ASBCA 60856

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeals of -- ) ) PROTEC GmbH ) ASBCA Nos. 61161, 61162, 61185 1 ) Under Contract Nos. W912CM-14-D-0007 ) W912CM-14-P-0008 ) APPEARANCE FOR THE APPELLANT: Paul D. Reinsdorf, Esq. Frankfurt, Germany APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney Dana J. Chase, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE SWEET ON THE GOVERNMENT'S MOTIONS TO DISMISS The Regional Contracting Office, Weisbaden (government) moves to dismiss these appeals for lack of jurisdiction. The government argues that the contracting officer's (CO's) final decisions (COFDs) were invalid-and thus we lack jurisdiction-due to the fact that the COFDs' basis for denying the claims purportedly was a suspicion of fraud. Because a suspicion of fraud was not the basis for the COFDs-let alone its only basis-we deny the motions. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTIONS I. ASBCA No. 61161 and 61162 1. On 28 September 2014, the government awarded Contract No. W912CM-14-D-0007 to appellant PROTEC GmbH (PROTEC), for the maintenance, inspection, and repair of fire alarm, fire suppression, and evacuation systems at U.S. Army Garrison, Wiesbaden (R4, tabs 1, 4-8). 2. On 26 October 2015, the CO posted an initial evaluation on the Contractor Performance Assessment Reporting System (CPARS), which rated PROTEC as 1 ASBCA Nos. 61161 and 61162 are consolidated. However, ASBCA No. 61185 is a separate appeal. Nevertheless, because the issues raised in the motions to dismiss are substantially similar, we have decided to issue one decision for all three appeals. unsatisfactory in the areas of quality, schedule, management, and regulatory compliance (R4, tab 112). 3. The government also refused to pay some PROTEC invoices (R4, tab 115). 4. On 17 September 2016, PROTEC submitted a certified claim regarding the CPARS evaluation (R4, tab 114 ). Shortly thereafter, on 23 September 2016, PROTEC submitted a certified claim in the amount of€143,615.92 for the unpaid invoices (R4, tab 115). 5. On 6 February 2017, the CO issued a COFD addressing the CPARS evaluation and unpaid invoice claims together (R4, tab 122 at 7-8). The COFD corrected one error in the CPARS evaluation, 2 but otherwise denied the claims (id. at 8). The COFD rejected the claims for several reasons (id. at 8-18). First, PROTEC purportedly failed to maintain required professional certifications (id. at 8, I 0). Second, PROTEC purportedly submitted untimely maintenance schedules and condition reports, and failed to comply with schedules (id. at 11-14 ). As a result, the government could not verify whether PROTEC actually performed the invoiced work (id. at 12). Third, "[o]n the occasions the COR could verify ProTec technicians arrived at a building to attempt to perform some of the [testing] work, it was only partially attempted" (id. at 14). Fourth, PROTEC allegedly failed to provide a proper quality control program, properly maintain and replace limited life span equipment, and bring the child development center fire detection system online (id. at 16). As a result, the COFD concluded that the CPARS evaluation was accurate, and that "the Government cannot pay invoices when the contract called for services that, even if attempted, did not comply with the [performance work statement] and certification requirements, causing any work performed to be of no value to the Government" (id. at 18). The COFD did not state that it was denying the claim based upon a suspicion of fraud, or even mention fraud or false statements (id. at 1-18). 6. PROTEC timely appealed the COFD to the Board. II. ASBCA No. 61185 7. On 20 December 2013, the government awarded Contract No. W912CM-14-P-0008 to appellant PROTEC, for the maintenance and repair of electronic doors, gates, scanners, sauna compact system and electric/hydraulic barriers, and bollards also at U.S. Army Garrison, Wiesbaden (R4, tab 3). 8. The government refused to pay some PROTEC invoices (R4, tab 119). 2 In particular, the original CPARS evaluation incorrectly indicated that the termination type was "default." The COFD corrected that evaluation to indicate that the termination type was "none." (R4, tab 122 at 7-8) 2  9.