ASBCA 63449

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) CB Portable Toilet Rental and Services ) ASBCA No. 63449 ) Under Contract No. N00189-22-P-0368 ) APPEARANCE FOR THE APPELLANT: Mr. Chizoma B. Onyems President Auburn, CA APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq. Navy Chief Trial Attorney James P. Winthrop, Esq. Autumn W. Hazy, Esq. James Vaiden, Esq. Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE MELNICK REGARDING QUANTUM On August 16, 2023, the Board issued its entitlement ruling in this appeal briefed at appellant’s request under Board Rule 11. CB Portable Toilet Rental Svcs, ASBCA No. 63449, 23-1 BCA ¶ 38,421. The matter arises from the termination for convenience of a contract for the delivery and maintenance of portable toilets and hand washing stations for use at Camp Lejeune, North Carolina. The entitlement decision is summarized as follows. The government awarded the contract to CB Portable on May 27, 2022. It contained FAR 52.212-4, CONTRACT TERMS AND CONDITIONS— COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES (NOV 2021). Id. at 186,711. The contract contained five line items (CLINs) identifying five training sites. At each site two portable toilets and one hand washing station were to be located and serviced for scheduled weeks, beginning in June or July 2022, running into September with later dates contemplated. Generally, each week on a site was a contract “unit.” All five CLINs specified $1,030 as the price of a unit. The five CLINs were subject to DFARS 252.232-7007, LIMITATION OF GOVERNMENT’S OBLIGATION (APR 2014), (“LOGO” clause), which limited the government’s payment obligations to an allotted amount. Although the total price of the contract was $145,230, at the time of award, the five CLINs had only been allotted $29,870 in funding. Id.  Separately, the contract required two “perpetual” portable restrooms and one hand washing station to include maintenance and cleaning service twice a month at an unidentified site. Id. Though no price was given for this requirement, the Board concluded that $1,030 per week was also reasonable. Id. at 186,715. Finally, during performance, the parties agreed to a contract change permitting the government to order units for additional locations and times at the $1,030 price. Id. at 186,712, 186,715. On August 12, 2022, the government terminated the contract for convenience, effective August 19, 2022. The government also added funding for the five CLINs that brought the total allotted to $32,960, which it paid to CB Portable. CB Portable completed services and stopped operations as of August 19. Id. at 186,713. CB Portable’s appeal sought additional compensation beyond the government’s payment. The government argued that CB Portable’s recovery was strictly limited by the LOGO clause to the $32,960 it had allotted to the contract and already paid. Id. at 186,715. The Board recognized that under this commercial item contract’s termination for convenience provision CB Portable should “‘be paid a percentage of the contract price reflecting the percentage of the work performed . . . plus reasonable charges’ that CB Portable ‘can demonstrate . . . have resulted from the termination.’” Id. at 186,714. The Board noted the government’s concession that CB Portable performed the five CLINs and perpetual requirement as scheduled until the effective date of the termination. It held that the liability constraints of the LOGO clause applied only to the five CLINs but not to the perpetual requirement or the changed work. Given that the contract price for CB Portable’s performance of the five CLINs only exhausted $21,630 of the $32,960 allotted to them, CB Portable was entitled to the price of their performance. Additionally, it found CB Portable was entitled to the contract price for its performance of the perpetual provision and for units provided in response to government orders stemming from the contract change. Id. at 186,715-16. Turning to the termination clause’s provision for “reasonable charges” resulting from the termination, the Board observed this “broadly requires payment of charges that do not relate to work completed but fairly compensate” CB Portable, including profit on some components. Id. at 186,716 (citing SWR, Inc., ASBCA No. 56708, 15-1 BCA ¶ 35,832 at 175,223).