CBCA 4026

THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN ITS ENTIRETY ON MAY 12, 2020 GRANTED IN PART: May 5, 2020 CBCA 4026 VALERIE LEWIS JANITORIAL, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. Theodore P. Watson of Watson & Associates, LLC, Aurora, CO, counsel for Appellant. David G. Fagan, Office of General Counsel, Department of Veterans Affairs, Portland, OR, counsel for Respondent. Before Board Judges DRUMMOND, KULLBERG, and O’ROURKE. KULLBERG, Board Judge. Appellant, Valerie Lewis Janitorial (VLJ), timely appealed the contracting officer’s final decision (COFD) that denied its two certified claims and asserted two counterclaims related to VLJ’s contract with the Department of Veterans Affairs (VA) for custodial and aseptic cleaning services. In its first claim, VLJ sought to recover $272,751.03 for the increased cost of using a two-step process of aseptic cleaning. In its second claim, VLJ sought to recover $441,138.06 for the cost of the increased frequency of cleaning certain buildings. The counterclaims included a claim in the amount of $112,682.12 for the use of CBCA 4026 2 the VA’s mops and laundry services, and a claim in the amount of $56,924.20 for the cost of janitorial services for two buildings after VLJ stopped cleaning those buildings. A three-day hearing of the appeal was held at the Board, and the parties submitted briefs and reply briefs. Only entitlement is at issue. Board Order (Aug. 7, 2014). As discussed below, the Board grants the appeal in part. The Board finds entitlement with regard to VLJ’s implementation of the two-step aseptic cleaning process at the VA’s direction. The Board denies VLJ’s claim for increased frequency of cleaning. Additionally, the Board denies the VA’s two counterclaims. Background Solicitation On or about September 5, 2008, the VA issued solicitation VA-261-08-UP-0083 (solicitation). Appeal File, Exhibit 3 at 1.1 The intent of the solicitation was “to enter into a contract to procure janitorial services and hospital aseptic maintenance services for the VA Northern California Health Care System, Martinez facility.” Id. at 3. The solicitation stated that the Government “comtemplate[d] award of a (Firm Fixed Price) contract.” Id. at 48. Additionally, the solicitation was a set-aside for “[s]ervice-disabled veteran-owned small business concern[s].” Id. at 101. The Martinez facility included buildings for in-patient and out-patient care and various other buildings related to research (“R” buildings), and administration (“AB” buildings). Exhibit 1 at 405-16. Building 20, the Center for Rehabilitation and Extended Care (CREC), consisted of three patient-care wings: Tahoe, 11,493 square feet (sq. ft.); Shasta, 12,753 sq. ft.; and Napa, 13,051 sq. ft. Exhibit 56 at 1. The cleanable area of other buildings on the campus included the following: building 19, outpatient clinic (OPC), 14,017 sq. ft.; building 18, bio-med, 1292 sq. ft.; the magnetic resonance imaging (MRI) trailer, 1295 sq. ft; R1, 12,348 sq. ft.; R2, 1412 sq. ft.; R3, 1800 sq. ft.; R4, 7920 sq. ft.; AB2, 3981 sq. ft.; AB4, 1937 sq. ft.; AB5, 1321 sq. ft.; AB6, 7409 sq. ft.; AB7, 11,702 sq. ft.; and AB21, 22,083 sq. ft. Exhibits 56, 61.2 1 All exhibits are found in the appeal file, unless otherwise noted. The appeal file consists of six volumes. 2 Subsequent to the hearing the Board determined that various documents in the record contained inconsistent information as to the area of various buildings, and, in some cases, such information was lacking. The Board directed the VA to provide complete information as to the area, as measured in square feet, of the buildings and areas within CBCA 4026 3 The solicitation provided for a contract performance period that consisted of a base year and four option years. Exhibit 3 at 6-7. The pricing schedule required that offerors propose a monthly unit price and total price for the base year and each option year. Id. Additionally, offerors were required to submit information regarding technical capability, technical approach, and past performance. Id.