Board of Contract Appeals General Services Administration Washington, D.C. 20405 ___________________________________________________ MOTION FOR NEW HEARING DENIED: February 25, 2000 ___________________________________________________ GSBCA 14136-R ROWE INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Stanley V. Campbell, Jr., President of Rowe Inc., Fairfax Station, VA, appearing for Appellant. Michael J. Noble, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges PARKER, BORWICK, and DeGRAFF. DeGRAFF, Board Judge. On November 30, 1999, we issued our decision in this appeal, which arises out of the General Services Administration s (GSA's) decision to terminate the contract performance of Rowe Incorporated. Rowe's contract was to supply vans to GSA for use by the Immigration and Naturalization Service (INS). Rowe Inc. v. General Services Administration, GSBCA 14136 (Nov. 30, 1999). After an eight-day hearing and receipt of posthearing briefs, we denied the appeal because Rowe did not deliver within the time required by the contract, and did not establish either that the termination action was flawed or that GSA was responsible for delaying Rowe's performance. On January 5, 2000, Rowe filed a motion for a new hearing. We deny Rowe's motion because it was filed out of time. We also discuss why the motion lacks merit. Timeliness Rowe says that it received our decision on December 4, 1999. According to our rules of procedure, Rowe's motion for a new hearing was due within thirty days of that date, which meant that its motion for a new hearing was due not later than January 3, 2000. Rule 132.[foot #] 1 Rowe acknowledged this due date in a December 7, 1999 letter to the Board. Rowe's decision was filed two days out of time and this, alone, is sufficient reason to deny the motion. Even so, we address below the merits of the arguments set out in Rowe's motion. Newly discovered facts Rowe says that it has newly discovered facts to show that the contracting officer retired earlier than we thought when we issued our November 30, 1999 decision. Rowe's statement does not justify its request for a new hearing because Rowe never says what these new facts are and never explains why they could not have been discovered before now. Exhibit 597 Rowe says that a new hearing is warranted because we should have admitted Exhibit 597 into evidence sooner than we did. Exhibit 597 is a typewritten, unsigned, undated document titled, "Memorandum for the File." The author of the exhibit is not identified. On October 20, 1998, in the course of a prehearing conference, the presiding judge explained that the exhibit was not reliable evidence because we could not tell when it was written or who wrote it, and that the Board would not rely upon the exhibit as evidence in the appeal unless someone authenticated the exhibit at the hearing. Conference Memorandum (Oct. 21, 1998) at 3. Rowe made no effort during the presentation of its case to establish who authored Exhibit 597. At the very beginning of GSA's case, GSA stipulated that the author of the document was a GSA employee. Transcript at 1304. The Board then admitted the exhibit into evidence. Transcript at 1305. Rowe had the opportunity to cross-examine all of GSA's witnesses and to ask them questions about Exhibit 597. Rowe was also able to utilize the exhibit in its rebuttal case and in preparing its posthearing briefs. In neither of its briefs did Rowe complain about when Exhibit 597 was admitted into evidence. Instead, Rowe made that complaint only after it received the Board's decision. Our concern about the quality of evidence in our record was justified and we admitted the exhibit into evidence as soon as we could be reasonably assured of its reliability. Rowe has not established that the Board's ruling on this exhibit was erroneous or that the ruling would entitle Rowe to a new hearing. Hearing notes Rowe says that the Board improperly denied its motion to produce notes used by Government witnesses. At the beginning of ----------- FOOTNOTE BEGINS --------- [foot #] 1 48 CFR 6101.32 (1999). ----------- FOOTNOTE ENDS ----------- the second day of GSA's presentation of its case, Rowe filed a motion stating that it had "made note of government witnesses use of formally prepared writing notes to refresh memory prior to testifying." Appellant's Request for Government Witness Writing Notes. As of then, only two Government witnesses, Ms. McIntosh and Mr. Globerman, had testified.[foot #] 2 The witnesses did not refer to any written material when they testified, other than appeal file exhibits. Everyone in the hearing room saw Mr. Globerman enter the room and take the stand; he did not refer to any notes before he testified. Rowe's representative, Mr. Campbell, said that he saw Ms. McIntosh referring to some written material while she was seated next to GSA counsel waiting for the hearing to begin, and that this was the material he was referring to as hearing notes. GSA counsel represented that he was reviewing some regulations with Ms. McIntosh right before the hearing began. Rowe spent nearly one hour cross-examining Ms. McIntosh and never asked her any questions about what material she had been reviewing before she testified. The Board decided not to call Ms. McIntosh back