CBCA 5766

DENIED: June 29, 2020 CBCA 5766 SCS BUILDING MAINTENANCE, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Trevor H. Rhone, President/CEO of SCS Building Maintenance, Inc., Framingham, MA, appearing for Appellant. Michael Converse, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges VERGILIO, DRUMMOND, and SULLIVAN. VERGILIO, Board Judge. SCS Building Maintenance, Inc. (contractor) disputes the termination for cause by the General Services Administration (agency) of its contract to provide janitorial and related services at a courthouse and a federal building. The agency terminated the contract during its fourth option year, after issuance of a letter of concern and a cure notice, and receipt of a response. The parties elected to submit the case on the written record. The contractor’s recent attempt to seek a hearing, after the evidentiary record closed, is unavailing; the Board denies the request. The agency has met its burden of proof, demonstrating that the contractor failed to provide sufficient necessary services. The contractor has not demonstrated that the CBCA 5766 2 termination for cause was excused. Although the contractor attempts to recover what it describes as damages of $242,391, the Board lacks jurisdiction to consider that allegation because there is no underlying claim and appeal before the Board regarding such a dispute. The Board denies the appeal. Findings of Fact 1. With an effective date of December 1, 2012, the agency awarded the underlying contract to the contractor to provide janitorial and other services at a federal building and a courthouse. The period of performance was for one year, with a separately priced line item for each facility, and different line items for other services. Similar line items were priced for four option years. Exhibit 1 at 1, 7-18 (all exhibits are in the appeal file). The contract incorporates a Termination for Cause clause: Termination for cause. The Government may terminate this contract, or any part hereof, for cause in the event of any default by the Contractor, or if the Contractor fails to comply with any contract terms and conditions, or fails to provide the Government, upon request, with adequate assurances of future performance. In the event of termination for cause, the Government shall not be liable to the Contractor for any amount for supplies or services not accepted, and the Contractor shall be liable to the Government for any and all rights and remedies provided by law. If it is determined that the Government improperly terminated this contract for default, such termination shall be deemed a termination for convenience. Exhibit 1 at 73 (48 CFR 52.212-4(m) (2010)). 2. The contract was a performance-based service contract. Exhibit 1 at 80. The contract does not detail how the contractor is to perform, but sets forth performance quality standards and desired results. Exhibit 1 at 27 (¶ C.1.0.15), 28 (¶ C.2), 89-120. For example, under floor care, the standard for successful performance specifies: “Floors, base moldings and grout shall be clean and free of debris, including but not limited to, (dirt, water streaks, mop marks, string, gum, tar and other foreign matter). The floors shall maintain their natural luster and not have a dull appearance.” The quality assurance surveillance method states that the Government may evaluate performance based on any or all of the following: tenant satisfaction, surveys, tenant interviews, periodic inspections, and service call documentation.” Exhibit 1 at 92. For exterior hard surface areas (sidewalks, brick areas, etc.), the standard is “Shall be clean and free of dirt, debris, gum, litter, gravel, weeds, oil, and grease. No residual dirt shall remain after the removal of the debris.” The quality assurance surveillance method is as above. Exhibit 1 at 101. CBCA 5766 3 3. Consistent with the solicitation, the contract incorporated a building information sheet which provided details on the dimensions and attributes of the buildings. For the courthouse, it identifies for courtrooms and a jury room further details on the spaces, operating hours, and number of days used annually. Exhibit 1 at 82-88. 4. The agency exercised all options to extend the contract.