CBCA 7622

DISMISSED FOR FAILURE TO STATE A CLAIM: July 28, 2023 CBCA 7622 BEACON POINT ASSOCIATES LLC, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. Timothy B. Hyland of Hyland Law PLLC, Reston, VA, counsel for Appellant. Kathleen Ramos, Office of General Counsel, Department of Veterans Affairs, Arlington, TX, counsel for Respondent. Before Board Judges LESTER, SHERIDAN, and SULLIVAN. SHERIDAN, Board Judge. Beacon Point Associates LLC (Beacon Point or appellant) asserts that the Department of Veterans Affairs (VA or respondent) breached the contract by deciding not to exercise option years and not to return equipment to appellant. Appellant seeks $636,855.05 in costs and interest. As explained below, the Board grants the VA’s motion to dismiss for failure to state a claim upon which relief can be granted. CBCA 7622 2 Background Beacon Point’s Response to the VA’s Request for Quotations The VA issued a request for quotations (RFQ), VAATLANTA-STI-101519-01L03, seeking quotes for the lease of an intracranial surgical navigation system at the Atlanta VA Medical Center for a base year, with options for extensions of up to two additional years. Language in the RFQ placed the responsibility on the lessor to deliver the system and to pick it up once the lease ended. Beacon Point responded to the request on May 29, 2020, with a quote to provide the equipment over a three-year period. Exhibit 12.1 The quotation contained such terms and conditions as “EXTENDED PAYMENT PLAN TERMS AND CONDITIONS (EPP),” which stated in pertinent part: (a) These Extended Payment Plan Terms and Conditions shall be deemed incorporated into a Delivery Order issued by the Department of Veterans Affairs (the “Government”) to Beacon Point Associates, LLC (“Contractor”). The Delivery Order and “Form Number BP101819” shall together constitute the entire agreement. It is understood that this agreement is an Extended Payment Plan (“EPP”). The Government will make the EPP Payments below for the asset(s) specified in the Delivery Order (“Asset(s)”), (i) unless it fails to receive appropriated funds to do so or terminates for convenience, and (ii) without any abatement, reduction, set-off, defense, counterclaim or recoupment whatsoever. The foregoing may be limited by the termination rights set forth in items 1(b) and 1(c) herein. (b) The Government has an option to renew this EPP beyond the initial fiscal year and is obligated to use its best efforts annually to obtain sufficient funds from appropriated and other legally available sources to do so until completion of the EPP Term. Provided it obtains such sufficient funds, the Government shall exercise all renewal options. Because of this commitment, [the] Government is receiving favorable pricing which is not normally available. Delivery Orders shall not be deemed to obligate succeeding fiscal year’s funds or otherwise commit the Government to renewal. However, the Government agrees that its known requirements are for the full EPP Term, and that Non- appropriations of Funds and Termination for Convenience shall be the only 1 All exhibits are found in the appeal file, unless otherwise noted. CBCA 7622 3 conditions that shall prevent annual renewal of the EPP. In the event the Government fails to exercise its option to renew this EPP or fails to use its best efforts to seek and obtain appropriations to support this EPP in any subsequent fiscal year, but expends funds for the functions which the Asset(s) were procured to perform, then the Government will be deemed to have had funds available to support this EPP. Asset(s) placed in service in accordance with this EPP shall be governed by the terms and conditions of this EPP for subsequent renewal years. (c) . . . The Government agrees not to invoke Termination for Convenience unless the need for the functions that the Asset(s) were procured to perform no longer exists. Id. at 000068. The quotation set the term of the EPP at thirty-six months and set forth a payment schedule of $159,857.91 for the base year, $272,836.78 for option year 1, and $272,836.78 for option year 2.