the Occupational Health Program. Acceptance of a physician for this position who does not have the stated qualifications would mean at the very least, renegotiation of contract price to reflect a lower cost for the Government. Secondly, we are in receipt of your letter dated Friday, July 21, 1995, stating that Dr. N is "....available to begin services at the Austin Compliance Service Centers effective Monday, July 24th." The Government's acceptance of this proposed substitute and commencement date was faxed to you prior to our close of business on Friday. Your subsequent phone message to [the COTR] explaining that Dr. N would not be available today because you did not think that the substitute would be approved so soon, does not support the statements made in your proposal and, is furthermore in direct opposition to statements made to the contract administrator . . . over the telephone on Friday, June 21, 1995. Exhibit 22. CardioMetrix responded by letter dated August 2, asserting an inability to furnish the exact date CardioMetrix became aware that Dr. R would not be available as the primary physician and detailing its efforts to obtain physicians. As to Dr. N's unavailability on June 24, CardioMetrix notes that its offices were closed when the facsimile was received and states: I do not think it is unreasonable under the circumstances, to be given an adequate amount of notice after physician approval, for a timely phase-in of services. In our view, transmitting a letter to CardioMetrix at 5:30 PM on a Friday and expecting a physician to report the following Monday morning at 9:00 AM is not adequate notice. Exhibit 28. 21. The agency informed CardioMetrix by letter dated July 28, that it had become aware that Dr. N, the then current, substitute on-site physician, is employed by a locum tenens physician staffing agency and not by CardioMetrix. The letter points out that the contract is based upon CardioMetrix' use of direct employees, and that subcontracting the on-site physician services is prohibited without prior notification to the contracting officer. Moreover, the contract specifies that subcontractors must maintain liability insurance and that the contract contains limitations on subcontracting. The letter requires CardioMetrix to provide proof of insurance for any subcontractor physician or proof that the physician is an employee of CardioMetrix. Exhibit 26. In response, CardioMetrix provided a certificate of insurance for Dr. N, which lists assignment dates as July 25 to August 4. Exhibit 27. 22. By letter, with attached credentials, to the agency dated August 3, CardioMetrix proposed Dr. J as the permanent, on-site physician. Exhibit 29. Based upon the submitted information, the agency was unable to conclude that Dr. J was an acceptable substitute for Dr. R. Exhibit 30. The proposed Dr. J practiced general surgery for twenty-nine years; Dr. J lacked the "broad, diversified experience in occupational medicine at many local organizations over the past 25 years" and the teaching experience of Dr. R highlighted in the proposal of CardioMetrix as directly relevant to performance and the evaluation and selection criteria. Exhibit 5, Attachment 3 at 44-46; Exhibit 7 at 1-2; Exhibit 29. Termination for default 23. The agency issued a termination for default, dated and effective August 11, 1995. In support of the determination, the notice enumerates four "omissions in performance of the contract": 1. Failure to provide the services of the key on-site physician set forth in Section H.5 of the contract; 2. Failure to notify the Contracting Officer reasonably in advance of the unavailability of the key on-site physician as required in Section H.5 of the contract; 3. Failure to provide an on-site physician to perform services on July 24, 1995, and failure to notify the Contracting Officer reasonably in advance of the proposed change in substitutes; 4. Failure to notify the Contracting Officer prior to commencement of work by a subcontractor, and to provide evidence of liability insurance coverage for the subcontractor as required by Section I.7(d) of the contract. Exhibit 32. Additional facts 24. The Chief Operating Officer of CardioMetrix, who was the designated program manager in the contract, states in an affidavit: Cardiometrix maintains on its data base the names, addresses and qualifications of approximately 17,000 physicians and health care professionals which are utilized in responding to the various requests for proposals. Because it would be prohibitively expensive, Cardiometrix does not enter into an employer-employee relationship with any of the individuals on its data base prior to receiving a contract. The particular solicitation requires that the individual be an employee of Cardiometrix during the course of contract performance. Cardiometrix completes the process of negotiations and enters into an employment contract after it receives notice of award from the governmental agencies. On rare occasions, final contract