CBCA 4920

CBCA 4920 DISMISSED FOR LACK OF JURISDICTION; CBCA 5093 DENIED: October 13, 2016 CBCA 4920, 5093 ATTENUATION ENVIRONMENTAL COMPANY, Appellant, v. NUCLEAR REGULATORY COMMISSION, Respondent. Justin E. Proper of White and Williams LLP, Philadelphia, PA, counsel for Appellant. Michael L. Norris and Robin A. Baum, Office of the General Counsel, Nuclear Regulatory Commission, Washington, DC, counsel for Respondent. Before Judges DANIELS (Chairman), VERGILIO, and WALTERS. WALTERS, Board Judge. These consolidated appeals consist of two appeals by appellant, Attenuation Environmental Company (AEC), under a contract with respondent, the Nuclear Regulatory Commission (NRC or agency) for environmental consultant services. The first (CBCA 4920) we dismiss for lack of subject matter jurisdiction under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 (2012), because it was filed prior to AEC providing the claim certification required by the CDA. The second appeal (CBCA 5093) was from respondent the NRC contracting officer’s decision expressly denying appellant’s properly certified claim. That claim sought $652,199 of alleged lost profits in connection with the agency’s failure to exercise a renewal option for the second and final option year under the contract. For the reasons explained below, CBCA 5093 is denied. CBCA 4920, 5093 2 Findings of Fact AEC is a small business and sole proprietorship owned by Ms. Doris Minor. Located in the State of Washington, AEC provides environmental consulting services. Joint Comprehensive Statement of Facts (JCSF)1 ¶ 1. On September 29, 2010, the NRC awarded to AEC, as a small business set-aside, contract no. NRC-41-10-014. JCSF ¶ 2. The contract, a labor hour indefinite delivery/indefinite quantity (IDIQ) contract, permitted the NRC to issue task orders for “technical assistance in the development of environmental and safety documents for uranium recovery and fuel-cycle facilities decommissioning, licensing, and other NRC technical- support activities.” Id. ¶¶ 5, 11, 12. The contract had a guaranteed minimum dollar amount for task orders of $500,000 and a specified ceiling of $5,974,592. Id. ¶¶ 6, 7. The contract had an initial term running from September 30, 2010, until September 29, 2013, and contained two one-year renewal options. JCSF ¶ 8. The contract incorporated the option clause set forth in Federal Acquisition Regulation (FAR) 52.217-9 (MAR 2000), 48 CFR 52.217-9 (2009), which provided: (a) The Government may extend the term of this contract by written notice to the Contractor within 60 days; provided that the Government gives the Contractor a preliminary written notice of its intent to extend at least 15 days before the contract expires. The preliminary notice does not commit the Government to an extension. (b) If the Government exercises this option, the extended contract shall be considered to include this option clause. (c) The total duration of this contract, including the exercise of any options under this clause, shall not exceed 5 years. JCSF ¶ 9. The contract did not impose any additional restrictions on the NRC’s right to exercise the options. See Appeal File, Exhibit 1. 1 Pursuant to the Board’s pre-hearing order, the parties submitted a joint comprehensive statement of facts, setting out the essential facts of the case chronologically in separate numbered paragraphs. Among them were facts identified as undisputed, which were to be treated as stipulations. These undisputed facts/stipulations and other disputed contentions are cited herein by JCSF paragraph number. CBCA 4920, 5093 3 Prior to the expiration of the base contract, the NRC exercised the first one-year renewal option. JCSF ¶ 13. At the time of the exercise of that first renewal option, Mr. Hugo Alcantera served as the NRC contract specialist for the base contract. Transcript at 212. Mr. Alcantera, who had come to the NRC from a similar position with the Department of Defense (DoD), initiated the option exercise, providing the base contract’s contracting officer’s representative (COR), Ms. Kellee Jamerson, with forms to complete for purposes of option exercise. The forms sought Ms.