CBCA 7891

RESPONDENT’S MOTION FOR SUMMARY JUDGMENT DENIED; APPELLANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT GRANTED; APPEAL GRANTED: June 5, 2025 CBCA 7891 KING & GEORGE, LLC, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Jamar T. King of Thompson Hine LLP, Miamisburg, OH; and Edward T. DeLisle and Andrés M. Vera of Thompson Hine LLP, Washington, DC, counsel for Appellant. Alexander C. Vincent, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges BEARDSLEY (Chair), O’ROURKE, and KANG. O’ROURKE, Board Judge. Respondent, the General Services Administration (GSA or agency), filed a motion for summary judgment asking the Board to affirm the agency’s interpretation that the contract permitted payment deductions for staffing vacancies, regardless of the performance-based, firm-fixed-price structure of the contract and appellant’s satisfactory performance record. Appellant, King & George, LLC (K&G), initially acquiesced to the deductions by reducing monthly invoices to match GSA’s calculations, which were based on the labor rates of the vacant positions. GSA points to this course of dealing as evidence that K&G shared the CBCA 7891 2 agency’s interpretation of how the contract’s deductions and staffing clauses worked together to ensure a “mutual win” for both parties. After GSA presented K&G with a bilateral modification deobligating $742,931.51, the total amount of deductions for the base year of the contract, K&G expressed concern about the deductions and ultimately refused to sign the modification which also contained a release of claims. GSA then issued the modification unilaterally. K&G submitted a claim to recoup the deductions, contending that the contract authorized deductions for unsatisfactory performance or omitted tasks but not for staffing shortfalls. The contracting officer denied the claim, and this appeal ensued. In its motion, respondent argues that the contract’s minimum staffing requirements were, in and of themselves, performance requirements and that for each day a position remained vacant, the vacancy amounted to a failed performance. K&G opposes the motion, citing the lack of any language in the contract that expressly authorized deductions for vacant positions. K&G further contends that the agency’s misinterpretation of the contract’s terms caused GSA to administer this fixed-price contract as if it were a labor-hour contract, depriving K&G of full compensation for its work. The result, according to K&G, was that GSA received the entire scope of work at a substantially discounted price. K&G’s own dispositive motion asks the Board to affirm K&G’s interpretation of the deductions and staffing clauses—that deductions could not be taken solely on the basis of staffing vacancies. Deductions, K&G asserts, could only be assessed for missed or unsatisfactory work. K&G also maintains that the minimum staffing requirements were mere suggestions and that any finding to the contrary would render the performance-based, fixed- price structure of the contract meaningless. In its appeal, K&G seeks to recoup funds that it alleges were improperly deducted when the agency breached the contract and constructively changed the contract’s terms. For the reasons that follow, we find that the contract did not permit payment deductions based solely on staffing vacancies. Under the clear terms of the contract, only performance failures justified the assessment of deductions, and staffing shortfalls could not reasonably be considered performance failures. Since K&G only disputes deductions based on staffing vacancies, we deny respondent’s motion, grant appellant’s motion, and grant the appeal. Statement of Undisputed Facts The parties filed cross motions for summary judgment, asking the Board to affirm their respective interpretations of the deductions clause as applied to the facts in this case. CBCA 7891 3 To decide these motions, we reviewed the parties’ pleadings, submitted pursuant to Board Rule 8(f) (48 CFR 6101.8(f) (2024)), and other relevant information in the appeal file. We establish the following facts as material and undisputed.1 I. The Solicitation - Terms Relevant to This Dispute In January 2018, GSA issued a solicitation for facilities operations and maintenance services for nine federal buildings in Florida.