__________________________ DENIED: December 10, 1997 ___________________________ GSBCA 13887 CWI CONSULTANTS & SERVICES, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Van Clayton Lockwood of CWI Consultants & Services, Decatur, GA, appearing for Appellant. Robert C. Smith, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), PARKER, and NEILL. PARKER, Board Judge. CWI Consultants & Services has appealed the decision of the General Services Administration (GSA) terminating for default CWI's contract to provide janitorial services. The parties have requested that the Board decide the appeal based upon the written record. For the reasons discussed below, we deny the appeal. Findings of Fact On April 1, 1996, CWI was awarded a contract to provide janitorial services at the United States Secret Service Command Post in Plains, Georgia. The initial one-year term commenced on May 1. Appeal File, Exhibits 1, 3. The contract required appellant to perform various cleaning services throughout the building and grounds, including daily cleaning of fixtures and floors in the restrooms; replenishment of restroom supplies such as soap and toilet paper; trash collection; and sweeping, mopping, vacuuming and dusting. Appeal File, Exhibit 1, at 112-17. CWI failed to show up to perform its contractual duties on September 24-26, 1996. On September 27, based upon CWI's alleged abandonment of the contract, GSA terminated the contract for default. Appeal File, Exhibit 8. Although the record is sparse concerning the reasons for CWI's failure to report for work on September 24-26, there are two documents which hint at an explanation. On July 15, 1996, GSA's contracting officer sent to another GSA employee the following E-mail message: The Macon, GA janitorial contract [a different contract held by CWI] has been terminated for default. There were deductions for the month of June in the amount of $3,725.04. Apparently, the contractor has been paid for the month of June and this amount cannot be retrieved. Therefore, I am requesting that these deductions be deducted from the Plains, GA project. Appeal File, Exhibit 4. On September 4, 1996, CWI wrote to GSA the following letter: Please be advised that CWI has not received payment for the United States Secret Service Office in Plains, Georgia. Keep in mind, we have workers working there and we are providing a service and supplies. There is no reason why we should have not been paid since June of 1996. Your failing efforts to not pay will or may result in a premeditated breach of agreement or default. I have advised you of this before August 30, 1996. If you are deliberately holding my money to create a default, you may be successful. This letter is to make you responsible before default or subsequent lawsuits to follow to collect the balance to include all the option years in it. If you have the ability to help shoulder responsibility, please do so ASAP! Services may terminate at anytime, unless you pay us. It is now, September, we are still working. We are a small company. Some years are better than others, but we are very competent and would like to thank you for your supporting efforts to help carry your expenses on GS-04P-96-EWC-0011. Appeal File, Exhibit 5. There is nothing in the record that shows whether any amounts were actually deducted from contract payments to satisfy an indebtedness on another contract or, if so, how much. Discussion Appellant maintains that the termination for default of appellant's contract was improper because (1) GSA was involved in a conspiracy with one of appellant's former employees to undermine appellant's performance of the contract, (2) GSA never paid appellant for work performed, and (3) GSA never sent appellant a notice giving appellant an opportunity to cure its deficient performance. With regard to the first contention -- that GSA conspired to undermine appellant -- we see nothing in the record to support such a charge. Although GSA did ultimately retain one of appellant's former employees to clean the building, appellant has not shown the existence of any bad faith or improper motive for these actions. There simply is no evidence that GSA conspired with anyone to undermine appellant's performance of the contract. Appellant's second argument for overturning the termination for default -- that GSA did not pay appellant for work performed -- also fails for lack of proof. It is undisputed that appellant failed to show up for work on three consecutive days. Even assuming that some money was withheld to satisfy an indebtedness on another contract, a fact which is suggested but not proved by an internal GSA E-mail message and appellant's letter to the contracting officer, appellant has not shown how much was withheld, that the withholding was unjustified, or even that the withholding was the cause of appellant's failure to perform its contract.[foot #] 1 Without proof of a legally sufficient excuse, appellant cannot overcome GSA's clear showing that appellant failed to perform as required by the contract. Finally, with respect to appellant's third contention -- that it was improper for GSA to terminate the contract for default without first sending a notice giving appellant ten days to cure its deficient performance -- we agree with GSA that neither the contract nor broader principles of law require that a cure notice be sent in these circumstances. Appellant's contract contained the following language: ----------- FOOTNOTE BEGINS --------- [foot #] 1 It is difficult to understand how GSA's withholding of $3,725.04, the amount mentioned in the GSA E-mail message, would render appellant unable to perform its contract. There is no evidence in the record to support the statement in appellant's September 4 letter to the contracting officer that appellant had not been paid "since June of 1996." ----------- FOOTNOTE ENDS ----------- (a)(1) The Government may . . . 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) below); or (iii)Perform any of the other provisions of this contract (but see subparagraph (a)(2) below). (2)The Government's right to terminate this contract under subdivisions (1)(ii) and (1)(iii) above, may be exercised if the Contractor does not cure such failure within 10 days (or more if authorized by the Contracting Officer) after receipt of the notice from the Contracting Officer specifying the failure. Appeal File, Exhibit 1 at 74. In simple terms, this language means that, although the Government is required to send a cure notice in certain circumstances, it does not have to send one where the contractor fails to perform the services required by the contract within the time specified. Such an arrangement is not prohibited by any principle of general law. See Gossette Contract Furnishers, GSBCA 6758, 83-2 BCA 16,590. CWI's contract provided an extensive schedule of janitorial services which were required to be performed daily -- important services such as cleaning the bathrooms and other areas, emptying the trash, and replenishing soap, toilet paper, etc. When appellant failed to show up for work during the period September 24-26, appellant failed to perform required services within the time specified in the contract. Thus, the conditions specified in the contract for terminating the contract without first sending a cure notice were satisfied. Decision The appeal is DENIED. ________________________ ROBERT W. PARKER Board Judge We concur: ________________________ ________________________ STEPHEN M. DANIELS EDWIN B. NEILL Board Judge Board Judge