CBCA 6534

THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN ITS ENTIRETY ON MAY 20, 2020 MOTION TO DISMISS DENIED: May 7, 2020 CBCA 6534 HJD CAPITAL ELECTRIC, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Johnathan M. Bailey and Hector M. Benavides of Bailey & Bailey, P.C., San Antonio, TX, counsel for Appellant. Brett A. Pisciotta, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges BEARDSLEY, SULLIVAN, and CHADWICK BEARDSLEY, Board Judge. Appellant, HJD Capital Electric, Inc. (HJD), agreed to construct a project at a land port of entry for the General Services Administration (GSA). GSA moved to dismiss this appeal for failure to state a claim under Board Rule 8(e) (48 CFR 6101.8(e) (2019)). For the reasons stated below, the Board denies the motion. CBCA 6534 2 Background GSA awarded HJD task order GS-P-07-17-HH-0002 under indefinite delivery/indefinite quantity (IDIQ) contract GS-07P-15-HH-D-0044 to construct a new seizure vault expansion and administrative wing at the Pharr Land Port of Entry in Pharr, Texas. In its complaint, HJD alleges that GSA imposed different and higher security clearance standards than required by the task order and IDIQ contract. HJD says its “bid only accounted for the time and expense of a locally generated badging requirement by the CBP [Customs and Border Protection] and not the extensive National GSA Requirement; [sic] which is equivalent to the Department of Defense’s Top Secret Clearance.” GSA’s security clearance process required that all HJD employees go through “a full credentialing process,” which HJD alleges took “four months or more.” HJD alleges further that the GSA badging process was a moving target that changed on a daily basis and that the badging requirements were “unclear, burdensome, confusing and not required by the Contract and Task Order,” adding “additional time and costs for [HJD] to comply.” According to the complaint, HJD sought clarification of the security clearance requirement. GSA responded that the task order required the GSA badging and background investigation in order to comply with HSPD-12 [Homeland Security Presidential Directive 12 ] because the contractor was working in a “federally controlled facility.” HJD asserts that the construction area was “fenced off with a single entrance controlled by [HJD],” and “the occupying agency for this project was CBP.” GSA asks the Board to take judicial notice of the alleged fact that GSA owns the building where the construction took place. HJD alleges that “HSPD-12 requires for all government agencies to provide security regulations for their respective agencies; therefore, security clearances from the Customs and Border Patrol [sic] Agency would sufficiently satisfy all HSPD-12 requirements and comply with specification 1.1 A.” HJD further states in its complaint that “HSPD-12 itself does not actually spell out any specific security requirements” and “does not require that contractor employees go through an excessive and time consuming security clearance.” The task order scope of work stated: All contractor personnel performing working on premises at GSA owned and operated buildings are required to pass a security background check conducted by the Department of Homeland Security/Federal Protective Service. Each contractor employee shall submit their full name, driver’s license or Identification card No., Social Security Number and date of birth. No contractor employee will be allowed on building premises until employee has CBCA 6534 3 been determined to be suitable for entrance by the Department of Homeland Security/Federal Protective Service. Please do not send personal information to GSA personnel. GSA personnel are not authorized or cleared to accept personal information. Exhibit 10 at 8. The task order also incorporated by full text amendments 1 through 3 of the procurement request. Amendment 1 included a question/answer section, which stated in relevant part: 3. What daily security measures will employees have to undergo before beginning work? Employees will be required to obtain clearances by both GSA and CBP for the duration of the project.