CBCA 4777

GRANTED IN PART: November 13, 2015 CBCA 4777 SERVITODO LLC, Appellant, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent. William J. Acuff, Management Officer of ServiTodo LLC, Atlanta, GA, appearing for Appellant. Scott C. Briles, Office of the General Counsel, Department of Health and Human Services, Atlanta, GA, counsel for Respondent. POLLACK, Board Judge. This appeal arises out of contract no. 200-2012-M-51078, between ServiTodo, LLC (appellant) and Centers for Disease Control and Prevention (CDC), Department of Health and Human Services. The contract called for appellant to provide the equivalent of one health communications specialist to satisfy the overall programmatic objectives of the Division of Unintentional Injury Prevention (DUIP) at the CDC. The total adjusted claim before the Board is $57,264. The claim consists of added costs associated with recruiting the health communication specialist and costs incurred by appellant in preparing a request for equitable adjustment (REA). Appellant has elected the small claims procedure, Board Rule 52, 48 CFR 6101.52 (2014). Therefore, this is a single judge decision; it is final and conclusive and may not be set aside except for reasons of fraud, and it has no value as precedent. A hearing was held in Atlanta, Georgia. Virtually all the testimony on behalf of appellant was provided by Mr. CBCA 4777 2 William Acuff, appellant’s managing officer. Accordingly, when this decision references appellant’s testimony, it is referring to the testimony of Mr. Acuff. The contract was awarded on June 6, 2012. The signed contract sheet identified Vallerie Redd as the contracting officer (CO), Chester L. Pogostin as the CDC technical point of contact (project officer), and Mike Davis as the contract specialist point of contact. The contract contained no delegations of authority to either Dr. Pogostin or Mr. Davis. Appellant claims costs for added recruitment efforts beyond what was contemplated. Much of the recruitment work was handled by appellant’s subcontractor, All Things Administrative. CDC does not challenge that extra work was ordered and done, but asserts that the added work was directed not by the CO, but by employees of the program office, who had no contracting authority. CDC further charges that appellant has not adequately established its costs. The claim for legal and accounting fees is for costs of preparing a request for equitable adjustment (REA) in 2014. Appellant says the REA was prepared for purposes of negotiations. CDC says it was in contemplation of a claim. Appellant reasonably anticipated a limited recruiting effort. The hired employee was not to begin work until September 2012. Appellant was to be paid from the start of the hire’s work in September 2012 through August 31, 2013, on a fixed-price basis. Appellant performed recruitment work that was not contemplated by the contract. The added effort started some time in the summer of 2012 and ran into the end of November 2012. The employee was not hired until the end of November 2012 and did not start work until mid- December 2012. The hired employee had first been identified by appellant in September 2012, but program officials were not willing to accept the hire. The added recruitment effort was directed by two CDC program officials, one of whom was Dr. Pogostin and the other Ms. Michelle Huitric. Although appellant was performing tasks beyond those called for in the contract during the summer and into the fall of 2012, appellant did not at the time identify or seek compensation for added work. Up to that time appellant had followed directions of the program officials. Mr. Acuff testified that he believed he had to follow the program officials’ directions and did not understand that their authority to direct him was limited. On or about October 23, 2012, appellant balked at a plan by the program officials to split the position into a two-person hire. He thought that such a dramatic change needed to be approved by someone above the program officials before he could proceed. On October 23, 2012, as a result of Mr. Acuff’s concerns,x Dr. Pogostin contacted Mr. Davis, the CDC contract specialist designated in the contract. Dr. Pogostin related to Mr. Davis the concerns raised by Mr. Acuff as to the split hire. Mr. Davis worked for Ms. Redd and was located physically in the same office. Mr. Davis then contacted Ms.