ASBCA 61519

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) NMS Management, Inc. ) ASBCA No. 61519 ) Under Contract No. N00244- l 5-C-0020 ) APPEARANCES FOR THE APPELLANT: Johnathan M. Bailey, Esq. Hector M. Benavides, Esq. Bailey & Bailey, P.C. San Antonio, TX APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq. Navy Chief Trial Attorney Kevin Lyster, Esq. Trial Attorney Naval Fleet Logistics Center San Diego, CA OPINION BY ADMINISTRATIVE JUDGE PAUL ON THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT This is a timely appeal of a contracting officer's (CO's) final decision denying appellant NMS Management, Inc.' s (NMI' s) claim in an amount of $183,003.24 for non-exercise of a fixed-price contract line item number (CLIN). The Contract Disputes Act, 41 U.S.C. §§ 7101-7109, is applicable. The government filed a motion for summary judgment, appellant filed an opposition brief, and the government filed a reply brief. Based upon the existence of a genuine issue of material fact, we deny the motion. STATEMENT OF FACTS FOR PURPOSES OF THE MOTI0N 1 I. On September 18, 2015, the Navy and NMS entered into fixed-price contract No. N00244-15-C-0020 in a total amount of$4,375,688.67. As awarded, the contract contained six CLINs for provision of food service attendant services for various naval facilities in the San Diego, California, area. (R4, tab 2 at 1-4) The performance period for the base contract was one year, extending from October 1, 2015, to September 30, 2016. The contract also provided for four option years, each commencing on October 1 and extending to September 30. Thus, total contractual performance was contemplated as expiring on September 30, 2020. (Id. at 33) 1 We state these fact solely for the purpose of resolving the motion. I I 2. On March 7, 2017, the Navy forwarded an email to NMS in which it stated its intention to close "temporarily" the Oceanside galley which was the subject of CLIN l I 2006 (R4, tab 8, ex. 1 at 2). In August 2017, in anticipation of the exercise of the contract's second option year, the Navy determined that it would close the Oceanside galley permanently. Accordingly, on August 9, 2017, Mr. Labao, the Navy's food service manager, forwarded the following email to Mr. Guaderrama, NMS's president: You will eliminate the additional services provided under CLIN 2006.121 You will still provide the same service as before based on the statement of work from the original contract. There should have [sic] a separate serving line for BUDS, I believed one line vice two lines and breakfast should start 0600 vice 0545. The hours of operation [are] still the same as the original contract at NAB. Based on the average number of meals served, there were more meals served before September 2016 compared from Oct 2016 to June 2017 when the students start eating at NAB galley. We are still going to feed the BUDS student[s]Pl (Id., ex. 5) Mr. Guaderrama responded to Mr. Labao's email on August 9, 2017, as follows: We understand the government[']s position, but the CLIN 2006 is tied into the entire contract with regards to overhead costs, vehicle costs and management costs. The BUDS feeding and students are not normal customers and require extensive workload and cleanup because of the mud, dirt, water, sand, etc. brought into the galley, which the government is fully aware of. We feel strongly that this change should be negotiated per normal contract changes. We request a contracting officer's decision concerning this change, as the government told us this was a temporary closure, and we request the right to negotiate changes that are now permanent. (Id., ex.