CBCA 3764

DENIED: March 31, 2016 CBCA 3764 KLAMATH WILDLIFE RESOURCES, Appellant, v. DEPARTMENT OF THE INTERIOR, Respondent. Brian Shaw, Owner of Klamath Wildlife Resources, Redding, CA, appearing for Appellant. Stephanie L. Lynch, Office of the Regional Solicitor, Department of the Interior, Portland, OR, counsel for Respondent. Before Board Judges DANIELS (Chairman), VERGILIO, and ZISCHKAU. Opinion for the Board by Board Judge VERGILIO. Board Judge ZISCHKAU dissents. VERGILIO, Board Judge. On March 21, 2014, the Board received from Klamath Wildlife Resources (contractor; “contractor” at times also refers to its owner) a notice of appeal contesting the termination for default of its task order contract with the Bureau of Land Management, Department of the Interior (agency or BLM). The contractor was to conduct surveys of northern spotted owls (NSOs) pursuant to contract requirements including a referenced protocol. For each survey visit the contractor would make observations at 150 call stations and perform any necessary follow-up work. At the time of the termination, the contractor had conducted six CBCA 3764 2 sets of surveys (i.e., six visits to each call station), and had just begun another round of surveys. The parties have submitted this case on the written record. The record demonstrates that the contractor failed to comply with contract requirements when it conducted four-hour, not the six-hour, follow-up surveys required by the explicit language of the contract. The contract also required the contractor to provide identifying GPS (geographic or global positioning system) information for the locations of call stations visited, and to provide, at the request of the agency, GPS and map information supporting the actual survey conducted. By not providing the information as required and requested, the contractor failed to satisfy contract requirements. This negatively impacted the contract because the agency was unable to verify the accuracy and quality of the work. Based upon each instance of the contractor’s refusal to act in accordance with contract requirements, the agency was justified in issuing a termination for default of the task order contract. The contractor has not demonstrated that its failures to comply with contract requirements arose from excusable causes. The contractor references its successful performance of numerous other surveys, its finding of owls during these surveys, and the designation of its owner as a spotted owl expert. The first two of these items do not impact this analysis and the contractor’s duty of performance due the agency. Of the third item, the specific expertise and experience did not assist the contractor in understanding its obligations under this contract. The contractor’s obligations were express; the agency was not obligated to renegotiate contract requirements after award. The contractor did not comply with contract terms; the contractor could not dictate its obligations. Further, while one contracting officer’s representative refused to talk with the contractor, communicating instead through email, and the contracting officer did not engage the contractor during performance, these actions and non-actions did not alter or impact the contractor’s obligations, as the agency only required the contractor to fulfill the contract requirements. The agency was not required to lessen the six-hour follow-up survey requirement, to comply with the contractor’s views, or to rely upon the contractor’s statements that it was satisfactorily performing when the agency was unable to locate flagging or ensure that the contractor was visiting the correct spots for the call stations, and the contractor did not provide the information required under the contract which could have established compliance. The Board concludes that the termination for default was valid and denies the appeal. CBCA 3764 3 Findings of Fact The underlying contract with the Forest Service 1. The contractor has an indefinite delivery, indefinite quantity contract with the United States Forest Service. Exhibit 3 (all exhibits are in the appeal file). The award date was April 3, 2012; delivery orders could be placed no later than September 30, 2016. Exhibit 3 at 1-2.