CBCA 6128

THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING PUBLICLY RELEASED IN ITS ENTIRETY ON MARCH 30, 2021 DISMISSED: March 15, 2021 CBCA 6128, 6129 PURDY ENTERPRISE, LLC, Appellant, v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Respondent. Doug P. Hibshman and Nicholas T. Solosky of Fox Rothschild LLP, Washington, DC, counsel for Appellant. Jonathan English and Julie Cannatti, Office of General Counsel, Department of Housing and Urban Development, Washington, DC, counsel for Respondent. Before Board Judges SOMERS (Chair), BEARDSLEY, and RUSSELL. BEARDSLEY, Board Judge. Purdy Enterprise, LLC (Purdy) timely appealed from the decisions of two Department of Housing and Urban Development (HUD) contracting officers, both denying Purdy’s claims for payment under HUD field service management (FSM) contracts. The appeals were consolidated. Purdy filed a motion for summary judgment, and HUD filed a motion to dismiss for failure to state a claim on which we could grant relief or, in the alternative, for summary judgment. We grant HUD’s motion to dismiss and deny Purdy’s motion for CBCA 6128, 6129 2 summary judgment. HUD’s motion for summary judgment is moot and, thus, denied. We, therefore, dismiss the appeals. Background HUD awarded contracts to multiple contractors under two FSM programs — FSM 3.10 and FSM 3.8. The appeals at issue here arise out of FSM 3.10 contracts DU204SA-17-D-05 (D-05) and DU204SA-17-D-06 (D-06) (the “Purdy contracts”).1 D-05 covers Area 4A (Indiana and Kentucky), and HUD awarded this contract on May 8, 2017. D-06 covers Area 5A (North Carolina and South Carolina), and HUD awarded this contract on May 22, 2017. The contracts require Purdy to provide management, maintenance, preservation, and inspection services to, as well as secure and perform cosmetic enhancements and repairs for, HUD properties.2 Relevant here, Purdy performs two primary types of services under the Purdy contracts: (1) on-going property management services, and (2) routine property inspections. These contracts operate on a hybrid fixed-price and cost- reimbursable contract line item number (CLIN) basis.3 Pursuant to CLINs 0005 (HUD- Owned Vacant), 0006 (Custodial), and 0007 (Vacant Lot), Purdy performs ongoing property management services on a monthly fee basis for the three HUD property types. The 1 These appeals are two of seven appeals before the Board involving FSM 3.10 contracts. While the seven appeals (CBCA 6128, 6129, 6174, 6175, 6176, 6177, and 6351) involve five different contractors, all seven appeals present substantially similar issues of law and fact, and “the Purdy contract terms mirror the contract terms of the other FSM contracts.” As a result, for purposes of judicial efficiency and by agreement of the parties, the Board stayed the five other appeals involving FSM 3.10 contracts pending resolution of these two appeals involving the Purdy contracts. 2 HUD-owned properties are “vacant land and occupied-conveyance properties” that “HUD owns by reason of payment of an insurance claim or another acquisition method.” Custodial properties are “borrower owned [vacant] property . . . which HUD, through the Contractor, has taken possession of following default and vacancy or abandonment.” The contracts state that vacant lots are to be “maintained at all times in a manner that result in properties that are clean, safe and sanitary.” Otherwise, the contracts do not define vacant, vacant lots, or vacant properties. 3 Section B of both contracts contains CLINS for each year of performance, making a total of forty-five CLINs for the base year and four option years. Each year has its own set of CLINS, identical except for the number designation, the estimated quantities, and total prices. For convenience, we refer to the relevant CLINs by their base-year numbers. CBCA 6128, 6129 3 contracts also required that HUD pay for routine, biweekly property inspections performed by Purdy. The issue in these appeals is “which CLIN specifies the compensation for routine, bi- weekly inspections of custodial properties,” and the answer hinges on the interpretation of CLINs 0005, 0005AA, and 0006.