to testify, because if Rowe thought that she had any hearing notes, it should have asked her about them when it had her on the witness stand. Transcript at 1634-39. Although the Board stated that Rowe could ask future witnesses about hearing notes, Transcript at 1639, Rowe never asked any such questions. Even though Rowe filed two lengthy posthearing briefs, it only complained about the Board's ruling after it received the Board's decision. Rowe has not established that the Board's ruling on this issue was in error or that it would justify a new hearing. ----------- FOOTNOTE BEGINS --------- [foot #] 2 In its motion for a new hearing, Rowe says that it was referring to Mr. Mould, and not Mr. Globerman. When Rowe filed its motion asking for hearing notes, Mr. Mould had been called to testify as a Rowe witness, not a Government witness. Rowe spent more than one day asking him questions, but never asked him about any hearing notes. ----------- FOOTNOTE ENDS ----------- Location of hotel Rowe says that a new hearing is needed because one of our factual findings is incorrect. We stated in our November 30, 1999 decision that on October 31, 1996, Mr. Mould mentioned to Mr. Campbell and Mr. Jackson, another Rowe employee, that a hotel "in the [Powhatan] area" was for sale. Rowe Inc. v. General Services Administration, GSBCA 14136, slip op. at 36 (Nov. 30, 1999). We reached this conclusion because Mr. Mould testified that he asked Mr. Campbell and Mr. Jackson whether there were any hotels around Powhatan and they told him that there were none. Mr. Mould mentioned that he had recently visited another contractor, and then said that he had noticed a hotel that was for sale. Mr. Campbell and Mr. Jackson said that they might be interested in the hotel, and Mr. Mould offered to give them a sales brochure the next time he saw them. Transcript at 1962. The transcript seems to support our factual finding. If, however, the hotel under discussion was not located in the Powhatan area, this would not change the outcome of our decision. The location of the hotel had nothing to do with the point that Rowe wished to make concerning Mr. Mould's decision to provide Mr. Campbell with a copy of the sales brochure for the hotel. No new hearing is warranted in order to clarify this point. Introduction of documents into evidence Rowe says that a new hearing is needed because the presiding judge refused to allow Rowe to introduce various documents into the record of this case. Rowe had from May 1997, until September 1998, to file whatever exhibits it wanted to include in the record of this case. During that time, Rowe placed more than one hundred exhibits into the appeal file. While Rowe was assembling its exhibits, Mr. Campbell telephoned the presiding judge's office and asked whether he had to provide a copy of everything that Rowe wanted to include in the record, including voluminous documents. The presiding judge's hearing assistant told Mr. Campbell that if he wanted a document to be a part of the record, he had to provide it to the Board and to GSA in the appeal file. Transcript at 2018-19. All of the exhibits that the parties wanted to have in the record were required to be made a part of the appeal file before the hearing began and the Board told the parties that, except for good cause, they would not be permitted to introduce exhibits at the hearing. Rowe Incorporated v. General Services Administration, GSBCA 14136, 98-2 BCA 29,951 at 148,185. There were no restrictions upon what Rowe could place in the appeal file, other than the requirement that the exhibits be relevant to the appeal. Rule 104. In addition to the fact that before the hearing started Rowe had the opportunity to place in the appeal file all of the exhibits it wanted to have in the record, dozens of times during the hearing the Board permitted Rowe to show witnesses documents that were not included in the record, to read portions of those documents into the record, and to ask witnesses questions about those documents. Rowe's motion for a new hearing refers to one instance in which Rowe was permitted to utilize documents not included in the appeal file. While Mr. Campbell was asking Mr. Dellinger questions, Mr. Campbell suggested that he had documents that would show that Mr. Dellinger had been involved in other contracts. Transcript at 664. Mr. Campbell asked Mr. Dellinger about specific conversations and events concerning other contracts, and Mr. Dellinger testified that he did not recall those conversations and events. Transcript at 664-70. The presiding judge asked Mr. Campbell whether he had any documents that might refresh Mr. Dellinger's recollection. Mr. Campbell said, "Your Honor, unless I can put those documents into the file - - - ." The presiding judge then explained that the documents did not have to be part of the appeal file if Rowe wanted to use them to refresh Mr. Dellinger's recollection. She told Mr. Campbell that if he had something that might help Mr. Dellinger recall the events about which Mr. Campbell was asking questions, it would be a good idea to let Mr. Dellinger see the documents. Transcript at 670. Mr. Campbell never showed any documents to Mr. Dellinger to see whether they would enable him to answer Mr. Campbell's questions. Only