ASBCA 59900

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Access Personnel Services, Inc. ) ASBCA No. 59900 ) Under Contract No. N00189-09-C-Zl 14 ) APPEARANCE FOR THE APPELLANT: Mr. Tyrone G. Miller CEO APPEARANCES FOR THE GOVERNMENT: Ronald J. Borro, Esq. Navy Chief Trial Attorney Paul C. Scheck, Esq. Attorney Advisor NA VSUP Fleet Logistics Center Norfolk Philadelphia, PA OPINION BY ADMINISTRATIVE JUDGE MCNULTY This appeal involves the performance of above-captioned personnel services contract (the contract) for services supporting the Naval Supply Systems Command Fleet Logistics Center's Naval Inventory Control Point. The contract is a negotiated Small Business Administration Section 8(a) set aside. The dispute arises from the disallowance of some of the contractor's subcontractor costs, involving the interpretation of Federal Acquisition Regulation (FAR) 52.232-7, PAYMENTS UNDER TIME-AND-MATERIALS AND LABOR-HOUR CONTRACTS (DEC 2002), (the Payments clause). The parties elected to proceed under Board Rule 11. The government also incorporated a motion for summary judgment with its Rule 11 brief. We decide entitlement only and, because we find the government failed to pay appellant in accordance with the Payments clause of the contract, we sustain the appeal. FINDINGS OF FACT 1. On 29 September 2009, the contract was awarded to Access Personnel Services, Inc. (APS or appellant) (R4, tab 1). The contract was a time-and-materials type contract, which incorporated by reference the Payments clause (R4, tab 1 at 36). The contract indicated that 23 full-time equivalents would be required to perform the contract in specific labor categories as follows: four for CAV, two for Carcass Tracking, three for SIT, one for IWST SSS, two for Code 0341, one for Code 0363, two for Code 03621, and eight for Code 02 DoD Acquisition 1 (R4, tab 1 at 16-17). 1 The Performance Work Statement includes descriptions of the duties to be performed and the skill sets necessary for each of these labor categories (see The contract's performance period was for twelve months measured from the date of award (R4, tab I at 25). 2. The contract included an estimated number of total labor hours, a ceiling amount and hourly labor rates for contract line item number (CLIN) 0001 negotiated by the parties as follows: Hourly Estimated Ceiling Amount Labor Rate Labor Hours CA V Analyst (College Trainees) $33.02 8,000 $264,160.00 Carcass Tracking Specialist I 70.25 2,000 140,500.00 Carcass Tracking Specialist 2 63.23 2,000 126,460.00 SIT Specialist I 70.25 2,000 140,500.00 SIT Specialist 2 63.23 4,000 252,920.00 IWST SSS 59.71 2,000 119,420.00 Code 0341 Specialist 59.71 4,000 238,840.00 Code 0363 Specialist 59.71 2,000 119,420.00 Code 03621 Specialist 66.74 4,000 266,960.00 Code 02 Acquisition Specialist I 63.23 4,000 252,920.00 Code 02 Acquisition Specialist 2 59.71 4,000 238,840.00 Code 02 Acquisition Specialist 3 56.20 8,000 449,600.00 Contract Management 100.00 240 24,000.00 Total Estimated Hours and Ceiling 46,240 $2,634,540.00 (R4, tab I at 4) 3. In accordance with the Payments clause, the hourly rates the contractor was to charge the government were to include wages, indirect costs, general and administrative expense, and profit.