ASBCA 60927

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Tristana R. Harvey Career Planning & ) ASBCA No. 60927 Consulting Series LLC ) ) Under Contract No. W56ZTN-14-P-0033 ) APPEARANCE FOR THE APPELLANT: Dr. Tristana R. Harvey Owner APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney MAJ Christopher M. Coy, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE SWEET Tristana R. Harvey Career Planning & Consulting Series LLC (Harvey) appeals the decision of the United States Army Garrison-Aberdeen Proving Ground (Garrison) denying its settlement proposal following a termination for convenience. Harvey has elected to use the Board's expedited procedure pursuant to Board Rule 12.3. A one-day hearing was held on 31 May 201 7, and both entitlement and quantum are at issue. The appeal is denied. SUMMARY FINDINGS OF FACT I. Background 1. The Garrison was the contracting office for Aberdeen Proving Ground (APG) (tr. 1157). One of the Garrison's customers was the APG's Army Community Services (ACS). The ACS in turn had several customers, such as the Chemical Materials Activities (CMA). {Tr. 1156-57) One program ACS offered to its customers was the Family Advocacy Program (F AP) (R4, tab 1 at 18-21 ). The Installation Management Command (IMCOM) exercised oversight of ACS's programs-including FAP (tr. 11127). IMCOM did that by accrediting ACS programs every three years, and conducting audits between those accreditations (tr. 1/125-26). 2. The FAP had a point of contact (POC), who had significant responsibilities related to spousal and child abuse prevention. As a result, the F AP had to have a FAP POC. {Tr. 11117) By regulation, the FAP POC responsibilities revert to the ACS Director when there was no dedicated FAP Manager (FAPM) (tr. 1183, 116-17). II. The Contract 3. On 28 August 2014, the Garrison awarded Contract No. W56ZTN-14-P-0033 (0033 contract), a commercial items contract, to Harvey to provide various FAP classes (R4, tab 1at1, 6, 18-21). In particular, the 0033 contract required, at a minimum, that Harvey provide the following classes every year: 25 child abuse prevention briefings; 25 community briefings; 30 bullying prevention classes; 40 couples effective communication classes; 25 anger and stress management classes; 25 effective parent and child communication classes; and annual troop training (id. at 18-19, 25; tr. 1/42-43). Thus, at a minimum, the 0033 contract required 180 combined class sessions per year. 4. The period of performance was: Base Year 2 September 2014-1 September 2015 Option Year 1 2 September 2015-1 September 2016 Option Year 2 2 September 2016-1September2017 (R4, tab 1 at 7) 5. The 0033 contract stated that "[t]he contractor shall furnish all supplies, equipment, and services required to perform work under this contract that are not listed under Section 3 of this" performance work statement (PWS) (R4, tab 1 at 16). In particular, the 0033 contract required that the "contractor shall, semi-annually and as needed, update instruction materials" (id. at 21). Section 3.5. stated that the "[ c]ontractor may use all resource materials currently on hand. Contractor may suggest the purchase of additional curriculum and resources for inclusion in the resource material. Contractor's suggestions shall create no obligation of the Government to purchase or pay for additional curriculum and resources." (Id. at 15) 6. Further, the 0033 contract stated that "[t]he contractor is responsible for developing publicity for classes as indicated in paragraph 15c(l) in conjunction with DFMWR Marketing Manager" (R4, tab 1at22). 7. The 0033 contract also required coordination with the FAP POC (R4, tab 1 at 7-9, 18-22). 8. Further, the 0033 contract contained the commercial items termination for convenience clause under FAR 52.212-4(1), which stated that "[t]he Government reserves the right to terminate this contract, or any part hereof, for its sole convenience" (R4, tab 1 at 30). This clause also allows recovery of "a percentage of the contract price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges the contractor can demonstrate to the satisfaction of the Government using its standard record keeping system have resulted from the termination" (id.). 2 III. Performance 9.