ASBCA 62389

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Dawson Technical, LLC ) ASBCA No. 62389 ) Under Contract No. FA8903-13-D-0002 ) APPEARANCES FOR THE APPELLANT: Johnathan M. Bailey, Esq. Kristin E. Zachman, Esq. Bailey & Bailey, P.C. San Antonio, TX APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq. Deputy Chief Trial Attorney Christopher M. Judge Hilborn, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE THRASHER The government has filed a motion for summary judgment contending it is entitled to judgment as a matter of law because appellant’s, Dawson Technical LLC (Dawson), claim is barred by the doctrine of accord and satisfaction (gov’t mot. at 1). The Board denies the government’s motion for the reasons stated herein. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION On June 26, 2013, the parties entered a multiple award indefinite-delivery indefinite-quantity (“IDIQ”) Contract, No. FA8902-13-D-0002, (the Contract) for the provision of on-site Advisory and Assistance Services (A&AS). On-site services were required at specified locations around the world (R4, tab 1, tab 37 at 19, tab 39 at 20). The Contract Performance Work Statement (PWS) at Para. 2.0 described the services to be provided under the various task orders, including Information Management Support, Project Management Support, Quality Assurance/Quality Control, and Strategic Planning (R4, tab 1 at 63-68). Although Dawson was issued nine task orders (TOs) over the course of the contract, the government’s motion only focuses upon three of them - FA8903-17-F-0382 (382), FA8903-17-F-0383 (383), and FA8903-17-F-0367 (367). Performance under TOs 367, 382, and 383 began on August 14, 2017 (R4, tab 35 at 3, tab 37 at 3, tab 39 at 3). Like all the previous TOs, each task order was awarded on a firm fixed price basis and contained its own PWS for the specific services to be provided under that task order, i.e., TO 383, program management; TO 382, technical support; and TO 367, production support (R4, tab 23 at 2, tabs 28-29). Although each of the TOs were FFP, Dawson was paid on a monthly basis using a negotiated procedure that included possible deductions taken by the government. The deduction process was a negotiation between the parties to arrive at appropriate deductions for personnel not provided during the month as required by the TO PWS. The deductions were based upon the prices for individual key personnel in Dawson’s proposals (Id.; R4, tabs 31 at 40-41, 32 at 43-45, 33 at 39-42). Every month Dawson would submit its calculation of the deductions. The COR would correct Dawson’s calculations and approve the submission of an invoice. (R4, tab 121; see also R4, tab 117) Appellant would then submit its invoice for the monthly FFP amount, minus the agreed upon deduction, and the government would pay the invoice. (R4, tab 121) New CO Reverses COTR’s Position on Deductions The deduction issue came to the fore at a contract meeting between Dawson personnel and contracting personnel on April 13, 2018, after new CO, Ms. Sandy Thompson, was assigned to the contract. Dawson alleges CO Thompson directed it to begin invoicing the full amount specified in the schedule of fixed monthly payments in each task order (app. resp., statement of genuine issues of material fact, ¶¶ 79-80 at 40-41). In May 2018, CO Thompson was in turn replaced by CO William Brooks. CO Brooks, in an email dated May 31, 2018, reversed the decision of CO Thompson, stating: I have determined that the previously established method of invoicing and acceptance should continue. The contractor should only invoice based on the personnel who actually performed the services. .... [T]he most efficient and accurate method to determine the Government is receiving acceptable service and the contractor is receiving proper compensation is to invoice based on the level of service provided, which would be measured by positions filled and actually providing service. (R4, tab 83 at 1) On July 19, 2018, Dawson’s Contracts Manager sent an e-mail to the CO, formally requesting that he reconsider his decision (R4, tab 84 at 2).