ASBCA 59630

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Supply & Service Team GmbH ) ASBCA No. 59630 ) Under Contract No. W912PB-06-D-0011 ) APPEARANCE FOR THE APPELLANT: Paul D. Reinsdorf, Esq. Frankfurt/Main Germany APPEARANCE FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney CPT Jessica E. Hom, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE PROUTY ON APPELLANT'S MOTION FOR SUMMARY JUDGMENT Before the Board is the fully briefed motion for summary judgment filed by appellant, Supply & Service Team GmbH (SST). Because there are no material facts in dispute that preclude summary judgment, and appellant is entitled to judgment as a matter of law, we grant it. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION This appeal involves a contract (the contract) between the United States Army (Army) in Germany and SST 1 to provide role-playing actors (known as Civilians on the Battlefield (COBs)) for the purpose of helping to train soldiers for interactions with civilians on the battlefield (app. br., SUMF ,-r,-r 1, 3).2 At its inception, in June 2006, the contract required only German or English-speaking COBs, but, in late 2006, the Army decided that it would be helpful to obtain actors that spoke Arabic and other Middle-Eastern languages to assist in training its troops in an early-2007 exercise (SUMF ,-r,-r 4, 14-15). On 2 March 2007, after the contracting officer (CO) had formally provided a change request to SST seeking pricing for the altered requirement, and after SST had submitted proposed pricing for the change, the Army issued Modification No. P00002 (Mod 2) to the contract modifying the contract in conformity with the change request and SST's proposed increased prices (SUMF ,-i,-r 17-20). The same day, the Army issued Task Order 02 (TO 2) on the contract, requiring the 1 Contract No. W912PB-06-D-0011 was initially awarded to Josip Fuduric und Bernd Specker but was later novated to SST. 2 Where the government does not dispute SST's Statement of Undisputed Material Facts ("SUMF"), we cite it as fact. provision of several hundred Arabic and Afghan language-speaking COBs for an exercise to begin on 6 March 2007 to last through 4 April 2007 (SUMF ~ 19). Two problems arose in contract performance after the Army issued the aforementioned modification and task order: first, SST encountered difficulty in obtaining enough COBs in Germany who spoke the newly-required languages; second, the process by which COBs received clearance from the Army to enter U.S. military installations in Germany was cumbersome, made even more so by the need to use so many COBs who were not necessarily native Germans. Many had to wait for several days before being informed that they would not be permitted on the base and more were turned away than ultimately permitted to participate. (SUMF ~~ 34-40) SST claimed that it needed to pay its potential COB participants for their time awaiting the Army's security screening, which was not contemplated by the contract's payment provisions (SUMF ~ 44). SST also asserts that, at a meeting held on 21March2007, the CO agreed to compensate SST for the cost of paying potential COBs to wait for security checks (SUMF ~ 49). The high rejection rate (for security reasons) of potential COBs who spoke Arabic and the Afghan languages caused SST to have difficulty obtaining enough such COBs for the exercises (SUMF ~ 54). As a result, the CO agreed to SST's request that approximately one-third of the intended Arabic and Afghan-speaking COBs could be replaced by German speakers (SUMF ~~ 52-54 ). The exercise using the COBs was duly held; SST provided the requisite number of COBs (with German speakers constituting 95 of the 277 role-players) (SUMF ~ 53); and SST billed the Army (SUMF ~ 62). The same day that SST billed the Army ( 5 April 2007), the parties executed a modification to TO 2 that slightly reduced the price (SUMF ~ 63). After resolving a nonconsequential paperwork error, the Army approved the invoice and executed another modification to TO 2, Modification No. 03 (Mod 3), conforming its price to the amount in SST's invoice (SUMF ~~ 65-66, 71-72). In the invoice, SST billed the Army for its German-speaking COB substitutes at the same rate as those who were qualified to speak Arabic and the Afghan languages (SUMF ~ 73).