ASBCA 61154

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Catherine Kurkjian ) ASBCA No. 61154 ) Under Contract No. W911QY-12-P-0194 ) APPEARANCE FOR THE APPELLANT: Timothy M. Burke, Esq. Law Offices of Timothy M. Burke Needham, MA APPEARANCES FOR THE GOVERNMENT: Scott N. Flesch, Esq. Army Chief Trial Attorney Dana J. Chase, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE PROUTY Appellant, Mrs. Catherine Kurkjian, was a technical writer who worked as a contractor for the Army’s Natick Laboratories in Massachusetts (Natick Labs). During the base year of her contract, she, her co-workers, and her superiors had many disagreements, culminating with (unfounded) fears of violence from Mrs. Kurkjian on the part of Natick Labs. As a consequence, Natick Labs concluded her performance of the base year of the contract about a month early, though it paid her in full, and declined to exercise its next option year on her multi-year contract. The questions before us are whether the government wrongfully terminated the base year of her contract and whether the government wrongfully failed to exercise its options on her contract, with Mrs. Kurkjian alleging that she was punished for whistleblowing activities. Given the high burden required for success on the challenges brought by Mrs. Kurkjian, we deny her appeal.  FINDINGS OF FACT 1 I. Background Prior to the Contract at Issue Mrs. Kurkjian was a full time federal employee who worked as a food technologist and then later as a technical writer at Natick Labs 2 from 1984 to 1993 and was, by all accounts, successful in her work. She left federal employment to raise her children at the end of this period. In 2006, a former co-worker called her and suggested that she return to work at Natick Labs as a part-time contract employee. She agreed, and from 2006 through 2012, she submitted bids to perform year-long contracts for Natick Labs as a technical writer and was awarded contracts for those years. (Tr. 1/12-19) II. The Contract and Mrs. Kurkjian’s Duties On February 28, 2012, Mrs. Kurkjian was awarded the above-captioned contract (the contract) to provide “document preparation and technical support” to the Food Engineering Services Team (FEST) at Natick Labs (R4, tab 1 at 1, 3). The contract consisted of a base year from February 28, 2012 through February 26, 2013 for which she would be paid $38,110, and three one-year options, each with a value of $37,000 (R4, tab 1 at 5-8). The contract incorporated by, reference several provisions of the Federal Acquisition Regulation (FAR), including FAR 52.217-9, OPTION TO EXTEND THE TERM OF THE CONTRACT (MAR 2000), which, as its title suggests, governs the exercise of options extending contract performance (R4, tab 1 at 8). In relevant part, FAR 52.217-9 provides: (a) The Government may extend the term of this contract by written notice to the Contractor within ____ [insert the period of time within which the Contracting Officer may exercise the option]; provided that the Government gives the Contractor a preliminary written notice of its intent to extend at least ____ days [60 days unless a different number of days is inserted] before the contract expires. The preliminary notice does not commit the Government to an extension. 1 Counsel for Mrs. Kurkjian offered evidence from her deposition as support for some of the facts that he sought to be found on her behalf (see, e.g., app. br. at 7). (Note that the brief has no page numbers, thus, the reader must count for themselves). For the reasons set forth in the “Decision” section below, we do not consider such evidence because it was not properly placed before us. 2 What we refer to as “Natick Labs” in this opinion has gone through several different name changes throughout Mrs. Kurkjian’s association with the organization (tr. 1/12). For simplicity, however, we will refer to it as Natick Labs throughout. 2 FAR 52.217-9 (brackets, italics, and blanks in the original).