CBCA 6264

DENIED: August 24, 2020 CBCA 6264, 6279, 6284 CARMAZZI GLOBAL SOLUTIONS, INC., Appellant, v. SOCIAL SECURITY ADMINISTRATION, Respondent. J. Russell Cunningham of Desmond, Nolan, Livaich & Cunningham, Sacramento, CA, counsel for Appellant. Dorothy M. Guy, Brandon Dell’Aglio, Tal Kedem, and Alice M. Somers, Office of the General Counsel, Social Security Administration, Baltimore, MD, counsel for Respondent. Before Board Judges SOMERS (Chair), BEARDSLEY, and VERGILIO. VERGILIO, Board Judge. The Social Security Administration (agency) moves for summary judgment in these three appeals involving Carmazzi Global Solutions, Inc. (contractor). The contractor challenges the validity of each termination for cause. The agency maintains that undisputed material facts demonstrate that the contractor failed to perform each commercial item contract; that is, the contractor breached the contracts and task orders by not providing verbatim hearing reporters (VHR), and each basis raised by the contractor in its claims and answers is factually unsupported in the record or fails to invalidate the terminations for cause. CBCA 6264, 6279, 6284 2 The contractor failed to provide reporters under the three contracts and task orders, before, during, and after the agency had identified deficiencies and issued notices to cure and to show cause. The contractor was in default of each contract and task order as found by the agency, such that the terminations for cause were justified. The contractor bears the burden to demonstrate that its failure to perform was excusable; that is, arose from causes beyond its control and without its fault or negligence. In its answer to the agency’s complaint, the contractor provided various explanations to excuse its failure to perform. However, it has failed to respond to the agency’s motion or identify genuine issues of material fact. The agency sufficiently has addressed the failures of the contractor to establish a plausible basis to alter any of these terminations for cause. The Board need not elaborate, given the contractor’s silence and failure to pursue any theory that could establish a basis to invalidate any of these terminations. It is not for the Board to speculate upon the facts, if any, the non-movant may contest, or any factual and legal theories the contractor might ultimately seek to pursue. The Board grants the agency’s motion, and denies the appeals. Background The agency awarded multiple commercial item contracts and issued task orders thereunder to the contractor to provide reporters at disability appeal hearings before administrative law judges. At issue here are three contracts and related task orders for Detroit, Michigan (CBCA 6264); Tallahassee, Florida (CBCA 6279); and Dallas, Texas (CBCA 6284). After a transition period under each contract, the contractor was obligated to provide 100% coverage for hearings and provide assurances ahead of each hearing that a reporter would be present. The contracts contained a Termination for Cause clause, 48 CFR 52.212-4(m) (2018), that permitted the agency to terminate each contract or task order if the contractor was in default. (m) Termination for cause. The Government may terminate this contract, or any part hereof, for cause in the event of any default by the Contractor, or if the Contractor fails to comply with any contract terms and conditions, or fails to provide the Government, upon request, with adequate assurances of future performance. In the event of termination for cause, the Government shall not be liable to the Contractor for any amount for supplies or services not accepted, and the Contractor shall be liable to the Government for any and all rights and remedies provided by law. If it is determined that the Government improperly terminated this contract for default, such termination shall be deemed a termination for convenience. CBCA 6264, 6279, 6284 3 The contract’s definition of “excusable delays” provided an exception to such a termination: “The Contractor shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Contractor and without its fault or negligence . . .