CBCA 5354

DISMISSED FOR FAILURE TO STATE A CLAIM: August 18, 2016 CBCA 5354 FINANCIAL & REALTY SERVICES, LLC, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Eden Brown Gaines of Brown Gaines, LLC, Washington, DC, counsel for Appellant. Catherine Crow, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. CHADWICK, Board Judge. Financial & Realty Services, Inc. (FRS or appellant) appealed a contracting officer’s decision denying its claim for $49,280 in unpaid invoices under a fixed-price General Services Administration (GSA or respondent) task order. FRS elected the small claims procedure of Board Rule 52 (48 CFR 6101.52 (2015)), which provides for an expedited, nonprecedential decision by a single board judge. GSA then filed a motion under Rule 8(c)(1) (id. 6101.8(c)(1)) to dismiss the appeal for failure to state a claim on which the Board could grant relief. We grant GSA’s motion. Background We base this summary on the complaint’s factual allegations, which we treat as true for this purpose, and on contract documents attached to or integral to the complaint. CBCA 5354 2 FRS has held GSA schedule contract GS-06F-0022P for facilities maintenance and management services (schedule 03FAC) since 2004. “Refresh 21” of the contract, issued by bilateral modification in July 2013 (Appeal File, Exhibit 1), included, among other standard clauses: Federal Acquisition Regulation (FAR) clause 52.212-4, Contract Terms and Conditions–Commercial Items (Alternate I, Aug. 2012) (Deviation I, Feb. 2007) (48 CFR 52.212-4 (2012)); FAR clause 52.216-18, Ordering (Oct. 1995) (Deviation II, Feb. 2007) (id. 52.216-18); and FAR clause 52.216-22, Indefinite Quantity (Oct. 1995) (Deviation I, Jan. 1994) (id. 52.216-22). The Ordering clause stated that orders issued under the contract were “subject to the terms and conditions of this contract. In the event of conflict between a delivery order or task order and this contract, the contract shall control.” GSA awarded FRS task order GS-P-07-13-UD-0034 under the contract in September 2013. Complaint, Exhibit B; Appeal File, Exhibit 3. This order described itself as “a non-personnel [sic] services task order for . . . property management/lease administration services for the Service Centers Division, Greater Southwest Region (R7) of [GSA] in support of various federal[ly] owned and leased buildings in the Dallas/Fort Worth [Texas] Service Center, Fort Worth Field Office.” In general, the task order required FRS to provide one property manager to assist a contracting officer’s representative (COR) on a daily basis at a GSA Public Buildings Service office in Fort Worth and “in various federally owned and leased buildings in the Fort Worth area.” The order allowed GSA to review the resumes of candidates for the property manager position (but not to select the employee), and said that contractor personnel “must be able to obtain” a National Agency Check with Inquiries (NACI) clearance within three months of award and keep the clearance “for the life of the contract.” It also said, “The Contractor must at all times maintain an adequate work force for the uninterrupted performance of” the task order requirements. We discuss other provisions below. The task order was priced in firm fixed annual amounts. GSA agreed that FRS could invoice in fixed monthly increments. An FRS employee initially served as the property manager under the task order. “In the late summer or early fall of 2014, the Government, without notifying or negotiating with FRS, solicited [that employee] from FRS’[s] employment by offering him a position performing the same duties in the same office in which he performed work on behalf of FRS.” Complaint ¶ 8. He accepted that position and resigned from FRS effective October 3, 2014. FRS submitted the name of a replacement candidate to GSA on November 12, 2014. The complaint alleges that “the Government purports” to have completed that candidate’s NACI clearance on December 22, 2014, but FRS “did CBCA 5354 3 not immediately receive” notice, and the candidate accepted another job at some point “because of the Government delay.” Id. ¶ 11. “FRS submitted a second alternate [candidate] in January 2015 and a third alternate in February 2015.