CBCA 7824

DENIED: August 15, 2024 CBCA 7824 BLUEICE CONSTRUCTION LLC, Appellant, v. DEPARTMENT OF THE INTERIOR, Respondent. Bryan B. Arnold of Gordee, Nowicki & Blakeney LLP, Irvine, CA, counsel for Appellant. Lindsay Cronin, Office of the Regional Solicitor, Department of the Interior, Anchorage, AK, counsel for Respondent. Before Board Judges BEARDSLEY (Chair), SHERIDAN, and KULLBERG. SHERIDAN, Board Judge. The issue presented by this appeal is whether the contracting officer properly terminated the contract for cause. As BlueIce Construction LLC (BlueIce) did not complete the contract during the period of performance and has presented no compelling reasons excusing its nonperformance, BlueIce’s termination for cause was proper and is upheld. The appeal was submitted for decision on the written record pursuant to Rule 19 (48 CFR 6101.19 (2023)). CBCA 7824 2 Background On September 23, 2022, the Bureau of Land Management (BLM), a component of the Department of the Interior (DOI), awarded an $86,412 commercial services contract to BlueIce to remove and replace the glycol in the heating system of building 1003 at Fort Wainwright, Alaska. The contract incorporated Federal Acquisition Regulation (FAR) 52.212-4(m) (48 CFR 52.212-4(m) (2022)), which provides, “The Government may terminate this contract, or any part hereof, for cause in the event of any default by the Contractor, or if the Contractor fails to comply with any contract terms and conditions . . . .” The contract stipulated: “Any additional work/cost above the obligated amount must be approved via modification by a warranted contracting officer prior to commencement or the vendor does so at their own risk/expense.” The statement of work (SOW) required BlueIce to: (1) drain glycol from the heating system; (2) flush the system with cleaner; (3) install new 50/50 glycol solution; and (4) perform quarterly sampling for one year. The SOW provided that, “[w]hen removing old glycol, it must be verified that all heating system coils/components have been properly drained of old glycol.” The SOW also provided that after the trisodium phosphate (TSP) cleaning solution circulated through the system for twenty-four hours, “it must be verified that all system coils/components have been properly drained of the TSP solution before any new glycol is introduced into the system.” The notice to proceed established a ninety-day contract performance period, September 23 to December 23, 2022. The contract was transmitted to BlueIce by email, and both identified Mike Wise as the Government’s point of contact (POC). Mr. Wise was BLM’s maintenance mechanical supervisor; he had no contracting authority to obligate funds or modify the contract. The contract did not designate a contracting officer’s representative. In its opposition to DOI’s motion for summary judgment, filed before the parties elected to submit this case for decision on the written record, BlueIce submitted a declaration by Ron Tash, an employee of Reagent World, Inc., which is a sister company of BlueIce that provides management services to BlueIce. Declaration of Ron Tash (Dec. 6, 2023) (Tash Declaration) ¶ 1. Mr. Tash stated that he called Mr. Wise in October 2022 to ask some questions regarding the work. Id. ¶ 5. Mr. Tash claimed that, during the call, Mr. Wise told him that every heating system component, coil, and part on each floor had to first be drained of glycol and tested on each floor. Id. ¶ 6. According to Mr. Tash, Mr. Wise said that BlueIce would have to make sure, on a floor-by-floor basis, that the TSP had been removed from each heating system component and coil. Id. In a February 3, 2023, email to the contracting officer, BlueIce alleged, instead, that its “technicians were informed onsite by the POC” of the increased contract requirements. A February 9, 2023, email from BlueIce to the contracting officer similarly stated that, “when our technicians were onsite discussing CBCA 7824 3 the scope with the POC, the POC informed our technician that we had to flush each floor with the solution, clean each component[] of the system.” In support of its motion for summary judgment, DOI submitted a declaration by Mr. Wise that contradicts the allegations of BlueIce and Mr. Tash. Declaration of Michael D. Wise (Nov. 3, 2023) (Wise Declaration). Mr.