CBCA 6841

DISMISSED: October 27, 2020 CBCA 6841 MIDLAND LANGUAGE CENTER, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. Tatjana Markovic, President of Midland Language Center, St. Louis, MO, appearing for Appellant. Mary A. Mitchell and Laetitia Coleman, Office of General Counsel, Department of Veterans Affairs, Houston, TX, counsel for Respondent. Before Board Judges BEARDSLEY, ZISCHKAU, and CHADWICK. CHADWICK, Board Judge. While we understand its importance to the parties, our decision in this case calls to mind the expression “a long road to a small house.” Midland Language Center (MLC) and the Department of Veterans Affairs (VA) disagree about how to interpret a contract for sign language interpreter services. The contract expired, however, after the parties agreed to submit this appeal on the record without a hearing. As a result, we decline on prudential grounds to decide whose interpretation is correct. To reach that point, however, we first consider and reject a jurisdictional objection raised by VA. CBCA 6841 2 Facts We find the following facts based on the record evidence. VA awarded the contract to MLC in October 2016. When this appeal was filed in June 2020, MLC was performing a third option year. The schedule of prices stated that MLC would provide American Sign Language (ASL) translation “for hearing-impaired employees in accordance with the SOW [statement of work].” As pertinent here, the statement of work identified ten ordering locations associated with the Michael E. DeBakey Veterans Affairs Medical Center in Houston, Texas, and provided, “Contractor shall be able to provide an ASL interpreter to the requested location within a two (2) hour notice. If an interpreter is not available and cannot provide services in person, an ASL interpreter may provide services telephonically.” The SOW further stated, “The contractor will determine within a reasonable time, normally within one (1) hour of the request for services, whether or not an interpreter can fulfill the request for assignment.” On January 6, 2020, at approximately 11:46 a.m., an ordering facility emailed MLC a request for “onsite ASL interpreter services only” at 2:00 p.m. the following day. The email stated, “We are requesting an interpreter be present in person for this appointment. Our facility is not equipped for telephonic interpreting.” At approximately 1:05 p.m., MLC’s president replied by email, “Our system notified me of non-availability for tomorrow. If there is any update I will let you know by the end of the business day today.” MLC now argues that it advised the ordering location in the email “that MLC onsite Interpreting was not available due to [an] unforeseeable change in schedule and that the Telephonic Interpreters are available for this assignment and 24/7 as per contract section B6(1)(b),” but that is not, in fact, what the email said. We quoted the email in full above. MLC did not provide an update that day. Appeal file exhibit 13 shows that VA ordered ASL translation services from a different vendor for the appointment on January 7. On January 8, the VA contracting officer issued a contract discrepancy report (CDR) stating that MLC “failed to provide required services,” which “subjects the Contractor to the default provision of th[e] agreement.”1 The report described the problem as follows: Government requested services in advance of 24 hours providing contractor ample time for onsite interpreter services. The government request was not immediate or required the contractor to provide services within the two hours or utilize the alternate method to provide services telephonically. Contractor must not misinterpret the two hour response notice per Section SOW 1(b) as 1 In its brief, VA calls this document a “deficiency report,” but the title of the form is “Discrepancy Report.” CBCA 6841 3 the permanent alternate method to provide services.