once during the hearing did Rowe offer to place a document in the appeal file. When Rowe submitted its exhibits in September 1998, it provided the Board and GSA with the cover page of the October 1994 Ford Ship-Through Guide as Exhibit 608. During the hearing, Mr. Campbell gave the entire Ship-Through Guide to a witness, asked him to read portions of it into the record, and asked him questions about the document. Transcript at 2011-21. Mr. Campbell offered to photocopy the entire Ship- Through Guide for the record. The presiding judge declined Rowe's offer and reminded him of his conversation with her hearing assistant, the terms of the prehearing order, and the reasons that Rowe and GSA had been required to submit their exhibits before the hearing began. She then said that Mr. Campbell could ask the witness whatever questions he wanted about the Ship-Through Guide, which he did. Transcript at 2011- 21. Rowe's motion for a new hearing does not allege that it wished to place the Ship-Through Guide in the record. Rowe's motion for a new hearing makes it seem as if a contract between GSA and Chrysler was a major issue in this appeal, and says that Rowe wanted to introduce that contract into the record to resolve contract interpretation issues. This was not the case, as is shown by a review of the record. Chrysler supplied INS vans to GSA some years before Rowe was awarded the INS van contract that was the subject of this appeal. If a Chrysler contract had been relevant to the interpretation of Rowe's contract, as Rowe now claims, we would have expected Rowe or GSA to include the contract in the record or to show the contract to witnesses at the hearing and ask questions about it. Rowe included in the record three pages from a Chrysler contract, Exhibit 529, but never referred to that exhibit during the hearing. The three pages do not include any of the contract's specifications. Rowe never provided the Board with anything more than these three pages of a Chrysler contract, and did not ask at the hearing to have a contract included in the record. There is no evidence to support Rowe's assertion that Rowe wished to use or did use a Chrysler contract to resolve contract interpretation issues in this appeal. Neither before the hearing, nor during the hearing, nor after the hearing did Rowe ask to include in the record any of the documents that it now claims it was prevented from including in the record. Rowe has not established that it is entitled to a new hearing because it was prevented from including documents in the record. Financial conflict of interest Rowe says that a new hearing is warranted because the judge who presided at the hearing in this case had a conflict of interest due to her joint ownership of shares of stock in Daimler Chrysler Corporation.[foot #] 3 According to Rowe, the conflict arises because Chrysler Corporation, one of the predecessor companies to Daimler Chrysler, supplied INS vans to GSA under a prior contract. Rowe says that Mr. Campbell testified that Chrysler's vans failed to meet federal motor vehicle safety standards, that GSA witnesses agreed with this testimony,[foot #] 4 and that the outcome of this appeal could have led to a recall of Chrysler vans which might have led to a decline in the price of Daimler Chrysler's shares, which would have affected the presiding judge's financial interest in Daimler Chrysler. Rowe has not established that any conflict existed. The issue before us in this appeal was whether GSA justifiably decided to terminate Rowe's performance of a contract to supply vans for the use of the INS, and neither granting nor denying the appeal could have influenced the price of Daimler Chrysler stock. Neither Chrysler nor Daimler Chrysler was in any way involved in Rowe's contract. Rowe did not purchase its vans from Chrysler.[foot #] 5 Rowe has not asserted that it is ----------- FOOTNOTE BEGINS --------- [foot #] 3 Rowe knew of the judge's ownership of the stock because she disclosed it to the parties, as discussed more fully below. [foot #] 4 Mr. Campbell testified that he told Chrysler that its vans did not meet safety standards. Transcript 828-29, 849. No Government witness ever testified that Chrysler's vans failed to meet safety standards. [foot #] 5 Purchasing vans from Chrysler for this contract was not an option available to Rowe or any other bidder, because GSA wrote the specifications so that Chrysler vans could not have been used for the contract. Transcript at 1387-88, 1505-06. ----------- FOOTNOTE ENDS ----------- in any way affiliated or financially interlocked with Daimler Chrysler. As for Rowe's contention that a recall of Chrysler vans could have affected the price of Daimler Chrysler stock, this Board lacks the jurisdiction either to determine whether vehicles meet federal motor vehicle safety standards or to order a recall of vehicles. There was nothing at stake in this appeal that could have affected the price of Daimler Chrysler stock, and so the presiding judge had no financial interest that could have been affected by this appeal. No conflict existed and so no new hearing is warranted. Bias Finally, in addition to the specific grounds discussed above that Rowe advances in support of its motion for a new hearing, Rowe's motion insinuates