CBCA 6565

DENIED: December 8, 2021 CBCA 6565 MASTER’S TRANSPORTATION, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Matthew E. Feinberg, Lauren R. Brier, and Camilla J. Hundley of PilieroMazza PLLC, Washington, DC, counsel for Appellant. James Braswell and Sarah E. Park, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges LESTER, VERGILIO, and O’ROURKE. Opinion for the Board by Board Judge O’ROURKE. Board Judge VERGILIO concurs. The agency partially terminated for cause a delivery order contract for wheelchair vans after one of the models failed the first vehicle production inspection. Because we find that the contractor’s failure to comply with the contract’s clear terms was not excused, we uphold the partial termination and deny the appeal. Findings of Fact This case stems from a requisition for wheelchair vans placed by the Department of Veterans Affairs through the General Services Administration (GSA). On October 23, 2017, GSA issued a request for proposals for six different models of wheelchair vans under a CBCA 6565 2 multiple award delivery order contract. Each model was identified by a separate standard item number (SIN): 281, 282, 283, 284, 286, and 287. With the exception of SIN 286, competition was limited to small businesses. Appellant, Masters Transportation, Inc. (MTI), submitted a proposal for all vehicle models in the small business category. On February 26, 2018, GSA awarded MTI a contract for all proposed SINs. This appeal concerns SIN 284,1 which required a wheelchair van with a rear-deploying ramp. The contract contained the following specifications for the ramp: A mechanical wheel ramp lift shall be provided. The ramp shall be installed at the rear of the van and stow inside the van while not in use. The ramp shall be a bi-fold. The lift shall have a rated capacity of 1000 pounds. The wheelchair ramp shall have a minimum useable width of 42 inches. Light(s) shall be capable of illuminating the ramp area. When the doors are opened, the wheelchair light(s) shall operate automatically. The ramp shall incorporate a positive locking mechanism to prevent drifting from the stowed position and to reduce rattling during transit. The ramp shall comply with [Federal Motor Vehicle Safety Standards (FMVSS)] and [Americans with Disabilities Act (ADA)] requirements. Incorporated by reference into the contract was Federal Vehicle Standard 307AW, which also required ADA and FMVSS compliance. MTI modified a Fiat Chrysler ProMaster 2500 wheelchair van. Fiat Chrysler provided an incomplete vehicle document (IVD) for the van for the purposes of the modification. The IVD informed alterers that “the vehicle, when completed, will comply with motor vehicle safety standard 105 if no alterations are made to the service and parking brake systems, wheels, tires or suspension.” In the event a certified vehicle was modified, regulations imposed a duty on the alterer “to determine continued conformity of the altered vehicle with applicable Federal motor vehicle safety, Bumper and Theft Protection standards.” 49 CFR 567.7(a) (2017). The contract also required MTI to submit a first production vehicle for inspection to ensure compliance with contract specifications. If the vehicle failed the inspection, the contract permitted GSA “to refuse acceptance of all vehicles until corrective action was taken” and stated that any such failure “shall not relieve the contractor from complying with the contract delivery terms or any other provisions of the contract.” 1 The parties and documents refer to SIN 284 and SIN 284.1 interchangeably. Both numbers refer to the same vehicle model. We refer to SIN 284 throughout the opinion as simply “vehicle” or “model.” CBCA 6565 3 Between May 2018 and March 2019, MTI received ninety delivery orders for the vehicle. Shipment dates ranged from November 2018 to November 2019. Due to the orders and the delivery schedule, MTI decided to produce most of the vehicles prior to receiving approval of a first production vehicle. MTI partnered with Fenton Mobility Products (Fenton), a company that specializes in the modification of wheelchair vans, to fill the orders. First vehicle inspection testing took place on February 26, 2019.