ASBCA 58507

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) SERDI, LLC ) ASBCA No. 58507 ) Under Contract No. HHM402-10-C-0140 ) APPEARANCE FOR THE APPELLANT: Eden Brown Gaines, Esq. Brown Gaines, LLC White Plains, MD APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney MAJ Samuel E. Gregory, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE TUNKS ON THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT AND MOTION TO STRIKE SERDI, LLC (SERDI) requests payment of$545,052.41, the balance allegedly due for the base year of a firm-fixed price, level of effort (FFPILOE), commercial items contract. The contract required SERDI to provide financial and project management support services to the Defense Intelligence Agency (DIA or Agency). DIA moves for summary judgment, alleging that it is undisputed that SERDI failed to provide 9,600 hours of support services as required by the contract. Thus, DIA argues that it is entitled to summary judgment as a matter of law. SERDI opposes summary judgment, alleging that DIA prevented it from staffing the project at the required levels. As a result, SERDI concludes that there are disputed issues of material fact which preclude summary judgment. SERDI also argues that DIA illegally de-obligated funds from its contract and applied them to another contract leaving DIA without sufficient funds to pay SERDI. SERDI's opposition is supported by the affidavits of Ms. Sabrina Poole, President and CEO of SERDI, and Ms. Andrea Elliott-Dixon, a Senior Contract Specialist. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTIONS 1. On 7 September 2010, DIA awarded SERDI a FFPILOE, commercial items contract in the amount of $786,862.00 to provide financial and project management support services (R4, tab 2). The contract contained a base year and one option year. This appeal relates only to the base year (R4, tab 52). At award, the base year extended from 1 October 2010 through 30 September 2011 (R4, tab 2 at 001, 003).  2. Section 5.0 of SERDI's proposal (pricing), which was incorporated into the contract at award, provided as follows: BaseYear Program Manager $104.18 1,920 $200,026 Senior Program Support Specialist $75.76 1,920 $145,459 Senior Program Support Specialist $75.76 1,920 $145,459 Senior Program Support Specialist $75.76 1,920 $145,459 Senior Program Support Specialist $75.76 1,920 $145,459 9,600 $781,862 1 (R4, tab 1 at 009, tab 2 at 003) 3. The Statement of Objectives (SOO) in the contract required all contractor personnel to have top secret clearances with access to sensitive compartmented information (R4, tab 2 at 011-0 12). 4. The contract incorporated FAR 52.212-4, CONTRACT TERMS AND CONDITIONS-COMMERCIAL ITEMS (JUN 2010) by reference (R4, tab 2 at 006). Subsection (f) of that clause, provided, in part, as follows: (f) Excusable delays. 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 such as, acts of God or the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carrters. 5. SERDI did not submit any invoices for the first six months of the base year (R4, tab 3). 6.