generally that the presiding judge was biased against Rowe because Rowe was responsible for Chrysler not receiving the contract for INS vans that was awarded to Rowe. Presumably, this bias would have been the result of the presiding judge's ownership of Daimler Chrysler stock. The presiding judge first realized that Rowe was claiming responsibility for Chrysler's not receiving the INS van contract when she read Rowe's July 30, 1999 posthearing brief. There, Rowe alleged that it had "exposed" safety flaws in the vehicles of a large corporation and that this led to the large corporation's inability to compete for the INS van contract. Rowe Case Summary (July 30, 1999) at 61-62. The presiding judge did not realize that Rowe intended to make such an allegation before she read Rowe's posthearing brief, because the testimony at the hearing did not square with the statement in the brief. Mr. Globerman, the GSA engineer who was responsible for preparing the specifications for Rowe's INS van contract, testified that GSA drafted those specifications to preclude the use of Chrysler vans because of maintenance and performance problems that INS had experienced with its Chrysler vans. He seemed to be unaware of any safety concerns that Rowe might have had about Chrysler's vans. Transcript at 1379, 1387-88, 1505-06, 2194, 2198-99, 2201-04. Mr. Campbell testified at the hearing that he discussed his concerns about the Chrysler vans with Chrysler, that he did not do anything to expose these safety flaws to the Department of Transportation, and that Chrysler took steps to correct whatever problems Rowe thought existed. If Mr. Campbell ever notified GSA of his concerns about Chrysler's vans, he did not make this clear in his testimony. Transcript at 828- 29, 849, 1232-33, 2265. He testified, consistent with Mr. Globerman's testimony, that GSA wrote the INS van specifications to preclude the use of a Chrysler van because the Chrysler vans were "not holding up" and GSA wanted vans with a heavier suspension. Transcript at 848. In summary, the testimony at the hearing did not alert the presiding judge to the fact that Rowe intended to claim that it was responsible for Chrysler's inability to compete for the INS van contract. In light of the statement made by Rowe in its posthearing brief, the presiding judge consulted with the appropriate ethics officer to determine whether there were any ethical considerations that would counsel against continuing to participate in the appeal, given her ownership of Daimler Chrysler stock. After learning that there were no such considerations, the presiding judge decided to write to GSA and Rowe and inform them of her ownership of the stock. Her letter read in its entirety as follows: At pages 61-62 of its July 30, 1999 brief, Rowe alleges that it is responsible, in part, for the fact that a large corporation no longer competes for the Immigration and Naturalization Service van contract. Although Rowe does not mention the corporation by name, it appears to be Chrysler. The purpose of this letter is to inform you that my husband and I own some shares in Daimler Chrysler, as shown on my most recently filed public financial disclosure statement. If either of you believes that my joint ownership of these shares will in any way impair my ability to render a fair, impartial decision in this appeal, please put your reasons in writing and send them to me not later than August 19, 1999. If you will not be able to meet this deadline, call my office at [telephone number] and ask for whatever additional time you need. Board letter to the parties (Aug. 5, 1999). Rowe responded on August 11, 1999, saying, "I trust that the joint ownership of Chrysler stock will not impair the judge's ability to render a fair decision in this appeal." Note from Rowe to the Board (Aug. 11, 1999). Rowe did not mention this issue in its September 13, 1999 reply brief. If Rowe believed that the presiding judge was biased due to her ownership of Daimler Chrysler stock, Rowe could have said so when it was invited to comment in early August 1999. In addition, it could have made its allegations in its reply brief or at any time before we issued our decision on November 30, 1999. Rowe waited, however, until after it received our decision to challenge the presiding judge's fairness. Rowe's suggestions of bias, therefore, appear to be based upon the fact that our decision was adverse to Rowe and not based upon the presiding judge's ownership of stock. Our decision to deny Rowe's appeal does not provide Rowe with grounds for a new hearing. Decision Our November 30, 1999 decision addressed in painstaking detail every allegation that Rowe raised, however obliquely, in this appeal. That decision was based upon the hundreds of exhibits and the thousands of pages of testimony that make up the record in this case, as well as the parties' posthearing briefs. Rowe was afforded a full and fair opportunity to present its case, and has not put forward any reason in its untimely motion that would justify a new hearing. Rowe's motion is denied. __________________________________ MARTHA H. DeGRAFF Board Judge We concur: __________________________________ ______________________________ ____ ROBERT W. PARKER ANTHONY S. BORWICK Board Judge Board Judge