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BUILDING SERVICES CO. v. NATIONAL RAILROAD PASSENGER CORP.

February 18, 2004.

BUILDING SERVICES CO., Plaintiff,
v.
NATIONAL RAILROAD PASSENGER CORPORATION, Defendant; NATIONAL RAILROAD PASSENGER CORPORATION, Counter-Plaintiff, v. BUILDING SERVICES CO., Counter-Defendant



The opinion of the court was delivered by: REGGIE B. WALTON, District Judge

MEMORANDUM OPINION

The parties in this matter had entered into an agreement wherein the Building Services Company ("BSC") contracted with the National Railroad Passenger Corporation ("Amtrak") to provide cleaning services at Amtrak's New Carrolton, Maryland station ("Station"). BSC initiated this lawsuit, claiming, inter alia, that Amtrak breached their contact. This matter is now before the Court on Amtrak's motion for summary judgment. For the reasons set forth below, the Court will grant Amtrak's motion. Page 2

I. Factual Background

 (A) The Contract

  In June of 1999, Amtrak issued a Purchase Order to BSC that resulted in BSC agreeing to provide cleaning services for Amtrak at its New Carrolton station from July 1, 1999 to June 30, 2001. Statement of Material Facts as to Which There is No Genuine Issue in Support of Motion of National Railroad Passenger Association for Summary Judgment ("Amtrak's Stat. of Facts") ¶ 3; Motion of National Railroad Passenger Association for Summary Judgment ("Amtrak's Mot."), Exhibit ("Ex.") 1; Statement of Genuine Material Facts In Dispute ("BSC's Stat. of Disp. Facts") ¶ 1. The Purchase Order specifically included language indicating that it was subject to the terms and conditions of an Amtrak form ("Form 69") and four other documents that were attached to the Purchase Order.*fn1 Amtrak's Mot., Ex. 1. Paragraph 8 of Form 69 provides in pertinent part:

  DEFAULT — (A) Amtrak may, . . . by written notice of default to [BSC], terminate the whole or any part of this Order in any one of the following circumstances: if [BSC] (1) fails to make delivery of the Supplies*fn2 within the time specified herein as "delivery date" or any extension thereof; or (2) fails to perform any of the other provisions of this Order, or (3) so fails to make progress as to endanger performance of this Order in accordance with its terms. At its sole option, Amtrak may require a cure of the failure involved rather than terminating the Order in whole or in part. If [BSC] does not cure the failure within the period specified by Amtrak, then Amtrak shall have the right at that time to terminate the whole or any part of the Order. (B) In the event Amtrak terminates this Order in Page 3 whole or in part as provided in subsection 8(A) above, Amtrak may procure, upon such terms and in such manner as Amtrak may deem appropriate, Supplies similar to those so terminated and [BSC] shall be liable to Amtrak for any excess costs for such similar Supplies. . . .*fn3

 Amtrak's Stat. of Facts ¶ 5; Amtrak's Mot., Ex. 1. In addition, a default notice was inserted on the first page of the Purchase Order; this notice stated:
AMTRAK MAY TERMINATE THIS PURCHASE ORDER FOR DEFAULT AND/OR REFUSE TO ACCEPT DELIVERED MATERIAL AND/OR SERVICES WITHOUT ANY FURTHER NOTICE IF COMPANY FAILS TO MAKE DELIVERY OF THE ORDERED MATERIAL AND/OR SERVICES WITHIN THE TIME SPECIFIED IN THE PURCHASE ORDER . . .
Amtrak's Stat. of Facts ¶ 4; Amtrak's Mot., Ex. 1. The next section of Form 69, Paragraph 9, which is entitled "Termination," permits the Purchase Order to "be terminated or suspended in whole or in part from time to time and at any time for the convenience of Amtrak." Amtrak's Stat. of Facts ¶ 6; Amtrak's Mot., Ex. 1. Finally, Paragraph 19 of Form 69 provides that the Purchase Order "will be interpreted in accordance with Section 306(d) of the Rail Passenger Service Act (Public Law 91-518), which requires that all leases, contracts and purchase orders entered into by [Amtrak] be governed by the laws of the District of Columbia." Amtrak's Mot., Ex. 1.

  The Purchase Order states that the services BSC was to provide for Amtrak included:

  STATION AND GENERAL SERVICES . . . MONTHLY CLEANING OF THE NEW CARROLLTON MD. STATION, WINDOWS, REAR WAITING ROOM, STEPS TO PLATFORM, ESCALATORS, ELEVATORS, AND THE SURROUNDING Page 4 AREAS WHICH MUST BE CLEANED DAILY TO MAINTAIN AN ODOR [FREE] AREA. WORK SCOPE PER ATTACHMENT "A" PP 1 THRU 6 DATED 7-1-99 ALREADY IN YOUR POSSESSION.

