CBCA 7142

DENIED: January 20, 2022 CBCA 7142 ORSA TECHNOLOGIES, LLC, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. John M. Manfredonia of Manfredonia Law Offices, LLC, Cresskill, NJ, counsel for Appellant. David G. Fagan, Office of General Counsel, Department of Veterans Affairs, Portland, OR, counsel for Respondent. Before Board Judges LESTER, SULLIVAN, and O’ROURKE. LESTER, Board Judge. This appeal is the second of two that appellant, ORSA Technologies, LLC (Orsa), filed with the Board involving contracts with the Department of Veterans Affairs (VA) for the delivery of nitrile gloves during the COVID-19 pandemic. The contracts were awarded by different VA offices, but the terms of both contracts were fairly similar. In both cases, which the Board docketed as CBCA 7141 and 7142, the VA contracting officers terminated Orsa’s contracts for cause after Orsa did not deliver any gloves by the contractual deadlines. In both cases, Orsa challenges the terminations and blames marketplace forces caused by the COVID-19 pandemic for its inability to acquire the necessary nitrile gloves, even though both contracts required Orsa to have had the gloves “on hand” when it entered the contracts. CBCA 7142 2 By decision dated January 18, 2022, we denied Orsa’s challenge to the termination for cause in the first appeal, CBCA 7141, finding the VA’s decision not to allow Orsa to provide a substitute glove for the brand required by the contract and to terminate the contract following a failure to deliver justifiable. ORSA Technologies, LLC v. Department of Veterans Affairs, CBCA 7141 (Jan. 18, 2022). This case differs from CBCA 7141 in that, here, the VA agreed to accept substitute gloves, twice agreed to extend Orsa’s delivery deadline, and twice agreed to price increases. Nevertheless, Orsa ultimately never delivered any gloves. Orsa’s arguments that the Board should view Orsa’s failure to deliver after the VA agreed to the last delivery deadline extension as excusable are unfounded. Orsa was well aware of what it now calls a “perfect storm” of events that created glove supply difficulties when it agreed to that last revised deadline. We grant the VA’s motion for summary judgment and deny Orsa’s challenge to the termination for cause in this appeal. Statement of Undisputed Facts The Request for Quotes On or about October 30, 2020, the VA’s VISN17 Network Contracting Office in San Antonio, Texas, issued a request for quotation (RFQ) for a simplified acquisition of as many as fifty million “nitrile gloves per attached salient characteristics and price/delivery schedule,” to be delivered to the Defense Logistics Agency (DLA) in Marengo, Indiana. Appeal File, Exhibit 1 at VA000004, VA000009.1 That RFQ was, in many ways, very similar (although not an exact match) to the RFQ at issue in CBCA 7141 except that, where the RFQ in CBCA 7141 anticipated delivery of gloves within forty-five days after award, the RFQ in this case anticipated delivery within thirty days. See id. at VA000004 (“Delivery shall be 30 calendar days or sooner, after receipt of order.”). Like the RFQ at issue in CBCA 7141, the RFQ here included the “Commercial Items (Oct 2018)” clause at Federal Acquisition Regulation (FAR) 52.212-4 (48 CFR 52.212-4 (2020)), id. at VA000012-17, and provided that the VA was not making “a request for manufacturing but [instead was making] a request for quantity on hand to be delivered within 30 calendar Days from order.” Id. at VA000007; see id. at VA000061 (defining “on hand” as “in-stock and available for immediate delivery”). The RFQ further provided that “[c]ontracts that are awarded based on submitted quotes will have 30 calendar days to deliver the awarded quantities, or the contract will be terminated for cause and negative performance will be reflected within the Contractor Performance Assessment Reporting System (CPARS) and the Federal Awardee Performance and Integrity Information System (FAPIIS).” Id. at VA000007.