PAMSP – Depends on what the definition of “suspended” is…

You may be wondering how, if a Contract is suspended in its entirety, PennDOT could continue to make demands of the Contract Administrator, without defining what parts of the Contract, if any, were still in effect – if neither could incur any liabilities under it?

PennDOT Contract Suspension:

PennDOT, 3/19/2020:
“Based upon the March 6, 2020 Proclamation of Disaster Emergency, PennDOT is providing notice that it is temporarily suspending this contract pursuant to the governing provision that provides that in the event of a declared emergency by competent governmental authorities, PennDOT may suspend all or a portion of the Contract or Purchase Order. Therefore, if you have any employees currently working at the Riverfront Office Building, please notify them to vacate the building.”

This communication was made only to the Program Administrator on 3/19/2020, not PAMSP Staff or Instructors.

PennDOT Updates the “Motorcycle Safety” web site:

At the same time, 3/19/2020 the following was posted to the PennDOT Motorcycle Safety web site by PennDOT:

“All motorcycle training clinics through the Pennsylvania Motorcycle Safety Program (PAMSP) have been postponed until further notice in response to Governor Tom Wolf’s mitigation guidance regarding COVID-19. If you have further questions, please contact us at msp-info@pa.gov.”

Initial message to the PAMSP Staff & Instructors:

While none of the Instructors had seen the original suspension message/language, a message was sent to all Site Coordinators and Instructors by the Program Administrator at 2:30PM EST 3/19/2020 including only the web site language above and ending in:

“We will be moving forward with plans to get the season off and running as soon as this virus is under control and we can do so safely”.

Federal WARN Act Notice:

On 4/13/2020 a Federal WARN Act Notice was sent by the Program Administrator, at the direction of the PA Department of Labor & Industry and the Federal Department of Labor, to notify all employees, Instructors and other interested parties that PennDOT was “temporarily suspending this contract” and to inform all parties of this as well as to notify them of the Program status.

It included the PennDOT contract suspension language, that the Program Adminsitrator is not permitted to pay any employee or staff, that all staff and Instructors are on layoff status, effective March 19th, and can seek unemployment benefits uncontested by the current Program Administrator.

It also notes that “if you have or possess keys to a training site/facility you are responsible for safeguarding any property belonging to PennDOT to which you may have access. If you are not comfortable with that situation you can return the keys to William Gipe, who is the sole point of contact for the PennDOT contract:”

The correspondence clearly specifies that there is “[no] date of return”.

PennDOT PAMSP Contract Language:

RFP 3516R09, Section 24, Force Majeure, Page 70:
“In the event of a declared emergency by competent governmental authorities, the Commonwealth by notice to the Contractor, may suspend all or a portion of the Contract or Purchase Order.”

“…may suspend all or a portion of the Contract”.

So which was it, according to PennDOT?

Suspended in whole or in part?

It was incumbent on PennDOT to have defined if they were suspending all or a part of the Contract.

If they were suspending only part of the Contract what part or part(s) of the contract were they suspending?

That clarification never occurred but it appears that PennDOT was suspending the entire contract, as per their 3/30/2020 correspondence they assert “(PennDOT) temporarily suspended the Contract“.

As part of that same correspondence they then ask if the Program Administrator will “maintain leases & protect PennDOT equipment during the Contract suspension”.

So how, if a Contract is suspended, how could PennDOT make demands of a Program Administrator to continue, without clarification of what, if any of the portions of the Contract are still in effect and what, if any, compensation would cover the expenses?

All while neither can incur a liability on behalf of the other (Section 24, page 69)?

These questions were never clarified by PennDOT.

“Contract Controversies”

Also in RFP 3516R09, Page 70 there is a section, 26, which begins “Contract Controversies” in which the Contractor must notify PennDOT within 6 months, a claim in writing, including the grounds for the controversy.

At that time or within (60) days either party may request mediation by the Commonwealth Office of General Counsel Dispute Resolution Program.

Mediation, as an option, was never pursued – but the timeline from initial dispute to contract cancellation was so short, during that time attempting to clarify what PennDOT was asking compared to their suspension of the Contract, that cancellation preempted that potential remedy.

In Summary:

PennDOT suspended the PAMSP contract then made requests of the Program Administrator to honor unspecified parts of the [completely] suspended contract in a way that PennDOT would require liabilities to be undertaken by the Program Administrator in clear contravention of the letter of the contract.

Instead of clarifying their requests, if the contract was suspended in whole or in part, as well as pursuing mediation to resolve the outstanding issues PennDOT elected to simply cancel the contract thereby removing any remedy.

Currently the PAMSP Contract is cancelled, the Program Administrator, Staff and Instructors have all been fired, the Program can’t meet it’s statutory requirements (Title 75, Act 24 2012), is still collecting fees from PA Residents and has no curricula, Administration contract or plans for a restart in 2021.

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