CBCA 7385

DISMISSED IN PART FOR LACK OF JURISDICTION AND IN PART FOR FAILURE TO STATE A CLAIM: March 7, 2023 CBCA 7385 TRUE EXCELLENCE GROUP, LLC, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Respondent. John M. Manfredonia of Manfredonia Law Offices, LLC, Cresskill, NJ, counsel for Appellant. Ekta Patel and Bruce M. James, Office of Chief Counsel, Federal Emergency Management Agency, Department of Homeland Security, Washington, DC, counsel for Respondent. Before Board Judges GOODMAN, SHERIDAN, and ZISCHKAU. SHERIDAN, Board Judge. True Excellence Group, LLC (TEG) has appealed the denial of its certified claim arising under its indefinite-delivery, indefinite-quantity (IDIQ) contract with the Federal Emergency Management Agency (FEMA) to provide earthquake relief services in the form of Mobile Disaster Recovery Centers (MDRCs) on the island of Puerto Rico. TEG seeks $2,768,036.70 in costs associated with option periods under the contract and for the failure by FEMA to order the guaranteed minimum under the contract. CBCA 7385 2 FEMA moves to dismiss the above-captioned appeal on two primary grounds: (1) that the Board lacks jurisdiction over the guaranteed minimum claim because it was never presented to a contracting officer for a final decision, and (2) that appellant has failed to state a claim upon which relief can be granted with regard to the remaining claims. TEG opposes FEMA’s motion. For the reasons set forth below, FEMA’s motion is granted. Background On January 27, 2020, FEMA entered into a fixed-price IDIQ contract with TEG. Appeal File, Exhibit 1.1 The contract was to provide MDRCs for delivery of FEMA’s disaster relief services to survivors of an earthquake in Puerto Rico. The initial period of performance under the contract was six months with three one-month option periods (the IDIQ options). Under the statement of work (SOW), TEG was required to provide, mobilize, and demobilize ten double-wall insulated tent shelters and “wraparound services.” Exhibit 2, Attachment 1. The SOW additionally provided that the MDRCs would be placed in ten locations within Puerto Rico. Under the contract, TEG was required to respond within three hours of notification to proceed for each task order and to be on site within twenty-four hours of the notification. The MDRCs were to be operational within twelve hours of TEG arriving on site. Beginning on January 29, 2020, FEMA issued nine task orders for MDRC sites in nine of the identified locations. Exhibit 4. Each task order included a three-month base period and three one-month option periods to be exercised at the discretion of FEMA (task order options). The base period for the ninth task order was set to expire on May 27, 2020. On March 26, 2020, FEMA suspended all task orders because of the spread of COVID-19. On April 22, 2020, FEMA exercised the first option to extend the base contract for three months. FEMA likewise exercised the second and third options on May 26 and June 18, 2020, respectively. On July 26, 2020, FEMA asked TEG to submit its final invoices so that contract closeout could occur. TEG submitted invoices for the task order option periods, which FEMA refused to pay. On October 13, 2021, TEG submitted to the contracting officer a certified claim in the amount of $2,264,757.30. The contracting officer denied the claim in its entirety on January 25, 2022. TEG appealed to the Board on April 22, 2022. 1 All exhibits are found in the appeal file, unless otherwise noted. CBCA 7385 3 Discussion Standard of Review FEMA moves to dismiss the appeal on two primary grounds: (1) that the Board lacks jurisdiction over TEG’s claim regarding the guaranteed minimum, and (2) that TEG fails to state a claim for breach of contract upon which relief may be granted with regard to TEG’s remaining claims. TEG conversely argues that the Board does have jurisdiction over FEMA’s alleged failure to meet the guaranteed minimum and that it has stated a claim upon which relief may be granted. “A tribunal usually considers a motion to dismiss on jurisdictional grounds before any other motion because without jurisdiction, the tribunal cannot examine the additional matters placed before it.” Flux Resources, LLC v. Department of Energy, CBCA 6208, 19-1 BCA ¶ 37,338, at 181,588.