CBCA 7208

DISMISSED FOR FAILURE TO STATE A CLAIM: January 13, 2022 CBCA 7208 OWL, INC., Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. James L. Hughes and Les A. Schneider of Wimberly, Lawson, Steckel, Schneider & Stine, P.C., Atlanta, GA, counsel for Appellant. David G. Fagan, Office of General Counsel, Department of Veterans Affairs, Portland, OR, counsel for Respondent. Before Board Judges BEARDSLEY (Chair), GOODMAN, and DRUMMOND. BEARDSLEY, Board Judge. Appellant, OWL, Inc. (OWL), alleges that it lost revenue as a result of a reduction in transportation services ordered by the Department of Veterans Affairs (VA) under the parties’ indefinite delivery indefinite quantity (IDIQ) contract due to the COVID-19 pandemic. The VA moves to dismiss the appeal on the ground that the VA had no obligation to order more services because it had satisfied the guaranteed minimum under the contract. We dismiss this appeal for failure to state a claim. CBCA 7208 2 Background In August 2019, OWL contracted with the VA to provide wheelchair van and sedan transportation services for the VA beneficiaries of the Edward Hines Jr. VA hospital in Hines, Illinois, and associated community-based outpatient clinics. Appeal File, Exhibit 2 at 5. The contract included Federal Acquisition Regulation (FAR) clause 52.216-22, Indefinite Quantity (OCT 1995), id. at 26, and under section C.12, the contract states that “[t]his contract will be an IDIQ contract with a 5 year ordering period.” Id. at 32. The contract includes a guaranteed minimum of $500,000 to “be met in the initial fiscal year of the contract award.” Id. at 4. The minimum amount of $500,000 was met during the initial year of the contract. Notice of Appeal, Exhibit D at 28-29.1 OWL alleges that, as a result of COVID-19,2 “the VA effectively issued a partial stop work order/government delay of work/change of work scope by limiting the number of patients per trip, reducing trip requests, and giving patients instructions to conduct telehealth appointments.” Notice of Appeal at 2. The COVID-19 pandemic, and the subsequent executive order and actions by the VA “substantially reduced ridership and substantially changed how OWL delivered transportation.” Id. at 3. As a result, OWL claims an equitable adjustment for the period of April through December 2020 in the amount of $1,058,560.13. Id. at 1, 3. Discussion “[T]he granting of a motion to dismiss for failure to state a claim upon which relief can be granted is appropriate when the facts asserted by the claimant do not entitle it to a legal remedy.” Kiewit-Turner, A Joint Venture v. Department of Veterans Affairs, CBCA 3450, 14-1 BCA ¶ 35,705 (citing Boyle v. United States, 200 F.3d 1369, 1372 (Fed. Cir. 2000); Charles Engineering Co. v. Department of Veterans Affairs, CBCA 582, 07-2 BCA ¶ 33,698). In a complaint, a party “must allege facts ‘plausibly suggesting (not merely consistent with)’ a showing of entitlement to relief.” SRA International, Inc. v. Department 1 Appellant designated its notice of appeal as its complaint. 2 On March 13, 2020, President Trump declared a national emergency with respect to the COVID-19 pandemic (Proclamation No. 9994, 85 Fed. Reg. 15,337 (Mar. 13, 2020), Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak). On March 18, 2020, President Trump issued an executive order (Exec. Order No. 13,909, 85 Fed. Reg. 16,227 (Mar. 18, 2020), Prioritizing and Allocating Health and Medical Resources to Respond to the Spread of COVID-19) which required prioritizing and allocating health and medical resources to respond to the COVID-19 pandemic. CBCA 7208 3 of State, CBCA 6563, 20-1 BCA ¶ 37,543 (quoting American Bankers Ass’n v. United States, 932 F.3d 1375, 1380 (Fed. Cir. 2019)). “In reviewing a motion to dismiss for failure to state a claim, ‘we accept as true the complaint’s well-pled factual allegations,’ though not its ‘asserted legal conclusions.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The VA moves to dismiss this appeal because the IDIQ’s contract guaranteed minimum was fulfilled in the first year, and the VA had no further obligation to order services under the contract. In Travel Centre v. Barram, 236 F.3d 1316 (Fed. Cir.