CBCA 6055

DISMISSED FOR FAILURE TO STATE A CLAIM: June 4, 2018 CBCA 6055 SERVITODO LLC, Appellant, v. SMALL BUSINESS ADMINISTRATION, Respondent. William J. Acuff, Management Officer of ServiTodo LLC, Chuckey, TN, appearing for Appellant. Meagan K. Guerzon, Office of General Counsel, Small Business Administration, Washington, DC, counsel for Respondent. Before Board Judges SOMERS (Chair), HYATT, and O’ROURKE. SOMERS, Board Judge. ServiTodo LLC (ServiTodo) received four contracts under section 8(a) of the Small Business Act, 15 U.S.C. § 637(a) (2012), through a partnership arrangement between the Department of Health and Human Services (HHS) and the Small Business Administration (SBA). HHS sought services; SBA arranged for ServiTodo to perform the services. ServiTodo filed multiple appeals claiming that HHS breached these contracts. After receiving $1,150,000 under a settlement agreement to resolve those appeals, ServiTodo, believing that it had underestimated the total amount of damages, filed another claim against HHS. When we determined that the settlement agreement barred recovery of additional damages from HHS, see ServiTodo v. Department of Health and Human Services, CBCA CBCA 6055 2 5524, 17-1 BCA ¶ 36,672, Servitodo filed an identical claim against SBA. This is the claim before us. SBA has filed a motion to dismiss for failure to state a claim because appellant entered into a global settlement agreement that released all claims under the contracts at issue here. For the reasons set forth below, we grant the motion. Background I. SBA 8(a) Program In October 2012, SBA entered into a partnership agreement with HHS. This arrangement arose under section 8(a) of the Small Business Act, 15 U.S.C. § 637(a), which authorizes SBA to enter into procurement contracts with other federal agencies and to subcontract performance of these contracts to socially and economically disadvantaged small businesses. See Pub. L. No. 85–536, § 8(a), 72 Stat. 384, 389 (1958) (codified as amended at 15 U.S.C. § 637(a) (2012)).1 The agreement states, among other things, that SBA delegates to the U.S. Department of Health and Human Services for re- delegation to all warranted U.S. Department of Health and Human Services’ contracting officers its authority under section 8(a)(1)(A) of the Act to enter into 8(a) prime contracts, and its authority under section 8(a)(1)(B) of the Act to arrange for the performance of such procurement contracts by eligible 8(a) Participants. In accordance with 13 CFR 123.501(a), SBA delegates its 8(a) contract execution function. SBA remains the prime contractor on all 8(a) contracts and the 8(a) Participant remains the SBA’s subcontractor. The agreement also provides that HHS’s contracting officer may “make direct award of a contract to the 8(a) Participant, but only after the requirement has been offered to and accepted by the SBA.” In accordance with the regulations, HHS submitted “offering letters” to SBA seeking administrative, professional, and managerial consulting services to be performed at HHS’s 1 SBA assigns requirement numbers to contracts for tracking purposes after SBA has accepted a procuring agency’s requirement into the 8(a) program. Here, contract no. 200-200-2011-39879 is tracked by requirement no. 0405-11-103744. Contract no. 200- 2011-41281 is tracked by requirement no. 0405-11-103876. These requirements are not separate contracts. CBCA 6055 3 Center for Disease Control and Prevention (CDC).2 SBA accepted the offers “on behalf of ServiTodo, LLC.” HHS subsequently awarded several contracts to ServiTodo (contract nos. 200-2011-412181, 200-2011-39879, 200-2012-M-51078, and 200-2011-F-38848). II. ServiTodo’s Previous Appeals Before filing the current appeal, ServiTodo filed eight appeals (CBCA 4777, 4820, 4910, 4911, 4933, 4979, 5065, and 5524) related to claims arising from one or all of the four contracts awarded to ServiTodo. HHS and ServiTodo settled the first seven appeals.3 The settlement agreement, dated March 3, 2016, provided in pertinent part: 3. ServiTodo LLC agrees that this Settlement Agreement is a complete and final settlement of all present and pending requests for equitable adjustment, claims, and CBCA Appeals . . .