negotiations prove unsuccessful and [it] becomes necessary for Cardiometrix to provide a substitute individual for the individual identified in the solicitation. That is what occurred on [the contract in dispute] for on-site physician services for the Austin Service and Compliance Centers, Austin, Texas. Affidavit of Robert J. Loring ( 4). The affidavit notes that in response to a request for additional information during the formation stage of the procurement, CardioMetrix responded that "all proposed physicians for the subject activity (Drs. R, P, and M) will be employees of Cardiometrix during the anticipated period of performance." Moreover, Dr. Loring states that the solicitation does not require proposed physicians to be employees prior to the award of a contract. Id. ( 5, 7). 25. On July 25, a contract specialist requested that the internal security division of the agency conduct interviews with Drs. R, M, and P to ascertain if any had an agreement with CardioMetrix to provide services prior to CardioMetrix' submission of its proposal. Exhibit 35 at 6. Each physician supports the statements attributed to him in the reports. Agency Exhibit B. 26. Dr. R had responded to a newspaper advertisement in late April or early May 1995. The week prior to his departure for vacation on June 24, he was contacted by CardioMetrix with an offer of employment. Dr. R rejected the offer. On June 30, Dr. R returned a telephone call CardioMetrix had made during his vacation; Dr. R told CardioMetrix that he could not work for the money being offered. Although CardioMetrix maintains, without further support, that it had a commitment from Dr. R "subject only to negotiation of remuneration," Dr. R did not enter into an agreement to become an employee of CardioMetrix upon contract award. Exhibit 35, Attachment 1; Agency Exhibit D (Request for Admission 1 and Response). 27. None of the three physicians CardioMetrix identified in its proposal was an employee of CardioMetrix and none had entered into an agreement or made a commitment to become an employee of CardioMetrix if it received the contract. All three had responded to advertisements, and discussed the possibility of employment. At the time of award, none had obligated himself to a guaranteed position. Exhibit 35, Attachments 1-4. 28. An agreement between CardioMetrix and Dr. M, dated July 5, states that Dr. M "will act as an independent sub-contractor of CMX [CardioMetrix] for the term of the Agreement." Exhibit 36 at 2 ( 6). Further, "CMX will employ the service of Physician from approximately July 5, 1995 to July 21, 1995. In addition, CMX may elect to extend the services on a weekly basis for up to four (4) additional years." Id. ( 8). The agreement requires Dr. M to provide his own medical malpractice insurance coverage in the minimum amount of $100,000 per occurrence, not the $200,000 required by the solicitation, Finding 2, and contract, Exhibit 13 at 36 ( I.7). Exhibit 36 at 1 ( 4). The insurance policy utilized the minimum per occurrence amount of $100,000. Affidavit of Robert J. Loring, Attachment 1. CardioMetrix did not commit to retaining Dr. M beyond July 21; Dr. M did not commit to working for CardioMetrix beyond that date. Dr. M was not an employee of CardioMetrix during the contract period. Prior to the default, CardioMetrix did not inform the agency that Dr. M performed as a sub-contractor. Agency Exhibit D (Request for Admission 4, 5 and Responses). 29. Dr. N was not an employee of CardioMetrix during the contract period. CardioMetrix did not provide the agency with advance notice that Dr. N performed as a sub-contractor. Agency Exhibit D (Request for Admission 9, 11 and Responses). Discussion The termination for default provision of the contract specifies: (a)(1) The Government may, subject to paragraphs (c) and (d) of this clause [not here relevant], by written notice of default to the Contractor, terminate this contract in whole or in part if the Contractor fails to-- (i) Deliver the supplies or to perform the services within the time specified in this contract or any extension; (ii) Make progress, so as to endanger performance of this contract (but see subparagraph (a)(2) of this clause); or (iii) Perform any of the other provisions of this contract (but see subparagraph (a)(2) of this clause). (2) The Government's right to terminate this contract under subdivisions (a)(1)(ii) and (1)(iii) of this clause, may be exercised if the Contractor does not cure such failure within 10 days (or more if authorized in writing by the Contracting Officer) after receipt of the notice from the Contracting Officer specifying the failure. Finding 8 (FAR 52.249-8). The agency bears the burden of proof on the issue of default; the contractor bears the burden of proving the excusability of non- performance. DCX, Inc. v. Perry, 79 F.3d 132, 134 (Fed. Cir. 1996); Lisbon Contractors, Inc. v. United States, 828 F.2d 759 (Fed. Cir. 1987). The termination for default is supported on multiple