CBCA 4241

DENIED: July 29, 2019 CBCA 4241 UCENSYS RESEARCH CORP., Appellant, v. NUCLEAR REGULATORY COMMISSION, Respondent. Christopher Lee, Director, Research and Technology, of Ucensys Research Corporation, Ashburn, VA, appearing for Appellant. Michael L. Norris, Office of the General Counsel, Nuclear Regulatory Commission, Washington, DC, counsel for Respondent. Before Board Judges KULLBERG, ZISCHKAU, and SULLIVAN. KULLBERG, Board Judge. Appellant, Ucensys Research Corporation (Ucensys), appeals the contracting officer’s (CO’s) termination for cause of an order for renewal of service coverage for video teleconference (VTC) equipment and the CO’s demand for repayment of the contract price in the amount $64,784.53. Ucensys contends that its failure to provide the ordered services was due to circumstances beyond its control. The Board conducted a hearing in this appeal, and the parties submitted briefs. For the reasons stated below, the Board denies the appeal and directs appellant to repay $64,784.53. CBCA 4241 2 Background On October 17, 2013, the Nuclear Regulatory Commission (NRC) issued solicitation number ADM-14-010 (solicitation), which was reposted on October 21, 2013, for the purchase of Cisco SmartNet enterprise content delivery network (ECDN) service for forty-four items of CISCO/Tandberg VTC equipment. Appeal File, Exhibits 37-39.1 The solicitation had two contract line item numbers (CLINs). Exhibit 38. CLIN 001 was for “Cisco SmartNet ECDN Service Coverage for one year from 12/1/2013 through 11/30/2014[,]” and CLIN 002 was for “[r]einstatement charge [that may be] applicable to product(s) that have a [lapse] in coverage.” Id. The solicitation was limited to “sources that are authorized by Cisco to sell the required services.” Id. at 2. NRC issued the solicitation after it determined that forty-four items of VTC equipment, which were identified by serial numbers, required “renewal of CISCO SmartNet ECDN maintenance and support plans for a period of one year.” Exhibit 1 at 1. Additionally, NRC determined that the existing “Cisco/Tandberg warranty service agreements . . . [had] expired or will expire in calendar year 2013. Id. at 3. NRC contacted Cisco in September of 2013 “to get an estimate of what one year service will cost.” Exhibit 4 at 2. Cisco provided an estimate, which was dated September 7, 2013. Exhibit 50. NRC used that estimate from Cisco to establish an independent government estimate. Transcript, Vol. 1 at 51-52. That estimate from Cisco also confirmed that renewal of service coverage could be obtained for all forty-four of the items of VTC equipment, and any potential bidder would have been able to obtain that same information from Cisco. Id. After receipt of bids in response to the solicitation, NRC determined that some of the bids did not include a price for reinstatement fees under CLIN 002. Exhibit 4, at 2. NRC then issued “[a] repost . . . requesting bidders to ensure they include full reinstatement fee (if applicable) to their current bid.” Id. at 1. Ucensys submitted its final bid on December 3, 2013, in the form of an invoice for $64,784.53. Exhibit 15 at 4. On December 18, 2013, NRC awarded purchase order NRC-HQ-40-14-P-0001 (order) to Ucensys to “[p]rovide funding for CISCO SmartNet ECDN service for 44 CISCO/Tandberg equipment items at the NRC.” Exhibit 14 at 3. The order required Ucensys to purchase service coverage for the period from December 1, 2013, to November 30, 2014, and the obligated amount of award under the contract was $64,784.53. Id. at 2. The contract schedule stated, “Delivery of supplies or services to the NRC by 1/1/2014.” Id. Ucensys’ contract price consisted of CLIN 001 in the amount of 1 All exhibits are found in the appeal file, unless otherwise noted. CBCA 4241 3 $47,689, and CLIN 002 in the amount of $17,095.53. Id. On December 24, 2013, NRC approved Ucensys’ invoice for the full amount of the order, $64,784.53. Exhibit 15. The order incorporated in full Federal Acquisition Regulation (FAR) clause, 48 CFR 52.212-4 (2013) (FAR 52.212-4), contract terms and conditions–commercial items (JUL 2013). Exhibit 14 at 2-9. That clause provided in pertinent part, the following: (d) Disputes. This contract is subject to the Contract Disputes Act of 1978, as amended (41 U.S.C. [§§ 7101-7109 (2012)]).