 Amtrak's Mot., Ex. 1. Attachment A of the Purchase Order specifically details the janitorial services to be performed at the Station, including: (1) daily service of the rest rooms; (2) daily as well as additional weekly service of waiting rooms, entrances and corridors; (3) weekly dusting of all surfaces in the ticket office area as well as daily cleaning of its floors, doors, partitions, and trash cans; (4) daily cleaning of the elevators, stairs, and loading platform; (5) daily cleansing and quarterly reconditioning treatment of outside entrances; (6) monthly cleaning of the windows; (7) quarrying of the tile floor; and (8) daily removal of the trash. In addition, Attachment A states that materials necessary to complete these services are to be furnished by BSC. Finally, Attachment A mandated the hours of the day and the days of the week when the services would be performed. Amtrak's Mot., Ex. 1.*fn4

 (B) Plaintiff's Performance Pursuant to the Purchase Order

  Jamie Wilson ("Wilson"), Amtrak's Lead Clerk at the Station, was responsible for ensuring that the New Carrolton station was properly cleaned and maintained, and therefore "had the opportunity to closely observe the performance of BSC under the contract on an almost daily basis." Amtrak's Mot., Wilson Aff. ¶¶ 1-2. Wilson observed that BSC was not performing its services properly, "leading to unclean and unsafe conditions at the Station." Id. at ¶ 3. These observations resulted in Wilson recording her observations and conversations with BSC employees in a journal after noticing defects in BSC's performance, which she attached to her Page 5 affidavit.*fn5 Id. at ¶ 4. According to her journal, BSC employees (1) failed to show up on time for shifts and sometimes even failed to appear for work at all, (2) used Amtrak supplies instead of providing their own, (3) failed to clean (sweep, mop, etc.) floors of the Station lobby, hallways, and restrooms, (4) were found sleeping during their shifts, (5) argued with Amtrak passengers, and (6) impersonated an Amtrak employee on at least one occasion. Amtrak's Stat. of Facts ¶¶ 7-11; Amtrak's Mot., Wilson Aff. ¶¶ 4-5, Ex. A. These observations led Wilson to conclude that "BSC repeatedly and continuously failed to adequately perform many of its duties under its cleaning contract with Amtrak, leading to unclean and unsafe conditions at the Station." Amtrak's Mot., Wilson Aff. ¶ 3; Amtrak's Stat. of Facts ¶ 7.

  Moreover, Amtrak alleges that Wilson informed BSC's employees and its Chief Operating Officer, Dag Nyanfore ("Nyanfore"), through both oral and written communications, about the problems she observed on numerous occasions. Amtrak's Mot, Wilson Aff. ¶¶ 3, 11-12 and Aff. Ex. A, B; Amtrak's Stat. of Facts ¶ 13. Nonetheless, Wilson failed to notice any subsequent improvements in BSC's performance even though she was promised that BSC would remedy the situation. Amtrak's Stat. of Facts ¶ 13; Amtrak's Mot., Wilson Aff. ¶¶ 3, 11 and Aff. Ex. B. Additionally, Amtrak officials met with Nyanfore on May 25, 2000, to discuss BSC's performance problems. Amtrak's Stat. of Facts ¶ 14; Amtrak's Mot, Wilson Aff. ¶ 12. Lastly, Amtrak claims that the cleanliness of the Station improved significantly once the new cleaning service assumed responsibility. Amtrak's Mot., Wilson Aff. ¶ 9.

  In its defense, BSC asserts that it never received notice of any concerns about its Page 6 performance, and, if it did, the problems were corrected at that time. BSC's Stat. of Disp. Facts ¶ 13; Memorandum of Points and Authorities In Support of Plaintiff's Opposition ("BSC's Opp'n.") at 2-3;*fn6 Nyanfore Aff. ¶¶ 5-6, 10-11. In addition, BSC claims that prior to making its request for an additional payment of $6,000 for the performance of services rendered in addition to those services specifically delineated in the Purchase Order, Wilson and another Amtrak employee, Don Peterson ("Peterson"), praised the performance of its employees. BSC's Stat. of Disp. Facts ¶ 7; BSC Opp'n at 3, 6; Nyanfore Aff. ¶¶ 12-13.*fn7 Furthermore, BSC counters Wilson's assessment of its performance with regards to the cleaning of the Station's floors, suggesting that "the nature, and quality . . ." of the floors caused them to "appear" dirty even though they had been properly cleaned. BSC's Stat. of Disp. Facts ¶ 6; BSC's Opp'n., Ex. D; Nyanfore Aff. ¶¶ 6-8. Moreover, BSC claims that the complaints about the floors ceased after they applied a product recommended by a professional floor consultant. Nyanfore Aff. ¶ 8. And, BSC questions the validity of the observations contained in Wilson's journal, declaring them contrary to the sworn statements of Nyanfore. BSC's Opp'n. at 4. Also, BSC pointed out that although in a November 18, 1999 letter Nyanfore acknowledged Wilson's expressed disapproval of BSC's services, it noted that the letter indicated the condition of the floor was the reason for its appearance. BSC's Opp'n., Ex. D.

  The Court notes that BSC has failed to respond to Amtrak's contention that BSC employees either showed up late for their shifts or failed to appear at all. Nowhere in BSC's Page 7 filings does ...


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