ESTATE OF CHARLES RANDALL (formerly RUT'S MOVING AND DELIVERY
SERVICE), 1987-SCA-32 (Dep. Sec'y March 23, 1992) (reconsideration)
CCASE:
CINDY MONAHAN
DDATE:
19920323
TTEXT:
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[1] U.S. DEPARTMENT OF LABOR
DEPUTY SECRETARY OF LABOR
WASHINGTON, D.C.
20210
DATE: March 23, 1992
CASE NO. 87-SCA-32
IN THE MATTER OF
CINDY MONAHAN, ADMINISTRATOR OF THE
ESTATE OF CHARLES RANDALL, DECEASED, /FN1/
RESPONDENT.
BEFORE: THE DEPUTY SECRETARY OF LABOR /FN2/
DECISION ON RECONSIDERATION
This matter is before me pursuant to the McNamara-O'Hara Service
Contract Act of 1965, as amended (MOSCA), 41 U.S.C. [secs] 351-358
(1988), and regulations at 29 C.F.R. Parts 4, 6, and 8 (1991). On
February 10, 1992, the Administrator, Wage and Hour Division, moved
for reconsideration of the December 9, 1991, Final Decision and
Order in this matter. The respondent's estate filed a motion for
reconsideration on February 14, 1992.
Neither the MOSCA nor the implementing regulations
specifically provides for reconsideration by the Deputy Secretary.
In this situation, it is sometimes appropriate to [1]
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/FN1/ This case was previously styled In the Matter of Charles
Randall, an individual d/b/a Rut's Moving and Delivery Service.
Due to the death of Mr. Randall while the case was pending on
appeal, and upon motion of the Administrator of his estate, the
Administrator is substituted as the party respondent. See Fed. R.
App. P. 43(a).
/FN2/ The Deputy Secretary has been designated by the Secretary to
perform the functions of the Board of Service Contract Appeals
pending the appointment of a duly constituted Board. 29 C.F.R.
[sec] 8.0 (1991). [1]
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[2] look to the Federal Rules of Civil Procedure for guidance. In
the Matter of Military Sealift Command, Case No. 86-SCA-OM-1, Sec.
Ord. Oct. 23, 1991, slip op. at 1. Under Rule 59(e), a motion to
alter or amend a judgment must be filed not later that 10 days
after entry of the judgment. While the instant motions were not
filed within this time frame, a letter seeking relief from the
judgment on behalf of Doris Randall, an interested party, was
addressed to the Secretary on December 18, 1991, within the 10 day
period. This letter constituted the first notice to the Deputy
Secretary that the former respondent, Charles Randall, had died in
April 1990.
As a result of receiving this information, the parties were
given the opportunity, to request further consideration of this
case. The parties themselves, particularly Mr. Randall's
representative and Ms. Randall, who should have promptly notified
the Deputy Secretary of Mr. Randall's death, failed to request
timely reconsideration. I was nevertheless apprised of Mr.
Randall's death, the principal reason offered in support of
reconsideration, within the applicable time frame. It is always
within the discretion of an agency to relax or modify its
procedural rules when the ends of justice require. American Farm
Lines v. Black Ball Freight Service, 397 U.S. 532, 539 (1970);
Onslow County, North Carolina v. United States Department of Labor,
774 F.2d 607, 611 (4th Cir. 1985). Inasmuch as the fact of Mr.
Randall's death was brought to my attention within the 10-day
period, I will consider the motions for reconsideration. [2]
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[3] Both the Administrator and the estate contend, based mainly
on the death of Charles Randall, that there is no reason to debar
Doris Randall and Rut's Moving and Delivery Service, Inc. MOSCA
Section 5(a), 41 U.S.C. [sec] 354(a) provides that no federal
government contract shall be awarded to any firm, corporation,
partnership, or association in which debarred persons or firms have
a substantial interest.
The implementing regulation, 29 C.F.R. [sec] 4.188(c), notes
that the term "substantial interest" is not defined in the Act and
then provides examples of when such an interest will be deemed to
exist. They include where there is ownership in another entity,
where a person is an officer or director in a firm and where a
person forms or participates in another firm with comparable
authority. While "substantial interest" is not precisely defined,
the examples in the regulation indicate, as the Administrator
argues, Administrator's Motion at 3, that a substantial interest
will be found where the debarred person or firm has control of or
a significant beneficial interest in another entity.
Because a deceased person obviously cannot control or have any
interest in another entity, the substantial interest provision of
the MOSCA will not operate to debar any persons or firms /FN3/ as
a result of a decedent's past violations. /FN4/ [3]
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/FN3/ The Deputy Secretary has held previously that the equities
favor removal of a firm from the debarment list where the sole
proprietor has died and the firm is being administered by the
executors. In the Matter of Lawrence J. Cook, Jr., individually
(continued...) [FN3 CONTINUED ON PAGE 4](...continued) and d/b/a
Cook Building Maintenance Service, Case No. SCA-1046, Sec. Dec.
Nov. 7, 1983, slip op. at 3. [END FN3][4]
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[4] Accordingly, I reverse the conclusion in the Final Decision and
Order that the names of Rut's, Inc. and Doris Randall should be
placed on the list of those ineligible to enter into contracts with
the Government. The proposed debarment of Charles Randall is
vacated as moot.
The estate argues that the decision as to the violations is
"contrary to the manifest weight of the evidence, is arbitrary and
capricious, and is contrary to law." This conclusionary statement
is insufficient to invoke reconsideration as it fails to identify
any specific errors in the decision. See 29 C.F.R. 8.7(c).
For the foregoing reasons, I conclude that the liable for the
$80,691.28 in violations attributable to Charles Randall. I
reverse my determination, however, that Rut's, Inc. and Doris
Randall be debarred.
SO ORDERED.
Deputy Secretary of Labor
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/FN4/ [MISPLACED ON PAGE 4] The Administrator seems to suggest that
a substantial interest may be found based on the relationship
between the sole proprietorship as the violating entity, see
Administrator's Motion at 4, and the new corporation. A sole
proprietorship, however, is a business entity in which one person
owns all the assets. Black's Law Dictionary 1248 (5th ed. 1979).
It therefore does not have a separate identity, in contrast to a
partnership or corporation, and cannot have an interest in a
successor entity. [4]
