ASBCA 60729

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Fluor Intercontinental, Inc. ) ASBCA No. 60729 ) Under Contract No. W52PIJ-07-D-0008 ) APPEARANCES FOR THE APPELLANT: Gregory A. Smith, Esq. Zachary D. Prince, Esq. Daniel Q. Homer, Esq. Smith Pachter Mc Whorter PLC Tysons Comer, VA Donald M. Yenovkian II, Esq. Senior Counsel APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney MAJ Christopher M. Coy, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE O'CONNELL ON THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT The government moves for summary judgment, contending that a modification converted the third and fourth option years (OY3, OY4) of a task order to cost plus a fixed fee of 5.87 percent. The government also requests that we remand the 12-month extension period after OY4 to the parties for negotiation of the fee. Appellant, Fluor Intercontinental, Inc. (Fluor), opposes. We deny the motion. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION The following facts are undisputed for purposes of the motion, unless stated otherwise. 1. In early 2009, the Army awarded Fluor task order 5 (T05) on the above-referenced contract to provide a menu of services in Afghanistan on a cost-plus-award-fee basis. T05 included a base year and four option years. Ultimately, the Army exercised all of the options and extended the task order for an additional 12-month term beyond OY4. (R4, tabs 1, 37, 56)  2. The Army did not simply exercise the options for each year. Rather, its practice was to issue a request for proposals (RFP) for each option in an apparent recognition that the work was evolving. For example, with respect to OY2, the Army issued an RFP on 13 February 2012 stating that it (the RFP) "reflects the Government's realization that costs above the competitively established matrix pricing baseline may be incurred, as a result of changes to the matrix baseline.... Fluor should thus use their experiential knowledge of operations in Theater as of the date of this letter to determine appropriate costs for OY2 .... " (R4, tab 53 at 527) 3. During the performance of OY2, the parties signed bilateral Modification No. 60 (Mod. 60) (R4, tab 37). While this modification accomplished a number of things, the following language concerning the conversion of the task order from cost plus award fee to cost plus fixed fee is central to this dispute: The purpose of Modification 60 .. .is as follows: 2. To convert Task Order 0005 from a Cost-Plus-Award-Fee (CPAF) to a Cost-Plus-Fixed-Fee (CPFF) type task order, retroactive to the beginning of Option Year 2 (OY2), 01 July 2012. Under the CPAF task order, percentages were agreed to for Base Fee and the calculation of available Award Fee pools for evaluation periods. This Modification converts the Task Order - retroactive to the above date - to a CPFF type task order with a single negotiated fixed fee of 5.87%, hereupon eliminating Base and Award Fee prov1s10ns. (R4, tab 37 at 374) 4. On 6 March 2013 (the day after execution of Mod. 60), the Army issued an RFP for OY3 (R4, tab 53 at 548). The RFP once again recognized the Army's need for pricing in light of actual conditions, stating, for example, that "[ d]uring performance under TO 0005 there have been a number of topics addressed which may be identified as changes or which may cause a cost increase to the TO." It then proceeded to list several changes that the parties had already discussed and that Fluor should address in its proposal, such as "[s]ignificant scope discrepancies from matrix assumptions within each band, or services not included in matrix pricing." (Id.) 5. Further, the RFP stated that "current drawdown efforts have introduced a new set of potential changes and/or cost impacts to the TO" (R4, tab 53 at 548).