CBCA 6185

THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING PUBLICLY RELEASED IN ITS ENTIRETY ON AUGUST 26, 2019 DENIED: August 20, 2019 CBCA 6185 P.K. MANAGEMENT GROUP, INC., Appellant, v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Respondent. Doug P. Hibshman and Nicholas T. Solosky of Fox Rothschild LLP, Washington, DC, counsel for Appellant. Julie Cannatti and Jonathan English, Office of General Counsel, Department of Housing and Urban Development, Washington, DC, counsel for Respondent. Before Board Judges GOODMAN, RUSSELL, and CHADWICK. CHADWICK, Board Judge. P.K. Management Group, Inc. (PKMG) timely appealed from a decision of a Department of Housing and Urban Development (HUD) contracting officer denying a claim for nonpayment of $53,812.44 under a HUD field service management (FSM) contract. After discovery, PKMG filed a summary judgment motion, and HUD cross-moved in the alternative for dismissal for failure to state a claim on which we could grant relief or for summary judgment. Because we resolve the case in HUD’s favor based on PKMG’s CBCA 6185 2 allegations and the terms of the contract, we grant HUD’s motion to dismiss, deny HUD’s summary judgment motion as moot, deny PKMG’s motion, and deny the appeal. Background HUD awarded contract DU204SA-14-D-06 to PKMG in September 2014. This “FSM 3.8” contract, which remains in effect in an option year, resembles the 2010 FSM contract that the Board examined in A-Son’s Construction, Inc. v. Department of Housing & Urban Development, CBCA 3491, et al., 15-1 BCA ¶ 36,089, clarified on reconsideration, 15-1 BCA ¶ 36,184, but it has a different price structure, and the differences matter here. Section C.1.1 of the contract identifies the contract’s general purpose as procuring assistance for the “Federal Housing Administration (FHA), an organizational unit within HUD, [in] administer[ing] the single-family mortgage insurance program. FHA insures approved lenders against the risk of loss on FHA financing.” As explained in contract section C.1.6, field service managers, or “FSMs[,] are companies that provide property maintenance and preservation services consisting of, but not limited to, inspecting [an FHA- insured] property, securing the property, performing cosmetic enhancements/repairs, and providing on-going maintenance.” HUD assigns particular properties to PKMG to manage by issuing task orders pursuant to the standard Ordering clause (48 CFR 52.216-18 (Oct. 1995)), set forth in contract section I. Contract section C.2.3 (Acquisition Types) lists examples of properties subject to FHA-insured mortgages that may enter HUD’s management portfolio. These examples include, among others, “properties conveyed to HUD by a Mortgagee following foreclosure, or deed-in-lieu of foreclosure” of an insured mortgage and a claim for insurance money; “custodial properties secured by a . . . mortgage . . . in default” and “vacant or abandoned,” but as to which “[t]itle is not yet in HUD’s name”; and “properties acquired as the result of the foreclosure of a mortgage serviced by HUD[,] including assigned and purchase money mortgages.” This dispute is about payment for inspecting “custodial properties.” Section B of the contract includes nine line item numbers (CLINs) (including one sub-CLIN) for each year of performance. Each year has its own set of sequential line items, identical year to year except for the estimated quantities, unit prices, and total prices, making a total of forty-five CLINs and sub-CLINS for the base year plus four option years. For convenience, like the parties, we refer to the relevant CLINs by their base-year numbers. The dispute centers on CLINs 0005, 0005AA, and 0006.