CBCA 2878

DENIED: March 9, 2016 CBCA 2878 JANE MOBLEY ASSOCIATES, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Ralph C. Thomas III of Baker, Cronogue, Tolle & Werfel, LLP, McLean, VA, counsel for Appellant. Catherine Crow and John S. Tobey, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), SHERIDAN, and KULLBERG. SHERIDAN, Board Judge. Jane Mobley Associates, Inc. (JMA) appeals the contracting officer’s final decision finding that the General Services Administration (GSA or Government) overpaid JMA under a firm-fixed-price task order and that, as a result, JMA is indebted to the Government in the amount of $37,235.60 for JMA’s alleged overbilling. For the reasons that follow, we deny the appeal. CBCA 2878 2 Statement of Facts I. Award and Performance of the Contract A. The Schedule Contract On May 14, 2004, in response to GSA’s solicitation for general marketing, media, and public information services, JMA was awarded Federal Supply Schedule contract GS-23F- 0354P (schedule contract). The purpose of the solicitation was to procure media and marketing services in order to meet GSA’s needs for such services, which could not be satisfied in-house. The schedule contract contemplated that the Government would issue task orders to JMA to provide services from the schedule contract’s statement of work. In this regard, the schedule contract provided: A firm fixed price order shall be requested, unless the ordering office makes a determination that it is not possible at the time of placing the order to estimate accurately the extent or duration of the work or to anticipate cost with any reasonable degree of confidence. When such a determination is made, a labor hour or time-and-materials proposal may be requested. The firm-fixed price shall be based on the prices in the schedule contract and shall consider the mix of labor categories and level of effort required to perform the services described in the statement of work. Exhibit 45 at 85. JMA would then be paid in accordance with the applicable rates listed in JMA’s schedule price list, which included overhead and profit. Regarding payment, JMA offered a prompt payment discount of 0.5% for payments made within fifteen days from the date of the invoice. In any event, payment for services was due within thirty days of receipt of a proper invoice. JMA’s schedule contract incorporated by reference the terms of the original solicitation. Among the terms incorporated, several provisions of Federal Acquisition Regulation (FAR) 52.212-4, 48 CFR 52.212-4 (2003) are pertinent to this appeal: (g)(1) The Contractor shall submit an original invoice and three copies (or electronic invoice, if authorized) to the address designated in the contract to receive invoices. An invoice must include– .... CBCA 2878 3 (vi) Terms of any discount for prompt payment offered[.] (Emphasis added.) .... (g)(2) Invoices will be handled in accordance with the Prompt Payment Act (31 U.S.C. 3903) and Office of Management and Budget (OMB) prompt payment regulations at 5 CFR part 1315. .... (i) Payment. . . . In connection with any discount offered for early payment, time shall be computed from the date of the invoice. For the purposes of computing the discount earned, payment shall be considered to have been made on the date which appears on the payment check or the specified payment date if an electronic funds transfer payment is made. The schedule contract was updated at various times (called a “refresh”), which modified some, but not all, of the terms and conditions of the original schedule contract. Refresh eight, issued on January 5, 2010, added the following clause to the schedule contract: (1)(ii)(D)(5) Overpayments/Underpayments. Each payment previously made shall be subject to reduction to the extent of amounts, on preceding invoices, that are found by the Contracting Officer not to have been properly payable and shall also be subject to reduction for overpayments or to increase for underpayments. B.