ASBCA 62070

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Advanced Global Resources, LLC ) ASBCA No. 62070 ) Under Contract No. W911RQ-18-D-0001 ) APPEARANCE FOR THE APPELLANT: David Yang, Esq. Oles Morrison Rinker Baker, LLP Seattle, WA APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney MAJ Wayne T. Branom III, JA CPT Jeremy D. Burkhart, JA Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE D' ALESSANDRIS In December 201 7, respondent, the Department of the Army (government or Army) awarded a contract for information technology support services to appellant, Advanced Global Resources, LLC (AGR). A few days later, the award was protested to the Government Accountability Office (GAO), and the Army issued a stop work order (SWO) due to the protest. After GAO denied the protest, the Army lifted the SWO. AGR now seeks reimbursement of direct costs and extended home office overhead costs purportedly incurred during the SWO period. Appellant elected to proceed under the Board's Small Claims (Expedited) procedures, Board Rule 12.2. The Contract Disputes Act, 41 U.S.C. §§ 7106 (b)(4)-(5), as implemented by Board Rule 12.2, provides that this decision shall have no precedential value, and in the absence of fraud shall be final and conclusive and may not be appealed or set aside. For the reasons stated below, AGR's appeal is denied. FINDINGS OF FACT On December 14, 2017, the Army awarded to AGR Contract No. W911RQ-18-D-0001 for information technology support services at the Red River Army Depot (R4, tab 1). On December 19, 2017, the Army issued Task Order 0001 and Task Order Modification 000101 under the Contract (R4, tab 2; app. supp. R4, tab 23). Neither the Base Contract nor the Task Order contained terms regarding protests before GAO or stays of performance under FAR 52.233-3 "PROTEST AFTER AWARD" (R4, tabs 1-2). That FAR clause provides that "[t]he Contracting Officer shall make an equitable 1· adjustment in the delivery schedule or contract price, or both, and the contract shall be , , l modified, in writing, accordingly, if- (1) The stop-work order results in an increase in the time required for, or in the Contractor's cost properly allocable to, the performance of any part of this contract." FAR 52.233-3(b). In addition the contract contains 52.212-5 "CONTRACT TERMS AND CONDITIONS REQUIRED To IMPLEMENT STATUTES OR EXECUTIVE ORDERS-COMMERCIAL ITEMS (DEVIATION 2013-00019) (JAN 2017)" (R4, tab 1 at 106-07). Unlike the standard FAR provision 52.212-5, the deviation included in the contract does not incorporate 52.233-3. However, FAR 33.106 "SOLICITATION PROVISION AND CONTRACT CLAUSE" provides that "(b) The contracting officer shall insert the clause at 52.233-3, Protest After Award, in all solicitations and contracts." The day after Contract award, on December 15, 2017, AGR entered into an employment contract with Mr. Michael McKissick (R4, tab 15b at attach. 1). On December 22, 2017, the contracting officer notified AGR to stop work under the Contract because a GAO protest of the award had been filed by the incumbent contractor (R4, tab 3; A-B Computer Solutions, Inc., B-415819, 2018 CPD 1128, (Comp. Gen. Mar. 22, 2018)). The task order provided for a phase in period where AGR would cross-train with the incumbent contractor (R4, tab 1 at 58). AGR performed only unbillable transition work prior to receipt of the SWO (tr. 1/45). The text of the SWO reads in relevant part: [I]n accordance with FAR 52.233-3, Protest After Award, AGR, LLC is hereby notified to stop performance under subject contract. AGR, LLC shall not purchase materials or services related to this Contract until notified by the Contracting Office. AGR, LLC shall take all reasonable steps to minimize incurring costs associated with this stop-work order. (R4, tab 3) AGR acknowledged receipt of the Stop-Work Order (SWO) the same day, December 22, 2017 (R4, tab 4). The SWO did not expressly require AGR to be "on stand-by." However, it did explain that the SWO was being issued in response to a post-award protest.