CBCA 6906

DENIED: June 15, 2021 CBCA 6906 MERIDIAN GLOBAL CONSULTING, LLC, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Respondent. Ryan C. Bradel and Stephen G. Darby of Ward & Berry, PLLC, Washington, DC, counsel for Appellant. Keri Borzilleri and Matthew Lane, Office of Chief Counsel, Federal Emergency Management Agency, Department of Homeland Security, Washington, DC, counsel for Respondent. Before Board Judges LESTER (presiding), VERGILIO, and CHADWICK. Opinion for the Board by Board Judge CHADWICK. Board Judge LESTER concurs. CHADWICK, Board Judge. The appellant, Meridian Global Consulting, LLC (MGC), seeks compensation from the respondent, Department of Homeland Security (DHS), for a course of events in which the Federal Emergency Management Agency (FEMA) ordered fewer hours of security guard services than the number of hours that FEMA had set forth as the estimates in a labor-hour contract. Following discovery, both parties seek summary judgment. We grant DHS’s motion, deny MGC’s, and deny the appeal. CBCA 6906 2 Background Except as noted, the material facts supported by the record are undisputed. FEMA and MGC executed the contract in December 2018. The standard form 1449 described the contract as “a labor hour contract with fixed hourly labor rates (fully burdened) as set forth in the contract line item numbers (CLINs),” for Department of Labor (DOL) level II armed security guard services at three “FEMA sites in Louisiana.” (We alter the contract’s capitalization for readability.) The contract’s schedule of services contained one CLIN for the base period of performance, from February 1 to March 31, 2019, and one CLIN for each of seven, three-month option periods, potentially ending on December 31, 2020. A final CLIN provided for a one-month option period in January 2021. The base CLIN stated an “estimated number of hours” of 10,572. Each option CLIN except the last one stated an “estimated number of hours” of 15,120. In each CLIN, the total estimated value of the CLIN—the estimated hours times the hourly rate—was identified as “the not to exceed amount” of that CLIN. Every CLIN stated, “contractor shall invoice based on actual hours.” We do not know how FEMA developed its estimates of labor hours. Neither party placed such evidence in the record. Nor can we say whether, or to what extent, MGC relied on FEMA’s estimates in developing its price of $24.40 per labor hour (which FEMA increased during performance to $26.24 based on a subsequent DOL wage determination). MGC’s statement of facts in support of its motion starts with a paragraph purporting to describe how MGC “determined” the overhead and profit rates for its bid, but the paragraph is entirely conclusory, citing no “appeal file exhibits, admissions in pleadings,” or “evidence filed with the motion,” as required by Board Rule 8(f)(1) (48 CFR 6101.8(f)(1) (2019)). FEMA ultimately exercised, and MGC performed, all eight options, through January 2021. MGC invoiced for 61,856.96 hours of contract services, as compared to an estimated total of 121,452 hours that had been set forth in the awarded contract for the base period plus eight option periods.1 During performance, however, MGC signed without objection seven bilateral modifications exercising options, which cumulatively reduced the total, estimated number of labor hours to 77,040.2 The 61,856.96 hours billed by MGC are 51% of the 1 Apparently in reliance on the solicitation, MGC states that the total number of estimated hours was originally 126,000. DHS denies that MGC states the correct estimate for the base period. The sum of the estimates in the awarded CLINs is in fact 121,452 hours. 2 The bilateral modifications that reduced the estimated hours were modifications P00004, P00005, P00006, P00007, P00008, and P00009. Bilateral modification P00003 increased the estimated hours. FEMA issued a unilateral modification further reducing the estimated hours for the last option period.