behalf of the United States Casualty Co. to the Bureau of Yards and Docks, disclosing the fact of payment by the surety for the excess costs which resulted from the termination, and the necessity of awarding reprocurement contracts.
The propriety of the termination for default, the remedy invoked by the United States, is well supported in the record. Copies of the indictment of plaintiff's president, under the provisions of 18 U.S.C. § 201, and of the transcript of the record of trial which resulted in a guilty verdict from the jury, are before the Court.
Clause 55 of the Contract entitled 'Gratuities' states:
'(a) The Government may, by written notice to the Contractor, terminate the right of the Contractor to proceed under this contract if it is found, after notice and hearing, by the Secretary or his duly authorized representative, that gratuities (in the form of entertainment, gifts or otherwise) were offered or given by the Contractor or any agent, or representative of the Contractor, to any officer or employee of the Government with a view toward securing a contract or securing favorable treatment with respect to the awarding or amending, or the making of any determinations with respect to the performing, of such contract * * *.'
Although not charged in the complaint, nor reflected in the record before the Board, upon oral argument counsel for plaintiff now apparently argues that General Ship Contracting Company should have been permitted to continue working on the job pending its appeal from the termination, or at least throughout the period prior to receipt of the formal notice of termination. The record refers to a letter dated November 6, 1958 specifically excluding the plaintiff's employees from the Depot; the act of bribery having occurred the preceding day, November 5, 1958.
Clause 57 of the Contract entitled 'Disputes' states in the event a question of fact arises under the contract which is not disposed of by agreement, the Chief of the Bureau of Yards and Docks shall decide the issue, reduce his decision to writing, and furnish a copy thereof to the Contractor, who, in turn, has 30 days within which to appeal the decision. This section further provides that pending final decision of the dispute the Contractor 'shall proceed diligently with the performance of the contract and in accordance with the decision of the Chief of the Bureau of Yards and Docks.' This clause (now 57, formerly clause 6) is referred to in Clause 47, which provides that, in an instance of termination and subsequent completion or partial completion by the United States, the decision by the Contracting Officer as to cost shall be final, subject to an appeal under Clause (57). The question presented is whether or not Clause 57 applies in its entirety, including the right, if not the duty of the Contractor to continue working pending decision upon his appeal. We think not. The clauses being in pari materia must be read together. Clause 47(d) specifically requires the notice of termination to include, inter alia, the date upon which termination shall be effective and the extent to which performance of work under the contract shall be terminated. In the instant case the entirety of both contracts was terminated; the effective time was immediately. To construe this contract as authorizing termination, and then permitting the Contractor to continue and perhaps to finish his work pending appeal, would be a totally incongruous construction, and one not warranted by a reasonable interpretation of the language of the contract.
With regard to the barring of the plaintiff from the Depot on November 6, 1958, such a right always inures to one having work performed on one's land, subject only to any legal obligations resulting therefrom. In this case, the termination being justified, plaintiff has no right to complain of the barring of its employees.
Summary judgment is particularly appropriate in an action to obtain review of an administrative order where the plaintiff has no right to a trial de novo. Whether or not the evidence meets the statutory standard is purely a matter of law. 6 Moore, Federal Practice Para. 5617 at p. 2175 (2d ed. 1953). The statutory standard established by 41 U.S.C.A. § 321 permits reversal of the Board only upon a showing that its determination is 'fradulent (sic) or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence.' No such showing has here been made.
The motion of the United States for summary judgment is granted. An order in conformity with the decision herein embodied may be submitted.