CBCA 2294

GRANTED IN PART: March 31, 2016 CBCA 2294 AMERICOM GOVERNMENT SERVICES, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Brendan M. Lill of Hogan Lovells US LLP, Washington, DC, counsel for Appellant. Jennifer L. Howard, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges POLLACK, GOODMAN, and SHERIDAN. POLLACK, Board Judge. This appeal involves the claim of Americom Government Services, Inc. (AGS or appellant) against the General Services Administration (GSA) for costs of providing Host Nation satellite licenses and bandwidth services (HNAs) for use by the United States Forces Korea (USFK). For purposes of this decision we will use the identification HNAs to collectively refer to both the license and frequency segments of the services. Where we need to differentiate, we will specifically reference one or the other. Appellant seeks recovery under indefinite delivery indefinite quantity (IDIQ) contract GS-35F-0301N (contract) and task order number 9T3APN018 (task order), both of which were between GSA and AGS. On June 22, 2005, appellant invoiced GSA for the HNAs in the amount of $569,793.53, plus an additional $10,000 for training and translation services. GSA approved the payment and paid appellant the full invoice. After payment of the invoice, GSA realized the HNAs were not CBCA 2294 2 covered under the task order or any other contract instrument. GSA then sought to recoup the money by deducting payments otherwise due appellant on other completed obligations. GSA also returned $597,566.08 as unobligated funds to the Army. GSA closed out the task order in May 2006. While GSA does not deny that AGS provided HNAs and associated frequency services, it denies AGS’s right to payment and questions the number of HNAs provided. GSA contends that because the funds were not paid under a valid contract instrument and through the authority of a contracting official, the payment was by mistake and appellant must bear the consequences. GSA also raises defenses as to violating the cost ceiling on the contract. Appellant initially claimed that the HNAs were covered under the task order, and that if not covered, then there was an implied-in-fact contract. Finally, appellant ultimately asserted that it was entitled to compensation under the theory of ratification. On August 13, 2014, the Board ruled on cross-motions for summary relief in Americom Government Services, Inc. v. General Services Administration, CBCA 2294, 14-1 BCA ¶ 35,687. We ruled that as a matter of law, there was no express contract; determined that the task order award was for no more than thirteen HNAs;, and determined that the task order did not cover the added HNAs claimed. At the time of the motions, the only identified GSA official to have a connection to the purchase of the HNAs was Ms. Elizabeth Bigger, who approved the payment invoice for the work. We concluded that her actions as to the approval of the invoice were not enough to create an implied-in-fact contract. We left unresolved the matter of ratification, emphasizing that the record needed to be better developed before we could render a decision. On July 22 and 23, 2015, we held a hearing focusing on the issue of institutional ratification. Significant evidence was presented at the hearing that had not been presented previously, much of which is contained in this decision. Witnesses Most of the testimony was by telephone, with a number of key witnesses being overseas. The following witnesses testified: Roy Flores, an official with AGS at the time, testified as to his involvement with the initial order for thirteen HNAs and as to AGS providing the HNAs, which are the subject of the claim, to USFK. Appellant also called Don Rew, a principal of Integrated Satellite Solutions (ISS), the Korean firm that provided the HNAs under subcontract to AGS. He discussed interactions with USFK and AGS, the initiation of the purchase, what was delivered, and when. CBCA 2294 3 GSA called Elizabeth Bigger, the GSA official who approved the invoice/voucher for the HNAs in dispute. She testified as to that approval, her role in procurement for GSA, and the operation of the GSA procurement office. GSA also called Mr. Joseph Smithey, the contracting officer (CO) from 2005 into 2008.