Appeal of a termination for cause is denied. It was undisputed that the contractor had not performed, so the contractor bore the burden of establishing excusable delay. The contractor offered several excuses for its failure to perform, but the board found these excuses were unsupported or not meaningful explanations for the non-performance.
The Social Security Administration (SSA) awarded Carmazzi Global Solutions various contracts and task orders to provide court reporters at disability appeal hearings. Carmazzi failed to provide reporters. The SSA sent Carmazzi cure notices. Carmazzi proposed a series of actions—meetings with the agency, advance payment, more time for compliance—but did not identify any excuses for its failure to perform. The SSA terminated the contracts for cause. Carmazzi appealed to the CBCA.
The board noted that in a termination appeal, the government bears the initial burden of establishing that the termination was proper. If the government demonstrates a prima facie case for termination, the burden shifts to the contractor to show excusable delay. Here, the SSA had satisfied its initial burden, indeed, Carmazzi acknowledged it had not performed the contracts. Thus, Carmazzi bore the establishing excusable delay. While Carmazzi had excuses, the board found they were not supported by plausible evidence.
For instance, Carmazzi claimed that it had it experienced problems because SSA personnel at local hearing offices held the company to different invoicing standards. The board opined that even if this was true, it was not an excuse. The contract did not require every local office employ the same billing standards.
Carmazzi alleged that it had various problems with other holders of blanket purchase agreements who actually performed the court reporting. Carmazzi maintained these reporter pressured it by demanding higher pay, and that the reporters colluded to dissuade recruits from working with Carmazzi. The board found that the Carmazzi had set its own pricing for the contract. To the extent it was experiencing problems with reporters, it was not the government’s fault. The board further found that most of the allegations regarding the reporters were unsupported or based on hyperbole.
Carmazzi contended that the SSA had provided far fewer hearings than it had estimated in the contract. Even if this true, the board reasoned, it was not excuse. Fewer hearings would have made it easier, not harder, for Carmazzi to fulfill its contractual obligations.
Carmazzi is represented by Timothy J. Turner, Jonathan D. Perrone, Joseph Whitcomb, and David Tscheschke of Whitcomb, Selinsky, P.C. The government is represented by Dorothy M. Guy, Brandon Dell’Aglio, Trak Kedem, and Alice M. Somers of the Social Security Administration.