grounds espoused by the agency. CardioMetrix did not perform services required under the contract. CardioMetrix clarified its proposal, and its contractual obligations, with the following commitment: "All proposed physicians for the subject activity (Drs. R, P, and M) will be employees of CardioMetrix during the anticipated period of performance." Finding 10. In fact, not one of the three was an employee of CardioMetrix during contract performance. Findings 26- 28. Moreover, CardioMetrix utilized physicians as subcontractors, in contravention of this explicit commitment, without explanation and without prior notification. Findings 28, 29. In addition to providing services of a physician, the contract obligated CardioMetrix to provide services of another nature-- timely giving notices of insurance coverage and of substitutions, and providing physicians with adequate insurance. CardioMetrix failed to satisfy some of these requirements. It failed with respect to notice of subcontracting relationships and evidence of insurance for Drs. M and N. Findings 2, 17, 21, 28, 29. CardioMetrix had Dr. M perform without sufficient insurance. Finding 28. Cardiometrix was obligated to provide an acceptable physician on July 24. Although its agreement with Dr. M expired on July 21, CardioMetrix did not submit the request for Dr. N at least fifteen calendar days in advance, as required by the contract, Finding 12. Finding 17. Nevertheless, the agency acted promptly in approving the application for a temporary substitute, received on July 21. The failure of CardioMetrix to become aware of the approval was not the fault of the agency. Unavailing is the attempt by CardioMetrix to shift the blame to the agency for replying after 5:00, but in less than ninety minutes after receipt of the facsimile proposing a substitute. A prudent contractor would have taken steps sooner to ensure that it could satisfy its contractual obligations and awaited a response. The record supports an additional basis, urged by the agency, to terminate for default this contract. The competition to award the underlying contract required offerors to propose and provide an on-site physician committed to provide services under the contract. Findings 3, 5. The qualifications and experience of the proposed on-site physician directly affected proposal evaluation and award. Findings 6, 7. Substitution required the contractor to provide particular notice and adhere to specified procedures. Findings 3, 4, 5. CardioMetrix competed for the award while benefitting from the qualifications of Drs. R, M, and P; it represented that all three would be CardioMetrix employees for the period of the contract. Finding 10. Not one of the three physicians made a commitment to become an employee of CardioMetrix, should it become the contractor. Findings 26, 27. Even Dr. M, who briefly performed under the contract, did so as a subcontractor, not as an employee. Finding 28. Dr. N also performed as a subcontractor, not as an employee. Finding 29. The practice of CardioMetrix in utilizing resumes, Finding 24, taken with the lack of commitments from any of the three physicians it specified as employees-to-be, and the in-fact subcontractor relationships between CardioMetrix and Drs. M and N, reveals that CardioMetrix engaged in an unacceptable procurement practice. CardioMetrix did not reasonably expect to fulfill the commitments it made in its proposal. When the agency learned of the situation--that CardioMetrix did not employ any of the physicians it obligated itself to employ for the contract period and that CardioMetrix lacked a reasonable basis to support its commitments in the proposal and contract--the award had been made and performance had begun. The default clause permits the agency to end the contract when the contractor is incapable of satisfying its commitments to provide services; the agency need not countenance such practice by an offeror/contractor. See Planning Research Corp. v. United States, 971 F.2d 736 (Fed. Cir. 1992); Daff v. United States, 78 F.3d 1566 (Fed. Cir. 1996). At the time of the termination for default, CardioMetrix proposed none of the three physicians designated in the contract as the permanent, on-site physician. Dr. J, the latest physician CardioMetrix had proposed, lacked skills at least equal to those of Dr. R. Findings 5, 22. Dr. N, who was performing, was doing so as a temporary substitute. On August 11, CardioMetrix had yet to propose an acceptable, permanent, on-site physician to fill the key position. The contract did not obligate the agency to wait any longer for CardioMetrix to satisfy a basic contract requirement, which recognizes that one physician is to fulfill the requirements as a key to doctor-patient relationships. Finding 3. Decision The Board DENIES the appeal. ______________________________ JOSEPH A. VERGILIO Board Judge We concur: ______________________________ ______________________________ STEPHEN M. DANIELS EDWIN B. NEILL Board Judge Board Judge