CBCA 7091

DENIED: December 2, 2021 CBCA 7091 PHOENIX MANAGEMENT, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Johnathan M. Bailey and Kristin E. Zachman of Bailey & Bailey, P.C., San Antonio, TX, counsel for Appellant. Alexander C. Vincent, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges LESTER, RUSSELL, and SULLIVAN. SULLIVAN, Board Judge. Phoenix Management, Inc. (Phoenix) executed a firm-fixed-price contract with the General Services Administration (GSA) to provide building maintenance and custodial services at two federal buildings in Austin, Texas. In October 2020, the GSA contracting officer notified Phoenix that GSA would withhold a portion of the monthly payment for September 2020 because Phoenix reported staffing levels that were lower than it had proposed. Phoenix submitted a claim seeking payment of the amounts withheld. When its claim was denied, Phoenix timely filed its appeal with the Board. CBCA 7091 2 The parties filed cross-motions for summary judgment, seeking a decision on whether GSA’s actions were proper. Based upon the terms of the contract, we determine that GSA properly withheld the amounts. Background Pursuant to the contract executed in May 2020, Phoenix agreed to provide custodial, grounds maintenance, and operations and maintenance services for a monthly fee. Appeal File, Exhibit 7 at 274-75.1 The monthly price in the base year was $98,592.60. Id. at 274. The monthly price included “pricing for services specified in the solicitation. This is a Firm Fixed Price contract and will not be changed unless there is a change in the scope of work.” Id. at 275. Staffing Requirements Phoenix was required to staff the contract in accordance with its proposal. This requirement was stated in four different places in the contract. In section B, the contract advised that “[s]taffing levels proposed and accepted at the time of award shall not be reduced through the life of the contract. At the end of each contract year, and at the request of the contractor, GSA will consider a request from the contractor for a reduction in staffing, and [a reduction] will be based on contractor performance.” Exhibit 7 at 275. In the statement of work (SOW), Phoenix was told to follow the staffing plan it submitted in its proposal: C.1.2 Personnel The Contractor shall adhere to the submitted staffing plan and subcontractor plan that was submitted prior to award as part of the Bid proposal. Contractor shall submit staffing/subcontractor plan that provides sufficient numbers of staff at the various levels of expertise to ensure all scheduled and unscheduled services are performed and conditions are maintained to avoid any disruption to the tenant. Any changes to the proposed staffing levels, qualifications of proposed staff or key personnel, or the areas of expertise or disciplines of the proposed staff shall be submitted for review and approval from the [contracting officer] or their designee. Id. at 280. 1 All exhibits are in the appeal file, unless otherwise indicated. CBCA 7091 3 The contract incorporated the solicitation by reference. Exhibit 7 at 276. A provision in the instructions for offerors (Section L) stated that offerors would be bound to provide the staffing levels set forth in the management plan worksheet that they were to complete with their proposals: L.5.1.2.3 Additional information regarding Management Plan Worksheet The staffing/labor mix proposed in the Management Plan Worksheet must be adhered to for the Base year period of performance. The offeror may request an annual review of the labor mix 60 days prior to issuance of the first Option Period. Any requests for changes to the Management Plan Worksheet may be submitted and considered at that time. Any approved adjustment to the labor mix will not result in an increase in price. However, any request to reduce manpower may result in a lower price to be negotiated at the time of request. Any deviation from the accepted/approved Management Plan Worksheet may result in deductions. Exhibit 2 at 208 (emphasis in original).