CBCA 5038

DISMISSED IN PART FOR LACK OF JURISDICTION, GRANTED IN PART: February 22, 2016 CBCA 5038, 5039 BRENT PACKER, Appellant in CBCA 5038, and MYRNA PALASI, Appellant in CBCA 5039, v. SOCIAL SECURITY ADMINISTRATION, Respondent. Brent Packer and Myrna Palasi, pro se, Olympia, WA. Dorothy M. Guy, Jennifer M. Siegel, and Brandon Dell’Aglio, Office of the General Counsel, Social Security Administration, Baltimore, MD, counsel for Respondent. Before Board Judges KULLBERG, WALTERS, and LESTER. LESTER, Board Judge. Pending before the Board is the appellants’ motion for summary relief, through which the appellants, Dr. Brent Packer and Dr. Myrna Palasi, ask us to overturn the Social Security CBCA 5038, 5039 2 Administration (SSA) contracting officer’s decisions to terminate for cause their Blanket Purchase Agreements (BPAs) and associated call orders. Respondent, the SSA, has asked that we dismiss appellants’ appeals for lack of jurisdiction or, in the alternative, grant summary relief in the SSA’s favor and uphold the terminations for cause. For the reasons set forth below, we grant the SSA’s motion to dismiss appellants’ challenges to the termination of the BPAs for lack of jurisdiction, but we grant appellants’ challenge to the terminations for cause of the related call orders. Statement of Facts I. Award, and the Terms, of Blanket Purchase Agreements On or about January 23, 2014, the SSA issued to Dr. Brent Packer a Blanket Purchase Agreement (BPA), number SS09-14-40004, through which the SSA could purchase medical consulting services for SSA Region Nine beginning from the date of the award through December 31, 2015. That same day, the SSA issued a virtually identical BPA, number SS09- 14-40002, to Dr. Packer’s wife, Dr. Myrna Palasi. Under the BPAs, Dr. Packer and Dr. Palasi were expected to provide an “independent review of disability claims,” “assess[ing] and document[ing] impairment severity in SSA disability claims based on the listing of impairments” in an SSA program manual. BPA § B-1.1. They were also to be available “to provide consultative services that are related to their area of specialization, but not directly related to any particular disability claim.” Id. The SSA expressly stated in each BPA that the BPA “does not obligate any funds” and “does not guarantee” any particular volume of purchases. BPA § C-12. Each BPA indicated that any “services to be furnished under this BPA shall be ordered by issuance of call orders,” id. § C-19(a), all of which would be “subject to the terms and conditions of this BPA.” Id. § C-19(b). It provided that the SSA “is obligated only to the extent of authorized call orders (also referred to as ‘calls’) placed under this agreement.” Id. § C-12. Although there was no minimum purchase guarantee in the BPAs, the SSA contracting officer indicated in cover letters notifying Dr. Packer and Dr. Palasi of their awards that the BPAs, which were “being initially funded for a minimum amount only,” would have maximum funding of no more than $638,400 and $634,400, respectively. Section C-29 of the BPAs, titled “Conflict of Interest,” required that, while serving as a contractor for the SSA, neither Dr. Packer nor Dr. Palasi enter into a contract to perform services for, or become an employee of, a state agency designated to carry out a disability or blindness determination function: CBCA 5038, 5039 3 The contractor agrees to not acquire or maintain a contract to perform services for a State agency, or to be an Employee of a State agency which has been designated as to carry out the disability or blindness determination function (see Attachment 6) while serving as a contractor for SSA. “State agency” means that State agency which has been designated to carry out the disability or blindness determination function. Appeal File (Packer), Exhibit 2 at 46; Appeal File (Palasi), Exhibit 2 at 46. In Attachment 5 to the BPAs, the SSA made clear that it viewed work for a state agency on disability issues as an organizational conflict of interest that would preclude simultaneous work on disability claim reviews for the SSA.